author: Kochbr, Advisory Master.

text:
    Essex County Orphans Court.
    In the matter of the estate of Joseph Vesper, deceased.
    [Decided September 17th, 1926.]
    Wills—Probate—Testamentary Capacity—Testator, a Very Sick Man, Had Lawyer Prepare Will in Many Respects Similar to an Earlier Will—Evidence Regarding Testator’s Capacity’ on Day of Executing, Conflicting, but Testimony of Lawyer and of Physician Seems Sufficient to Indicate Sufficient Capacity—Will Admitted to Probate.
    On caveat against probate of will.

      Messrs. Heine, Bradner & Laird (by Mr. Bradner), for the proponents.

      Messrs. Howe & Davis (by Mr. Film Maurice), for the caveator.
   Kochbr, Advisory Master.

Joseph Vesper, late of the county of Essex, died on the 17th day of March, 1926, leaving a paper-writing purporting to be his last will and testament. A caveat against the probate of the said paper-writing was filed by Carrie Lehmann, who, while not a next of kin of testator, and, therefore, without standing to caveat in that capacity, was, however, the beneficiary named in an earlier will, under which she would receive more than she received under the provisions of the will in question.-

Testator left him surviving as his nearest of kin a sister, Mary Salzmann, and his father, Joseph Vesper, who both reside abroad. Testator was in the habit of visiting his father and sister from time to time, making visits extending over as long a period of time as six months. He also left two stepchildren, the children of his deceased wife by a former marriage, John and Louis Roller by name.

At the time of his death, testator was residing with Mr. and Mrs. Lehmann, his sister-in-law and hrother-in-law, he having married Mr. Lehmann’s sister. He had been living with them ever since the death of his wife in 1923, and their acquaintance with him practically began from the time of the death of his wife, the testimony being that he rarely visited them prior to that date.

The will was prepared by Frederick W. Wilderotter, a member of the bar of this state, who had represented testator in numerous transactions and who had prepared at least one other will for him. Testator also left with Wilderotter his securities and other valuable papers while absent visiting his relatives abroad. The circumstances attending the preparation and execution of the will as testified to by Mr. Wilderotter as follows:

On the 15th of March, 1926, Wilderotter received a call from Mrs. Lehmann that Vesper wished to see him and that he was very sick. He went up to see Mr. Vesper and was shown to his room by Mrs. Lehmann. Mr. Vesper asked him to close the door and told him he wished to draw his will. Vesper was sitting up in bed and gave him instructions .as to the manner in which he wished to dispose of his property, after which Wilderotter went to his office to prepare the will and returned to Vesper’s house in the afternoon for the purpose of executing it; he took with him his stenographer to be used as a witness, as he did not know whether any other witnesses would be available or not.

When he arrived at testator’s- home he found that his brother, Philip Wilderotter, and his wife were present in the parlor, they having come to see Mr. Vesper in response to a call from Mrs. Lehmann advising them that he was very ill, the Wilderotters being distant relatives of testator. Wilde-rotter went alone to Mr. Vesper’s room, read the will to him and asked him if it was satisfactory, and was told that it was. He then asked testator who he wished to witness the will, and suggested that inasmuch as his brother Philip was downstairs, that he could act as a witness, and that he, Frederick Wilderotter, could act as the second one. This arrangement being agreeable to the testator, Philip Wilderotter was called and the two went upstairs together. Testator then asked for a newspaper or magazine on which he could sign his name, and one was secured and he was propped up and signed the will in the presence of the two Wilderotters. After he signed his name testator said: “Would it make any difference if Mr. Lehmann would sign his name as a witness?” adding that “it did not look well if he did not ask Mr. Lehmann to sign,” to which Wilderotter replied, “No, it is not too late.” So Mr. Lehmann was called into the room and Wilderotter told him that Mr. Vesper had signed the will and wanted him to sign as a witness, too. .He then asked Mr. Vesper, in the presence of his brother and Mr. Lehmann, wrether the paper-writing was his" last will and testament, and whether he knew the contents and wanted them to sign as witnesses, to which testator replied, “Yes.” Thereupon, Mr. Lehmann, Mr. Philip Wilderotter and Mr. Frederick Wilderotter all signed the will as witnesses in the presence of testator and of each other. Mr. Lehmann was not present at the time testator signed the will, and it is questioned whether or not testator acknowledged his signature before Mr. Lehmann. Inasmuch as there was a complete execution of the will in manner and form called for by the statute in the presence of the two Wilderotters, this question becomes purely academic and need not be considered.

The testimony of Philip J. Wilderotter as to the circumstances attending the execution of the will is practically identical with that of his brother.

As has already' been stated, the will was duly executed in the presence of two witnesses, present at the same time, yvho testified positively to all of the essential requisites to the execution of a valid will, and there can be no question but what the same was duly executed; in fact, the question of the due execution of the will has not been mooted, the attack being solely on the ground that the testator lacked testamentary capacity.

On this question the testimony is hopelessly in conflict. Wilderotter says that upon his call in the morning the testator, as has already been stated, conversed with him, although with difficulty; that he knew what property he possessed and what he wished to do with it, and that he was familiar with his estate and the persons who were the natural objects of his bounty. The will named Frederick Wilde-rotter as executor, as did a previous will drawn by Wilderotter. While testator was a very sick man and spoke with difficulty and with an effort, nevertheless, he did give him all of the facts which he afterward incorporated into the paper-writing offered for probate; that when he went to Vesper’s house in the afternoon to execute the will, testator was fully conscious nf what he was doing; that he read the will over to him and he expressed himself fully satisfied with the contents and, ás has already been said, requested that Mr. Lehmann act as a witness.

The will thus executed was not an unnatural one. It gave $10,000 each to his father and sister in Germany, remembered Mrs. Lehmann, as well as'his step-sons, contained two charitable bequests, and gave the residue to charity.

Eugene J. Lehmann, the third witness to the will, and the husband of Carrie Lehmann, one of the beneficiaries thereunder,-says that upon being called to the room by Frederick Wilderotter, he found Vesper lying on his side, facing a .window, with his back turned toward the occupants of the room; that Wilderotter had a paper in his hand which he showed him and said: “Don’t you think Mr. Vesper can write his name nice yet?” That he replied: “I suppose, I couldn’t see no name or nothing;” that he was thereupon requested to sign the paper without being told the nature of the document he was witnessing; that the two Wilderotters signed after him, and that he had no idea what it was he was signing, and that it was his custom to sign papers presented to him without inquiring as to their contents. Notwithstanding this fact, Mrs. Lehmann testified'that her husband told her after he came downstairs that he had signed a will. He also testified that during the whole proceeding Mr. Vesper lay with his eyes closed, showing no signs that he was paying any attention to what was transpiring. Mr. Lehmann further testified that testator had been unconscious for about four days prior to the execution of the will.

Mrs. Lehmann testified that she attended to Vesper’s needs during his entire sickness, but that she had not had any conversation on the loth instant, as he was unconscious all of that day, hut when asked as to whether during her attendance upon him Vesper replied to her questions, she answered, “not all the time;” that in giving him medicine or nourishment testator sometimes took the spoon and fed himself, and, when a glass of liquid was offered to him, he would take ahold of the glass and tip it toward his. mouth. She also testified that on the morning of the 15th Vesper told her that he needed to use his bedpan, which she procured for him.

Mrs. Scherer, a neighbor, who had come in to help Mrs. Lehmann on the 15th, testified that she saw testator many times during the day and that she assisted Mrs. Lehmann in placing poultices upon him ; that he was unable to talk except on two occasions, on one of which he complained that a poultice was too hot, and on the other occasion, while Mrs. Lehmann and herself were preparing a table by his bedside for the administration of the last rites of the church, and they were considering what to use to sprinkle holy water with, Vesper suggested that a little cotton would do.

Vera Sharp, a nurse, who was called in to attend Mr. Vesper during the night of the loth, testified that during the night he was in a semi-stupor, that he could say yes or no-, but very seldom, and was unable to hold any protracted conversation, and that he was unconscious when she left in the morning. She also said that when she first came she was introduced to Mr. Vesper, who shook hands with her and said, “Yes, yes, yes.”

On behalf of the proponent, Eather Kurz testified that he attended on the morning of the 15th to administer to testator the last rites of the church; that Yesper appeared to understand him and that he received responsive answers to questions asked him; that his condition was “semi-conscious, but he could be aroused to almost consciousness.”

Dr. Henry Norris, who called upon Yesper in a professional capacity twice on the 15th, said that he found him critically ill, but that upon being questioned, his answers were responsive ; that he thought he was 'able to hold a lengthy conversation if he cared to, but inasmuch as talking was more or less painful, he, apparently, avoided conversation as much as possible. The doctor further said that testator’s condition was not comatose at either of the times when he saw him, either in the morning or in the afternoon.

It is a settled policy of' the courts of this state to guard the right of testamentary disposition jealously. They hold that this right may be exercised by a person of very moderate capacity. In re Haness’ Estate, 3 N. J. Adv. R. 1651; Loveridge v. Brown, 3 N. J. Adv. R. 1050.

There can be no doubt that testator was very ill and was, in fact, dying, but the mere fact that a person is dying at the time of the execution of a will, standing alone by itself, is not sufficient to invalidate the will if it 'is shown that the dying person possessed testamentary capacity. Harris v. Betson, 28 N. J. Eq. 211; In re Gahagan, 82 N. J. Eq. 601; Andrew's Case, 33 N. J. Eq. 514; Ayres v. Ayres, 43 N. J. Eq. 565; O’Brien v. Dwyer, 45 N. J. Eq. 689. It is also settled that' the burden of proof is upon the party attacking the testamentary capacity of the testator. Trumbull v. Gibbons, 22 N. J. Law 117; Elkington v. Brick, 44 N. J. Eq. 154; Smith v. Smith, 48 N. J. Eq. 566; In re Craft’s Estate, 85 N. J. Eq. 125. The question thus arises, has this burden imposed upon the caveator been sustained by her ?

While the testimony is in hopeless conflict and there is testimony to the effect that testator was unconscious for from three to four da3rs prior to his death, still, this is contradicted by other testimony, and it would appear to be largely, if •not entirely, offset by the testimony of Dr. Norris, an entirely disinterested witness, who stated that testator was not in a comatose condition at any time during the 15th of March, the day of the execution of the will, and was during that day able to carry on an extended conversation if he cared so to do. The testimony of the Lehmanns is very unconvincing; they contradict themselves and each other, and, to use a mild term, is equivocal, and the same may be said of the other witnesses called by caveators with the exception of Yera Sharp, who attended testator one night, and whose opportunity of observing his condition was so slight as to make her testimony of little value.

