text:
    EDWARD WILSON ET AL., PROSECUTORS, v. CITY OF OCEAN CITY ET AL., RESPONDENTS.
    Submitted October term, 1932
    Decided April 21, 1933.
    Before Justices Pasees, Lloyd and Hehee.
    Por the prosecutors, William Elmer Brown, Jr., and Bourgeois & Coulomb.

    For the defendants, Robert K. Bell, Furman A. DeMaris, Jr., and Kenneth J. Dawes.

   Per Curiam.

This is an attack upon an assessment made in the year 1931 for the construction of additional sewer facilities in Ocean City. The sewerage system is not planned to accommodate surface water, but only house drainage and kindred matter.

It is stipulated that all the parties concerned had appealed to the Circuit Court of the county, pursuant to the statute, on the ground that the assessment is unfair and unjust. Of this, more hereafter.

The preliminary steps by way of ordinance, contract, &e., are not drawn in question. It is urged that the commissioners of assessment acted illegally with regard to their public hearing concerning the assessment; and this point will also be taken up in its proper order.

The first point made covering reasons 1 and 2 is, that the assessments were made entirely on a frontage basis and are therefore illegal. This, however, does not follow. The law is settled that an assessment on a frontage basis will not be set aside if that basis appears to’ be a fair test for the estimation of benefits. This is conspicuously the case here, where the question is that of affording drainage facilities to abutting lands. The sewer pipes run through various streets and lots abutting on those streets. ’ Those lots obtain privilege of drainage and are very properly regarded as benefited to the extent of their frontage thereon. It is urged that these frontage assessments are without reference to the depth or shape of the lots. Our examination of the map seems to indicate that all the lots are rectangular and of substantially uniform depth, but not of entirely uniform frontage. It seems eminently proper that they should be assessed proportionately to that frontage. It is further argued that a number of lots had buildings upon them and that others did not; but that the commissioners made their assessments irrespective of the fact whether any given lot had or had not a building thereon. We are unable to see that the presence or absence of a building makes any difference in the estimation of the assessment. The fundamental rule is to regulate the assessment in accordance with any use to which the property can legitimately be put; and there is nothing here to show that any one lot can be used for substantially a different purpose than any other lot.

Point 2 covering reasons 3 and 4 is that the assessments are in excess of the actual benefits conferred, and that all of the properties benefited by the improvement were not assessed. The answer to the first part of this proposition is that the fairness and justness of the assessment is before the Circuit Court on appeal and is therefore not for our consideration. The answer to the second is that, as we understand the rule, the question is whether any individual lot is assessed in excess of the benefits conferred, and not whether some other lot is assessed at a lower rate or not at all. With regard to the argument that certain lots not abutting upon the sewer but being connected later on, are not assessed, we deem the answer to be that they are not assessable until the facilities for such connection are afforded them.

The third main point is that the assessments deprive the prosecutors of their property without due process of law and deny them the equal protection of the laws. This is merely a repetition in another form of the assertion that the assessments were unfair and unjust and likewise answered by saying that that question is already submitted to another tribunal for decision.

The fourth point is that the prosecutors were not given proper notice nor afforded a lawful hearing. This included the sixth, seventh, eighth and ninth reasons. The seventh in particular charges that the commissioners of assessment refused and declined to inform property-owners attending the hearings of November 23d and November 30th of the probable cost to them of the improvement, the area of the property to be assessed therefor, and the method of ascertaining the amount of said assessment. The eighth is that the commissioners failed to give proper and legal notice of an adjourned meeting to be held on November 30th. This may as well be disposed of now by saying that when the meeting of November 23d closed, announcement was made at that time of the adjournment until the 30th, and that that is sufficient. Reason 9 is that the notice of the meeting to be held November 23d, 1931, incorrectly described the area affected and benefited by the improvement. The substance of this last reason is that the notice spoke of Thirty-fourth street as a limit of the improvement, whereas the improvement actually runs as far as Thirty-sixth street. There is nothing in the brief pointing out that any of the prosecutors own property within the area that was not included in the notice; and if they did own such property, they could readily ascertain the exact area of the improvement by examining the papers at the city hall. As a matter of fact, most, if not all, of them were represented, both at the meetings of the commissioners and later at the meeting of the council, by diligent and capable counsel, and it seems inconceivable that any one could have been misled by the inaccuracy of this description, particularly as the notice contains a clause “any lands adjacent thereto where said sewer system may be constructed.”

The really troublesome point is raised by reason 7 which alleges that the commissioners refused and declined to inform the property owners regarding the assessments that they were to expect. They were informed at the meeting of November 23d, that the assessment would probably be upon a frontage foot basis; but at that meeting it would seem that the commissioners were not themselves aware of the precise area to be assessed or the amount of lineal frontage. The meeting was a somewhat turbulent one and it may well be that property owners were not treated any too politely by the commissioners. However, the law itself does not seem to require that at the meeting of the commissioners there shall be even a definite preliminary, scheme, not to mention a final one. In some of the former statutes there has been a requirement that the commissioners shall have a preliminary assessment, as in Humphreys v. Bayonne, 60 N. J. L. (at p. 409); 38 Atl. Rep. 761; but the Home Rule act (Pamph. L. 1917, pp. 377, 378) contains no such requirement. It provides that the officer or board shall view the lands in the vicinity of the improvement benefited by such improvement and thereby fix a time and place for the hearing of all persons interested; of which notice shall be given. This notice was given and the parties interested appeared pursuant thereto. Section 21 of article 20 then provides that the board shall attend and shall “give all parties interested or affected by the improvement ample opportunity to be heard upon the subject of the assessment; ¿he * * * board shall have power to examine witnesses * * *, shall thereupon make a just and equitable assessment .of the benefits conferred,” &c. In other words, the assessment is not made either in a preliminary or final way until after the board has held its public meeting and heard all parties. The commissioners might well have stated to the inquiring parties at that meeting that they expected to consider such and such data with regard to the making of the assessment, but apparently they were not obliged by law to do so. The scheme of the statute seems to be that they are to make up their assessment after the meeting, then it goes before the municipal body and the latter holds a hearing thereon. This hearing was held and these parties were all heard at a time when they were fully advised with regard to the various facts in the ease.

Some criticism is made of the fact that the commissioners adopted their assessment after the meeting of November 30th had adjourned; and not publicly. They were not required to adopt it in public and we see nothing irregular about such action.

The fifth point is that the commissioners did not examine the work and view the lands. The case seems to show that they did.

The sixth point is based on reason No. 11 which reads as follows: “That the cost of said improvement as assessed * * * is in excess of special benefits, and as to such excess the cost should have been met by general taxation.” Of course, this is correct if the cost assessed is in excess of special benefits, but that is the precise point for consideration by the Circuit Court.

The seventh point seems to be that inasmuch as the city deducted a penalty of $12,000 from the contract price, that the assessment should be set aside. We disregard the item of $100 for postage as too trivial for consideration. It does not appear that the city has collected the $12,000 or will not be ultimately liable for the same. In any event, this should not invalidate an assessment of some $200,000 made on the basis of the contract price. See Kohler v. Guttenberg, 38 N. J. L. (at p. 419).

Lastly, that the report was revised and corrected by a committee of the commissioners instead of by the board itself. This seems to be authorized by statute. Pamph. L. 1925, pp. 235, 236, amendment of section 27 of article 20.

We find no valid reason for setting aside these assessments and the writ will therefore be dismissed as to all the parties.


source: Caselaw Access Project

author: Pee Cubiam:.

license: Public Domain

text:
    JOHN F. ANDERSON, PLAINTIFF, v. JOHN GREENLEAF, DEFENDANT.
    Submitted October term, 1932
    Decided April 28, 1933.
    Before Justices Teenchaed, Case and Bbogan.
    For the plaintiff, Griffith B. Vaughan.

   Pee Cubiam:.

The matter comes before us on motion for a rule for declaratory final judgment, interlocutory judgment by default having been already taken on rule entered to that effect. The defendant, though noticed, does not appear.

Plaintiff is the surviving husband of Mary Anderson, deceased. On December 7th, 1925, one Mary Holly, single, conveyed a lot of land to Mary Anderson. That was during the coverture of the plaintiff and of the said Mary Anderson. The latter died intestate without leaving lawful issue but still seized of the real estate on April 27th, 1932. Plaintiff claims that, under the act entitled “A supplement to an act entitled ‘An act directing the descent of real estate/ approved March ninth, one thousand eight hundred and seventy-seven,” which supplementary act was approved March 17th, 1926 (Pamph. L. 1926, ch. 41), he is now the owner in fee of the said lands to the exclusion of any right or interest therein of the defendant, a surviving brother of the decedent, and seeks a judgment so declaring.

Acquisition of the property by deed was a form of purchase. There is nothing in the record to show payment of consideration for the land; but we have the assumption in Weyer v. Weyer, 106 N. J. Eq. 112; 150 Atl. Rep. 232; affirmed by the Court of Errors and Appeals on the opinion below, 107 N. J. Eq. 593; 154 Atl. Rep. 636, that the word “purchase” is used in the statute in its larger, technical sense, which includes all forms of acquisition except by descent. 2 Blacks. Com. 241; Spielmann v. Kliest, 36 N. J. Eq. 199, 203; see, also, Malague v. Marion, 107 Id. 333; 152 Atl. Rep. 637. The date of the purchase was before the passage of the 1926 statute, but the statute has been held to be retroactive (Weyer v. Weyer, supra), and it is enough that the death occurred after the enactment. The facts appear to bring the case within the application of the statute. The practice rests upon precedent. Hallanan v. Hamilton, 104 N. J. L. 632; 142 Atl. Rep. 27.

