author: Pbe Cubiam.

text:
    JOHN WALZ, RESPONDENT, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, APPELLANT.
    Decided November 8, 1929.
    Before Justices Tbenchabd, Kalisch and Lloyd.
    For the appellant, Rewry II. Filing (William H. Speer, of counsel).
    For the respondent, Meehan Brothers (Thomas F. Meehan, of counsel).
   Pbe Cubiam.

This is an appeal from a judgment entered in the Hudson County Circuit Court, on the verdict of a jury, in favor of the plaintiff below, and against the defendant below, for the sum of $7,500.

The plaintiff, respondent here, sustained injuries while working on the roof of the power house of the defendant company, appellant here. He was a laborer, employed by the Federal Iron and Metal Company. The company had been, and was engaged in dismantling the chimney and boilers in and about the appellant’s power house. The respondent worked at this job from March, 1926, until August 3d, 1926, when he became disabled through an accident, which arose out of the following circumstances: On the day mentioned, according to the testimony, the respondent and his fellow servants were on the roof of the power house for the purpose of dismantling a steel smoke stack, which work required the carrying of tools and materials to the roof. The plaintiff testified that in the course of this employment, it became necessary to pull up an iron bar to be used, with other bars, in order to be laid across the stack to support boards for the cutters to stand on. The size and weight of the bar were in dispute.

There is testimony to the effect, that during the progress of the work, the workmen were ordered to take the materials and tools necessary to dismantle the smoke stack, through a trap door on the inside of the building, but there is also testimony, coming from the plaintiff, that he was directed by his foreman to take the iron bar up over the side of the building, because the bar was too heavy to be taken up through the centre of the building, and it was while the respondent was obeying the order of his foreman, and pulling up the bar over the side of the building, that he met with his injury.

According to the plaintiff’s testimony it was the first time he was on the roof. While in the act of hoisting the heavy iron bar, it came in contact with an uninsulated electric wire of the appellant company, carrying about thirteen thousand volts, the proximity and condition of which wire the plaintiff was unaware, and as a result, the respondent was painfully and seriously injured.

The two grounds of appeal relied on by the appellant for a reversal of the judgment are: (1) “Because the court, at the close of the plaintiff’s case, although moved so to do, refused to nonsuit the plaintiff on the ground that no negligence had been shown on part of the defendant, and on the ground that the plaintiff was guilty of contributory negligence, and on the ground that the plaintiff assumed the risk of his employment.” (2) “Because the court, at the close of the whole case, although moved so to do, refused to direct a verdict for the defendant on the ground that the plaintiff was guilty of contributory negligence, and on the ground that plaintiff assumed the risk of his employment.”

Both of these grounds'may be considered together and disposed of.

From a reading of the testimony there was proof from which a jury was warranted in finding that the defendant was guilty of negligence, to which negligence the respondent did not contribute, and also that the respondent had not assumed the risk of the danger to which he was exposed.

We think the maintaining of an electric wire, uninsulated, and carrying thirteen thousand volts, and so exposed that persons engaged in work or otherwise may come in contact therewith, is a deadly menace, and a public nuisance, so that for injuries or damage caused thereby, the appellant is answerable. There is no testimony tending to show that the plaintiff was aware of the presence of such wire in proximity to the work, which he was called upon to do, or that he had any warning of its presence. The mere fact that a warning by the defendant company was given to the contractor, does not, in our judgment, absolve the appellant company from liability, when it appears, as it does in this case, that the electric wire was uninsulated and was carrying thirteen thousand volts, and was, therefore, a menace to life and limb, and a public nuisance.

While it is true, that a servant assumes the risks or hazards of his employment, he only assumes such as are obvious to him, and existing and arising in his master’s service, but cannot be held to assume risks and dangers which are created by third persons, and of the presence or existence of which he is ignorant, and has had no warning.

The instant case presents purely factual questions which were for the determination of a jury, and are not reviewable here.

Judgment is affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FRANCES MUSZYNSKI ET AL., PLAINTIFFS, v. SAMUEL K. SEIDENBERG, DEFENDANT.
    Decided November 8, 1929.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, George B. Bailey.

    Contra, John W. McGeehan, Jr.

   Per Curiam.

The plaintiff Frances Muszynski was injured, while riding in an automobile along Clinton Place in the city of Newark, in a collision which occurred between that car and an auto truck belonging to the defendant. She brought suit to recover compensation for the injuries thus received, claiming that the collision was the result of the carelessness of the de-' fendant. Her husband joined her, seeking to recover compensation' for medical expenses incurred by reason of his wife’s injuries, and for compensation for the loss of her services. The trial resulted in a verdict in favor of the plaintiffs, the jury awarding Mrs. Muszynski'$600 and her husband $250.

The contention of the plaintiffs before us is that these awards are grossly inadequate. Our examination of the testimony leads us to the conclusion that this contention is well founded, and that because of the inadequacy of the verdicts a new trial should be directed.

The rule to show cause will be made absolute.


text:
    EMMA McCUSKER, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Decided November 8, 1929.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Henry H. Fryling.

    Contra, Alfred Brenner.

   Per Curiam.

The plaintiff brought suit to recover compensation for injuries received by her in a collision between a Public Service Co-ordinated Transport bus, in which she was a passenger, and a bus belonging to the B. & N. Transportation Company. The trial resulted in a verdict in her favor, the jury awarding her $12,500.

The first ground urged before us for setting aside this verdict is that it is contrary to the clear weight of the evidence on the question of the negligence of the driver of the Public Service bus. We have carefully examined the testimony sent up with the rule, and as a result of that conclusion are satisfied that the jury were justified in their finding as to that fact.

It is further contended that the award of $12,500 to the plaintiff is grossly excessive. We cannot say that this so clearly appears as to justify us in interfering with the verdict upon that ground. If the testimony of plaintiff’s doctors is to be believed (and it was for the jury to say whether or not their testimony was convincing), plaintiff’s injuries were very serious and are probably permanent.

Our conclusion is that the rule to show cause should be discharged.


text:
    THE STATE HIGHWAY COMMISSION AND PHILIP G. HYER, PLAINTIFFS, v. ISAAC R. STRAGER, DEFENDANT.
    Decided November 8, 1929.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, M. Casewell Heine.'

      Contra, Harold McDermott.

   Per Curiam.

The plaintiff Hyer, who was an employe of the state highway commission, was run down and injured by an automobile of the defendant while engaged in his work of supervising the construction of the state highway in the town of Eanwood. He brought suit against the defendant to recover compensation for injuries thus received by him. The highway commission joined as a co-plaintiff, claiming that they were entitled to recover from the defendant moneys - that they had been compelled to pay Hyer under the Workmen’s Compensation act. When the case came on to be tried, however, the state highway commission submitted to a voluntary nonsuit, and the case proceeded solely upon the claim of Hyer against the defendant. The trial resulted in a verdict in favor of the plaintiff, the award to him being $5,000.

The only ground upon which we are asked to make the present rule absolute is that this award is excessive. Our examination of the testimony sent up with the rule leads us to the conclusion, that this contention is without merit, and that the award is a reasonable one.

The rule to show cause will be discharged.


author: Pee Cubiam.

text:
    KATHERINE B. WOOLLEY, PLAINTIFF, v. MEYER TRAUB ET AL., DEFENDANTS.
    Decided November 8, 1929.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Howard Ewart.

    Contra, Harry E. Newman.

   Pee Cubiam.

Plaintiff brought suit to recover compensation for injuries received by her in a collision between a car of the defendant Nisselson, which was being driven by the other defendant Traub, and a car belonging to one Pearl, in which she was riding when the collision occurred. The trial resulted in a verdict in her favor, the jury awarding her $500. Considering this award grossly inadequate, she applied to the trial court of a rule to show cause why the verdict should not be set aside and a new trial granted with respect to damages only. This application was granted and a rule to that effect was entered.

The only matter before us under the limitation of the rule is whether or not the plaintiff’s contention is justified. The proofs satisfy us that it is, and that a new trial should be ordered because of the gross inadequacy of the verdict. It is of course settled that this court is not bound by the limitations contained in the rule to show cause, but we see no reason for directing a new trial upon the whole case.

The rule to show cause will be made absolute, and the new trial limited to the question of the compensation to which the plaintiff is entitled, by reason of her injuries.


author: Pee Curiam.

text:
    ELMER YEAGER ET UX., PLAINTIFFS, v. ATLANTIC CITY AND SHORE RAILROAD COMPANY, DEFENDANT.
    Decided November 8, 1929.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, Bourgeois & Coulomb.

      Contra, Samuel Morris.

   Pee Curiam.

This action was brought by the plaintiffs, Elmer Yeager and Laura Yeager, his wife, to recover compensation for damages sustained by them, when the defendant’s trolley car crashed into the rear of the husband’s automobile, in which they were riding. The jury brought in a verdict in favor of the plaintiffs, awarding the husband $2,000 and the wife $500.

The only ground upon which we are asked to set aside these awards is that they were plainly excessive. Our examination of the testimony relating to the character of the injuries received by the respective plaintiffs, the medical expenses incurred by the husband by reason thereof, the loss of wages by the husband, and the cost of repairing his automobile satisfies us that the award to him was a reasonable one. The character of the injuries received by the wife in the collision justified the award made to her, in our opinion.

The rule to show cause will be discharged.


author: Pee Cueiam.

text:
    MYRTLE BENSON, PLAINTIFF, v. BENJAMIN A. LIPPMAN ET AL., DEFENDANTS.
    Decided November 8, 1929.

      Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Harry B. Cooper.

      Contra, Howard Ewart.

   Pee Cueiam.

The plaintiff, while riding in the car of Lippman, on the road from Maplewood to Toms River, was injured in a collision between that car and a car belonging to the defendant Stanley Gesicki, and driven by his son Joseph, the third of the defendants. She brought the present suit to recover compensation for the injuries so received, claiming that the collision was the result of the joint negligence of Lippman, who was driving the car in which she was riding, and of Joseph Gesicki. The trial resulted in a verdict in favor of Lippman, the jury exonerating him from any charge of negligence, and in favor of the plaintiff against the two Gesickis. The latter thereupon applied for and obtained the present rule.

