author: Pee Cukiam.

text:
    WATKINS REALTY COMPANY, A CORPORATION, PLAINTIFF-APPELLEE, v. SAMUEL HYMAN AND ESTHER HYMAN, DEFENDANTS-APPELLANTS.
    Submitted October 16, 1931
    Decided December 2, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the defendants-appellants, Jacob 8. Karlcus.

    For the plaintiff-appellees, David T. Wilentz.

   Pee Cukiam.

Plaintiff brought suit for breach of a warranty against encumbrances contained in a deed conveying real estate in Perth Amboy, Yew Jersey. The premises were encumbered by unpaid inheritance taxes due the State of Yew Jersey on a previous transfer, upon death, of the real estate in question.

Plaintiff alleged two elements of damages and was allowed recovery therefor. (1) The amount of the tax; and (2) attorney’s fees incurred in the clearance of the lien.

The finding of the District Court was in part as follows: “On the 9th day of May, 1917, Peter F. Murray, a resident of Yew York State, who was then the owner of the premises in the said deed described, died, and at the time of the conveyance by the defendants [the defendants having obtained title through mesne conveyances] to the plaintiff there remained open- of record the inheritance tax due to the State of New Jersey on the transfer of real and personal property belonging to the above named deceased, which said inheritance tax is a lien on the property conveyed by the defendant to the plaintiff.”

It is argued that the taxes in question were not a lien on the property. Murray’s death occurred in 1917. They were presumably assessed under the act of 1909. Pamph. L., p. 325. Section 5 of that statute provides, in part, as follows: “All taxes levied and assessed under this act on the transfer of any real property shall be and remain a lien on said real property until paid.”

The validity of a lien so imposed upon real estate was upheld by Vice-Chancellor Backes in Archibald v. Maurath, 92 N. J. Eq. 357, 3.62.

It is argued, however, there is nothing to show that the taxes were levied and assessed under this act. The answer to this is that if these taxes remained open of record as defendant agreed they did, then they must have necessarily been levied and asseessd pursuant to the act, because by his own stipulation, validity of the assessment was not challenged.

As to the allowance of the defendant’s legal expenses in and about the payment of the taxes there can be little doubt from the stipulation upon which the case was submitted to the trial court that these expenses were incurred to clear the property of the lien in question. Such expenditures were well within the foreseeable consequences of a breach of the covenant against the encumbrances. The court below quite properly regarded the stipulation as binding in ilio absence of evidence.

The judgment is affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DAVID A. PLATT, Jr., PLAINTIFF-APPELLEE, v. MONTCLAIR FEED AND FUEL COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October 16, 1931
    Decided December 2, 1931.
    For the defendant-appellant, Otlo A. Stiefel.

    For the plaintiff-appellee, Harry Krieger.

   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff-entered in the First District Court of the city of Newark. The action was brought upon a trade acceptance and the proofs indicated that the plaintiff had acquired the same before maturity for a valuable consideration.

The appellant sets down three grounds for reversal:

(1) The trade acceptance was endorsed by Scholl Company per F. A. Scholl, president, and there was no proof of his authority so to do. The proofs, however, show that in previous dealings with the Scholl Company notes were endorsed in precisely this manner, so that the trial judge was justified in concluding that the president of the corporation was clothed with apparent authority to make the ejndorsement.

(2) It is argued that the court should not have struck the defendant’s set-off, which is for an amount beyond the jurisdiction of the District Court, the excess not being waived. Certainly, this action was entirely proper.

(3) It is argued that the plaintiff was not a holder in due course for value. The proofs offered at the trial demonstrate the contrary; nor is there any evidence to show fraud.

The judgment below is affirmed, with costs.


author: Pee Ctjeiam.

text:
    HENRY BRENSON AND LILLIAN BRENSON, PLAINTIFFS-RESPONDENTS, v. THOMAS M. SCOTT, DEFENDANT-APPELLANT.
    Submitted October 16, 1931
    Decided December 2, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the defendant-appellant, S tarr, Summerill & Lloyd (Frank T. Lloyd, Jr., of counsel).
    For the plaintiffs-respondents, Albert B. Melinlc and William G. Gotshalk.

   Pee Ctjeiam.

The defendant appeals from judgments in favor of the plaintiffs recovered in the Camden District Court.

The plaintiffs were the defendant’s guests and were driving in his automobile to Baltimore, Maryland. The steering gear mechanism broke causing the injuries from which they complain. At the time of the accident plaintiff Henry Brenson was driving the car at defendant’s request. There is testimony in the case indicating that defendant had stated that before he requested Brenson to drive the car he knew that there was something wrong with the steering wheel, but thought nothing would happen until he had had time to have it fixed. There was also evidence that the forewheels shimmied and wobbled on the way to Baltimore while the defendant was driving.

The case comes before us to reverse because of the failure of the trial court to direct a verdict in favor of the defendant. Unless we are willing to expunge from the record the proof of defendant’s knowledge of the defective steering wheel, we do not see how we can do so.

The judgment will therefore be affirmed, with costs.


text:
    FLORENCE AUMACK AND MILLARD AUMACK, Jr., PROSECUTORS, v. E. LEIGH COTTON AND THE SMALL CAUSE COURT, HOLDEN IN THE COUNTY OF MONMOUTH BY EDWARD BOUGHTON, ESQUIRE, JUSTICE OF THE PEACE, RESPONDENTS.
    Submitted May 15, 1931
    Decided December 3, 1931.
    Before Justices Trenchard, Daly and Donges.
    Eor the prosecutors, McCarter & English (Herbert E. Baer, of counsel).
    Eor the respondents, J. Frank Weigand.

