author: I\ ocher, Advisory Master.

text:
    Essex County Orphans Court.
    In the matter of the estate of Henry M. Oliver, deceased.
    [Decided April 24th, 1925.]
    Accounting — Executor1—Exceptionsi—Insurance Payments to Executor Personally Under the “Facility of Payment Clause” of Policy, Accountant Must Charge Himself With Payment;— Evidence Showed That Accountant Should Charge Himself With Value of Diamond Ring, Ownership of Which was In Dispute — Fiduciaries Not Entitled to Commissions! Until Allowed by Court — Rules in Cases Where Business of Testator is Carried on by Trustee With and Without Authority-Burden of Proof on Accountant to Sustain Account — Payment of Usury to Secure Money to Pay Estate Debts- Not Necessary, at least Not In Present Case — Exceptions Must be With Sufficient Fullness to Enable- Adversary to Meet Them With His Evidence.
    On exceptions to account.

      Messrs. Wolber & GiThooly, proctors for accountant.

      Mr. Henry L. QuackeribusTi, proctor for exceptant.
   I\ ocher, Advisory Master.

Ellis S. Oliver, the executor of the last will and testament of Henry M. Oliver, filed his account as such executor, to which account Ethel D. Eeytel, one of the residuary legatees under the last will and testament of the said Henry M. Oliver, deceased, has filed nineteen exceptions, which will be considered in their order.

In and by her first exception exceptant seeks to surcharge the accountant with the sum of $1,000, the proceeds of an insurance policy issued by the Aetna Insurance Company on the testator’s life.

It was stipulated by counsel that this exception should he allowed.

In and by her second exception exceptant seeks to surcharge the accountant with the sum of $618.96, being the proceeds of certain insurance policies on the testator’s life, commonly known as industrial policies, which were issued by the Prudential Insurance Company.

The accountant, in his testimony, admitted the existence of these policies, and stated'that he believed they amounted to $578.92. He, however, denies having collected them from the insurance company, or having received a check for their proceeds, although he says that he did receive the proceeds. The cheek issued by the insurance company, in payment of these policies, was put in evidence, and I am satisfied that accountant did, on or before March 25th, 1915, receive from the insurance company its check for $618.96, representing the proceeds of these policies, which check was made payable to him individually, and was endorsed by him individually, and not as executor.

The testimony is convincing that these insurance policies, by their terms, bind the insurance company to pay the proceeds thereof upon the death of the insured to his executors or administrators, unless settlement should be made under the provisions of the so-called “facility of payment clause,” which each policy contained, and which provided, in substance, that the insurance company might pay the proceeds of the policies to any relative by blood or connection by marriage of the insured, or to any other person appearing to the company to be equitably entitled to the same by reason of having incurred expense in any way on behalf of the insured for Ms burial, or for any other purpose, and that the production bjr the company of proof that payment to any or either of said persons should be conclusive evidence that such sum. had been paid to the person or persons entitled thereto, and that all claims under the policies had been fully satisfied.

I am further satisfied that the insurance company paid the said sum of $638.96 to the accountant, and that the accountant received said sum individually under the aforesaid “facility of payment clause,” and not as executor.

The question now to be decided is whether the accountant, having received the proceeds of these policies individually, must, nevertheless, now account therefor as executor.

Insurance policies of this nature have been considered by our courts in a number of reported cases, the earliest of which appears to be Metropolitan Life Insurance Co. v. Schaffer, 50 N. J. L. 72, decided by the supreme court iu 1881. It is, however, to be noted that in this ease the terns of the promise to pay and of the “facility of payment clause” of the insurance policies were somewhat different, the agreement to pay being “to the person or persons designated in” the “facility of payment clause,” and the persons named in this clause being “the beneficiary [named by the insured], an executor or administrator, husband or wife, or relative by blood, or connection by marriage of the assured.” This proves to have been the form of these policies used by the Metropolitan Life Insurance Company, and policies containing substantially the same provision were considered in Brooks v. Metropolitan Life Insurance Co. (1903), 70 N. J. Law 36; Metropolitan Life Insurance Co. v. Hooppel (1909), 76 N. J. Eq. 94, and Marzulli v. Metropolitan Life Insurance Co. (1910), 79 N. J. Law 271. This .form does not, however, appear to have been used by the Prudential Insurance Company, or, at least, not in any reported case.

The first reported case in this state in which a policy with terms substantially similar to those under consideration in the case at bar appears to have been considered in Prudential Insurance Co. v. Godfrey (1909), 75 N. J. Eq. 484; affirmed, 77 N. J. Eq. 267. In that case, on an interpleader suit by the insurance company, it was held that the administrator of the assured was entitled to the funds, and Vice-Chancellor Walker (now chancellor), speaking for the court of chancery, used the following language:

“My judgment is that the complainant had a right to pay any one of the persons named in the facility of payment clause in the policy under consideration up to the time that suit was brought by the person entitled to payment under the contract, namely, the administrator of the insured, and that such payment would be a complete defense to the administrator’s action, but, not having made such payment, the right of the administrator under the contract, upon suit brought, was complete, and that a plea by the company of subsequent payment to one of the class mentioned would not operate to bar the administrator’s suit.”

The first proposition embodied in the foregoing quotation was recently upheld in Slingerland v. Prudential Insurance Co. (1920), 94 N. J. Load 532, in which judgment for the defendant in an action brought by the executor of the assured against the insurance company after payment by it to a person named in the “facility of payment clause” was affirmed by the court of errors and appeals.

A case almost identical in its facts with the one under consideration is Allen v. Allen (1918), 88 N. J. Eq. 575. That case arose upon an application by an administratrix to the orphans court for an order to sell real estate to pay debts of the decedent. The application was resisted by the heir on the ground that the administratrix, who was the decedent’s widow, had collected the proceeds of an insurance policy similar in its terms to those now under consideration, and it was admitted that if the amount of the policy were to be included as a part of the assets of the estate there would be no deficiency of personal assets and no necessity for selling the land for the pajunent of decedent’s debts. The widow, however, contended that she had received the money individually under the “facility of payment clause,” not as administratrix. The orphans court denied the application, and its decree was affirmed by the prerogative court and the court of errors and appeals. In the opinion of the latter court the following language wag used: ,

“The payment thus made by the insurance company in the exercise of its option did not operate ipso facto to confer upon the payee of the funds any legal right of property therein, but constituted the payee a constructive trustee, who held the fund in trust for the benefit of the estate. The express covenant in the present policy emphasizes that situation, for the language is that the insurer for the consideration named promises to pay * * * unto the executors, administrators or assigns of Edward B. Allen the sum of $500. The fact that to this promise is superadded a provision which is intended to enable the insurer, for its own convenience, to facilitate payment, so as to speedily discharge itself from its obligation on the policy, and, incidentally, enable it to provide speedy aid to the family of the insured, presumably in a, period of distress, does not lessen the legal liability of the recipient of the funds, as constructive trustee for the legal beneficiary under the plain terms of the policy.”

So, in Caveney v. Healey (1920), 94 N. J. Law 28, the insurance company paid the policies in question to the defendant under the “facility of payment clause,” and thereafter the administrator of the insured brought suit at law against the payee to recover the amount so paid. Judgment for the plaintiff was affirmed by the supreme court, and Mr. Justice Swayze, delivering the opinion of the court, used the following language:

“The question now presented is whether the payment by the company elfected a change of the original contract by which the company agreed to pay the executors or administrators of the insured. Such was not the view of this court as to the facility of payment clause in the original case. Metropolitan Life Insurance Co. v. Schaffer, supra. We there held that the facility of payment clause operated as an appointment both by the assured and the beneficiary of persons any of whom are authorized to receive payment of the sum agreed to be paid. We did not there decide that such payment to one appointed to receive it changed the beneficial interest in the fund from the assured or the beneficiary, or both, to the appointee, who was only to receive the money. To have so held would have put it in the power of the debtor, the insurance company, by its mere act, perhaps at its mere whim, to determine who should be beneficially entitled, and would be inconsistent with the manifest intent to make a contract enforceable against the company. This intent appears in the agreement to pay to executors or administrators. No ’contract could arise out of the facility of payment clause, since, as Vice-Chancellor Stevenson has pointed out, no member of the classes therein mentioned could have enforced a claim against the company. The claim of all, under that clause, was in the clouds until the company made the actual payment. Metropolitan Life Insurance Co. v. Hooppel, supra. There are none of the characteristics of a contract about such an agreement. The clause was for the convenience of the company to’enable it to make prompt payment, with the certainty that the validity of the payment could not be thereafter questioned. It probably arose, as we suggested in the Schaffer Case, out of the original, somewhat limited function of this class of policies to furnish a burial fund. As the business developed and became more and more an insurance business, evidenced by the use of the word 'insure/ and later the words 'insure and endow/ the burial fund features lost their relative importance and the life insurance features became more emphasized, until in Prudential Insurance Co. v. Godfrey, supra, it was held that the right of the company under the facility of payment clause existed only up to the time that suit was brought by the administrator. This view was affirmed by the court of last resort. 77 N. J. Eq. 267. We think the administrator was the beneficial owner of the fund, and entitled to recover it from the defendant.”

This case was affirmed by the court of errors and appeals on the opinion below. 95 N. J. Law 215.

These cases appear to dispose of the issue in this ease.

The exception will therefore be sustained.

In and by her third exception exceptant seeks to surcharge the accountant with approximately $500, the proceeds of certain insurance policies on the lives of others than the decedent, the premiums on which policies have been paid by the decedent.

By stipulation of counsel this exception was allowed to the extent of $313.89.

In and by her fourth exception exceptant seeks to surcharge the accountant with the sum of $100.34, moneys of the decedent on deposit with the West Hudson Trust Company.