The first ground, upon which we are asked to make the rule absolute, is based upon the refusal of the trial court to nonsuit the plaintiff as to the defendant Stanley Gesicki and also upon the refusal to direct a verdict in his favor. The motions were based upon the theory that the son Joseph was using the car for his own pleasure, and not as the agent, or employe, of his father, and that therefore the latter was not responsible for the carelessness of his son. Apparently, counsel for the defendant in making these motions overlooked the fact that certain interrogatories were submitted by the plaintiff to the two Gesickis, one of which was as follows: “At the time and place of the accident was not the said automobile operated and driven by the authority of the owner, Stanley Gesicki?” The answer to that interrogatory is, “Yes.” The answer was sworn to, and of course, in view of this admission, the court was entirely justified in refusing to nonsuit or direct a verdict in favor of the defendant.

It is next contended, that the finding of the jury that the collision occurred by reason of the negligence of the defendant, Joseph Gesicki, is contrary to the clear weight of the evidence. Our examination of the proofs in the ease satisfies us that this contention is without merit.

It is next contended that the verdict should be set aside, because of the fact that the proofs showed the defendant Lippman to have contributed by his own negligence to the happening of the accident, and that his negligence should be imputed to the plaintiff, because of the fact that he and she were engaged in a joint adventure. In our opinion, the testimony justified the jury in its finding that the accident was not the result of any negligence on the part of Lippman; but even if their finding had been to the contrary, that fact would have been no bar to the right of the plaintiff to recover against the two Gesickis, for. the proofs demonstrate to our satisfaction that Lippman and the plaintiff were not engaged in a joint adventure, within the meaning of that expression, at the time of the collision.

Another ground for making the rule absolute is directed at a refusal to charge a request submitted by counsel for the defendants Joseph and Stanley Gesicki, the pith of which was that if the jury should find that the collision was partly due to the carelessness of Lippman, that would bar the plaintiff from a right of recovery because of the fact that she was at the time engaged with him in a joint adventure, and that his negligence would consequently be imputed to her. What we have already stated disposes of this contention.

Lastly, we are asked to set aside this verdict for alleged errors in the charge to the jury. The instructions complained of were in our opinion entirely proper and contain no erroneous statement of law.

The rule to show cause will be discharged.


text:
    HATTIE SIGRIST AND JACOB SIGRIST, PLAINTIFFS, v. JOSEPH NOON AND HENRY DIXON, DEFENDANTS.
    Decided November 9, 1929.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, Schneider & Schneider (William T. Braun, of counsel).

      Qonira, Br.eslin & Breslin.

   Pee Cueiam.

The plaintiffs, husband and wife, obtained a verdict in the Bergen Circuit, in an action brought by them in this court, against the defendants, to recover compensation for injuries sustained by the female plaintiff, and for loss of consortium and for expenditures incurred by her husband, as a result of her being struck by a bus, of which the defendant Joseph Noon was the owner, and which was then being driven along a public highway, on January 7th, 1928, by his servant, Henry Dixon. The jury awarded the female plaintiff $9,000, and the husband $1,000.

The first point made, on behalf of defendants, is, that the verdict for both defendants was contrary to and against the weight of the evidence.

An examination of the testimony fails to support this contention.

The case discloses, that the plaintiff, who was a passenger, riding on a Public Service bus, alighted therefrom at Clark Terrace and Anderson avenue, in the borough of Cliffside Park. She then walked in front of the bus, from which she had alighted, and the driver thereof motioned to her to come across; she passed the bus, and after doing so, looked to the right and left, to see if the road was clear. On her left, she saw a car and a bus coming about a hundred feet away from her, and she says she thought she could get across, when she was struck by the oncoming bus, and according to the testimony of a passenger, who witnessed the accident, she was thrown up in the air with her shoes knocked off, in a cloud of dust; that no warning had been given by the bus of its approach, and that the woman was picked up about seventy-five feet away from where she was struck; that the bus continued on its route, after it struck her, and when it stopped, was almost three-quarters of a block away.

It is quite evident from the testimony in the case, that if the driver of the bus had been exercising a reasonable degree of care, he could not have failed to see that the Public Service bus had stopped to permit its passengers, or passenger, to alight, and that the female plaintiff was in the act of crossing the street. The female plaintiff had a right to assume, seeing the bus about a hundred feet away, that the driver thereof had the bus under control, and would use reasonable care in operating it, and have regard for her right to cross the street safely.

We cannot say, from a reading of the testimony, that the verdict is clearly against and contrary to the weight of evidence.

Next it is said, the verdict for the female plaintiff is excessive. Taking into consideration the injuries which she sustained, and her earnings, before the accident, we think the verdict is excessive, and unless she is willing to accept $6,000, the rule will be made absolute, otherwise, it will be discharged.

There is no claim made that the verdict in favor of the husband is excessive, and as to him, the rule will be discharged.


text:
    GRACE A. KASS, PLAINTIFF-RESPONDENT, v. FRANK GLATZEL, DEFENDANT-APPELLANT.
    Decided November 9, 1929.
    Before G-ummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellant, Samuel H. Nelson.

    Eor the respondent, Joseph Goult.

   Per Curiam.

On August 21st, 1928, the plaintiff, at about seven-thirty o’clock in the morning, entered the bake shop kept by the defendant, for the purpose of making a purchase. The shop has two show windows in front, facing the street, and these two windows are, divided by a vestibule about six or eight feet long. The vestibule inclines from the sidewalk, and at the top of the incline is the door, by means of which the only front entrance into the front of the store is made.

The plaintiff entered the store, and walked through the vestibule, and was gazing into one of the show windows, and according to her testimony, took no notice of the condition of the vestibule at that time; that she was about five or ten minutes in the store and made purchases. As she was leaving, she noticed the floor of the store was quite wet; she walked over and just entered the vestibule, when she slipped and fell.

The fall caused her hands to come in contact with the floor and then she perceiv.ed the floor was soapy and slippery. Her clothes which came in contact with the floor were soapy and very dirty.

An action was brought by the plaintiff, against Frank Glatzel, and Ida Glatzel, his wife, to recover damages sustained by the plaintiff as the result of her fall. A nonsuit was granted as to Ida Glatzel, and the case proceeded against Frank Glatzel, alone.

There was a verdict for the plaintiff, and a judgment entered thereon in the sum of $1,250 against the defendant.

The grounds of appeal relied on by the appellant, for a reversal of the judgment, are: (1) “The Circuit Court erred in refusing to grant a nonsuit on the grounds there was no evidence indicating that the defendant-appellant, Frank Glatzel, had any knowledge of the condition of the vestibule, that is, that the vestibule was wet and soapy as complained of by the plaintiff.” (2) “The Circuit Court erred in refusing to grant a nonsuit on the ground that the plaintiff’s testimony indicated, as a matter of law, that the plaintiff was guilty of contributory negligence, in that she failed to make proper observation for her own safety in walking into the vestibule in question, and failed to make the proper observation for her safety while in the vestibule in question.”

Neither of these propositions is sustained by the proof. As to the first ground of appeal, there was proof the floor was wet, and the defendant himself testified he washed the floor that morning. According to plaintiff’s testimony, the floor was not only wet, but it was slippery from the soap which had been used in the washing. The defendant having admitted he washed the floor up to the entrance door, the jury had a right to infer from the fact that there was a down-grade from there to the street, that the soap and water used to wash the floor, by the defendant, seeped down into the vestibule. The jury was warranted from defendant’s testimony to infer that he had knowledge, not only that the floor was wet, but the vestibule also.

As to the second ground for reversal, that the plaintiff was guilty of contributory negligence, it is quite clear, that under the circumstances which confronted her, the question whether she had ezercised reasonable care for her own safety in leaving the store, was a jury question. There was no testimony of any fact or circumstance which tended to indicate to her mind that the floor was dangerous to walk upon, and that it was a hazardous undertaking, on her part, to leave the store by the only ezit afforded for that purpose.

Judgment is affirmed, with costs.


text:
    ANNA E. FAGER, PLAINTIFF, v. EDWARD WOOTTON, DEFENDANT.
    Decided November 9, 1929.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, William, Charlton.

      Contra, Edwin Field Crane (Albert S. Woodruff, of counsel).
   Pee Cueiam.

The plaintiff obtained a verdict in the Camden Circuit against the defendant, for the sum of twelve thousand dollars, for injuries sustained by her, as the result of being struck by an automobile driven by the defendant, on a public highway in Ocean City.

The only ground upon which the judgment is assailed, is, that the amount of the verdict is excessive.

The plaintiff was seventy-four years of age, but according to the testimony, she was a very active woman. There was testimony in the case that about thirty years prior to the happening of the present injury she sustained an injury to her knee cap, and the circumstance that there never was a complete healing, left her with a slight limp.

The injury which she sustained in the accident was a painful one—a fracture of the right hip at the point where the shaft of the thigh bone makes a slight turn to go over and make the hip-joint. The injury is not only permanent, but painful in character.

There is testimony to the effect that about fifteen hundred dollars was expended for doctors, and that in the course of time more sums will be required to be expended because of the need of medical attendance; that she has become crippled, and for the last eight months preceding the trial, required the constant attention of medical aid, and is still unable to move about.

It further appears, in order to minimize expenses the plaintiff has taken up her residence at the Hahneman Hospital, Philadelphia, at a cost of $38.50 a week, which will be a continuous expense, include nursing and all medical attention, and treatments and doctors5 bills.

She is, in fact, rendered helpless, and will continue so, and the last years of her existence, which may be few, will bo filled with pain and suffering. She is entitled to have the means by which she can enable herself to move about. If she requires a nurse and wheel-chair so that she can do so, it will entail expense. We think, therefore, under all the circumstances the verdict is not excessive.

