text:
    PASSAIC CONSOLIDATED WATER COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF NEW JERSEY, RESPONDENT.
    Argued May 4, 1927
    Decided November 11, 1927.
    Public Utilities — Accounting—Uniform System — Defendant Had Value of Property Determined by Commission — It Then Set up in its Books as a Capital Account, an Amount Much Larger Than That Fixed by the Commission — This was Done Upon the Appraisement of an Independent Expert — No Attempt was Made to Use the Higher Figures as a Basis of Rate-making or for Security Issues — Held, That Commission’s power to Establish Uniform Systems of Accounting Does Not Extend to an Arbitrary Decree That No Other System May be Employed, That it Cannot Compel a Rewriting of the Books so That No Other Capital Account Shall be Set up Than That Fixed by the Commission — It May be That Board May Require an Entry Referring to the Commission’s Valuation, but It Cannot Prohibit the Setting up a Different Basis for Other Legitimate Purposes.
    On writ of certiorari.

      Before Justices Tbenchaed and Katzenbach.
    For the prosecutor, Lindabury, Depue & Faulks and Osborne, Cornish & Scheck.

    For the respondent, John W. Queen and Thomas Brown.

   Per Curiam.

This case is before this court on a writ of certiorari. The writ brings up for review an order of the board of public utility commissioners dated January 7th, 1926, affecting the accounts of the Passaic Consolidated Water Company, the prosecutor. The contents of the order will later be particularly mentioned. In order to understand the situation with reference to the making of the order, it is necessary to review briefly certain matters relating to the prosecutor, which occurred prior to the making of the said order of January 7th, 1926.

The Passaic Consolidated Water Company is a consolidation of five companies known as the Acquaekanonk Water Company, East Jersey Water Company, Kearny Water Company, Montclair Water Company and Passaic Water Company. The approval of this consolidation wás made by the board of public utility commissioners on October 26th, 1923. On March 7th, 1923, the board had filed a decision allowing an increase in rates to the five companies. In the consideration of the rate question the board had fixed the value of the used and useful property of said companies at $11,500,000, of which $11,200,000 was designated as fixed capital (that is, plant) and $300,000 was working capital. The board in its approval of the consolidation directed that the books of the proseutor should be opened on the basis of consolidated book costs as shown in an exhibit referred to in said proceedings as Exhibit P-2. This exhibit fixed the valuations of plant and working capital at the figures hereinbefore mentioned.

The prosecutor opened its books on the basis of the consolidated book costs as of December 31st, 1922, continued to the date of the merger, which was November 1st, 1923. In the early part of the year 1924 the prosecutor rendered a report to the board covering its operations from November 1st, 1923, to December 31st, 1923, on the basis indicated by the board’s decision. In its annual report for the year ending December 31st, 1924, the prosecutor used a different set of figures. The amount of fixed capital as of December 31st, 1923, was entered as $23,170,398, and, after deducting depreciation reserve set up as a liability, it set up a net amount as fixed capital of $20,209,714. The prosecutor explained in its report that this higher figure was the result of an appraisement made by Nicholas S. Hill, Jr., an expert in the valuation of public utilities.

To these figures the board objected. The result of its objections was embodied in the order dated January 7th, 1926, which required the prosecutor (1) to reform and rewrite its books of account to conform with the board’s decision of October 26th, '1923, approving the consolidation; (2) to modify its charges made for depreciation; (3) to rewrite its books of account on said basis and to submit to the board for approval an amended annual report; (4) that upon approval of such amended annual report being had, the prosecutor should set up no other or different basis of fixed capital than that so approved.

The writ of certiorari was allowed for the purpose of reviewing the validity of this order. The prosecutor contends that the issue is whether the board can require a utility to enter on its records and accounts as to the value of its fixed capital a sum arbitrarily determined by the board without hearing or proofs, and which sum is proven to be substantially less than the fair value of such assets. The board contends that the issue is whether the board can require a utility to keep its books, records and accounts according to the uniform system adopted by the board so as to afford an intelligent understanding of the conduct of the business of the utility.

The prosecutor alleges that it has in no way sought to use the higher valuation in connection with the rates charged or •properly chargeable by it, or as the basis for the issuance of securities, or in any other matter over which the board has jurisdiction or supervision; that it claims the right to enter its assets on its records at tlieix fair value, and that it cannot he lawfully compelled to enter them at a substantially less value arbitrarily fixed by the board.

The board contends that under the provisions of the Utility act it has the power to make the order referred to, and that said order is lawfully within the powers of the hoard to enact.

The question presented seems to us to be somewhat academic. It nowhere appears in the record that the valuation placed upon its books by the prosecutor is sought to be used for any improper purpose. The board defends its order, not because the valuation which it has fixed for rate-making purposes is likely to be lost either in its records or the records of the prosecutor, but because it feels, as evidenced by the argument of its counsel, that the prosecutor seeks to contemn its power of authority.

In disposing of this question we will start out with the premises that the power of the hoard is that of regulation and not of asphyxiation. The right to regulate a utility does not destroy the right of private ownership. All the incidents of ownership, except in so far as it may he necessary to curtail them to properly exercise the power of regulation, remain with the corporation. If the order of the board is arbitrary and unreasonable and beyond the powers given to it by the statute, it is void. It seems to us that one of the rights of private ownership is the keeping of accounts not solely for the purpose of establishing a basis for fixing rates, but for such other matters as appertain to the ordinary business of a utility corporation. It owes to its stockholders certain rights that may require an entry upon its hooks of what it determines to be the fair value of its property. It must be recognized that when a board is fixing a basis for rates that it may perchance mistakenly undervalue the property of the utility or eliminate from the valuation elements which in the past have required the expenditure of considerable funds.

In ascertaining the income and excess profits upon which taxes have to he paid to the federal government, for example, it is fair that the full value of the property should be used. To use it requires that such a valuation shall be entered on the books of account. In the event of the sale of any of the company’s property for which it has no longer use there should be a record of the true value of such property. These illustrations might be multiplied. . They are only used for the purpose of showing that in the conduct of the affairs of a corporation questions regarding its property will arise which require that there be entered upon its books other entries than that of the valuation fixed by the utility board for rate-making purposes.

It is well settled that when the bodies are created for the regulation of utility companies the presumption is that the power of regulation conferred does not extend beyond the express terms of the grant. State v. Paterson, 129 S. W. Rep. 892. In Hackensack Water Co. v. Board of Public Utility Commissioners, 96 N. J. L. 184, the Court of Errors and Appeals said: "It was the intent of the legislature that the exercise of these powers should be controlled not only by the statute itself but by the settled rules and principles of the common law.”

The power which the statute gives to the board, and upon which the board relies to sustain its order in the present case, is found in section 17 of Pamph. L. 1911, p. 378. It is in these words:

"The board shall have power, after hearing, upoii notice, to require every public utility as herein defined;

“(d) To keep its books, records and accounts so as to afford an intelligent understanding of the conduct of its business, and to that end to require every such public utility of the same class to adopt a uniform system of accounting. Such system shall conform, in so far as in the judgment of the board is practicable, to any system adopted or approved by the interstate commerce commission of the United States of America.

“(e) To furnish annually a detailed report of the finances and operations in such form and containing such matters as the board may from time to time by order prescribe.

“(f) To carry, whenever in the judgment of the board it may reasonably be required, for the protection of stockholders, bondholders or creditors, a proper and adequate depreciation account in accordance with such rules, regulations and forms of account as the board may prescribe.”

We are of the opinion that the power given to the board under these provisions of the statute is not sufficient to justify the order of January 7th, 1936. While there is ample authority to justify the provision that the prosecutor should adopt the uniform system of accounts prescribed by the board, yet we are of the opinion that such a provision does not justify the provision of the order requiring the rewriting of the books of the company as to its capital account, or that portion of the order which declares that no other or different basis of fixed capital shall be set up than that approved by the board. It may well be that the board could require an entry upon the books of a utility to the effect that on such and such a date the valuation for rate-making purposes was found by the board to be a specific amount, but the order in the present case goes beyond that and is a prohibition that there shall not be set up on the books of the company for any purpose whatsoever any different basis of fixed capital than that which has been approved by the board for rate-making purposes. This, we feel, transcends the power of the board.

The order is therefore set aside, with costs.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Essex County Circuit Court.
    SAM KATCHEN, TRADING AS HILL IRON WORKS, PLAINTIFF, v. BENJAMIN BREGMAN ET AL. AND TRADERS BUILDING AND LOAN ASSOCIATION, ETC., DEFENDANTS.
    Mechanics’ Lien — Mortgages—There was a Waiver of Lien in Favor of the Mortgagee — Held, That the Waiver Gives Priority to the Mortgage up to the Amount Advanced to the Owner or for His Account, and it is Not Necessary That the Mortgagee Establish the Fact That the Money Went Into the Building.
    On action at law. On mechanics’ lien.
    Por the plaintiff, Cohen & Cohen.

    Por the defendant Traders Building and Loan Association, Frederick Jay.

   Thfe opinion of the court was delivered by

Smith, J.

This matter is submitted to the court without a jury on an agreed state of facts and is an action on a mechanics’ lien brought by the plaintiff who furnished labor and material under a contract for the erection of a building described in the lien claim. The contract was entered into on the 18th day of August, 1926, and the defendant in this trial is the Traders Building and Loan Association, judgment having already gone against the owner.

'The Traders Building and Loan Association hold a mortgage dated July 20th, 1926, acknowledged November 20th, 1926, and recorded, I assume, thereafter.

