text:
    HENRY MOSER, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE TOWN OF NORTH BERGEN ET AL., DEFENDANTS.
    Argued October 6, 1931
    Decided March 2, 1932.
    Before Justices Trenchard, Daly and Donges.
    For the prosecutor, William George.

    For the defendants, William JE. Sewell (Nicholas S. .Schloeder, of counsel).
   Per Curiam.

This writ brings up the action of the board of commissioners of North Bergen and the director of public safety in abolishing prosecutor’s office of lieutenant of the police force and reducing him to the rank of sergeant.

The case is closely related to those of Abraham Spears et al. and Herbert Beck et al. v. Town of North Bergen, Nos-210 and 211 of the October term, 1931. On December 31st,. 1930, at the sarnie time the ordinances enlarging the police force were passed, an ordinance was adopted increasing the-number of lieutenants from three to five, and prosecutor was-appointed to one of the new positions, having theretofore-been a sergeant. When the board of commissioners in June, 1931, reduced the force to its previous strength, it also-abolished the two offices of lieutenant created on December 31st, 1930. On June 16th, 1931, the director of public-safety appointed the prosecutor to the office of sergeant.

Prosecutor is an exempt fireman and claims he could not-be reduced in rank except upon a hearing after charges. It has repeatedly been held that the governing body of a municipality, acting in good faith, and in the public interest,, has the power to abolish an office or position. Paddock v. Hudson Tax Board, 82 N. J. L. 360; Harker v. Bayonne, 85 Id. 176; Colgarry v. Water Commissioners, Ibid. 583; Buckley v. Guttenberg, 87 Id. 434.

The purpose of the change here was clearly shown to be economy. When the force was substantially reduced, the-need of five lieutenants naturalty ceased. Prosecutor fails-to show that the action taken with respect to his position was not in good faith. In fact the contrary clearly appears.

The action of the board of commissioners is affirmed, andi the writ dismissed, with costs.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    H. EDWARD WOLF, PROSECUTOR, v. STATE HIGHWAY COMMISSION ET AL., DEFENDANTS.
    Submitted October 16, 1931
    Decided March 2, 1932.
    Before Justices Teenchaed, Daly and Donges.
    For the prosecutor, Stein, McGlynn •& Hannoch.

    For the defendants, Walter H. Bacon, Jr.

   Pee Cueiam.

This writ brings up two orders, dated February 16th, 1931, and February 28th, 1931, in a condemnation proceeding instituted by the state highway commission to acquire the fee of lands of prosecutor for highway purposes in the ■construction of route 21 through the city of Newark.

A number of questions are raised, but we are of opinion that it is necessary to deal with only one of them.

We conclude that the ground urged by prosecutor, that the state highway commission is without power to take prosecutor’s lands in fee, must be determined in his favor.

In Frelinghuysen v. State Highway Commission, 107 N. J. L. 218, affirmed February 1st, 1932, it was held that the statute relating to establishing the state highway system does not empower the highway commission to take all the right, title and interest of the owner, but only so much of the right, title and interest of the owner as may be necessary to the public use authorized.

In the instant case, the orders under review provide for the taking of the fee of the lands in question. It follows, therefore, that ,so much of the orders in said condemnation proceedings, dated February 16th, 1931, and February 28th, 1931, as empowers the commission to take all the right, title and interest of the prosecutor in the lands therein referred to is set aside, but without costs to either party.


author: Per Curiam.

text:
    STATE, EX REL. OWEN O’CONNOR, RELATOR, v. HERBERT NEIDHAMMER, DEFENDANT.
    Argued January 20, 1932
    Decided March 2, 1932.
    Before Justices Trenchard, Daly and Donges.
    For the relator, Charles H. Boemer.

    . For the defendant, Joseph W. Marini.

   Per Curiam.

This rule to show cause seeks the consent to the filing of an information in the nature of a quo warranto to test the right of the defendant to the office of councilman of the borough of Fairview, in Bergen county.

We have carefully considered the record submitted and the reasons urged by relator, and they do not persuade us that the discretion of the court should be exercised in favor of granting the leave sought.

The rule to show cause is discharged, with costs.


text:
    FRED FARRELL, PETITIONER-DEFENDANT, v. FERRY HAT COMPANY, RESPONDENT-PROSECUTOR.
    Submitted October 16, 1931
    Decided March 2, 1932.
    Before Justices Teen ch abb, Daly and Donges.
    For the prosecutor, Joseph 0. Paul.

    For the defendant, Elias 0. Willman.

   Pee Cueiam.

This writ brings up for review a judgment of the Essex County Court of Common Pleas affirming an award of the workmen’s compensation bureau awarding compensation to the defendant, Fred Farrell, for disability arising out of an occupational disease called mercury poisoning and also known as “hatters’ shakes.” The defendant worked for prosecutor for over twenty-three years and during the latter part of that period became affected with a shaking and nervousness which was proved to be caused by mercury poisoning contracted from the handling of materials used in the manufacture of hats in the plant of prosecutor.

1. Prosecutor contends that the notice required by the statute was never given to it. It is admitted that formal notice was never served. The statute also provides that compensation may be awarded where the employer has actual knowledge of the contraction of the disease during the period of employment. The defendant claims he has satisfied this provision of the statute. The foreman of the prosecutor testified that he observed the defendant suffering from spells of shaking while at work and that these spells became worse as time went on. He was not permitted to testify as to his knowledge of the cause of these shakes, but there was testimony from the attorney of prosecutor that the foreman had told him that he knew defendant had the shakes and believed that that disease was caused by mercury poisoning. Knowledge of the foreman would, of course, be knowledge of the employer. We think this evidence was sufficient to satisfy the terms of the statute and that the judgment of the court below should not be disturbed on this ground. Allen v. City of Millville, 87 N. J. L. 356; affirmed, 88 Id. 693.

2. It is urged that it was error to permit the attorney to testify that the foreman said he knew the shakes were caused by mercury poisoning. The ground of this argument is that it was hearsay and quoted the conclusion of a person who was not an expert. This testimony was given as being in the nature of an admission and, therefore, these objections are not valid.

3 and 4. Prosecutor contends that it was error to permit two physicians to testify that “hatters’ shakes” is another name for mercury poisoning. We think there was no error in this ruling.

5. It is argued that the defendant failed to sustain the burden of proving the elements required by the statute. We conclude that there was evidence to support the finding of the bureau and the Court of Common Pleas. Two independent tribunals having agreed on the facts, this court will not reverse unless there is no evidence reasonably to support such finding.

The judgment under review will be affirmed, with costs.


author: Pjeb Cubiam.

text:
    STATE BOARD OF MEDICAL EXAMINERS, PROSECUTOR, v. WILLIAM D. LEVIN, DEFENDANT.
    Submitted October 16, 1931
    Decided March 2, 1932.
    Before Justices Tbenchabd, Daly and Donges.
    .For the prosecutor, William A. Stevens, attorney-general, and Robert Peacock, assistant attorney-general.
    Dor the defendant, David M. Liiwin.

   Pjeb Cubiam.

This is a writ of certiorari allowed to review proceedings in the Second District Court of the city of Newark. The defendant was charged by the state board of medical examiners with having violated the act respecting the practice of medicine and surgery. The defendant demanded a bill of particulars and the District Court judge ordered that it be furnished. The state board refused to comply with the order and the judge refused to allow it to proceed with the prosecution. No final judgment has been entered.

The prosecutor contends that it was not required to furnish the bill of particulars. The argument is that the medical act does not provide for it, nor does the District Court act. It is further argued that charging a violation of a statute in the language of the statute is sufficient.

The District Court act provides that the practice in Circuits Courts shall be applicable to District Courts unless otherwise prohibited. It seems that the judge of the District Court had the discretionary power to order the bill of particulars. There is nothing to prohibit it. The complaint against the defendant was couched in very general terms and it would appear that the ordering of the bill was a sound exercise of discretion.

A further and very serious objection to the argument of the prosecutor is that there has been no judgment as yet in the court below, and the order sought to be reviewed is nothing more than an interlocutory one. The writ of certiorari in a statutory proceeding of this kind is really a method of review of a final judgment. In this case, it might very well be that the defendant would be convicted upon a trial after the furnishing of the bill of particulars.

The writ of certiorari is dismissed, but without costs to either party.


author: Pl-IU CuilIAM.

text:
    EUREKA CEREAL BEVERAGE COMPANY, PROSECUTOR, v. FRANCISKA LANGNASE ET AL., DEFENDANTS.
    Submitted October 16, 1931
    Decided March 2, 1932.
    Before Justices Teenchaed, Daly and Donger.
    For the prosecutor, Emil Neblo.

    For the defendants, E. Robert Coven.

   Pl-IU CuilIAM.

This writ brings np a judgment of the Passaic Common Pleas affirming a determination of the workmen’s compensation bureau awarding compensation to the defendant Pranciska Langnase for the death of her husband as the result of an accident arising out of and in the course of his employment by prosecutor.

The contention of the prosecutor is that there is no evidence that the deceased received an injury arising out of and in the course of his employment.

The facts briefly are as follows: Langnase was employed by prosecutor as a brewer of beer. He started to work each night at eleven-thirty. On the evening of August 25th, 1929, he reported for work in apparent good health. About two a. m. a fellow workman, who wanted to consult him about work, searched for him in the plant. Hearing water running in a vat and being unable to get any response to calls, he ascended a ladder outside the vat, which was fifteen feet deep. He discovered the deceased lying on his back in the bottom of the vat with the ladder used to descend into the inside of the vat across his body. Police and an ambulance were called and the body was brought out. There was a strong odor of carbon dioxide in the tank which made the interne who entered dizzy and forced him to use a gas mask. The cause of death given in the death certificate was arterio scelerosis induced by shock due to a fall from the ladder. There was evidence of an abrasion on the head and of blood in the mouth and ears.

