text:
    The State against James Anderson.

      On Habeas Corpus of Negro Silas claiming his Freedom.

      Returnable Saturday nth September, and returned accordingly•
    The Defendant appears with the Negro, to do and receive, &c. purfuant to Recognizance.
   THE Cafe ftated by Counfel for, the Opinion of the Court is as follows, ,

That on the fourth Day of December, 1761, John Horsfield was entitled to Two Negro Girls, named Betty and Nelly as Slaves ; and on the laid fourth Day of December by his laft Will and Teihmeru, ( then dated) made the following Devife, Item, my Two Negro Girls na- med Betty and Nelly, I leave to be fold by my Exe- cutors, hereafter named, for the ft crai of Fifteen <e Years, and at the end of that Time to be free, and the Money arifing thereby, to be equally divided a-- “ mongft my Four youngeft Daughters, and they that buy the laid Negro Girls, if the faid Girls or either of them “ Miibehave, or become chargeable, it mtift be at the “ Rifque or Colt of the Buyer.” That the faid Executors fold the faid Negro Girls to one Covenhoven, who fold them to the prefent Defendant Anderfon, for the Term mentioned in the Will — That Betty had a Child (the Negro Silas) now of full Age, which Child was not horn in Matrimony.

NOTE-

Chief Juftice Kinfey, in giving the Opinion of the Court faid)

BY the words of the Will taken together, It appears that the Telia tor intended to increafe the Daughters’ Portions, to effect this Purpofe, he ordered the Mother of the Negro now before the Court, and another, to be fold by his Executors for the'Term of Fifteen Years, and every Conftruction which will not detraft from this Intention íhould be made hi a Cale of this Nature — It is ail'd evident that the Telia tor forefeeing probably, that fome Means might, alter Ins Death, be made ule of to fruftrate his benevolent Eelign, took care to guard againft it, by ordering that whoever íhould purchafe thefe Negroes, the Purthalers íhould run all Rifques, and be at all the Expence v hich íhould arife from their Miibehavi-our, the moil probable Grounds on which that Attempt might be made — The Chief Juftice was of Opinion, that thefe words take in the Fact which lias happened, and the Purchafer ought not to avail himfelf of it by making s Slave of the Child—

The Attorney-General, Fifher, Howell and Todd for'“the negro. — R. Stockton and Frelinghuyfen for defendant.

1 lie Court having confidered the above State of Facts, are are unanimoufly of Opinion, That on the Death of John Horsfield the Teflator, Betty ceafed to be a Slave,, that fiie ceafmg tobe a Slave; no Child born of her Body can be deemed lb by the Birth of fucfa Child during the Fifteen Years, and that the Claim of James Anderfon to hold the faid Negro Silas as a Slave, is not warranted by Law : Wherefore it is ordered, That the fame Silas be liberated from the illegal Detention of the fame James Anderfon, and he is hereby liberated accordingly, ex mo-tione J. Bloomfield, Attorney-General.

He thought this might be fufficient to fay on the prefent Occaiion, but he would go further, and fay that in his Opinion,at the Death of theTeftator, the two Negro Women were not Slaves, no body at that Time had that abfolute Property in either, which diitinguiihes the Slave from what we call a Servant, and the Retention of the temporary Intereft excludes that Suppofition intirely — The Argument made ufe of by the Counfel for the Claimant, from the Word fell, might have had fome Weight if it had not been coupled with and explained by the particular Time to which it applies, but taken together, it is of 110 kind of Confequence, neither could he give his affent to the Idea fuggefted that both were Slaves until the Expiration of the Fifteen Years : Indeed the thought in his Opinion was abfurd, for he had no other Idea of a Slave but where, the Servitude is perpetual, or in other Words for Life — Neither did he lee the Impropriety of fuppoiing, that the Right to Freedom fubject to the Temporary fer-vitude, might veil in the Negro at the Death of the Teftator — If this be fo, and if the Miibehaviour of the Mothers were not to affect themfelves, he could not bring himfelf to entertain an Opinion that it fhould affect their innocent offspring and make them. Slaves : all that Anderfon bought was the Service of the Mother for a Term of Years, and that too fubjeét to all Rifques : As the Party buying, had nothing elle in Contemplation, no Conftruction can be unjuft which gives that Right in the fulleft extent to him, and if he fullers by his Bargain, it is no more than he undertook to fubject himfelf to, and a Conftruction of this Nature appeared much more Rational than one which íubjects a human Creature to be a Slave for no Fault of his own. For thefe Reafons the Court were unanimouily of Opinion that the Claim of James Anderfon is unfounded and the Negro Boy fhould be liberated front his Cuftody.


source: Caselaw Access Project

license: Public Domain

text:
    The State against Joshua Farley.
   RDERED, that a Habeas Corpus do iffue, directed to the laid Jofttua Farley for the Body of Negro Jofeph here on the firit Day of the next Term, ex me. Linn.


text:
      November Term, 1790.
    The State against Joshua Farley.
   Cn Habeas Cornu-, of'gcgi o joe < h-imivg /T I'recdcni.

npJb’E Paid Joihua Farley has mg reiurncti that the .1 faid Negro joe m the Writ named, bel ere tin* coming of the laid Writ, v. at and ii.il] is, the Negro Slave of him the laid Joihua Farley, and that he had, and itill hath Right and Filie to hold the laid Joe a Slave during Life ; and thereof tendered art Mine to the Country, and prayed the Court that the laid Iffue io tendered might be tried by a Jury of his Country ; whereupon, 1 he Court having heard Count'd, and taping the Matter into Con. iideration, are of Opinion that a Jury in this Cafe is improper, and therefore do refufe the fame.

The Evidence both for and againft the Claim of the faid Negro Joe to be fet at Liberty, being fully heard, and Count'd thereupon on both fides.

The Court do adjudge that the laid Negro Joe is illegally detained in the Cuilody of the faid jc.ii.ua Farky, and therefore do order him to be difcbargtd Jrom the laai Cuilody and illegal Detention of him the laid Joihua Farley, on the Motion of Eliiha Boudinot.


text:
      May Term, 1791.
    The State against Joseph Beavers, John Clifford, and John Martin, Administrators of Edward Clifford, deceased.

      gn Habeas Corpus adfuhficicnduiv, for the Lihtration of Negro Abraham Solomons, and Negro Dolly his Wife.

      The Attorney-General, Elifa Boudinot, and linn, Court-fr! for the Negroes. — Leake and Richard Stockton, Conn-f ! for the faid Adminiprators.

   x T^IiE Defendants having returned the Bodies with the Caufe &c. That they are the Negro Slaves ol £í the faid Defendants of the Eft a te of their Inteftatc, and that they have Plight to hold them as fiich, during iC Life/'7' and thereof having tendered an Iflue to the Country, and prayed that the fame might be tried by a Jury of the Country.

The Court confidering that this Point vas fully argu . ed and determined by them in the Cale oi the bittc a • gainil Jolhua Farley, November Term 3ait, do rdute to hear any Argument thereupon, and do direct that the Carde he opened and heard before the Court in the tifuai Marnier; whereupon,

The Court having heard the Return filed and Evidence and Allegations of the Parties, do order, on Motion oí Air- Leake, Attorney for the faid Adminiftrators, that the laid Abraham and Dolley be remanded into the Cuf-tody of the faid Adminiftrators.


text:
    The State against Abraham Probasco.

      On Habeas Corpus of Negro Hagar, Wife of Cornelius Wilfon, and Cornelius, Lydia and Anna their Children, praying their Freedom, detained by the Defendant, claiming their Service for Life.

    [Habeas Corpus returned this Term and filed.]
   THE Court having fully heard the Allegations and Proofs of all Parties, and the Arguments of Coun-fel thereon ; it appeared to the Court, that the faid Negroes brought up on the faid Writ, were in the Y ear 1776, the Slaves of William Winds, Efq- of the County of Morris ; — That the laid William Winds, in confideration of the good Behaviour of the faid Negro Cornelius Will'on the Father, in the laid Year 1776, did manumit and let free the laid Cornelius, his Wife Hagar, and; all the faid Children — That the laid Cornelius and his Family built a Houle on the Lands of the faid William Winds by his Aihftance, and with,his Permiffion, and lived thereon as Free Citizens for the Term of Three Years, when the faid Cornelius Wilfon and Wife were taken lick ; on which the laid William Winds removed them to a Houfe near his own, and took care of them till they recovered, when he employed them and paid them Wages for their Labor as free Perfons; That the faid t William Winds, fearing they might become a burthen on his Eftate, urged them to obtain fecurity to indemnify him from any Expence in Cafe of their becoming a Charge — That thereupon the faid William Winds gave to the faid Negro Corneáis Wilfon a Pafs to go into the County of Monmouth to obtain fuch Security — That the faid Cornelius accordingly went to the faid County of Monmouth, and agreed with Abraham Probafco the Defendant, that in Confideration of his becoming Security to the faid William W inds, he and his Family would ferve Mm Five Years — That the faid Abraham Probafco in Confequence thereof, came to the faid William Winds and agreed with him accordingly, and in order to fecure the faid William Winds, the faid Abraham Probafco pro-pofed, that the faid William Winds ihould give to the laid Abraham a Bill of Sale for the faid Negroes, and at the end of Five Years, the faid Abraham would releafe the faid Negroes and fet them free : That a Bill of Sale for the Confideration of Five Shillings, without any Condition or Refervation was drawn up accordingly by the faid Abraham, and executed by tlie fakl William, and a Receipt given by the faid Abraham to the faid William therefor, calling it a Deed of Gift — That at the Execution of the faid Inftrument or Bill of Sale, the faid William Winds mentioned his Fear leaft the faid Abraham ihould claim the faid Negroes as Slaves by virtue of the laid Bill of Sale, when lie and the Witneffes Mould be dead, and declared that altho’ he could get Two Hundred Pounds for the faid Negroes, yet he had given the faid Bill of Sale for Five Shillings in order that they might be free — That the faid Negroes have faithfully ferved the faid Abraham for more than Six Years under the laid Agreement, and are ftill detained by the faid A-brahain who claims their Service for Life by Virtue of fine (aid Bill ui Sale.