On the agreed state of facts the plaintiff and the defendant both move for the direction of a verdict; it is assumed in the agreed state of facts, and conceded on the argument, that the lien claim is prior to the mortgage unless it is established, that the money claimed due on the mortgage went into the building.

On the first question as to the waiver of lien: It is dated on the blank day of October, 1926, the date not being inserted, and states that “whereas the plaintiff has agreed to furnish labor and materials for the erection of the building to the owners of the building described in the lien claim, and in consideration that the Traders Building and Loan Association, for the purpose of aiding the owner to erect the building, has agreed to loan to said owner the sum of $85,000 to be secured by a mortgage, &c., that the plaintiff's stipulate and agree that the mortgage * * * given to secure said loan * * * shall be and remain a lien upon said building and lands prior and paramount to any claim or lien we may have upon said building, and so forth * * * howsoever, but the foregoing stipulation shall not be construed as a waiver of our lien, except as to the lien of said mortgage.”

It is my opinion that this waiver gives a priority to the mortgage up to the amount advanced to the owner or for his account, and it is not necessary that the mortgages establish the fact that the money went into the building.

It is true that the consideration stated is that the Traders Building and Loan Association, for the purpose of aiding the owner in erecting the building, agrees to loan said owner the money; still, the stipulation that is made is that the mortgage shall remain a lien upon the building prior to the plaintiff’s claim, and I take that to mean that the priority is as to the money advanced under the mortgage.

This waiver is in the standard form used in this state, but I do not find any specific decision on the point involved. A waiver somewhat similar has been passed upon by the Supreme Court of Errors of Connecticut in Persky v. Puglisi, 127 Atl. Rep. 351 (at p. 355). It is there held that the mortgage takes priority to the extent of the moneys actually advanced to the mortgagee, it being held there as to moneys not advanced the mortgage did not hold its priority and that a bonus -withheld could not be considered as money due under the mortgage prior to the lien claim.

The mortgage is therefore entitled to priority by reason of the waiver for the amount advanced oh it to or for the account of the mortgagor. The money was advanced in cash except for dues, interest and premiums, and these deductions are valid. Pamph. L. 1918, p. 956, 957.

The court therefore orders judgment to be entered in favor of the defendant Traders Building and Loan Asociation and against the plaintiff.


author: Backes, V. C.

text:
    Thomas J. Smith, surviving executor by and under the last will and testament of Mary Ann Smith, deceased, complainant, v. Frederick H. Mooney, defendant.
    [Decided December 16th, 1927.]
    A trustee to whom a residuary estate consisting of personal and real property was bequeathed and devised, to divide it, at a time fixed by the testator for distribution, among the issue of her six children, at the death of the. surviving child, has by implication the power to sell real estate.

      Mr. Edward M. Colie, for the complainant.

      Mr. B. Arthur Heller, for the defendant.
   Backes, V. C.

The surviving executor and trustee under the last will and testament of Mary Ann Smith, deceased, entered into a written contract with the defendant to sell him a piece of land belonging to the estate. The bill is filed to compel the defendant to perform his contract, and he is willing to do so, hut contends that the complainant cannot give him a marketable title, asserting that the executor has not the power to sell. That depends upon the true construction of the will. The testatrix, after some specific bequests and devises, by the fifth clause of her will, which is too long to set out in full, devised and bequeathed all the rest, residue and remainder of her property to her executors upon trust to hold the principal of her estate during the lifetime of her six children, and upon the death of the survivor to divide it as hereinafter stated. Tn the meantime the income was to he paid to the children and one Catherine Burke, in equal shares, the children of any deceased child to take the parent’s share of the income, with discretionary right in the trustee to withhold the income or otherwise dispose of it, not now important to state. Upon the death of all the children the will directs that the principal of the estate, and accumulations of income, if any, be divided among the issue of the testatrix’s six sons and Catherine Burke. The share to each is given in substantially, if not precisely, the same language as follows: “One share of the principal of my estate to the children of my son Philip Smith, living at the time herein fixed for distribution, to be equally divided among them, the issue of any of his deceased children to take the parent’s share, in case all his children shall be then dead and the issue of none be then living, then his share to be divided equally among by then surviving grandóhildre'n.”' The testatrix died possessed of considerable personal property and many houses and vacant lots' of land in and about Newark, and if distribution of the estate were made at this time some of the pro rata shares would be as low as a one-seventy-second of the whole.

There is, it is true, no words expressly authorizing the sale of the real estate, but full effect could be given to the testatrix’s direction to divide the estate — the real and personal property as -a unit — at the time' fixed by her for its distribution unless there was a conversion of the realty. -The testatrix obviously contemplated that the division should be in money-shares, and to that end that the real estate should be sold.' The power of sale < in the trustee is clearly implied. This view is supported by the cases in this state construing similar provisions in wills. Executors of Van Ness v. Jacobus, 17 N. J. Eq. 158; Wurts v. Page, 19 N. J. Eq. 866; Haggerty v. Lanterman, 30 N. J. Eq. 37; Belcher v. Belcher, 88 N. J. Eq. 126; Moor v. Wears, 87 N. J. Eq. 459.

The complainant can unquestionably convey a marketable title and a decree that the contract be enforced will be advised.


text:
    Barbara Horbelt, complainant, v. Lawrence Horbelt, defendant.
    [Decided December 17th, 1927.]
    On partition between husband and wife, the wife is not entitled to reimbursement, out of the proceeds of sale, for moneys she paid for upkeep of the premises, in excess of the income, where such excess was paid out of joint funds.
    On exceptions to master’s report.

      Mr. Jacob Lipman, for the exceptant.

      Contra, Thomas Brunetto.

   Backes, V. C.

The parties to this suit are husband and wife. They bought their home, a two-family house, in 1921. The conveyance to them is "as tenants in common and not as tenants by the entirety.” They separated in 1925, and the wife brought this action for partition, and the master has reported that it he sold and the proceeds divided. As to the propriety of this no exception is filed, and no opinion is expressed.

During the joint occupancy by the two of one of the flats in the house, the outlay for upkeep of the premises, taxes, assessments, insurance and building loan installments amounted to $4,341.86. The rent received from the other flat during that time was $2,795. The difference $1,546.86, the wife claims she paid and the master found and reported that she was entitled to he reimbursed out of the proceeds. To this the husband excepts, claiming that it was paid out of moneys furnished by and belonging to Mm. The wife had no separate income. In addition to the rent there was income from “roomers,” in their own -flat, wages or board of an infant son of the parties and $20 a week contributed by the husband towards the household expenses. The wife handled the money and saved as much as she could and the savings and rent were kept in a joint bank account. It was out of this joint account that the bills were paid. The wife paid them. The rent from the flat and roomers was joint property. The savings of the wife from their son’s board and the household funds were not her property. They belonged to the husband initially, and at most became common property when deposited to the joint account. The common obligations having been paid out of common funds the wife’s claim to reimbursement and its allowance is without moral or legal support. Exception sustained.


author: Per Curiam.

text:
    PATRICK S. KIELY, CHIEF OF POLICE OF THE CITY OF PLAINFIELD, PROSECUTOR, v. JAMES T. MacMURRAY, ARTHUR E. CRONE, GEORGE F. QUINN, FERDINAND BADER AND DAVID J. SCOTT, PENSION COMMISSION OF THE CITY OF PLAINFIELD, RESPONDENTS.
    Submitted May 13, 1927
    Decided November 11, 1927.
    Municipalities — Police—Pensions—Retirement—Burden of Proof Upon Governing Board to Establish Age of Relator — Relator Contests His Retirement From Police Force Because of Age — Evidence That Relator Had Reached the Retirement Age Not Sufficient — Resolution of Retirement of Pension Commission Set Aside.
    On writ of certiorari.

    Before Justices Tkenchard, Kalisoh and Katzenback.
    For the prosecutor, Willian Newcorn.

    Eor the respondents, Charles A. Reed, William F. Vosseler and William George.

   Per Curiam.

This ease is before this court on a writ of certiorari directed to the pension commission of the inhabitants of the city of Plainfield. The writ brings up a resolution of the pension commission retiring Patrick S. Kiely as chief of police of the city of Plainfield. The state of the case contains excerpts from the minutes of the pension commission hearing on the subject and a transcript of the stenographer’s notes taken at the hearing on the retirement of the chief of police held by the pension board on January 10th, 1927. The resolution which was passed and which the prosecutor (Patrick S. Kiely) seeks to set aside reads as follows:

“Whereas, the preponderance of evidence in the case of the retirement of Patrick S. Kiely presented before the pension commission indicates that he reached the age of sixty-five years on December 34th, 1936, it is hereby moved that he be retired in accordance with the provision of the Pension law of 1930, chapter 160, said action effective as of to-day.”

The record shows that the prosecutor was appointed to the police department of the city of Plainfield on September 3d, 1890, as a patrolman. He was appointed a sergeant in 1896, a captain on July 3d, 1900, and chief of police on March 3d, 1903. The sole ground for retirement was the age of the prosecutor. There is nothing in the record which shows any disqualification or unfitness of the prosecutor to conduct the duties of chief of police of Plainfield. It was contended, as the resolution states, that he became sixty-five years of age on December 34th, 1936, and, hence, ineligible to continue as chief of police.

The prosecutor contends that there was no legal evidence before the pension commission to justify the adoption of the resolution. The burden of proof was on the pension commission to show that the prosecutor had passed the age of sixty-five years.

