text:
    JOHN WARD, ADMINISTRATOR AD PROSEQUENDUM OF ESTATE OF STEPHEN WARD, DECEASED, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Submitted May 17, 1930
    Decided November 17, 1930.

      Before Justices Parker, Campbell and Boduste.
    For the rule, James J. Higgins.

      Contra, Louis Auerlacher, Jr.

   Pee Curiam.

The son of plaintiff was struck by a bus of the defendant which was proceeding southerly along Grant avenue in Kearny. The boy was crossing the highway. The injuries he received caused his death. The plaintiff has a verdict for $5,000 which the defendant seeks to set aside for three reasons.

1. Because the trial court erred in refusing to nonsuit upon the ground that there was no proof of negligence.

But in this we find there was no error because there were facts and circumstances, which, if believed, established negligence on the part of the driver of the bus.

2. Because the verdict is against the weight of the evidence.

Upon this point a rather close question is presented but we find it does not reach that point and créate a situation permitting us to say that the jury was not correct in its weighing of the proofs thus warranting us in setting aside the verdict.

3. That the verdict is excessive.

In eases of this character great difficulties are presented to both the jury and this court. Neither has any certain or exact basis upon which to compute the damages.

Here the boy was five years and ten months of age at the time of his death. He was endowed mentally and physically as the average boy of his age. Considering all the probabilities surrounding him and reasonably expected to control his future the assessment of damage for his death under the Death act must be largely speculative and based upon many conjectures.

Under the circumstances the best we can do is to measure such a verdict by a standard, substantial or otherwise, of verdicts that have been approved in cases of a like character. These seem to show an amount ranging around $3,000.

Upon this basis we conclude the verdict of $5,000 is excessive and should be reduced to $3,000.

Therefore if the plaintiff will agree to a reduction of the verdict to the sum of $3,000, within twenty days from the entry of judgment hereunder, the rule will be discharged, otherwise, under the circumstances it will be made absolute I . and a venire'de novo will issue for a retrial of all the issues.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ANDREW SELAK, PETITIONER-RESPONDENT, v. MURRAY RUBBER COMPANY AND AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, RESPONDENTS-PROSECUTORS.
    Submitted May 17, 1930
    Decided November 17, 1930.
    Before Justices Parker, Campbell and Bodine.
    Eor the petitioner-respondent, Donald R. Bryant.

    Por the respondents-prosecutors, Ralph N. Kellam.

   Per Curiam.

Andrew Selak, on September 17th, 1928, while in the employ of the Murray Rubber Company, suffered an injury to his left forearm and was awarded compensation therefor. On February 4th, 1929, he returned to work, and on October 12th, 1929, while on his way home slipped and fell in the public highway and broke his left forearm in the same place where it had previously been broken. The workmen’s compensation commission, upon application, awarded him compensation for the subsequent injury, reopening the original proceeding for that purpose. Herbert v. Newark Hardware and Plumbing Co., 151 Atl. Rep. 502.

The commissioner found as follows: “In the present case, the testimony is positive, that boney union was far from complete, and that because of this weakness, due to the primary industrial accident, a condition existed which caused a secondary event to prolong the disability. The medical testimony was definite, that the original fracture is responsible for the present condition.”

The testimony of the only physician called supports this conclusion. The doctor testified that the injury was due to a three-fold condition: the earlier fracture; the failure to form a proper union and the subsequent injury. He testified further that had the bones firmly grown together the second accident would not have caused a fracture—the pre-existing condition causing the arm to be weakened.

The proximate cause of the injury was properly for the commissioner, and the testimony adduced supported his findings. If a reasonably prudent person innocently aggravates the harmful effect of the original injury the original wrongful cause continues to the end, and accomplishes the final result. Batton v. Public Service Corp., 75 N. J. L. 857, 860; Kelly v. Lembeck & Betz Kagle Brewing Co., 86 Id. 471.

The judgment below is affirmed.


author: Pee Cueiam.

text:
    DANIEL L. WILLIAMS AND LILLIAN R. WILLIAMS, PLAINTIFFS-RESPONDENTS, v. WILLIAM CURCHIN, Jr., AND S. S. THOMPSON & COMPANY, INCORPORATED, A CORPORATION, JOINTLY AND IN THE ALTERNATIVE, DEFENDANTS-APPELLANTS.
    Submitted May 17, 1930
    Decided November 14, 1930.
    Before Justices Paekee, Campbell and Bodine.
    For the defendants-appellants, Applegate, Stevens, Foster & Reussille.

    Por the plaintiffs-respondents, John R. Phillips, Jr.

   Pee Cueiam.

This ease was tried at the Monmouth Circuit. The plaintiff Lillian R. Williams had judgment for $10,146. A verdict of no cause of action was directed against her husband, Daniel L. Williams. The case grew out of a crossroads accident, Daniel L. Williams was driving a Packard ear, in which his wife was riding easterly on Squankum road. The defendant William Curehin, employed by S. S. Thompson & Company, was driving in a northerly direction on the New Bedford road which crossed the Squankum road. Williams was familiar with the road on which he was traveling at twenty-five to thirty miles an hour. Although he was approaching an intersection his vision to the right was obscured by shrubs and bushes, he at no time applied either the emergency or foot brake. There is testimony that he turned to the left to get out of the way of Curchin’s car. But at all events, his wife was either thrown out by the impact, or by the way in which he pulled his car around to avoid the collision.

The defendants’ sole point is that the trial judge refused the following request: “If you find that the negligence of Mrs. Williams’ husband was the proximate cause of her injuries she cannot recover.” This request is somewhat similar to a request in Garino v. Walker, 147 Atl. Rep. 779. The distinction between the two cases is in the whole charge as given. In the present case, the charge as a whole indicates very clearly the issue submitted to the jury. The trial court charged substantially as requested, saying in part: “Whether Mrs. Williams can recover is submitted to you to determine as a fact under the rules of law that I will give you. And therefore I may say that she carries the burden of satisfying you under a fair preponderance of the proof that Curchin was negligent, with the direct and proximate result that a collision occurred and she was injured. * * *

“And therefore, if she has established to your satisfaction under the fair preponderance of the proof that Curchin was negligent, that is to say, that he failed to exercise the care of an ordinarily and reasonably prudent person, the contributory negligence of her husband would not be chargeable or imputable to her and she can recover against the defendants.”

It seems to us from the foregoing that the jury must have understood that there could be a recovery only if the proofs established that the proximate cause of the injury was Cur-chin’s negligence.

The judgment below is affirmed.


text:
    BENJAMIN HARRIS, INDIVIDUALLY AND AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF LENA M. HARRIS, DECEASED, PLAINTIFF, v. JOHN A. JOHNSON, DEFENDANT.
    Submitted May term, 1930
    Decided November 17, 1930.
    Before Justices Parker, Campbell and Bodine.
    For the rule, William, Hartshorne.

      Contra, Fred M. Burlew.

   Per Curiam.

The wife of the plaintiff was killed on February 13th, 1927, while riding in the automobile of the defendant. Plaintiff instituted suit against the defendant and such action was tried November 29th, 1927, resulting in a verdict against the defendant for six cents. Under a rule to show cause obtained by the plaintiff this court set the verdict aside and directed a new trial as to damages only. Harris v. Johnson, 6 N. J. Mis. R. 700.

On February 11th, 1930, the cause was retried, resulting in a verdict of $500 against the defendant.

The present rule is held by the defendant who seeks to set aside the verdict assigning and arguing three reasons, viz.:

1. Error in the charge of the court in withdrawing from the jury consideration of nominal damages.

Under the facts and circumstances established we are unable to find prejudicial error in the instruction complained of.

2. The verdict is against the weight of the evidence.

This we find not to be so.

3. Error in permitting an actuary to testify as to capital sums necessary to produce $200 and $100 per year during the life expectancy of a woman thirty-one years of age.

We find no substance in this ground.

The rule will be discharged, with costs.


text:
    IN THE MATTER OF THE APPEAL OF JOSEPHINE MILLS, FROM THE ASSESSMENT LEVIED AGAINST HER TRANSFER IN THE ESTATE OF JOHN SODEN, DECEASED.
    Submitted May 16, 1930
    Decided November 17, 1930.
    Before Justices Parker, Campbell and Bodine.
    Por the prosecutor, William A. Stevens.

    For the defendant, Paul IF. Ewing.

   Per Curiam.

John Soden, by his will dated May 25th, 1925, and probated March 2d, 1928, left his estate amounting to a few thousand dollars to various relatives and friends. Three shares of building and loan stock were bequeathed to Josephine .Mills. For twelve years prior to his death, he had lived with her and she had provided him with board, lodging and care.

Mrs. Mills, after the probate oí Soden’s will, filed a bill in chancery for the specific performance of a contract made to devise to her the entire estate in consideration of her providing testator during the remainder of his life with a home and care. The court decreed specific performance of such contract and reformed the will accordingly.

A transfer inheritance fax amounting to $301.06 was levied and assessed by the comptroller on the theory that Mrs. Mills took under and by virtue of the will, and that hence there was a transfer of property .which was taxable in accordance with the Transfer Inheritance Tax act of this state.

In an unreported memorandum, Yice-Ordinary Buchanan held otherwise, saying: “On decedent’s death there was a transfer of his property by will, not to Mrs. Mills, but to the ■defendants in the equity suit; and Mrs. Mills received title by conveyance from those defendants pursuant to decree that they should so convey. It is true that the decree recites that "complaint is entitled to specific performance of the agreement’ [and that we are assuming that the agreement was an agreement to leave by will], but the decretal portion of the decree does hot order that the agreement be specifically performd.”

Mr. Justice Parker’s headnote in the case of Bente v. Bugbee, 103 N. J. L. 608, is as follows: ""Appellant, at the request of one S., now deceased, agreed to take him into her home and to provide him with board, lodging, care, &c., in consideration of a legacy of $15,000 to appellant, to be contained in his will. Appellant performed her part of the agreement for two and one-half years, when S. died, leaving a will which had contained the legacy but from which it had been ex-scinded. She made claim on the estate, which was enforced by a suit at law resulting in a judgment in her favor for the amount named. Held, under the Succession Tax act, that this recovery was not a transfer by will, or by the intestate, laws, and not being within any other provision of the statute, was not taxable thereunder.”

