text:
    FEED TOSCANI, BY NEXT FRIEND, ET AL., v. ABE LITSKY.
    Decided February 14, 1927.
    Re-arguments — Alleged Error of Court in Holding That Certain Evidence, Though Irrelevant, was Harmless — Application Denied Because in Opinion of Court Discharging the Rule the Holdings Were Not as Here Alleged.
    On petition for re-argument of rule for new trial.
    Before Justices Black and Campbell.
    For the plaintiffs, Feder & Binzler.

    For the defendant, Harry II. Weinberger.

   Per Curiam.

A petition for re-argument of the above cause has been filed urging that this court fell into error, because having found that certain evidence as to ventilation of the room in which the infant plaintiff was put to work was irrelevant, nevertheless, such evidence was found to be harmless and because the verdict of the plaintiff Anthony T'ocsani, the father of the infant, is not sustainable under Hetzel v. Wasson Piston Ring Co., 89 N. J. L. 205.

The application for re-argument is denied because in the opinion of this court discharging the rule to show cause it was not held that the testimony respecting ventilation was irrelevant and because the verdict of the plaintiff Anthony Toseani cannot be attacked — because nowhere before or at the trial was it urged that a recovery could not be had because of the reasons urged upon the argument of the rule to show cause based upon Hetzel v. Wasson Piston Ring Co., supra.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JOSEPH H. LUCKING, PLAINTIFF-APPELLANT, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-RESPONDENT.
    Decided March 1, 1927.
    Negligence — Injury to Plaintiff’s Automobile by Defendant’s Street Car — Case Tried Without Jury — Though Plaintiff’s Presentment of Facts Makes it Very Likely That Accident Happened in the Way His Witnesses Described it, Yet, There was a Question of Fact, and Sufficient Evidence From Which the Court Might Conclude That There was Contributory Negligence.
    On appeal from the First District Court of the city of Newark.
    Before Justices Kalisch, Katzenbaoh and Lloyd.
    For the appellant, Abraham ATboum.

    For the appellee, Joseph Couli.

   Per Curiam.

This is an appeal from a judgment entered in the First District Court of Newark. The case was tried before the court without a jury. Verdict was rendered in favor of the defendant against the plaintiff, from which judgment the plaintiff appeals. The. plaintiff brought his action to recover damages sustained by him under the following circumstances:

On November 10th, 1925, while the plaintiff’s automobile truck was at the intersection of Bank and Boston streets, Newark, it was run into by the defendant’s trolley car, whereby the truck was damaged to the extent of $395.55. The plaintiff’s witnesses testified that the trolley car was two hundred feet west of Boston street when the truck started to cross; that the distance between the south curb of Bank street and the first rail of the eastbound track is about twenty or twenty-five feet; that when the truck reached the first rail of the eastbound track the trolley was about one hundred feet west of Boston street and that when the rear wheel of the truck reached the second rail of the easthound track the trolley struck the left rear wheel of the truck.

The defendant’s testimony is to the effect that when the trolley ear was about twenty-five feet away from the intersection of the two highways, the truck was twenty-five feet away from the curb on Boston street, and that each vehicle had an equal distance to travel to the point where the collision took place; that the trolley car was running at a very moderate rate of speed when the truck came on the rail in front of the trolley car, the distance between the front of the trolley car and the rail of the truck being then only three or four feet

While it is true that the plaintiff’s testimont makes it very likely that the accident happened in the way that his witnesses described it, yet, there was a question of fact for a court to decide, and there being evidence from which the court could properly conclude the accident was the result of the negligence on the part of both parties, we cannot disturb the verdict.

Judgment is affirmed, with costs.


text:
    LOUIS ALPERN, PLAINTIFF-APPELLANT, v. BARNEY STREIFF, DEFENDANT-RESPONDENT.
    Decided March 1, 1927.
    Sale of Real Estate — Agent’s Commissions — Contract Provided For a Commission to be Paid For “Services Rendered”— Sale was Not Consummated, and District Court Directed a Verdict For Defendant on That Ground — Held, That Contract Did Not Provide For Consummation of Sale.
    On appeal from the Perth Amboy District Court.
    Before Justices Katusch, Katzenbacr and Lloyd.
    For the appellant, Leo L. Lowenkopf.

    For the respondent, David T. Wilentz.

   Per Curiam.

There was a judgment entered on a directed verdict in the Perth Amboy District Court in favor of the defendant against the plaintiff. Prom this judgment the plaintiff below appeals. The action was tried before the court, sitting with a jury. The plaintiff sued to recover a commission which he claimed he had earned by procuring a purchaser for the premises owned by the defendant, for the sum of $18,250.

By the state of the case agreed upon between the attorneys of the respective parties, it appears that on the 20th day of April, 1925, the defendant gave to the plaintiff exclusive authority to sell the premises Nos. 274-276 Hobart street, Perth Amboy, New Jersey, said defendant being the owner of the property.

This authorization was in writing and contains the following clause: “In the event that the said Louis Alpern procures a purchaser upon the above terms or such terms as may be accepted by me, then I do hereby agree to- pay the said Louis Alpern two and one-half per cent, on the sale price as his commission.”

The plaintiff procured two purchasers for the property of the defendant upon terms suitable and acceptable to the latter, and, thereupon, the defendant entered into a written contract with the said purchasers on the 23d day of April, 1925, to convey to them the said property for the sum of $18,250.

The contract of sale contains this clause: “And the said party of the first part hereby agrees to pay to Louis Alpern a commission of two and a half per cent, on the purchase price aforesaid, said commission to be paid in consideration of services rendered.

It was also stipulated, in substance, between the parties to the contract of sale, that part of-the consideration to be paid fox the property shall consist of a first mortgage of the sum of $5,000, which was to be placed upon the property contracted to be conveyed to the party of the second part, and which shall be assumed by the party of the second part, and which first mortgage was to be raised by the party of the first part at his own expense. In case he was unable to do so by June 1st, 1925, then the party of the second part was to have an additional thirty days in which to place such mortgage, and in the event that neither party was able to place this mortgage, as indicated, then the contract of sale should be canceled and be of no effect, and the deposit money was to be returned. Neither party succeeded in having a mortgage placed upon the property and the contract was canceled.

A motion was made on behalf of the plaintiff for a direction of a verdict in his favor for the amount of the commission sued for against the defendant, which motion was denied, and an exception was taken to the court’s ruling. The court charged the jury to bring in a verdict for the defendant against the plaintiff, stating that no sale having been effected by reason of the fact that the mortgage had not been negotiated, and there being no actual consummation of the contract, the broker was not entitled to the commission. The court also charged that the option of the contract specifically provided that in the event that neither the principal nor the purchaser should place a mortgage that the contract of sale should not be binding and should become null and void, and the contract having become null and void, because of the inability to place such mortgage, the agreement to pay commission also became null and void. Counsel of plaintiff took an exception to this ruling.

We are unable to find anything in the written authorization given to the plaintiff to sell the property that makes the payment to him dependent upon a consummation of the sale. On the contrary, we find in the contract of sale an express declaration by the defendant that the commission shall be paid to the plaintiff in consideration of services rendered. The court was in error in directing a verdict for the defendant. A verdict should have been directed in favor of the plaintiff for the amount of the commission.

The judgment is reversed, and judgment directed to be entered in favor of the plaintiff against the defendant for the sum of $456.25.


text:
    BARBARA DEMAREST ET AL., PLAINTIFFS, v. PALISADE REALTY AMUSEMENT COMPANY, DEFENDANT.
    Argued October term, 1926 —
    Decided February 26, 1927.
    Negligence — Injury to Patron of an Amusement Park — Held, Testimony Sufficient to Warrant the Verdict of $18,000 For Plaintiff — Held, Also, That Verdict was Not Excessive.
    On rule to show cause, Passaic county.
    Before Gummere, Chief Justice, and Justices Trenchard and Min turn.
    Eor the rule, William V. Rosenlcmns and Wayne Dumont.

      Contra, Michael Dunn and Michael J. Murphy.

   Per Curiam.

The action was by husband and wife for recovery of direct and consequential damages for personal injuries to the wife. The jury returned a verdict of $18,000 in favor of the wife and $7,000 in favor of the husband.

Mrs. Demarest was injured while riding in defendant’s amusement park upon a device operated by defendant, and known as “The Sleigh Ride.” Each sleigh accommodated two pasesngers and was elevated on an incline by a series of cogs and wheels, and descended on runners by force of gravity. The speed on the downward glide was gradually diminished by two brakes operated by hand levers.

The plaintiffs’ evidence was that Mrs. Demarest was injured by reason of failure of defendant’s operator to be at his post of duty; that upon seeing the sleigh coming down, he rushed to the brake and applied the lever quickly and forcibly so as to cause the sleigh to come to a sudden stop, thereby violently throwing Mrs. Demarest forward and breaking the leather strap around her waist, which was used as a protection to the passenger against the forward tipping of the car.

The defendant’s operator testified that he was at his post; that the plaintiff disobeyed instructions in not using the hand rails and foot brakes, and as a result, when the brake was applied, she slid forward and her foot protruded over the front of the sleigh, and that thereupon, in order to prevent an accident, he applied the brakes abruptly. We think this divergence of fact presented a jury question, and that the verdict is not against the weight of the evidence.

It is also urged that the verdict of $18,000 in favor of the wife is excessive. The accident happened on July 20th, 1922, and the trial on May 25th, 1926. Mrs. Demarest was forty-two years of age at the time of the accident, and the mother of two children, aged eight years and twelve years. She sustained fractures of the seventh and eighth ribs and an injury to the sacro-iliac joint, producing a condition of neuritis in the sciatic nerve, for which she was treated for about eighteen months. There is a displacement of a bone at the sacro-iliac joint, which impinges on the sciatic nerve, and is very painful and for which there is no known cure. At the time of the trial the patient was able to walk around the house fairly well, with a tendency to drag her left leg. She was confined to her bed for four or five months; can only walk half a block at a time; still has pains in her back, hip, legs and head; more so in rainy weather, and is able to do but little housework.