There is another feature to this ease which plays a large part in its disposition. The testator gave his instructions to Wilderotter, a member of the bar of New Jersey, of unsullied reputation, who testifies positively and without equivocation that he received the instructions as to what the will should contain from Mr. Yesper, and that Mr. Yesper clearly made his wishes known. His testimony and that of his brother at the time of the execution of the will is equally positive as to the competency of the testator to execute the will, and, as a matter of fact, the will bears what purports to be the testator’s signature, which must have been made either by the testator himself or else by one of the Wilderotters, which latter supposition is not worthy of the slightest consideration. Another significant fact is that it was testified that when Wilderotter was about to leave, Mrs. Lehmann told him that Yesper had already made a will, and that Wilderotter requested her to show it to him, but that she declined so to do. The will in question was admitted in evidence and was executed by Yesper on the 18th day of October, 1924; it was drawn by the Lehmann’s attorney, and was, as to the general legacies therein contained, identical to the last will drawn by Wilderotter, the only real difference being that in the earlier will Mrs. Lehmann was named as residuary legatee and Mr. Lehmann was named as executor, while in the latter will Mrs. Lehmann was given $500 and an additional $500 if there were sufficient assets to pay the same, and the residue was given to charitable purposes. The fact that, in total' ignorance as he was as to the contents of the earlier will, Wilderotter was, nevertheless, enabled to duplicate it in most of its essential features, shows that he must have obtained the information from Vesper.

I have not overlooked the testimony of Mr. Edward Davis, who states that he received a message on March 16th from the Lehmanns that Mr. Vesper was very ill and requested him to call for the purpose of making a will, and that he went there with all the paraphernalia necessary for that purpose and upon being admitted to Vesper’s room was unable to arouse him, and, therefore, left without attempting to prepare a will. In the first place, his testimony relates to a condition twenty-four hours after the will in question was executed, and Dr. Norris testified that on March 15th Vesper was in a rapidly declining condition of health, and, in the second place, it is passing strange that the Lehmanns, who testified that Vesper had been unconscious for four days prior to March 15th, and was entirely incapable of executing a will on that date, should, on March 16th, call an attorney for the purpose of having him prepare a will.

I will advise a decree admitting the will to probate.


source: Caselaw Access Project

author:
Charles E. Corbin,
      Depuiy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELIZABETH CASSLER, PETITIONER, v. YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF CAMDEN, NEW JERSEY, RESPONDENT.
    Petitioner, a Matron of a Y. W. C. A.. Employed Twenty-four Hours a Day, Having Closed the House, Retired—Some Time Afterward She was Found Severely Injured and Unconscious —She was Unable to Account for Injury—Accident Clearly Arose During Course of Employment, but No Evidence That it Arose Out of the Employment.
    On petition for compensation.
    Eor the petitioner, William T. Boyle.

    For the respondent, Thomas J. Marshall.

   Hi ❖ ‘H

A petition was filed and served in the above-entitled cause, praying for compensation for injuries sustained by ElizabethCassler, the petitioner, because of an accident on December 21st, 1924, while in the course of her employment with the respondent, Young Women’s Christian Association of Camden, New Jersey.

An answer was filed by the respondent, and the case was set down for hearing, which hearing took place on January 7th, 1926. The matter came on for hearing before Charles E. Corbin, deputy commissioner of the workmen’s compensation bureau, at Fifth and Taylor avenues, Camden, New Jersey, in the presence of William T. Boyle, Esq., attorney for the petitioner, and Thomas J. Marshall, Esq., attorney for the respondent.

It appears from the stipulation and testimony in this case that, on December 21st, 1924, petitioner, Elizabeth Cassler, was employed as matron or housekeeper by the respondent, Young Women's Christian Association of Camden, New Jersey. Her duties appear to have been such that she had general care of the entire house, which was a rooming-house. On' the evening of the date in question the last thing she remembers is that she closed up the house about midnight and went to her room and to bed. She remembers nothing further.

About two a. m. one of the boarders was called to her room and found her on the floor saturated in blood from a very severe wound on the head. She was taken to the hospital in an unconscious and very critical condition and there was found to be suffering with a very extensive laceration of the scalp and fracture of the skull. There is absolutely no evidence how petitioner received the injury.

Prom the evidence it is proper to find that at the time she was in the course of her employment, because her work was of such a nature that she was in charge of the house twenty-four hours in the day, and while sleeping in the house she was acting in the course of her employment; but there is absolutely no evidence that she suffered an accident arising out of her employment. Under the Compensation law the burden is upon petitioner to prove that she suffered an accident arising out of and in the course of her employment. She has utterly failed to prove that the injury arose out of the employment, and there is no evidence sufficient to reach a conjecture. The leading ease in point is Schmoll v. Weisbrod & Hess Brewing Co., 97 Atl. Rep. 723.

Por the above reasons I must dismiss the petition and find judgment in favor of the respondent.

It is, therefore, on this 9th day of June, 1926, ordered that judgment be entered in favor of the respondent and against the petitioner, and that the prayer of the petitioner be denied and the petition dismissed.

Charles E. Corbin,

Depuiy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    AUSTIN CAVANAUGH, PETITIONER, v. SNYDER & ROBBINS, RESPONDENT.
    Doctor’s Compensation—Employer Took Employe to Hospital and Provided Legal Care—Employe’s Kinsman Insisted Upon Removing Employe and Procuring Other Medical Care— Held, That Employer Had Done His Full Duty and was Not Liable for Second Doctor’s Bill—Employe Cannot Dictate the Agencies Necessary to Render the Statutory Service.
    This is an action brought under the Workmen’s Compensation act for a recovery of medical expenses incurred by the petitioner who was injured as result of the falling of an elevator causing him serious injury. The facts of the case, briefly stated, are as follows:
    Immediately following the occurrence, Mr. Snyder, of the respondent company, called a physician and secured an ambulance and had the petitioner removed to the Ann May Hospital at Spring Lake. Shortly after reaching the hospital the injured man’s brother and sister came to the institution and insisted that the petitioner be removed to another hospital. Mr. Snyder urged the inadvisability of this action and plead with them to permit the young man to remain in the hospital where he then was under the care of the doctor selected by him. These relatives objected to this course so strenuously that Mr. Snyder left them, and after signing certain papers the brother and sister removed the injured youth to another hospital and placed him under the care of Dr. Taylor, and this action is to secure payment of the bills so contracted,
   OPINION.

A study of the above summary of facts fails to indicate wherein the employer fell short of meeting the requirements of the law. The history of the case shows that he took all necessary steps to furnish the medical service required of him. He even urged and plead with the persons who assumed charge of the injured to permit of the carrying out of the arrangements which had been made. I am unable to conclude that the employer is obliged to go further. If the injured person failed to reap all the benefits which were due him under the act, it-'was the result of no dereliction of the employer, but due to the injured man’s relatives, whose action deprived him of the service the employer stood prepared to render. The injured, person must hold them responsible for any miscarriage of the terms of the Compensation law.

The.statute does not grant to an injured man the privilege of dictating to the employer what agencies shall be employed to render the necessary service. Much less, then, does it delegate to the injured’s relatives this power.

The petitioner’s attorney contends that the petitioner cannot be deprived of his full rights under the act because he could not be bound by the actions of his brother and sister. I cannot see but that this statement is equally applicable to the employer, who also could not be bound by the actions of these relatives.

■ One of the provisos of paragraph 14 of the act specifies that the employer shall not be liable for ■ any amount expended by the employe or by any third person on his behalf, unless the employer shall have refused or neglected to supply medical care, or unless the circumstances are so peculiar as shall justify in the opinion of the workmen’s compensation bureau the expenditure assumed by the employe. In the present instance the employer did not refuse nor neglect to furnish the needed service, and we fail to find anything whatever peculiar in the circumstances of this ease. Under this proviso, therefore, this employer cannot be held liable for the obligations incurred by the third party on behalf of the petitioner.

OEDEE.

' It is, therefore, on this 22d day of June, 1926, ordered tbiat 'this action be' dismissed.

W. E. Stubbs,

Deputy Commissioner of Compensation.


author:
Hakky J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    BERTHA KELMER, PETITIONER, v. UNIVERSAL CHAIN COMPANY, INCORPORATED, RESPONDENT.
    Injury to Employe Through Having Her Hair Caught in a Machine—Claim That the Accident was Result of “Skylarking” —No Permanent and Only a Few Days’ Temporary Injury-Case Dismissed.
    Eor the petitioner, Heim, Bradner & Laird.

    Eor the respondent, Richard W. Balcer.

   The petitioner testified in her own behalf and on behalf of the respondent, Mr. John Netcher and Dr. John Steele were called to testify. It was stipulated by Attorney Laird before the hearing that he was making no claim for compensation because of neurasthenia.

When the petitioner testified she exhibited a spot on her head where the hair had been torn out, but the hair was growing in again and there were no signs of any scar on the head. The petitioner testified that she still suffered from headaches, and that some days, probably about once a week, her head began to hurt her so by noon of the working day that she had to lay off for the rest of the day. She, however, could not give the number of times that she had missed a half a day this way and was not very explicit about her complaints, and admitted that she went back to work within three days of the accident, and, except for the occasional half days, has been working steadily ever since.

Mr. Netcher testified for the respondent that the petitioner had been skylarking with a friend by the name of Cora Hope, and that while doing so she had knocked over some weights, and that then she leaned over to pick these up and just a few seconds later lie heard her cry and found that she had caught her hair in the running machine.

Dr. Steele testified that he had treated the petitioner and that she did not have any scar on her head, as the accident had merely broken off the hair short at the scalp instead of pulling away any of the scalp inself, and that in his opinion she had not suffered any permanent injury whatsoever, and that she had returned to work within three days of the accident.

Accordingly, from all the testimony in this case, I find that the petitioner has failed to prove that she sustained an injury by accident arising out of her employment, and I further find that the petitioner suffered no permanent disability, suffered no disfiguring scar, and failed to show that she had lost more than ten days because of the injury to the scalp, and, therefore, that this petition should be dismissed.

Accordingly, I hereby order that this case be dismissed without cost to either party.

Hakky J. Goas,

Deputy Commissioner.


author:
Habry J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    KSAWERY DEMBSKI, PETITIONER, v. E. LeMAURIER, RESPONDENT.
    Alleged Injury to Arm—Petition Failed to Prove Accident.
    Eor the petitioner, Edward B. Twardus.

    Eor the respondent, Richard W. Baker.

