author: Pee Cueiam.

text:
    LESTER F. HILYARD AND EDNA M. HILYARD, PROSECUTORS, v. KATIE HEINZER, RESPONDENT.
    Argued January 6, 1925
    Decided March 26, 1925.
    Landlord and Tenant — Termination of Lease — Dispossession— Lessee Claimed Right to Extension of Lease Under Its Terms — This Constituted Question of Fact — -Apparently There Was No Right — On a Review of a Summary Proceeding So Instituted, Where Jurisdictional Affidavit is Sufficient, the Only Matter for Determination is Whether the Landlord Produced Any Evidence Tending to Establish the Jurisdictional Facts Set Out in the Affidavit, and the Evidence Will Not Be Weighed.
    On certiorari.

    Before Justices Kalisoh, Black and Campbell.
    Eor the prosecutors, Charles 8. Moore.

    For the respondent, Iienry W. Lewis.

   Pee Cueiam.

A' judgment of possession having been obtained by respondent in the District Court of Atlantic City in a summary proceeding under an act entitled “An act concerning landlords and tenants,” the present writ was sued out to review such proceedings and judgment. The facts are: The respondent, as landlord, and prosecutors, as tenants, entered into a written lease under date of August 1st, 1921, for the “store, dwelling and bake shop No. 13 South Main street, in' the city of Pleasantvillé, county of Atlantic and State of New Jersey,” for a term of three 3rears. from August 1st, .1921, to August 1st, 1924, at a monthly rental of $90, and the said prosecutors to “have the privilege to rent the said property for another three years at the same rental provided the taxes have not been increased, if so, then rent is to be in proportion to the increased taxes.”

The taxes upon the leased premises, increased from $156.21 in 1921 to $442.77 for the j>ear 1924.

On April 29th, 1924, respondent wrote a letter to prosecutors, in which she said “your lease will start again August 1st, 1924, then your lease will expire for store, dwelling and bake shop,” &c., “and your new lease will be for $175 per month * * * for three years, at the rent of $175 per

month for each and every month in advance, and if you do not want to rent the above-cited premises then you may vacate said premises on or before August 1st, 1924.”

On May 2d, 1924, the prosecutor Lester E. Hilyard, by letter addressed to the respondent, acknowledged receipt of her letter of April 29th, 1924, and said “axid for your information we very well understand the terms, of our lease covering the premises which your letter refers to. We axe perfectly willing to pay you the amount of money in rent from August 1st, 1924, to August 1st, 1927, which this lease provides for. The amount is to be determined at some time between the present and August 1st of this year. We have every intention of occupying these premises for another three years and of exercising only every right our lease gives us the privilege of.”

Oil July 26th, 1924, the attorneys for the prosecutors wrote respondent referring to her letter of April 29th, 1924, addressed to prosecutors, and stating that the writers had before them a copy of the lease and copies of the tax bills from 1921 to 1924; that relator was in error in fixing the rental at $175 per month; that prosecutors were perfectly willing and expected to pay the increased rental from August 1st, 1924, to August 1st, 1927, which the lease provided for; that such increase was to be figured by the proportional “increase in your taxes which the entire property bears to the particular portion yon have leased to- us;” that putting the most favor-” able construction thereon would not permit the rental to be more than $115.58 per month, and that “we will be glad to go over these figures with you at your convenience.” The letter then proceeds: “This letter is notice to you, however, that we intend to exercise our privilege under the terms of our lease for an additional period of three years, which would make our tenancy terminate on August 1st, 1927. * * *

We are ready and willing to take up with you for determination and settlement at any time that suits your convenience the amount of increased monthly rental that we are to pay to you under our lease for said 13 South Main street, Pleasantville, New Jersey, for the next three years commencing August 1st next.”

On July 29th, 1924, the attorneys of the prosecutors again wrote respondent asserting that they had had no response to their letter to- her of July 26th, and stating that, in- order to protect their right under the lease, “we hereby tender to you on this 1st day of August, 1924,-legal tender money in the sum of $115.58 in cash, said sum of money being a maximum amount which we claim you are entitled to under said lease fo-r payment of rent due on August 1st, 1924, and monthly thereafter for the remainder of said three-year term.”

On September 6th, 1924, respondent wrote prosecutors as follows: “You know your lease has expired, and you are hereby notified, if you do not pay the; rent as per notice, $175 per month, I shall go to the District Court and get possession of my property Nov 13 South Main street, Pleasantville, New J ersey.”

On October 10th, 1924, respondent caused two notices to1 be served upon the prosecutors.

The one, to forthwith deliver and vacate the leased premises because their terms, therein had exipred August. 1st, 1924, and the other, that if they desired to lease the premises under the option in the lease, tire rent therefor from August 1st, 1924, for thei additional term of three years would be at the rate of $255.10 per month, “the same beiirg fixed in proportion as the taxes on said premises, for the year 1921, wherein said letting was made, viz., $156.21 are to the taxes of 1924, the year wherein the term thereunder expired, viz., $442.77 as $90 .per month fixed under said lease, for the original term is to the rent required under such option stated.”

On October 29th, 1924, Eeuben E. Adams swore to an affidavit which is. the basis of the proceedings hereunder review. The affiant deposes as follows:

1. That for the purpose of this affidavit he is the agent of Katie Heinzer, who- is the owner of the premises designated “as the store1, dwelling and bake shop situate at and known as Nov. 13 North Main street, in the city of Pleasantville, county of Atlantic and State of New Jersey.” (This street designation is erroneous and should have been “No. 13 South Main street, &c.”)

2. That Lester E. and Edna M. Hilyard were then in possession of said premises by virtue of an agreement made August 1st, 1921, between'them and Katie Heinzer, whereby the said premises were- let and rented to them for the term of three years from August 1st, 1924, at $90 per month, payable on the first day of each month in advance.

3. That said' agreement contained a clause whereby the Hilyards were to have the privilege of renting said premises for an additional term of three j^ears., from the expiration of the first term at the rent of $90 per month if the taxes upon the leased premises were not increased, but if they were then said rent was to be increased in proportion to the increase of said taxes.

4. That the taxes for the year of said letting, 1921, were $156.21, while those of the year the term expired, 1924, were $442.77.

5. That at the expiration of said term, and subsequently thereto, the deponent, as agent of the owner, Heizner, proposed to the tenants, Hilyards, to- let the said premises for the additional term of three years from August 1st, 1924, at the “rent in proportion to the increase of the taxes as aforesaid, which proposal they declined and refused to agree to.”

6. That the right of possession of said premises by the Hilyards expired on August 1st, 1924.

7. That on October 10th, 1924, deponent caused notice in writing to be served upon the Hilyards reemiring them to forthwith vacate said premises and deliver possession thereof to the owner, but that, nevertheless, they still hold over and continue in possession of said premises.

Prosecutors’ first reason for setting aside the proceedings is that there is a variance in the description of the premises from that contained in the demand for possession and that set forth in the affidavit. The correct location o£ the premises as set forth in the notice is No. 13 South Main street, while in the affidavit it is referred to at 13 North Main street.

In Newing v. Stillwell, 67 N. J. L. 96. it is held that the requirements of the statute is complied with “when there is in the description sufficient certainty to advise the tenant of the premises claimed, and the officer of the premises from which the tenant is to be dispossessed.”

In the affidavit the premises are not only designated in the above manner, but as “the stoxe, dwelling and hake shop” in the possession of and occupied by prosecutors as tenants of respondent.

Wo think the description sufficient.

The next reason is that the authority of the agent making the affidavit is not sufficiently set forth.

The language of the affidavit is: “Eor the purpose of this affidavit I am the agent of Katie Heinzer.”

Prosecutors assert that it nowhere appears that the agent has authority from the landlord to disposssess the tenants or that he had'any sufficient knowledge to malee such an affidavit.

There is nothing in this objection. The very purpose of making the affidavit was to inaugurate the proceedings and affiant’s principal brought such proceedings to- a conclusion-thereunder.

Next, it is contended that the demand for possession of October 10th, 1924, is improper and insufficient, because at the same time and by another notice in writing, either upon the same sheet of paper or upon a separate sheet, an option or alternative was extended to prosecutors to have a new term of three years at a rental of $255.10 per month.

There is- no force in this.

Next, it is urged that because prosecutors continued in possession after August 1st, 1924, the new term of three years extended to August 1st, 1927, was entered upon, and, therefore, there was no expiration of term.

Erom the affidavit it must be concluded that the basis and ground of the proceeding was prosecutors’ failure to take advantage of the right to a further term of three years from August 1st, 1924, to August 1st, 1927, at an increased rental under the terms and conditions of the lease.

Whether prosecutors had or had not done that which gave them this extended term was a question of fact. The affidavit set out sufficient facts to make it appear that they had not. It was necessary- upon the trial to produce evidence to substantiate this jurisdictional fact raised by the affidavit.

Apparently, there was evidence. • The evidence, aside from the correspondence hereinbefore referred to, is not contained in the state of the case. The court below found that prosecutors had not become possessed of the right to the extended term. There being evidence below tending to establish this we cannot look further, but must take the finding of the court below thereon.

"On a review of a summary proceeding instituted by a landlord to dispossess a tenant where the jurisdictional affidavit is sufficient, the only matter for determination is whether the landlord on the trial produced any evidence tending to establish the jurisdictional facts set out in the affidavit, and the evidence will not be weighed.” Lit v. Maxwell, 96 N. J. L. 293; Moreland v. Steen, 89 Id. 383; Montalvo v. Levinston, 94 Id. 87.

The final objection is that expiration of term and failure to pay rent are inconsistent remedies.

We think that a proceeding to dispossess may proceed upon both of these grounds, and the finding, dependent upon the facts, may be upon one or more of the grounds asserted and established.

But this we are not- called to pass upon because the jurisdictional affidavit presents only one ground and that is expiration of term.