It is finally urged that the verdict of $7,000 for the husband is excessive. He expended $1,500, leaving $5,500 for loss of his wife’s services and society. In such circumstances the verdict cannot be said to be so grossly excessive as to bring it within the settled legal criticism which avoids a verdict manifestly the result of passion or prejudice. Bowes v. Public Service Railway Co., 94 N. J. L. 378.

The rule will be discharged.


author: Katzenbach, J.

text:
    EMMA B. VOSHELL, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ELMER C. VOSHELL, PLAINTIFF, v. FREIHOFER BAKING COMPANY, A CORPORATION, DEFENDANT.
    Decided February 24, 1927.
    Negligence — Death of Boy, a Son of the Driver of a Truck, Who was Helping in His Father’s Employment — Alleged, Agent of Defendant (the Father) Acted Without the Scope of His Employment, and That Suit was Brought by Representative of an Unemancipated Minor Son Against Defendant to Recover Damages For the Alleged Negligence of the Father— Disputed Cases of Fact, and the Fact That it Might be Shown That the Accident was Not Caused by the Father’s Negligence Makes it Necessary to Refuse to Strike Out the Complaint.
    On action at law. On motion to strike out complaint.
    Eor the motion, Starr, Summerill & Lloycl.

      Contra, Francis G. Homan.

   The opinion of the court was delivered by

Katzenbach, J.

The complaint in this case alleges that the plaintiff’s intestate was a passenger in a truck of the defendant and that the truck was either driven so negligently by the servant of the defendant or was so defective that the steering apparatus became parted or loosened by which control of the truck was lost and plaintiff’s intestate thrown from the same. It is further alleged that the death of the plaintiff’s intestate was the proximate result of the fall. The servant of the defendant was the father of the plaintiff’s intestate. The motion is now made to strike out the complaint upon two grounds — -(1) that the agent of the defendant acted without the scope of his authority, and (2) that the suit is brought by the representative of an unemancipated minor son against the defendant to recover damages for alleged negligence of his father.

The defendant has submitted an affidavit of its general manager to the effect that its servant had never been authorized to have anyone as a helper ride on the truck with him and that the rules of the company forbade an employe driving a vehicle to permit anyone to ride on the vehicle unless authorized by the management of the company. The affidavit further states that the automobile, which was being driver at the time of the accident, had been inspected only a very short time before the accident and had been found to be in proper condition.

The plaintiff submits an affidavit of the father of the plaintiff’s intestate to the effect that his son was assisting him in the loading and unloading of the wagon and serving customers in and about the business of the defendant company, and that he had never been informed that his boy should not be used for such a purpose, and that the general manager of the defendant company saw the deponent with his son assisting him in his usual occupation, and never informed him that it was a violation of the company’s rules. The affidavit further sets forth that the son had assisted other drivers in the same way in the presence of the general manager. The affidavit further sets forth that on the day of the accident he informed his superiors that he was going to take his son to assist him in the work of the company, and that the accident was caused while making deliveries for the company by the breaking or loosening of the steering apparatus.

The disputed questions of fact as revealed by the affidavits irpon two essential matters, namely, whether plaintiff’s intestate was or was not assisting his father with the knowledge of the defendant, and whether or not the accident was due to a defective truck rather than to the careless operation of the truck, make it unnecessary to consider the legal questions argued by counsel for the defendant. The defendant insists that the contributory negligence of the father bars the plaintiff. The question of contributory negligence is frequently a question of fact for the determination of a jury upon the evidence adduced. If the accident arose by reason of a defective steering apparatus where no proper inspection of the same had been made prior to the use of the truck in the service of the defendant, the queston of contributory negligence, except in so far as it might affect the question as to whether or not -the driver of the truck knew of its defective condition, might not enter into the case.

The second legal question which the defendant desires to have decided is that no suit can be maintained by an unemancipated minor child which grows out of his father’s negligence. The evidence at a trial might show that the defendant was negligent and responsble for the accident, and not the father.

In view of the disputed questions of fact raised by the affidavits and the allegations of the complaint which have been referred to, it seems to me that this is a case which cannot be disposed of upon this motion, and that the plaintiff is entitled to submit testimony in support of the allegations of the complaint at a trial of the action. The motion to strike out the complaint is therefore denied.


text:
    IRWIN K. GIRDEN v. ANDREW THOMPSON AND ERIE RAILROAD COMPANY.
    Decided March 3, 1927.
    Negligence — Bailment—Loss of Suitcase of a Passenger of a Parlor Car, Which Had Been Carried Off the Car by Porter —Defendant Alleged There Had Been No Negligence — Held, That Defendant was Bailee, Required to Use Special Care.
    On appeal from the Hudson County Circuit Court.
    Before Gummere, Chief Justice, and Justices Trenchard and Mifturn.

      Eor the appellants, Edward A. MarMey and Charles W. Broadhurst.

    Eor .the respondent, John N. Plaloff.

   Per Curiam.

The plaintiff was a passenger traveling on a train of the Erie Railroad Company from Port Jarvis to Jersey City, riding in a parlor car attached to that train. When he reached his destination he surrendered possession of his suitcase to the defendant Thompson, who was a porter on the parlor car. The latter carried it out to the platform, together with baggage belonging to other passengers. When the plaintiff alighted he discovered that his suitcase had disappeared, and a search made for it by the porter was unavailing. The present suit was instituted to recover the value of the suitcase and its contents. The plaintiff had a verdict against both the railroad company and the porter, and the defendants have appealed from the judgment entered upon it.

The only ground upon which we are asked to reverse this judgment is that there was no evidence of negligence on the part of the defendant Thompson which was the proximate cause of the plaintiff’s loss, and that, consequently, a verdict should have been directed both in his favor and in favor of his employer, the railroad company, as requested by their counsel. We think the motion was properly denied. The company was a bailee, performing a service incidental to the carriage of the plaintiff as a passenger. The law required it, as such bailee, to exercise some degree of care for the protection of the plaintiff’s suitcase while in the possession of its agent to prevent it from becoming lost or stolen. Whether it discharged this duty or not depended upon the proofs submitted, and presented a question of fact for the determination of a jury, rather than one of law, to be settled by the court.

The judgment under review will be affirmed.


text:
    PETER MUHA, Jr., BY NEXT FRIEND, ET AL., v. IDA DeLUCCIA ET AL.
    Decided February 24, 1927.
    Negligence — Injury to Boy by Motor Vehicle — Judgment Against Boy but in Favor of Father, Who Sued For Reimbursement For Expenses — Held, Verdict Cannot Stand.
    On plaintiffs’ rule to show cause.
    Before Gummeee, Chief Justice, and Justices Teenohaed and Mintuen.
    Eor the rule, Feder <& Binzler.

   Per Curiam.

This suit was brought by Peter Muha, Jr., and his father, to recover compensation for injuries received by the boy (who was six years of age), through being run down by an automobile of the defendants, and for the resulting expense to which the father was put by reason thereof.

When the case was called for trial no one appeared to represent the defendants. The cause was moved, however, and the proof on the part of the plaintiffs showed that the defendants’ car, while traveling down Ackerman avenue, in the borough of Clifton, at a speed of about thirty-five miles an hour, suddenly swung over to the left and struck this boy, who was standing in the gutter; that the ear was traveling so rapidly that it was not brought to a stop until it had gone from one hundred and fifty feet. Upon these proofs the case was submitted to the jury, and that body returned a verdict in favor of the defendants and against the plaintiff Peter Muha, Jr., and a verdict of $121 in favor of the father, Peter Muha, Sr., this being the amount of money which he had been compelled to expend for medical services rendered to the boy.

This verdict cannot stand. It is self-contradictory. In one breath the jury declares that the accident to the boy was not the result of any negligence on the part of the defendants, and immediately afterwards it declares, by necessary inference, that the contrary is the fact, for, unless it so found, it was not justified, under the charge of the court, in awarding to the father compensation for the expenses incurred by him as the result of the injuries received by his son.

The rule to show cause will be made absolute.


text:
    ANNA ZAK, PLAINTIFF-RESPONDENT, v. ISABELLA CRAIG, DEFENDANT-APPELLANT.
    Decided March 1, 1927.
    Negligence — Injury to Pedestrian on Defective Sidewalk — Defect Caused by Vehicles of Tenants of Defendants, Which Had Subjected the Sidewalk to Uses For Which it was Not Intended — Held, a Nuisance Had Been Created For Which the Defendant Landlord May be Held Accountable.
    On appeal from the Hudson County Circuit Court.
    Before Justices Kaliscit, Katzenbach and Lloyd.
    For the appellant, Marshall Van Winkle.

    For the respondent, Kelsey & Ludwig.

   Per Curiam.

The defendant below appeals from a judgment entered against her in the Hudson County Circuit Court on the verdict of a jury in favor of the plaintiff, for the sum of $3,000.

The two principal grounds of appeal are: 1. The trial court erroneously refused to order a judgment of nonsuit.

2. The trial court erroneously refused to direct -a verdict iu favor of the defendant. These two grounds will be considered together.

On the 20th day of June, 1922, the plaintiff, while walking on a sidewalk, in front of and abutting the premises owned by the defendant, fell and was injured, as a result of a defective condition of the sidewalk. The plaintiff, in her complaint containing two counts, filed in her action against the defendant, to recover damages for injuries sustained by her, resulting from the fall; in the first count, in substance, alleges, that the plaintiff permitted her building, abutted by said sidewalk, to be used as a garage or place for the storage of motor trucks throughout the period intervening between January 25th, 1916, and June 20th, 1922, and negligently and wrongfully, by her servants and agents, drove motor trucks and permitted motor trucks to be driven to and from said building across said sidewalk, until a hole about seven inches in diameter and six inches deep was worn in said sidewalk and the ground beneath the flagstones with which the sidewalk was paved, by the wheels of said motor trucks; that in the night time the plaintiff, while lawfully and carefully walking along the sidewalk, was thrown heavily down and the bones of her foot were fractured, &c.