It is apparent that chancery imposed a trust upon the beneficiaries under the will in order that Mrs. Mills might secure that which, in equity and good conscience, was hers. She takes, in spite of the will and the intestate laws of this state, under a trust not created by will.

The decree setting aside the transfer inheritance tax assessment is affirmed.


text:
    EDWARD ZECOURT, PLAINTIFF, v. GRAY, INCORPORATED, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Submitted May 16, 1930
    Decided November 18, 1930.
    Before Justices Paekek, Campbell and Bodine.
    Eor the plaintiff, Francis A. Gordon.

    For the defendant, William, K. Flanagan.

   Pee Cueiam.

The suit is for damages for personal injuries arising out of an accident at the westerly corner of Newark and Fair-mount avenues, in Elizabeth. The evidence is somewhat in conflict as to whether it was the northwest corner or the southwest corner; and this is a feature of some little importance in the case. The plaintiff, a boss painter, thirty-one years of age, undertook to cross Newark avenue from the east to the west side, and claims to have stopped for a moment at the westerly rail of the two car tracks and looked to- the north and to have seen the dimmed lights of an automobile some distance away. According to his testimony, he then proceeded toward the curb and suddenly the lights flashed full and he was struck and injured. There is the usual contradiction of testimony with regard to the speed of the automobile, which was a large heavy hearse containing a dead body in the casket and outer box, the whole weighing about five thousand eight hundred pounds. The testimony for the defendant is to the effect that the driver saw the plaintiff in the act of crossing when some distance away and slowed down to such an extent that he was obliged to shift gears and then, as the plaintiff appeared to be waiting for the hearse to pass, the driver speeded up at the same time that the plaintiff undertook to cross the street and the collision occurred in consequence of this situation. All of the testimony is in accord that the plaintiff was picked up about six feet south of the southerly crosswalk. If he was struck on the northerly crosswalk, he must have been struck with great violence to be thrown across the street, or else must have been carried on the automobile across the street and there dropped. ' This was one of the questions that the jury had to resolve from the evidence, and it is an element to be considered in determining whether the verdict was against the weight of evidence.

We have considered the testimony with care and find ourselves unable to hold with respect to the matter of liability that the verdict should be set aside. With respect to the slowing down of the automobile, and the stopping and starting of the plaintiff, the case is quite similar in its circumstances to Van Ness v. North Jersey Street Railway Co., 77 N. J. L. 551. That case was decided on a writ of error, so that the weight of evidence was not in issue; but the questions of negligence and contributory negligence were clearly for the jury under the ruling of that ease, and in this ease we think the jury did not disregard its duty in finding that the driver of the defendant was negligent, and in failing to find that negligence of the plaintiff contributed to his injury. ■So far, therefore, as relates to liability, the verdict will not be disturbed.

On the question of damages we think that the verdict was excessive. The amount was $10,000. The injuries to the plaintiff, while somewhat severe, did not result in any serious permanent disability except, perhaps, the loss of some of his teeth. At the time of the trial he appeared to be attending to his work about as usual.

As a result of our examination we conclude that a verdict for more than $7,000 cannot be supported, and therefore if plaintiff will consent to a reduction of the verdict to that amount the rule will be discharged, otherwise it will be made ' absolute.


text:
    WILLIAM BERKOWITZ, PROSECUTOR, v. THE FIRST DISTRICT COURT OF JERSEY CITY, AUGUST ZIEGENER, JUDGE OF SAID COURT, DEFENDANTS.
    Argued October 8, 1930
    November 18, 1930.
    Before Justices Campbell and Bobine.
    Por the prosecutor, Lionel P. Kristeller.

    For the defendants, McCarthy & McTague.

   Per Curiam.

The writ brings up an order made in the First District Court of Jersey City directing the defendant to pay to the plaintiff the sum of $30 each and every week out of his earnings beginning June 7th, 1930, and each and every week thereafter until a judgment in the sum of $316.30, together with interest and costs is fully paid. The order was entered pursuant to a supplement to the District Court act (Pamph. L. 1924, p. 431, (italics ours), as follows:

“Hereafter when a judgment has been recovered in any District Court of this state and where an execution issued upon said judgment has been returned wholly or partly unsatisfied and where any wages, debts, earnings, salary, income from trust funds, or profits are due and owing to the judgment debtor, or shall thereafter become due and owing to him to the amount of eighteen dollars or more per week, the judgment creditor may apply to the court in which said judgment was recovered, without notice to the judgment debtor and upon satisfactory proofs of such facts by affidavits or otherwise, the court must grant an order directing that an execution issue against the wages, debts, earnings, salary, income from trust funds, or profits of said judgment debtor, and on presentation of such execution by the officers to whom delivered for collection to the person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing, or thereafter become due and owing, to the judgment debtor, said execution shall become a lien and a continuing levy upon the wages, debts, earnings, salary, income from trust funds or profits due or to become due to said judgment debtor to the amount specified therein, which shall not exceed ten per centum unless the income of said debtor shall exceed the sum of one thousand dollars per annum, in which case the judge may order a larger percentage, and said levy shall become a continuing levy until said execution and the expenses are fully satisfied and paid or until modified as hereinafter provided, but only one execution against the wages, debts, earnings, salary, income from trust funds or profits of said judgment debtor shall be satisfied at one time, and where more than one execution has been issued or shall be issued pursuant to the provisions of this section against the same judgment debtor they shall be satisfied in the order of priority in which such executions are presented to the person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing.”

It appeared that the defendant was in receipt of an annual salary of $16,800. The Supreme Court had previously entered an order directing his employers to pay ten per cent, of this salary, as earned, upon a judgment of the Elizabethport Banking Company in the sum of $30,000. It is submitted to us that because of this order the District Court was without jurisdiction. We do not so view the statute. Obviously, there may be satisfaction of only one judgment at a time in District Court executions, but the statute was not designed to prevent execution for wages because there had been a previous execution in another court. The limitation upon the general language of the statute directing the issuance of the execution is confined to execution in a District Court, and provides that judgments there entered shall be satisfied out of salaries one at a time. The defendant had a salary of $1,260 a month, free of the Elizabethport Banking Company levy. The District Court certainly could levy upon this even though it could not satisfy several District Court executions at the same time.

The order under review is affirmed.


text:
    ALFRED SHIPLEY, PLAINTIFF, v. REID ICE CREAM CORPORATION, AND ABRAHAM RATNER, DEFENDANTS.
    Submitted May 16, 1930
    Decided November 18, 1930.
    Before Justices Paekee, Campbell and Bodine.
    Eor the plaintiff, Edward A. Markley.

    Eor the defendant corporation, Be Voe Tomlinson.

    For the defendant Ratner, Samuel D. Williams.

   Pee Cueiam.

Plaintiff sustained personal injuries by reason of the collision of a south-bound Chevrolet car in which he was riding as a passenger, and which was driven by his employer, the defendant Ratner, and an ice ‘cream truck west-bound and just completing its crossing of the Hudson County Boulevard in Jersey City, which was driven by a -servant of the defendant corporation. He recovered a verdict of $25,000 against both defendants and that verdict is attacked by the ice cream corporation 'as being against the weight of evidence, and also as excessive, and by the defendant Ratner only on the latter ground.

With respect to the circumstances of the accident, the testimony presents the usual contradictory evidence of witnesses, and the main question to be determined is whether upon this evidence the verdict appears to be so clearly against the weight of evidence as to meet the tests laid down in the cases with respect to setting it aside. We conclude that .the verdict should not be set aside as against the weight of evidence. So far as the plaintiff was concerned, there is no intimation that he personally was guilty of any contributory negligence, and the contributory negligence of Ratner, if any, is not a factor in the case under well settled rules. Hence, the principal question is whether the jury was justified in concluding that the ice cream truck was negligently driven by the servant of the defendant, and that that negligence was the proximate cause of the accident. After a careful examination of the testimony, we are clearly of opinion that the jury was fully justified in so finding, and it is perhaps sufficient to say that its finding could very properly be predicated upon the testimony of the defendants’ driver and of the man accompanying him with respect to the observation made by them prior to the collision. On the question of liability, therefore, we think the verdict was clearly right.

With respect to the amount of damages, we reach a somewhat different result. The verdict was for $25,000, and there can be little question but that the plaintiff was quite severely injured; but on a full consideration of the testimony as to the plaintiff’s age, his physical condition before the accident, which was by no means perfect, and the extent of the injury due to the accident itself, we are of opinion that the verdict was excessive. Plaintiff’s counsel seems to argue in his brief that plaintiff was forty-one years of age at the time of the .accident; but the plaintiff himself testified that he had been a sheet metal worker since 1889. The accident occurred in 1927 which would be thirty-eight years later. The plaintiff did not state his age in his testimony, but it would seem that he must have been in the neighborhood of sixty at the time of the accident. Our conclusion, from a careful examination of the testimony and briefs, is that a verdict in excess of $15,000 is not fairly justified. If the plaintiff will consent to a reduction of the verdict to that amount the rule will be discharged, otherwise it will be made absolute.


author: Pee Cukiam.

text:
    HARRY HODES, PLAINTIFF-APPELLANT, v. FRANK MOONEY ET. AL., DEFENDANTS-RESPONDENTS.
    Submitted May 16, 1930
    Decided November 19, 1930.
    Before Justices Case, Daly and Donges.
    Eor the appellant, Ilodes & Ilodes, Herbert A. Kuvin and Harry Green.

    Eor the respondents, Berlin & Berlin.

   Pee Cukiam.

This appeal brings up a judgment for defendant Erank Mooney in a replevin proceeding in the Second District Court of the city of Newark upon the following facts: On December 8th, 1927, one Kliner executed to one Gussie Labowitch- and Prank Mooney a chattel mortgage, which on March 13th,. 1929, was canceled of record. On March 12th, 1929, Kliner executed another chattel mortgage to Gussie Labowitch,. alone, on the same chattels as scheduled in the mortgage of' December 8th, 1927. This chattel mortgage contained,, amongst other things, a provision as follows:

“The entire stock of stationery, candy, confections and. cigars; all wall cases; one cigar case; two candy cases;, one marble soda fountain and all fixtures appertaining to the fountain; three tables, nine chairs; all glass, fruit, bowls; spoons and all other utensils used in and about the premises in its operation; and all other goods and fixtures to-be acquired in the future; and also lease now held by said Abraham Morris Kliner covering said premises.”