Rule is discharged, with costs.


text:
    MORRIS AND COMPANY, BRANCH OF THE NORTH AMERICAN PROVISION COMPANY, PLAINTIFF, v. JOHN HOURIHAN AND EDWARD J. KEYS, DEFENDANTS.
    Decided November 9, 1929.
    Before Gummere, Chief Justice, and Justices Kalisoh and Campbell.
    Eor the rule, Jacob W. & Edgar A. De Yoe.

      Contra, no brief.
   Per Curiam.

The plaintiff brought its action against the defendants, Hourihan as the principal debtor, and Keys as guarantor, to recover the sum of $4,002.48, for goods, wares and merchandise, sold by it to John Hourihan, between March 2-3d, 1928, up to and including April 9th, 1928, upon a general guarantee executed in writing on the 22d day of September, 1927, by the defendant Keys, which general guarantee was without any limitation as to the amount of credit to be extended by the plaintiff to Hourihan, nor as to any period of time during which the guarantee was to run. The jury found a verdict for the defendant.

The defendant Hourihan filed no answer in the action and neither defendant has filed a brief in the case. The defendant Keys who filed an answer, does not deny therein that he signed the guarantee, but inferentially admits that he did, for he sets up that it was misrepresented to him that it was a reference slip, and in another part of the answer, the defendant Keys further sets up the following: “Contrary to the general usage and custom of the trade, a larger credit was extended for a longer period than that explained to the defendant by an agent of the plaintiff company.”

The defendant Keys, in his testimony, at the trial, admitted that the guarantee bore his signature and says that he did not read it, and thought he was signing a reference slip. Upon the reference slip being produced, which also bore his signature, the witness said that he did not remember .signing the guarantee.

There is no testimony in the case that tends to show that the signature to the guarantee was obtained by any false representation made by the plaintiff, or its authorized agent.

The verdict of the jury was both against the law and the . evidence, and therefore is set aside.

Rule is made absolute.


text:
    BERTHA SHAMBERGER, PLAINTIFF, v. MARY NISKY AND ALBERT VAN BLARCOM, DEFENDANTS.
    Decided November 9, 1929.
    Before G-ummeke, Chief Justice, and Justices Kalisch and Campbell.

      For the rule, Ward & McGinnis (Peter J. McGinnis, of counsel).
    For the defendant Mary Nisky, Abraham I. Feltman.

    For the defendant A. Yan Blarcom, Joseph Goult.

   Pee Cubiam.

The plaintiff was injured in a.collision between the defendant Yan Blarcom’s automobile, and operated by him, at the' time of the collision, and an automobile of the defendant Mary Nisky, in whose car the plaintiff was a passenger, at the invitation of the former, and who was opreating her ear.

There was a verdict for the defendants. It is difficult to comprehend upon what reasonable theory the jury found a verdict for the defendants. It is certainly clear, that if both had exercised reasonable care the accident would not have happened. According to the testimony, the jury could have found both defendants guilty of negligence. It may very well be, that neither could have recovered any damages against each other, because of their joint negligence, but as the plaintiff was not chargeable with negligence, contributing to her injury, she being a passenger in the car, she was entitled to a recovery, if the jury believed the testimony against both defendants.

The rule to show cause is made absolute.


text:
    BENJAMIN GREENBAUM, PROSECUTOR, v. ZENO HIGGINS AND PATRICK L. LYNCH AND THE PASSAIC DISTRICT COURT, RESPONDENTS.
    Submitted May 18, 1929
    Decided November 14, 1929.

      Before Justices Treychard, Lloyd and Case.
    Eor the prosecutor, Peter Cohn.

    Eor the respondents, .Edward P. Merrey and Barton II. Walker.

   Per Curiam.

Greenbaum, the prosecutor of this writ, obtained a judgment in the Passaic District Court, in his suit against Zeno Higgins and Patrick L. Lynch, in the absence of the defendants.

Thereafter the judge of the District Court allowed the defendants a rule to show cause why such judgment should not be opened. After hearing, the judge opened the judgment.

The legal propriety of that order is now challenged.

We think it should not be disturbed.

It appears from an examination of the order and of the finding of facts made by the trial judge that the trial judge found from the evidence that when the case was originally put on the list for trial the plaintiff did not appear, and the case was marked “not moved;” that later the case was restored to the list at the request of the plaintiff and heard in the absence of the defendants and judgment entered for the plaintiff; that defendants were not notified of the day fixed for such trial as required by section 148 of the District Court act; that notice to Mr. Stalter was not notice to the defendants because his services in behalf of the defendants had been discontinued during the interval and that the attorney of the plaintiff had knowledge of such discontinuance at the time the case was fnoved for trial; that the defendants had a defense to such action on the merits of the case.

The evidence taken at the hearing on the rule, and upon which the order was based, is not laid before ns in detail. In such situation we assume that the evidence justified the finding, and that being so we think the order was justified. But the plaintiff says the order opening the judgment was made more than thirty days after the judgment was entered, and he argues that under section 17 of the District Court act the-o'rder, made eighty-nine days after judgment, came too late. We think not. This order was not made under the statute, but under the inherent power of the court to vacate a judgment void for want of jurisdiction because the parties were-not legally in court. See 34 C. J. 255, and Lutler v. Neubauer, 100 N. J. L. 17.

The order is affirmed, with costs.


text:
    MARION D. FITCHETT, PROSECUTOR, v. BENJAMIN F. TURNER, DIRECTOR OF PUBLIC SAFETY OF THE CITY OF PASSAIC, THE BOARD OF COMMISSIONERS OF THE CITY OF PASSAIC, AND THE CITY OF PASSAIC, DEFENDANTS.
    Submitted May 18, 1929
    Decided November 14, 1929.
    Before Justices Trenchard, Lloyd and Case.
    For the prosecutor, Sigmond Unger (Arthur T. Vanderbilt, of counsel).
    For the defendants, Joseph J. Weinberger.

   Pee Cubiam.

This writ of certiorari brings np for review the action of the commissioner of public safety of the city of Passaic in summarily dismissing Marion D. Fitchett from her employment as a special investigator of the police department of Passaic. She was employed by a resolution of the board of commissioners adopted February 3d, 1920, reading as follows: “Resolved, that the following persons be employed in the various city departments,” and her name was amongst others, and therein she was described as “special police investigator,” and her salary “per annum” was therein fixed.

She was summarily dismissed without a hearing on August 29th, 1927. She claims this .was illegal and relies upon article 16, section 3, Pamph. L. 1917, p. 359. That act provides: “No person shall be removed from office or employment in any such police department or from the police force of any such municipality for political reasons, or for any other cause than incapacity, misconduct, non-residence, or disobedience of just rules and regulations;” and also relies upon article 16, section 5, which provides that “no person whether officer or employe in any such police department shall be removed from office or employment therein, except after just cause, as hereinabove provided, and then only after written charge or charges of the cause or causes of complaint shall have been preferred against such officer or employe, signed by the person or persons making such charge or charges and filed in the office of the municipal officer,” &c.

The record discloses, we think, that the prosecutor was not employed temporarily for a limited period, but was employed for an indefinite employment, and was actually employed uninterruptedly for nearly eight years as an investigator for the police department, and was recognized and paid as such. Her duties were many and varied. She acted as a police matron, investigated domestic and probation cases and the like for the police department, and the duties which she was required to and did perform were of a general, common and recurrent nature. She was discharged without written charges or hearing, with this bare statement: “Your services will no longer be required in this department.” At the time there was no suggestion that she was discharged because the employment that she held was abolished, or for reasons or economy, nor does the latter reason, now urged, satisfactorily appear, it being, as we view it, a mere afterthought.

We think the order of dismissal must be set aside, with costs.


text:
    GRANTWOOD LUMBER COMPANY, A CORPORATION, PROSECUTOR, v. NICHOLAS J. SCHWEITZER, RECORDER OF THE BOROUGH OF CLIFFSIDE PARK IN THE COUNTY OF BERGEN, AND BOROUGH OF CLIFFSIDE PARK IN THE COUNTY OF BERGEN, DEFENDANTS.
    Submitted May 18, 1929
    Decided November 14, 1929.
    Before Justices Teenchard, Lloyd and Case.
    Por the prosecutor, J. Emil Walscheid.

    Por the defendants, Arthur M. Agnew.

   Per Curiam.

This writ of certiorari brings up for review a conviction of the prosecutor for violating section 2 and subdivision 4 of section 6 of the zoning ordinance of the borough of Cliff-side Park, approved September 27th, 1920, in that the prosecutor made a use of its premises not allowed by such ordinance.

The prosecutor contends that the ordinance was never lawfully adopted in that it was never properly finally passed, and for that reason, among others, the conviction should be set aside.

Upon careful consideration wo feel constrained to think that there is merit in this contention.

The ordinance upon which the conviction is founded is said to have been passed pursuant to the provisions of chapter 240, laws of 1920, page 455, a supplement to the Home Eule act. That supplement provides (among other things) that:

“1. The governing body of each and every municipality in this state shall have power by ordinance to regulate and restrict the location thereafter of trades and industries and the subsequent location of buildings designed for a specified use in any designated area, and may divide the municipality into districts of such number, shape and area as it may deem best suited to carry out the purpose of this act,” &c.

The Home Eule act (chapter 152, article 10, section 1, as amended by Pamph L. 1918, ch. 163, p. 478), reads:

“No ordinance shall be finally passed unless it has been read in substantially its final form at a meeting held at least one week prior to its final passage,” &c.

The prosecutor points to the last quoted provision and says that it was not complied with in the passage of the ordinance. That seems to be so, in that the record laid before us discloses, as we shall more fully point out, that the ordinance was finally passed on the same day that it was amended in respect to a substantial matter. The record discloses that the original ordinance was introduced and received its first reading on August 23d, 1920; that notice of intention to consider the final passage of the ordinance on September 13th, 1920, was given; that on September 13th, 1920, a hearing was held and “the ordinance was continued on its first reading;” that on September 27th, 1920 (a regular meeting), it was resolved by a unanimous vote that the ordinance “be amended so as to make the area fronting on the westerly side of Palisade avenue, from Franklin avenue north to the northerly boundary line, changed from a business district to a one-family dwelling district, and that the area fronting on the westerly side of Palisade avenue from Oakdene avenue north to Washington avenue, be changed from a business district to a one-family dwelling district, and that the map be changed accordingly.” At this same meeting at which the ordinance was thus amended, to quote from the minutes, “the ordinance as amended was then taken up on second reading—Ayes: Councilmen Sammis, Flood, McGuire, McAvoy and Post. Nays: None. On motion of Councilman Flood, seconded by McGuire, the ordinance was passed on third reading and final passage. Ayes: Councilmen Sammis, Flood, McGuire, McAvoy and Post. Nays: None.”