   Per Curiam.

This matter comes upon writ of certiorari to review a judgment in an action in tort brought against Florence Aumaek and Millard Aumaek, Jr., by E. Leigh Cotton, in the Small Cause Court, which judgment was rendered against the defendants for $180.

It appears that the demand was for $200; that at the time suit was brought the justice of the peace holding such Small Cause Court resided in and held court in Lyncroft, in the township of Middletown in Monmouth county, and the defendants both resided in the borough of Eed Bank in the county of Monmouth.

When the case came on defendants entered a special appearance and challenged the jurisdiction of the court on the ground that in view of the residence of the defendants and the court, the court had no jurisdiction because of the statutes hereinafter mentioned. However, the court overruled the challenge, heard the case, and entered the judgment.

We think that the Small Cause Court here in question had no jurisdiction in the matter in controversy, as will plainly appear from an examination of the pertinent statutes.

The original act creating District Courts was passed in 1898, and provided for the establishment of District Courts in cities. Pamph. L. 1898, ch. 228, p. 556. That act by section 31 expressly provided that:

“No justice of the peace or court for the trial of small causes shall have jurisdiction over any cause or proceedings cognizable before a District Court, where the defendant or defendants reside within the limits of any city where a District Court is established.”

The Small Cause Court act was passed in 1903. In section 1 it gave the justice of peace civil jurisdiction up to $200, expressly providing, however, that the Small Cause Court should have no jurisdiction over any cause or proceeding cognizable before a District Court where any defendant resides within a municipality wherein a District Court is established. Pamph. L. 1903, ch. 165, p. 251.

Eive years later, in 1908, an amendment was passed to the District Court act cited herein above, which amendment created certain judicial districts (Pamph. L. 1908, ch. 49, p. 470) and further provided (at p. 77) that no justice of the peace or Small Cause Court should have jurisdiction in any judicial district where he resided or the defendant resided, and in which there was a District Court established for that district.

Subsequently, the provision last above mentioned was amended in Pamph. L. 3 923, p. 689, to provide for civil jurisdiction of the justices of the peace up to $50 in counties bordering on the Atlantic ocean, notwithstanding that the defendants resided within the judicial district.

In 1923 (Pamph. L. 1923, ch. 461, p. 175) the legislature re-enacted section 1 of the Small Cause Court act hereinabove mentioned, and inserted in the section a clause giving the Small Cause Court jurisdiction in proceedings between landlords and tenants and in actions of forcible entry and detainer.

Now the Second Judicial District of Monmouth county was “established and incorporated” by the legislature in 1913. Pamph. L. 1913, p. 61, and amended in Pamph. L. 1925, p. 352. The act as amended prescribed that the Second Judicial District of Monmouth county should comprehend “all that 2>art of the county of Monmouth and State of New Jersey, comprised within the following city, boroughs and townships within said county to wit: * * * the township of Middle-town * * * the borough of Red Bank * *

On the facts and law as above stated, it seems clear that the Small Cause Court in this instance had no jurisdiction, since the amount in dispute exceeded $50, and both the justice of the peace and the defendants resided in the Second Judicial District of the county of Monmouth where a District Court was established.

The court below, in assuming jurisdiction, cited as his authority the case of Weishaupt v. Weishaupt, 104 N. J. L. 465. The jilaintiifs below here rely upon that case. But we think it is not in point. There both the defendants and the justice of the peace resided in the city of Rahway. There was no District Court established in the city of Rahway, nor was there any judicial district in which a District Court was established, of which Rahway was a part. Accordingly, the Supreme Court in that case properly held that the justice of the peace had jurisdiction.

The judgment below is reversed, with costs.


author: Pek Curiam.

text:
    ROBERT M. WYNN, PROSECUTOR, v. CITY OF MARGATE CITY, DEFENDANT.
    Argued May 15, 1931
    Decided December 3, 1931.
    Before Justices Tkenchakd, Daly and Donges.
    For the prosecutor, Cole •& Cole.

    For the defendant, Enoch A. Higbee, Jr.

   Pek Curiam.

The prosecutor of this writ was convicted of a violation of section 14 of the zoning ordinance of Margate City. He brings up such proceeding and conviction for review. He is the owner of a lot by deed dated June 1st, 1926, from Law-ton Roorbach and Hazel Roorbach, his wife, to himself and wife, as tenants by the entirety, and described as all that certain lot, tract, or parcel of land and premises', situate, lying and being in the city of Margate City, county of Atlantic and State of New Jersey, known as lot 20, block 51 on plan of Margate Park, and also as lot 20, block 623A on tax map of Margate City. The lot had a width of thirty-two feet and a depth of one hundred feet, and is located within the dwelling zone. The lot is partly dry land and partly land over which flows the tidal waters of Beach Thoroughfare.

Prior to the passage of 'the zoning ordinance, there was erected upon this lot a frame dwelling house, part of which dwelling house was on dry land, and part of which dwelling house was on pilings oyer that portion of the lot covered by water.