On March 16th, 1929, four days after the execution of the chattel mortgage, Kliner executed a conditional sales agreement with plaintiff for the purchase of a new soda fountain, which agreement contained the following provision:

“And it is expressly understood that the said Harry Hodes neither parts with, nor do the undersigned acquire any title to the said apparatus until the said installments or payments represented by said note or several notes are fully paid.”

The soda fountain and accessories were delivered to the premises of Kliner on April 15th, 1929. On Pebruary 5th, 1930, Kliner defaulted under the terms and provisions of the conditional sales agreement by failing to pay one of a series of notes. On Pebruary 24th, 1930, Gussie Labowitch foreclosed her chattel mortgage and held a sale thereunder, and at such sale the chattels in the premises mentioned were sold by the constable to the defendant-respondent Prank Mooney who received from the constable a bill of sale containing this clause :

“Being only the right, title and interest of Abraham Morris Kliner. Said right, title and interest being hereby conveyed by virtue of the foreclosure of a certain chattel mort.gage made by Abraham Morris Kliner to Gussie Labowitch bearing date March 12th, 1929, and recorded in the register’s office of Essex county on March 12th, 1929, in Book 486 of chattel mortgages on pages 148, 150.”

On February 25th, one day after the sale, plaintiff-appellant made a demand upon Frank Mooney for the fountain ■and appurtenances. On February 26th, 1930, the conditional sales agreement was hied in the Essex county register’s office. It further appeared that the soda fountain which was in the premises at the time of the execution of the chattel mortgage and of the sales agreement was still in the premises but not in use, having been replaced by the one now in suit.

The sole question is whether Mooney acquired any right in the soda fountain by the sale under the chattel mortgage superior to the rights of the conditional vendor.

It will be noted that the mortgage preceded the conditional sale and that the provision of the mortgage with reference to the future covered only “after acquired property.” Upon reasoning as well as authority, it seems clear that the property was never acquired by the mortgagor and, therefore, the lien of the mortgage never attached to such property. Acquisition of title was a condition precedent to its becoming subject to the mortgage. General Electric Co. v. Transit Equipment Co., 57 N. J. Eq. 460 (at p. 470); Hudson Savings Institution v. Carr-Curran Paper Mills Co., 58 N. J. Eq. 59, 70.

The rights of a purchaser at a sale under a chattel mortgage cannot be superior to those of the mortgagee.

The judgment is reversed, and as the whole record is before us, judgment for the appellant, plaintiff, and against the respondents may be entered in this court, with costs. Cum. Supp. Comp. Stat., p. 983, § 213a; National Bank v. Berrall, 70 N. J. L. 757; Shuster v. Arena, 83 Id. 79; Kendal v. Guterl, 84 Id. 533; Hurey v. Leavitt, 93 Id. 299.


author: Pee Curiam.

text:
    NEW JERSEY BELL TELEPHONE COMPANY, PLAINTIFF-APPELLANT, v. PHILTON S. KRAMER, DEFENDANT-RESPONDENT.
    Submitted May 16, 1930
    Decided November 19, 1930.
    Before Justices Case, Daly and Donges.
    For the appellant, Smith & Slingerland.

    For the respondent, Michael J. Murphy and Arthur 0. Dunn.

   Pee Curiam.

Plaintiff below sued to recover the cost of repairing certain cables laid in conduits in a public street in the city of Paterson severed by defendant’s steam shovel in the course of street construction work being performed by him for the county of Passaic. The state of demand alleges that the damage resulted from the “careless, unskillful and negligent manner” of doing the work.

The trial judge found for the defendant.

Appellant writes down nine grounds of appeal. These grounds of appeal relate to the admission of testimony and the determination of the questions of negligence and contributory negligence.

1. As above set out, the state oí demand alleged that the work was done in a “careless, unskillful and negligent manner.” The plaintiff below introduced no testimony upon this point. There was nothing to show that the physical work was not done in a proper and careful manner. The insistence of appellant at the trial was that the defendant below failed to ascertain the location of appellant’s conduit and that such failure was negligence. This allegation is not within the issue as framed. But if it were within the state of demand, we are of opinion that when the county authorities contracted with respondent to excavate to a depth of seventeen inches (page 23) and advised him that it was proper for him to proceed with the work (page 22), he had a right to assume, in the absence of actual notice or knowledge, that he might safely proceed with the work. As a matter of fact the excavation had been made to a depth of only five or six inches (page 23).

The appellant claims that the respondent had actual knowledge of the existence of its conduit in the street, and refers us to the following question and answer as evidence of this:.

“Q. Did you inquire at the county engineer’s office as to the utilities’ underground construction at this point? A. Not any particular utility. I was advised that it was all right to proceed with the work, that the utilities had all been notified.”

This cannot be said to be evidence of actual knowledge, and in fact, in answer to interrogatory 16, answered by defendant and introduced in evidence by plaintiff, the defendant denied knowledge of the existence of the appellant’s conduit in the street. We conclude, therefore, that there was no evidence of knowledge sufficient to charge the defendant with the duty of communicating with the plaintiff, and that, in the absence of such evidence, the defendant, engaged in -work under contract for a public agency, was justified in relying upon assurances of that agency that it was all right for him to commence work.

Appellant cities some New York cases in which it was held that a trespass was committed when a person disturbed the property of a public utility laid in a public highway by public permission in order to install some private property for his own benefit. We are not dealing with a case of tresspass, but with a case of negligence in the manner of performing public work under public authority.

2. There was no error in the admission of the letter of the assistant county engineer directed to New York Telephone Company, advising it that it was the intention to improve the roadway with a permanent pavement. Appellant’s Exhibit 1, as of October 2d, 1902, shows that the installation was made by New York and New Jersey Telephone Company. It does not appear that the county authorities were ever advised of a change of ownership, if any there was. They might properly assume that notice to the party making the installation was notice to the owner.

3. The reasons above set forth render it unnecessary to consider whether the failure of appellant to notify respondent' of the location of its property or to take steps to protect same was negligence.

The judgment below is affirmed, with costs.


text:
    MOE E. BROUZELL, IMPLEADED, ETC., PLAINTIFF, v. WILLIAM H. T. REEVES AND JOHN REEVES, DEFENDANTS.
    Submitted May 16, 1930
    Decided November 18, 1930.
    Before Justices Parker, Campbell and Bodine.

      Eor the plaintiff, Julius J. Golden.

    Eor the defendants, Lester G. Leonard.

   Pee Cueiam.

The suit is by husband and wife, and arises out of a collision of automobiles at a cross road. There were three counts in the complaint, the first being by the husband, Moe Brouzell, claiming $1,000 for injuries to his automobile; the second being by the wife, for personal injuries, and resulting in a verdict in her favor which is not brought up on this rule; and the third being by the husband, as husband, for loss of the services of his wife. The jury brought in a verdict generally in his favor for $1,600 against John Reeves as master and William as servant.

This rule attacks only the verdict as respects the husband; and even as to him there seems to be no serious denial of defendants’ negligence. As we read the brief, the discussion seems to be confined to the matter of contributory negligence, and it will be so considered. The points are, first, that the verdict in favor of Moe was against the weight of evidence; second, an alleged error in the charge on the subject of a stop street and knowledge of the fact by the plaintiff; and thirdly, the admission in evidence of testimony tending to show that immediately after the accident the son of the defendant John R. Reeves said to his father in the presence of several witnesses, “Eather, you know I told you to stop * * and the, father cut him off short with “Sh.” The court also commented on this evidence and this is attacked in the fourth reason.

The accident occurred in the borough of Interlaken in the county of Monmouth. Defendant was driving westerly on an east and west street called Edgemont drive, which appears to run very close to the inlet to Shark river on the north side thereof, and which crosses a main north and south highway called Norwood avenue. The question is one largely of veracity as between the plaintiff and the defendant. The jury appeared to have believed the plaintiff and disbelieved the defendant, and after reading the testimony including that of several witnesses, apparently quite impartial, we cannot say that the jury erred in their belief. It was rainy and misty; the plaintiff said it was not raining very heavily, but the defendant said it was pouring in torrents and that he never saw it rain harder. The time was between three and four, o’clock on March 23d. Plaintiff was driving a large Rick•enbacker car northward on Norwood avenue and defendant a Whippet in a westerly direction on Edgemont drive. Plaintiff came over the bridge from the south and undertook to •cross Edgemont drive. The two cars came together approximately at the northeast corner of the two streets and the Rickenbacker car was struck towards its rear end, which was swung clear around until stopped facing towards Asbury Park, and collided with the car of a man named Devereaux who was driving on Norwood avenue. The defendants’ car seems also to have been slewed around, as it was turned north on Norwood avenue. The controversy of fact on this point was whether the defendant caught the rear of the plaintiff’s car, or the rear of the plaintiff’s car caught the front bumper of the defendants’ car; after all there is little difference, the fact being that the plaintiff had all but got across the street and out of the way when the collision occurred. Norwood avenue was a main highway and a “stop” street; and the Traffic act (Pamph. L. 1928, p. 739, art. 10, § 3), makes it unlawful for the ear on the side street to enter on the stop street without having come to a complete stop at a certain point in the side street. As we view the matter, the verdict was clearly not against the weight of evidence; and'this disposes of the claim that there was error in refusing to nonsuit, and in refusing to direct a verdict for the defendant.

The second point attacks a short passage of the charge which reads as follows: “I incline to the view, however, as a matter of law that it makes no difference whether the plaintiff knew that the street in question was a stop street, so far as the consideration of the main case is concerned.” This is taken out of a long sentence, and the charge on the subject of the stop street covers more than two pages of the printed •case. Naturally a trial court should not be lightly condemned on a mere sentence cut out of a lengthy passage of the charge; and our view is, that even if the court was wrong-in saying that it makes no difference whether the plaintiff knew or did not know that he was on a stop street, that error, if harmful at all, is harmful to the plaintiff and not to the ■defendant, because if the plaintiff did not know it, then he would be under a somewhat greater duty of care with respect do interesecting streets than if he did know it.