Let the rule for final judgment be entered.


author: Per Curiam.

text:
    ROSE STUMBFL, PLAINTIFF, v. KALLMAN DATTON, DEFENDANT.
    Submitted October term, 1932
    Decided April 28, 1933.
    Before Justices Trenciiard, Case and Brogan.

      For the plaintiff, William W. Whitson (Russell G. Conover, of counsel).
    For the defendant, Paul W. Ewing.

   Per Curiam.

This is an application to set aside an order of a Supreme Court commissioner that the defendant be held to bail in the sum of $1,000 to answer unto the plaintiff in an action at law. The grounds upon which we are asked to set aside the order are (1) that the affidavit does not set forth facts showing the commission of an outrageous battery and (2) that the affidavit does not mention any special cause for which the defendant should be held to bail.

The basis of the order to hold to bail was an affidavit of the plaintiff which alleges that on April 2d, 19.32, the defendant, without just cause or provocation, maliciously and brutally attacked plaintiff with his hands and fists, striking her repeatedly in the face with his clinched fists, pushing her down across a day-bed, choking her, cursing her and otherwise injuring her, breaking her eyeglasses, cutting and bruising her cheek, bruising and injuring her left shoulder, arm and back.

Plaintiff seeks to justify the order to hold to bail upon the provisions of .section 56 of the Practice act of 1903 (Pamph. L. 1903, ch. 247 (at p. 550), wherein it is provided that no order to hold to bail shall be made unless — “first, such action is founded upon a seduction or an outrageous battery or mayhem; or, second, such action is for the recovery of damages for the misconduct or neglect of a public officer; or, third, the proof establishes special cause as heretofore for holding the defendant to bail.”

In Gardner v. Marcocci, 43 N. J. L. J. 338, our present chancellor, then Circuit Court judge, held that an affidavit setting forth that the defendant struck the plaintiff over her eye with his right hand, on which he wore a ring with a diamond chip in it, and that he kicked her in the ribs and stomach, and pulled her hair and caused her to bleed profusely from the mouth did not show an outrageous battery. Mr. Justice Katzenbach in Jacobs v. Costanza, 136 Atl. Rep. 807, relied upon that holding as a precedent. In Haglich v. Ceverlere, 105 N. J. L. 521; 146 Atl. Rep. 591, Mr. Justice Kalisch, considering an order to hold to bail wherein the facts were not at all parallel with those of the instant case, nevertheless stated applicable principles of law. He said: “The phrase ‘outrageous battery’ has a legislative meaning. The words are used in conjunction with the word ‘mayhem,’ and hence the adopted rule of statutory interpretation noscitur a sociis is applicable.” He then quotes the definition of mayhem at common law as given by 1 Russ. Or. & M. 119; to which may be added the statutory crime of mayhem to be found in section 112 of the Crimes act (2 Comp. Stat., p. 1182), which in its substantial parts has been on our statute books for many years. 1 Gen. Stat., p. 1063, § 16; Revision of the Statutes of New Jersey, p. 240, § 76; Statutes of New Jersey, p. 216, § 63.

Hollowing this trend of opinions we think that there is nothing in the affidavit that shows an outrageous battery within the meaning of our statutes unless it be the injuring of the plaintiff’s “left shoulder, arm and back.” While we are not prepared to say that these members could not be injured in such a way as to constitute either an outrageous battery or mayhem, we think there is nothing in the affidavit to show such extensive injury as to cause the act of the defendant to be so classed. That being so, the affidavit fails to show any-ground within the statute.

The order to hold to bail should be set aside and the bail discharged, with costs to the defendant on this motion. The action may proceed as if commenced by summons and complaint.


text:
    SEVLESRUO HOLDING CORPORATION ET AL., PLAINTIFFS, v. AMERICAN EQUITABLE ASSURANCE COMPANY ET AL., DEFENDANTS.
    Argued October 6, 1932
    Decided April 28, 1933.
    Before Justices Tbeístchabd, Case and Bbogan.
    Bor the plaintiff Marie Grande, Joseph T. Lieblich.

    Bor the defendant American Equitable Assurance Company, Arthur T. Vanderbilt.

   Per Curiam.

The matter is before us as on motion by defendant to retax costs, with depositions taken on rule. In June, 1931, a jury verdict of $283 was returned in favor of Marie Grande and against American Equitable Assurance Company upon what had originally been the seventh count of a complaint wherein other insureds as well as Marie Grande had been named as parties plaintiff and other insurers as well as the American Equitable Assurance Company had been named as parties defendant. After one trial resulting in a jury disagreement and several postponements of trial, the separate claim of Marie Grande against the named defendant for loss by fire to household furniture was severed from the remaining causes of action with the ultimate result above mentioned. Costs on the verdict were taxed by the clerk in favor of Marie Grande in the amount of $695.62. On this motion to^ retax the dispute arises over the allowances for witness fees.

The first argument advanced by American Equitable Assurance Company is that the taxed costs include witness fees for numerous witnesses subpoenaed and present at times when, because of postponements, there was no trial, and in support of the argument section 8 of chapter 111 (Pamph. L. 1921), “An act concerning fees and costs and the taxation thereof in the Supreme Court of the State of New Jersey,” is cited:

“Where application is made to the court * * * to adjourn or postpone a trial, the payment to the adverse party of a sum not exceeding ten dollars, if the parties reside in the same county, or a sum not exceeding fifteen dollars, if the parties reside in different counties, besides necessary disbursements, as hereinafter provided, already made or incurred, which are rendered ineffectual by the adjournment or postponement, may be required as a condition of granting the adjournment or postponement, and where no sum be so fixed the maximum sum, respectively, including said disbursements, shall be allowed.”

This section, by its terms, applies to a postponement made on the application of one or the other of the parties. On June 18th, 1928, there was an adjournment, according to the depositions, on the request of, or at the instance of, the attorney for the plaintiffs. The costs as heretofore taxed include $93.50 for witness fees on that day. We consider that under the statute the plaintiff was not entitled to that allowance and therefore it will be omitted in the retaxing. There were other adjournments, but we are unable to determine from any record before us that those adjournments were on the application of plaintiff or plaintiff’s attorney.

The next question is whether the defendant is chargeable, on the verdict in favor of Marie Grande, with the disbursements for subpoena and service fees made in connection with the trial that resulted in a jury disagreement. It is suggested that some of the witnesses were subpoenaed with respect to other counts in the complaint, but the proofs support a finding that the witnesses were called with respect to, and were material upon, the seventh count; and we are governed by these proofs.

Section 6 of the fee statute, supra, provides that: “* * * Where on a trial of an issue of fact the judge declares a mistrial and allows costs to either party, twenty dollars shall be allowed, including disbursements. No costs shall be taxed on mistrial without an order of court * * It is contended that this is a prohibition against the taxing of costs on a mistrial without an order of the court, and that inasmuch as there was no court order there can be no costs taxed. The determination hinges upon the meaning to be given the word “mistrial” as used in the statute. Webster’s New International Dictionary defines that word as “a trial legally of no effect by reason of some error in the proceedings; loosely, any trial not resulting in a lawful decision or verdict.” Does the statute use the word within its restricted meaning or in the larger, “looser” use? We incline to the opinion that the intention of the legislature was to limit the application of the statute to such mistrials as result from some error, impropriety or irregualrity and as are declared mistrials by the judge. A trial resulting in a jury disagreement is in a sense a mistrial; but a jury disagreement can hardly be said to be an error, impropriety or irregularity and it is not ordinarily accompanied by an order of the court declaring a mistrial. At any rate, no order of that purport is brought to our attention. Our conclusion is that where there is a trial which proceeds regularly to the point where a jury is dismissed for the reason that it is unable to reach a verdict and there is no declaration of a mistrial by the judge, section 6 of the statute does not apply.

Finally, it is said that the affidavit filed with the bill of costs as taxed by the clerk is insufficient in that it was made by another than the attorney of record and in that it does not specify the names of the witnesses or the specific distances traveled by the witnesses. We know of no requirement that the affidavit must be made by the attorney of record in person. The names of the witnesses seem to be no longer in issue as the actual attendance is not disputed. The mileage appears by depositions now in the proofs.

The costs are retaxed as on the original taxation, omitting therefrom, however, the item of $93.50 for subpoena fees on June 18th, 1928. Inasmuch as the defendant has succeeded in striking out a part of the items originally included, it is, on this proceeding, entitled to its costs, as on a successful motion to retax. The Ordinary v. Allen, 26 N. J. L. 145, 147.


text:
    CITY OF LINDEN, A MUNICIPAL CORPORATION IN THE COUNTY OF UNION, STATE OF NEW JERSEY, PROSECUTOR, v. FRANK L. CLEARY, JUDGE OF THE UNION COUNTY CIRCUIT COURT, ET AL., DEFENDANTS.
    Decided April 27, 1933.
    Before Justices Parker, Lloyd and Heher
    Por the prosecutor, Whiitemore & McLean.

    Por the defendants, Harry J. Weiner and Merritt Lane.

   Per Curiam.

