author: Pee Cubiam.

text:
    PAUL SADLON, PLAINTIFF, v. PETER CUSICK, DEFENDANT.
    Submitted January 30, 1931
    Decided August 1, 1931.
    Before Gummis, Chief Justice, and Justices Tben-‘CHAkd and Lloyd.
    For the rule, Collins & Corbin.

      Contra, Actcerson <& Van BusTiirle.

   Pee Cubiam.

There was a verdict for the defendant in this case and plaintiff has a rule for new trial, and urges that it should be made absolute on the single ground that the verdict was against the weight of the evidence.

It was an accident ease arising out of a collision between a deliverer truck of the defendant and the plaintiff, on a bicycle. The undisputed proofs showed that the truck was proceeding in an easterly direction on the main thoroughfare from Bound Brook to Dunellen. A dirt road enters that highway from the south. The plaintiff rode out of this road on his bicycle into the Bound Brook road, proceeded across the highway, and the defendant, to avoid him, turned to his left and the collision occurred on the north side of the latter highway.

The plaintiff called three witnesses who testified in substance that when the plaintiff came out from the dirt road the truck was a considerable distance up the Bound Brook road and to the plaintiff’s left, varying in their estimate of'the distance from two hundred and fifty to three hundred feet, and that the truck was proceeding at a rapid rate of speed.

Defendant’s testimony was that he was but a short distance from the dirt road, about fifteen feet, when the plaintiff entered the Bound Brook road; that they were too close for him to stop; that he turned to the left to avoid him but was unable to do so, and that plaintiff struck the right-hand fender of his truck.

There was some corroboration of the defendant’s testimony in the evidence given by plaintiff’s witness, Cisty, who testified that after the accident he went down to where it had occurred and traced on the highway the tracks of the defendant’s truck and that where they started to turn they were but a short distance west of the dirt road out of which, the plaintiff came.

Taking the whole situation into account it seems to us-that the jury’s verdict was justified, or at least that it was-not so far unjustified that it should be attributed to bad motives.

The rule will be discharged, with costs.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    MARCELI SLOMKOWSKI AND STANISLAWA SLOMKOWSKI, HIS WIFE, RESPONDENTS, v. SAMUEL LEVITAS AND FANNIE LEVITAS, HIS WIFE, APPELLANTS.
    Submitted January 30, 1931
    Decided August 1, 1931.

      Before G-ummeee, Chibe Justice, and Justices Trexchard and Lloyd.
    Eor the appellants, Corn & Silverman.

    Eor the respondents, Haines £ Chanalis.

   Pee Cueiam.

The appeal in this case is by the defendants from a summary judgment entered against them in the Essex Circuit Court upon the defendants’ answers being stricken out. The action was to recover a deposit made by the plaintiffs upon an agreement for the purchase of a piece of real estate, together with search fees incurred in examination of the title.

The complaint set up that the contract of sale was to convey by deed of warranty free from encumbrances except as therein mentioned, and that the buildings were wholly within the described premises; that on the contrary there was a defect in the title by reason of an insufficient power given to an executor and trustee in a will under which title was derived; that there was an encroachment of the building line of the public highway of three and one-half feet. It further alleged that the plaintiffs demanded the rescission of the contract and the repayment of the moneys due them.

To this complaint an answer was filed alleging that the defendants had tendered a good title and were always ready and willing to convey such a title, but that the plaintiffs were not ready to perform their part of the contract; further, that the only reason for refusal to accept title as given by the plaintiffs was the alleged defect in title. Affidavits were taken on a motion to strike out the answer, those of the plaintiffs exhibiting a survey of the premises showing the encroachment, and a will under which title was derived which it was alleged failed to confer a power of sale on the trustee; the defendants’ affidavits were directed to showing that the encroachment was waived, that the only trouble with the title was in the power in the will, and that this was not substantial.

The affidavits do not substaniate the defendants’ claim of waiver. The affidavit relied on is that of one Chanalis, a member of the bar, who annexes to his affidavit testimony of one Silverman as given in a former proceeding in the Court of Chancery and who there testified as to a conversation between the plaintiff Marceli Slomkowski and himself, in which they talked about the difficulty in the title. Assuming that this was evidential for the court’s consideration, and that it was binding on Marceli’s wife, also party to the agreement, it did not constitute a waiver of the encroachment. While Marceli only mentioned the defective title and said he did not know of any other trouble, this was far from a waiver. The matter was in the hands of his attorney, and it is quite apparent that he was mentioning only the things his lawyers had so far mentioned.

We think also it is more than doubtful if a power of sale was conferred on the husband of the testator in the will mentioned. A naked trusteeship is given for the testator’s children and grandchildren to be administered by him. No power of sale is expressly given nor do we think one was conferred by implication.

The answer was properly stricken out and the judgment is affirmed, with costs.


author: Per Curiam.

text:
    DEERFIELD REALTY COMPANY, A CORPORATION OF NEW JERSEY, RELATOR, v. FRANK HAGUE ET AL., RESPONDENTS.
    Submitted January 30, 1931
    Decided August 1, 1931.
    Before Gummebe, Chief Justice, and Justices Trenchabd and Lloyd.
    For the relator, Carey & Lane.

    For the respondents, Thomas J. Brogan.

   Per Curiam.

In this case the Jersey City authorities denied the relator, the Deerfield Realty Company, a building permit. The company presented its application for a permit to erect a garage on Hudson Boulevard back in the summer of 1929, and the application was refused, the discussion of the commissioners indicating on the ground that it considered that enough gasoline stations had already been erected.

The case came before this court in October, 1929, on rule to show cause why a writ of mandamus should not issue and the court awarded an alternative writ. Reported 8 N. J. Mis. R. 637. The return to that writ is now before us. The city makes the threadbare contention that it has an ordinance pending, the object of which is to rezone this section among others.

The case falls within our decisions in Holdsworth v. Hague and Brengel v. Hague, Nos. 56 and 51, respectively, in the October term, 1930, of the Supreme Court.

A peremptory writ of mandamus is awarded.


text:
    EDWIN C. TABOR, PLAINTIFF, v. RALPH M. KETCHAM, DEFENDANT.
    Submitted January 30, 1931
    Decided August 1, 1931.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    For the rule, Garr & Carroll.

    Gonlra, Walter S. Keown.

   Per Curiam.

This case grew out of a collision between an automobile driven by the plaintiff and another driven by the defendant. The drivers received personal injuries and their cars were damaged. Both parties sought to recover damages. There was a verdict for $1,200 in favor of the plaintiff, and defendant has a rule for new trial. Three reasons were filed but the only one argued is that the verdict is excessive.

The plaintiff was a milk man delivering milk for the Supplee, Wills, Jones Milk Company and claimed to have received an injury to the elbow necessitating a helper in his work for three weeks and causing him pain during that time and subsequently. His ear was damaged to the extent of $250. His only expenses were a doctor bill of $7.50 and a towing charge, the amount of which is not given. He lost no time at his work, nor any wages. His doctor was not called as a witness.

The plaintiff’s injury was not serious as we read the evidence and we think the award is excessive. If he will remit so much of the verdict as is in excess of $500, the rule will be discharged; otherwise, the rule will be made absolute.


text:
    FREDERICK A. JONES, INCORPORATED, RESPONDENT, v. LONDON AND EDINBURGH INSURANCE COMPANY AND TORONTO CASUALTY FIRE AND MARINE INSURANCE COMPANY, APPELLANTS.
    Argued January term, 1931
    Decided August 1, 1931.
    Before Gummere, Chief Justice, and Justices Tjbenchard and Lloyd.
    For the appellants, Insley, Vreeland & Declcer.

    For the respondent, Eichmann & Seiden.

   Per Curiam.

This was an action in the Hudson Circuit Court based on a Florida judgment obtained by Jones, Incorporated, against the London and Edinburgh Insurance Company for a fire loss in that state. A verdict was directed in favor of the plaintiff and from that judgment the insurance company appeals.

The single question presented on the appeal is whether the trial judge committed error in refusing to admit in evidence, when offered by the defendant, depositions which had been taken in Florida under a commission obtained by the plaintiff. The trial judge rejected the offer on the ground that the depositions being taken at the instance of the plaintiff could not be availed of by the defendant unless offered by the plaintiff. The respondent concedes this view to be erroneous under the case of Wallace v. Lieber, 69 N. J. L. 312, but contends that even though received in evidence they would not avail the defendant, and that the error was in consequence without injury to the defendant.

We think the respondent’s contention is sound. The exemplified record of the Florida court disclosed that process-had been served on an agent of the defendant in that state-as defined by its laws. The depositions, as we read them,, exhibit nothing to the contrary. By the uncontradicted evidence one Byreley procured the insurance, received the premium and transmitted it to the insurance company’s agent.. The agent in turn transmitted the premium to the company and issued the “binder” on which the suit was brought. The-Florida statute enacts in effect that “any person or firm residing in the State of Florida who receives or receipts for any money on account of or for any contract * * * for an insurance company * * * or who receives or receipts-for money from other persons to be transmitted to any such insurance company * * * shall be deemed to all intents- and purposes an agent * * * of such company.” We think the receipt by the plaintiff company of the premium, and the issuance of the binder policy called for by such, premium constituted an adoption of the act of Byreley and made him in fact as well as in law its agent and it seems-not to be disputed that under the statute of Florida service-could properly be made on an agent in that state.