The third and last point relates to letting in the testimony ■of what the little son said to his father after the accident ,-and what the father said to him. Counsel discuss rather fully the question of admission by silence; and with the general law on that subject as propounded in the briefs, we have no ■quarrel. But we think this case is not within the rule. When the father silenced the boy by saying “Sh,” the jury were ■clearly entitled to infer that this ejaculation meant substantially, “yes, I know you did, but don’t say anything about that here because it would tend to make me liable in dam•ages,” and this in effect is what the judge said to the jury, which is also challenged. Here again counsel takes one sentence out of a lengthy passage on the subject and undertakes to utilize that as a basis of a new trial. We perceive no error either in the admission of the testimony or in the judge’s •comment thereon.

The rule will be discharged.


author: Pee Ctjeiam.

text:
    ELIZABETH A. CARROLL, PROSECUTRIX, v. STATE BOARD OF EDUCATION, DEFENDANT.
    Argued October 18, 1930
    Decided November 22, 1930.

      Before Justices Campbell and Bodine.
    Eor the prosecutor, Joseph F. S. Fitzpatrick.

    For the defendant, William A. Stevens, attorney-general,, and Harold A. Price.

   Pee Ctjeiam.

The prosecutrix was employed by the board of education of the township of Matawan under three consecutive written contracts.

The first was dated and executed July 15th, 1926, providing for her employment for the term of one year from September 7th, 1926. The second was dated and executed May 19th, 1927, and provided for her employment for one year from September 1st, 1927. The third was dated and executed June 13th, 1928, and provided for employment for one year from September 4th 1928. In each contract there was a provision that either party might terminate the agreement upon thirty days’ notice to the other.

This provision was not exercised by either party under the first two contracts but was exercised by the board of education of Matawan under the third contract by that board giving notice to the prosecutrix on July 15th, 1929, that her services would terminate on August 15th, 1929. She appealed to the commissioner of education asserting that her employment could not be thus brought to an end because of the provisions of Pamph. L. 1909, ch. 243. That officer ruled against her and her appeal was dismissed. She then appealed to the defendant, state board of education, and that body affirmed the finding and judgment of the commissioner of education.

This writ brings up for review such judgment. Pamph. L. 1909, ch. 243, provides:

“The service of all teachers, principals and supervising principals of the public schools in any school district of this state shall be during good behavior and efficiency, after the expiration of a period of employment of three consecutive years in that district, unless a shorter period is fixed by the employing board; * *

It may be here stated that the case before us does not show that the board of education of the township of Matawan fixed any shorter period. We are, therefore, concerned only with the provisions of the statute.

The decision of the commissioner of education, affirmed by the defendant was, that the term of service of the prosecutrix commenced September 7th, 1926, and her three years of .service would not have expired under her three contracts until September 7th, 1929, and therefore the option to terminate under the last contract exercised by notice of July 15th, 1929, effective August 15th, 1929, left her without a full three-year period of service and therefore she was without the benefit of Pamph. L. 1909, ch. 243.

This, we think, was a correct finding upon the law and facts.

Prosecutrix urges to. the contrary as follows:

1. That the three years of service was completed in that under her first contract she taught from September 7th, 1926, until the end of the school sessions in June, 1927; under her second contract she taught from September 1st, 1927, until the end of the school sessions in June, 1928, and under her third contract she taught from September 4th, 1928, to the end of the school sessions in June, 1929, and that in each instance the board of education waived performance and the teaching from the close of sessions in June of each year.

Be this as it may, prosecutrix under no circumstances would have performed three calendar years of service until September 7th, 1929; three years from the commencement of her first contract of employment.

2. That prosecutrix completed more than three calendar years of service under her three contracts.

This is argued upon the fact that her first contract bears, date July 15th, 1926, and the date of discontinuance of her services under her third and last contract was August 15th,. 1929. Her insistence falls short, however, because, while her first contract beaTS date as of July 15th, 1926, by its terms, it did not become operative, so far as the performance of any service is concerned until September 1th, 1926; consequently her “period of employment” did not commence until that, date.

3. It is next contended that the contracts of the prosecutrix and the statute in question should be considered and construed in connection with the statute fixing the school year as-from July 1st of one year, until June 30th, of the year succeeding.

That statute is 4 Comp. Stat., p. 4804, § 238: “The school year shall begin on the first day of July and end at the thirtieth day of June,” and has been construed to be “for fiscal and administrative purposes.” Wooley v. Hendrickson, 13 N. J. L. 14 (at p. 20).

We think the Tenure act, Pamph. L. 1909, supra, cannot be construed in the light of the statute last referred to, but, on the contrary, with the assistance of the statute (4 Comp-Slat., p. 4913, § 10), which is a legislative guide given for the purpose of construing the language of the law-making body and which provides:

“That the word hnonth/ when used in any statute shall be construed to mean a calendar month and the words c&. year’ shall be construed to mean a calendar year.”

So construed the prosecutrix was not in the position of a teacher engaged to teach and teaching “after the expiration of a period of employment of three consecutive years in that district” when her employment was terminated under the terms of her third contract.

The writ will be dismissed, with costs, and the judgment under review affirmed.


text:
    SOPHIA SCHENKEL, PLAINTIFF-RESPONDENT, v. JOSEPH SCHENKEL, DEFENDANT-APPELLANT.
    Submitted May 16, 1930
    Decided November 19, 1930.
    Before Justices Case, Daly and Dokges.
    For the appellant, Samuel Eoessler.

    For the respondent, Louis J. Beers.

   Pee Cueiam.

This is an appeal by defendant from a judgment entered in favor of the plaintiff-respondent in the East Drange District Court. The suit was brought to recover $500 upon a contract alleged to have been made by the plaintiff-respondent and defendant-appellant providing for the payment of that sum by appellant if respondent would take no proceedings against her husband, a son of appellant, who had separated from the wife, and about six years before had left the state and made no provision for the maintenance of his wife and a daughter, about eleven years of age. The father was desirous that the son should return to the state and visit him and the son’s mother, but feared proceedings by the son’s wife to compel to perform the duty imposed upon him by law to maintain the son’s daughter if not also the son’s wife. The daughter-in-law did not take any proceedings when the son returned to the state and remained for several weeks on a. visit to his parents. She thereupon brought suit to recover the $500 and the father-in-law defended upon the ground that the contract was in contravention of the statute of frauds in that it provided for the answering by the appellant upon an oral promise for the debt, default or miscarriage of his son. He also denied the making of the promise.

At the trial he likewise raised the question of a lack of •consideration. The trial court found against him upon all points. In thus finding, we think the trial court was right.

1. It has been held that forbearance of suit by a person who may have a just claim affords consideration for a promise by a third person to pay such debt if proceedings are waived. See United and Globe Rubber Co. v. Conard, 80 N. J. L. 286; Giglio v. Kramer, 133 Atl. Rep. 778. If such forbearance affords consideration for a promise to pay the debt of another, it appears to be sufficient consideration for an independent undertaking of the person to be benefitted by .such forbearance. There was, therefore, a good consideration.

2. The second point is that an oral promise to pay under the circumstances of this case is in contravention of the statute of frauds requiring a promise to pay the debt of another to be in writing. This contract does not come within the provisions of the statute of frauds relied upon by the .appellant. There was no undertaking to pay any existing debt and, so far as appears by the record, no sum of money had been fixed as being due from the appellant’s son to the respondent. Nor was there any suggestion that by the conduct of the respondent in forbearing suit against her husband or in the payment of the $500 by the defendant, respondent .agreed to relieve her husband of any duty imposed upon him. She agreed that, during the time her husband was in the .state on the one occasion, she would not institute proceedings. Therefore, the appellant did not agree to answer for any obligation of his son but created on his own account a promise to pay if respondent would not institute proceedings on the occasion stated..

3. A further point raised here, but not raised at the trial, is that the contract is against public policy because respondent sought to waive a right existing lor the benefit of her daughter, and that the law does not countenance such contracts. There is nothing in the state of the case to support this point. N owhere does it appear that the promise in question was based upon the waiver of any proceedings that might be open in behalf of respondent’s daughter against her father, but all that was involved was a forbearance of any suit open to respondent against her husband. This point not having been raised below is not available on this appeal, but if it were, we think it has no merit.

The judgment is affirmed, with costs.


text:
    WALTER DOYLE, TRADING AS, ETC., PLAINTIFF-RESPONDENT, v. JOSEPH J. CORN, DEFENDANT-APPELLANT.
    Submitted May 16, 1930
    Decided November 19, 1930.
    Before Justices Case, Daly and Donges.
    For the appellant, Corn & Silverman.

    For the respondent, Griffinger & Griffinger.

   Pee Cukiam.

Plaintiff-respondent brought suit in the East Orange District Court to recover on a book account. Defendánt-appellant counter-claimed in tort 'for the taking of a winter-front device and for negligence in the manner in which some work was done by plaintiff-respondent on the defendant-appellant's ear.

At the trial the plaintiff-respondent proved his book account and thereupon a motion was made to dismiss the counter-claim on the ground that it could not be interposed in the suit in question because it was for unliquidated damages. The motion was granted and this appeal raises the propriety of such ruling.

The provision of the District Court act in question is the amendment of 1927 (Pamph. L. 1927, p. 499, § 60), the language of which as respects this case is the same as the amendment of 1922 {Pamph. L. 1922, p. 230), which reads: “If the defendant have any account, demand or cause of action against the plaintiff he shall be permitted to discount, set-off, or counter-claim the same against the account, debt or demand of such plaintiff.”

Defendant-appellant alleges that this language permits him to counter-claim in tort to plaintiff's action in contract.

Section 61 of the District Court act provides that if any defendant “neglect or refuse to deliver a copy of his account, demand or cause of action against such plaintiff, he shall forever thereafter be precluded from having or maintaining any action for such account, demand or cause of action” in any future action, excepting in cases where the balance due to the defendant exceeds three hundred dollars, in which case defendant shall not be so precluded from a recovery in a subsequent suit.