Finding no jurisdictional errors the writ of certiorari is dismissed, with costs.


source: Caselaw Access Project

author: Lloyd, J.

license: Public Domain

text:
    OCEAN GROVE CAMP MEETING ASSOCIATION OF THE METHODIST EPISCOPAL CHURCH, PROSECUTOR, v. THE BOARD OF EDUCATION OF THE TOWNSHIP OF NEPTUNE, RESPONDENT.
    Decided March 31, 1925.
    Eminent Domain — Proposed Condemnation of Land by a Municipality, Belonging to a Corporation, the Ocean Grove Camp Meeting Association — Contention That Property Cannot be Acquired under General Condemnation Acts Where Such Acquisition Will Destroy or Impair the Corporate Franchise — The Corporate Franchise Here in Question is That of a Camp Meeting Association, the Land in Question is Occupied by a Garage — Held, That the Franchise Will Not be Interfered ,/Vith.
    Foi' the prosecutor, McCarter & 'English.

    For the respondent, Geran & Mattack.

   The opinion of the court was delivered by

Lloyd, J.

This is an application for a writ of certiorari to review condemnation proceedings taken by the board of education of the township of Neptune to acquire certain lands held in fee-simple by the Ocean Grove Camp Meeting Association of the Methodist Episcopal Church. Prom the affidavits filed on this application it appears that lots Nos. 245, 246, 267-A and 268-A, as laid out on a plan of maps attached to said affidavits and lying within the boundaries of Ocean Grove, are sought to be acquired by the1 board of education to afford additional ■ school buildings for school purposes in the township.

The application for this writ is based upon the rule that corporate property cannot be acquired under general condemnation acts where such acquisition will destroy or impair the franchise of such corporation, and it is contended in this case that to permit the condemnation here sought to be effected would have such result. To determine this question it • is necessary to consider the nature and scope of the charter of incorporation of the prosecutor and of the relation thereto of the land sought to be condemned. Reference to the charter itself which was enacted in 1870, chapter 157, provides that it shall be lawful for the corporation to purchase and hold real and personal estate and to acquire lands in this state in fee-simple or otherwise “as they may deem necessary, proper or desirable for the object of the corporation, and the same or any part thereof to dispose of, in parcels or otherwise, in fee-simple or otherwise, on such terms, conditions and restrictions not repugnant to the laws of this stat“ or the United States as they may see fit.” The purposes for which the corporation is formed “shall be the providing and maintaining for the members and friends of the Methodist Episcopal church a proper, convenient and desirable permanent camp meeting ground and Christian seaside resort.”

The lands in question, from the affidavits filed, appear to have been leased by the association for a period of years, and were occupied until September, 1914, by the tenant for the purpose of a public garage arid lively stable, at which time the board of education purchased the leasehold. Supplementary thereto the present condemnation proceedings were instituted to acquire as against the lessor, the camp meeting association, the land for the purpose as already indicated. For the writ, counsel rely upon ‘the class of authorities illustrated by New Jersey Southern Railroad Co. v. Commissioners, 39 N. J. L. 28; Jersey City v. Montclair Railroad, 35 Id. 328; New York, &c., Railroad v. Patterson, 61 Id. 408, to the effect that under the general power of condemnation, a destruction of the franchise of a corporation cannot be effected. In my opinion this case does not fall within such a class. The purposes of the Ocean Grove Camp Meeting Association are distinctly set out in the charter as recited above. In this case I am not confronted with [he taking of property devoted to any such uses, and am not, therefore, called upon to determine the abstract question whether the property of the association leased by it to individual members or others for the purposes named’in the charter can be acquired by the board of education. Whatever of purpose there may have been in the acquisition of the lots in question a wide departure from the uses specified in the charter have been made or permitted by the association in the construction of a garage thereon. It is clearly apparent that the taking of these lots, already parted with for a period of ninety-nine years with the privilege of extension for like periods in perpetuity and on which, without apparent objection a public srarage has been constructed by the tenant, is in nowise an impairment, of the .franchise of the association. In the New York and Long Branch Railroad Co. v. Drummond Case, 46 Id. 644, where some minor passenger and freight platforms of the railroad company were being disturbed, by the line of projected highway, the Court of Errors and Appeals uses this language: “Conceding it to be proved that they [the platforms] are entirely within the railroad line, they are not of such character or so essential to the enjoyment of the franchise of the company that they may not, in subservianee to the public necessity and convenience, be removed out of the way of a public road.” Applying this rule to the case in hand, my conclusion is that the lands sought to be acquired are not so essentially a part of the necessary exercise of the franchise of the corporation as to be beyond the reach of condemnation proceedings under general acts. Whether directly or indirectly the association is responsible for the' devotion of this property to purposes lying outside of those contemplated by its charter and essential to its franchise necessities, it is quite apparent that its commercial use sets it apart and places it in the same category as the property of any other owner, individual or corporation. To hold- otherwise would be, in effect, to sustain the proposition that the association may purchase the lands of the township, lease them for business purposes, and derive a revenue therefrom of a commercial nature totally variant to the intendment of its corporate franchises, and thus preclude the school authorities from obtaining the necessary facilities for the education of the children of the members of the very corporation which is now resisting the taking of lands for such purposes. The case is so clear in my mind that I would not be justified in allowing the writ of certiorari, and it is therefore denied.


author: Pee Curiam.

text:
    JOHN ANTOLIK AND ANNA ANTOLIK, PROSECUTORS, v. FRANK SAUNDERS, RESPONDENT.
    Submitted January term, 1925
    Decided March 26, 1925.
    Landlord and Tenant — Dispossession—Proceedings Attacked on Ground That Affidavit Fixes an Uncertain Date and That Commencement of Tenancy Was Not Proven — Affidavit Which Contained Statement of Non-payment of Rent As a Jurisdictional .Fact Was Considered and Evidence Supporting It was Produced' — Proceedings Under the Act May Be On More Than One Ground.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.

      For the prosecutors, Elmer W. Romine.

    For the respondent, Joshua R. Salmon.

   Pee Curiam.

A judgment for possession of premises No. 611 Birch street, in Boonton, was obtained by respondent in proceedings in the District Court of the Third Judicial District of Morris county, in a summary proceeding under “An act concerning landlords and tenants,” approved March, 27th, 1874, and its supplements and amendments.

The proceedings seem to be attacked because—

1. Because the creation of the tenancy as set forth in the affidavit fixes an uncertain date.

2. Because the allegations in the complaint as to commencement of tenancy" were not proven.

The only matters before us are, were the necessary jurisdictional facts set forth in the affidavit, and, if so, was, there any" evidence from which such jurisdictional facts might be found. Montalvo v. Levinston, 94 N. J. L. 87.

The affidavit of the landlord, so far as it refers to the inquiry" presently" before, us, is: “That he is the owner, being the life tenant of premises, situate at Noi 611 Birch street, in the town of Boonton, county" of Morris and State of New Jersey"; that ,Tohn Antolik and Anna Antolik are now in possession of said premises by" virtue of an agreement made with deponents about the 1st of April, 1919, whereby said deponent let and rented said premises to the said John Antolik and Anna Antolik, from month to, month, for the monthly rent of $8.50, payable in advance; that said John Antolik and Anna Antolik entered into possession of said premises and paid said rent to January 1st, 1920, and are now indebted to this deponent in the sum of $382.50, being the rent due byr virtue of said agreement on the 1st day" of September, 1923, said tenants, being therefore actually objectionable because of the non-payment of rent aforesaid.” The affidavit then proceeds, to set forth, the giving to the prosecutors herein notice for two purposes^ viz., on Decemher 29th, 1922, to terminate the tenancy and. requiring the tenants to vacate on April 1st, 1923, and ano'tlrer on July 20th, 1923, requiring prosecutors as tenants to remove from the premises because of non-payment of rent.

Due service of'these notices was admitted.

The judgment of the District Court, so far as is pertinent, is: “Notice to quit said premises on April —, 1923, was served on the defendants on December 29th, 1922, and three days’ notice to remove for non-payment of rent was served on the defendants July 20tli, 1923. It was stipulated on the record that the notices were duly served. The grounds for the removal, as set forth in the affidavit for removal, were sufficiently proved. The plaintiff is entitled to a judgment for possession, which is hereby given.”

If the affidavit set up only grounds for which possession might be had for a .termination of the tenancy under tire notice of December 29th, 1922, requiring prosecutors to vacate April 1st, 1923, and had the judgment of the District Court in turn, been based thereon, it might well be that the proceedings might have to be set aside' both for indefiniteness in the affidavit as to the commencement of the tenancy and as to whether there was airy proof upon that score upon which the District Court could have found.

But the affidavit set up another ground — non-payment of rent aard the notice of July 20th, 1923, to surrender the •premises because thereof — aard the District Court fouird these facts also established, and we think there was evidence from which said court could sc' find.

The only inquiry is “whether there was. any evidence from which the jurisdictional facts set out in the affidavit might have beeir properly found.” Moreland v. Steen, 89 N. J. L. 383, aard Montalvo v. Levinston, supra.

That a proceeding under the Landlord aard Tenant act may be based upon more than one ground seems, to* be fully justified by Pamph: L. 1922, p. 170, ch. 93, and the finding of the District Court may be upon any one or all the causes of removal.

Finding that the court below had jurisdiction the writ of certiorari is dismissed, with costs.


author: Pjsr Curiam.

text:
    LLOYD W. SMITH, PROSECUTOR, v. THE BOROUGH OF FLORHAM PARK ET AL., RESPONDENTS.
    Argued March 3, 1925
    Decided April 8, 1925.
    Municipalities — Ordinances—Water Supply — Provisions for Laying Mains, &c., Under Home Rule Act, Article 20, Section 1, Extends Only to Cases Where Supply Already Exists Owned By Municipality, Not to the Installation of a Distributing System To Be Attached To an Outside System — Improvement Proposed a General Not a Local One.
    On certiorari.

    Before Justices Katasch, Black and Campbell.
    Eor the prosecutor, King & Vogt.

    For the respondents, Robert E. Burke and J. TI. Thayer Martin.

   Pjsr Curiam.

This writ brings up for review an ordinance of the borough of Fiprham Park, entitled “An ordinance providing for the creation of a board known as The Florham Park Water Improvement Board/ and. defining the powers and duties, and providing for the installation as a borough improvement water mains and service connection, and hydrants in certain streets or public highways in the borough of Florham Park, and providing for the assessment of the cost of such improvement upon the property benefited thereby.”