The second count, after reciting that the building was occupied and used as a garage or place for the storage of motor trucks by individuals and corporations to whom the defendant leased the premises for that purpose, alleges that from said January 25th, 1916, to said June 20th, 1922, the defendant, for her own convenience and that of her lessees, maintained a doorway in the front of said garage to allow said motor trucks ingress and egress from said building and street over the 'said sidewalk, and that during the period intervening between January 25th, 1916, and June 20th, 1922, the defendant and her lessees, agents and servants drove motor trucks and caused motor trucks to be driven upon and over the sidewalk until a hole seven inches across and about six inches deep was made in said sidewalk and the ground beneath, and that the said hole so created and maintained by the defendant and her lessees was a public nuisance and a source of. great danger to all persons walking upon the said highway, &c.

The three grounds relied on for reversal and argued in the brief of counsel of appellant are as follows: 1. “There was no legal duty on the part of the defendant to keep in repair the sidewalk that had been damaged by plaintiff’s brother.” 2 “The defendant is not responsible for the acts of Arbuckle & Company.” 3. “The defendant is not chargeable with the acts of the American Grocery Company.”

The theory upon which the liability of the defendant was submitted to the jury was, the maintenance of a nuisance in the public highway. There was plenary proof that the sidewalk did not become defective and unsafe from the ordinary use thereof by the general public, but it became broken up as the result of a use for which it was not normally designed, namely, the passage of heavy motor trucks over it to and from the defendant’s garage, leased to tenants, for the storing of motor trucks, and in which use the flagstones were broken and a hole seven inches in diameter and six inches in depth was made in the sidewalk making it unsafe and dangerous to the public having occasion to use it. The condition of the sidewalk constituted a public nuisance. The only question in the ease was whether there was any evidence tending to establish that the defendant caused or maintained the nuisance.

At the time of 1he happening of the plaintiff’s injury the premises were in the occupancy of the Arbuckle company, a subtenant of the American Grocery Company, the original lessee. There was proof to the effect that the defendant leased the premises to the grocery company for garage purposes, for the storing of auto trucks and wagons; that prior to that time, covering a period of many years, there was an ordinary flagstone sidewalk, which, at the time of making the lease to the grocery company, was in a very bad condition, caused by the previous use to which the sidewalk was put, in that horses and wagons were driven over the curb and the sidewalk into the building on the premises, which, prior to the letting of the premises to the grocery company, had been leased by the defendant to tenants to be used as a stable; that by the lease made by the defendant on January 1st, 1919, to the grocery company the company was authorized by the defendant to lay a cement driveway and to tear up the wooden floor of the building and substitute for it a cement one, at its own expense, but to what extent the company laid the cement driveway was in dispute and, of course, was a jury question. There was also testimony to the effect that the cement drivewajq ten feet in width, commenced at the doorway of the garage and extended a distance of eight feet to the sidewalk, and that the remaining space from the end of the cemented work was a flag sidewalk down to the curb. There was testimony from which a jury might have properly found that at the time the lease was made to the grocery company, the sidewalk was in such a dilapidated condition as to constitute a public nuisance, and that this condition arose from the extraordinary use to which the sidewalk had been put by reasons of'its use as a driveway for horses and heavy carts and vehicles. The defendant having leased the premises for the use of a stable and as the only ingress to and egress from the stable and street for horses and vehicles could only be accomplished by driving over the sidewalk, and the defendant having rented the premises for the purpose indicated, she became liable to respond in damages to a person injured, if such use of the sidewalk created the nuisance, which caused the injury.

There was also testimony in the case which tended to show that at the time of the expiration of the lease to the grocery company and the renewal thereof, to it, such renewal impliedly arising from the fact that the defendant permitted the grocery company to remain as tenant, the hole in the sidewalk existed and the flagstones were broken and, hence, as this condition constituted a nuisance, and did not have its origin from the ordinary wear and tear of a sidewalk, resulting from a normal itse by the public, but, according to the testimony, was created by the extraordinary strain put upon the sidewalk by the tenants of the defendant, who were authorized by her to use the premises for a purpose which caused the sidewalk to be subjected to unusual pressure and strain and for which use the sidewalk was not designed, that is, for motor trucks or other heavy vehicles to be driven over it, the defendant became answerable to respond to the plaintiff in damages for the injuries she sustained.

The motions for a nonsuit and for the direction of a verdict for the defendant were properly refused.

The facts of the instant case fall squarely within those facts which were present in the case of Davis v. Tallon, 91 N. J. L. 618. There the defendants, owners of a lot, leased it to different tenants for storing wagons. The lot was fenced with a gateway to allow wagons ingress and egress to and from the street and lot over the sidewalk, by reason of which use the sidewalk was broken, and through which condition the plaintiff met with her injury. She brought her action against the owners and one Schreiber, a tenant in pessession. Mr. Justice Bergen, speaking for the Court of Errors and Appeals (at p. 619), says: “The plaintiff’s case was not rested upon any legal obligations of the owner to keep the sidewalk in repair, but on the claim that defendants, by subjecting the sidewalk to a use not intended, that of use by ordinary pedestrians, they created a nuisance which rendered them liable to persons lawfully using it.” And, at p. 621, the learned justice, inter alia, says: “But in addition to this there was testimony from which the jury might have inferred that the lot had been leased to prior tenants for the same purposes, subject to the same use of the sidewalk and that the impairment of it was caused by prior tenants. With a broken condition of the flagstones existing, subject to the inference that the condition was caused by using the sidewalk for the passage of heavy carts from the street to the lot by prior tenants with the knowledge and implied participation therein by the owners, and the testimony of the defendant’s driver that the flagstones were not broken by him, the jury might infer that the nuisance was created by the act of former tenants and not by Schreiber, but his exoneration would not discharge the owners from liability for the acts of the other tenants in which they participated.”

The participation was to be inferred from the fact that the premises were leased for a purpose which subjected the use of the sidewalk for the passage of heavy carts from the street to the lot in question. Eor, at p. 620, the learned justice said: “The jury might infer from the evidence that the appellants leased the land and sidewalk for a use not consistent with the purpose for which the walk was constructed; that they had knowledge of the character of the proposed use, and that such use might, and probably would, create a nuisance by obstructing the safe use thereof by pedestrians. These inferences would justify a finding that the condition of the sidewalk, the cause of the accident, was the result'of participation, in the creation of the nuisance, either by authorizing it or by making the act of the tenant his own.” Freeholders of Hudson v. Woodcliff Land Company, 74 N. J. L. 355.

These cases are controlling.

The judgment is affirmed.


text:
    MARY E. HALL v. ZEFFERINO PANCIERA.
    Decided February 24, 1927.
    Negligence — Injury to Pedestrian by Automobile — Plaintiff Ran Down Defendant After Dark — Defendant’s Lights Were Burning — Held, That He was Negligent.
    Oil defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Trent-chard and Minturh.
    P’or the rule, Howard L. Miller.

      Contra, John W. Westcoti.

   Per Curiam.

The present suit was brought by the plaintiff to recover compensation for injuries received by her through being run over by an automobile, owned by the defendant, and in which he was riding at the time of the accident. The testimony submitted hv the plaintiff, who was an elderly woman, showed that she had been a passenger on a train of the Cape May Railroad Company; that she alighted from the train at the North Vineland station at a quarter before seven in the evening of October 25th, and started from there on her way home. The street, or road, along which she was required to travel was without a sidewalk, and she was walking along the right-hand edge of the road at the time of the accident. The defendant had been at the railroad station with his son and they left there within a minute or two after the plaintiff, and proceeded along the road over which she was walking. The son was driving the car, the headlights of which were burning, and within a block from the station ran down and injured the plaintiff. The jury found from these facts that the defendant was guilty of negligence, and awarded compensation to the plaintiff for the injuries received.

The only ground advanced for setting aside the verdict now before us is that there was no affirmative evidence to establish the negligence of the defendant, and that the accident was unavoidable. We consider this contention without merit. The duty rested upon the driver of the car to use care to avoid other people lawfully upon the highway. If he had done this, it is difficult to understand why, in view of the fact that his headlights were burning, the presence of the plaintiff on the highway was not discovered. The jury evidently considered that he had failed to' use the care which the law requires, and we concur in that view.

The rule to shoY cause will be discharged.


text:
    PARAMOUNT REALTY AND CONSTRUCTION COMPANY, RELATOR, v. TOWN OF IRVINGTON ET AL., RESPONDENTS.
    Decided February 26, 1927.
    On application for re-hearing.
    Before Justices Parker, Black and Campbell.
    For the application, Cohen & Klein.

   Per Curiam.

The application will be denied. So far as we understand the main ground on which it is based, that ground is that the existing board of adjustment was of strictly limited jurisdiction under the terms o-f the ordinance. This ignores the point intended to be made in our decision, that the act of 1926, page 526, by its own terms conferred all necessary jurisdiction on the board, and in face of it any limitation contained in the ordinance is quite futile.

We fail to see any merit whatever in the application. A suitable rule denying it will be entered.


text:
    RUTH M. JUDGE, PLAINTIFF-APPELLEE, v. HARRY STARR, HYMAN SILVERMAN, SAMUEL KANENGISER AND K. S. S. REALTY COMPANY, DEFENDANTS-APPELLANTS.
    Decided March 1, 1927.
    Bailment — Storage of Automobile — Owner Directed Garage Keeper to Let No One Take Car Except Owner or Sister— Neither Owner Nor Sister Took Car — Car was Taken Out and Injured — These Facts Support Proof of Breach of Contract For Which Defendants are Answerable.
    On appeal from the Second Judicial District Court of Hudson county.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Eot the appellants, Melosh, Morten & Melosh.

    For the appellee, William George.

   Per Curiam.

The defendants appeal from a judgment rendered against them in the court below in favor of the plaintiff for the sum of $119 as damages, and $11.65 costs.