These sections, as amended in 1922, were directly passed upon in this court in Ehret v. Hering (1923), 99 N. J. L. 73, and it was held that defendant was not required to counter-claim for unliquidated damages, and that, on failure so to do, he'would not be precluded from a recovery in a subsequent suit. In that case the court said: “The proper construction of the amended sections is to hold that they apply only to a cause of action in which the damages are liquidated.”

In Rebenfeld v. Friedberg (1925), 127 Atl. Rep. 187; affirmed (Court of Erors and Appeals), 102 N. J. L. 222, on the opinion of the Supreme Court, the same question was presented, and it was held that a claim for unliquidated damages was not the subject of counter-claim under the District Court act. There is no direct reference in the opinion in this case to the amendment of 1922, but inasmuch as the decision was made several years after the legislation was passed, the court was dealing with the sections as amended. That decision is controlling in this case.

The judgment is affirmed, with costs.


author: Per Cueiam.

text:
    MICHAEL SHEEHAN, PLAINTIFF-RESPONDENT, v. GEORGE MENKES AND H. J. HEINZ & COMPANY, DEFENDANT-APPELLANT.
    Submitted May 16, 1930
    Decided November 19, 1930.
    Before Justices Case, Daly and Dongbs.
    For the appellant, Elgin L. McBurney.

    For the respondent, 'William F. Grant and William L. Rae.

   Per Cueiam.

This appeal brings np a judgment of the First District Court of Jersey City in favor of plaintiff-respondent and against defendant-appellant in the sum of $214.20. The action was brought against one George Menkes and appellant H. J. Heinz & Company, to recover for injuries to respondent's tooth and dental bridgework by biting on an iron bolt which was in a mince pie baked by Menkes and purchased from him by respondent, the- mincemeat being sold by appellant H. J. Heinz & Company to Menkes.

The testimony was that Menkes purchased the mincemeat in bulk from Heinz; that he carefully prepared it for use and did use it in a pie especially made for respondent and sold to him; that the respondent was served a piece of this pie and on biting into it, his teeth struck the bolt, breaking a natural tooth and likewise breaking an artificial dental bridge.

Under the authorities in this state, this presentation raised a question of fact to be determined by the trial judge sitting as a jury. Under the proofs, the trial judge was justified in finding that the bolt was in the mass that was sold by Heinz to Menkes. Its presence was sufficient to raise an inference that it was there through the negligence of the appellant. Bahr v. Lombard, Ayres & Co., 53 N. J. L. 233; DeGroat v. Ward Baking Co., 102 Id. 188.

It has been held in this state that one preparing and selling food for public consumption is under a duty to those .for whose use it is intended to exercise reasonable care to see that it is free from injurious substances. DeGroat v. Ward Baking Co., supra, and cases cited.

The respondent satisfied the burden which the law cast upon him by proving such facts and circumstances from which it was made to reasonably appear that the bolt was in the mincemeat when appellant sold it to Menkes and that it was delivered to respondent in the same condition that it was when appellant parted with it. Wilkins v. Standard Oil Co., 78 N. J. L. 524.

The case clearly presented a question of fact, which the trial court was justified in finding against the appellant. We cannot say that the court below should have found in favor of defendant-appellant as a matter of law. The District Court act provides for a review only from a determination “in point of law.” This court will not review the findings of the District Court upon questions of fact beyond inquiring whether there was any legal evidence upon which the finding might be based. Williams v. Contracting Co., 74 N. J. L. 105; Pratt v. Union National Bank, 81 Id. 588; Tapscott v. McVey, 83 Id. 747.

The judgment is affirmed, with costs.


author: Memorandum.

text:
    N. DRAKE, INCORPORATED, A CORPORATION, PLAINTIFF, v. DANIEL J. DONOVAN ET AL., DEFENDANTS.
    Decided November 21, 1930.
    Before Mr. Justice Case (at chambers).
    Eor the rule, Harry Krieger.

      Contra, Maurice C. Brigadier.

   Memorandum.

Plaintiff, having recovered judgment on March 4th, 1930, caused execution against defendants to be issued to the sheriff of the county of Union. On March 6th, 1930, the sheriff, acting under chapter 115 (Pamph. L. 1915; 1 Cum. Supp. Comp. Slat., pp. 71, 79a, et seq.), levied on “all moneys in the hands of W. Eichard Tracy, engineer and secretary of Union County Park commission, due or to become due to Daniel J. Donovan, being approximately $100; and any debt due or accruing from Union county park commission to said Daniel J. Donovan, same being in the amount of [contract for approximately $800].” Plaintiff then caused a rule to issue under section 9 of the statute (1 Cum. Supp. Comp. Stat., pp. 71, 99i), directing the defendant Donovan and the Union county park commission to show cause why any moneys in the hands of the commission then due, and any moneys thereafter to accrue, under the contract mentioned in the levy, should not be paid to the sheriff in satisfaction of plaintiff’s judgment. In the course of the testimony taken under the rule it developed that the contract had been executed on or about November 19th, 1929, that the work comprehended by the contract had actually been begun on November 1st, 1929, and that on Eebruary 24th, 1930, there had been filed with the Union county park commission an assignment, dated September 17th, 1929, running from the plaintiff to his father, Daniel Donovan, Sr.—hereinafter called the assignee—purporting to make absolute conveyance of “all moneys due or to become due upon certain contracts entered into or to be entered into by me with Union county park commission of Union county, State of New Jersey, Landeman Brothers, namely, B. Landeman and A. Landeman of Elizabeth, -New Jersey, and the Westfield Villa Corporation of Westfield, New Jersey, and Prank Harmon and Harmon & Harmon of Union City.” The Union county park commission admitted that it had in its hands moneys accrued under the contract in the sum of $655.50 which it was ready to pay to the person entitled thereto, but it would not admit the identity of the person so entitled. Thereupon plaintiff: caused a supplementary rule to be issued, of the same effect as the first but naming the assignee as an additional respondent.

On the return of the rule the defendant Donovan appears generally and contends (1) that the plaintiff must, in addition to proving that there is a debt due from the garnishee, show that the debt is due to the defendant, and that this the plaintiff has not done; (2) that the proceedings if at all appropriate should be under 1 Gum. Supp. Comp. Stat., pp. 71-9L, with the requirements of which plaintiff has not complied; and (3) that when the levy was made the money was not due. The assignee appears specially to assert that this court has no jurisdiction under the statute to adjudicate his rights and that if the statute should be held to confer that jurisdiction the provision is unconstitutional.

The plaintiff’s position may briefly be stated as in contradiction of all the points thus presented in opposition by the defendant and the assignee and as in support of the proposition that the respondents are all brought in by the rule, as by due process of law, and that the only dispute is on legal questions which the court should decide. It seeks to have its rule made absolute against the defendant, the garnishee and the assignee.

The phraseology of the levy is not questioned.

It seems quite obvious that the legislature did not intend to leave the garnishee in jeopardy. The language of section 9, on which plaintiff relies, is as follows:

“9. After levy shall have been made under this act upon any debt due or accruing from a third person [herein called the garnishee] to the judgment debtor, the court or a judge thereof, may make an order upon such garnishee and the judgment debtor to show cause why the said debt [to an amount not exceeding the sum necessary to satisfy said execution] should not be paid to the officer holding the execution, or to the receiver. Upon return of the order to show cause or at any time to which the hearing may be continued, an order may be made requiring the garnishee to pay said debt, if he admits it, to the officer in one payment or in in- ■ stallments, as the court or a judge shall deem just, which order may, at any subsequent time, on application, be modified, as may be just.”

The words “an order may be made requiring the garnishee to pay said debt, if he admits it, to the officer” make.the admitting of the debt a jurisdictional sine qua non. The Barrett Co. v. United Building Construction Co., 5 N. J. Mis. R. 87. There can be no adequate admitting of the debt unless the garnishee admits, as its creditor, the defendant against whom the execution stands. The commission, for obvious reasons, does not admit that it owes the debt to the defendant. To do so would lead, presumably, to a present order for the payment of the funds to the sheriff, and, possibly, to a subsequent action by the assignee against the garnishee for the same funds. I find nothing in section 9 that anticipates the framing of an issue with the assignee or that compels the assignee to litigate his claim in this summary fashion.

The garnishee is here as one who interpleads, but the procedure is not established for that function. In other parts of the statute may be found authority for proceedings by the sheriff as by a receiver (Sebring v. Pratt, 91 N. J. L. 393), and indeed for the appointment of an actual receiver and for suit at law or in equity; and perhaps such an issue as plaintiff now seeks to litigate could be thereunder raised and disposed of. But to hold that plaintiff has correctly conceived its procedure under section 9 would, I fear, leave the garnishee an innocent stranger to plaintiff’s problems, in perilous position and stretch the statute beyond the legislative intent.

Both rules are dismissed, with costs.


text:
    REBECCA C. STRANG, PROSECUTOR-RESPONDENT, v. STRANG ELECTRIC COMPANY, RESPONDENT-PROSECUTOR.
    Argued October 7, 1930
    Decided November 22, 1930.
    Before Justices Campbell and Bodine.
    For the prosecutor, Carl Kisselman.

    For the respondent, Edward T. Gurry.

   Pee Cukiam.

The respondent, a woman sixty-four years of age, a stockholder and the treasurer of the appellant company, in returning from New Brunswick in an automobile operated by her son, the president of the prosecutor company, was injured and she has an award under the Workmen’s Compensation act. It appears that the prosecutor is a corporation organized under the law of this state and has its office in Camden. It also has a place of business in Philadelphia.

The respondent was not only a stockholder and treasurer of the corporation, in which latter position, she with all other officers, drew no salary, but was also manager of its Camden office and place of business in this state. At the time in question the estimator in the employ of the company was not available and respondent, being familiar with the business of the corporation, accompanied her son to New Brunswick for the purpose of determining whether a proposed agreement for extra work upon a contract held by the company should be engaged in. She received a salary, or compensation, of $35 per week as manager and was carried upon the payroll, in this capacity, and for this amount. The insurance carrier based its premium charges thereon.

The only question 'involved here is whether or not the respondent was an employe or an officer.

Upon the facts in the case the deputy commissioner held, and the Court of Common Pleas concurred, that the respondent was an employe and entitled to the benefits of the act.