The prosecutor’s position is that the defendant did not sustain the burden of proving an accident which caused death. Medical testimony was introduced with a view to showing that there was, or might have been, a heart attack which came upon Langnase as he was descending the ladder, and which caused both the fall and the death.

However, it would seem that the circumstantial evidence of the body being found with the ladder lying across it; coupled with the testimony of the interne that he thought the deceased had a brain concussion, and the testimony that the fall produced the heart attack, is sufficient to sustain the finding of fact on the question of the happening of an accident. Two tribunals have so found and this court should be slow to disturb a finding of fact and to weigh the evidence. Prosecutor’s argument is that there is no evidence to support the judgment. The circumstantial evidence alone is sufficient.

The judgment under review will be affirmed, with costs.


author: Pee Cubiam:.

text:
    CHARLES ADELMANN, RELATOR, v. ROBERT WILLIAMS ET AL., DEFENDANTS.
    Submitted October 16, 1931
    Decided March 2, 1932.
    Before Justices Teenchaed, Daly and Donges.
    For the relator, Maurice Grossman.

    For the defendants, John B. Brown.

   Pee Cubiam:.

This is an application for a rule to show cause why a writ of mandamus should not issue to compel the town of Belle-ville, or the building inspector, to issue a building permit for the erection and construction of a warehouse on the rear of 57 Balph street, in said town. An application was made to the Chief Justice, which he refused.

To begin with the relator submits no proof of any of the matters discussed in his brief. The respondents submit a brief and some affidavits which contradict in essential particulars statements made in the brief of the relator.

It appears that the relator applied for a permit on February 19th, 1931. The application was received by the building inspector for consideration, and on February 24th it was refused. It appears that on February 16th, there was presented a petition by twenty-seven property owners requesting a change in the use of: the property in that district, including the lot in question, to a residential zone, whereas it had previously been in an industrial zone in the zoning ordinance. It appears that the petition was considered at a meeting on February 17th, and on February 24th the commissioners of the town adopted the amendment to the zoning ordinance on first reading. It appears, therefore, that, while perhaps the property was not within the prohibited zone at the time the application was made, it was thereafter included in the residential area and a permit would not thereafter have been granted.

The allowance of a writ of mandamus rests in the sound discretion of the court. In this case we have nothing before us which would move the court to exercise this discretion in behalf of the relator. As was said in Rohrs v. Zabriskie, 102 N. J. L. 473, and approved in Koplin v. South Orange, 6 N. J. Mis. R. 489; affirmed, 105 N. J. L. 492: “It would be an abuse of that power for this court to direct the municipality to grant a permit for the erection of a building the existence of which, if erected, has already been declared by legal authority to be a menace to the safety of the community.”

The rule to show cause is denied, with costs.


text:
    JACOB CHERCKJIAN ET AL., PROSECUTORS, v. BOROUGH OF WOODRIDGE, DEFENDANT.
    Submitted October 16, 1931
    Decided March 2, 1932.
    Before Justices Teenciiard, Daly and Donges.
    For the prosecutors, Luce & Kipp.

    For the defendant, Stanton T. Lawrence.

   Pee Cueiam.

These cases seek to review the legality and the fairness of assessments for benefits arising from the paving of four streets, namely Fifth street,' Eleventh street, Union avenue and Garden street, in the borough of Woodridge. The same questions are raised in all of the cases, except that with respect to Wo. 256 (Garden street appeal), no complaint is made that the report of the commissioners followed so shortly after the time fixed for hearing that it was physically impossible for the commissioners of assessment to have made the review of the work between the date of hearing and the date of the report of the assessment, which in every instance was upon the day following the date of the hearing.

The general criticism of the assessments is that the'report was never properly confirmed by the governing body of the municipality. The dates upon which the reports are asserted to have been confirmed are March 12th in Wo. 256, April 9th in Wo. 253, and August 13th in Wos. 254 and 255. It is likewise asserted that the ordinances did not authorize the including in the assessment, of benefits the costs of any new curbs and gutters, because it is claimed that the ordinance does not provide for any curbs and gutters. It is further contended that the assessment is unfair because it was not within the necessary or fair scope of the work which was being provided for.

It seems to us as to the legal objections, if they have any validity, the prosecutors are without standing because they have allowed approximately a year to elapse since the alleged confirmation of the assessment before the writ of certiorari was asked for and allowed. Under Graham v. Ocean City, 98 N. J. L. 426, and other cases in this court and the Court of Errors and Appeals, a complaining property owner must act with due diligence. Further, it does not satisfactorily appear that no confirmation was made.

It seems, further, that these prosecutors are without standing because, under the act, the property owners have an appeal to the Circuit Court to test the fairness of the assessment, and it seems to us that this case comes within that class of cases which must be dealt with on appeal. Graham v. Ocean City, supra; Breakenridge et al. v. Newark, 94 N. J. L. 361; Burstiner v. East Orange, 4 N. J. Mis. R. 280; affirmed, 103 N. J. L. 174.

In view of the statute (Pamph. L. 1921, p. 15), which requires a certiorari to be allowed or granted within thirty days from the date of confirmation of the assessment, it is difficult to know upon what theory these prosecutors can have any standing. In each case months elapsed after the alleged confirmation before the writ of certiorari was allowed. For this reason the writs should be dismissed. DeMarmon v. Moselle, 8 N. J. Mis. R. 904.

In all of these cases the writs of certiorari are dismissed, with costs.


text:
    PUBLIC SERVICE ELECTRIC AND GAS COMPANY, PROSECUTOR, v. EDWARD H. LEDDY, RECORDER, ETC., ET AL., DEFENDANTS.
    Submitted October 16, 1931
    Decided March 2, 1932.
    Before Justices Tbenchabd, Daly and Donges.
    For the prosecutor, William E. Speer.

    For the defendants, Frank Pascarella.

   Pee Cueiam.

This writ brings up a judgment of the recorder of the borough of Westwood finding the prosecutor guilty of a violation of an ordinance of the board of health of said borough. The ordinance requires certain ’ methods of procedure preliminary to the installation of plumbing in houses. The prosecutor installed water heaters without complying with the ordinance. An affirmation or oath was filed and summons issued. After a trial the recorder reserved judgment. Subsequently he filed an opinion and found prosecutor guilty.

At the trial a motion was made to dismiss on the ground that the oath was insufficient in that it merely alleged a violation of the code and did not set forth the facts which show the violation. The motion was denied, and the trial proceeded, during which the prosecutor offered no witnesses, but did by its counsel cross-examine a witness of the complainant. In his filed opinion, the recorder stated that he had arrived at the conclusion that he should have dismissed the complaint because of the insufficiency of the oath, but that prosecutor had waived this defect by participating in the trial on the merits.

It is now urged by prosecutor that the defect in the complaint was one which went to the jurisdiction of the court below over the subject-matter and could not, therefore, be waived. Defendants admit that the complaint was defective, but contend that the question is not a jurisdictional one. The position taken by the prosecutor seems to be the sound one. In White v. Neptune City, 56 N. J. L. 222, it was said:

“Under the statute with which we are now dealing” (an act respecting licenses in boroughs which has been held by this court to be similar with respect to the procedure required to the Health act under which the instant proceedings are had), “jurisdiction over the subject-matter depends upon the filing with the justice of a complaint on oath or affirmation that a designated person has violated a certain section of an ordinance passed Under authority of the act; and jurisdiction of the person is obtained by issuing and serving on such person a summons which states what section of the ordinance has been violated.”

In State v. Rodgers, 102 Atl. Rep. 433, Mr. Justice Trenchard, speaking for the Court of Errors and Appeals in a case involving a conviction for drunken driving, said:

“The question of the jurisdiction of the recorder’s court over the subject-matter of the case depends not upon the evidence produced, but upon the offense with which the defendant is charged.”

That case, of course, was a criminal one, but the instant case is a civil suit to recover a penalty.

In a proceeding of this kind, it being highly penal, a proper complaint is necessary to give the recorder jurisdiction over the subject-matter. Ordinarily jurisdiction over the subject-matter is granted by the constitution or by statute, but there are cases where other requirements must be fulfilled before jurisdiction is acquired, such as the filing of a proper bond in an election recount before the Circuit Court. Kuestner v. Boscarell, 136 Atl. Rep. 506.

The judgment is reversed, but without costs to either party.


text:
    EASTERN BERGEN COUNTY LOCAL NO. 45, RELATOR, v. THE N. J. STATE PATROLMEN’S BENEVOLENT ASSOCIATION, DEFENDANT.
    Submitted October 16, 1931
    Decided March 2, 1932.
    Before Justices Teenohabd, Daly and Donges.
    Bor the relator, Merritt Lane.

    Bor the defendant, Edward F. Merrey.

   Pee Cueiam.

This is a rule to show cause, allowed by the Chief Justice, why a mandamuSj either peremptory or alternative, should not issue commanding the Blew Jersey State Patrolmen’s Benevolent Association to reinstate one of its locals, called Eastern Bergen County Local BTo. 45, to membership in the state association.

The defendant is an association formed under the act for the incorporation of associations not for pecuniary profit. The relator is not incorporated and is a voluntary association to which the state association granted a charter on August 20th, 1919.

The relation of the two associations is somewhat confusing and is not very well defined. The state association grants a charter, but apparently the local does not thereby become a member of the state association. The local becomes entitled to elect and send a delegate to the state association, who represents it, and such delegate becomes a member of the state association.