A reading of the evidence satisfies us that the contention that there is no legal evidence to support the finding of the pension commission is well founded. The evidence the commission relied upon was the testimony of Thomas Burke, sergeant-at-arms of the Elizabeth District Court, and certain certificates of which mention will be hereafter made. Burke testified that he saw a Mrs. Guiñee some time in the year 1936 and that she told him that Kiely would be sixty-five years old on Christmas Eve, December 34th, 1936. Mrs. Guiñee was an aunt of Kiely. She appeared at the hearing. She denied that she had ever had any conversation with Burke. She was a woman seventy-nine years of age. She testified that Kiely was born in her father’s and mother’s house in Eermoy, in the county of Cork, Ireland, and that he was born on December 34th, 1863. She was in the house at the time Kiely was born. She fixed the date by the fact that in 1864 a brother who had been in this country came back to Ireland and brought a campaign button. She said this was the button of Lincoln and Lee, and that her brother came home in 1864 and that Kiely had been born the preceding December. She was able to fix the time that Kiely came to America by the fact that it was the year when Grover Cleveland was elected president. This was in 1884 (first election). While the witnes became somewhat confused upon her cross-examination with reference to the button, she remained unshaken as to the date of the prosecutor’s birth. The testimony of Burke was hearsay.

The pension commission also relied upon a certificate of the bureau of vital statistics, dated February 15th, 1926, certifying to a transcript of the birth of Abbie Kiely, a daughter of the prosecutor, on January 13th, 1892. This certificate contained, among other items, a note that her father, Patrick S. Kiely, was born in Ireland and was thirty years of age. There was no testimony that Patrick Kiely had anything to do with furnishing the information contained in the birth certificate. It was, therefore, not evidential as to his age. This was Exhibit P-1.

Exhibit P-2 was a certificate of the bureau of vital statistics certifying to a transcript of the marriage of Patrick S. Kiely on February 6th, 1889, which gave his age as twenty-seven years. There was no evidence that the prosecutor had given the information for this certificate. Applications for a driver’s license were introduced over objection. The application of 1926 gave the age of the prosecutor as sixty-one and the application of 1924 as sixty years. These were not evidential. There was also introduced, over objection, a certificate of the state librarian containing the result of an examination of the census records for the years 1915 and 1905. The census of 1915 gave the prosecutor’s age as fifty-four years and as having been born in December, 1860. The census of 1905 gave his birth as December, 1863. There was nothing to show the source of this information. They were not evidential. A baptismal certificate was also introduced. It was not properly authenticated and there was no evidence to prove the identity of the person named in the certificate as the prosecutor.

We are unable to find any testimony which sustains the finding of the pension commission that the prosecutor had reached the age of retirement on December 24th, 1926. It is unnecessary, in view of this finding, to consider the testimony offered by the prosecutor on the question of his age. The pension commission had, as has been said, the burden of showing by competent evidence that the prosecutor had reached the age of retirement. This it failed to do.

The resolution of the pension commission hereinbefore set forth is set aside, with costs to the prosecutor.


text:
    HACKENSACK WATER COMPANY, PROSECUTOR, v. THE STATE BOARD OF TAXES AND ASSESSMENT AND THE BOROUGH OF HAWORTH, RESPONDENTS.
    Submitted May 13, 1927
    Decided November 11, 1927.
    On rule to show cause why writ of certiorari should not issue.
    Before Justices Tkenohaed, Kalisoi-i and Katzenbach.
    For the prosecutor, Wright, Vcinder Burgh & McCarthy.

    For the respondents, Frank E. Eennessy.

   Per Curiam.

This case presents the same question as is presented in No. 281 of the May term, 1927. The only difference is that the property of the prosecutor assessed is in another taxing district, the borough of Haworth, in the county of Bergen. For the reasons set forth in the opinion in case No. 281 the rule to show cause is discharged, with costs.


text:
    EDWARD BENJAMIN, DEFENDANT IN CERTIORARI, v. MAX KURNICK, PROSECUTOR IN CERTIORARI.
    Argued May 3, 1927
    Decided November 25, 1927.
    Workmen’s Compensation — Question Whether Petitioner’s Illness was the Result of an Injury Growing Out of His Employment a Close Factual One — There Being Ample Evidence to Support the Judgment for the Petitioner, it Will be Affirmed.
    On certiorari, &c.
    Before Justices Tejenchard and Katzenbaoji.
    For tlie prosecutor, Frank G. Turner. i
    For the defendant, Kalisch & Kalisck.

   Per Curiam.

This is a workman’s compensation case. The defendant in certiorari was a laborer working as a janitor for the prosecutor at No. 58 Court street, Newark, lie was rolling a barrel of ashes weighing approximately one hundred pounds out of the cellar, and after it got part way out it began to slip and fell off the step and the barrel rolled against him and he fell and when picked up was injured, and found to be paralyzed in the left arm, the left leg and on the right side of the face. lie was removed to the hospital. He then had a blood pressure of two hundred.

He filed his petition and the workmen’s compensation bureau found that the accident arose out of and in the course of his employment; that he was suffering from high blood pressure at the time, and that by reason of the effort put forth by him to avoid having the ash barrel fall, he suffered a stroke of paralysis which disabled him immediately, and that the petitioner suffered the disability as a result of the accident. The board gave an appropriate judgment for the petitioner.

The employer then took an appeal to the Common Pleas and the judgment was affirmed. The employer then sued out this writ to review the judgment. The prosecutor claims that the petitioner suffered a stroke of paralysis and nothing more, and that it was not produced by the injury which he sustained.

We think this question was, under the evidence, a closely-balanced question of fact, there being evidence, expert and otherwise in character, both ways.

•Since there is to be found in the evidence ample support for the judgment, the judgment will be affirmed, with costs. Atchison v. Colgate & Co., 3 Mis. R. 451.


text:
    CITY OF PATERSON, PROSECUTOR, v. JAMES BAKER ET AL., CONSTITUTING THE STATE BOARD OF TAXES AND ASSESSMENT, AND CHARLES E. COOK, SECRETARY OF SAID BOARD, RESPONDENTS.
    Submitted June 2, 1927
    Decided December 9, 1927.
    Taxes and Assessment — Assessment by Municipality — County Board Reduced Assessment — Appeal by Municipality to State Board — Assessment by County Board Affirmed by State Board — Held, That Contention of Municipality That Assessment was for Less Than True Value, and That There was No Evidence to Support the Judgment of the State Board is Sound — Assessment Set Aside and Case Remanded to State Board for Rehearing.
    On certiorari, &c.
    Before Justices Tkenchakd, Kalisch and Katzenbach.
    For the prosecutor, Benjamin J. Spitz and Randal B. Lewis.

    For the respondents, Morris F. Levin.

   Per Curiam.

The assessors of the city of Paterson, in the county of Passaic, assessed the property known as Nos. 207-211 Market street, in the city of Paterson, and owned by H. Salzberg, for the year 1926 at the valuation of $111,560 on the land. The land was a plot of ground sixty-two feet wide by one hundred and sixty-five feet deep.

The taxpayer appealed from such assessment to the Passaic county board of taxation, and that board reduced the assessment to $89,248.

The city of Paterson then appealed from the judgment of the Passaic county board of taxation to the state board of taxes and assessments. Testimony was taken and the state board affirmed the judgment of the Passaic county board of taxation, and dismissed the appeal. That judgment is now brought to this court for review.

The city contends that the assessment as reduced by the state board is less than the true value of the land, and that there is no evidence to support the judgment of the state board.

We think that contention is sound.

The true value as of October 1st, 1925, to be assessed against the land for the year 1926, as testified to by the following-named witnesses for the city of Paterson, was as follow's: John Colfer, $1,500 per foot, or $93,000; John E. Lee, $2,000 a front foot, or $124,000. There was no other testimony, and, therefore, nothing before the state board of taxes and assessment to support its valuation of $89,248, which the state board fixed by its judgment without hearing the testimony of the taxpayer.

The appeal to the state board was a hearing de novo. There was no presumption which was evidential that the valuation fixed by the county board of taxation was the true value of the property. The testimony offered by the witnesses for the city was competent. It was uncontradicted and should have been considered. There was no evidence that the property had been examined by the members of the board. They did not testily. The valuation was fixed by the state board without any evidence to support it, and this was erroneous.

While this court has the power to consider evidence and fix a valuation, we think it should not be done in this case, as this would foreclose the owners from presenting their testimony as to value. They should not be made to suffer by reason of the action of. the state board. In the present proceeding there should be a rehearing of the case before the state hoard. The judgment of this court is that the assessment fixed by the order of the state hoard will be set aside and the case remanded to the state board for a rehearing.


text:
    Charles W. Albright, complainant, v. William L. Taylor and Marion L. Taylor et al., defendants.
    [Decided January 3d, 1928.]

      Messrs. Coult & Satz, for the complainant.

      Mr. Joseph M. Degnan, for the defendants.
   Backes, V. C.

The complainant and defendants entered into a written contract for the sale by the former to the latter of a house and lot. The defendants refuse to perform, claiming that the complainant cannot give a marketable title. The alleged defect in the title reaches back to 1910. At that time the property belonged to Emily Yarrow. She acquired it by will from her husband. She died in that year leaving a last will and testament in which, after three pecuniary bequests, she disposed of her estate as follows:

“All the rest, residue and remainder of my estate, both real and personal, of whatever it may consist and wherever situated, I give, devise and bequeath unto my children, Elizabeth Torr, Sarah A. Matthew, William H. Yarrow, Jabez T. Yarrow, Emma Parks, Sidney Yarrow, Florence Yarrow, Arthur Yarrow, Philip W. Yarrow, George G. Yarrow and Earnest A. Yarrow, to be divided equally among them.
“I hereby nominate, constitute and appoint my son George G. Yarrow as sole executor of this will and as sole executor of the will of my late husband, William H. Yarrow, who, upon his appointment of me as executrix of his estate and for probation of which said will I have made application, but which may not have been probated at the time of my decease. Said George G. Yarrow is to act without bond and to have full power of sale.”