   The petitioner alleged the accident on August 4th, 1925, but when a report from his own doctor, Dr. Smith, was put in evidence, stating that he had treated the petitioner on July 14th, 1925, for injuries alleged to have happened on July 13th, 1925, the petition was amended to read July 13th. Dr. Smith’s bill of $55 was also put on the record.

Cn hehalf of the respondent, Mr. Ernest LeMaurier was called to testify, and testified that the petitioner did injure his arm on July 3d, 1925, but by referring to the payrolls, showed that he did not lose ten days’ time because of the accident. He further testified that he directed the petitioner to go to the New Jersey Manufacturers’ Casualty Insurance Company’s hospital, hut this the petitioner failed to do, and, accordingly, he is not entitled to reimbursement for his medical bills.

xlecordingly, I find that the petitioner has failed to prove that he sustained an accident arising out of and in the course of his employment either on August 4th or on July 13th, 1925, and that he has failed to prove that at any time he was absent from work for a period of more than ten days, and has failed to show that the services rendered by Dr. Smith were authorized by the employer.

Accordingly, I hereby order that the case be dismissed without costs to either party.

Habry J. Goas,

Deputy Commissioner.


author:
Charles E. Corbin,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ALVIN HENDRICKS, PETITIONER, v. PUBLIC SERVICE PRODUCTION COMPANY, RESPONDENT.
    On petition for compensation. On finding of facts, determination and order for dismissal.
   From the evidence submitted and the stipulations entered into between the parties, I have come to the following determination :

The petitioner in this case had been paid temporary disability at the rate of $11 per week from April 25th, 1925, to August 9th, 1925. It was admitted between the parties that this was all the temporary compensation to which the petitioner was entitled. The only other question involved was the extent of the permanent disability as the result of the injury to the left forearm. The respondent had paid the petitioner fifteen per cent, loss of function of the left hand, and then re-opened the case at the expiration of those payments and agreed to pay the petitioner twenty per cent loss of function of the said hand.

From the medical evidence submitted, I have come to the conclusion that the permanent loss of function sustained of the left hand by the petitioner was twenty per cent., and an •agreement having been entered into between the parties at an informal hearing on that basis, it is my opinion that the formal petition should be dismissed.

sK ❖ ❖ ❖ ❖ * *

Charles E. Corbin,

Deputy Commissioner.


author: Backes, Y. C.

text:
    James P. Bennett, complainant, v. Emma E. Orchard, defendant.
    [Decided September 23d, 1926.]
    A mortgage executed by a married woman on her separate estate without her husband joining is ineffective as a lien, but equity will declare it a lien if it was given to secure a debt contracted by her on the credit of her estate.

      Mr. Simon M. Seley, for the complainant.

      Mr. Wiliam 7. Azzoli, for the defendant.
   Backes, Y. C.

The bill is in the usual form, to foreclose a mortgage by a married woman in which her husband did not join. The document is ineffective as a mortgage lien and incapable of foreclosure. Realty Title and Mortgage Co. v. Schaaf, 81 N. J. Eq. 115.

The mortgage was given to secure a pre-existing debt, and does not come within the principle of the cited cases that a lien will be declared and enforced against the separate estate of a married woman for a debt contracted by her on the credit of her estate, and which she intended to charge therewith by the mortgage sought to be foreclosed.

Bill dismissed.


author: Ackerson, J.

text:
    Hudson County Circuit Court.
    AUTO BROKERAGE COMPANY, A CORPORATION, PLAINTIFF, v. AMELIA F. ULLRICH, DEFENDANT.
    Negotiable Instruments—Conditional Bills of Sale—Fraud in Sale —Replevin—Note Given to Secure Payment for Truck, Title Remaining in Vendor Until Payment—Upon Default, Replevin v Failed to Secure Return of Truck Because of Fraud, a 1920 Truck Having Been Substituted for a 1921 One, After Execution of Contract—Note Having Passed to Third Party in Due Course, Judgment by Default was Taken, Which it is Now Asked to Open on the Ground That the Matter was Res Adjudicata—Held, Not to be so—Fraud was a Good Defense to the Replevin Suit, but Not One to the Claim of a Bona Fide Holder of the Note Without Notice.
    For the plaintiff, Harry Green.

    For the defendant, Lazarus, Brenner & Vickers.

   The opinion of the court was delivered by

Ackerson, J.

This matter comes before me upon an application to open the judgment by default entered herein, in favor of the plaintiff and against the defendant, upon a promissory note. The parties have agreed upon a statement of facts from which it appears that on January 31st, 1921, the defendant purchased from the N. Y. Commercial Vehicle Co., Inc., an automobile truck and received a conditional bill of sale therefor, by which title was to remain in the.N. Y. Commercial Vehicle Co., Inc., until the truqk was paid for, and at the same time the defendant gave her promissory note for $3,996, payable in installments, in which it was stated that if any installment became due and remained unpaid, that the whole amount of the note would become due and the seller might repossess the automobile truck.

The defendant refused to pay the first installment of $333, on February 28th, 1921, upon the ground that there had been fraud and misrepresentation in the sale of the automobile truck, in that the N. Y. Commercial Vehicle Co., Inc., had caused a blank for the date of the manufacture of the truck to be filled in after execution, with the year 1920.

The note and the conditional bill of sale had been in the meantime assigned to the plaintiff in this action, Auto Brokerage Company, which company, after payment of the first installment of the note was refused, instituted an action of replevin to recover the automobile, and this action was decided in favor of the defendant, and as the statement of facts correctly sets forth, the jury found that the vehicle was to be a 1921 model instead of 1920, and that 1920 was inserted by the said N. Y. Commercial Vehicle Co., Inc., in the conditional bill of sale, subsequent to its execution. The sole question presented to the jury upon the replevin suit was, whether or not the N. Y. Commercial Vehicle Co., Inc., had perpetrated a fraud upon the defendant, and, of course, such fraud can be set up as against the assignee of the conditional bill of sale.

After the determination of the replevin suit, the assignee, the Auto Brokerage Company, brought suit upon the above-mentioned note and obtained a judgment by default, which is the one now sought to be opened, and this should not be done unless the defendant has a good and meritorious defense to the action, and the only defense which is suggested by the statement of facts is that the judgment in the replevin action is a bar to the present suit upon the note, because it is claimed that the matter is res adjudicatei. The plaintiff in the present suit, the Auto Brokerage Company, is a holder of the note in due course, for value and before maturity, and there is no suggestion anywhere that this company had any notice of any fraud perpetrated upon the defendant by its assignor, the N. Y. Commercial Vehicle Co., Inc., and while fraud was a good defense in the replevin suit as against an innocent assignee of the conditional bill of sale, nevertheless, it would not be a good defense against a Iona fide holder of the note who received it for value before maturity and without notice.

As was stated by the court in Mershon v. Williams, 63 N. J. L. 398 (at p. 401):

“A matter is not to be regarded res adjudicóla unless there be identity of the thing sued for, of the cause of action, of the persons and parties, and of the quality of the persons for and against whom 'the claim is made, and the judgment in the former suit be so directly in point as to control the issue in the pending action.” See, also, Hoffmeier & Son v. Trost, 83 N. J. L. 358.

It will be seen at once that in the case sub judice there is not an identity of the things sued for, because the replevin action was a possessory action to recover possession of a motor vehicle, • and this suit is to recover amount due on a promissory note, and surely the judgment in the replevin action is not in point so as to control the issue in this action, for it is already stated that fraud can be set up. against an assignee of a contract, but it- cannot be- set up against the holder of a note - in due course. • ■ :

Of course, it is ordinarily the rule that a judgment is res adjudícala as to all matters which were actually decided in the action as well as that which might have been¿ and while the parties to this suit upon the note are the same as in the replevin suit, nevertheless, the question as to whether or not' the Auto Brokerage Company was a holder in' due course of the note in question, so as to bar the defense of fraud in - the sale of the automobile truck, could not have been raised in the replevin suit, and so, inasmuch as there a,re two entirely different causes of action forming the basis- of the two suits, and the plaintiff in this suit is entitled to the benefit of its position as holder in due course of the note, the application to open the default judgment herein will be denied and an order may be presented in accordance with these views.


author: Pee Cubiam.

text:
    MICHAEL WILLNER, PETITIONER, v. SAMUEL KATZ, RESPONDENT.
    Submitted May 14, 1926
    Decided September 30, 1926.
    Workmen’s Compensation—Employe was Working With Employer When Injured by “Hold-up” Men—Held, That Injury so Received is Received in Course of Employment—When Attack is Aimed at Employe as a Personal Matter a Différent Situation is Presented.
    On certiorari to award in a workmen’s compensation case.
    Before Justices Pakkee, Black and Campbell.
    For the petitioner, Frank 0. Turner.

    For the respondent, Meisterman & Xatchen.

   Pee Cubiam.

The only question presented is whether there was an accident arising out of and in the course of the employment. Petitioner was working for and with his employer sorting live chickens, when suddenly a gang of hold-up men appeared, and called “hands up.” The petitioner, apparently, did not elevate his hands quickly enough to suit them, some one shot, and the petitioner was hit in the abdomen, his life being saved by a prompt operation.

The important question to consider is whether a “hold-up” of an employe and his employer, working together, is a situation which should be reasonably anticipated as connected with the employment. In these times, when such events are of; more than daily occurrence, we think there can be but one-answer. As a matter of common knowledge, every employe-with money of his employer in his custody or working in the neighborhood of the cash, may as well expect that something might happen. The bank messenger, the pay roll custodian, the collector, the cashier, and all working around them, are-, subject to the risk.

It is true that when the attack is aimed at the employe as a personal matter, or does not appear to be connected in any way with the employment, it is not considered as furnishing básis for a claim under the statute. Walther v. American, Paper Co., 89 N. J. L. 732; Schmoll v. Brewing Co., Id. 150. But in Foley v. Rubber Co., 91 Id. 323, where the risk' W'as a war risk, and in Emerick v. Slavonian Union, 93 Id. 282, where the injured bartender was trying to collect for his employer, and Nevich v. Delaware, Lackawanna and Western Railroad, 90 Id. 228, the injury was connected with the employment. We think that was the case here; if the petitioner had been carrying a pay roll, or had been cashier in a restaurant, the case would have been typical, but as we view it, no more plain than that before us.

The judgment of the Common Pleas affirming the award is, in turn, affirmed.


author: Pee Cueiam.

text:
    REALTY SECURITY CORPORATION, RELATOR, v. CITY OF EAST ORANGE AND JOHN G. SCOTT, BUILDING INSPECTOR, DEFENDANTS.
    Submitted May 14, 1926
    Decided September 30, 1926.
    Zoning—Apartment-house in One-family Restricted Territory— Alleged That Narrow Street and the Necessary Parking of Motor Vehicles Would Make Traveling Dangerous—Case Followed Pinelot Co. v. East Orange, and Writ Allowed.
    On rule to show cause why mandamus should not issue requiring the issuance of a building permit.
    Before Justices Parker, Black and Campbell.
    Eor the relator, Egan & Armstrong.

