text:
    FIRST NATIONAL BANK OF MORRISTOWN, A BODY CORPORATE, PLAINTIFF, v. CLIFTON E. TURNER, DEFENDANT.
    Decided December 29, 1931.
   Lawrence, C. C. J.

This suit came on for trial before me and a jury at the Morris Circuit. At the conclusion of the trial, counsel for defendant moved the direction of a verdict on the ground that no question of fact was involved and that under the law applicable no recovery could be had. At the suggestion of the court, to the end that better opporiunity might be afforded for an examination of the authorities, the case was withdrawn from the jury, pending consideration of the motion, with the understanding that if decided adversely to plaintiff, a postea carrying a verdict of no cause of action would be signed and returned for filing.

Plaintiff bank seeks to recover of defendant as an endorser the amount due on a promissory note of the following tenor:

'“$10,000.00. Morristown, N. J., Oct. 1st, 1926.

On demand after date, I promise to pay to the order of myself, ten thousand and 00/100 dollars, at the First National Bank of Morristown. Value received.

(Signed) C. H. Munson.”

Indorsed:

C. H. Munson,

Clifton E. Tubnee.

The note was discounted by the bank at or about its date for Munson, to whom the proceeds were credited. Turner was merely an accommodation endorser concededly having received no benefit. The note was not paid, but it was not formally protested for non-payment until May 12th, 1930, three years, seven months and eleven days after its date. "While admitting receipt of the notice of protest on the date indicated, defendant denies liability on the ground that presentment was not made within a reasonable time after its issue. Plaintiff in its reply sets up an alleged waiver on the part of defendant of presentment and protest, and claims the right to recover on that ground, notwithstanding the delay and the later formal presentment and protest.

The evidence at the trial discloses the making of the note by Munson and its discount by the bank at his request, with which defendant appears to have had nothing to do. By reason of some previous or casual acquaintance, he, without being in anywise interested in the purpose to which Munson intended to apply or use the proceeds, at the latter’s request endorsed the note as an accommodation.

No communication regarding the note was had by the bank with defendant until May 6th, 1929, when its cashier wrote him that they had tried repeatedly to get Munson to take up the note, without avail, and that they therefore called upon him for its payment. This resulted in an interview between defendant and the vice-president of the bank in which the former indicated that it was not convenient for him to pay the note and some discussion occurred as to his giving collateral security and an effort on his part to get some protection from Munson, the bank allowing the note to stand awhile. Nothing further appears to have been done until December 4th, 1929, when the cashier of the bank again wrote defendant demanding payment of the note. Later a conference was held between counsel for the bank and the defendant, of which nothing came, and finally, on May 12th, 1930, the bank caused the note to be formally protested and the present suit to be brought.

Munson was not produced at the trial as a witness or otherwise examined, with the result that the ease lacked circumstantial detail as to the inception of the note and whether it was made known to defendant at the time when it was to be paid or how long it was to be carried. Since it had no provision for the payment of interest on its face, it would seem that defendant could not be charged with implied knowledge thereof. See Gershman v. Adelman, 103 N. J. L. 284, 286, where it is said: “Providing for the payment of interest on a demand note generally shows or indicates that immediate presentment was not contemplated. This fact is generally to be considered in determining whether the note has been presented within a reasonable time.”

The failure of the bank to cause the presentment and protest of the note in suit for over three years does appear to involve an unreasonable length of time, especially as it evidently knew for some period prior to May 6th, 1929, that the maker would not or could not pay. Under ordinary circumstances, therefore, it would seem that the endorser would be entitled to the protection of the statute. 3 Comp. Stat, § 71, p. 3744.

It is urged, however, that defendant waived presentment and protest by entering into negotiations with the bank officials, at a time when he was charged with knowledge of the fact that the note had not been presented and protested, and that the evidence offered justifies an inference of such waiver. But this appears not to be so. It is said that the law applicable to such conduct is that acts, admissions or promises after maturity, in order to be evidential of a waiver of presentment and notice, or of an excuse for the want of presentment and notice, must be done or made with full knowledge of the discharge from liability upon the contract of endorsement, and must, in form and effect, be unequivocal and unconditional. Jordan v. Reed, 77 N. J. L. 584, 594; also Glassford v. Davis, 36 Id. 348, and Richardson v. Kulp, 81 Id. 123.

In the circumstances of the case, as indicated by the evidence, I am constrained to hold that the plaintiff bank failed to cause presentment of the note within a reasonable time after its issue, and that no adequate proof of the defendant’s waiver of presentment and protest was offered.

The foregoing leads to the conclusion that the motion for the direction of a verdict in favor of defendant should be granted. (An exception will be allowed to the court’s ruling.) A postea may be submitted in accordance herewith.


source: Caselaw Access Project

author: Holland, J.

license: Public Domain

text:
    ADRIEN B. HOMMELL, PLAINTIFF, v. EDWARD ERRINGTON, B. & H. LABOR TRUCKING COMPANY, A CORPORATION, AND DONALD R. HOMMELL, DEFENDANTS.
    Decided December 29, 1931.

      Por the defendant Edward Errington, Frank G. Turner.

    Por the defendant B. & H. Labor Trucking Company, a corporation, Frank C. Scerbo.

    Por the defendant Donald R. Hommell, King & Vogt (.Harold A. Price, of counsel).
    • Contra, John C. Howe (John W. Palmer, of counsel).
   Holland, J.

This case was referred by Circuit Court Judge Rulif Y. Lawrence and tried in the Supreme Court, Morris County Circuit before the judge holding the Circuit Court in Morris county upon request of the Supreme Court justice presiding therein, and a jury. Pamph. L. 1931, ch. 317. The jury returned a verdict of $35,000 in favor of the plaintiff against all the defendants and they applied for a rule to show cause, reserving the exceptions taken at the trial as grounds of appeal, which rule was granted and made returnable before the 'trial court. All parties appeared without objection. Pamph. L. 1931, ch. 356.

Upon the argument for the rule it was pointed out by counsel that the plaintiff lived in Middlesex county, that the defendant Errington lived in Somerset county, that the B. & H. Labor Trucking Company, a corporation, had its principal office in Somerset county, that the defendant, Donald R. Hommell, the plaintiff’s brother, lived in Middlesex county, and that the accident happened in Somerset county, and moved to set aside the verdict because the venue had been erroneously laid and the case improperly tried in Morris county. This was opposed by the plaintiff. The defendants’ objection comes late; this motion cannot be entertained on a rule to show cause after verdict. Peister v. Public Service, 100 N. J. L. 53; Emele v. Arrow Carrier Corp., 146 Atl. Rep. 790.

The plaintiff, Adrien Hommell, together with his wife, was riding in a Ford roadster driven by his brother, Donald E. Hommell, one of the defendants, along state highway route Ho. 31, being the road from Bedminster to Somerville, at a speed variously testified to at from forty to sixty miles an hour, when the car crashed with a truck, driven at a speed variously testified to at from five to thirty-five miles an hour, by the defendant Errington and owned by the B. & H. Labor Trucking Company; which truck was proceeding out of the intersecting highway leading from Lamington to Bernardsville, at right angles to the Somerville road. There was much conflicting testimony as to the length and position of skid marks of both vehicles, the speed of both vehicles and their general approach to and into this intersection.

The plaintiff sustained injuries in the collision. His witnesses testified that the plaintiff was knocked unconscious, was hurt about the head, was bleeding from his ears and mouth and vomiting blood; that he sustained a comminuted fracture of both pelvic bones at the pubis, fractures of the two bones below the pubis; that a brain injury had been sustained from which the plaintiff had not yet recovered at the time of the trial; that his urinary system had sustained severe injury and disorganization; that he suffered some loss of hearing, the loss of some teeth, and a partial impairment of memory; was confined to a hospital bed in a strait jacket for five weeks and thereafter in bed for a period of months in his father’s home; there was also testimony of injury to his back, to his right leg and right ankle. The doctors testified that he had a fair chance of recovery, but could not say with assurance. The plaintiff’s witnesses were minutely and adroitly cross-examined but no contradicting testimony was produced on the part of any of the defendants. After the accident, plaintiff’s wife left him, went to Eeno, procured a divorce and a few days thereafter married someone else. Defendants brought out that the plaintiff was keeping company with some other girl and was or was about to become engaged to her.

Counsel for the defendants Brrington and Hommell urged that the jury exercised sympathy for the plaintiff; that the verdict was against the weight of the evidence, and that it was excessive. The defendant B. & H. Labor Trucking Company did not on the rule join in the first two of these contentions. Unless it is clearly shown that the jury was swayed by mistake, passion or prejudice, the verdict ought not to be disturbed. Gee v. Moss, 156 Atl. Rep. 458. I do not find any indication that the jury was swayed by either mistake, passion or prejudice.

In reviewing the evidence and considering the injuries inflicted, I conclude that the verdict is not excessive and not against the weight of the evidence.

The rule is discharged.


author: Lawrence, C. C. J.

text:
    BERTHA C. SALMON AND JOSHUA SALMON, PLAINTIFFS, v. EDWARD TUTHILL, DEFENDANT.
    Decided January 9, 1932.

      Before Lawrence, Circuit Court judge.
    .For the rule, Howard F. Barrett.

      Contra, King & Vogt.

   Lawrence, C. C. J.