Several reasons are advanced against the validity of the ordinance — first, there is no private or public water supply of the borough, nor has it taken any steps to secure a supply of water for the mains after their installation; second, no opportunity has been afforded to the voters of the borough to require a submission to the voters of a proposition authorizing the borough to supply water.

These may be; considered together.

The contention of the prosecutor is that the only authority for such an improvement as is contemplated is under article 32 of the Home Eule act (Pamph. L. 1917, ch. 152, p. 429), providing for the securing of a supply of water by the borough, in one of four different ways, upon the approval of a majority of the legal voters a.t an election called for that purpose.

Eespondents rely for authority upon subdivision i of section 1, article 20 (Home Eule act), as amended (Pamph.. L. 1924, ch. 206, p. 433), reading as follows:

Section 1. “A local improvement is one, the cost of which, or any portion thereof, may be assessed upon lands in the vicinity thereof benefited thereby.”

Every municipality may undertake any of the following works as a local improvement:

(i) “The installation of service connections to a system of water, gas, light, heat or power works, owned by the municipality or otherwise, including all such works as may be necessary for supplying water, gas, light, heat or power to lands for whose benefit such services are provided; service connections, including the laying, constructing or placing of mains, conduits or cables in, under or along a street, road, avenue,’alley or other public highway or portion thereof * *

This paragraph, as contained in the original act (Pamph. L. 1917, ch. 152, p. 371), consisted of the italicized words in the foregoing quotation.

The borough has made no- provision fox securing a supply of water for public and private uses.

Its purpose is that the borough of Madison, as adjoining municipality, having a municipal water supply, will supply the mains to be constructed under the ordinance in question with water, making its own contracts with the consumers in the borough of Florham Park.

The mains proposed to be laid will have a length of fifteen thousand five hundred (15,500) feet, or slightly less than twenty per cent, of the total mileage of the streets of the borough. From the stipulation of facts it also appears that the borough has by ail ordnance adopted June 16th, 1924, provided for mains to be constructed along Brooklake road to connect with mains of the. borough of Chatham, now extending to a point about one thousand (1,000) feet from the line of the borough of Fiorham Park.

We think subdivision 1, article 20 of the Home Rule act above quoted does not apply to such an improvement, but does apply only to the making of service connections to a system of pipes and mains already existing in the borough either owned by the borough or a body, public or private, other than the borough, and that the additional language in the 1924 amendment, “service connections including the laying, constructing or placing of mains, conduits or cables in, under or along a street, road, avenue, alley or other public highway or portion thereof,” has. application only to an existing system of mains in the borough, but where the obtaining of water service requires a. further construction than from the mains in a street to the properties immediately adjacent thereto.

It is conceded that the ordinance is not based upon, nor were the proceedings, taken and conducted under, the provisions of article 32 of the Home Rule act, supra, and the ordinance is therefore without statutory support, and must therefore he set aside.

Tt may be pertinent, here to call attention to. a letter from the mayor of the borough of Madison to. the mayor of Fiorham Park under date of February 13th, 1925, and being an exhibit in this case, from which it appears that the borough of Madison is unwilling, or, at least, extremely reluctant, to enter into any contract or agreement to. furnish water to. the residents of Fiorham Park who are proposed t.o he served by the construction of the mains in question.

This seems to. us to add weight to. our conclusion that the provisions of article 20, section 1, subdivision 1, Home Rule act, supra, apply only when there is in the streets of the municipality a system of water mains, then actually supplying water sendee. It would be most unreasonable to. suppose that such mains could be constructed without any means in existence for a water supply to and through them. Third. The work proposed is a general improvement to be paid for by general taxation, and not a local improvement to be assessed upon the lands in the vicinity thereof benefited thereby.

In view of our findings under reasons one and two this is so.

In this connection two other objections are urged — (1) because the title of the ordinance would indicate it to be both a geireral improvement and a local improvement.

But “the title of an ordinance being inessential, cannot control the tenor of the enactment.” Hershoff v. Beverly, 45 N. J. L. 288; Loertscher v. Jersey City, 84 Id. 537 (at p. 538.)

(2) Because paragraph 3 of the ordinance provides the “cost of such improvement shall be assessed upon the property benefited thereby,” and, therefore^ the entire cost must be so assessed irrespective of resulting benefits.

But this is not so. 'The statute regulates the method of assessment. All that the ordinance proposes and undertakes to do is to make known and declare that assessments are to be made as for a local improvement. Fourth. The borough has no authority to provide by ordinance for the creation of “the Elorham Park Water Improvement Board,” and give such board the right to assess for benefits.

We are inclined to concede to the borough the right to appoint such a board to act in a supervisory and recommendatory capacity. We think such power exists, in article 14, section 1, subdivision C of Pa/mph. L. 1917, p. 352. It will be noted that section 2 of the ordinance provides “there shall be constructed and installed, under the supervision of said board and of the borpugh council,” the water mains in question, “together with necessary service connections,” and, further, but “nothing herein contained shall be construed to permit any contract to be made or entered into or executed by said board without the approval, consent and instruction by resolution or otherwise of the borough council. All contracts to be made and executed by'the mayor and council of the borough of Elorham Park except as herein otherwise provided.”

We think this language clothes such board with no greater powers than those that would be possessed by an inspector, engineer or other agent or employe acting in an administrative, consulting or recommendatory capacity. PI: this was the entire power attempted to be given this board we would, therefore^ hold that the mayor and council were within their rights under the provisions, of the statute: above referred to. But the ordinance provides further in section 3, as follows.: “The cost of such local improvement shall be assessed by the aforesaid board upon the lands in the vicinity thereof benefited thereby * * Eor this there is. no- authority.

The only authority' is to be found in Pamph. L. 1917, ch. 152 (at p. 377), article 20, section 17, as follows:

“The governing body of every' municipality in which no hoard is provided by law for the making of all assessments for benefits accruing from local improvements, may, by ordina,nee> create a general board, for that purpose, which board shall thereafter make all such assessments.”

Section 18 of article: 20 of the same act provides:

“In any municipality where no. such board is provided for by' law or by such ordinance, the governing body may, by resolution, upon the completion of any local Improvement, appoint three discreet freeholders who shall be residents of the municipality and in no way interested in such improvement, in which instance the freeholders so appointed shall make- the assessment for such particular improvement.”

Section 16 of article 20 of the act provides.:

“All assessments, for benefits for local improvements- under this act shall be made by the officer or board charged.'with the duty of making general assessments of taxes in the municipality', except where there is now provided by law a, board for the making of all such assessments, In which case all assessments shall be made by such hoard as provided.”

Respondents admit this lack of authority complained of, but urge that this provision may ho exscinded from the ordinance, and the balance remain as a legal municipal enactment.

We are by no means certain, however, that this is- so. unimportant and inconsequential a part o-f the whole that it may be eliminated and the balance stand as the expression of a completed legislative act of the borough council. But upon this it is not necessary for us to definitely pass, because of our findings upon other reasons. Fifth. The ordinance was considered by the council before the hearing was held thereon.

It was introduced June 16th, 1924, and passed upon its first and second reading, and ordered published and notice of final adoption on July 7th ordered given.

On June 30th an adjourned meeting was held, and council rescinded its action of June 16th in passing the ordinance on first and second reading.

Changes in the form of advertisement made by the borough clerk and borough attorney were ratified and confirmed.

But these changes extended further than the notice. They went to amendments and changes in the language of the ordinance itself. Section 2 of the ordinance, as set out in the notice of June 16th, read: “* * - * at a total cost of, approximately, $29,000, and which said sum is hereby appropriated for the purpose of such improvement * * *.” This was amended by adding “or so' much thereof as may be necessary,” so that as amended it would read: “* * * at a total cost of, approximately, $29,000, and which said sum, or so much 'thereof as may be necessary, is hereby appropriated for the purpose of such improvement.”

In the same section 2 the word “hereinafter” was changed to “herein otherwise,” so> that it now reads: “All contracts to be made and executed by the mayor and council of the borough of Elorham Parle, c xcept as herein otherwise provided.”

This is in direct violation of Haake v. Norwood Borough, 2 N. J. Adv. R. 1046, and, therefore, nullifies and makes illegal the proceedings upon the passage and adoption of the ordinance.

The final reason is that tire borough council, under the ordinance, appointed a commission to assess lands before the ordinance was published, as required by law.

This we need not passi upon, for the reason that the ordinance and proceedings brought up must be set aside for tire reasons already given.

The ordinance and proceedings under review are set aside, with costs.


author: Per Curiam.

text:
    THE HOBOKEN FERRY CO. ET AL., PROSECUTORS, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL., DEFENDANTS.
    Submitted January term, 1925
    Decided March 31, 1925.
    Taxes and Assessments — Reduction of Assessment on Property Used for Ferry Purposes in Hoboken — Evidence Examined and It Appears That Assessment Must Be Reduced.
    On certiorari.

    Before Justices Kalis ch, Black and Campbell.
    For the state, Edward L. Kabzeribach, attorney-general.
    For the city of Hoboken, Horace Allen.

    For the prosecutors, Congleloa, Slallman & Hoover.

   Per Curiam.

This writ of certiorari was issued to review the assessment made by the local assessor in Hoboken, for the years 1921 and 1922, on a tract of land of the prosecutor, at the foot of Fourteenth street.

The assessment is on a part of a rectangular piece of land containing about six acres, the middle of which is coincident with the centre line of Fourteenth street, in Hoboken, running south one hundred and six feet and north one hundred and seventy-five feet from the centre line of Fourteenth street. The part under review is used exclusively for ferry purposes. The southerly portion of the tract is assessed by the state board of taxes and assessment as second-class railroad property at $75,000 per acre. The balance of the tract, plot B2 on the cito assessment map of Hoboken, is assessed by the local assessors of Hoboken at $108,900 per acre. This assessment was reduced on appeal to the state board of taxes and assessment to $98,000 per acre. Why this discrepancy in valuation between the two portions of the same tract of land is not apparent from the record. Mr. Eyer and Mr. Dunham testified there is no substantial difference in value. Mr. Herman de Selding testified there was very little difference. The prosecutor called two expert witnesses as to the value’ of this plot of land. Mr. Herman de Selding fixed the value at $58,000 per acre-; Mr. Thomas A. Eyer at $64,000 per acre or $60,000 per acre. Mr. Frederick Dunham, called by the defendant, valued it at $3 per square foot, or something around $130,000 per acre.