This is a general assessment case in which a number of land owners, pursuant to the statute, appealed to the Circuit Court, there was a full and ample hearing, and the judge, after considering the evidence, and having made a personal inspection of the locus in quo, made substantial cuts in the assessment. The burden of the certiorari is that he was wrong in so doing; that the assessment as reported by the assessment commissioners should not be changed unless there is adequate proof that the assessment commissioners went wrong, and that there is no such proof; also that even as a matter of weight of evidence, the finding of the judge is against it.

The situation in the.present ease is simple enough. There was a widening and repaving of a street called Wood avenue. There was a contract between the borough and the county, as the street was accredited as a county road. In connection with the repaving, which involved tearing out a worn out brick pavement and substituting a new one, there were also sewer connections and water connections in many cases, but not all. Counsel have not furnished us with any table showing the changes in parallel column. However, by comparing items in the assessment table and in the judge’s order, we find that he did not interfere with the sewer assessment or the water connections, and confined the changes to the assessment for paving. Eoughly speaking, he cut it down fifty per cent. He filed no opinion for our guidance but we make out from the briefs that his general view was in effect that a widening of the roadway at the expense of the sidewalk on each side was quite unnecessary and not only conferred no benefit upon the abutting properties, but in some cases actually caused injury by restricting the sidewalk space used by pedestrians, and moreover, that the widening was partly for the purpose of affording parking space for automobiles which would block up the access to stores and business places, and in that way interfere with their business, and that as a result the abutting owners were charged to some extent for the cost of doing an injury to their property by restricting the access to their places of business.

In addition to this, the assessment is avowedly and actually on a pure front foot basis. This in itself may be a minor detail and not enough to invalidate the assessment, but is of importance in considering the question how the commissioners did their work. We recognize the rule that a front foot scheme will not invalidate an assessment, provided the conditions are such as to justify it. In the present ease it may be to a certain extent justified; but apart from that, we think the circuit judge had good ground for his findings.

Our examination of the evidence satisfies us that the conclusions and findings of the circuit judge were right, and' the writ will accordingly be dismissed.


text:
    HAROLD HAUGAARD, PLAINTIFF-RESPONDENT, v. O. HENRY GROIS, DEFENDANT-APPELLANT. EDGAR MALIN, BY HIS NEXT FRIEND, FRIEDA MALIN, AND FRIEDA MALIN, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. O. HENRY GROIS, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided April 28, 1933.
    Before Justices Trenchard, Case and Brosan.
    Eor the plaintiffs-respondents, Green & Green (Herbert J. Kenarih, of counsel).
    Eor the defendant-appellant, Blanchard & Garey {Robert Carey, Jr., of counsel).
   Per Curiam.

These cases grow out of an automobile collision between an automobile owned and operated by Harold Haugaard in which Edgar Malin was a passenger and an automobile owned and operated by the defendant Grois. The cases were tried together before the judge, sitting without a jury, and resulted in verdicts for the two named plaintiffs. Defendant appeals, and the appeals are considered together.

Appellant’s first point is that “the testimony before the District Court left only one conclusion, viz., that the plaintiff-appellee, Harold Haugaard, was guilty of contributory negligence.” There was testimony from which it could be found that Haugaard, in driving his automobile along Beardsley avenue approaching the intersection with Sixteenth street, made an observation to his left at a distance of ten feet from the intersection and made a second observation to his left before entering upon the intersection and saw no car approaching; that he proceeded and had traveled three-quarters of the way across the intersection when his attention was drawn to defendant’s car, coming from Haugaard’s left, by the screeching of the brakes thereof; that Haugaard thereupon braked his car to a standstill and while stationary was struck by the defendant’s car, and that the latter car dragged the Haugaard car for a distance and, proceeding onward, mounted the sidewalk and hit a telegraph pole on Sixteenth street about seven feet from Beardsley avenue. We are unable to say that these facts demonstrate contributory negligence on the part of Haugaard as a matter of law. The question was factual and was decided, as it might lawfully be, against the defendant.

Appellant’s second and remaining point is that “the negligence of the plaintiff, Harold Haugaard, should have been' imputed to the plaintiff Edgar Malin and so barred the suit brought by Edgar "Malin by his next friend, Erieda Malin, and Erieda Malin individually.” On the Malin case also the question of contributory negligence by Haugaard was factual and Malin cannot be charged with contributory negligence by Haugaard inasmuch as Haugaard was found not to be guilty thereof.

The judgment below will be affirmed.


text:
    STEVEN A. PLEET, PLAINTIFF-RESPONDENT, v. WILLIAM KATCHEN, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided April 28, 1933.
    Before Justices Teenchaed, Case and Beogan.
    For the plaintiff-respondent, A. Leslie Price.

    For the defendant-appellant, Abraham Gurney (James M. Reilly, of counsel).
   Per Curiam.

This is an appeal from the First Judicial District Court of Essex county where the judge, sitting without a jury, rendered a judgment in favor of the plaintiff and against the defendant in the sum of $200. The action was to recover for money loaned.

There are four determinations specified as grounds of appeal. The first is that the court erred in refusing to direct a verdict in favor of the defendant, and the second is that the court erred in finding for the plaintiff in that no competent proof of the loan to the defendant was offered. Both of these specifications amount to the same thing, namely, a charge that there is no evidence to sustain a verdict. The following testimony, which appears in the state of facts settled by the judge, negatives the grounds just mentioned:

“Plaintiff was duly sworn and testified that on February 24th, 1931, the defendant requested the loan of $200, stating that he needed the money and would return it in a reasonable time. Plaintiff together with the defendant drove to the bank and withdrew the $200 from his account in the bank and gave it to the defendant.”

That supplies the proof, believing which the court was justified in making the award. The fact that the testimony was contradicted by the defense is immaterial on these points.

The third specification is that “the court erred in not entering judgment for the defendant on the ground that the plaintiff failed to prove his case by a preponderance of the evidence,” and the fourth is that “the court erred in finding for .the plaintiff on the ground that the verdict was against the weight of evidence.” These points are not well taken on an appeal. Catterall v. Otis Co., 103 N. J. L. 381; 135 Atl. Rep. 865.

The judgment below will he affirmed.


author: Lawrence, C. C. J.

text:
    ELLA PREDMORE, PLAINTIFF, v. HARRY J. DICKERSON, DEFENDANT.
    Decided May 1st, 1933.
    Tor the rule, Cox (& WaTburg.

    Opposed, King & Vogt.

   Lawrence, C. C. J.

Plaintiff was injured in falling when attempting to descend the stairs from the second to the ground floor of a store and office building owned by defendant. She brought suit to recover alleging that the stairway as it left the landing at the top had been negligently constructed. and so maintained. The jury rendered a verdict in her favor at the trial. Under the rule taken out by defendant, it was argued that the negligence charged had not been shown, either as to faulty construction or maintenance, and that there was no proof, therefore, that plaintiff’s injuries had been due to defendant’s negligence. It appeared that the interior of the building had been remodeled by him sometime before the accident to plaintiff, and that the stairs had been rebuilt in the manner disclosed by the evidence in order to gain more space on the first floor. The method of construction adopted was said, by the architect who had the preparation of the plan and the supervision of the work, to be in common use and approved by experience.

Five or six of the steps at the top are constructed fan shape and wind sharply to the left on leaving the landing at the second floor. At the right side next to the wall there is no guard rail and the treads are approximately seventeen and one-half inches wide, while on the left they diminish to a width of two or three inches, where there is a newelpost placed at the end of a balustrade on the landing running back to the wall. The steps at the narrow side provide no adequate footing and are obviously unsafe for use, although the newel is so placed that anyone coming out of the adjoining office with the intention of descending would, not unnaturally, place the left hand on the top, since the exit door of the office is. practically opposite the post.

Mrs. Predmore, who is an elderly woman and wears glasses, on coming out of the office, where she had been on business, at the time of the accident, took two or three steps across the landing, found herself next to the newelpost, placed her left hand on the top for support and in putting her foot down on the narrow part of the first tread fell, because of its insufficient width, and was injured. It is to be observed that had she undertaken to descend at the right side of the stairway, as she had ascended, she would have found safe footing, and, in the exercise of due care, would not have fallen.

There was testimony at the trial, offered in behalf of defendant, that the method of construction of the stairway was in common use and approved by experience, and that the particular design was made necessary by the structural conditions existing at the time the building was remodeled. Plaintiff, on the other hand, offered no evidence, beyond the description of the stairway and the fact that she had fallen, thus leaving the case without adequate proof, upon which the verdict in her favor could be supported, that the design at the top was such as a reasonably careful judgment would disapprove as likely to cause accidents to those having lawful occasion to use the stairway. Traphagen v. Erie Railroad Co., 73 N. J. L. 759, 761; 64 Atl. Rep. 1072; Feil v. West Jersey and Seashore Railroad Co., 77 N. J. L. 502; 72 Atl. Rep. 362; Kingsley v. Delaware, Lackawanna and Western Railroad Co., 81 N. J. L. 536; 80 Atl. Rep. 327.

In view of this state of the evidence, it would seem, under the rule laid down in the cases cited that the jury was not justified in finding the issue of negligent construction and maintenance against defendant. The rule to show cause will be made absolute.


text:
    MILDRED NICHOLAS, PLAINTIFF-RESPONDENT, v. INDEPENDENCE INDEMNITY COMPANY, A CORPORATION, DEFENDANT-APPELLANT. MILDRED NICHOLAS, PLAINTIFF-RESPONDENT, v. INDEPENDENCE INDEMNITY COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided May 2, 1933.