On September 18th, 1930, Margate City adopted an ordinance entitled “An ordinance limiting and restricting to specified districts and regulating therein buildings and structures according to their construction and the nature and extent of their use in Margate City, in the county of Atlantic, and providing for the administration and enforcement of the provisions herein contained and fixing penalties for the violation thereof,” the pertinent parts of which ordinance are as follows:

Section 1 “(d) lot line. A lot line is any boundary line of a lot.”

“(i) Side yards. A side yard is an open unoccupied space within the lot between a side lot line and the parts of the main, building erected thereon and nearest thereto. Such side yard shall extend through from, the front lot line to the rear yard.”

“(j) Street. A street is any road, avenue, street, lane, or other way set aside for common street purposes or used for access to more than one lot. For the purposes of this ordinance in determining lot frontage or yards, the boardwalk, the waters of the Atlantic ocean and Beach Thoroughfare bordering the city, and of Orient and Sunset canals, shall be deemed the equivalent of a street.”

Section 4 “(b) No lot hereafter may be used and no building or part thereof hereafter may be erected, constructed, reconstructed, moved, extended, converted, altered, maintained or used except in conformity with the provisions of this ordinance.”

Section 14 “1. Within any dwelling zone there must be two side yards, the total width of which shall he not les& than eleven (11) feet, and neither one shall be less than three (3) feet where the lot frontage is more than thirty (30) feet. Where the lot frontage is thirty feet or less there shall be two side yards, neither of which shall be less than, three (3) feet.”

Section 16 “In their interpretation and- application the provisions of this ordinance shall be held to be the minimum requirements adopted for the promotion of the public health, morals and general welfare; for lessening the congestion in the streets; for securing safety from fire, panic and other dangers; for the provision of adequate light and air; for preventing overcrowding of lands or buildings; for the avoidance of undue concentration of population and for facilitating adequate provision of transportation, water, sewerage, schools, parks and other public improvements.”

After the passage of this ordinance, the prosecutor reconstructed that part of his dwelling on lot 20, over water, in such a way that the main side wall of his building was moved over towards the side line of his lot, so that after said reconr struction, the main side wall of his dwelling was within twelve inches of the side lot line, being the division line between lot 20 and lot 19.

It seems to be conceded by the prosecutor that he is guilty of a violation of the terms of the ordinance, unless the ordinance was not intended to apply to that portion of the lot under water and unless the ordinance is invalid in so far as it attempts to regulate structures on that part of the lot covered by water, and unless it was unreasonable.

We think that the provisions of the ordinance referred to do apply to land under water, and the word “land” as used therein has the same meaning as defined by Chancellor Walker in the ease of Philadelphia Trust, Safe Deposit and Insurance Co. v. The Mayor and Council of the Borough of Merchantville, 74 N. J. Eq. 330, wherein the Chancellor (at p. 332), defines the word “land” as follows: “Land, as I understand it, includes water, and this understanding seems to be supported by abundant authority. The word dand’ when used in a deed, includes not only the naked earth, but ■everything within it, and the buildings, trees, fixtures, fences; stones, minerals, water and herbage upon it. 18 Am. & Eng. Encycl. L. (2d ed.) 141. The word dand’ is comprehensive in its import, and includes many things besides the earth we tread on, as water, grass, buildings, fences, trees and the like, for all these may be conveyed by the general designation of land. 5 Words and Phrases, tit. ‘Land’ 3976,” and (at pp. 333, 334), as follows: “In Woodcliff v. New Jersey, &c., Railroad Co., 72 N. J. L. 137, land lying between high and low-water marks, acquired by a grant of riparian land, was held to be subject to condemnation under the state’s power of eminent domain. The property taken was described as land, and it was partly upland and partly land under the tidewaters of the Hudson river. The Supreme Court said (at p. 139) that it seems impossible, upon principle, to say that such lands [under water] may not be condemned by corporations having the state’s right of eminent domain. In Rand. Em. Dom. 77, it is said that the subjection of land, using the word in its common meaning, to the right of eminent domain is so evident that the citation of supporting cases is unnecessary. But among the wider uses of the word in law is that it describes earth and water in every natural ■condition, and all things artificially annexed to them. Hence, where there is an authorization, express or implied, to condemn land, the ex-proprietor may take under water a coal bed, land with buildings upon it, and in fine all improvements, interests and appurtenances included within the term real estate.”

But the prosecutor argues that so interpreted the ordinance is invalid, because the prosecutor has the state’s title. We think not.

At the time this ordinance was passed, the title to the lot in question was in the prosecutor and not in the State of New Jersey. The lot is within the boundaries of Margate City as fixed by chapter 100 of the laws of 1926. The location, dimensions and boundaries of this lot appear in the official records, and appear in the zoning map. As such, it was subject to regulation under the zoning ordinance for purposes of public safety the same as land purchased by one individual from another.

We think that the violation complained of by the city, of which the prosecutor has been found guilty, was a reasonable regulation.

Prosecutor’s structure is a frame structure, a private dwelling, and it is within the police power of the city, and a reasonable exercise of that police power, to require that the main wall of such structure shall be not closer to the side line of his lot than three feet. Such a regulation provides a protection against spread of fire, and suitable means for access to fight fire.

