text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LOUIS SILVER AND IZZY PRESSER, PLAINTIFFS IN ERROR.
    Submitted February term, 1924
    Decided May term, 1924.
    Crimes — Conspiracy to Commit Crime — -Unlawfully Manufacturing Burglars’ Tools — Plea of Autrefois Acquit interposed— Conviction Affirmed.
    On error to the Essex Sessions.
    Before Gummere, Cm be1 Justíce, and Justices Mixtckn and Black.
    .For the state, John O. Bigelow.

    For the plaintiffs in error, John IF. NcGeehan, Jr.

   Per Curiam.

The defendant were convicted on an indictment charging them with conspiracy to commit crime, with the view of carrying out that conspiracy, unlawfully manufacturing burglars’ instruments, for the purpose of opening safes and stealing therefrom money and oilier property. They had been tried and convicted on an earlier indictment charging them-with conspiracy to manufacture burglars’ tools, fox the purpose of breaking and entering the safe of one Germanus. That conviction was set aside by this court and the record remitted to the Court .of Quarter Sessions, “to be proceeded with in accordance with the practice of said court.”

When the case at bar was moved, the defendants interposed a plea of autrefois acquit, and, after a hearing on that plea, the court directed a verdict upon it in favor of the state. The contention now is that this direction was error, in that by putting the defendants on trial on this second indictment, they were twice put in jeopardy. The same situation existed in the case of Smith & Bennett v. State, 41 N. J. L. 598, where it was held that the reversal of a conviction, and the sending back of the record for the purpose of a new trial, was not in contravention of any constitutional right of the defendants. It is also to be observed that the charge under the present indictment is fundamentally different from that contained in the first case, and the state had a right to delay the moving of a second trial on the first indictment, pending the final determination by this court of the issues presented on the second indictment.

It is also urged that the trial court erred in permitting the state’s witness Brice to be 'interrogated with relation to testimony given by him on the trial of the earlier indictment, it appearing that on the present trial his memory was quite defective, his statement being as to many facts that he had no recollection, while on other occasions his utterances were contradictory of the testimony given on the previous trial. The situation thus produced is not within the doctrine of State v. D’Adam, 84 N. J. L. 386, since the procedure of the state was not the impeaching of the witness, but the reviving of his recollection' as to matters to which he had previously testified, and concerning which his memory appeared to have lapsed. This situation brings the case within the rule laid down by the Court of Errors and Appeals in State v. Kwiatkowski, 83 Id. 650, where the procedure was upheld.

It is contended that the court erred in permitting the state to cross-examine the defendant Silver with relation to the number of times that he had been convicted of crime. Under the Evidence act the state may show a conviction either hv cross-examining a witness or by producing the record, and if there are several convictions, the state is at liberty to produce records in each case. That being so, a witness may be cross-examined as to his record in each case.

It is next urged that the court erroneously permitted the state, in cross-examining the defendant Presser with relation to prior convictions, to ask him as to the duration of his sentence of conviction. If, instead of proving the convictions on cross-examination, the -state had seen fit to produce the record of the conviction, that record would have shown the sentence as well as the conviction. It was not improper, therefore, for the state to prove by the cross-examination anything that would appear in the record.

We find nothing objectionable in the charge of the court, nor do we think that a direction of a verdict of acquittal would have been proper, while our examination of the testimony leads us to conclude that the verdict was not against the weight of the evidence.

The judgment of conviction will therefore be affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JESSIE L. KIMBLE v. CHARLES T. KAVANAUGH ET AL.
    Decided June 4, 1924.
    Negligence — Motor Vehicle Injury — Collision on Account of Repairs on Highway When Steam Shovel was Operating.
    On rule to show cause from the Sussex Circuit.
    Before Gummere, Chiee Justice, and Justices Mixturn- and Black.
    Por the rule, Wall, IlaigM, Carey & Harlpence.

      Contra, Hugh C. Balclwin and Dolan & Dolan.

   Per Curiam.

The rule contains the following reservation: “That the defendants be permitted to reserve the exceptions taken at the trial to the refusal of the court .to direct a verdict in favor of said defendants, and to the court’s charge^ and that this rule will not preclude the taking of an appeal by said defendants on the reserved exceptions.”

' The action was brought to recover compensation for injuries received by the plaintiff while driving along a public highway, in the borough of Sussex. The defendants at the time of the accident were engaged in reconstructing a portion of this highway, under a contract with the state, and were operating a steam shovel in furtherance of the work. As the automobile in which the plaintiff was riding, and which was being driven by her husband, was about to pass the steam shovel, the latter was swung, across the road by ■defendants’ employes, and collided with the automobile, inflicting injuries upon Mr. Kimble, from which he died, and also inflicting the injuries upon Jessie Kimble, for which she brought this action.

The first ground upon which it is sought to make the rule absolute, is that the plaintiff at the time of the accident was a licensee on the road, to whom the defendant owed only the duty to refrain from acts willfully injurious. This point obviously is directed to' the charge of the court to which exception was noted, and as all the exceptions taken at the trial to the court’s charge are reserved from the operation of the rule, this point cannot now be considered.

It is next urged that it was error for the trial court to charge the jury that it must consider .whether or not it was negligent on the part of the defendants to permit the steam shovel to be operated without' a warning to people traveling on the highway. For the same reason this point cannot now lie considered.

It is also urged that the trial judge erred in refusing to charge the defendants’ first request, which was that “if Mrs. Kimble went riding with her husband, knowing that he was under the influence of liquor to such an extent as to render him incapable of exercising the degree of care required of a sober man in the same circumstances, her act in doing so was contributory negligence, which would bar her from recovery.” This request, not being within the reservation, may be considered with the general observation that the request was properly refused. It does not specify what the “circumstances” are to which the request applies. Kor is it apparent that the wi fe’s driving with her husband while he was intoxicated was contributory negligence, unless it was a contributory cause to the accident: the fact that the husband was intoxicated, it is manifest from the record, had no relation to the accident, and it is not contended that he did anything, or omitted to do anything, which a sober man would not have done, or omitted to do, under the same circumstances.

It-is argued that the road was closed to public travel, but the proof preponderates to the contrary, and whether Mr, Kimble was guilty of reprehensible conduct in driving along this road, which a sober man would not have been guilty of, would depend, to some extent, at least, upon this controverted question of fact.

Finally, it is urged that the verdict is excessive,- but in this we do not concur. The plaintiff suffered a broken right wrist, and her left arm was fractured at the elbow joint, and, in addition, she received serious bruises. She was a wage-earner, and her injuries incapacitated her from earning her living for a period of three months. It is quite apparent that her injuries are permanent, and prevent the full use of either’ arm.

The rule will be discharged.


author: Kjnkead, J.

text:
    Hudson County Common Pleas Court.
    Alexander Kopko, administrator ad prosequendum of the estate of Walter Kopko, deceased, plaintiff, v. New York Live Poultry Company, defendant.
    Negligence — Excessive Damages Under Death Act — Peculiarly Able and Promising Person — Potential Earning Capacity Large.
    On action at law. On Buie.

      Messrs. O'Brien & Tartalshy, for tlie plaintiff.

      Mr. Alfred Brenner and Mr. Julius Lichtenstein, for the defendant.
   Kjnkead, J.

Plaintiff has a verdict, under the Death act, for nineteen thousand five hundred ($19,500) dollars, which is attacked by this rale as being excessive.

A prior judgment of fifteen thousand ($15,000) dollars was set aside by me as being excessive1, hut in that case the issue was tried before another judge, and only the argument on the rule was heard by mo.

I am in a better position to decide the present motion to set the second verdict aside, because the case was retried before me as trial judge, and I was therefore in a position to. hear all the evidence offered, on behalf of the plaintiff, which is far more satisfactory than merely ascertaining the same from arguments of counsel.