There were some sales of other lands put in evidence, and also the printed record of the assessments in the railroad tax cases, for the year 1922. Exhibit P-1. Eecord, page 68.

The certiorari was issued in this case under Pamph L. 1918, p.- 870, § 512, which provides, if it shall appear to the satisfaction of any court, wherein any certiorari is or may be brought “that the value of taxable p-ropertj1-, for which any person is therein assessed, is too great, said court shall amend such assessment and reduce the same to the proper and just amount,” &e.

We think the assessment is excessive and too great as shown by the evidence-. It should be reduced to- the amount fixed by state board of taxes and assessed on the southerly part of said tract of land, viz., at $75,000 per acre, and such will be the- order of the court.


text:
    FRANK B. EATON, RELATOR, v. CITY OF NEWARK ET AL., RESPONDENTS.
    Municipalities — Zoning—Relator Had Not Exhausted His Remedy by Appealing to Board of Adjustment Which Exists in City of Newark.
    Submitted January term, 1925
    Decided March 26, 1925.
    On rule tor mandamus.

    Before Justices Kalisch, Black and Campbell.
    Eor the relator, Edward L. Davis.

    For the respondents, Jerome T. Oongleton and Charles M. Myers.

   Pee Curiam.

In this matter no further statement of facts is necessary other than that application was made by relator to the superintendent of buildings of the city of Newark for a permit to erect thirty-two garages to house one automobile each, and such permit was refused, for the reason that such structures upon the premises of relator would he in violation of the zoning ordinance of the city. A hoard of adjustment exists in the city of Newark in pursuance of the terms of Pamph. L. 1924, ch. 146, and relator had not appealed to that board from the ruling or refusal of the superintendent of buildings.

We conclude that relator must exhaust the remedies through such agencies as the legislature has set up for that purpose before applying for the allowance of the discretionary writ of this court. Florenzie v. East Orange, 88 N. J. L. 438.

The rule to show cause is dismissed.


text:
    FRED A. SARG, PROSECUTOR, v. BYRON H. HOOPER, JUSTICE OF THE PEACE OF THE BOROUGH OF HAWORTH, BERGEN COUNTY, RESPONDENT.
    Submitted January term, 1925
    Decided March 26, 1925.
    Municipalities — Zoning—Conviction for Violation of Zoning Ordinance by Erection of a Refreshment Stand and Gasoline Tank on Prosecutor's Property — Ordinance .Unconstitutional — Case Clearly Under Ignaciunasi v. Risley Case— Conviction Set Aside.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    For the prosecutor, Edward A. Kenney.

    For the respondent, James DeTurck.

   Pee Curiam.

The prosecutor ivas convicted for violating the zoning ordinance of the borough of Haworth, in Bergen county. The violation consisted in the erection and use of a refreshment stand and gasoline tank upon his property, which was within a district under the ordinance prohibiting the erection and use of any building for business purposes. The' prosecutor is the owner of a large tract of property. The location of the refreshment stand -and gasoline tank is such that there are no other buildings to the north as far as Haworth drive, a distance of .one hundred and fifty to two hundred feet, nor to the south for three hundred or four hundred feet, and the stand is sixty feet back from Washington avenue, on which it fronts.

Three reasons are urged by the prosecutor why the conviction should be set aside. One reason only requires our attention because it requires the setting aside of the conviction. That reason is: “The ordinance is -unconstitutional, for the reason that it forbids the prosecutor the use of his property for the lawful purpose for which he is using it, and thereby deprives him of his property without compensation and due process of law.”

Under the facts the case sub judice falls clearly within that of Ignaciunas v. Risley, 1 N. J. Adv. r. 1023; affirmed, 2 Jd. 852, in that as applied to the uses to which prosecutor is putting his lands and the structures in question the prohibitions of the zoning ordinance when applied thereto are not within the police powers of the borough in protecting and conserving public health, safety or general welfare.

The result of such finding is that the conviction must be set aside, with costs.


text:
    MILDRED QUIGLEY, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT. JOHN H. QUIGLEY, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Submitted February 5, 1925
    Decided April 10, 1925.
    Negligence — Injury to Jitney Bus Passenger Through Collision With Trolley Car — Trolley Car and Bus Owner Defendants— Evidence of Negligence of Both Defendants — Judgment Against Trolley Company Only — Exception to Judge’s Charge, Only Ground for Review, Not Sustained.
    On appeal front the District Court of the city of East 0 range.
    Before Justices Trencilard, Minturn and Lloyd.
    For the appellant, Leonard J. Tynan.

    For the appellee, George A. Henderson.

   Per Curiam.

These two cases were tried together in the District Court, and have been argued here together. They were brought by Mildred Quigley and her husband, John II. Quigley, to recover damages on account of injuries received by Mrs. Quigley in a collision between a jitney bus and a trolley car of the Public Service Eailway Company. Both the latter and the owner of the bus wrere made defendants. The jury rendered a verdict in each ease against the Public Service Eailway Company only, and1 that company appeals from the judgments rendered thereon. (

Mrs. Quigley was a passenger in the bus, and at the trial there was ample evidence of negligence of both the bus driver and the motorman of the trolley car.

The cases come, to this court for review on an exception to the judge’s charge onty. The exception is as follows:

“1 also take exception to that portion of the court’s charge where you. state as a fact that an inference may be drawn from the facts of the ease to show negligence either against the Public Service Eailway Company or the defendant Cisco, or both, as being a finding of fact by the court, instead of letting the jury pass upon the question of whether an inference of negligence can be drawn from those facts; I think that the inference is for the jury to draw.”

Under that exception the appellant seeks to challenge the propriety of several parts of the court’s charge, but a critical examination of this exception and the charge shows that' the exception does not bring up- any erroneous instruction.

It is quite true that there were numerousi portions of the charge in which the jury was instructed, in effect, that inference of negligence of either or both of the defendants might be drawn from the evidence, and this was undoubtedly true. Indeed, in the conduct' of the trial counsel of both defendants- seems to have assumed that the accident was the result of negligence on the part of on© or the other of these defendants, and each attempted to fasten the blame on the other. In this situation it certainly -was not error for the trial judge to say to the jury that they might find from the facts of the case negligence in either one or both of the two defendants.

The appellant, however, by virtue of this same exception, seeks to obtain a reversal on the other portions of the charge, in which the appellant asserts in its brief there is “the assumption that one or both defendants was- liable to the plaintiff, thereby barring from the ease the element of pure accident, devoid of negligence on the part of either defendant.” But we think the exception not broad enough to raise- that question. The exception clearly related to those portions of the charge in which the judge instructed the jury that they might fro-m the facts of the case draw the inference of negligence of one or the other or both defendants. And there is strong reason in this case why the exception taken should not be extended beyond its reasonable bounds. Erom the opening of counsel of both defendants-, and the examination and cross-examination of witnesses-, it is quite clear that recognition of negligence somewhere pervaded the trial. There was no request to charge. There was no claim by either defendant that the accident was an unavoidable- one, or one for which neither party would be responsible. Counsel for the Public Service Railway Company in his opening said: “And it for you, gentlemen, to say who was negligent in the case.” And counsel fo-r the bus owner presented to: the jury the question in this language: “Who was negligent; who caused this collision?” Both openings: assumed that there was negligence. It certainly eo-uld. not have been the plaintiff, who was sitting quietly in the- bus; therefore, it must have been intended as an assertion that one or the other operator was negligent. If the court, following the lead of counsel in portions of the charge, rather assumed the same fact, it was, at least, excusable-, and an. exception, based upon the theory of an erroneous charge in that respect, would have to be sufficiently clear and explicit to cover the objectionable- parts of the charge- to- be availed of in this appeal.

The judgment will be affirmed, with costs-.


author: Pee Cubiam.

text:
    JOSEPH KOVIACS, PLAINTIFF, v. EDISON PORTLAND CEMENT COMPANY, DEFENDANT.
    Submitted February 5, 1925
    Decided April 10, 1925.
    Negligence — Injury to Employe Through Alleged Failure to Provide Medical Assistance'to Cure Him of His Illness Caused by His Employment — In Absence of Contract, No Duty Rests on Employer to Provide Means for Curing Ills of Deceased Employes, Though Such Illness Arose From the Employer’s Negligence.
    Oil motion to strike out complaint.
    Before Justices Tbenchakd, Mintukn and Lloyd.
    For the motion, McCarter & English (Robert H. McCarter, on the brief).

      Contra, William C. Gebhardi .¿G Son'(W. Reading Gebhardt, on the brief).
   Pee Cubiam.

This is defendant’s motion toi strike out plaintiff’s complaint, or, in the alternative, to strike out paragraph 10 thereof.

The facts alleged in the complaint, material to' this motion, arc, in effect, as follows: That the defendant was, on certain days, engaged i-n the business of manufacturing’ cement, and, in connection with such business, operated a quarry; that the plaintiff was employed by defendant as a helper in such quarry; that, due to the negligence of the defendant, the pumps in the quarry did not function, as a result of which the shaft where the plaintiff was directed to work became filled with water to a depth of from one to two feet; that the water was of a character dangerous to health, and that as a result of working in it on the days in question, plaintiff became 111, and one of his legs became diseased so that an amputation was necessary.

The gravamen of the action thus alleged is the careless and negligent failure of the defendant “to provide the plaintiff with a reasonably safe place in which to perform his work,” and “to provide the said plaintiff with reasonably safe tools, appliances', apparatus, machinery, hoots or other clothing, ways and means with which to perform the said work.”

Paragraph 10 of the complaint alleges that “although the defendant was then and there well aware of the sick and diseased condition of the plaintiff, the defendant then and there carelessly and negligently failed to provide the plaintiff with any medical assistance or other means of being cured.”

We think paragraph 10 must he stricken out.

In a. common law action for negligence such as this, although an employer must answer to an employe in damages for all loss pro-ximately resulting, including physicians’ and surgeons’ charges,'yet, in the absence of contract, there is no duty on the part of an employer to provide medical assistance or other means of being cured to an ill and diseased employe, even though the illness or disease arose from the negligence of the employer. 18 R. C. L. 506; 26 Cyc. 1049, and cases there collected.