This suit was tried before me and a jury at the Morris Circuit. It was an automobile accident case and resulted in a verdict of no cause of action as to Mrs. Salmon and in favor of her husband (the other plaintiff), for $367.40, covering damages to the automobile which he owned and which his wife was driving at the time of the accident, hlo complaint as to the verdict is made by her, but defendant took out the present rule and argues for a new trial on the ground that since a no cause verdict was returned as to Mrs. Salmon, that in favor of her husband for his property loss cannot be sustained. It is also urged that the verdict in the latter respect is contrary to the clear weight of the evidence. This does not appear to be so. Mrs. Salmon, beyond stating that she received a shock which she felt for a day or two, offered no evidence of any real physical injury received in the collision, and the jury could have concluded that she had not been hurt in such a way as to justify compensation. It is said that the cause of action is not the negligent act, but the consequences following it, for to support the action there must be not only the negligent act but a consequential injury; the injury being the gravamen of the charge. Ochs v. Public Service Railway Co., 81 N. J. L. 661; Smith v. Fischer Baking Co., 105 Id. 567, 569. The proofs as to the breaking of the automobile were ample, and inasmuch as the assessment of damages in this regard was obviously based on a finding of negligence against the defendant, it does not follow that the verdict as to Mrs. Salmon was inconsistent on that issue. The evidence disclosed a case peculiarly for the jury.

Emphasis was laid in the brief of defendant’s counsel on what is urged was evidence at the trial of Mrs. Salmon’s contributory negligence in driving her husband’s car with the left headlight out and the right wheels over the center of the highway. This was denied, in a somewhat circumstantial way, by her and her son who was riding with her. While defendant testified to the contrary and appears to have been corroborated by acquaintances of his in a car immediately following his own, the jury could have found, considering the width of the road, that the presence of defendant’s car in front of that in which the witnesses in question were, interfered with their ability to have seen the left headlight of the Salmon car or the position of the latter, and so affect the weight of their testimony.

Moreover, defendant’s claim apparently was that the cause of the collision was the improper position of the ear in the highway precisely the claim made by Mrs. Salmon as to defendant’s automobile, and just what relation the alleged unlighted headlight is thought to have borne in a causal way to the accident is not made clear. While it is assumed to have been so in fact, notwithstanding her denial and that of her son, the jury may have found either that it was not so in fact, or if so, that it bore no causal relation to the accident or that Mrs. Salmon had no knowledge of it, direct or inferential. Without such knowledge, it would seem that she could hardly have been held guilty of contributory negligence in that respect.

Finally, it was argued that certain marks said to have been made in the highway by the broken left front wheel of defendant’s automobile, or the axle, as it was dragged along from the point of impact to the place where it came to rest, had been measured by a state trooper after the accident and indicated that the vehicle had been on the right side of the road. The trooper was not called as a witness at the trial, however, or otherwise examined, and the jury did not, therefore, have his testimony, as the best evidence on the subject, before them for consideration. That they accepted the version of the accident given by Mrs. Salmon and her son is suggested by their verdict.

In all the circumstances, it does not appear that it was so clearly against the weight of the credible evidence as to warrant setting it aside. The rule will be discharged.


author: Acjyebson, S. C. C.

text:
    SEVENTY-FIRST STREET AND BROADWAY CORPORATION, A CORPORATION, PLAINTIFF, v. THOMAS R. THORNE, DEFENDANT.
    Decided January 12, 1932
    For the plaintiff, Insley, Vreeland & Decker.

    For the defendant, Wall, Haight, Carey & Hartpence.

   Acjyebson, S. C. C.

Plaintiff instituted the above entitled action by attachment issued out of this court on March 19th, 1931, by virtue of which the proper officers attached the alleged right of the defendant in a pension or retirement fund alleged to be a debt in the hands of the International Mercantile Marine Company and the trustees of the pension fund of the International Mercantile Marine Company, “valued at $400 per month” according to the return to the writ, the defendant being a retired employe of said company and beneficiary of said monthly pension. The defendant filed a general appearance but took no further steps in the action and judgment was entered in favor of the plaintiff for $8,181.30, together with costs taxed at $73,36, whereupon a writ of scire facias was taken out of this court on August 7th, 1931, commanding the International Mercantile Marine Company and the trustees of the pension fund of said company as garnishees, to show cause why the plaintiff should not have execution of the aforesaid money alleged to be due the defendant, and in their hands attached, according to the statute in such case made and provided.

The said International Mercantile Marine Company (hereinafter referred to as the company) and the trustees of the pension fund of the International Mercantile Marine Company (hereinafter referred to as the trustees), have filed a joint return to the writ of scire facias, in which said company denies that any sum is due and owing by it to the defendant, Thorne, and asserts that the only payments made to him since December 30th, 1930, have been from the pension fund administered by the trustees separate and apart from the company.

The trustees allege in the return that they “confess the amount due from them to the above named defendant, pursuant to the terms and conditions of the rules and regulations of the said pension fund, * * • * to wit, the sum of $1,847.05, made up as follows: Payments due under pension fund for the months of March, April, May, June and July, 1931, at the rate of $369.41 per month.” But they proceed to set up three defenses to the plaintiff^ claim upon said funds, viz., (a) that under the rules and regulations governing said pension fund, the defendant, Thorne, has no right or credit therein which is subject to attachment or execution; (b) that this court has no jurisdiction over said pension fund; (c) that said fund is exempt from attachment, execution, levy or seizure by any alleged creditor of the defendant as a beneficiary of said fund.

The plaintiff now moves to dismiss this entire return for the following reasons:

“1. That the same is insufficient in law.

“2. That the sum of one thousand eight hundred and forty-seven dollars and five cents ($1,847.05) is admittedly due and owing to the defendant.

“3. That the trustees cannot exercise their discretion for the benefit of the debtor and to the detriment of the plaintiff herein.

“4. That the matters and things set forth in the said return are matters and things which should be raised by the defendant who has entered an appearance herein.

“5. That no matter or thing set forth in the said return is legally sufficient to bar the said writ of scire facias "

Since the motion seeks to strike out the entire return, it is obvious that if any part thereof presents a defense, the whole cannot be stricken out. Malone v. Brotherhood, 94 N. J. L. 347.

In the first place it must be noticed that the motion is not directed to the form of the return, so I am not called upon' to consider that question.

The plaintiff insists that the defendant, Thorne, is the only one who could properly raise the above mentioned defenses, and that as he failed to do so the garnishees are bound by the judgment in the main action. It is well settled, however, that a garnishee is entitled to set up that the debt or property which it is sought to reach is not such as may be readied by the process of garnishment, and that same is exempt from attachment. 28 G. J. 285, §§ 413, 414. The garnishee may also question the court’s jurisdiction of the subject of the action. Ibid. 277, § 392; Welsh v. Blackwell, 15 N. J. L. 55. The criticized defenses go no further than this and the garnishees may, therefore, raise them in this manner.

As already indicated, the International Mercantile Marine Company lias denied that any sum is due and owing the defendant, and the copy of the rules and regulations of the pension fund, annexed to the return and also furnished by the plaintiff itself, show this to be true. The only connection which the company has with the pension fund, so far as the proofs show, is in the contributions which it makes to the fund equal in amount to that of the employes of the company. By section 13 of the rules and regulations, the control and management of the pension fund is entirely in the hands of designated trustees and the company has nothing whatever to do with it. So it is evident that the plaintiff has not shown this defense to be insufficient in law or untrue in fact, and it is, therefore, a good defense so far as the company is concerned. It follows, therefore, that since the company and the trustees have joined in filing a joint return or answer to the writ of scire facias, and the motion is to strike out the entire return as to the garnishees jointly, the motion cannot be granted as this one defense, at least is found to be properly pleaded. Malone v. Brotherhood, supra.

I am unwilling, however, to dispose of the motion without noticing a further question of considerable interest. This question is raised by the defense interposed by the trustees to the effect that under the rules and regulations of the pension fund, the defendant has no right or credit which is subject to attachment or execution.

It appears from the rules and regulations governing the pension fund, that it was created to provide pensions in old age for the officers and employes of the company, who subscribe to the provisions, and is made up by contributions from the members of two and one-half per cent, of their annual salaries; and contributions from the company of sums equal to the annual contributions of all the members.

The provisions of the rules and regulations particularly applicable to the question now being considered are the following:

“Retiring age. The trustees shall have full power to decide when a member who, having been retired from the company’s service, may become a beneficiary of the fund, and the extent of his participation in such fund or its avails; except that any member having attained the age of sixty-five years and who shall have been in the employ of the company twenty-five years or more, and who retires from the company’s service, shall, on his own application become a beneficiary of the fund as provided in paragraph 6th hereof, and such member shall receive a pension for life.

“Pension. The amount payable annually to retired beneficiaries shall be two per cent, of the average annual salary, not in excess of $7,150, for five years previous to the time of retirement, multiplied by the number of years he shall have been in the service of the company up to the time of retirement, provided, however, that no pension shall exceed seven-tenths of the said average salary or exceed $5,000. Such payment shall be made monthly.

“Control of fund. The management and control of this fund, and interpretation of these rules and regulations and the determination of any question arising in connection with either shall rest entirely with the trustees, and their decision or action in respect thereof shall be final and conclusive upon any of the members or persons entitled to receive any benefits from such fund under the rules and regulations, and no member, beneficiary or other person shall have any rights in or to any part of the fund, except as and to the extent expressly provided by the rules and regulations. The fund may be invested in any form of security which in the opinion of the trustees shall be deemed for the best interest of the beneficiaries thereof, without being limited to such investments as are designated as trustees’ investments.