There was, therefore, no error which was harmful to the defendant in rejecting the offer of the depositions, and the judgment is affirmed, with costs.


text:
    WILLIAM T. PLUM, Jr., AND VIRGIE L. S. PLUM, PLAINTIFFS, v. ADA M. TAYLOR, CHARLES TAYLOR AND THOMAS REGAN, DEFENDANTS.
    Submitted January 30, 1931
    Decided August 1, 1931.

      Before Gummeee, Ct-itee Justice, and Justices Teen•ctiaed and Lloyd.
    Eor the rule, Louis J. Beers.

      Contra, Patterson, llhome & Morgan.

   Pee Cueiam.

The action was by Yirgie L. S. Plum and her husband to recover damages for injuries to Mrs. Plum received in a collision between an automobile in which she was riding and an automobile driven by the defendant Charles Taylor. The wife was awarded a verdict of $3,800 and her husband a verdict of $1,000, against all of the defendants. The defendants Ada M. and Charles Taylor have a rule for new trial and urge three reasons as grounds for making the rule absolute: (1) That there should have been a nonsuit; (2) that the verdict was against the weight of the evidence; (3) that the damages are excessive.

We think none of these reasons are well founded. As to the first and second points: The accident happened at As-bury Park. The plaintiff was proceeding north on Main street and the Taylors south, on the same highway, both having the green light in their favor. As they approached Second avenue the car of the defendant Eegan, driven by himself, approached Main street in a westerly direction. Hesitating as he entered the street, he then put on speed and continued across in the face of the red light. Taylor, in order to avoid him, turned to the left across the center white line of the highway and collided head on with the car of the plaintiff. This, of course, justified an inference of negligence. His mere presence on the wrong side of the-highway and proceeding against the line of traffic was evidential to this effect, and we think such inference was supplemented by positive proofs in the testimony of Taylor himself that he was proceeding as the easterly one of three lines-of travel; that the drivers of all of the head cars of these-three lines apparently saw the Regan car crossing; that the car immediately to Taylor’s right stopped, the car further from him and to the west turned right into Second avenue; that he was going at approximately twenty-five miles-an hour, the same rate at which the other two lines were-traveling; that the car next to him came to a full stop when the Regan car appeared. He was then asked why he did not stop his car when the Regan car passed in front of him.. He answered that he was trying to pass behind it. When asked if he could not have stopped his car he answered,, “probably.”

The case, therefore, presented is that instead of doing the-obviously safe thing, Taylor preferred to take a chance with facing the northerly line of travel. The nonsuit was not only-properly refused but we think that the verdict was not: against the weight of the evidence.

As to the damages: The plaintiff Mrs. Plum received injuries in the pelvic region and they resulted in a miscarriage- and.the ejection of a four months’ foetus. She also had a severance of the small bones of the coccyx, with the result of' severe pain which lasted up to the time of trial sixteen months-after the accident, and according to the medical testimony on both sides would always be a source of pain and discomfort.. She was confined to bed two weeks. The verdict in her favor seems ample, but we are not prepared to say that it is; too much. The award to the husband is not excessive. There-was proof of $600 of actual money expenditures for medical services and maid’s wages and the remaining $400 could easily be accounted for in the circumscribed enjoyment of his-wife’s companionship.

The rule is discharged, with costs.


text:
    FIRST NATIONAL BANK OF WHARTON, PLAINTIFF, v. JACOB THOMAS, FLOYD W. GRUENDYKE, HUGH SIMANTON AND BERTIE SIMANTON, DEFENDANTS.
    Submitted January 30, 1931
    Decided August 1, 1931.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the plaintiff, King & Vogt.

    Eor the defendants, Elmer W. Bornine.

   Per Curiam.

This is a rule for new trial allowed to Floyd G. Gruendyke, one of the defendants, against whom a judgment was obtained in the Morris Circuit of the Supreme Court on a note bearing his endorsement held by the bank and on which default of payment had taken place.

Seven reasons are filed under the rule, but one of which has any validity to justify consideration. The reasons filed are that the verdict is contrary to the weight of the evidence; that the court admitted illegal evidence; refusal to admit evidence on behalf of the defendants; verdict contrary to-charge; that the court committed error in its charge; verdict contrary to law, and verdict illegal, unjust and oppressive..

Rule 125 requires that the party entering the rule “shall write down the reasons upon which he rests such motion with such particulars as is now required in stating grounds of appeal.” But one of these reasons, that the verdict is contrary to the weight of the evidence, meets that requirement. It is not stated what illegal evidence was admitted, what legal evidence was refused, with what portion of the charge the verdict was in violation, in what part of the charge error was committed, or in what respect the verdict was contrary to law.

We proceed to consider the reason that the verdict is contrary to the weight of the evidence. Gruendyke was an endorser on a note for $6,423.48. His defense, as attempted to be proved, was that his signature was obtained by the bank by fraud and misrepresentation. His testimony was that he was asked by Simanton, the maker of the note, to become an endorser for him; that he and Simanton saw the cashier and were told that the bank had a bond and mortgage of $10,000 to cover all notes to that amount and that Gruendyke had no liability to take whatever; that the bank examiners were liable to come to the bank the next morning and would want the note in the bank then. Simanton testified that the cashier at this conversation said that Gruendyke had no risk to take because the note was secured by a mortgage, that it was more to satisfy the examiners than anything else. The cashier denied that he had made such a statement; he said that Simanton had been before the board of directors the day before and was informed that additional signatures of endorsement must be obtained or the note would not be renewed, and that Simanton and Gruendyke came to him the night afterward at the home of the cashier’s father-in-law; he said all that he told Gruendyke was that the bank held Simanton’s second mortgage; that he was asked to say this to Gruendyke and he did, but nothing more.

Whether on this evidence, even if believed by the jury, any defense was made out is more than doubtful. It appeared that the board of directors had demanded additional security in the way of added endorsers before renewing the note, and the note in question was given. This carried with it absolute liability of the maker and endorsers to make payment according to its terms. The statement of the cashier constituted nothing more than a promise that this liability would not attach and an alteration of the contract by parol.

Assuming, however, that the case was properly submitted to the jury, the verdict should not be disturbed on the weight of the evidence. Even if the jury disbelieved the cashier and believed the testimony of Simanton and Gruendyke the statements attributed to the cashier could well be regarded as mere expressions of opinion that there was protection to the bank in the bond and mortgage which it held and that by reason of this Gruendyke would take no risk in endorsing. That this meaning was a justifiable one is evidenced from the statement of Simanton that the cashier said that Gruendyke had no risk to run because it was secured by a mortgage, and that Gruendyke said he would think it over and thereafter signed the note.

The rule is discharged, with costs.


text:
    WILLIAM LANIO, Jr., BY HIS NEXT FRIEND, RESPONDENT, v. NICHOLAS STENECK, Sr., AND NICHOLAS STENECK, Jr., APPELLANTS.
    Submitted January 30, 1931
    Decided August 1, 1931.
    Before Gummere, Chief Justice, and Justices Trehohard and Lloyd.
    Eor the appellants, J. Emil Walscheid.

    Eor the respondent, Kealey <& Gilfert.

   Per Curiam.

Both of the defendants, against whom a judgment of $15,000 was rendered in favor of the plaintiff for personal injuries received in an automobile accident, appeal, hut grounds of appeal and a brief are filed on behalf of Nicholas Steneck, Jr., alone. The grounds are directed wholly to the charge of Judge Thomas Brown to the jury in the Hudson Circuit Court.

There are three excerpts from the charge of which criticism is made. The first is as to an instruction limiting the use by the jury of certain moving pictures for illustrative purposes only. The answer is that the defendant’s counsel expressly agreed to this limitation. If counsel had desired to test their admissibility, he should have stood upon his rights in introducing them and the exception taken on the adverse ruling, and not assented to the limitation which the judge imposed.

It is next said that the judge was in error in instructing the jury as follows:

“You will notice there is no charge in the complaint for loss of earning capacity during this boy’s minority or until he is emancipated, nor the expenses that were incurred in endeavoring to cure this young boy. That action lies, if one does, in the father or the person who stands in the place of a father or mother if this boy has no parents in this case. I make reference to it at this point so that you will not consider any loss of wages or any expenditures incurred because of this boy’s endeavoring to be cured up to the time that he would be emancipated, or until he attains his majority. That does not exclude you, under the amendment that counsel has proposed, from considering loss that might flow to this boy after that time, and the expenses, if any, he might incur in endeavoring to be cured of these injuries.”

Counsel excepted to the court’s instruction, whereupon the judge modified the charge by saying:

“The court charges you that there is no positive evidence that there will be any expenses incurred. There is evidence, as the court remembers it, and it is for you to judge, that this boy will have this injured leg the rest of his life and if it carries him beyond his age of twenty-one years, there may be some limitation of his earning capacity the rest of his life. You are to consider that.”

The specific criticism is that the judge told the jury that they might consider the loss that might flow to the boy and the expenses he might incur in endeavoring to be cured after reaching his majority and had been emancipated, and this on the ground that there was no evidence to justify a claim for damages on either basis.

The injured plaintiff, a boy twelve years of age, had a combined fracture of both bones of the right leg, shortening the leg by one and one-half inches.’ The claim for damages was for past and future pain, discomfort and inconvenience and for loss of earning capacity. It is said that there was no data upon which future disability could be measured in dollars and cents. There rarely is in such cases. It must of necessity rest much in obscurity, but this is not a valid reason for not permitting a jury to place a value on the loss. It was clearly proven that there was not only a broken leg with a shortening, but that the lacerations were of such a character that there was a fifty-five per cent, loss of the use of the leg. While the supplemented part of the charge was not as explicit as might be desired, we think it could be fairly said to have eliminated any claim for expense of cure.