"The At tot my Gem, J, andR. Stockton for the Negroes,

KirkpiJrich for L’¡ f: dart.

The Court therefore having maturely confidered the Premifet, ere un.r.'úmoufly if Opinion, That the laid Ne-grees and etrr, of them, be difeharged from the Cufto- • ¡y of the faid Abraham Probafco as free Citizens, .and Slay are hereby dn'charged accordingly, on Motion of Mr. Afiorney-Gencn I, Bloomfield.


text:
    The State against William Laird.
   On Habeas Corpus of A'egro Rachel claiming her Freedom ■ [The Writ returned and filed

THE Court taking into Confidcration this Cafe, and it appearing to depend on the Deciiion, in the Cafe of the State againfl: James Anderfon, on the Habeas Corpus of A'egro Silas, September Term, 1790, ordered, 1 hat the faid Negro Rachel be difeharged and entirely liberated from the Cnftcdy of the faid William Laird, on the Motion of the Attorney-General.


text:
      April Term, 1793.
    The State against Benjamin Covenhoven.
   On Habeas Corpus of Negro Agnus, claiming her Freedom. [The Writ returned and filed.

THE Court hM¿BggfajTfklered this Cafe, and it appearing tha^i^feJSme depends on the Decifions in the Cafe of the Stéte againft James Anderfon, on the Ha-beas Corpus of Negro Silas, September Terra, lygo, ordered that the faid Negro Agnus be difeharged, and entirely liberated from *he Cuitody of the faid Benjamin Covenhoven, on Motion of the Attorney-General.


text:
      May Term, 1793.
    The State against James Pitney of the County of Morris.

   Qn Habeas Corpus of Negro James, a Boy about Thirteen Tears of Age, claiming his Freedom.

THE Cafe upon the Habeas Corpus and Return, coming before the Court appeared to be as follows,

Jafper Smith of the Townfmp of Maidenhead, in the County of Hunterdon, by Will bearing Date the 29th Day of November, 1769, (amongft others) made the following Devife, “ And as for all my Negroes, Jack, old *v Juddy, and young Juddy, with all her Children, cud with all their Cloaths, Chefts, Beds, and Bedding, af- (< ter my Deceafe, I do hereby order that they are all Sen of the the faid “ by me for ever Reed f;om all Servitude from me or any of mjne, and from ad others whatfoever at my Deceafe, and tliat 'they may ge and work for their Living with whomJbever they phaii’* — That the laid Jafper Smith afterward? d cd — That notes-itMlaiiding the laid Will, the laid iknyrocs, md in lurti-Har the faid young Judd}' were dita'.ne 1 I-'- foii.u < v, njy faid Jafper, and one of urn L?e\dees named m Will, that during ftuh Detention and before the Death of the laid Joihua, the Negro James in the prefent Ha-beas Corpus named, w as born of the Body of the faid Juddy- — That the laid Joihua Smith died, leaving Kezi-ah Smith and John Biles his Executors, and the laid Negro Juddy and her Son James in their Pofleifion — That on the 9Ü1 Day of March, 1790, the laid Keziah Smith and John Biles, - as Executors-of the laid Joihua Smith, by Bill of Sale of that Date, conveyed the laid Negro James to James Pitney the Defendant in the Habeas Corpus named ; but that no Bond or other Security whatfoever was given by the faid Jafper Smith, the Maf-Will ay paflecl 16th ter of the faid young Juddy a: hove named, purfua n t to the A’ November, 1769; whereupon,

The Court having taken due C moiifly of Opinion, That the faid ther off he faid Jake's, was a free the laid Jafper Smith, the want < the faid Aft of Affernbly notwitk ration, are unani-Jyiddy the Mo-ntan by the Will of ecurity purfuant to nding, and that con-fequently the laid James her Son is entitled to his f reedom, and do therefore Order, that the laid James be dif-dharged from the illegal Detention of the faid James Pit-hey, and he is difeharged accordingly, on the Motion of Mr. Bloomfield for the State.


author: Per Curiam.

text:
    KATHERINE GALUSZKA, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF LEO GALUSZKA, DECEASED, PLAINTIFF-RESPONDENT, v. BENJAMIN SHACHAT AND JACOB SHACHAT, DEFENDANTS-APPELLANTS.
    Decided February 20, 1923.
    For the plaintiff-respondent, Benjamin M. Weinberg.

    For the defendants-appellants, Kalisch & Kalisch.

   Per Curiam.

The only question in the case is whether the court committed an error in refusing to nonsuit the plaintiff. The plaintiff was a child nine years old and a very bright boy. The jury might have found that he had been playing marbles with other children on the west side of Hunterdon street, FTewark, and went across to the east side to get his “shooter.” While he was, coming back and- after he had reached the westerly side of the street, within a few feet of the gutter, he was struck by the defendant’s automobile, running north on the westerly side of Hunterdon street (that- is, on the wrong side of the street), at high speed. The result was the boy’s death. The car was going so fast that when-the brake was put on the car skidded. The automobile seems to have been fifty or sixty feet away when the boy crossed from east to west and apparently the accident would not have happened but for the speed of the automobile which caused it to skid.

We think this evidence shows negligence on'the part of the defendant. No matter how bright the boy was, he could not, under the circumstances df this case, be expected to look for a car on the wrong side of the street. He had the right ta assume that other travelers would obey the rule of the road. Let the judgment be affirmed, with costs.


text:
    LEHIGH VALLEY RAILROAD COMPANY, APPELLANT, v. IRA R. CROUSE, APPELLEE.
    Decided February 20, 1923.
    Before Justices Parker, Bergen and Minturn.
    For the appellant, Adrian Lyon.

    For the appellee, Emil Stremlau.

   Per Curiam.

The defendant, desiring to ship sand over plaintiffs railroad, applied to its agents for a rate, and was given it at forty cents a ton. The sand was shipped and freight paid at that rate, but plaintiff, discovering later that the rate as fixed by the Interstate Commerce Commission was fifty cents a ton and a war tax, brought suit to recover the difference, in which action defendant had judgment and plaintiff appeals.

The shipment was from one point in Middlesex county, New Jersey, to another in the same county, and therefore intrastate. The only question argued is whether the federal act on the subject applies to intrastate shipments of freight. There is no pretence that the interstate and intrastate transactions of the carrier are so related that the government of one involves the control of the other so as to make the act of the congress of the United States dominant, as in Houston and Texas Railway v. United States, 234 U. S. 342. This is a clear ease of intrastate commerce, entirely detached from interstate commerce, nor subject to any nice distinctions as to its character based on any attempt to avoid the federal statute, •or the giving of any unreasonable preference or advantage to one locality over any other.

We have only to consider whether the shipment of sand related to a transportation “wholly within one state, and not shipped to or from a foreign country from or to any stat§ or territory,” for if so it is exempted from the provisions of the statute of the United States entitled “Begulation of common carriers of intrastate and foreign commerce.” Vide proviso in section 1, United States Comp. Stat. 1916, § 8563. The state of the case shows beyond doubt that this shipment falls within the class exempted from the provisions of the statute on which defendant relies for reversal of the judgment it appeals from, and leaves the appeal without support.

T'he judgment will be affirmed, with costs.


text:
    MAX LOMACHINSKY, PLAINTIFF-APPELLEE, v. LOUIS APRIL, DEFENDANT-APPELLANT.
    Submitted December 21, 1922
    Decided February 20, 1923.
    On appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.
   Per Curiam.

This case was marked to be submitted on briefs. There is no brief for the respondent, Eor the appellant, a brief is submitted, but the same is not signed by a counselor of this court. It is signed in the name of an attorney-at-law who is not a counselor. Such a brief, under the established practice, will not be considered, and the appeal will be dismissed. Hazard v. Phœnix Woodworking Co., 78 N. J. Eq. 568.


text:
    LOUIS MOOREY, PLAINTIFF, v. JOHN BLACK, DEFENDANT.
    Decided February 20, 1923.
    For the plaintiff, Richard W. Baker.