George G. Yarrow, the executor, conveyed the property in 1913 and the complainant holds through mesne conveyances. The contention is that the executor had no power to sell. It may be conceded that no power by implication arises from the direction that the estate, real and personal, be divided equally among the testatrix’s eleven children (Smalley v. Smalley, N. J. Eq. 591), but, obviously, it was the conception of the testatrix that the division should be in money, and to that end that the real estate be converted, and she unmistakably gave expression to her intention by the direction that her executor should have "full power of sale.” In construing a will every word must, if possible, be given its true and full significance. None can be ignored. Here the power of sale related to the realty only, for the executor possessed the power to sell the personal property by virtue of his office. This was the practical construction placed on the will by the children. They acquiesced in the conveyance-by the executor and to the division of the proceeds among them.

It is also objected that by the will of Mrs. Yarrow’s husband he made a bequest of $100, and by her own will she gave to a beneficiary $100, and that these bequests are liens on the land for which no releases are on file. By the agreed state of facts it appears that both bequests have, in "fact, been paid and the evidence of payment is manifested by paid and canceled check vouchers of the executor of Mrs. Yarrow to both beneficiaries. Satisfaction of the seventeen-year-old legacies is established and the absence of formal releases will not be permitted to stand in the way of enforcement of the contract. A decree for specific performance will be advised.


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    CITY OF PATERSON, PROSECUTOR, v. JAMES BAKER ET AL., CONSTITUTING THE STATE BOARD OF TAXES AND ASSESSMENT, AND CHARLES E. COOK, SECRETARY OF SAID BOARD, RESPONDENTS.
    Submitted June 2, 1927
    Decided December 9, 1927.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Benjamin J. Spitz and Randal B. Lewis.

    For the respondents, J. G. Wright.

   Per Curiam.

This case is before us on a writ of certiorari. The prosecutor is the city of Paterson. The judgment brought up is that of the state board of taxes and assessments. The record disclosed that the question before the state board was the assessment value for the year 1926 of land owned by J. G. Wright, known as Nos. 283-287 Market street, in the city of Paterson; that the assessors of the city,of Paterson assessed the land without regard to the improvements thereon at $60,000; that the Passaic county board of taxation reduced this to $40,000, and that on further appeal to the state board the state board affirmed the judgment of the county board and dismissed the appeal of the city of Paterson.

The record further discloses that on the hearing of the appeal by the state board, that board heard testimony of witnesses called by the city of Paterson, and also heard the testimony of the property owner himself. The testimony before the board disclosed that the land in question, with whose value for taxation purposes we are alone concerned in this case, was a triangular plot of ground one hundred and ninety-seven feet by sixty-five feet by fourteen feet, and that there was no other tract in the neighborhood that it could be satisfactorily compared with. In view of the testimony of the landowner in this ease, which we think it will serve no useful purpose to state in detail, we have reached the conclusion that the judgment of the state board cannot be properly disturbed. We think that that testimony of the landowner furnished a legal basis for the judgment of the state board under the authority of United New Jersey Railroad, &c., v. State Board, &c., 100 N. J. L. 131.

The result is that the judgment brought up by this writ will be affirmed.


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    CITY OF PATERSON, PROSECUTOR, v. JAMES BAKER ET AL., CONSTITUTING THE STATE BOARD OF TAXES AND ASSESSMENT, AND CHARLES E. COOK, SECRETARY OF SAID BOARD, RESPONDENTS.
    Submitted June 2, 1927
    Decided December 9, 1927.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Benjamin J. Spitz and Randal B. Lewis.

    For the respondents, Garret Van Cleve and David G. Smith.

   Per Curiam.

The assessors of the city of Paterson, in the county of Passaic, assessed the property known as Nos. 203-207 Market street, in the city of Paterson, and owned by Samuel P. Yought for the year 1926, at the valuation of $91,260. The assessment was on the land. The land was a plot of ground fifty-two feet front by one hundred and fifty-four feet deep.

The taxpayer appealed from such assessment to the Passaic county board of taxation, and that board reduced the assessment to $73,008.

The city of Paterson then appealed from the judgment of the Passaic county board of taxation to the state board of taxes and assessment. Testimony was taken and the state board affirmed the judgment of the Passaic county board of taxation, and that judgment is now brought to this court for review.

The city contends that the assessment as reduced by the state board is less than the true value of the land, and that there is no evidence to support the judgment of the state board.

We think that contention is sound.

The true value as of October 1st, 1925, to be assessed against the land for the year 1926, as testified to by the following-named witnesses for the .city of Paterson, was as follows: Francis Boyle, $91,260; Frank W. Furrey, $2,000 a front foot, or $104,000; John F. Lee, $2,000 a front foot, or $104,000; Soran Hansen, $2,000 a front foot, or $104,-000; Jacob Silverman, $2,000 a front foot, or $104,000.

There was no other testimony, and, therefore, nothing before the state board to support the valuation of $73,008, which the state board fixed by its judgment without hearing the testimony of the taxpayer.

The appeal of the state board was a hearing de novo. There was no presumption which was evidential that the valuation fixed by the county board of taxation was the true value of the property. The testimony offered by the witnesses for the city was competent. It was uncontradicted and should have been considered. There was no evidence that the property had been examined by the members of the board. They did not testify. The valuation was fixed by the state board without any evidence to support it, and this was erroneous.

While this court has the power to consider evidence and fix a valuation, we think it should not be done in this case, as this would foreclose the owners from presenting their testimony as to value. They should not be made to suffer by reason of the action of the state board. In the present proceeding there should be a rehearing of the case before the state board. The judgment of this court is that the assessment fixed by the order of the state board will be set aside and the case remanded to the state board for a rehearing.


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    MICHAEL STILLMAN, PROSECUTOR, v. THE JUDGES OF THE COURT OF COMMON PLEAS OF ESSEX COUNTY, DEFENDANTS.
    Submitted June 2, 1927
    Decided December 23, 1927.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Hopkins & Herr.

      For the defendants, Irving M. Vanderhoff (McCarter & English and T. Bryant Smith, of counsel).
   Per Curiam.

Louisa Reinhart, upon her petition, filed with the workmen's compensation bureau, was awarded compensation against the prosecutor of this writ of certiorari, Michael Stillman. This determination was affirmed by the Court of Common Pleas. By the present writ of certiorari the prosecutor seeks to reverse that judgment of affirmance upon the sole ground that the employment of Louisa Reinhart was a casual employment within the meaning of section 23c of the Workmen's Compensation act, as amended Pamph. L. 1919, p. 211.

The facts found by the commissioner are substantially as follows:

Mr. Stillman's wife was required to go to a hospital for an operation for appendicitis. Through one Mrs. Ryan, a friend, the Stillmans sought to obtain someone for a period to take care of the house in her absence, and finally, through the instrumentality of Mrs. Ryan, Mrs. Reinhart was engaged to work in household service of the Stillmans for two weeks at least, and for such further time as she should be required. Mrs. Reinhart had been accustomed to this sort of service, sometimes engaging for domestic work generally, and sometimes as a seamstress.

The contention of the respondent is that this was a casual employment and that therefore Mrs. Reinhart, after having been injured in such service during that period of two weeks, cannot recover.

This contention was rejected by the compensation bureau and by the Court of Common Pleas, and we think rightly. We think that the service was not casual. It was for a definite period of two weeks, with an uncertain and indefinite period added thereto. The petitioner was bound to continue in that work for such a period and would have been liable in damages if she had quit. The work to be done was of a regular character, being ordinary housework. The work was of a kind usually done by petitioner, although not with strict regularity. Eor the period for which she was engaged, however, she was in every sense a regular servant in the household of the prosecutor within the requirements of the Workmen’s Compensation act as amended in 1919, page 211.

The judgment brought up will be affirmed, with costs.


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    ROSY KERTESZ, PLAINTIFF-APPELLANT, v. JOSEPH FELDHEIM, DEFENDANT-RESPONDENT.
    Decided December 31, 1927.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, Isidor B. Glucksman (Otto S. Stiefel, of counsel).
    For the respondent, Herman Waldman.

   Per Curiam.

The appellant, plaintiff below, brought her action in the First District Court of the city of Newark, against the respondent, defendant below, to recover the reasonable value of certain premises of the said plaintiff, occupied by the defendant from the 14th day of September, 1925, until the second day of January, 1926. The case was tried before the court, sitting without a jury. Judgment was given for the defendant. From this judgment, plaintiff appeals to this court.

The agreed state of the case is as follows: “The action was brought on contract, to recover the reasonable value for use and occupation of premises owned by the plaintiff and occupied by the defendant with the permission of the plaintiff.

Plaintiff was the owner of premises at 1142 Broad street and 31-35 Austin street, Newark, New Jersey. On November 16th, 1925, plaintiff entered into a written contract with one Samuel Ehrlich to convey the said premises to him, the deed to be delivered on January 2d, 1926. The said agreement also provided that the purchaser had the right to go into possession of the premises immediately, for the purpose of making repairs. On December 14th, 1925, the said Ehrlich, without the knowledge of plaintiff, entered into a lease with defendant, which lease provided that defendant was to have possession of the premises as a tenant of the said Ehrlich on and after December 15th, 1925, at a monthly rental of eight hundred ($800) dollars. On that day defendant went into occupation of the premises.

