text:
    MUSICAL COURIER COMPANY, PLAINTIFF, v. PIANO MOTORS CORPORATION, DEFENDANT.
    Decided September 5, 1923.
    Foreign Corporations — Security for Costs — Statutory Provision that Demand Should be Made Any Time Before Notice of Trial Instead of Before Issue Joined Provided in Practice Act — Special Circumstances Must be Shown to Justify Order.
    On demand for security for costs.
    For the motion, Elmer G. Van Name and Frank W. Davis.

    Contra, Wilbert V. Pike.

   The opinion of the court was delivered by

Katzenbach, J.

The Musical Courier Company instituted in this court an action at law against the Piano Motors Corporation. The complaint discloses that the Musical Courier Company is a foreign corporation. The defendant filed an answer. On August 18th, 1922, the attorney for the plaintiff forwarded a notice of trial to the attorney for the defendant, which was received, but of which service was not acknowledged. On August 22d, the attorney for the defendant wrote a letter to the attorney for the plaintiff which stated that he did not wish to acknowledge service as it was his desire to have the plaintiff enter security for costs. On September 6th, 1922, a formal demand for security for costs was served by the attorney of the defendant upon the attorney of the plaintiff. This demand has not been complied with, and the defendant’s- attorney now moves that the case be stricken from the list for failure to comply with this demand. The attorney for the plaintiff relies upon section 204 of the Practice act, which reads: “If the plaintiff resides out of this state he shall, if required, at any time before notice of trial, give bond to the defendant * * * with condition to prosecute his action with effect and to pay costs if he discontinue, be nonsuited or a judgment pass against him * * * contending that a defendant has no standing to demand security for costs after notice of trial has been given and as notice of trial was given in this case, as previously held by this court, that the defendant has no standing to make the present motion.” Section 204 was prior to the enactment of the Practice act of 1903 embodied in section 232 of the Eevision of 1874. Section 232 read: “If the plaintiff reside out of this state he shall, if required before issue joined, give bond to the defendant,” &c.

It will 'therefore be seen that the change was made in the act of 1903, providing that the demand should be made at any time before notice of trial, instead of before issue joined as in the Eevision of 1874. It has, however, been held by the late Mr. Justice Read, in the case of Rommel v. Kirk, 4 N. J. L. J. 216, that the statute authorizing demand for security of costs did not abrogate the common law rule which permits in certain cases an application to the court for a rule for security to be made in certain cases even after issue joined. The same decision was given by the late Mr. Justice Van Syckel in the case of Code v. Williams, 5 Id. 218. The force of the reasoning in these two cases applies equally to the 1903 revision of the Practice act. I am therefore of the opinion' that security for costs can be demanded after notice of trial has been given. On the other hand, it seems to me that there should be some special circumstances alleged and shown which would justify an order that security for costs be filed after notice of trial had been given, as it is the intention of section 204 of the Practice act of 1903 that the defendant entitled to. security for costs shall act in this matter before notice of trial has been given. In the present application there were no special circumstances alleged and shown why security for costs should be given after notice of trial had been served. The motion to strike the case from the list and to file security for costs, for these reasons, is denied.


source: Caselaw Access Project

author: Katzenbach, J.

license: Public Domain

text:
    HAMLIN BANK AND TRUST COMPANY, PLAINTIFF, v. W. H. DOLLAR MANUFACTURING COMPANY, DEFENDANT.
    [Decided September 18th, 1923.]
    Negotiable Paper — Counter-Claim of Maker Against Endorser Cannot Be Set Off Against Bona Fide Holder for Valuable Consideration.
    On motion to strike out a counter-claim filed by the defendant.
    For the motion, French & Richards (Thomas R. Clevenger).
    Contra, William E. Blackman.

   Katzenbach, J.

The above suit is founded upon a promissory note made by the defendant, W. H. Dollar Manufacturing Companjr, to the order of the Safety Sled Company, and endorsed by the payee to the plaintiff. The defendant has filed an answer setting up that the plaintiff is not a holder of the note sued on in due course and did not take the same in good faith and for value, and has also, by way of counter-claim, set up that it holds the note of the Safety Sled Company, drawn to its order, which is a proper set off to the note upon which the present action is brought. The plaintiff moves to strike out this counter-claim on the ground that in an action by an endorsee against a maker of a promissory note the fact that the endorser was at the time of the making 'of the endorsement indebted to the plaintiff, constitutes no defense. In the case of Cumberland Bank v. Hann, 18 N. J. L. 222, this court held that in an action npon a promissory note, endorsed to the plaintiff after maturity, bona fide and for a valuable consideration, it is no defense for the defendant, and therefore not competent for him to prove, the fact that the endorser at the time of making the endorsement was indebted to the defendant. This case was decided at the May term, 1841, of the Supreme Court. In 1878 the Court of Errors and Appeals, in the case of Price v. Keen, 40 Id. 332, held that the Cumberland Bank case had been followed for nearly forty years; that it was satisfactory to that éourfc; and affirmed a judgment of the Supreme Court on the authority of this case.

It is unnecessary to cite other eases in this state to the same effect. They are uniform in maintaining the principle laid down in the Cumberland Bank case. The counter-claim will be struck out. An- order to this effect may be presented to me.


author: Per Curiam.

text:
    WILLIAM W. EVANS, RELATOR, v. JOHN McCUTCHEON, COUNTY CLERK OF PASSAIC COUNTY, RESPONDENT.
    [Decided September 14th, 1923.]
    Election Laws — Bracketing of Candidates — Designation After Candidates’ Names.
    On rule to show cause why mandamus should not issue.
    Before Justices Trek chard, Parker and Katzenbach.
    For the relator, William W. Evans and William I. Lewis.

    For the respondent, Rosenkrans & Rosenkrans and William B. Harley.

   Per Curiam.

We think, in view of the statute (paragraphs 330 and 331, election laws, secretary of state edition), that the relator and ■his four colleagues in the petition filed August 31st, 1923, at 2:1\5 p. M., cannot be bracketed and cannot have the common designation “Regular Republican,” as pra3red by the relator. This cannot be done because, as the county clerk properly decided, that designation had alread3’ been taken by five persons who were candidates for election to the five offices in question.

The rule'will be discharged.

The same result is reached in Noonburg v. McCutcheon and also in Meier et al. v. McCutcheon.


author: Bentley, V. C.

text:
    Antonio Giuditta et al., complainants, v. Carmelo Bonacci et al., defendants.
    [Decided July 25th, 1923.]
    Conveyances — Setting Aside — Rules Governing — Rights of Ignorant and Uninformed Persons.
    On bills, &c.'

      Messrs. Leavitt & Ulbrich, for the complainants.

      Mr. Frank J. Burns, for the defendants.
   Bentley, V. C.

On January 31st, 1922, Angelo Giuditta executed a deed conveying a piece of land with a two-family dwelling-house thereon in the town of Westfield, to his daughter Carmelo Bonacci, one of the defendants. On the following day he died. At that time he was a very old man, probably seventy-nine years of age, and suffering from diseases which caused his death. The premises mentioned were the last of three pieces of property he had acquired and all that he possessed in the world, except certain rights under a prior deed that will be mentioned hereafter. He was an illiterate man of Italian birth, unable to speak the English language.

At the time of his death he left surviving two sons and three daughters as his heirs-at-law, and his wdfe had predeceased him. After the death of his wife he had resided with his son Antonio, one of the complainants, until within about two weeks of his death, occupying, however, separate rooms from Antonio and his family. There was a sharp dispute as to the terms of friendship upon which he lived with Antonio; but I am convinced that their relations were reasonably friendly.

About two weeks before he died Angelo went to the home of his daughter, the defendants Carmelo and her husband, in another town, as he had been accustomed to do; but this time he remained with them continuously and died in their home. On the day of his death Mr.' Sauer, a solicitor of this court, with whom the grantor had had no previous business relations, was called upon by Carmelo’s husband and drew the deed in question and sent it by a young man in his office to the home of the defendants for execution. On the way this clerk, in obedience to his instructions, secured a notary public, who accompanied him and the grantor’s son-in-law to the latter’s home, where the notary took the acknowledgment, using a daughter of Carmelo as interpreter. The testimony of these witnesses, all of whom were examined on the final hearing, indicates that there was nothing outside of the usual routine in the execution of an ordinary conveyance. The contents of the deed were explained to the grantor; he executed the same, which was absolute on its face and irrevokable, and the notary took the acknowledgment.

There was a great mass of testimony about the actions of the parties following the death of the grantor, and was so contradictory and so bitter that it is impossible to predicate any belief upon it and is of no importance because it was introduced by the parties under theories that are now abandoned.

Thus, we have the situation of a man within twenty-four hours of the grave, ignorant, diseased, moribund and helpless, voluntarily stripping himself of a very large percentage of his property, if not — in his circumstances — all the property upon which he could rely, and all of this was done in the bosom of a family upon whom he was dependent for the care that he required and without any advice as to the consequences of his act. ’ When it is said that this was perhaps the only property upon which he could rely for his support-it is because he had reserved to himself, in another conveyance made to another son, the right to use and occupy two rooms of the property conveyed during his life, and an annuity of $360 per year. It requires no labor to show that such a covenant would be of. small value to a man in his unfortunate position and advanced stage of life.

Having already indicated my impression that this conveyance could not be sustained because of the lack of independent advice, counsel for the defendants has striven with great ingenuity to distinguish this case from those I am present about to cite. His brief appears to have been based upon the theories — first, that the rule of independent advice only applies where the grantor has stripped himself of all his property, and secondly, that the execution of the deed was in consideration of the defendants assuming the burden of the incumbrance of a mortgage in the sum of $2,500. With regard to the latter claim, there might be great merit if there had been appropriately expressed the consideration of supporting the grantor for the balance of his life; but it seems to me that to say that the defendants, or either of them, agreed to do something that they would have had to do anyway to obtain the fruits of the conveyance need only be expressed to disclose the answer.