Einally, it is said that there was error in the instructions to the jury as to the speed of the defendant’s automobile under the circumstances as specified in the charge, and in the failure of the judge to include other portions of the Traffic act. We find no error in what was charged, and if other and further instructions were desired it was the duty of counsel to specifically request their presentation to the jury-

The judgment is affirmed, with costs.


text:
    W. J. DONNELL LUMBER COMPANY, TRADING AS I-DEAL LUMBER AND COAL COMPANY, RESPONDENT, v. JESSIE M. CONNOR AND BROWN INVESTMENT COMPANY, INCORPORATED, MORTGAGEES, IMPLEADED, APPELLANTS.
    Argued January 30, 1931
    Decided August 1, 1931.
    Before Gummeee, Chief Justice, and Justices Trenciiard and Lloyd.
    Eor the appellants, Quinn, Parsons & Doremus.

    Por the respondent, Edwin P. Longstreet.

   Per Curiam.

The owner and a mortgagee appeal from a judgment in favor of a mechanics’ lien claimant entered in the Circuit Court of Monmouth county. The grounds of appeal are (1) that the trial court erroneously permitted the plaintiff at the trial to amend the bill of particulars upon which suit was based; (2) that the trial court erroneously refused to grant a nonsuit; (3) that the trial court erroneously refused to direct a verdict in favor of the defendant, and (4) that the trial judge erroneously charged the jury that the plaintiff had apportioned among the buildings all material to each building.

The first of these seems not to be argued. In support of the motion for nonsuit and direction the appellants contend that there was not a proper apportionment of the claim, and that there was not adequate proof that the materials set forth in the claim were actually delivered to and incorporated in the building.

The original amount of the plaintiff’s claim was $6,900 and it appears that there were six houses altogether involved in the construction and to which the materials were furnished. The lien claim set forth that the materials for which the present claim was made had been furnished for three houses; that the value was $3,383.71, of which $3,300 was still due, and this balance was apportioned among the three buildings against which the lien was filed. It appeared that three buildings had been released upon proportional payments.

Section 22 of the Mechanics’ Lien act declares that when materials or labor are furnished to buildings being constructed by the same person it shall be lawful for the persons furnishing the labor or material to “divide and apportion the same among the said buildings in proportion to the value of the materials furnished to and labor performed for” the buildings, and “if the person * * * who shall have furnished such material or labor shall have released his or their lien claim against any one or more of such buildings * * * such release * * * shall not affect or impair the lien or claim * * * against the buildings * * * not so released.”

The plaintiff was entitled under this section to apportion a proper balance against the three houses. The contention that the apportionment was not an equitable distribution of the plaintiff’s claim was a proper one for the consideration of the jury but would not be a basis of nonsuit or direction. Crane v. Brighton Mills, 98 N. J. L. 308.

As to the delivery of the materials, there was ample proof that they were delivered; many of the receipted tickets were identified by the contractor, others were identified as the signatures of men employed by him. These tickets and receipts were all received in evidence and the only objection was that the witness had not been able to identify all of the signatures. The builder testified to the use of the materials in the buildings, and the shipping clerk of the plaintiff testified to the accuracy of the tickets as connected with the materials.

The judgment is affirmed, with costs.


author: Lawrence, C. C. J.

text:
    FRANK V. GIRARD AND LILLIAN M. GIRARD, PLAINTIFFS, v. LYDIA A. STAGER AND FRANK STAGER, DEFENDANTS.
    Decided August 5, 1931.
    Before Lawrence, Circuit Court judge.
    For the rule, Eugene F. Hillery.

      Contra, Frank C. Scerbo.

   Lawrence, C. C. J.

This is an ejectment suit which was tried before me and a jury at the Morris Circuit and resulted in a verdict for plaintiffs for possession of the locus in quo. Defendants took out the present rule to show cause and argue for a new trial on the ground that the verdict was contrary to the weight of the evidence.

On February 10th, 1926, Margaret Eaton conveyed to the plaintiffs lot No. 11, in block T, as shown on the revised map of a subdivision known as Towaco Bungalow Park property, in Montville township, on file in the Morris county clerk’s office. They erected a bungalow and a detached garage on the lot which they now occupy. On June 19th, 1926, Mrs. Eaton conveyed the adjoining lot to the east— No. 12—to the defendant Lydia A. Stager. She and her husband likewise erected a bungalow and detached garage on that lot and on which they have since lived. These lots, as shown on the filed map, abut on the southerly side of Mountain avenue and, according to the map, are of the same width, front and rear, while the division line is given a definite length. Consulting this map, there is not the slightest difficulty in ascertaining that the beginning point of this line at the southerly side of Mountain avenue (which has a width of twenty feet) is four hundred and sixty-two and fifty-five hundredths feet easterly from the corner of lot No. 1, as laid down on the map, at the intersection or junction of the easterly side of Towaco Boulevard with the southerly side of Mountain avenue; that is to say, measuring from the indicated corner of this lot—as shown—easterly along the front line of the several lots a distance of four hundred and sixty-two and fifty-five hundredths would give the exact beginning point of the division line between lots Nos. 11 and 12.

The fact appears to be, however, that shortly before defendants erected the buildings on their lot, they sought information—from what source does not appear- in the record— as to the location of the division lines of their lot with that of plaintiffs on the west and No. 14 on the east (there appears to be no No. 13 on the map), and as a result two iron pins were placed at what they evidently regarded as the northwest and northeast corners of their lot. This information turned out to be unreliable, for the reason that the evidence at the trial disclosed that the pin at the so-called northwest corner of their lot was thirteen and twenty hundredths feet over on the front line of plaintiffs’ lot, and by like token the pin at the northeast corner was the same distance westerly on their own lot from the beginning point o£ the division line thereof with Fo. 14. It also later developed that plaintiffs’ bungalow overlapped the division line between their lot and Fo. 10, adjoining on the west; thereupon they purchased that lot, so that at the time of the trial they were the owners of Fos. 10 and 11. Defendants in erecting their garage obviously were misled by the wrongly placed pins in the front line of their lot and the mislocation of the structure naturally followed. Plaintiffs’ suit was accordingly brought to eject them.

The foregoing are the fair deductions from the evidence offered at the trial. Since the solution of the problem submitted was largely a matter of mathematics and the litigants depended almost entirely on their respective surveyors, it cannot be said that the verdict was contrary to the weight of the evidence. Defendants unfortunately appear to have been misinformed as to the exact location of the beginning point of the division line between their lot and that of plaintiffs, as to which there does not appear to have been any good reason. It suffices to say that the testimony of plaintiffs’ surveyor, a man of many years experience, was subject to credence by the jury and was not overcome by any evidence of a convincing character offered by defendants. A careful review of the evidence leads to the'conclusion that the rule to show cause must be discharged, but without costs.


text:
    REES TAYLOR COMPANY, INCORPORATED, PLAINTIFF, v. SAMUEL KULLMAN ET AL., DEFENDANTS.
    Decided August 5, 1931.
    Before Oliphant, Circuit Court judge, sitting as Supreme Court commissioner.
    Eor the plaintiff, James J. McGoogan.

    Eor the defendant Samuel Kullman, Green & Green.

   This matter is before me, sitting as a Supreme Court commissioner, on a motion to strike out the complaint as against the defendant Samuel Kullman, on the ground that it does not set forth a good cause of action.

It is admitted that the motion should prevail unless a question of fact, which should be passed upon by a jury, is raised, as to waiver of presentment and notice of dishonor, by the defendant Kullman.

Plaintiff relies on two letters to support its contention. On December 18th, 1930, it wrote to the defendant as follows:

“We wish to advise that the note of Mayflower Diners, Inc., for $100 and interest, which fell due on the 15th instant at Trenton, has not been paid.

Each of these notes bear the clause that if the same is not paid at maturity, all subsequent notes of the series immediately become due and payable.

Will you kindly give this matter your attention, and oblige.”

On stationery of the Kullman Dining Car Company, on January 6th, 1931, the following letter was written:

“Your letter of recent date at hand, and wish to advise you that your note for $100 will be taken care of not later than next week.
Thanking you for your kind indulgence in the matter, I remain
Yours very truly,
Kullman Dining Cab. Co., Inc.
By Samuel Kullman, President.”

The point is disposed of and the decision on the motion controlled by the decision of the Court of Errors and Appeals in the case of Jordan v. Reed, 77 N. J. L. 584, wherein the court said: “The law applicable to such conduct is that acts, admissions or promises after maturity, in order to be evidential of a waiver of presentment and notice, or of an excuse for the want of presentment and notice, must be done or made with full knowledge of the discharge from liability upon the contract of endorsement, and must, in form and effect,- be unequivocal and unconditional.

There was no unequivocal, unconditional promise to pay, after maturity, by the defendant Kullman, individually.

The case of Richardson v. Kulp, 81 N. J. L. 123, relied upon by the plaintiff is not in point. The letter which plaintiff claims amounts to a waiver did not come from the endorser but from a corporation.

The motion will be granted and an order to that effect may be presented.


text:
    Monmouth County Circuit Court.
    MARY A. O’BRIEN, ADMINISTRATRIX OF THE ESTATE OF JAMES O’BRIEN, DECEASED, PLAINTIFF, v. WILLIAM P. BUXTON, DEFENDANT.
    For the plaintiff, John G. Flanigan.

    For the defendant, Leo J. Warwick.

   Lawrence, C. C. J.

This suit was submitted to the court, without a jury, by consent, for determination on a stipulation of facts.