“Payments. No payments shall be made from the fund until approved and ordered by the trustees.

“Limitation. It is understood by all members and the benefiiciaries and by the trustees as a condition to the undertaking by the trustees of the administration of the pension fund hereunder, that no rights are conferred upon any person or party hereunder other than as are expressly stated in these rules and regulations, or as they may be amended or altered from time to time, and as they may be construed by the trustees.

“Assignments. Pension allowances shall be non-assignable and any transfer or pledge of same will not be recognized by the trustees and shall in the discretion of the trustees act as a forfeiture of the pension.”

It is also well to notice that it seems to be undisputed that the defendant, Thorne, during his employment by the company made contributions to the pension fund to the amount of $1,337.82, and since his retirement has received from the fund payments amounting to $18,470.82.

“Rights and credits” of a debtor may be attached or taken on execution. 1 Comp. Siat., p. 133; Pamph. L. 1915, p. 182. Such terms, however, although very bioad and comprehensive, do not, as used in the garnishment statutes, in-elude every kind of interest that a defendant may have in property. 28 C. J. 151.

Probably the most general test as to whether property is of such a nature that it may be reached by garnishment is whether it is capable of assignment by the defendant debtor. 28 C. J. 151, and cases cited in footnote. Measured by this test it is quite evident that the pension payments in question cannot be reached by these proceedings^ for the foregoing provisions of the rules and regulations clearly establish a purpose that no one other than a beneficiary of the fund shall receive payment thereunder.

It may be claimed, however, that the efficacy of the foregoing test is limited in this state by the decision in Fleming v. Fleming Hotel Co., 69 N. J. Eq. 715, wherein it was held that a covenant not to sell or assign a lease is not broken where the assignment is by operation of law, and that an assignment of a lease, with such a covenant, by the receiver of a lessee, as the agent of the law to a purchaser of the leasehold interest would not work a forfeiture. That such a covenant only applies to voluntary sales, and is not subject to forfeiture unless the proceedings at law under which the leasehold interest is disposed of were voluntary and collusive with a view to defraud the landlord of his rights. I do not believe, however, that this decision militates against the applicability of the general test to the present situation for many reasons.

In the first place the reason assigned for the rule in the case of the assignment of leaseholds is that to hold otherwise would in effect permit the creation of valuable interests in lessees which may be held by them in defiance of creditors, but the same reason does not hold with equal force in the case of pension intsallments derived from a fund created by small contributions from hundreds of employes and doubled by the employer over a course of years, and where the employe is likely to draw, as in the case sub judice, much more from the fund than he puts in. The whole scheme of such pension funds is opposed to fraudulent practices against creditors.

Iii the ease of a covénant against the assignment of a lease, the main purpose of the lease, so far as the landlord is concerned, is to obtain an income from the real estate and a transfer of the lease, although Avithout his consent, is not contrary to the general purpose of the contract. But in the ease of an industrial pension fund, the whole purpose of which is to provide an income in old age for retired employes, so as to prevent them from becoming a burden on society, the diversion of such funds to other uses would destroy the whole purpose of their creation.

Furthermore in the case of covenants against assignments in leases the courts, in the interpretation thereof, are called upon to decide between a policy which will protect only the lessor, or a policy which will protect creditors of the lessee, and ordinarily work no appreciable hardship to the lessor. In the case of pension funds, however, so long as installments therefrom have not been turned over to the beneficiaries, the present policy of encouraging old age pensions should predominate, and should outweigh the consideration of creditors, who would otherwise derive a benefit from contributions made largely by others, which the parties directly concerned had endeavored in their contract to preserve for the exclusive purpose of caring for members of their class, who through economic conditions have not been in a position to acquire reserve assets against the diminishing earning power of old age. In snch a situation the courts should hesitate to interpret a provision that such “pension allowances shall be nonassignable and any transfer or pledge of same will not be recognized by the trustees of the fund,” as applying only to Aroluntary assignments or transfers, especially where the creatiA’e contract, as in the case sub judien, provides that “the management and control of this fund, and interpretation of these rules and regulations and the determination of any question arising in connection with either shall rest entirely with the trustees, and their decision or action in respect thereof shall he final and conclusive,” and where the trustees, as here, have stopped payment of such pension allowances.

The proceeding by garnishment is for the purpose of effecting a compulsoiy assignment of a claim by process of law. It seems to me, therefore, that in a situation such as that now before us, where the claim is of such a nature that the claimant cannot make a voluntary assignment of it, the law should not enforce a compulsory assignment. St. Joseph Manufacturing Co. v. Miller, 69 Wis. 389; 34 N. W. Rep. 235.

Pension moneys and bounties granted by the government for enlistment, or for service in the army, navy or civil department of the government have always been held not subject to garnishment while in the hands of the government-irrespective of statutory protection. 28 C. J. 187; Manchester v. Burns, 45 N. H. 482.

The reason for the rule is public policy. It was thought that a contrary rule would discourage enlistment in such services. It seems to me that under pressure of present economic conditions, where a premium is put upon youth, that a similar public policy should protect from dissipation reasonable pension funds created for the protection of low or medium salaried industrial employes in their old age, through the medium of contributions from a large class of such employes augmented by more substantial contributions from the employer.

For the reasons already stated, I am forced to conclude that the defendant has no right or credit in the pension fund in question which is subject to attachment or execution, and that the funds sought to be reached are exempt from garnishment. This is, therefore, another reason why the entire return cannot be stricken out, and it becomes unnecessary to consider the further question of whether the court has jurisdiction over this pension fund. The motion is therefore denied, without costs.


author: Mackay, S. C. C.

text:
    B. & S. EXCAVATING AND CONSTRUCTION COMPANY, A CORPORATION, PLAINTIFF, v. ANGELO PAINO CONSTRUCTION CORPORATION AND UNION INDEMNITY COMPANY, DEFENDANTS.
    Decided January 15, 1932.
    For the plaintiff, Heller & Boss.

    For the defendants, McDermott, Enright & Carpenter.

   Mackay, S. C. C.

On or about December 1st, 1930, defendant Angelo Paino Construction Corporation entered into a contract with the plaintiff B. & S. Excavating and Construction Company, whereby the plaintiff agreed to do subcontract work for the defendant contractor as a result of an original contract entered into between the defendant contractor and the borough of Plainfield. In January, 1931, plaintiff entered into a further contract with the defendant contractor for additional work to he performed for the borough of Plainfield.

Plaintiff claims to have completed all of the work necessary to be done. Plaintiff further charges defendant contractor with negligence in maintaining equipment on the job which prevented the plaintiff from completing certain portions of its work. The damage in this connection because of negligence and carelessness is $2,500.

Plaintiff claims that on April 23d, 1931, pursuant to statute, it filed a municipal lien with the borough of Plain-field. Thereafter and in accordance with the statute, the defendant Union Indemnity Company entered into a bond with the defendant contractor, which bond was filed with the borough of Plainfield and thereupon the lien filed by the plaintiff was re-placed by the bond which was filed.

Under the terms of the bond the defendant Union Indemnity Company agreed to pay any amount found to be due from the defendant contractor to the plaintiff herein.

Plaintiff asks for judgment against the defendants, contractor and bondsman. Counsel for defendants moves' to strike out the complaint on several grounds:

1. That it is multifarious.

2. That it -joins several actions in one complaint.

3. That it does not set forth a cause of action against the defendants or either of them.

Counsel for defendants do not argue these three separate questions under separate heads, simply present one complete argument on these points.

I am inclined to believe the complaint is multifarious but that objection would not compel me to strike it out. I could permit attorneys for plaintiff to amend the pleadings in accordance with the proper practice.

The second objection seems to1 be well taken but even that would simply mean an amendment to the pleadings so as to put them in proper form for trial.

The third point is not well taken as to both defendants. Nevertheless, I think it will be well to express my views.

Under the Mechanics’ Lien law a plaintiff sub-contractor has the right to serve notice upon the municipality to retain moneys. This notice acts as an assignment of any moneys in its hands due or to grow due to the contractor. The remedy on a stop-notice is by action at law.

The case of Arzonico et al. v. Board of Education of the Town of West New York, 75 N. J. L. 21, holds:

“A municipal board, in making a contract for the erection of a municipal building, acts as the agent of the municipality, and the contract into which it enters is the municipality’s contract.”