Nor do I understand that it is necessary that the grantor shall have parted with all his property to render a voluntary deed of gift invalid if it otherwise offends against the rule laid down in our cases. The so-called rule of independent advice has become so peculiarly fixed in our law that no assistance is to be obtained from an examination of the law in other states. The subject is sufficiently delineated by our decisions without the necessity of recourse to those of our sister states. In Haydock v. Haydock, Vice-Chancellor Van Fleet set aside two gifts made by the husband to his wife shortly before her death, upon the ground of undue influence. When this case was reviewed (34 N. J. Eq. 570) the court of errors and appeals (at p. 574) said:

“I take the rule to be settled that where a person enfeebled in mind by disease or old age is so placed as to be likely to be subjcted to the influence of another, and makes a voluntary disposition of property in favor of that person, the courts require proof of the fact that the donor understood the nature of the act, and that it was not done through the influence of the donee.” Huguenin v. Baseley, 2 L. C. (4th Am. ed.), notes 1183, 1185; American, notes 1192, 1194.

It is true that in this ease the opinion of the appellate court also contemplated other rules, and indicated that there was a strong belief of mental incapacity; but that the meaning of the case is, as I have indicated, sufficiently shown by it, subsequently being cited to that effect in later opinions of the court of errors and appeals, such as Slack v. Rees, supra.

In Hall v. Otterson, 52 N. J. Eq. 522, Vice-Chancellor Green examined innumerable cases and thereupon lays down the following rule (at p. 528):

“In all transactions between persons occupying relations, whether legal, natural or conventional in their origin, in which confidence is naturally inspired, is presumed, or in fact reasonably exists, the burden of proof is thrown upon the person in whom the confidence is reposed and who has acquired an advantage, to show affirmatively, not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood,” citing many authorities. The deraree was affirmed in 53 N. J. Eq. 695, on the vice-chancellor’s opinion.

The leading case is the one just mentioned, namely, Slack v. Rees, 66 N. J. Eq. 447. In that case, in the court of chancery, Vice-Chancellor Reed had refused the complainant’s prayer. In the court of errors and appeals the decree was reversed. The present chief-justice, in delivering the opinion of the latter court (at p. 448), says:

“That the absence of such advice will invalidate a deed of gift which contains no power of revocation, where a relation of trust and confidence exists between the donor and donee, is not denied, and, indeed, it was so held by the vice-chancellor. He seems to have considered, however, that such relationship was not shown, unless it was made to appear that the donee occupied such a dominant position toward the donor as to raise the presumption that the latter was without power to assert his will in opposition to that of the donee. But this is not the situation. The rule has a much broader sweep. Its purpose is not so much to afford protection to the donor against the consequences of undue influence exercised over him by the donee as it is to afford him protection against the consequences of voluntary action on his part, induced by the existence of the relationship between them, the effect of which, upon his own interests, he may only partially understand or appreciate.”

Nowhere does the rule seem to be laid down in such form that it will only be applied where the grantor dispossesses of all his property. On the other hand, the true rule is expressed in Hall v. Otterson, supra, where it is said:

“It is to secure this thorough understanding that courts of equity require, in cases of this kind, except in those involving mere trifling gifts, that the donor shall have independent advice. Page 529.” (Italics are mine.)

In Post v. Hagan, 71 N. J. Eq. 234, the court of errors and appeals says (at pp. 244, 245):

“That the donor in the present case ought to have had independent advice must be taken to be entirely established. That she did not have it is also clearly shown. Judge Paxton, the lawyer who drew the deeds and took- the donor’s acknowledgments, was employed for that purpose by the donee and appeared for her in the court below. She called upon him with the old deeds, from which he was instructed to draw two new deeds, in all respects similar to the old ones, saving as to the names of grantor and grantee, and when he had the deeds ready he was to attend upon the donor and have them executed. His instructions were both limited and explicit. These instructions he carried out. He was in no sense the advisor of the donor and at no time acted in that capacity. His only remark to the donor, as I recall it, was that cited by the vice-chancellor, viz., that he reminded her that she had a son.”

This is so remarkably similar to the situation that existed in the case at bar, that with a change of name of the attorney and that he did not appear in court for the donee I might have used the same language, except that here no one ever reminded the old man of his other children. Without consideration of the testimony as to the desire of the grantor to have his own attorney instead of Mr. Sauer, I prefer to place my decision squarely upon the rule, as I understand it, to be gathered from the foregoing cases. The rule is too salutary to be relaxed. It is a small thing to expect of expectant beneficiaries under such circumstances that they shall at least see that he whose bounty they hope to enjoy shall be given the opportunity of untrammeled consultation with some per» son competent under all the circumstances to advise him of the consequences of his act.

I will advise a decree setting aside the conveyance.


text:
    McGrory Stores Corporation, complainant, v. Louis Goldberg et al., defendants.
    [Decided August 30th, 1923.]
    Lease — Extension of — Acceptance of Option by Mail — Time of Mailing.
    On bills, &e.

      Mr. Alexander Simpson, for the complainant.

      Mr. Harry Lane, for the defendants.
   Bentley, V. C.

On March 24th, 1913, the defendants’ grantor entered into a lease with the complainant of certain property, for a term of ten years, to commence on May 1st, 1913; and, of course, to expire on April 30th, 1923, as conceded by counsel. Among other things the lease provided as follows:

“And at the expiration of the term of this lease, the party of the second part hereto shall have the option of renewing said lease for a further term of ten (10) years, at the rental of one hundred and fifty-five dollars ($155) per month, for the first five years, and one hundred and sixty-five dollars ($185) per month for the next five years; provided, however, that a written notice is given the party of the first .part hereto at least six (6) months 'before the expiration of the within lease, of their intention so to renew.”

It is also agreed by counsel that the notice required by the language just quoted must have been made on or before October 31st, 1922,

The bill alleges that the complainant has its principal office in New York City, and that all transactions with the defendants and their predecessors in title were had by mail and not personally or directly. It is. also alleged that on October 31st, 1922, the complainant, in accordance with its custom, deposited a check for the next ensuing month’s rent in the mail, and enclosed therewith a letter declaring its intention to renew the lease. The envelope in which this cheek was enclosed was of the type having a transparent portion on the face thereof, so that the name and address upon any letter or other enclosure can be read through the same, thereby obviating the addressing of the envelope. This envelope was postmarked by the United States mail authorities in New York under date of October 31st, 1922, at the hour of seven-thirty in the evening. This was the only effort made by the complainant to exercise its option of renewal within the time provided by the lease.

The question presented is, whether or not such attempt was efficacious for that purpose. It seems to me clearly that it was not. Counsel for the complainant argues that as ordinary conditions of business and life change, the rules of law will be relaxed, modified, or altered as such occasions may require for the administration of justice; and, of course, that is so. But I am unable to follow him.when he progresses from that point to the contention that because all transactions with the defendants-had been by mail, that impliedly an acceptance by mail of the defendants’ offer to renew the lease was agreed upon by the parties. It seems to me that the true rule is expressed in 6 R. C. L. 613. I do not mean to say that the mailing of this acceptance would not have accomplished its purpose were it proven that the same had been received by the defendants within the time limited by the lease; but under all the circumstances of this case, as pointed out by the authority just cited, I do not think that the acceptance became complete upon depositing the letter in the mail box.

As a matter of policy, in a formal transaction such as the renewal of a lease so valuable as this one is said to be, there should be no unnecessary extension of the privilege of corresponding by mail. It requires little imagination to conceive of the innumerable schemes that might be devised in fraud of other parties if the rule is extended. The policy of the law is based upon either the necessity for corresponding by mail, such as the separation of the parties by large distances, or the implication arising from the use of that agency by one party whereupon permission is extended to the other to do likewise. That a letter mailed so late in the day as to be postmarked “7:30 p. m.” would not be delivered in the course of ordinary mail the same day and that the acceptance of an option must be made within the time limited by the contract, are so apparent and 'elementary as to require neither argument nor authority.

The facts in this case have already been examined in the first district court of Jersey City, and the facts as to the mailing of the acceptance mentioned above have already been judicially determined. I have not considered the question of jurisdiction, for the reason that it has not been raised. Counsel have presented and argued the matter on the merits, and because of circumstances requiring haste in the decision of the question, I have not taken the time to examine it.

In view of counsel’s expressed intention to review my decision in the event of a dissolution of the restraint herein, I will require' the defendants to include in their order a stay for a period sufficiently long to permit the complainant to apply to the court of errors and appeals for a stay pending its determination of the complainant’s appeal.


author: Foster, Vice-Ordinary.

text:
    William S. De Lisle, administrator, &c., appellant, v. Samuel A. Reeves, appellee.
    [Submitted June 8th, 1923.
    Decided June 21st, 1923.]
    Accounting — Opening Account to Admit Claim Duly Presented but not Included in Account — Improper Expenses not to be Allowed.

      Mr. Thomas P. Fay, for the appellant.

      Mr. Charles F. Dittmar and Mr. Ward Kremer, for the appellee.
   Foster, Vice-Ordinary.

This is an appeal from an order of the orphans court of Monmonth county opening the decree made therein approving appellant’s account as administrator of his wife’s estate, sustaining exceptions to the account, and directing appellant to restate or to further account for decedent’s estate.

Prom a stipulation entered into by counsel for the respective parties it appears that Mary E. De Lisle, the wife of the appellant, died intestate at Allaire, in Monmouth county, on April 20th, 1919, and that the appellant was duly appointed and has acted as administrator of her estate, which consisted of $1,152.69 on deposit with a trust company, and $1,000 received from a policy of insurance upon her life.