It is in replevin, the effort being to recover possession of an ice boat named “Jack Frost,” which was admittedly owned by James O’Brien in his lifetime. He died in December, 1922. At the time, the boat was in the custody of defendant, Buxton, a boat builder, who was its sailing master, and who maintained in his establishment a place for the storage of such boats when not in use.

The proofs tend to indicate that in 1921 and again in 1922, defendant had been engaged to condition the ice boat and act as its sailing master. On January 20th, 1923, he rendered a bill to the O’Brien estate for services as such sailing master, covering the seasons of 1921 and 1922, for $350 for each year, and for storage to the date stated for $50. Plaintiff tendered the storage bill, but refused to pay for the service as sailing master and demanded possession of the boat. The tender and demand were refused, by defendant. Claiming a common law lien, he advertised and caused it to be sold on January 29th, 1924, under the provisions of the act authorizing persons having liens for work, labor and materials, employed in the repair and construction of any article to enforce such lien. Comp. Stat. 1910, p. 3140; Pamph. L. 1889, p. 424. It produced at such sale $400, defendant becoming the purchaser, and when the writ was issued in the present suit, he still had it and filed the required bond in rereplevying it. Plaintiff claims that the items included in defendant’s bill were not of a nature to give him a common law lien, and, since she made a tender of the storage bill, which was refused, she is entitled to recover the boat in this action.

The primary question, therefore, is whether the boat was subject to a common law lien merely for defendant’s services as sailing master or for storage. It may be said that he was given permission to amend the stipulation of facts by submitting to the court an itemized statement of his account, showing, if he could, any service involving labor performed or materials provided in conditioning or repairing the ice boat, but apparently had no such account susceptible of proof. Such proof, consequently, as disclosed by the stipulation of facts, remained confined to the statement of services as; sailing master and for storage. That these services do not come within the definition of a common law lien, or indeed1 within the provision of the statute resorted to to enforce it seems apparent. They were not for work, labor or materials employed in repairing, conditioning or constructing the boat.

At common law the debt must have been incurred for some service or work rendered by claimant on the property against which the lien is asserted. 37 C. J. 327, § 37. It is entirely distinct from the debt or obligation which it secures; it is but an incident of the debt or obligation and a remedy therefor. The debt or obligation itself may be enforced with or without the aid of the lien; further proceedings on the lien may be barred, but not on the debt or obligation, and the payment of the debt extinguishes the lien. Ibid. 311, § 10. The term “lien” is sometimes used in a broad sense as being equivalent to “claim or demand,” but in a technical sense a lien is in the nature of security and is distinct from a “claim or demand,” as a person may have a claim and yet not be entitled to a lien to secure the payment thereof (page 310, section 8).

A workman who by his skill and labor has enhanced the value of a chattel, under an employment to render the service by the consent, express or implied, of the owner, has a lien on the chattel for his reasonable charge. White v. Smith, 44 N. J. L. 105; Sullivan v. Clifton, 55 Id. 324.

In Lanterman v. Luby, 96 N. J. L. 255, 257, a lien is defined as neither a right of property in a thing nor a right of action for a thing, but simply a right of detainer. It differs from a mortgage, in that a mortgage is a transfer of title as security; whereas, a lien confers no title; it differs from a pledge, in that a pledge is a transfer of possession as security; whereas, in the case of lien the transfer of possession is not for the purpose of security, but in order that the service may be rendered to the chattel in question, and the lien arises from the rendering of that service, if such service be not paid for. It is essentially a right to detain. It is the natural outcome of the transaction wherein one takes his chattel to another with whom he contracts for the performance by the latter of some service upon it for its betterment. The owner does not pay for the service before it is performed, because he has the right to see that it is right before he pays for it; on the other hand, the one who performs the service, having performed it well, has the right to be paid for it before the owner may take away his property so benefited by the service. See, also, 17 R. C. L. 601, § 8. At common law bailees, other than innkeepers, common carriers and warehousemen, were not recognized as having a lien on the property for mere storage, or for other services that did not enhance the value of the property (6 C. J. 1132, § 79), while in the absence of statute or special contract securing a lien, a servant or employe has no lien upon the property of his master or employer for his wages or compensation. 17 R. C. L. 602, § 10. Even though it had appeared that defendant had been engaged in the business of storing ice boats and would be entitled to a lien for such storage while it remained unpaid (Ibid. 603, § 11), it did not arise in the present case, because it is stipulated that plaintiff tendered the storage charge, included as an item in the bill rendered, and that it was refused by defendant.

In the circumstances, the proofs fail to show that defendant had a common law lien on the ice boat in question, and the result is that plaintiff must be held entitled to it. Judgment for possession may accordingly be entered. No costs will bo allowed, however.


author: Goldberger, J.

text:
    Perth Amboy District Court.
    JOSEPH POLKOWITZ, PLAINTIFF, v. MELVINA GOLDBERGER, EXECUTRIX OF THE ESTATE OF KLARA WEISS, DEFENDANT.
    Eor the plaintiff, Jacob Pollcowitz.

    Eor the defendant, Lewis Jacobson.

   Goldberger, J.

The plaintiff instituted a suit by attachment on or about the 10th day of April, 1931, against the defendant to recover funeral expenses incurred in burying Klara Weiss, deceased, whose death occurred February 8th, 1931. The writ was duly executed on the 11th day of April, 1931, by attaching moneys to the credit of the decedent in the First National Bank, which moneys the bank admitted was on deposit at that time. Final judgment was entered on the 5th day of June, 1931, in the presence of the defendant, who entered an appearance at that time. Thereafter, a rule was entered ordering said bank to show cause why moneys attached should not be paid to the plaintiff to satisfy the judgment.

The bank resists such payment on the grounds that the attachment is illegal, and therefore not binding on it; and further claims a right of set-off, alleging that the deceased was indebted to it on a note which became due on February 19th, 1931.

The bank can make no objection to the validity of the judgment where the executrix, as in the instant case, waived her right to do so, if any she had, by entering her appearance.

Tlie great weight of authority appears to be against the right to set-off, where the debt has not matured. Jordan v. National Shoe and Leather Bank, 74 N. Y. 467; Kortjohn v. Continental Bank, 63 Mo. App. 166; Bank v. Proctor, 98 Ill. 558; Bradley v. Thompson, 98 Mich. 449 (see 46 L. R. A. 1059 for compilation of cases).

New York, while asserting the broad general proposition, qualifies it in two ways, first, if the note is a demand note, and second, if the estate is insolvent.

The following cases cited by counsel for the defendant. Camden National Bank v. Green, 17 Atl. Bep. 669; Feick v. Hill Bread Co., 99 Id. 851, are not in point.

In the first ease, the court permitted set-off on equitable principles and on facts not present in the instant case. In the second case, the estate was declared insolvent and the question of set-off was not raised.

In the more recent case of Kurtz v. County National Bank, 288 Pa. 472; 136 Atl. Rep. 789, the court holds that where insolvencjr intervenes, bank deposits cannot be appropriated in satisfaction of unmatured debt, and where, as in this case, no allegation has been made that the estate is insolvent, and death has intervened before maturity, set-off should not be allowed.

The mere fact that the bank learns of the insolvency (or as in this case, death), gives it no right to secure a preference by acting to the prejudice of others in seizing assets, which all creditors are entitled to have administered through appropriate legal channels. Kurtz v. County National Bank, supra.

On equitable principles, although not under the statute of set-off, the bank may set-off against insolvent decedent’s deposit the amount due on notes of insolvent not due at his death. In the absence of insolvency or an equivalent equity, a debt which has not matured cannot be set-off against a debt which has.

Insolvency in fact, not confessed, or not legally established by bankruptcy or otherwise, will not warrant set-off of an unmatured debt. Sullivan v. Merchants National Bank (Conn.), 144 Atl. Rep. 34; Wiley v. Bunker Hill National Bank, 183 Mass. 49; 67 N. E. Rep. 655.

As neither of the parties have raised the question of the right to issue execution, or right to issue the said rule, the same will be considered waived. Boynton v. Sanford’s Ex’rs, 28 N. J. Eq. 184.

The right to set-off a demand must be vested, the demand sought to be set-off must be one upon which an action might have been commenced at the time of decedent’s death. Waterm. Set-off 78.

Euneral expenses, being a preferred claim, have priority over the defendant’s claim to set-off an unmatured debt. No equities having been claimed or any insolvency alleged, the rule will be made absolute and the bank ordered to pay the amount of the judgment due for funeral expenses.


author: Eldredge, J.

text:
    FRANK JOHNSON AND MARY G. CHAMPION, PLAINTIFFS, v. GICK & BINGEMANN, INCORPORATED, DEFENDANT.
    Decided August 5, 1931.
    Eor the plaintiff, Robert Peacock.

    For the defendant, French, Richards & Bradley.

   Eldredge, J.

The plaintiffs brought suit on January 28th, 1929, for damages growing out of a collision which occurred December 18th, 1927.

Respecting the plaintiff Mary G. Champion, the complaint alleged that “plaintiff has been compelled to expend large sums of money for doctors’ bills, medicine and hospital bills, and in the future will be compelled to expend large sums of money for doctors’ bills, medicines and hospital bills, as she received a permanent injury.”

By reason of the statute of limitations for bringing suit to recover damages arising out of this collision, no suit could have been brought after December 18th, 1929. More than one year after that date, however, the plaintiff Mary G. Champion moves to amend her complaint by alleging that she “lost considerable sums of money in not being able to follow her usual vocation and that in the future she will lose large sums of money because of the fact that she is ill and unable to follow her usual vocation, and she has lost large profits due to the same; that she has suffered and in the future will suffer severe pain and suffering.”