In the case of Commonwealth Roofing Co. v. Riccio, 81 N. J. Eq. 486, which -was not against a municipal corporation but against an individual, the suit was commenced in the Court oí Chancery and motion was made on behalf of the defendant to dismiss the bill on the ground that the complainant’s remedy was at law. The learned vice-chancellor, who heard the application, overruled it holding that equity had concurrent, if not exclusive jurisdiction in such matters. Having so held, he thereupon, on his own motion, ordered that “the cause with the record thereof and all papers filed therein be transferred to the Hudson County Circut Court for hearing and determination pursuant to the provisions of ‘The Transfer of Causes act [1912].’” The complainant sought a review of this order on the ground that tire Court of Chancery should have retained jurisdiction of the cause and proceeded to final decree upon the merits. Chief Justice Gummere, speaking for the Court of Errors and Appeals, said:

“Had, then, the Court of Chancery jurisdiction of the subject-matter of this litigation? We think not. 'Under the Mechanics’ Lien law the right of the original contractor to recover the contract price of the building from the owner is a legal right, and is only enforceable in courts of law. It is expressly so provided in the act itself. The giving of the notice provided by the third section of the act ‘operates as an assignment pro lanío of the debt due from the owner to the contractor.’ Carlisle v. Knapp, 51 N. J. L. 331; 17 Atl, Rep. 633. ‘The object’ of the provisions ‘was to substitute a claim upon the fund belonging to the contractor for' the lien of the laborers and materialmen upon the building and land, in eases where that lien was taken away by the filing of the contract pursuant to section 2’ of the act. Gardner & Meeks Co. v. Herold, 76 N. J. L. 529, 530; 72 Atl. Rep. 24, 26. ‘Upon’ the giving of the ‘notice’ provided by it ‘the workman or materialmen, to the extent of his demand, takes the place of the contractor.’ Reeve v. Elmendorf, 38 N. J. L. 130. That an action at law by the laborer or materialman against the owner is a proper method of enforcing the right given by this section has never been a matter of doubt since a decision by this court in Craig v. Smith, 37 Id. 549, as elaborated by Chief Justice Beasley in Reeve v. Elmendorf, supra. That it is the only method is clear, we think, from the extracts from the opinions cited; for, being the assignee pro tanto of the debt due from the owner to the contractor—taking the place of the contractor to the extent of his demand—the laborer or materialman is entitled to the same remedy for the collection of his debt, for the enforcement of his demand, that the statute .gives the contractor [except as otherwise provided in the statute] and to no other.” Commonwealth Roofing Co. v. Riccio, supra.

Prom the reasoning of this ease just cited and the Arzonico case, supra, it would appear:

(1) That the action can be brought in a law court against the municipality.

(2) That an action at law is the only remedy.

(3) If, as stated in the Commonwealth case, supra, the person serving the stop-notice is put in the place of the contractor, that would mean that whatever remedy the contractor had the present plaintiff would have. The contractor, in case of non-payment, would have had a right to sue the borough of Plainfield. Therefore, the present plaintiff would have a right to sue the borough.

The bond, as I understand it, was given to protect the borough from this particular claim. In other words, the bondsman defendant agreed to save the borough harmless in the premises. If, therefore, there is a judgment against the borough, the bondsman would have no defense to an action but would be compelled to pay.

The result of all this reasoning is (1) that there is no breach of the bond at this time which permits the plaintiff to bring an action at law or otherwise, and '(2) there is nothing to prevent the plaintiff from continuing the present action against the other defendant contractor alone. If, however, the plaintiff obtains a judgment against the contractor alone and the contractor is insolvent, there will be no judgment against the borough of Plainfield which it would be compelled to pay, and, therefore, there might be no breach of the bond which would permit an action to be brought against the present defendant bondsman at a later date.

.1 have examined the case of Agnew Co. v. Board of Education of the City of Paterson et al., 83 N. J. Eq. 49, 53, and do not believe that it supports the plaintiff in any manner in its argument. Where Vice-Chancellor Stevenson speaks about an action upon the word “bond” he also says “bond or otherwise.” Apparently he did not intend to lay down the method of procedure that should be followed in the ease similar to the present one. Probably what the vice-chancellor did mean was that sometime or other there might be a liability on the bond which would give a right of action but only after there was a default.

I will recommend the striking out of the Union Indemnity Company as a party defendant and permit plaintiff to amend its pleadings in ease it desires to continue the action at law against the contractor alone. I believe the count for moneys due and the count for negligence should be separated under the rule or Practice act.


author: Per Curiam.

text:
    JOHN HIGGINS, PLAINTIFF-APPELLEE, v. ANGELO M. DEL DUCA, DEFENDANT-APPELLANT.
    Submitted May 5, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the defendant-appellant, Jacob B. Mantel.

    For the plaintiff-appellee, Harry Silverstein.

   Per Curiam.

This action was upon a promissory note. The note was complete and regular upon its face. The proofs showed that the plaintiff purchased the same for value before maturity and that the note was duly presented and protested for nonpayment.

The defendant sought to show that the note was given for an oil heater, which was not installed in a workmanlike manner, and that therefore there could be no recovery on the note. The District Court found, and the agreed state of the case 'supports the finding, that there was nothing to show that the plaintiff had any knowledge respecting the transactions for which the note was given when he purchased the same, and that he was a holder for value.

The defendant alleges many errors in the course of the trial. The plaintiff was a salesman for an oil heating concern and the District Court quite properly limited his cross-examination to matters, covered in the direct testimony and excluded questions relating to the course of business pursued bjr his endorser in the conduct of the oil heating business.

The purpose of the examination and the offer of the conditional sales contract was to show that the plaintiff must have known that the note was given for an oil heater and that such oil heater was sold under a contract which had not been performed by the endorser.

As before noted, the case comes before us upon an agreed finding of facts. Prom our examination thereof, we cannot say that there was harmful error in anything the court did or did not do; in fact, we think the procedure was proper. But if it was not, the record is in such shape that we cannot discover the alleged errors.

The judgment below will be affirmed, with costs.


author: IÍABTSUOBNE, J.

text:
    Essex County Court of Common Pleas.
    ABRAHAM MARSHALL AND VERONA ESTATES, INCORPORATED, A CORPORATION, PLAINTIFFS, v. CHARLES J. ROMANO, MAGGIE ROMANO, HIS WIFE, MICHAEL SAGGESE AND ANGELINA SAGGESE, HIS WIFE, DEFENDANTS.
    Decided January 14, 1932.

      Abraham Laub, for the plaintiffs.

      Max L. Rosensiein (Abraham A. Golden, of counsel), for the petitioner (plaintiff).
   IÍABTSUOBNE, J.

This is a motion to substitute attorney for the plaintiffs and to compel present plaintiff’s attorney to deliver up evidence in the cause, such evidence being, among other things, a contract held by him for the purposes of the cause and originally drawn by him before the cause arose.

The present attorney resists such applications on the ground that his fees have not been paid, either for the original drawing of the contract in question or for his services in the preparation of the above cause for trial, including the filing of the complaint.

To this the client replies, through the attorney who is proposed to be substituted, that his present attorney has nothing due him now for services, at least in the present cause, since the same was taken on contingency, and that, in any event, the present attorney waived any lien by his refusal to proceed until the client reimburses him for necessary outlays in the course of the proceedings and makes a payment on account of services therein. Plaintiff’s present attorney denies that this employment in the cause was on contingency.

The ease will shortly be reached for trial, so that the question of fact as to the present right of the present attorney to compensation, and its amount, cannot be previously determined. The court must adjust the rights of the client, who is entitled to be represented by attorneys of his own choosing, and of the attorney who is by law entitled to certain liens to secure payment for services rendered, unless the right to such payment is lost.

The decisions of the courts are not always in harmony in this regard, due largely to a failure to distinguish between the two different liens to which an attorney is entitled. He is, first, entitled at common law to a general lien for the general balance due him, both for professional services in the past and in the pending proceedings, this lien covering any papers coming to his hands professionally. Delaney v. Husband (Court of Errors and Appeals), 64 N. J. L. 275.

He is further entitled at common law to a so-called charging lien attaching to the judgment, decree, or recovery obtained through the services of the attorney. This common law lien has now beeen embodied in our statute. Pamph. L. 1914, ch. 201, p. 410.

The present attorney has not waived or lost any rights by refusal to proceed until reimbursed for necessary disbursements in preparation for trial or if not on contingency, till reasonable payments are made on account of services rendered, such constituting a good cause for his refusal to proceed (2 B. G. L. Attorneys, § 30), this rule being well recognized in Massachusetts, Hew York, and Michigan, for instance.

Since the present attorney’s right to compensation cannot be determined before trial, his rights, if any, must be preserved during the trial, though the trial itself should proceed with the attorney desired by the client.


author: Pee Curiam.

text:
    LAURA M. SANFORD ET VIR., PLAINTIFFS, v. CHARLES H. TOTTY COMPANY ET AL., DEFENDANTS.
    Decided January 20, 1932.
    Before Gummebe, Chief Justice, and Justices Trenohard and Lloyd.
    For the rule, Lum, Tamblyn & Colyer.

      Contra, Smith & Kiernan.

   Pee Curiam.

In December, 1929, Laura M. Sanford, a woman thirty-mine years of age and one of the present plaintiffs, while walking on Mount Pleasant avenue, in the town of Hanover, Hew Jersey, was run down and injured by an automobile belonging to the defendant corporation. She brought the present suit to recover compensation for the injuries which she received, her husband joining with her and seeking compensation for the loss of her society and assistance and the medical expenses already incurred by him and hereafter to be incurred in the treatment of his wife. The jury awarded the wife $26,000 and her husband $4,000. The award to the husband is not attacked by the defendants. We are asked to make the present rule absolute as to Mrs. Sanford because the verdict in her favor is excessive.