On November 14th, 1913, one Olive M. Thomson recovered judgment against Mrs. De Lisle for $729.50. In 1915 this judgment was assigned to Reeves, the appellee. On September 19th, 1919, Reeves filed with the administrator his claim against Mrs. De Lisle’s estate for the amount then due on this judgment.

On December 23d, 1919, appellant as administrator filed his account and his petition 'for its allowance, after duty advertising that the account would be presented on this date for settlement, and no objection being made thereto the account was settled and allowed by an order of the orphans court entered on January 15th, 1920. Some time in February, 1920, Reeves learned that the administrator had secured this settlement and allowance of his account, without having included therein the claim filed by Reeves on his judgment, and without retaining any funds of the estate for the payment of the same in whole or in part; thereupon Reeves through his attorney demanded the payment of his claim, and this led to' prolonged and unsuccessful negotiations between the attorneys of the parties. In August, 1930, Reeves presented his petition to the orphans court reciting this situation and asking that the decree approving the administrator’s accounts be opened and that his claim based on the judgment be paid as a preferred claim from decedent’s estate. A rule to show cause was issued, and on September 11th and also on September 18th, 1920, the orphans court made orders directing the opening of the decree approving the account, directing that the account be restated so that it would include Reeves’ claim.

To these proceedings the administrator filed an answer, in which the jurisdiction of the orphans court'to open the decree' approving his accounts was denied, and in which it was further claimed that Reeves’ only remedy for the omission of his claim from the account and for its non-payment was by an appeal to this court from the decree of the orphans court.

In January, 1921, the administrator having failed to obey the order of the orphans court to restate his account, Reeves presented his petition to that court to have the administrator adjudged in contempt and such proceedings were had thereon, that on January 11th, 1922, an order was made by the orphans court sustaining exceptions to certain items for which the administrator claimed allowance, and directing the administrator to restate his account within fifteen days and to include therein the claim filed with him by Mr. Reeves.Thereupon this appeal was taken.

Erom the record it appears that the estate amounts to $2,152.69, and in addition the administrator appears to have advanced from his own funds $544.20, making the total estate for which he accounts $2,696.89, and this entire amount he claims to have disbursed, and insists he has nothing left from decedent’s estate from which the Reeves claim can be paid-

in a memorandum filed by Judge Lawrence in the orphans court in connection with the order entered on January 11th, 1922, he sustains exceptions taken by Mr. Reeves to certain items of the administrator’s disbursements aggregating $1,823.81. These items include undertakers’ bills of $818.81; board of nurse, $100; drugs and rubber goods, $80; automobile hire, $50; monument, $600; requiem masses, $175. Most of these expenses were disallowed because of Mr. De Lisle not being insolvent was primarily liable for their payment, and particularly for the payment of his wife’s funeral expenses, and especially so where, as here, the decedent’s estate would be rendered insolvent by the allowance of these expenses. Authority for this determination is found, in Gould v. Moulahan, 53 N. J. Eq. 341, and in the recent decision of Mr. Justice Trenchard, speaking for the court of errors and appeals in Watt v. Atlantic Safe Deposit Co., 112 Atl. Rep. 186, and the disallowance of the cost of the monument is supported by the doctrine of Griggs v. Veghte, 47 N. J. Eq. 179.

The disallowance of these items is further justified on the ground that they were, as Judge Lawrence determined, unreasonable in amount, in view of the amount of the estate and of its possible insolvency, for, as stated in Griggs v. Veghte, supra, so far as the record discloses, the monument was not suitable to the station in life and circumstances of the deceased, and reasonable with reference to the means of her estate.

Counsel have stipulated that the whole matter in controversy, including all collateral, questions pertaining to this appeal and .to the accounting, and to the matters before the orphans court, are submitted to the jurisdiction of this court for decision.

The only questions presented.for determination are laches on the part of Reeves in not more diligently pressing for payment of his claim, and I find nothing in the record to show any want of diligence on his part in this respect; and the further question, of the power of the orphans court to open its decree and to direct appellant to restate his account.

This power of the orphans court is questioned because Reeves, in his petition to have the decree opened, does not allege that it was entered through fraud or mistake.

It is elementary that a court of record has sufficient control over its records to prevent them from working an injustice; it is also clear that it is the duty of the court to correct any mistake of law or fact, both of commission and omission, and which is necessary to protect and.enforce the rights of parties properly before it! Such was the situation before the orphans court when the order appealed from was made. Appellant’s account omitted, or suppressed, all reference to the claim of Reeves. In ignorance of this fact the orphans court in the ordinary course approved it. Reeves had no reason to bring his claim to the attention of the court; he had filed his claim with the administrator, and in the absence of notice that it was disallowed or disputed he was entitled to assume it would be allowed and paid on the final settlement of the estate.

When the administrator’s failure to include the Reeves claim in his account was brought to the attention of the court, the order in question was then properly made to cure the mistake in the account occasioned by the omission of Reeves’ claim, and also for the disallowance of the items for funeral expenses and other disbursements mentioned therein. I have no doubt of the power of the orphans court, under the circumstances mentioned, to make the order- appealed from, and I will advise that it be affirmed.


text:
    ROYAL HOLDING COMPANY, PROSECUTOR, v. CITY OF BEVERLY, RESPONDENT.
    Argued June 6, 1923
    Decided September 21, 1923.
    City Budget — Preparation of Under Act of 1917 — Writ Addressed to City — Notice Required — Laches.
    On certiorari, &c.

    Before Justices Trenchard, Parker and Bergen.
    For the prosecutor, Francis J. Smith.

    For the respondent, Palmer & Powell.

   Per Curiam.

This writ brings up for review the budget adopted by the common council of the city of Beverly for the year 1923.

The respondent makes certain preliminary objections, some of which we will dispose of at the outset.

There is no merit in the contention that the writ should have been directed to the city clerk, instead of to the city of Beverly as it was directed. Zeller v. Guttenberg, 81 N. J. L. 305.

There is no merit in the contention that the writ should be dismissed because the time for filing the reasons was extended without notice. No notice was required.

There is no merit in the contention that the prosecutor was in laches in waiting until expenditures had been made under the budget. This point might have force if the attack were upon the entire budget; but it has no effect when we consider that the attack is professedly upon seven items only, and to these our consideration and decision will be confined.

These seven items are:

“Louis J. Sieling ..... $1,068.25
Burton Kiple........ 525.85
Smith’s Express...... 393.18
L. G. Stratton....... 28.20
E. S. Becker......... 21.15
I. T. Craythorn Estate 4.55
County of Burlington................ 4,814.09”

The prosecutor’s first reason why they should be set aside is that the appropriations are not made with respect to the objects, departments or subdepartments for which they are to be expended.

We think the point well taken. The statute (Pamph. L. 1917, p. 553, § 11) declares that “there shall be set forth the appropriations, itemized according to the respective objects, departments or subdepartments for which they are to be expended,” &c. Manifestly, this was not done. There was an utter failure to assign such items to any object or department.

That reason being well taken, we need not look-at the depositions, and it therefore becomes immaterial whether or not they were properly taken. This result renders it unnecessary to give further consideration to the other objections leveled at the several items of appropriations 'mentioned. ■

The items in question will be set aside.


author: Parker, J.

text:
    RUTH B. MUMMA v. EMMA J. SCHMITTER AND MAX SCHMITTER.
    Decided October 4, 1923.
    Contempt — Examination in Supplementary Proceedings— Reasons of Counsel Irrelevant.
    On application for rule to show cause in matter of contempt.
    For the plaintiff, Edwin T. Murdoch.

    For the defendants, Weinberger & Weinberger.

   The opinion of the court was delivered by

Parker, J.

On the papers now before me, the defendants apear to be clearly guilty of contempt in refusing to appear for examination in supplementary proceedings pursuant to an order so to do.

On August 4th, 1923, there was presented to me a verified petition in the usual form, setting up the entry of a judgment for plaintiff in the above cause, the issue of execution thereon, and the return of such execution unsatisfied, and the usual averments of belief as to property and things in action, &c. Upon this petition the usual order was made that the defendants (severally by name) appear before a commissioner to make discovery at a specified time and place. The commissioner has made return that neither appeared, and there is the proper proof that each was served with the order. Disobedience of the order is a'contempt unless physical inability to comply with it be made to appear.

Counsel have not personally appeared on this motion, and counsel for defendants content themselves with sending a letter making two points: Eirst, that the execution had not in' fact been returned; and secondly, that a rule to show-cause why the verdict should not be set aside as to the female defendant is now pending and undetermined.

Neither point is relevant at this time. On the face of the petition the order was plainly justified. If the petition misstated facts, the obvious and only proper course was to attack it directly by motion to vacate the order, or some similar procedure; but for parties to disobey an order of the court because they consider that on. their own theory of the facts not .appearing in the petition, it should not have been made, is contrary to fundamental principles of legal procedure. So long as the order stood unchallenged and unaltered it was the duty of the parties affected to obey it. Whether the execution had not in fact been returned is beside the mark, and I have not inquired into the fact, as the petition stated it had been returned.

As to the rule to show cause, it stands on the same basis and is equally untenable. It may not be out of place to note, however, that the case of Erie Railway Co. v. Ackerson, 33 N. J. L. 33, invoked for defendant, is superseded by rule 116 of this court, permitting an immediate judgment on verdict, and providing that the court or a judge “may stay execution pending an application for a new trial.” The practice under this rule has been and is to permit execution to issue as of course pending a rule to show cause, unless specially retained by the court order, and there is no claim of any special restraint in this case.

It is intimated that defendants ignored the order under instruction from counsel, and there is before me a copy of a letter by defendants' counsel, stating that they would advise their clients to ignore such order. If they did, they are more culpable than the clients as more expert in the law, and being under a plain duty as officers of the court to see that its mandates, while legally in force, are respected by parties.