It was stipulated by counsel that the amount on deposit was $104.34, plus $4.94 interest, and that the exception should he allowed in the sum of $109.16.

In and hv her fifth exception exceptant seeks to surcharge the accountant with moneys of the decedent on deposit in the Broad and Market National Bank, alleged to amount to $11.

By stipulation of counsel it was agreed that the exception should be allowed to the extent of $9.35.

In and by her sixth exception exceptant seeks to surcharge the accountant with the value of a diamond ring belonging to the testator. It appears to be undisputed that the testator did, in his lifetime, own such a ring, and that before his death he pledged it with a pawnbroker for a loan, and it is admitted by the accountant that the ring is now in the possession of his wife — as security he says — for a loan of $350 from her to him.

The accountant testified that his father, the decedent, “previous before he died,” gave him the pawn ticket and told him to keep the ring, hut he later testified that his father, “some time before he died,” gave him $235 for the ring, “with the understanding that it was mine if anything ever happened to him, or I could buy it hack at that price at any time.” Of course, all this testimony is incompetent under the well-settled rule in Smith v. Burnet, 35 N. J. Eq. 314; but, assuming it to be competent, it would seem to amount practically to an admission that the ring was the property of the decedent at the time of his death. Mrs. Canon, a daughter of the decedent, testifies that he told her some weeks before his death that he had given the ring to the accountant, and she says that at that time the accountant had the pawn ticket in his possession, hut, so far as appears, this conversation might well have taken place before the purchase of the ring by the testator for $225, testified to by the accountant, and the force of her story is further weakened by her subsequent testimony that, after her father’s death, there were numerous discussions between the parties in interest, including herself, on the subject of who should have the ring, thus negativing any general belief or understanding among them that the ring belonged to the accountant.

On the other hand, the exceptant, who is also a daughter of the testator, testified that the ring belonged to her father at the time of his death, and testator’s widow, now Mrs. Noble, testifies that he gave it to her.

It appears to be unnecessary to weigh these conflicting stories, because there is uncontradicted testimony in the case which appears to dispose of the question of ownership. Mrs. Noble testified that in October, 1915, she asked the accountant for some money; that he gave to her $25 in cash, but had her endorse to him his check to her order for $55. In answer to her request for an explanation of the discrepancy, accountant stated that the $30 was for interest on the ring.1 This conversation is not denied by the accountant, and it would be difficult to conceive of a more unequivocal admission on his part that the ring did not belong to him.

There appear to no difficulty in sustaining this exception, but there is considerable difficulty in fixing the amount with which the accountant should be charged. The case is barren of testimony as to the value of the ring in question. The only basis for fixing any is contained in the accountant’s own statement that he has borrowed $250 on the security of the ring. It follows, therefore, that it must be worth more than that amount. On the. other hand, it may be that the accountant has paid out money to redeem the ring, for which he would, of course, be entitled to credit. The difficulty, however, is of the accountant’s own making, and he cannot be permitted to profit by it. The ring is, as has been seen by his own admission,-in his possession or in that of his wife, and he can easily produce it, together with expert testimony as to its valuation, and also with testimony as to the amounts, if any, that should be credited to Mm in connection with its redemption.

I will therefore provisionally fix the value of the ring at the arbitrary amount of $500, giving to the accountant a reasonable opportunity to take further testimony on the subject if he so desires, in which event the exceptant will also, of course, have the same privilege, including the right to have the ring examined and appraised by her own exports. It is quite possible that counsel for both parties can agree as to the amount. Railing such testimony or stipulation the exception will he sustained in the amount of $500.

The seventh and eighth exceptions have been withdrawn.

Exceptant in and by her ninth exception objects to an allowance prayed by the accountant for executor’s commissions paid to himself and totaling $400.

The rule that executors and other fiduciaries are not entitled to commissions unless and until allowed by the court is so thoroughly settled as to make any citations of authorities superfluous.

The exception will therefore he sustained.

In and by her tenth exception exceptant objects to an allowance prayed by the accountant for moneys amounting to $504 paid to himself for services at the factory conducted by the decedent in connection with the business in which the latter was engaged up to the time of his death. Such services were stated to have been rendered during a period of seven months, beginning March 16th, 1915.

As the testator died March 20th, 1915, substantially this entire item relates to services alleged to have been performed after his death. The accountant and two other witnesses testified as to the length of time during which these services were rendered and also as to their nature, and particular stress was laid upon the question whether what was done should he considered as being services rendered by accountant in carrying on decedent’s business, or services rendered in preserving the estate in reducing it to cash. It seems quite unnecessary to decide this question, because the result would he the same in either case. The rule on this subject is laid down in Gilligan v. Daly, 79 N. J. Eq. 36, where Vice-Chancellor Emery (at p. 41) used the following language:

“Where an executor continues the business of testator under authority of the will, or merely for the purpose of winding up the business, his compensation for this service is included in his commissions as executor, and the basis for fixing commissions is not the gross receipts or expenses of the business, but the net income and the amount by which this increases the corpus of the fund, and cannot include a charge for services in continuing the business

“But the right of the executor to compensation [beyond his statutory commission on the amount of the estate coming to his hands] is based on other principles where the carrying on of the business is unauthorized. In such case the general rule is that the beneficiaries have the option to charge the executor either with the value of the estate and interest or with the amount of the net profits realized from the business.

“In estimating the profits, the general basis for charging trustees is that, so far as ascertainable, they should include only the profits resulting from the employment of the testator’s estate as capital, and due allowance should be made for other elements creating the profits, such as the business skill and credit of the executor carrying it on. Compensation for executor’s services may be allowed as part of the expenses of the business, and be deducted in ascertaining the net profits with which he is chargeable, but in carrying on the business without authority «the executor is at the absolute risk that the estate which comes to his hands suffer no loss or dimunition by reason of carrying on the business. If the executor can show that there has been no loss, but rather a benefit to the estate, then no liability to the estate results from his illegal action other than that of accounting for the profits or benefits received, and in so accounting for the profits or benefits received, he may be allowed proper compensation for his services in carrying on the business, and such allowance will be deducted from the profits for which he is to account. These seem to be the general principles on which allowances in these cases are based. It might happen, therefore, that the actual compensation to the executor in cases where the business was continued without authority would sometimes be larger than where authorized, and, therefore, fixed by the statute, but it is to be considered — first, that in the former case the continuance of the business is at the personal risk of the executors indemnifying the estate against loss, and also of being personally liable for debts, and secondly, that this court, in enforcing the liability of trustees, does not act as a court of 2>enal jurisdiction or for the purpose o£ punishment, but only for the purpose of compelling restitution, or granting compeusation for losses actually sustained.”

In the present case the testator’s will contained a provision giving his executor power to carry on his wagon business— the business here in question — as long as it may be advisable, without liability for any loss incurred in so doing. Obviously, this provision fully meets the requirement of empowering the executor expressly and unequivocally, and in distinct and positive terms, to carry on the business, and brings the case within the first branch of the rule in Gilligan v. Daly, above quoted.

It is therefore apparent that the accountant is not entitled to compensation for the services in question, except as it may be included in his commission, and the exception will, accordingly, be sustained.

At this point attention should be called to the rule regarding the burden of proof in cases of this character. The rule is well settled that in all matters of charge against the accountant the burden of proof is upon the exceptant. Kirby v. Coles, 15 N. J. Law 441. But in matters of discharge the burden is upon the accountant. Kirby v. Coles, supra; Dufford v. Smith, 46 N. J. Eq. 216; Frey’s Case, 73 N. J. Eq. 346; McCulloch v. Tomkins, 62, N. J. Eq. 262.

In and by her eleventh exception exceptant objects to the allowance payed by accountant for payment to the Public Sendee Gas and Electric Companies, represented by vouchers 90, 116, 126 and 131, totaling $46.84. The vouchers filed consist of the accountant’s canceled check. Ho other vouchers have been produced, nor is there any testimony by the accountant that he has made any effort to procure receipts or receipted bills from the public service companies, much less that such voucher could not be obtained.

The accountant’s testimony on the subject is as follows: "Q. Did the payment . * * * represent the estate’s indebtedness ? A. As fg.r as I know, yes. Q. Did it represent your own personal indebtedness? A. Not to my knowledge.”

The accountant clearly has not sustained the burden of proof which rests upon him. The exception will therefore be sustained.

In and by her twelfth exception exceptant objects to a number of items prayed allowance by the accountant, which are represented by various vouchers, the numbers of which will be stated hereinafter. Most of these items have been disposed, of by stipulation of counsel..

The part of the exception relating to vouchers 88, 114, 131, 168, 184, 186, 215, 228, 244 and 431 have been withdrawn.

The part of the exception relating to vouchers 191, Wolber & Blake, $315; 288, Broad and Market National Bank, $92.80; 316, E. D. Eeytel, $15.41, and 343, Broad and Market National Bank, $180, were allowed to a total amount of $663.21. This leaves the items represented by vouchers 98, 203, 318, 360 and 425 to be considered.

Youcher 98 relates to a payment of $11.20 made to the “Sunday Call,” a Newark newspaper. The vouchers are a canceled check and a receipted bill from the newspaper for “display,” on December 12th, 1915. This bill was originally made out to E. S. Oliver, but above this typewritten name the words “H. M. Oliver estate,” and below, the word “executor” have been inserted, evidently with a rubber stamp. The accountant admits that he stamped these words on the bill. He testifies further that the payment in question was for advertising certain sleds belonging to the estate for sale, and he calls attention to a charge in his account under date of December 14th, 1915, of $110, stated to be “cash for sleighs,” and says that this sale was the result of the advertisement. While the question is rather a close one, on the whole I am not satisfied that the accountant has sustained the burden of proof resting upon him. The alteration of the bill is suspicious. There is no reason to suppose that the files in the newspaper, showing the advertisement in question, are not in existence, and that even if such files were not readily obtainable for production in court, it would be a simple matter to obtain from the newspaper an endorsement of the bill, based upon an inspection of its own files by one of its employes, showing the subject of the advertisement, and it does not appear that the accountant has made any effort whatever to obtain or even to inspect such files. The exception regarding this item will therefore be sustained.