We think that the facts are such that these findings should not be disturbed. Black & Sons v. Hudson County, 8 N. J. Mis. R. 442; 150 Atl. Rep. 672.

The judgment of the Court of Common Pleas of Camden county will therefore be affirmed and the writ of certiorari dismissed, with costs.


text:
    PUBLIC SERVICE CO-ORDINATED TRANSPORT, PROSECUTOR, v. HACKENSACK IMPROVEMENT COMMISSION AND NEW MILFORD TRANSPORTATION COMPANY, DEFENDANTS.
    Argued October 7, 1930
    Decided November 22, 1930.
    Before Justices Campbell and Bodine.
    Eor the prosecutor, William H. Speer and Wendell J. Wright.

    Eor the defendants, no appearance.
   Per Curiam.

This writ brings up for review an application for, and an attempted granting of, a permit, or license, to the New Milford Transportation Company to operate a line of buses in the city of Hackensack.

The proceedings are attacked upon the ground that the permit was attempted to be granted by motion instead of resolution; that there was no previous determination that the granting of the license was necessary and advisable in the interest of public welfare and that it was in violation of an agreement between the prosecutor and the Hackensack improvement commission.

A consideration of one of these reasons only is necessary and that is that there was no determination or finding that the granting of such permit or license was necessary or advisable for the public welfare.

This is a neecssary prerequisite and its omission is legally inexcusable. Bergen Bus Line v. Hackensack, 4 N. J. Mis. R. 167; Public Service Railway Co. v. Hackensack, 6 Id. 15.

The proceedings under review are therefore set aside, with costs.


text:
    REMINGTON CASH REGISTER COMPANY, PROSECUTOR-APPELLANT, v. STATE BOARD OF TAXES AND ASSESSMENT, RESPONDENT-APPELLEE.
    Argued October 7, 1930
    Decided November 22, 1930.
    Before Justices Campbell and Bodine.
    For the prosecutor, Robert Carey, Jr.

      Eor the respondent, Fmnlc A. Boettner (Louis A. Fast, of counsel).
   Pee Cukiam.

Certain cash registers sold by the prosecutor under conditional bills of sale to various purchasers in the city of Newark were assessed for taxes to the conditional vendors by the taxing authorities of the city.

The amount of the assessment is not in dispute. Upon appeal, the county board of taxation, and the state board of taxes and assessment, affirmed the assesment.

It was urged before such boards, and here, that the sales, being conditional, the title was in the vendee subject to being divested for non-payment of the installments of consideration and that the transactions were analogous to those of a chattel 'mortgage, the vendees being the owners, who might under the terms of the Tax act, require exemption to the extent of the mortgage debt.

We think neither of these grounds is tenable. Taking up the latter ground first, the party assessed has not taken advantage of such provision of the act and therefore is not entitled to the benefit thereof. Nor may the prosecutor succeed upon the first ground. Upon and under its conditional bills of sale it specifically reserved title and ownership in itself.

Under Pamph. L. 1918, ch. 236, all property shall be assessed to the owners thereof and “all tangible personal property shall be assessed in and for the taxing district where such property is found.”

Pursuant to such requirements of the statute the assessment in question was made, and we think properly.

If there be need for any proof of this the conditional sales agreements contain it, inasmuch as they provide—“undersigned, [purchaser] agrees to pay all taxes on the register, and in event of default to reimburse you for all taxes paid on same by you.”

The assessment will be affirmed and the writ dismissed, with costs.


author: INgeesoll, V. C.

text:
    Somers L. Doughty, complainant, v. Isabel Dobbin, defendant.
    [Decided December 1st, 1930.]

      Mr. John C. Reed and Mr. Emerson Richards, for the complainant.

      Messrs. Cole & Cole and Mr. Paul M. Balshurg, for the defendant.
   INgeesoll, V. C.

The defendant, Isabel Dobbin (now Isabel Naame), is the child of the deceased wife of complainant by her former husband. She continued to live in the household of complainant after the death of her mother.

On December 30th, 1922, and on September 19th, 1925, the complainant, by deeds bearing said dates, conveyed the two tracts of land described in the complainant’s bill to the defendant, for the express consideration of $100 and natural love and affection.

It is admitted that these conveyances were gifts to his stepdaughter of this land. These premises were improved by erecting thereon apartment buildings and remodeling old structures. The complainant advanced moneys for said work to the extent of $136,000. After the completion of the buildings, the defendant secured three mortgages, one realizing $34,451.50, one $33,617.48 and a third $33,836.75, aggregating $91,895.73, which moneys were received by the complainant and credited by him on account of the money so advanced by him. Later, an additional payment of $350 was made. The complainant also insists that there is also an additional sum due him by reason of the fact that to pay off a mortgage of $35,000. The complainant borrowed through the use of complainant’s credit, the sum of $30,000, all of which has been paid by defendant, except the sum of $8,000, which is represented by a note of $8,000 upon which he is endorser.

The complainant prays that an accounting may be had and that defendant pay to complainant the amount found to be due, or in default thereof, the amount so found to be due to be decreed to be a lien and charge on said land and premises described in the bill of complaint in the nature of an equitable mortgage.

The defense is that all sums of money so advanced were gifts to her by her stepfather. A great amount of testimony has been taken and it can be of little avail to recite it. The land was a gift but I am convinced that the money.advanced by Doughty for the building and construction of these buildings was not intended to be a gift. This view is sustained by reason of two facts, the first that he received the proceeds of all of the mortgages and secondly by the fact that she paid to Doughty a check of $500 from the bank account of the “Ohio apartments,” on the face of which appears “for account of Savoy and Ohio apartments, to Somers Doughty— principal.”

Mrs. Naame testified as follows:

“The morning that I gave him this check he nagged me and fought with me about Mr. Doughty [Naame?] from breakfast time until I finished dressing, followed me from room to room in a terrible temper, I was afraid of my life, and he said if I was a man he would knock me down, then in the heat of anger he said, ‘you still owe me money for that furniture.’ I said, ‘no, I paid you for that furniture.’ He said, ‘you still owe me money. Can I have a check?’ I said, 'well, if that is the way you. feel about it, how much do j'ou want?’ He said, 'I will take five hundred dollars/ so I was so excited I said, 'come on down stairs.’ He followed me down stairs and stood over me while I wrote this check and made me write on there 'Ohio and Savoy apartments to Somers Doughty, principal/ and grabbed the check out of my hands, grabbed out of my hands, and came back later on very much calmed down, and laughed at me, 'now I have got you. 1 will get everything I ever gave you. I will take it back from you if you marry Joe Naame.’ 1 said, ‘I don’t see how you can do that.’ He said, 'I have got the evidence; you only borrowed my money; that is the evidence I wanted to get and you did it for me.’ Several days after that he came to the Ohio apartments and threatened to kill Mr. Naame with the club. The following week he followed me to the Savoy apartments and threatened to kill Mr. Naame again and hit him on the jaw and broke his own knuckles.”

Mr. Doughty’s explanation of the check is that the check was made out for $500, $250 on account of the Savoy apartments and $250 on account of the Ohio apartments, which made $500 all in one cheek, and followed her refusal to execute a mortgage for $75,000 on the property in question as she had on the other property. He gives the circumstances of the check as follows:

''She left it, she give it to the maid to give to me, gave it to the maid and the maid gave it to me after I left her, after I asked her for it. The maid give it to me when I came home and I looked at it and laughed, laid it down on the desk and walked out and left that laying there, such a small amount.”

lie finally took it and deposited it. In this he is corroborated by the testimony of the maid to whom the check was given by Mrs. Naame to deliver to Doughty.

Mrs. Naame’s story is also refuted to some extent by the testimony of the expert on handwriting, who testified that he found the writing to be identical in nervous and muscular characteristics with the other writing of Isabel Dobbin. He found it to be the natural writing of the same party who did the other Isabel Dobbin writings; and to be in no respect abnormal or unusual, to follow in every respect the customary and usual writing habits of this particular person, and showed no signs of excitement at the time it was written. Doughty had this check photographed and the photograph only is offered in evidence, Mrs. Naame being unable to find the original, although it passed through her account in bank and was returned to her.

I am convinced that the testimony of Mrs. Naame does not give the court the benefit of the true facts in so far as this check is concerned, and while the maxim falsus in unofalsus in omnibus is not a mandatory rule of evidence (Addis v. Rushmore, 74 N. J. Law 649), where a defendant’s testimony is discredited by documentary proofs and by the contradiction of other and disinterested witnesses in relating facts of which all may have knowledge, her testimony cannot be relied upon when narrating incidents (the truth of which is essential to her defense) which lie solely within her knowledge. Sinclair v. Sinclair, 57 N. J. Eq. 222. Pinding this testimony of Mrs. Naame’s false and considering her demeanor and manner of testifying, I am convinced that her testimony can have but little weight.

I am unable to find any testimony which is at all convincing that the repayment to him was to be limited to the amounts which were obtained through the mortgage loans. Ordinarily, the improvements made will be presumed to be gifts to the stepdaughter, unless that presumption is sufficiently overcome by proofs. Selover v. Selover, 62 N. J. Eq. 761; Prisco v. Prisco, 90 N. J. Eq. 289.

I am satisfied that the presumption of a gift has been overcome by the evidence with that degree of certainty that is required in such circumstances. I will advise a decree in accordance with these views. If it becomes necessary, I will advise a reference to ascertain the correct amount.


author: Ihgebsoll, Y. C.

text:
    Somers L. Doughty, complainant, v. Isabel Dobbin, defendant.
    [Decided December 1st, 1930.]

      Mr. John G. Reed and Mr. Emerson Richards, for the complainant.

      Messrs. Dole & Cole and Mr. Paul M. Salsburg, for the defendant.
   Ihgebsoll, Y. C.

On or about March 19th, 1927, the Guarantee Trust Company of Atlantic City, New Jersey, conveyed, for an express consideration of $30,000, certain lands and premises in Atlantic City to the complainant, of which $7,500 was paid by Isabel Dobbin and the sum of $7,500 was paid by complainant. On or about March 19th, 1927, the complainant conveyed said lands and premises to the defendant, the stepdaughter of complainant. Complainant alleges that he advanced and paid money to the said defendant to the amount of $104,617.24 for the erection of an apartment house structure on said land, and alleges that the agreement between them was that upon the completion of said building, a mortgage would be secured upon said premises for his benefit. He secured a party ready, able and willing to loan the sum of $75,000 upon said premises, but the defendant declined to execute said mortgage.