    Eor the defendants, Walter C. Ellis.

   Pee Cueiam.

The premises oí relator, on which it seeks to build an apartment-house, are situated in East Orange on the easterly side oí Prospect street, one of the important north and south arteries of traffic, and about two hundred and twenty-five feet south of Park avenue. This land is zoned by the ordinance for “small volume residence,” i. e., single-family detached houses. The existing physical situation in the vicinity is fairly well shown in the stipulation of facts:

“9. That Prospect street is built up with, one-family residences, excepting at the comer of Park avenue and Prospect street, where an apartment-house is built, which said apartment-house is about one hundred [100] feet distant from the herein-described land. That besides one-family residences and apartment-houses hereinbefore stated, there are built upon the said Prospect street, one thousand feet southerly, one church or temple, and one building used for club purposes. That Prospect street is a main artery for traffic running north and south.

“10. That Park avenue, East Orange, is a distance of one short block, or about two hundred and twenty-five [225] feet from the land whereon relator seeks to erect the apartment building in question, and is mainly a residence street, the buildings thereon containing stores and apartments, and the said Melmore Gardens is not yet fully laid out, but is a new street, which has been recently dedicated, and is about to be improved.”

The argument for the proposition that the ordinance as applied to this case is not unreasonable, as we take it from respondent’s brief, is “* * * that to permit the erection of apartment buildings on a narrow street, in front of which business cars will of necessity have to be parked, will create a condition such as will greatly increase the now perplexing problem of traffic regulation. The roadway of Prospect street is but thirty feet in width.”

A similar argument was made, and overruled by this court, in the case oí Pinelot Co. v. East Orange, 4 N. J. Mis. R. 341, where the lands were in a similar situation, just south of Park avenue on the east side of Harrison street, another artery of traffic, and relator wished to build stores in a zone of “large volume residence.” The argument has no more force in this case than in the other. Carried to its logical conclusion, the heavier the traffic the more rigid should be the zoning restriction.

The case seems clearly one for the allowance of a peremptory writ. Such will be the order.


author: Per Curiam.

text:
    FRANK MYSLIVEC, RELATOR, v. FREDERICK BIGELOW, BUILDING SUPERINTENDENT OF THE CITY OF NEWARK, AND THE BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, AND THE CITY OF NEWARK, DEFENDANTS.
    Submitted May 14, 1926
    Decided September 30, 1926.
    Zoning—Garage Enlargement in Restricted Territory—Facts Coni sidered and Held, That Ordinance in This Instance is Unreasonable—Writ Awarded.
    On rule to show cause for mandamus in zoning ea,se.
    Before Justices Parker, Black and Campbell.
    For the relator, George B. Sommer.

    For the defendants, Jeróme T. Congleton.

   Per Curiam.

Relator has now, and since 1918 has had, a public garage, the building 35 x 55, on a lot owned by him 100 x 118, on South Nineteenth street, Newark, between Seventeenth and Eighteenth avenues, about two blocks north of Springfield avenue. He wishes to enlarge his garage to 68 x 105 on the'same lot, and the zoning ordinance stands in the way. The question is whether, applied to the present situation, it is a reasonable exercise of the police power:

WTe are informed by relator’s brief, though the stipulation of facts does not distinctly exhibit this, that every comer of the block in which relator’s premises are situate is zoned for business; the part of the block embracing his premises is zoned for residences.

It is worth while to quote the stipulation in full so far as it covers the existing physical situation:

“7. The aforementioned premises, which is designated as being in a residential district under the terms of the aforementioned ordinance, is located two blocks north of Springfield avenue, a well-known business thoroughfare of the city of Newark, and it is also about a block and a half south of Sixteenth avenue, which street is zoned for and entirely devoted to business enterprises of all descriptions. The relator’s premises is between Seventeenth and Eighteenth avenues, Newark, New Jersey, both of which streets or avenues are zoned for business purposes. On the corner of Eighteenth avenue and South Nineteenth street there are six stores where various types of business are carried on. On South Nineteenth street, just south of relator’s property, and on the opposite side of the street, there is a delicatessen and grocery store. On the opposite side of the street and just north of relator’s property there is a large group of private garages, which start from the building line and run back the full depth of the lot. At the corner of Seventeenth avenue and South Nineteenth street, which is also within the business zone, and is about one hundred and fifty feet north of relator’s property, there are four stores which are occupied, and in which various businesses are carried on. Just a few doors north of this corner there is an ice and coal depot. At the corner of Sixteenth avenue and South Nineteenth street, a block and a half from relator’s property, and within the business zone, there is a public garage. To the rear of relator’s property there is another string of private garages used in a public manner.”

Bespondent seems to rely on Bloom v. Ventnor, 132 Atl. Rep. 243; 4 N. J. Mis. R. 174. That ease seems to ns as an authority in point for the relator. The ordinance as affecting the present application is, in our view, manifestly unreasonable.

A peremptory writ is awarded.


text:
    FINNEGAN v. McDONALD.
    Decided September 30, 1926.
    On application for re-argument,
    Before Justices Parker, Black and Campbell.
   Per Curiam.

After consideration of the matters set forth in the petition for re-argument, we conclude that the application should be denied.

Such will be the order.


text:
    CLARA G. SODEN. PETITIONER-PROSECUTOR, v. PUBLIC SERVICE TRANSPORTATION COMPANY, A CORPORATION, RESPONDENT-DEFENDANT.
    Submitted May 14, 1926
    Decided September 30, 1926.
    Workmen’s Compensation—Employe Being Conveyed to His Employment According to Custom, in the Care of His Employer, was Killed While the Car was Being Driven Out of Its Accustomed Course—Claimed That the Accident Did Not Happen During Course of Employment—Held, That There was No Evidence to Show That Deceased Employe Participated Actively in the Unauthorized and Unnecessary Detour, That He was Simply Being Conveyed in Employer’s Car by a Fellow-Employe, and That Accident Did Occur During the Employment.
    On certiorari to the Middlesex Pleas, which reversed the finding of the commissioner for claimant in a workmen’s compensation case.
    Before Justices Parker, Black and Campbell.
    Eor the petitioner-prosecutor, Joseph H. Edgar.

    Eor the respondent-defendant, James 0. Boyd.

   Per Curiam.

The plaintiff’s intestate, Raymond Soden, was one of four drivers of public service buses who were required to report to the night station master, named Guyer, shortly before six in the morning for duty, and were then put into a touring car driven by another employe, named Moller, to be taken to the garage, where they were themselves to take charge of their several buses and start out at their scheduled times. On the morning in question the men were assembled and the touring car started for the garage. It never arrived there to discharge its passengers. Some one in the party seems to have suggested that there was time enough to go on beyond the garage, cross the railroad tracks, and go a mile or so further to look at the scene of an accident that had occurred the day before, so the car, under charge' of Moller, went on to the place' of the 'accident, turned around and was crossing the railroad tracks on its return when it was struck by a train and all the occupants, with the exception of a man named Clark, and including Soden, were killed.

Several defenses were made, including one that SodeWs employment had not .begun because his time had not begun to run, but the commissioner properly brushed this aside. The real' point of the ease was whether, under the circumstances, the accident was one arising out of and in the course of the employment. If. the widow of Moller were suing in this ' case, it might be proper to hold that the divergence from his course for a purely. private errand would bar the claim. That, of course,.is not before us. When we come to the passive occupants of the ear, the question arises whether they are also barred because without their participation and, perhaps, against their protest, a fellow-servant undertook to take them somewhere not contemplated in the employment. The commissioner was justified, on the testimony of Clark, in finding that Soden, at least, had nothing to do with the deviation, though he was riding on the front seat with Moller. Clark said, in effect, that “someone in front” suggested going there; that he, Clark, said it would be no use because the thing had all been cleared up, but that Moller went on, and no one else said anything. We do not think that this misconduct of a fellow-servant should bar the petitioner as a deviation.

. As the commissioner was entitled to find,' Moller wished to go see the accident; he was entrusted with the driving of the car, and it was not for the others except in an extreme case to interfere with him for fear of themselves bringing on an accident.

Our conclusion is that the judgment of.the Pleas should be reversed and the award of the commissioner affirmed.


text:
    STATE OF NEW JERSEY, EX REL. SAVITZ-DENBIGH COMPANY, A CORPORATION, RELATOR, v. FREDERICK BIGELOW, SUPERINTENDENT OF BUILDINGS, ETC., ET AL., RESPONDENTS.
    Submitted May 14, 1926
    Decided September 30, 1926.
    Municipalities—Ordinances—Gasoline Stations—Ordinance Examined and Found Not to be Unreasonable—Provision That Such Station Should Not be Within Two Hundred Feet of School, Church, Etc.—Does This Mean Within Two Hundred Feet of Building in Question or Nearest Point of the Curtilage Upon Which Building is Erected?—Curtilage Within One Hundred and Five Feet, Nearest Building Thereon Two Hundred and Sixty-six Feet—Question Not Free From Doubt and an Alternative Writ Allowed.
    On rule to show cause why writ of mandamus should not issue.
    Before Justices Parses, Black and Campbell.
    For the relator, Thomas Brunetto.

    For the respondents, Jerom.e T. Gongleton and Charles M. Myers.

   Per Curiam.

Relators desire to erect a gasoline service station on the northerly comer of Lyons avenue and Willoughby street, in the city of Newark, and applied to the local authority for a building permit, which was refused on the ground that the case was within the prohibition of an ordinance previously enacted, the pertinent portion of which reads as follows:

“Section 6a. Special regulations relative to garages and service stations: Under no circumstances shall a permit be issued for the erection or enlargement of a public or commercial garage, as defined in the fire prevention code of the city of Newark, or for a motor vehicle service station or for the conversion of any premises not so used, to be used for such purposes, in any district, whether it be a business district or an industrial district, if any part of the lot or plot in question is situated within a radius of two hundred feet of—

“1. A public school;

“2. A duly-organized school giving regular instruction at least five days a week for eight or more months a year;

“3. A hospital;

“'4. A church;

“5. A theatre or opera house or other building used or intended to be used for theatrical or operatic purposes or for public entertainment;

“6. A public library; or

“7. A public art museum.”