On the 15th day of November, 1925, the plaintiff rented of the defendants space in their garage for the storage of her Buiek automobile, which was newly bought and in good condition; that at the time she rented the space she left instructions with the manager of the garage to permit no one to take the car out except herself and her sister, Grace Ford; that her sister never took out the car, unless she, the plaintiff, was with her; that she took the car out in the evening of November 15th, 1925, her brother-in-law, Mr. Ford driving the car; that the car was brought back to the garage in good condition; that from that evening until four days later, on November 19th, she did not see the car, until she went to the garage to take the car out, and her testimony relating to this incident is as'follows: “It was in perfect condition so far as I knew, because I sat in the car and as my sister sat in the car to drive it out for me and the mechanic now in court rushed up to her and said she could not take the car out, because she had been in an accident and that was the first knowledge we had that there had been an accident.” That the plaintiff upon examining the car found that the left front mudguard had a decided dent in it and the two front tires were completely worn down to the fabric. The trial judge’s finding on the evidence* was that there was a failure to exercise that degree of care upon the part of the defendants sufficient to rebut the presumption of negligence and gave judgment for the plaintiff as above stated.

The only two grounds relied on and argued in the brief of counsel of appellant are: 1. That there are no facts supporting the finding of negligence. 3. That there was no competent evidence as to the damage submitted.

Neither of these contentions seems to be sound. The contract of storage was that the automobile was not to be taken out of the garage without the permission of the nlaintiff. No such permission had been given by the plaintiff. That the automobile was taken out of the garage without permission of the plaintiff and damaged is not fairly open to dispute. There was therefore proof of a breach of the contract of storage by the defendants for which breach the defendants are answerable. The motion for a nonsuit was therefore properly denied. We think the facts of the present case fall within the reasoning of Mr. Justice Swayze, speaking for this court in Corbett v. Smeraldo, 91 N. J. L. 39 (at p. 30) ; 103 Atl. Rep. 889.

In Jackson v. McDonald, 70 N. J. L. 594, the general legal principle is laid down that where chattels are delivered to a bailee in good condition and are returned to the bailor in a damaged state, the law will presume the negligence of the plaintiff to have been the cause. In the cited case, a mare in sound condition when delivered for hire to the defendant was later in the day returned by the defendant to the owner suffering from a fracture of the illium of the left leg and the owner was permitted to recover his damages from the defendant on the ground that the injury to the mare, in the absence of exculpating circumstances, will be presumed to have resulted from negligence.

The ground of appeal, that there was no competent evidence of the damage sustained by the plaintiff, is without substance. An expert automobile mechanic who, after qualifying as such, testified as to his knowledge of the cost of repairs and of parts of automobiles; that he had examined the automobile in question, and estimated the reasonable cost of necessary repairs to it at $119, for which sum judgment was given.

Judgment is affirmed, with costs.


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    FRANK VENDOLA, PLAINTIFF-RESPONDENT, v. PUBLIC SERICE RAILWAY TRANSPORTATION COMPANY, DEFENDANT-APPELLANT.
    Decided March 1, 1927.
    Negligence — Injury to Passenger of Motor Bus — Defendant Put in No Defense, but Objected to Part of Court’s Charge — No Error Found in Instruction.
    On appeal from the Second Judicial District Court of Bergen county.
    Before Justices Kalisci-i, Katzenbach and Lloyd.
    Eor the appellant, Joseph Goult.

    Eor the appellee, John J. Breslin.

   Per Curiam.

There was a verdict of a jury and a judgment entered thereon in the court below in favor of the plaintiff against the defendant for the sum of $100.

The plaintiff was a passenger riding in an automobile omnibus being operated by the defendant company’s servants along Ridge road, North Arlington, New Jersey, on the night of October 27th, 1925, which omnibus collided with a disabled truck which was being towed by an automobile, and while the truck was standing alongside of the curb and those in charge of it were working on the motor of the truck, the defendant company’s bus ran into the rear of it with such force that it knocked the truck, weighing two and a half tons, and with the emergency brake on, twelve feet, and upset the towing automobile. The defendant put in no defense. The trial judge charged the jury: “Your are considering the claim of a passenger in a motor bus of the Public Service Transportation Company, suffered by that passenger while riding upon the bus, on the theory that there was negligence on part of the company, through its agents in the operation of the bus and so of the care of the passengers. The evidence on the subject is uncontradicted, and the court charges you that the plaintiff is entitled to a verdict for such damages as you find from the evidence he has suffered by reason of this accident, so the court will not go further into the accident.

There was an exception taken to the charge as follows: “I will except to that part of the charge wherein the court said the plaintiff was entitled to a verdict for such damages as he suffered by reason of the accident.”

It is to be observed that the exception is taken only to that part of the chargé which related to the question of damages and not to> what the court said on the subject of negligence. No other part of the court’s charge was excepted to. It is quite clear that there is no error in the instruction to the jury that the plaintiff was entitled to a verdict for such damages as he suffered by reason of the accident.

It is argued in the appellant’s brief that the judge erred in that part of the charge where he said: “You are considering the claim of a passenger in a motor bus of the Public Service Transportation Company, suffered by that passenger while riding upon the bus on the theory that there was negligence on the part of the company through its agents, in the operation of the bus. The evidence on the subject is uncontradicted and the court charges you that the plaintiff is entitled to a verdict.” * * * But to this part of the court’s charge no exception was taken and, therefore, the legal proposition involved is not properly before us. But even if the matter were before us for decision, we think, as the case stood, with the facts uncontroverted it fell squarely within the legal rule enunciated in Doyon v. Massoline Motor Car Co., 98 N. J. L. 510 (at p. 543), where our Court of Errors and Appeals said: “No question for a jury arises where the facts are uneontroverted, unless from the facts conflicting inference may be drawn.”

Surely, the uncontradicted facts in the present case do not permit conflicting inferences to be drawn, but, on the contrary, unerringly point to negligent conduct on part of the defendant’s servants.

Judgment is affirmed, with costs.


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    J. NELSON KLING, PLAINTIFF-APPELLEE, v. SOLOMON ARON, DEFENDANT-APPELLANT.
    Decided March 1, 1927.
    Agency — Joint Adventurers — Defendant Contended That the Transaction in Question was One of Joint Adventure and as Such Cognizable Only in a Court of Equity — The Agreement Examined and Held to Have Been One of Agency and of Employment in Which There Were Facts to Support the Court’s Findings, While Sitting Without a Jury, For Plaintiff.
    On appeal, from the District Court of the city of East Orange.
    Before Justices Kallscli, Katzenbach and Lloyd.

      Eor the appellant Reuben Brown {J. Raymond Tiffany, of counsel).
    Eor the appellee, Porter, Zinlc & Lafferty.

   Per Curiam.

The trial judge of the East Orange District Court, sitting without a jury, gave judgment for the plaintiff against the defendant for the sum of $200, with costs.

The defendant-appellant appeals from this judgment and his counsel relies on, and argues in his brief for its reversal, these two grounds: 1. That the District Court had no jurisdiction of the subject-matter in dispute, since it related to transactions growing out of the relationship of joint adventurers and therefore the controversy was only cognizable in a court of equity. 2. That the plaintiff did not establish a cause of action in either of the counts of the state of demand.

It appears from the state of the case, settled by the court, that on the 23d day of December, 1922, a writing was prepared in defendant’s office and is marked defendant’s Exhibit 2, and reads as follows:

“Realty Company,

S. Aron, Manager,

536 Main Street, East Orange, N. J.

December 23rd, 1922.

To Whom it May Concern :

Eor and in consideration of one dollar and other valuable services rendered, I hereby agree to enter into the following arrangement with Solomon Aron. To enter his employ as salesman in the office situated at No. 530 Main street, East Orange, N. J., and to receive for my services 50% of any and all commissions earned by me, with this provision, however: that one-half of all-commissions earned by me and paid into the office shall be withheld and used to pay any amounts or bills which I may owe to anyon.e for whatever purpose contracted and l hereby authorize S. Aron to withhold the aforesaid 50% of any monies due me for that purpose, ft is clearly understood that S. Aron assumes no obligation whatever and that this agreement may be terminated upon written notice, one to tlie other at any time. I hereby authorize S. Aron to deduct in full, from the first commissions earned by me, the sums of one hundred dollars, which he is loaning me this day to pay to the estate of Mary E. Mills for a rental collected by mo, and for which this agreement shall be an ackno wle d gment.

Signed:

G. Nelson Kling.”

This became the contract between the parties and the basis on which the plaintiff was to be compensated. The agreement expressly negatives any partnership or joint venture between the parties in the business which the defendant was conducting, and the relationship between the parties was considered, according to the defendant’s testimony a hiring of the plaintiff as a salesman. The state of the ease shows that the defendant testified that the plaintiff "stated that he had nowhere to go; that he had a number of creditors and wanted to stay and work for defendant; that defendant told him he could work as a salesman upon the same terms and conditions as other salesmen worked; that he was to get listings; bring them into the office, find customers and effect sales; that on such sales as he effected he was to get one-half of the commission,” &e.

The mere fact that the plaintiff authorized the defendant to withhold the payment of plaintiff’s fifty per cent., earned and due to him, for the purpose of applying the same or so much thereof to the payment of any amounts or bills owing by the latter to anyone for whatever purpose contracted, did not have the legal effect of converting the relationship between the parties into a joint venture or partnership. Erom the state of the case it clearly appears that the dealings between the parties arose from a contractual relation, involving simply a credit and debit account, the controversy over which properly belonged to the determination of a court of law and not a court of equity.

We find no merit in the contention of appellant’s counsel that the plaintiff did not establish a cause of action.

According to the state of the case, the plaintiff testified “that he obtained for listing for sale the premises 78 Prospect street, East Orange, at the selling price of $60,000; that he negotiated for the seller, and defendant had procured and represented the buyer; that he had the owner reduce the actual selling price to $50,000; that he procured the preparation of the contract for the sale of the property to one G. Sizer; that on January 23d, 1922, the defendant was paid and received a commission of $1,400, of which he received $1,000 in cash and a note for the balance of $400; that two days after defendant received the $1,000 he paid the plaintiff $200 on account and that prior thereto he had borrowed $100 from defendant; shortty thereafter defendant notified plaintiff’s creditors that he would pay no moneys to them.