I have concluded that the hoy, for whose death damages .are being asked, was a remarkable child in more ways than one, but, particularly, that he was an extremely talented musician. I do not conclude that he would have reached the heights attained by Elman, Kubelik, Spalding and the other masters of .the violin, but, in my opinion, he was sufficiently talented to justify the belief that he would have been able, had his life been spared, to have earned large sums of money both b}’ his ability as a musician and as a musical teacher. Since the jury may properly take into consideration, as elements of damages, not only the earnings of the deceased hoy until he reached the age of twenty-one years, but also the voluntary contributions he would make to his parents and next of kin after he.had reached that age, I have concluded that while a judgment of nineteen thousand five hundred ($19,500) dollars is excessive, that, under all the circumstances, a judgment in the amount of the original- verdict, to wit, the sum of fifteen thousand ($15,000) dollars, is justified.

Therefore, unless counsel for the plaintiff are satisfied to reduce the judgment to the said sum of fifteen thousand ($15,000) dollars, I will order the verdict set aside and grant a new trial as to damages only.


author: Leaming, V. C.

text:
    Leslie H. George, complainant, v. Anna B. Iverson et vir., defendants.
    [Submitted June 2d, 1924.
    Determined June 5th, 1924.]
    Mortgages — Foreclosure—For Purchase-Money — 'Defense That Property Was- Not as Represented — Counter-claim—Answer Allowed to: Stand.
    On bill to foreclose mortgage. Hearing on motion to strike out answer and counter-claim.

      Jfessrs. Powell & Erickson, for the motion.
    J/p.9srs. Leap, Sharpless £ Way, opposed.
   Leaming, V. C.

The hill filed herein seeks the foreclosure of a mortgage made by defendants to1 complainant. The bill is silent touching the origin of the mortgage except as to an averment that it was given to secure an indebtedness from defendants to complainant.

Defendants have filed an amended answer and counterclaim. Complainant now moves to strike out the answer on the ground that it sets forth no> defense, and also' moves to strike out the counter-claim on the ground that it is frivolous and sets forth no facts adequate to support a counter claim.

The Ansiver.

The motion is to strike out the entire answer. Obviously, it cannot prevail, since Pie answer to the first four and the sixth and seventh paragraphs of the hill are unobjectionable. But since it is apparent that the a-im of complainant is to test the sufficiency of the fifth paragraph of the answer and the affirmative defense, embodied in the answer, which is, essentially a repetition of the fifth paragraph of the answer, the sufficiency of these averments will be here considered.

The answer discloses that the mortgage sought to be foreclosed is a purchase-money mortgage; that on April 8th, 1922, defendant Ann M. Iverson purchased from complainant a.certain-tract of land and received from complainant a deed of conveyance in which the property so purchased was attempted to- be described, and on that' date defendants- executed to complainant the mortgage now sought- to -be foreclosed to secure the payment of a part of the purchase price. It does not-appear whether the'mortgage contains the same description of the land-as that contained in the deed, but that fact was assumed at the argument. Nor does it anywhere appear whether the deed of conveyance contains any covenants; at the argument it was assumed that the deed was o-f general -warranty. The further averments of the ■answer disclose that the controversy arises from the fact that the beginning point of the description of the land contained In the deed of conveyance to defendants is described as the Intersection of the Sea Shore road, which road forms the frontage of the tract conveyed, with the right of way of a certain railroad; the description then follows the Sea Shore road nine hundred and sixty-five feet, more or less, to a point one hundred feet distant from a certain creek; the second course parallels that creek one hundred feet therefrom, one thousand three hundred and fifty feet, more or less, to a point intersecting the line of tire right of way of said railroad; the third course follows the line of that right of way byr a curve to the right one thousand nine hundred and- fifty feet, more or less, to the place of-beginning, “said plot containing nineteen and forty-eight hundredths acres.” The answer further avers that at the time of the sale complainant represented to defendants that this railroad right of way was twenty-five feet in width, extending twelve and one-half feet either side of the centre line of the railroad, whereas defendants liave now ascertained that the railroad right of fray-is in fact fifty feet in width, and extends twenty-five feet either side of its centre line. This misrepresentation, if made, obviously, had the effect of shortening defendant frontage on the Sea Shore road twelve and one-half feet and reducing it from the nine hundred and sixty-five feet frontage, referred to in the deed, to nine hundred and fifty-two and one-half feet; it would also reduce the acreage by eliminating twelve and one-half feet on two sides of the triangular tract conveyed, since the first course must stop at a point one hundred feet from the creek. The answer further avers that complainant represented that the buildings were not on the railroad right of way, but were located upon the lot to be conveyed by the description used in the deed and mortgage, whereas the effect of the beginning point, as described in the deed being twelve and one-half feet southwesterly of tile point where complainant represented it to- be, is to leave eight feet of the house on the railroad right of way. Defendants claim by this answer to he entitled to a deduction from the mortgage debt by reason of receiving less land than bargained for and attempted to bo conveyed.

I think this answer sufficient. If, in fact, complainant represented to. defendants that the railroad right of way extended but twelve and one-half feet either side of its centre line, and represented that the buildings were on the tract sold, that representation must be regarded as a representation of a physical fact on which defendants were privileged to rely. It is a, representation of fact touching the physical location on the ground of complainant’s boundary line, and cannot lie classed as in the nature of a representation that complainant has a good title, which latter class of representations are regarded as merged in covenants of title finally exacted in the deed of conveyance. Covenants in the deed of conveyance warranting title in complainant would not, in such case, he available to defendant, since complainant enjoyed 1 itle to- the land as it was described in the deed of conveyance.

The Gounter-Glaim.

The counter-claim is essentially a restatement of the averments contained in the answer to which is added an averment that defendants have expended certain money fox repairs to the building. Prayers are appended to the counter-claim asking for .credits for these expenditures and also for shortage in acreage by reason- of the misrepresentations

If the averments- of the counter-claim are-true, I think it fully adequate to support the prayer for credit for shortage in acreage. Whether sufficient to sustain a credit- for expenditures on the house need not- be considered, since the motion is against the entire counter-claim, and is not effective as to its prayers in any event.

Complainant’s motions will be denied.


author: Foster, V. C.

text:
    Edward M. Colton, complainant, v. Leila Piggage et al., defendants.
    [Decided June 13th, 1924.]
    Conveyances — Correction of Mistake — Terms Upon Which Correction is to be Made — Adverse Possession Not Apparent.

      Mr. John IF. Slocum, for the complainant.

      Mr. Thomas P. Pay, for the defendants Leila Piggage and Harry .Piggage.

      J\Ir. Benjamin P. Morris, for tlie Long Branch Building; and Loan Association.
   Foster, V. C.

(orally).

The proofs satisfy me that the prayer of the bill for the-correction of the mistake in the description contained in the-deed from the complainant to. Mrs. Piggage should be allowed, and that the description contained in the mortgage-from her to the building and loan association should be corrected, and that the prayer for the reformation of the mortgage should be allowed, upon condition, however, that complainant make good his tender to convey to her that part of the premises which it was intended she should have title, to,, and which the complainan fc, for the purpose of effecting’ a settlement with her, obtained title thereto from the heirs of Burton Woolley.

This correction of the deed should be without any expense-to Mrs. Piggage.

Complainant has throughout the ease offered himself ready and willing to make this correction in the title, and the condition that he do so can be embodied in the decree.

I find nothing in the case to- support the allegations of the-answer that Mrs. Piggage and her predecessors in title held by adverse possession any portion of the property involved in this controversy, and a decree will be advised accordingly.


text:
    John P. Callaghan, petitioner, v. Anna Callaghan, defendant.
    [Decided June 9th, 1924.]
    Divorce — Adultery—'Master’s Report That Charge Was Not Proven Not Sustained.
    On petition for divorce. On exceptions to master’s report.

      Miss Paula Lacldey, for the petitioner.
   Foster, V. C.

(orally).