The writ will be dismissed, with costs.


text:
    FRANK LA FERA, OVERSEER OF THE POOR, IN BEHALF OF ELIZABETH FINHANDLER, PLAINTIFF BELOW AND PROSECUTOR IN CERTIORARI, v. WILLIAM SHERWOOD WATTS, ESSEX COUNTY JUVENILE COURT; JOSEPH SIEGLER, JUDGE, DEFENDANTS.
    Submitted May 15, 1931
    Decided December 3, 1931.
    Before Justices Trenchard, Daly and Donges.
    Eor the prosecutor, Joseph A. Fuerstman {Maxwell M. Attach, of counsel).
    Eor the defendant William Sherwood Watts, Fdward M. & Runyon Golie.

   Per Curiam.

This writ, sued out by the overseer of the poor, brings up an order and judgment made by the Essex County Juvenile Court finding the defendant in a bastardy proceeding not guilty and discharging him.

By the first and second reasons, the constitutionality of section 1, of chapter 175 of Pamph. L. 1922, purporting to confer jurisdiction on the Juvenile Court, is challenged: First, on the ground that the Bastardy act {Pamph. L. 1898, ch. 241, p. 959) and the supplements or amendments thereto conferred no jurisdiction on said court to try bastardy cases; second, because it does not express in its title that it is an amendment or supplement to the act of 1898, chapter 241; third, because it constituted an amendment of the Bastardy act by reference to title only; fourth, because it is unworkable, unintelligible and inoperative.”

The singular feature of this case is that the prosecutor challenges the jurisdiction of the court whose aid he invoked by his complaint.

The act in question has been construed by this court and the first section thereof sustained as constitutional. The second section was declared unconstitutional because it undertook to give the Juvenile Court cognizance of a complaint by the mother of the child or by two disinterested persons without the intervention of the overseer of the poor, while the Bastardy act provides that the complaint must be made by the overseer of the poor, and this provision was not disclosed by the title. This was decided in Fautz v. Juvenile Court of Essex County, 6 N. J. Mis. R. 586. That must be taken in this court as settling the question of the constitutionality of the act, exclusive of the second section, as to which the court said: “We think the second section of the statute may be exscinded in that it was enacted in violation of the constitutional provision above referred to, and the first section conferring jurisdiction on the Juvenile Court in bastardy cases be permitted to stand.”

As construed in Fautz v. Juvenile Court, supra, the act gives to the judge of the Juvenile Court, sitting as a magistrate, concurrent jurisdiction with the magistrates who sit under the provisions of the Bastardy act, “to hear and determine disputes regarding the parentage, care, custody and maintenance of illegitimate children.”

The fifth and sixth reasons practically raise the same question. They are as follows:

Fifth, because the Juvenile Court did not, as required by section 8, chapter 241 (Pamph. L. 1898—Rev. 1898), “decide at the trial” whether the person charged was the father of the bastard child;

Sixth, because the Juvenile Court was without power to reserve decision and therefore lost jurisdiction.

Section 8 of the Bastardy act of 1898, page 962, referred to says: “At the trial aforesaid, the said magistrate * * * shall ‘decide’ whether the person so charged is the father of such bastard,” &c. As we view this record it is unnecessary in this case to determine what would be the legal effect of a decision of the court some days after the close of the evidence without the consent of the defendant. It is unnecessary for this reason: In the “agreed state of facts’’ it appears that every step in the proceeding before the Juvenile Court was taken with the consent of the respective attorneys of the plaintiff below (the prosecutor of this writ) and the defendant, and that all the delays after taking the testimony were caused by the failure to produce the child in court for the inspection of the court, as had been agreed upon in open court, and by the failure of the prosecutor’s attorney to promptly furnish to the court his brief, which in open court he asked and obtained permission to furnish and have examined by the court. The agreed facts show conclusively that within a few days after these things were done the court very promptly “decided” the case, finding the defendant below was not the father of the alleged bastard child. We therefore conclude that the reasons advanced are without merit.

The writ will be dismissed, with costs.


text:
    S. S. THOMPSON & COMPANY, INCORPORATED, PLAINTIFF, v. ELMER W. STRAUB ET AL., DEFENDANTS.
    Decided December 8, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Eor the rule, John P. Toolan.

    Contra, Theodore D. Parsons.

   Per Curiam.

This suit was brought by the plaintiff corporation to recover from the defendants ten cents per cubic yard for soil -deposited upon the lands of the latter by the firm of Eournier Brothers. The claim’ of the plaintiff was that fifty-eight thousand one hundred and sixty-two cubic yards of soil had been ’deposited upon the defendants’ lands, and that the plaintiff was entitled to recover therefor the sum of ten cents per cubic yard. The defendants denied any obligation to pay for any part of the soil so deposited. The jury returned a verdict in favor of the plaintiff, awarding it the sum of $2,900. The defendants seek to have this award set aside upon the ground that it is contrary to the great weight of the evidence.

The situation exhibited by the proofs was as follows: The plaintiff corporation had entered into a contract with the state highway commission to construct a drawbridge over the Matawan creek, near the town of Keyport. It subcontracted the necessary dredging to Eournier Brothers. After the soil had been dredged by the subcontractors, they agreed with the defendants that they would deposit this soil on the lands of the latter, if they desired such deposit to be made, at the price of ten cents per cubic yard. In making this agrément, they were acting on behalf of the plaintiff, who controlled the excavated soil and was entitled to use the same as it saw fit-The agreement between Fournier Brothers and the defendants provided that the defendants should exercise their option within thirty days threafter, and, if they concluded to purchase the excavated soil, they should pay the agreed upon price in installments of thirty days, the amount of the deposits to be determined by measurements of the engineers of the state highway commission. The proofs submitted on the part of the plaintiff showed that this soil to the extent indicated had been deposited upon the lands of the defendants, but that no measurements of the amount of the deposits-during each month were furnished the defendants because of the delay of the engineers of the state highway commission in ascertaining the amounts of such deposits, and that, consequently, no payments therefor had been made by the defendants on account of the contract. The proofs further showed that these deposits were made with the knowledge of' the defendants and upon that part of their lands which they selected, and that they never objected in any way to this being-done, but by implication consented to it. The defendants, by the testimony submitted on their behalf, denied any knowledge of the making of these deposits or of the amount thereof,, and claimed that, because of this fact, they were under m> obligation to pay either ten cents per cubic yard or any other-sum for the soil deposited with their knowledge on their lands.