There was testimony on which the trial judge could properly base a finding in favor of the plaintiff that there was owing to the plaintiff the sum of $200 from the defendant. Although the plaintiff’s testimony was controverted by the defendant, this, circumstance accomplished nothing more than to present a factual question for the decision of the trial judge and his finding is not reviewable.

Judgment is affirmed, with costs.


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    WALTER B. NIVEN v. UNION TRUST AND HUDSON COUNTY NATIONAL BANK.
    Decided February 24, 1927.
    Contracts — Employment — Accountants — Defendant Disputed Charges Alleging Imperfect Work — Interrogatories Served by Plaintiff, One of Which Defendant Refused to Answer— Upon This Refusal Trial Court Refused to Admit Defendant’s Testimony Relating to the Subject — -Held, Error; That the Interrogating was Improper as One Prying Into Case of Defendant.
    On defendant’s rule to show canse.
    Before Guatmeee, Chibe Justice, and Justices Tkenchaed and Minturn.
    Eor the rule, James D. Carpenter, Jr.

      Contra, Chester W. Fairlie.

   Per Curiam.

The plaintiff is the assignee of Marwick, Mitchell & Company, public accountants. The latter were employed by the defendant company in October, 1922, to make a list of the assets of the Union Trust Company and the Hudson County National Bank, so that an appraisal committee of both banks could therefrom properly appraise the value of such assets and take charge thereof for the purpose of turning them over to the defendant bank, which was about to be formed through the consolidation of the two corporations above named. The plaintiff brought the present suit to recover the value of the services claimed to have been rendered by his assignors in making the list of assets referred to, and averred that the value of these services was $4,409. The defendant, in its answer to the plaintiff’s complaint, admitted the employment of his assignors, but denied liability to the extent claimed, upon the ground that there were errors, omissions and inaccuracies in the report submitted by the accountants, which tended very materially to reduce the value of the service which was the foundation of the present suit.

Subsequent to the filing of the answer the plaintiff served upon the defendant the following interrogatory: “If there were errors, omissions or inaccuracies in any of the statements, schedules and reports submitted by Marwick, Mitchell & Company to defendant, or to either of said consolidating banks, what such errors, omissions or inaccuracies existed therein, specifying with particularity each and every such error, omission or inaccuracy claimed by you to have been discovered therein:” The defendant answered this interrogatory as follows: “Defendant is advised that it is not required to make answer to this interrogatory.”

In this situation, the cause went to trial, and when the defendant opened its case the plaintiff moved to suppress all testimony on the part of the defendant bearing upon the subject-matter of the interrogatory. The court granted this motion, and refused to permit any testimony upon this branch of the case to be introduced by the defendant.

The trial resulted in a verdict for the plaintiff, the jury awarding him the full amount of his claim.

The principle ground upon which we are asked to make the present rule absolute is that the action of the trial court in suppressing the testimony referred to constituted legal and harmful error. We think the defendant right in this contention. The interrogatory was improper, and the defendant was therefore under no legal obligation to answer it. Its manifest sole purpose was to pry into the case of the_ defendant. This, our courts have frequently held, is not the function of an interrogatory. Watkins v. Dope, 84 N. J. L. 143, and eases cited. If the plaintiff had desired further particulars with relation to this part of the defense, he should have demanded a specification of those particulars.

For the reason indicated, the rule to show cause will be made absolute.


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    CLARENCE P. BROWNING v. HUGH DEENY AND ELLEN DEENY.
    Decided February 24, 1927.
    Landlord and Tenant — Rent—Claim For Unpaid Rent, For Unpaid Taxes and For Timber Appropriated by Tenant — Counterclaim For Manure, Silo and Other Articles Taken by Landlord — Verdict For Defendant on Counter-Claim — Held, That So Far as Defendant Mrs. Deeny is Concerned, Verdict is Entirely Unsupported, and as far as Mr. Deeny was Concerned, Not Justified by Evidence.
    On plaintiffs' rule to show cause.
    Before Gummere, Chief Justice, and Justices Trencftaed and Minturn.
    For the rule, Arthur F. Fgner and Fred W. Nixon.

      Contra, James G. Connelly.

   Per Curiam.

The plaintiff, owner of a farm near Berkeley Heights, in Union county, rented it to the defendants, Hugh Deeny and Ellen, his wife, for a yearly rental which at the time the leasehold interest came to an end was $500 per annum. Three hundred and eighty dollars of this amount, it is admitted by the defendants, remained unpaid. The present action was brought to recover the unpaid rent, certain taxes assessed upon the property, which the plaintiff claimed the defendants agreed to pay as additional rent, and also damages resulting from unwarranted waste of the buildings and for the destruction of timber growing upon the farm. The defendants by their answer denied any liability to pay taxes; and they asserted that they kept the premises in as good condition as they were at the time they entered thereon, under their lease, and also asserted that the cutting of the timber was done with the permission of the plaintiff. The defendant Hugh Deeny also filed a counter-claim against the plaintiff, charging the latter with appropriating to his own use a large quantity of manure, worth $300; a silo, worth $785, and certain fixtures in the barn, valued at $300, all owned by the defendant. In due course the case came on to be tried, and the trial resulted in a verdict in favor of both of the defendants, the jury awarding them jointly the sum of $622.30.

So far as the award to Mrs. Deeny is concerned, it is absolutely unsupported by any testimony in the case. As has already been stated, it is admitted that the two defendants owe the plaintiff $380 for unpaid rent. This is a debt for which they are jointly liable. Mrs. Deeny made no counterclaim against the plaintiff, and, in this situation, the latter was entitled to a verdict against her for at least the amount of the unpaid rent.

So far as the verdict in favor of the defendant Hugh Deeny is concerned, we think it cannot be justified, even if every disputed fact be resolved in his favor. Apparently, the jury arbitrarily disregarded some portions of his claim and found in his favor with relation to other items thereof. This fact, we think, is demonstrated by a reading of the testimony. An arbitrary verdict, not based upon the evidence submitted, cannot stand.

• The rule to show cause will be made absolute as to both defendants.


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    ZELDE DONINI, ADMINISTRATRIX AD PROSEQUENDUM, v. JUSTUS BADGLEY ET AL.
    Decided February 24, 1927.
    Negligence — Motor Vehicle Injury Resulting in Death of Plaintiff’s intestate — Verdict For Defendant Sustained.
    On plaintiffs rule to show cause.
    Before G-ummebe, Chibe Justice, and Justices Trenchakd and Mintubn.
    For the rule, William E. Holmwood.

      Contra■, Frank C. Turner.

   Per Curiam.

The present suit was brought to recover compensation for the death of Edward Donini, resulting from his being run over by an automobile driven by the defendant Badgley while he was crossing Bloomfield avenue, in the city of Newark. The defense was that the accident did not result from any negligence of the defendant Badgley in the driving of his car, but solely from the carelessness of decedent while he was crossing the street. The trial resulted in a verdict in favor of the defendants. We are asked to set aside this verdict because, as counsel for plaintiff argues, the proofs show that the accident was the result of carelessness on the part of the defendant Badgley, and that plaintiff’s decedent did not contribute thereto by any negligence of his own.

Our examination of the testimony leads us to the conclusion that the jury was entirely justified in the finding of the verdict which it rendered. In other words, we consider that the evidence preponderated in favor of the conclusion that the accident was not caused by any negligence on the part of the defendant Badgley, but was solely the result of carelessness on the part of plaintiff’s decedent.

The rule to show cause will be discharged.


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    MARGARET GAVIN v. MORRIS H. COHN AND JOSEPH SLOTNICK.
    Decided February 24, 1927.
    Negligence — Injury to Plaintiff While Riding on Running-board of Motor Vehicle and Being Struck by Defendant (Cohn’s) Car While Being Driven by Defendant Slotnick — Held, Negligence of Plaintiff’s Position on Running-board One For Jury — Held, Also, That Defendant Cohn Had No Part in Use of Car — Rule Made Absolute as to Cohn, and Dismissed as to Slotnick.
    On defendants’ rules to show cause.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    Eor the rules, Addison P. Bosenhrans.

      Oonira, Edwin F. Smith.

   Per Curiam.

The present action was brought to recover compensation for personal injuries received by the plaintiff, Margaret Gavin, while riding upon the running-board of an automobile belonging to a friend, and which was being driven by him through one of the streets of Belmar. Her injuries resulted from a collision between the car in which she was riding and one owned by the defendant Cohn and driven by the defendant Slotnick. The trial resulted in a verdict in favor of the plaintiff against both of the defendants, the award being $28,000.

The only reason relied upon by Slotnick for setting aside the verdict against him is that the trial court erred in refusing to nonsuit the plaintiff. The motion for a nonsuit was rested upon the ground that she was guilty of contributory negligence, first, in not using care to observe the approach of the car driven by Slotnick, and which was crossing at a right angle at a street intersection and coming from the plaintiff’s left; and second, because she was riding on the hunning-board instead of in the body of the ear. Whether the plaintiff was guilty of negligence in failing to observe the approach of the defendants’ car from her left (if she did so fail), and whether the fact that she was riding on the running-board was negligence on her part contributing to the accident, were matters of fact, for the jury to decide, and not for the court.

The motion to nonsuit was properly refused.

The principal ground relied upon by the defendant Cohn for making absolute the rule allowed to him is that the finding of the jury upon the question of his liability for the accident was against the clear weight of the evidence, lie admitted the ownership of the car, but set up as a defense that at the time of the accident it was being driven by the defendant Slotnick, who was his brother-in-law and to whom he had loaned it in order that the latter might use it in bringing his wife and child from Paterson to Belmar, and that he (Cohn) was not in the car, but was passing the day in the city of Paterson; that he had nothing to do with its operation, and that if was not being operated for his benefit. The testimony submitted by the defendant Cohn in support of this defense is almost conclusive in his favor. The evidence offered by the plaintiff, and intended to be contradictory of his story, is not so in fact. We conclude therefore that the verdict, so far as it imposes liability on Cohn, is without support in the evidence.

The rule to show cause obtained by the defendant Slotnick will be discharged, and that allowed to the defendant Cohn will be made absolute.