Let a rule to show cause in contempt issue as prayed.


author: Bergen, J.

text:
    WILLIAM STEPHEN DEAK, ADMINISTRATOR AD PROSEQUENDUM, v. PERTH AMBOY GAS LIGHT COMPANY.
    Decided October 10, 1923.
    Examination Before Trial — Plaintiff and Administrator Refused to Answer on Ground that he Acted in Representative Capacity — Must Answer Unless Questions Related to Transactions with or Statements by Intestate.
    On application for an order requiring plaintiff to answer certain questions propounded to him at his examination before trial.
    For the motion, Collins & Corbin.

      Contra, Thomas Brown.

   The opinion of the court was delivered by

Bergen, J.

.This action was brought by the plaintiff as administrator ad prosequendum of Stephen Deak, Anna Deak and Annastasia, deceased, who were killed by an accident alleged to have resulted from the negligence of the defendant. The defendant, desiring to examine the plaintiff before trial, served him with a subpoena as provided by the act (Pamph. L. 1914, p. 151), commanding him to appear before a Supreme Court examiner, which the plaintiff obeyed and was sworn, but, under the advice of’counsel, refused to answer most of the questions.

The statute invoked provides, “any party to an action may be examined as a witness at the instance of an adverse party, or any one of the several adverse parties after issue joined and before trial.” The first objection to the making of the order is that plaintiff is not a “party” when acting in a representative capacity. There is nothing in this objection; the plaintiff is a party to the action and is no less so because liis character is that of a representative of the estate of deceased persons.

The next objection is that one prosecuting an action in a representative capacity is disqualified as a witness unless he offers himself as such. A reading of the Evidence act (Comp. Stat., p. 2218, § 4) plainly qualifies oné as a witness who may sue or be sued in a representative capacity, but no party is to testify to any transaction with or statement by a party thus represented, unless the representative offers himself as a witness on his own behalf and testifies as to any such transaction or statement.

Therefore the defendant in this case could not compel the plaintiff to testify to a transaction with or statements by the deceased represented by him, 'if thereby it opened the door to defendant to prove any transaction with or statements by the intestate.

The method to compel an answer by plaintiff is the same as in the case of interrogatories, not answered by the plaintiff, which is to dismiss the proceedings, and is the only remedy provided by the statute of 1914, supra, and if the questions should have been answered they must be, or plaintiff’s action dismissed.

An examination of the questions which plaintiff refused to answer show that none, except the last, in any way related to any transaction with, or statements by, the intestate, and all, except the last one, must be answered or the case dismissed. The plaintiff will be allowed twenty days in which to present himself to the officer before whom the examination was taken and make answer to all of the questions propounded, except the last, and in default the defendant may apply to have the proceedings dismissed.

The defendant is entitled to costs of this motion.


author: Leaming, V. C.

text:
    Joseph H. Shinn, complainant, v. Edwin R. Smiley et al., defendants.
    [Decided July 21st, 1922.]
    Specific Performance — Contract for Lease and Option of Purchase by one not Actual Owner — Relation of Agency Considered — Right of Attorney in Fact.
    On final hearing on hill for specific performance of contract for sale of land. ' (

      Mr. Clifton C. Shinn, for the complainant.

      Mr. Ulysses G. Styron, for the defendants.
   Leaming, V. C.

There is no conflict of testimony in this case. The only doubt that can be suggested touching complainants right to a decree is whether the rules of evidence and the provisions of our statute of frauds are operative to exclude from consideration certain facts by complainant claimed to exist, the existence of which facts is essential to the relief sought.

Complainant, as vendee, seeks specific performance of a contract of sale of real estate. The written contract of sale is signed “Edwin B. Smiley, by TJ. G. Styron, attorney in fact.” The contract is a lease for a term with an option of purchase by the lessee (complainant herein) at the end of the term.

Edwin B. Smiley was not the owner of the property. Clarence E. Smiley, the son of Edwin R., was mortgagee in possession of the property at the time the contract with complainant was made and-his mortgage was then in process of foreclosure by his attorney, U. G. Styron. At that time Clarence was afflicted with nervous prostration and unable to pay any attention to business matters, and his father, Edwin B., apparently was attending to business affairs of Clarence, whether by express authority or otherwise does not appear. In those circumstances Edwin, the father, through Mr. Styron as his attorney in fact, assumed to execute the lease and option of purchase to complainant. At the time the contract was executed it seems to have been anticipated that at the foreclosure sale it would be necessary to buy in the property. The owners of the legal title of the property had practically abandoned it.

During the term of the lease rent was paid by complainant to Mr. Styron. Shortly before the end of the term complainant sought to purchase the'property pursuant to the terms of his option, but since the foreclosure proceedings had not been concluded at that time title could not then be made to complainant, and $500 was paid by complainant to Mr. Styron on account of the purchase price and a receipt was then taken by complainant for the payment. . That receipt stipulated among other things that a deed was to be delivered to complainant “at the termination of the present proceedings to foreclose the mortgage now held by E. B.. Smiley.” This receipt was signed: “U. G. Styron, Att’y for E. B. Smiley.”

It will be noted that this receipt refers to the foreclosure of a mortgage held by E. B. Smiley. As already stated the mortgage was held by Clarence E. Smiley, the sick son, and was being foreclosed by Mr. Styron as his attorney. It would thus seem that Mr. Styron at the time probably understood that he was accepting this money for and executing the receipt for the mortgagee; and it is not improbable that in signing the original contract Mr. Styron in like .manner may have undertaken to sign as attorney in fact of the mortgagee. Indeed in a former notice given by E. B. Smiley, the father, to complainant as tenant Mr. Smiley signed the notice: “Dr E. B. Smiley, Agent.” There would, seem to be little doubt that throughout the plan was that at the foreclosure sale title would be taken by or on behalf of Clarence, the mortgagee, and then conveyed to complainant for the price agreed upon.

At the foreclosure sale the property was bought rri by Mr. Stvron, the attorney, in the name of Clarence, the son, and the deed from the sheriff was thereafter made to Clarence. Clarence now refuses to convey to complainant pursuant to the agreement made by the father of Clarence. Complainant leased the property in good faith and at the end of his term elected to purchase the property pursuant to the option contained in the lease and made a payment on accoimt of the purchase price and was given until the termination of the foreclosure proceedings to pay the balance of the purchase price. If the agreements which have been made •can be found to be binding on Clarence there is no reason why Clarence should not now be compelled to convey to complainant.

The theory of the bill is that E. R. Smiley, the father, and Mr. Stryron, the attorney in the foreclosure suit, were the authorized agents of Clarence and that Clarence must now respond to the engagements made in his behalf.

The difficulties arise from the fact that throughout no agreement has been made in the name of Clarence, or suggesting the name of Clarence, as the person to be bound, nor has Clarence signed any agreement of any kind, nor has his name been even mentioned or suggested in any of the negotiations or transactions with complainant. Accordingly the relief here sought is against Clarence as an undisclosed principal. In this respect the situation is practically identical with that considered and determined in Schenck v. Spring Lake Beach Improvement Co., 47 N. J. Eq. 44. Without overruling and wholly disregarding the decision of this court in that case it is clearly impossible through the medium of parol evidence to make Clarence a party to the contract here sought to be enforced. See also Bowers v. Glucksman, 68 N. J. Lem 146; Clement v. Young-McShea Amusement Co., 70 N. J. Eq. 677, 681; the two latter, cases being decisions of our court of errors and appeals and giving express approval of Schenck v. Spring Lake Beach Co. As already, stated the original contract is in the name of Edwin R. Smiley, who thereby contracts as a principal and as the party to be bound in a sealed contract for the sale of land. The subsequent receipt for a part of the purchase price, which receipt extended the time for payment, is in the name of E. R. Smiley. As already suggested these documents may have been signed in that manner through a mistaken notion at the 'time on the part of Mr. Styron that the mortgage wds held by E. R. Smiley; but that fact is not established and cannot be made the basis Of decision' herein. Prior to the expiration of the lease a written notice was given complainant to vacate the premises at the expiration of his lease; that notice was signed “Dr. E. R. Smiley, Agent.” In that notice the name of Clarence is not mentioned as a principal or otherwise; nor can the use of the'word “agent” as there used be operative to change or modify a contract executed prior to that time or establish as a fact that E. R. Smiley was not nor that Clarence was the principal in the prior contract.

But if it be assumed that the evidence already referred to in connection with the circumstances of the case might justify a finding of fact that the original contract and the contract extending the time of performance were made by E. R. Smiley as agent of Clarence, and thus justify a bill against Clarence as principal, an insurmountable obstacle to recovery is yet to be found in the absence of adequate evidence to establish as a fact that E. R. Smiley was an authorized agent of Clarence for the sale of the land, or for the execution of a contract for its sale. The testimony of Clarence is to the effect that he was at that time too sick to pay any attention to business. Unless he authorized E. R. Smiley to execute a contract on his behalf for sale of the land which he did not own, no general authority to attend to his business during his sickness could, be properly said to authorize the execution of such a contract. But even general authority of the nature suggested has not been shown.

A letter written by Clarence to Mr. Styron, as bis attornejr, is urged as evidence of a ratification of the contract of sale. That letter is as follows:

“Pitman, N. X, 3/23/21.
My dear Mr. Styron:
I feel now that Mr. Shinn has had all and more consideration than is ordinarily accorded a person contemplating- the purchase of a property, and will thank you to mail me my deed and, of course, a memorandum of any charge due you, so that I can take advantage at once of a better proposition for sale of this property before my party seeks elsewhere by reason of the length of time I have been compelled to withhold ai definite answer by reason of the Shinn fiasco.
Now is our opportunity to sell and realize on what has developed into a bad investment, and I trust there will be no delay in promptly forwarding my deed, that is, by return mail. With kindest regards, I am,
Yours,
C. E. Smiley.
U. G. Styeon, Esq.,' Atlantic City, N. J.”