Exceptions have been taken to the divorce report of the -special master in this ease, and particularly to that portion -of it in which the master reports that “it is not proven to his satisfaction that the defendant, since her marriage to the petitioner, and on the 30th dajr of May, 1923, committed adultery with Duke Schiller at a hotel conducted and operated by Patrick J. Kane, of Keansburg, New Jersey. The petitioner has attempted to prove this charge by Patrick •J. Kane. I have carefully examined the testimony of the said Patrick J. Kane, and I aln not convinced that he is telling the truth.”.

The master does not give any reason for his conviction that Mr. Kane is not telling the truth, nor does he refer to the fact that in some of his testimony Mr. Kane is corroborated by the testimony of his wife. Mr. Kane is the uncle, by marriage, of the defendant. He testifies that oh the 29th day of May, 1923, the defendant, accompanied by the said Duke 'Schiller, came to his hotel; that Schiller, at the solicitation ■of the defendant, decided to remain over night at the hotel, upon the promise by Kane that he would call him at six o’clock in the morning, in order that he might go to his work. Kane states that, to- accommodate the defendant, he gave-up his room with his wife, and that Mrs. Kane and Mrs. Callaghan occupied the same room and bed, while he occupied a room some distance away from them, known as No. 14. The room occupied by Mrs. Kane and Mrs. Callaghan being No. 12. Mr. Kane testifies that on the morniug of May 30th he went in the room occupied by Schiller at six o’clock in the morning, for the purpose of awakening him,, and found Mrs. Callaghan in bed with Schiller; that he-aroused Schiller, but did not awaken Mrs. Callaghan, but he-was indignant and went back to his room and reported what he had seen to- his wife. In about twenty minutes he again-returned to the room, occupied by Schiller, and found Schiller and Mrs. Callaghan in the act of adultery, and that he returned and reported what he had seen to- his wife. Mrs. Kane, the defendant’s aunt, corroborates him, and states that she and the defendant retired together about one o’clock in the morning; that Mrs. Callaghan was in bed with her when Mrs. Kane went to sleep, and that when Mr. Kane aroused her in the morning about six o’clock, she found that sometime during the night Mrs, Callaghan had left her bed and left the room, and that shortly after Mr. Kane had informed her of what he had seen in Schiller’s room, Mrs. Callaghan carneback in Mrs. Kane’s room and dressed herself with the clothing that she had taken off there the night before, and that neither she nor Mrs. Kane made any reference to what the-husband testified he had seen in Schiller’s room, and neither Kane nor his wife made any mention of the matter to Mr. or Mrs. Callaghan, or to anyone else, until the following August. There is testimony in the case that Mrs. Callaghan-has neglected lier child, a/bo-v of tender years; that she has been intoxicated, and that she was found in a restaurant in-Greenwich village, known as Mori’s, in an intoxicated condition; that she introduced a man named Schmidt (later-known as Halvin'), who was also under the influence of liquor, as her sweetheart: that she left her husband, with his permission, to visit a friend, presumably a lady, in Baltimore, for ten days, and remained there for six weeks, and that there was, subsequently, discovered in her poeketbook tele.grams and letters addressed to her by one Arthur Malvin, from .Baltimore, together with a photograph of Malvin, who "was identified as the man who was in defendant’s company ••at the Mori restaurant, and to whom she referred as her '“sweetheart.”

1 find nothing in the record to justify the action of the .master in refusing to believe or accept the testimony of Mr. or Mrs. Kane. No reason, as I state, has been assigned by him for his refusal to believe Kane’s testimony to be true, •and in the absence of any contradiction or any circumstance •that would indicate it to bfe untrue, I think it should be accepted as a verity, particularly in View of the relationship between Mr. and Mrs. Kane and the defendant.

L will therefore advise that the exceptions be sustained *and that a decree be granted to the petitioner.


author: Fosi'ei?, V. C.

text:
    Ludlow R. Stevens, petitioner, v. Marjorie G. Stevens et al., defendants.
    [Submitted May 21st, 1924.
    Decided June 7th, 1924.]
    Divorce — Maintenance'—Extreme Cruelty — Adultery—Decree for Petitioner.
    On petition for divorce.

      Mr. Merritt Lane, for the petitioner.

      Mr. Jacob L. Newman, for the defendant Marjorie G. Stevens.

      Mr. Andrew Van Blarcom, for the co-respondent John H. Paswafers.
   Fosi'ei?, V. C.

The litigation between these parties began in February, 1921, when Mrs. Stevens filed a bill for maintenance. Petitioner filed an answer thereto^ denying the charge; thereupon the bill was amended, to- charge extreme cruelt}’, and asking for a divorce from hod and board, and Mr. Stevens in his answer denied this charge. This action was never brought on for hearing.

In August, 1922, petitioner filed his petition for a divorce on the ground of adultery. Mrs. Stevens filed an answer theme denying the charge, and in a counter-claim, charged petitioner with desertion and asked for relief thereon, and in addition pleaded recrimination and also charged petitioner with certain acts of adultery, at his office, with one Marie Sutz,- on December 23d and 24tli, 1920 ; on January 14th, 15th and ICtli, 1921, and on every day between April 1st and April 8th, 1921. At the hearing these charges of adultery wore apparently abandoned, and no proof was offered to establish them, and petitioner filed an answer denying all these cha rges.

There was no formal consolidation 'of these various causes, but counsel at the hearing agreed that they should he tried together. The hearing then proceeded, the petitioner first assuming the burden of proving the allegations of the petition that the defendants committed adultery on August 12th and 13th. 1922, on’a steamer going from New York to Bermuda, and between August 14th and August 22d, 1922, at Bermuda, and August 22d and 23d, 1922, on a steamer sailing from Bermuda to New York, and on August 25th, 1922, at 19 Midland avenue, in Montclair, in this state.

The marriage and residence of the parties have been clulv established, and all of the parties are between thirty and thirtv-five rears old.

The record is a voluminous one; the proofs offered to establish the allegations of the petition are substantially as follows:

Petitioner is engaged in the optical business; his wife has, or had, independent means through inheritance, and she owns the house at 79 Midland avenue, Montclair.

A child was bom on July 2d, 1914. Prom about 1917 the parties had occasional quarrels over m:en who called on Mrs. Stevens, or who boarded with them, and particularly over her relations with one known as Edward S. Burton, and-over petitioner’s relations with Miss Sutz, who -was employed in his office. Although they continued to occupy the residence in Montclair for some time after that, the parties appear to have ceased cohabitation and to live separa1tely since January, 1921.

Mrs. Stevens met Paswaters at a party in February,' 1922, and met him at social affairs occasionally thereafter. There was some estrangement between Paswaters and his wife over his acquaintance with Mrs. Stevens and other women dnring the spring and summer of 1922, and they separated in September of that year.

In August, 1922, Paswaters had decided to spend his vacation in Canada; when Mrs. Stevens requested him to secure passage for her for a trip to Bermuda, ho bought the tickets, for which she paid him, and at the same time be canceled his Canadian trip and secured passage for himself on the same steamer on which Mrs. Stevens sailed, without notifying, his wife of the change in his plans. They returned to New York from Bermuda on the afternoon of August 24th, and went to her residence on Midland avenue, Montclair. Dr. Stevens an'd his witnesses had kept them under observation from the hour of their arrival in New York until about four-thirty A. M. on August 25th, when Dr. Stevens, accompanied by Detective Corbally and several others, effected an entrance into the house and found Mrs. Stevens and Paswaters in bed together. He was in pajamas and she ivas wearing some kind of night clothes. His clothing was found in another room and part of it ivas taken and offered as an exhibit. Pas-waters requested the detectives to leave his golf knickerbockers as he wished to play golf the following day, and also requested them to fasten the door through which they had entered when they went out, and Mrs. Stevens asked Cor-bally how they got in and what they -wanted. She also told Dr. Stevens it was a dirty trick for him to do, and he told her he thought he was doing the right thing, and was justified in what he was doing.

