text:
    HELEN G. CHEESEMAN, PROSECUTOR, v. BOARD OF EDUCATION OF GLOUCESTER CITY AND STATE BOARD OF EDUCATION, DEFENDANTS.
    Submitted March 21, 1923
    Decided June 5, 1923.
    Contracts — School Teachers — Transfer from One School to Another — Charge of Insubordination — Discharge—Appeal to State Board — Transfer Held Legal.
    On certiorari.'

    Before Justices Kaliszch, Black and Katzenbach.
    For the prosecutor, Bleakly, Stockwell and Burling.

    For the defendants, Henry M. Evans.

   Per Curiam.

The writ of certiorari in this ease is prosecuted for the purpose of reviewing the legality of the action of the Gloucester city board of education in transferring the prosecutrix, Miss Helen G. Cheeseman, from principal teacher of the seventh and eighth grades at the Monmouth street school in Gloucester city, to be principal teacher of the fifth and sixth grades of the Cumberland street school in said city, and the action of that board in dismissing Miss Cheeseman for insubordination in refusing to obey the order of transfer.

Miss Cheeseman had bepn for some nineteen years a teacher in the public schools of Gloucester city. On May 18th, 1921, she executed a contract in the statutory form with the board of education to teach in that city from September 1st, 1921, to June 30th, 1922. Miss Cheeseman had been instructing the seventh and eighth grades at the Monmouth street school. In September, 1921, the board of education transferred her to the Cumberland street school, where she was to teach scholars of the fifth and sixth grades. Miss Cheeseman contended that the Monmouth street school was a junior high school; that the transfer demoted her, and was contrary to the contract. She refused to obey the order and appealed the order of transfer to the state commissioner of education. The Gloucester city board of education then charged Miss Cheese-man with insubordination. She was served with notice of this charge. She did not attend the meeting at which the charge was to be heard, but employed counsel to appear specially to protest against the proceeding. The board held her guilty of insubordination and dismissed her. Erom this dismissal Miss Cheeseman appealed to the state commissioner of education. The commissioner of education considered these appeals, upon the record, and held that the transfer was legal, but that Miss Cheeseman was not guilty of insubordination. An appeal was then taken by Miss Cheeseman to the state board of education. The state board of education held that the transfer was legal and that Miss Cheese-man was guilty of insubordination and properly dismissed. It is these determinations of the state board of education which Miss Cheeseman seeks to set aside.

The contract was in the usual form prepared by the commissioner of education under section 106 of the School law. Comp. Stat. p. 4762. It did not mention the principalship of the Monmouth street school. The Gloucester city board of education had the power of transfer (section 68, School law, Comp. Stat., p. 4744). Miss Cheese-man could not be dismissed or her salary reduced except for causes mentioned in the Tenure of Office act (Comp. Stat., p. 4763, § 106a), and in the manner prescribed in said act. Her salary was not reduced or she was not dismissed. A transfer is not a demotion or dismissal. Transfers are often advisable in the administration of schools.for many reasons.

It is contended in behalf of the prosecutor that when Miss Cheeseman signed the contract the secretary of the local board told her .that in signing the contract she was made the principal of the junior' department of the Gloucester city high school. Assuming the statement was made by the secretary he was not in the making of such a statement acting within the scope of his authority. The contract spoke for itself and could not be changed or altered by parol testimony.

It is further contended that Miss Cheeseman could not be guilty of insubordination and dismissed pending her appeal of the order of transfer to the state commissioner of education. We do not think this' point well taken. Miss Cheese-man could have taken up the work in the Cumberland street school to which she was transferred under protest pending her appeal. Such a course would not have prejudiced her appeal. She chose to assume in her actions that the transfer was illegal. In this Miss Cheeseman acted at her peril. If the transfer was legal it necessarily follows that she was guilty of insubordination in refusing to obey the order, and that the board -was justified after charges had been preferred and notice given to hear the case and order a dismissal, if it chose so to act.

We think there is no merit in the contention that the state commissioner and state board of education heard the appeals upon the record without taking testimony. We fail to see how the prosecutrix was harmed in this respect. The facts •were not disputed. There does not appear to have been any offer of testimony. Both parties evidently were satisfied with the record.

We have reached the conclusion that the decision of the state board of education was correct. It will be affirmed. The writ is dismissed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    No. 401.
    CHESTER J. ANDRUS, PLAINTIFF, v. MAX SPECKTOR, ABRAM LARNER AND MAX PECK, PARTNERS, TRADING AS SPECKTOR, LARNER & PECK, DEFENDANTS. GEORGE C. BOONE, PLAINTIFF, v. SAME. HAROLD LORANG, PLAINTIFF, v. SAME. JOHN K. VOLL, PLAINTIFF, v. SAME.
    No. 402.
    No. 403.
    No. 404.
    Submitted March 22, 1923
    Decided June 5, 1923.
    Practice — Motion to Strike Out Complaint — Demurrer.
    On motion to-strike out complaint.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiffs, William, G. French and Samuel T. French.

    For the defendants, Lewis Starr.

   Per Curiam.

The complaint in the Andrus case is typical of all, and for convenience, a copy of its averments purporting to set out a cause of action follows:

“1. On or about the 17th day of January, in the year of 1922, Max Specktor, Abram Larner and Max Peck, trading as a partnership, name of Specktor, Larner & Max Peck, the defendants herein were engaged in operating a department store at numbers 427 and 429 Kaighn avenue, in the city and county of Camden and State of New Jersey.
“2. That the plaintiff Chester J. Andrus was a member of the fire department of the said city of Camden.
“3. That it was the duty of the defendant to obey the law and refrain from doing or procuring to be done any act that might put life, health, limb or property in danger or jeopardy.
“4. Yet, the said defendants and defendant failed to observe and live up to this duty, but on the said 17th day of January, 1922, and before that time, did or procured to be done certain unlawful, illegal, dangerous and negligent acts in such a manner and to such an extent that by the means thereof a fire was caused to break out in the said store, which said fire, because of the defendants5 acts, was caused to spread with lightning-like rapidity, rendering the best efforts of the said fireman and his associates unavailing, so that in the course of the endeavor to suppress and control the said fire to save the lives, limbs and properties thereabouts, the said plaintiff sustained the injuries hereinafter mentioned.55

The first ground for the motion to strike out is that the declaration does not set out a cause of action. This is tantamount, under our present'practice, to a general demurrer; and on the authority of Central Railroad Co. ads. Van Horn, 38 N. J. L. 133, 140, we do not feel justified in striking out the complaint on that ground. See, also, Race v. E. & A. R. R. Co., 62 Id. 536; Savage v. Public Service Railway Co., 95 Id. 432, 435.

On the authority of the same line of cases, however, the complaint should be struck out imder the present rule 39 of this court, which has superseded section 110 of the Practice act of 1903, repealed in 1912. The complaint in this aspect is clearly irregular and defective and so framed as to embarrass and delay a fair trial; and the motion is made also on that ground.

If any application to amend is to be made later, it will be well to. bear in mind what was’ said in Breese v. Trenton Horse Railroad Co., 52 N. J. L. 251, 252, quoting from Add. Torts, that "the allegation of duty is immaterial, for if the particular facts set forth the duty, the allegation is unnecessary, and if they do not, it is unavailing.”

Let the complaints be struck out, with costs.


text:
    MARY DI NISCIA, PLAINTIFF, v. JOHN LANDONIA, DEFENDANT.
    Submitted March 22, 1923
    Decided June 5, 1923.
    Breach of Promise — Motion to Set Aside Verdict — Effect of Another Case.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, William Hamilton Osborne.

      Contra, William H. Lord.

   Per Curiam.

This is a breach of promise suit.

The plaintiff had a verdict of $2,000 on this the second trial, and this is defendant’s rule to show cause why that verdict should not be set aside. The first verdict was set aside by the Supreme Court, June term, 1922, and although the present verdict is a second verdict in favor of the plaintiff, we think this review is not affected by the second-verdict rule, because the second trial was upon a very different issue from that presented at the first trial.

The present suit was begun in 1921 by the plaintiff, a woman about thirty years of age. In her complaint she averred that in 1913 the defendant (a married man) promised to marry her, and later breached the promise; that in 1919 she commenced a suit in the Essex Circuit Court for damages for such breach of promise, and on October 26th, 1920, she accepted $1,200 from the defendant, discontinued that action and gave her general release to the defendant; that the next day (October 27th, 1920), defendant renewed his promise to marry her and that he has breached that promise; that defendant, at the time of the promise, represented himself to be a single man and that she did not know to the contrary.

The Supreme Court seems to have set aside the plaintiff’s first verdict upon the ground, among others, that the evidence almost amount to a demonstration that at the time of the giving of the release, she knew that the defendant then had a wife living.

On this trial the judge held, and charged the jury, that it made no difference whether or not the release was fraudulently obtained, and that for the reason that she had failed to return the $1,200. The judge further held and charged the jury that the plaintiff could recover nothing for anything that transpired upon or prior to the 26th day of October, 1920, the day when the release was given, but recovery must depend upon the finding of a promise made by defendant on the 27th day of October, 1920, as alleged in the complaint.

Upon that question the plaintiff says that the promise was made and the defendant denies it, and the defendant’s story is corroborated by proof that he was not at the place where plaintiff alleges the promise was made.

Of course it was also incumbent upon the plaintiff to show that she did not know at the time the alleged promise was made that the defendant was a married man.

Our conclusion is that the overwhelming weight of the testimony and the probabilities of the case are against the plaintiff, both upon the question of the making of the promise and upon the question of knowledge that the defendant was a married man.

The rule to show cause will be made absolute.


text:
    LOUIS BEILIN v. CENTRAL RAILROAD COMPANY OF NEW JERSEY.
    Decided June 7, 1923.
    Negligence — Train Collision With Motor Vehicle — Charge to Jury — Contributory Negligence.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, DeVoe Tomlinson.

    Contra, Thomsa G. Tuso and John W. Westcott.

   Per Curiam.