Voucher 203 relates to a payment of $70, stated to have been made to Doty & Keese, on February 13th, 1917, for plumbing at 322 Mt. Pleasant avenue, Newark, New Jersey. The voucher filed consisted only of the canceled personal check of the accountant. At the hearing, however, the proctor for the accountant produced an affidavit executed by one John Doty, stated to have been a member of said firm of Doty & Keese, and, while very properly conceding the incompetency of the affidavit as evidence, stated that Mr. Doty was unable to appear, and asked the exceptant’s permission to introduce the affidavit by consent, to which the reply of exceptant’s proctor was, “we will check it up with the bill.” Nothing further appears in the record as to this affidavit, and exceptant’s brief appears to make no objection to its consideration. It seems to be regular on its face, and its contents constitute an explicit and unequivocal statement that the work paid for by the check in question was done for the estate, and not for the accountant personally, and, further, that Doty & Keese at no time ever did any work for the accountant personally. The accountant testified to the same effect. In this posture of affairs, I believe that I have the right to regard the contents of the affidavit as in evidence by consent; and, considering them in connection with the accountant’s testimony, it would appear that the accountant had sustained the burden of proof resting upon him. If exceptant’s counsel desires to raise any objection to the consideration of the affidavit, I will give him the opportunity to be heard on the question. In the absence of such an application the exception as to this item will be overruled.

Voucher 318 concerns a payment of $35.28, stated to have been made May 5th, 1919, to Benjamin Meyer Company, for hardware, &c., at 273 Mt. Pleasant avenue; Newark. The voucher filed is the accountant’s canceled personal check. He testifies that this payment was for hardware “at the factory. I never bought any hardware off them myself.” He does not mention any effort made by him to procure a proper voucher, and no reason is suggested why it should be impossible or even difficult to obtain one. This is clearly insufficient to support the burden of proof. The exception to this item will therefore be sustained.

Voucher 360 relates to a payment of $150, stated to have been made May 3d, 1920, to one L. J. Wurth, with the notation “cash.”

The accountant’s testimony as to this transaction is that the estate owed him money, some $2,000 or more; that he needed money, and that he paid Wurth $150 bonus or premium, or, in plain English, usury for a loan of $1,500, presumably to be used in paying the estate’s said indebtedness to him. There is no competent testimony in the -case that the estate was at any time indebted to the accountant in any sum whatever, but even though it were, it would not appear to affect the result. It may be that emergencies might arise in the course of the administration of an estate that would justify, the borrowing of money on such terms by an executor. That is a question which I am not now called upon to decide, but that there was no justification for such a transaction in this case is too plain to warrant discussion. The exception as to this item will therefore be sustained.

Voucher 425 concerns a payment of $39, stated to have been made to one John Eischer on September 14th, 1923, for insurance premiums on property at 322 Mt. Pleasant avenue, Newark. Both the voucher and the testimony as to this item are substantially replicas of those relating to the item bearing voucher No. 318 of this exception, practically the only difference being that here the accountant’s signature to the check is followed by the word “trustee.” This, of course, does not affect the result. The exception will accordingly be sustained as to this item.

In and by her thirteenth exception, exceptant, as in the preceding one, objects to a number of different items. As to one of which, that relating to voucher 331, the exception has been withdrawn. As to another, an item of $26. appearing in the account between the amount for vouchers 370 and 371, and having neither voucher number nor description, the exception is allowed to said amount by stipulation. This leaves for consideration the items bearing voucher numbers 129, 143, 151, 164, 297, 341 and 351.

Voucher 129 represents a payment of $1.50, stated to have been made May 11th, 1916, and described as “Mrs. J. Eeytel, flowers.” It appears to be undisputed that this transaction represented a payment by the accountant of his share of the cost of flowers sent by him and his sisters to the funeral of a relative, and has no relation to this estate or its administration. The exception as to this item should therefore be sustained.

Vouchers 143, 151, 164, 297, 341 and 351 all relate to payments totaling $275, made to Lum, Tamblyn & Colyer, as attorneys. The vouchers filed show nothing as to the nature of this alleged indebtedness, with the exception of one which bears a notation that the payment was made “on account of claim of the Regina Company v. Oliver ” Mr. Eeytel, the husband of the exceptant, testified that he was employed by his father-in-law, the testator, for some ten years before the latter’s death, and kept his books, and he stated that from his knowledge of the testator’s affairs in general he was sure that the debt in question was not the testator’s. It is unnecessary to base any conclusion on this testimony, however, as the question can be disposed of on the accountant’s own testimony. This was both vague and evasive in a very high degree, and amounted, in substance, to a statement that he could not say whether the debt was his father’s or his own. As the burden of proof is on him, it is needless for me to go further than to find that he has not sustained it. The exception will, as to these items, therefore, be sustained.

In and by her fourteenth exception exceptant objects to an allowance prayed for by the accountant of $150 paid to one Louis Wurth as bonus for a loan. This transaction, it is admitted by the accountant, consisted of borrowing from said Wurth, at a premium of $150, of the sum of $1,500, which was used in buying out the interest of the testator’s widow, now Mrs. Noble, in this estate. The terms of this loan were, therefore, practically identical with those of the loan considered in exception 12, voucher 360, and all that has been said as to that transaction may be substantially repeated here. Assuming that the borrowing of money by an executor on such terms should ever be sanctioned by the court in any case whatever, this is not such a case. Mrs. Noble, under the will, received the furniture, a legacy of $500, and one-fourth of the residuary estate. That the borrowing of $1,500 as usurious rates for the purpose of purchasing her interest was not necessary or proper for the administration of the estate, and could be of benefit only to her co-legateés individually, is so obvious that argument would be idle. The exception will therefore be sustained.

In and by her fifteenth exception exceptant objects to an allowance prayed by the accountant for the sum of $720.26, paid to himself in repayment of advances to the same amount made to Eugene G. Oliver, who, it appears, is the accountant’s son. The date stated for the pa3rment to the. accountant is July 23d, 1919. At what time or times the payments were made by him to his son does not appear.

By the terms of the testator’s will, Eugene G. Oliver takes one-fourth of the residuary estate. The executor’s account shows a balance in his hands of $20.54. The petition an-, nexed to the account alleges that the estate is still indebted to the extent of $2,799.50, and further states that “considerable difficulties were experienced by your petitioner in preventing the estate being declared insolvent.” The only justification that appears to be offered by the accountant for this item is his testimony, that at the time he made these payments, or some of them, to his son, the latter was in the army and was sick. His counsel does not suggest any justification for these payments. The exception will therefore be sustained.

In and by her sixteenth exception exceptant objects to the allowance prayed by the accountant for balances of $14.12 and $6.42 on deposit in the Broad and Market National Bank and the West Hudson County Trust Company, respectively. By stipulation of counsel these exceptions are sustained to the amount of $20.54.

In and by her seventeenth exception exceptant objects to allowances prayed by the accountant for payment to the West Hudson County Trust Company for interest on indebtedness of the estate. The exceptant claims that part of the indebtedness in question is that of the accountant personally. There is considerable testimony, must of it conflicting, as to the notes held by this trust company, and as to who was accommodated by or received the proceeds of the notes. But the fundmental difficulty regarding this exception, however, is that it is not directed to any particular item of discharge in the account, nor is there anything in the testimony or in the brief of counsel to elucidate the situation. It is the duty of exceptant to point out to accountant specifically the portions of the account objected to by her, and this exception is So vague and general that it cannot be allowed. The exception will therefore be overruled.

Exceptant’s eighteenth objection is the subject of litigation in the court of chancery, and, by stipulation of counsel, is not to be considered by this court.

In and by her nineteenth exception exceptant alleges that the accountant failed to pay the taxes on the estate’s real property promptly, whereby interest charges and costs accrued against the same, and certain named parts thereof were sold for non-payment of taxes for the year 1915. This exception has the same vice as is inherent in exception seventeen, and, while it is true that counsel for the exceptant in his brief sets forth the list of particular vouchers, each one of which he claims represents a payment of interest, or interest and charges and costs, which the accountant should not have allowed to accrue, I feel that I-cannot dispose of this exception better than to quote part of the language of accountant’s brief:

“The exception filed by Mrs. Feytel did not specify in what particular the executor failed to promptly pay taxes, and the executor could not produce any further evidence than he did under the circumstances. * * *
“The proctor for the exceptant, in his memorandum, sets forth specific items, and, if he had done so -in filing his exceptions, the executor would have been in a position to meet the contention now raised with additional evidence.”

There must he an end to litigation, and, in view of the court’s well-settled policy of almost unlimited liberality in permitting amendments to exceptions before or at the hearing, there can be no hardship to an exceptant in requiring him to state his exceptions with sufficient fullness and particularity to enable his adversary to meet them with his evidence, and to enable the court to have a definite issue before it to adjudicate. The exception will be overruled.

All of which is respectfully advised.'


source: Caselaw Access Project

author: Donges, J.

license: Public Domain

text:
    Camden County Circuit Court.
    Purnell W. Short, plaintiff, v. Public Service Railway Company, defendant.
    Jurisdiction — Plaintiff Non-resident, Defendant a New Jersey Corporation, Principal Office in Essex County — Cause of Action Arose in Essex County — Suit Begun in Camden County Cannot be Maintained.

      2Ir Henry II. Fryling, for the motion.

      Mr. Norman ITarker, contra.

   Donges, J.