There iras no maid and no one else in the house at the time this raid was made.

The following day the defendants called on the representative of an estate in which Mrs. Stevens has an interest and told him what had happened, and later they went to friends of Mrs.. Stevens in Connecticut, where they also told of the visit by Dr. Stevens and the detectives.

i'n addition to a general and complete denial of all petitioner's charges and evidence, defendants show that Mrs. Stevens knew Paswaters' intended to spend his vacation in Canada; that she objected when she learned that Paswaters had booked passage on the same, ship to Bermuda; that they occupied separate staterooms on the steamer and also occupied different rooms in the hotel during their stay of a week in Bermuda; that Mrs. Stevens on the entire trip on the steamer was ill from seasickness and also suffered from severe hemorrhages, which was customary during her period of menstruation ; that on their arrival in New York Mrs. Stevens was seriously ill, and that because of this Mr. Paswaters assisted her to her home in Montclair; that upon their arrival there they tried unsuccessfully to get some one to look after her, and that Paswaters was therefore obliged, so he thought, to remain all night alone in the house with her, in order to render her any assistance lie could; that they occupied separate bedrooms, with the door off each room closed, and Pas-waters states that at this time he did not know Dr. Stevens,, and presumed that she was divorced. He further testifies that at the time Dr. Stevens and the detectives entered the house lie was asleep, and when the noise of their entrance awoke him he found Mrs. Stevens sitting on his bed. and when she attempted to get up the detective pushed her into a chair, but tried to push her down on the bed in which he was tying.

He further states that when he found her sitting on, or by his bed, he thought it was a frame-up, that she was acting in collusion with Dr. Stevens to blackmail him and to get money from him.

Defendants also offered evidence to show that Mrs. Stevens’ period of menstruation was about the second or third week in the month; that at these times she was very ill and was subject to severe hemorrhages, and that it was therefore impossible for her to have had intercourse with Paswaters on any of the dates named, and particularly on August 24-th or 25th, when the so-called raid was made.

This summary presents substantially the evidence offered on the part of the defendants, as no particular effort was made, aside from the testimony of Mrs. Stevens, which is largely uncorroborated, to establish any of the allegations of her bill, her cross-petition, or her amended cross-petition.

Prom my consideration of the entire record, I find the proofs to clearly and convincingly establish the charges of adultery alleged in the petition, and I will advise a decree for the petitioner, and will also advise that the bill, cross-petition and amended cross-petition be dismissed.


author: Leawiyg, V. C.

text:
    Kathryn W. Rosier, petitioner. v. Emily L. Fischer, respondent.
    [Submitted June 6th, 1924.
    Determined June 13th, 1924.]
    Custody of Children — Rights of Parents — Best Interest of Child —Facts Considered at Length and Writ Dismissed Without Prejudice.
    On petition. Oil hearing at return of writ of habeas corpus.

      Mr. William T. Boyle, for the petitioner.

      Mr. Walter S. Keown, for the respondent.
   Leawiyg, V. C.

The petition filed herein sets forth that Oscar Rosier, Jr., is ten years of age and is the legally adopted son of petitioner: that the child is now in the custody of Emily L. Fischer, with whom petitioner placed the'child to board: that Mrs. Fischer, against the will of petitioner, refuses to surrender the custody of the child to petitioner. The petition then prays that a writ of habeas corpus may be issued commanding Mrs. Fischer to bring the child before this court and disclose the cause of his detention and submit to such order as the court should make. No specific prayer is made in the petition that the custody of the child be awarded to petitioner.

A writ of habeas corpus was then issued pursuant to the prayer of the petition, and on the return clay the child was brought into court and a return, under oath, filed to the writ by the respondent, setting forth that the child was oleren years of age and in the custody of respondent: that the child was placed in respondent’s custody by petitioner in January, 1933, with the consent of the Delaware County Trust Company, who was the guardian of the child’s property, and that the child has been in respondent’s custody since that time; that respondent has never refused to surrender the custody of the child to petitioner; that respondent maintains a home for motherless children and at the request of petitioner took the child ti> board; that respondent has been paid for the board and maintenance of the child by said trust company; that respondent has well cared for the child, and at no time has refused to permit petitioner to see the child or refused her the child’s custody; that on one occasion in the last month respondent, upon receipt of a telephone call from petitioner that she was coming for the child, had him dressed waiting to go with petitioner, but petitioner did not appear to take the child.

No answer has been filed to that return.

In view of the statements contained in the opinion filed by Mr. Justice Knapp in Richards v. Collins, 45 N. J. Eq. 283, to1 the effect that a failure to traverse the material averments of a sworn return to a writ of habeas corpus is operative to admit their truth for the purposes of the case, it may be .doubted whether this court can at this time do more than merely discharge the writ. The admission of the averment of the return to' the effect that respondent has not refused to surrender the custody of the child to petitioner, would seem to render the writ improvidently issued.

When the cause came on for hearing, this aspect of the situation was brought to the attention of the parties by the court with the inquiry whether respondent was now willing to surrender the child to petitioner. By reason of the hesitancy of counsel for- respondent to give that assurance the hearing proceeded upon the assumption that respondent, as present custodian of the child, contested petitioner’s claim of right to custody.

The child, here the subject of controversy, is the son of petitioner’s husband by a former marriage. After marrying the child’s father petitioner adopted the child by formal court, proceedings. Since that time petitioner has become a widow.

The general effect of adoption is the creation of a. relation betunen the adoptive parent and the adopted child, which is essentially the same as that of a natural parent and child. The. duty of obedience of the child and the obligation of control and support imposed upon the adoptive parent are precisely the same as like duties anil obligations arising from the natural relation.

It follows that it is the strict legal right of petitioner to enjoy the custody of her adopted child.

But this right cannot be enforced by the courts, in all circumstances. It has long been the recognized law of this slate, as defined by our court of last resort, that in controversies over a child's possession “its Welfare will he the paramount consideration in controlling the discretion of the court.'' “The court will not regard the parental right as controlling, when to do1 SO' would imperil the personal safety, morals, health or happiness of the child.” The age and mental development of a child must also be considered. While it is scarcely possible to refuse a. parent the custody of a child of tender years, should the parent in all respects be a desirable custodian (Ziezel v. Hutchinson, 91 N. J. Eq. 325), other circumstances, including the wishes of the child, properly may be considered when, the child has attained an age and mental development to appreciate the circumstances of flie case and form a rational judgment* Richards v. Collins, 45 N. J. Eq. 283.

At this time petitioner enjoys neither a home nor pecuniary means to care for her adopted son. It is her wish to place the child in the home of a friend who lias recently established a residence at Audubon, Yew Jersey, whereas petitioner resides in Pennsylvania. The court has been afforded but meagre information touching either the home or essential qualities of this friend of petitioner’s, as. a. custodian for this child. To treat the petition as a petition for custody and grant the relief now urged by petitioner is to award the custody of the child to this friend of petitioner and not to petitioner, except in the sense that the award would be to a person of petitioner’s choice.

The child, who is the subject of controversy, is eleven years of age, enjoys unusual mental development and keenly comprehends all the circumstances surrounding the present situation. He is happy in his present home and desires to remain there.' He repels with the keenest intensity any effort to compel him to return, to petitioner or to go to the home of petitioner’s friend. A close attachment has arisen between the boy and respondent, and their separation, if enforced, obviously will be a source of great sorrow to both. Respondent’s home is well equipped with surroundings peculiarly suited to the boy’s apparent love of trees and flowers, and the care the boy has there received is shown to have been all that could have been desired, unless force shall be attributed to certain criticisms which have been made touching religious training received by the hoy at the hands of respondent. The objection to that religious training appears to be that it subordinates the creeds of churches and church attendance to the ideals and teachings of Christ. Nor is it entirely clear that this objection in fact comes from petitioner.