      Before Brogan, Chief Justice, and Justices Teenchaed and Case.
    For the appellant, Holm-wood & Creighton (William E. Holm-wood, of counsel; La-wrence R. Daly, on the brief).
    For the respondent, Oreen •& Creen (Ira J. Katchen, of counsel and Ira J. Katchen, on the brief).
   Per Curiam.

These are actions against the defendant insurance company who insured Minahan Brothers, the owners of a truck the operation of which by one Eamsauer resulted in the accident with which we are concerned in the present suits.

The plaintiff herein, prior to the institution of the present suits had recovered, in suits instituted by her (one for personal injuries and the other for property damages, and tried together), damages against Eamsauer, a defendant therein, but in such suits had failed to recover against Minahan Brothers, also a defendant, judgments in their favor being entered.

Dpon the return of executions against Eamsauer unsatisfied the present actions were brought (and tried together) against the Independence Indemnity Company on the policy of insurance issued by it to Minahan Brothers.

The District Court judge, sitting without a jury, rendered judgments for the plaintiff and against the defendant from which the latter appeals.

The policy contained the usual clause as to liability when the car was used by another “with the permission of the assured.”

The appellant contends that the court erred in finding that the operator of the assured’s automobile had permission to operate it at the time of the accident in question.

That contention we think to be well grounded.

By consent the testimony taken in the earlier trial was admitted on behalf of the defendant. That testimony, as well as the testimony taken in the present trial, fails to show that Bamsauer had permission.

On the contrary we think it shows that he had not. After a certain contracting job had been finished Bamsauer was told by his employer Minahan Brothers, the owners of the truck, to take it to his home and keep it in the yard until another job was ready. He took it out at the time of the accident for his own purpose of removing rubbish from his yard. Bamsauer at the original trial testified specifically that he did not have permission to use the truck; that the yard was a “big yard” and had no garage thereon. At the present trial he testified that he was directed to keep the truck on the premises; that there was some rubbish in the yard and in order to take care of the truck, he used the truck in carrying off some of the rubbish, and it was on this trip that the accident happened. We think that such evidence did not show permission to use the truck on that occasion.

The plaintiff argues that the defendant is estopped from denying the protection of its policy to the driver of the automobile of its assured because of the alleged general appearance of its attorneys for the owner and driver.

We think the record fails to support that contention. The plaintiff relies upon the case of Horn v. Commonwealth Casualty Co., 105 N. J. L. 616; 147 Atl. Rep. 483. But there the facts were quite different. There the insurance company defended the suit growing out of the accident over a period of years. Here in the trial of the original actions the counsel for the insurance company denied that they represented Bamsauer. They so stated to the court and refused to undertake Bamsauer’s defense. This was made very clear to the .trial judge and the court expressly recognized that Bamsauer was not represented.

The judgment below will be reversed.


text:
    DAVID BROWN, PLAINTIFF-APPELLEE, v. COAST CITIES RAILWAY COMPANY, A BODY CORPORATE, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided May 2, 1933.
    Before Bkogan, Chief Justice, and Justices Tkenchard and Case.
    For the appellant, Cook ■& Stout (William J. O’Hagen, of counsel).
    For the appellee, Lillian Broder-Levington (Isaiah Mat-lack, of counsel).
   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff rendered by the judge sitting without a jury in the District Court.

Plaintiff’s testimony was that he was a passenger in the defendant’s bus; that the driver took his hand off the wheel and was counting his tickets; that while so doing the bus crashed into an automobile which was parked on the right-hand side of the road; that the plaintiff, who was sitting near the front, undertook to brace himself in his seat to avoid injury; that in the collision his knee and his back was injured; that he immediately complained to the driver and to the superintendent of the company at the bus terminal; that he was treated first by a doctor of the company’s selection, and later by physicians of his own selection and in hospitals; that he lost his job as a bntler and np until quite recently he was not able to earn any money at that or any other employment.

The defendant argues that there was no evidence of negligence of the defendant, and that the judge erred in rendering judgment for the plaintiff. But we think that the evidence amply supported the allegation of negligence and the judgment which was rendered.

The only other point is that the judge erred in admitting the testimony of Dr. Vallapiano, who had treated the plaintiff for nine days at the Monmouth Memorial Hospital, after a thorough examination. The question was: “Could the

plaintiff have fooled you as to the condition of either his knee or his back?” The answer was: “The plaintiff could not have fooled me with reference to either his knee or his back.” To this no exception seems to have been taken, and moreover the question and answer seem to have been stricken out by the trial judge. But if we are wrong in our interpretation of the record, and if there was any technical error here, it was certainly harmless in view of the ample, and, as we see it, uncontradicted testimony respecting the plaintiff’s injuries.

The judgment will be affirmed, with costs.


text:
    EDWIN H. BALLINGER, PLAINTIFF-APPELLEE, v. CITY ATHLETIC CLUB, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided May 2, 1933.
    Before Justices Trenchard, Case and Brogan.

      For the defendant-appellant, Patrick H. Ilarding.

    For the plaintiff-appellee, W. Louis Bossle.

   Per Curiam.

This is an appeal from a judgment of the Camden City District Court in favor of the plaintiff below for $150 and costs, the case having been tried before the judge sitting without a jury.

The City Athletic Club (the defendant below) was in process of organization. The plaintiff was solicited to become a charter member and signed a subscription contract. That subscription contract called for payment of “an entrance fee of one hundred and fifty dollars.” That he paid, and the contract was accepted by the club. The subscription contract also provided that the “yearly dues will be one hundred dollars.” The contract also provided that “this membership is limited,” and “payment of all dues on this membership is suspended until formal opening of the clubhouse.” As we have pointed out that subscription contract was accepted, the $150 was paid and then before the clubhouse was completed and before the club proceeded to function, the plaintiff received a letter from the club as follows:

“Owing to the prevailing conditions the trustees of the City Athletic Club have ordered to temporarily reduce the entrance fee for general membership from $150 to $50 and the dues from $100 to $50 and have made this order retroactive to all past transactions. You have paid $150 for a general membership and we are this day crediting your account with $100 which pays two years’ dues in advance.”

The theory of the plaintiff’s suit was that this was a breach of the contract to the plaintiff’s damage $150. The judge so found, and we think rightly.

The judgment below will be affirmed, with costs.


text:
    ERASMO ALCAMO, PLAINTIFF-RESPONDENT, v. MOTORISTS CASUALTY INSURANCE COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided May 3, 1933.
    Before Justices Tbenchabd, Case and Bkouan.
    For the plaintiff-respondent, Philip Insabella (William V. Rafferty, of counsel).
    For the defendant-appellant, Green & Green (David Green, of counsel).
   Per Curiam.

This is an appeal from a judgment entered after a jury had returned a verdict in favor of the plaintiff and against the defendant in the amount of four hundred and fifty ($450) dollars. These are the germane facts of the case:

The plaintiff, Erasmo Alcamo, owner of a Ford automobile truck, applied for membership in the Motor Club of New Jersey on July 3d, 1931. Membership in this association carried with it, as one of the benefits, a policy of insurance in the defendant company, upon payment of an additional fee which covered the cost of such insurance. The receipt given him, upon making his payment, provided: “This application is not binding upon the company until the policy is actually issued * * There is a further recital in this receipt, printed in red ink, as follows: “No agent has the authority to change the above terms or make any statements verbal or in writing, other than those embodied in literature.”

The policy of insurance itself is printed as an exhibit in the state of the case and has this provision: “The term of this policy begins twelve o’clock noon, July 7th, 1931.” These several dates are material.

On July 4th, 1931, the plaintiff’s car collided with an automobile owned by a man named Becht. The plaintiff retained Samuel Green, a member of the firm of Green & Green, practicing attorneys, who also are counsel for the Motorists Casualty Insurance Company and for the Motor Club of New Jersey as well, to represent him in a suit at law to recover damages against the said Becht. The result of that trial was an affirmative judgment against Alcamo and he brings this suit against the defendant below to recover the amount of that judgment on the policy issued by this defendant.

The receipt mentioned above, the membership certificate in the Motor Club, as well as the policy of insurance, were all offered in evidence and appear as exhibits in this case.

Motions for nonsuit and a direction of verdict were denied and the court submitted these facts to the jury which resulted in a judgment in favor of the plaintiff against the defendant in the above stated sum.

Several reasons are assigned for reversal by the appellant, insurance company, which need not be gone into here. Upon what theory of law the District Court judge submitted this case to the jury is not clear. These parties had contracted, one with the other, in writing, and in terms so clear as to be unmistakable.

The receipt given plaintiff when the application for membership was signed particularly states, “the application is not binding until the policy is issued.” Membership in the club was issued and dated July 7th, 1931. The policy of insurance in the defendant corporation was likewise issued in due course and dated July 7th, 1931. The accident for which the plaintiff seeks to hold the defendant company answerable occurred on July 4th, 1931, three days previous to the issuance of the policy of insurance and one day following the signing of the application, which was on the evening of July 3d. These exhibits constitute the agreement between these parties. The language of the contract cannot be strained into any such meaning as plaintiff sought to impress upon it. The contract itself cannot be changed by the statements made by a representative. When any such testimony was allowed it was error. Naumberg v. Young, 44 N. J. L. 331.

The judgment will be reversed, with costs.


text:
    CARL MAU, PLAINTIFF-APPELLANT, v. VULCAN BUILDING AND LOAN ASSOCIATION, A CORPORATION, DEFENDANT-RESPONDENT.
    Submitted October term, 1932
    Decided May 3, 1933.
    Before Justices Teenchard, Case and Brogan.
    Eor the defendant-respondent, Joseph Steiner.