Plaintiff is a non-resident of New Jersey. Defendant is a corporation of New Jersey, its principal office being located in the city of Newark. The alleged right of action arose out of a collision which occurred in the city of Newark. Suit was commenced in the Camden county circuit court, and service was made upon defendant in Camden county.

Motion is made to dismiss the summons and strike out the complaint.

Section 202, Practice act (Comp. Stai. p If US), provides:

“An action merely transitory shall, at the discretion of the court, be tried in the county in which the cause of action arose, or the plaintiff or defendant reside at the time of instituting such ación, or if the defendant be a non-resident, in the county in which process was served upon him.”

Plaintiff is non-resident, defendant has it principal office in Essex county, the cause of action arose in Essex county. Under these circumstances, service upon a resident corporation in Camden county is not sufficient to confer jurisdiction on the Camden circuit court; Thorn v. Central Railroad Co., 26 N. J. Law 121; Schmehl v. South Jersey Land Co., 63 N. J. Law 141; Keeley v. Borough of Belmar; 116 Atl. Rep. 273.

The motion is allowed, with costs.


author: Minttjbn, J.

text:
    BENJAMIN FRIEDERBERG, PLAINTIFF-APPELLANT, v. WILLIAM T. PARSONS, DEFENDANT-RESPONDENT.
    Argued January term, 1925
    Decided May 7, 1925.
    Real Estate — Lease in Writing — Contract to Surrender Lease Verbal — Surrender of Lease Must be According to Statute of Fraudsi — Surrender by Operation of Law, Minds Must Meet, and Surrender Must, in Fact, be Effectuated so as to Change Relative Situation of Parties.
    Oil appeal from the Atlantic City District Court.
    Before Justices Trenchabd^ Mintubn and Lloyd.
    For the plaintiff-appellant, John G. Reed.

    For the defendant-respondent, Parsons & Parsons.

   The opinion of the court was delivered by

Minttjbn, J.

The suit was upon a lease made by the Thomas II. Green Company to William T. Parsons, the defendant, and leased to the defendant a certain apartment known as B3, No. 240 South Connecticut avenue, Atlantic City, New Jersey. The lease was dated September 22d, 1921, and was for a period of one year from November 1st, 1921, to November. 1st, 1922.

During the period of the lease the Thomas H. Green Company sold the premises in question to Joseph Friedemann and Mabel Y. Friedemann, his wife, who became seined of “an estate in the entirety.” At the time of the sale from the Green company to the Friedemanns, the lease made between the Green company and the defendant, William T. Parsons, was assigned to the Friedemanns. On September 17th, A. D. 1922, the lease was assigned by the Friedemanns to the plaintiff.

On August 13th, a. d.' 1922, the defendant testified that he saw Mabel Y. Eriedemann at the apartment-house and told her that he'desired to give up the apartment on-September 30th, A. D. 1922, and asked her if she would release him from his lease. Mrs. Eriedemann told him that she would have to consult her husband, who was the other tenant by the entirety. The defendant further testified that on or around September 18th he saw Joseph Eriedemann, the other tenant by the entirety, and that he made the same request of Mm, and that Eriedemann - agreed verbally to release Mm. Joseph Eriedemann demed that he had released defendant. On September 18th, a. d. 1922, the plaintiff took over the possession of the apartment-house. The defendant started moving on September 30th, a. d. 1922, and whilst he was moving, the plaintiff notified him that he would hold him for the rent, and for a time on that day defendant’s furniture was held in the apartment.

The plaintiff testified .that he, as owner and lessor, had refused to accept a surrender from the defendant, or release him from his lease. TMs was not denied by the defendant.

At the trial the defendant admitted the execution of the lease, the vacating of the premises on September 30th, a. d. 1922, arid that he liad not paid $85, and that the plaintiff notified him that if he vacated the apartment he would be held for the balance of the rent due under the lease.

The court held that under the above facts there had been a surrender by operation of law, and rendered judgment in favor of the defendant. We think tMs was error. To constitute a surrender by agreement the parties should have executed a written release as required by the provisions of the statute of frauds. Rev. 1877, p. 444. To create a surrender by act and operation of, law, the minds of the parties must meet as in a contract, and the surrender must, in fact, have been effectuated so as to change the relative situation of the parties, and in that manner effectually create an estoppel. Home Coupon Co. v. Goldfarb, 78 N. J. L. 146; Meeker v. Spalsburg, 66 Id. 60.

The general rule Is declared as follows: “A surrender of a lease by operation of law results from acts which imply mutual consent independently of the expressed intention of the parties that their acts shall have that effect.” 16 B. O. L. 1153, and cases.

No such situation was created by the'alleged agreement in this case, and the judgment must therefore be reversed.


author: Pee Curiam.

text:
    CENTRAL RAILROAD COMPANY OF NEW JERSEY, A CORPORATION, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL., DEFENDANTS. NEW YORK BAY RAILROAD COMPANY, PENNSYLVANIA RAILROAD COMPANY, LESSEE, PROSECUTORS, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL., DEFENDANTS.
    Decided May 2, 1925.
    On petition for rehearing.
    Before Justices Kalis ch, Black and Campbell.
    For the petitioners, Edward P. Stout.

   Pee Curiam.

The petition for a rehearing in both cases is denied.


author: Pee Cuexam. '

text:
    EDWARDS, ETC., COMPANY v. REGAN.
    Decided May 6, 1925.
    Return to Writ — Alleged Inability to Procure Return From Judge of District Court — Application Should Have Been Made, if Necessary, to This Court to Rule the Judge to Make Return —Proper Diligence Probably Would Have Secured Return.
    On rule to show cause why dismissal of a writ of certiorari should not be set aside, and the writ reinstated.
    Before Justices Paekee, Minttjen and Black.
    Eor the -rule, Levitan & Levitan.

      Contra, Sam,uel Schneider.

   Pee Cuexam. '

The ground of this application is that counsel was unable to procure a return to this writ from the judge of the District Court, although many months elapsed. We are unable to see but that if he had followed the practice usual in such cases, a return could readily have been procured. If necessary, counsel owed it to his client, whatever the consequences, to go to the extent of applying to this court to rule the judge to make return. But apart from this, we are satisfied that proper diligence would have secured a return long before this. The duty of prosecutor in this regard is laid down in the old cases of Anonymous, 1 Penn. 234; Voorheis v. Kerns, 2 Id. 703; Smith v. Somers, 1 Harr. 456, and from the facts stated to us by counsel of prosecutor in the case at bar it is evident that this duty was not performed.

The rule will be discharged.


author: Per Curiam.

text:
    THE STATE OF NEW JERSEY v. STEPHEN URBAN.
    Decided May 6, 1925.
    Crimes — Determination of Guilt, Question for Jury — Action of Trial Judge in Assuming the Determination of Question a Usurpation of Jury Functions.
    On error to Hndson Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Kallsch and Campbell.
    Eor the plaintiff in error, Harry Lane.

    Eor the,state, Aloysius McMahon, assistant prosecutor.
   Per Curiam.

The action of the trial judge, at the close of the testimony, in taking upon himself the determination of the question whether the defendant was guilty or innocent of the charge laid against him in the indictment, was an usurpation of the function of the jury, and deprived the defendant of his constitutional right to have the question determined by the latter body. Eor this reason the conviction under review will he reversed, and the record remitted to the Hudson Quarter Sessions in order that the case may there he retried.


text:
    EDISON FIXTURE COMPANY v. GLEASON, GREENBERG, RUCCOBO, KLEIN, POLOPUTO AND SCHWARTZ.
    Decided May 6, 1925.
    Costs — Taxation—Bill Should Only Include Items for Services Actually Performed — If Respondents Made No Argument, Filed No Brief, or Prepared No Issue, They Cannot Have Such Items Included in Bill.
    On motion to retax costs.
    Before Justices Parker, Minturn and Black.
    Eor the motion, Herman B. J. Wechstein.

      Contra, Thomas P. Curley.

   Pee Curiam.

As we understand the ora] statement of counsel (no papers were laid before us) there were included in respondents’ costs in this court an argument fee, although no argument was had or brief filed, and a fee for preparation of issue, though no issue was prepared. In fact, respondents did nothing in the appeal and were content to have it determined on the presentation of the cases by the appellant. We are unable to see why such fees should be taxed when the services to which they are applicable were not performed, and they should be struck from the bills of costs.

Let rule be entered accordingly.


author: Bodiate, District Judge.

text:
    United States District Court, District or New Jersey.
    In the matter of Golden Cruller and Doughnut Company, Incorporated, bankrupt.
    [Decided May 5th, 1925.]
    Bankruptcy — Right of Trustee in Property Sold Under Conditional Sales Act, Contract for Which was Not Recorded — 1 Unrecorded Conditional Sales Valid Except Against “Purchasers or Creditors, Who, Without Notice, Purchases, Etc.,” —Finding of Referee That Such Sales Were Void Against Trustee, Reversed.
    In bankruptcy.

      Mr. Harry Green, for the petitioning creditor.

      Messrs. JEichmann & Seiden, for the trustee.
   Bodiate, District Judge.

On May 20th, 1924, a voluntary petition in bankruptcy was filed in the above matter. Schedules attached to the petition showed that the petitioner held conditional sales contracts to secure the unpaid balance upon two automobiles, the property of the bankrupt. The conditional sales contracts were not recorded until the following day. There were no judgments or lien creditors. The referee in bankruptcy held that the conditional sales contracts were void as against the trustee in bankruptcy.

Section 4 of the Uniform Conditional Sales act, adopted by New Jersey in 1919, makes conditional sales contracts, although unrecorded, valid as against all persons except—

“Any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien "upon them, before the contract or a copy thereof shall be filed.”

It is not necessary to determine the scope of section 47a of the Bankruptcy .act. There is a considerable body of authority to support the proposition that a trustee steps merely into the shoes of an existing creditor. See Live Stock State Bank v. Doyle, Trustee, 292 Fed. Rep. 465, and cases there cited; also Martin v. Commercial National Bank, 245 U. S. 513.