The single doubt which has entered my mind touching the fitness of respondent as a custodian of the hoy, and the desirability of her home as a home for the boy, arises from the circumstances that during the period he has been in respondent’s custody he has developed an intense hatred of petitioner; that hatred is based upon the boy’s belief that petitioner wrongfully caused the death of both his mother and his father. Whether respondent has encouraged the development of that attitude of the boy cannot be known with certainty. The intimate relations between the boy and respondent, and the circumstance that the boy’s hatred of petitioner apparently has arisen during the period of respondent’s custody, suggests that respondent may not be without some degree of responsibility for that mental attitude of the boy. A letter recently -written by the boy to petitioner is filled with cruel statements and expressions of hatred, and. respondent has admitted upon the witness-stand that the boy showed her a copy or preliminary draft of that letter before it was sent, and no suggestion was made by respondent to the effect that she tried to dissuade the boy from sending the letter or to induce him to modify its severity of pression. Indeed, the perfect composition of the letter, and some of the thoughts embodied in it, strongly suggest the aid of some older mind in its prepa,ration. It also is reasonably apparent that at this time some degree of personal antagonism exists between petitioner and respondent; this, if continued, may tend to interfere with the freedom which should exist for petitioner to- visit her boy as frequently as she may desire. Unless these circumstances are giren weight the home of respondent may he classed as an ideal home for this boy.

A consideration of all the circumstances of tire case impels the conclusion that it is my duty at this time to make no award of the custody of the boy to anyone, but to simply dismiss the writ. Neither petitioner nor respondent will be awarded custody by the decree to be entered. The decree need not remove restraint, since there is no- physical restraint. For the present the boy will be privileged to' remain where lie is or return to petitioner or to a proper place of petitioner’s selection. But the writ must be discharged without prejudice to1 petitioner’s right to reassert hex claim for custody, based upon such, conditions as may arise in the future.

Lest the effect of the decree may be misunderstood by the parties, it should he here stated with plainness that custody of the boy is not in any sense to be awarded, to respondent. Should the boy elect; to remain with respondent, well-defined duties on her part will arise which she m,ust observe. It will bo her duty to use every means in her power to induce the boy to respect and love petitioner. If it could be known at this time that she has poisoned the mind of the boy against petitioner she would be deemed an unfit custodian. It will bo her duty to encourage and make pleasant visits of; petitioner to her homo to' see the boy. If her attitude toward petitioner is to be one of hostility; and petitioner is not to be received in her home with cordiality in encouragement of ■parental relations between the boy and petitioner, she will ■necessarily be deemed an unfit custodian. It muy thus be understood that any failure of respondent to observe these ■duties may be made the basis of a future application for the ■removal of the boy from her home.

Therefore, the decree of dismissal to- he entered is not to be understood by the parties as an adjudication that respondent has any right whatever to the custody of the bo3r. As a stranger she has no such right. The adjudication is that, even treating the petition as one for custody under the general jurisdiction of this court as the guardian of all minors, it does not appear that at this time the best interests of the boy mil be conserved by an order awarding his custody to petitioner.

The writ will be dismissed, without prejudice-.


text:
    Nos. 219, 220, 221, 222, 223 and 224,
    February term, 1924.
    THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN. PROSECUTORS, v. REBECCA BABBITT ET AL., DEFENDANTS. THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, PROSECUTORS, v. BARR, THAW & FRASER ET AL., DEFENDANTS. THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN. PROSECUTORS, v. GEORGE RUSSELL ET AL., DEFENDANTS. THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN. PROSECUTORS, v. KEUFFEL & ESSER COMPANY ET AL., DEFENDANTS. THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, PROSECUTORS, v. HARRIS GREENBERG ET AL., DEFENDANTS. THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, PROSECUTORS, v. F. FERGUSON SONS ET AL., DEFENDANTS.
    Submitted March 20, 1924
    Decided June 12, 1924.
    Taxes and Assessments — Sewers.—Sidewalks Under Home Rule Act — Review by Court of Common 'Pleas — ‘Court’s Corrections Sustained.
    On certiorari, &c.
    Before Justices Tbenchabd, Pakkeb and Campbell.
    For the prosecutors, John J. Fallon and Horace Tj. Allen.

      For the defendants, Lichtenstein & Lichtenstein, Hopkins & Herr, Pierson & Schroeder, Besson,, Alexander cG Stevens, Carlyle Garrison, Harlan Besson,. Maximilian M. Stallman and Wall, Haight, Carey cG Hartpence.

   Per Curiam.

These six writs bring np for review six orders made by the Hudson County Court of Common Pleas correcting certain assessments for improvements made by the board of assessment commissioners of the city of Hoboken.

All of the writs have been, by stipulation, consolidated, and have been argued together.

The assessment commissioners made six separate assessments. They were, roughly speaking, three for new sewer systems and three for paving, including sewer connections and sidewalks. After confirmation by the local'authorities, the defendants herein appealed to the Common Pleas Court. Upwards of one hundred and fifty separate appeals were taken by the defendants herein, involving one thousand four hundred and sixty-nine city lots, out of a total of two thousand two hundred and sixty-three (excluding those owned by the railroads). These appeals were taken pursuant to section 42, article 20 of chapter 152 of laws of 1917' (Home Rule act), as amended by chapter 195 of laws of 1921: (Section 42 was again amended — Pamph. L. 1922, p. 201 — but this amendment was subsequent to the taking of these appeals. )

We have examined with care the reasons assigned by the prosecutor, but have found none justifying any interference with any of the orders made by the Common Pleas Court.

The assessments were made under the Plome Rule act, section 21, of which requires the assessors to "make a just and equitable assessment of the benefits conferred upon any lands or real estate by reason of such improvement, having duo regard to the rights and interest of all persons concerned as well as to the value of the lands and real estate benefited.”

Uiider section 24 assessments made for local improvements shall "in each case he as near as may be in proportion to the peculiar benefit, advantage o>r increase in value winch the-respective lots.and parcels of land and real estate shall be deemed to receive by reason of any such improvement, and in. no ease shall any assessment on any parcel of land exceed in amount such peculiar benefit, advantage or increase in value.”1

On appeal, the duty of the Court of Common Pleas, as laid down by the statute (section 42), is to have a hearing on which “said court shall determine whether or not the assessment for benefits or award for incidental damages appealed from, upon or to any parcel of land and real estate, is a just and fair assessment or award, and if not, shall make an order correcting the same," &e.

As to the connections the appeals were dismissed, and so are not before us.

As to the sidewalks, the argument is that the Common Pleas Court was not entitled to1 revise them, because of the old rule that sidewalks are always assessable against the abutting property on a cost basis. The answer to this, and, we think, a proper one, is that the whole assessment was handled under the Home Buie act, and under that act there are alternative methods of collecting for sidewalks, one the old wav and another by including them as part of a “local improvement,” which latter method was resorted to and followed throughout in the present case, and this brings int-play the rule that assessments shall not exceed the benefits that obtains in other cases. See in this connection Pamph. L. 1919, p. 247.

There are a number of railroad properties involved, and there seems to he some sort of claim that the judge erred in his disposition of this special class- of property, but, considering the reasons filed in connection with the briefs, we can find nothing of such definite and pointed character as to require consideration other than that which we give to the general question raised.