There are no benefits paid by the state association but benefits are paid by the local. The association is one for the organization of patrolmen, and the by-laws seem to provide that if one becomes more or less than a patrolman in his position, he ceases to be an active member and is only a passive member in the local. In such case he may not hold office and may not vote. He may attend certain meetings and speak upon questions, but this is the extent of his participation. He may receive benefits.

It appears that the state association adopted a resolution providing that no member of any local should hold membership in any other state police association, or any local patrolmen’s benevolent association affiliated with a state patrolmen’s benevolent association, except the Chief of Police State Association. It provided further by this resolution of October 23d, 1930, that the penalty for holding membership in any other state policemen’s association will be expulsion.

Article 10 of the constitution and by-laws of the state association provides that the state president may revoke the charter of any local for non-payment of dues or assessments, or failure to comply with the state by-laws or rules and regulations of the state association. It further provides that in the event the state president takes such action, the state association must approve or state upon what terms the charter may be returned.

It appears that on June loth, 1931, the president of the state association wrote to the local advising that the matter of the revocation of its charter would come before the state association on June 17th, 1931. Ho one appeared for the local association. It was thereupon determined that, inasmuch as the local association permitted members to hold membership in banned associations, its charter should be revoked, and it was accordingly declared to be revoked and its property turned over to the state association. Thereafter a charter was issued to a faction of the relator in the territory theretofore served by relator. It is the revocation of the charter and the refusal to reinstate the local association which is the basis of this application, it being contended that the state association acted arbitrarily and beyond its power, and it illegally deprived the local of its property and rights.

Our conclusion is- that sufficient is made to appear to justify the award of an alternative writ, but not a peremptory writ. The facts appear to be in dispute, and the legal right is not clear. In such circumstances the court will award an alternative writ so that an issue may be framed, the facts ascertained, and review had after judgment. Hugg v. Camden, 39 N. J. L. 620; Schnitzler v. Transportation Co., 76 Id. 171.

An alternative writ is awarded.


text:
    BOYD REALTY COMPANY, INCORPORATED, PROSECUTOR, v. THE MAYOR AND COUNCIL OF THE BOROUGH OF LEONIA ET AL., DEFENDANTS.
    Submitted October 16, 1931
    Decided March 2, 1932.
    Before Justices Tkenchakd, Daly and Dorges.
    Bor the prosecutor, Seufert & Elmore.

    Bor the defendants; Stanton T. Lawrence.

   Pee Cueiam.

Boyd Eealty Company, Incorporated, has a rule to show cause why a writ of certiorari should not issue to review “the resolution or certificate fixing and determining the costs of the improvement constructed under and by virtue of an ordinance entitled: ‘An ordinance to provide for the laying of sanitary sewers and storm sewers * * * on Broad avenue, in the borough of Leonia/ &c.”

It is stipulated that no attack is sought to be made upon the validity of the ordinance or concerning procedure for the adoption of the report of the commissioners of assessment. The controversy is as to the fairness of the assessment.

The ordinance was adopted October 28th, 1929, and the work was completed within a year thereafter. The report of the commissioners of assessment was confirmed on December 29th, 1930. So far as appears, the work was prosecuted without objection, and the first complaint was made after the assessment was imposed.

The record is quite large, and the matter has been fully argued. However, as above stated, the question presented is as to the fairness of the assessment against the proponent of this rule.

It has been repeatedly held in this court that where an attack is made upon an assessment for unfairness, the dissatisfied owner must use the remedy provided in the Home Buie act o£ taking an appeal to the Circuit Court, before resorting to certiorari. Graham, v. Ocean City, 98 N. J. L. 426; Maywood Land Co. v. Maywood, 147 Atl. Rep. 743.

Upon the whole case, we are of opinion that the discretion of the court in allowing a writ of certiorari should not be exercised in this case.

The rule to show cause is discharged, with costs.


text:
    EDWARD DOYLE, PROSECUTOR, v. TOWN OF SECAUCUS, DEFENDANT. HENRY ZULAUF, PROSECUTOR, v. TOWN OF SECAUCUS, DEFENDANT.
    Argued October 6, 1931
    Decided March 2, 1932.
    Before Justices Teenchaed, Daly and Donges.
    For the prosecutors, William George.

    For the defendant, William E. Sewell.

   Pee Cueiam.

The writs in this case bring up for review an ordinance of the town of Seeaueus, adopted April 28th, 1931, amending an ordinance creating a police department in said municipality.

By an amendment to the original ordinance it was provided that the force should consist of a chief, a captain, a sergeant and as many patrolmen as the town council might from time to time appoint. The prosecutor Doyle was appointed chief of police on January 4th, 1927, and held the office until April 28th, 1931, when the office was abolished by the amendment adopted on the latter date. The prosecutor Zulauf was appointed captain of police about two years prior to April 28th, 1931, when the office of captain was abolished by said amendment. Thereafter the sergeant of police became the head of the police force and performed the duties theretofore performed by prosecutors.

The ground of attack is that the ordinance is invalid because it is in violation of section 3 of chapter 212 of the laws of 1911, which provides that it shall not be lawful for any governing body of a municipality to abolish any position or office held by any exempt firemen of any volunteer fire department, holding an exempt certificate. It is undisputed that prosecutors hold such certificates. No charges were made against either of the prosecutors.

The ordinance is not attacked for any lack of power in the council to pass ordinances dealing with the organization of the police force, or for any informality in its adoption. The attack is leveled against the motive that inspired its passage.

The claim of prosecutors is that the adoption of the amendment was in violation of the act above cited and actuated by political motives.

We have carefully reviewed the evidence and are unable to conclude that it appears that the council was actuated by any motive except to relieve the taxpayers of the municipality from what it deemed to be an unnecessary expenditure of public money. That the saving amounted to only two per cent, of the appropriation for the maintenance of the depart-' ment is not an adequate reason for doubting its advisability. That the council, acting in good faith and in the public interest, had the power to abolish the offices in question, is too firmly settled to admit of doubt. Paddock v. Hudson Tax Board, 82 N. J. L. 360; Harker v. Bayonne, 85 Id. 176; Colgarry v. Water Commissioners, Ibid. 583; Buckley v. Guttenberg, 87 Id. 434.

In Paddock v. Hudson Tax Board, supra, this court said:

“The very spirit of good government intends that useless offices drawing revenue from a municipality or state should be abrogated, and it would be regarded as a betrayal of a solemn trust, for a body politic to convert offices contemplated under the civil service law into sinecures or pension places.”

As was said by Chief Justice Gummere, speaking for the Court of Errors and Appeals, in Harker v. Bayonne, supra:

“The abolition by a municipality of a position or an office held by one of the favored class designated in the statute, when such action is taken in good faith, and for the betterment of the public service, is declared in each of the cases cited to be a legitimate exercise of municipal power, notwithstanding the provisions of statutes similar to the one appealed to by defendant in error.”

We are unable to say from the evidence before us that the action of the council in adopting the ordinance amending the ordinance creating the places of chief of police and captain of police was not in good faith.

The writs of certiorari will be dismissed, with costs.


author: Sooy, C. C. J.

text:
    MAURICE HATHAWAY HEDGES, BY HIS NEXT FRIEND, ETC., LEWIS C. HEDGES, AND ELIZABETH HEDGES, PLAINTIFFS, v. IGNATIUS McMANUS AND ATLANTIC CITY AND SHORE RAILROAD COMPANY, DEFENDANTS.
    Decided March 2, 1932.
    For the rule, Bourgeois & Coulomb.

    Contra, Bolte •& Tripician.

   Sooy, C. C. J.

This is defendants’ rule to show cause why verdicts in favor of plaintiffs should not be set aside. The grounds are four in number and I will first consider the verdict in favor of Elizabeth Hedges and her husband, Lewis C. Hedges, which verdicts will stand or fall as this rule is determined either in favor or against Mrs. Hedges.

The facts upon which this decision will be based will be gathered, mainly, if not entirely, from the testimony of Mrs. Hedges and my first inquiry will be as to whether the facts as gleaned therefrom and thereby do or do not bar her right of recovery on the ground of contributory negligence, thus leaving the question of defendant’s negligence for discussion in considering the verdict in favor of Maurice H. Hedges, a boy of nine years of age, and a passenger in his mother’s automobile at the time hereinafter dealt with.

Does the testimony of Mrs. Hedges disclose that she contributed to her injuries in such a manner that had she not been negligent she would not have been injured by the negligence of defendant? Gould she, by the exercise of reasonable care on her part, have avoided the collision complained of, notwithstanding defendant’s alleged negligence?

The collision was between a trolley car of defendant (operated under a steam railroad franchise) and a Eord sedan owned and operated by Mrs. Hedges at a point in hforthfield where the railroad tracks cross Mt. Vernon avenue. This is an unprotected grade crossing, Mt. Vernon avenue running, generally, north and south and the trolley tracks east and west. Mrs. Hedges approached the tracks from the south and was proceeding north. The trolley was coming from the west and proceeding east. The right of way of the defendant is fifty feet wide. Mt. Vernon avenue is thirty-six feet wide and the crossing is fifty-two feet wide.

Mrs. Hedges lived on Mt. Vernon avenue, a block or more north of the crossing and had crossed it many times and knew that cars used the tracks on a frequent schedule and was well acquainted with the character of such obstructions as might impede her view as she approached from either side. She was bringing her children home from school. It was daylight. Mrs. Hedges turned into ' Mt. Vernon avenue from Main street and proceeded toward the tracks. On her left, to the west, was Zion road about one thousand and seventy-five feet away and at this point, Zion road, the defendant railroad company maintained a passenger platform and building and it was from this direction and point that a trolley car was approaching.