The matter has not been passed upon by the circuit court of appeals for the third circuit. The judges in this district have not, however, followed Judge Kenyon’s admirable decision in the eighth circuit. The question, however, is not necessary to the disposition of this case. Assuming, but not deciding, that where there are no judgment creditors the trustee is in the same position as a creditor who has procured a lien by judgment, the trustee in this case acquired no rights before having actual notice of the conditional sales contract, the schedules in bankruptcy exploiting such sales contracts.

The finding of the referee must be reversed.


author: Bttchayak, V. O.

text:
    Blanche Kodytek, petitioner, v. John Kodytek, defendant.
    [Decided May 18th, 1925.]
    Divorce — Desertiom—Wife Has Failed to Prove Separation For the Statutory Two-Year Period — Separation Apparently Due to Husband’s Indulgence in Drink, and Costs, including Counsel Fees, Allowed Wife.
    On final hearing.

      Mr. Joseph E. Hunt, for the petitioner.

      Mr. Frederic R. Brace, for the defendant.
   Bttchayak, V. O.

The wife petitions for absolute divorce for the cause of desertion; the husband denies. The marriage and residence are proven, admitted and corroborated.

After living with the wife’s parents for twenty months after marriage the petitioner, by agreement, went to live with the husband’s mother temporarily while the husband’s father was on a trip abroad. After one week the wife loft and returned to her parents, to wit, on March 4th, 1922.

Whether she was justified in so doing is immaterial, for she admits that the husband thereafter said to her that if it was satisfactory to her he would stay with his mother and she with her parents, and he would pay her $10 a week, until his father retirrned, and that then they would get' a homo by themselves, and that she agreed to this.

It further appears from the wife’s testimony that whatever change from this situation later occurred, no change occurred prior to three or four weeks from that date, at the earliest. Since the wife’s petition was filed, May 13th, 1934, it is obvious that she has failed to prove a desertion of the statutory character for the requisite two-year period.

It is apparent that the continued separation of the parties has been largely, if not wholly, due to his indulgence in drink, and his conduct and attitude toward his wife as the result thereof. The decree dismissing the petition will therefore be with costs -to the wife, including an allowance of twenty-five dollars ($35) counsel fee.


author: Buci-ianan, V. C.

text:
    Max Snider, complainant, v. George B. Ten Eyck et al., defendants.
    [Decided May 16th, 1925.]
    Lease — Surrender—Owner Leased Lower Floor for Theatre, Second Floor to Allied Interest for Billiard Room — Theatre Company Failed and Owner Decided to Operate Place— Bill to Cancel Billiard Room Lease, or If Denied, Injunction to Restrain Disturbance of Theatre — Issue Cognizable In Court of Law and Bill Will Be Held Until Complainant Can Have Questions Determined at Law.
    On final hearing.

      Mr. William Hartshorne, for the complainant.

      Mr. Edward W.. Wise, for the defendants.
   Buci-ianan, V. C.

Complainant, on December 6th, 1933, leased to Orpheum Amusement Company for use as a motion picture theatre, a certain building then undergoing alterations to make it suitable for use as such theatre, for the term of ten years from the date when the alterations should be completed. By an additional lease, on December 14th, 1922, between the same parties, an adjoining or abutting store property was added to the subject-matter of the lease, as an entrance way into the theatre.

On March 2d, 1923, defendant Ten Eyck leased from complainant a billiard room and bowling alley on the second floor above part of the theatre premises for a term of five years, with option to renew for five years more. Ten Eyck was the principal stockholder of the amusement company (the lessee under the other lease). This lease of the billiard room and bowling alley contained a provision that the lessee, Ten Eyck, may “sublet” any or all of the thereby demised premises to the Orpheum Billiard Company, but shall not sublet any or. all of said premises to anyone else without the prior written consent of the lessor. The Orpheum Billiard Company was not then in existence, but it was incorporated ten days later (March 12th), and on March 14th Ten Eyck assigned the lease to the billiard company, of which he was also the sole or principal stockholder.

In June, 1924, the amusement company was adjudicated insolvent and a receiver appointed therefor. On August 5th, 1924, the receiver surrendered, and complainant accepted, the premises comprised in the theatre lease or leases. Prior to that, but subsequent to the receivership, Ten Eyck sold his stock in the billiard company to Edward H. Burns and Alfred J. Schafer, who owned or had a controlling interest in the operations of the Strand Theatre, the latter being a moving picture and vaudeville house located on the same street as the Orpheum Theatre.

Complainant has arranged to operate his own theatre premises, and by his bill prays decree (in effect) for the surrender and cancellation of the billiard room and bowling alley lease, or, if denied that relief, for decree enjoining defendants from using, or permitting to be used, the billiard room and bowling alley in such manner as to disturb the audience in the theatre.

The surrender and cancellation of the lease is asked upon the ground that the lease has been terminated by reason of (1) violation of its provisions against subletting without the prior written consent of complainant, and (2) by reason of the surrender and cancellation of the theatre lease, the contention being that the bowling alley lease was a mere adjunct to the theatre lease, of no value in and of itself, but only for the benefit of the theatre lessee by way of protection of the theatre; that this was so understood by both parties to the bowling alley lease; that the bowling alley lease, therefore, must be understood as containing the implied condition that its continuance was dependent on the continuance of the theatre lease, and that the surrender and termination of the theatre lease ipso facto terminated the bowling alley lease.

It is unnecessary to go into the facts or the law in respect of this issue, for the reason that it seems to me clear that the issues as to the termination of the lease, on both grounds set up, are issues cognizable and determinable in a court of law, and that inasmuch as they involve rights or interests in real estate, and defendants have made objection to their determination by this court, and no equitable issues supervening, under well-established principles, all that can be done by this court on this branch of the case is to hold the bill until complainant can have the questions determined at law.

On the other branch or aspect of the ease, the prayer for restraint of alleged nuisance, I think the determination may as well await the time when final decree can be' made as to the surrender and cancellation issue, since that may be dis-positive of the entire matter. No attempt has been made by the billiard company to operate the leased premises, and the answer denies any intention to operate it in a manner which would annoy the theatre patrons. No preliminary injunction was sought by complainant. If any change in the situation should occur pending the further proceedings, complainant might seek restraint pendente lite upon notice and the filing of affidavits, and might, perhaps, have leave to file supplement to his bill.

It may also be mentioned that leave was granted at the hearing to file certain amendments to the bill, and defendants announcing orally their admissions or denials to the additional allegations, the hearing proceeded as though the record was complete. In fact, however, no draft of order has been submitted to me as yet in this behalf, nor defendants’ amended answer. This should, of course, be done.


author: Ruottakak, Y. C.

text:
    Rose E. Fike, complainant, v. Roy E. Fike, defendant.
    [Decided May 15th, 1925.]
    Contracts — Specific Performance of Agreement of Husband to Pay a Consideration to Wife for Release of Her Inchoate Right of Dower — Husband Repudiated Agreement — Contracts Between Husband and Wife, Unenforceable at Law, May be Enforced in Equity to Extent That They Are Fair and Just — Nothing Appears Unfair in Present Transaction — Specific Performance May be Decreed as to Personal Only Where Particular Reasons Exist- — No Such Reasons Being Apparent Here. Damages for the Breach of the Contract May be Awarded Under the Prayer for General Relief or Even Without Such Prayer.
    Ou final hearing.

      Messrs. McCarter & English, for the complainant.

      Mr. Robert N. Grana, for the defendant.
   Ruottakak, Y. C.

The bill is by wife against husband praying decree for specific performance of his written promise to assign to her thirteen shares of stock in the Pike Motor Company, and to deliver to her an automobile (of designated make), either touring car or sedan. The consideration for the promise was the releasing or barring of dower by the wife, in executing a deed of conveyance for a house standing in the husband’s name. Notwithstanding the wife’s full performance, the husband failed to perform at the time fixed in his agreement, and later refused to perform at all.

The husband at first testified he had no intention of performing when he signed the promise. A few seconds after-wards he directly contradicted himself, and said that he did intend to perform when he signed, but later changed his mind, partly because he found he needed to use the shares of stock as collateral for loans, and other business - reasons. Neither answer excuses non-performance. At another time he stated that he did not deliver the automobile, because he deemed her unlit to drive a car. He gave no details or reasons for his opinion in this behalf, and it is directly contradicted by. the fact that she obtained a driver’s license, and that he helped her obtain it and paid for it.

Contracts between husband and wife are void, and unenforceable at law. They are enforceable in equity to the extent that they are fair and just. Lister v. Lister, 86 N. J. Eq. 30 (at p. 48); Hollingshead v. Hollingshead, 91 N. J. Eq. 261 (at p. 278); Demarest v. Terhune, 62 N. J. Eq. 668 (at p. 667). The situation in the last-named case is the converse of that in the case at bar. There the wife agreed to pay the husband $1,000 for his joining in a deed of conveyance of her property and' releasing his inchoate curtesy therein, which he did, and received her note for the $1,000. The principles involved are the same, although, perhaps, greater scrutiny may be exercised as to tire fairness of such a contract as regards the wife’s interest than as to the husband’s, the theory being that the wife is under the domination of the husband during coverture, and especially during matrimonial cohabitation.

In the present case I am unable to see anything unfair in the transaction. The husband’s promise, was the payment for the wife’s inchoate dower interest. That interest belonged to her; it is a thing which the courts and legislature have always striven to protect to her, and to place safeguards around. She could not be compelled to relinquish it against her will. She had full right to payment for her surrender of it, if she desired, and to bargain for such payment.