Several days thereafter the husband of the plaintiff appeared on the premises and notified the defendant that he would have to pay rent for the same immediately, otherwise he would put a padlock on the premises. The defendant told the plaintiff’s husband that he held under a lease from Ehrlich and also told him he was at liberty to put a padlock on if he thought he had the right to do so. Nothing was done by the plaintiff thereafter and the defendant continued in possession of the premises and paid rent to Ehrlich until January 2d, 1926, on which day plaintiff conveyed the premises to Ehrlich.

The rental value of the premises for the period of occupancy by the defendant had been agreed upon by respective counsel to be four hundred ($400) dollars, and if judgment had been rendered in favor of the plaintiff, it was to have been in that amount.

On May 27th, judgment was entered in favor of the defendant. The court, upon request of the attorney for plaintiff to make findings of law and/or fact, found as a fact that the relationship of landlord and tenant did not exist between the plaintiff and defendant, and found, as a matter of law, that this .action could not be maintained unless the relationship of landlord and tenant did exist between the plaintiff and defendant.”

The bare statement of the facts makes it clear that the relation of landlord and tenant did not exist between the plaintiff and defendant, hence, under the well-settled legal rule, the plaintiff was not entitled to sustain her action for use and occupation.

Judgment affirmed, with costs.


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    ROSY KERTESZ, PLAINTIFF-APPELLANT, v. JOSEPH FELDHEIM, DEFENDANT-RESPONDENT.
    Decided December 31, 1927.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, Isidor B. Glucksman (Otto S. Stiefel, of counsel).
    For the respondent, Herman Waldman.

   Per Curiam.

The appellant, plaintiff below, brought her action in the First District Court of the city of Newark, against the respondent, defendant below, to recover damages resulting from defendant’s unlawful entry and occupation of premises owned by the plaintiff, and entered upon by the defendant, without the knowledge or consent of the plaintiff. The case was tried before the court, sitting without a jury. The judgment was for defendant. From this judgment the plaintiff appeals.

The agreed state of the case is as follows: “The attorney for plaintiff informed the court that counsel had agreed to submit the case on evidence previously before the court in the form of memoranda, filed by them in a former suit between the same parties; that plaintiff had brought her prior action on contract and had sought to recover from defendant a reasonable value for the use and occupation of the premises, which were occupied by the defendant without her permission; and that the court had rendered judgment for the defendant in the former suit on the ground that no relation of landlord and tenant existed between the parties, and that no recovery could be had unless such relationship exists. Thereupon the court rules that the plaintiff had made an election of inconsistent remedies, and that the matter was res adjudicata, and upon motion of attorney for defendant, a judgment was entered in favor of the defendant.

The facts set forth in the agreed state of the case sufficiently point out that prior to the commencement of the present action the appellant sued the respondent in the same court, upon contract, alleging that the latter was her tenant in the possession of the premises in question, with her consent, and as has already been observed, the trial judge found that her right of recovery was defeated because she failed in proving the relationship of landlord and tenant.

It is- conceded in the state of the case that the present cause of action is founded upon the same facts which were the bases of the appellant’s action for use and occupation. It further appears from the stated ease that the testimony taken in the former action was in the shape of “memoranda” and was submitted to the trial judge by the parties to the litigation, as testimony, upon which he was to base his finding. The testimony contained in the “memoranda” was not printed in the record, and we cannot say from aught that appears before us that the trial judge was in error in reaching the conclusion that the matter was res adjudicata. There appearing nothing to the contrary in the record, we must assume that the testimony contained in the “memoranda” tended to show that the issue presented for decision arose out of the same cause of action. Furthermore, it is made apparent by the record that the appellant, in her state of demand, avers that the respondent entered into and occupied the premises in question with her, the appellant’s permission, whereas in the present action she states in her state of demand that he entered upon the premises without her knowledge or consent.

Whether.or not the respondent entered into the premises with or without the appellant’s consent was a matter with which she must have been conversant before she commenced her first action. She must therefore be held to have elected to stand upon the assertion that the respondent, with her consent,-entered into and occupied the premises in question, for which he was answerable to pay the reasonable value for the use thereof.

Moreover, according to the record before us, the appellant appealed from the decision of the trial judge rendered against her in her first action, which fact tends to emphasize her election of that remedy (rightly or wrongly), pursued by her.

“It is the inconsistency of the demand which makes the election of one remedial right an estoppel against the assertion of the other, and not the fact that the forms of actions are different.” C. J., p. 11.

These views lead to .an affirmance of the judgment, with costs.


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    FRANK J. CUSACK, PROSECUTOR, v. SIDNEY T. EDGE, DEFENDANT.
    Submitted June 2, 1927
    Decided December 23, 1927.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Edward F. Merrey.

    For the defendant, Reuben H. Reiffin and Charles H. Roemer.

   Per Curiam.

This is a writ of certiorari bringing up a determination and refusal of defendant, Sidney T. Edge, clerk of the borough of West Paterson, to call an election on a petition therefor under the provisions of the “Walsh act” to decide whether the commission form of government should be adopted in the borough.

The act provides that an election shall be called upon a petition in writing of twenty per cent, of persons qualified to vote at the last general election as shown by the registry used at such election. See section 18 of act as amended. Pamph. L. 1915, ch. 2, p. 12.

It is undisputed that such twenty per cent, would require two hundred and twenty-seven valid names of persons SO' qualified on the petition. The petition which was presented to the clerk contained the names of three hundred and nine persons.

An examination of the depositions shows that more than two hundred and twenty-seven of these petitioners were such duly qualified voters and that they had signed the petition as required by the statute. It may readily be admitted that some nineteen of the three hundred and nine were for one reason or another properly excluded from consideration, but no reason is perceived and none is suggested why enough should be excluded to bring the number down to less than the required number.

Defendant, however, insists that this review of his action by certiorari is unjustified; that certiorari will not lie. We think the defendant is wrong as to this contention. The cases of Haines v. Standoven, 91 Atl. Rep. 804, and Ford v. Gilbert, 89 N. J. L. 482, are authority for the proposition that certiorari is the proper primary remedy in such case, and that if remedy by certiorari results in a setting aside of the decision of the clerk, and the clerk thereafter persists in his refusal, further remedy by mandamus is then available.

The determination, decision and refusal of the clerk of the borough brought up for review will be set aside.


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    PUBLIC SERVICE RAILWAY COMPANY, PROSECUTOR, v. HACKENSACK IMPROVEMENT COMMISSION AND SUBURBAN BUS LINE, INCORPORATED, DEFENDANTS.
    Argued May 3, 1927
    Decided December 23, 1927.
    Before Justices Trenchard and Katzenbach.
    For the prosecutor, Frank Bergen (Wendell J. Wright, of counsel).
    For the defendant Hackensack Improvement Commission, James De Turck.

    For the defendant Suburban Bus Line, Incorporated, Winne & Banta.

   Per Curiam.

The writ herein was allowed to review the action of the Hackensack Improvement Commission, the governing body of the city of Hackensack, on October 18th, 1926, in granting a consent to the operation of auto buses, by the Suburban Bus Line, Incorporated, on certain public streets in the city of Hackensack.

It appears that on September 7th, 1926, there was presented to the Hackensack Improvement Commission the application hereinafter more particularly described. Upon motion, unanimously carried, the application was laid over for thirty days. On October 4th, 1926 (less than thirty days from September 7th), “application from the Suburban Bus Company for permission to operate between Hackensack and Little Eerry was read,” and on motion was laid over for a further period of thirty days. On October 18th, 1926 (fourteen days later), the minutes show as follows: “Application of the Suburban Bus Line to operate three buses between Hackensack and Little Ferry was read by the clerk.” “Motion by Mr. Wigglesworth, seconded by Mr. Schaefer, that permission be granted and referred to the public utilities commission. Carried unanimously.”

Thereupon proceedings were had which resulted in the issuance of this writ. The stipulation and depositions taken and filed herein show that this prosecutor has an interest which under the statute, chapter 144 (Pamph. L. 1926), section 5 (at p. 224), entitled it to review the alleged illegal action of the Hackensack Improvement Commission.

The general ordinance of the Hackensack Improvement Commission, passed prior to the application in question, provides that before the license or consent for operation of such a motor bus shall be given, an application in writing therefor shall be made, which application shall state — (a) the name of the owner; (b) whether such owner is an individual, co-partnership, association, corporation or joint stock company; (c) if the owner is not an individual, then the names of its officers and members; (d) the business address of the applicant; (e) whether the applicant is or will be vested with the title to the auto bus or whether such applicant is the lessee or the representative of the owner; (f) the proposed route of such auto bus and its terminus or termini within the city; (g) the location of each of the proposed regular stops along the route within the city; (h) the proposed schedule of starting at or from the terminus or termini within the city; (i) the proposed fare or fares to be charged; (j) the number of the auto buses the applicant intends to operate upon the route; (k) the place within the city where such auto bus or buses may be inspected by the improvement commission or an officer or employe thereof; (1) an agreement to comply with the requirements of the ordinance and all rules and regulations made or imposed in pursuance of the ordinance.

We think this case is ‘controlled by our decision in Bergen Bus Line v. Hackensack Improvement Commission, 4 N. J. Mis. R. 167. As there the application did not comply with the requirements of the ordinance as above set forth. It stated only the name of the applicant, the number of buses to be operated, the proposed route, the fare and a statement that consent will be subject to the approval of the public utility commission. The ordinance also provided that the application should be acted upon within thirty days after receipt of the application. This was not done.