    For the defendant, Frederic R. Brace.

   Per Curiam.

The rule allowed in this case by the trial judge requires the defendant to show cause why the verdict should not be set aside as to the amount of damages awarded and a .new trial granted, limited to the question of damages only.

The learned trial judge was probably influenced by the language of rule 132. Eule 132 applies only to cases when a new trial is ordered because the damages are excessive or inadequate; it does not apply to- the mere allowance of a rule-as in this case. The trial judge, even a justice of the Supreme Court, sitting at nisi prius, does not assume to limit the action of the court in dealing with the rule. Our power cannot.thus be limited by any inferior tribunal. Whether it is wise or not in case the rule is made absolute to limit the power of this court to this single phase of the verdict is not important. It is enough to say that the legislature has not conferred the power upon any single judge unless in the infrequent cases where he sits for the court. Technically, perhaps, the rule should be dismissed, but under the circumstances we have considered the amount of the damages awarded by the jury.

We think the damages in this ease were small in view of the extent of the injury, but we cannot say that they were so small as to justify us in setting aside the verdict. Let the rule be discharged.


text:
    JOSEPH J. MATZ, TRADING AS J. J. MATZ & COMPANY, PLAINTIFF-APPELLEE, v. PETER BESSMAN, DEFENDANT-APPELLANT.
    Submitted December 21, 1922
    Decided February 20, 1923.
    On appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.
    For the appellee, Samuel Roessler.

    For the appellant, Philip J. Schotland.

   Per Curiam.

This is a suit by a real estate broker for commission claimed to have been earned on a sale. The authorization by the owner was based on a definite net price to be obtained and the broker was to have as commission all over that price, very much as in the case of Mendles v. Danish, 74 N. J. L. 333. The price fixed was $7,200, and plaintiff secured a purchaser at $7,700, who was plainly satisfactory to the .defendant because defendant contracted with him at that figure. After the contract was signed, the purchaser discovered he was financially unable to carry, out the contract, probably because he could not secure a mortgage loan, or for some similar reason and, consequently, gave notice that he was simply unable to perform; bo the sale was not consummated by conveyance. When the plaintiff wanted his compensation of $500, being the difference between $7,200 and the $7,700 which was named in the contract of sale, the defendant refused to pay it because the sale had not been consummated, and defends this action on the theory that the commission was only payable in case of such consummation. The language of the contract is: “I further agree to allow the said J. J. Matz Company to keep for their own use and benefit all money for which the property is sold in excess of the selling price above mentioned. Said money is given in consideration of their services rendered. No commission to be paid otherwise.”

There was a judgment for plaintiff, and the defendant appeals-. Appellant’s argument is that the words “keep for their own use,” &c., imply not only a sale in the usual sense, but the consummation of a sale as in the case of Leschziner v. Bauman, 83 N. J. L. 743. in that case, however, the language was quite specific that the commission should be payable only in case of a conveyance, so that the decision is not in point. We do not think that any such construction should be put on this contract. If the word “sale” is used, it should have the meaning usual in such cases, and which, as laid down in the very recent case of Resky v. Meyer, 119 Atl. Rep. 97, is “not the conveyance, but the meeting of the minds of seller and broker’s purchaser, or the production by the broker of a purchaser who fulfills .the requirements of the seller.” We do not think that the language of the contract in the present case is sufficient to attach to the word “sale” any meaning that involves the consummation of a conveyance and collection of the proceeds, but that after the broker procured the customer and the defendant accepted him, the broker was not an insurer of either the solvency or the willingness of the customer.

It is argued that the fact that the broker collected $200 on account and turned it oyer to his principal argues a practical construction of the contract different from that which we have placed upon it; but we do not think it argues anything further than a somewhat unusual act of courtesy on the part of the broker.

The judgment will be affirmed.


text:
    ROBERT H. BRENNER, PLAINTIFF-APPELLANT, v. HERMAN LIEBOWITZ, DEFENDANT-RESPONDENT.
    Submitted December 21, 1922
    Decided February 20, 1923.
    On appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff-appellant, Ziegener & Lane.

    For the defendant-respondent, Charles E. S. Simpson.

   Per Curiam.

The defendant had a judgment in the court below and the plaintiff appeals. The case is submitted on briefs and we have only the brief for appellant.

The state of the case does not contain any specification under rule 145 of this court, of the “determinations or directions of the District Court with respect to which the appellant is dissatisfied in point of law” and upon which the rule prescribes that the appeal shall be solely heard. Kearns v. Waldron, 76 N. J. L. 370; Calvin v. Ostrander Fire Brick Co., 84 Id. 531; Sentliffer v. Jacobs, 84 Id. 129.

Under the practice indicated in the last case the appeal will be dismissed.


text:
    ARMOUR GRAIN COMPANY, APPELLANT, v. HASSELHUHN WILLIAMS COMPANY, APPELLEE.
    Submitted December 21, 1922
    Decided February 20, 1923.
    On appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.
    For the appellant, Ranzenhofer & Ranzenhofer.

    For the appellee, Stanton T. Lawrence.

   Per Curiam.

Appellant sued for damages for the failure of defendant below to accept and pay for certain sacks of “scratching grains” which appellant claimed defendant had obligated itself to purchase. The trial judge, sitting without jury, gave judgment for defendant, stating his reasons, which were stenographieally reported and are before us.

The memorandum sued on was made out by plaintiffs salesman, and though not signed by defendants, was after-wards unequivocally ratified by them, so that there is no difficulty on this score. It calls for six hundred sacks Iroquois scratch grains, $76.60 net, E. O. B. “Date to be shipped: in 60 days.” The date of this paper is August 16th. On September 7th the defendant wrote, ordering a miscellaneous assortment of specified grain products, including an item of three hundred twenty-five sacks scratching grains, and adding, “Please take the scratching grains out of the order for one carload you have booked for us.” This order was delivered, and no more scratching grains were ordered. In the following April, the price having gone down, plaintiff wrote, asking for shipping directions on the other two hundred seventy-five sacks, or an adjustment of the difference in price if the defendant did not wish them, and defendant answered that it regarded the order as having expired by its own limitation. There was some testimony of a conversation about the undelivered sacks in October, but the judge said he was unable to say which side preponderated on this point, and made no finding thereon. He held that, viewing the memorandum as the contract, plaintiff could not recover unless within the sixty days it made a tender of delivery and that this had not been proved. So he entered judgment for defendant.

For appellant it is argued that the time of shipment could be extended by parol; which is quite true, but as the judge found no such extension had been proved, we are concluded by his finding.

Next, that the court erred in finding that plaintiff had not shown an additional agreement by preponderance of evidence. But as the evidence was contradictory, we cannot say legal error was committed in a finding on the facts.

Thirdly, that the court improperly excluded evidence to show custom and dealings between plaintiff and defendant. The question excluded called for the plaintiff’s “custom of receiving orders” from the defendant. This pointed to nothing different from such an order as'the original one, which was before the witness at this juncture, and was undisputed, so that parol testimony of a custom in that regard was superfluous. Moreover, the specification of error is too broad as calling for the “custom and dealing” at large between the parties.

Finally, that the view expressed by the court on the question of damages was erroneous. Inasmuch as plaintiff’s right to a recovery was denied by the court, any question of damages was beside the mark, and the observations of the court thereon were legally harmless.

No error being made to appear, the judgment will be affirmed.


text:
    HENRY ROSINOFF AND E. CHARLES ALTSHUL, PLAINTIFFS-RESPONDENTS, v. FANNIE K. ALTSHUL, ADMINISTRATRIX OF VICTOR I. ALTSHUL, DECEASED, DEFENDANT-APPELLANT.
    Decided February 20, 1923.
    For the plaintiff, Julius Lichtenstein.

      For the defendant, J. Raymond Tiffany.

   Per Curiam.

This is a suit on a promissory note for $10,000 given by Victor I. Altshul under a trade name. It bears date of June 1st, 1918, payable six months after date, to the order of E. C. Altshul, and is endorsed by him and also assigned by a formal assignment after maturity to the plaintiff Bosinoff.

Victor I. Altshul died and the defendant Eannie K. Altshul, his widow, was appointed administratrix. She contests the claim of the plaintiff on the note and at her instance E. C. Altshnl was brought in as a party plaintiff. The note was proved and offered in evidence. There is no serious controversy as to its validity in its inception. An attempt was made to prove payment. This proof consisted of some statements made by E. C. Altshul which were supposed to indicate that his brother owed him $5,000 instead of $10,000, and also proof that his brother had turned over to him seven notes, six being for $2,000 each and one for $1,000.

Some reliance was placed by the defendant on the alleged suspicious conduct of E. C. Altshul after his brother’s death but this evidence was too hazy and uncertain to have any weight. The only question was whether there was proof of such connection between the seven notes and the $10,000 note that the case ought to go to the jury. We think not. The presumption is in favor of the holder of such a note, and while Bosinoff’s title can be no better than that of E. C. Altshul we think the evidence on the part of the defendant was so meager and uncertain that it cannot justify any inference of payment. It is an attempt to make conjecture do the work of facts.