    Eor the plaintiff-appellant, Bennett <& Hanschha.

   Per Curiam.

The plaintiff was a real estate broker who negotiated a lease of property belonging to the defendant corporation with one Miller as tenant. There was a written agreement between the parties as to the leasing, the pertinent language of which is as follows: "On a lease for less than one year, or from month to month, five per cent, of the total sum of one year’s rental, and five per cent, of a renewal thereof.” It is not disputed that the plaintiff obtained a tenant, Miller, and that a lease was negotiated, dated October 24th, 1928, for the term of one year. There was a further provision that if the plaintiff should succeed in selling the property to Miller he was to receive a commission of three and a half per cent, of the purchase price.

The tenant remained in possession of the property for the first year and we assume that the plaintiff received his commission. The tenant, however, remained an additional two years although he did not sign a renewal of the lease but stayed as a month to month tenant. On November 1st, 1931, the premises were sold to Miller. Plaintiff, learning this, demanded his commission from the defendant which it refused to pay. Suit was brought resulting in a verdict for the defendant, the court holding that the lease was not renewed and that the facts in the case were not sufficient to constitute a sale.

Plaintiff appeals on three grounds: First, regarding the admission of oral testimony concerning the sale of the premises; secondly, error at law regarding the renewal of the lease; third, that it was a mistake to give judgment in favor of the defendant and against this plaintiff.

We think all three grounds of appeal are well taken.

As to the sale of the premises, the lease provides that the defendant pay commission to the plaintiff if the leased premises should be sold to Miller; that the sale would be made through the plaintiff.

The premises were sold, the purchaser, Miller, giving back a purchase-money mortgage for the full contract price, namely, $12,000. It appears, however, that Miller and the defendant agreed between themselves, and orally, so far as the record shows, that the sale was contingent upon Miller obtaining by a given date after the conveyance of title the sum of $1,000 which sum would be applied on account of the purchase price and that Miller having failed to obtain the $1,000 did re-convey the property to the defendant, building and loan association. The court admitted this evidence. This, we think, was clearly error. Elwood v. Smith, 104 N. J. L. 248; 139 Atl. Rep. 900. The plaintiff’s commission was earned and his right thereto unassailable under the agreement immediately upon Miller buying the property from the defendant, and he thereupon became entitled to the commission in the sum of $420.

Secondly, as to the leasing, the plaintiff became entitled to five per cent, of any and all rent paid under this proviso: “On a lease for less than one year, or from month to month, five per cent, on the total sum of one year’s rental, and five per cent, of a renewal thereof.” This clause clearly means that it was the intention of the defendant and so understood by the- plaintiff that a five per cent, commission would be paid on the rent collected, whether the tenancy was by lease renewal from year to year or by a continuance of the tenancy from month to month, even though it ran over a period, as in this case, of two years.

It follows, therefore, that the third point was well taken, namely, that it was error to have entered judgment for the defendant, and since the findings of the trial judge are fully stated in the case as settled by him, those findings are before us with all the effect of a special verdict.

Judgment for the plaintiff will be entered in the amount claimed, providing the plaintiff will waive the excess over and above the statutory limitation as to amount in the District Court since the interest, properly chargeable, will bring the sum total over the amount of $500. Smith v. Ocean Castle, 59 N. J. L. 198; 35 Atl. Rep. 917; Sullivan v. Visconti, 68 N. J. L. 543; 53 Atl. Rep. 598; Elwood v. Smith, supra.

The judgment of the District Court is reversed with a direction to that court to enter judgment in accordance with these findings.


text:
    ROGER BARBATO, INFANT, BY HIS NEXT FRIEND, JOSEPH BARBATO, PLAINTIFF-RESPONDENT, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided May 3, 1933.
    Before Justices Trenchard, Case and Brogan.
    Por the defendant-appellant, Evans, Smith & Evans.

    Por the plaintiff-respondent, John A. Gelentano (Paul Bittenberg, of counsel).
   Per Curiam.

This is an appeal from a judgment entered in favor of the plaintiff and against the defendant in the sum of $300 in the Passaic District Court.

The plaintiff was the owner of a policy of insurance issued to him by the Prudential Insurance Company of America. The contract contained a clause under which the insured, upon proof of total and permanent disability, became entitled to the sum of $50 per month for the rest of his life. Proof of disability under the policy was stated to mean physical or mental incapacity to such an extent that the insured is rendered wholly continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value during the remainder of his life. There are other provisions regarding age, &c., which are not pertinent here.

There is a further provision in the policy of insurance known as "supplementary provisions as to total and permanent disability,” which provides substantially that if due proof of total and permanent disability has not been previously furnished and if the insured shall furnish due proof that he has been totally disabled, either physically or mentally to such an extent that he was rendered wholly and continuously unable to engage in any occupation or perform any work for any kind of compensation of financial value during a period of ninety consecutive days * * * such disability shall be presumed to be permanent and the company will upon receipt of such proof grant the disability benefits provided, &e., * * *. For this additional benefit an additional premium was paid by the plaintiff.

The plaintiff was a laborer and a stick of lumber fell upon his left hand. Thereafter he was unable -to use his hand for a period, according to his testimony, of seven months. The injury was to the ulnar nerves.

The court, sitting without a jury, found in favor of the plaintiff and judgment was entered for the sum of $300.

The appellant argues two points. First, that the proof offered failed to establish a cause of action and, second, that the court should have granted appellant’s motion for nonsuit. Neither point, we think, is well taken.

Appellant argues that the proper proofs of loss were not filed, but we think that proofs other than those filed were, if required, waived under the circumstances. The insurance company’s doctor was in constant attendance and the insurance company was in possession of all the facts which it was possible for the doctor to gather.

In arguing the first point, the appellant points out that the medical testimony in the case was against the plaintiff in that the reports from these doctors indicated that the plaintiff could have resumed work prior to the expiration of the ninety day period and, furthermore, that one medical expert testified, first, that the disability, wasn’t permanent and, secondly, that the plaintiff should have recovered from his injuries before the expiration of the ninety day period. That proof in favor of the appellant’s position, taken alone, is persuasive, but the plaintiff testified that after this accident he as unable to use his arm for seven months and that during that seven months’ period he was in fact incapacitated. This of course creates a fact issue and the court, sitting without a jury, determined that fact issue in favor of the plaintiff. Due proof, after all, is not measured by the formality with which it is presented and the testimony of the plaintiff although self-serving as against the expert testimony to the contrary created a fact issue which, being determined in favor of the plaintiff, is well within the rule governing matters of this kind and will not be disturbed on appeal. Larned v. MacCarthy, 85 N. J. L. 589; 90 Atl. Rep. 272.

The second point that the respondent here should have been nonsuited in the court below, manifestly, has no merit. There were facts in the case entitling the plaintiff below to a determination as to whether or not the permanent disability mentioned in the policy existed for the period claimed.

There was no error in refusing to nonsuit.

The judgment therefore will be affirmed, with costs.


text:
    EDWARD ROFF, PLAINTIFF-APPELLEE, v. WEST HOBOKEN BUILDING AND LOAN ASSOCIATION, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided May 2, 1933.

      Before Beogan, Chief Justice, and Justices Teenchaed and Case.
    For the appellant, Hopkins, Vorburger •& Dickson (Arthur L. Dickson, of counsel).
    For the appellee, Rosen •& Rosen (Nicholas 8. Schloeder, of counsel).
   Per Curiam.

This is the appeal of the defendant building and loan association from a judgment of the District Court of the First Judicial District of the county of Hudson in favor of the plaintiff, rendered by the judge sitting without a jury.

It appears that the plaintiff had a loan from the defendant to secure which he gave a bond and mortgage in the usual building and loan form and thereby had agreed to pay a monthly premium of fifty cents per share on each, of the, shares bid for on the loan. The loan was for $5,600. After the loan had been in effect about one year plaintiff desired to pay off the loan and did pay it off with the consent of the defendant. But as a necessary prerequisite the plaintiff was required to pay, and did pay under protest, the sum of $168 as required by article 20, section 6 of the defendant’s constitution made a part of the contract, which provided that loans might be paid and shares released before the maturity date by paying to the association the face value of the mortgage representing such loan, with interest, and in addition a premium charge of three per centum on the face value of any bond and mortgage loan if paid before the third year, and one percentum of the withdrawal value of any bond and mortgage loan repaid before maturity.

The plaintiff in his state of demand averred that the charge of $168 (which he paid under protest and the return of which - he had demanded and had been refused) was a “usurious premium or charge” and so claimed damages for the amount of such payment with interest.

The trial judge took that view and accordingly gave plaintiff a judgment for $178.08 from which the defendant appeals.

The appellant contends that the bond and mortgage constituted a binding contract of which the constitution formed a part; that the charge of $168 was not usurious, but a valid charge, and that'therefore the judgment should be reversed.

We believe the appellant’s contention is sound.

The constitution of the association by the express words of the bond was made a part thereof.

The Building and Loan Associations law provides in the 1925 revision (Pamph. L., p. 195, § 16), that any such association may take from its members a premium for priority or privilege of loan, and that no premium so taken for such purposes shall be deemed usurious, and that it shall be lawful for the rate of said premium to be agreed upon, instead of being determined by auction to the highest bidder. The plaintiff and the association agreed upon the premium of fifty cents per share per month. That was lawful. Then when the plaintiff sought to pay off his mortgage the defendant would not have been obliged to acquiesce except for the provision of its constitution which we have quoted.