It will therefore be seen that the ordinance in question, as amended, had its only reading on September 27th, 1920, the date of its final passage. This fact is not disputed by the defendants; on the contrary, it is admitted. But the defendants through their counsel say (and this is all that is said in this connection) that '“at this meeting, before final action was taken, a minor amendment was adopted changing, in a very small way, the ordinance in question. From an examination of the zoning map it will • be seen that the amendment did not change the ordinance in substance.”

We believe that to be a mistaken and erroneous view. The ordinance introduced was a zoning ordinance, its object being to divide the borough into areas and to define the uses to which property could be put in each area. The ordinance as introduced showed the divided areas and the uses to each allocated in full on a map accompanying and made part of the ordinance. On that map, two certain areas, hereinbefore referred to, one fronting on the westerly side of Palisade avenue from Franklin avenue north to the northerly boundary line, and one fronting on the westerly side of Palisade avenue from Oakdene avenue north to Washington avenue, were laid out on the map and marked thereon as business districts. The change made was unquestionably a change in essence or substance. That the above areas should be open or restricted to business purposes as business districts was no less of the very essence and substance of the ordinance than that any other area in the borough of Cliffside Park should be similarly or otherwise limited. That those areas should be so open or restricted was certainly no mere matter of form to the owners of properties. That those areas should be so open or restricted necessarily affected the property adjacent thereto and was inseparably bound up in and intertwined with the uses allocated to the other properties of the borough and with the entire zoning plan. The changes made not merely changed entirely and substantially the uses of those areas to the owners thereof but necessarily carried with them a chain of consequential effects to the property immediately adjacent thereto and to all the remaining territory of the borough.

Upon the authority of Rutgers College Athletic Association v. New Brunswick, 55 N. J. L. 279, and State v. Newark, 30 Id. 303, we consider that the ordinance in question was not legally adopted, and therefore the conviction in the present case must be set aside, with costs.


text:
    MAYOR AND COUNCIL OF THE BOROUGH OF BERGENFIELD, PLAINTIFFS-RESPONDENTS, v. HARRY E. PETERSON, JOHN FRICK, E. CHRYSOMALIS, PETER MARCADOS, CHESTER HENES, FRANK TATEM AND CHARLES M. DOCKEY, DEFENDANTS-PROSECUTORS.
    Submitted May 18, 1929
    Decided November 14, 1929.

      Before Justices Teenchard, Lloyd and Case.
    Eor the prosecutors, Karlcus & Karims.

    For the respondent, J ames S. De Turclc.

   Per Curiam.

The several prosecutors of this writ were each convicted in separate suits in the recorder’s court of a violation of an ordinance of the borough of Bergenfield, in that they each did peddle and offer for sale books and tracts, without having obtained a license for that purpose, contrary to the provisions of such ordinance.

We have not stopped to inquire as to the legal propriety of the procedure by which these convictions have been brought up. The complaints, the warrants, the proceedings and evidence at the trials, and the convictions, are practically identical in all of the cases, and they may be conveniently dealt with as one case as evidently intended by counsel.

The defendants first say that the evidence did not justify the convictions. We think it did.

The evidence recited in the convictions shows, and the recorder found as a fact, that each defendant, without a license for that purpose, peddled and offered for sale at different residences in the borough, on the day charged in the complaints, books and pamphlets which each defendant carried with him for the purpose of sale and delivery. All this was not denied by the defendants; on the contrary they each admitted it. The convictions were therefore quite justified. Hewson v. Englewood, 55 N. J. L. 522.

The defendants next say that the complaints were defective because not clear and certain. This is untrue in fact. Moreover, no question as to the sufficiency of the complaints was raised at the trials.

The defendants next argue that the recorder was without jurisdiction to hear the cases. That argument is without merit. There is no suggestion that the recorder did not have jurisdiction of the subject-matter, and at the trials the defendants stipulated “the defendants were properly before the court.” Moreover, no question of jurisdiction was raised at the trials.

The defendants next argue that the ordinance is void as delegating the power of taxation to a judicial officer and as fading to fix the precise penalty to be imposed. This point has no basis either in law or in fact. It was not suggested at the trial, and is not embraced in any reason filed for setting aside the convictions.

Lastly the defendants contend that “the application of this ordinance to the distribution of books or pamphlets in furtherance of the religious principles of the defendants is an unreasonable exercise of the police power.”

Our examination of the evidence shows peddling and offering for sale of books and pamphlets of an undisclosed character. It fails to disclose that defendants were engaged in the mere distribution of books or pamphlets in furtherance of their religious principles. There was no such contention made at the trial. Indeed the only suggestion there made from first to last why the defendants should not be convicted was at the conclusion of the respective trials when their counsel “moved for an acquittal on the ground that it had not been shown that he sold books for a living.” Moreover, here again this point is not embraced in any reason filed for a reversal.

The several judgments of conviction under review will be affirmed, with costs.


text:
    CORA O’NEILL, PLAINTIFF-RESPONDENT, v. GEORGE W. HENDRICKSON, DEFENDANT-PROSECUTOR.
    Submitted May term, 1929
    Decided November 14, 1929.
    Before Justices Tren chard, Lloyd and Case.
    Eor the prosecutor, Carey & Lane.

    Eor the respondent, Charles H. Stewart.

   Per Curiam.

The writ of certiorari brings up for review a judgment entered in the Second Judicial District Court of the county of Essex in favor of the respondent, who was the plaintiff below, and against the prosecutor of this writ.

On September 12th, 1927, summons, returnable September 20th, 1927, was issued and duly served. On the return day the cause was adjourned and thereafter continued regularly from time to time until April 27th, 1928. Meanwhile, the plaintiff in the cause had changed attorneys. On the last' mentioned date the case was moved, tried and judgment entered. No one was present representing the defendant. The attorney for the defendant thereafter applied to the trial judge to set aside the judgment and hear the matter anew. The trial court denied that application. The defendant now appears as prosecutor of the writ and sets forth five reasons why the judgment below shotdd be set aside and a new trial ordered. They are:

1. The cause was listed for trial and moved to judgment in the District Court in the absence of and without notice to the defendant or his attorneys.

2. The prosecutor had a meritorious defense.

3. The judgment was entered without notice and without due process of law.

4. The judgment below was entered in violation of a stipulation and agreement between the attorneys for the defendant in the suit and the attorney for the plaintiff in the suit, to the effect that the case would not be moved until the attorneys for the defendant were notified.

5. The action of the judge of the District Court in refusing to set aside the judgment on the return of the rule to show cause was an abuse of discretion.

We have examined with care not merely the points as set forth above but the evidence relating thereto, and we find no substance therein. The defendant was duly in court and by regular adjournments was kept in court until the day of trial and judgment. He alleges that there was an oral agreement between counsel that the case would not be moved without notice to defendant’s counsel, but this court can take no cognizance of'such an alleged agreement. 3 Comp. 8tat., p. 4054, § 11. It does not appear that defendant’s attorney even listed his name with the clerk of the court as an indication of such representation. It is in evidence that the newly appointed attorney for the plaintiff, in preparation for trial, examined the files of the ease, as well as the records of the court, and found no listing of defendant’s attorney other than the name of a man who was not an attorney of this state, whose name did not appear in the bar directory and who could not be located. The defendant had his day in court, and if he was not in position to take advantage of it, it was because his attorney had not taken those precautions that the rules and practice require.

We find no abuse of discretion in the action of the District Court judge in refusing to set the judgment aside.

The judgment below is affirmed.


text:
    ARCOIL COMPANY OF MARYLAND, PLAINTIFF-APPELLEE, v. JACOBSON MANUFACTURING COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1929
    Decided November 14, 1929.
    Before Justices Teenchaed, Lloyd and Case.
    Eor the plaintiff-appellee, Pilgrim & Ritger.

    Eor the defendant-appellant, Gohen & Klein.

   Pee Cueiam.

This case comes up on appeal from the Essex County Circuit Court. Plaintiff sued the defendant for damages alleged to have been caused by the alleged breach of a contract between the parties, which breach was followed by a notice of termination given by the plaintiff to the defendant. Judgment was given for the plaintiff and defendant appeals.

There was a contract dated October 7th, 1927, between the defendant, as manufacturer, and the plaintiff, as distributor, whereby the defendant gave to the plaintiff the exclusive selling right on Arcoil Oil Burners in the city of Baltimore, and Baltimore, Carol and Hartford counties, for a period beginning September 29th, 1927, and ending September 30th, 1930. There were various undertakings by the parties. Amongst other things the defendant undertook “to otherwise assist the dealer in effectively promoting the sale of Arcoil Oil Burners.” On January 6th, 1928, the defendant published in certain newspapers, including the New York Times, an advertisement containing the words: “The Jacobson Manufacturing Co. has eliminated all the expensive cost—■ of distribution, and now offers the Arcoal Oil Burner at a price that is within the means of everyone. Formerly the dealer and distributor got a $250 profit; the salesman got a $100 profit; the financing charges were $75, and the cost of tank installation was at least $60 more. All these profits are now eliminated. When you buy an Arcoil Burner you pay for what you get * * * and not a lot of miscellaneous extras, or four middlemen, collecting a part of your money.” The New York Times admittedly had a large general circulation and a circulation of one thousand five hundred in Baltimore city. On February 1st, 1928, the plaintiff gave to the defendant notice of termination of the contract. The contention of the plaintiff is that that advertisement was a direct interference by the defendant with the operations of the plaintiff under their mutual contract and was an outreaching by the defendant for the trade within plaintiff’s territory, and that it had the effect—one specific instance being proven—of breaking up the plaintiff’s proposed sales. Defendant contended that it was an advertisement merely intended .for the trade of New York and vicinity.