This suit was brought by the plaintiff to recover damages sustained by him in a collision between his automobile and a train of the defendant company at the Malaga road crossing, near Vineland. The trial resulted in a verdict for the plaintiff, and the defendant seeks by the prosecution of this rule to have that verdict set aside.

A number of reasons for making this rule absolute have been argued by counsel for defendant, one of which was directed at an alleged error in the charge to the jury on the question of contributory negligence. The instruction complained of is so palpably erroneous that we have found it unnecessary to consider any of the other grounds argued by counsel. That instruction was as follows: “If you find that the defendant failed in the performance of the duty imposed upon it by law in the operation of its train, then you approach the second question, which is, Was the plaintiff himself guilty of a failure to do those things for his own protection which the situation required should be done by a person exercising ordinary care? Was he apprised of the approacli of a train so that he was guilty of carelessness in disregarding the warning given to him, and did he, in spite of such warning, and carelessly, put himself in a position where he was injured? If he did, then, even though the defendant be guilty of carelessness, the law is that the plaintiff could not recover.” The clear purport of this instruction, as we regard it, is that, in order to have been guilty of contributory negligence, the plaintiff must have been apprised of the approach of the train, and, in spite of his knowledge of this fact, carelessly put himself in a position where he was injured. This, of cour&e, is far from the full measure of the duty which rests upon a traveler on a highway who is about to cross the tracks of a railroad company.

Eor this error in the charge, the rule to show cause will be made absolute.


text:
    ANNA SCHAU v. FANNIE LYNN.
    Decided June 7, 1923.
    Negligence — Of Landlord — Assumption of Duty to Keep Property in Repair.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, Herbert Clark Gilson.

    Contra, Degheri & Kepsel.

   Per Curiam.

This was an action for personal injuries. The plaintiff called professionally upon á dressmaker, who occupied the premises known as No-. 198 Third street, in Jersey City, of which the defendant, Mrs. Lynn, was the owner. While the plaintiff was leaving the house, and was coming- down the front stoop, one of the steps broke or became dislodged, and she thereby received the injury for which she sued. The trial resulted in a verdict in her favor, and we are asked to set it aside on the single ground that the court improperly refused to nonsuit the plaintiff or to direct a verdict in favor of the defendant. The cdntention is that no responsibility rested upon the defendant as landlord to repair the stoop, and that, this being so, no negligence could be imputed to her for a failure in that regard, and as a corollary to this proposition, no recovery could be had against her by the plaintiff.

The building in question was a-one-family residence, -and normally the defendant, as landlord, was under no obligation to keep the front porch in proper condition. Both sides conceded this, but it was contended on behalf of the plaintiff that, although the defendant was under no legal obligation as landlord to do this, yet she had, in fact, assumed to perform this duty, and that, therefore, the case came within the doctrine of LaBrasca v. Hinchman, 81 N. J. L. 367. An examination of the testimony sent up with the rule discloses that there was some evidence that the defendant assumed the duty of keeping this porch in repair. In this situation, the trial court properly refused to nonsuit or to direct a verdict; ■ for, if the duty was in fact assumed, then the doctrine of the cited case was applicable.

The rule to show cause will be discharged.


text:
    HELEN PETTIT, ADMINISTRATRIX, ETC., v. PENNSYLVANIA RAILROAD COMPANY.
    Decided June 7, 1923.
    Negligence — At Railroad Crossing — Collision Between Train and Truck — Weight of Evidence.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, John S. Applegate & Son.

    Contra, Ward Kremier.

   Per Curiam.

. This suit was brought to recover compensation for the death of Alvin Pettit, who was killed at about half-past six in the evening of the 24th of December, 1920, at a railroad crossing at Bradley Beach. Decedent was driving a delivery truck over the crossing, and was run into by a train of the defendant company, traveling northbound. The trial resulted in a verdict in favor of the plaintiff, and a number of reasons are advanced in support of the contention that the rule to show cause must be made absolute. Two of those reasons are that the verdict of the jury that the defendant company failed to give the requisite signals of the approach of the train to the crossing was contrary to the great weight of the evidence, and, that its finding that the decedent did not contribute to the accident by his own negligence was also in the face of the great preponderance of the evidence. We have carefully examined the proof, and think that both of these contentions are well founded.

The rule to show cause wall be made absolute.


text:
    WILLIAM EIDEL v. CHRISTIAN REISS.
    Decided June 7, 1923.
    Assault — At Defendant’s Place of Business — Evidence Regarding the Aggressor.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, John A. Bernhard.

      Contra, Arthur R. Lewis.

   Per Curiam.

The plaintiff sought to recover compensation and punitive damages from the defendant because of an alleged • unprovoked assault made upon him by the latter at his (defendant’s) place of business in Newark. The trial resulted in a verdict for $2,500 in favor of the plaintiff, and we are asked to set it aside — -first, because the finding of liability against the defendant is opposed to the weight of the evidence, and second, because the verdict is excessive.

That there was an affray between the parties, in which the plaintiff was quite severely injured, is not disputed, the principal matter in controversy being whether in that affray the plaintiff was. the original aggressor or whether the defendant committed an unprovoked assault upon him. The jury found that the latter was the fact, and an examination of the testimony satisfies us that they were right in their conclusion. The testimony of the two witnesses called by the plaintiff, Yiola Dengel and Jennie Rupperd, each of whom lived opposite to the defendant’s premises, and each of whom declared she was an eye-witness to the affray, makes it apparent, not only that the defendant assaulted the plaintiff, apparently without any provocation, but also that the assault was an unusually brutal one, and was committed without the plaintiff having any opportunity to defend himself. In this situation, the.jury were justified, if they believed this evidence, in awarding punitive damages against the defendant, and we do not find anything in the testimony to discredit these two witnesses.

The rule to show cause will be discharged.


text:
    ALFRED FAGGIONI, BY NEXT FRIEND, ET AL., v. ALEXANDER WEISS AND ARTHUR H. SCHENCK.
    Decided June 7, 1923.
    Accident to Passenger in Automobile — Liability of Owner and Driver — Measure of Damages.
    On defendant Weiss’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, McDermott, Enright & Carpenter.

    Contra, Thomas Brown and Edwards & Smith.

   Per Curiam.

This is an automobile accident case. The plaintiffs are Alfred Faggioni, an infant, about eleven years old, and Louis Faggioni, his father. The infant plaintiff was riding on an automobile belonging to and driven by the defendant Weiss over the Raritan bridge, connecting Perth Amboy and South Amboy. This automobile was traveling south. When it reached a point near the middle of the bridge it collided with the automobile of the defendant Sehenck, traveling in the opposite direction. The result of the collision was the serious injury of this boy, and the suit was brought against Loth of the defendants on the ground that they were each jointly and severally liable. The trial resulted in a verdict against Weiss alone, the jury exonerating Sehenck from responsibility. The damages assessed in favor of the boy were $15,000 and the award to the father $3,000.

In this situation, Weiss applied to the trial judge for a rule to show cause why these verdicts against him should not be set aside, and prayed a reservation of exceptions taken to the refusal of the trial court to nonsuit and to direct a verdict in his favor, and also of such exceptions as were taken by him to the charge of the court to the jury. The present rule was thereupon allowed,, with the reservation asked for.

The first ground of reversal which is argued, is that the verdict against the defendant Weiss was contrary to the settled law of this state. But, assuming this to be the fact, it affords no ground for setting aside the verdict. The jury is not concerned with the abstract proposition as to what is or is not the settled law of the state. It must accept the law of the case as laid down by the trial court, and, when it does this, its verdict cannot be attacked as contrary to law.

The next ground of reversal is that the verdict against Weiss is contrary to the testimony of the plaintiff as to the manner in which the accident happened, and against the weight of the whole evidence in the case. In disposing of this point, it is enough to say that the testimony of the plaintiff is not conclusive, so far as the action of the jury is concerned. The function of the jury is to decide the case upon all of the evidence, and this is what was done in the present case.

As to the contention that the verdict was against the weight of the whole evidence, our examination of the proofs sent up with the rule satisfies us that the contrary is the fact.

It is next contended that on this rule the court ought to set aside the verdict exonerating Sehenck for the reason that it was not justified by the proofs. But that question is not before us on this rule, and is a matter which does not coneem'the defendant Weiss; for, even if the verdict in favor of Schenek was set aside, it would not relieve Weiss of his obligation to pay the amount of the damages assessed against him. In other words, he is not injuriously affected by this action of the jury.

The last ground of reversal is that these verdicts in favor of the two plaintiffs are excessive. We are not inclined to disturb them for this alleged reason. The injury to the boy was so severe as to require the amputation of his leg about half wray up the thigh. In addition to this, the other leg sustained a double fracture, although the bones 'have apparently properly reunited, so far as that leg is concerned. We cannot say that $15,000 in these days is an excessive award for an injury which condemns this boy to go through life a cripple; nor do we think the award to the father excessive, in- view of the expense which must necessarily be incurred by him and the deprivation of the earnings which might, under normal conditions, come to the son, and which could be appropriated by the father during the former’s minority.

The rule to show cause will be discharged.


text:
    DAVID H. RAMSEY, PROSECUTOR, v. THE CITY OF RAHWAY ET AL., DEFENDANTS.
    Argued February 20, 1923
    Decided June 7, 1923.
    Police — Removal of on Charge Under Act of 1917 — Trial—Failure of Accused to Appear — No Testimony Taken — Judgment of Removal.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Orlando E. Dey.

      For the defendants, Charles E. Corbin and Edward A. Markley.

   Per Curiam.