Just what Mrs. Hedges did towards making observations prior to the time when she came to a dwelling house situate at the southwest corner of Mt. Vernon avenue and the right of way is not of great importance. She says she made observations but, be that as it may, her conduct nearer the tracks is the test of her right to hold the verdict.

Mrs. Hedges says that when at this house (southwest corner above mentioned) she looked toward Zion róad, “I observed all the way down, I didn’t see anything.” At this time, then, she must have been beyond the point where this house was an obstruction to her view otherwise she could not have seen “all the way down.” Zion road, as has been hereinbefore .stated, is about one thousand and seventy-five feet to the west of Mt. Vernon avenue.

Mrs. Hedges proceeded from this point in Mt. Vernon avenue (beyond the house on the southwest corner) without seeing the oncoming car until just before she was struck and when she saw it she attempted to turn her car to her right in order to avoid it. She was too close to stop her auto. She says, “I could have stopped but it would have stopped me pretty close.” “Q. Why didn’t you stop? A. It is rather hard to tell why I didn’t. When you are caught so quick like that you use your mind. You think something is coming on you—and—I don’t know-■ I just wanted to get away.”

Mrs. Hedges, with reference to the southwest corner house obstruction, says that she knew of this obstruction to her view “as long as I have been driving there.” “Q. Then when you came to that you realized that the house that you were approaching would obstruct the view of the approaching train, didn’t you? A. Yes.”

Mrs. Hedges endeavors to explain her inability to see the oncoming car by saying that there was shrubbery of considerable amount and heighth growing on the right of way .and that the trolley wire poles were located and .staggered in .such a way as to interfere with her view. A photo marked in evidence shows this shrubbery and the jury would not have been warranted in finding that it did in fact obstruct her view. The exact location and size of the poles were fully given and refuted her claim in this respect. The evidence of the engineers, as to distances—one for the plaintiff and one for the defendant—is in substantial agreement.

The distance from Zion road station to the whistle board is two hundred and five feet, and from that board to Mt. Yeruon avenue nine hundred and fifty-eight feet.

Mr. Baub, an engineer for the railroad, made observations as follows:

Measuring from the south rail twenty-four feet south he said a person had a view one thousand four hundred and eighty-three feet down the track.

Twenty-five feet (line of southwest corner house) a view of one thousand two hundred and ninety-three feet.

These measurements and observations testified to by Mr. Baub, and not refuted by other evidence show that Mrs. Hedges, at twentyfour feet from the near rail, as she approached it, had a view down the track of one thousand four hundred and eighty-three feet. At twenty-five feet, along the line of the aforesaid house, she had a view of one thousand two hundred and ninety-three feet. So that Mrs. Hedges, at all times after she reached the twenty-four-feet point, had .a view to the west down beyond Zion station. The trolley car stopped at Zion station for a passenger, started up and was proceeding toward the scene of the collision and Mrs. Hedges did not see it until too late to avoid a collision. She is quite evidently not quite sure of her speed as she approached the crossing. She says that after she passed the house she brought her car to a creep and then started again to cross. See pages 102, &c.

"Q. Then we are to understand that when you were beyond the northerly line of the little house next to the railroad track your car was barely creeping and then this trolley came on at a terrific rate of speed and you couldn’t stop your ear or you couldn’t turn it around so as to escape ? A. I was up too far. Q. You were only creeping, why didn’t you stop your car? A. I did that down here, and I was starting again to cross the tracks. Q. Then after you came to the northerly side of the house you brought your car practically to a creeping motion, you looked and didn’t see any railroad car approaching, and then you started your car up again. Is that right? A. Yes. Q. And when you did see the car it was so close to you that you could not stop your car again, and then you tried to turn it around to the right? A. As far as I remember. Things are rather hazy like that. I saw him and he hit and that is all I can tell you.”

Then follows a reiteration by Mrs. Hedges of her knowledge of the danger at this crossing, her knowledge that the house obstructed her view until she got beyond it at a point twenty-four or twenty-five feet from the near track.

If Mrs. Hedges looked after she got beyond the house obstruction she could have seen the approaching trolley for the remaining time it took her to get to the tracks. The car was coming, she had. a clear view for a distance of over one thousand four hundred feet. Her car was traveling at a “creep.” The first she saw of the trolley was practically at the moment of impact.

If the verdict in favor of Mr. and Mrs. Hedges is to be sustained it is because the jury had a right on this evidence to say that Mrs. Hedges exercised due care in approaching this place of known great danger.- Did the jury have a right to find in her favor under the decisions of this state ?

“An automobile, completely under the control of its operator, standing where placed, incapable of exercising á volition of its own, does not present to its driver the perplexities which courts have recognized in controlling a horse-drawn vehicle,” and “had Stryker, too, even after starting, looked when looking was effective, disaster would not have overtaken him.” Stryker v. Pennsylvania Railroad Co., 104 N. J. L. 300.

If Mrs. Hedges had looked when looking was effective and had she looked effectively, disaster would not have overtaken-her.

In the Stryker ease, Mr. Justice Lloyd cites with approval Baltimore and Ohio Railroad v. Goodman, 4 Sup. Ct. 632, and quotes Mr. Justice Holmes as follows: “When a man goes upon a railroad track he knows that he goes to a place where ho will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train, not the train stop for him. It seems to us that if he relies upon not hearing the train or any signal and takes no further precautions he does so at his own risk. If at the last moment Goodman found himself in an emergency it was his own fault,” &e.

Mrs. Hedges, at the last moment, saw the trolley. It was too late either because she did not look when she says she did or because she did not look with seeing eyes.

Pennsylvania Railroad Co. v. Righter, 42 N. J. L. 180, as far back as 1880 declared the law to be:

“It is a primary rule of legal caution that a person about to cross a railroad is bound to use his eyes and ears, and to guard against the approach of trains by looking each way before crossing.” And “the failure of the company to provide or give a statutory signal will not relieve a person from making this observation, if he has an opportunity, by a view of the road to avoid the danger.” And in the same case Mr. Justice Reed, quoting Dr. Wharton, says: “If a traveler, by looking along the road, could have seen an approaching train in time to escape, it would be presumed, in case of collision, that he did not look, or, looking, did not heed what he saw.”

I repeat that if Mrs. Hedges looked as she said she did, she should have seen that which was obviously in range of her view—the trolley car—she is either mistaken in her testimony that she looked or else it seems to be clear that she did not heed what she saw. It was her duty, under the circumstances in this case, to have had her car under control so that she could have stopped it. She failed in her duty and, at least, contributed to the cause of her injuries with the result that the rule must be made absolute as to Mr. and Mrs. Hedges.

The negligence of Mrs. Hedges, in this respect, was not: attributable to her son, the plaintiff, Maurice, and he himself was not guilty of contributory negligence. May his verdict stand? It may if the plaintiff has established by the-greater weight of evidence that defendant failed to give the-statutory signals. Did the evidence on this phase of the case-justify the verdict in favor of the boy? If the evidence presents a factual situation so that the minds of reasonable men might differ, it was for the jury and their verdict must stand and that even though the court might have arrived at a different conclusion had he been a juror.

I have carefully reviewed the evidence on this phase of the-case. For the plaintiff, testifying against the giving of signals, are two passengers in defendant’s trolley, two young-ladies standing near a house over one hundred feet from the-crossing and the plaintiff herself. For the defendant, there is a greater number of witnesses who testify that the statutory signals were given. There is some confusion as to just, when and where the whistle was blown and whether, if blown —before the accident—the statutory signals were given or not. The jury saw the witnesses, heard their testimony, judged its truthfulness and the opportunity the witnesses had to hear and were in position to determine whether these-witnesses were confused as to when the signals were given and whether the statute was complied with. They have found against the defendant and the testimony of plaintiff’s witnesses is of such force, that I am unable to say that the verdict of the jury, in this respect, manifests either mistake,, passion or prejudice.

The result is that the verdict in favor of Mrs. Hedges and her husband, as an individual, will be set aside and the verdict in favor of Mr. Hedges as next friend of Maurice Hathaway Hedges will stand.


text:
    ANNE H. KINSELLA, PLAINTIFF-RESPONDENT, v. WILLIAM DOLINSKY, DEFENDANT-APPELLANT.
    Submitted October 16, 1931
    Decided March 3, 1932.
    Before Gummeee, Chief Justice, and Justices Paekee and Case.
    Por the plaintiff-respondent, Seym,our Cantor and William, I. Garrison.

    Por the defendant-appellant, Walter S. Keown.

   Pee Cueiam.

Plaintiff, who resided on the second floor of a two-family house owned by the defendant, was injured from falling down the outside brick steps leading from the house entrance to the pavement. She recovered a judgment against the defendant for $10,000, and the defendant appeals. Appellant sets down thirty-eight reasons, of which four are waived. We do not feel called upon to discuss all of the remaining thirty-four reasons, but we shall mention enough of them to give the grounds for our conclusion.

At the second floor landing there was an electric light which was in working order and with which no fault is found. In the first floor hall between the stairway and the front door was the fixture of a ceiling light. That light did not funtcion, and it is upon the failure thereof that the action is grounded. Plaintiff, coming down the stairway after dark on March 8th, 1931, reached the bottom of the stairway in safety, pressed the button that controlled the ceiling light and found that the light did not operate. She went out of the front door, took a step and fell to the pavement below.