The general ordinance also required that the commission should determine that the granting of the license was necessary or advisable in the interest of the public welfare. No such determination was made. The commission having enacted a general ordinance designating the matters required to be set forth by one applying for license to operate auto buses, it was obliged to conform, in dealing with applications for licenses, to provisions of the ordinance which it had enacted. This it did not do.

The motion or order brought up for review will be set aside, with costs.


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    J. R. TUCKER, INCORPORATED, A CORPORATION, FOR WHOM HAS BEEN SUBSTITUTED HERBEBT J. KOEHLER, RECEIVER OF J. R. TUCKER, INCORPORATED, PLAINTIFF-RESPONDENT, v. J. LYNN MAHAFFEY AND R. ELMER SCHALL, DEFENDANTS-APPELLANTS.
    Decided January 5, 1928.

      Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellants, French, Richards & Bradley.

    For the respondent, Louis B. LeDuc.

   Per Curiam.

This is an appeal from a judgment entered on a directed verdict in the Camden County Court of Common Pleas in favor of the plaintiff below, against the defendant below, for the sum of $5,524.17. From this judgment defendants appeal to this court.

The plaintiff sued to recover five per cent, commission alleged to have been earned by it, as broker, for selling the Bellevue Hospital, in Camden, New Jersey, which property was owned by the defendants.

A memorandum in writing was executed and given by the appellants to the broker, respondent here, on the 23d day of September, 1925, which memorandum is as follows:

“September 23d, 1925.
J. E. Tucker, Inc.,
313 Market Street,
Camden, New Jersey.
Dear Sir: In consideration of your effecting a.sale on premises 500-502 Linden street, in Camden, New Jersey, known as the Bellevue Hospital, to do which you had our authority, we hereby agree to pay you a commission of three per cent, of the total sale, said commission to be due and payable at time of final settlement.
Very truly yours,
(Signed) J. Lynn Mahaeeey,
(Signed) E. Elmee Schall.”

The agreement of sale of the property in question was made and executed on September 23d, 1925. It appears without dispute that the memorandum above set forth was executed .after the services of the real estate broker had been rendered, .and the sale effected.

It is to be observed that the payment of commission to the broker was “to be due and payable at time of final settlement.” By the agreement between the vendor and vendee, it was provided that final settlement shall be made on or before March 23d, 1926, provided that the necessary title searches could be obtained from any first class New Jersey title company by that date. It was further provided, should there be any delay, not the fault of the buyer in procuring such searches, the time for final settlement shall extend until such searches ■can be obtained..

A final settlement between the parties never took place. It appears from the record that a bill for specific performance was filed in the Court of Chancery to compel the vendor to ■convey the premises to the purchaser, the sale of which was procured through the broker, according to the terms of the .agreement between the parties, and that a hearing was had .and a decree advised in favor of the vendors.

The prime question presented at the trial and which is now before us here, is whether the broker, notwithstanding the fact that no settlement ever took place, earned its commission.

A broker employed to negotiate the sale of real estate earns his commission when he has procured a purchaser, able and willing to conclude a bargain on the terms on which the broker was authorized to sell. Courter v. Lydecker, 71 N. J. L. 511, 512; Freeman v. Van Wagenen, 90 Id. 358; Homan v. Griffin, 94 Id. 345; Steinberg v. Mindlin, 96 Id. 206, 207; Klipper v. Schlossberg, 96 Id. 397; Dickinson v. Walters, 100 Id. 62.

Eor the appellant it is argued that “final settlement” was the contingency upon which the plaintiff’s compensation was dependent, and since that contingency has never arisen, the time of payment of commission has not arrived.

We find no merit in this contention. It is true that the agreement of the vendors, with their broker, provided: “Said commission to be clue and payable at time of final settlement/’ but this in nowise made the payment of the commission contingent upon the settlement. It merely fixed a date when the commission earned shall be paid. In the agreement between the vendors and vendee, the time of settlement was fixed for March 23d, 1926, and that date was the time when it was intended that payment of the commission, earned by the broker, became due and payable. The fact that the settlement did not take place on that date, or that the date of final settlement was postponed to a later date, or never took place at all, cannot operate to defeat the broker’s claim to the commission earned by it. The writing given by the appellants to the respondents in express terms recognizes that the latter earned its commission, and simply fixed a date when payment shall become due.

We find no merit in the contention that there was a factual question for the jury to decide, and therefore the trial judge erred in directing a verdict for the respondent.

Eor the appellant it is argued, that one of the questions of fact for the jury to determine, was whether on May 10th, 1926, there had been a final settlement with any alleged purchaser of the property. The answer to this is, that the record shows there never was any settlement with any such purchaser. Next, it is said that another question of fact was whether the failure to make final settlement grew out of any fault of the defendants. 'This seems to be completely answered on the discussion above, that it was immaterial whose fault it was that final settlement did not take place, since the payment of commission was not made contingent upon a final settlement taking place.

Lastly, it is urged that the remaining question of fact was whether the defendants, prior to May 10th, 1926, had done anything amounting to a waiver of their rights to require a final settlement before any commissions would be due or payable.

As has already been observed, since a final settlement was not made a contingency upon which a commission should be paid, it was of no consequence whether the defendants had done anything amounting to a waiver of their right to require a final settlement, before any commission would be due or payable.

Judgment is affirmed, with costs.


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    STANDARD LUMBER COMPANY v. THE PENNSYLVANIA RAILROAD COMPANY.
    Decided January 10, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Haight, Carey & Hartpence.

    Contra, George D. Hendrickson.

   Per Curiam.

This suit was brought to recover compensation for the alleged conversion of lumber belonging to the plaintiff corporation and shipped by it from a point near the Pacific coast, -consigned to Prank L. White, and to be delivered to the consignee at the railroad company’s terminal at the loot of' Thirty-seventh street, New York. The proofs showed that-this lumber, instead of being carried to the terminal, as provided in the bill of ladings was taken to Jersey City and unloaded at a dock there by the railroad company, after it had notified the consignee of its arrival at that point and he had refused to accept delivery there, insisting that it should betaken by the defendant company to the Thirty-seventh street terminal and delivery made to him at that point. Some weeks-after unloading the lumber at Jersey City the defendant company placed it in a barge and took it to its Thirty-seventh street terminal. The result of unloading it in Jersey City and its consequent exposure to the weather, coupled with the transshipping in the barge, caused the lumber to-become more or less water-soaked and very much depreciated in value.' Eor this reason the consignee refused to accept the-lumber when notified of its arrival at the Thirty-seventh street terminal, and the railroad company then notified the consignor (the present plaintiff) that the lumber was at destination and had been unloaded and stored in the railroad company’s warehouse. The plaintiff took no action on this-notice, and the railroad company finally sold it, claiming that it had a right to do so under the sixty-eighth section of the railroad lien law of the State of New York, which permits a common carrier to sell unclaimed freight or baggage which, has been in its possession for a period of sixty days. The-amount sued for, as set out in the ad damnum, clause of the complaint, was $2,837.04. The jury awarded the plaintiff' the sum of $4,379.94, that being the amount of loss claimed by the plaintiff at the trial. The defendant now claims that-the verdict should be set aside, first, because the sale of the lumber, being authorized by the statute, did not constitute a conversion; and second, because the verdict is in excess of' the amount claimed in the ad damnum clause. Other reasons argued by counsel for the defendant for making the rule-absolute relate to alleged errors in rulings on testimony and in the charge to the jury. We have examined each of them,, and conclude that they are without legal merit.

As to the first of the reasons above referred to — namely, that there had been no conversion of the plaintiff’s property by the defendant — we consider it contrary to the fact. The railroad company violated its contract, so far as delivery was concerned, and when the lumber was ready for delivery by it at the place called for in the contract it had so dealt with the lumber as to very materially depreciate it in value. In this situation, the plaintiff, consignor, was under no obligation to take back the lumber in its then state unless the railroad company compensated it for the loss sustained by the former’s breach of its contract and its subsequent failure to properly take care of the lumber. This being so, the railroad company had no right under the statute to sell the lumber as unclaimed freight, and its doing so constituted, in our judgment, a conversion thereof.

As to the second ground upon which we are asked to set aside the verdict: There was an application made by the plaintiff subsequent to the trial; and after the present rule to show cause had been granted, to amend the ad (iamnum clause so as to make it correspond to the verdict rendered. The application was made to Mr. Justice Trenchard. He refused to act upon it, and advised counsel that it should be made to the court upon the argument of the rule to show cause. Such an application has been made to us. We fail to see, however, any valid reason for granting it. It was held in Excelsior Electric Co. v. Sweet, 57 N. J. L. 224, that, where the ad damnum clause is formal, it might be amended after verdict to conform to the real claim set forth in the pleading, but that where the declaration is for unliquidated damages and contains no indication of the extent of the plaintiff’s claims, outside of the ad damnum clause, such amendment ought not to be permitted; and the soundness of this rule has never been successfully challenged.

We conclude, therefore, that the verdict should be set aside, for the reason last indicated, unless the plaintiff will consent to accept in satisfaction of this claim the amount set out in the ad damnum clause. In that event, judgment may be entered in its favor for such amount. If, however, the plaintiff shall conclude not to accept such reduced amount in satisfaction of its claim and a new trial is had, it may apply at any time, prior to the holding thereof, for leave to amend its complaint by increasing the ad damnum clause.


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    ESTHER BRICE, ADMINISTRATRIX, ETC., v. EASTERN NEW JERSEY POWER COMPANY.
    Decided January 10, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Charles E. Cook.