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    THE STATE v. ANTHONY N. BULLOCK.
    Decided February 24, 1927.
    Crimes — Rape—Verdict Not Against the Weight of Evidence — ■ No Error in Court’s Refusal to Postpone Trial on Account of a Prejudicial Newspaper Article — No Error in Conduct of Special Prosecutor — No Error in Trial Court Rulings — No Error in Charge to Jury.
    On error to the Atlantic Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Minturn and Campbell.
    For the plaintiff in error, W. Frank Sooy.

    For the state, Louis A. Bepetto, prosecutor of the pleas, and 3. Cameron Hinkle, assistant prosecutor.
   Per Curiam.

The plaintiff in error was convicted on an indictment charging him with the crime of rape committed upon the body of one Mary A. Newman. The grounds upon which it is sought to obtain a reversal of that conviction will be dealt with in the order in which they were argued.

First, it is contended that the verdict of the jury was against the clear weight of the evidence. A careful reading of the testimony has led us to the conclusion that the jury was justified in its finding.

Next, it is argued that there was injurious error in the refusal of the trial court to postpone the trial of the cause for the term of the fact that an article had been published in an Atlantic City newspaper which was very prejudicial to the defendant. The application for the postponement was made immediately after the trial of the cause was moved. There was no offer made to show that this article had been read by any of the members of the jury panel, or that any one of them had been prejudiced against the defendant by its publication. In this situation, the motion for the postponement was properly denied. Baus v. Trenton and Mercer County Traction Corp., 4 N. J. Adv. R. 41; S. C. on appeal, 4 N. J. Adv. R. 1748.

The next ground for reversal is based upon the statement of counsel “that the conduct of the special prosecutor and his remarks throughout the case, including the summing up to the jury, was of such a character as to work manifest wrong and injury to the defendant.” When an examination of the assignments of error and the specification of causes for reversal discloses that not one of the alleged unfair statements of counsel for the state is set out therein as a ground for reversal, we cannot consider such a contention as is made in this behalf for the plaintiff in error.” State v. Bullock, 4 N. J. Adv. R. 1864; S. C. on appeal, 4 N. J. Mis. R. 195.

It is further contended that the conviction under review should be reversed for certain alleged errors committed by the trial court in its rulings upon testimony.

We have examined the testimony, which was the subject of. these rulings, and conclude that it was properly admitted. But, even if we had reached the conclusion that the rulings were any of them erroneous, we should not consider that fact a justification for reversing the conviction. The case comes up under the one hundred and thirty-sixth section of the Criminal Procedure act, and that section provides that “no judgment given upon any indictment shall be reversed for any error except such as shall or may have prejudiced the defendant in maintaining his defense upon the merits.” In our opinion, the testimony which counsel contends was erroneously admitted could not have had any such effect.

Lastly, it is argued that the court erroneously charged the jury upon the doctrine of reasonable doubt. Our examination of the charge leads us to the conclusion that this contention is without merit.

The conviction under review will be affirmed.


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    CHARLES BRIGGS PLAINTIFF, v. NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD COMPANY, DEFENDANT. JOSEPH O’KEAFE AND HAROLD O’KEAFE, PLAINTIFFS, v. NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD COMPANY, DEFENDANT.
    Decided February 26, 1927.
    Negligence — Motor Vehicle Collision With Freight Train — Plaintiffs in Motor Vehicle in Dense Fog at Night After Stopping and Listening Were Struck by Train — No Contributory Negligence Shown — Verdict For Plaintiffs Affirmed.
    Oil rule to show cause, Passaic Circuit.
    Before Gummere, Chief Justice, and Justices Trencharb and Minturn.
    Eor the rule, Hobart & Minará.

      Gontra, Ward & McGinnis.

   Per Curiam.

Three verdicts were rendered in three cases instituted against the defendant, by the respective plaintiffs as the result of a collision with. defendant’s freight train at Oakland, in Bergen county, from which the plaintiff Briggs suffered the loss of his right arm, for which he received a verdict of $8,000; the plaintiff Joseph O’Keafe, divers personal injuries, for which he was awarded $1,000, and the plaintiff Harold O’Kea-fe, damage to the automobile of which he was owner, and in which the three were riding, the sum of $412.

About 'o-ne-thirty o’clock in the morning on October 16th, 1924, the plaintiffs, driven by Charles Briggs in his motor car, were proceeding along the Eamapo Yalley road, in the midst of a fog, which according to the general testimony was almost impenetrable in its density, for any extensive distance, when, they passed upon defendant’s tracks, and without signal or warning of any nature were struck by defendant’s freight train, drawn by two engines, and proceeding up grade. Recognizing the fact of an existing railroad crossing, and conscious of the unusual danger incident to an attempt to cross it in the envelopment of a dense fog, they exercised the legal precaution not only of looking and listening for audible or observable indications of an approaching train, but they also stopped the motor ear so that their endeavors to that end might become more effective, and hearing and observing nothing to wain them of an impending danger they entered at a moderate speed upon the right of way, when their car was struck in its forward part by the train. This situation manifestly presented a prima facie case of negligence upon the part of the defendant. Defendant presented no testimony of eye witnesses to the occurrence, but contended from the testimony of its employes that the statutory requirement of ringing the bell was complied with, and that from particles of automobile debris later found upon the tank car, that the plaintiffs recklessly ran into the train, and were therefore so obviously guilty of contributory negligence, that the verdict of the jury in their favor manifestly must be against the weight of the testimony.

We have examined the testimony, and have concluded that this contention cannot be legally sustained. We think the facts in the ease has presented an issuable question of fact and made a case for the jury. The rule obviously is fundamental, that a factual situation evincing a contrariety of testimony, and dedueible circumstances of, fact, cannot be made the basis of a nonsuit or direction, so as to deprive the jury of exercising their peculiar legal function of determining the credibility of witnesses, and the weight of the testimony, in the light of all the attendant circumstances and conflicting inferences dedueible therefrom. Danskin v. Pennsylvania Railroad Co., 83 N. J. L. 522; Quinn v. West Jersey Railway Co., 78 Id. 539; Napodenshy v. West Jersey Railway Co., 85 Id. 336.

In the light of this fundamental rule of procedure, neither our examination of the charge nor our review of the testimony leads us to disturb the verdicts.

The rule will be discharged.

Argued October term, 1926

      Argued October term, 1926


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    HETTIE HERTZMARK, PROSECUTOR, v. JOHN CONWAY, SUPERINTENDENT OF BUILDINGS, AND CITY OF ATLANTIC CITY, DEFENDANTS. GEORGE A. CASTEEN, PROSECUTOR, v. JOHN CONWAY. SUPERINTENDENT OF BUILDINGS, AND CITY OF ATLANTIC CITY, DEFENDANTS.
    Argued February 23, 1927
    Decided February 26, 1927.
    On application for certiorari of building permit.
    Before Justices Parker, Black and Campbell.
    Eor the prosecutors, Clifton C. Shinn.

    For the defendants, Joseph B. Pershie.

   Per Curiam.

Upon consideration of the affidavits and argument of counsel, we come to the conclusion that the application is without substantial merit.

A writ of certiorari is therefore refused. If a rule to show cause was made herein, the same will be discharged.

Defendants are entitled to costs.


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    GEORGE KUESTNER, CONTESTANT-RESPONDENT, v. JOHN J. BOSCARELL, INCUMBENT-APPELLANT. WILLIAM C. COOK, CONTESTANT-RESPONDENT, v. WILLIAM C. HENDRICKSON, INCUMBENT-APPELLANT.
    Argued January 31, 1927
    Decided March 2, 1927.
    Elections — Paster Ballots — Recount—Appeal to Circuit Court— Bond on Appeal — Recount Reversed by the Election Board— Contestant Appealed to Circuit Court, Where Another Recount was Had Which Reversed the County Board’s Recount - — Appeal to This Court on Ground That Bond to Circuit Court Had Not Been Approved According to Statute, in That it Had Been Approved by Circuit Court Judge Instead of Supreme Court Justice — Held, That Bond was Defective and That Circuit Court Judgment Must be Reversed,
    On appeal from the Mercer County Circuit Court.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Eor the appellants, Philip Forman and John J. Boscarell.

    For the respondents, Romulus P. Rimo.

   Per Curiam.

The above are two appeals in contested election cases. At the general election in November, 1926, there were two vacancies in the office of township committeemen in the township of Ewing, in the county of Mercer, to be filled by the voters. One vacancy was for a three-year term. The other vacancy was for a two-year term. The Democratic party nominated no candidates for these offices. The Republican party nominated at the primary election one George Kuestner for the two-year term, and one William C. Cook for the three-year term. Subsequent to the primary election, bnt prior to the general election, two men announced their intention of becoming candidates for these offices. William C. Hendricksou declared himself a candidate for the three-year term. John J. Boscarell declared himself a candidate for the two-year term. They called themselves independent candidates. Their names could not be printed upon the official ballot. They undertook, however, what is known as a paster campaign. The method followed was to distribute among the voters of the township strips of gummed paper with their names printed thereon. In the personal choice column of the official ballot were printed the offices to be filled. In the personal choice column the ballot in part read: “For township committee, three-year term,” “For township committee, two-year term.” Spaces under each designation appeared on the ballot. It was the intention of the independent candidates and their supporters that the name of William C. Hendrickson printed on the paster should be placed under the designation “For township committee, three year term,” and the name of John J. Boscarell printed on the paster should be placed under the designation in the personal choice, column “For township committee, two-year term.”

The election was held on November 2d, 1926. The usual confusion incident to a campaign of this character occurred in the election. A dual paster had been prepared containing the names of Messrs. Hendrickson and Boscarell, which had been perforated so as to be readily separable. It was the intention that it should be so separated before using. In many instances it was pasted on the ballot without separation so as to cover up the designation of the office for which Boscarell was a candidate. In other ballots the pasters were not placed in the personal choice column but placed over the names of the Begular Bepubliean candidates. In some ballots the pasters were placed i-n the personal choice column beneath the designation of offices other than township committeemen which were to be filled. In some ballots the Democratic column was used to place the pasters of the independent candidates. There were other ballots in which the voter, after having used the paster in the proper column and proper manner, had crossed out the names of the Begular Bepubliean candidates in order to emphasize as it were his or her intention of supporting Ilencl rickson and Boscarell. Other ballots displayed other idiosyncrasies.