The complaint alleges that the defenda'nt negligently “failed to have any lights as required by law.” Defendant contends that that allegation is based on the assumption that the defendant was under a statutory liability and that inasmuch as the defendant was not shown to he under such a liability, the proofs do not correspond to the complaint and the motions for a nonsuit and for a direction should have been granted. We find, however, whatever he the technical construction of the words of the complaint, that the case was fairly and fully tried out on the theory of an assumed liability (Rhodes v. Fuller Land and Improvement Co., 92 N. J. L. 569), and that there was evidence thereon sufficient to take the case to the jury. The defendant, relying upon Rooney v. Siletti, 96 Id. 312, and similar cases, now undertakes to give further support to those motions by asserting that the plaintiff was guilty of contributory negligence and, under the facts of the case, assumed the risk; but his motions must stand or fall upon the reasons given to the trial court and the propositions now advanced were not then propounded. The reasons that were given do not establish error in the court’s rulings thereon.

But we think that the court-erred in charging the jury on the character of liability that rested upon the defendant and also in charging on measure of damages.

Assuming the theory upon which plaintiff grounded her case to have been justified, namely, that the defendant, having installed a lighting device for the convenience and safety of his tenants in the use of the hallway and the front- steps, was under an obligation to keep that lighting facility in proper and usable condition, the proofs do not establish that it was, as a matter of law, the farther duty of the landlord to turn the light on and keep it burning from sunset to sunrise. The court did in effect charge that in the following language: “If you find that * * * the landlord did that in this case * * * that he reserved it and put in a light and so on, then he assumed the responsibility of maintaining that light in good repair, properly lighted from sunset to sunrise * * The fact clearly appears that the lighting fixture on the second floor landing was operated by the tenants, and it is, we think, arguable from the testimony that the same practice applied to the first floor light. It was a jury question.

In instructing the jury on the rule for damages the court said: “If you find that the plaintiff is entitled to compensation, then the compensation should be substantial and not trivial, because if the plaintiff was injured at all the complaint charges that the injuries are permanent and of a serious nature.” And further: “So if you reach a point where the plaintiff is entitled to compensation as a money verdict, then, as I said before, your verdict should be for a substantial amount, to compensate her consistent with the injuries received, and not a trivial one.” It is manifest that the inclusion of an allegation in the complaint is not a sound reason for allowing substantial damages. Moreover, there was a serious conflict in the testimony as to the extent of the plaintiff’s injuries. The plaintiff’s contention was that the injuries were .substantial and permanent. The defense produced testimony to the effect that the injuries were of a comparatively trivial character, consisting of bruises, and that there should have been a full recovery in about four weeks after the accident. Certain internal conditions, which were of a serious nature and attributed by the plaintiff to the accident, were assigned by the defendant’s medical testimony to childbirth and an earlier abdominal operation. Substantiality and triviality are relative terms and the jury might well have understood this portion of the charge to be an instruction that if the fact of liability be determined in favor of the plaintiff then the damage should be substantial to compensate her for the permanent and serious injuries which as she claims she suffered.

We think that the charge, in these respects, contained error, and for that reason judgment below will be reversed.


author: Lawrence, C. C. J.

text:
    JOHN KENNEY, PLAINTIFF, v. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, BODY CORPORATE, DEFENDANT.
    For the plaintiff, Leon L. Gone.

    For the defendant, Maurice J. McKeown.

   Lawrence, C. C. J.

This suit was submitted to me as trial judge at the Morris Circuit for determination on a stipulation of facts and the law applicable.

On April 12th, 1931, plaintiff was the owner of a certain automobile. One James Martin was the owner and operator of a certain other automobile. A collision occurred between them in the town of Morristown. On May 26th, 1931, plaintiff obtained a judgment against Martin in a County District Court for $300 to cover the damage to his car. This judgment was docketed in the office of the clerk of the Court of Common Pleas. An execution issued thereon out of that court and was returned unsatisfied. The amount due with costs at the time was $324.64.

On November 20th, 1930, it appears that Martin, the ■defendant in the judgment, had been arrested and convicted as a drunken driver, before a local magistrate. He appealed from this conviction, and on January 13th, 1931, the conviction was reversed by the Common Pleas judge. On his conviction, but whether before or after its reversal is not clear, he complied with the requirement of chapter 116, Pamph. L. 1929, p. 195, and caused to be fded with the motor vehicle commissioner proof of financial responsibility to answer in money damages for any future injury or tort caused by his operation of a motor vehicle. This consisted of a certificate signed by the defendant insurance company that on December 29th, 1930, it had issued to Martin a covering policy, effective for one year.

On March 31st, 1931, defendant gave written notice to Martin of its intention to cancel the policy for non-payment ■of the premium and demanded its return. He did so, and the claim is made that it was canceled as to him on April 2d, 1931, by virtue of its surrender with that intention. On April I'th, 1931, the company notified the motor vehicle commissioner that it would cancel the policy on April 16th, 1931. On that date, a certificate of cancellation with the policy ■attached was served on the commissioner.

On April 12th, 1931, the accident, alleged to have been ■due to the negligence of Martin, happened. After the recovery of the judgment, its docketing, and the issue of execution thereon, with the return unsatisfied, plaintiff demanded payment of the defendant as insurer, insisting that the policy in question had not been legally canceled until April 16th, 1931, and that it was therefore in effect at the time of the accident for the benefit of the public generally, including plaintiff, under the statute (supra).

Defendant contends that the subsequent reversal of Martin’s conviction in the Common Pleas Court released him, nunc pro tunc, from the obligation to file proof of financial responsibility, pursuant to the provision of the act, and that the certificate of insurance by the company, even though filed before the reversal, was without legal effect for that reason. It is accordingly urged that the policy issued should be regarded as of the ordinary type, and as having been effectually canceled as between it and the insured on April 2d, 1931, for non-payment of the premium. If this contention be sound, it is argued that the condition contained in section two of the statute to the effect that the policy therein contemplated should be non-cancellable except after ten days’ written notice to the commissioner did not apply. While defendant apparently regarded the statute as applicable at the time and gave the notice as a preliminary to cancellation, it suggests that this fact should not operate adversely, since it had no knowledge that Martin’s conviction had been reversed, until shortly before the present suit. It is not denied, however, that the policy was to be deemed and taken as evidence of Martin’s financial responsibility in conformity with the statute.

Did, however, the subsequent reversal of the conviction free Martin from the operation of the statute ab initio or nullify the authority of the commissioner exercised thereunder? Evidently it did not. Section one states that “no appeal taken from the judgment of any court shall act as a stay to any action of the commissioner authorized by the provisions of this act.” Since the policy in question was manifestly used in accordance with the requirement of the statute, with the intent that it should be subject to the provisions thereof, and its normal expiration would not have been until December, 1931, it follows that it could not have been canceled in any other way than as permitted by the act, so far as the public was concerned. This is precisely what the company did when it gave the commissioner notice that it would cancel the policy on April 16th, 1931, four days after the accident which gives rise to the present litigation. The policy appears, therefore, to have been subsisting and valid as to the public on the date of such accident.

Judgment may be entered in favor of plaintiff and against defendant for the sum of $324.64, together with interest and costs of suit.


author: Caferey, C. C. J.

text:
    Bergen County Circuit Court.
    GEORGE J. CAPDEVILLE, PLAINTIFF, v. EDGAR A. ROBINS, DEFENDANT.
    Decided February 4, 1932.
    For the plaintiff, Frank Pascarella.

    For the defendant, J. William Miller.

   Caferey, C. C. J.

This is a suit in ejectment, having for its object the possession of premises owned by the plaintiff, but occupied by the defendant herein.

This cause was heard by the court without a jury—counsel representing both litigants consenting and stipulating in open court that this matter be so tried.

The facts are conceded to be as follows:

The plaintiff herein is the admitted owner under a deed executed and delivered to him by his mother, Nellie Capdeville—also known as Margaret N. Capdeville—dated October 27th, 1927, recorded two days thereafter, of premises in the borough of Iiasbrouck Heights in this state, commonly known and designated as 103 Walter avenue, the defendant occupying the same under a written lease made with plaintiff’s grantor, said lease bearing date of February 27th, 1926, and recorded May 7th, 1928. No mention is made in plaintiff’s deed of this lease.

The aforesaid lease entered into by Margaret N. Capdeville (therein referred to as party of first part) and the defendant, Edgar A. Eobins (therein referred to as party of the second part), permits the defendant to occupy the premises aforesaid “including use of furniture and fixtures and all household equipment. Said party of the first part to have use of aforesaid furnishings for the term of five years to commence-on the 1st day of April, A. d. 1926, at the monthly rent of $25 and other valuable considerations payable monthly. It. is understood and agreed that the party of the second part shall have the privilege to renew this lease and a monthly rental of not more than $25 per month.” The testimony of the defendant herein before me clearly indicates that the “other valuable consideration was that the party that the lease was drawn with was an invalid, and when I considered the rent it was not simply a case of rent; it meant that my wife and I had to take care of this woman, being a paralytic. That was other considerations.” By “the party that the lease was drawn” and “this woman” is meant the said Margaret H. Capdeville. The defendant further testified that he is no longer taking care of his lessor for the reason that “she is dead” (having died prior to the expiration of the lease) the exact date of her death being unknown to the defendant. As to the provision in said lease “including the use of furniture, fixtures and household equipment” the defendant testified that although they belonged to his lessor, he formerly used some of them, but that he is not now using any of them for that they are now “in the possession of her son”—the plaintiff herein—having been removed by the plaintiff with the knowledge and consent of the defendant, the latter having surrendered possession thereof.