While the testimony in this case and in the eompan|ion case was taken at one time, in the companion case I found the agreement as alleged by the complainant proven. Such finding was based by reason of two facts, the first upon the fact that she had made mortgages upon the premises in question, from the proceeds of which Doughty was reimbursed a portion of the money so advanced by him, and that she had delivered to Doughty a check for $500 from the bank account of the “Ohio apartments” on the face of which appears “for account of Savoy and Ohio apartments to Somers Doughty-—-principal.”

I am quoting from the opinion in the companion case:

“Mrs. Naame testified as follows:

“The morning that I gave him this check he nagged me and fought with me about Mr. Doughty [Naame?] from breakfast time until I finished dressing, followed me from room to room in a terrible temper, I was afraid of my life, and he said if I was a man he would knock me down, then in the heat of anger he said, ‘you still owe me money for that furniture/ I said, ‘no, I paid you for that furniture/ He said, ‘you still owe me money. Can I have a check?’ I said, ‘well, if that is the way you feel about it, how much do you want?’ He said, T will take five hundred dollars,’ so I was so excited I said, ‘come on down stairs.’ He followed me down stairs and stood over me while I wrote this check and made me write on there ‘Ohio and Savoy apartments to Somers Doughty, principal,’ and grabbed the cheek out of my hands, grabbed out of my hands, and came back later on very much calmed down, and laughed at me, ‘now I have got you. I will get everything I ever gave you. I will take it back from you if you marry Joe Naame.’ I said, ‘I don’t see how you can do that.’ He said, T have got the evidence; you only borrowed my money; that is the evidence I wanted to get and you did it for me.’ Several days after that he came to the Ohio apartments and threatened to kill Mr. Naame with the club. The following week he followed me to the Savoy apartments and threatened to kill Mr. Naame again and hit him on the jaw and broke his own knuckles.”

Mr. Doughty’s explanation of the check is that the check was made out for $500, $250 on account of the Savoy apartments and $250 on account of the Ohio apartments, which made $500 all in one check, and followed her refusal to execute a mortgage for $75,000 on the property in question as she had on the other property. He gives the circumstances of the check as follows:

“She left it, she give it to the maid to give to me, gave it to the maid and the maid gave it to me after I left her, after I asked her for it. The maid give it to me when I came home and I looked at it and laughed, laid it down on the desk and walked out and left that laying there, such a small amount.”

He finally took it and deposited it. In this he is corroborated by the testimony of the maid to whom the check was given by Mrs. Naame to deliver to Doughty.

Mrs. Naame’s story is also refuted to some extent by the testimony of the expert on handwriting, who testified that he found the writing to be identical in nervous and muscular characteristics with the other writing of Isabel Dobbin. He found it to be the natural writing of the same party who did the other Isabel Dobbin writings, and to be in no respect abnormal or unusual, to follow in every respect the customary and usual writing habits of this particular person, and showed no signs of excitement at the time it was written. Doughty had this check photographed and the photograph only is offered in evidence, Mrs. Naame being unable to find the original, although it passed through her account in bank and was returned to her.

I am convinced that the testimony of Mrs. Naame does not give the court the benefit of the true facts in so far as this check is concerned, and while the maxim falsus in unofalsus in omnibus is not a mandatory rule of evidence (Addis v. Rushmore, 74 N. J. Law 649), where a defendant’s testimony is discredited by documentary proofs and by the contradiction of other and disinterested witnesses in relating facts of which all may have knowledge, her testimony cannot be relied upon when narrating incidents (the truth of which is ■essential to her defense) which lie solely within her knowledge. Sinclair v. Sinclair, 57 N. J. Eq. 222. Finding this testimony of Mrs. Naame’s false and considering her demeanor and manner of testifying, I am convinced that her testimony can have but little weight.

Although this case does not have the support of the fact, that mortgages were placed upon the property, I am of the-opinion that the presumption that the money advanced by Doughty was a gift has been overcome by the evidence with, that degree of certainty required in such circumstances. L will advise a decree in accordance with these views.


author: Ingeksoll, Y. C.

text:
    Isabel Dobbin Naame, complainant, v. Somers L. Doughty et al., defendants.
    [Decided December 1st, 1930.]

      Messrs. Cole & Cole and Mr. Paul M. Salsburg, for the-complainant.

      Mr. John C. Reed and Mr. Emerson Richards, for the-defendants.
   Ingeksoll, Y. C.

The bill alleges that on December 31st, 1926, Somers L.. Doughty granted and conveyed to the complainant certain, premises at the corner of Drexel and Maryland avenues, in the city of Atlantic City, New Jersey. Said deed was acknowledged on said date and recorded in the clerk’s office of Atlantic county at Mays Landing, New Jersey, on January '29th, 1929. On January 5th, 1929, Doughty granted and ■conveyed said premises to David H. Best, which deed was recorded January 7th, 1929, in the clerk’s office aforesaid. The consideration for said last mentioned deed was $40,000, for a portion of which a mortgage was made to Doughty in the sum of $35,000, and recorded on the same date; that the ■deed from Doughty to Best was not a Iona fide transaction, that it creates a cloud upon the title and that it conveyed no interest, and the mortgage from Best to Doughty is not a lien upon the premises.

The answer of Doughty is a denial that said alleged conveyance was ever delivered to the complainant and that the same was removed from his home and from the place where he had kept the same for safe keeping, and from his custody, ■and placed on record without his consent or knowledge, and ■contrary to his intent.

The complainant is a stepdaughter of the defendant and resided in his home as a member of his family for many years ■after the death of her mother, Doughty’s wife. Their relations were as father and daughter. He gave her other properties. He advanced large sums of money to make improvements upon the other properties. Admittedly, there was, at one time, an intention that this property should also be a gift to her, for the purpose of erecting an apartment house thereon, but later and more mature consideration evinced that the location was not a suitable one for the erection of an apartment house and arrangements were made to build one in a more populous section of Atlantic City. The contemplated gift of this property was reconsidered and instead of destroying the deed, which had already been prepared and executed (but not delivered) it was placed in a desk or other receptacle in his house, where it remained until unhappy differences arose between the complainant and the defendant. She took possession of this instrument and caused it to be recorded.

Without further stating the evidence, I find as a fact that this deed was never delivered to her and that it is improperly of record. A decree will be advised in accordance with these views.


text:
    FRANK M. BRASCH, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF MARY C. BRASCH, DECEASED, PLAINTIFF, v. NEW YORK AND LONG BRANCH RAILROAD COMPANY, DEFENDANT.
    Submitted May 16, 1930
    Decided November 17, 1930.
    Before Justices Parker, Campbell and Bodine.
    For the rule, Applegate, Stevens, Foster & Beussille.

      Contra, John J. Quinn and Theodore D. Parsons.

   Per Curiam.

Plaintiff’s intestate, while riding in an automobile, attempted to cross a grade crossing of the railroad maintained by the New York and Long Branch Eailroad Company, near Eed Bank, was struck by a train operated by the Central Eailroad Company of New Jersey and killed. The crossing was. protected by a crossing bell. Plaintiff brought his action against both railroad companies and a trial of the action resulted in a verdict in his favor of $9,000 against the New York and Long Branch Eailroad Company, and against him and in favor of the Central Eailroad Company of New Jersey.

The defendant, New York and Long Branch Eailroad Company, has this rule and seeks to set aside the verdict against, it for three reasons.

1. That no negligence was established against it. This is-upon the contention that the crossing bell was ringing at the-time of the happening and that it was not established by the preponderance of the evidence.

With this we do not agree. Prom the proofs a fair jury question was presented and of such a character as does not warrant this court in setting aside the finding of the jury.

2. By the clear weight of the evidence plaintiff’s decedent was guilty of contributory negligence.

We think this was a fair jury question and that the result reached should not be disturbed.

3. That the verdict is excessive.

We think it was fairly within the proofs and does not indicate that it is the result of passion, prejudice or mistake. Consequently it should not be disturbed.

The rule is discharged, with costs.


text:
    VITO LEONARDIS, PLAINTIFF-RESPONDENT, v. ROSA FREDA, DEFENDANT-APPELLANT.
    Submitted May 16, 1930
    Decided November 19, 1930.
    Before Justices Case, Daly and Donges.
    For the appellant, J. Victor D’Aloia.

    For the respondent, Anthony Calandra and James J. Farley.

   Pee Cueiam.

This is an appeal from a judgment in favor of the plaintiff against the defendant entered in the District Court of the Second Judicial District of Essex county.

The essential facts are that. respondent brought suit against appellant and her husband, Giovanni Preda, in the District Court of East Orange, which suit was discontinued on January 18th, 1927. On the same day appellant was again sued jointly with her husband in the Pirst District Court of Newark for the same cause of action. This second suit was tried and judgment was rendered in favor of the respondent against Giovanni Preda and a judgment of nonsuit was entered as to Rosa Preda, the appellant. Thereafter respondent instituted another suit in the District Court of the Second Judicial District of Essex ounty against the appellant, Rosa Preda, to recover the same amount as the verdict recovered against Giovanni. This action was dismissed or discontinued.

Plaintiff thereupon filed a bill in the Court of Chancery seeking to obtain a money judgment for the same cause of action against the appellant, Rosa Preda. This bill was dismissed, and thereafter the present action was brought by respondent against Rosa Preda to recover the same amount for which judgment was rendered against Giovanni Preda, appellant’s husband, on May 6th, 1927, in the Pirst District Court of Newark. The trial court rendered judgment in favor of the plaintiff-respondent. ■

We conclude that' respondent is precluded from a recovery in his suit against the appellant by reason of the final judgment entered for the same cause of action against her husband. This view is supported by Coles v. McKenna, 80 N. J. L. 48, where it was said:

“Where a judgment final is entered, the original cause of action is merged in the judgment, and, in the case of a joint debt, whatever merges the cause of action as to one, merges it as to all.”