      Contra, Ward Kremer.

   Per Curiam.

This is a suit brought under the Death act. The trial resulted in a verdict in favor of the plaintiff, and the present rule was allowed to test the validity of that verdict.

Prank Brice, the deceased, was in the employ of the borough of Belmar, his work being the keeping in order of the borough’s fire alarm system. On August 15th, 1923, there had been an unusually severe storm in Belmar, which resulted in the impairment of the fire alarm system. Brice was ordered to investigate and make the necessary repairs. At the corner of Tenth avenue and A street, which he reached some time in the afternoon, he found that the fire alarm wire had broken from the pole on which it was carried. This pole belonged to the Atlantic Coast Electric Company, which was subsequently consolidated into the present defendant. On it were not only the fire alarm wire of the borough, but also a telephone wire and the wire of the electric light company. The latter wire never carried any voltage during the daytime, and this apparently was known to Brice. The other two wires did not carry a dangerous current at any time. Brice climbed the pole, carrying one end of the broken wire with him, his purpose being to splice it. After fastening himself in position to do the work, he attempted to draw this broken wire tight, with the result that he received an electric current through it of sufficient voltage to cause his death almost immediately. The proofs showed that a block or more away from the pole where the accident occurred the wire of the electric light company and the fire alarm wire crossed one another, the electric light wire being some six or eight inches above the other. The proofs also showed that these wires had gradually sagged, the upper wire more than the other, so that they came in contact sometimes, with the result that the insulation of the electric light wire was worn off at this point. The proofs justify the conclusion that the accident occurred by the pulling taut of the fire alarm wire, causing it thereby to come in contact with the sagging electric light wire a block away. It appears that Brice, when he was attempting to make this repair, did not have gloves on his hands, which would protect him against electric shock.

The present rule to show cause was allowed to review a verdict had at a second trial. On the first trial this court set aside the verdict then rendered in favor of the plaintiff, upon the ground that the proofs then submitted demonstrated'' that he was guilty of contributory negligence in failing to have gloves on, knowing, as he did, the danger which would result in his coming in contact with a live electric wire. The verdict at the second trial, however, also absolved the deceased from contributory negligence, and usually a second verdict will ,be accepted as settling this question. Brown v. Paterson Parchment Paper Co., 69 N. J. L. 474. But, aside from this general rule, our examination of the proofs fails to convince us that the finding of the jury as to the negligence of the decedent was in disregard of the weight of the evidence. He knew that under normal conditions there would be no current in the electric light wire. So far as the proofs show, he had no knowledge of the condition of the wires a block away from the pole upon which he was working, or that the electric light company had installed its wire at that point so near to the fire alarm wire as to constitute a menace if the latter wire was tightened. In this situation, the question to be determined by the jury was whether a reasonably prudent man under such circumstances would assume that it would be safe for him to splice the fire alarm wire without protecting himself with gloves, and we cannot say that its solution of this question was plainly erroneous.

The conclusion reached by us is that the rule to show cause should be discharged.


text:
    JAMES GUNNION, PLAINTIFF, v. DAVID FERN, DEFENDANT.
    Decided January 17, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the applicant for the rule, Frank G. Turner.

      Contra, Francis A. Gordon.

   Per Curiam.

This is an application by the defendant for a rule to show cause why there should not be a new trial. Plaintiff recovered a verdict of $4,500 against the defendant in the Union County Circuit Court. Application was made to the trial judge for a rule to show cause why a new trial should not be allowed, which application was denied.

Eor the defendant there is advanced the following reasons for the rule: (1) Verdict is excessive. (2) Verdict is against the weight of the evidence. (3) There should have been a verdict for the defendant. (4) Judge should have granted a nonsuit. (5) The verdict is contrary to law.

The only grounds relied on in thé brief of counsel of the applicant for the rule are — first, the verdict is against the weight of the evidence, and second, that the verdict is excessive.

The facts are these: The plaintiff, forty-seven years of age, on Christmas night, 1924, about ten-thirty o’clock, was walking northerly on the crosswalk, at the intersection of Sixth and East Jersey streets, in the city of Elizabeth, and when he reached a point between the two trolley tracks, at about the second rail, he was struck by defendant’s car and rendered unconscious.

The plaintiff testified that he heard no sound or warning of the approach of the automobile. There was testimony to establish that the automobile had no lights; that it did not stop until it had gone fifty feet beyond the spot where the plaintiff was struck and that at that time the car was going about forty miles an hour. The plaintiff’s testimony was corroborated by Patsey Ross and Gene Rathjen.

On behalf of the defendant, he and a passenger riding with him in his car, denied that the car was going at the rate of speed testified to by plaintiff’s witnesses, and denied that the car was without lights, and claimed the car was going at the rate of about fifteen miles an hour, and that it was lighted at the time of the happening of the accident.

We are unable to see in what respect the weight of the testimony was in favor of the defendant to the extent so that we can say that the finding of the jury was clearly against the weight of the evidence.

Prom a fair reading of the testimony, it appears to us that the verdict of the jurj^ was warranted by the evidence.

Nor do we think that the verdict of $4,500 is excessive. Dr. Lamy testified that when the plaintiff was brought to the hospital, an X-ray examination revealed a four and a half inch fracture of the left lilim, the flat bone in the left hip; that the injury was painful, and that the plaintiff also suffered a contusion of the right leg, at the junction of the upper two-thirds and the lower third; ‘that there is an interference’ with the motion of the leg caused by the fracture, so that he drags his left foot a little, and that this is a permanent limitation or impediment of locomotion; that the injury to-the right leg left an ulceration and engendered an inflamed area of about two and one-half inches in diameter, which is-permanent, and that there is also a one-half inch shortening of the left leg, as compared with the right.

The plaintiff was a carpenter and earned $57.75 a week. He was in the hospital five weeks and was in bed three weeks, and was unable to go to work for about three months. There-was proof his actual loss of wages was $693, and that his-inability to do work would tend to increase his loss in wages.

The application for the rule is denied, with costs.


author: Flannagan, J.

text:
    Essex County Court of General Quarter Sessions.
    STATE OF NEW JERSEY v. CHARLES BAER AND ULRICH FRECHETT.
    For the motion, C. William Caruso.

    For the state, Joseph L. Smith, prosecutor of the pleas, and Joseph E. Conlon, assistant prosecutor.
   Flannagan, J.

This case was tried before a judge and jury in this court, and verdict of guilty having been rendered and the defendants sentenced to state prison for a term of years, a writ of error was thereafter sued out and served in defendants’ behalf.

The defendants now move upon petition and other papers to be admitted to bail pending the prosecution of their appeal and for certificate of reasonable doubt under Pamph. L. 1927, ch. 125, If 5, pp. 235, 236.

If such a certificate is granted the defendants may be admitted to bail pending their appeal, if not they must remain in custody during that period.

The statute provides as follows: “Pending the prosecution of a writ of error the defendant shall not be admitted to bail unless upon application for the purpose made to the court in which the conviction was had, he shall receive from that court a certificate setting forth that there is reasonable doubt as to the validity of the conviction. Upon the allowance of such certificate it shall be the duty of the trial court to admit the defendant to reasonable bail, and not otherwise.”

The sole question to be considered upon an application of this character is whether or not there is a reasonable doubt in the mind of the trial judge as to the validity of the conviction. It is neither the importance, character nor gravity of the point involved, nor whether the point should, in the opinion of the trial judge, be reviewed by a higher court. It is the state of mind of the trial judge which must determine the question. He must have not only a doubt, but a reasonable doubt, as to the validity of the conviction; otherwise, the certificate should be refused.

I have considered the points presented by defendants’ counsel, and do not find that there is in my mind any reasonable doubt of the validity of the conviction.

The motion is therefore denied.


author: Donges, J.

text:
    Camden County Circuit Court.
    FIRST NATIONAL BANK OF JERSEY CITY, FOR THE USE OF NATIONAL SURETY COMPANY, PLAINTIFF, v. MERCHANTS TRUST COMPANY, DEFENDANT.
    Decided December 31, 1927.
    For the plaintiff, Starr, Summerill & Lloyd.

    For the defendant, Patrick H. Harding.

   Donges, J.

This suit grows out of the acts of one Balcer, who was the agent in Camden of the Colonial Life Insurance Company, and who carried out a scheme to defraud the insurance company by submitting to the company bogus certificates of death upon the lives of fictitious persons, upon which names policies of insurance had been issued. Upon submission of these proofs, the insurance company forwarded to Balcer checks payable to the fictitious beneficiaries. Balcer wrote the name of the fictitious person on the hack of the checks, then below such name placed his own endorsement and collected the amount thereof through the defendant bank, which guaranteed all endorsements prior to its own. Upon this guarantee, plaintiff honored the checks and paid same to defendant. There were fourteen such checks between August 10th, 1925, and February 1st, 1926. National Surety Company having guaranteed the plaintiff against such loss, reimbursed plaintiff for losses sustained by it by reason of the payment of the checks in question. This suit is brought to recover such losses from defendant on its guarantee of endorsements on these checks.

Defendant answered the complaint by admitting that the checks were drawn as alleged; denies that they were drawn in the ordinary course of business; avers that it made no guarantee as to the actual existence of the payee, and guaranteed only the signature of Balcer; that the plaintiff was reimbursed its loss by Colonial Life Insurance Company; that any loss of plaintiff was sustained through the neglect of the Colonial Life Insurance Company, and that the insurance company should bear any loss, because of its failure to use reasonable diligence and care to discover the fraud.