There are four election districts in Ewing township. The district election boards rejected many of the ballots cast. The announced result was that George Kuestner (Eegular Republican candidate) was declared elected for the two-year term, and William C. Cook (Eegular Republican candidate) was declared elected for the three-year term. The independent candidates, Hendrickson and Boscarell, then presented a petition to Mr. Justice Trenchard, of the Supreme Court, for a recount of the ballots. A recount was ordered and conducted upon November 23d and 24th, 1926, by the county board of elections. The result of this recount was that the county board of elections declared that William C. Hendrickson had been elected for the three-year term over William C. Cook, and that John J. Boscarell had been elected for the two-year term over George Kuestner. No ballots were referred to Mr. Justice Trenchard to be passed upon by Mm for the reason that the county board of elections had no divergence of view regarding any disputed ballot. As a result of the recount Hendrickson and Boscarell became the incumbents.

Messrs. Kuestner and Cook, under article 27 of the Election law, then filed petitions addressed to the Circuit Court of Mercer county for the purpose of contesting the election of Messrs. Boscarell and Hendrickson. Each contestant filed a separate petition. Each petition embodied the same subject-matter. In the record only one of the petitions is printed. This was done by consent. The hearing was had before Judge Jess of the Circuit Court on the 17th, 20th and 23d days of December, 1926. It became necessary during the hearing to recount the ballots. The disputed ballots were passed upon by the court. The result of the contest was the entry of a judgment that George Kuestner was elected over John J. Boscarell for the two-year term, and WLUiam C. Cook over William O. Hendrickson for the three-year term. Within the time prescribed by the statute Borneare]! and Hendrickson, the incumbents, appeal to this court.

The first point advanced by the appellants for a reversal of the judgments is that the Circuit Court had no jurisdiction to act in these cases because of the failure of the petitioners (Kuestner and Cook) to give the bond required by the Election act. Section 3, article 27 of the Election law (Pamph. L. 1921, p. 589) reads:

“Said petition shall be accompanied with a bond to the incumbent with two or more sureties to be approved by the justice holding such circuit, in the penal sum of $500, conditioned to pay,” &c.

The bonds given by each of the contestants were approved, not by the “justice holding such circuit,” but by Judge Jess, who is a judge of the Circuit Court. The bond given by William C. Cook to Hendrickson is printed on pages 16, 17 and 18 of the record. It shows that it was approved by “Frank B. Jess, Judge Circuit Court.”

This question has been passed upon in the case of Wadsworth et al. v. Harrison, 46 N. J. L. J. 329. Judge Dungan (Circuit Court judge) rendered the opinion. As stated in the opinion the first ground urged for the dismissal of the petition was:

“That the Circuit Court was without jurisdiction to make an order fixing the time of this hearing, and is now without jurisdiction to hear and determine the questions involved in the- petition, for the reason that no bond was presented with the petition, as required by section 3 of article 27 of the Election act, found on page 782.”

When this point was considered by Judge Dungan he said:

“Under the first point, as to whether or not all the steps taken were sufficient to give the court jurisdiction, I would say that in these arguments there has been no suggestion that this court has any power under the common law to hear and determine such a proceeding as this. As was said in the ease of Darling v. Murphy, to which reference has been made many time during the argument, found in 70 N. J. L. 435, Mr. Justice Swayze, speaking for the court, says: ‘The proceeding is purely statutory, and in order that the. court may have jurisdiction the statute must be complied with.’ And I think it is not objectionable to insert the word ‘strictly/ and to say that the statute must be strictly complied with. One of the jurisdictional acts in order to confer upon this court the power to hear and determine this matter is that with the petition there shall be presented a bond; to use the words of the statute, ‘said petition shall be accompanied with a bond to the incumbent with two or more sureties to be approved by the justice holding such circuit in the penal sum of $500, conditioned/ &c. One of the objections made to the bond was that it is executed by a surety company instead of by two sureties, as required by this section; but I think that objection is fully covered by the statute to which reference has been made, and counsel in the case indicate /hat they acquiesce in that view. But whether or not the other requirement has been complied with is seriously disputed. The bond was approved by a judge of the Circuit Court, not by a justice of the Supreme Court; but it is insisted on behalf of the petitioners that the words ‘justice holding such circuit’ would comprehend the judge of the Circuit Court, and does not necessarily mean that it must be approved by a justice of the Supreme Court, and counsel calls attention to the inconsistency which a construction that it means the justice of the Supreme Court would give rise to. I fail to see any inconsistency in such a construction, because, as Suggested during the argument, it was quite proper that the petition should have been presented to the judge of the Circuit Court for the fixing of a day for such a hearing, and that prior thereto there should have been obtained from a justice of the Supreme Court his approval of the bond, which could have accompanied the petition when it was presented to the Circuit Court judge, as stated in the act, if the approval of the justice of the Supreme Court be necessary, and I am inclined to think that that is just what it means. As I have gone very carefully through this act I find that whenever a justice of the Supreme Court is intended the act so provides; when a judge of the court is intended it is so indicated. Some sections speak of action being taken by the judge or justice of the Supreme Court, ‘judge’ evidently meaning ‘judge of the Circuit Court/ and ‘justice of the Supreme Court’ meaning just what it says. So, there was no confusion, apparently, in the mind of the author of this act, or of the legislature in passing the act, as to whether or not it is a judge or a justice of the Supreme Court upon whom they confer the powers set forth in the act. Section 3 of article 27 speaks of the determination of such a matter as this by the Chief Justice, or a justice of the Supreme Court, where the office or proposition involves the entire state or more than county. In the next paragraph of that section, it is stated that ‘in all other cases it shall be heard and determined by the Circuit Courts.’ The justices of the Supreme Court assigned to the several counties are the justices holding the circuits. The Circuit Court judges are not justices; they are judges; and the term ‘justice/ I think, does not include the Circuit Court judge. As has already been suggested, the presentations to the Circuit Court judge, at the time of the presentation of the petition of a bond properly approved — approved according to the provisions of the act — by the justice holding the Essex County Circuit, was an absolute necessity to. confer upon the Circuit Court judge jurisdiction to fix a day and to try and determine this case.

“That view alone necessarily results in the dismissal of these petitions, * *

We consider the reasoning of Judge Dungan as above expressed unanswerable. The _ legislature has prescribed a method of procedure to be followed by one who desires to contest the result of the election. To give the court jurisdiction the method prescribed by the legislature must be followed. Courts have no power to change or ignore the procedure fixed by the legislature.

The contestants seek to avoid the effect of this statute by claiming that the provision relating to the approval of the bond was waived by the incumbents. This was the view taken by Judge Jess. In the record (on p. 92) Judge Jess said:

“* * * I am inclined to agree with the opinion of Judge Dungan, that the act requires that the bond to be filed by the contestants to the incumbents shall be approved by a justice of the Supreme Court. It clearly says so, and I think there can be no doubt about that.

“But I am further inclined to feel that this objection, while it might have been valid and controlling at the outset of this case, now comes too late. It think that this is a jurisdictional fact which the parties may waive. I can see no reason why not, if they come into court knowing, as, of course, they are presumed to know, that the bond is defective in the matter of its approval, and remain silent as to that objection and permit the proceedings to go on to the extent that several hundred ballots are counted, that is too late, practically at the close of the case, to raise that objection.”

It is true that the objection was not made at the commencement of the hearing upon the appeals. It was made, however, before the hearing had been concluded and a decision rendered by the court. The position taken by the Circuit judge is that if counsel fail at the very threshold of the hearing to call the court’s attention to a defect in the procedure which affects the jurisdiction of the court, such failure precludes the consideration of the question if raised during the hearing, and the parties are deemed to have waived the question of jurisdiction. Such a position makes it necessary for counsel to know on the occasion of their first appearance every fact affecting the jurisdiction of the tribunal and the law applicable to it. It may well be that at his first appearance on this appeal counsel for the incumbents may not have liad an opportunity to inspect the bond which had been tendered to the Circuit judge. Counsel was warranted in assuming that all the acts essential to confer jurisdiction on the judge had been complied with. Whether the bond was approved by a justice of the Supreme Court was a question of fact, and, so far as it appears, when counsel was apprised that the bond was not approved by a justice of the Supreme Court the question of jurisdiction was raised. Assuming that the jurisdictional fact lacking, namely, the approval of the bond “by the justice holding such circuit” could be waived, we do not think it was waived in the present case.

The more serious question, however, presented is whether the failure to have the bond approved in the manner prescribed by the statute is a matter which can be waived. To give the Circuit Court jurisdiction of the subject-matter, to wit, the appeal, one of the things required by the statute to be done was the approval of the bond in the manner mentioned. Unless this requirement was complied with as well as the other requirements made mandatory by the statute, the Circuit Court had no jurisdiction to hear the appeals. Jurisdiction of the person may be waived by appearance before a tribunal having jurisdiction of the subject-matter and participation in a trial. State v. Rosenblum, 3 N. J. Adv. R. 1713. While courts can obtain jurisdiction of person by the person’s consent, jurisdiction of the subject-matter cannot be obtained by a court by consent of parties. This distinction has been recently thoroughly considered by the Court of Errors andi Appeals in this state in the case of State v. Baker, 4 N. J. Adv. R. 1219. We hold that by reason of the failure of the contestants to have the bond approved in the manner provided in the statute, the Circuit Court had no jurisdiction of the appeals and could not determine the same. This view makes it unnecessary to consider the other questions argued or briefed. Where an appellate court is without jurisdiction of the subject-matter of an appeal the only' judgment it can enter is one dismissing the appeal. Sena v. United States, 147 Fed. Rep. 485; Ex parte McCardle, 7 Wall. (U. S.) 506.