She did choose, in the present case, to require payment for her inchoate dower. It appears from the evidence that the husband had been somewhat harsh and tactless with his wife in regard to financial matters, extending to the providing of food, clothes and other household requirements. He told his wife he deemed it best to sell the house (which they were renting out, not occupying) in order to pay off some business indebtedness. He says she said little, if anything. He did not consult her about the sale price, but proceeded to enter into a contract to sell, without asking her to join in the contract. He told her that he had done so, and again he admits she said nothing. It is evident, therefore, that she did not induce him to make the contract. He admits he knew she had an interest of some kind in the property, but did not know the extent of it. He took no steps to find out.

Because of his past conduct she consulted a lawyer as to her rights in the matter, and on being told that she had a right to ask payment for surrender of her dower interest, she made a request for $2,500. She did this by presenting to him a draft of authorization or order to the purchaser to pay her that sum, and asking him to sign it. This she says was about two weeks before the date for consummation. My recollection is that defendant thought it was immediately before the deed was to be delivered, but in any conflict of testimony between the two, complainant’s testimony is entitled to the greater weight. Defendant’s testimony was quite unsatisfactory and contained a number of contradictions, to some of which I have hereinbefore alluded.

Defendant refused to sign the order, or to consent to her receiving that sum, saying that he needed all the cash to pay off the obligations. Finally, at his lawyer’s office, where the consummation of the sale was 'to take place, the agreement already mentioned was made and the written promise signed by defendant, and the deed executed and delivered by the wife. This compromise bargain was suggested by defendant’s own lawyer, accepted by defendant, and was accepted by complainant after calling up her attorney by telephone. It is evident, therefore, that there was no coercion or unfair conduct by the wife.

It was argued on behalf of defendant that this court would not entertain a suit of this kind Avhere husband and wife axe living together amicably (as is the case here). No authority was presented in support of such argument, and I do not understand that there is any such rule. Perhaps counsel had in mind the language of the opinion in Blade v. Blade, 26 N. J. Eq. 295 (at p. 297), and repeated in the same case, SO N. J. Eq. 215 (at p. 225). What was said there, however, was on the hypothesis of a very different situation, that of a wife who had deserted her husband without cause and was seeking the aid of equity to obtain possession of household 'furniture and the like, theretofore jointly used by both, but the title to which she claimed. Moreover, much of what was said by this court in that ease has since been disapproved by the court of errors and appeals in Neubede v. Neubede, 94 N. J. Eq. 167.

Complainant’s inchoate right of dower was her separate property. The husband’s written promise, which she took in exchange for that right, is equally her separate property; it represents that dower interest. It was obtained without any unfairness on her part. To deny her relief would be to permit the husband practically to perpetrate a fraud upon her, by repudiating his honest obligation on the faith of which she surrendered her dower.

The bill asks for specific performance. While specific performance may be decreed as to personal property, it is only where particular reasons exist. None such are apparent here. Damages for the breach of the contract, however, may be awarded under the prayer for general relief, or, indeed, even without such prayer. Chancery rule 60.

The determination of the damages is a matter not without difficulty. By defendant’s own testimony the book value of the stock, at the time of the breach, was about $103 each (it has since considerably increased). The retail price of a new sedan was $1,510; of a touring car $980. The agreement does not specify a new car, but, undoubtedly, must be construed to mean one in good condition. I think $2,000 is a just and fair figure for the damages. Interest is not allowable under the rule, not having been stipulated for. Ricker v. Riker, 88 N. J. Eq. 198.

Costs will be allowed, including a counsel fee of one hundred and twenty-five dollars ($125).


author: Buciiakak, Y. C.

text:
    Nellie Henrikson, petitioner, v. Frederick Henrikson, defendant.
    [Decided May 18th, 1925.]
    Divorce — Extreme Cruelty — Evidence Examined, and Though Some Acts of Cruelty Were Admitted, the Defendant’s Story Was Frank and the Presence of Provocation Was Manifest —Witness in a Position to Give Material Testimony Not Called — Decree Denied.
    On final hearing.

      Mr. Amos N. Wain, for the petitioner.

      Mr. Romulus V. Rimo, for the defendant.
   Buciiakak, Y. C.

The petition is by the wife for divorce on the ground of extreme cruelty. The marriage in 1911 is duly proven, and the residence of both parties in the city of Trenton ever since. The wife testifies to cruel conduct by the husband covering a period from 1916 to 1922, when the parties separated; that the defendant frequently slapped her face, struck her about the shoulders, pulled her hair, choked and on two or three occasions knocked her down. There was corroboration of some of the incidents by one sister and of others by another sister. The most serious attack alleged was immediately preceding the separation.

The husband denied that he had ever struck, slapped or choked her, or done anything but defend himself by pushing her away when she scratched his face, as she frequently did.

I am satisfied that the truth lies somewhere in between the two contentions. The manner of the wife and her sisters was convincing as to the necessity of discounting their testimony; there was no denial as to the wife’s scratching the husband. Both sides concur in stating that the differences arose over money matters, he insisting that she was extravagant and she that he was penurious with her. On this issue, from the entire evidence, I am strongly inclined to credit the husband.

Undoubtedly, the husband did use physical violence toward his wife on occasions, beyond the mere pushing away, but I am not satisfied that there was anything really serious, except, perhaps, one one or two occasions; and I am satisfied that most, if not, indeed, all, the occasions, were not without provocation on her part.

He admits that on one occasion he tore her away from the door of the bedroom and threw her on the bed and sat on her, but says this was because she was holding the door shut to prevent him. from going out. This was six or eight years ago. He also says that on the occasion immediately preceding the separation he was drunk, and either from that, or from a blow which he says was dealt him by his sister-in-law, he does not remember what took place. He does testify, however, to conduct by the wife for a couple of days previous, which gave provocation, attendance at liquor parties and late hours (though he admits that his wife never drank anything but wine), and disregard of her household duties.

His manner was frank, and his admissions of things, which he might easily have denied, lead me to conclude that his testimony, at least, balances that of the wife and sisters. Furthermore, it appears that two persons, a brother-in-law of the wife, and a policeman, were in a position where they might be expected to give material testimony corroborating the wife’s story. Neither one was present as a witness, nor was any explanation given for their absence.

I find that the petitioner’s proofs are insufficient to establish such cruelty by the husband as would warrant a decree for divorce. The petition will be dismissed, with costs, however, including a counsel fee of $25 in favor of the wife.


author: Parker, J.

text:
    ELIZABETH RYAN, ADMINISTRATRIX AD PROSEQUENDUM, ETC., v. PUBLIC SERVICE RAILWAY COMPANY.
    Decided May 11, 1925.
    When the Court of Errors and Appeals has awarded costs against an administrator on affirmance of a nonsuit in the Supreme Court, the latter court will not deal with the propriety of such award, but will stay a second action until the costs are paid or the award vacated by the appellate court.
    On motion to stay proceedings.
    Before Justice Parker, at chambers.
    Eor the plaintiff, Alexander Simpson.

    Eor the defendant, Henry H. Fryling.

   The opinion of the court was delivered by

Parker, J.

Plaintiff was nonsuited at the trial and appealed to the Court of Errors and Appeals, where the nonsuit was affirmed. 3 Adv. B. 642; 128 Atl. Rep. 158. Though no copy of the. rule of affirmance is before me, counsel agree that costs were awarded to respondent and taxed at $64.67. Plaintiff then began a new action without paying these costs, and the present motion is to stay this new action until the said costs have been paid. The question argued before me, as whether section 229 of the Practice act of 1903 is in force, or rather the exception in that section relating to executors and administrators, or whether the Costs act of 1911 (Pamplv. L., p. 756) has the effect of repealing section 229 in this particular.

It seems plain that I am asked to review the action of the Court of Errors and Appeals in awarding costs, and, in effect, to override that award on the ground that it was erroneous. Naturally this cannot be done. If costs were awarded by the appellate court improvi dently, or under any misapprehension, as to which, of course, 1 intimate no opinion, the remedy of a party claiming to be aggrieved is to apply to that court to vacate such award. As the matter now stands before me, there is a judgment for costs against plaintiff, and, under the settled practice, these must be paid before the new action can proceed. Stay will be ordered accordingly.


text:
    MAX REIDLER, PROSECUTOR, v. BOROUGH OF ROCKAWAY AND THOMAS J. HANNON, RECORDER, DEFENDANTS.
    Decided May 11, 1925.
    Municipalities- — Ordinances — Conducting Refreshment Stand Without License — Question of Ownership, Also of Time When Prosecutor Made Alleged Sales — Counsel for Borough Had Expressly Withdrawn Certain Dates Upon Which Sales Were Made, as Was His Right — Conviction Set Aside, Without Costs.
    On certiorari.

    Before Justice Parker, sitting alone, pursuant to the statute.
    For the prosecutor, Bolitho & O’Connor.

    For the defendants, King & Vogt.

   Memorandum by

Parker, J.

This is a certiorari to a conviction of prosecutor qf conducting a roadside refreshment stand without license, contrary to a local ordinance. There was a trial by jury before the recorder, and a verdict of guilty.

The case is submitted on briefs. The first and second points challenge the action of the trial court in refusing to direct an acquittal and in submitting the case to the jury because, as claimed, there was no evidence that prosecutor, on the date in question (June 29th, 1924), was the “owner” of the stand and business in the sense contemplated by the ordinance, he having executed a bill of sale of the same to his brother-in-law Greenberg. Apart from legitimate questions as to the bona fides of this transaction, which were raised and which would be for the jury, it is enough at this time to say that the question was not whether Reidler was owner, but whether he was selling there without the owner (whoever he may have been) having procured a license. This is the language of the ordinance, plainly aimed at an employe as well as an owner..

But. there seems to have been clear error in permitting the jury to convict if they found prosecutor had sold on the 8th of June or 15th of June, as those dates were expressly withdrawn from the case by counsel for the borough. This was the undoubted right of counsel, and the court should have respected it.