It clearly appears from the testimony submitted by the plaintiffs that as a result of this accident Mrs. Sanford is a physical wreck and that she will remain so during the rest

But, the essence of a lien is the retention of possession, and a relinquishment of the possession 'would thus terminate the lien, in the absence of statute or the agreement of the parties to the contrary. Lanterman v. Luby (Court of Errors and Appeals), 96 N. J. L. 255. Moreover, for the present attorney to hold the evidence necessary to prove the client’s cause would seriously embarrass a fair trial.

In order to secure to the client his free choice of attorneys and the use of all his evidence both before and during the-trial, and to secure to the attorney full payment for his services to date, whether his agreement as to the present litigation was contingent or not and whether such litigation should end in the defeat of his present client or not, the following order will he entered:

(1) To substitute the new attorney desired by the client;

(2) For the present attorney to deliver to the client the necessary evidence in the cause, but on condition;

(3) That (a) the plaintiff’s lien under the statute shall not he affected, and (b) that the client shall give security to-be approved by the court for the payment of the present attorney’s general lien, if any, if and when same is found to-be due.

of her life. The jury evidently believed this testimony and based its verdict upon it. We consider that the jury was entirely justified in finding that the injuries to Mrs. Sanford were of the character indicated, and, this being so, we cannot .say that the verdict, although large, is so plainly excessive as to justify this court in setting it aside'on that ground.

The rule to show cause will be discharged.


author: Pee Cubiam.

text:
    KATHRYN B. HOWARD, RESPONDENT, v. MORGENWECK, INCORPORATED, AND BORNOT, INCORPORATED, SEVERALLY, JOINTLY AND IN THE ALTERNATIVE, APPELLANTS.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellants, Elmer G. Van Name.

    For the respondent, Nathan Blank.

   Pee Cubiam.

In this case no specification of the determinations of the District Court with respect to which the appellants are dissatisfied, as required by rule 145 of this court, is presented; there is, therefore, nothing before us for review.

The appeal is dismissed, with costs.


author: Pee Cueiam.

text:
    JOHN KEAN ET AL., PROSECUTORS, v. NEIL McLEOD, Jr., ET AL., RESPONDENTS.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the prosecutors, McCarter <& English (George W. C. McCarter, of counsel).
    For the respondents, David Armstrong,

   Pee Cueiam.

This is respondents* motion to dismiss a writ of certiorari issued to review an order made June 23d, 1931, for the appointment of commissioners to determine the compensation) to be awarded the prosecutor for lands to be taken for park purposes by the park commission of Union county. The writ was granted on July 11th, 1931, and made returnable July 31st, 1931. A return was made before the return day. On August 6th reasons for setting aside the order were filed,, since which time no steps have been taken by the prosecutor to bring the case on for disposition by the court.

The writ has the effect of hindering and delaying further-proceedings in an important public improvement and presents a case in which rule 166 of this court, which declares-that “neglect to bring on the argument at the next term of the court after the return of the writ shall be made and completed, or within the time ordered by the court or the-justice thereof,** shall result in dismissal of the writ should be applied unless strong reasons to the contrary are presented-

jSTo such reasons appear in the affidavit as presented by the prosecutor and the writ is, therefore, accordingly dismissed, with costs for want of prosecution.


text:
    GUSTAV PENTER, RELATOR, v. ROBERT S. TIPPING AND BOARD OF CHOSEN FREEHOLDERS OF BERGEN COUNTY, RESPONDENTS.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the relator, Joseph H. Gaudielle.

    For the respondents, Stanton T. Lawrence.

   Pee Cubiam.

This case is presented on demurrer to the return of the board of chosen freeholders of Bergen county to an alternative writ of mandamus requiring that body to deduct from the monthly compensation of one Penter three per cent, of his salary toward the creation of a pension fund as provided by chapter 104, laws of 1929, and to appropriate of its own funds an equal amount for such purpose or show cause to the contrary.

The return of the board is to the effect that no demand has been made by the relator. It also denies that the relator is eligible to participate in such pension fund.

The return obviously raises questions of fact which cannot be determined by the court on demurrer.

The demurrer is therefore overruled.


text:
    C. CEDAR COVE, INCORPORATED, PLAINTIFF, v. MICHAEL STAUB AND ARCANGELA STAUB, AS LEGATEES, HEIRS AND DEVISEES OF PETER M. STAUB, DECEASED, DEFENDANTS.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the motion, Aaron V. Dawes.

    Contra, David A. Veeder.

   Pee Curiam.

This is a motion to quash an attachment. The affidavit upon which the writ issued is to the effect that neither of the defendants were at the time of the making of the affidavit resident in the State of New Jersey, and that one of the defendants, Michael Staub, as one of the legatees, heirs and devisees of Peter M. Staub, deceased, owes to the plaintiff the sum of $6,146.29, and that the defendant Arcangela Staub owes in like manner a like sum.

We think the affidavit was insufficient. It apparently is issued under the fifth section of the Attachment act of 1901 (Comp. Slat., p. 136), which enacts that attachments may issue for the debt of a deceased debtor against inter alia the heirs or devisees in all eases in which the writ may have issued against such debtor immediately prior to his decease. There is no averment in the affidavit of any indebtedness by the deceased or that the defendants have assumed or otherwise owe a debt owing by the deceased.

The writ of attachment is quashed, with costs.


text:
    ROSE ROSEN AND MAX ROSEN, RESPONDENTS, v. EACHELMAN TINSMITH SUPPLY COMPANY, APPELLANT.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Edwards, Smith & Dawson.

    For the respondents, Isador Hater.

   Pee Curiam.

The action was to recover damages for injuries received by the woman plaintiff in a fall on the floor of the hallway of an apartment of which she and her husband were tenants. The case resulted in a judgment for the plaintiff, and the defendant appeals, contending that there was error in the refusal of the learned trial judge to grant defendant’s motion for nonsuit or a like motion for a direction of a verdict in its favor.

The question in the case is whether there was sufficient evidence to show that the negligence, claimed to have caused the fall of Mrs. Posen, was by one who, at the time, was in the employ of the defendant, the owner of the building. The learned trial judge submitted the question to the jury and we' think rightly. It was open to that body to determine whether Clark, whose negligence was alleged to have caused the injuries, was an employe of the defendant or an independent contractor, and the determination of the question could not have been made by the court.

The judgment is affirmed, with costs.


text:
    JENNIE WARNER AND ALEX WARNER, RESPONDENTS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, APPELLANT.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    Por the appellant, Henry H. Fryling (Arthur C. Gillette, of counsel).
    Por the respondent, David T. Wilentz.

   Per Curiam.

The defendant appeals from -a judgment rendered against it in the Perth Amboy District Court. The reasons urged for reversal are the refusal of the court to grant a nonsuit or to enter a judgment in favor of the defendant because of insufficiency of evidence to establish negligence.

The plaintiff’s proofs tended to show that Mrs. Warner was a passenger in one of the defendant’s buses, and as the bus was proceeding at a high rate of speed it struck a bump, a window broke and the flying glass struck and injured her. It was for this injury that the action was brought. Prom the facts proved the jury could infer negligence in operation. Shay v. Camden Horse Railway Co., 66 N. J. L. 334; Hughes v. Atlantic Railroad Co., 85 Id. 212; Scilimbracca v. Central Railroad Co., 7 N. J. Mis. R. 635; 146 Atl. Rep. 665; affirmed, 107 N. J. L. 192.

Whether in the present case such inference should be drawn in the first instance, and whether, if so drawn, it was rebutted by the countervailing proofs, were questions for the jury and not for the court.

The judgment is affirmed, with costs


text:
    IDA MAY JANDA, BY HER NEXT FRIEND, IDA ROBBINS, APPELLANT, v. HAROLD CASWELL, RESPONDENT. IDA ROBBINS, APPELLANT, v. HAROLD CASWELL, RESPONDENT.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellants, Herbert J. Koehler and Raymond Saltzman.

    For the respondent, Walter 8. Keown and George D. Rothermel.

   Pee Cubiam.

These cases were tried together in the court below and resulted in verdicts for the defendant by direction of the learned trial judge. The plaintiffs appeal and urge as cause for reversal that there was error in this judicial ruling.

The actions were to recover damages for personal injuries received in a collision between an automobile in which plaintiffs were riding and an automobile of the defendant. The proofs showed that the plaintiffs were driving northward on ‘Marlton pike toward Camden, intending to cross the Crescent Boulevard which it intersects at right angles. When the driver of the car reached the southerly edge of the boulevard Tie stopped and waited until several cars had passed by; looked again, first to the left and saw an automobile about one square away; looked to the right and saw defendant’s car about two squares away. He then proceeded to cross. When half way across he observed defendant’s car still a square distant. When he reached within a foot or two of the northerly side of the boulevard his car was struck in the rear right side by defendant’s car.

On such proofs it was error to direct verdicts in favor of the defendant. There was ample proof that the defendant failed to observe the rights of the plaintiffs and that he was in consequence guilty of negligence.

The judgments are reversed.


author: Pee Ctjeiam.

text:
    ELIZABETH SMITH, RESPONDENT, v. RED TOP TAXICAB CORPORATION AND ARTHUR WHOLER, APPELLANTS. ELIZABETH SMITH, RESPONDENT, v. RED TOP TAXICAB CORPORATION AND ARTHUR WHOLER, APPELLANTS.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellants, Holdmwood & Creighton and Frank J. Brunetto, Jr.

    For the respondent, William L. Qreenbaum.

   Pee Ctjeiam.