The- prosecutor, David H. Ramsey, as chief of police of the city of Rahway, was removed from such office, by an order and sentence of removal.on June 30th, 1922, by the mayor, James B. Eurber, acting as mayor and director of public safety of the city of Rahway. The writ of certiorari brings under review by the court the legality of such order and sentence of removal. The prosecutor writes down fourteen reasons for a reversal of such order and sentence of removal. The order and sentence of removal were made under and by virtue of Pamph. L. 1917, p. 359, ¶¶ 3, 5, art. 16, which provides : “After the charge or charges shall have been publicly examined into,” &c., “it being the intent of this act to give every person against whom a-charge or charges of any cause may be preferred under this act, a fair trial upon said charge or charges, and every reasonable opportunity to make his defence, if any he has or chooses to make.” The meritorious question involved is whether this provision of the statute was complied with in making the order and sentence of removal ? The record shows in detail what was done, written charges were filed, notice was given to the prosecutor dated June 22d, 1922, for a'hearing June 28th, 1922, at seven p. m. The prosecutor did not appear. The reason is not stated. The charges were read. No .evidence was submitted, no facts proved, decision was reserved. June 30th judgment dated, and on July 3d a written judgment of removal was filed. It requires no argument or discussion to demonstrate such a proceeding was not a “fair trial” within the meaning of the statute. The same phraseology in a statute was under con-’ sideration in the case of Carey v. Plainfield, 53 N. J. L. 311. What is a “fair trial” is illustrated in the case of Eisberg v. Cliffside Park, 92 Id. 321 (3 Words and Phrases 2650).

The order and sentence of removal brought up by the writ of certiorari is reversed and set aside, with costs.


author: Bentley, V. C.

text:
    John Redzina, complainant, v. Provident Institution for Savings in Jersey City and Eva Redzina, defendants.
    [Decided June 7th, 1923.]
    Deposits in Bank — Joint Account — Disappearance of One of the Joint Depositors — Rights of Other Depositor — Deposit a Debt Not a Trust.
    On bill, &C.

      Mr. Adolph Wolman and Mr. Maximilian T. Rosenberg, of counsel, for the complainant.

      Messrs. Insley, Vreeland & Decker, for the defendant Provident Institution 'for Savings.
   Bentley, V. C.

The complainant shows in his bill that on the 3d day of February, 1919, he opened an account in the Provident Institution for Savings in Jersey Cit]r, one of the defendants, in the joint names of himself and his wife, Eva, the other defendant, amounting to -the sum of $1,100; that subsequently and in the month of August, 1021, his said wife deserted him, taking with her their two children, and that he has not seen or heard from her at any time since. That such account, was opened in the parties joint names for the purpose of obviating his remaining away from his work dming the office hours of the bank when it might be necessary from time to time to withdraw money. That in the month following his wife’s departure the complainant attempted to withdraw from the Provident Institution for Savings the entire amount on deposit, but was refused by the said bank unless the complainant should deliver to it a certain pass-book issued by it to the complainant and his wife at the time of the opening of the said account.

The bill also sets out that one of the articles of the by-laws of the bank provides as follows:

“Deposits and dividends shall be drawn out only by the depositors in person, or by their written order, or by some person legally authorized, and only upon the production of the depositor’s book, that such payments may be entered therein, and all payments to persons who present the deposit book shall be valid payments to discharge the bank and its officers. No assignee of an account shall be entitled to it, as against the bank, till after written notice, and due proof of the assignment given to the bank.
“Depositors are not entitled to withdraw money except upon sixty days’ notice of such intended withdrawal; but the treasurer may at the option of the institution pay to depositors applying at any time, their interest or principal or part thereof.”

This was a part of the contract between the bank and the depositors.

The bill then prays that it may be decreed that the defendant, Eva Bedzina, has no right, litle, or interest in and to the moneys on deposit, and that the complainant is the sole owner thereof; and that the defendant, Eva Eedzina, be directed to deliver up the said deposit book and be restrained from disposing of it, and that the said bank may be directed to pay over to the complainant all the moneys in the said bank account, and be thereafter discharged from all responsibility in the premises to the other party.

To this bill an answer was filed hy the bank, practically admitting all the allegations in the bill, and setting out that the amount to the credit of the complainant and wife is the sum of $636.73, and holding itself ready and willing to pay said sum to the person or persons to whom it may belong; and praying leave to pay the said sum into the office of the clerk; whereupon an order was made permitting such deposit, and the deposit has actually been made.

The subpoena has been returned by the sheriff of Hudson county not served, with an affidavit of one of the under-sheriffs, that he has inquired for the defendant, Eva' Bedzina, and has not been able to find her and is credibly informed and verily believes that she cannot be found in this state. Whereupon, the necessary affidavit of the solicitor of the complainant was filed and an order of publication made, and proof of such publication subsequently filed.

Upon the hearing, after an order of reference, the complainant produced several witnesses, and it was satisfactorily established that his wife had deserted him in the company of some man who had boarded with them, taking his children, and that he had been unable to ever find her; also that he is a laboring man, all of whose savings axe practically represented in what his wife has left in the said bank, she having withdrawn several hundred dollars and apparently taken the passbook or destroyed it so that he is una Die to find it.

My difficulty in this case is expressed in the opinion of Vice-Chancellor Buchanan in the case of the National Bank of New Jersey v. White, 116 Atl. Rep. 533, where almost the same situation was encountered, except in that suit the litigation was commenced by a bill of interpleader. In that case and in the one at liar, the husband was a party to the suit but the wife had never been served with process or in any way subjected herself to the jurisdiction of the court. The vice-chancellor pointed out, in the case just cited, that this was a litigation over a sum of money between two parties and was a proceeding in personam and not in rem. Because of the unfortunate predicament of the complainant in the case at bar, the matter has been argued with great earnestness and ability by counsel, and counsel for the defendant, the Provident Institution for Savings, has bestowed considerable of his time and effort on the case in the hope of assisting the complainant in securing what appears now, under the proofs as they exist, to be his money, for him. It has been urged that the controlling case is not the one to which I have referred, but the case of the Amparo Mining Co. v. Fidelity Trust Co., 75 N. J. Eq. 555. In that case it is true the court of errors and appeals went into the subject of the elements of a proceeding quasi in rem as distinguished from a proceeding in personam,; but I am unable to see any' application of the doctrine there enunciated to the ease in hand. In the Amparo Mining Company Case the court of errors and appeals decided that a trust could be impressed upon the shares of stock of a New Jersey corporation, although the trustee resides out of the state and cannot be served with process, and affirmed the opinion of Vice-Chancellor Stevenson in this court, reported in 74 N. J. Eq. 197, whose-opinion went deeply into the statutory authority for proceeding quasi in rem; but, as said by Vice-Chancellor Buchanan in his opinion cited above, “the subject-matter is not a trust fund but a debt due on contract from the bank to one or other, or both, defendants.”

Just so here. It is elementary that the relations between the complainant and the bank is that of creditor and debtor, and in view of what has already been said, it must be apparent upon any consideration that no effective decree can be made that will cut off the rights of the defendant, Eva Bedzina, without the service of process upon her. In short, she is entitled to the protection of the due-process-o'f-law clause of the constitution.

Under the circumstances of this case I have the greatest sympathy for the complainant, and I have tried to see the matter in a different light, but feel constrained to decide the case as I have indicated.

I will advise a decree dismissing the bill.


author: Bergen, J.

text:
    JOHN W. KELLY v. ABBOTT I. WEINER.
    Decided June 12, 1923.
    Fraudulent Sales — Allegation of — Defendant Held in Bail — Facts Considered — Order to Hold in Bail Set Aside.
    On motion to set aside an order to hold defendant to bail in a civil action.
    Argued before a single justice.

      For the motion, Seymour J. Solomon.

      Contra, Abe J. David.

   The opinion of the court was delivered by

Bergen, J.

The defendant owned or controlled all of the capita] stock of the Bearing and Odometer Corporation, engaged in the motor bearing business, which he sold to plaintiff, who took possession of the business and after conducting it about two months, he, alleging that the sale was induced by fraudulent representations by defendant, demanded that defendant rescind the sale and refund the money paid him by plaintiff. The defendant refusing the demand, the plaintiff obtained from a Supreme Court commissioner an order that he be held to bail on the ground that the contract of sale to him was fraudulently induced, and defendant was arrested on a capias ad respondendum, based on the order. Defendant now moves that the order be set aside and he discharged from arrest upon the insufficiency of the affidavit on which the commissioner acted. The affidavit avers that plaintiff applied to defendant to purchase the business with which he was not familiar; that defendant informed him that the business vras a paying business; that the stock of merchandise was new and salable; that his books showed the cost price, and offered to sell the merchandise and fixtures for $3,500; that.acting on the aforesaid representations, plaintiff and defendant entered into an agreement for the sale and purchase (what that agreement was does not appear), and that defendant “represented that he could procure an extension of the lease” from the owner of the premises; that at the closing of the deal defendant produced a list of the stock with the inventoried cost price, which aggregated $4,202.06, and represented that the inventoried prices were the cost prices, and it was then agreed that defendant would¡ sell sufficient merchandise to amount to $3,000, the fixtures for $500 and allow the balance of merchandise to remain with plaintiff on consignment for sale; that before signing this contract defendant represented that he had procured an extension of the lease for two years at a monthly rent of $90, and that the lease was about to be executed; that defendant would lease the premises to plaintiff for $75 a month; that plaintiff had now learned that the lease was never executed; that plaintiff paid defendant $3,-500; that he was afterward informed by experts that a large portion of the merchandise was not salable or new goods, but obsolete and unsalable, and he learned that the cost price was ten per cent, less than shown on the list. The affidavit is clearly insufficient to establish a fraud at the inception of the contract, for it is nowhere stated that the representations were false except that plaintiff had learned, fromi other persons not named, that the merchandise was unsalable, or that defendant had not obtained an extension lease. All plaintiff’s affidavit shows is that he had been so informed by other persons which would be mere hearsay evidence and not competent in a court of justice. The plaintiff does not say that he had any difficulty to sell the merchandise for any such reason during the two months he conducted the business. It may have been so, but it does not appear, and, so far as the competent statements in plaintiff’s affidavit show, every representation of the defendant may have been true as to the character of the merchandise, and as to the lease no one competent to testify has said that defendant did not obtain from the owner an extended lease. The putting up by the owner of “To Let” notices may not have been within his rights, or plaintiff may not have paid the rent as agreed. Much of the dealings between these parties seem to be represented by at least two written contracts to which the affidavit refers, without a copy of the contracts being attached to the affidavits, and all I can deal with is the affidavit. .