We think, therefore, the trial judge was right in directing a verdict for the plaintiffs. The judgment is affirmed, with costs.


text:
    AUGUSTA BACKHOFEN, PLAINTIFF-APPELLANT, v. ROSE BLUMETTI, ADMINISTRATRIX OF THE ESTATE OF NICHOLAS BLUMETTI, DECEASED, DEFENDANT-APPELLEE.
    Submitted December 21, 1922
    Decided February 20, 1923.
    On appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff-appellant, John F. Ryan.

    For the defendant-appellee, Salvatore F. LaCorte.

   Per Curiam.

This is a dog-bite case. The defendant owned and occupied a house with a lot adjoining thereto on the south and used as a yard. In this yard he kept a vicious dog whose kennel was at the back of the yard away from the street, and which was kept under control by a collar and chain attached to a ring, and the ring was free to move upon a slack wire. One end of this slack wire was attached to the defendant’s house and the other to a post diagonally opposite to it in the yard. On the other side of this vacant lot, used as a yard, was a house and lot occupied by a Mrs. Cheviar, who was a tenant of the original deceased defendant, suit having been revived as against the executor. It appears from the state of 'the ease without dispute that the access from Mrs. Cheviar’s house to her own yard in the rear of her house was not through a back door, but was through a side door giving into the vacant lot where the dog was kept and by an accustomed pathway toward the back of the vacant lot, and then through a gateway- in the fence into Mrs. Cheviar’s back yard. There seems to be no dispute on this point.

The plaintiff went to visit Mrs. Cheviar and the latter invited the plaintiff to go out into her garden. The two went out through the side door and were proceeding toward the gate, and, in fact, had about reached it, when t-he plaintiff was attacked and bitten by the dog, which had sufficient slack on the wire and his own chain to be enabled to reach her as she was attempting to pass through the gate.

The trial judge found that defendant’s intestate owned the dog, that the dog had vicious propensities, that the owner had knowledge thereof, that plaintiff was lawfully on the premises, but he held that there should be a judgment for the defendant because, first, the owner of the dog had exercised reasonable care, and secondly, that the plaintiff was guilty of contributory negligence. In this latter aspect, the state of the case indicates that plaintiff testified that she did not know that the dog had ever bitten anybody, but she, having been a resident of the neighborhood for several j^ears, had heard of the dog’s reputation in the same neighborhood for viciousness; that she did not see the dog until after she was bitten; that she was not thinking about him, hut that she always used the front entrance to Mrs. Cheviar’s house because she was afraid of the dog.

Under the ruling in DeGray v. Murray, 69 N. J. L. 458, and. subsequent cases, -the owner of a dog known to him to be vicious is under the duty of using such care as. is reasonably required to keep him from getting loose and doing injury, and, consequent^, his liability is to he ascertained under the principles of the law of negligence. This being so, the rules of contributory negligence necessarily appty. In -the present case, there are facts from, which a jury, or the court sitting as a jury, would be entitled t'o find that the plaintiff was guilty of contributory negligence; for example, that the plaintiff had heard the dog was vicious and always used the front entrance because she was afraid of him, and that, notwithstanding this state of mind, undertook to pass through premises where she was liable to be bitten by him. Contributory negligence being, in such case, a question of fact, we cannot interfere with the finding of the trial court thereon. It is urged in effect that the great weight of evidence negatives contributory negligence of the plaintiff, but on an appeal of this character, it is well settled that we cannot deal with questions of weight of evidence. The only course is to affirm the judgment, and such will be the order.


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    BENJAMIN VOLTZOW, BY HIS NEXT FRIEND, WILLIAM VOLTZOW, AND WILLIAM VOLTZOW, PLAINTIFFS, v. PIETRO COFRANCESCO, DEFENDANT.
    Decided February 20, 1923.
    For the plaintiffs, Weinberger & Weinberger.

    For the defendants, Wayne Dumont.

   Per Curiam.

This is a second rule to show cause. On the previous rule the verdict was set aside. If this present verdict is a concurring one we are required to dismiss the rule, following Brown v. Paterson Parchment Paper Co., 69 N. J. L. 474. It is clearly concurring on the question of liability. It is equally clear that it is not concurring on the question of the amount of that liability; the jury- in the later trial awarded much higher damages than in the former.

We think, however, that under -the circumstances, two juries having found a verdict in favor of the plaintiff for large amounts, we ought not to interfere since the amount of the damages is properly a jury question.

Let -the rule be discharged, with costs.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. CHRISTOPHER MILLER, LAWRENCE GARAVANTE AND EDWARD HOLMES, PLAINTIFFS IN ERROR.
    Decided February 20, 1923.
    For the plaintiffs, Ziegener & Lane.

    For the defendant, Pierre P. Garven.

   Per Curiam.

The first point made in the assignments of error and the specification of causes for reversal is -that the verdict was against .the weight of the evidence. An examination of the case shows that the material point was the identification of the defendant. No doubt there was, as there usually is, conflict in the testimony and some uncertainty about the identification. There was no clear proof of the alibi set up- by the defendants. We cannot say -that upon the whole evidence there was anything to justify us in saying that the verdict was against the weight of the evidence so- that -this court would be authorized to set it' aside under the act of 1922. We think there was sufficient proof to satisfy a jury beyond a reasonable doubt.

As to the various questions asked of Miller, covered by assignments of error No. 5 to No. 11, inclusive, they dealt with matters that may have been important circumstances bearing upon the main issue.

As to the remarks of the prosecutor they were within the discretion of the trial judge. Counsel are getting in tire habit of treating the remarks of prosecutors who are advocates as if they were judicial officers. The court cannot control the zeal of the advocate for the state any more than it can •of the advocate for the defendant, and it must be a very flagrant case that would justify a court in dismissing the jury because of statements by the prosecutor of the pleas. We think that no harm was done the defendant by excusing the juror Kramer from service. It must be remembered that the right of the defendant is to challenge; that is, to exclude from service on the jury one who is disqualified by malice or otherwise. It is not a right to select any particular juror whom a defendant may prefer to have upon the jury; that is to say, it is a right of exclusion not a right of selection.

This disposes of the various objections that are made and the judgment must be affirmed.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. WILLIAM J. LYONS, PLAINTIFF IN ERROR.
    Submitted November term, 1922
    Decided February 20, 1923.
    On writ of error to Essex County Court of Quarter Sessions.
    Before Justices Kalisch, Black and Katzenbach.
    For the plaintiff in error, John A. Matthews.

    For the defendant in error, John O. Bigelow, prosecutor of the pleas, and John A. Bernhard.

   Per Curiam.

This case is before us on a writ of error directed to the Essex County Court of Quarter Sessions. The writ brings up for review the conviction of William J. Lyons, for the keeping of a disorderly house at No. 105 South Orange avenue in the city of Newark. The indictment was found by the December, 1921, grand jury, and included as the keepers of the disorderly house some fifteen others besides Lyons. All the defendants, except Lyons, pleaded non vult. The pleas of some of the defendants were not offered and accepted until after the commencement of the trial. The specific acts alleged in the indictment were book making, pool selling, gambling and betting on the event of horse races on October 1st, 1921, and on other days to the finding of the indictment. The jury found Lyons guilty. He was sentenced to a term of not less than one year and not more than three years at hard labor in the New Jersey state prison, and to the payment of a fine of $1,000 and costs.

The building was a three-story building located at the corner of South Orange avenue and Eichmond street. A saloon occupied practically the entire first floor. On the South Orange front of the second floor were two small rooms with a larger room on the Eichmond street side. Changes in the partitions of the rooms on the second floor had been recently made. There were three entrances to the building. The patrons of the place used the entrance to the saloon. Some of the doors were reinforced and some of the windows barred.

On January 6th, 1922, at four-thirty n. m., members of the police department and the prosecutor’s office, with deputy sheriffs, raided this building and found and arrested one hundred 'and thirty-five persons, including L]rons. Considerable gambling paraphernalia was seized, tables, chips, dice, horse racing slips, &c. An examination of the premises disclosed a buzzer on the first floor, back of the bar, which connected with the upper floor. In the bar, cards bearing the name of the defendant were found. The defendant was searched after his arrest and $4,700 in money found upon his person. There was also discovered back of the bar a bill for the iron work about the premises, made out to William J. Lyons, and a statement for the bill rendered, which was receipted.

Prior to the raid the place had been visited by detectives who sa.w Lyons on these occasions in different rooms of the premises. He was observed paying off bets which had been made.

The defendant offered no testimony and the case was submitted to the jury without any explanation from him or other witnesses as to his presence in the building and as to the matters which the state claimed connected Lyons with the management of the house. There are eighty-four assignments of errors and specifications of causes for reversal. Most of these are abandoned. The brief of the plaintiff in error deals with comparatively few of the assignments of error and specifications of causes for reversal. These will be taken up in the order they are argued in the brief for the plaintiff in error.