"With respect to the general question: Here are six great assessments against two or three hundred owners each in most cases. Perhaps more- than half of the owners appealed. .The Common Pleas Court made schedules annexed to the orders for judgment, in which appear the figures of the assessments as the court revised them. These six orders, with their schedules, are laid before ns in bulk and are argued in hulk. It is difficult to put our finger upon any proposition of law involved which requires discussion. As we have pointed out, the duty of the Court of Common Pleas, as laid down by the statute (Pamph. L. 1921, p. 514, § 42), is tG have a hearing, on which "said court shall determine whether or not the assessment for' benefits or award for incidental damages appealed from, upon or to any parcel of land or real estate, is a just and fair assessment or award, and if Hot, .-shall make an order correcting the same,” &c. In the present eases the court determined that the assessment were not just and fair and did make orders correcting the same. It seems that we are not asked to set aside individual assessments so much as to vacate entirely the orders m'ade by the Common Pleas Court and to affirm the assessments as originally laid. We are asked to set aside these orders which correct these assessments, and counsel invoke the well-understood rule that where the commissioners have made the usual certificate that the assessments, do not exceed the benefits, it takes cogent proof to overrule them, which is true enough. But, on the other hand, it seems proper to observe, that when there has been a statutory review on the facts as to the fairness and' justice of the assessments by a competent court (in This case the Common Pleas), we should be equally loth to overrule the findings of that court after a long and careful 'hearing where evidence was taken in opén court and argument had by counsel from time to time, and as to which evidenc© we shall make some further observations.

The practical difficulty in these cases is not far to seek, and in. large part it is apparently the enormous increase in coste of labor and material since this scheme of improvement was first laid out by the engineer in 1913. At that time he seems to have estimated a little over $600,000 for the entire cost. The entire scheme has not been executed jet, but over $3,000,000 have already been expended, of which seventy-two- per cent, on the average has been assessed against low, swampy lots in the marshy district. In many of the cases the assessment amounts to- more than the original value of the lot. It is very plain that a great deal of these-sewers had to be built at an enormo-us expense-, piles- driven to-support them, and so- on. In such case the question very properly and naturally arises whether the very heavy, assessments originally imposed were justified by the benefits conferred. The Common Pleas Court considered that they were-not, and, as we have indicated, made an appropriate finding, by Way of correction, as to all properties. And we think that the evidence of the experts, together with the other evidence,, not only justified, but required, the findings made by the-trial court. It has been said that the finding by the Common .Pleas Court that an assessment for benefits has been-made according to the peculiar benefits received by the property assessed, will not be reversed in the Supreme Court, if there be evidence- from which the .court so- confirming the assessment could so find. Dean v. Paterson, 68 N. J. L. 664. Whether or not that rule is applicable to the present ease, it is unnecessary for ns to decide, for the reason, as we have-indicated, the preponderance of the evidence required the-conclusion that ihe court reached.

There is much argument by the prosecutor to- the effect that the real estate experts called by defendants were no-fc qualified, but wo cannot say that the trial judge was wrong in admitting airy one of them. Indeed, on the contrary, we think it is reasonably clear that they were qualified to say, as real estate dealers, whether the several lots were enhanced in value to the extent of the assessment.

We think there was no error in admitting the schedule-called Exhibit 8. This seems to have been a recapitulation by some clerk of the figures adopted by the- various witnesses put in tabular form. We- do not think it was evidential at all, strictly speaking, but it was not offered or used as pri: mary evidence, but only as a mere convenience, and as such-was not improper.

Our conclusion is that we are not justified in setting aside the result arrived at in ¡my case by the Common Pleas Court .after this exhaustive investigation.

The writs will be dismissed, with costs.


text:
    WILLIAM M. HENCH, RELATOR, v. CITY OF EAST ORANGE, DEFENDANT.
    Argued February term, 1924
    Decided June 14, 1924.
    Ordinances — Zoning—Erection of Garage — Validity of Ordinance Considered — Nutiey Case Considered — Judgment for City.
    On demurrer to- writ of alternative mandamus.

    Before Gummere, Chief Justice, and Justices Minturn .and Black.
    For the relator, Howe & Barns.

    For the defendant, Walter G. Bilis.

   Per Curiam.

This application for a peremptory mandamus is based upon a demurrer to a. writ of alternative mandamus. The facts presented are that the relator, desiring to construct two automobile garages, on a lot of land owned by him in the city of last Orange, consisting, approximately, of two- hundred and five feet by one hundred and ten feet, which garages are constructed of concrete and intended for the accommodation of sixteen automobiles, applied to the building inspector of -the city for the necessary permission, which was refused, upon the ground that the construction proposed would violate the zoning ordinance of the city.

It is contended on the part of the relator that, under the doctrine contained in some of our decisions, the zoning ordinance is invalid. We are not, however, upon this application, concerned with the question of the validity of the entire ordinance. The question presented substantially is reduced. to the inquiry whether the ordinance is invalid so far as it prohibits the relator from erecting on this property sixteen separate garages, to be erected under two roofs. Such is the proposal as stated in the brief of counsel.

The statute under which the zoning ordinance was passed authorizes the municipalities to pass such ordinances as may be reasonably required for the protection of the health, safety or general welfare of the public. The presumption is in favor of the conclusion that the purpose of the governing body was that indicated in the statute, and, so far as the ordinance affects the rights of the owner of a given piece of property, the burden rests upon him to show that the ordinance is not justified on any such theory, so far as his property is concerned. If it should appear from the ordinance, plus the admitted facts in a given case, that the ordinance lias no such effect, its passage cannot be justified under the statute. Ninth Street Improvement Co. v. Ocean City, 90 N. J. L. 107: affirmed, 91 Id. 703. In that case the Supreme Court, in the last paragraph of its opinion, says: “In our judgment, the erection and management of a. garage, with all its incidental dangers and inconvenience to adjoining property and public travel, are manifestly matters properly cognizable by the municipal governing body, as a subject for regulation in the public interest, under the police power expressly conferred, as, in this instance, or reasonably implied ex necessitate in aid of the general welfare against dangers recognized and obvious to persons and property.” The subject is also- dealt with in the recent adjudication of the Court of Errors and Appeals to the same effect, involving an ordinance of the town of Yutley. Ignaciunas v. Nutley, 2 N. J. Adv. R. 832. It is entirely settled that an ordinance will not be held void as unreasonable, unless, shown to be unreasonable in toto. Roetjgen v. Paterson, 90 N. J. L. 698.

Therefore, if the provision attacked be valid, it is quite immaterial for the purpose of the instant ease whether the remaining sections of the ordinance be legally sustainable or not.

The city is entitled to judgment on the demurrer.


text:
    MATTHEW P. FARLEY, APPELLEE, v. JOSEPH MIKULSKY ET AL., APPELLANTS.
    Argued February term, 1924
    Decided June 14, 1924.
    Negligence — Injury in Tenant — Question of Unfriendly Nature of Witness — Duty of Plaintiff to Defendant.
    On appeal from the Hudson Circuit.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the appellants, Davis & Hastings.

    For the appellee, Charles Rosenthal.

   Per Curiam.

The plaintiff sued to recover for personal injuries received by him from a fall down the cellar stairs in an apartment-house belonging to the defendants. He was going down into-the cellar for the purpose of getting wood or coal out of a part of. the cellar, which had been allotted to' him, as a jury might infer by implication, at least. The jury found for the plaintiff.

The first ground of appeal presented is that the court should have nonsuited the plaintiff, because there was no evideuce sufficient to charge the defendants with any duty to plaintiff. There was evidence that the cellar was for the common use of the tenants, and that the stairway led to the cellar. In the absence of any evidence to the contrary, the jury was entitled to presume that this stairway was a way, furnished by the defendant to their tenants for ingress and egress to and from the cellar, which, apparently, was devoted to a common use. Since it is not denied that the stairway was out of order, one of the steps being broken, which was the cause of the plaintiff’s fall, the nonsuit was properly refused.

The remaining contention is that the trial court erred in excluding certain questions asked of the witness Spiegel, who was also a tenant in the house, and who- was called to- testify by the plaintiff. On his cross-examination he admitted he was unfriendly to the defendant. All the questions excluded hv the court related to the reasons which actuated this feeling of enmity. We agree with the learned trial court that the reasons which caused the ill feeling were entirely immaterial. The inquiry as to whether that feeling was justified was entirely irrelevant, and in nowise connected with the issue. The jury were interested in knowing only whether an unfriendly relation existed, for the purpose of determining the credit to be- given to the witness’ testimony.