It is now urged that a writ should go, commanding the allowance of the permit for two reasons—first, that the provisions quoted axe an unreasonable, and, therefore, unconstitutional, exercise of the police power; and, secondly, if this court holds otherwise, yet the present case is not within the terms of the ordinance.

The first point presents no difficulty, especially in view of recent decisions. In Schait v. Senior, 97 N. J. L. 390, an ordinance almost in the exact language of that under examination was considered by this couid and held entirely reasonable. The cases of Wittkop v. Garner, 132 Atl. Rep. 339; 4 N. J. Mis. R. 234, and Bauer v. Paterson, 132 Atl. Rep. 515; 4 N. J. Adv. R. 561, likewise in this court, presented a similar situation on the facts, and the ruling in Schait v. Senior was cited and followed. So far as concerns this court, the law is settled that such an ordinance is a reasonable exercise of the police power and will be enforced in the courts.

The other point is more substantial, and raises the question whether the language, “situated within a radius of two hundred feet of [1] a public school,” &c., means within a radius of two hundred feet of the building in question, or of the nearest point of the curtilage on which it is erected, whatever the dimensions of such curtilage. Diagonally opposite the rear corner of the lot proposed to be utilized for a gasoline station are the grounds and buildings of a church orphan asylum. The tract of land is about seven hundred and thirty feet in front on.Lyons avenue, and about seven hundred and eighty feet deep, and all the buildings are set well back from the street and toward the middle of the tract. The nearest comer of the land is one hundred and five and six-tenths feet from the nearest corner of relator’s premises; the nearest comer of the nearest building (marked “chapel and home”) is two hundred and sixty-six feet; of an outlying chapel, three hundred and twelve feet; of the “school building,” about three hundred and eighty-five feet. The cases just cited give no help on this point, except that in each of them the measurement was to the building, school, church, &c. The “Werts act,” relating to sale of intoxicating liquor (Pamph. L. 1889, p. 77; Comp. Stat., p. 2903, et seq.), had a similar prohibition, but the language was unmistakable. By section 11 (Comp. Stat., p. 2908), “no license shall be granted * * * in any new place within two hundred feet of the curtilage of a church edifice, school house or armory, measured between the nearest point of the same, and nearest point of the building wherein liquors are intended to be sold.” That language excludes the outlying curtilage of the liquor shop, and includes that of the church or school.

We incline to think that the present case is not within the ordinance; if not, relators are entitled to their writ; but as the case is not free from doubt, and respondents should have an opportunity of review, an alternative writ will be awarded.


text:
    THE STATE OF NEW JERSEY, ON THE RELATION OF ANNIE LOVE, RELATOR, v. HENRY C. WARNICK, AS TOWN ENGINEER OF THE TOWN OF WEST ORANGE, DEFENDANT.
    Submitted May 14, 1926
    Decided September 30, 1926.
    Municipalities—Building Permits—Zoning Ordinance Not in Question—Municipality Claims Right to Drain Across Lot Upon Which Relator Seeks to Erect Building—Relator is Willing to Build in Such a Way That Drain Will Not be Affected, but Municipality Claims Right .to Exclusive Occupancy—Municipality’s Title Obscure—Facts Should be Ascertained in Some Proceeding Inter Partes and Made a Matter of Record—Rule Discharged.
    On rule to show cause for a mandamus.

    Before Justices Parker, Black and Campbell.
    For the relator, Absalom P. Bachman.

    For the defendant, Alfred J. Grosso.

   Per Curiam.

This is a mandamus case directed toward requiring the issue of a building permit, but no zoning question is involved. The question presented is one of fact, and is, so far as it can be formulated from anything before us, what is the extent of the easement, if any, possessed by the municipality of West Orange, in the shape of a right to maintain .a public drain across the lands of the relator?

On the moving affidavits a rule to show cause was granted, but instead of depositions being taken, as required by the practice (Peer v. Bloxham, 82 N. J. L. 288), the parties present the case on ex parte affidavits. We do not wish to be understood as sanctioning this practice, even sub silentio, but the circumstances make some general statement of our •views on the merits advisable.

It is alleged in a general way that some years ago the township, needing drainage facilities, took proceedings under some statute not definitely cited, before some tribunal not named, and acquired some rights not defined, which were stated in writings, which are lost, the town hall having been' burned, and a mysterious box in the county clerk’s office, which may or may not have held the important papers, being found to be empty. By virtue of these.proceedings, or without them, the municipality has for many years maintained first an open, then a closed, drain through the lands of the relator, whose deed from his immediate grantor mentioned certain undefined rights in the municipality, and who is willing to build in such manner as that the drain,- as existing, shall not be disturbed. The municipality claims the right of exclusive occupancy of a strip twenty-five or thirty feet in width, unobstructed by buildings, and to this relator does not accede.

The rule looks to permitting a building according to a plan made part of the case, and marked Exhibit B, which shows a double building separated by an open strip containing the drain.

This rule cannot be made absolute; the facts are not settled and we cannot settle them on these affidavits. It may be that they will have to be settled by a jury in some way.

In Finger v. Doane, 121 Atl. Rep. 455, there was a question of fact as to whether the land to be built on had been dedicated as a public sidewalk, but there was no question as to its extent. We said in that case that owing to the fact that ejectment or a private action might be blocked by some municipal regulation, the facts could be tried out in mandamus on an alternative writ. The present case seems somewhat different. It is more like Rosenbaum v. Butler, 128 Id. 578; 3 N. J. Mis. R. 424, in which the rule was discharged and the parties told to resort to ejectment or other .private proceeding. That case we deem dispositive of this application. The facts should be ascertained in some proceeding inter partes, and the existence and extent of the right thereby settled as a matter of record.

The rule to show cause will be discharged, with costs.


author: Pee Oukiam.

text:
    F. L. & P. INVESTMENT COMPANY, A CORPORATION, RELATOR, v. THOMAS J. DOWLING, INSPECTOR OF BUILDINGS OF THE CITY OF ORANGE, RESPONDENT.
    Submitted May 14, 1926
    Decided September 30, 1926.
    Zoning—Stores in Single-Family Territory—Case Within Ignaciunas v. Risley and Krumgold v. Jersey City—Peremptory Writ Awarded.
    On rule to show cause for a mandamus.

    Before Justices Paekee, Black and Campbell.
    For the relator, Daniel J. Brennan.

    For the respondent, William A. Calhoun.

   Pee Oukiam.

This is a zoning ordinance case. The relator wishes to erect several stores on his property on the northwest comer of Scotland road and Argyle avenue, in the city of Orange, and a building permit was denied on the sole ground that the locality is zoned by the ordinance exclusively for single-family dwellings.

Eelator relies on Ignaciunas v. Risley, 98 N. J. L. 712, and in reply it is urged that that case is not controlling for two reasons—first, that another statute now applied, viz., chapter 146 of the laws of 1924 (Pamph. L., p. 324) ; secondly, that the character of building now desired is different from that considered in the Ignaeiunas case.

We are unable to perceive any substantial difference in the character of building which should lead us to a different determination, and so far as relates to the act of 1924, the case of Krumgold v. Jersey City, 3 N. J. Adv. R. 1546; 130 Atl. Rep. 635, cited for respondent, seems to us in point as requiring that the present mle should be made absolute.

A peremptory writ is therefore awarded.


author: Ingersoll, V. C.

text:
    Philip Marvel et al., complainants, v. Bershad’s Baths, Inc., defendants.
    [Decided October 7th, 1926.]
    Nuisances—Vibration Caused by Machinery—Excessive Noises From Motors—Smoke—Throwing Water From Windows— Hilarious Cries—Injunction Justified Only in Case of the Hilarious Noise During the Night Time.
    On bill for injunction. On final hearing.

      Mr. Samuel Morris, for the complainants.

      Messrs. Bourgeois & Coulomb, for the defendants.
   Ingersoll, V. C.

It is needless to restate the testimony. The application for injunction is based upon several grounds, which may generally be stated as follows:

1. Vibration caused by the machinery in the defendant’s building.

2. Noise of the motors used in connection with the oil burners.

3. Emission of smoke from the chimney, caused by the oil burners.

4. That water had been thrown from the windows of defendant into complainants’ property.

5. The hilarious noises, cat calls, &c., from the turkish baths.

The proof is not conclusive that the defendant’s machinery caused sufficient vibration, nor that the noise caused by the motors was of such a nature as to entitle complainants to relief. While there was proof that at times smoke was emitted from the chimneys, I do not find that it was of a sufficient quantity and nature to grant an injunction.

I do find, however, that the complainants are entitled to relief from the noises, made by patrons of defendants’, such as yelling, singing, cat calls, &c. This restraint must be limited, however, to the night time, as there is no sufficient testimony that noise of an objectionable nature existed during the hours of daylight.


author: Pee Curiam.

text:
    LEHIGH VALLEY RAILROAD COMPANY OF NEW JERSEY, LEHIGH VALLEY HARBOR TERMINAL RAILWAY COMPANY, UNITED REAL ESTATE COMPANY, NATIONAL STORAGE COMPANY, THE CENTRAL RAILROAD COMPANY OF NEW JERSEY AND THE LONG DOCK COMPANY, PROSECUTORS, v. THE STATE BOARD OP TAXES AND ASSESSMENT AND THE MAYOR AND ALDERMEN OF JERSEY CITY, DEFENDANTS.
    Argued June 8, 1926
    Decided October 7, 1926.
    Taxes and Assessment—Property of Railroad Companies Not Used for Railroad Purposes.
    On writs of certiorari.

    For the prosecutors, Mr. Robert J. Bain.

    For the defendants, Mr. Edward P. Bout, Edward L. Katzenbach, attorney general, and Thomas J. Brogan.

   Pee Curiam.

The writs of certiorari in these cases bring'hefore the court the assessments of prosecutors’ property for taxation for the years 1923 and 1924. There are six cases. The assessments were made by the local assessors of Jersey City. The property is owned by the prosecutors, but is not used for railroad purposes. The assessments were made as of October 1st, 1923, and October 1st, 1924. These cases are disposed of by what we said in the opinion in the case No. 245 (Lehigh Valley Railroad Co. v. State Board of Taxes and Assessment) for the years 1921 and 1922.

The testimony taken before the state board of taxes and assessment was returned with the writs in one printed volume.