Eor this reason the conviction must be set aside, but without costs.


text:
    HARRY HOAR, PROSECUTOR, v. ABRAM PREISKEL, COMMISSIONER OF PUBLIC SAFETY, CITY OF PASSAIC, RESPONDENT.
    Decided May 12, 1925.
    Officers — Policeman'—Dismissal of Officer by Commissioner For Violation of Rules — Failure to Report For Duty — Alleged Illness — Examination by Physician Some Hours Afterward Revealed No Illness Sufficient at That Time to Justify Action^ — Failure to Use Telephone in Reporting Illness Criticised — Evidence Examined and Action of Commissioner Sustained.
    On certiorari.

    Before Justice Minturn, by consent.

      .For the petitioner, Alexander MacLeod.

    For the Commissioner of Public Safety, Frederick S. Rmzenhofer, city counsel.
   This writ of certiorari brings up for review the action of the commissioner of public safety of the city of Passaic, in finding the prosecutor guilty of the charge of absenting himself from duty without leave, in violation of the rules of the police department, and, in pronouncing upon him a sentence of dismissal from the police force as a penalty for his violation of the rules.

The prosecutor admitted the dereliction of duty in not reporting at four o’clock in the, morning, but offered as an excuse the fact that he was physically unable to do so because -of a severe headache and pains in his stomach. And in this contention he was corroborated by his wife.

The physician of the police department testified that he examined the prosecutor at half past eleven on the same morning and found that he was physically able to report for duty at that time, but could not tell whether or not he had been sick at four o’clock that morning as was alleged.

There is testimony in the case from which the police commissioner might reasonably infer that the prosecutor, at the time, was sufficiently incapacitated by reason of his illness to prevent him from reporting as required by the rules, and there is also sufficient basis in the case to enable the commissioner to infer reasonably that the officer did not take sufficient interest in the requirements of the rales and in his own duty in this respect, either through himself or his wife, to make a report direct to headquarters concerning his situation. And it cannot be overlooked in these circumstances that with our ready and convenient means of communication by telephone and otherwise, such a requirement was at least incumbent upon the officer if he had a proper regard for the necessities of the situation and a proper conception of his duty.

The contention in the case is that there is no reasonable basis for the action of the commissioner in dismissing the officer from the police force. This requires the court to examine and weigh the entire evidence, and, if necessary, reach a conclusion at' variance with that reached by the commissioner.

An examination of the testimony leads the court to the belief that the commissioner had a substantial and reasonable basis for his action, and that under the rules of the department he was justified, if he believed the situation to be as he inferred from the testimony, in dismissing the officer from the force.

It has been determined by this court in a number of cases that where there is evidence upon which the trial tribunal might reasonably found its conclusion of guilt or innocence, the appellate court will not weigh the testimony or form an' independent judgment for the purpose of reversing the finding of the trial tribunal.

The rule in a matter of this kind is not limited entirely to the specific proof taken in the ease, but is sufficiently liberal to enable the trial tribunal, upon the proof taken, to reach a conclusion by reasonable inference.

The cases upon this subject are referred to and cited in the case of Martin v. Smith, 125 Atl. Rep. 142, where it is laid down that if the judgment of the trial court can be fairly supported by the record the duty of this court is at an end so far as further investigation is concerned.

I think there is enough in this case to sustain the finding of the commissioner.

The judgment appealed from will therefore be affirmed.


author: Mixtubx, J.

text:
    JOSEPH FEDARKO, PETITIONER, v. JOSEPH S. HOFF, DEFENDANT.
    Decided May 12, 1925.
    Habeas Corpus — Transfer of Persons From Rahway Reformatory to State Prison Alleged to Have Been a Sentence of the Reformatory Authorities — Habeas Corpus Act Provides, if Confinement is by Virtue of Any Warrant, Etc., a Copy Thereof Must Be Annexed to Petition — If It Had Been Done in Instant Case It Might Reveal a Legal Restraint, and Writ is Accordingly Denied.
    On petition for habeas corpus.

    Eor the petitioner, Butter & Butter.

   The opinion of the court was delivered by

Mixtubx, J.

This is an application for a writ of habeas corpus by Joseph Eedarko, now confined in state’s prison, at Trenton, wrho alleges that the cause of his confinement, to the best of his knowdedge and belief, w'as a sentence imposed upon him by the governing body of the reformatory at Rah-way, in punishment for certain misdemeanors alleged to have been committed by him vdiile in prison in the state reformatory.

Section 4 of the Habeas Corpus act (Comp. Skit., p. 2641) provides that if the confinement or restraint is by virtue of any w'arrant, order, process or commitment, a copy thereof must be annexed to the petition, or else a demand for such copy and a refusal thereof must be shown.

Pcunph. L. 1918, ch. 147, § 213, provides for the transfer of inmates from one correctional institution to another. See, also, Pamph. L. 1911, p. 159, § ,2.

In this situation it may be that if a copy of the commitment W'as before the court upon this application it would appear that the petitioner is detained by virtue of an original commitment by a court of competent jurisdiction to the reformatory, and that a legal transfer from the reformatory to the state prison had been made, in conformity -with the statute herein referred to, and under those circumstances no new or additional sentence had been imposed upon the petitioner.

The petitioner for a writ of habeas corpus will therefore be denied.


author: Pee Cueiam.

text:
    ALEXANDER KOPKO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF WALTER KOPKO, DECEASED, PLAINTIFF-RESPONDENT, v. NEW YORK LIVE POULTRY TRUCKING COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted November 6, 1924
    Decided May 5, 1925.
    Negligence — Motor Vehicle Accident Resulting in Death — Case Three Times Tried — Two Points Argued on Appeal — Decedent a Child of Unusual Aptitude, Marked Ability as a Musician — Objection Should Be Made to Question at Time l.t is Asked, Not After an Answer Unfavorable to the Objector Has Been Given — Qualification of Witness as Expert, a Court Question' — A Party is Bound by the Testimony He Has Brought Out — Court Not Called Upon, in Absence of Request to Charge, to State Something That Might Properly Have Been Stated — The Ultimate Test of Soundness of Instructions is Not What the Ingenuity of'Counsel Can, at Leisure, Work Out.
    On appeal from the Hudson County Court of Common Pleas.
    Before Gujvimeee, Chief Justice, and Justices Paekee and Katzenbach.
    For the defendant-appellant, Lazarus, Brenner & Viclcers (Alfred Brenner, of counsel).
    For the plaintiff-respondent, O’Brien & Tarialslcy (Samuel Tarialslcy, of counsel).
   Pee Cueiam.

This is an appeal from a judgment of the Hudson County Court of Common Pleas for $15,000. The record discloses that the ease has been twice tried. The first trial resulted in a verdict of $15,000. This verdict was set aside on the ground that the damages were excessive. The second trial was limited to the question of damages only. The second trial resulted in a .verdict of $19,500. A rule was again allowed to the defendant, and the verdict was reduced to the amount of the first verdict, to wit, $15,000. The action arose out of the killing of Walter Kopko on July 3d, 1922, by an automobile truck owned and operated by the defendant below, the New York Live Poultry Trucking Company.

Of the eleven grounds of appeal only two are briefed. The first point briefed is the aileged error by the trial court in admitting testimony regarding the musical ability of the deceased. The second point briefed deals with the alleged neglect of the trial court to charge that the amount to be awarded by the jury must be reduced to a capital fund. The remaining grounds of appeal will be considered as abandoned. Manda v. United States Express Co., 85 N. J. L. 720.

The deceased was a boy twelve and one-half years of age at the time of the accident. He was a child pf unusual aptitude and promise. He had marked ability as a musician. He played the violin. Out of his earnings he had saved and deposited in the bank at the time of his death $1,000.

The first ground of appeal relates to the testimony of Henry A. Christian regarding the skill of the deceased as a violinist. Christian was a violin teacher, forty-three years, of age. He had been giving violin lessons for a period of from fifteen to twenty years. He testified that the deceased in a few years would, because of his talent, become one of the great musicians. It is contended that this testimony created in the minds of the jury an impression that the boy was a genius of such ability that he would attain in a few years the prominence and affluence enjoyed by the great violin artists, such as Mischa Elman.

The difficulty with the appellant’s contention is threefold. In the first place the .testimony which the appellant considers damaging was the result of answers to questions unobjected to. When the appellant’s counsel did not like the answer to a question propounded by plaintiff’s counsel he moved to strike it out. This practice has been many times condemned. If sanctioned it would permit a party to speculate upon the outcome of an objectionable question. If the answer was favorable then it would be permitted to stand. If unfavorable, then a motion could be made to strike it out. The proper practice is to object to the question before the answer is given and ask for the court’s ruling upon the propriety of the question asked. Clark v. State, 47 N. J. L. 556; State v. Hummer, 73 Id. 714.

In the second place, objection was made to some of the questions, as, for example, the question, “Well, can you say whether or not this boy was a genius on the violin?” upon the ground that the witness, Christian, was not qualified to answer them. Whether a witness is qualified to act as an expert is a court question. If the court determines that the witness has the qualifications of an expert and there is evidence to support such a finding an objection to a question upon this ground is unavailing. Leonard v. Standard Aero Corporation, 95 N. J. L. 235. We think, upon this ground, the court was justified in overruling the objection to the question above referred to and similar objections to like questions.

In the third place, much of the testimony upon Kopko’s musical ability was elicited by the cross-examination of Christian. A party is bound by the testimony which he has brought out.