Defendant’s first point on appeal is that the advertisement did not constitute a breach of the contract and that defendant’s motions for a nonsuit and a direction of verdict should consequently have been granted.

The contract provision was that the defendant would assist the dealer in effectively promoting the sale of Arcoil oil burners. We think that under the contract the defendant owed it to the-plaintiff not to asume a belittling attitude before the public toward dealers, distributors and middlemen and that the advertisement in question might well be considered as ridiculing the middlemen and discouraging the purchasing public from doing business through him. The plaintiff was a middleman, so acting under contract with the defendant.

tW defendant was under obligation hot to' interfere with or hinder the plaintiff in- the latter’s contractual functions. Atlantic City v. Farmers, &c., Co., 96 N. J. L. 504.

Defendant further argues that the plaintiff must not only prove repudiation of the contract but in addition that such repudiation was communicated to the plaintiff. The fallacy here is mainly in defendant’s assumption of fact. Defendant inserted the offensive advertisement in the public press for no other purpose than to communicate the matter thereof to the readers of the papers. The plaintiff’s president was a subscriber to the New York Times, received that issue and read the notice. It is difficult to understand how the court could, as a matter of law, determine that that was not a communication. O’Neill v. Supreme Council American Legion of Honor, 70 N. J. L. 410, although cited by defendant in support of its contention, seems to us to sustain the present finding. We consider that the case was properly sent to the jury.

There are ten other points raised and argued in appellant’s brief. We have examined them in detail and do not find harmful error therein.

The judgment below should be affirmed.


author: La whence, S. C. C.

text:
    FRANK CANDIANO, PLAINTIFF, v. HORACE PITTENGER, GEORGE W. PITTENGER AND PETER G. HOFFMAN, DEFENDANTS.
    For the motion, Edwards & Smith.

    Opposed, Henry K. Gdlenbock.

   La whence, S. C. C.

This is an automobile accident case involving a collision of vehicles, one of which was driven by Horace Pittenger and owned by George W. Pittenger, while the other was owned and driven by Peter G. Hoffman. Plaintiff was riding as a guest in the Hoffman car and seeks damages against the defendants jointly for alleged injuries. The defendants filed separate answers denying negligence, each driver accusing the other of being solely responsible for the accident. The defendant Hoffman annexes to his answer a counter-claim against his co-defendants for personal injuries and damage to his automobile.

Defendants Pittenger move to strike the counter-claim on the ground that it is improperly filed, cannot be conveniently tried in the present suit, and that permission should have been obtained from the court for leave to issue a summons and a counter-claim in the nature of a complaint therewith.

It is not at all clear, however, that the counter-claim is improperly filed. Eules 65, 66 and 68 of the Supreme Court, particularly the latter, indicate that this may be done. A counter-claim is deemed to be a cross action and may designate those not made parties by the complaint. Eule 68 speaks of a counter-claim where a co-defendant is made a party to it, while the Practice act (1913) contemplates a liberal construction, “to the end that legal controversies may be speedily and finally determined according to the substantive rights of the parties,” therefore, section 13 permits a defendant to counter-claim or set off any cause of action. In such case, he may, and when required by the court shall, “issue summons” against any third party necessary to be brought in; but in the discretion of the court, separate trials may be ordered, or if the counter-claim cannot be conveniently disposed of in the pending action, the court may strike it out.

Since it is thus made discretionary in the court, or largely so, with regard to a determination of all the issues arising out of the same cause of action or based on the same set of facts, it would seem that no difficulty or inconvenience will arise in trying out the counter-claim in the present suit. Should it appear, under a fair preponderance of the proof, that defendant Hoffman had been wholly blameless, had not been negligent, in other words, he could, in such circumstances, have been made a party plaintiff, or it would then appear that he should have been. Since plaintiff chose, however, to make him a co-defendant with the others, it is not perceived why a proper verdict may not be entered on his counterclaim, should it be proven at the trial that the collision was solely due to the negligence of the driver of the Pittenger car. Prom the procedural and practice standpoint, there would seem to be nothing irregular, if the evidence so warranted, under the recognized rules, in a verdict in favor of the plaintiff against the defendants in question, and on the counter-claim in favor of defendant filing it against them also. The conclusion is, therefore, that the motion to strike the counter-claim on the present motion should be denied, but without costs.


author: Buchanan, Y. C.

text:
    In re application of Harry F. De Bois, on habeas corpus for custody of Mary De Bois.
    [Decided November 18th, 1929.]

      Mr. James 8. Turp, for the petitioner.

      Mr. Peter Baches, for the respondents.
   Buchanan, Y. C.

Petitioner by this proceeding seeks to obtain the custody of Mary De Bois, a minor aged seventeen, the offspring of petitioner and Mary Martin (Kane) De Bois. The original writ was directed to John Stahley and Annie Stahley, his wife. Their return based their claim to custody on a commitment of the child to St. Michael’s Aid Society, by the Mercer county court of common pleas, and the subsequent placing of the child with them by said society. That society also filed a return and became a party to this proceeding— basing its claim to custody on the commitment aforesaid.

During the course of the proceedings the respondents Stahley abandoned claim to custody—leaving the contest between petitioner and the respondent society.

jThe proceeding is one to determine the custody, under the jurisdiction of this court as parens patrice. Ex parte Hoines, 112 Atl. Rep. 613.

Petitioner’s claim to custody as the father of the child is disputed on the allegation that the child is illegitimate. There was much testimony on this issue, some of it conflicting. Most, or much, of' petitioner’s testimony was corroborated by other testimony and evidence; the balance is corroborated by these facts, and by his appearance and manner (which were such as to inspire confidence) and by the evident falsities and animus in the testimony of at least one of the witnesses for respondents.

Unquestionably the petitioner is the actual father of the child. The relations between him and the mother were meretricious in their inception, but it is evident that the two lived for many years as husband and wife, and that petitioner conducted himself with a due sense of the responsibilities of a husband and father and a practical belief that he was such. The argument that there was no valid ceremonial marriage is as technical an argument in this case as such an argument can ever be.

Assuming that the mother had been in fact the wife of Kane, with whom she had lived at a period antecedent to her relationship with petitioner, the evidence shows that Kane had not been heard of for some years (one witness, I think, said twelve years) and has never since been heard of during the past twenty odd years, and justifies the presumption that he was dead at the time of the alleged common law marriage. Even if the disappearance of Kane had continued for less than seven years, the presumption against bigamy or adultery, would overcome the presumption of Kane’s continuance of life. Tyll v. Keller, 94 N. J. Eq. 426. The mother objected to a ceremonial marriage, for some reason which is not quite clear, but I am satisfied that, at a time when Kane was to be presumed, and was believed to be, dead, the petitioner and the mother agreed with each other to be husband and wife, and that they acted accordingly and lived for many years as such, and were so regarded and accepted in the several communities in which they lived; that the children were likewise regarded as legitimate, and are so to be regarded in this suit.

It is next claimed that the petitioner abandoned the child and so lost any and all right to custody. The evidence satisfies me to the contrary. It appears that the mother some months before her death drove the petitioner from the house; notwithstanding which he voluntarily took care of the support of the children by sending a generous share of his earnings; and that the fact that the family came to destitute circumstances was due not to fault of the petitioner but to profligate habits developed by the mother. Petitioner was a marine engineer, and was necessarily absent on long voyages; he did not know of the death of the mother and the commitment of the children for some time after it happened, and there is no evidence that any attempt was made to get this information to him. The evidence as to his subsequent conduct and efforts to get the custody of these children, in view of all the circumstances, clearly indicate that there was no abandonment.

It is next urged that the commitment of the child to the respondent society precludes the success of petitioner in this suit. The order was made in September, 1925, shortly after the death of the mother, while the father was absent, on the petition of the superintendent of the respondent society; the petition makes no mention of the father but asserts the children are illegitimate; the father not only had no knowledge or notice, but no attempt was made to give him any such notice or opportunity to be heard. To say that such an order, made under such circumstances, has conclusively disposed of the rights of this father is to assert a proposition diametrically opposed to the inherent spirit and fundamental purpose of a court of equity.

That such an order is valid, aside from the rights of the father, and that a statute providing for such proceedings is essential for the care of children in the absence of parental care, may be conceded; but it cannot be assumed that the legislature intended to attempt to oust the jurisdiction of this court, nor that such an attempt, if so intended, could be constitutionally valid. The purpose and intent of the legislature in such statutory provisions, is simply to provide for the care of children who are in fact left in such circumstances as to render them liable to become a public charge, during the time that such circumstances continue. See Ex parte Hoines, supra.

Moreover, the particular order in the instant case can be no bar, for it is invalid for reasons appearing on the face of the record. The order is expressly made (in 1925) under the statute of 1915. P. L. 1916 ch. 21/.6 p. J^l. By the terms of that statute, as amended (P. L. 1918 ch. 86 p. 220), the making of the order is conditional upon the conviction of the prior custodian of abandonment or abuse of the child; this is jurisdictional. In the instant case the record shows no such conviction, and there was none in fact.

The evidence shows that the petitioner is an industrious man, able as well as anxious to support and care for his daughter, that he has a suitable home, presided over by a second wife who is also desirous of having the child, and indicates that the welfare of the child will best be served by awarding the custody to him. Against this is urged only the claim not of another parent or relative but of a corporate institution—which in the'usual course would itself place the child with some foster parent (as it had done in the past). That it should attempt thus to give the child to a stranger instead of to her own father seems indeed regrettable. There is no claim that the father is unfit or the home unsuitable; the arguments are, as *1 have called them, technical. The explanation is found in a letter from the superintendent to the father, in which his liberality in providing for the children is admitted and commended, and the refusal to surrender the child to him is expressly based on the fact that the child is of the Roman Catholic faith (the institution being likewise of that denomination), and the petitioner and his wife being attendants of a different church.