To this amendment the defendant now objects, alleging-that it sets np a new cause of action and, the statute of limitations having run, the plaintiff .is barred from setting-up any new or different demand.

The power to amend is defined in sections 23 and 24 of' the supplement to the Practice act. Pamph. L. 1912, pp. 381, 382. These sections provide that the court may, upon, terms, permit before or at the trial, the statement of a new or different cause of - action in the complaint or counter-claim.

The power of the court to permit these amendments prior to the expiration of the statutory limitations cannot be-denied, nor can there be any question that such amendments-are permissible even after the expiration of the statutory period if they do not state a new and different cause of action.. Swank v. Pennsylvania Railroad Co., 94 N. J. L. 546.

The question then, in the present matter, is to determine-whether the amendments sought add a new or different cause-of action, or merely enlarge and amplify the cause already-alleged.

To the latter view the court is inclined. The original complaint alleges both the incident., namely, the collision,, and personal and permanent injury resulting therefrom, for which damages are sought. The amendments do not state a new cause of action, but merely add two new. elements of damage which grow out of the same cause as the original .damage claimed. They therefore relate back to the commencement of the action and are not affected by intervening lapse of time.

An order will be made in accordance with the views herein expressed.


author: Lawtcence, S. C. C.

text:
    C. CEDAR COVE, INCORPORATED, A NEW JERSEY CORPORATION, PLAINTIFF, v. MICHAEL STAUB ET AL., EXECUTORS OF THE LAST WILL AND TESTAMENT OF PETER M. STAUB, DECEASED, AND ANGELINA PIZZIMENTI, AS LEGATEE, HEIR AND DEVISEE THEREUNDER, DEFENDANTS.
    Decided August 7, 1931.
   Lawtcence, S. C. C.

This is a motion made in behalf of the defendant Angelina Pizzimenti to strike counts two and three of the complaint filed in this suit, on the ground that they do not set forth a cause of action; that she cannot be held for the full amount of the debt pleaded; and that the matter set up is not within the purview of the statutes otherwise applicable.

Briefly stated plaintiff corporation seeks to recover of the named defendant a deficiency on a bond secured by a mortgage, alleging her to be a legatee and devisee under the will of Peter M. Staub, which bond and mortgage had been executed to plaintiff by Mr. Staub in his lifetime. It was later foreclosed in the Court of Chancery, and after the sale of the property covered, a deficiency of $18,438.49 in the debt resulted. It is this sum, with interest and costs, which plaintiff claims the right to recover of the defendant in question, claiming that she has received as a legatee under the will a share of the personal estate more than adequate to pay the debt, and as a devisee of certain described lands and real estate likewise under the will. These matters are set forth in the second and third counts of the complaint.

It is argued that both counts claim more than plaintiff would be entitled to recover and that both are, accordingly bad and should be stricken. The point is also made that the complaint discloses that there are two other legatees and heirs of the estate who have not been made parties to the suit, but who have received distributive shares and are beneficially interested as devisees and who would be equally liable for the debt in question, if it be established. That they should be regarded as necessary parties to the suit is doubtless true (see 18 C. J. 959, §§ 315, et seq., citing St. Mary’s Protestant Episcopal Church v. Wallace, 10 N. J. L. 311), but it does not follow that the criticised counts of the complaint should be stricken for that reason, or indeed the other reasons argued, in view of the power of amendment under the Practice act of 1912.

That the defendant legatee and devisee, in one or the other aspects of her relation to the estate, should not be required to respond for the entire debt deficiency out of her share or interest and then pursue the others who also have received shares or become entitled to interests for their pro rata seems clear. There appears to be no adequate reason in the circumstances why the other legatees and devisees should not be brought in, to the end that the issues raised may be completely and finally disposed of in the present litigation. Whether any of them are legally liable for the debt in question should be determined in the present suit.

In disposing of the motion, it may be said that the pleader has stated a cause of action in both counts of the complaint to which it is addressed, with the exception that it would appear that the present defendant is not liable for the entire amount sought to be recovered, but that her co-legatees and devisees are equally so with her, assuming the debt involved be properly proven at the trial. The motion to strike will be denied, but it is directed that the counts be amended by adding the names of the omitted legatees and devisees; that the amended complaint with a proper summons be served upon them, and that the present defendant be not required to answer until such amendment be made, in which event she may have fifteen days from the date of service thereof, to the end that all the parties in interest may be brought in, and the issués raised fully tried out.


text:
    DANIEL J. BARRY, RESPONDENT, v. BERGEN MEADOWS CORPORATION, A CORPORATION OF NEW JERSEY, AND SAMUEL W. SILVERMAN, APPELLANTS.
    Submitted January term, 1931
    Decided August 12, 1931.
    Before Gummere, Chibe Justice, and Justices Trenchard and Lloyd.
    For the appellants, I. Faerber Goldenhorn.

    For the respondent, James A. Hamill.

   Per Curiam.

This is an appeal by the defendant Samuel Silverman from a judgment rendered against him in the Hudson Common Pleas Court. The action was to recover $750 with interest based upon the following written agreement:

“This is to certify that we, Bergen Meadows, Corp., a corporation of New Jersey, are holding in escrow for Daniel J. Barry, the sum of seven hundred and fifty ($750) dollars.
We are to proceed immediately for the purpose of cancelling mortgage held by New York Mortgage Company, dated November 19th, 1917. Just as soon as the mortgage is canceled and cleared from the record, we are to return to Daniel J. Barry, or his heirs or assigns, to above-mentioned sum, namely, seven hundred and fifty ($750) dollars, which we are holding in escrow.
Bergen Meadows Corp.,
By (Sgd) Matthew J. Kurtz, President.
Attest:
Harry A. Birnbaum, (Sgd)
Secretary.
I, the undersigned, S. Walter Silverman, hereby agree to be responsible for the above money, in the event that' the Bergen Meadows Corp. does not return same immediately.
(Sgd) S. W. Silverman.”

The grounds of appeal are that the verdict was contrary to law, contrary to the judge’s charge, and that the court should have granted the defendant’s motion for a nonsuit because-of a failure of consideration and the defendant’s motion for the direction of a verdict in his favor because of a like failure of consideration, and because there was affirmative evidence that no consideration was paid for the making of the contract upon which the suit was brought.

The first two of these obviously raise no legal question. If the verdict was contrary to law or the jury disregarded the judge’s charge, the remedy was by rule for new trial and not by appeal.

We think it is quite clear that neither motion specified in the third and fourth grounds of appeal could, under the evidence, have been granted by the trial judge. As stated the suit was on the written contract. The complaint alleged that the mortgage mentioned in the agreement had been canceled and cleared from the record and this was admitted by the defendant’s answer. It was proven that the plaintiff Barry, in July, 1928, sold to the Bergen Meadows Corporation a piece of land upon which there was a mortgage, and, as appears by the agreement, the $750 was left in the hands of the purchaser in escrow as security pending its release, and the agreement for the return of this money was made and signed both by the Meadows corporation and by the appellant Silverman at the same time.

This consent undoubtedly made the making of the agreement and the retention of the moneys an adequate legal consideration for the obligation assumed by Silverman.

The principal contention of the appellant is that the Meadows corporation had incurred expenses in procuring the cancellation of the mortgage and that these substantially ate up the $750, leaving but a small balance of $42 due the plaintiff which had been tendered and refused. Leaving out of consideration the agreement itself, the plaintiff testified that the Meadows corporation assumed this burden and agreed to pay the cost of procuring the cancellation. While perhaps incompetent as evidence, this testimony was in the case without objection and could not be ignored.

We think, however, that the agreement itself was an absolute one to return the moneys upon the cancellation of the mortgage, not the moneys less so much as might be expended in clearing the title of the mortgage. The moneys were held as security pending the removal of the lien, but not as the means with which to secure its removal.

Appellant also seeks to present the question that this was a case of guaranty and that the plaintiff could not proceed against the appellant until it had exhausted proceedings against the Meadows corporation. Even if this were a sound proposition in law, it is not presented in any of the grounds of appeal nor was it presented to the trial judge on the motions referred to in these grounds.

The judgment is affirmed, with costs.


text:
    BOROUGH OF EATONTOWN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. THE AETNA CASUALTY AND SURETY COMPANY AND EDWARD P. HENRDICKSON, DEFENDANTS.
    Argued January term, 1931
    Decided August 12, 1931.
    Before Gummere, Chief Justice, and Justices Teen-chard and Lloyd.
    Eor the rule, Arthur T. Vanderbilt.

    Contra, McDermott, Enright •& Carpenter.

   Per Curiam.

This is plaintiff’s rule for new trial based upon two grounds: (1) That the judge should have directed a verdict in its favor, and (2) that the verdict is against the weight of the evidence.

The action was to recover from the defendant Hendrickson, the collector of the township, and from his surety, the Aetna Casualty and Surety Company, a large sum of money alleged to have been received by him as collector and not accounted for during a period of years, beginning in 1921 and ending in 1926.

Judge Lawrence, upon the case being presented to him, and it appearing that it involved long and tedious accounting, referred the matter to Halsted Wainright, Esquire, as referee, defendant reserving the right of a jury trial. After hearings the referee reported the sum of $29,125.10 as a shortage which, with interest, aggregated $34,328.75. Numerous exceptions were filed to the referee’s report but no action seems to have been urged upon or taken by the court respecting them.