The judgments entered in the Circuit Court are reversed with the direction to enter judgments dismissing the appeals.


text:
    ROBERT A. ALTSCHULER AND ARTHUR L. ROBINSON, PROSECUTORS, v. CHARLES W. OWEN AND THE CIRCUIT COURT OF THE COUNTY OF BERGEN, DEFENDANTS.
    Argued February 23, 1927
    Decided February 26, 1927.
    Attachments — Controversy Involves Substantial Questions of Law and Fact — Writ to Bring up Case but Not to Stay Proceedings by Auditor Appointed in Case of Keppler v. Owen.
    On application for writ of certiorari to review order of the Circuit Court discharging auditor appointed in the case of Altschuler v. Owen, in attachment.
    Before Justices Parker, Black and Campbell.
    For the prosecutors, Bex A. Altschuler.

    For the defendants, Sidney W. Eldridge.

   Per Curiam.

It is manifest that the controversy involves substantial questions of both law and fact, touching the validity and priority of conflicting attachment liens, which questions should be fully presented and argued, and maturely considered and determined.

A writ is therefore allowed, to bring up the order of December 31st, 1926, in the attachment suit of Altschuler v. Owen in the Circuit Court, and the proceedings relative thereto; but without staying proceedings by the auditor appointed in this court in the suit of Keppler v. Owen by way of selling the various items of attached property and the conversion of the same into money; the proceeds of the said various items to be separately accounted for by said auditor, and to remain subject to the further order of this court in the premises.


author: Carrick, J.

text:
    First District Court of Jersey City.
    ROSENBUSCH ET AL., DOING BUSINESS AS HUDSON PURCHASING COMPANY, PLAINTIFF, v. JOHN J. FREY. DEFENDANT.
    Decided January 24, 1927.
    Usury — Loaning Money in Small Sums — Wages—Plaintiff Claims to Have Purchased a Portion of Defendant’s Wages — Defendant Claims Usury, and That Plaintiff Not Only Forfeits Interest but That Under the Acts Both of 1884 and 1914, Relating to Loaning Money in Small Sums, Principal as Well —Contract Held Usurious, Also Held Not Forfeited Under Act of 1884, but Under 1914 Act, Complainants Coming Under Its Provisions, the Principal is Forfeited.
   Carrick, J.

The plaintiffs seek to recover from the defendant $27.50, a portion of wages which were due to the defendant as a brakeman for the Pennsylvania railroad on August 20th, 1926, when the plaintiffs claim to have purchased that portion of his wages then earned for the sum of $25. The defendant claims the transaction was a usurious loan, and that the plaintiff not only forfeits interest under the General Usury act of the state, but that under an act of 1884 for the better securing of wages to workmen and laborers (3 Comp. Stat. p. 3048, §§ 113, 114), and under the act of 1914 to define, &c., loaning of money in sums of $300 or less (1 Supp. Comp. Stat. p. 42, &c.), the plaintiff loses the principal as well.

The transaction took the form of a purchase of earned wages. The Pennsylvania railroad pays its employes twice a month, and the defendant was entitled to his pay warrant within ten days or two weeks after his dealing with the plaintiffs. The transaction was in reality a loan of money. The only concern which the plaintiffs could have had in their dealings with the defendant was to obtain from him in cash $27.50, when that sum had been collected from the railroad 'ompany, in lieu of the $25 which they advanced to him on August 20th. Wages are not a commodity. At the date in question there was money due from a solvent debtor payable at a fixed date. The substitution of some form or device which is supposed to give the semblance of a purchase, in the. endeavor to cover up a usurious loan, is familiar to all. The law, however, regards the essential nature of the transaction, not the incidents created to give it a fictitious color. The plaintiffs had, and could have, no interest in the purchase of the defendant’s wages, except to obtain for the money which they gave him on August 20th a greater sum than they would be entitled to for the use of the money at the legal rate of interest. After examining the careful briefs submitted in the plaintiffs’ behalf, I am confirmed in the opinion expressed at the hearing that the transaction is indubitably a usurious loan. The only question remaining is whether, under the special statutes invoked by the defendant, the plaintiffs forfeit principal as well as interest.

The act of 1884, above referred to, upon any reasonable construction of its language, applies not only to the purchase of wages due at the time of the purchase, but to wages for labor which might thereafter be performed by the laborer or employe. Such is the natural import of the language, and it is consistent with what was presumably the legislative intent. .But while the statute forbids usurious interest and makes the exaction of interest at a greater than legal rate a misdemeanor, it does not in express terms avoid the contract. My conclusion, therefore, is that while one violating the provisions of this act by a purchase of wages on such terms as would amount to a usurious loan, renders himself liable to prosecution for misdemeanor, the validity of the contract is not affected, other than by the general laws of the state respecting usury, which forfeit only the interest, leaving the principal still due.

The statute of 1914, however, above referred to, regulating the business of making loans in sums of $300 or less, apparently covers the situation as displayed by the testimony in this case. The plaintiffs come within the class to which the statute applies. They are not casual or occasional leaders, but are engaged in the business of loaning money in sums of $300 or less, and under the statute are brought within the control of the commissioner of banking and insurance, and required to take out a license. That they are in such business- is shown by plenary evidence. The law forbids any person from engaging in such loaning business without a license, and makes a person violating the inhibition of the statute subject to the provisions of the act. The purpose of the act evidently is to subject the business of loaning in small sums to the supervision and examination of the banking department of the state. A special rate of interest is allowed, greater than the ordinary legal rate, not to exceed three per centum per month. The sixth section of the aot not only makes the violation of any provisions a misdemeanor, but renders the loan absolutely null and void, and permits the borrower to recover from the lender any and all sums paid or returned on account of, or in connection with, such loan. While the language of the statute is that the borrower shall be entitled to recover sums paid or returned on account of the loan, it is necessarily equally effective to prevent the lender from recovering the money loaned on this transaction, which is expressly declared to be null and void.

There will be a judgment for the defendant.


author: Backes, V. C.

text:
    Henrietta P. Gasteiger, complainant, v. John Godfrey Gasteiger, defendant.
    [Decided March 10th, 1927.]
    A husband against whom a decree for maintenance has been made is not entitled to have the decree suspended and bail on ne eweat discharged because the wife has since caused his arrest under a decree obtained in the state of their domicile. The unsuccessful prosecution in the court of the domicile does not constitute an election or abandonment of the decree in this state.

      Mr. Robert D. Grosman, for the complainant.

      Mr. Merritt Lane, for the defendant.
   Backes, V. C.

The defendant fled the jurisdiction of New York in January, 1925, to escape the payment of $60 a week alimony awarded to his wife under a separation decree in the supreme court of Kings county, New York, for her and her children’s support, and came to Newark, where he took up his residence and engaged in business. The wife followed him here and filed her bill to recover accrued alimony under the New York decree, and for separate maintenance and support for herself and children, and on final hearing a decree was entered in her favor, April 8th, 1926, for $2,460 accrued alimony and for $30 a week support money. The defendant’s income at that time did not warrant an allowance of the amount previously fixed by the New York court under different circumstances. Upon the filing of the bill a ne exeat issued and the defendant was arrested and released on a rule bond in $5,000 bail conditioned, among other things, that he shall at all times render himself amenable to the orders and process of this court pending the suit, and to such process as shall be issued to compel his performance of the final decree therein, and shall appear before this court or any officer thereof when so required by the order of this court. The defendant paid the alimony until July, and, being eleven weeks in arrears, an order to show cause was made October 11th why he should not be adjudged in contempt, which is one of the matters now being pressed.

In June the defendant called on his wife in New York, and after some disorder — the wife says he was drunk — he was taken to the police station and later was held in bail under a warrant of arrest, in contempt, issued in his wife’s New York suit about the time he escaped to this state. He posted $1,500 cash bail and forfeited it. In October he again went to New York to consult his wife’s lawyer. He claims he was promised immunity from arrest for six months so that he could settle there in business and adjust his differences with his wife, and that relying on this he later in the month called on his wife and was jailed until he should pay the arrears of alimony, $2,930. The promise of immunity, except as to the first trip, is denied, and, on the contrary, it is claimed that the defendant invited arrest in an effort to release the bail in the suit in this court.

The defendant now moves to vacate the final decree or suspend its operation, and to set aside the writ of ne exeat or discharge the bail on the ground that the complainant lured him into New York to enable her to prosecute her action there, and that, therefore, she has made her election to proceed in that suit and that that is tantamount to an abandonment of her suit here, and that, at all events, she should not be permitted to prosecute both actions at the same time. If the complainant induced the defendant to’ enter New York and unlawfully procured his arrest, which is not satisfactorily established, relief should be sought in the courts of that state; it is an irrelevant issue here. And as to the election: The courts of two states have been unable, so far, to compel the defendant to regard the simplest dut]*- of husband and father; he has defied both. The wife is seeking a single redress — support—and is privileged to the aid of either, or both, under the circumstances, and the doors of the one or the other, or both, are open to her until the husband realizes his duty and submits. State boundaries do not make court barriers.

The defendant has contemned the order of this court. The proofs show that he had the ability to comply with its terms, and they were considerate and within his means, and he chose noi to obey. A warrant will issue to be executed upon his release from his present incarceration. Under the statute of New York he will be discharged after six months’ imprisonment. If he fails to submit to the writ committing him for his contempt, proceedings then may be taken to forfeit the bond, which will be breached, according to its condition, upon his failure to “render himself amenable to such process as shall be issued to compel the performance of the final decree.”

The claim that the defendant is not in arrears, because the forfeited $1,500 bail was paid over to the wife, is frivolous. More than that amount had accrued under the New York decree and it was appropriated in payment, and there remained a large deficiency. Of course, the payment of all the alimony under the New York decree would discharge the amount due here.

Much has been said about the wife’s father persecuting the defendant. Tf he has been impelled by any other motive than to bring the defendant to his sense of duty to his wife and children it has not been shown, and, besides, the wife is not responsible for any of her father’s efforts that may have been ill-chosen. Aside from this, if the defendant is obligated to the father, for which the latter lias been pursuing him with, it is said, thirty law suits, the number is not surprising if, with the same measure of success, the defendant resorted to the methods he has to avoid supporting his family.