The complaint as amended, by striking out paragraph 10 thereof, may stand.


text:
    ALFRED FAGGIONI ET AL. v. ALEXANDER WEISS.
    Decided April 11, 1925.
    Negligence — Motor Vehicle Collision — Injury to Passenger of Defendant — Former Trial, Judgment for $15,000 was Awarded— Retried for Trial Errors, Judgment for $1,000 Awarded, From Which Plaintiff Appeals — Defendant Claims no Judgment Against Him Should Have Been Given — Ground for Support of Theory of Undue Sympathy of Jury for Injured Boy — Rule Made Absolute.
    On plaintiffs’ rule to- show canse.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the rule, Thomas Brmvn.

      Contra, McDermott, Bnright & Carpenter.

   Per Curiam.

The plaintiffs in this suit, father and son, brought the action to recover compensation for injuries received byr the son while riding in the automobile of the defendant, and for the expenses to which the father was put by reason of those injuries. The injuries received were so severe as to make necessary an amputation of the boy’s leg above the knee. The claim of the plaintiffs was- that the injuries resulted from a collision between the automobile of the defendant and a car driven by one Schonek, and that this collision was the result of the negligence of the defendant. At a former trial there was a finding of liability against the defendant and an award of damages to the boy of $15,000 and to the father of $3,000. The judgment entered on this first verdict was afterward reversed for trial errors. A retrial of the case resulted in a finding of liability as to the defendant and an award of damages of $1,000 in favor of the boy and $500 in favor of the father. The plaintiffs thereupon applied for and obtained this rule to show cause why these verdicts should not be set aside because of their gross, inadequacy.

■The result of this second trial, as was said by Chief Justice Beasley in Miller v. Delaware, Lackawanna and Western Railroad Co., 58 N. J. L. 428, cannot be explained on any ground that will harmonize it with justice or common sense. Counsel for the defendant argues that the present rule should be discharged, notwithstanding the inadequacy of the verdicts, for the reason that, under the evidence submitted a,t the trial, the jury should have found no liability existing on the part of the defendant for the injuries which are the subject-matter of the litigation.- Assuming that this argument rests upon a, sound basis (and the verdict itself affords, by necessary implication, strong ground for its support, for it is difficult to explain it on any other-theory), it demonstrates that the finding of the jury, instead of being a determination of the respective rights and obligations of the parties as exhibited by the proofs in thei case, was the result of the sympathy which the members of that body felt for the- unfortunate boy. Accepting the explanation of counsel for the defendant as sound, we have no. doubt that the present rule should be made absolute and the case sent back to be tried de novo before another jury, for, as was stated in the case above cited, a body of men, so- disregardful of the obligation resting upon them, should not be permitted, to settle the rights either of the plaintiff or the defendant. ■


text:
    FRANK SAUNDERS, PLAINTIFF-APPELLEE, v. JOHN ANTOLIK AND ANNA ANTOLIK, DEFENDANTS-APPELLANTS.
    Submitted February 5, 1925
    Decided April 10, 1925.
    Rent — Contract Between Plaintiff and Defendants After Death of' Plaintiff's Father, Who was the Landlord, Sustains Contention of Plaintiff of Amount of Rent Due.
    On appeal from the District Court of the third judicial district of the county of Morris.
    Before Justices Trenchard, Minturn and Lloyd.
    For the appellants, Elmer W. Romine.

    For the appellee, Joshua R. Salmon.

   Per Curiam.

This is the defendants’ appeal from a judgment of the District Court in favor of the plaintiff, the trial judge sitting without a jury.

The action was brought for rent. The evidence tended to show that prior to 1919, George Saunders, father of the plaintiff, was the owner of the premises occupied by the defendants and appellants; that rent was paid to George from 1915 until his death, about April 6th, 1919; that the defendants continued in the premises to September 17th, 1923, when this suit was instituted by the plaintiff, who' took a life estate in the premises in question under his father’s will, for the recovery of the balance of the rent alleged to be due. The rent claimed is at the rate of $8.50 a month, the defendants claiming that it should be $2.50 a, month only.

The trial judge found in favor of the plaintiff’s claim for $8.50 a month, and we think a critical examination of the exhibits and statements of accounts lend quite satisfactory support to the trial judge’s conclusion that the contract as between the plaintiff and these defendants, after the death of plaintiff’s father, was for $8.50 a month.

Plaintiff testified in effect that, after his father’s death, he went to- the premises and there made an arrangment with the defendants that the rent was to bo $8.50 a month, and was to he made up of two items, $2.50 for one floor and $6 for another floor. The statements and exhibits indicate that for a time the defendants recognized that as being the proper rent agreed upon, and made payments accordingly. This testimom', we think, justifies the finding of the trial judge in favor of the plaintiff, and that judgment will he affirmed, with costs.


author: Per Ouriaw.

text:
    JOHN ROCKWELL v. ERIE RAILROAD COMPANY ET AL.
    Decided April 11, 1925.
    Malicious Prosecution — Arrest of Plaintiff by Railroad Policeman — Plaintiff, a Common Trespasser on Railroad Property, was Arrested on Charge of Disorderly Conduct — Judgment Against Both Railroad Company and Policeman — Railroad Appeals on Ground of No Proof of Connection of Company With Arrest — Proof That Policeman's Superior Officer Policeman Ordered the Arrest Not Sufficient to Make the Company Responsible.
    On appeal from the. Hudson Circuit Court.
    Before Gummere. Ohiee Justice, and Justices Parker and Katzenbach.
    For the appellants, Edward A. Markley and John E. Selser.

    For the respondent, Alexander Simpson.

   Per Ouriaw.

This action was brought by the plaintiff against the Erie Eailroad Company and one Mulligan, a state railroad policeman, appointed by the governor at the request of the companv, and receiving compensation from it. The suit was for malicious prosecution, the basis of the charge being that the plaintiff was arrested in the yard of the railroad company by .Mulligan without legal authority and without good cause, and was taken before a magistrate to be tried on a charge of disorderly conduct, whereas, in fact, he was. a mere nominal trespasser upon the property of the railroad company. The trial resulted in a verdict in favor of the plaintiff against both defendants, and from the judgment entered thereon the railroad company appeals.

In order to hold a railroad company responsible for a malicious prosecution such as was shown to' exist in the present case, the burden rested upon the plaintiff to show that the state policeman, in making the arrest and lodging the complaint against the plaintiff, was acting under the instructions of the corporation, either expressed or implied. Our examination of the proofs fail to show the existence of this, fundamental act. An attempt was made on the part of the plaintiff to prove the giving of such instruction by evidence that Mulligan made the arrest in compliance with an order received from his superior officer, one Captain Klein, who, like himself, was a member of the state railroad police force. The evidence submitted, however, failed to prove the giving of any such instruction to Mulligan by Klein, either directly or through any subordinate member of the railroad police force authorized to speak for him. Moreover; proof of the giving of such instruction to Mulligan by his superior officer, without more, would not have sufficed to impose liability upon the railroad company for the unlawful arrest and subsequent prosecution of the plaintiff, for the reason that the case was barren of any evidence which would support the conclusion that Klein, in giving such an instruction (if we assume that it was given), was acting under authority conferred upon him for that purpose by the company. Tucker v. Erie Railroad Co., 69 N. J. L. 19; Taylor v. New York and Long Branch Railroad Co., 80 Id. 282.

Eor the reason indicated, the judgment under review will be reversed.


text:
    JULIUS BIELECKI v. MAX HERTZ LEATHER COMPANY.
    Decided April 11, 1925.
    Negligence — Window Cleaning — Plaintiff an Employe of Window Cleaning Contractor With Defendant — Allegation That Superintendent of Defendant was Present When His Contractor was Explaining Work to Plaintiff — No Responsibility Attached to Defendant on This Account' — No Responsibility on Defendant to Construct Building So That It May Not Be Dangerous to the Ignorant or Careless.
    On appeal from tlie Essex Circuit.
    Before Giimmere, Chief Justice, and Justices Parker and Katzenbach.
    Por the appellant, Jacob Schneider.

    For the respondent, Jacob L. Newman.

   Per Curiam.

The plaintiff in this case brought suit to recover compensation for injuries received by him through a fall while washing windows in the plant of the defendant company. The trial resulted in a verdict in favor of the plaintiff, and from the judgment entered thereon the defendant has appealed.

The situation disclosed by the proofs was this: One Margolies was engaged in the business of cleaning windows, under the name of the Newark Window Cleaning Company. The defendant had a contract with Mm, by the terms of which he periodically cleaned all of the windows in the defendant’s factory for a price fixed by the contract. Shortly before the time for one of the periodical cleanings had arrived, Margolies had employed the plaintiff as one of his operatives, and on the day for the work to be done took him. to the defendant’s factory to explain to him wha.t was required of him. The plaintiff was an expert window-cleaner according to. his own story. His testimony bearing upon the subject of the liability of the defendant company was that, having gone to> the latter’s factory with Ms employer, they had a conversation with a Mr. Haas, the defendant’s superintendent: tha,t the three of them made a trip through the factory, and that Margolies, in the presence of Haas, explained to Mm how the windows worked, some of them raising up and down, like ordinary house windows, and some of them doing, not only this, but also, turning on a pivot, but did not inform him that the windows from which he fell was of the latter character. The plaintiff testified that Haas did not take any part in this explanation or make any remark with relation to the work, nor was there anything to show that Haas paid any attention to the explanation to the plaintiff by the latter’s employer. Tliis was. the plaintiff’s case;, and we find nothing in it. to support a finding by the jury in favor of the plaintiff, and, for this reason, conclude that a verdict should have been directed in favor of the defendant. Even if it be assumed that Haas heard the instructions, and explanations given by Margolies to. the plaintiff, and, by his silence, is presumed to have coneuri’ed in them, that fact is immaterial, for it does not appear that it was any part of the duty of Haas, as the manager of. this company, to accompany Margolies and Ms employe on tliis tour of inspection and explanation, and, consequents, in doing so., he was a mere volunteer and not an agent of the defendant, and the latter is not answerable for his action or non-action.