We believe that neither that provision in the constitution nor the actual application of it by the association in the present case was usurious or beyond its powers'.

The judgment will be reversed.


text:
    HENRY A. BOCK, PLAINTIFF-RESPONDENT, v. GABRIEL FEIGELSON, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided May 3, 1933.

      Before Justices Then chard, Case and Brogan.
    Por the defendant-appellant, George H. Rosenstein.

    Por the plaintiff-respondent, Brenner & Eresch (Samuel E. Eresch, of counsel).'
   Per Curiam.

On April 3d, 1931, the plaintiff below entered into a contract with Peigelson Brothers to sell a stationery store in Staten Island for the sum of $17,500. This contract signed by Henry A. Bock, as vendor, Peigelson Brothers and Sam Peigelson, as vendees, called for a down payment of $500. The defendant below, who is the appellant here, Gabriel Peigelson, was not a member of the vendee group, but was the maker of a check for $500 which was given to the plaintiff as the initial payment. Bock endorsed the check, presented it at the bank and found that payment had been stopped. Suit was brought upon the check and judgment for the full amount recovered by the plaintiff.

Peigelson appeals on two grounds. First, that there was lack of'consideration as to him and, secondly, breach of guaranty on the part of the respondent. There is no merit to either point. Certainly it was sufficient consideration that the plaintiff obligated himself to sell his business. When the defendant below gave his check to the plaintiff, the plaintiff • was bound to carry out the terms of the contract and sell his business to Feigelson Brothers for the agreed sum. The appellant cannot say that there was no consideration for that payment. That question has been disposed of, and adversely to his contention, many times. O’Toole v. O’Toole, 10 N. J. Mis. R. 159; 158 Atl. Rep. 337; Penbrook Trust Co. v. Wiegand & Co., 100 N. J. L. 353; 126 Atl. Rep. 404.

The second point that there was a failure of respondent’s guaranty is also without merit The agreement between the parties provides, “the seller also guarantees the present lease to July 1st, 1934, at $90.50 per month with an option to renew for five years at the same rent.” It was admitted by the plaintiff that the lease he had at the time of the agreement contained no provision for a five-year renewal option. This failure on the part of the plaintiff would not avail the defendant. The only one that could complain about that breach would be Feigelson Brothers, who were the purchasers. Then, too, this covenant in the agreement was a condition subsequent. The court, sitting without a jury, found that the plaintiff’s covenant was to obtain a five-year lease when desired. It is apparent that the plaintiff was not afforded much opportunity to obtain this renewal since the check in question, dated April 3d, 1931, was, when presented on April 6th, 1931, dishonored.

The judgment of the court below will be affirmed, with costs.


text:
    NIAGARA REALTY COMPANY, A CORPORATION, PLAINTIFF, v. CONSOLIDATED INDEMNITY AND INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Submitted October term, 1932
    Decided May 5, 1933.
    Before Bbogan, Chief Justice, and Justices Teenchakd and Case.
    For the rule, Collins & Corbin (Edward A. Marhley, of counsel).
    Contra, Israel B. Greene.

   Per Curiam.

This is the defendant’s rule to show cause why plaintiff’s default judgment should not be opened.

The judgment was entered in a suit on a bond given by the defendant as surety in an attachment suit begun by the plaintiff against one Michael which was prosecuted to a judgment for $3,914 and costs. That judgment not being paid the plaintiff brought this suit on the bond and this default judgment for $4,015.85 and costs was taken. The bond given to the plaintiff was conditioned as follows:

“Now, therefore, the condition of this obligation is such that if judgment should be rendered against the defendant in the attachment suit in which this bond is given, then the defendant will return the property heretofore attached, and this obligation shall be void, otherwise to remain in full force and virtue, provided, however, that the liability of the surety herein shall not exceed the sum of eight thousand dollars.”

That bond seems to have been given pursuant to paragraph 2 of section 17 of the Attachment act. Comp. Stat., p. 141. It seems not to have been given pursuant either to paragraphs 1 or 3 or 4; it was not given to the sheriff; the procedure outlined in paragraph 3 was not followed; it was not conditioned as outlined in paragraph 4.

On this application to open the judgment it may be assumed from the proof that the defendant was surprised by the judgment entered against it by default.

The argument requiring consideration relates to' the question- of a meritorious defense. Such part of the argument as has to do with the pendency of the áppeal of Michael in the original case requires no consideration now, because that appeal has been decided by an affirmance of the judgment by the Court of Errors and Appeals. Niagara Realty Co. v. Michael, 110 N. J. L. 518.

There remains for consideration the contention that under the condition of the bond the defendant is liable on the judgment in attachment for the value of the goods released, and not for the money judgment.

We have pointed out that the complaint in the action at bar has as its subject-matter the bond given to the plaintiff by the defendant as surety, which bond was filed and approved by the court for the purpose of releasing the goods.

Considering the language of the bond and the statute there seems to be sufficient support for the contention that, under the bond in question, the defendant is only liable for the value of the goods released, to at least entitle the defendant to its day in court (and we need now decide no more). The proceedings and judgment by default now sought to be opened were ex parte, and further there was no affidavit in support of the default judgment as to the value of the property attached and later released when‘the bond of the defendant surety was approved and filed. In support of the application to open the judgment there was presented evidence tending to show that the value of the goods released was not more than $400.

Upon the whole we think there has been a sufficient showing to justify opening the judgment and allowing the defendant to answer, and it will be so ordered. The plaintiff is entitled to its costs on the motion.


author: Donges, J.

text:
    DONALD W. BLACK, PLAINTIFF, v. JAMES H. EMACK AND SUSAN C. EMACK, DEFENDANTS.
    Decided May 9, 1933.
    For the motion, George M. Stevens.

      Contra, Wilfred B. Wolcott.

   Donges, J.

This is a motion to quash a writ of attachment. The writ was tested November 30th, 1926, and was served December 4th, 1926, by attaching the lands of defendants, and an appraisal was made. On December 13th, 1926, an order for publication and appointing an auditor was signed. Nothing further has been done. Defendant moves to quash for lack of prosecution and failure to comply with the statute. Section 21 provides “at the expiration of two months from the return of the writ, he [the auditor] shall make and file a report of the amounts so ascertained.” Admittedly, no report has been filed.

Section 35 provides that where a writ is issued and nothing further done, the writ shall he void after twenty years. Plaintiff claims that under this section he is entitled to bind the property attached for twenty years before prosecuting his action.

Section 21 above quoted clearly provides that upon the return of the writ an auditor shall be appointed, and this was done; that at the expiration of two months he shall make and file a report, and this was not done. Over six years have been allowed to elapse without any move to press plaintiff’s claim. In Little v. Long, 93 N. J. L. 99; 107 Atl. Rep. 412, it was said that attachment “proceedings are statutory and out of the course of the common law, and result in taking the property of a defendant in an ex parte proceeding, in invitum, and therefore must be strictly pursued.”

I conclude that there has been a failure of strict compliance with the statute and that plaintiff has shown lack of diligence in prosecuting his action, which should result in quashing the writ!


author: Stein, V. C.

text:
    Mary E. Sullivan, complainant, v. Securities Company of the Oranges, a corporation of New Jersey, et al., defendants.
    [Decided May 10th, 1933.]

      Mr. Daniel A. Dugan, for the complainant.

      Mr. John A. McKenna, for the West Orange Trust Company in liquidation by William H. Kelly, &c.
   Stein, V. C.

The bill of complaint is brought to foreclose a mortgage given by the Securities Company of the Oranges, held by the complainant, for $45,000 on property in the town of West Orange, a portion of which is owned by the West Orange Trust Company. The defendant West Orange Trust Company, in liquidation by William H. Kelly, commissioner of banking and insurance, in its answer sets up a release of part of the mortgaged premises. Complainant’s proof is that there is due for the: principal on her mortgage the sum of $44,000, plus interest to date of $3,890. The only proof before me of the alleged release is a certified copy of the record thereof. The release of mortgage covers premises of greater value than the remaining portion of the mortgaged premises. The release recites the consideration of $1 and purports to be acknowledged before M. D. Hayward, notary public, August 15th, 1929. Hayward is dead. The complainant denies that she was ever requested to, or did, execute this release. Walter D. Van Kiper, who was, at the time of the supposed execution of the release, the president of the West Orange Trust Company, as well as the president of the Securities Company of the Oranges, testified that he, too, had no knowledge concerning the execution of the release and that he never saw the original. He recalls that there was a discussion concerning the release and says that a search in his office by himself and others in his employ resulted in a failure to find the original document. Alexander Kranke, in charge of the West Orange Trust Company for the commissioner of banking and insurance, examined the records of the bank in search of the release in vain. Eoger A. Williams, secretary and treasurer of the securities company, testified to like effect.

The legal inference to be drawn from this testimony leads me to the conclusion that the signature of the complainant to the release of record was forged.

There will be a decree for the complainant for principal and interest in the sum of $47,890.


author: Backes, V. C.

text:
    William A. Stevens, attorney-general of New Jersey, complainant, v. The Atlantic and Security Mutual Association, Consolidated, an association of New Jersey, defendant.
    [Decided May 24th, 1933.]

      Mr. Richard G. Plumer, assistant attorney-general, for the complainant.

      Mr. George A. Douglas, for the defendant.
   Backes, V. C.