The order to hold bail will be set aside, with costs, the writ to stand as a summons; the defendant to have twenty days to answer after service of the complaint, or if served the same time after the date of the order discharging the defendant from arrest.


text:
    TIFFANY & COMPANY, A BODY CORPORATE, DEFENDANT, v. MARYON ANDREWS D’ERLANGER, PROSECUTOR.
    Decided June 12, 1923.
    On certiorari removing the judgment of the Passaic Circuit Court.
    Argued by consent before Minturn, J.
    For the prosecutor, George W. McCarter.

    For the defendant, Wall, Haight, Carey & Hartpence.

   My examination of the record, and my consideration of the arguments and briefs of counsel, have led me to concur in the views expressed by Judge Newman in his opinion filed in this cause in the Circuit.

The judgment under review will thereupon be affirmed.


text:
    ALBERT HAAKE, PROSECUTOR, v. BOROUGH OF NORWOOD.
    Decided June 13, 1923.
    Ordinances — Municipal—Street Paving — Validity of Procedure in Passage Also of Referendum — Facts Considered.
    On certiorari.

    Before Justice Parker, sitting alone, pursuant to the statute.
    For the prosecutor, Fred W. Mattocks.

    For the defendant, Le Roy Vander Burgh.

   Memorandum of decision for the information of counsel.

The writ brings up an ordinance passed December 5th, 1922, relative to the grading, macadamizing and draining of Summit street, &c., with all things touching the said ordinance and the ratification of the same. The attack is on the procedure of passage of the ordinance by the council and also on the validity of a special referendum election held thereon in view of a protest by more than ten per cent, in valuation of the taxpayers.

I conclude that the procedure was defective because the notice of intention was not properly given; or, to put it in another way, because council considered the ordinance without giving such notice.

The procedure followed was this:

On November 14th, 1922, the ordinance was introduced without previous notice, read by the clerk, and on motion, passed its first reading, and council directed notice of intention to “consider” the proposed improvement and the final passage of the ordinance as December 5th, on which date there was a hearing and the ordinance was finally passed.

In Boynton Co. v. Woodbridge, 109 Atl. Rep. 514, Mr. Justice Bergen, sitting as the Supreme Court, held that the giving of the first reading amounted to some “consideration” of the ordinance and was irregular without previous notice thereof. This decision is controlling on this case. It -is said that the cases differ, because, in the Boynton case, amendments were added at first reading, but I see no logical distinction between the decision of council to amend and its decision that the ordinance is good enough to go to second reading without amendment.

This result makes it unnecessary to deal with the other grounds of attack. It is urged that prosecutor is in laches or estopped because he appeared and argued against the improvement, and also joined in the demand for a special election and permitted council to incur the expense thereof without challenge to the prior procedure. I am unwilling to say that he should be barred on this account. No contract has been awarded, nor, so far as appears, have bids been advertised for. In Scheible v. Hightstown, 93 N. J. L. 69, 73, prosecutor refrained from attacking a special election until after the soldier vote had come in and been counted, and was held not in laches. No rights of a contractor have "intervened in this case, and the expense of the election seems insignificant, especially as the “Norwood Improvement Committee,” apparently a private organization, seems to have ordered the ballots and sent out the samples. The moral impropriety of sending out the samples marked in the affirmative is manifest, but the legal aspect of it, for reasons already given, requires no discussion at this time.

The ordinance will be set aside, with costs.


text:
    ADAM FROMMER, PLAINTIFF, v. GEORGE J. RIESTER, DEFENDANT.
    Decided June 7, 1923.
    Damages — Adequacy of.
    On plaintiff’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the plaintiff, Harlan Besson.

    For the defendant, Oongleton, Stallman & Hoover.

   Per Curiam.

The only question to be considered in this case is the amount of damages. The jury allowed $350. Whether this was adequate or inadequate depends upon the view taken of the medical testimony.

We see no reason to justify us in setting aside the verdict of the jury. Let the rule be discharged. ^


author: Pee Ctjeiam.

text:
    THE STATE v. ANTHONY BUOMERBA.
    Decided June 7, 1923.
    Criminal Actions — Weight of Evidence Necessary to Set Aside Verdict.
    On error to the Essex Quarter Sessions.
    Before Gummere, Chief Justice, .and Justices Swayze and Trenchard.

      For the plaintiff in error, Wilbur A. Heisley.

    For the state, John O. Bigelow, prosecutor of the pleas.
   Pee Ctjeiam.

The defendant was convicted upon an indictment charging him with the crime of rape, committed upon the body of one Margaret McDonald, a girl eighteen years of age. The only ground upon which we are asked to set aside the conviction is that the verdict is against the weight of the evidence.

In the case of State v. Karpowitz, 1 N. J. Adv. R. 94, the Court of Errors and Appeals declared that “to -justify a court in setting, aside a verdict in a criminal case on the ground that it is against the weight of the evidence, the verdict must so clearly appear that it is against the weight of the evidence as to give rise to the inference that it is the result of mistake, passion, prejudice or partiality.”

Our examination of the testimony returned with the writ leads us to the conclusion that the attack upon the verdict cannot be justified, under the principle laid down in the cited case. The mere fact that a reading of the testimony leaves the minds of the judges who constitute the reviewing tribunal in a state of doubt, as to the guilt of the defendant will not justify a declaration by it that the verdict is against the weight of the evidence. And this is particularly true in view of the fact — pointed out in the cited case — that testimony which seems convincing in print would often be unconvincing if heard in court from the lips of witnesses. The jury had the opportunity of personally seeing and observing the demeanor of the wdtnesses in the present case, and they were better qualified to judge of the credibility of those witnesses and the weight to be accorded to their testimony than we are; and, 'this being so, even if we were in doubt as to the soundness of the jury’s finding by a reading of the printed case, that fact would afford no reason for setting aside this conviction.

The judgment under review will be affirmed.


text:
    HELEN LIABLE, PLAINTIFF, v. WOODHULL & MARTIN COMPANY, DEFENDANT.
    Decided June 7, 1923.
    Damages — Amount of Award.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the defendant, McDermott, Enright & Carpenter.

    For the plaintiff, Robert Newton Crane.

   Per Curiam.

The only question we need decide is the amount of the damages. The jury awarded $2,500. We think that a verdict of $1,500 would be as much as could be fairly awarded. Let the rule be made absolute, unless the plaintiff will consent to have the verdict reduced to the amount we have indicated.


text:
    MARY LASAPIO, ADMINISTRATRIX, PLAINTIFF-APPELLANT, v. CHARLES ROEHLER AND K. A. HORBACH BAKING COMPANY, DEFENDANTS-RESPONDENTS.
    Decided June 7, 1923.
    Negligence — Injury Caused to Helper Engaged by Employe Without Authority of His Principal.
    On appeal from the Essex Circuit Court.
    For the plaintiff-appellant, Arthur B. Seymour.

      For the defendants-respondents, Irving W. Teeple and Charles Frankel.

   Per Curiam.

This is an action against the baking company and one of its drivers for causing the death of the decedent, a lad twelve years old. There was a nonsuit in favor of the baking company and a verdict in favor of Roehler.

The errors assigned are the failure to submit to the jury the liability of the defendant. This depends upon the right of the lad to be upon the bakery company’s wagon. The accident happened on a Saturday morning when the bakery wagons were very busy making their deliveries. It was common for the drivers to engage boys to help in the deliveries, and it is not sihown that they were in the employ of the baking companjr, except so far as may be inferred from these facts; the evidence shows no authority in the drivers to hire the boys. In this case the difficulty in the way of the plaintiff is more serious.

What happened was that the boy met the driver of the wagon on his rounds and called to him, “Can I go with you,” the driver said, “Where have you been ?” and the boy replied, “I have been sick, I have had pneumonia,” whereupon the driver said, “I cannot use you to-day, I got a helper,” and then he says, “The tears started to roll out of the boy’s eyes, and he asked me if I could not please take him along,” and the driver said, “If you wish you can come.”

The trial judge rightly conceived that there was no authority of the driver to employ the boy as the servant of the baking company, and that as to the baking company the boy was a mere licensee. We think it would have been right to. nonsuit the plaintiff as to Roehler as well as to the hairing company.

The only other error assigned that we need consider is the response to the jury. They asked, “Is not the driver guilty of carelessness in allowing the boy, a twelve-year-old boy, ride on Ms truck, although he may not be responsible of carelessness in any other way,” to which the court replied, “No.”

We think the court was right, and that it was also right when it said, “It seems to me the only question is whether the defendant Roehler was guilty of willfully or wantonly injuring this boy, and that is all there is to argue about.” There was no evidence of willful or wanton injury, nor was the boy an invitee. The case, we think, was the ordinary one of the boy volunteering. Apparently the cause of the injury to the boy was that he got cn the step of the truck.

The judgment must, therefore, he affirmed.


text:
    PETER A. RYAN, PLAINTIFF, v. NEW JERSEY ICE CREAM COMPANY, DEFENDANT.
    Decided June 7, 1923.
    Negligence — Verdict Contrary to Weight of Evidence.
    On plaintiff’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the plaintiff, Alexander Simpson.

    For the defendant, Jacob Schneider.

   Per Curiam.

The plaintiff’s decedent was killed in an accident resulting in a collision between the defendant’s truck and a Buick car, driven by one Borschel. The decedent was crossing the street when the truck struck her. The chief ground urged in favor of the rule is that the verdict is contrary to the weight of the evidence. We think it was not contrary to the weight of the evidence as against the driver of the truck. The question of the negligence of Btorschel is not presented by the case.

The rule must be discharged.


text:
    JOHN BURHANS ET AL., PROSECUTORS, v. CITY OF PATERSON, DEFENDANT.
    Submitted February term, 1923
    Decided June 7, 1923.
    Taxes and Assessments — Paving Assessment.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutors, Randal B. Lewis.