The case came on for trial under the reservation, the referee’s report was offered in evidence, and the defendant’s proofs consisting of a denial of a shortage and the calling of .an expert accountant who attempted to discredit the referee’s report as being improperly based, were offered.

The plaintiff’s evidence in rebuttal consisted of the testimony of an expert who had already testified before the referee, verifying and justifying the findings of the referee, together with that of one of the councilmen who testified to an admission by the defendant that his shortage was substantial and of knowledge of an approaching meeting ■of council to deal with the situation. It was also shown that a few hours before this meeting a fire occurred in the defendant’s home, destroying vital portions of the official books of account which had that afternoon been ordered turned over to an accountant for examination. There was a verdict for the defendants.

Counsel for the defendants on the rule seems to concede in his brief, and conceded in the oral argument on the rule, that a shortage of at least $1,100 was disclosed and undisputed, but contends that the jury’s finding in favor of the defendant should not be disturbed on this account because the plaintiff’s counsel had demanded before the jury that it render a verdict for the shortage claimed and as reported by the referee with slight amendment or a verdict for the defendants.

We do not see how we can regard this contention as it does not appear in the case what position counsel for the plaintiff took before the jury, but quite apart from the concession of this liability, it seems to us the proofs in the case require that there should be a new trial on the whole case based upon the weight of the evidence. While the books of the defendant were not available in many respects, particularly those showing cash received and cash accounted for, the borough was able to show and did show tax receipts issued by the defendant aggregating the sum charged in the-referee’s account. Prom this were deducted all payments-made by him to the borough treasurer and the shortage-found by the referee resulted. It would seem that this was-an entirely proper method of reaching a just result.

The expert accountant called by the defendant asserted, in a general way that there were duplications in the receipts which would reduce or wipe out the balance shown, but was wholly unable on cross-examination to identify any substantial items of such duplication.

The impression made in reading the testimony is that the-defendant was guilty. of large abstractions of the_ borough’s-moneys; that he admitted the shortage to a councilman friend and recognized it by tendering his resignation on the eye of an investigation of his accounts. Whether the fire-which resulted so opportunely was accidental or by design must be left to conjecture, with such suspicion as the circumstances may attach to it in view of his resignation and the fact that it occurred in the night following the afternoon when a demand for the books had been made.

The rule will be made absolute.


author: Pee Curiam.

text:
    FIRST NATIONAL BANK OF MINOTOLA, PLAINTIFF, v. WALTER S. KEOWN, DEFENDANT.
    Submitted January term, 1931
    Decided August 12, 1931.

      Before Gummere, Chief Justice, and Justices Teen-chard and Lloyd.
    Eor the rule, Martín J. GreenilaU.

      Gonira, George D. Boihermel.

   Pee Curiam.

The action in this case was on a note made by the defendant, Keown, for $3,500. There was a verdict for the defendant, and the plaintiff has a rule for new trial. The reasons urged in the rule are that a verdict should have been directed for the plaintiff and that even if this were not so, the verdict was contrary to the weight of the evidence.

The defense was fraud and illegality in the making of the note and want of consideration. The facts developed in the case were substantially these: George Greis, in the latter part of 1925, borrowed from the bank the sum of $3,500, giving his note for that amount and assigning a mortgage covering property in Ocean City as collateral security therefor. The note was renewed from time to time. Later this property was purchased by Keown and when his last renewal note fell due, Greis informed the bank that Keown had purchased the property and that the bank should look to the latter for payment, at the same time requesting surrender of the note. The bank then wrote to Keown requesting a note from him and stating that Greis had informed the bank of the change in ownership of the property, adding at the end of the letter, “you understand that this note will not be called for payment until the mortgage is due and is only given to the bank as a matter of record and will be called when the mortgage is due.” On receipt of this letter Keown called the cashier of the bank on the telephone and a considerable conversation resulted. They differed as to what was said, Keown testifying that the cashier said that the bank would promise faithfully that the note would never be endorsed; that it was taken simply to show to the bank examiners; that it would never get out of the bank’s hands and that Keown would not be compelled to pay it. Keown says that when he had this conversation he was surprised to hear of the existence of a note, meaning the Greis note. The cashier denied that he had agreed to any limitation, in the use of the note in suit or that he had made any prom-, ise other than that the note would not be called until the-mortgage was due, July 6th, 1928. He also said that he-told Keown that Greis wanted his note, and that he had instructed the cashier to get in touch with Keown concerning; the renewal of the Greis note. He also testified that he returned the Greis note to that individual.

While in some respects this evidence might be deemed' inadmissible as varying the terms of a written contract, much of it was admissible as bearing on the claim that the note was taken to deceive the bank examiners. It is obvious, that if that was the purpose of the giving and acceptance of the note, it was a fraud rendering the transaction illegal and upon it both parties would be left without redress, one against the other.

On the evidence as presented the case could not have been withdrawn from the jury. The proofs respecting the illegality of the contract and want of consideration clearly required submission of the case to that body. Our examination of the proofs, particularly that portion dealing with the question of consideration, leads us also to the conclusion that the verdict as rendered was not against the weight of the evidence. While the note purporting to be for value received imported a consideration, the evidence in the case fairly rebuts such implication. Keown, so far as appears, was under no obligation respecting the mortgage on the property which he had purchased. It was not his own debt that the note was given for. The giving of the note was therefore al voluntary act without benefit to himself or detriment to the payee. There was no agreement between himself and the bank for any extension of the mortgage or that the Greis note would be surrendered if the defendant’s note were given. Any promise in that respect was wholly between the bank and Greis. So far as Keown was concerned it was under no obligation to do so. Except from the legal presumption arising from the note itself, the proofs were practically uncontradicted that the note held by the bank was without consideration and void.

The rule for new trial is discharged, with costs.


author: Peb Curiam.

text:
    ALVINA DRACHENBERG, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF CHARLES DRACHENBERG, DECEASED, APPELLANT, v. M. & M. TRUCKING AND FORWARDING COMPANY, INCORPORATED, RESPONDENT.
    Submitted January term, 1931
    Decided August 12, 1931.
    Before Gummebe, Chief Justice, and Justices Tbestchabd and Lloyd.
    Bor the appellant, Archie Elkins.

    Bor the respondent, Edward II. Baches (William B. Stites, of counsel).
   Peb Curiam.

This is an appeal by the plaintiff from a judgment in favor of the defendant in the Hudson Circuit Court. At the conclusion of the entire case on the trial, a verdict was directed for the defendant. To this direction an exception was taken and the action of the court is the basis of the present appeal.

The suit was to recover damages for the death of a five-year-old boy who was run over by a trailer drawn by the defendant’s truck, and the case made by the plaintiff developed little more than that an accident had happened in which the boy was killed. An effort was made to show that the boy was standing on the sidewalk and that the body of the trailer extended over onto the sidewalk and caught the boy. The trial judge deeming that this effort had failed, directed the verdict.

Two persons were called who claimed to have seen the accident, Cashin, a policeman, who testified that he saw the truck proceeding along Baldwin avenue; that he heard a scream and then say the rear wheel of the trailer run over the boy; that the boy was picked up about one and one-half feet away from the curb, his feet being nearest the curb and his body farther out; that when he heard the scream was when he saw the boy’s body being run over; that he had seen boys on the sidewalk before the accident; that the truck was coming about five miles an hour, and that he saw the boy under the wheel but did not know where he came from. The other witness, Jennie Pagano, who -was on her doorstep across the street and five doors below the place of the accident, first testified that the boy was on the curb when struck but later admitted that she did not see him struck, did not know where he was when struck, did not even know whether the deceased boy was one of the boys who had been on the sidewalk. The testimony of the defendant was to the effect that the boy was riding on the trailer.

In this state of the evidence we think the learned trial judge was right. The only possible element of negligence would be in some way finding that the overhang of the trailer had extended beyond the curb line onto the sidewalk and caught the boy in that position. The officer’s testimony would indicate that the boy was out in the street when struck. The woman’s testimony was of such uncertain character that no inference could be drawn from it as to the position of the boy or the trailer before the accident, or indeed that she had seen this boy on the sidewalk at any time.

The judgment is affirmed, with costs.


text:
    M. E. BLATT COMPANY, PLAINTTFF-APPELLANT, v. MAYER BOGATIN ET AL., DEFENDANTS-APPELLEES.
    Submitted May term, 1931
    Decided August 14, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Thompson <& Ilanstein.

    For the appellees, Samuel Morris.

   Pee Cueiam.

This is an appeal from a judgment entered upon a verdict in favor of the defendant below.

The facts appear to be that a piano was purchased1 from the plaintiff and it seems that one of the defendants, Mrs. Bogatin, with her son, Saul, upon one occasion, at least, went to the department store of the plaintiff and inquired about the purchase. There was a second visit, about which the proofs are in conflict as to whether the son alone appeared or whether his mother was again present with him. At the time the son was a minor, between nineteen and twenty years of age. He testified that upon this second occasion, he alone went to the plaintiff’s store and arranged that the piano should be sent to his home, which was that of his parents, the defendants, upon approval.