The bill prays for a subpoena commanding the defendant to appear before the attorney-general to make discovery as provided by the Securities act alleging that the defendant refused to make discovery after subpoena issued by him. An injunction, until, is also sought. The defendant resists, contending that as a corporation formed under the non-pecuniary Corporation act it is not amenable, and, consequently, that court is without jurisdiction. How the defendant came into being and its functions are immaterial at this juncture of the proceeding. In Katzenbach, Attorney-General, v. Tomadelli Electronic Co., 104 N. J. Eq. 217; 144 Atl. Rep. 920, the court of errors and appeals adopted the view of this court. It was held that it rests absolutely with the attorney-general when and whether an investigation should be made and that he need not in the first instance allege and establish the guilt of the defendant of fraudulent sales and that that may come on a supplemental bill for a permanent injunction after discovery by the defendant. It was there pointed out that all the attorney-general need allege, to procure the court’s aid, is that it “appears” to him that the defendant has, is or is about to engage in the sale of, &c., or that he believes it to be in the public interest that an investigation should be made.

A subpoena will issue. An injunction will go on a further showing that the subpoena is disobeyed and proceedings for contempt will be entertained.


author: Eldredge, C. C. J.

text:
    ISRAEL GREENBERG, PLAINTIFF, v. JOHN H. HENDRICKSON, DEFENDANT.
    Decided May 5, 1933.
    Before Henry H. Eldeedge, Circuit Court judge.
    For the plaintiff, Stanley K. Heilbron.

    For the defendant, John Meirs.

   Eldredge, C. C. J.

The first count of the complaint in the above entitled suit alleges that on November 15th, 1930, one Harry W. Mount was indebted to the plaintiff in the sum of $2,710, and to secure the payment of that amount, he executed and delivered to the plaintiff a chattel mortgage on his goods and chattels located in Hamilton township, Mercer county. This mortgage was duly acknowledged and recorded, and among the chattels included in the mortgage were forrr Holstein cows alleged to be of the value of $1,000. The complaint further alleges that on November 19th, 1930, the defendant in the present suit, with full notice and knowledge of the plaintiff’s mortgage, unlawfully and maliciously carried away the Holstein cows and converted them to his own use, to the great damage of the plaintiff. He then demands the sum of $1,000 damages.

The second count alleges ownership in the cows on the part of the plaintiff, their subsequent conversion by the defendant, and demand the same amount of damages.

The answer sets up six separate defenses, all of which except the first are attacked by the plaintiff.

The second defense alleges that no demand in writing was made upon the defendant prior to the commencement of the action.

The third defense alleges a general authority given by the mortgagee (plaintiff) to the mortgagor to sell, and states that thereunder numerous sales have ben made.

The fourth alleges that with the knowledge and consent of the plaintiff, the mortgagor had made such sales and that the plaintiff, knowing and/or being party to such sales or some of them, had suffered, permitted and allowed the mortgagor to sell the goods and chattels covered by the mortgage.

The fifth defense alleges that the plaintiff had consented to and been a party to such sales of goods covered by the mortgage in an amount i*n excess of the whole amount claimed to have been due, which amount must be credited as payment of such alleged chattel mortgage.

The sixth defense alleges that the mortgagor had, on December 20th, 1932, filed a petition in bankruptcy and on that day had been adjudicated a bankrupt, whereby exclusive jurisdiction and control over all property and estate of the bankrupt and over all property owned and sold by him within four months prior to the adjudication became vested in the United States District Court.

Considering these defenses in their order, we think that the second defense must stand if amended as suggested in the brief for the defendant. “A purchaser of mortgaged property from a mortgagor acquires the right of the mortgagor but no greater rights * * *. He has a legal title to the property and is entitled to possession until the right is cut off either by judicial foreclosure or by sale in accordance with the terms of the mortgage.” 11 C. J. 692. Further, it has been held that where a mortgagee provides that the mortgagor shall not sell or reserves the right to take possession if a sale is made without his consent, a purchaser with notice- who converts the property to his own use is liable to conversion, and demand is not necessary, but where a sale of itself does not constitute a conversion and the purchaser is therefore lawfully in possession of the property and does not act inimical to the rights of the mortgagee, he is not liable for conversion without a demand and refusal to deliver. Mausert v. Mutual Distributing Co., 92 N. J. L. 190; 104 Atl. Rep. 203. Other defenses having alleged consent on the part of the mortgagee, we think that this defense should not be stricken, in order that by proof of the transaction it may be determined whether or not notice was required.

The third and fourth defenses allege that the mortgagee had given either his express or implied consent to the sale of the cows in question and other articles covered by the said mortgage. These defenses appear to the court to be substantial. There may be in them what counsel for the plaintiff calls legal conclusions, but if so, such conclusions are mere surplusage and the two defenses may stand.

The fifth defense should be stricken, except so far as it alleges that the defendant was a purchaser for value. This defense appears to the court to involve the marshaling of assets, an equitable doctrine furnishing no defense to the present suit.

The sixth defense may be stricken. This suit is not against the mortgagor, the bankrupt referred to, but is against an alleged purchaser from him. Consequently, the mortgagor bankrupt no longer has an interest which passed to his trustee, and his bankruptcy is not here involved.

An order will be made in accordance with the above stated views.


text:
    THOMAS K. NICKOLOPULOS, PLAINTIFF-RESPONDENT, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided May 13, 1933.
    Before Justices Trenchaed, Case and Brogan.
    Bor the appellant, Collins & Corbin (Edward A. Marlcley, of counsel).
    Bor the respondent, Lum, Tamblyn & Colyer (James Raymond Berry, of counsel).
   Per Curiam.

This appeal brings up for review a judgment for $500 recovered by the plaintiff below. The following facts appear from the record.

The plaintiff was the owner of a contract of insurance which, besides insuring his life, contained a covenant that entitled him to the sum of $250 a month if he should become permanently and totally disabled. The disability clause within which the plaintiff contends he has made out a proper case is as follows: “Disability shall be deemed to be total when it is of such an extent that the insured is prevented thereby from engaging in any occupation or performing any work for compensation of financial value, and such total disability shall be presumed to be permanent when it is present and has existed continuously for not less than three months; * * It clearly appears that the plaintiff was wholly and permanently disabled sometime during the year 1929, suffering from a bone disease known as osteomyelitis. It is not disputed that he received compensation from the defendant corporation up to November, 1931, at which time the defendant stopped making payments; that the defendant didn’t make payments of $250 per month for November and December, 1931; hence this suit under the policy.

The plaintiff proved that he had been in the hospital during the greater part of the year 1929; had had several operations, his leg for a great part of that period being in a cast. In February, 1931, he went to another hospital, remaining until sometime in April of that year. It also appears that he left the hospital and went to the seashore thereafter, returning in November, 1931, at which time he was able to walk with the-aid of crutches.

There is no very substantial dispute about the facts in the case, the substance of the appeal being that the trial court, in charging the jury, said: “In order to recover for total disabilty, the plaintiff need not be so disabled as to prevent him from doing anything, even though the policy provides that the assured be prevented from performing any and every kind of business relating to his occupation. The word ‘prevented’ -as used in this particular policy must be taken in connection with the rest of the policy and taken to mean that the plaintiff must be unfitted for his usual duties and be hindered, and impeded in performing them.” These instructions by the court were clearly erroneous. The court was apparently following the doctrine laid down in Gross v. Commercial Casualty Insurance Co., 90 N. J. L. 594; 101 Atl. Rep. 169, which was a similar case but based on a differently worded policy. We are here concerned with the wording of the contract, quoted above, as to disability under which this plaintiff’s rights and the defendant’s liability must be determined. In the Gross case, disability was defined in the policy to mean being prevented from performing “any and every kind of business pertaining to his occupation.” In the instant case disability is defined in the policy to mean being prevented “from engaging in any occupation or performing any work for compensation of financial value.” It may well be that the plaintiff in this case could not perform any work for compensation of financial value. That of course was a question of fact, but the triers of the facts in this case were instructed by the court that disability meant, under this policy, being prevented from performing any and every kind of business relating to one’s occupation. This was not the contract between the parties and it was error to instruct the jury that it was.

The judgment will be reversed, with costs.


text:
    IRA KAPNER, PLAINTIFF-RESPONDENT, v. MILTON STRAUSS, DEFENDANT-APPELLANT. GERTRUDE KAPNER, PLAINTIFF-RESPONDENT, v. MILTON STRAUSS, DEFENDANT-APPELLANT.
    Argued May 3, 1933
    Decided May 15, 1933.
    Before Justices Parker and Perskie.
    For the appellant, David E. Feldman.

    For the respondents, David Green.

   Per Curiam.

These are two appeals from a District Court, in suits one by a married woman, the other by her husband per quod, based on the claim that the defendant Strauss, operating a taxicab, negligently backed it so as to strike and injure the female plaintiff, who was standing on the sidewalk at the corner of Broad street and Branford Place, in Newark. The cases were tried together, and at the original trial the jury found for the defendant. There were rules to show cause, and the verdicts were set aside and new trials ordered and had. At the second trials the court directed a verdict in favor of the plaintiffs as regarded the matter of liability, and left it to the jury merely to say how much damages should be awarded. The only point made on this appeal is that the court erred in so directing.

We think there was error in this direction. It is true that the testimony to show liability because of negligence was very strong, but it was not conclusive to the extent of justifying the court in taking that question from the jury.