These two cases were tried together in the court below and the appeal argued together here. The action in No. 451 was to recover for personal injuries received by the plaintiff; in No. 452 to recover for the expenses incident to her medical treatment for those injuries. The defendants moved to dismiss both suits on the ground that separate actions are not maintainable. The motion was denied, judgments rendered for the plaintiff and the defendants appeal.

The question sought to be raised on the appeal is whether .a separate action could be maintained for the expenses of treatment as distinguished from the action for the injuries themselves. The appellants are foreclosed, however, from raising the question by their admission in each case in the court below that the defendants were liable in the action, .and that the question left for determination for the court was simply the amount of damages. Whatever error, if error there was, in the previous ruling on the motion for dismissal of both suits was cured by this later admission.

We may add, however, that the motion to dismiss both suits ■could not have been granted on the ground urged as certainly ■one of the other of these actions, if not both, were properly maintainable.

The judgment in each case is affirmed, with costs.


text:
    NATHAN BROWN, INDIVIDUALLY AND TRADING AS EXPERT SERVICE GARAGE, RESPONDENT, v. MACK-INTERNATIONAL MOTOR TRUCK CORPORATION, APPELLANT.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.

      For the appellant, Richard M. Glassner (Jacdb 8. GliclcenhauSj of counsel).
    For the respondent, Harry Levin.

   Per Curiam.

The' appeal in this case is by the plaintiff who was non-suited in the court below, case was under the Garage Keepers' Lien act of 1915 (page 556). The garage keeper seized a truck as the property of the Feldman Trucking Company to secure the payment of a bill for repairs. The truck was then taken under a writ of replevin by the Mack-International Motor Truck Corporation, the conditional vendor. When the case came on for trial a controversy arose over the method of procedure; the Mack company contending that the burden was on the garage keeper to establish his claim and the garage keeper contending to the contrary. Neither side waiving its contention, the nonsuit as to the Mack company was granted, and the company appeals.

We think the case is not properly before us. The proceeding is wholly statutory and not according to the course of the common law. Under a well settled line of decisions, it cannot be reviewed by appeal. So much was specifically held as to proceedings to review judicial action under this very act in the case of Ackerman v. Bloomingdale, 147 Atl. Rep. 444.

The appeal will be dismissed, with costs.


text:
    GEORGE MARCINKO, Jr., ET AL., PLAINTIFFS, v. CONRAD SAUER, DEFENDANT.
    Submitted January 20, 1932
    Decided January 20, 1932.

      Before Gummeee, Chief Justice, and Justices Teenohaed and Lloyd.
    For the rule, Thomas L. Hanson.

      Contra, Henry K. Oolenboch.

   Pee Cueiam.

This is an automobile accident case. George Mareinko, Jr.¿ and his father are the plaintiffs in this suit. The former was run down and injured by the defendant’s automobile while crossing ISTew Brunswick avenue, in Perth Amboy. At the time of the accident he was about fifteen years of age. The case came on to be heard at the Middlesex Circuit Court in October, 1928, and resulted in a verdict in his favor, the jury awarding him $300. A rule was applied for on his behalf, and on the return thereof this court set the verdict aside as grossly inadequate, and remitted the case for a new trial, limiting that trial, however, to the question of damages. The second trial occurred in October, 1930, and the jury at that trial awarded the infant $4,000. The present rule was sued out for the purpose of reviewing this verdict, and the contention is that it should be set aside because it is grossly excessive. Our examination of the proofs leads us to the conclusion that this contention is justified. The injuries received by this boy were not very serious. At the time of the happening of the accident he was engaged as a dishwasher in a restaurant and was receiving as compensation $13 a week. At the time of the trial he was earning $16 a week; and he was only absent from work for a comparatively short time after the happening of the accident.

In our opinion, $2,500 would have been a generous allowance as compensation, and the present rule will be made absolute unless the plaintiffs will consent to a reduction of the verdict to that amount. If such consent be given, then the rule to show cause will be discharged. Otherwise, it will be made absolute.


author: Pee Cukiam.

text:
    MORRIS LANGER, PLAINTIFF-RESPONDENT, v. MORRIS PLAN CORPORATION OF NEW JERSEY, A CORPORATION, DEFENDANT-APPELLANT.
    Argued October 7, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the defendant-appellant, Green & Green.

    For the plaintiff-respondent, Morris Isserman.

   Pee Cukiam.

The defendant appeals from a judgment in favor of the plaintiff in the sum of $165. On November 25th, 1929, plaintiff gave defendant his note in the principal sum of $300, to which was added $30 for interest, making a total -of $330, and agreed to repay the same at the rate of $33 each .and every month thereafter. Having paid $165 on account -of said note, the plaintiff sought to recover the amount so paid under section 6 of chapter 49 (Pamph. L. 1914), alleging that the transaction violated section 5 of that act as ■amended. The District Court gave judgment in favor of the plaintiff relying upon Morris Plan Corporation of New Jersey v. Schwartz, 150 Atl. Rep. 390. The case of Consolidated Plan of New Jersey v. Shanholtz, 147 Id. 401; 7 N. J. Mis. R. 876; affirmed, 107 N. J. L. 517, also seems controlling.

Chapter 49, Pamph. L. 1914, was amended by chapter 251 Pamph. L. 1928, and section 8 of the amendatory act provides that its provisions shall not apply to any loan greater -than for the principal sum of $300.

The appellant contends that the principal sum of the note signed by the plaintiff was $330. We do not so read the note. The note upon the upper left-hand corner of its face bears the words “principal” and the figures $300; “interest” and the figures $30, making a total of $330. Obviously, the note was not for a principal sum in excess of $300. A copy of the note was annexed to the state of demand and the facts and statements as therein appearing are controlling.

It is sufficient perhaps to notice that the defendant company did that which it was not permitted to do under section 5 of the act, as amended (Pamph. L. 1928, ch. 251). That act provides, in part, as follows: “ISTo such licensee shall charge or receive of the borrower * * * a greater rate of interest than three per centum per month. Such interest shall not be payable in advance and shall be computed on unpaid balances.” Although the amount of interest exacted was loss than three per cent, the act provides that interest shall not be payable in advance and shall be computed on unpaid balances. The loan company could have complied with the statute had they desired so to do. Since the note given violates both the spirit and the law of the statute, the plaintiff was entitled to recover.

The judgment is affirmed, with costs.


text:
    JAMES B. FLEMING, RESPONDENT, v. GEORGE HILLMAN, Jr., APPELLANT.
    Submitted October 16, 1931
    Decided January 20, 1932.

      Before Justices Campbell, Lloyd and Bodine.
    Bor the appellant, Jacob Van Ber Clock.

    Bor the respondent, Betz é Stein.

   Pee Cukiam.

This action was in the District Court to recover for taxicab service furnished to the wife of the defendant. The case was tried before the judge without a jury and a finding and judgment in favor of-the plaintiff resulted.

The defendant appeals and urges for reversal first that the court erred in admitting the plaintiff’s books of original entries. At the trial the books were objected to not on the ground that they were incompetent, but that the plaintiff was not pursuing a proper method of proving the account. Certainly the method of proof was competent. The plaintiff was called and testified that the book offered was in his handwriting; the entries which he made in the book offered were copied from the small books kept by the drivers. The book kept by the plaintiff and those kept by his drivers appear to have been received. The question whether the books themselves were competent is not presented and if it were, we are not prepared to say that the admission of the books was harmful error even though incompetent, as the plaintiff stated without objection the amount due was $146, and to this statement there was no subsequent contradiction; indeed the wife testified on cross-examination to the correctness of the specific items mentioned in the account.

It is next urged that the court erred in denying the defendant’s motion for nonsuit and for the direction of a verdict in his favor. Neither of these motions could have been granted in the light of the testimony. It seems that in the spring of 1930, the defendant and his wife were living together, but an estrangement arose between them and the husband refused the wife the use of a LaSalle car and á Bord car which he owned and which had previously been at her disposal, telling her that she should “hire a taxi or use a bus or do as she damned pleased.” On the strength of this she hired the taxi and incurred the bills sued for.

The wife’s testimony further showed that the husband was in receipt of a large income, approximately $30,000, which if true, would justify, in view of the denial of the privilege of the private cars, the use of other means of transportation (the commonest of which perhaps is the taxicab), as reasonably necessary. It is true the respondent asserts that his income was approximately one-third of that amount, but this would present a question of fact, the disposition of which we cannot review on appeal.

The judgment is affirmed, with costs.


author: Pek Cubiam.

text:
    MONGIELLO BROTHERS, INCORPORATED, RELATOR, v. BOARD OF COMMISSIONERS OF JERSEY CITY ET AL., RESPONDENTS.
    Argued January 20, 1931
    Decided January 20, 1932.
    Before Gummeke, Chief Justice, and Justices Tkeftchakd and Lloyd.
    Bor the relator, George G. Tennant.

    Bor the respondents, Thomas J. Brogan.

   Pek Cubiam.

The relator is the owner of three adjoining lots located on Bostwick avenue, in the city of Jersey City. A building is erected thereon which is used by the relator for the manufacture, storage and distribution of ice. It applied to the municipal authorities of Jersey City for leave to erect a new building upon the plot owned by it, to take the place of that at present located thereon and to be used for the same purpose. This application was denied, and the present writ was sued out to compel the granting of a permit authorizing the erection of such building.