The court left it to the jury to determine whether or not this soil was deposited by Fournier Brothers from time to-time on the defendants’ lands, with the knowledge of the-latter and without any objection by them, and by its verdict it resolved this question in favor of the plaintiff. We think the testimony justified the jury in so concluding. This being-so, and the total amount of soil specified in the complaint having been actually deposited on the defendants’ lands, as-their counsel admits in his brief, the fact that no measurement was made by the engineers of the state highway commission and no report of the amount of the deposit furnished to the defendants does not, in our opinion, absolve them from liability to pay the price agreed upon for the amount of soil .-actually deposited. The jury awarded the plaintiff a less .amount than the contract called for, and, certainly, in doing this, it cannot be said that the defendants were injured.

Counsel further argues that the verdict is contrary to the law and in violation of the court’s charge. This, however, is not set out as a reason for making the rule absolute, and, consequently, is a matter not involved in the determination •of the present rule.

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


author: Eedbedge, S. C. C.

text:
    TRADESMEN’S NATIONAL BANK AND TRUST COMPANY, PLAINTIFF, v. CUMMINGS BROTHERS COMPANY, DEFENDANT.
    Decided December 8, 1931.
    Par the plaintiff, Louis B. LeDuc.

    Eor the defendant, Bleakly, Sioclcwell & Burling.

   Eedbedge, S. C. C.

The plaintiff’s suit in on a judgment re-covered by it against the defendant, in Common Pleas Court No. 5 of Philadelphia, Pennsylvania. Judgment was entered in that court against the defendant, and damages assessed •on July 15th, 1931. The suit in New Jersey was commenced 'on August 12th, 1931, and the defendant was served on -August EOth, 1931. On August 28th, 1931, defendant entered an appeal from the Common Pleas judgment in Pennsylvania to the Supreme Court of that state but filed no bail or appeal bond. The defendant’s answer to the present suit sets up as a defense the fact that this appeal was taken from the Common Pleas judgment in Pennsylvania. The plaintiff now moves to strike the answer on the ground that the appeal referred to does not act as a supersedeas in the State of Pennsylvania and that therefore does not operate as a bar to the prosecution of a suit on that judgment, in the State-of New Jersey.

This contention on the part of counsel for the plaintiff' raises the principal question for the decision of the court in this matter. There are, however, aside from this main question, two others which must be disposed of.

In the first place, counsel for the defendant alleges that-proof supporting the plaintiff’s contention should be by depositions and not by ex parte affidavits. This contention, however, cannot be sustained. The Practice act of 1912 (2 Cum.. Supp. Comp. Stat., p. 2816, § 15) provides for the striking-out of frivolous and sham defenses and the entry of summary-judgment. Rule 81 of our Supreme Court provides that “the motion to strike out shall be made upon affidavit of the-plaintiff or that of any other person cognizant of the facts-verifying the cause of action; and stating the amount claimed and his belief that there is no defense to the action.” This-method of proof has been passed upon and approved in the-cases of John Eisele and Nathanial King, partners, v. Elias Raphael, 90 N. J. L. 219; Danehower v. Birch, Jr., 97 Id. 193.

The affidavit of Edwin Williams, vice-president of the-plaintiff bank, complies with the above quoted rule. The O’Brien affidavit is introduced in support of Williams’ statement that there is no defense to the plaintiff’s suit.

In the second place, counsel for the defendant contends that the method of proving the law of the State of Pennsylvania, namely, by affidavit of a Pennsylvania lawyer, is not the proper méthod of proof. This contention is answered by Title Guarantee and Trust Co. v. Trenton Potteries Co., 56 N. J. Eq. 441, and further by the fact that the pamphlet laws of Pennsylvania and the reports of the decisions cited in the O’Brien affidavit were presented to the court at the time of argument. Our statute makes these admissible in evidence. See Comp. Stat., p. 2228, § 24, and p. 2229, § 26.

Having disposed of these two questions, it remains to consider the main question above referred to, namely, whether the pending appeal in Pennsylvania will operate as a defense in an action brought in New Jersey on the Pennsylvania judgment. The general rule respecting the effect of an appeal is stated in 15 Ruling Case Law 942, as follows:

“The rule is well settled that the pendency of an appeal does not prevent an action on a foreign judgment if the appeal does not operate as a supersedeas, or stay of proceedings in the jurisdiction wherein it was rendered or if there has not been a compliance with the requisite conditions to obtain a supersedeas.”