    For the defendant, Charles H. Roemer and Edward F. Merrey.

   Per Curiam.

The writ of certiorari in this case was sued out by forty-five property owners. The object of the writ is to review an assessment made by the city of Paterson for street paving done by the county of Passaic, amounting to $5,291.85.

Also, for curbing, water, sewer and gas connections amounting to $2,702.23 done by the city of Paterson. Total assessment, $7,994.07. The assessment was made against property abutting on Hamburgh avenue from Union avenue to Katz avenue, in the city of Paterson. The paving assessment is based on a contribution made by the city of Paterson under a contract with the county of 'Passaic towards the cost of the work dated June 30th, 1921. The ordinance providing for the improvement of Hamburgh avenue was approved June 15th, 1921. The work was started June 13th, 1921. The prosecutors write down nine reasons for setting aside the assessment as invalid.

Reasons Nos. one, three, five, six and seven are considered and answered in the recent decision in the Court of Errors and Appeals in the case of Ringer v. City of Paterson, 1 N. J. Adv. R. 34. In that case, the statutes under which the assessments were made were considered. The answer to reason No. two is laches. The prosecutors knew on June 14th, 1921, that an assessment was to be levied for the wrork then commenced. The assessments were confirmed November 9th, 1922; the writ of certiorari was allowed December 2d, 1922. The property owners whose rights are to be affected must take prompt action. Burrell v. Mayor, &c., of Woodbury, 74 N. J. L. 206; Graham v. Ocean City, 1 N. J. Adv. R. 24. So as to reason No. four. The answer to reason No. eight, viz., the assessments are in excess of the benefits. This is a question of fact. We cannot substitute our judgment for that of the commissioners of assessment.

The certiorari is dismissed and the assessments are confirmed, with costs.


text:
    SINIE WENTINK, ADMINISTRATRIX, ETC., PLAINTIFF, v. LEON E. BISSELL, DEFENDANT.
    Submitted February term, 1923
    Decided June 7, 1923.
    Negligence — Collision Between Motor Vehicles — Inadequacy of Damages.
    On application for a rule to show cause.
    Before Justices Kalisch, Black and Katzenbach.

      For the rule, Weinberger & Weinberger.

    Contra, McDermott & Enright.

   Per Curiam.

This is an application by the plaintiff for a rule to show cause, in an accident death case, on the ground of inadequacy of damages. The trial resulted in a verdict for the plaintiff for $1,000. James Wentink, the plaintiff’s intestate, was killed on July 3d, 1921, while riding on a motorcycle which came into collision with an automobile owned and operated by the defendant at the intersection of Aycrigg and Passaic avenues, in the city of Passaic, New Jersey. The testimony as to the occurrence is conflicting.

James J. Bingham, an eye-witness to the occurrence, says “the automobile hit the motorcycle.” The defendant says “it, i. e., the motorcycle struck me on the right front hub.” The motorcycle, under the Traffic act, had the right of way, as it approached the intersection of the avenues from the defendant’s right.

The decedent at the time of his death was unmarried and twenty-two years of age. He was employed in a drug store delivering orders and acting as a salesman, at a salary of $25 per week. His next of kin consisted of his mother and five brothers, two of whom are minors, aged fifteen and seventeen years respectively. We are unwilling to disturb this verdict. We cannot say that it was the result of mistake, passion or prejudice. Queen v. Jennings, 93 N. J. L. 353.

The order allowed by the trial judge is discharged, without costs.


text:
    JOSEPH J. HARRIS, PLAINTIFF, v. ELIZABETH STREET, DEFENDANT.
    Submitted February term, 1923
    Decided June 7, 1923.
    Contracts — Real Estate Broker Agent of Buyer or Seller— Evidence.
    On rule to show cause.
    Before Justices Kalisch, Black and Katzenbach.
    For the plaintiff, George G. Tennant.

    For the defendant, Collins & Corbin, David A. Newton.

   Per Curiam.

This case comes before the court on defendant’s • rule to ’show cause why a verdict directed by the court in favor of the plaintiff in the sum of $2,065, the amount of deposit with interest made by the plaintiff on an agreement to purchase premises No. 2957 Boulevard, Jersey City, N. J., should not be set aside.

The defendant writes down nine reasons for a new trial, which are argued under three heads in the brief. The meritorious question involved in the controversy is, Whose agent was George A. Eoye, the real estate broker? Was he. the agent of the buyer or the seller ? Exhibit P-J¡. is a letter dated January 7th, 1920, Addressed to George A. Eoye, signed by the defendant, Elizabeth Street, the owner of the premises. By this letter, she authorized him to sell the' property and agreed to pay him a commission of $1,250 out of the deposit money to be paid. The seller having failed to perform her contract, she is bound to refund the amount she received as a deposit. The ruling of the trial court in directing a verdict in favor of the plaintiff, the facts not being controverted, was not error; nor was it error to exclude the evidence .alleged to be illegal. The reasons alleged for a new trial are without legal merit. 'They do not call for any extended discussion.

The rule to show cause is discharged, with costs.


text:
    MARION McMILLEN ET AL., EXECUTORS, PLAINTIFFS, v. LEWIS GROSS, DEFENDANT.
    Submitted February term, 1923
    Decided June 7, 1923.
    Contracts — Cutting of Trees — Question of Authority — Misconduct of Witness.
    On rule to show cause.
    Before Justices Kalisch, Black and Katzenbach.
    For the plaintiffs, John W. Harding.

    For the defendant, Monison, Lloyd & Morrison.

   Per Curiam.

The plaintiffs in this case sued the defendant for damages caused by the defendant cutting trees on the plaintiffs’ woodland. The defendant, under an agreement, had authority from the plaintiffs to cut certain specified kinds of trees for use, as railroad ties. The trees so cut were paid for at the contract price per tie. The allegations are the defendant cut other trees without authority; the defendant failed to clean up the brush or trash as required by the contract. The damages alleged the value of four thousand six hunded and fifty-four trees cut at $12,000; damages to the forest, $8,000; ■cost of removing tops of trees and brush so as to prevent fire, $5,000; total damages alleged, $25,000. The trial resulted in a verdict for plaintiffs for the sum of $14,245.26. A rule to show cause was allowed by the trial judge. The defendant writes down four reasons for a new trial. They are argued in the brief, under two heads — first, because of the misconduct of one of the jurors — second, because the verdict is against the clear weight of the evidence.

As to the first ground, it is sufficient to say, waiving the irregularity under which the testimony was taken, returned with the record, a statement by a juror cannot be received in evidence for the purpose of contradicting or destroying a verdict. Queen v. Jennings, 93 N. J. L. 353. The defendant, Lewis Gross, his son, Gregory, and a workman, Thomas Castelene, testify they saw one of the jurors, on the Sunday over which the trial of the case was continued, at or near the house of the plaintiff McMillen. They did not see the juror do anything. He was not identified by name. The defendant was in court on the next day, Monday, sat quietly by until after the verdict was announced without in any way calling the incident to the attention of the trial judge. Manifestly the defendant could not sit by and speculate as to the verdict, then, when it was adverse, complain. This would be neither good morals or good sense. That the verdict is excessive needs no comment. It is amply supported by the evidence as we read fhe record.

The rule to show cause is discharged, with costs.


text:
    JACOB HESS ET UX., DEFENDANTS, v. JULIUS BAROFF, PROSECUTOR.
    Submitted February term, 1923
    Decided June 7, 1923.
    Landlord and Tenant — Record Presents Nothing for Review.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Alexander Seclow.
    For the defendants, Jacob Feinberg and Benny & Cruden.

   Per Curiam.

Tlhe certiorari in this case was allowed to review a proceeding in a landlord and tenant case in the Bayonne District Court.

The printed book furnished to the court purports to show a record of the transcript of the docket of the Biayonne District Court. There is no mention made that a trial was had in that court or that any testimony was taken, or that any judgment was rendered or entered in that court. There is nothing for this court to review. The certiorari allowed in this case will be dismissed, with costs.


text:
    COMMONWEALTH WATER COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANT.
    Submitted February term, 1923
    Decided June 7, 1923.
    Public Utilities — Rates—Schedule Disapproved and Other Rates Put in Effect Higher than Old Ones — Reasons Alleged for Writ.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Collins & Corbin, William M. Wherry, Jr.

    For the defendant, Thomas Brown.

   Per Curiam.

The c&rtiora/ri in this case brings under review by this court a report and order of the board of public utility commissioners, dated February 1st, 1922, by which the schedules of rates of the prosecutor filed September 23d, 1921, were disapproved and a new- schedule was prescribed by the board of reducing the rates asked for, but allowing an increase over the old rates. The rate allowed to the company was estimated on a basis of a return of seven and one-quarter per cent, upon its property. The company asked that it should be estimated on a basis of a return of seven and eight-tenths per cent.

The prosecutor filed- twentj^-three reasons for a reversal and setting aside the proceedings under review. They are argued under six heads in the prosecutor’s brief. All the reasons filed are pure questions of fact, except Nos. 16, 17, 20, 21 and 22. Our examination of the voluminous record satisfies us that the order of the board is supported by the facts produced before the board, as set out in the printed book furnished to the court. We cannot substitute our judgment for that of the board, where there is evidence which supports the order under review. This also disposes of reasons Nos. 20, 21 and 22, viz., that the order deprives the prosecutor of its property, without due process of law. It takes the private property of the prosecutor for public use without just compensation. Reasons Nos. 16 and 17, because the prosecutor was not allowed to treat the federal taxes as operating deductions. This amount was $1,670. But the board, at page 423 of the report, did allow this item as a deduction from the operating revenue. This is a troublesome question, which we think is unnecessary to discuss or decide in the present case, other than it appears to have been acted upon by the board in the report and order dated February 1st, 1922^ at page 423 of the paper book.