The question of religious faith and education is of course one to be taken into consideration in such cases as this, but assuredly it is not true, either as a legal or a practical proposition, that that factor is controlling above all others. And when it appears, as it does in this case, that petitioner and his wife are entirely willing that the child shall continue in that faith, its importance as a factor diminishes almost to the vanishing point.

It may be added that the child is seventeen years of age and of normal mental development, and that her desire is for her father as guardian—this is a factor entitled to strong consideration.

It is concluded that petitioner is entitled to the custody he seeks.


text:
    MAYOR AND COUNCIL OF THE CITY OF ENGLEWOOD, AND LEROY HUCKIN, RECORDER, PLAINTIFFS-RESPONDENTS, v. C. F. NICITA AND ISAAC NEWMAN, DEFENDANTS-PROSECUTORS.
    Submitted May 18, 1929
    Decided November 14, 1929.
    Before Justices Teenchard, Lloyd and Case.
    For the prosecutors, Karhus & Karhus.

    For the respondents, F. Hamilton Reeve.

   Pee Cubiam.

This case is, in its essential features, much like Bergenfield v. Peterson et al., 7 N. J. Mis. R. 1019, decided this day; and our examination of the matter leads us to the conclusion that the decision of that case is practically controlling as to this.

Like that ease, this was a conviction of the prosecutors of this writ for a violation of an ordinance forbidding peddling and offering for sale merchandise without a license for that purpose first had and obtained.

°The first, second and seventh reasons assigned for setting aside the convictions, are altogether too general and indefinite to avail the prosecutors.

The third and fourth we think are sufficiently disposed of by what was said in 7 N. J. Mis. R. 1019, where the same reasons were urged and were determined against the prosecutors, the evidence in that ease being in the essentials necessary to justify conviction, similar to the evidence in this.

The fifth reason in so far as it is specific has been dealt with to our satisfaction in 7 N. J. Mis. R. 1019.

The sixth reason has not been argued.

The judgments of conviction brought up for review will he affirmed, with costs.


text:
    WICKHAM HAVENS, INCORPORATED, A CORPORATION, PLAINTIFF-APPELLANT, v. MARTIN HAAS AND FRIEDA HAAS, HIS WIFE, DEFENDANTS-RESPONDENTS.
    Submitted May term, 1929
    Decided November 14, 1929.
    Before Justices Trenchard, Lloyd and Case.
    Eor the plaintiff-appellant, Ilowe & Davis.

    Eor the defendants-respondents, Michael T. & Hugh G. Barrett.

   Per Curiam.

This is an appeal from a judgment entered on an instructed verdict for the defendants in the Essex County Circuit Court.

The complaint contained two counts. The first is based on two promissory notes given by the defendants to the plaintiff. The second is based on the failure of the defendants to complete, by paying the balance of the purchase price, the performance of the contract for the purchase of a tract of land by the defendants from the plaintiff. On the trial the court struck out the second count. From that ruling no appeal was taken. The trial then proceeded on the remaining count based on the promissory notes. Defendants’ answer admitted the making of the notes sued upon and set up the defense of fraud in that the plaintiff was alleged to have represented that the notes were not to become due unless title to the real estate was delivered by the plaintiff and accepted by the defendants, and that the defendants had never received title and that the plaintiff had never tendered a deed; and that there was nothing due on the notes. The execution and delivery of the notes having been admitted, plaintiff put the notes in evidence and rested. The defendants thereupon put in their proof tending to support the defense set up in the answer. At the close of the case the court held that there was a failure of consideration; that the contract regarding the sale of the real estate embraced the note transaction; that the plaintiff’s correct method for relief was to sue for a breach of the contract of sale, and the court accordingly directed a verdict for the defendants. Plaintiff alleges error therein and argues the same under point one of the brief.

In the case of McCormack v. Williams, 88 N. J. L. 170, it was held by the Court of Errors and Appeals (Walker, C.) that our Negotiable Instrument act (Comp. 8tat., p. 3734) provides in section 24 that every negotiable instrument shall be deemed prima facie to have been issued for a valuable consideration, and that every person whose signature appears thereon is deemed to have become a party thereto for value, and that when the plaintiff proved the notes in suit, offered them and rested, he established a prima facie case which entitled him to go to the jury. We consider that the instant case is- within that ruling and that the court erred in directing a verdict for the defendant. This conclusion makes it unnecessary to consider the remaining points.

The judgment is therefore reversed.


author: Pee Cukiam.

text:
    PENNINGTON COURTS, INCORPORATED, A CORPORATION, AND REUBEN PINK AND WILLIAM PASHMAN, PARTNERS, TRADING AS PINK & PASHMAN, PROSECUTORS, v. THE BOARD OF ADJUSTMENT OF THE CITY OF PASSAIC, THE BOARD OF COMMISSIONERS OF THE CITY OF PASSAIC, AND ALPHA GARTH, RESPONDENTS.
    Submitted May term, 1929
    Decided November 14, 1929.
    Before Justices Teenchaiid, Lloyd and Case.
    For the prosecutors, Mendelsohn & Mendelsohn.

    For the respondents board of adjustment and board of commissioners of the city of Passaic, Joseph J. Weinberger.

    For the respondent Alpha Garth, Max Schomer (Nicholas 0. Beery on the brief).
   Pee Cukiam.

This suit is on writ of certiorari to review the action of the board of adjustment of the city of Passaic and the subsequent action of the board of commissioners of that city with respect to the granting of a building permit to the respondent Alpha Garth, to erect a one-story and basement building to be used as a public garage and service station in the Eesidence C District as set off by the zoning ordinance of the city of Passaic. The Garth property immediately adjoins and abuts upon Business A District wherein, by the ordinance, the erection of public garages is permitted. The proposed garage building, if and when constructed, would extend one hundred and thirty-three and nine-tenths feet from the boundary line of the Business A District. Application for a building permit to construct the garage and gas station was made to the building supervisor and refused by him upon the ground that the proposed building would be in the Residence C District and was a structure prohibited therein by the zoning ordinance. Garth thereupon appealed to the board of adjustment and made application to that body for a variation from the requirements of sections 6, 7, 8 and 13 of the zoning ordinance, those being the effective sections. The board of adjustment passed the following resolution:

“In the matter of the application of Alpha Garth, who desires to erect a public garage, showroom and gas service station at 102-108 Gregory avenue, on a motion made by Mr. King, seconded by Mr. Orre, it was moved that the supervisor of buildings be reversed, the secretary being instructed to communicate with the board of city commissioners so that a resolution might be adopted by the board of city commissioners if said board concurs in the decision as rendered.”

The secretary, under that instruction, addressed the following communication to the board of city commissioners:

“Please be advised that after a public hearing, decision has been rendered in the application of Alpha Garth, who desires to erect a public garage on the premises known as 102-108 Gregory avenue.

“The decision of the board of adjustment is that the building supervisor should be reversed. If your board concurs in this decision, it will be necessary to adopt a resolution ordering the supervisor of buildings >„to issue this permit.”

Subsequently the board of commissioners passed the following resolution:

“Resolved, that the board of commissioners of the city of Passaic concur in the decision of the board of adjustment in approving the application of Alpha Garth to erect a public garage on premises known as 102-108 Gregory avenue.”

The state zoning law (Pamph. L. 1928, ch. 274), in the third subdivision of section 9, empowers the board of adjustment, upon appeal in specific eases, to authorize variances from the terms of the ordinance, provided the structure in question shall not be more than one hundred and fifty feet beyond the boundary line of the district in which such structure or use is authorized by the zoning ordinance; and in the fourth subdivision of section 9 empowers the board of adjustment to recommend in writing to the governing board or board of public works of the municipality, upon appeal in specific cases, that a structure or use be allowed in a district restricted against such structure or use where the lands, in respect of which such recommendation is made, do not abut a district in which such structure or use is authorized by the zoning ordinance, or where such lands are more than one hundred and fifty feet beyond the boundary line of the district in which such structure or use is allowed by the zoning ordinance, and the statute proceeds to direct that if such recommendation shall be approved by the governing body or board of public works, then the administration officer in charge of granting permits shall forthwith issue a permit for such structure or use.

There does not appear to be serious dispute for the propo-. sition that the authority to overrule the denial of the supervisor of buildings and to grant a variance from the zoning restriction lay with the board of adjustment and not with the board of commissioners. The pivotal question hinges around the character of action taken by the board of adjustment and by the board of commissioners, respectively. The prosecutors of the writ contend that the action of the board of adjustment was in essence a recommendation and that the actual granting of the permit was by the board of commissioners. The position of the respondents is that the language of the resolution passed by the board of adjustment is unequivocal and not dependent upon what action the board of commissioners might take, and that the subsequent resolution adopted by the board of commissioners was mere surplusage.

We are unable to agree with the latter suggestion. We perceive no possible reason for the board of adjustment to have referred the matter in any of its bearings to the board of commissioners, and particularly do we fail to perceive why the board of adjustment should suggest a concurrence by the board of commissioners unless the action of the last named board was considered an essential part of the proceedings. Under the statute complete jurisdiction was vested in the board of adjustment, and no jurisdiction whatsoever was imposed on the board of commissioners. The responsibility of determination was with the board of adjustment and should have been met by that body without reference of any character to the conclusions of the city commissioners. The board of adjustment had power to act but. not to recommend. Inasmuch as we find that the action of the board of adjustment was recommendatory, and not determinative, and that the board of commissioners were without jurisdiction, it follows that the actions of both boards must be set aside.


author: Pee CüEiAjf.

text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PROSECUTOR, v. HARRY DeBAUN, RESPONDENT.
    Submitted May term, 1929
    Decided November 14, 1929.
    Before Justices Tkenchakd, Lloyd and Case.
    Eor the prosecutor, William A. Bievens, attorney-general, and Grover G. Rickman, assistant attorney-general.
    Eor the respondent, J. Raymond Tiffany.

   Pee CüEiAjf.