The only ground set up by the municipality as a justification for its refusal to grant the permit is that for many months past it has been engaged in the preparation of a new zoning ordinance, which has been introduced by the city commission, but which has not yet been passed, and which, so far as the case shows, may never be adopted. Counsel for the municipality admits that the ordinance which has been introduced, although it provides that the property located in the proposed zone in which the relator’s premises are situated shall be limited to a residential use, contains a provision that the industries on the street in question, including that part thereof where the relator’s property is located, are exempted from the residential reservations, and the use thereof for industrial purposes is to be permitted to be continued.

In the situation indicated, we consider that a peremptory writ should be granted to the relator. The delay in passing the proposed zoning ordinance has been so long continued as to be apparently inexcusable. In the absence of a zoning ordinance, already adopted or about to be adopted, changing the character of the user of the property in the locality where the relator’s building is located from manufacturing to residential purposes, the relator was legally entitled to the granting of the permit. On the other hand, if it be assumed that notwithstanding the delay, a peremptory mandamus should not be issued until after the proposed ordinance is finally acted upon, the answer is that, in case of its adoption, it would be no bar to the right of the relator to have the permit which it has asked for granted to it.

For the reasons indicated, a peremptory writ will be allowed.


text:
    WHITE & SHAUGER, INCORPORATED, PLAINTIFF, v. F. HOWARD STRAIT ET AL., DEFENDANTS.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    For the appellant, Theodore E. Dennis.

    For the respondent, J. Vincent Barniti and Dolan & Dolan.

   Per Curiam.

The plaintiff corporation brought this suit against the defendant Strait to recover the value of certain materials which were sold by it to one Paul Berghofer and installed in a dwelling house which was being erected by the defendant on a plot of land owned by him and located in the borough of Hamburg, in Sussex county. The suit is a mechanics’ lien suit, the plaintiff averring in its complaint that, although the materials were sold by it to Berghofer and were installed by him in the dwelling house of Strait, the latter is liable under the Mechanics’ Lien law for the price of the materials, and that the land upon which the building was being erected is subject to a mechanics’ lien to the amount of the value of the goods furnished by it to Berghofer and installed in the building. Berghofer was not made a party defendant to this suit. At the trial of the case a motion was made on behalf of the defendant Strait that the jury be instructed to return a verdict in his favor because the proofs disclosed no liability on his part and no right on the part of the plaintiff to enforce its claim against the building and curtilage of the defendant. This motion was denied, and the court, in response to a counter-motion made by counsel for the plaintiff, directed a verdict in its favor for the amount of its claim. The present appeal is from the judgment entered upon the directed verdict.

In our opinion, the action of the trial court was plainly erroneous. The fact that Berghofer, after purchasing these' materials from the plaintiffs, installed them in the building of the defendant Strait under a contract with the latter imposed no liability on the part of the defendant to pay Berghofer’s debt to the plaintiff, nor did it entitle the plaintiff to payment out of the property of the defendant in which the materials were used, unless it first acquired a lien thereon in accordance with the provisions of our Mechanics’ Lien law. Section 16 of that statute (Comp. Stat., p. 3303) provides that “every person intending to claim a lien under the provisions of this act shall, within four months after the labor is performed or the materials furnished for which such lien is claimed, file his or her claim in the office of the clerk of the county where the building and the land subject to such lien is situate, which claim shall contain a description of the building and of the lot or curtilage upon which the lien is claimed, the name of the owner of the land on which the lien is claimed and the name of the person who contracted the debt.” There is no averment in the complaint that a lien claim was filed against this property by the plaintiff, nor is there a scintilla of evidence that such was the fact. In the absence of such averment and proof, the presumption is that no lien claim was filed; and, this being so, the plaintiff is not entitled to collect out of the land of the defendant the price of the materials sold by it to Berghofer and used by the latter in the construction of the defendant’s building.

For the reason indicated the judgment under review will be reversed.


text:
    JAMES C. SAPIENZA, INCORPORATED, RESPONDENT, v. ALEXANDER J. MILMOE, Sr., APPELLANT.
    Argued October 6, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Koehler & Augenblich.

    For the respondent, Milton M. TJnger and Leonard J. Kmmerglick.

   Per Curiam.

On June 3d, 1926, a lease was executed by James C. Sapienza to Alexander J. Milmoe, Jr., and Walter Y. Sullivan for premises in Irvington; on December 19th, 1921, there was an assignment of the lease by the receiver of the tenant to Alexander J. Milmoe, Sr.; on March 15th, 1930, Milmoe, Sr., assigned to Milmoe, Jr., and ceased to occupy the premises.

The action in the District Court was against Milmoe, Sr., for rents accruing in April and May, 1930, and the defense was that Milmoe, Sr., ceased to occupy the premises when he assigned to Milmoe, Jr., and was thereafter not liable for the rents.

The trial judge gave judgment for the plaintiff and defendant appeals.

It is claimed by the appellant that while there was privity of estate between the plaintiff and defendant during the defendant’s occupancy of the property, there was no privity of contract, no assumption by the latter of the lease itself, and that when defendant transferred the lease to his son the obligation to pay rent under the lease ceased in the absence of an assumption of its obligation by reason of the terms themselves or proof that the assignment to the son was not bona fide.

Bespondent claims that the lease forbids assignment without the lessor’s consent, and that having taken a valid assignment from the receiver, the defendant could not divest himself of the leased property without such consent. This, however, is disposed of by the case of Meyer v. Alliance Investment Co., 84 N. J. L. 451; affirmed, 86 Id. 694. See, also, Linke v. Greenfield, 104 Id. 320

Considering the other questions indicated, as to the first, the lease provided that it should be binding upon the parties thereto, “their heirs, executors, adiministrators, successors and assigns.” Did this constitute an assumption of the lease and its obligations? In the Meyer case, supra, it was .held that the clause, “subject to all the terms, conditions and covenants contained in said lease,” constituted words of qualification and not of contract. While there is a difference in the language, we think its meaning is the same. It imposed liability during the period of actual holding, but not otherwise.

Finally could the judge justify his conclusion on the ground that the asignment was not in good faith? We think not. Both father and son testified to the assignment and that the father thereafter had no contact with or interest in the property. In the absence of any evidence to the contrary we do not see how their testimony could be disregarded.

The judgment is reversed.


author: Pee Cttbiam.

text:
    IN RE COMPLAINT AGAINST GILIO STRAMESE, AN ATTORNEY-AT-LAW, FOR UNPROFESSIONAL CONDUCT.
    Argued January 20, 1932
    Decided January 21, 1932.
    Before Justices Tbenchabd, Daly and Donges.
    For the motion, Joseph L. Smith.

   Pee Cttbiam.

The board of bar examiners found the accused guilty of unethical conduct charged, and recommended that he be suspended from practice as an attorney-at-law for a period of one year. A motion was made to confirm this report.

Our examination of the report and record satisfies us that the report is just and right. Our order, therefore, is that the report be confirmed and that the accused, Gilio Stramese, be suspended from practice as an attorney-at-law for a period of one year, beginning on the twenty-first day of January, 1932.

Incidentally it appears that pending the investigation by the board of bar examiners resulting in the foregoing report now confirmed the accused, Gilio Stramese, passed his examination as counselor-at-law. In view of his suspension as above stated, the order of the court is that he shall not be sworn in as counselor-at-law until the above stated period of suspension has expired.


text:
    FRED L. TICHENOR, RESPONDENT, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, APPELLANT.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Quinn, Parsons & Doremus.

    For the respondent, Samuel Y. Hampton.

   Per Curiam.

Fo specification of determinations of the District Court with which the appellant is dissatisfied, as required by rule 145 of this court, is presented in the record brought before us in this case. There is, therefore, nothing before us for review.

The appeal is dismissed, with costs.


text:
    LETZ & KATZ, INCORPORATED, APPELLANT, v. UNIVERSAL COOLER CORPORATION ET AL., RESPONDENTS.
    Decided January 20, 1932.
    Before Gummeee, Chief Justice, and Justices Teenchaed and Lloyd.
    Por the appellant, Harry Nadell.

    Por the respondents, John L. Griggs.

   Pee Cueiam.

The plaintiff below, the present appellant, brought this suit against the Universal Cooler Corporation to recover moneys which it claimed the latter refused to turn over to it, without any legal justification for such refusal.

The averments of the complaint are as follows: On the 2d of September, 1927, the plaintiff entered into a written contract with the defendants, by the terms of which it agreed to pay to the latter as the purchase price of certain refrigerator units, which were to be installed in an apartment house owned by it, the sum of $1,135.44 in cash and to execute promissory notes to the defendants aggregating $3,112.51. The refrigerator units were installed by the defendants in the plaintiff’s apartment house, the cash payment was made and the notes were delivered. The contract also provided that the sellers guaranteed to the buyer the installation and the proper performance of the said refrigerator units for a period of one year from the date of the installation thereof to the satisfaction of the plaintiff. It further provided that, in the event of the buyer becoming dissatisfied with the performance of any or all of the said units, it should have a right to return the same to the sellers, and that the purchase price of the returned units should be credited against the notes given as part payment of the consideration money; and that, in the event of the total amount of returned units equaling the amount due upon said notes, then the notes should be returned to the plaintiff. The plaintiff, in addition to the recitals above set out, further averred in its complaint that it was distinctly understood between the parties (although not so provided in the contract) that the dissatisfaction of the buyer with the installation or performance of the said units within one year from the date of their installation would, upon notice to the sellers, divest the latter of all right to the purchase price, and that the entire purchase price should thereupon be returned to the plaintiff, in compliance with its demand. It was further averred in the complaint that some four months after the installation of the refrigerator units the plaintiff notified the defendants that it was dissatisfied with the installation and performance of all of the units and demanded the removal thereof by the latter and the return by them to the plaintiff of the entire purchase price.