This rule was followed in the State of New Jersey in Suydam v. Hoyt, 25 N. J. L. 230, and so far as the court is-able to determine is still the law in New Jersey today, this case having been cited with approval in McCusker v. Commonwealth Casually Company, 106 Id. 116. Unless then the appeal taken in Pennsylvania acts as a supersedeas, the plaintiff’s motion must prevail. An examination of the statutes and decisions of the Pennsylvania courts leads to the conclusion that where a money judgment has been entered against a defendant in the Common Pleas Court of Pennsylvania and the defendant perfects an appeal therefrom to the Supreme Court but does not file within three weeks from the date of the entry of such judgment in the said Court of Common Pleas from which the appeal is taken, bail or bond with proper security in double the amount of the judgment and costs accrued or likely to accrue, the appeal does not act as a supersedeas of execution issuing subsequent to the appeal, and the judgment creditor has the right to issue execution regardless of the appeal and to collect the amount of judgment with costs in regular order. The appeal in Pennsylvania then not operating as a supersedeas, the plaintiff must succeed, provided the proceedings taken in Pennsylvania, after judgment in the Common Pleas Court, constitute an appeal. The transcript of the docket entries referred to a certiorari from the Supreme Court. The rules of the Pennsylvania Supreme Court and the affidavits filed, however, lead to the conclusion that what is designated as a certiorari in the docket is but the designation of an order constituting one of the steps in an appeal.

The motion to strike the answer will therefore be granted.


author: Ackerson, S. C. C.

text:
    HAROLD SEAMAN, PLAINTIFF, v. JOHN BALL, DEFENDANT. CHARLOTTE SEAMAN, ADMINISTRATOR AD PROSEQUEN-DUM OF THE ESTATE OF HAROLD SEAMAN, DECEASED, PLAINTIFF, v. JOHN BALL, DEFENDANT.
    Decided December 4, 1931.
   Ackerson, S. C. C.

The above two cases come before me upon rules to show cause why the verdicts obtained by the plaintiffs should not be set aside, and new trials granted, upon the ground that the verdicts are inadequate.

The verdict in favor of the administrator ad prosequendum was for $5,000 and the verdict in favor of the general administrator $2,000.

I have carefully read every bit of the testimony in the cases and have reached the conclusion that the verdicts are so inadequate as to be contrary to the great weight of evidence and to indicate that the jury was influenced by passion, prejudice or mistake and the verdicts will, therefore, be set aside and a new trial granted de novo in each case, and an order may he presented in accordance with the conclusion thus reached.


author: Pee Curiam.

text:
    ANNA GOLDEN, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Submitted October 16, 1931
    Decided December 4, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the motion, Aaron L. Simon.

    Contra, Henry H. Fryling.

   Pee Curiam.

This is a motion to vacate an order entered in the Passaic Circuit directing the plaintiff to submit to an X-ray radio-graph pursuant to the provisions of the Evidence act as amended. Pamph. L. 1931, p. 124. The act in question in part provides as follows: “On or before the trial of any action brought to recover damages for injury to the person, the court before whom such action is pending may from time to time on the application of any party therein, order and direct an examination of the person injured as to the injury complained of and may in the discretion of the court on application of any party therein and on notice to the other party, order and direct an X-ray radiograph, or X-ray radio-graphs, be taken of the person injured as to the injury complained of by a competent physician or physicians, surgeon or surgeons, roentgenologist or roentgenologists in the presence of a representative of all parties to the action, in order to qualify the person or persons making such examination to testify in the said cause as to the nature, extent and probably duration of the injury complained of.”

It is the contention of the applicant that the act is unconstitutional under the fourteenth amendment of the constitution of the United States. No case is cited on all fours with the present matter. A number of decisions in other jurisdictions have held that in the absence of statute the court could not compel plaintiff under an examination before trial to submit to the taking of X-ray radiographs. These decisions rested upon the lack of confidence of the court in the safety of the process, not on the lack of power of the court to require an examination before trial. We assume that the legislature in enacting the 1931 amendment decided that there was perfect safety and propriety in the taking of X-ray radiographs. Hence, the order of the Circuit judge made pursuant to the statute was as well within his power as an order directing the plaintiff to submit to a physical examination in the presence of her physician by a competent physician chosen by the defendant. McGovern v. Hope, 63 N. J. L. 76. Nor was the power of the court, to require an X-ray to be taken, doubted in Andrus v. Fomfara, 127 Atl. Rep. 788; although the request was refused in that case because X-ray radiographs sometimes result in injury. The amendatory statute makes it discretionary with the court to order an X-ray radiograph, and in the absence of anything to show an abuse of discretion the order seems to be proper and within the legislative grant of power.

The motion is denied.


author: Peb Cubiam.

text:
    MORRIS SHAPANKA AND SAMUEL SHAPANKA, PLAINTIFFS-APPELLEES, v. SAMUEL NIRENBERG, DEFENDANT-APPELLANT.
    Submitted October 16, 1931
    Decided December 4, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the defendant-appellant, David T. Wileniz (Conover ,English, of counsel).
    Eor the plaintiffs-appelJees, Leivis 8. Jacobson.

   Peb Cubiam.

This ease comes up on an appeal from a judgment entered in the Middlesex Pleas. The suit was brought upon a contract by which plaintiffs were to manufacture for the defendant a large quantity of shirts for $2.55 a dozen, the material to be furnished by the defendant. The defendant failed and refused to furnish the material, thereby preventing performance at the time specified, or as a matter of fact at any other time.