This letter clearly discloses that Clarence at the time the letter was written knew of complainant’s contemplated purchase of the land. How much more he may have known is not disclosed. It does disclose, however, that he no longer desired to entertain what-he refers to as the contemplated purchase of the property by complainant. But if the essential elements of ratification of the act of E. R. Smiley in making the contract with complainant as agent of Clarence are to be found in this letter, it is yet clear that the letter is not available for complainant’s use for that purpose.. The letter was merely a letter from a client to his attorney. Its contents were not directed or authorized to be communicated to complainant or to anyone else. It could neither amount to a contract with complainant nor to a sanction or ratification on behalf of complainant of any contract. It was written for the attorney’s use and for no other purpose. This is the view adopted by this court in Potter v. Hallister, 45 N. J. Eq. 508, 513, 514, and affirmed on appeal in 46 N. J. Eq. 609, and again adopted in Stengel v. Sargeant, 74 N. J. Eq. 20, 26. Nor does it seem that parol evidence is competent to perform the office of connecting that letter with the contract here sought to he enforced. Johnson & Miller v. Buck, 85 N. J. Law 338, 344; Nibert v. Baghurst, 47 N. J. Eq. 201, 208.

I am obliged to advise a decree dismissing the bill.


author: Ingersoll, V. C.

text:
    Joseph J. Claron, complainant, v. Ferdinand Thommessen, defendant.
    [Decided September 20th, 1922.]
    Title to Land — Bill to Quiet — Agreement to Sell by Complainant not Consummated by Defendant — Partial Payment by Defendant — Suit at Law to Recover and for Alleged Damages.
    On bill to quiet title.

      Messrs. Bourgeois & Coulomb, for the complainant.

      Mr, John C. Reed, for the defendant.
   Ingersoll, V. C.

Complainant filed a bill to quiet title to certain real estate in Atlantic City, New Jersey, alleging peaceable possession and alleging the title to be disputed by the defendant. The final hearing developed that the title is in the complainant; that on or about the 14th day of September, 1921, the defendant paid on account of the purchase of the premises the sum of one thousand dollars ($1,000) and received a receipt in the following words:

“Sept. 4, 1921. Eeceived of Fred Thommessen, one thousand ($1,000) dollars, to bind the bargain of the Albany Arms Hotel and 183 feet on Albany Avenue, by 105 feet in depth.
“Place is to be turned over complete with the exception of personal belongings, approximately $300 in value.
“Sales price twenty-seven thousand dollars ($27,000). $10,000 cash, mortgage of $17,000 for three years. Commission to Foss, $5,000. Agreement to be drawn in the South Jersey Title Co., Sept. 6, at 11 p. m., and all adjustments to be made at date of settlement.
“Possession to be given the 17th, or before.
J. J. Clabon.”

That no agreement was drawn at the time agreed upon and that the defendant failed to complete the contract, alleging that it had been agreed that he was to receive some personal property (consisting of vines, liquors, &c.) in addition to the real estate, and that the complainant refused the delivery of the same; that thereafter the said agreement was proven by a party who was present at its execution and the same was recorded in the clerk’s office of Atlantic county.

Prior to the filing of this bill the defendant brought suit in the supreme court against the defendant for the return of the said deposit and for damages for alleged misrepresentation.

The form of the bill removes it from the objection made in McClave et al. v. McGregor et al., 72 N. J. Eq. 218; but the facts found are almost identical with the wording of the bill in that cause and of the opinion therein.

Following the views expressed in that case and for the reasons therein stated, the bill must be dismissed. The counter-claim should also be dismissed or continued until the issue in .the supreme court is determined.


author: Church, V. C.

text:
    Bertha Hoffman et al., complainants, v. Frederick Rauchmiller et al., defendants.
    [Decided October 5th, 1923.]
    Mortgages, Foreclosure of — Question of Fact Relating to Payment Thereof — Apparent Forgery of Receipt Therefor.

      Messrs, Lehlbach, Johnson & Ormond (by Mr. Johnson), for the complainant.

      Mr. Merritt Lane, for the defendants.
   Church, V. C.

This case-was for the foreclosure of a mortgage between the parties and the sole question involved is one of fact. That is, did the defendant on or about October 1st, 1921, pay to the complainant the sum of $3,000 on account of the principal of the mortgage? It appears from the testimony that on or about that day the defendant went to the home of the complainants and made some payment On the next interest day he appeared and offered a smaller sum as interest on the remainder of the mortgage, which he claimed was $500, he saying that on October 1st, 1921, he had paid $3,000 on accouht of the principal The complainant denied that the defendant had paid $3,000 on account of principal, and therefore the suit.

The defendant produced in court a receipt signed by the complainant for $3,087.50. He produced a check for $87.50, which, admittedly, was the interest. He produced also a receipt signed by Hoffman, apparently, for $3,087.50. Mr. Hoffman says that he never received the $3,000. He says as to the receipt that it looks like his signature, he is not sure.

I questioned the defendant as to why if he had, as he testified, sufficient money to pay the whole thing in cash, he did not do so, and why he elected to pay the larger sum in cash and the smaller sum by check. His explanation is not satisfactory. The whole case, it seems to me, turns on the question as to whether or not the receipt, supposedly signed by William Hoffman, was really signed by him. The burden 'of proof of payment is upon the defendant. A receipt is only prima facie evidence of payment and the payment as evidenced by it may be rebutted.

I directed that handwriting experts should be produced before me to testify as to whether the signature of William Hoffman was or was not genuine. The handwriting experts produced for the complainants had evidently given the case the most careful consideration and, in their opinion, the signature was a forgery. The expert for the defendant, a very distinguished handwriting expert of unquestioned reputation, had evidently given very little consideration to the case, and his testimony dealt very largely in generalities and showed that he had not made a careful consideration of the signatures.

Another fact that impresses me is this: That there is no record that the $3,000 claimed to have been paid was ever deposited in any bank to the credit of the complainant I am impressed with the sincerity and truthfulness of the complainant and his wife and of the rather evasive manner of the defendant on the witness-stand.

I have come to the conclusion that the signature on the receipt is a forgery and that on October 1st, 1921, the defendant only paid to the complainant the sum of $87.50.

I find, therefore, that $3,500 is due on this mortgage, with proper interest.


text:
    LACLARE L. WELSH AND THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, PROSECUTORS, v. THE MAYOR AND BOARD OF ALDERMEN OF THE TOWN OF MORRISTOWN, DEFENDANTS.
    Decided October 15, 1923.
    Ordinance — Review of Entire Ordinance Where Prosecutor is , Effected by Only a Single Feature, denied.
    On application for writ of certiorari.

    Before Justices Trenchard, Parker and Bergen.
    For the prosecutors, King & Vogt.

   Per Curiam.

The prosecutors wish to bring up for review an entire ordinance of the town of Morristown, passed September 18th, 1923, being a supplement to a prior ordinance concerning hackmen and others. The general purport of the ordinance in question is regulation and location of hackstands and of the behavior and conduct of hackmen and taxicab drivers. A fine of not over $50 or imprisonment not more than five days is prescribed as a penalty for violation.

Our opinion in a recent case of the same name, based on a similar ordinance, is sufficient authority for refusing a general review of the present one, which in its main features seems well within the. police powers of the municipality. Welsh v. Morristown, 1 N. J. Adv. R. 972.

It is urged that the present ordinance has the effect o'f preventing Prosecutor Welsh from having his own runner on the station platform or station premises to solicit patronage' and summon “Welsh” cabs from the cabstand. But this single feature, if the point be well taken, does not require a review of the whole ordinance, and we think it will be sufficient to consider the question when there has been a proseeution and conviction based on the theory that the ordinance is violated by prosecutors’ agent summoning prosecutors’ cabs to take passengers. Neumann v. Hoboken, 82 N. J. L. 275, and cases cited (at p. 278).

For these reasons allocatur of a writ directed to the whole ordinance will be denied.


text:
    CATHERINE MAHER, ADMINISTRATRIX, ETC., PLAINTIFF-RESPONDENT, v. MAGNUS COMPANY, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted July 3, 1923
    Decided October 22, 1923.
    Negligence — Death of Child from Burning by Phosphorus with which He was Playing and which Belonged to Defendant— Responsibility of Defendant — Measure of Damages.'
    On appeal from the Hudson Circuit Court.
    Before Justices Trenchard, Parker and Bergen.
    For the appellant, Thomas J. Brogan.

    For the respondent, Alexander Simpson.

   Per Curiam.

Plaintiff’s intestate, a boy of thirteen, but apparently immature for his age, sustained fatal injuries from burning by a stick of phosphorus which he had put in his pocket, supposing it to be candy. The phosphorus spontaneously ignited, as it usually does, and inflicted fatal injuries. For this death the plaintiff instituted the present action, charging that the phosphorus came into t-he hands of the boy through negligence of the defendant or its agents, and the principal question argued before us on the briefs is that there was no evidence to justify the jury in drawing the inference that the defendant was responsible for the phosphorus being in the boy’s pocket. Other points will be noticed presently.