The certiorari is dismissed, and the report and order of the board brought up by the writ are confirmed, with costs.


author: Mr. Hartshorne —

text:
    New Jersey Supreme Court, Essex Circuit.
    Abraham Green v. Liverpool and London and Globe Insurance Company.
    [Decided May 21st, 1923.]
    Insurance — Contracts of — Cancellation of Policy — Due Notice.
    On action at law.
    Before Worrall E. Mountain, J., and a jury.

      Mr. John W. McGeehan, Jr., for the plaintiff.

      Messrs. Edward M. & Runyon Colie (by Mr. Richard Hartshorne), for the defendant.
    A jury is called and sworn.

      Mr. McGeehan opens for the plaintiff.

      Mr. Hartshorne opens for the defendant.
   Mr. Hartshorne —

The plaintiff and defendant in this case have agreed to a stipulation and state of facts as the basis for the determination of the issue in this caso. I would aslt that the stenographer read them.

The stenographer reads as follows: “The following stipulation and agreed state of facts is agreed to by the plaintiff and the defendant as the basis for the determination of the issue in this case.

“1. The defendant, on or about March 24th, 1921, issued and delivered to the plaintiff a policy in evidence as Exhibit Pi.

"‘2. The plaintiff, on and before said date, was the owner of the automobile described therein which, subsequently to the delivery of said policy and on or about December 31st, 1921, while the same remained in his possession, was stolen and due notice thereof given to the defendant company. On said date the term of the policy had not yet expúred.

“3. On June 15th, 1921, defendant company duly mailed to Mr. Abraham Green, 149 Van Houten street, Paterson, New Jersey, its formal signed notice in evidence as Exhibit Dl. Said notice was not received by plaintiff but was returned to the defendant by the postal authorities, subsequent to July 11th, 1921, undelivered, being marked by the postal authorities ‘return to writer, unclaimed.’

“4. Plaintiff does not dispute defendant’s right to cancel the policy in accordance with its terms on June 15th, 1921, but claims that no notice was given to plaintiff under the policy.

“5. The defendant, after the return of the letter of notice, made no further effort to locate and give actual notice to the assured and the plaintiff at this time was a resident in the city of Newark, with a-telephone listed in the telephone book and -his address was known to one Sofman, who was the broker with whom the assured had dealings in placing the policy, which Sofman placed the policy through a broker, Knopf, with the defendant company. The defendant company did not know Sofman in the matter, knowing only Knopf as the broker, and never inquired of the broker, Knopf, the address of the assured, but gave Knopf notice of its intention to cancel the policy unless the premiums were paid.

“6. Defendant company never received any portion of its premium, but plaintiff paid Sofman $92.07 before the cancellation notice was mailed and $50 thereafter, but previous to the loss.”

The Court — That is the case ?
Mr. McGeehan — Yes, your Honor.
The Court — Do you wish to argue it ?
Mr. McGeehan — Well, will your Honor decide the motion for the direction of a verdict ?
The Court — Yes.
Mr. McGeehan — Then, I think, the argument should be by the defendant, as that is the plaintiffs case.

(Counsel argue.)

The Court — This insurance policy is a contract between Abraham Green and the Liverpool and London and Globe Insurance Company. I .have not examined the other conditions of tins contract, but I confine my attentions to the paragraph under “cancellations.” The paragraph is unusual because it is clear. The terms of many of the insurance policies that come before this court are so ambiguous and involved that it leads the court to suspect that it is done purposely so that the policyholder will not know what he is getting. This is not the case with this policy.

The reason there are no cases to be found by counsel in point with this case, is because the contract expressed what the parties intended it to express, and in plain English. It says: “It shall be canceled at any time by the assured or by the company by giving five days’ notice of such cancellation.” The courts of this state have held that any sort of a notice, either written or oral, indicating the definite and unequivocal determination by the company to cancel it, is sufficient, but it must be communicated further to the assured.

This policy provides how the notice shall be given, in plain English, as follows: “Notice of cancellation shall be mailed to the address of the assured stated in the policy.” His address is in here and his name is here, “shall be sufficient notice,” and that is all there is to it.

' Gentlemen of the jury, I direct that you bring in a verdict in favor of the defendant and against the plaintiff.

Plaintiff’s counsel prays an exception to this ruling of the court.

Exception noted as ground of appeal.


text:
    WILLIAM H. FEATHER, RELATOR, v. NEW JERSEY REALTY AND FINANCE CORPORATION ET AL., RESPONDENTS.
    Argued June term, 1923
    Decided June 21, 1923.
    Corporations' — Examination of Books — Charter Provisions Relating to Stockholder’s Right.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Trenchard, Parker and Bergen.
    For the relator, William T. Boyle.

    For the respondents, Lewis Starr.

   Per Curiam.

In its general features, this case exhibits such a similarity to the case of Schnitzler v. New York Transportation Co., 76 N. J. L. 171, that, following that precedent, an alternative writ ought to issue.

- The special feature of the matter, on which counsel for respondents lays much stress, is that the certificate of incorporation of the corporate respondent contains certain provisions purporting to limit the right of stockhoklers to examine the books of the corporation, which are effective to bar the present application. This feature was presented in In re De Vengoechea, 86 N. J. L. 35, but not passed upon. The matter is important and should be decided; and wé are clearly unwilling to decide it against relator on this -rule, nor, on the other hand, should it be decided in favor of either party without fuller consideration and argument than the present rule permits. We conclude that an alternative writ should issue, and this question may then be raised on the record, together with the other questions of good faith, &e., arising in the case.


text:
    WILLIAM J. FRAZIER, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Submitted March 22, 1923
    Decided June 21, 1923.
    Negligence — Common Carriers to Use High Degree of Care to Protect Passengers from Injury — Passenger injured While Ejecting Disorderly Person at Request of Conductor.
    On appeal from the Camden County Court of Common Pleas.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the appellant, Leonard J. Tynan.

    For the respondent, D. Trueman Stackhouse and Charles W. Letzgus.

   Per Curiam.

The plaintiff was a passenger on a car of the defendant company running from Trenton to Camden. His evidence tended to show that a colored passenger, who was making himself obnoxious by his actions and talk, was told by the conductor that if he did not stop his objectionable conduct he would be ejected; that, refusing to stop, the conductor called upon plaintiff to aid him in ejecting.the negro, and that while he was doing this the negro stabbed him, and that the conductor, after the negro drew a knife, abandoned any effort to assist the plaintiff.

The case has been twice tried. See 116 Atl. Rep. 769. The first trial resulted in a nonsuit. We set it aside upon the ground that the conductor, as the agent of the defendant company, was bound to use a high degree of care to protect the plaintiff from violence, whether actual or reasonably anticipated, and even though he was engaged in ejecting a disorderly passenger at the conductor’s request; and that the evidence tended to show that the conductor had failed in that duty. The second trial resulted in a verdict for the plaintiff and this appeal is from the consequent judgment.

The first ground of appeal is that the court erroneously instructed the jury with relation to the obligation of a common carrier, to use a high degree of care for the protection of its passengers. The argument is that the instruction made the company liable without any regard to whether or not there was another, independent, intervening agency which produced the injury. The answer to this is that if the charge as originally delivered was subject to this criticism, and if that alleged infirmity was fairly pointed out, it was remedied by the trial court when the jury was recalled. The correct legal principle seems then to have been laid down and no objection or exception was taken thereto.

The next point is that the trial court erroneously charged the jury as follows: “If the plaintiff acted at the request of the conductor, and undertook single-handed to eject the offending passenger from the car, he was still entitled to be protected against violence occasioned by an act of the fellow-passenger, even though the conductor did not assist the plaintiff in ejecting the offending passenger.” The criticism upon this instruction is that there was no evidence to show that the plaintiff undertook single-handed to eject the offender, but that he was merely assisting the conductor. But this is not strictly so, for the proofs justified the conclusion that, although the conductor may have undertaken, with the assistance of the plaintiff, to eject the offender, yet he abandoned that intention when the offender drew the knife, and allowed the plaintiff from that time on to carry out the removal of the offender single-handed.

The last ground of appeal is that the court erroneously charged the jury as follows: “Now, if the plaintiff is entitled to recover, if you are satisfied that the carrier in this case did not use the high degree of care that is imposed upon it by the law, of course, you will find a verdict for the plaintiff.” The criticism upon this instruction is practically the same as was made upon that which is the subject of this first ground of appeal, and the answer is the same, namely, that the court instructed the jury, and properly instructed them, with relation to the obligation of the carrier to protect its passengers against the injury.

The judgment will be affirmed, with costs.


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    UNITED OWNERS’ REALTY COMPANY, PROSECUTOR, v. BOROUGH OF LODI, DEFENDANT.
    Submitted February term, 1923
    Decided June 7, 1923.
    Taxes and Assessments — Review of Sewer Assessments.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Morrison, Lloyd ,& Morrison.

    For the defendant, Walter G. Winne.

   Per Curiam.

The certiorari in this case was allowed to review assessments made for the building of a sanitary sewer and disposal plant in the borough of Lodi, N. J. The main trunk sewer and disposal plant cost $107,000. This cost was assessed generally on all property in the borough according to benefits. The total cost of the sewer was $448,522.64, of which $8,472.48 is to be paid by the borough and raised by general taxation. The work was begun in the- year 1916. It was completed and accepted in 1921. The assessments were confirmed on February 27th, 1922. The writ was applied for and allowed January 23d, 1923. Rule allowed on January 27th, 1923, why thirteen other property owners should not be made parties to the suit under Rule 171 of the Supreme Court.

The assessments were made under the provisions of Pamph. L. 1917, p. 378, article XX, paragraph 21, page 380; paragraph 24, page 381; paragraph 25 as amended by Pamph. L. 1921, p. 162. This is known as the Municipalities act. The phraseology in Pamph. L. 1921, p. 162, is substantially that of Pamph. L. 1895, p. 95, which was repealed by Pamph. L. 1917, p. 699.

There are no reasons for setting aside the assessments printed in the record book furnished the court. The prosecutors, however, argue in the brief and state that there are 'but two questions involved in the case; first, may properties which have no access to the sewer be subjected to an assessment under Pamph. L. 1917, p. 378, the Municipalities act? Second, should the property owners named in the rule to show cause be made parties under the Supreme Court Rule No. 171?