In the discussion in that case the court dealt with the question as relating to principal and agent, and declared that where judgment was obtained against the agent there could be no subsequent judgment against the principal.

The judgment is reversed, and under section 213a of the District Court act (Cum. Supp. Comp. Slat., p. 983; National Bank v. Berrall, 70 N. J. L. 757; Shuster v. Arena, 83 Id. 79; Kendel v. Guterl, 84 Id. 533; Hurey v. Leavitt, 93 Id. 299),. judgment for the appellant-defendant, and against the respondent-plaintiff, may be entered in this court, with costs.


text:
    HARRY VAN ARSDALE, BY NEXT FRIEND ET AL., PLAINTIFF, v. LAURA OSBORN AND FLOYD OSBORN, DEFENDANTS.
    Submitted May 16, 1930
    Decided November 17, 1930.
    Before Justices Parker, Campbell and Bodtne.
    Por the rule, John J. Quinn and Theodore D. Parsons.

      Contra, William Ilartshorne.

   Per Curiam.

Plaintiff Harry Van Arsdale was injured while riding in a motor car of the defendants. His injury was the fracture of three processes of the vertebrae. He was in a plaster cast from the time of the accident, August 16th, 1928, until the latter part of October of the same year, and at the time of the trial, March 8th, 1930, was still incapacitated and it appears fairly certain that to have a recovery that will permit him to work he will have to undergo a serious operation. He has a verdict for $1,050.

His father, the other plaintiff, had expended or obligated himself to expend, up to the time of trial $504.25 in seeking to effect a cure of the son’s injuries. The further operation, said to be necessary, will cost $500. From the time of the happening for a period of at least six months the father lost the value of the son’s services in his business and since that time has had them only to a limited degree. The father’s verdict is $750.

We are asked to set these verdicts aside as being inadequate. We are satisfied that they are inadequate and therefore the rule will be made absolute and a venire de novo issue as to the damages only.


text:
    EDWARD L. DOUCHA, v. CHARLES M. HAMILTON AND JANE HAMILTON.
    Submitted May 17, 1930
    Decided November 17, 1930.
    Before Justices Parker, Campbell, and Boijine,
    Por the rule, Frederic B. Scott.

    Contra, Be Voe Tomlinson.

   Per Curiam.

Plaintiff, while crossing Main street in Madison, on foot, was struck and injured by an automobile operated by the defendant and he has a verdict for $1,000 which, under this rule held by him, he seeks to have set aside as inadequate ■and that he have a new trial as to damages only.

While the rule originally allowed by the Circuit Court judge was limited to the damages only, an order was subsequently made by him requiring all the testimony taken at the trial to be printed and brought up to this court.

Our examination and consideration of these proofs brings us to the conclusion that the damages awarded are inadequate and further that the finding of the jury upon the question of negligence of the defendant is not supported by the proper weight of the evidence. In that respect the correctness of the verdict is placed in very great doubt and has every appearance of a compromise.

Under such circumstances it should not be set aside as to damages only but in toto.

Although the rule is limited this court has power to enlarge it. Mooney v. Blade, 1 N. J. Mis. R. 4; Gyorfy v. Levy, Ibid. 157; Stoll v. Shantz, 6 Id. 1046.

We conclude that this ease is a case calling for the exercise of such power

The rule to show cause is therefore made absolute and a venire de novo will issue for the retrial of all the issues.


text:
    BUCKINGHAM REALTY COMPANY ET AL., PROSECUTORS, v. TOWN OF MONTCLAIR, RESPONDENT.
    Argued November 4, 1930

    Decided November 22, 1930.

      Before Justices Campbell and Bobine.
    Eor the prosecutors, Frazer & Trimble.

    Por the respondent, George 8. Harris.

   Per Curiam.

These writs seek a review of certain ordinances of Montclair and assessments for benefits laid against lands of the prosecutors. By consent the matters were argued as one.

1. The first attack is made upon the ordinance known a» the ordinance of November 13th, 1939, which, it is insisted, is not an improvement ordinance but one simply determining to acquire lands and therefore it is not the proper basis for levying assessments. The specific complaint is that nowhere therein is there any defining of the line of South Park street as widened nor the extent of such widening. The title of the ordinance recites the purpose of the taking to be “for the purpose of widening South Park street.”

Section 1 provides: “That the board of commissioners of the town of Montclair, in the county of Essex, do hereby determine that a certain tract of land hereinafter described is required and shall be acquired by the said town of Montclair for the purpose of widening South Park street in said town as a local improvement.” Section 5 particularly described the tract to be acquired, by metes and bounds, and by reference to a map attached entitled “Proposed acquisition of land for the widening of South Park street.” Section 6 provided “the board of commissioners of the town of Montclair hereby declare and determine that forty per cent, of the cost of the above improvement shall be borne by the town of Montclair at large, and the balance of the expense and cost thereof, when completed, shall be ascertained and determined as provided by law, and thereafter such balance shall be assessed upon the lands and real estate, actually, peculiarly and specially benefited thereby, in proportion to the peculiar benefit, advantage or increase in value which the said respective lots and parcels of land and real estate shall be deemed to receive by reason of the local improvement herein provided for.”

After the adoption of the ordinance proceedings to condemn the lands were taken under the General Condemnation act of 1900 (2 Comp. Siat., p. 2182). The commissioners made an award of $187,750 to the landowners on February 16th, 1930. The original ordinance of November 12th, 1929, having appropriated $180,000 for such purpose, being less than the amount of the award, it became necessary and the ordinance was, in that particular, by an amendatory ordinance introduced February 27th, 1930, amended by increasing the appropriation by $15,000, which ordinance was finally passed March 13th, 1930.

It was sometime thereafter, presumably, that the award was paid and the town took possession of the land (the stipulation in the case being silent as to the exact date of payment) which had up to that time been occupied as a market, known as the E. M. Harrison Market, and it continued so occupied until about May 15th, 1930, when it was vacated by the former owners. About June 1st, 1930, the buildings were demolished and the street was paved to the width made possible by the taking of the lands in question.

The demolition of the buildings and the paving and curbing were done pursuant to an ordinance that had been, adopted March 29th, 1927, antedating the ordinance under-attack by nearly three years. This ordinance in its original form seems not to have been made a part of the return but it is stipulated that under it the curb lines on the easterly-side of South Park street were so fixed and set as to cut off' the sidewalk of the E. M. Harrison Market—and the owner-sought by litigation to enjoin the town from carrying out such work. Being unsuccessful in the Court of Chancery an appeal was taken to the Court of Errors and Appeals.

After the acquiring of the property by condemnation this-appeal was discontinued; the ordinance of March 29th, 1927,. was amended March 22d, 1930, providing for a new curb line-based upon the increased width of South Park street, made-possible by acquiring the lands before referred to, providing for the demolishing of the buildings on such acquired lands- and making a further appropriation for the carrying on of the improvement.

Thereafter the cost of the acquiring of the lands in question was certified to the assessor who levied assessments against the lands of prosecutors and others. The total cost as-certified was $194,781.34; the total assessments $109,622, and the amount borne by the town at large, $85,159.34.

Under these facts and circumstances a different situation from that in Root v. Jersey City, 5 N. J. Mis. R. 973, is presented, in our judgment, making the finding therein inapplicable.

2. It is next urged that the ordinance of February 27th, 1930, passed March 13th, 1930, amending the ordinance of November 12th, 1929, by increasing the appropriation by $15,000 from $180,000 to $195,000, is invalid or, at least,, in so far as these prosecutors are concerned because no notices, of the pendency and passage of' such ordinance were mailed to them as required by Pamph. L. 1926, p. 378, art. 10, § 1. A sufficient answer to this is that this court has fully considered the same question at the present term in cases 242 and 243, DeMarmon v. Roselle, and reached a conclusion adverse to the contention of the prosecutors here.

3. It is next urged that lands to be taken for a local improvement, the cost of which is to be assessed against properties benefited, may not be acquired under the Eminent Domain act of 1900.

The contention of prosecutors under this point appears to bo that section 23, article 20 of the Home Rule act as amended (Pamph. L. 1925, p. 233), is mandatory and absolutely controlling as to the procedure in eminent domain. Under Fishblatt v. Atlantic City, 81 N. J. L. 64, and Iandell v. State, 101 Id. 294, this argument is highly persuasive, but, we conclude, the prosecutors here are not in a position to urge it to their advantage. The property owner might have complained but we are unable to see how these prosecutors can because there is no contention that the award was not a just and fair compensation for the lands taken and it is difficult, if not impossible, for us to see how this question can bo raised or successfully controverted by the prosecutors. Clausen v. Ridgefield, 91 Id. 238, is also urged in support of this contention. A reading of that case will show that it has no application to the matter before us for the reason that the prosecutors here are not in the position of the prosecutor-respondent in that case.

It is finally urged under this point that section 11 of the Condemnation act of 1900 by express language makes such act inapplicable to a situation existing in the case before us.

Our answer to this is also that it calls for no decision by us because the prosecutors are not in a position to raise or take advantage of it, for the very good reason that their sole concern must be confined to the correctness and justness of the award to the land owners and whatever method of estimating this was pursued by any constitutional procedure act produced the result to which they were entitled and in which they were concerned.

4. It is finally urged that the assessment area is discriminatory and unfair and does not constitute the just and equitable assessment required by statute.

This question has also been definitely decided by this court in DeMarmon v. Roselle, Nos. 242, 243 of the present term.

We have passed upon all the grounds raised by the prosecutors in the face of a most substantial insistence of the respondent that the writs should not have been allowed to review the ordinances in question for the reason that they were not applied for or allowed with proper diligence and for that reason the writs should now be dismissed.

As to the ordinances sought to be reviewed there seems to be no contest but that the prosecutors were at all times informed thereof by notice which was actual or constructive, and their withholding of any attack thereto or against for a period of nine months was not the exercise of that due diligence required of them and, therefore, and for that reason, the writs as directed to the ordinances should be dismissed.

On the contrary the prosecutors sued out the writs within thirty days of the confirmation of the assessments against their lands and therefore, in that respect, their allowance was timely.

Upon the merits of the reasons advanced, and for the reasons stated, the writs will be dismissed, with costs.