The witness Brown testified: “[Defendant] was just about ready to pull out of his position and was backing into the curb a little more or less closer to the curb to get into a parallel line with the curb. The angle I would say was teu to twenty degrees as he manoeuvred; that slow motion of speed when the accident happened. Q. And you say he manoeuvred about a mile an hour? A. I would say the speed was just about as slow as you can go with a ear. Q. Did any part of the wheels go on the sidewalk? A. No, sir.--• Q. What part of the cab was overlapping the sidewalk? A. The fender and the back bumper.- How much of the car overlapped on the sidewalk? A. About half a foot or maybe a little more.”

The court in directing a verdict said in part: “If a taxicab backs up, part of it extending over the sidewalk, that taxicab as a matter of law is guilty of negligence.” Such a rule, unqualified as it is, disregards any possible explanations, and holds the driver of an automobile as bound, absolutely and at all events, to keep his car and all parts thereof at his peril from projecting over the mathematical curb line, no matter what the concomitant circumstances and the care with which in all other respects that car is operated; and makes him in effect an insurer of the safety of any person within the sidewalk line, no matter how close to the edge, in case of contact between the person and the car. We are not in accord with any such proposition; and are of opinion that while the act of backing a car in such wise as to trench on the sidewalk space is evidence of negligence, it is not per se negligence; and that where negligence is claimed, such evidence, like other evidence, should be considered by the jury in connection with all the relevant evidence in the ease on that point.

The judgments will be reversed, and the cases remanded for a new trial in conformity to the views herein expressed.


text:
    AUGUSTINE RODRIGUEZ, PLAINTIFF, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, AND THE WEST JERSEY AND SEASHORE RAIDROAD COMPANY, A CORPORATION, DEFENDANTS.
    Decided May 17, 1933.
    Before Henry H. Eldredge, Circuit Court Judge.
    For the plaintiff, James Mercer Davis.

    For the defendants, Starr, Summerill ■& Lloyd.

   Eldredge, C. C. J.

Counsel for the plaintiff in the above entitled suit propounded seventeen interrogatories to the defendants, to all or most of which an answer was refused. Upon argument, this court held that the first thirteen interrogatories should be answered, the fourteenth was held to be improper, and the fifteenth, sixteenth and seventeenth were held for further consideration. They are as follows:

“15. Did any servant of either of the defendants make report which concerned the plaintiff herein as of April 27th, 1932?

“16. If any report was made, by whom and to whom was such report made? Attach hereto copy of said report.

“17. If there were more than one report, attach copies of all reports.”

It appears to the court that the only purpose that could be served by the answer to these questions would be a possible use of the reports, if any were made, to impeach the testimony of the person making them should he be called as a witness. Answers to the first thirteen questions seem to cover every other feature of the plaintiff’s case for which such reports might be evidential. There must be some limit beyond which counsel cannot go in prying into his opponent’s ease, and it appears to the court that these questions go beyond that limit.

An order will be made requiring the defendant to answer the first thirteen questions and striking out the fourteenth, fifteenth, sixteenth and seventeenth questions.


author: Hartshorne, C. P. J.

text:
    Essex County Court of Common Pleas.
    JAMES BUCCI, PETITIONER-APPELLANT, v. KIRKPATRICK CONSTRUCTION COMPANY, INCORPORATED, A CORPORATION OF NEW JERSEY, RESPONDENT-APPELLEE. JAMES BUCCI, PETITIONER-APPELLANT, v. AUSTIN COMPANY, A CORPORATION, RESPONDENT-APPELLEE.
    Decided May 4, 1933.
    For the petitioner-appellant, David RosTcein.

    For the Kirkpatrick Construction Company, respondent-appellee, Henry M. Grosman.

    For the Austin Company, respondent-appellee, John A. Matthews.

   Hartshorne, C. P. J.

In both the above cases the same petitioner was injured in the same muscles of his back; first, on November 26th, 1928, while employed by the Kirkpatrick Construction Company, later, on June 17th, 1929, while employed by the Austin Company. Both by reason of the above and because the same questions of law were involvd in both cases, the same were heard together below and were argued together here on appeal.

The appeal is from the bureau’s dismissal of petitions for compensation for disabilty appearing subsequently to a previous award under section 21-f of the Substantive Workmen’s Compensation act of 1911. Such petitions were dismissed by the bureau on the grounds that (1) they were barred by previous compromise settlements entered into by petitioner and the respective respondents, and (2) the petitions were not filed within a year from the date when the compensation payments would have been completed had they, in fact, been paid week by week following the respective accidents, relying upon Harris v. International Motor Co., 9 N. J. Mis. R. 208; 153 Atl. Rep. 97. The first ground is now abandoned by respondents in view of the recent decision of this court in Boyko v. Federated Metals Corp., 11 N. J. Mis. R. 82; 164 Atl. Rep. 462.

In considering the validity of the second ground for dismissal of the petitions, a brief consideration of the facts is essential. In the Kirkpatrick case an award was made February 7th, 1931, for sixty and four-sevenths weeks which, if payment had been regularly made starting from the date of the accident, November 26th, 1928, would have made the payments run out on January 25th, 1930. The present petition was not filed until January 21st, 1932, more than a year after such payments would have expired had they been regularly paid as above, but slightly less than two years thereafter. At the time the present petition was filed, the section of the act under which same was filed provided: “An agreement for compensation may be modified at any time by a subsequent agreement, or a formal award reviewed within two years from the date when the injured person last received a payment upon the application of either party on the ground that the incapacity of the injured employe has subsequently increased * * Since this section applies to a change of incapacity arising subsequent to the time of injury, i. e., to a right here arising, as a matter of fact, subsequent to the adoption of the above amendment, and since it gives a present remedy, it might well appear applicable here, and without constitutional objection, since respondents’ rights in that regard could not possibly have vested in the past before the act was amended. Under such construction the petition is within time, even according to respondents’ construction of the Harris case.

But in Smith Manufacturing Co. v. Court of Common Pleas, 107 N. J. L. 38; 150 Atl. Rep. 771, the Supreme Court apparently took a different view of a similar section of the act as it then stood, though its language then differed somewhat from the present; and we consequently feel concluded by its reasoning even under such different wording.

Accordingly, we turn to the act as it existed when the accident occurred. Section 21-f then contained no limitation period in itself but was held, in the case of Smith Manufacturing Co. v. Court of Common Pleas, supra, to be limited by the provisions of section 23-h of the same act, limiting the filing of petitions to “within one year after the last payment of compensation.” Pamph. L. 1919, ch. 93, p. 211.

It will be seen immediately that the present petition was filed more than a year after the date when the previous compensation payments would have expired had they been regularly paid since the accident, but less than a year from the time the compensation settlement award was made, after which date, of course, the last payments were made in fact. Respondents thereupon rely upon Harris v. International Motor Co., supra. There the employer had made payment before it came due. Counting the year from the date of the last payment in fact, the filing of the petition considered in the Harris case was out of time. But, counting the year from the date the last payment should have been made, the petition was filed within time. The statute there considered (Pamph. L. 1918, ch. 149, § 5) similarly provided for the filing of the petition “within one year after the last payment of compensation.” The court there liberally construed the statute to hold the petition to be filed within time.

Respondent in the case at bar accordingly argues that the converse should apply; i. e., that where an employer has made payment, not too soon but belatedly, the period should be counted, as in the Harris case, from the time it should have been paid, not from the time it was paid in fact. But the present situation differs radically in law and common fairness from that in the Harris case. There the court liberally interpreted the words of the statute to meet a situation where the parties had acted contrary to the ordinary course of human events, in making payment before the due date, a situation which it was hardly to be expected that the words of the statute would clearly cover. Here, on the contrary, the employer has not made payment steadily since the accident, as it has now been found he should have done, but has made same only after being required by the court to do so, a very normal situation. To this situation the words of the statute directly apply, that the period shall be counted as starting from “the last payment of compensation.” To apply the statute in the manner contended by the respondent would permit the employer by adroit adjournment, and failure to do what it is now found he should have done, to bar petitioner of his statutory rights, in the- very face of the words of the statute, a result repugnant to every principle of justice. See, also, Palm, Construction Co. v. Bahr, 10 N. J. Mis. R. 756; 160 Atl. Rep. 886; affirmed, 110 N. J. L. 445, where the court cites the Harris case in a situation similar to the present, but does not advert to the special statutory construction adopted by the Harris ease as above set forth.

In the Austin case the situation is practically on all fours, except for the dates involved. The accident occurred June 17th, 1929. The original petition was filed October 22d, 1929, and an award was made and approved by the bureau February 21st, 1930, which award was in turn reopened, modified and accordingly approved by the bureau December 4th, 1931. Thereafter, new payments were made, within two months of the time of the modification of such award, the present petition was filed for subsequently increased disability. For the reasons above set forth such petition was filed in time. True, such a constant change of front on the part of petitioner invites the closest scrutiny as to its merit. But such scrutiny should be given, not denied, as was done when the petition was dismissed without hearing the alleged merits.

Under such circumstances and in view of the fact that the entire record and testimony, as required by the statute, have now been furnished this court, some of it by the respondents themselves, the appeals herein will not be dismissed for any possible failure of petitioner-appellant to send up the full transcript, such matter resting entirely within the discretion of the court. Pamph. L. 1932, ch. 25, p. 38.

The orders of the compensation bureau dismissing the two above petitions will accordingly be reversed, leaving such petitions open for proceedings thereunder before the bureau in accordance with this opinion.