The defendants, subsequent to the making of such demand, surrendered up the notes which they had received from the plaintiff, but refused to return the cash payment or anjr part thereof; and the present suit is brought to recover the cash payment of $1,135.44.

Service of a copy of the complaint having been made upon the defendants, the latter, upon notice, moved to strike it out upon the ground that it disclosed no cause of action and demanded relief not sustained by the statements contained therein. This motion came on to be heard in due course, and at the close of the hearing it was granted, and a rule was signed striking out the complaint. The present appeal is from the judgment entered upon this rule.

In our opinion, the action of the trial court was proper. So far as the written contract provides, the obligation of the defendants to return the purchase money in the event that the vendee should be dissatisfied and return all of the refrigerator units is limited to the surrender of the notes given as a part of such' purchase money. The averment in the complaint that “it was distinctly understood” that the dissatisfaction of the buyer with the installation or the performance of the units would, upon notice to the sellers, divest the latter of all right to the purchase price, does not suggest that this was a part of the agreement and was omitted from the written document by inadvertence or mistake. A mere understanding between parties, not intended to be incorporated as a part of the written agreement, amounts to nothing so far as their respective rights and liabilities are concerned. The statement that because of this understanding it was incumbent upon the defendants to return the entire purchase price is a mere assertion, which rests upon no legal basis.

Por the reason indicated we conclude that the judgment under review should be affirmed.


text:
    FIRST NATIONAL BANK OF PERTH AMBOY, NEW JERSEY, PROSECUTOR, v. JOSEPH POLKOWITZ AND LEO GOLDBERGER, JUDGE OF THE DISTRICT COURT OF PERTH AMBOY, RESPONDENTS.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodiwe.

      Por the prosecutor, Lewis 8. Jacobson.

    Por the respondents, Jacob I. Polkowitz and Jacob H. Bernstein.

   Pee Cueiam.

Joseph Polkowitz, an undertaker, instituted an action in the Perth Amboy District Court to recover from the defendant Melvina Goldberger, executrix, the funeral expenses incurred in the burial of Klara Weiss, for whose estate the defendant Melvina Goldberger was executrix.

Process was executed by attaching moneys alleged to be due' from the Pirst National Bank of Perth Amboy to the estate of Klara Weiss on April 10th, 1931. Judgment was entered against the defendant, who had entered an appearance in the cause, on June 5th, 1931. A scire facias was then issued directing the bank to show cause on June 22d, 1931, why the plaintiff should not have execution upon his judgment against the estate of Klara Weiss out of the moneys in the hand of the bank. To the scire facias the defendant made answer that prior to the 10th of April, 1931, when the attachment was served, there had been an indebtedness due to the Pirst National Bank by Klara Weiss of $8,227.83 on a promissory note dated January 19th, 1931, payable one month after date, and that at the same time Klara Weiss had on deposit with the bank the sum of $5,050, and further that prior to the 10th of April, to wit, on the 2d of April, 1931, the amount so on deposit was applied in liquidation and partial cancellation of said promissory note, and that in consequence of such appropriation the bank was not then indebted to the estate of Klara Weiss, deceased.

Without further proceedings the court thereafter on the 13th of August, 1931, made an order that the bank, garnishee, pay the debt or so much thereof as might be necessary to satisfy the execution.

There appears in the record an affidavit of one Datz, a constable, tending to show an admission by the cashier of the bank that there were moneys to the credit of Klara Weiss sufficient to pay the judgment of the plaintiff. This affidavit, however, is dated July 21st, 1931, a month after the return day of the writ of scire facias, and was therefore neither available nor competent as proof to rebut the answer of the bank to the writ itself. It was incumbent on the trial judge to proceed in accordance with section 76 of the District Court act (Corap. 8tat., p. 1979), which declares that "if the garnishee shall appear at the return of the scire facias and plead thereto that he had no goods and chattels, rights and credits of the defendant in his custody or possession, either at the time of executing the writ of attachment or at any time since, or that he was not indebted to the defendant, and the plaintiff on trial shall prove that he was indebted or had such goods and chattels and rights and credits, then the court shall find for the plantiff and assess damages * * * against the goods and chattels of such garnishee, but if the court shall determine against the plaintiff in favor of the garnishee, then he shall recover costs against the plaintiff and have execution for the same.”

Under this statute it was incumbent on the trial judge to determine by judicial procedure the rights of the parties, and these methods required that proofs on the issue raised by the return should be received by the calling of witnesses or the production of other competent evidence and affording opportunity for cross-examination to each adversary upon such proofs being tendered. The rights of litigants are not to be summarily disposed of in the manner pursued in this cause.

The judgment is set aside.


text:
    WILFRED R. WOOD AND HAROLD BOUTON, ANCILLARY RECEIVERS OF INTERNATIONAL COMBUSTION TAR AND CHEMICAL CORPORATION, AND INTERNATIONAL COMBUSTION TAR AND CHEMICAL CORPORATION, PROSECUTORS, v. THE BOARD OF COMMISSIONERS OF THE CITY OF NEWARK, DEFENDANTS.
    Argued October term, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the prosecutors, Pitney, Hardin & Skinner.

    For the defendants, Frank A. Boettner (Louis A. Fast, of counsel).
   Pee Cueiam.

This is a sewer assessment case. The prosecutors have a writ of certiorari to review the assessments made by commissioners to assess damages for benefits to property owned by them, and argue their case under five heads. It may be well to note that the prosecutors made no objection to the confirmation of the report of the commissioners by the Circuit Court when the matter was presented to that tribunal, and therefore the amount of the award, if otherwise legal, is not involved.

It is first said that the lands of the prosecutors derive no benefit from the sewer, and this because the street in which the sewer is laid and the lands of the prosecutors at the present time lie below the level of the sewers. The lands of the prosecutors abut directly on the street in which the sewer is laid, and it would be an unusual case that would justify a holding that abutting lands of a street in which a sewer is laid derive no benefit from such a construction from the mere fact that the land at present lies below the level of the sewer. Such condition is not unusual. To utilize the land obviously it must be filled in at least to the grade corresponding to that of the highway, which was testified in this case would be from three to six feet above the top of the sewer, and it is equally obvious both from the nature of the case and the testimony that the sewer would be essential, in the absence of other means, to the drainage of the surface and of any sewage disposal resulting from construction on the land. This contention is, therefore, without merit.

It is next said that the present facilities for drainage are adequate. The evidence does not satisfy us that this is so, or that those existing would be ultimately permitted.

It is next said that the assessments made are not limited to the peculiar benefit had nor are they in accordance with the benefit derived as required by the act under which the assessment is made. We think this contention is not well founded. There is nothing in the findings of the commissioners to justify such an inference.

The contention that there is violation of the provision of the constitution which requires that property must be assessed for taxes under general laws and by uniform rules according to its true value is without substance. Benefits as here assessed have been too long sanctioned by judicial ruling to be now of doubtful validity.

The fifth point is that the assessments are for future benefits. We do not understand this to be the fact. Because the commissioners may have taken into consideration the future use it by no means indicates that they were assessing damages for future benefits, but rather that they were using that future use as a basis upon which to predicate a present benefit.

The assessments are affirmed, with costs.


text:
    FRANK LE STRANGE, RESPONDENT, v. MAURICE KRIVIT, APPELLANT. WILLIAM HOWELL, RESPONDENT, v. MAURICE KRIVIT, APPELLANT.
    Submitted October 16, 1931
    Decided January 20, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    Bor the appellant, Carey •& Lane.

    Bor the respondents, Edward J. Madden (Thomas Mc-Nulty, of counsel).
   Pee Cueiam.

The appeals in both of these cases present the question as to whether the presumption of law arising from the ownership of an automobile that the car is in the possession and control of such owner was rebutted by the proofs in the present case.

The facts as established in the proofs were that the car of the defendant, Krivit, while in the control and being operated by a■ driver named Lester Bell, came into collision with a motorcycle on which the plaintiffs were riding, that the collision was due to the negligence of the drivers of the car, and that the plaintiffs were injured as a result. Prom these facts undoubtedly the presumption oí control in the defendant arose.

To meet this presumption the defendant testified that his car was kept in the garage of one JIcKnight and was to be delivered by the garage to the defendant at his home each morning; that Bell was not his employe; that he did not pay him and that he was not in his service. To like effect was the evidence of Bell, the driver, who testified that he was employed by the garage, that he was not employed by the defendant and that he delivered the ear as directed by the garage owner. This evidence, uncontradicted, we think, so clearly rebuts the presumption arising from the fact of ownership as to resolve the question into one of law for the court as such and not one for the court sitting as a jury. Tischler v. Steinholtz, 99 N. J. L. 149; Harris v. Kline, 151 Atl. Rep. 109.

The motion for direction of a verdict in favor of the defendant should have been granted and the judgment is reversed.