The first point argued by the plaintiff in error is that the charge was so manifestly unfair in its comment upon the testimony that it was an abuse of the sound discretion of the court and for this reason the judgment should be reversed. It is within the province of the court to comment upon the evidence. It is often the duty of the court to do so. State v. Hammer, 72 N. J. L. 328. We have examined the charge and are of the opinion that the trial judge’s comments upon the testimony were within the latitude accorded him by the decisions of this state.

The next point argued is that the court erred in admitting in evidence an exhibit offered by the state and marked $11. This was a bill of Katchen and Robinowitz for the erection of iron window guards and reinforcements of doors by the use of iron work. It was dated November 12th, 1921, and was made out to the defendant. A statement made to the defendant, dated December 3d, 1921, was with the bill. This statement was receipted. These papers were found upon a file, back of the bar on the first floor. They were near the place where the defendant had placed his overcoat on the day of the raid, before going to the second floor. The first floor was connected with the second floor by an electric buzzer. The defendant was seen frequently in the saloon. A lookout was stationed at the door leading from the saloon to the upper floor. There was ample evidence from which it could be held that the saloon was a part of the premises used as the disorderly house. When S11 was offered for identification the defendant’s counsel objected in the following language: “I object, and again renew my motion that I be permitted to question the witness whether he obtained these four papers which he takes from ¡the file of papers without a search warrant. That goes to the fundamentals of citizenship.

When offered in evidence and admitted, counsel for the defendant made the following statement: “I renew my objection on their admission in evidence on the grounds as to each and every one specifically, and to what it may be worth as to any particular article,” and then added, “then the objection is raised that they have not been, nor can they be construed to be, evidence under the indictment for keeping a disorderly house.”

This statement last quoted is at least ambiguous. The trial court undoubtedly thought that the objection was the same as previously made, namely, that the exhibit was not admissible because taken without a search warrant. It has been settled in this state in the case of State v. McQueen, 69 N. J. L. 522, that papers unlawfully procured by an unjustifiable search and seizure are admissible in evidence if evidential per se.

The plaintiff in error now alleges in the forty-first assignment of error, as follows: “Because the trial court, over the objections of the defendant, admitted in evidence slate Exhibit S 11, although said exhibit was in nowise binding upon the defendant, was not evidence against him under the indictment, could not be considered as evidence against him of keeping a disorderly house, was not properly proven, to which offer an exception was duly allowed.”

It will be observed that this assignment is broader than the objection. The most favorable construction of the objection is that Exhibit S11, was not evidence under the indictment. It is not contended that it was not properly proven. If this objection had been made at the trial we would consider that it had some merit as it was not proven that the bill had been sent the defendant or that the statement had been receipted by the vendors of the iron work and therefore might not be usable as evidence of the truthfulness of the statements contained therein. 'But we do think that S11 was admissible in evidence as a document seized in the raid and showing or tending to show that the defendant participated in the conduct of -the place. In the case of State v. Matarazzo, 93 N. J. L. 47, this court expressed the opinion that a card purporting to show that a mercantile license was granted to the defendant to conduct a boarding house at -the place where the intoxicating liquors were sold (the indictment being one for the sale of liquor without a license-) was admissible to show that the defendant conducted the place in question.

We think that the objections did not set out clearly the grounds now urged before this court. This is necessary. State v. Hendrick et al., 70 N. J. L. 41. While this may be obviated under the procedure for bringing up- the entire record which in this case is before us, yet we are of the opinion that as the exhibit was admissible for at least the purpose of showing the defendant’s connection with the place, and there was other evidence of his participation in the conduct of the place and evidence of the placing of iron bars at some of the windows and the reinforcements of the doors, that the defendant was not injuriously affected on the merits of the case by the admission of the exhibit in question and the comments of the court in its charge in this regard.

The next point argued in -the brief for the plaintiff in error is with reference to the trial court’s refusal to permit the defendant to challenge certain jurors. The trial commenced, as has been stated, against -the defendant and certain other co-defendants. All were entitled to ten challenges which had to be made jointly. Some of these challenges-were made with Lyons dissenting. The other defendants, except Lyons, then changed their pleas so that the trial'proceeded against Lyons as the sole defendant. The question as to the challenges gave the prosecutor some doubt as to the wisdom of proceeding with the jury as empaneled, and he offered to empanel a new jury. To this proposition the defendant’s counsel said, “The defendant has already asked that the case go on and it is ready to go on, that is all the defendant has to say.” The record contains some further colloquy between counsel on this subject.

From a reading of the record we are of the opinion that counsel for the defendant, but what transpired, waived the defendant’s rights, if he had any, with reference to the matter of challenges. Counsel for the defendant could not go on with the case after having been offered an opportunity to empanel a new jury, and then after an adverse verdict avail himself of any errors which may have been committed in the empaneling of the jury which he had accepted. The trial court was within its discretionary rights in refusing to quash the indictment. We find no error in the court’s ruling upon the evidence or in refusing to direct a verdict for the defendant. We are of the opinion that the verdict was not against the weight of the evidence. The judgment of conviction is affirmed.


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    THE STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PROSECUTOR, v. GEORGE C. LEZENBY, Sr., DEFENDANT.
    Argued November 8, 1922
    Decided February 20, 1923.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Garfield Pancoast.

    For the defendant, Grover G. Richman and Thomas F. McCran, attorney-general.
   Per Curiam.

The defendant was found not guilty of a violation of the State Medical act (Pamph. L. 1915, p. 482), in the District Court of the city of Camden. The writ of certiorari was issued to review the judgment of the District Court in that respect. Our reading of the testimony in the record leads us to the conclusion that the judgment of the District Court cannot be sustained. At the conclusion- of the case each party moved the court for a direction of a verdict. That of the state was denied and this action of the court is alleged as error. The question involved is whether or not the undisputed testimony does or does not show that the defendant violated the act. We think it is undisputed- and uncontradicted that the acts of the defendant brought him within the provisions of the statute, that he was guilty of a violation of its provisions. It is admitted that several persons received from the defendant electrical treatments. The record shows he treated Sadie Britton, Nora G. Allison, Grace Haines, Ada C. Haines, Henrietta Myers.

The judgment of the District Court of the city of Camden is reversed.


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    HOMESTEAD BUILDING COMPANY, PLAINTIFF-APPELLEE v. WAVERLY BUILDING AND LOAN ASSOCIATIONS, DEFENDANT-APPELLANT.
    Decided February 20, 1923.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff-appellee, Michael J. Quigley.

    For the defendant-appellant, Philip J. Schotland.

   Per Curiam.

The state of the ease shows that on March 8th, 1921, plaintiff applied to the defendant for a loan upon a mortgage of $10,000 and executed a mortgage as of that daté; that on June 14th, 1921, the defendant, not having sufficient cash to make the loan, gave the plaintiff $6,000 in cash and $4,000 in prepaid stock but retained interest on the mortgage from the date of execution, amounting to $150. Eor this sum the plaintiff brought suit and recovered and the defendant appeals. The only question is whether the plaintiff was bound to pay interest from the date of the mortgage or from the date he was paid the money. The trial court determined it v^as from the date the money was paid, and this we think was right. It is quite manifest from the state of the case that' the money was not being held for the plaintiff from March 8th, because they were not able to consummate the loan in cash on June 14th. Thpre is no dispute about the facts, but the defendant claims that according to the mortgage they are entitled to have interest from March 8th, although they did not pay the money until June 14th, 1921. Our opinion is that they are only entitled to interest from the time they advanced! the money unless there was some arrangement that the defendant was to hold the money subject to the plaintiff’s order, and there is no such proof.

The judgment, will be affirmed, with costs.


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    JOHN H. DRIPPS, PLAINTIFF, v. WALKER D. HINES, DIRECTOR GENERAL OF RAILROADS, DEFENDANT.
    Decided February 20, 1923.
    For the plaintiff, James Mercer Davis, Charles M. Atkinson and Isaac W. Eason (of the Virginia bar).
    For the defendant, Bourgeois & Coulomb.

   Per Curiam.

The rule is made absolute for the reasons stated in the memorandum filed, in “No. 64.” See another case by same title, infra.


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    MOHAWK DRESS COMPANY, INCORPORATED, APPELLEE, v. JACOB MICHAELIS, APPELLANT.
    Submitted December 21, 1922
    Decided February 20, 1923.
    On appeal from- the District Court.
    Before Justices Parker, Bergen and Minturn.

      For the appellant, Edmund A. Hayes.

    For the appellee, John Bishop.

   Per Curiam.

The parties entered into a contract for the display and sale of plaintiff’s products in defendant’s store, plaintiff to have certain specified space in the show window. There was no stipulation as to who was to arrange plaintiff’s goods in the .window, or in trade language, "dress” it. At first, plaintiff attended to this through an agent, then requested defendant to do it, and on the trial the meritorious questions involved were whether defendant was entitled to pay for dressing the window, and if so, to how much. Defendant had retained $25 per week on this account, and it was for the aggregate S0‘ retained that the suit was brought.