The boy in question with some friends, while on a highway in Jersey City, March 14th, 1922, it being then Good Friday and the defendant’s plant being closed from Thursday night over Sunday, came across a tub or vat made of iron or steel that was standing in the highway in front of the factory premises. According to the plaintiff’s proofs the boys saw under water in this vat some yellow sticks which looked like candy, and took them out of the water, plaintiff’s intestate putting one in his trousers’ pocket. After the water dried off the stick ignited and caused his death, as already stated. The evidence tending to connect the defendant corporation, through its servants with this occurrence was in substance that the phosphorus was in the tub protected by the water, ■that the tub was the defendant’s tub, and that it had been put out for the junk man to take away because it was imperfect and no longer adapted for its purpose. The evidence also showed or tended to show that the defendant, which was engaged in the business of metal casting, had habitually a considerable quantity of phosphorus on its premises, and at the time in question had it there, which phosphorus was used in this business of metal casting. There was evidence to show that the phosphorus was not intended to be kept in a tub of this kind but, on the other hand, that it always was kept in some receptacle containing water in order to avoid its ignition. At the same time, if the jury believed that the phosphorus was in the vat out in the street and under water, as the evidence tended to show, these facts and the undeniable fact that phosphorus is a very dangerous substance and that the defendant had it habitually on its premises, and kept it so protected, combined with the unlikelihood, amounting almost to a demonstration, that the phosphorus could have gotten into the vat from any other source than from the store kept by defendant on its own premises from which the vat had been carried and placed on the street, and the further fact that the phosphorus could not have been carried except ander water for any distance without igniting, all point, in our judgment, to the permissible inference that the phosphorus was part of that which the defendant kept for its manufacturing uses, and that it needs must have been placed in the vat by some agency connected with the defendant, perhaps for the convenience of its servants in operating, and was allowed to remain there when the vat was placed out in the street to be carried away. Other inferences are possible, of course, but in a civil case like this it is not necessary to exclude the possibility of other inferences in order to make a case for the jury. These considerations dispose of the motions directed to taking the case away from the jury.

The only other alleged error urged is that stated in the sixth ground of appeal, that “the verdict of the jury is illegal, in that the verdict rendered as to damages is an illegal verdict.” This is manifestly insufficient as a ground of appeal, but under it the defendant argues that the court erred in its charge respecting the rule of damages, and as that alleged error was excepted to and is assigned in the grounds of appeal, we take up the point on its merits.

The court charged on this point as follows:

“In actions of this kind, for the death of a minor, the parent is entitled to the earnings of that child until the child becomes twenty-one years old or is emancipated, that is until the child leaves home and cares for itself. This boy was not earning anything at the time of his death. He had not been able to do any work, he was too young; but the mother would be entitled to the sum, whatever it might be, that he would earn from the time he was able to earn until lie was twenty-one years of age; but from that you should deduct the amount of money it would cost the mother during that time to support and clothe and educate him, because you see the mother is entitled to his earnings but she is bound in return to support him, clothe him and educate him — such education as the mother might give him — until- he becomes twenty-one years of age.”

It is said that this charge was erroneous, in that the court should have directed the jury to subtract from the estimated earnings that would have enured to the benefit of the next of kin, not the cost of rearing the deceased from the time of the injury until he arrived at full age, but the entire cost of rearing him from birth; and appellant claims that this proposition is supported 'by the case of Graham v. Consolidated Traction Co., 64 N. J. L. 10. We are quite unable to read any such meaning into the language of the opinion in that case. On the contrary we have always understood the rule to be that the computation of pecuniary injury commences with the fatal accident, or perhaps the death, no matter which, for present purposes, and both earnings and cost of education are calculated from that point. The test question is, what was the pecuniary value of the life of the decedent to the party or parties injured? And in answering this it seems plain that the decedent should be taken as he was at the time of his death, as a concrete fact. As such a living being at that time he was at least worth to the next of kin what they could reasonably expect to receive from his earnings or contributions in the future less what it would cost them, if obligated to support and educate him, for such support and education until he should be of age.

As to the argument that the next of kin should lose all that had previously been expended upon the deceased for his support and education prior to his death, by subtracting it from the award, it might with much greater force be argued that as that’ money had already been expended, as it turned out, to no purpose, they should be entitled to add it to the award instead of being required to subtract it.

We find no error in the record and the judgment will accordingly be affirmed, with costs.


text:
    POTTS & KAUFMAN, INCORPORATED, AND DAVID J. KAUFMAN, PLAINTIFFS, v. JAMES BUTLER GROCERY COMPANY, A CORPORATION, DEFENDANT.
    Submitted July 3, 1923
    Decided October 22, 1923.
    Negligence — Motor Vehicle Collision — Conflicting Evidence-Refusal of Rule to Show Cause.
    On application for the rule to show cause.
    Before Justices Trenchard, Parker and Bergen.
    For the rule, Edwards & Smith.

    For the plaintiffs opposing, Thomas Brown.

   Per Curiam.

This being an application for a rule no reasons have as yet been assigned, but an examination of the brief for the defendants shows that only one ground was relied on, and that is that the verdict for the plaintiff was against the weight of evidence. The trial judge, a learned lawyer of long trial experience, refused a rule to show cause, and it is for that reason that the defendants are now before us. The case arose out of the head-on collision of two motor cars, and each party claimed that the driver of the other car had disregarded the traffic rule and was on the wrong side of the road at the time of the collision. This collision occurred at a place called Morgan, formerly known as Cheesequake, between South Amboy and Keyport, on the main highway where, as the traveler goes east from South Amboy, the road descends a steep grade, curving to the left toward the bottom of the grade, and taking up a northerly direction across the Central railroad.

The Butler ear, a large motor truck, was proceeding westward toward South Amboy. The plaintiffs’ car, a sedan or limousine, was going eastward and had descended the grade almost to the bottom, and had substantially rounded the curve so as to straighten out toward the Central railroad tracks. In this situation the motor truck westbound and the sedan eastbound crashed together head on, practically wrecking the sedan.

The plaintiffs’ witnesses testified in substance that the sedan was on its own side of the road and had swerved only slightly to the left in order to avoid one car that was parked on that side and another one which was just started, but that the road was a wide one, and that the sedan was well to the right of the center line, and that the defendant’s motor truck, instead of keeping to its own side of the road, swerved out from that side and caught the plaintiffs’ car somewhere in the neighborhood of the standing motor truck or of a small restaurant which was located on the map. The witnesses for the defendant testified that the motor truck stayed on its own side of the road and that the plaintiffs’ car swerved out across the center line and ran into the motor which was just stopping to avoid the accident. Plaintiffs’ witnesses, on the other hand, especially the driver, testified that he brought his car to a full stop before the collision occurred.

The case therefore presents the simple contradiction of witnesses on the basic facts. The defendant alleges that the testimony of the witnesses on its part greatly outweighs that for the plaintiffs. The jury did not think so, and evidently the trial judge did not think so, or he would have allowed - a rule. We have read the entire testimony with care and have no hesitation in saying that we are utterly unable to see any such preponderating value to the testimony of the witnesses for the defendant as to sustain the present application. It is proper to note that this application is made on notice and has been submitted on briefs, and briefs have been submitted by both sides, so that .while it is technically an application for a rule to show cause, the matter has been argued as fully as though a rule had been allowed. This being so, we feel at liberty to say that if a rule had been allowed and the case had been before us on that aspect and on the present briefs, we would undoubtedly have discharged the rule.

Incidentally it may be observed that much of the conflict of testimony on the point of where the collision occurred is probably due to the fact that the two cars became locked together and that there is evidence to show that the Butler truck was pulled away from the place of collision and backed down on its own side of the road, and that the plaintiffs’ car was also moved from its place; and that much of the testimony about the position of the cars relates to a time later than the collision and is based on the observation of witnesses who did not see the collision at all but arrived there later.

For the reasons above given the application for a rule will be denied.


text:
    No. 228.
    CORNELIUS J. O’NEILL ET AL., PROSECUTORS, v. CITY OF BAYONNE, DEFENDANT. WILLIAM E. CARROLL ET AL., PROSECUTORS, v. CITY OF BAYONNE, DEFENDANT. JAMES QUINN ET AL., PROSECUTORS, v. CITY OF BAYONNE, DEFENDANT.
    No. 229.
    No. 230.
    Argued June 7, 1923
    Decided October 22, 1923.
    Time — Standard Time Controls Organization of Municipal Commission — Ouster of Officers by New Commission — Rights of Police Under Act of 1917, &c.
    On certiorari.

    Before Justices Trenchard, Parker and Bergen.

      For the prosecutors, Fallon & Fallon.

    For the defendant, Eugene T. Sharkey.

   Per Curiam.

These are three writs of certiorari arising out of certain resolutions of the former board of co/nmissioners of the city of Bayonne and other resolutions of the succeeding board at or about the time of a change of administration in that city. Oir May 15th, 1933, an old board of commissioners gave place to a new one at noon, -according to the provision of the statute. Both boards seem to have assumed or acted on the assumption that the word “noon” meant noon of daylight saving time, whereas it is now contended for prosecutors, and we concur in that position, that noon was noon of standard time, as provided by another statute bearing on that subject. 4 Comp. Stat., p. 4879.

Just before noon of daylight saving time the, old board had a meeting and made a large number of appointments to the city departments, particularly the fire department and police force, and the new board, meeting immediately after the stroke of twelve, undertook to revoke all these appointments and to discharge, in particular, the prosecutor O’Neill from the office of chief of police, which he had held for two years previously.