We think the wait of certiorari and the rule to show cause should be dismissed and the assessments confirmed on the ground of laches. Under Pamph. L. 1921, p. 515, ¶ 56, no certiorari shall be allowed after thirty days shall have elapsed from the date of the confirmation of such assessment. By the Certiorari act (Pamph. L. 1907, p. 109; 1 Comp. Stat., p. 407, ¶ 15), no certiorari shall be allowed to review any assessment for benefits for the construction of sewers, unless application shall be made for á writ within sixty days after such assessment shall have been confirmed by a court of competent jurisdiction. It is argued that these statutory limitations as to time do not appty, citing cases referred to by Justice Dixon in the case of United New Jersey Railroad Co. v. Gummere, 69 N. J. L. 111. That class of cases do not apply to the assessments under review. We fail to see the force of the prosecutor’s argument, that the statute under which the assessments were made is unconstitutional. Promptness to act in this class of cases is not only illustrated, but enjoined by many cases in our reports. The statutes above cited, with many others, contain provisions limiting the time in which reviews may be obtained. In Dwell v. Mayor, &c., of Woodbury, 74 Id. 206, the report of the commissioners was confirmed January 19th, 1906, and the writ of certiorari w!as allowed May 23d, 1906.

The-writ of ceHiorao-i and the rule to show cause are dismissed. The assessments are confirmed, with costs.


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    JOSEPH J. HARRIS, PLAINTIFF, v. ELIZABETH STREET, DEFENDANT.
    Submitted February term, 1923
    Decided June 7, 1923.
    Agency — Was the Real Estate Agent the Agent of the Buyer or Seller.
    On rule to show cause.
    Before Justices Kalisch, Black and Katzenbach.
    For the plaintiff, George G. Tennant.

    For the defendant, Collins & Corbin, and David A. Newton.

   Per Curiam.

This case comes before the court on defendant’s rule to show cause why a verdict directed by the court in favor of the plaintiff -in the sum of $2,065, the amount of deposit with interest made- by the plaintiff 'on an agreement to purchase premises No. 2957 Boulevard, Jersey City, N. J., should not be set aside.

The defendant writes down nine reasons for a new trial, which are argued under three heads in the brief. The meritorious question involved in the controversy is, Whose agent was Goerge A. Poye, the real estate broker? Was he the agent of the buyer or the seller? Exhibit P-k is a letter dated January 7th, 1920, addressed to George A. Poye, signed by the defendant, Elizabeth Street, the owner of the premises. By this letter she authorized him to sell the property and agreed to pay him a commission of $1,250 out of the deposit money to be paid. The minds of the parties to the contract for the sale of the real estate mentioned not having met, the seller (Elizabeth Street) was bound to refund the amount she received as a deposit, as the law implies a contract on. her part to do so which she has failed to perform. The rnling of the trial court in directing a verdict in favor of the plaintiff, the acts not being controverted, was not error; nor was it error to exclude the evidence alleged to be illegal. The reasons alleged for a new trial are without legal merit. They do not call for any extended discussion.

The rule to show cause is discharged, with costs.


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    JOSEPH J. HARRIS, PLAINTIFF, v. ELIZABETH STREET, DEFENDANT.
    Decided June 26, 1923.
    Opinion of Court — Removed from Records for Correction of Statements, on Petition of Person Feeling Aggrieved.
    On defendant’s rule to -show cause. On petition for rehearing, &c.
    Before Justices Kalisch, Black and Katzenbach.
    For the petitioner, Collins & Corbin.

   Per Curiam.

The above case was submitted on briefs at the Pebruary term, 1923, of the Supreme Court and decided on June 7th, 1923. In the opinion filed the following statement was made: .“The seller having failed to perform her contract, she is bound to refund the amount she received as a deposit.” The defendant in the present action was the seller referred to in the above sentence and calls by petition the- court’s attention to the fact that the Court of Chancery in a suit filed by the petitioner for specific performance (reported in 93 N. J. Eq. 83, and affirmed by the Court of Errors and Appeals in Id. 503) held that the contract was not enforceable because the minds of the parties had failed to meet. The petitioner feels aggrieved that there should appear in an opinion of this court a statement to the effect that she had failed to perform her contract for the sale of her real estate. The petitioner asks that either a rehearing be granted her or the mistake to which attention has been called be corrected. We think the petitioner is entitled to the latter request, so the opinion will be removed from the records of the court and another opinion substituted which will in this respect read: “The minds of the parties to the contract for the sale of the real estate mentioned not having met the seller [Elizabeth Street] was bound to refund the amount she received as a deposit, as the law implied a contract on her part to do so, which she has failed to perform.”


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    JACOB BERMAN, PLAINTIFF, v. BENJAMIN SILVERMAN, DEFENDANT.
    Argued June 7, 1923
    Decided June 22, 1923.
    Opening of Judgment — Filing Answer Permitted — Merit of Case Considered.
    On rule to show cause why judgment should not be opened and the defendant permitted to file an answer.
    Before Justices Kalisch and Katzenbach.
    For the application, Thompson & Hanstein.

      Contra, John F. K. Ries.

   Per Curiam.

This matter comes before us on a rule to show cause why the defendant should not be permitted to have a judgment entered by default against bim opene'd and file an answer. The evidence taken under the rule discloss that a summons and complaint were served upon the defendant. The suit was brought to recover the amount due upon an alleged judgment obtained by the plaintiff against the defendant in the Common 'Pleas Court, No. 2, for the county of Philadelphia, in the State of Pennsylvania. The judgment roll annexed to the complaint shows that the Pennsylvania judgment was based upon a promissory note for the sum of $900, which was given by the defendant to the plaintiff. The note was upon a printed form which contained a warrant of attorney to confess judgment. This warrant, however, was left blank, although signed. After judgment was entered, an application was made to have the judgment stricken from the records on the ground that there was no authority upon the part of the plaintiff to fill out the blank power of attorney to confess judgment. From an inspection of the judgment roll it appears that the court considered this contention well founded and made the rule to show cause why the judgment should not be stricken from the records absolute. From this» state of the record it would seem as if the defendant had a defence to the cause of action as set forth in the complaint. It also appears from the testimony that the defendant employed counsel who filed an affidavit of merits and that subsequently Messrs. Thompson and Hanstein were employed to file an answer and conduct the defence. They drafted an answer and served a copy thereof upon the attorney for the plaintiff, who filed a reply thereto. The case was noticed for trial and when it was about to be tried at the circuit it was discovered that the answer had not been filed through either inadvertence or neglect. The defendant’s counsel was ready to go on with the trial of the case; but the plaintiff’s counsel refused to do so. A judgment was then entered by default and an execution issued. The evidence taken also discloses that the defendant and his wife executed a deed to the wife of the plaintiff which the defendant contends was in satisfaction of the note. While this is disputed there is sufficient in the testimony to incline us to the view that there may be merit in this contention of the defendant.

The defendant argued that he would lose a term of court if permission was given by this court to file an answer. We think that the loss of the term is the fault of the plaintiff’s counsel, as the testimony discloses, as we have said, that he was given the option of a trial at the May term of the Atlantic Circuit, but declined to avail himself thereof. He had acted upon the belief, in filing a reply to the answer, that the answer had been filed. He therefore could not claim surprise by the failure to file it. Section 112 of the Practice act of 1903 provides as follows: “If in any action judgment shall pass against either party by reason of the failure of the attorney of such party to file any proper pleading, the court or a judge shall on application within one year after the entry of such judgment open said judgment and permit a proper pleading to be filed upon terms if in the opinion of the court or judge injury or wrong has resulted or may result from such failure.”

We are of the opinion that the defendant should be permitted to file an answer. The judgment and the execution issued thereon may remain as a hen for the security of the plaintiff until the final disposition of the case, upon the condition that no proceedings be taken under the execution for the sale of the defendant’s property until final disposition of the case.

No costs will be allowed to the defendant on this application.


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    No. 408.
    DOMENICO MAURIELLO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. GUISEPPI SARTEMINO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. LORENZO ROTUNDO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. FRANCISCO CIOISCO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. SEBASTIANO EPOSITO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. SERAPINO EANNI, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. GRAZIA DERVICO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. MICHAEL MESITI, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS.
    No. 409.
    No. 410.
    No. 411.
    No. 412.
    No. 413.
    No. 414.
    No. 415.
    Submitted June 5, 1923
    Decided June 18, 1923.
    Costs — Application of Appellants — Under Circumstances, Application Denied.
    Before Justices Kalisch and Katzenbach.

      For the plaintiffs, Charles A. Rathbun.

    For the defendants, King & Vogt and James H. Bolitho.

   Per Curiam.

The appellants in the above eight suits moved for an order to allow them costs. The respondents purchased grapes from the appellants and paid for them. The appellants made no delivery of the grapes, claiming that the car received, which would have permitted them to make delivery, was not of the quality ordered. The respondents sued for money had and received and recovered judgments in the court below. These judgments on appeal were reversed, this court holding that the contracts were made on Sunday, and, therefore, illegal. 1 N. J. Misc. R. 111. The respondents can never recover the money which they paid, as the law leaves the parties to an illegal contract in the situation in which they are. This motion was argued by both counsel on the assumption that the allowance of costs in the present situation is discretionary. We are of the opinion that no costs should be allowed. The carload of grapes refused by the appellants was sold by the railroad company for freight charges. The surplus is about $700. This sum the appellants can obtain from the railroad company. The respondents cannot recover anything from the appellants. Under these circumstances, we do not think the respondents should be mulcted with costs.

The application made' in each of the foregoing cases for costs is denied.


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    ABRAHAM KERZNER, PLAINTIFF-RESPONDENT, v. JACOB CHANIN, DEFENDANT-APPELLANT.
    Submitted June 5, 1923
    Decided June 18, 1923.
    Costs — Creature of Statute — Reversal—The Kind of Judgment in the Appellate Court Controls.
    On motion for costs.
    Before Justices Kalisch and Kalzenbach.
    For the motion, Atwood C. Wolf.