On March 31st, 1931, the plaintiff by written demand addressed to and admittedly received by the defendant, required the defendant to deliver possession of the demised premises to the plaintiff on April 1st, 1931, “that being the-day your tenure expires.” The defendant continued in possession, claiming to be entitled so to do under the “privilege” clause contained in his lease with plaintiff’s grantor. The defendant tendered $25 as rent for the month of April, 1931, between the fifteenth and thirtieth days of that month, which was refused.

The briefs submitted by counsel cite cases relating only to the rights of a tenant, who exercises an option (privilege) to renew a written lease, by continuing in possession. While the lease here does not indicate what notice, if any, .shall be given to the lessor of the lessee’s intention to extend the same, yet, nevertheless, the defendant claims to have given written notice to the plaintiff of his (defendant’s) intention to renew said lease, this notice having been mailed on March 31st, 1931, and received by the plaintiff herein the day after. It is now elementary that where a demise extends over a fixed period, with a provision for its continuance over another fixed period, at a rental fixed, the right of the tenant continues after the determination of the first period, if he elects and such election will be indicated by his continuing in possession and paying the rent. Such additional term is not a new demise but a continuation of the old one. This was the ruling of our Court of Errors and Appeals in Batura v. McBride, 75 N. J. L. 480 (at p. 482), citing with approval Mershon v. Williams, 62 Id. 779.

In the case at bar, it should be noted that the rental stipulated was “$25 and other valuable considerations” which required the defendant lessee not only to pay the amount aforesaid, but also to take care of the paralytic lessor. This latter requirement became impossible of performance by reason of the death of this invalid woman. The payment of the rental and the taking care of the paralytic lessor were essential to the retaining of possession by the defendant lessee of the dendsed premises and these requirements are inseparable. That right to possession in the lessee terminated with the death of the lessor and accordingly the plaintiff herein thereupon became entitled to the possession of the demised premises by reason thereof. Brigham, v. Kidder, 99 N. J. L. 79; 122 Atl. Rep. 740. The plaintiff is entitled to possession of the demised premises.

The pleadings in this case may be amended to conform to the facts here. Upon this being done, judgment will be entered in favor of the plaintiff herein.


author: Davis, J.

text:
    Camden County Circuit Court.
    SECURITY TRUST COMPANY OF POTTSTOWN, A CORPORATION, PLAINTIFF, v. W. M. ANDERSON, DEFENDANT.
    For the plaintiff, Wilfred B. Wolcott.

    For the defendant, Bleakly, Stockwell •& Burling.

   Davis, J.

In the case above stated I allowed a rule to show cause why the judgment by default against the defendant should not be opened and he be permitted to file an answer. Depositions were taken under this rule.

The suit, was commenced by the plaintiff against the defendant, in attachment, and judgment was entered on June 16th, 1931. At the time the attachment was issued the defendant was a resident of the Commonwealth of Pennsylvania and the plaintiff was a corporation of the same commonwealth. This suit could have been instituted in Pennsylvania but the plaintiff, due to the fact that there were certain moneys held by the county of Camden representing the balance due the defendant on his contract, commenced its suit by attachment in this court. The defendant had no actual notice of the issuance of the writ of attachment, his notice being entirely a constructive one under the statute. It would seem, therefore, that if he appears to have a meritorious defense to the action that the judgment should he opened and he be permitted to file an answer.

The defendant entered into agreements with the city of Camden and the county of Camden, municipal corporations of the State of New Jersey, for the furnishing of labor and material to construct and install a heating and ventilating system in the Camden county court house annex, and contracted with Sotter Brothers Company for a portion of the work for which he was obligated under his agreements with the city and county of Camden.

The defendant gave bonds as required by the provisions of chapter 75, Pamph. L. 1918, as amended. Under the provisions of this act these bonds obligated the defendant for the payment for all labor performed or materials furnished in connection with his agreements with the city and county of Camden.

Sotter Brothers Company, the subcontractor, became insolvent before completing its portion of the contract and the defendant was required to complete the same. Sotter Brothers Company, by assignment, assigned its interest in moneys due to it by the defendant, to the plaintiff in this case. The defendant had paid to Sotter Brothers Company, or the plaintiffs, its assignee, on account of moneys due, the sum of $9,200, leaving a balance in the hands of the defendant of $5,785, representing the balance duo Sotter Brothers Company under its contract before its insolvency.

The defendant under his contract with the city and county of Camden was required to complete the work after Sotter Brothers Company became insolvent, and the cost of completing it amounted to $1,490.25. The right of the defendant to deduct this amount from the balance of $5,785 is not seriously disputed by the plaintiff.

The defendant, in addition to completing the work of Sotter Brothers Company, paid certain claims for labor performed and materials furnished on the job to Sotter Brothers Company prior to its insolvency. It appears by the contracts entered into by the defendant with the city and county of Camden and by his bond given in connection with these contracts, that he was obligated to pay these claims. The plaintiff contends that there was not a compliance with the provisions of the statute by the claimants of Sotter Brothers Company and therefore the defendant had no right to pay out of the moneys in his hands due Sotter Brothers Company and assigned to the plaintiff these claims.

Under the statute requiring bond to be given, obligating the contractor to pay for all labor performed or materials furnished, it is provided that any person, firm or corporation to whom any money shall be due, shall furnish the sureties on said bond with a statement of the amount due within eighty days after the acceptance of the contract, and that no suit shall be brought against said sureties on said bond until the expiration of sixty days after the furnishing of said statements. The statute does not require any notice to be given to the contractor who is the principal on the bond.

It appears that the defendant had knowledge of these claims and knew of his obligation under his contract and bonds to pay the same. The filing of the statement required by the statute seems to have been required for the benefit of the sureties. Nothing in the statute requires any notice to be given to the principal or contractor. The defendant being obligated to pay these claims of Sotter Brothers Company upon its default assumed that no further proceedings were necessary on the part of the claimants to permit him to make the payments.

In view of the insolvency of Sotter Brothers Company and its inability to pay these claims, no good purpose could be served by the defendant submitting to a suit against him upon being satisfied of the correctness of the claims.

While Sotter Brothers Company had assigned its interest to the plaintiff in moneys due to it by the defendant, such an assignment could only have the effect of entitling the plantiff to the balance of these moneys after the deduction by the defendant of the amounts of money which the defendant was obligated to pay and expend by reason of the default and insolvency of Sotter Brothers Company.

The defendant has, I feel, shown such a meritorious defense as to entitle him to its benefit. The rule to show cause will be made absolute.


author: Habtshobne, J.

text:
    Essex County Court of Common Pleas.
    STATE OF NEW JERSEY v. STAEFEL PAERLES.
    Decided March 10, 1932.
    Por the state, Joseph L. Smith (by Leon W. Kapp), prosecutor of the pleas.
    Por the defendant, Samuel JDreskin.

   Habtshobne, J.

On the trial de novo after three concurrent convictions of violations of the Motor Vehicle act defendant moves to dismiss, attacking on several grounds the complaints, the warrants and the conviction records.

The complaints charge that defendant, on October 12th, 1931, (1) operated a motor vehicle while under the influence of intoxicating liquor “in the city of East Orange; to wit, on William street;” (2) that on the same day and at the same place he did “operate a motor vehicle after his license had been revoked,” and that, (3) on the same day and place he was a hit-and-run driver.

Defendant contested the matter in the Eecorder’s Court on the merits. This, of course, constituted a waiver of ail objections as to jurisdiction of the court over his person. State v. Rosenblum, 102 N. J. L. 125. Hence the objections to the warrants fall to the ground. Such contest on the merits does not, however, by the express language of the above decision, constitute a waiver of objections to jurisdiction over the subject-matter, nor could the express consent of the defendant grant this jurisdiction, if lacking. Defendant argues that this jurisdiction over the subject-matter is lacking because the complaint does not conform to the requirement of the statute, citing the Motor Yehicle act, section 25, subsection 1, to the effect that “the complaint and process shall state * * * the time, place and nature of said violation.” Defendant objects that the allegation of the day is not an allegation of the “time,” and that the allegation of the street is not a sufficient allegation of the “place,” citing the ease of Peck v. Fair Haven Railroad {Conn.), 58 Atl. Rep. 757. This case holds that the words “time” and “place” in a statute require a statement of the day and hour. But as that case says, “the words of a statute are to be tested with reference to the purpose required.” Since the purpose of the Connecticut statute was to apprise third parties of an accident of which they might have no knowledge, exactness was requisite. Here the purpose of the statute is to apprise the defendant of facts of which he either has knowledge or, if he has not, the lack of specification of the exact hour and of the exact spot cannot harm him in the slightest for then he cannot possibly be guilty. Accordingly, assuming the objections raised apply to the court’s jurisdiction over the subject-matter, they are insubstantial.

The similar objection to the verification of the complaint before the clerk is groundless, not only because section 25 of the act provides merely that the complaint may be made “to” any magistrate, not that it shall be “verified before” any magistrate, but because such section also provides that “all acts * * * in connection with the taking of complaints * * * may be performed by the clerk.” The objections to the complaints, as to their failure to sufficiently specify the character of the offense, are groundless in fact.

Defendant further objects to the record of convictions as returned by the magistrate. The objection that same are not signed by the magistrate as required by Pamph. L. 1923, ch. 13 7, but by the clerk, is invalid in view of the subsequent amendment of the Motor Vehicle act, section 25, subsection 1, providing that, “all ministerial acts and proceedings subsequent to trial may be performed by the clerk or deputy clerk.”

Defendant’s final objections to the record of convictions are that they fail to set forth the names of all of the witnesses who testified, that they fail to set out the substance of the evidence, or the transcript of the evidence, and that they do not show of what section of the act the defendant was found guilty.