Harry DeBaun was charged with the violation of section 10, chapter 221, Pamph. L. 1921, in that he practiced medicine and surgery without a license. The case was tried before the District Court of the First Judicial District of the county of Bergen, the judge thereof sitting without a jury, and found not guilty. This proceeding is by writ of certiorari to review the finding of the court.

The defendant is a licensed chiropractor. The facts proven by the plaintiff are not in substance disputed. The question is whether the defendant as a licensed chiropractor, by virtue of his license, has the legal right to commit the acts complained of. The testimony of Delia Orr included a recital that the defendant caused the witness to disrobe gown, and lie upon a cot with a large electric lamp over it, that after a time the defendant placed upon her body two discs, one on her stomach and one on her back, and that these discs were connected with an electric machine from which the power was gradually turned on until it got as strong as the witness could endure, whereupon the power in that degree was left on for about a half hour; that at the end of that period the defendant turned the power off, said that the process would draw the muscles of the stomach back in their proper place and that if it didn’t he would try something else; for which service the witness paid two dollars. DeBaun on direct examination was asked with reference to the testimony of Delia Orr: “Q. She testified that you put two wet pads, one under and one over, with the use of some electric contrivances. Will you explain? A. That was galvanic current which produces heat for relaxation.” These excerpts from the testimony will illustrate the character of acts that were charged against and admitted by the defendant. The defense is two-fold, namely, that the practices in question were not a violation of the direct prohibitions of the statute and that if they be within the direct prohibitions they are nevertheless waived by section 9 of the act referred to, which provides that “the prohibitory provisions in this act as amended shall not apply to * * * the giving of treat- meat by electricity by any person resident of this state who has been continuously engaged in giving treatment by electricity herein during the past fourteen years; provided, that said person has graduated from a legally incorporated electrotherapeutic school in good standing.”

The defendant by his own testimony is not a graduate of a legally incorporated electro-therapeutic school in good standing. Consequently, the waiving clause in section 9 is not applicable.

The defendant was admitted to the practice of chiropractic in 1920 under chapter 4 of the pamphlet laws of that year, “An act to regulate the practice of chiropractic,” by the first section of which “chiropractic” is defined—omitting expressions unimportant in this connection-—to be the “art of permitting restoration * * * by placing in juxtaposition the abnormal concrete positions of definite mechanical portions with each other by hand * * *.” Electricity is a dangerous instrumentality with the ever present capacity to do serious bodily harm unless restrained within proper limitations. It is essential that its use as applied to the human body should be under the direction of authorized persons. Its use in the instant case was a part of the art of healing. The specific use above referred to in nowise involved the function of hand manipulation. We are unable to conceive of any hypothesis in the proofs in the case upon which the use of electricity in the manner stated is a part of the practice of chiropractic. We consider that the acts of the defendant were contrary to the prohibitory provisions of section 10 of the 1921 act, and that they were not within the exception of section 9. State Board v. Lezenby, 1 N. J. Mis. R. 20; State Board v. Livesey, 6 Id. 177; State Board v. Baudendistel, Ibid. 14; State Board v. Blechschmidt, Ibid. 682.

The judgment of the District Court of the Eirst Judicial District of the county of Bergen is reversed.


text:
    MAGDALINA END AND JOHN L. RAHRER, PLAINTIFFS, v. ADOLPH W. ZOLA, DEFENDANT.
    Submitted May term, 1929
    Decided November 14, 1929.
    Before Justices Tbenchabd, Lloyd and Case.
    For the plaintiffs, Weinberger & Weinberger.

    For the defendant, Siein, McGlynn & Ilannoch.

   Pee Cueiam.

The case comes up on, rule to show cause why a verdict rendered in the Passaic Circuit for the defendant, and against the plaintiffs, should not be set aside. The plaintiffs are mother and son respectively, the latter being the owner and driver of an automobile in which the former was sitting asleep on the back seat at the time of a collision with an automobile driven by the defendant. The plaintiffs argue two points: the first being that the verdicts were clearly contrary to the weight of the evidence, and the second being that the court erred in charging the jury.

The portions of the charge to which plaintiffs object had to do with the relationship of master and servant as between the mother and son and the liability of the mother, if such relationship existed, to be charged with any negligence of ‘which the son may have been guilty. The respondent declines to argue that point and contents himself by stating that it deals “with questions of law which should only be considered in connection with an appeal rather than a rule to show cause.” The rule as granted was without reservations of exceptions, and we disagree with the contention that the question of error in law is not properly raised on the rule.

A portion of the charge argued by the appellants to be objectionable is as follows:

“Now, as to the mother. She was riding, as I recall the testimony, in the rear of the car, and asleep at the time. The son, as I recall it, says that at the request of the mother he had taken her to meet some friend in Newark and was bringing her back. He was, of course, not a public taxi cab driver, but nevertheless, if the mother requested him to take her to Newark on this occasion and bring her back, then he became her agent or servant in the law, and if he were guilty of contributory negligence on that occasion, then his negligence would be attributable to his mother, which would make her responsible for any contributory negligence on his part * *

The plaintiff John L. Rahrer was the sole owner of the automobile. There is no evidence that he was subject to the command or control of his mother. The mother wished to make a call upon friends and asked her son to take her. A part of the evidence is that given by the son. “Q. You did it for your mother, of course? A. Well, she wanted to visit this party and she wanted me to go; well, all right, I went with her.” There is no suggestion that the mother selected the route or participated, either by act or suggestion, in the control or management of the car.

In the case of Tronto v. Reo Motor Co. (Court of Errors and Appeals), 92 N. J. L. 595, a part of the facts are thus stated: “The reason upon which this contention [viz., control of the car by plaintiff’s decedent] is based is that the deceased, desirous of visiting a friend at Plainfield, induced his brother, the owner of the car, to drive him there, and while driving on West Eront street, near Grant avenue, in that city, collided with defendant’s truck driven at a high rate of speed.” The opinion holds that’ whether or not these facts did or did not indicate such a control of the car as to give rise to the principle of contributory negligence is properly left.to the jury. We think that in the instant case it should have been left to the jury to determine whether the relationship of master and servant had been established, that the mere request by the mother of the son was not enough to cause that relationship to arise as a matter of law. We consider that the language of the charge in that respect was in error and that such error was harmful to the appellant, Magdalina End. We find that the appellant John L. Rahrer was not harmed by that error and further that the verdict of the jury as to him was not so clearly contrary to the weight of the evidence as to warrant the setting aside of the verdict against him.

The rule will be discharged as to John L. Rahrer and made absolute as to Magdalina End.


text:
    ALBERT CANNADY, PROSECUTOR, v. TOWN OF MONTCLAIR, RESPONDENT.
    Submitted May term, 1929
    Decided November 14, 1929.
    Before Justices Tkenchakd, Lloyd and Case.
    Eor the prosecutor, • Thomas B. Eaveny and Thomas Bruneiio.

    Eor the respondent, George S. Harris.

   Pee Cueiam.

This is on writ of certiorari to review a judgment of the recorder’s court of the town of Montclair. The complaint, dated December 8th, 1928, charged the defendant below-—-the prosecutor herein—with violating the Montclair zoning ordinance “on September 26th, 1928, and evepy day thereafter,”' in that he conducted a car washing and garage business in a building located within a prohibitive area.

Nine points are presented in prosecutor’s brief, but we-shall advert to only one, the sixth, for the reason that that is dispositive. The point turns on the refusal of the trial court to admit- competent evidence. The prosecutor endeavored to introduce evidence showing a continuous application of the premises to the disputed use from May, 1921,(until the time of the alleged offense. The court ruled that such proof must be confined to a period prior to May, 1921, the date of the adoption of the zoning ordinance, and refused to permit proof of a later continuance. That ruling was erroneous. The prohibited use was not within the lawful purview of a zoning ordinance until April 3d, 1928, the date of the passage of the enabling statute (Pamph. L. 1928, ch. 274) and a use that had been theretofore actually and lawfully instituted, and that had been until then actively and constantly maintained, was a non-conforming use entitled, under the statute, to be continued. Frank J. Durkin Lumber Co. v. Belleville (decided by Court of Errors and Appeals, October, 1929). Proof of the use at and preceding the passage of the statute was relevant and therefore competent.

The judgment below is reversed.


text:
    GEORGE R. HANN AND ELMER KING, RECEIVERS OF MORRIS COUNTY TRACTION COMPANY, PROSECUTORS, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL., DEFENDANTS.
    Submitted May term, 1929
    Decided November 14, 1929.
    Before Justices Trenchard, Lloyd and Case.
    For the prosecutors, King & Vogt.

    For the defendants, Duane E. Minará.

   Per Curiam.

This is on motion for the allowance of a writ of certiorari to review the proceedings of the state board of taxes and assessment against the Morris County Traction Company for the 1928 franchise tax. The tax was assessed under the 1906 street railroad corporation franchise tax. The principles involved are similar to those of the proceeding with like title, wherein, at the present term of court, we reviewed, under certiorari, the 1928 tax of the Morris County Traction Company assessed on gross receipts of 1927 under chapter 25 of the laws of 1919. We have examined the briefs and proofs submitted under the above caption, and, following the reasoning of the last mentioned proceeding, we have concluded that the writ of certiorari shall not be allowed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MIKE SUPRENUK, PLAINTIFF IN ERROR.
    Submitted May term, 1929
    Decided November 14, 1929.
    Before Justices Tbenchaed, Lloyd and Case.
    Eor the defendant in error, Aloysius McMahon (John Drewen, on the brief).
    Eor the plaintiff in error, I. Faerler Goldenhorn.

   Pee Cueiam.

■ Suprenuk was convicted of carnal abuse upon a child twelve years of age. He was sentenced on January 5th, 1928. The writ of error was tested January 10th, 1929.

Counsel for the defendant below filed ten reasons for reversal but this brief merely argues the question of weight of evidence, with cursory reference to an excepted question.

Without considering the effect of the late date of issuing the writ, or the propriety of arguing the weight of evidence on a strict writ of error we have carefully examined the evidence and conclude that the verdict was not contrary to the weight thereof and that the court did not err in disallowing the question propounded by counsel for the defendant below.