The trial court held, and as we think correctly, that defendant was not required to perform this service gratis; and in dealing with the quantum meruit feature, held that although the only testimony of the fair value of the service was that of defendant himself, viz., that such fair value was $25 per week, refused to award that amount and awarded $5 per week instead. This is the basis of the appeal.

We are unable to see that there was legal error in the court’s refusal to accept the defendant’s opinion evidence of value as binding on it. As the court notes in the state of the case, defendant, though testifying to his experience as a window dresser, did not testify that he had ever been employed as such, nor as to the wages usually paid for such work in the vicinity. The size of the window space was not shown. It did appear that the “dressing” consisted in the clothing of lay figures with plaintiff’s goods and placing those figures in the window. In such a state of evidence, -the court, sitting as a jury, might well conclude that defendant’s testimony as to the worth of his service was quite unreliable,, and disregard it entirely. See Schmidt v. Marconi Wireless Tel. Co., 86 N. J. L. 183. In such a posture of the case, the claim might be ignored altogether, and if so it was not error harmful to defendant to make in his favor the award that was made. Indeed, it may be said that he was technically not entitled to recover at all, as he filed no counter-claim.

The judgment will be affirmed.


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    PATRICK J. CORCORAN, PROSECUTOR, v. TOWN OF WEST HOBOKEN, DEFENDANT.
    Submitted November term, 1922
    Decided February 20, 1923.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, John F. Gough.

    For the defendant, Edward O. Gunther and John J. Fallon.

   Per Curiam.

The purpose of the writ in this case is 4» review an amendment to an ordinance of the town of West Hoboken, passed on August 23d, 1922, by which the pay of the police department of that town was increased. The first question raised is whether, as the increased salaries, are being paid, the various officers should have been made parties to this proceeding. Cooper v. Town of Belleville, 118 Atl. Rep. 332. It, however, is perhaps not necessary to. bring these parties into court for the determination, if the ordinance be upheld. The question for determination comes up under Famph. L. 1919, p. 26. Sufficient to say in this case, tire records show that there were no salaries that were fixed hy any referendum under that act. If the referendum had adopted the salaries, then, of course, under the statute the ordinance increasing the same would be invalid, according to the provisions of the act. But, as the salaries of the police department were never fixed by a referendum vote, the ordinance is valid. This view renders the making the various officers parties to this case unnecessary.

Holding the ordinance valid, the writ is dismissed, with costs.


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    EDWARD R. McGLYNN, TRUSTEE, ETC., PLAINTIFF-APPELLEE, v. ALFRED J. ELLIS, DEFENDANT-APPELLANT.
    Decided February 20, 1923.
    For the plaintiff, William F. Delaney.

    For the defendant, Warren Dixon.

   Per Curiam.

This is a suit in replevin for an automobile. The plaintiff is a trustee in bankruptcy of the A. L. Kirby Company. The defendant, Ellis, was an officer of that company. The Kirby company bought the automobile and had a bill of sale for it in compliance with the aot of 1919, chapter 168. This act makes it unlawful to sell or purchase any motor vehicle except in the manner and subject to the conditions therein provided. One of the conditions is that in all sales or purchases of a motor vehicle direct from the manufacturer or through an agent or agency of such manufacturer, t.here shall be issued to the purchaser a manufacturer’s bill of sale containing the manufacturer’s number on the engine or motor of the vehicle sold. In all other sales it is required that the original bill of sale shall be assigned by the seller to the purchaser by an assignment, witnessed by two persons, and acknowledged by the seller before a notary public, and all such assignments shall at all times be kept and attached to the original manufacturer’s bill of sale. These provisions are obviously intended to assist in protecting automobiles from the'danger of theft.

We see no reason to doubt their validity. The Kirby company had a bill of sale in compliance with the statute. The defendant never had. Of course the bill of sale for the automobile was properly admitted in evidence. It was a necessary document of title. We think the questions objected to in ground of appeal Nos. 2, 3, 4; 5, 6 and 7 were properly overruled. We are unable to see what relevancy the proffered evidence had to the uase.

We find no error in the record. The judgment must be affirmed.


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    CHARLES WARNER COMPANY, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENTS AND BOROUGH OF PAULSBORO, DEFENDANTS.
    Submitted November term, 1922
    Decided February 20, 1923.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Wilfred B. Wolcott.

    For the defendant, W. Earle Miller.

   Per Curiam.

The writ of certiorari in this ease brings up for review the assessment for taxation of the property of the prosecutor for the year 1921 made by the borough of Paulsboro, in the county of Gloucester.

The property of the prosecutor comprises a farm of seventy acres, consisting of forty-four acres of upland, twenty acres of meadow and six acres of water basin. It was assessed by the local assessor at the snm of $14,000 for the land and $4,-000 for the buildings. On appeal to the Gloucester county board of taxation the assessment upon the land was affirmed, the assessment on the buildings was reduced to $2,000. An, appeal was then taken to the state board of taxes and assessments which affirmed the assessments made by the Gloucester county board.

This property was purchased by the prosecutor in August, 1918. The amount paid was approximately $27,000. It was bought upon the belief that it contained valuable sand- deposits, which could be used for building purposes. At the time of the purchase the war was in progress and the prosecutor had contracts for which it required sand. It believed that a dredge could be operated from the water which strip the land of sand to a depth of about thirty feet. After trial it was found that the sand which the prosecntor desired was not • of sufficient depth to justify the cost of operation. The property is valueless for the purpose for which it was purchased. Eor the past year the prosecutor has had the property on the market and has expressed its willingness to sell at $8,000. It has never received an offer beyond $5,000. The question presented is, whether under the circumstances related the assessment fixed by the state board is based upon an erroneous theory as to the uses for which the property is available and consequently too high. The true criterion for assessment is market value. The price paid for property is sometimes indicative of market value and at other times it is an unsafe guide. The testimony taken in behalf of the prosecutor shows that the market' value of the land at the time of the assessment was $8,000.

The Tax act (Revision of 1918, section 512) gives this court the right to fix assessments where the state hoard has, in its opinion, erred. Evidence taken under the writ of certiorari wall be considered. Trenton and Mercer County Traction Corporation v. State Board of Taxes and Assessment et al., 92 N. J. L. 398. In this case it seems to us that evidence shows that the assessment fixed by the state board is excessive. In our opinion it'should be reduced to $8,000 for the land and $500 for the improvements thereon. The record will be remitted for the making of corrections in pursuance of this opinion.


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    CHARLES KIRK, APPELLEE, v. THE COUNTY OF HUDSON, APPELLANT.
    Submitted December 21, 1922
    Decided February 20, 1923.
    On appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.
    For the appellant, John J. Fallon.

    For the appellee, William B. Stites.

   Per Curiam.

The judgment should be affirmed, both on technical grounds and on the merits. On technical grounds, because of the three “specifications” for reversal filed, not one specified an erroneous ruling of 'the trial court, save that the court decided the case wrongly, which is no specification at all. Champlin v. Barthold, 82 N. J. L. 13. On the merits, because the plaintiff, as the trial court was entitled to find, served as a de facto election officer during the election season of 1920, the alleged de jure officer not appearing or performing any service, so that under well-settled rules the plaintiff is entitled to the compensation. McArt v. Belleville, 117 Atl. Rep. 595, and cases cited.

It is argued that the plaintiff was allowed to recover statutory compensation though he had declared on a quantum meruit. But the trial court directed an appropriate amendment, and neither action is specified for error.

It is claimed that the case of Gardner v. Bevis, 111 Atl. Rep. 321, is controlling, and decided that plaintiff had no color of title to the office. We do not so read the opinion. The statute prescribing that the election officers should be appointed by the county board on or before a certain date, and certify the appointment to the county clerk on or before August 30th, it appears that the board did appoint, but no certificate being received by the clerk, one of the Common Pleas judges, assuming to act under an alternative provision-of the statute, appointed plaintiff on the same day that the certificate finally came in. In the Bevis case this court declared in its opinion that the county board appointments were good and the judges’ were not. But this was in the opinion: the judicial action, in a case in which appellee is not shown to be a party, was .merely to discharge a rule to show cause why writs of mandamus should not be allowed, and why informations in quo waaranta should not be authorized to be filed. The record, if record there be, was neither printed nor put in evidence in this case. Consequently, no question of res judicata is involved; as to the application oí stare decisis, the reported opinion is perhaps controlling to the extent of requiring us to say that appellee was not de jure entitled to the office, but this is quite different from, saying that his service was not de facto service and worthy of compensation as such.

Let the judgment be affirmed.


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    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LOUIS SIEGENDORF, PLAINTIFF IN ERROR.
    Submitted November term, 1922
    Decided February 20, 1923.
    On writ of error.
    Before Justices Kalisch, Black and Katzenbach.
    For the plaintiff in error, Weinberger & Weinberger.