There is testimony to the contrary that upon this second visit both mother and son were present and the instrument was purchased by the mother. In fact it was charged to her account. It was subsequently delivered to the home of the defendants, at which resided the son, Saul, and other children, with their parent, and, upon delivery, was receipted for by the mother, Mrs. Bogatin. Not only was the purchase price charged to the account of Mrs. Bogatin she having an open account with the plaintiff, but she received several statements showing such charge. It also further appears that upon one or more occasions a representative of the plaintiff discussed with her the matter of payment. The son says he made the purchase himself; that the piano was sent upon approval, and that one Williams, a salesman of the plaintiff called upon him shortly after the delivery and in an endeavor to close the sale suggested that if it was a cash purchase ten per cent, might be deducted from the sale price, and the son, being satisfied with the piano, started to draw a check to the plaintiff for the sale price, less ten per cent., whereupon and upon the suggestion of Williams that the check should be drawn to his order so that he would obtain credit for such sale the check was so drawn and delivered to Williams. Such a check was presented, bearing the-endorsement of Williams and paid by the son’s bank, upon which it was drawn. Thereafter Williams disappeared and has never been located. The plaintiff never received any of the proceeds of such cheek.

The jury found in favor of the defendants and from the judgment entered on such verdict the plaintiff below appeals.

Several grounds for reversal are urged.

1. That it was error to permit proof of payment because such defense was not pleaded.

We think this is not so. Pleadings in District Courts are not so specific and exact as to require a definite plea of payment.

2. That it was error to refuse to direct a verdict for the plaintiff.

This we think is not so. The proofs as to who made the purchase were in dispute and properly presented a matter of fact to be passed upon by the jury.

3. The remaining ground is that it was harmfully and prejudicially erroneous for the trial court to instruct the jury as follows: “There is testimony and so far as I can recall there was uncontradicted testimony that one Saul Bogatin, the son of these people, gave to this person, Williams, who it seems was a piano salesman, Saul’s check for the price of the piano, $495. The question is whether or not that would be a payment which would be binding upon the M. E. Blatt Company, plaintiff, which was admittedly the employer of Williams.

The defendants claim it would be, and base their contention upon that principle of law that so far as Williams is concerned Blatt company would be the principal and Williams would be a servant and agent, and the law is that a principal is bound by the acts of his agent within the apparent authority which he knowingly permits the agent to assume or which he holds the agent out to the public as possessing. In other words, the defense says that the Blatt company placed this man Williams on its sales floor and allowed him to go there apparently with authority to sell pianos, musical instruments, victrolas and radios and receive the money therefor, and the defense invokes this principle of law that payment to such person or agent would be payment to the principal and this is the law.”

The proofs in the case were not in fact or effect in accord with this instruction.

Williams was merely a salesman on the piano floor of plaintiff’s department store.

There was proof, of course, that when he made sale of an instrument, and cash, in payment, was tendered to him by the purchaser, he had authority, then and there, to receive-the cash and deposit it with the sales slip with the floor cashier.

Beyond this there was no proof that Williams had authority, or was held out by the plaintiff to have, to receive money for it at any other time, under any other conditions, or at any other place. Nor was there any proof that the plaintiff had held out Williams as having any other authority in any previous transaction or business that the defendants had with the plaintiff.

The instruction left the jury in a position where it could have found, and probably did so far as anything appears before us, that the plaintiff was not entitled to a verdict, because whoever was the purchaser, the defendants, or their son, the plaintiff had nevertheless through Williams, as its agent, received payment in full.

Under the proofs in the case the instruction complained of was obviously erroneous and harmfully and prejudicially so and requires a reversal of the judgment below.

The judgment is reversed.


author: Pee, Cueiam.

text:
    LOUIS F. ROTHCHILD ET AL., TRADING AS L. F. ROTHCHILD & COMPANY, PLAINTIFFS-APPELLEES, v. RICHARD ABELES, DEFENDANT-APPELLANT.
    Submitted May term, 1931
    Decided August 14, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the appellant, Israel B. Greene.

    Eor the appellees, Saul & Joseph B. Cohn.

   Pee, Cueiam.

The plaintiffs below allege that they were authorized by the defendant on April 30th, 1928, to sell one hundred shares of stock of Hanover Eire. Insurance Company, and did make such sale on the same day to J. K. Rice, Jr., & Company at $88 per share, and on the same date forwarded notice and confirmation of such sale to the defendant.

The stock in question was in the possession of the North Ward National Bank. On May 7th, 1928, the plaintiffs tendered payment to the bank and demanded delivery of the stock. Such delivery was refused. Plaintiffs then went into the open market and purchased stock in order to make delivery to its purchaser. They were required to pay $652 more than the price at which they had sold to their customer and brought suit against the defendant for $500, waiving the difference in order to bring the cause within the jurisdiction of the District Court.

The cause was tried without a jury and there was a finding and judgment in favor of the plaintiffs for $500. Erom this judgment the defendant appeals, and urges four grounds for reversal.

1. That there is no evidence to sustain the action or judgment. It is urged that the action is for money had and received by the defendant for his use and that in such a case there can be no recovery unless there he a promise from the defendant, expressed or implied, and that here there was no such promise shown unless it is to be inferred from the confirmation of sale in the words “for his account and risk,” but that such an inference is not permissible because the meaning of this language was not shown. It is further urged under this point that when the plaintiffs made the sale to their customer their engagement was at an end and they were in nowise concerned that their principal, the defendant, did not make delivery to the purchaser. That such is not the law, applicable or controlling such a transaction requires and calls for no citation of authority.

The plaintiffs were responsible and answerable to their customer to whom they sold the stock of the defendant and for loss they sustained through the default of their principal, the defendant, and to the extent of any transaction which was within the terms of the agency between the plaintiffs and the defendant, the latter was answerable to them. 2 C. J. 793, §§ 458 et seq. (tit. "Agency”).

In such a situation and under such conditions and circumstances there is an implied promise in favor of the agent or broker. Rodman v. Weinberger, 81 N. J. L. 441.

2. That time was the essence of the contract between the plaintiffs and defendant.

In this respect there is a conflict in the proofs. The plaintiffs’ showing is that the authorization to sell was April 30th; that the sale was made that day and notice and confirm'ation thereof went to defendant on that date. On May 7th the plaintiffs received a letter from the defendant, dated April 30th, post-marked “Newark, May 5th,” and actually received May 7th, and which is as follows:

“In accordance with a conversation had with Mr. Harold Friedman of your office in Newark, we have sold one hundred shares of Hanover Fire Insurance Stock at $88 per share; these shares to be taken up by you not later than May 1st, 1928, at the North Ward National Bank, at Broad and Orange streets, Newark.”

At the receipt of this letter by the plaintiffs the date fixed therein for taking up the stock had passed by some six days, nevertheless the plaintiffs at once proceeded to tender the full selling price to the bank, which refused to accept it and deliver the stock.

The contention and testimony of the defendant was that his contract with the plaintiffs was to sell the stock on April 30th and make payment therefor, and take it up at said bank not later than the next day, May 1st, and that they having failed so to do he rescinded the contract and sold the stock in order to pay the amount he owed the bank and for which such stock was pledged.

Under these disputed facts the trial judge found against the defendant. In such a situation, where there are facts to support the finding, although in dispute, this court will not, upon appeal, reverse or set aside the findings of fact by the court below.

3. That the plaintiffs having previously brought an action in another court for the same cause and having there alleged that the transaction was one of sale and in another count that it was a brokerage transaction and having in such suit abandoned the first contention and having been nonsuited upon the second, there was established an election of remedies as against the plaintiffs prohibiting them from having the present action.

We find no legal substance in this contention.

4. That there is no legal evidence of damage.

This is likewise without any merit in fact or law.

At page 26 of the state of case, counsel for the defendant said: “We will admit for the purpose of shortening the case that that ($652) is the loss which they sustained, assuming that they are entitled to recover.”

The judgment under review is affirmed.


text:
    SAMUEL EICHENBAUM, PLAINTIFF-APPELLEE, v. MICHAEL BLANDA, DEFENDANT-APPELLANT.
    Submitted May term, 1931
    Decided August 14, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the appellant, Joseph J. Weinberger.

    Eor the appellee, Joseph iSiein.

   Pee Curiam.

The Ballard Oil Equipment Company, the assignor of the plaintiff below, entered into a contract with the defendant-appellant to install an oil heating apparatus in the building located at 40 Fourth street, Passaic, New Jersey. The total price was $1,000. The installation was completed in November, 1927, and a payment of $500 on account was made February 3d, 1928, leaving a balance of $500 unpaid, for which the present action was brought.

The defendant-appellant counter-claimed, seeking a repayment of the $500 paid on account, upon .the ground and insistence that the equipment was not satisfactory and was not in compliance with the contract.

The cause was tried without a jury and judgment was entered in favor of the plaintiff below.

Defendant-appellant appeals and urges—

1. That there was no evidence to support the judgment.

2. That appellant’s right to claim dissatisfaction was not waived by the payment of $500 on account of the contract.

3. That appellee in event of a right of recovery was not entitled to have the balance of the contract but only the reasonable value of the work done.

Now the contract does provide “money to be paid when heat and work are satisfactory to buyer.”

The testimony is in conflict as to how the payment of $500 on account was made. The appellant asserts that at the time the system was installed in November, 1927, he gave to the installing company a check for $500 post dated February 3d, 1928, and that at that time he had not had an opportunity of passing upon the question as to whether the system, work and heat were satisfactory under the contract.

The plaintiff's proofs are that this check of $500 was given and paid on the day it bears date, namely, February 3d, 1928.

We find the proofs to be such as to have warranted the trial judge in finding as he did and there being proof to support such finding it will not be disturbed by this court.

The third ground of appeal we find to be without merit.

The judgment below is affirmed.


text:
    E. K. MIDDLETON, TRADING AS THE MIDDLETON RADIO COMPANY, PLAINTIFF-APPELLANT, v. BERNARD KAVANAGH, DEFENDANT-APPELLEE.
    Submitted May term, 1931
    Decided August 14, 1931.
    Before Justices Campbell, Lloyd and Bodiste.
    For the appellant, M. LeRoy Bobbin.