The plaintiffs’ proofs clearly showed that they would have made a profit of at least a dollar a dozen on the shirts to be manufactured. Defendant offered no evidence, and the trial judge directed the jury to bring in a verdict in favor of the plaintiffs for at least one dollar a dozen damages, which they did. Damages recovered were the profits which the proofs showed the plaintiffs would have realized had they been permitted to perform the contract. Kehoe v. Rutherford, 56 N. J. L. 23; Harrison v. Clarke, 78 Id. 236.

There being no disputed questions of law and fact the direction was proper and the judgment is affirmed, with costs.


text:
    JOHN HARRINGTON ET AL. v. TACO GREIDANUS.
    Decided December 8, 1931.
    Before Gummere, Chiee Justice, and Justices Parker and Case.
    Eor the appellant, William Tyaclce and Edward L. Davis..

    For the respondents, Richard J. Fitz Maurice and Anard' W. Littmann.

   Per Curiam.

Rule 141 of this court provides that on all appeals taken the statement of the case submitted to the court shall include,, among other matters, the record of the case. It hardly seems necessary to state that a judgment which is sought to be reviewed must appear as a part of that record. An examination of the statement of the case submitted to the court on this appeal fails to disclose that any judgment was ever-entered in the Circuit Court. Unless the record of the alleged judgment is included in the statement of the case submitted upon the appeal, the court cannot either affirm or reverse it,, for there is nothing before the court to review. Thompson v. Browne, 39 N. J. L. 2; Mershon v. Castru, 57 Id. 484; Stagway v. Riker, 88 Atl. Rep. 1067.

For the reason indicated, the appeal will be dismissed


author: Peebetti, J.

text:
    Passaic District Court.
    HERMAN STADTMAUER, PLAINTIFF, v. JEFFERSON FINANCE CORPORATION, DEFENDANT. JEFFERSON FINANCE CORPORATION, PLAINTIFF, v. DAVID M. GREEN, BEN STADTMAUER AND ABE STADTMAUER, DEFENDANTS.
    Eor the Jefferson. Finance Corporation, 'Irving L. Werhsman.

    For Herman Stadtmauer et al., Joseph B. Stadtmauer.

   Peebetti, J.

Plaintiff, Herman Stadtmauer, seeks to recover from the defendant, Jefferson Finance Corporation, the sum of $234.55, alleging that the defendant company violated provisions of the “small loan statute. Pamph. L. 1914, ch. 49, and as amended by Pamph. L. 1928, ch. 251.”

Defendant, Jefferson Finance Corporation, on the other hand, asks for judgment against the defendants David M. .Green, Ben Stadtmauer and Abe Stadtmauer, by reason of a loan obtained by them on February 14th, 1930, on which note counsel concedes there is a balance due and unpaid of •$281.64.

By agreement, counsel agreed to try both cases together, and the evidence adduced to apply to each cause of action.

After a careful perusal of the voluminous briefs filed with me, I am unable to find as a fact that there have been any violations of any of the sections upon which the borrower relies to nullify the loan made by him. Section 5, chapter 49, of the laws of 1914, and as amended by chapter 251 of the laws of 1928, provides as follows:

“5. No such licensee shall charge or receive of the borrower or borrowers, or any other person on his, her or their behalf, a greater rate of interest than three per centum per month. Such interest shall not be payable in advance and shall be computed on unpaid balances. No charges, bonus, fees, expense or demands 'of any nature whatsoever other than interest as above provided shall be made upon such loans or advancements except upon such actual foreclosure of the security or upon the entry of judgment. Every such licensee shall furnish the borrower at the time the loan is made a statement in the English language showing in clear and distinct terms the amount of the loan, and the date when loaned and when due, the person to whom the loan is made, the name of the lender, and the' amount and rate of interest charged. On the back of such statement there shall be printed in English a copy of section 5 of this act. The lender shall give to the borrower a plain and complete receipt for all payments made on account of the loan at the time such payments are made. No loan or advancement greater than three hundred (300) dollars shall be made to any person under this act nor shall any one person owe such licensee more than three hundred (300) dollars at any time either directly as maker or indirectly as endorser or guarantor.”

Recently, the Supreme Court dealt with these particular sections in the case of John R. Sartori et al. v. Englewood Finance Co., decided January 21st, 1931, and compared section 5 of the act of 1914 as amended by chapter 251 of the laws of 1928, and then said this amendment merely added the words “either directly as maker or indirectly as endorser or guarantor.” In other respects the language is identical with that of the original act of 1914. The trial court held that the balance of the original section 5 was in substantial compliance with the provisions of the act which was sufficient.

I am bound to accept the view of the higher tribunal rather than the decisions heretofore rendered by the respective District Court judges cited in counsels’ briefs.

Disposing of this feature of the case, I find as a fact that the first loan was paid and satisfied on February 14th, 1930, and the second loan was made thereafter, so that at no time did two loans exist or any sum in excess of $300 from any of the borrowers. I am constrained to find for the Jefferson Finance Corporation where it is defendant and in its favor where it is plaintiff.

Cases that touch upon the subject involving the “Small Loan act (Pamph. L. 1914, p. 75)” and which I have considered and read are as follows: Easy Term Loan Co. v. Silberman, 125 Atl. Rep. 561; Consolidated Plan of New Jersey v. Shanholtz, 147 Id. 401; Confidential Finance Co. v. Monastersky, 148 Id. 183; Rosenbusch v. Fry, 136 Id. 711; Morris Plan Corporation of New Jersey v. Schwartz, 150 Id. 390, and North Hudson Loan Co. v. Roth, 136 Id. 712.