The first case to be considered is that of prosecutor O’Neill himself. He had been apointed chief of police in 1931 and had held office without any dispute, so far as appears, until this action of the new board in 1933. He held under the act of 1917, and perhaps other legislation, by an indefinite tenure (Pamph. L. 1917, ch. 152), especially articles 16 and 17. The new board, after taking office, undertook to discharge him because a prior ordinance of 1907 required every appointee on the police force to be not less than twenty-four nor over thirty-five years old, and the prosecutor when appointed was over thirty-five years old, so they undertook to rescind the resolution of appointment passed in 1931. For the prosecutor the case of Maguer v. Yore, 75 N. J. L. 198, is relied on, and it seems to be precisely in point, as it relates to the same city, same office, and a similar statute. That case was in quo warranto, and the removed officer, as relator, was successful, on the precise ground that though he. may have been ineligible at the time of appointment, he was protected by the Tenure of Office act. The case of Magner v. Yore was properly a quo warranto because the relator had been actually ousted. The present case is properly a certiorari because the prosecutor seems to be still holding his office and is attempting to remove and set aside certain municipal action tending to obstruct his performance of the duties of that office, and is thus brought within the line of decisions, of which the latest is Murphy v. Freeholders of Hudson, 92 Id. 244. The case of Loper v. Millville, 53 Id. 362, is relied on for defendants, but we think that case is not in point; and assuming, for present purposes, that it is, the later case of Magner v. Yore we deem to be controlling. The result is that the resolution affecting prosecutor O’Neill will be set aside, with costs.

Next as to the Carroll group. The facts seem to be that on April 11th the old board, having about four days of official life remaining, undertook to appoint some sixty-five persons as officers and patrolmen and firemen in the police and fire departments. The last meeting of the old board was on May 15th, at eleven thirty-five a. m;.,' daylight saving time, as we understand it. The new board met on the same day, at twelve-three daylight saving time, and promptly resolved that whereas the finances do not warrant an increase in the police personnel, and so forth, that, for the reasons stated, the resolution just passed by the old board should be revoked and rescinded. That same evening, at an adjourned .meeting, the new board amended the resolution by adding a statement that the patrolmen and others in question were unnecessary for the proper government of the city.

As to this group we reach the result that the resolution of rescission must be set aside for the reason that at the time it was passed the new board was not officially in existence, and that it was simply nugatory and void. It is argued that although the minutes show the new board met at twelve-three daylight saving time, or eleven-three standard time, it does not appear that the resolution in question was passed before twelve o’clock, but this we think cannot help the defendants because it is manifest that the organization of the new board was a nullity; and where the statues fixes twelve o’clock noon as the precise moment when the official life of the new commissioners begins, and it appears that they undertook to perform official functions nearly an hour before that time, it will not only not be presumed that official action taken at a meeting so organized was taken after the clock had struck, but we think the presumption is to the contrary. To the suggestion that the new board was a de facto board, the answer is that the important elements of de facto officers, namely, official action and occupancy of the office by general consent, are totally lacking. Nor do we think that the resolution originally passed before noon could be vitalized by an amendment in the evening. It might have been vitalized by re-enactment, but no such course was taken. The result is to set aside the omnibus resolution relating to the Carroll group.

The third and last group may be called the Quinn group, and consists of a number of appointments made ostensibly or actually to fill vacancies by the old board. The new board at this saíne meeting, at twelve-three daylight saving time, undertook to rescind the appointments in the Quinn group, on the ground, among others, that there was no proof that the vacancies in question actually existed. But the actual existence'or non-existence of a vacancy was not a matter to be decided by the board on a^r theory of “no proof.” It was manifestly the duty of the board to ascertain in some way whether a vacancy existed or not and to base legitimate action on such ascertainment. So far as we can see, on the case before us, appointments in this group were presumably valid and were protected by the various tenure of office provisions of statute applicable thereto; and for these reasons, and because of the infirmity of the resolution, due to its premature passage before the new board came legally into existence, the resolution vacating the appointments in this class must also be set aside.

Some of the prosecutors claim to be protected by provisions of the veteran acts, but the results above reached make it unnecessary to consider their special claims in that regard.

The prosecutors are entitled to costs in all three cases.


author: Minturn, J.

text:
    NELLIE McHALE v. SIDNEY KELLER.
    Decided October 16, 1923.
    Bail — Order Sufficient Without Reciting in Detail the Evidence.
    On motion to quash order to hold to bail.
    For the motion, Alexander Simpson and Selick J. Mindes.

      Contra, Stover & Pellett.

   The opinion of the court was delivered by

Minturn, J.

My consideration of the grounds advanced for this motion convinces me that they are both without factual or legal merit. The motion is predicated upon the -contention that the defendant when he entered the plaintiff’s bed- chamber at night and laid hold of the plaintiff in her bed. against her will, did not do so “outrageously” as the statute provides, but rather as the common law phrase has it molliter manus imposuit. The word “outrage” has always been applied in popular phrase to such an act as that in question, and the creation by legislative provision of an adjective or an adverb from the popular substantive, simply applies the popular cognomen to an act of willful trespass which if the •allegation be true was undertaken in gross violation of personal rights and human decency.

The order to hold to bail is otherwise sufficient under the authority of the Court of Errors and Appeals in Kein v. Katz, 92 N. J. L. 406, where the rule is laid down that the order is sufficient without reciting in detail the evidence by which the facts are established to the satisfaction of the commissioner.

The motion to quash will be denied, with costs.


text:
    MICHAEL RUBERTON, PROSECUTOR, v. JOSEPH GATTA AND THE COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF ATLANTIC, RESPONDENTS.
    Submitted July 3, 1923
    Decided October 22, 1923.
    Appeals — Dismissal Asked Because Case not Noticed nor Listed at First Available Term — Merit of Grounds: of Appeal Considered — May Certiorari Lie in such Cases.
    On certiorari.

    Before Justices Trenchard, Parker and Bergen.
    For the prosecutor, Dean S. Renwick.

    For the respondents, John C. Reed.

   Per Curiam.

This writ of certiorari is directed to an order made by the Court of Common Pleas of Atlantic county refusing to dismiss an appeal from a justice’s court, the ground of that application being that the appeal was not noticed and put on the list at the first available term.

The writ of certiorari being in cases of this kind tantamount to a writ of error, we think that the application is-premature, as certiorari in such a case will not. lie until after final judgment.

But assuming that certiorari will lie we see no reason why the prosecutor should prevail. There was a judgment recovered before the justice against the appellant, defendant below, and appeal was taken. Notice was duly given and bond filed but in some way the appeal was not perfected until six days before the term opened. While under the law the appeal could probably have been noticed for a day in term, there seems to be no obligation upon the appellant so to notice it, and hence the failure -to have the appeal listed for that terpi seems inconsequential. The following term came on, however, and apparently nothing was done toward giving notice or bringing on the case. On the opening day the respondent moved to dismiss the appeal, but as he had given no notice of this motion, the court directed him to do so. This was in January, and respondent appears not to have moved until April 10th, when the May term was pending, and in a few days the appeal would be ripe for trial. The court declined to dismiss the appeal when this motion was made on April 10th, and this is the judicial action now sought to be reviewed.

It does not seem to be denied that the appeal is meritorious and it so appears to us, and we are unable to see that the court committed legal error in declining to dismiss the appeal on technical grounds when the respondent was fully secured by his bond, had been himself slow and negligent in enforcing his rights, and when a speedy trial was available at a term about to begin.

Section 90 of the Justices’ Court act provides among other things that either party may give notice'to place the appeal on for trial, and in default of such notice the court,, unless good cause be shown, shall dismiss the appeal. Comp. Stat., p. 3008. This, as we view it, places the question of dismissal or not largely within the discretion of the Court of Common Pleas, based on the question whether good cause, i. e., cause satisfactory to the discretion of that court, he shown. The prosecutor in the present case cites the decision in Gaskill v. Miller, 71 N. J. L. 103, as authority lor the proposition that the court ought to have dismissed, but an examination of that case shows that what the court did in that case was actually to dismiss the appeal and thereby terminate the litigation so that a certiorari would lie, and, morever, that the Supreme Court then refused to interfere with the discretion of the Common Pleas in ordering such dismissal, stating, in effect, that the facts showed that there was no abuse of such discretion. This seems, therefore, an authority for our present position, which is that we find no abuse of the discretion of the Pleas in refusing to dismiss the appeal in question; and this, as well as the point already noted with respect to finality, leads to a dismissal of the present writ, with costs. Such will be the order.


text:
    ERIE RAILROAD COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS AND RINGWOOD COMPANY, DEFENDANTS.
    Argued June 7, 1923
    Decided October 22, 1923.
    Rate by Public Utility — Charges for Switching Cars at Mines.
    On certiorari.

    Before Justices Trenchard, Parker and Bergen.
    For the prosecutor, Collins & Corbin.

    For the public utility commissioners, Thomas Brown.

    For the Ringwood Company, Homan & Buchanan.

   Per Curiam.

The board o'f public utility commissioners after the notice and hearing fixed a rate to be charged by the Erie Bailroad Company for certain switching operations on a piece of track between two mines of the Bingwood Company in this state, and feed a charge of $4.50 a ear per trip, being about nine cents per ton, whereas the railroad company claims that it should be $9.50 a car or nineteen cents a ton. The matter was fully argued and we have examined the testimony and considered the case and briefs fully. The circumstances are peculiar in that the service performed, for which a rate was fixed, is intimately connected with other service. of the same engine, cars and train crew, with respect to which no dispute seems to exist.

The reasons filed in the ease amount to these: First, that the board refused to consider certain evidence about the cost involved in placing of cars at the mine known as the Cannon mine, and secondly, that the board, after admitting a piece of documentary evidence restricted to a limited purpose, afterwards made use of it generally in fixing its rate. As to the first reason we agree with the finding of the board because, substantially, the cost of placing the cars at the Cannon mine was included in another rate, and therefore should not be assessed twice. As to the use of the exhibit in question the claim seems to be that because the board, after restricting its evidential effect when admitting it, acted arbitrarily in after-wards considering it generally; but in our judgment this worked no substantial harm to the railroad company. The board was entitled to consider the Mountain View rate as evidential on the general subject, and it is not to be assumed that it was considered as in any way controlling. The matter seems to have been fully presented and carefully considered, and we do not think that the action of the board should be reversed for a reason which to us, at least, appears to be rather technical and without substantial merit. The order will accordingly be affirmed, with costs.


text:
    IN THE MATTER OF THE APPLICATION OF LOUIS SKLAREY.
    Decided October 19, 1923.
    Admission to Bar — -Preliminary Examinations — Case Not a Precedent.
    Before Justices Kalisch and Katzenbach.
    For the petitioner, Henry Hahn.