The judgment will be affirmed.


author: Pee Curiam.

text:
    GIOCONTO M. ANNUNZIATO, ADMINISTRATOR AD PROSEQUENDUM, v. STANLEY EISNER.
    Decided June 16, 1924.
    Negligence — Death Act — Action Instituted on Erroneous Theory —Action by Father-for His Own Benefit — Rule Made Absolute.
    On defendant’s rule to show cause.

      Before Gummere, Chief Justice, and Justices Mixturx and Black.
    For the rule, Frank G. Turner.

      Contra, Bolilho £ O’Connor.

   Pee Curiam.

The .present action is based upon our Death act, the cause of action being the death of Achille Annunziato', an infant of six years of age, resulting from the negligent driving bv the defendant of his automobile, whereby he knocked down and ran over the child. The suit, however, was instituted and prosecuted upon an erroneous theory. It was brought by the plaintiff personally, as father of the decedent, and 'as administrator ad prosequendum of the estate of'the decedent, and the recovery was sought by the father alone. Moreover, at the conclusion of the trial the jury was instructed, in effect, that in determining the amount of the recovery, if any, it should limit its consideration to the probability of the pecuniary benefit which would have resulted to the father from the continuance of the life of the son.

The amendment of our Death act, passed by the legislature in 1913 (Comp. Stat. Supp., p. 475) provides that the amount recovered shall be for the exclusive benefit of the widow, surviving husband (if either shall exist), and next of kin of the decedent, and shall be distributed among them in the manner provided by law for the distribution of personal property left by persons dying intestate, and the amendment of 1914 to our statute of distribution (Orphans Court act, Comp. Stat. Supp, p. 1156, ¶ III) provides that where the intestate is a minor his estate shall be allotted to the parents. By force of these statutory provisions, the present action should have been brought by the administrator ad prosequendum for the equal benefit of the father and mother of the decedent, and the recovery, if any, should be had for their equal benefit.

The case having been brought and tried on a wrong theory, we conclude that the rule to. show cause should be made absolute, and that the complaint should he amended, the amended complaint filed, and the ease retried, upon the lines which we have indicated.

In the amended complaint it should also be made to appear that the action was commenced within twenty-four calendar months from the date of the death of the decedent.


author: Pee Gueiam:.

text:
    WILLIAM CHANDLER STEWART v. HOME FIRE AND MARINE INSURANCE COMPANY, OF CALIFORNIA.
    Decided June 16, 1924.
    Saie of Personal Property — Conditional Bill of Sale — insurance —Sold by Purchaser Before Payments Completed — .Charge of Theft Not Sustained — If Any Crime, That, of Embezzlement.
    On defendant's rule to show cause.
    Before G uumekk, Ciros Justice, and Justices Mixteen and Black.
    Bor the rule, Edwards .& Smith.

      ContraKatzenbach & Hunt.

   Pee Gueiam:.

This action was brought to recover on a policy of insm anee covering an automobile, the title, to which was in tin, plaintiff, and which-he had sold under a conditional bill of sale to a man named Straus, one of the provisions of the bill being that the title to car should not pass to the purchaser until the, whole of the purchase price should be paid, notwithstanding that immediate possession was to be given to the purchaser. The policy was issued in the names of Stewart and Straus, as their respective interests, might appear, and one of the perils insured against was theft, robbery or pilferage, excepting, however, the wrongful conversion or embezzlement by the vendee in possession under a conditional sale agreement. The trial resulted in a verdict in favor of the plaintiff, and the present rale to- show cause was thereupon allowed to the defendant.

The case made by the plaintiff was that, after the car had been delivered to Straus and had been in his possession for some little time, he took it to New York and there sold it to a man named Schane, who- was in the business of buying and selling second-hand cars. That the latter paid the.agreed upon price for it, and that thereupon the car was delivered to him. That this transfer by Straus was in violation of one of the provisions of the hill of sale which prohibited him from transferring his interest in the car to a third person unless he first obtained the consent of the plaintiff. That a few days after the sale to- Schane one Kelly, an employe of the plaintiff, was informed of the- fact, and that .he thereupon demanded the surrender of the car by Schane. That the latter did not comply with-the demand, apparently being unwilling -to part with the car until he had consulted with a lawjrer and ascertained whether he was under a legal obligation to do- so. That, subsequently, Schane concluded he had no right to- retain the car, and turned it over to- the plaintiff.

These facts, the plaintiff contended, demonstrated that there had been a theft of the car, and that, therefore, he was entitled to recover from the defendant insurance company under that clause in the policy which protected him against such theft. At the close of 'the case, counsel for the defendant moved for the direction of a verdict upon the ground that no theft of the ear, within the meaning of the provision of the policy, had been proved. ’This motion was refused, and the case went to the jury, with the result already indicated.

In our opinion, this verdict is without legal justification, for the reason that the facts above recited will not support the conclusion that there had been a theft of the automobile. Theft, or larceny, Involved the idea of a knowingly unlawful acquisition of property — that is, a felonious, taking of it from one who has both the actual possession and the apparent right of possession. There was no such taking in this ease, either by Straus or by Schane. The latter acquired the car in good faith from the lawful possessor thereof, so. far as the proofs indicate, and, if it be assumed that the transaction involves criminality on the part of Straus, what he did amounted to an embezzlement, which is a fraudulent conversion of property by the possessor after its possession has been lawfully acquired. 9 R. C. L. 126, item 4. Mr. Justice Depue, in the ease of Gardner v. State, 55 N. J. L. 24, says 'that “the natural import of the word steal is that of a felonious taking of property, or larceny.” And that the parties to this, litigation recognized this distinction is made plain by the excerpt from the policy which we have above recited, namely, that the embezzlement, or secretion by the vendee in possession under a conditional sale shall not render the company liable under the clause of the policy insuring against theft.

The rule to show cause will he.made absolute.


author: Pek Cukiam.

text:
    THE STATE v. CLARENCE VARICOLA.
    Decided June 16, 1924.
    Crimes — Concealed Weapons — Robbery—Receiving Stolen Goods —Errors Assigned Considered and Judgment Affirmed.
    On error to the Monmouth Quarter Sessions.
    Before Guanaras, Chief Justice, and Justices Mintukn and Black.
    For the plaintiff in error, Stokes & McDermott.

    For the'state, Charles F. Sexton, prosecutor of the pleas.
   Pek Cukiam.

The grand jury of Monmouth county, at the January term, 1923, presented two indictments against the defendant, one charging him with the offense of carrying concealed weapons, and the other charging him with the crime of robbery, in one count, and with the receiving of stolen goods, knowing them to be stolen, in a second count. Bv consent of both sides the two cases were tried together, and there was a conviction upon each indictment.

The plaintiff in error contends that there should be a reversal of each of these convictions, and bases that contention upon three grounds. The first is that it was harmful error for the trial judge to allow the prosecutor of the pleas to state in a question put'to one Davis, a witness, that he, the witness, had testified to a certain fact embodied 'in the question, when no such testimony had been given by him. The state of the case, so far as it relates to this ground of reversal, discloses the following situation: When Davis, who was a witness called by the state, was on the witness-stand, he had testified to an offer made by the defendant to him to sell forty-five cases of whiskey, this whiskey being the subject-matter of the charge of robbery contained in indictment number two.. Having so testified, the prosecutor of the pleas then asked this question: “When you told Varicola, ‘Yon are the one that held up that truck and got.the whiskey — ’” At this point in the question counsel for the defendant interrupted, saying, “He hasn’t said that.” The prosecutor insisting that the witness had so' testified, counsel for the defendant then asked to assign that statement of the prosecutor as error on the record. The trial judge then interposed, saying, “My recollection cf the witness’ testimony is that he accused this man of taking that whiskey,” and then, turning to the witness, the judge said, “Isn’t that so.. Mr. Davis?” to which the witness replied, “Yes, sir; I did. I told him.” The court then said to the witness, “Go over it again. Tell counsel what you- did say when he came to you with the whiskey.” To which the witness answered, “When he came over to me and offered the whiskey for sale I said, ‘You’re whiskey is stole; you held up the truck.’” The court then asked, “You said, ‘You held up the truck?’ ” To which the witness answered, “I said, “You held up the truck with the whiskey in.’ ” The prosecutor then asked this question: “What reply did he make? A. He said, ‘What difference is it to you, even if I did hold up the truck ? It is no difference to you.’ ” Accepting it as true that the original question above recited and put by the1 prosecutor to the witness contained a misstatement of fact, the subsequent statement by the witness which we have recited rendered the assumption in the original question harmless, so- far as its effect upon the defendant’s case was concerned. This, being so, the plaintiff in error can take nothing by the assignment of error upon which the first point is rested.