    For the defendant in error, J. Willard De Yoe, prosecutor of the pleas.
   Per Curiam.

The defendant was convicted of an atrocious assault and battery committed upon one Ralph Powers on the 30th of March, 1921. The defendant files seven specifications of canses and reasons for reversal, which are argued under four heads in the brief, all relating,to alleged errors in the charge of the trial court. We think the criticism of the charge is not justified by what the court said; one only requires comment, that part of the charge criticised in which it is said: “If the evidence satisfies you that-he hit him on the head with the club and the result was this wound in the head, yon ought to find him guilty. If it does not satisfy you, you ought to find him not guilty.” But this must he read with that other part of the charge, when the court said: “If the evidence satisfies you beyond all reasonable doubt that he did, then you ought to find him guilty. If the evidence does not satisfv yon beyond all reasonable doubt, you ought to find him not guilty.”

Finding no error in the record, the judgment of the Passaic County Quarter Sessions is affirmed.


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    LOUIS PERLMAN, PLAINTIFF-RESPONDENT, v. SAMUEL SOLOMON, DEFENDANT-APPELLANT.
    Decided February 23, 1923.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff-respondent, Charles Rosenthal.

    For the defendant-appellant, Kanter & Kanter.

   Per Curiam.

The defendant and plaintiff entered into an agreement which recited that the plaintiff had given, into the custody of the defendant a diamond ring valued at $750 to be 'held in trust by the defendant as the sole and exclusive property of the plaintiff until certain conditions were complied with (a) defendant to pay plaintiff for the use of said property the sum of $750, $200 to be paid at the time of delivery and the balance in equal weekly installments of $25 each, when the ring should become the property of the defendant. It was further agreed that upon failure of the defendant to perform any of the conditions he was to deliver or return the property to the plaintiff on demand. The case seems to have been tried upon the theory that the defendant had filed a counter-claim for the $200 paid on delivery. There is no copy of any such counter-claim to be found in the record, but we assume that one was filed to recover the $200, because as defendant claims the ring had been returned to the plaintiff for some alterations and that the plaintiff had lost it. The judgment was in favor of the plaintiff, from which the defendant appeals.

The first ground argued is that the court refused to strike out testimony tending to prove that the defendant had offered $300 in settlement. The testimony of the witness, “he offered $300 in settlement after that,” came at the end of quite a long statement of the witness. As soon as the objectionable words had been uttered the defendant moved that they he stricken out and the court said, “I will strike out that part of it wherein it states that conversation.” This undoubtedly refers to the statement with reference to the offer of compromise, and therefore the court did precisely what the defendant requested.

The next point made is that the court refused to direct a judgment for the defendant on the ground that the relationship entered by the contract between the parties created the defendant merely a trustee for the plaintiff and to pay him for the use of the ring. There is nothing in this; it was no more than a conditional sale in which the property was to remain an the plaintiff until all the payments had been made.

The next point is that as the contract was to pay $25 fc-r the use of the ring, there was a total failure to show that,the defendant ever had the ring in his possession, subsequent to April 30th, 1921, on which, date it seems to have been lost. The point made is the defendant had no use of the ring, because it was lost, and, therefore, was under no obligation to pay. The, real question at issue was whether the plaintiff or the defendant had lost the ring, and the evidence was not undisputed, which raised a question of fact which the jury found in favor of the plaintiff. That is the whole ease and the judgment will be affirmed, with costs.


text:
    MUTUAL BANK OF ROSEVILLE, PLAINTIFF, v. WINFRED L. SMITH, DEFENDANT.
    Submitted November term, 1922
    Decided February 20, 1923.
    On application for rule to show cause.
    Before Justices Kalisch, Black and Katzenbach.
    For the plaintiff, Roger Hinds.

    For the defendant, Merritt Lane.

   Per Curiam.

' This is an application fox a rule to show cause. The suit was instituted in this court and tried at the Essex Circuit. At the conclusion of the testimony the jury was, by consent, excused and the court decided the case, treating the question involved as one of the facts.

The court directed judgment to be entered against tfie defendant for the full amount of the plaintiff’s claim, $11,165 principal, and $5,916.34 interest, a total of $1? 081.34.

The suit was brought by the Mutual Bank of Eoseville, an institution which arose from the ashes of the Eoseville Trust Company, which had become insolvent through the peculations of its secretary and treasurer. It was founded upon a promissory reading as follows:,

“New York, June 16, 1913.
“$11,165
“After date, I promise to pay -to the order of C. P. Whitman and John B. Paunce, eleven thousand, one hundred sixty-five and 00/100 dollars at Eoseville Trust Company,
“Winerbd L. Smith.
“Endorsements:
“O. P. Whitman,
“John B. Paunce.”

The plaintiff claims that this note was given by the defendant to Whitman and Paunce, the payee, for capital stock of the Interstate Land and Securities Company. The note was taken by Whitman to-Eaymond E. Smith, secretary end treasurer of the Eoseville Trust Company for the purpose of having the proceeds of the note placed to the credit of the Interstate Land and Securities Company. The defendant claimed that 'the note was loaned by him to be used for the credit of the Interstate Land and Securities Company and ivas not given in payment for capital stock of that company. On Aiigust 13th, 1913, the Eoseville Trust Company was closed by the commissioner o£ banking and insurance. This note was found on the .desk of the secretary and treasurer. There was no entry in the hooks of the Roseville Trust Company that it had ever been placed to- the credit of the Interstate Land and Securities Company, which was indebted to the Roseville Trust Company, at the time of its suspension, for overdrafts in approximately the sum of $15,000. On August 2''6th, 1913, the note was presented for payment to the representative of the commissioner of banking and insurance, having in charge the affairs of the Roseville Trust Company, and was protested for non-payment. An application for a rule to show cause was made to the trial court within the time allowed by the rules. The application was denied. ’ The defendant contends that he is deprived of the right of review on the question of fact by the action of the trial judge, and that the questions involved are of such consequence to the defendant that he should at least be permitted to- argue them before this court.

After reading of the testimony we have concluded that the defendant is at least entitled to argue the questions involved in this case before this court. A rule to show cause will be allowed.


text:
    ISIDORE COHEN, PLAINTIFF-APPELLEE, v. AH KEE ET AL., TRADING AS YEE CHONG TEA COMPANY, DEFENDANTS-APPELLANTS.
    Submitted December 21. 1922
    Decided February 20, 1923.
    'On appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff-appellee, William L. Greenbaum.

    For the defendants-appellants, George A. Henderson.

   Per Curiam.

The printed book in this ease presents mainly questions of fact which were decided by a jury and they are, therefore, outside of our cognizance, as there was conflict of evidence in respect to all of them. As to the matters of law involved, the specification filed in the case and corresponding to an assignment of errors fails to point out specific error of the trial court in such manner as to be laid hold of on review. The plaintiff, a plumber, claimed that he had been hired by oral contract to put in certain plumbing appliances for the defendants on an estimate which he says he gave of a cost between $350 and $400, that he had done the work required and demanded payment in the sum of $360, which had not been paid. The fundamental theory of the defence was that this same work had been contracted by the defendants to a general contractor for whom the plaintiff had really worked as a sub-contractor and which general contractor had been paid. This was the main issue presented to the jury, and which they evidently found in favor of the plaintiff.

Taking up the specification of determinations in point of law, the first is, in substance,' that the court refused to admit in evidence a contract entered into between the appellants and 'Valle; secondly, that the court refused to admit in evidence receipts showing that the work done was paid for. Neither the rejected contract .nor the rejected receipts are laid before us, and, consequently, we are unable to sa3r whether or not they had any relevancy whatever to the controversy. The third is on similar lines, viz., that the court refused to admit a letter and testimony evidential of the fact that someone other than the plaintiff had undertaken to do the work. The same criticism applies, viz., that the letter is not before us, and the so-called specification does not specify what evidence was excluded.

Points four, five, six and seven were that the court failed to charge the jury on certain phases of the case, but inasmuch as it does not appear that any request to charge the jury was on these phases, or as to what ought to be charged was submitted to the court at any time, it follows, under the well-established practice, that no error can be predicated of such failure.

Point eight is that the court unduly emphasized the plaintiff-appellee’s theory of the case, which amounts to nothing more than the appellant thinks the court commented more favorably to the other side than to the appellant.

The ninth point is that the court charged that appellants were liable if the work was done, whether or not there was a contract, saying, “-It does not make any difference whether defendants and plaintiff entered into a contract for the work done, which the plaintiff alleges he did.” There was no exception prayed to this portion of the charge, but if it be considered on its merits, the answer is that the sentence quoted above is part of a charge which is unexceptionable, because the point discussed by the court and brought out clearly in the contest, which is not quoted, related to the liability of a party on an implied promise to pay for work which is done with his knowledge and consent, and not as a gratuity.

The last specification is another relating to the court’s failure to charge the jury in reference to the relation of Nick Yalle to the parties involved, and is obnoxious to the same criticism that has already been made with respect to points four to seven above.