It is suggested on the part of the respondent that, even if Haas’ alleged, neglect is not attributable to the appellant, nevertheless, the 'latter is responsible for the plaintiff’s, injuries, because of the fact'that the cleaning of the window from which the plaintiff fell was dangerous to. a person not understanding its operation. But the owner of property is not bound to construct his building in such a way that it will not be dangerous to people who are ignorant or careless, and the defendant, as owner, -had performed its full duty when it explained to Margolies, its co-contractor, the manner in which the various windows of its factory worked, and that they did this the uneontradicted testimony discloses.

For the reason indicated, the judgment under review will be reversed.


text:
    ANNA WILBUR ET UX. v. WALTER GOOD.
    Decided April 11, 1925.
    Landlord and Tenant — Eviction by Owner — Dispute Regarding Terms and Nature of Lease — Evidence to Support Finding of Court Below in Favor of Plaintiffs’ Contention — Verdict Not Excessive in View of Nature of Plaintiffs’ Business and Time of Year, the Height of Boarding Season.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Partcer and Katzenrach.
    For the rule, William Ulmer Brown, Jr.

      Oonlra, Patrick II. Harding.

   Per Curiam.

This action iras brought by the plaintiffs to recover damages for their xvrongful ejection by the defendant from a boarding-house, in Atlantic City, of which he was the owner, and which the plaintiffs claim they held under a verbal lease from him, which had not expired a.t the time of their dispossession, and all of the terms of which has been complied with by them. The trial resulted in a verdict in favor of the plaintiffs, the amount of damages awarded being the sum of $1,500.

It appeared from the testimony that the defendant had placed the premises in question in the hands, of a real estate agent, one Mrs. Leyrer, to be leased, and that she negotiated a lease with a man named Cooper, who. afterwards refused to enter into possession thereunder. The insistment of the defendant was that the plaintiffs held as under-tenants of this man Cooper, with his consent, and that the plaintiffs had defaulted in the payment of the rent at the times and in the amounts required by the terms of the Cooper lease. The claim of the plaintiffs has already been stated. The verdict of the jury, by necessary inference, inclnded a finding that the plaintiffs held under a verbal lease from the defendant; that they were not in default thereunder, and that thejr had been wrongfully dispossessed by the defendant.

The first contention submitted iu favor of making the present rule absolute is that the finding of the jury on the question just referred to was against the weight of the evidence. We think this contention is not justified by the proofs, and that, on the contrary, the weight of the evidence supports the conclusion that there was a verbal lease for the premises, as the plaintiffs aver, and that they were not in default thereunder.

The next contention is that the verdict was contrary to the charge of the court. We find nothing of merit in this point. The court left it to. the jury to determine the primary facts, telling them that, if the plaintiffs were subtenants of Cooper, they could not recover. They found that this was not the fact, and that finding determined the very question left to them by the court.

' Lastly, it is said that the verdict is excessive. We do not consider it so. The defendant brought the proceeding to' dispossess early in July, 1921, with a result that on the- 21st of that month the plaintiffs were ejected from the premises. The proofs show that the height of the season for hoarding-houses in Atlantic City is the month of August. The plaintiffs were deprived of the benefits of that month’s business. The proofs also show that at the time of the. eviction there were forty-six guests in the plaintiffs’ boarding-house, who were; all of them, put out upon the street, and there was evidence to support the conclusion that the profit to the plaintiffs per week for each guest was in the neighborhood of $6. On this basis, the probable loss to the plaintiffs was something more than $250 per week up to the 1st of September then next, if their boarding-house continued to be as well patronized in August as it has. been in July, and the léase at the time of their dispossession had several months yet to run.

We conclude that the rule to show cause should be discharged.


author: Pee Ctjbiam.

text:
    FELICE GRAZIOSO, PLAINTIFF-APPELLEE, v. SARAH HIRSCHFIELD AND EDWARD HIRSCHFIELD, DEFENDANTS-APPELLANTS.
    Submitted February 5, 1925
    Decided April 13, 1925.
    Contracts — Sale of Land by Tenants in Common, Each Signing Contract — Upon Breach Suit was Brought Only on One of the Tenants — Joint Debtors’ Acts Seem to Provide for Action Against Both — if Service Impossible, Return Should so Show.
    On appeal from the Second District Court of the city of Jersey City.
    Before Justices Teenchaed, Mintukn and Lloyd.
    Eor the appellants, Clarence Kelsey and McMaster & McMaster.

    Eor the appellee, Messano & Messano.

   Pee Ctjbiam.

Sarah Hirschfield and Flora Harris owned the property in question as tenants in common. Both owners, with their respective husbands., signed a, contract to. sell the same to the plaintiff, and the alleged breach of that contract is the basis of this suit.

Plaintiff brought this suit in the District Court against only one of such joint contractors, namely, Sarah Hirschffelcl (and her husband).

The plaintiff's demand and the contract in question attached thereto shows that the other joint contractor, Flora Harris (and her husband), at the time of signing the contract resided in Brooklyn, New York.

The defendant Sarah Hirschfield at once assumed the position, and, we think, rightly; that suit should have been begun against both tenants in common, because they were both parties of the first part to the written contract of sale annexed to and part of the plaintiff’s demand, and, in ample time for the amendment of the pleadings and summons, gave plaintiff written notice of such objection, and also-, at the commencement of the trial, pursuant to notice', moved to strike out the pleadings for the reason indicated; but the plaintiff disregarded the objection, and the trial judge overruled the motion, and the trial proceeded against the de-. fendant alone and resulted in a verdict and judgment for the plaintiff, from which judgment defendant appeals.

It seems quite clear to. us that this proceeding was erroneous. But not joining Flora Harris (and her husband), and in continuing in refusing to so join them, plaintiff committed an omission fatal to> his case.

The Obligations and Joint Debtors’ act (Comp. Stat., p. 3777, § 2) declares “that all persons jointly indebted to any other person or persons, upon any joint contract, 'obligation, matter or thing, for which a remed3r might be had at law against such debtors, in case all were taken by process issued •out of any court of this state, shall be answerable to their creditors separately for such debts — that is to say, such creditor or'creditors may issue process against such joint debtors, and in case any of such joint debtors shall be taken and brought into court by virtue of such process, such of them so taken and brought into court shall answer to the plaintiff or plaintiffs; * *

In the present case, as we have pointed out, plaintiff made no attempt to take Flora Harris (and her husband) by process, since no. process was issued directed to her or her husband, they not being parties to the suit. It is not to be assumed that they could not have been found within the jurisdiction and served with process.. We think that plaintiff should have joined Flora Harris (and her husband) as parties defendant, and then, had they still been living in Brooklyn, and not found to be served with process, the .return would have so. showed. In such case the rule laid down in Blessing v. McLinden, 81 N. J. L. 379, would apply, that “where one of two joint debtors resides within this jurisdiction, and the other is a non-resident and is not found to be served with process within this state., the plaintiff may have his. judgment against the resident debtor who. has. been served with process, omitting the non-resident.”

The judgment below will be reversed.


text:
    B. B. MILLER & COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLEE, v. WALTER WOOLSEY, DEFENDANT-APPELLANT.
    Submitted February 5, 1925
    Decided April 13, 1925.
    Contracts — Commissions on a Lease and Extensions of a Lease of Real Estate — The Agreement was for an Extension of Lease. — Objection That Witness Who Acted for Plaintiff, That He Had Not Shown His Authority, Unsound — Defendant Estopped as Against Corporation to Deny Witness’ Character and Authority.
    On appeal fro-m the District Court of the city of Elizabeth.
    Before Justices Teen chard, Mxntuen and Lloyd.
    For the appellant, Clarence D. Meyer. „
    For the appellee, Lea/citt & UTbrich.

   Per Curiam.

In this action B. B. Miller & Company, a corporation, demanded of the defendant $495, representing the balance claimed to be due the plaintiff from the defendant, Walter Woolsey, as commissions for securing a lease of defendant's real estate to Earl Nichols, and a so-called extension of that lease to Weiss & Epstein.

The case was tried before a jury and a judgment entered for $495 for the plaintiff.

The first ground of appeal is not argued by the appellant and will be deemed to be abandoned.

The second ground of appeal is as follows: “Because the plaintiff claimed commissions for an alleged extension of lease to Nichols with Weiss & Epstein, May 31st, 1923, $495, although the Nichols lease was then in force, and no other agreement made.”

We think the obvious answer to this is that the claim was for commissions for procuring a new lease for an extended term, and the appellant in his brief admits that the Nichols lease “was then surrendered and canceled.”

The third ground of appeal is as follows.: “Because B. B. Miller was permitted to testify, over objection, to an alleged transaction he claimed to1 have made on behalf of the plaintiff without showing his authority to represent the corporation therein.”

We think the answer to- this is that the defendant dealt with Mr. Miller, who was the president of the plaintiff corporation and who professed to act for it, and whose1 authority to .represent it was questioned by nobody but the defendant on the trial of this case, who merely objected to his testimony “unless the witness showed what authority he had to1 represent the plaintiff.” In such ease the defendant is estopped, as against the corporation, to deny his character and authority as such officer.

The fourth ground of appeal is as follows: “Because B. B. Miller was permitted to testify, over objection, to alleged transactions the corporation was said to have had with Dr. Woolsey, without producing the minutes of the company or authority from its board of directors.”

We think that this ground is ill-founded for the reason last expressed.

The fifth and last ground of appeal is as follows : “Because the court refused to nonsuit the plaintiff.”

Turning to the state of the case, we find that the defendant moved for a nonsuit because (1) “no contract was produced whereby Miller w'as authorized to act for Woolsey, and Miller did not bring, nor was. he the means of bringing, Weiss & Epstein to the defendant,” and (2) “that there was no written memorandum of the lease or of the agent’s authority.”

The assertion that there was no written memorandum of the lease is ill-founded in fact. The state of the case shows that the lease was in writing and was signed by the parties thereto'.

The contention that plaintiff should have been nonsuited, because Miller was not the means of bringing Weiss & Epstein to the defendant, is without merit, since there wras evidence from which the jury could, and evidently did, find to the contrary.