Motion is now made by defendant for an order either requiring plaintiff to add the Colonial Life Insurance Company as a party plaintiff or defendant, or by the order of court adding the insurance company as a party defendant.

There is undoubted authority to add parties, whenever it is apparent that a complete determination of the matters in controversy cannot be had without them. Sections 6, 8 and 9, Practice act. Pamph. L. 1912, pp. 378, 379.

The question to be determined is, therefore, whether or not the Colonial Life Insurance Company is a necessary party to the litigation, or a proper party to the determination of the suit between the parties.

The case of Sprague v. West Hudson County Trust Co., 92 N. J. Eq. 639, settled this question. In that case, Swift & Company was the depositor, and the endorsers after certained forged endorsements sought to have the depository banks require Swift & Company to establish its right to repayment from such banks, before the endorsers should be required to reimburse any bank or banks which might be liable to repay such moneys. Mr. Justice Parker, speaking for our Court of Errors and Appeals, says: “It is true that Swift & Company owed it to their bank, after return of their paid checks, to exercise reasonable diligence and care to examine the vouchers and the account as stated by the bank, and inform it of any errors thus discoverable. Harter v. Mechanics National Bank, 63 N. J. L. 578, 580. But we have never heard that this duty extended to others than the bank. Persons into whose hands a check may come before payment take the risk of forged signatures and forged endorsements, preceding their own. These complainants did not even receive the checks in the ordinary course of business. On the contrary, they went gratuitously out of their way to enable a stranger to get money, by themselves guaranteeing to their own bank, by their endorsement, that the check was good and that the prior endorsements were genuine. There was no privity between them and Swift & Company; all that the latter were interested in was that their bank should not pay out money on their account improperly; and if it did so, the question whether it should respond to Swift & Company is one in which complainants would seem to have no legal or equitable interest. We have seen that a bank which has paid on a' forged endorsement may in some ease defend against its depositor on the theory of negligence; but we have never heard of this rule being invoked in favor of anyone but the depository bank. Its contract with the depositor is to pay its debt to him when and as demanded by checks upon it. As to parties claiming to be payees of those checks, the bank is under no obligation whatever in the absence of certification. National Bank v. Berrall, 70 Id. 757. When the bank has paid on a forged endorsement, it must ordinarily make good to its depositor, and then stands as to all endorsements below that of the forger as a holder in due course. In the present case the writers of the endorsement immediately below the forged one are seeking to intrude into the relation between the bank and its depositor by requiring the bank, for their benefit, to defend against the depositor’s claim. This defense, in our opinion, is for the bank alone, and parties claiming under the payee have no right to require the bank to set it up.”

It seems clear that defendant cannot set up any matter in defense except those which relate to its guarantee. Its liability must be tested by its contract with plaintiff. To this issue, the insurance company is neither a necessary or a proper party. The motion'is denied.


author: Dungan, J.

text:
    Essex County Circuit Court.
    PUBLIC SERVICE RAILWAY COMPANY, PLAINTIFF, v. JOSEPH MATTEUCCI, DEFENDANT.
    For the plaintiff, Carl T. Freggens.

    For the defendant, John E. Toolan.

   Dungan, J.

This case was tried before the court, without a jury, upon an agreed stipulation of facts, from which it appears that one Julia Alexander recovered a verdict in the Supreme Court, Middlesex County Circuit, New Jersey, for $35,000 against the Public Service Railway Company and Joseph Matteucci, the plaintiff and defendant in -this action, for physical injuries received by her by reason of the negligence of a servant of the plaintiff in the operation of a trolley car and of a servant of the defendant in the operation of a jitney bus; that the defendant, Matteucci, was insured against loss to him by reason of the said injury in the sum of $10,000; that the said Julia Alexander caused a writ of execution to be issued on the judgment directed to the sheriff of the county of Essex commanding him to make the amount of said judgment of the property of both defendants in her action against them, but which execution was never actually delivered to the sheriff nor any levy made, but that prior thereto the defendants contributed to the payment of said judgment by the payment by Matteueei of the sum of $10,000, and by the payment by the Public Service Railway Company of the sum of $25,000.

The Public Service Railway Company thereupon brings this suit against Joseph Matteueei claiming that by reason of the payment of said sum of money the Public Service Railway Company, the plaintiff herein, is entitled to contribution from the defendant, Joseph Matteueei, in the sum of $7,500, with interest from February 11th, 1927, the date of the payment by the plaintiff herein to the said Julia Alexander, the plaintiff in the original action, of the said sum of $25,000. The defendant claims that, as a matter of law, the plaintiff is not entitled to any contribution from the defendant by reason of the excess amount paid by the plaintiff on account of the satisfaction of said judgment, and that as a matter of fact the amount paid by the plaintiff was a voluntary payment.

It is undoubtedly the general rule that where one of several wrong-doers has been compelled to pay the damages for the wrong committed, he cannot compel contribution from others who participated in the commission of the wrong.

While, in stating this rule in Newman v. Fowler, 37 N. J. L. 89, Chief Justice Beasley apparently applied it to a case of mere negligence, the question of whether or not there might be contribution between two or more defendants whose concurring negligence resulted in damage to another, was not involved in that case; and, so far as appears from an examination of the New Jersey cases, that precise question does not seem to have been decided in this state.

In many states the decisions are to the effect that a person is not deprived of contribution from another who is also originally liable, where the ground of their liability is merely negligence of both, in carrying on a lawful transaction or business; while in others, it is held that there can be no contribution between persons whose concurrent negligence was the proximate cause of the injury for which one of them has been compelled to respond in damages.

In this state we are free to adopt either principle, which appears to be more logical — more just. The weight of authority seems to favor the right of contribution.

Chief Justice Cornish, of the Supreme Judicial Court of Maine, in the case of Hobbs v. Hurley, 104 Atl. Rep. 815, states so convincingly the proposition in favor of the right to contribution and the reasons therefor, in a case similar to the one being here considered, that his argument is adopted in this case.

In the Main case it appeared that one Pease was thrown from his wagon and injured by reason of an automobile, driven by one Herrick, a chauffeur, who was in the employ of the defendants, Hobbs and Hurley, being backed against and frightening the horse of Pease. Pease brought suit against four persons, in which judgment was given in favor of Pease and against the defendants, Hobbs and Hurley. The defendant Hobbs paid the entire amount of the judgment and brought suit against Hurley, his co-defendant, for contribution.

Chief 'Justice Cornish said: “It is undoubtedly a general rule of law that as between joint tort-feasors in pari delicto there is no right of contribution. The reason of the rule is that the law will not lend its aid to him who founds his cause of action upon an illegal act. It leaves him where it finds him. The term Tort-feasor/ as used here, applies to persons who by concert of action intentionally commit the wrong complained of.”

“But an exception to this rule is equally well settled and that is that when the parties are not intentional and willful wrong-doers,. but are made wrong-doers by legal inference or intendment, are involuntary and unintentional tort-feasors, so to speak, then the preceding rule does not apply and contribution may be enforced. The rule ceases because the reason for it has ceased. Contribution is not contractual. It is an equitable right founded on acknowledged principles of natural justice and enforceable in a court of law.”

“It may be safely asserted that the rule denying the right of contribution as between joint tort-feasors has no application to torts which are the result of mere negligence in carrying on some lawful transaction. In such cases the parties are tort-feasors, not willfully, but by inference of law, and the term itself seems disproportionately harsh under such circumstances.”

In that case contribution was allowed.

In the foregoing opinion a number of cases are cited in support of this view, and there is quoted at length a part of the opinion ití the case of Jacobs v. Pollard, 10 Cush. (Mass.) 287, to the same effect.

In this case, as in that, the “undertaking of both defendants was entirely lawful.” “Yo element of wrong-doing attached to it.” “There was no community of wrong, and there could have been none;” therefore the plaintiff in this case having paid $25,000 of a judgment of $35,000, for which the plaintiff, Public Seivice Railway Company, and the defendant, Matteueei, were jointly liable, it can now recover of the defendant the excess above $17,500 which was one-half of the sum recovered against them, which would be $7,500.

The defendant claims that even though the right of contribution in such a case be allowed, yet, the plaintiff cannot recover in this 'action because the payment was made voluntarily. That would undoubtedly be true if the court should find that the $25,000 was voluntarily paid by the plaintiff.

By the stipulation of facts it is agreed that the judgment was entered against both plaintiff and defendant for $35,000, that an execution was issued on the judgment, directed to the sheriff of Essex county, but was never actually delivered to him, or levy made, but that prior thereto each of the defendants made the foregoing payments — that is, the Public Service Railway Company $25,000 and the defendant, Joseph Matteueei, $10,000, being the amount for which he was insured.

Judgment having been entered and execution issued, there can be no doubt but that the execution would have been delivered to the sheriff and a levy made on the property of the Public Service Railway Company, the plaintiff here, had not prompt pajnnent been made. There is no question about the liability of the Public Service Railway Company to make good any part of the judgment not paid by the other defendant, Matteucei, and no good reason appears, such as that given in the ease of McCrory Stores Corp. v. Braunstein, 99 N. J. L. 166, where the plaintiff chose to make the payment of rent to the defendant rather than risk the possibility of an adverse decision in a tenancy proceeding, why the plaintiff should withhold payment of the judgment for which it was liable until after additional costs had been added by the delivery of the execution to the sheriff and a levy made. The finding on this point, therefore, is that the payment was involuntary.

These views result necessarily in a judgment in favor of the plaintiff, Public Service Railway Company, and against the defendant, Joseph Matteucei, for $7,500, with lawful interest thereon from Eebruary 11th, 1927.