A rule may be entered in accordance with the views above expressed.


text:
    UNITED NEW JERSEY RAILROAD AND CANAL COMPANY AND PENNSYLVANIA RAILROAD COMPANY, LESSEE; NEW YORK BAY RAILROAD COMPANY AND PENNSYLVANIA RAILROAD COMPANY, LESSEE; THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, THE LONG DOCK COMPANY, DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, LEHIGH VALLEY RAILROAD COMPANY OF NEW JERSEY AND LEHIGH VALLEY HARBOR TERMINAL RAILWAY COMPANY, PROSECUTORS, v. THE STATE BOARD OF TAXES AND ASSESSMENT, NEWTON A. K. BUGBEE, COMPTROLLER OF THE TREASURY, AND THE MAYOR AND ALDERMEN OF JERSEY CITY, DEFENDANTS.
    Argued June 8, 1926
    Decided October 7, 1926.
    Taxes and Assessment—Railroad Property—Assessments for the Year 1925.
    On writs of certiorari.

    Before Justices Pabkee, Black and Campbell.
    For the prosecutors, Robert J. Bain, Maximilian M. Stall-man and Albert G. Wall.

    For the defendants, Rdward P. Stout.

   Pee Curiam.

The writs of certiorari in these cases bring under review the assessments of railroad, property for the year 1935. The properties are the identical ones considered in case No. 303, &c., United New Jersey, &c., Railroad Co. v. State Board of Taxes and Assessment, May term, 1936. The assessments for the year 1935 are identical with the assessments for the year 1934. They were considered in the opinion of that case. They were submitted to the state board in 1934 record, and affirmed by a unanimous vote of the board. The same disposition is made of these cases as was made of those cases, and for the same reasons.

A rule may be entered to that effect.


author: Lloyd, J.

text:
    ALBERT L. LAWRENCE, PLAINTIFF, v. ROBERT H. REED, DEFENDANT.
    Decided October 5, 1926.
    Capias ad Respondendum—Application for Discharge From Arrest and Release of Bail—Held, Upon Facts as Presented There was Ample Justification for Writ and the Holding to Bail—Burden on Defendant to Show Plaintiff's Affidavit Untrue and Writ Improvidently Issued—This Burden Not Met.
    Eor the plaintiff, Quinn, Parsons & Dor emus.

    Eor the defendant, Homer D. Smith.

   The opinion of the court was delivered by

Lloyd, J.

This is an application to discharge the defendant from arrest on a capias ad respondendum. The action is twofold: the first count of the complaint alleging criminal conversation with the plaintiff’s wife, and the second and third counts alleging alienation of the wife’s affections for her husband. The defendant was arrested and held to bail on the order of a Supreme Court commissioner. On application an order was made by a justice of the Supreme Court to show cause why the defendant should not be discharged from arrest and his bail released, with leave to take depositions on the order.

On the taking of proofs the plaintiff’s counsel called the plaintiff whose testimony was taken and objected to by the defendant excepting in so far as to establish the fact of marriage, and this objection is pressed before me. No other testimony was taken.

No attack is made upon the original order, but it is contended that inasmuch as the husband could not testify in the criminal conversation phase of the action, his deposition taken under the order was incompetent and must be disregarded. I incline to think this contention is right, but this does not lead to the discharge of the defendant.

The sixty-second section of the Practice act authorizes a judge of the court out of which the writ may have issued to, on notice to the plaintiff, to make an order for the taking of testimony concerning the truth of the proofs upon which the order for bail was made and “if from the testimony so taken the judge shall be of the opinion that the order for bail should not have been made against any defendant, he shall upon terms make such order for his discharge from arrest and the discharge of his bail as the nature of the case may require.”

There was ample proof before the commissioner justifying the issuance of the writ and the holding to bail. If the affidavit upon which the order was made be true, the case exhibits a most flagrant violation of the plaintiff’s rights and of the debauchery of his wife. With the husband’s testimony eliminated this leaves the case stand precisely as it did when the order to hold to bail was made. The burden is on the defendant to show that the plaintiff’s affidavit on which the order for bail was made is untrue and the writ i'mprovidently issued. Tyler v. Allen, 31 N. J. L. 442. This burden he has not met and there is nothing before me to controvert the facts set out in the affidavit. The affidavit of the husband was competent to establish the preliminary facts upon which the writ itself could issue. Painter v. Houston, 28 Id. 121. Under' the provisions of the sixty-second section above cited there is no legal proof before me that the order to hold to bail was improvidently issued or should now bé disturbed.

As already indicated the affidavit being sufficient for the purpose the rule will be discharged. •


text:
    ANDREW NEDZA, PROSECUTOR, v. NEW JERSEY DEPARTMENT OF LABOR ET AL., RESPONDENTS.
    Submitted May term, 1926
    Decided October 7, 1926.
    On application for a writ of certiorari.

    Before Justices Parker, Black and Campbell.
    For the prosecutor, McCarter & English.

    For the respondents, Grosso, Brundage & Anderson.

   Per Curiam.

This was an application for a certiorari to review an order dismissing an application to. re-open an award by the deputy commissioner of the workmen’s compensation bureau dated December 18th, 1925.

The writ was refused by Mr. Justice Kalisch, and rightfully, as we think. The writ is therefore refused.


text:
    HARRY McCLOSKEY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS Of NEW JERSEY ET AL., DEFENDANTS.
    Submitted May term, 1926
    Decided October 7, 1926.
    Public Utility Commissioners—Review of Decision—Questions Involved All Ones of Fact—Was the Prosecutor Operating an Auto Bus With the Consent of the Municipalities?—Rule Discharged.
    On certiorari.

    Before Justices Parker, Black and Campbell.
    For the prosecutor, Palmer & Powell.

    For the defendants, Thomas Brown.

   Per Curiam.

A rule to show cause was allowed by the court, why a writ of certiorari should not be allowed to review a decision by the board of public utility commissioners, dated January 12th, 1926. Our examination of the record and the briefs, filed in this case, lead us to, the same conclusion as that of the board of public utility commissioners. The primary questions involved are pure questions of fact, one of which is, whether the prosecutor, Harry McCloskey, was operating an auto bus with the consent of the municipal authorities.

The rule to show cause is discharged.


text:
    MEADER ATLAS COMPANY, PROSECUTOR, v. FREDERICK BUEHL ET UX., DEFENDANTS.
    Submitted May term, 1926
    Decided October 7, 1926.
    Workmen’s Compensation—Injury Occurring During Course of Employment—Judgment Affirmed.
    On certiorari.

    Before Justices Parker, Black and Campbell.
    For the prosecutor, Edwards & Smith and Walter L. Glenney.

    For the defendants, Edward Stover.

   Per Curiam.

The certiorari was issued in this case to review a judgment of the Hudson County Court of Common Pleas, affirming an award made by the workmen’s compensation bureau in favor of the defendant Elizabeth Buehl. The accident occurred on December 17th, 1924. The prosecutor’s point in the case is that the decedent, Frederick Buehl, was not injured in an accident arising in and out of the course of his employment. The testimony taken'before Charles E. Corbin, the deupty commissioner in the workmen’s compensation bureau, is quite voluminous. Our reading of the testimony satisfies us that the conclusion reached by him was correct, and that it was not error for the Hudson County Court of Common Pleas to affirm the judgment. The judgment of that court is affirmed, and the writ of certiorari is dismissed, with costs.


text:
    TOWN OF KEARNEY, PROSECUTOR, v. THE STATE BOARD OF TAXES AND ASSESSMENT ET AL., DEFENDANTS.
    Argued June 8, 1926
    Decided October 7, 1926.
    Taxes and Assessment—Review of Reduction, by the State Board, of an Assessment—Board Reduced Assessment Upon the Recommendation of Its Own Expert, Ignoring the Testimony of the Municipality’s Experts, and Without Affording an Opportunity to Municipality to Rebut or to Cross-Examine— Held, That This is Not the Kind of Hearing That is Required in a Judicial Procedure.
    Oh certiorari.

    Before Justices Parker, Black and Campbell.
    Por the prosecutor, John H. Cooper and Hobart & Minará.

    ■ Por-the defendants, Edward L. Eatzenbach, attorney-general, and John Milton.

   Per Curiam.

The certiorari was allowed in this case to review a decision of the state board of taxes and assessment reducing the valuation -of the property of the Congoleum Nairn Company, made by the assessors of the town of Kearney, for the year 1925. The decision of the state board is attacked on the grpund, that it is not supported by any legal evidence and, in support of that contention, the prosecutor cites the testimony, of the president of the board (at page 281 of the record), vjz.: “That the board felt justified to some extent in ignoring the testimony of the experts on both sides, and taking the judgment of its own trained appraiser.” The board adopted in toto an appraisal of $2,657,628 made by Mr. Prank O’Connor, the clerk and field secretary of the board. No opportunity was given the prosecutor to examine it, rebut it, or cross-examine upon it before it was adopted as the judgment of the state board. This is not the kind of a hearing that is required in a judicial procedure. The hearing must be a real, not a sham, hearing; the parties have a right to support their allegations, if need be by proof, to determine whether there is need of proof the parties must know what they are to meet. Long Dock Co. v. State Board, 86 N. J. L. 592.

Such a procedure as is shown by this record, is not due process of law. Trenton, &c., Traction Co. v. Mercer County Tax Board, 92 N. J. L. 398, 402. The judgment to be sustained must be based upon evidence. Gibbs v. State Board of Taxes and Assessment, 3 N. J. Adv. R. 986.

For these reasons the judgment of the state board of taxes and assessment in this case is reversed and set aside.


text:
    CHARLES DREYER, PROSECUTOR, v. CITY COUNCIL OF THE CITY OF UNION CITY, DEFENDANT.
    Submitted May term, 1926
    Decided October 7, 1926.
    Municipalities—Ordinances—Auto Buses—Ordinance Alleged to be Without Statutory Authority and Unworkable—Ordinance Examined and Held Workable, and Not in Violation of Any Statute.
    On certiorari.

    Before Justices Pabkee, Black and Campbell.
    For the prosecutor, George L. Record.

    For the defendant, J. Emil Walscheid.

   Pee Curiam.

A certiorari was allowed in this case to review the legality of an ordinance passed by the city council of the city of Union City, in the county of Hudson, passed March 2d, 1926.

The ordinance is entitled “An ordinance to regulate and license auto buses.” The ordinance consists of thirty-three sections, to which is attached an elaborate schedule, providing for the times of the buses entering and leaving the city.

The prosecutor writes down three reasons for setting aside the ordinance: first and second, because the ordinance was passed in violation of the statute, and third, because the ordinance is unworkable and discriminatory and is an abuse of the discretion vested in the council.

We are unable to perceive wherein the ordinance is in violation of any statute under which the city is governed. Nor do we think the ordinance is an abuse of discretion vested in the council of the city. By the statute and by the very nature of the business conducted by the prosecutor, the city council must have a large discretion in controlling and regulating the business of auto buses, operating on the public streets of the city, for the safety and convenience of the traveling public. Our discussion of the reasonableness of an ordinance in case No. 271 of the present May term, 1926, is pertinent, although the case is not directly in point.