   Per Curiam.

Louis Sklarey, an applicant for admission to the bar, has obtained a certificate from the commissioner of education under chapter 25 of the laws of 1922. Mr. Sklarey asks recognition of this certificate so as to commence the study of law and in due course present himself for examination at the end of that period of study. He desires to know at this time that the sufficiency of his preliminary educational qualifications will not be questioned when he comes up for admission.

The provisions of the act of 1922 are not obligatory upon this court. In re Branch, 70 N. J. L. 537. We have, however, had an interview with Mr. Sklarey and we have reached the conclusion, as a result of this interview, that we are justified in waiving the rules of this court in this case.

Mr. Sklarey served as a soldier in the World war and was wounded in the discharge of his duty. He has completed, with the approval of the vocational board of the federal government, a vocational institutional course in the study of accountancy at the Pace Institute of New York; located at New York City.

An order will be made permitting Mr. Sklarey to file a certificate of commencement of his clerkship with the clerk of the Supreme Court and the certificate of the commissioner of education, which he has obtained, will be accepted by this court in lieu of the preliminary education required by the rules.

This is not to be construed as a precedent.


author: The Court

text:
    EDWARD SCHICKHAUS ET AL. v. CITY OF NEWARK.
    Decided October , 1923.
    Oral opinion of Chief Justice Gummere, showing the practice in relation to ordinances for public improvements and the assessments for benefits and damages on the taking of lands for such improvements under the Home Rule act.
    On writ of certiorari.

    Before Gummere, Chief Justice.
    For the prosecutors, J. Henry Harrison and Spaulding Frazer.

    For the defendant, Joseph G. Wolber.

   The Court

(after argument). So far as the objections which relate to the validity of the ordinance are concerned— that is, the action of the commission in failing to send a map of the properties with the ordinance to the commissioners of assessments, and the objection that it does not properly provide for a limitation of the burden put upon property owners — that is, for assessments according to the benefits received, the objections resting upon those two phases of the case, I think, come too late. When the ordinance was passed it was either valid or invalid. If property owners desired to test them after it was up to them to act with promptness and not to sit by and speculate upon what the respective awards to them might be before determining whether or not to attack the ordinance; and that is true also with relation to the action of the board of assessments in proceeding to make an award without having the map returned with the ordinance.

The other objections, however, stand on a different basis. One of the questions, it seems to me, is whether these prosecutors, as property owners, are entitled to attack the several awards made by the commissioners upon the theory that the appropriation provided by the ordinance is not large enough to pay them. If they get the money they are not hurt as property owners. In the cases of Hartley v. Trenton and the Board of Commerce v. Ereeholders of Essex County, the question was whether, as against taxpayers, the governing body would get away with an illegal act and thereby increase the burder upon the taxpayers. In the Hartley case, as I recall it, Hartley appeared as a taxpayer, as well as a disappointed bidder for a contract. We are all familiar with the .Chamber of Commerce ease; that is a' late case,' the same situation existing, the chamber of commerce claiming to be a representative organization of the city of Newark, speaking for its citizens, the taxpayers; and it was with this situation in mind that I asked whether these present applicants appeared simply because they were property owners. Mr. Harrison says that the application is made by them as taxpayers as well, and in that latter aspect I suppose they can raise these questions, just as you or I or any other taxpayer in Newark would be entitled to raise them.

Dealing with the matter of the appropriation: As I understand the situation, the commissioners of the city concluded that it would be for the advantage of the people of Newark, whose representatives they are, to acquire this land shown on' this map, provided it could be acquired for some $300,000, and so they solemnly ordained that the land should be acquired, provided it could be acquired, for that figure; and upon this basis the matter went to the assessment commissioners for their ascertainment and determination asi to whether or not this land could be acquired for that sum. They reported back that it could not be; that it would cost twenty-five per cent, more, approximately, than the amount with which the city commissioners thought it was advisable that the public should be burdened, i. <?., the amount of benefit which the public would receive by the proposed improvement. In that situation, what authority has the governing body of the city of Newark to take possession of that land, and pay the awards therefor made by the commissioners of assessment?

Mr. Wolber — There is a law which would permit them to issue temporary loan bonds.

The Court — The law does not permit the city to issue temporary loan bonds except for the purpose of discharging a legal indebtedness; if they have not the money presently available they must raise it by the issue of temporary loan bonds; but they cannot legally issue temporary bonds to pay Tom, Dick and Harry money which those gentlemen are not entitled to have from the city. The only way, it seems to me, offhand, in which the city could meet the situation created by the return of the assessment commissioners was to pass a supplemental ordinance providing for the appropriation of this extra amount of money — that is, in the same solemn form by which they provided for the raising of the first $300,000.. In that way you and I and every other taxpayer would possess information that our servants — not our autocratic governors — but our servants, contemplated, in the discharge of the duty owed to its, spending a larger sum of money for the acquisition of this property than they earlier thought was proper, thereby increasing the public burden by the additional amount. And then, I suppose, although I am not very familiar with the methods pursued in the city hall, there would have been notice of the proposed supplemental ordinance, so that the people who were interested would have an opportunity to be present and to be heard, and to satisfy the commission, if they could, that such supplemental ordinance was unwise. But that is a very different proposition from saying that the city commission, after solemnly appropriating $300,000, and then finding that they cannot buy the property for that amount, can arbitrarily issue bonds in excess of the amount appropriated without any consideration of the question whether it is to be the interest of the people whom they represent to acquire the property at the increased amount. That is not a performance of a duty imposed upon the public officials of the city of Newark. The officials of the city of Newark are governed by law; they must be. The statute prescribed and limits their powers, and their powers are limited by the statute, as I think, to the extent I have suggested. So that I think these applicants, as taxpayers, are entitled to be heard on the question of the power of the city commission to acquire this land for the sum ascertained to be its value without taking any step which would make that acquisition legal.

On the question of the assessment of damages: The failure of the board of assessment to take into consideration the loss of business and all that kind of thing, of course, relates to. these intending prosecutors in their position as property owners; but that, as I recall the statute, is a matter that can be reviewed by a jury. If for any reason the award of the commissioners is too low because they failed to take into consideration some element that was material, the property owner has his right of review by taking an appeal and submitting the question to a twelve-man jury.

One other matter has been discussed, and that is the right of the assessment commission to base their award to any extent upon what has been called here the report of Mr. Kilgus, and a report of some other distinguished gentleman, known as a building expert. I have always supposed that where the sovereign power of eminent domain was to be exercised, and my property was going to be taken for the public good, I was entitled to be heard. Of course, the testimony of witnesses as to the value of the property is not controlling; the assessing body may go and view the property and they may use their own judgment resulting from that view in determining what the propertv is probably worth and what injury is done to the remaining property. They are entitled to form their judgment upon all of the facts which properly come to their knowledge. They may, as Mr. Wolber says, look at the books which show the business done on the premises and the receipts and expenses thereof, assuming that they are correct transcripts of the facts set out therein. They may take the testimony of experts. The condemning party may produce witnesses who are supposed to have expert knowledge; but these witnesses are subject to cross-examination on the part of the property owners; the property owners also may produce expert witnesses, and those witnesses are also subject to cross-examination by the condemning parties. But I never yet have heard that after all the testimony had been taken and all the facts had been produced and all of the views of experts expressed under oath, the soundness of which had been tested by cross-examination, that the commissioners could go around the corner and talk to two gentlemen in whose ability and judgment they had confidence and say, “What do-you think, Mr. Expert? What do you think ought to be done by us ?”

Mr. Wolber — It was while the hearing was being held.

The Court — That I think would be quite as objectionable. I am the property owner and I think I am entitled to be afforded a hearing; and that hearing includes not only the presentation of my own case, but what the other side contends. I have a right to hear the. testimony, under oath, of experts (whether called by my adversary or the condemnation commissioners) as to what their view is and why they have it; and I am entitled to demonstrate, if I can, by cross-examination, the fact that their views and their conclusions of the experts rest on an unsound foundation. Eor instance, in the condemnation of land on the surface of the ground when the Pennsylvania Railroad Company built its tunnel, two thousand feet below the surface, they called experts to show to what extent the land on the surface would be damaged by running of trains in this tunnel nearly one-third of a mile under ground. Of course, the value of the so-called experts5 testimony depended largely upon their previous experience as to what effect those conditions had upon the land on the surface; and as they did not have any knowledge at all upon the subject the court held they were not experts, although they had been in the real estate business in the vicinity for a long time; that the man on the street would be just as well qualified as an expert. I am inclined to think that these applicant were injured as property owners by the action of the assessment commissioners, which I have discussed, and that they are entitled to have it reviewed. I think I have covered everything.

Mr. Wolber- — Could I ask that the supersedeas phase of the writ be suspended so that there will be no delay in straightening the errors out ?

The Court — The difficulty is that you are not in position to straighten yourself out.

Mr. Wolber — We could probably, with respect to 'the confirmation of .the award, undo it and send it back.

The Court — So far as any future action of the city government is concerned, tending to correct the apparent defects which I have tried to point out, I have not any objection to its taking such steps as it may consider proper — that is, if counsel agree with my view that the objections seem sufficiently meritorious to make it proper to have the matters reviewed. I would not be willing to-day to go any further than that — in other words, I would not be willing to say they may be permitted to override the normal stay of the writ by taking possession of this property and tearing down buildings thereon. ’

A branch of the Supreme Court will sit in Trenton on the 13th day of September, and I think a hearing of the matter could be arranged then and in all probability quickly disposed of.