The contention that there should have been a nonsuit because no contract w'a.s produced whereby Miller was authorized to act for Woolsey, or, as otherwise stated, that, there wras no 'written memorandum of the agent’s authority, is without merit. The provision of section 10 of the statute of frauds, requiring that the authority for selling or exchanging lands be in writing, has no application to a contract for compensation for procuring a lease. Klie v. Hollstein, 120 Atl. Rep. 16.

The judgment below will be affirmed, with costs.


text:
    GEORGE C. HUBSCHMIDT, RELATOR, v. HUBBARD FERGUSON, RESPONDENT.
    Decided April 11, 1925.
    Municipalities — Officers—Chief of Fire Department Alleged Illegal Removal — Home Rule Act, Sec. 24 of Art. 37, Cited by Relator to Sustain His Contention Does Not Seem to Have That Effect.
    On quo warranto. On demurrer to plea.
    Eor the relator, Charles J. McCarthy.

    Eor the respondent, Howard Mackay.

   Memorandum by Mr- Justice Parker for information of counsel.

Relator claims to have been illegally ousted from the office of chief of the fire department of the borough of Glen Rock, in the county of Bergen. The matter has been submitted tome as a single justice by consent.

Respondent was appointed to succeed and supersede relator by virtue of an alleged ordinance said to- have been passed September 22d, 1924, and a copy of which is recited in the information to be annexed thereto- as schedule “A.”

The claim of relator is twofold — (1) that the ordinance- of September 22d, 1924, calls fo-r the incurring of indebtedness, and under section 24 of article 37 of the “Home Rule act” (Pamph. L. 1917, p. 461), and in view of a protest by taxpayers under that section, the ordinance was inoperative until validated by a'referendum' election; (2) that tire ordinance attempts to authorize the fixing of salaries by resolution in violation of section 1 of article 13. Id..350.

Assuming for present purposes that the contest is o-ver an office and not over a “position,” and assuming that, as respects the second branch of the attack, quo warranto and not certiorari is the proper remedy, I fail to find, on a, repeated careful reading of schedule “A,” that it contains one word either about incurring any indebtedness or making any expenditure, or provides for any salary in any manner whatever.

Oil the present record, therefore, defendant must prevail on the demurrer.


text:
    JOSEPH DE LEONARD, PLAINTIFF-APPELLANT, v. CAROLINE KAPANAS, DEFENDANT-RESPONDENT.
    Submitted January 6, 1925
    Decided April 13, 1925.
    Sale of Real Estate — Agent’s Commissions — Sale Not Consummated — Receipt Given for Money Paid and Agreement to Secure Mortgage, &c. — Agreement Loosely Drawn and Clearly Only Intended to Bridge Matters Over Until Contract Could be Effected — Judgment for Defendant Sustained.
    On appeal from the East Orange District Court.
    Before Justices Trek chard, Mintukn and Lloyd.
    For the appellant, Harry Green.

    For the respondent, Hugo Woerner.

   Per Curiam.

This is an appeal from the judgment of the East Orange District Court in favor of the defendant. The plaintiff, a real estate broker, brought an action to> recover the sum of $200 as commission for the sale of the defendant’s house in Newark. He produced a would-be purchaser who took from the owner a receipt for $50 as deposit on a purchase price of $12,200 on the property in question, the terms, to be cash at signing, $450; deposit, $50; cash at passing title, $9,700; first mortgage, building and loan, to' he procured by the purchaser; second mortgage, $2,000, three years, to he taken by the owner. In this receipt there was a provision that a commission of $200 should be paid for negotiating the sale.

It was contended by the defendant in the court below that the terms of the receipt implied that the amount of the first mortgage was yet to- be agreed upon between the parties, and until such agreement was effected the agreement of sale was not complete. The trial judge took this view of the case, and, we think, rightly. The paper itself is but a loosely-drawn receipt setting forth in meagre form the terms of sale. It is not to be supposed that the vendor was binding himself to an unlimited mortgage which should precede Ms own second mortgage of $2,000. It is conceivable that a mortgagor, either on Ms personal credit or by including other real estate, might obtain a mortgage much in excess of the total value of the property involved. It is hardly to be supposed that the parties intended to subject the vendor to such a possible condition without his consent.

■ The meagreness of the paper itself and its designation as a temporary receipt, together with the indefimte amount of the first mortgage, all indicate that this was intended only to bridge the matter over until the parties could effect a complete and formal agreement. Such agreement wras - never made, the parties being unable to agree upon the amount of the first mortgage.

Our conclusion is that the trial judge was right on the evidence produced in his finding for the1 defendant. The judgment will be affirmed.


text:
    MICHAEL DELUCCA, PETITIONER-RESPONDENT, v. BERNARD VEZZETTI, RESPONDENT-PROSECUTOR.
    Argued January 6, 1925
    Decided April 13, 1925.
    Workmen’s Compensation — Injury, Settlement and Release-Petition to Reopen on Ground That Disability Had Increased —Defense That Moneys Paid Were Not Compensable Under Act and That Petition was Not Filed Within Statutory Period —Case Considered and Contention Sustained.
    On certiorari.

    Before Justices Trenchard, Miutcen and Lloyd.
    For the respondent-prosecutor, McDermott, Enright & Carpenter.

    For the petitioner-respondent, Samuel Greenstone.

   Per Curiam.

On July 20th, 1920, Michael DeLucca was injured in the course of his employment, and, by agreement between himself and employer, received on April 10th, 1922, compensation in gross, and executed a release of all claims. On February 17th, 1924 (marked on the petition July 17th, 1924), a petition was filed under the Workmen’s Compensation law claiming that the disability had increased. To this an answer was filed setting up that the money’s paid on account of injuries were not compensable under the Compensation law, and that the petition was filed after the time for doing so bad expired.

The case was referred to a referee, who took proofs of the nature of the injuries and then alleged progressive character. At the inception of the proceedings the relator1 moved to dismiss the case because not brought within a year after the accident or last payment.

On the face of the petition it would appear that the' petition was filed out of time, and this motion should have been allowed unless it appears in the case that, as contended by the respondent, this was an application in a. case which was then pending and undetermined. Remarks of counsel and of the referee would indicate that an earlier period a formal petition seeking compensation had been filed and partially heard by the bureau, and that pending its disposition the parties had settled the case between themselves as above indicated. Atone stage of the trial of the present case it would appear, from remarks of court and counsel, that the earlier case had been disposed of by a discontinuance or “being closed.” At a- later stage the referee seems to have regarded the first case as still pending and subject to Ms control. The petition and answer present on their face the ordinary case of a proceeding de nova without reference to any pending cause. It was therefore incumbent on the respondent to establish that the original case was still pending, and that the present petition was a part of that ease, otherwise the limiting provisions of the act of 1911 and its supplements clearly barred the claimant from the right to be heard. These are that, in case an agreement for compensation hasi been made, the claimant shall file a petition witMn one year after failure of the employer to malee payment pursuant to the terms of the agreement, or, in case part of the compensation has been paid, then within one year after the last payment. Pamph. L. 1918, ch. 149, § 3. It is true the statute says, “unless a petition [is] filed under the provisions of section 4,” but this-, obviously, means a petition wMch has been filed and is still pending. Not only did the claimant fail to- establish' that such a petition was still pending, but from the statements of his- counsel and that of the referee, it is. not unreasonable to infer that whatever proceedings had been taken at an earlier stage had been terminated. Mr. Greenstone, counsel for and who alone could speak for and bind the claimant, said the “case [referring to the earlier proceeding] was discontinued. That was the consideration for that” (referring to- the settlement). The record of the first proceeding was. not offered in evidence in the present trial, nor is it brought up in the record before us. The case does not differ from the ordinary original petition filed too late.

' The judgment will be reversed.


author: Per Cüriam.

text:
    JOSEPH KURTZ, PLAINTIFF-RESPONDENT, v. ADOLPH BUSCH AND AMELIA BUSCH, DEFENDANTS-APPELLANTS.
    Argued January 6, 1925
    Decided April 13, 1925.
    Contracts — Memorandum Offered as the Terms of the Agreement, Provided That the Contract Should be Entered Into on a Specific Day — Agreement Tendered Differed From Memorandum — Court, Denying Contract Incomplete, Gave Judgment for the Plaintiff — Apparent That Memorandum was Merely a Tentative Agreement to Use as a Guide to the Formal Contract.
    On appeal from the Jersey City District Court.
    Before Justices Teen chard, Minttjrn and Lloyd.
    Eor the appellants, Atwood G. Wolf. '

    Eor the respondent, Ueyma/n, & Ileyman.

   Per Cüriam.

This is an appeal by the defendant from a judgment rendered in favor of the plaintiff by the First District Court of Jersey City. The action was to recover the sum of $500, deposit on an agreement between the plaintiff and defendant, which, among others, contained these provisions: “Said purchaser agrees to execute a contract of purchase on the following terms: price, $20,400; deposited herewith, $500; additional cash on signing* the contract to be drawn and submitted August 14th, 1924-, $500; * * * by second mortgage at six per cent, said mortgage to be reduced as follows, standing five years, interest every six months, $6,400, * * * contract will be drawn, executed and acknowledged by said parties August 14th, 1924.” The defendants .tendered an agreement calling for a first installment mortgage of $9,000 and a provision that certain encroachments on the public highway should be excepted. These conditions the plaintiff refused to accept, and, the defendants indicating a purpose to stand on them, the present action was brought.

The trial judge deeming the contract incomplete, and also that the title was encumbered by the street encroachments, gave judgment for the plaintiff. Appellants contend that the judgment was not justified upon either ground.

It is apparent that the memorandum was but a tentative agreement which should be a guide in the drawing of a formal contract. It will be noted that the formal contract is not only to be drawn but submitted. Why submit if not subject to rejection, if not satisfactory on the points still left open? The important point of the installment mortgage was left undetermined, and the purchaser may well have declined to accede to the reduction provided for in the agreement, and he certainly was not obliged to accept a substitution of a first mortgage fox the second as subject to the payment of installments.

In Wharton v. Stoutenburgh, 35 N. J. Eq., 273, Mr. Justice Depue, speaking for the Court of Errors and Appeals, says: “The fact that parties negotiating a contract contemplated that a formal agreement should he prepared and signed, is some evidence that they did not intend to bind themselves until the agreement was reduced to writing and signed.”