As to the last objection, since the complaints specify the offense, and the conviction returned therewith finds the defendant guilty “as charged,” the conviction is proper in that aspect. State v. Whitaker, 146 Atl. Rep. 42; 7 N. J. Mis. R. 395. As to the failure to return the evidence, it must be noted, first, that Recorders’ Courts have no court stenographers and, second, that “it .shall be the duty of the magistrate * * * to send all papers * * * together with a transcript of the proceedings in the case to the Court of Common Pleas.” Section 28. Accordingly, the statute cannot possibly refer to a stenographic transcript of 'the evidence.

Further, it is far from clear why the failure of the magistrate, who is not counsel for the state, but the arbiter between the parties in the court below, should penalize the state, and not the defendant, whose normal duty it would be to see that his own record on appeal is perfected.

The transcript not affecting jurisdiction over either the subject-matter or the person in the court below, and having been filed as required by the above 1923 act, the Common Pleas would not seem to lack all jurisdiction for a mere defect therein, but to have the right, if not the duty, to retain jurisdiction until the opportunity had been presented “to amend all defects” as expressly authorized in section 28 of the Motor Vehicle act.

Motion to dismiss will, accordingly, be denied.


author: Goldberger, J.

text:
    Perth Amboy District Court.
    CHARLES A. BRADY, CUSTODIAN OF SCHOOL MONEYS OF THE BOROUGH OF CARTERET, PLAINTIFF, v. THE BOARD OF EDUCATION OF THE BOROUGH OF CARTERET, COUNTY OF MIDDLESEX, DEFENDANT.
    Decided February 16, 1932.
    Por tlie= plaintiff, Francis J. Monaghan.

    Por the defendant, David S. Jacoby.

   Goldberger, J.

This is an action brought to recover costs and counsel fees incurred by Brady, the plaintiff, in resisting a rule to show cause issued out of the Supreme Court upon application of the board of education, why a writ of mandamus should not issue to him, compelling him to countersign warrants signed by the president of the school board and attested by Louis PT. Bradford, the district clerk.

Both attorneys have stipulated that the matter be submitted upon an agreed state of facts.

The facts are as follows:

The plaintiff was, on July 1st, 1930, and still is, custodian of school moneys of the school district of the borough of Carteret.

The board of education on April 9th, 1930, sent, a true copy of a resolution to Brady, notifying him of the appointment of Louis PT. Bradford, district clerk, and informing the said Brady, that Bradford’s duties were to commence July 1st, 1930; and that Bradford was to replace William V. Coughlin, the encumbent. The said Coughlin notified Brady, warning him not, to recognize any district clerk other than himself.

Thereafter, warrants for the payment of legal obligations for the district were sent to Brady signed by the president of the board and attested by Louis hi. Bradford, the district clerk, which warrants the custodian refused to countersign.

Immediately thereafter, application was made by the board of education for mandamus compelling Brady to countersign these warrants, which application was denied “without prejudice.”

Article 18 of the school law provides that school moneys shall be paid out by the custodian only on warrants signed by the president and district clerk. The law is plainly mandatory upon the custodian to pay upon the order of a board of education upon being passed to him in a legal form.

In the case of Zimmerman v. Mathe, 49 N. J. L. 45, the court, in its decision used the following language:

“With the expenditure of moneys raised for school purposes and the application to the purpose for which they were raised, the tax collector has no official concern.”

The custodian of the moneys of the school district in the payment of orders is not responsible for the application the school board has made of the money when such orders come to him drawn according to law.

The case of Barnet v. Paterson, 48 N. J. L. 395, does not govern the matter sub judice. In that case the mayor of the city was charged with the duty of being “vigilant, and active,” and as far as possible to protect the interest of the city; whereas, the duty of the custodian is simply ministerial.

It was not for Brady to decide whether Coughlin was legally removed from office. Bradford and Coughlin had color of title to the office of district clerk, and as to the public either of them constituted a de facto officer.

The general rule is that the exercise of a power by the officer de facto, which lawfully pertained to the office to which he had been appointed, or to which he .had possession, is valid and binding when it is for the interest of the public or of any individual other than the officer himself, to sustain the officers’ act. Throop Pub. Off. 622; Mechem Pub. Off. 328; Brinkerhoff v. Jersey City, 64 N. J. L. 225, 229.

The plaintiff is not entitled to recover.


author: Caffbey, C. C. J.

text:
    JOHN H. WIRTH, PLAINTIFF, v. PERCY A. SLINN, DEFENDANT.
    Decided October 2, 1931.
    For the plaintiff, Joseph H. Gaudielle.

    For the defendant, De Turclc & West.

   Caffbey, C. C. J.

This ease arises out of an automobile accident which occurred on November 28th, 1929, and comes on to be heard by the court for determination, by consent of counsel, upon plaintiff’s motion to strike the defense of res adjudícala interposed by the present defendant, and for the purpose of disposing the matter the following facts were stipulated:

The facts briefly stated, are as follows: On November 28th, 1929, one William J. Brady owned an automobile which was being driven in an easterly direction along Beech street near the intersection of First street (both being public streets in the city of Hackensack in this state) the Brady car, with the consent of the owner, being operated by John H. Wirth (the plaintiff in the case at bar). An automobile owned and operated by Percy A. Slinn (the defendant in the case at bar), was proceeding in a northerly direction along First street aforesaid and at or near the intersection of the two streets aforementioned, the respective automobiles collided with each other. The wife of Slinn was an occupant of her husband’s car. Both automobiles were damaged and Mrs. Slinn and Wirth allegedly injured. Thereafter, an action was commenced in this court by the driver, Wirth, against Slinn, the complaint therein filed alleging that Slinn was negligent in the operation and control of his (Slinn’s) car, by reason of which Wirth was injured, requiring medical and surgical attention and medicines. The answer filed by Slinn denied negligence and averred that the Slinn automobile was operated in a careful manner, and that the negligence of Wirth contributed to the happening of the collision and injuries complained of. The case at bar was thereafter noticed for trial but has not yet been tried. On March 4th, 1930, Slinn and his wife instituted suit in the Bergen County Court of Common Pleas (hereinafter referred to as Common Pleas case) against both Brady and Wirth, the complaint filed in that court alleging that Brady, as owner, and Wirth, as the driver, were negligent in this operation and control of the Brady car, resulting in the Slinn car being damaged and Mrs. Slinn injured and Slinn being deprived of the society and companionship of his wife and necessitating the expenditure by Slinn0 for his wife of divers sums of money for medicines, doctors, nurses and hospital attention. The answer of Brady and Wirth in the Common Pleas case admitted operation and control of the Brady car, denied negligence on their part and alleged that the negligence of the Slinns was the cause of the happening of the accident and that both Brady and his driver violated no duty which they owed to the Slinns. On May 8th, 1930, the Common Pleas case was tried before that court and a jury, resulting in a verdict being rendered (and rule for judgment entered) against both Brady and Wirth, the damages in favor of Slinn being assessed at $600 and that of his wife in the sum of $2,500. The amount of this verdict has been fully paid and the judgment entered thereon satisfied of record. Thereafter, Slinn filed a supplemental answer in the case at bar, setting up the defense of res adjudicaba for that the matters in difference in the present case were adjudicated in the Common Pleas case. Wirth’s attorney thereupon, thereafter, moved to strike out this defense. On this motion, this matter now comes on to be heard by this court.

The doctrine of res adjudicata rests on strong reasons of public policy and also of private right. It must be enforced wherever it is necessary for the protection and security of rights.

A judgment concludes parties and their privies not only as to every matter which was offered and received to sustain or defeat the claim, but as to any other admissible matter which might have been offered for the purpose. McGarvey v. Young, 100 N. J. Eq. 174; affirmed, 101 Id. 302; City of Paterson v. Baker, 51 Id. 49; In re Walsh’s Estate, 80 Id. 565, 569; W. D. Cashin & Co. v. Alamac Hotel Co., 98 Id. 432.

To render a prior judgment res adjudicata the record must show that the issue was taken on the same allegations which are the foundation of the second action. The test is whether the proof which would fully support the one ease would have the same effect in tending to maintain the other. Hoffmeier & Son v. Trost, 83 N. J. L. 358; 85 Atl. Rep. 221; Hershon v. Williams, 63 N. J. L. 398; 44 Atl. Rep. 211, cited with approval in Smith v. Fischer Baking Co. et al., 105 N. J. L. 567; 147 Atl. Rep. 455.

In re Walsh’s Estate, 80 N. J. Eq. 565; 74 Atl. Rep. 563, the court (at p. 569) citing authority of City of Paterson v. Baker, 51 N. J. Eq. 49; 26 Atl. Rep. 324, said that: “All that is necessary is that the right to relief in the one suit shall rest upon the same point or question which in essence and substance was litigated and determined in the first suit, and in such a ease the parties and those in privity with them are concluded, “not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose,” and this opinion has been cited with approval by our Court of Errors and Appeals repeatedly. McMichael v. Horay, 90 N. J. L. 142; White et al. v. Mindes, 106 Id. 606; 148 Atl. Rep. 781.

In the Common Pleas case, the suit against Brady and Wirth was by Slinn and his wife for personal injuries to Mrs. Slinn and loss of her society, medical expenses and damage to his automobile by Mr. Slinn. It should be noted that Wirth filed no counter-claim against Slinn in that cause. In the pending case the action is by Wirth against Mr. Slinn and the latter in his answer denies negligence, averring that the negligence of Wirth resulted in the injuries complained of by Wirth. Both Wirth and Slinn were parties to the former (Common Pleas case) suit, the right'to relief there resting upon the question of negligence. In the instant case, I believe it is conceded that the proof submitted in the Common Pleas case with particular reference to the question of negligence resulted in the jury in that court finding as a fact that Wirth was negligent in the operation and control of the Brady car and that there was no negligence on the part of Slinn, whereupon judgment was accordingly entered in favor of the Slinns. • The issue being one of negligence there as well as here and that point or question having already been litigated and determined and resolved in favor of Slinn, I am of the opinion that the judgment in the Common Pleas case is conclusive and so in point as to control the issue in the pending action here.