    For the appellee, Bernard Kavanagh, pro se.

   Pee Cueiam.

This is an appeal from a judgment in favor of the defendant below in an action brought to recover the balance of installments due under a conditional sales contract for a radio. Because of the default in payment of one or more installments, when due, the action was brought to recover the entire balance of the purchase price.

The defendant was permitted to testify that he made the purchase through a salesman who did not tell him anything about a finance charge to be added to the purchase price. After the sale and execution of the conditional sale agreement, the seller assigned the same to a finance company to which the plaintiff-seller guaranteed the payments. The defendant further was permitted to testify that about three weeks after the purchase he called upon the plaintiff to service it, which request was refused because the contract had been taken over by the finance company, and thereupon the defendant told him not to repair it as he was dissatisfied with it and wanted him to take it back and return the money paid; that the defendant had received a letter from the finance company advising that $15 for finance charges had been added to the contract and that upon being informed of this the plaintiff said to the defendant: “Did not my salesman tell you that? I alwajrs tell my customers about the finance charge but if you are n°t satisfied I will take the radio back.”

The defendant further testified that the plaintiff failed and refused to take back the instrument.

One son of the defendant testified that he heard the plaintiff agree to take back the radio and that he heard his father, the defendant, make all of the statements testified to by him. Another son testified that he had written a letter to the finance company and also to the plaintiff demanding that a return of the radio be accepted and the money paid returned. A third son testified that the instrument was unsatisfactory. The salesman who made the sale to defendant testified that at the time of making the sale he represented to the defendant that if the radio was not satisfactory it could be returned.

The plaintiff, in rebuttal, testified that he never made the statement or offer to defendant or to any witnesses that he would take the radio back if it was unsatisfactory, and further, that the instrument was in absolutely perfect condition. He also testified that the defendant had the instrument on trial for three weeks before the sales agreement was executed.

The testimony of the defendant and his witnesses was received by the court over the objection of the plaintiff, and the court, sitting without a jury, found in favor of the defendant. Prom the judgment entered upon such finding the plaintiff below appeals.

It is urged that there should be a reversal because the trial court erred in admitting the testimony of the defendant and other witnesses respecting the taking back of the radio and that of the salesman.

Inasmuch as the execution of the written sales contract, delivery of the radio and the making of the initial payment were all admitted, the judgment of the trial court must have been based upon this objected to testimony, because, otherwise, upon the admitted facts the plaintiff was entitled to judgment.

The testimony objected .to was improper. That of the salesman because it went to vary the terms of the written contract, and that of the defendant and his sons because the agreement attempted to be established was entirely without a consideration to support it.

We conclude, therefore, that the judgment is without support in fact and must be reversed.


author: Pee Cuetam.

text:
    ELSIE V. LEACH, PLAINTIFF-APPELLEE, v. PEOPLES FIRE INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1931
    Decided August 14, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Richard Stockton.

    For the appellee, Ralph E. Giordano.

   Pee Cuetam.

This is an appeal from a judgment in an action to recover under a policy of insurance for loss of an automobile truck by fire. The cause was tried by the District Court judge and: a jury and resulted in a judgment in favor of the plaintiff-assured for $350. The amount of the policy was $500.

The first ground for reversal is error in refusing to non-suit.

That motion was based upon the ground “that the policy required proof of loss within sixty days after the loss or damage, unless such time is extended in writing by this company, the assured was required to submit to this company proof of loss signed and sworn to by the assured, stating the time and place and cause, &c. On the plaintiffs testimony it is admitted that a proof of loss was not filed with the company. There is no proof of any waiver of that provision in the policy and on that ground I would ask a nonsuit.”

Admittedly immediate notice of the loss was given by the insured to the insurer. This was effective because it immediately brought to the scene of the fire the adjuster of the defendant company, one Alexander. The fire took place June 26th, 1930, and this adjuster was at the place of the fire the next day.

It is equally true and uncontradicted that no formal proof of loss was filed.

Under Pamph. L. 1911, ch. 340, p. 717, none is required, notwithstanding a requirement to the. contrary in the contract, unless the insurance company shall, after loss, give sixty days’ notice that it requires such proof. The evidence in this case is entirely barren of any such notice or requirement by the defendant company.

Under such condition it was not error to refuse to nonsuit.

The next ground is error in the “discourse” during the trial upon the part of the trial judge in refusing to nonsuit.

The language which is the subject'of this attack was: “Ordinarily in an insurance policy all of the conditions set forth should be lived up to, and in this proof of loss paragraph it says that within sixty days the assured shall render a statement to the company, signed and sworn to, stating the place, time and cause of the loss or damage. This, apparently, was not done in this case, and the purpose, of course, is to inform the insurance company to what extent the insurance company must or should be liable for damage by fire. In this case the representative of the insurance company was notified verbally and immediately reported to the garage and personally observed the damaged truck, which apparently was a total loss, and there was no necessity for a detailed proof of damage. Ordinarily a question of this kind is a question of law for the court, but under the circumstances, I intend to put it to the jury in order to let them determine whether or not the proof offered covers the facts set forth in the insurance policy.” ,

Having in mind the provisions of the statute of 1911, supra, and the proofs in the case, we are entirely unable to see how any harmful, prejudicial error was caused by these remarks of the trial judge.

The next ground is that there was error in instructing the jury as follows:

“The company then comes in and says that because of the failure to send in a formal proof of loss, she is not entitled to recover; that she must send this proof of loss in within sixty days, otherwise the defense is, she cannot recover. In these policies they have a lot of provisions and you are supposed to follow them, and to follow them in great detail means considerable trouble. But in a way you should follow them. Of course they contend that Elsie Leach, having charge of insurance policies, should have known what to do, but she testified she wrote a letter in which she said her truck was burned and that as a result of this burning it was a total loss. There was some search for it but it was not found and I do not know whether the attorney for the defendant is conceding that such a letter was written. If you do say that it was written, I would say that it is sufficient proof of loss for you to bring in a verdict, if you find her entitled to a verdict.”

We are unable to see how there was anything erroneous or harmful in this instruction. Again referring to the act of 1911, supra, and the proofs, we think, as a fact, that the instruction was more liberal toward the appellant company than otherwise.

The next ground is also directed at an instruction to the jury, as follows:

“There is some talk about damages. The defense claims that each year the damages should be changed and diminished somewhat from what it was the year before. The plaintiff: says this is the custom. There is testimony that Bush, who has left and is not around here, asked $900 for the truck and Mr. Konner testified that it was worth $600 in his opinion. The policy calls for $500, so it is for you to say what you would consider the plaintiff should have if you say that she is entitled to anything. If you find that she is entitled to the judgment bring in a verdict for what you consider the judgment should be.”

This instruction may be somewhat legally inartistic but we are unable to comprehend how it was harmful to appellant. The limit of its responsibility under its contract of insurance was $500. Actually by the terms of that contract its liability was “an amount not exceeding the actual cash value of the property at the time any loss or damage occurs.” There was an objected to but otherwise uncontroverted proof that $900 had been asked for the truck and that it had a worth and value of $600 immediately before the fire. The verdict was for $350.

The remaining ground is not a proper ground of appeal. It is that the finding of the jury is against the weight of the evidence upon the question that the truck destroyed is the one that is insured.

The judgment under review is affirmed.


author: Pee Cukiam.

text:
    DOROTHY BROVACKO, PLAINTIFF-APPELLEE, v. THOMAS NICKOLOPULOS, DEFENDANT-APPELLANT.
    Submitted May term, 1931
    Decided August 14, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the appellant, John A. Matthews.

    Eor the appellee, Isadore Zucherman.

   Pee Cukiam.

The appellant is the owner of a building, one store in which he leased to the other defendant, Galante, and occupied by the latter as a fruit and vegetable market. Under this lease Galante had the privilege of maintaining a stand in front of the store. The plaintiff below alleged that as she was walking along the sidewalk in front of the store of Galante she slipped upon some vegetable leaves or other refuse, on the walk, and fell, receiving injuries for which alleged damage she brought suit against both the appellant, owner of the building, and Galante, the tenant, and upon a trial of her cause before the court, without a jury, succeeded in obtaining a judgment against both.

Nickolopulos, the owner, alone appeals.

The first ground for reversal urged is that the court erred in refusing to dismiss the complaint as against the appellant owner.

We think there was no error in this action because if there was proof produced to substantiate the charge we are inclined to think there would have been legal liability. However, we pass this without further comment or serious consideration.

The remaining two grounds, error in refusing to nonsuit and direct a verdict are argued together.

We think either or both motions should have been granted, so far as appellant is concerned. He was the owner of the property and occupied one of the upper floors as a living apartment.

The refuse upon the sidewalk, complained of by the plaintiff as the cause of her fall and injury, came there, if at all, through no act of the appellant or attributable to him and came solely through the act of Galante, the tenant, and person in possession of the store and stand.

It is further urged that the appellant, as owner, was liable because he created and maintained a nuisance upon the sidewalk by expressly giving authority to his tenant to maintain the stand thereon. Perhaps the stand may have been a nuisance as an encumbrance in the public highway, but if it was such, encroachment was not the proximate cause of the happening and injury to the plaintiff.

Eailing to find any proof of negligence chargeable, or imputable, to the appellant-owner, constituting the proximate cause of the happening of which the plaintiff complains, we conclude that the trial court erred in refusing to nonsuit and direct a verdict.

There will be a reversal of the judgment as to the appellant.