The encroachments also may well have been a ground of objection. They were not alone of steps, porches, awnings, and the like, but the building itself seems to have been erected with an overlap of the wall on Neptune avenue of one foot, two and three-fourths inches at the westerly point and at the easterly point four inches, and for the entire length of the wall of sixty-seven and sixty-seven hundredths feet it encroaches four inches. The encroachment on Old Bergen road at the north point was six inches, and runs to a point twenty-five feet south of the corner, and the entire building encroaches upon the public street. No authority has been shown that such encroachments are not substantial or that they do not affect the marketability of title, nor have we been referred to any statute which authorizes a municipality to> sanction such encroachment.

The defendants claim that, even though the plaintiff had the right to reject the contract as tendered, it was encumbent on him to offer a contract in accordance with the original memorandum. The difficulty with this is that the encroachments on the property were fundamentally irremovable, and, further, the attitude of the defendants was such as to indicate a purpose to agree to nothing beyond that which they had already tendered respecting the installment mortgage.

The judgment will be affirmed.


text:
    MAX SATTLER AND MOE SOFFERMAN, PLAINTIFFS-APPELLEES, v. NATHAN BERNZWEIG, DEFENDANT-APPELLANT.
    Submitted January 6, 1925
    Decided April 13, 1925.
    Sale of Real Estate — Broker’s Commission — Licensei—Defense That Defendant and His Property was in New York City, That a Broker’s License was Necessary There — Principa! Transaction in Bayonne — Brokers Had License in New Jersey, Not in New York — As Far as it Appears, This is thb Only Transaction in New York — Single Transaction Does Not Constitute Doing Business.
    On appeal from the Bayonne District Court.
    Before Justices. Trenchaed, Mintuen and Lloyd.
    Eor the appellees, Dembe & Dembe.

    Eor the appellant, Alexander Seclow.

   Pee Curiam.

This action was brought for the- balance of commissions on an exchange of real estate owned by the defendant in New York and real estate of a purchaser in Bayonne, New Jersey, and judgment was given for the plaintiffs in the Bayonne District Court. The agreement was in writing and no claim was made of its insufficiency.

The principal defense with which we are concerned is- that the defendant and his property are in New York City; that the laws of New York require a broker to have a license before he can act as such, and that the plaintiff did not have such license. The language of the applicable act in its pertinent provision is as follows:

“On and after the 1st day of October; 1922, no person, co-partnership or corporation shall engage in, or follow the business or occupation of, or hold himself or itself out or act temporarily or otherwise as a real estate broker or1 real estate salesman in a city or in a county adjoining a city having a population of one million or more without first procuring a license therefor as provided in this article.”

The trial judge received evidence that the written contract, made and executed in New York, was preceded by conversation and a verbal agreement on all its terms in Bayonne. He held that, in view of the fact that all the negotiations were in New Jersey, ihe act did not apply, and that, even if the act did apply, he could not take judicial notice ,of the fact that New York City has a population of one million or more.

Whether .these views were right or wrong, we think the judgment should not be disturbed. The act in New York, seems to contemplate the carrying on of business, and it is in much the same language as our own Brokers’ act of 1921, chapter 141, forbidding the carrying on.of business in this state without a license. The plaintiffs were licensed brokers in this state, but were not licensed in New York, nor was there any evidence that they were carrying on the business of real estate brokers or salesmen in that state. So far as appears, this was their only transaction. Eor the reasons stated in an opinion filed herewith in the case of Wensley v. Godby, No. 433 of the present term, we think the act was not ¿pplicable to the plaintiffs.

The judgment will be affirmed.


text:
    SOUSIE LEWIS, INDIVIDUALLY AND AS ASSIGNEE FOR HATTIE FOSS, PLAINTIFF-APPELLEE, v. MORRIS REALTY COMPANY, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted January 6, 1925
    Decided April 13, 1925.
    Sale of Real Estate — Agents' Commissions — Commission Contingent Upon Delivery of Deed — Sale Never Consummated— Agent Cannot Retain Commission.
    Oil appeal from the Orange District Court.
    Before Justices Trencuard, Minturn and Lloyd.
    For the appellee, Abraham M. IIerman.

    For the appellant, Anderson, Ingham & Massey.

   Per Curiam.

The Morris Realty Company, Incorporated, appeals from a judgment rendered against it in the Orange District Court. The suit was to recover part of a sum of money which Sousie Lewis, the plaintiff in the court below, had paid to the defendant on account of the purchase of premises No. 94 South Fourteenth street, Newark. The property was owned by Hattie Foss. The inception of the relation of the parties began with an agreement dated September 4th, 1923, between the plaintiff and the Morris Realty Company, Incorporated, whereby the Morris company was authorized by the plaintiff to purchase the premises in question on certain terms therein named. On the same day an addenda to this agreement was signed by the vendors wherein they agree to pay to the Morris company a commission “on the date of signing agreement of sale.” Subsequently, on September 8th, an agreement was entered into between Hattie Foss the owner as vendor, and Sousie Lewis as vendee, for the conveyance of the property on the terms specified in the defendant’s authority from Sousie Lewis. In -this agreement of sale the commission clause was modified to read that “said commission was to be paid upon delivery of deed.”

Of the sum paid to the Morris company $202.50 was paid over to the vendor, the Moms company retaining $297.50. The agreement of sale was not carried out, but was rescinded by the parties, and the sum received by.Mrs. Eoss returned to the plaintiff. By assignment, Hattie Eoss assigned all her right, title and interest in the $297.50 retained by the defendant to Sousie Lewis, the plaintiff. The trial judge, sitting without a jury, gave judgment for the plaintiff in the sum of $297.50'. We think this judgment should not be disturbed. It will be observed that a commission was not to be paid except upon delivery of the deed. The situation was that tire defendant had received the sum of $500 on account of the purchase-money ofi the property as the agent of the owner. Upon receipt of -this sum it was. the duty of the Morris company to pay the' amount over to' its principal, Mrs. Eoss. Not having done so, the right to. the payment became vested in Mrs. Eoss, and could lawfully be assigned to the plaintiff. Being thus assigned, it was. incumbent on the Morris company to establish its right to retain the fund in its hands as.against Mrs. Eoss. This, ire think,-the trial judge was justified in holding that it failed to do under the facts of the case. The contingency on which tire- commission was to' become payable never arrived. In the case of Leschziner v. Bauman, 83 N. J. L. 743, it was held by the Court of Errors and Appeals that—

“A contract with real estate brokers for the payment of a commission for the sale of certain real estate, to be paid 'on the day of passing titles or July 15th/ is. a contract based upon the contingency of the'sale of the property and the passing of title to the purchaser procured by the agents. In the absence of proof of the fulfillment of that contingency a direction of a verdict for the defendant was held to be correct.”

The judgment will be affirmed.


author: Pet? Cubiam.

text:
    WILLIAM J. SMITH, PLAINTIFF-APPELLEE, v. ALOIS SPAETH, JR., DEFENDANT-APPELLANT.
    Submitted January 6, 1925
    Decided April 13, 1925.
    Contracts — Undertakers—Claim Against Brother of Deceased— Evidence of Existence of Contract — Judgment in District Court — Payment During Suit of a Part of the Claim by the Estate of the Deceased — Such Payment Must be Deducted From $500, the Limit of Claims in District Courts, Not From $585.10, the Actual Amount of Claims.
    On appeal from the Orange District Court.
    Before Justices Tbenchabd, Mtntijbn and Lloyd.
    Eor the appellee, William Tyaclce.

    Eor the appellant, Ilaines & Glumalis.

   Pet? Cubiam.

Tins is an appeal from a judgment in the Orange District Court in favor of the plaintiff hi the sum of $398.37. The plaintiff was an undertaker, and, according to- his evidence, was engaged by the defendant to furnish the services and supplies for the funeral of the defendant’s brother. A book account of the claim was admitted in evidence and admitted to be correct as to amount. The book account purported to be a charge against the estate of the deceased brother. The plaintiff, however, testified that he made out an estimate of the cost of the funeral an'd that the defendant had orally promised to- pay for the same, which he had refused to do. The evidence- of the defendant tended to show that there was no contract between the plaintiff and the defendant, but that the defendant was acting for his sister-in-law, the widow of the deceased brother. It was also- conclusively shown that the plaintiff had, after the present suit was begun, received a dividend of $187.73 from the- estate of the. deceased brother on account of the claim. ,

The appellant contends that on the whole of the proofs credit was given to the dead man’s estate and not to the defendant, and that, consequently, the judge should have rendered a verdict for the defendant, and that, in any event, the dividend of $187.73 should have been credited on the $500 claimed in this action instead of on the- original claim. While the estate of the deceased brother might be liable for the funeral expenses^ this did not preclude the plaintiff*from making an original agreement with the defendant respecting them, and there- is evidence- to show that he did. The appellant also contends under the case of Weill v. Jacoby, 72 N. J. L. 273, that the suit, being on a book account, does not sufficiently apprise the defendant of a claim under a special contract. This, perhaps, would be true under the state of demand originally filed. It was followed, however, by an amended state of demand, in which the claim is for services rendered to the defendant by the plaintiff at the defendant’s request, and this objection is thereby overcome-. We think, however, that the objection that the credit was- improperly applied is well founded/ In' order to bring the original claim of $585.10 within the jurisdiction of the District Court, the plaintiff waived all above the sum of $500. Section 33 of the District Court act (Q. P. 1964) gives the plaintiff the right to waive- any e-xcess, but also declares that a “recovery shall be a bar to the recovery of the residue of such debt, balance or other matter in dispute in any court whatsoever.”- When plaintiff began the present action his claim, by reason of the waiver, stood for $500 and no more. When, shortly thereafter1, he received payment through the Orphans Court of $187.73, it necessarily was a credit on his then existing claim.

If the plaintiff will waive the excess over $313.27 the judgment will be affirmed in that amount, without costs, on this appeal; otherwise it will be reversed, and a new trial awarded as to damages alone. Philbrick v. Mundy, 93 N. J. L. 43; approved and followed, E. Clemens Horst Co. v. Peter Breidt City Brewery, 94 Id. 230.