These considerations require an affirmance of the judgment.


text:
    ABRAHAM FISHMAN, PLAINTIFF-RESPONDENT, v. DAVID CANTER, DEFENDANT-APPELLANT.
    Argued November term, 1922
    Decided February 20, 1923.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff-respondent, A. Michael Lepore.

    For the defendant-appellant, Daniel D. Loeb and Saul Nemser.

   Per Curiam.

The state of the case agreed on is that the plaintiff sold a business to one Brodsky for which the purchaser agreed to pay, as part consideration, $200; that Brodsky sent his son to the defendant to borrow the money, promising to repay defendant the next day; .that defendant gave his check to the order of Brodsky, who endorsed it to the plaintiff; that thereupon Brodsky was given possession of the business; that defendant stopped payment of the check, after which Brodsky left the business and never returned. The plaintiff brought suit on the check and recovered judgment, from which defendant appeals.

The principal point made by appellant is that plaintiff was not a holder in due course because he knew that the check was obtained on the promise of Brodsky to defendant to pay him the $200 the next day. The state of the case does not show the agreement of Brodsky with defendant; all it shows is that plaintiff knew that Brodsky had sent his son to defendant* to get the check. In addition to this plaintiff was a holder in due course, for when he took the check he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. There was no defect in Brodsky’s title; it was given to him to be used for the purpose it was passed to plaintiff, viz., to make a payment on account of the purchase. The promise of Brodsky to repay to defendant the amount of the check the following day did not affect his title to the cheek, and, even if plaintiff had known that Brodsky obtained the check on his promise to make it good to defendant the next day, he would not be liable to refund the money if Brodsky refused to do so. There was no error in so holding and judgment will be affirmed, with costs.


text:
    JANE M. DUNIGAN, PLAINTIFF-APPELLEE, v. BERNARD JOSEPH DUNIGAN, DEFENDANT-APPELLANT.
    Argued November term, 1922
    Decided February 20, 1923.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff-appellee, Edmund A. Hoyes.

    For the defendant-appellant, Ephraim Culler.

   Per Curiam.

The testimony on behalf of the plaintiff shows that the «defendant leased from her father, Thomas Dunigan, a farm from the first day of April, 1921, at the rent of $500 a year, and that she succeeded to her father’s right to the rent; that the rent was not paid. The defendant’s! case was a denial of the renting and that he was in possession by sufferance or permission of plaintiff’s father, or as part owner, and was not to pay rent. The plaintiff has a judgment and defendant appeals, and the grounds upon which it is rested 'are (a) that it was improper to allow the defendant to be asked whether he saw a publication of tlie order to limit creditors of the estate of the father, to which he replied that he did not believe he ever saw it. The question and answer were not injurious to defendant; (5) refusal to allow in evidence receipts for taxes paid by defendant prior to the year in question. They were immaterial, for if the lease was made for 1931 defendant could not deny the landlord’s title. There is no statute making such receipts evidence, but aside from this defendant was permitted to testify that he had paid the taxes for a number of years, and this was not denied by the plaintiff; (d) that court excluded receipts for interest paid on mortgage. These receipts for interest paid had no bearing on the question of whether there was a letting for the year 1931, which was the only issue; ,(<?) that a witness was not allowed to testify to statements made by defendant to him as to the nature of his occupation. This was clearly incompetent as defendant could not be corroborated by.testimony regarding his own statements of a self-serving character. The other grounds of appeal rest on alleged errors in the charge of the court, the principal one being that the court instructed the jury that at the interview, when the letting is claimed to have been made, the lessor and defendant had struck a balance in their mutual accounts, and the error urged is that defendant denied that this was done, and, therefore, it presented a jury question. But a careful reading of the charge does not' substantiate this claim. The court first dealt with the claim of plaintiff and said: “You will see in that statement that was made * * * there was rent discussed, and there was at that time an agreement arrived at between these two brothers and a balance struck for some amount. Mrs. Dunne says that balance was $1,900 and some odd dollars.” This was said with regard to plaintiff’s proofs, for it was immediately followed by an instruction that defendant denied this, which plainly left the dispute as to the balancing of the accounts to the jury who had the advantage of seeing the written statement, to which the court referred and which was in evidence. This statement which may show a settlement of the accounts was not printed in the record brought up by appellant, and he can have no advantage from the omission to put it in the record. The instruction was not happily expressed, but reading all of the charge the jury could not have been misled to .think the court was withdrawing from it the question .of the accounting.

The other objections argued have been examined but have not sufficient merit to require consideration. The judgment will be affirmed, with costs.


text:
    HARPER DRIPPS, PLAINTIFF, v. WALKER D. HINES, DIRECTOR GENERAL OF RAILROADS, DEFENDANTS.
    Decided February 20, 1923.
    For the plaintiff, James Mercer Davis, Charles M. Atkinson and Isaac W. Eason (of the Virginia bar).
    For the defendant, Bourgeois & Coulomb.

   Per Curiam.

The negligence complained of as the cause of the accident —a collision — was the failure of the railroad company to give an audible signal; that seems to be the only ground on which the plaintiff could rest his case.

An examination satisfies us that the great weight of the evidence was in favor of the defendant. It consists not only of evidence of their own employes but of impartial bystanders. Moreover, even if there had been no audible signal we do not understand how any traveler crossing the track at that point could, if he had exercised proper care, have failed to see the oncoming train. For twenty-five feet before they reached the crossing there was a view of two hundred feet or more up the railroad in the direction from which the train came, and the plaintiffs say they were driving the automobile very slowly, just drifting. If that were so they could have stopped within a very few feet; instead of stopping they went on until they undertook to turh and were struck by the train.

We think the rule to show cause should be made absolute.


author: Flannagan, J.

text:
    Essex County Orphans Court.
    In the matter of the final account of the executor of James E. Turnbull, deceased.
    [Decided March 2d, 1923.]
    ¿Attorneys’ fees. Practice in Orphans Court on application therefor stated and appropriate method of preparation of supporting affidavit indicated.

      Mr. William H. Parry, proctor with the Harriman National Bank, executor.
   Flannagan, J.

The court is unable to reach the conclusion, from the papers submitted, that the payment of $2,000 made to the New York attorneys, as attorney’s fees, and set forth in the account, was reasonable and. just.

It is the established practice before this court to apply to the court to fix the amount of counsel fees at the time the final account is submitted and before they are paid, and not to pay counsel fees in advance and then submit them for allowance in the form of an expenditure already made. A departure from the established practice, as was done in this case, is not looked upon with favor by the court.

The application to fix counsel fees should be supported by affidavits which should, so far as appropriate and circumstances will permit, show facts from which the court can perceive (1) the amount of the estate and the amount in dispute or in jeopardy, as to which professional services were necessary; (2) the nature and extent of the jeopardy or risk involved or incurred; (3) the work done, indicating the experience and judicial knowledge required, and the skill, diligence, ability and judgment shown; (4) the time occupied by the attorneys; (5) the results accomplished by them, and if the results are not measured in money, their importance to the estate; (6) any special or extraordinary circumstance which should be brought to the attention, of the court. In re Hahn, 81 N. J. Eq. 523, 529; Thornt. Atty. 922, 930; Randall v. Packard, 142 N. Y. 47, 56; O’Neill v. Crane, 72 N. Y. S. 812; 65 App. Div 358; Harland v. Lilienthal, 53 N. Y. 438; Town of Hempstead v. City of New York, 83 N. Y. S. 806; 86 App. Div., 300. The standing of the attorney in his profession for integrity, learning, skill and proficiency may be shown (Randall v. Packard, supra, at p. 56), if unknown to the court.

Where payments for attorneys’ fees have already been made only such amounts will be allowed as are established as reasonable compensation. Hurlbut v. Hutton, 44 N. J. Eq. 308; Kingsland v. Scudder, 36 N. J. Eq. 287. And no- allowance will at any time be made for work done which does not require professional skill and which the executor, administrator or trustee might, as laymen, have done themselves. Hulbut v. Huton, supra; Wyckoff v. O’Neill, 71 N. J. Eq. 731; 72 N. J. Eq. 882; Kocher N. J. Pro. L. 408.

If the fiduciary sees fit to employ counsel to do what he himself as a- layman is competent to do and what it is his duty to do, such services should be .paid for by the fiduciary out of his commissions.

Where there appears, as in the present case, to be a number of separate matters in which professional services were rendered, services should be classified under separate heads. Divisions which suggest themselves in the instant case are (1) New Jersey inheritance tax; (2) New York transfer tax; (3) federal estate tax; (4) probate proceedings, including proceedings for deposit and release of securities; and designation of clerk of surrogate’s court, and so forth; (5) Dr. Whalen’s bill; (6) Sterling property sale; (7) ancillary proceedings in New York; (8) title to property Anthony and Garfield streets; (9) grand concourse property; (10) examination of law and legal services and other miscellaneous matters.

Leave is granted to submit affidavits within ten days in accordance with the above, and they will be considered as if originally presented. Otherwise the matter will then be disposed of on the papers now before the court.