We are unable to see wherein the ordinance is illegal. The writ of certiorari is therefore dismissed.


text:
    GRIFFITHS PIANO COMPANY, PROSECUTOR, v. COURT OF COMMON PLEAS ET AL., DEFENDANTS.
    Submitted May term, 1926
    Decided October 7, 1926.
    Workmen’s Compensation—Certiorari to Review Finding of Common Pleas Court Determining That Death of William Roney Resulted From Accident Sustained in His Employment—Rule Discharged.
    On rule.
    Before Justices Pabkek, Black and Campbell.
    For the prosecutor, Clarence B. Tippett.

    Por the respondent, Charles Becker.

   Per Curiam.

A rule to show cause was allowed in this case why a certiorari should not issue to review a finding and determination of the Essex County Court of Common Pleas, remitting to the workmen’s compensation bureau the case, to determine the amount oí money due the estate of William Eoney for medical care and hospital services arising out of an accident from which William Eoney died on January 7th, 1925, and, also, to determine whether the death of William Eoney was the result of the injury sustained in the accident described, or was due to some cause other than the accident. Judge Porter, who heard the case in the Essex County Court of Common Pleas, filed an elaborate opinion, which is brought up in the printed book. We are satisfied with the disposition of the case made by Judge Porter. The rule is therefore discharged.


author: Pee Cukiam.

text:
    HACKENSACK WATER COMPANY, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL., DEFENDANTS.
    Submitted May term, 1926
    Decided October 7, 1926.
    On certiorari.

    Before Justices Paekee, Black and Campbell.
    For the prosecutor, Wright, Vander Burgh & McCarthy.

    For the defendants, Edward L. Katzenbach, attorney-general, and William C. Asper.

   Pee Cukiam.

This case is controlled by the case of the Hackensack Water Co. v. State Board of Taxes and Assessment, 4 N. J. Mis. R. 567, decided the present May term of the court. The writ of certiorari is dismissed and the taxes affirmed for the reasons stated in the opinion of that case.


author: Per Cuilam.

text:
    CONRAD C. HOFFMEIR, RELATOR, v. BOARD OF HEALTH OF CITY OF UNION CITY, RESPONDENT.
    Submitted May term, 1926
    Decided October 7, 1926.
    Offices—Effort to Try Title to an Office by Mandamus—This Cannot be Done, Nor Will the Writ be Granted Where the Facts are in Dispute or the Law is Not Settled.
    On application for writ of mandamus.

    Before Justices Parker, Black and Campbell.
    Por the relator, Robert Carey and Harry Lane.

      For the respondent, J. Hmil Walscheid.

   Per Cuilam.

This case comes before the court on a rule to show cause granted by Mr. Justice Minturn, why a writ of mandamus should not issue directed to the respondent, requiring' it to recognize the relator as a plumber and heating inspector of the city of Union City, and to permit him to perform the duties of such office and directing the payment of his salary as such.

It is too plain for argument, that in these proceedings the relator is making an attempt to try the title to an office. This cannot be done in a mandamus proceeding. Nor will the writ be granted, where the facts are in dispute or the law is not settled, as in this case. The rule to show cause is discharged, with costs.


text:
    JACK WEISS, TRADING, ETC., PLAINTIFF-PROSECUTOR, v. JOE SCHELSKY, DEFENDANT-RESFONDENT.
    Submitted May term, 1926
    Decided October 7, 1926.
    Attachment—Writ Set Aside Because Defendant was a Resident of the State.
    On certiorari.

    Before Justices Parker, Black and Campbell.
    Eor the prosecutor, Karkus & Karkus.

    For the defendant, Nathaniel J. Jacoby.

   Per Curiam.

The certiorari in this case was allowed to review an order made on the 16th day of. November, 1925, in the Perth Amboy District Court, setting aside and quashing á writ of attachment issued out of that court. The order was 'based on the fact that the defendant, Joe Sehelsky, was a resident of the state at the time the writ of attachment was issued. Our reading of the testimony taken before the judge of the District Court leads us to the same conclusion as. that of the judge of the District Court. The order of the court setting aside the writ of attachment is therefore affirmed.


author:
Haeey J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JENNIE ROSS, GUARDIAN OF JOHN RAPOLA, PETITIONER, v. LYCEUM THEATRE, RESPONDENT.
    Employe of a Theatre Died From an Abscess on the Lungs— Some Evidence That Her Cheek Had Been Injured as the Result of Contact With a Chair Arm—Evidence That Such an Accident Could Have Caused the Abscess Inadequate— Ail Other Evidence Fails to Connect the Cause of the Abscess With Her Employment by Respondent—Case Dismissed.
    For the petitioner, Nathan Rabinowitz.

    For the respondent, McCarter & English.

   This case was tried before me on formal petition and answer, at Paterson, on September 17th, 1925, and February 18th, 1926, the petitioner being represented by Nathan Rabinowitz and the respondent by McCarter & English. It in an action on a dependent’s claim petition for the death of Nellie Rapóla. There is some testimony to the effect that on December 8th, 1924, the deceased, while working for the respondent in the latter’s theatre, bumped her cheek on a chair arm. She died May 26th, 1925, from an abscess on the lungs.

Dr. Roemer, testifying for the plaintiff, did not treat the deceased, nor did he ever see her. In answer to a hypothetical question, he stated that in his opinion the blow to the cheek caused the lung abscess. He based this on an infection entering from an abrasion of the cheek. However, the entire testimony in the petitioner’s case is to the effect that there was no such abrasion. Dr. Bullen, testifying for the petitioner, first saw the deceased on May 6th, 1925, just prior to her death. He gives his opinion that the blow caused the lung abscess. His theory is that an infection was set up from a fracture of the maxilary bone. The hospital records, X-rays and testimony of the doctors who performed an operation.February 23d, 1926, on the deceased in the identical maxilary region, all of which are in the petitioner’s ease, show affirmatively that there was no such fracture. Dr. Yreeland, testifying for petitioner, treated the deceased- from February 16th, 1925, until some time after March 7th, 1925, and on February 26th, 1925, performed the operation referred to, with the Assistance of Dr. Levendusky. He states positively that the condition of the deceased was due to an inter-cranial mass, having no connection with the cheek or cheek bone. Dr. Levendusky, testifying for the petitioner, had no independent recollection of the case at all, but referring to his notes on his examination of the deceased at the time of her admission to the hospital found no reference whatsoever to any injury to her cheek. Dr. Dennion, testifying for the respondent, treated the deceased in the latter part of December, 1924. At that time her trouble was with her eyes and due to cranial pressure with no connection with the maxilary region, nor was there any sign of anything wrong there.

On the testimony, it is plain that the blow on the cheek did not result in, or have any connection with, the lung abscess from which the deceased died'.

❖ #

Haeey J. Goas,

Deputy Commissioner.


author:
Harry J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EDWARD J. CURREN, PETITIONER, v. W V. EGBERT & COMPANY, INCORPORATED, RESPONDENT.
    Injury to Clerk Resulting.in Lighting Up a Quiescent Form of Tuberculosis—Temporary and Permanent Disability.
    Eor the petitioner, Henry Carless.

    Eor the respondent, Arthur F. Mead.

   1. The petition was duly filed in accordance with the act entitled “An act prescribing liability of an employer to make compensation for injuries received by an employe in the course of employment," approved April 4th, 1911, and the acts amendatory thereof and supplementary thereto.

2. Process was duly served upon the respondent, who filed an answer to the petitioner’s petition.

3. The said Edward J. Curran, on the 2d day of November, 1925, was in the employ of the respondent as a clerk at the wages of thirty-five ($35) dollars per week. His duties consisted of getting out orders of plumbing supplies, and in the course of his said duties he had to lift heavy weights and perform heavy manual labor. On the said 2d day of November, 1925, while performing the said duties for the respondent, the base of a steam boiler, such as is used in residences-for steam-heating purposes, fell from another steam boiler and struck the petitioner on the chest forcing him down on the floor of the room where he was working. He became unconscious and remained so for about twenty minutes. This happened at about three-thirty p. m., and after he regained consciousness he went into the washroom, and while there he had a hemorrhage, losing at that time about one-half pint of blood. He then went home and went to bed soon after he arrived there, and about six-thirty p. M. that evening he had another hemorrhage, which was greater than the first one. He went to worl^ the following day and continued working for about two weeks from the date of the accident, and during that time had about two or more additional hemorrhages. On the day after the accident he visited his family physician and he prescribed medicine for him, and on the 16th day of November, 1925, the physician strapped the petitioner’s chest with adhesive tape. He was unable to do any work for three weeks following November 16th, 1925. He was weak and in continuous pain. He returned to work December 7th, 1925, and continued working until the 27th day of February, 1926, from which date he has been unable to do any kind of work, and is now suffering from tuberculosis.

4. It appeared from the testimony that the petitioner was suffering from tuberculosis in the year 1915. That he was sent to a tuberculosis sanatorium and at the end of about two months was discharged as being cured. From 1915 up to the date of the accident he was, apparently, in good health, worked steadily, and was able to perform heavy manual labor.

5. Doctor William J. Eumage and Doctor Edward McCabe testified that in their opinion the accident and injury to the petitioner lightened up a quiescent form of tuberculosis from which he had apparently been cured in 1915, into an active pulmonary tuberculosis, and that his present condition is a permanent one.

6. The said accident arose out of and in the course of petitioner’s employment with the respondent, who had actual knowledge of said accident on the day of the happening thereof.

7. By reason of said accident the petitioner has become weak, lost weight, has continuous pains in the chest, frequently has night sweats, suffers from an irritating cough, and since November 16th, 1925, has had nine additional hemorrhages, the last one being on the 23d day of May, 1926, and was unable to follow his usual or any other occupation from February 27th, 1926, until June 9th, 1926, being á period of fourteen and three-sevenths weeks, for which he is entitled to compensation at the rate of seventeen dollars ($17) per week, amounting to two hundred and forty-five dollars and twenty-nine cents ($245.29).

8. Said accident and injury produced, in addition to said temporary disability, a condition of active pulmonary tuberculosis, which condition is a permanent disability equal to fifty per cent. (50%) of total disability, for which permanent disability he is entitled to two hundred and fifty weejcs (250) compensation at the rate of seventeen dollars ($17) per week, amounting to four thousaid two hundred and fifty ($4,250) dollars.