      Contra, Thomas Herbert Brown.

   Per Curiam.

This is a motion for the allowance of costs. The above suit was instituted in the Hudson County Circuit Court. The plaintiff in that court recovered a judgment against the defendant. The defendant appealed to this court, and at the November term, 1922, an opinion was rendered reversing the judgment of the Hudson County Circuit Court and remanding the cause to that court for a new trial. The opinion of the Supreme Court said nothing regarding the costs.

'The second trial of the case resulted in a mistrial due to the fact that the plaintiff attempted to prove certain facts not alleged in the original complaint. This proof was objected to and a mistrial resulted. The plaintiff thereupon filed an amended complaint (the fourth amended complaint) setting up what the defendant contends is a new^ cause of action. The defendant in this court now seeks on this ground to have the costs upon the reversal of the judgment at the former trial allowed. Costs are a creature of statutes and are not recoverable unless by force of a statute. Whether costs follow on a reversal on error depends on the ldnd of judgment appellate court gives. If the whole merits of the controversy are finally determined by the decision of the appellate court, that court will finally decide the controversy by giving such a judgment in favor of the appellant as should have been given in the court below. If, however, the judgment is not reversed upon the whole merits of the case, but on some collateral or incidental point not involving the substantial grounds of the. litigation, or covering the whole case, the appellate court in reversing the judgment below will simply direct a venire de novo in order that the case may be put on a retrial upon the merits. In such a case costs abide the final finding of the case. Lehigh Valley Railroad Co. v. McFarland, 44 N. J. L. 674.

In the present case the record was remanded by this court to the Hudson County Circuit Court for retrial. The appellant was therefore not entitled to costs in this court. In fact, the complaint of the defendant and the ground for this motion is due entirely to what has occurred since the case was sent back to the Hudson County Circuit Court for trial. We have no record before us to determine whether the complaint as now amended sets up an entirely different cause of action than the one originally set up. If we determine that it did this court would have no power to grant this motion, as the case is one in the Hudson County Circuit Court, and any grievance which the defendant feels he may have redress must be asked for and considered by that court. We see no alternative but to deny, under these circumstances, the motion for the allowance of costs in this court.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. FRANK TANZARELLO, PLAINTIFF IN ERROR.
    Submitted March 22, 1923
    Decided June 21, 1923.
    Alibi — Instructions of Court — The Law of Alibi — What Constitutes.
    On writ of error to the Passaic County Quarter Sessions Court.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the plaintiff in error, Weinberger & Weinberger.

    For the state, Jacob Willard De Yoe, prosecutor of the pleas.
   Per Curiam.

.This writ of error brings up for review the judgment entered upon the conviction of the plaintiff in error upon an indictment for statutory arson.

At the trial the plaintiff in error took, among others, exceptions to the refusal of the court to charge certain requests to charge, and took also a general exception to the charge.

The main insistence here is that the court wrongfully refused to instruct the jury on the law of alibi, notwithstanding he was expressly requested so to do and notwithstanding alibi was the defence set up by defendant, and notwithstanding there was evidence tending to support such alibi.

Request No. 12 reads: “If a reasonable doubt of guilt is raised even by inconclusive evidence of the alibi, the defendant is entitled to the benefit thereof and should be acquitted.”

That request was denied, and we think there was evidence tending to establish an alibi. It is true that it was inconclusive, but in these circumstances, when the trial court was requested to charge the law of alibi, he should have done so.

Where (as here) a request to charge calls for the application of a correct legal principié is applicable to the testimony and clearly material to defendant’s case, he is entitled to have it distinctly charged in such way as not to leave room for misapprehension or mistake by the jury. State v. De Geralmo, 83 N. J. L. 135.

The indictment in that case was for rape; defendant presented testimony tending to prove an alibi. He requested the court to charge “that if reasonable doubt of guilt is raised, even by inconclusive evidence of the alibi, defendant is entitled to the .benefit of it.” (This was the very language of the twelfth request to charge in the case at bar.) By way of reply, the trial court said, “I will charge you that the evidence must satisfy you of the defendant’s guilt beyond a reasonable doubt.” The Supreme Court held that this was not a legal compliance with the request, the court not having dealt with the subject-matter of the request in any part of the charge.

That is precisely the situation here. The trial court charged generally that the state was bound to satisfy the jury of defendant’s guilt beyond a reasonable doubt, but did not advert to the law of alibi at all.

In Roe v. State, 45 N. J. L. 49 (cited in the above mentioned case), the court said:

“One of the most important duties of the court is to declare the law applicable to a case to the jury when requested so to do.”

The error was prejudicial to the defendant and hence requires a reversal.

Since there must be a new trial we remark that we find no other error in the record.

The judgment will-be reversed and a new trial awarded.


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    STATE v. WILLIAM H. BROWN.
    Argued June 18, 1923
    Decided June 20, 1923.
    Change of Venue — Foreign Jury — Grounds of Application.
    On indictment. On petition for foreign jury.
    Before Justices Kalisch and Katzenbach.
    For the petitioner, Merritt Lane.

    For the state, John Milton.

   Per Curiam.

This is an application to either (1) ordei a foreign jury for the trial of an indictment found by the Hudson county grand jury against William H. Brown for the carnal abuse of Dorothy Ebeling, or (2) allow a writ of certiorari to bring the indictment to this court, to the end that it may be sent to another county for trial.

The reasons advanced by the petitioner are, first, that the defendant has been the representative of owners of real estate in Jersey City, and has been active in collecting- rents, and where tenants have defaulted -in payment of rents, active in prosecuting eviction cases; that this line of employment has created an antagonism which makes it impossible to draw a jury for the trial of the indictment which will not be prejudiced against the defendant; second, that within the past two weeks the defendant has had rendered against him in a civil action verdicts in favor of Dorothy Ebeling for $5,000 and in favor of her father for $250; that the accounts of the trial of this action published in two newspapers circulating in the county of Hudson so distorted the evidence as to create a feeling of hostility toward the defendant, and third, that the jurors trying the civil action came in contact with the. panel from which the jury was to be drawn for the trial of the indictment which was fixed for June 19th.

The last ground influenced the court to suggest that the trial of the indictment be deferred. This suggestion was adopted by the state and the trial has been postponed.

There should be a strong reason presented to a court why either a foreign jury should be summoned for a trial or an indictment, or that the indictment should be sent to another county for trial. It is not a sufficient reason that the business of the defendant has made him unpopular in the community to grant either a foreign jury or to send the indictment to another county for trial.

We have read the newspapers’ accounts submitted in the affidavits and the testimony. • The case presented the kind of evidence that many readers of newspapers desire. We are of the opinion that the newspaper articles were sensational, but that there is no evidence that-the articles were written primarily to prejudice the defendant in the community. These articles will soon be forgotten by the readers, and, as the trial of this indictment will probably not take place until the fall term of court, we have concluded that it is inadvisable to allow either a foreign jury or a writ of certiorari to bring the indictment to this court for the purpose of sending it to another county for trial. It was stated upon the argument that '& jury could not be struck in Hudson county which would give to the defendant a fair trial, because of the reasons heretofore stated. We are of the opinion, however, that a jury struck from the citizens of Hudson county would try this case according to the evidence presented and not be influenced by any recollections of what may have been seen in the newspapers regarding the civil ■ action. We will order a jury be struck in this case in accordance with section 75 of the Criminal Procedure act. This, however, will be optional with the defendant. If he does not desire a struck jury the order will not b'e made. Otherwise, the application is denied.


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    THE STATE v. JUSTIN W. DEDGE.
    Argued June 18, 1923
    Decided June 20, 1923.
    Foreign Jury — Application of State — Not Strongly Opposed by Defendant.
    On petition for foreign jury.
    Before Justices Kalisch and Katzenbach.
    For the state, Wilfred H. Jayne, Jr., assistant attorney-general of New Jersey.

      Contra, Andrew Van Blarcom.

   Per Curiam.

This is an application for a foreign jury to try an indictment presented by the grand jury of the county of Morris against Justin W. Dedge for the libel of the honorable Thomas E. McCran, attorney-general of New Jersey.

On October 6th, 1921, Janet Lawrence, a young girl, was found in the borough of Madison, in the county of Morris, murdered. T'he crime was investigated by the then prosecutor of the pleas of Morris county. The borough of Madison employed the said Justin W. Dedge to investigate the crime in its behalf. The investigation of the prosecutor of the pleas led to the indictment of one Erank Jancarek. He was tried and acquitted. The attorney-general was associated with the prosecutor of the pleas in the trial. The investigation of Dedge pointed to one Erancis Kluxen as the perpetrator of the crime. Kluxen was indicted, tried and acquitted. The seriousness of the crime, the failure to find and convict the one who had committed it, the separate investigations, the two abortive trials, and the general discussion among the public as the result of these events led to an acrimonious discussion throughout the county of the action of some of the officials connected with the proceedings, including the action of the attorney-general. The controversy was subsequently injected into the political campaign of 1922. The affidavits show that throughout the county citizens have formed opinions upon the activities, or alleged lack of activity, of those engaged in the investigation of the crime and the trial of the indictments. It is urged that citizens cannot set aside the opinions already formed if called for jury duty in the trial of the Dedge indictments. This situation, the assistant attorney-general contends, makes it necessary to have a foreign jury to insure a fair trial.

We are inclined to think that in a community of such unusual intelligence as Morris county that it should not be difficult to secure an impartial jury. On the other hand, this application is not strongly opposed by the counsel for Dedge. He seems to believe also in the existence of rival camps of controversy. Under these circumstances, as it is the purpose of the law to secure to every one a fair trial, we have concluded to grant the application for a foreign jury to try the indictment. The order may be drafted and presented so as to provide for the drawing of the jury in the county of Essex, as this county is best located for this purpose, and we find nothing in the facts presented which tends to show that the citizens of Essex county have had more than a passing interest in the discussion which has so permeated Morris county.