Ordinarily where injury is caused to both property and the person by the same negligent act, distinct causes of action exist and a judgment in one case' is not a bar to an action to recover in the other. But in order to support an action, there must be not only the negligent act, but a consequential injury which is the gravamen of the charge. Ochs v. Public Service Railway Co., 81 N. J. L. 661. However, while a litigant may take alternate positions as to certain matters or things he cannot take inconsistent ones with reference to the very same identical matter or thing. The right to relief here rests upon the same point or question—that of negligence —which in essence and substance was litigated and determined in the Common Pleas ease and it would be unjust and improper to now permit the plaintiff here to question the propriety of the jury’s findings that he (Wirth) was negligent. Commenting on the doctrine of res adjudícala, 34 Corp. Jur. (at p. 743), states that “any right, fact, or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose, or subject-matter of the two suits is the same or not.” See W. D. Cashin & Co. v. Alamac Hotel Co., Inc., 98 N. J. Eq. 432; 131 Atl. Rep. 117 (at p. 121).

In the Ochs v. Public Service Railway Co., supra, the plaintiff had previously recovered in an action for the injury to his horse and carriage, and thereafter brought suit for his personal injuries. In the previous case, the question of negligence was determined in favor of Ochs and against the railway company and this determination in favor of Ochs, together with the resultant personal injuries sustained by him, gave rise to his suit arising out of the same accidenjt. Judgment was subsequently entered in his favor and affirmed. 81 N. J. L. 661; 80 Atl. Rep. 495. In the instant case the question of negligence was determined against the present plaintiff and in favor of the defendant herein.

In the later case of Smith v. Fischer Baking Co., supra, the question there arose as to whether the District, Court judgment in the previous action of the driver, Versoy, against the company, was such as to be res adjudícala in a subsequent suit, instituted against the company by the owner of the car driven by Yersoy. The owner of the car (Mrs. Smith) had not been a party in the District Court proceedings. However, in the case at bar, both Wirth and Slinn were parties to the suit, instituted in the Bergen County Court of Common Pleas and their rights as against each other arising out of the question of negligence were determined by a jury before a court of competent jurisdiction and that judgment there is controlling here.

The judgment, in the Common Pleas case is now a bar to the pending action here. The earlier controversy was between the same parties (Wirth and Slinn) and their privies and involved the same issue. All questions of fact arising out of the collision between the automobiles owned and operated by the respective parties have been litigated and determined in the former suit and the parties in the case at bar are, therefore, concluded not only as to every matter which was offered and received to sustain or defeat the claim, but as to any other admissible matter which might have been offered for the purpose. It has been determined as a fact by a jury before a court of competent jurisdiction (Common Pleas case) that Wirth was negligent in the operation and control of the Brady car and that Slinn was free from negligence. The former action having been determined in favor of Slinn and against Wirth and his employer, that judgment, for the reasons herein stated, is conclusive not only as to the res of that case but as to all further litigation between the same parties touching the same subject-matter though the res itself may be different.

The defense of res adjudicata interposed by the defendant will be permitted to stand and the motion of the plaintiff to strike out said defense will be denied. An order may be presented accordingly.


text:
    THOMAS M. KILLEEN, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT-APPELLANT.
    Submitted October 16, 1931
    Decided March 3, 1932.

      Before Gummbee, Chief Justice, and Justices Parker and Case.
    Por the plaintiff-respondent, Francis A. Gordon.

    Por the defendant-appellant, Henry H. Fryling (Harold F. Dorgeval, of counsel).
   Per Curiam.

Plaintiff sued for personal injuries alleged to have been received by him in being struck by a bus owned and operated by the defendant. The jury awarded the plaintiff a verdict of $30,000, and defendant appeals.

Amongst the propositions advanced by the appellant is that the trial judge in his charge erroneously introduced into the case for the first time, pursuant, to requests submitted by the attorney for plaintiff, certain theories of liability on the part of the defendant which were not alleged in the complaint and not tried out in the case.

The complaint alleged that on September 7th, 1929, defendant, in the negligent operation of its bus, struck down and ran over the plaintiff on Elizabeth avenue, at or near the intersection by Morrell street, in the city of Elizabeth. The answer denied the charge and, as a special defense, set up contributory negligence. The only proof in the plaintiff’s case concerning the happening of the accident was given by the plaintiff and by a witness named Welch. The plaintiff testified that just, before the accident, standing on the curb at the corner of Morrell street and Elizabeth avenue, he looked to his left, that is, to the east, and saw a bus just passing Catherine street—a street paralleling Morrell street and next to the east therefrom; that there was nothing else in sight and that he started to cross Elizabeth avenue; that about ten feet short of the trolley tracks he looked again to the east, and saw the bus at a point half way between Catherine street and Morrell street; that he continued crossing the avenue and, just as he was about to step on the nearest rail, looked west and saw cars approaching from that direction, then looked east and saw that the bus was right on top of him, about a foot away; that the left side of the bus hit him; that he is positive that it was the bus; that there was no other car there. Welch testified that as he was standing at the northeast corner of Elizabeth avenue and Morrell street one of defendant’s buses came along, that the witness heard a thud, turned and saw the plaintiff lying in the street between the east and west-bound tracks; that the rear end of the bus had just passed the plaintiff and that there was no other car to be seen.

The defense was that the defendant’s bus had not struck or injured the plaintiff. During the defendant’s case, and on its behalf, certain testimony, chiefly of remarks in the nature of res gestee, gave the suggestion that the plaintiff had been hit by a sedan automobile that at the site of the accident had paralleled and passed the bus, going in the same direction as was the latter. But there appears to have been no contention, before the court’s charge, that if the fact was as thus suggested the defendant was either primarily responsible as the originating cause, or jointly responsible as a joint tort feasor, for an injury inflicted by such other vehicle. That the trial judge had no such conception of the issue, but that, on the other hand, he regarded the issue as that which had been framed by the pleadings, sustained by plaintiff’s proofs and contradicted in the defendant’s testimony, namely, the striking down and injury of the plaintiff by the defendant’s bus, quite clearly appears from this instruction given to the jury at the beginning of the charge:

“The plaintiff claims that the vehicle in question was owned by the defendant at the time, was being operated by its servant and so negligently operated that such negligence was the proximate cause of the plaintiff’s injuries.

“There are four things the plaintiff must prove in this case in order to entitle him to a verdict at your hands. He must prove, first, that he was injured and damaged; second, that the injuries were caused by the negligence of the operator of the vehicle that struck him; third, that such negligence was the proximate cause of those injuries; fourth, that the operator of the vehicle, that struck him and caused these injuries, was the servant or employe of the defendant. These things the plaintiff must prove, and he must prove them by a fair preponderance of the evidence before he can recover.”

Toward the close of the charge the court paused to dispose of certain requests made by the plaintiff and then, in response to such requests, charged the jury in the manner complained of. Without reciting all of the matter objected to, we quote:

“The plaintiff has requested me to charge you as follows * * *: No. 1. If you find that the defendant was negligent and the negligent acts of its servants, agent, and employe contributed to the plaintiff’s injury, then the defendant must respond in damages to the plaintiff, although the negligent acts of a third person may have contributed to the same results, and the comparative degree of culpability of the two will not affect the liability of either. If both were negligent in a manner and to a degree contributing to the result, they are liable jointly and severally.

“That is a correct statement of the law, and that, of course, applied to this case, would mean that if you did find, and if you believe that there was another car alongside of this bus, and that, there is anything in the testimony to show that both of these vehicles were doing what a reasonably prudent and careful person would not have done and had no right to do, and that this accident arose because of that joint negligence and was proximately caused as the result thereof, then either or both of these would be guilty and responsible to this plaintiff.”

The significance of this language is more apparent later in the charge:

“If you should find that there was another car at, all and that both cars, or the actions of both drivers were negligent, and that in this joint negligent operation of the cars on the part of both, there was an injury to the plaintiff resulting, no matter which of the cars struck him, then, of course, that would not absolve the defendant from responsibility.”

It is contended that this put to the jury the propriety of its finding, should it so determine, that there was another vehicle than defendant’s bus participating in the accident and that the drivers of these two vehicles were negligent in a way that was proximate to the accident and that would make the defendant company liable even though the plaintiff was in fact not struck by defendant’s bus. We think that that is so. The dispute is not concerning the soundness of the propositions enunciated by the court as isolated legal principles; it is whether the pleadings and proofs were such as properly to invoke them. The only theory of negligence upon which a ease can be submitted is the one alleged in the complaint. Murphy v. Railway Co., 71 N. J. L. 5; McPherson v. Hudson and Manhattan Railroad Co., 100 Id. 262. The theory of negligence thus presented to the jury was, according to the record, first brought forth in the charge. “The issue thus submitted was not within the pleadings. It was not within the issue framed. It was not fairly or fully tried out in the ease. It is a well-settled rule of practice in the trial of civil cases that the questions submitted to the jury should be within the issues raised and framed by the pleadings.” Garibaldi v. Rubenstein, 99 Id. 223, 224.

We find no other harmful error.

For the reason stated the judgment below will be reversed.