The second point urged by counsel for the defendant as a ground for reversing the judgment, is that it was error for the trial judge to state in the presence of the jury as a fact that his recollection of the witness’ testimony was that he accused the defendant of taking the whiskey, when, as a matter of fact, the testimony given by the witness shows that he had not then made anv such accusation. It is difficult to understand upon what theory the statement, of a trial judge made to counsel as to his recollection relating to evidence forms a legitimate basis for an assignment of error. But, passing this, it is quite manifest, from what has already been said in discussing the first point, that no harm could have come to the defendant by this statement of the court. The defendant can take nothing by this assignment of error.

The only other ground of reversal argued before us is that “there was error in the entire charge of the court to the prejudice of the defendant.” The contention in support of this assignment is that, under chapter 349 of the laws of 1921 (Pamph. L., p. 951), this court has power to reverse upon any error appearing on the entire case. It is enough to say, in disposing of this contention, that it is based upon an entire misconception of the scope of the statute appealed to, which only authorizes the reviewing court to reverse where the verdict is contrary to the weight of the evidence. Moreover, it is no function of the reviewing court to examine the entire charge in a criminal case for the purpose of discovering whether it can detect any error therein. The duty of the court is merely to examine alleged errors in the charge pointed out by the plaintiff in error, and, no. specific error having been alleged or pointed out by counsel in the present case, we conclude that this third ground of reversal is without merit.

The convictions under review will be affirmed.


author: Capeeey, J.

text:
    Essex County Orphans Court.
    In the matter of the probate of a paper-writing purporting to be the last will and testament and codicil of Eliza C. Bishop, deceased.
    [Decided December 20th, 1922.]
    On caveat.

      Air. Harry Y. Osborne and Air. Abram II. Cornish, for the proponent.

      Mr. L. Edward Herrmann and Air. Elmer E. Wigg, for the caveator.
   Capeeey, J.

Eliza Catherine Bishop died on the 9th of April, 1922, leaving a will and testatment dated the 9th day of December, 1914, and a codicil to that will, dated July 12th, 1919, which ratified and confirmed the will, except as to the changes made in the codicil.

The validity of this will and testament are challenged by Catherine I. Ward, her niece, on the ground that the testatrix lacked the testamentary capacity requisite to the making of a valid will and testament. At the time of the making of the will Mrs. Bishop was about seventy-eight years old.

There was no suggestion of undue influence at the hearings, nor is there any evidence that would justify such a contention.

This matter took several days to try and much testimony ivas given bearing upon the testatrix’s competency to make a will, both at the time of the execution of the will and the making of the codicil. In fact, great latitude was allowed to the parties concerned in introducing testimony that might throw' some light upon the mentality of the testatrix, and the testimony discloses events concerning the testatrix from a time antecedent to the making of the will up to a short time before her death, in April, 1922.

. Despite the volume of testimony in this matter (a minute reference to- which would serve no- purpose in this memorandum) it might he generally said that most of the caveator's evidence relates to the personal habits of the testatrix, and .from the evidence it might be concluded that the testatrix was, at times, vain and self-centered, and enjoyed flattering references to herself, and ivas verjr much given up to relating incidents of her girlhood days, concerning her attendance at boarding school and. her flirtations at choir. There is testimcnv, too, that she was unclean, both in habits of dress and manners when at the table, and would often appear partly dressed, and would ignore requests that she make herself presentable, all of which, however, is not inconsistent with the habits and attributes of a person of a sound mind. There is, too, evidence in the case that during the period when her conduct and manners were marked by these eccentricities, she took an interest in her household affairs to the extent of directing her servants, and supervised some business matters, in conjunction with William E. Jones, as to the payment of certain bills incident to- the running of the house and repairs about it.

The evidence shows that prior to the drawing of the will by Vice-Chancellor Church he was requested bjr Mrs. Bishop to prepare a will, and pursuant-to her instructions he made some notes, and from these notes the will was drawn. At the time of the execution of the will Doctor Case, the testatrix’s family physician, was present'and acted as a witness, and before he acted as a witness Mr. Church inquired of him if the testatrix was capable of making her will, and Doctor Case replied that she was. The deposition of Doctor Case seemingly contradicts this. However, the value of his deposition, with reference to her mental state, may be discounted, because .plainly he predicates his theory of the testatrix’s incompeteney upon his notion of how a will should be drawn with reference to her benefactions.

The testimony shows that prior to the making of the will the testatrix made a gift of a mortgage to William E. Jones, her servant, and from time to time she spoke of William as being very faithful, and from Jones’ testimony and the testimony of other witnesses in the case, Mrs. Bishop had often made mention of Jones’ faithfulness. There is evidence to show that Mrs. Bishop had him in mind as an object of her bounty.

The evidence shows that the testatrix took an active interest in the work of the Baptist Home, and for many years did service on the board of managers. This institution is a b'oneficiarv under her will.

It is significant to note, with reference to the testatrix’s competency, that after the will was prepared by Vice-Chancellor Church the seventh paragraph of the wrill was changed, prior to its execution, by the testatrix, because she observed a typographical error in writing the name of one of the beneficiaries.

Then, too, in the twelfth paragraph there is a further notation changing the t.ypewritten words so as to' conform with her intention.

The testimony is replete with instances of Mrs. Bishop’s interest and participation in her business affairs. The drawing of checks, the examination of property before investment, and the selection and designing of a monument for her husband’s grave, are striking illustrations.

Taking tire evidence in its entirety, I am satisfied that the testatrix had sufficient testatmentary capacity to execute lior will at the time of the execution of the will and codicil. Therefore, I will dismiss the caveat and direct that the will and codicil he admitted to probate, the question of counsel fees to be taken up on application.


author: Cutler, J.

text:
    Hudson County Circuit Court.
    F. C. Daves, Incorporated, et al. v. Schwartz & Nagle, Incorporated, et al.
    Motor Vehicles — 'Lien for Storage.Under L. 1915 — Complaint Not Filed Within Thirty Days as Provided in Act of 1922 — Court Without Authority to Order Complaint Filed.

      Mr. Richard M. Glassner and Mr. Harry Green, for the defendants.

      2Iensrs. Warren, Briit & Stanion, for the complainants.
   Cutler, J.

James Daves and Robert Daves, trading under the name of Marion Garage, conducted a garage at Harrison, in this county.

At the reqnest of the sheriff of the county of Hudson .these garage keepers towed to their garage two motor trucks, where they were kept in storage, the garage keepers claiming a lien on the said trucks for towing the trucks to the garage and for storing the same under the provisions of an act of the legislature of this state entitled “An act for the better protection of garage keepers and automobile repairmen,” approved April 14th, 1915, laws of 1915, page 556, -&e., and the amendment- thereto.

The owner of these trucks and the garage keepers not agreeing as to the amount due the said garage keepers, the owners filed a bond and issued a writ of replevin out of this court and removed the trucks from such garage.

The said garage keepers did not file their complaint within thirty daj's after the trucks were so removed, as provided by the amendment to the aforesaid act, laws of .1922, page •101, and now make application for an order permitting the filing of such complaint.

The court has no authority to order that such complaint be filed after the expiration of the said thirty days.

The application is refused.