********

Harry J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK ROMANOWSKI, PETITIONER, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, RESPONDENT.
    On finding of facts, determination and order for dismissal.
    Eor the petitioner, Hersfienstein & Finnerty (by Mr. Finnerty).
    Eor the respondent, James 0. Boyd.

   Erom the stipulations and evidence submitted by the petitioner and the respondent, it appears that the petitioner was forty-four years of age, was in the employ of the respondent on April 9th, 1925, and that on the aforesaid date he turned an electric switch, causing an arc, with the resultant flash which the petitioner alleges caused a total loss of vision of his right eye; that the right eye is totally disabled is not disputed, but the respondent contends that the loss of vision is due to an abscessed condition of the teeth, and that the electric flash could not and -did not cause a loss of vision. It is entirely a question of fact, and from the testimony of the eye specialists of both petitioner and the respondent, I have come to the conclusion that the total loss of vision from which the petitioner is suffering did not occur as the result of the electric flash to which he was exposed on April 9th, 1926.

* ❖ * H* % * ❖ ^

Charles E. Corbin,

Deputy Commissioner.


text:
    Tilsey H. Whitten, petitioner, V. Ralph S. Whitten, defendant.
    [Decided October 14th, 1926.]
    A husband who lives where his wife is not permitted to stay, call upon or communicate with her, is guilty of desertion. His inability to support her is an immaterial incident.
    On exceptions to master’s report.

      Messrs. Howe & Davis, for the exceptant.
   Backes, Y. C.

This matter is np on exceptions to a master’s report adverse to a divorce on the ground of desertion. The parties were married in June, 1921, and separated the following November. In the meantime they lived with the petitioner’s parents for a while, then went to housekeeping for a short period and finally landed in the home of the defendant’s mother and step-father in Ne-tf York, a small apartment, to which they had not been invited. The mother being in need of their bedroom to accommodate a daughter who was about to visit with some members of her family, asked the petitioner to make way, intimating that she thought her husband was doing quite enough to support her son, whereupon petitioner left, returning to her parent’s home. Her husband remained. Erom two letters written by the petitioner to her husband shortly after the separation the master deduced that she left of her own will and that he was not responsible for her departure. She left under the pressure of her mother-in-law’s invitation, but not willingly.

The master was also influenced in his judgment that the defendant was not guilty of desertion because his illness prevented him from supporting his wife. That, in the circumstances, is an immaterial incident. Not only did he not support her, but he remained where his wife was not permitted to stay, and in the second of the two letters written by him to her, November 17th, 1921, he stated that “we would both be better off and much happier without further correspondence,” and from that time has not called upon nor communicated with her—he ¿bsolutely ignored her. A case of desertion is made our and the wife is entitled to a divorce.

Exceptions sustained.


author: Per Cueiam.

text:
    SAWER GLOWACKY, ADMINISTRATOR AD PROSEQUENDUM OF MICHAEL GLOWACKY, DECEASED, PLAINTIFF-RESPONDENT, v. SHEFFIELD FARMS COMPANY, DEFENDANT-APPELLANT.
    Decided October 18, 1926.
    Legligence—Death of Boy Resulting From Fall From Running Board of a Milk Truck—Plaintiff Claimed Boy was Employed by Defendant’s Driver—Evidence Shows That Defendant Did Not Authorize Drivers to Employ Assistance, That it Had No Knowledge That They Were Doing So—There Also was No Evidence That the Driver in Question was Doing' So, Nor That He Knew the Boy was on the Truck—Boy Held a Trespasser, and Judgment for Plaintiff Reversed.
    On appeal from the Hudson County Court of Common Pleas.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the appellant, Autenrieth & Gannon.

    For the respondent, Alexander Simpson.

   Per Cueiam.

This is an appeal from a judgment entered on the verdict of a jury in the Hudson County Court of Common Pleas in favor of the plaintiff below against the defendant below for the sum of $6,000.

The plaintiff’s decedent was a minor, thirteen years of age at the time of his injury and death. The defendant is a corporation selling and dealing in milk at wholesale and retail. ’The milk was received and obtained by it in the Pennsylvania Railroad Company’s yards, at Jersey City, from the latter’s freight cars. On the 17th day of October, 1924, the plaintiff’s decedent was run over and killed by one of the trucks of the defendant company. The plaintiff brought his action against the defendant under the Death act, to recover the pecuniary loss sustained by the decedent’s father and brother, alleging as the cause of decedent’s death defendant’s negligence, and which action resulted in a verdict and judgment thereon against it, as above stated. Eor the conduct of its business the defendant had in operation many motor trucks, amongst which was a nine-ton Mack truck, which, on the day in question, at about five o’clock in the afternoon, in charge of a chauffeur, accompanied by á helper, was being driven to the Pennsylvania Railroad Company’s :yards at the foot of Exchange Place, Jersey City, to deliver a load of empty milk bottles and to take a load of filled .bottles of milk and milk in cans.

There was uncontroverted proof that the drivers were expressly forbidden to hire anyone to help them in the discharge of their duties, and, in .'addition, notices .to that effect -were conspicuously posted at the place where the driver called for :their trucks.

There was some evidence in the cause that on several .occasions the driver’s helper requested lads ranging from twelve to fifteen years to help the driver, and that the latter would compensate them for their work with a bottle of milk. There was no testimony that these acts of the helper or driver were ever brought to the notice of the defendant company, or that it had knowledge of any such conduct as .attributed to them.

Richard Williams, aged fifteen, who claimed to be one of the boys employed to help in loading and unloading the 'truck, called by the plaintiff, testified that he helped the helper; that it was the defendant’s helper who asked him whether he wanted to help the chauffeur, and upon saying yes, started in to help. Williams further testified that shortly ■before the happening of the accident he hailed the truck at Grand and Washington streets, about two and a half blocks ¡from.the river front, and rode to the ferry entrance; that ■the driver slowed up to let him on; that he got on the “run 'board,” that is_ where he rode, and while there the defendant’s helper got off at the' Hudson terminal, in Jersey City. ■Whether Williams got on the driver’s seat after the helper •left the truck is in some confusion. Williams, according to •his testimony, rodé two blocks and a half on the running board. He says, later on, that he was sitting on the driver’s seat next to the driver, and that the helper was also sitting in the same seat, and it may be that when the helper left he took the vacant seat. At any rate, the witness testified that the truck had entered through the gate and had gone abont ten feet when he saw the plaintiff’s decedent running through the car house and make an attempt to get hold on the side of the grip when he said: "Chauffeur, wait, hero’s a little boy that will help you. And I put out my hand to get him, but he kept right on, and when I turned around again to look the boy was not there.” The witness further testified that he saw the decedent standing on the running hoard, and while he spoke to the driver the decedent disappeared; that at the time the decedent attempted to board the truck it was going fast. There was’ an utter absence of proof that the driver saw the' decedent, or that he saw or knew that the decedent was standing on the running board.

Viewing the testimony most strongly in favor of the plaintiff and accepting the plaintiff’s theory that it was the habit of the driver to hire hoys to help him, we are confronted with the unchallenged situation that the driver’s act in that regard was unauthorized and in defiance of express orders of defendant not to engage in such practice, and, furthermore, that the defendant'company was unaware of the practice in disobedience of its express orders. Eor this reason alone the plaintiff’s decedent was disentitled to recover. An equal bar to a recovery is the undisputed fact that the plaintiff’s decedent was running for the truck and was aware that it was not slackening its speed, hut was going fast, and, hence, was not going to stop for him and take him on, nevertheless, he made the attempt to hoard it and succeeded in obtaining a momentary foothold, when he either slipped or fell off through the ordinary movements of the vehicle. There being no proof that he was invited to get on, but, on the contrary, made the attempt to board the truck as above stated, he was there as a trespasser, and, therefore, there was no legal duty owing fo' him from the defendant except to refrain from inflicting upon him a willful and wanton injury.

Eor the reasons stated, the judgment is reversed.


text:
    ANNIE LOVE, RELATOR, v. TOWN OF WEST ORANGE ET AL., RESPONDENTS.
    Decided October 20, 1926.
    Mandamus—Rule to Show Cause—Ex Parte Affidavits Instead of Depositions Submitted by Consent—It Probably Would Have Been Better to Have Refused to Receive the Case on That Basis, Since Counsel Now Claims These Affidavits “Befogged” the Case—Re-argument Cannot Help the Case— Mixed Question of Law and Fact Involved, Which Cannot be Settled in This Proceeding.
    On application for re-argument.
    Before Justices Parker, Black and Campbell.
    Eor the applicant, Absalom, P. Bachmm.

   Per Curiam.

This was a rule to show cause for a mandamus. Instead of taking depositions on a notice pursuant to the rules and practice in such cases (Peer v. Bloxham, 82 N. J. L. 288), counsel seems to have consented tacitly, or expressly to submit their respective causes of fact to the court on ex parte affidavits; and this was done. It would probably have been better, in view of the present application, for the court to refuse to receive the case on that basis, because counsel now claims that the relator’s case was injured because the ex parte affidavits for defendant “befogged” the issue. The court, applying the fundamental rule that a writ of mandamus will not go unless the facts are settled and the law clear, discharged the rule.

We are unable to see how a re-argument can help the matter. As already pointed out, the existence of some sort of easement of drainage over relator’s lands in favor of the respondent is clear beyond peradventure. Eelator wishes a writ to enforce a permit for a specific building in a specific place over or adjoining the existing drain—whether this eonflicts with the easement is a question of mixed law and fact which, as we said before, cannot be settled in this proceeding. No re-argument can clear up this difficulty.

A re-argument is denied.


text:
    BOULEVARD CORPORATION, RELATOR, v. JOHN SAUL, SUPERINTENDENT, ETC., CITY OF JERSEY CITY, ET AL., RESPONDENTS.
    Argued October 6, 1926
    Decided October 13, 1926.
    Building Permits—No Zoning Ordinance Involved—Relator Seems to Have Complied With the Building Code—No Sufficient Reason Presented for Not Granting Writ.
    On application for a writ of mandamus.

    Before Justices Parker, Black and Campbell.
    For the relator, Harry Lane.

    For the respondents, Thomas J. Brogan.

   Per Curiam.

Eelator desires a building permit, and has complied with all municipal requirements as contained in the building code. No zoning ordinance is involved. Permit seems to have been refused because some of the neighbors objected.

When this case was opened for argument on October 6th, counsel for the city was apprised that relator seemed to be plainly entitled to a peremptory writ of mandamus, and that such writ would be awarded unless some cause to the contrary appeared in the brief of the city, not then ready, but which was to be submitted within five days.

Such brief has been submitted, and we have examined it, and do not find therein any sufficient defense to the award of a writ; which is accordingly allowed.