The second point argued is that the court erred in not stating to the jury that the plaintiff was entitled to recover only a capital fund which should represent the present value of all the pecunia^ loss which would fall upjon the next of kin. A court is not called upon, in the absence of a request to charge, to state something that it might with propriety have stated to the jury. If counsel for the appellant desired the court to charge the jury upon the subject of a capital fund a request to charge embodying this proposition should have been drafted and submitted to the trial judge. In the case of Leiferant v. Progressive Agency, 98 N. J. L. 526, the Court of Errors and Appeals held that unless there is a request to charge upon a particular point, error is not assignable, because the trial judge may have omitted to charge upon such point. The omission to state any legal principle which may be pertinent or applicable to the case affords in itself no ground for reversal upon appeal.

In this connection the appellant contends that it was error for the trial judge to have charged as follows: "In computing the damages, you must take into consideration not only the amount which the deceased would have earned had he continued to live, but you must deduct from that amount such sum as you believe would be necessary for his future care, maintenance and education. * * * In other words, gentlemen of the jury, in considering the damages to be awarded in this case, you may consider not onljr what the earnings of this boy would have been up to the time that he reached the age of twenty-one year's, but you may also take into consideration the fact as to whether or1 not, in your judgment, he would have made any such voluntary contributions to his next of kin after he reached the age of twenty-one years, you may consider that in assessing the damages in this case.” To this passage an exception was taken upon the ground that the attention of the jury was not called to the fact that the contribution to be made by the deceased would continue over a long period of time, and that in making an award the amount arrived at must be reduced to a capital fund. This is but another way of making the same contention as we have just considered. Whether there has been an error committed is to be determined not by what has been omitted, but by what the court has said. Was there error in what the court said? We think not. The portion of the charge quoted contains no erroneous statement of law. In-substance, what the court said in the instant case has been approved by numerous decisions. Morhart v. Street Railway Co., 64 N. J. L. 236. The ultimate test of the soundness of instructions is not what the ingenuity of counsel can, at leisure, work out. Kargman v. Carlo, 85 Id. 632.

The question of whether or not the amount of the judgment is excessive is not before us. This cannot be raised upon appeal. -

The judgment is affirmed, with costs.


author: Pee OuEiAjvr.

text:
    F. BOWDEN COMPANY, INCORPORATED, PLAINTIFF, v. CENTER AMUSEMENT COMPANY, INCORPORATED, DEFENDANT.
    Submitted November 6, 1924
    Decided May 5, 1925.
    Mechanics' Lien — Stop-notice For Supplies to Contractor — Somewhat Complicated Facts Reviewed and Held, That Judgment For Plaintiff For Full Amount of Claim Should Not be Interfered With, Not Being Against Weight of Evidence Nor Excessive, Since if Plaintiff's Witnesses are to be Believed There Were Sufficient Funds in the Hands of Owner to Which Contractor Was Entitled.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, -and Justices Parker and Katzenrach.
    Eor the plaintiff, Roger Hinds {Edward F. Glarh, of counsel).
    Eor the defendant, David Bother and Thomas L. Parson-net {William K. Flanagan, of counsel).
   Pee OuEiAjvr.

This case is before us on a defendant’s rnle to show cause. The action was tried at the Essex County Circuit. - It was instituted by E. Bowden Company, Incorporated, against the Center Amusement Company, Incorporated, to recover $9,-210.38, with interest. The plaintiff claimed this sum for materials, principally sand and cement, which it had sold to Jardín & Company, contractors, for the erection of a theatre building in the city of Newark for the defendant. On July 25th, 1921, Jardín & Company entered into a written agreement with the defendant for the erection of said theatre. The contract price was $132,500. The contract provided with reference to payments as follows: “As the work progresses, and on or before the 10th and 25th of each,month, owner will pay contractor eighty per cent, of the value of labor and materials furnished to the last day of the preceding period. Said payments are to be made upon certificates issued by the architect, as the work progresses.”

The plaintiff sold to Jardín. & Company materials to the amount mentioned. These materials went into the building. Jardín & Company continued work upon the building until after December 10th, 1921. Up to November 21st, 1921, there had been seven architect’s certificates issued, aggregating $83,000. The next payment was due on or before December 10th, 1921. The plaintiff had not been paid for its materials. It demanded payment of Jardín & Company. When not paid the plaintiff served a stop-notice under the Mechanics’ Lien act upon the defendant. This notice was served on December 8th, 1921. It was the basis of the present suit. The plaintiff contended, in the first place, that the work upon the building had progressed between November 21st, 1921 (the date of the last architect’s certificate), and December 10th, 1921, as rapidly as it had prior to November 21st, 1921. This progress of the work entitled Jardín & Company Lo an architect’s certificate for at least $15,000, on December 10th, 1921. The plaintiff further contended that an architect’s certificate to the amount of $15,000 had been issued and delivered on or about December 10th, 1921, to Jardín & Company, and that, subsequently, this certificate was changed to one for $2,500, dated December 5th, 1921. On December 17th, 1921, the Center Amusement Company took oyer the building in an unfinished state, and, subsequently, completed it. At the trial the defendant also contended, in addition to the defense, that there were no moneys due Jardín & Company at the time of the service of the plaintiff’s stop-notice; that there was a prior stop-notice served upon it by. the Franklin Lumber Company for $5,000, and that it had given to the Franklin Lumber Company its note for $5,000. The defendant further contended that there were labor claims amounting to $6,236.35, which it paid, which the Mechanics’ Lien act gave preference to- over the claim of the plaintiff. The evidence produced by the plaintiff at the trial was to the effect, as heretofore stated, that the work between November 21st and December 10th, 1921, a period of nineteen days, had progressed as rapidly as prior to November 21st, 1921; that Jardín & Company had, on November 21st, 1921, received an architect’s certificate for $12,000, and on November 3d, 1921, a certificate for $12,000, and on October 24th, 1921, a certificate for $12,000. The plaintiff contended, not only that there had been a certificate for $15,000 delivered .to Jardín & Company on or about December 10th, but that if this certificate had not been delivered the architect, who was the agent of the owner, had unreasonably persisted for the benefit of the defendant in withholding the certificate, which made the defendant liable. There were many suspicious circumstances regarding the alleged $15,000 certificate. The certificate would have' been the eighth certificate. Evidence was produced that the owner had paid on account of this certificate $6,000 and $1,000 in advance. The architect’s records also showed that on this date a certificate of $15,000 was given. This the defendant contended was upon another contract in which the same architect was employed. In view of this testimony we think that it was proper for, the trial court to have submitted to the jury the question for their decisions as to whether or not the evidence established either the giving of the certificate for $15,000, in which event there would have been sufficient to have paid the plaintiff, or that the defendant unreasonably withheld the certificate, the resnlt of which, so far as the plaintiff is concerned, wonld have been the same. This was a jury question under the case of Brannworth v. Verona, 94 N. J. L. 194.

If it .be assumed that the eighth certificate was only for $2,500, as the defendant contended, this, together with the balance dne upon other certificates previously issued, would have left a balance dne to Jardin & Company of $8,800. Whether or not the defendant was entitled to reduce this amount by the $5,000 paid by note to the Franklin Lumber Company, and the $6,236.35 for wages of laborers, presented also questions for the decision of the jury. The plaintiff contended that the $5,000 payment to the Franklin Lumber Company was not warranted; that it was conclusively shown that $5,000 worth of materials for use in the defendant’s building had not been furnished by the Franklin Lumber Companj1-; that Jardin & Company, under its contract with the defendant, was required to supply all necessary scaffolding, moulds, &c., at its expense, and that the lumber furnished by the Franklin Lumber Company was for the purpose of scaffolding and concrete moulds which the contractor had agreed to furnish. A further question on this branch of the case was presented as to whether the notice applied to the contract of the Center Amusement Company. An examination of the stop-notice reveals that it was addressed to Bratter and Pollock. The evidence showed that Bratter and Pollock were two officers of the defendant company who were erecting another theatre at South Orange avenue and Bloomfield avenue, for which Jardin & Company had the contract. The delivery slips offered in evidence showed that some of the lumber had been delivered to another building being erected by Jardin & Company at Central avenue and Sherman Place, Jersey City. There was therefore evidence that the stop-notice of the Franklin Lumber Company claimed a larger amount than the actual value of the labor or materials furnished to the Newark theatre building. It is fatal to a claimant to demand anything beyond the amount of the actual value of the labor or materials furnished to a building. Reeve v. Elmendorf, 38 N. J. L. 125. The situation with reference to the labor claims also gave rise to the question as to whether the Center Amusement Company were legally justified in deducting the amount of $6,236.35. This sum included amounts demanded by the laborers who had been working on the building for Jardin & Company for time which they had lost while waiting between the date of the suspension of the work by Jardin & Company and the taking of the building over for completion by the owner. Under union rules this time, called “waiting time,” was required to be paid or otherwise the mechanics would not continue to work upon the building for the owner. The amount claimed, therefore, included payments for which no labor had been performed. The full amount demanded, including the so-called “waiting time,” was paid. The defendant considered it politic to pay it to avoid labor troubles in completing the building. This, in effect,'made the notice for a larger sum than that which was actually due for labor performed. This state of the evidence made the question as to whether or not the owner was entitled to pay the amounts of the stop-notices, one for the decision of the jury.

The first point made by the defendant is that the trial judge should have granted the defendant’s motion for a non-suit. Erom the review of the evidence which we have made we are satisfied that this motion was properly refused. The evidence warranted the submission to the jury for their decision of the questions involved and which have been referred to. This equally applies to the point made by the defendant that the trial judge should have directed a verdict for the defendant. We think the verdict is not against the weight of the evidence, and is fully supported by the evidence.

xThe last point made by the defendant is that the verdict is excessive. The verdict is for the amount of the plaintiff’s claim, with interest. Upon certain branches of the case, if the testimony of the plaintiff’s witnesses was believed by the jury, as it evidently was, there were sufficient funds in the hands of the owner to which the contractor was entitled for the jury to award to the plaintiff the verdict they did.

The rule to show cause is discharged.