The judgment below will be affirmed.


author: Pee Ctieiam.

text:
    IN THE MATTER OF THE APPEAL OF BLUE BIRD DYEING COMPANY, STATED AS CEDAR CLIFF SILK COMPANY, FOR TAXES LEVIED BY THE BOROUGH OF HALEDON.
    Submitted May term, 1929
    Decided November 14, 1929.
    Before Justices Tbenchabd, Lloyd and Case.
    Eor the prosecutor, Meyer Lobsenz.

    Eor the respondents, William A. Stevens.

   Pee Ctieiam.

This case comes up on writ of certiorari to review a judgment entered by the state board of taxes and assessment. The property was owned October 1st, 1927, by Cedar Cliff Silk Company, and during the following spring was purchased by Blue Bird Dyeing Company. The assessment for 1928 taxes, as reduced by the county board of taxation, was land $10,000, improvements $100,000, personalty $30,000. This assessment was affirmed by the state board of taxes and assessment, and to review that finding the present writ issued.

We are not informed as to the significance of the title to the cause, nor as to the respective relations of Blue Bird Dyeing Company and Cedar Cliff Silk Company to the assessments other than the fact that the latter was and the former now is the owner of the property. We assume that the assessment was made against the Cedar Cliff Silk Company; that the records still show the assessment to be so made; and that the Blue Bird Dyeing Company, being the present interested party, prosecutes the writ in the name of the Cedar Cliff Silk Company. The prosecutor contends that the value of the real property was less than that fixed hy the assessor, and that there was no personal property to be assessed. We have examined the record and find evidence' to sustain the assessments as of October 1st, 1928, in the amounts found correct by the state board of taxes and assessment. Pennsylvania Railroad Co. v. State Board, 103 N. J. L. 28; Gibbs v. State Board, 101 Id. 371.

The judgment rendered by the state board of taxes and assessment is affirmed.


text:
    HARRY F. BODINE, OFFICER OR AGENT OF THE NEW JERSEY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, COMPLAINANT-RESPONDENT, v. BRONISLAW CINKOWSKI, DEFENDANT-PROSECUTOR.
    Submitted May term, 1929
    Decided November 14, 1929.
    Before Justices Trenchard, Lloyd and Case.
    Por the prosecutor, David R. Rose.

    For the respondent, Patrick H. Harding.

   Per Curiam.

The defendant below was convicted, by the police recorder of the township of Delaware, county of Camden, of violating sections 1, 11 and 13 of the act for the prevention of cruelty to animals, approved March 11th, 1880, and the supplements and amendments thereof. The proceedings are here on writ of certiorari.

The alleged offense, as described in the complaint, is that the accused did wickedly and unlawfully torture, torment, otherwise abuse, and did abuse a certain number of dogs, certain living creatures, to wit, by keeping them in a sick and starving condition, thereby causing unnecessary pain and suffering to certain creatures; in violation of the provisions of various sections of an act for the prevention of cruelty to animals, approved March 11th, 1880, including sections 1, 11 and 13 of the same and the supplements and amendments thereof.

Section 1 of the act appears to set out an indictable offense; and the present proceeding is not by indictment. But whatever the character of proceeding intended by section 1, the present proceeding does not seem to comply therewith. Section 11 is a provision for the entry by a sheriff or police officer at a bull fight, cock fight, &e. It obviously has no application to the present case. Section 13 enumerates certain acts, of which the specific acts charged in the complaint might be a part and provides for a proceeding before a justice of the peace, district court or police magistrate in the county or city where the defendant resides, or the offense or offenses were committed. Section 13 is quite clearly the only one of the named sections under which the present proceeding could be instituted.

Chapter 198 of the laws of 1926 is entitled “An act for the prevention of cruelty to animals,” and it is a word for word and punctuation for punctuation reproduction of section 13 of the 1880 act, changing, however, the description of the court before whom the proceeding shall be brought, namely, “before any justice of the peace, recorder, police magistrate in the county or municipality, or in any District Court in any city or judicial district wherein the defendant resides, or where the offense or offenses were committed.” The 1926 act was amended by an act designated as chapter 177 of the laws of 1927, changing somewhat the definition of the court to hear the offense and providing that “any judgment rendered by any justice of the peace, recorder or police magistrate in violation or contravention of this act shall be void and without effect,” &c. But it is unnecessary to consider whether section 13 has been impliedly repealed inasmuch as the proceedings are otherwise fatally defective.

The return does not disclose that any of the witnesses were sworn. Knowledge of conditions is alleged on the part of persons who are named in the return but who did not attend at the trial. The conviction in nowise recites the evidence on which it is based. The conviction unlawfully embraces a commitment to the county jail, whereas by the statute the proceeding is by action in debt, with entry of judgment and issue of execution. There are other errors.

The conviction should manifestly be set aside.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MICHAEL GRANDON, PLAINTIFF IN ERROR.
    Submitted May 18, 1929
    Decided November 15, 1929.
    Before Justices Teenchaed, Lloyd and Case.
    Eor the plaintiff in error, Harold Simandl.

    Eor the defendant in error, Joseph L. Smith, prosecutor of the pleas, and Simon L. Fisch, assistant prosecutor of the pleas.
   Pee Cueiam.

The defendant below, Michael Grandon, was convicted in the Essex Sessions upon an indictment charging him with assault and battery upon one O’Hagan by shooting O’Hagan with a pistol. The case comes np both by strict writ of error and under section 136 of! the Criminal Procedure act.

It is first argued that the verdict is against the weight of the evidence. We cannot say that it is.

A witness, Solomon, produced by the state testified in effect as follows: On the morning of June 9th, about six-forty, he was driving north on Washington street, Newark, near the corner of William street, when a fight between two men attracted his attention. One man was O’Hagan and the other, he afterwards learned, was one Lyons. Several persons were gathered about looking on. He stopped his ear and watched the fight for about ten minutes, and then he saw the defendant Grandon coming from William street, work his way around the edge of the crowd, get in between the two men fighting, draw a gun from his right hand pocket and shoot at O’Hagan twice while O’Hagan was up against the wall, and while Grandon was facing the witness so that the witness had a clear view of him. Grandon shot from a distance of three feet. After Grandon fired the second shot, one of the crowd pulled Grandon’s arm away, and then Grandon turned around and ran down William street on the south side, closely followed by the witness in his Eord. Upon reaching Halsey street Grandon turned to the right, still running, and on Halsey street, half way between William and Hill streets, Grandon turned into an alley and took something from his pocket and threw it into the alley, then came right out and almost bumped into the car of the witness, and ran diagonally across the street, and turned left on Hill street, still running, until he came to No. 27. There he* jumped the fence and disappeared into the basement. Solomon, the witness, drove to police headquarters, and reported to detectives what he had seen. The detectives and Solomon, in the latter’s car, went to No. 27 Hill street, and Solomon saw defendant coming out of the basement and pointed him out to the detectives as the man who fired the shots, and he was arrested. Solomon then went to the alley and found the gun and turned it over to the detectives.

The testimony given by Solomon was corroborated, by the officers so far as it related to matters in their presence, who further testified that the gun contained two empty shells.

At the trial defendant admitted that when he was arrested he asked the officers “what it was all about.” His testimony was to the following effect: That on the morning of June 9th, he was in the company of one Sedo driving south on Washington street; that as they approached the corner of William street he heard some commotion on the corner, and got out of the automobile to see what the commotion was; that as he did so he heard some shots and started to run; that he was excited and ran for safety, because he did not want to get in trouble or to get shot; that he ran straight down William street to Halsey street, turned right on Halsey street and kept on running; that he ran on the right side of Halsey until he came to Pearl alley; at that point he came across an automobile, then crossed to the left side of Halsey, down to Hill street, turned left on Hill street and still kept on running, although he did not think anybody was following him, all the time running as fast as he could until he came to his house, No. 27 Hill street, and ran into the basement. It will thus be seen that his testimony corroborates many of the material matters testified to by Solomon. We think that it was for the jury to say whether as he says he was running to escape the danger of the shooting or was really running to escape arrest as the jury evidently concluded.

It does appear in the case that O’Hagan before and at the trial refused to identify the defendant as the man who had shot him.

After a careful examination of all the evidence, that to which we have referred and that to which we have not referred herein, we think that the testimony amply warranted the jury in finding the defendant guilty, and we cannot say that their verdict was contrary to the weight of the evidence.

Numerous assignments of error relate to the alleged erroneous admission or rejection of evidence.

First, a question put by defendant’s counsel to a doctor on examination as follows: Q. “Did you have any difficulty with him on that score?”_ This question was overruled as calling for a conclusion. We think its exclusion might be sustained upon that ground, but if not, its exclusion was not prejudicial, because similar questions were asked and answered.

The next question was put to John Campbell, who helped take the wounded man to the hospital in a taxi cab. On cross-examination by counsel for the defense he was asked: Q. “On the way to the hospital did you speak to O’Hagan? A. Yes. Q. What did he say?” This question was objected to and the objection sustained as not proper cross-examination, that subject-matter not having been introduced in the main examination. Whether this reason was sufficient to sustain the objection may be questionable, but even so we think there was no prejudicial error because the same question was subsequently answered later during the cross-examination.

The next assignment relates to the examination of the detective who took Grandon to the hospital and to O’Hagan’s bedside. The detective testified that when they got there he saw Grandon nod or shake his head from side to side, and that when they got to police headquarters he asked Grandon why he shook his head, and Grandon said he did it unintentionally; that he did not mean to do it. Then counsel for defendant put this question to the detective: Q. “Did it appear to be an unintentional nodding of the head ?” Objection was made to that and the objection was sustained. This shaking of the head had been fully described by the witness, and we think the question whether or not the nod was unintentional was purely a question for the jury to determine, the solo function of the witness being to relate what he had seen and heard.

We have examined the other assignments of error and causes for reversal, and do not find any of them which we think will justify a reversal. For the most part the true question is whether there was any error in the admission or rejection of the evidence which was prejudicial to the defendant. We do not find any after full examination.

The judgment will be affirmed.