I was by no means impressed with the testimony of the plaintiff Herman Stadtmauer. It was quite apparent to me that he was not free or frank about his statements. He was quite unwilling to assist the court in presenting the true status and did not create a favorable impression.

Judgment will, therefore, be entered in favor of Jefferson Finance Corporation and against David M. Green, Ben Stadtmauer and Abe Stadtmauer, in the sum of $281.64, together with interest amounting to $83.73, aggregating the sum of $365.37.


author: Kremer, J.

text:
    First Judicial District of Monmouth County.
    EDNA JOHNSTON, PLAINTIFF, v. BLANCHE D. PAYN, ISADORE B. GLASS AND FREDERICK SMITH, DEFENDANTS.
    For the plaintiff, David Goldstein.

    For the defendants, Anschelewitz, Frankel & Barr.

   Kremer, J.

This is a suit in replevin and now comes before the court on a motion by the defendant to vacate an order granting to the defendant the right to examine the plaintiff before trial. The plaintiff claims that section 144 of the Practice act (4 Comp. Stat., p. 4098), which provides in substance for the examination of any party to an action before trial, is not applicable to the District Court.

The District Court act is silent as to the practice of examination before trial. Certain statutory provisions have been enacted relating to procedure before trial in a District Court action. It is provided by section 61-b of the act that a plaintiff in an action on contract where the matter in dispute, as shown by the summons, is over the sum of $300, may by endorsement upon the state of demand of proper notice to the defendant, compel the filing of written specification of defenses.

Again section 54-b of the District Court act provides that in any action in a District Court wherein the thing or matter in dispute as shown by the summons is of the value of $300 or over, either party may, by leave of the court, serve on the adverse party written interrogatories upon any matter material to the issue.

There is also a section of the District Court act (section 68) which provides that—

“The practice of the Circuit Courts in so far as applicable, shall apply to District Courts, excepting, however, in cases where there may be some provision of law providing otherwise.”

I am of the opinion that the reasoning adopted by our Supreme Court in the case of Kienzle v. Gardner, 73 N. J. L. 258, points to the conclusion that no examination before trial under section 144 of the Practice act above referred to is permissible in a District Court. The case of Kienzle v. Gardner, supra, had to do with the necessity for depositing security for costs by a non-resident. Section 204 of the Practice act (3 Comp. Stat., p. 4115; Pamph. L. 1903, p. 590) provides that—

“If the plaintiff reside within this state he shall, if required at any time before notice of trial, give bond to the defendant in $100 with sufficient sureties resident in this state, with condition to prosecute his action with effect ^ W

On the question whether this section was applicable to a suit in the District Court, our Supreme Court said:

“In the Circuit Courts, the practice respecting security for costs is regulated by sections 204, 205 and 206 of the Practice act. These sections prescribe that such security must be demanded by the defendant before notice of trial and that after he receives notice of the filing of security he shall have the same time to plead as he had when he demanded it. These provisions are .inapplicable to the District Courts, where no notice of trial is given except by the process issuing at the beginning of the suit, or by regular adjournments, and where usually no pleading on behalf of the defendant is necessary.” The opinion of the court was grounded upon the fact that in the District Court there is no notice required such as is the practice in the Circuit Courts.

Section 144, providing for examination of an adverse party before trial contains, in part, the following language: “Any party to an action may by order of the court or a judge, be examined as a witness at the instance of the adverse party, or of any one of several adverse parties, after issue joined and before trial; * * *”

The words “after issue joined” indicate that this clause is not applicable to the District Court, for the reason that issue is not joined in a District Cpurt proceeding in the sense contemplated by the statute. In a proceeding in the Circuit Court an answer and reply are filed, thus joining issue. After this has been done the examination before trial is provided for. In a District Court proceeding there are no formal pleadings to the state of demand. No answer is required and consequently no reply need be filed. It might be said that issue is joined in a District Court case when the defendant appears and announces his intention to contest the suit. In this event, however, the suit proceeds to trial, oftentimes on the return day of the summons. Such a procedure excludes the view that an examination before trial could be had in a District Court cause. The plaintiff may indicate on the summons his intention to proceed with the trial on the return date and if he does so, the defendant may be compelled to proceed without further delay. Section 61-a, District Court act.

In other words, the statute empowers the plaintiff to give notice to his adversary that the suit will be disposed of on the return day of the summons and up until the return day the plaintiff has no means of knowing whether there is to be a contest or whether the judgment is to go by default. In view of the fact that section 144 of the Practice act relating to examination before trial specifies that this examination cannot be had until after issue joined, its inapplicability to a District Court will readily be seen. Certainly, it would be inconsistent to provide that the plaintiff may proceed on the first return day, up until which time issue cannot be joined even by the appearance of the defendant, and to provide at the same time that either of the parties may examine his adversary before trial and after issue joined. It becomes apparent, therefore, that the legislative intent was to provide the specification of defenses and interrogatories as the sole means of procuring such information as is properly obtainable before the trial itself, and that the section having to do with examination before trial is not applicable to District Courts.

The order will therefore be vacated.


author: Eastwood, J. A. D.

text:
    ARTHUR DeMOORS, PLAINTIFF-RESPONDENT, v. ATLANTIC CASUALTY INSURANCE COMPANY OF NEWARK, NEW JERSEY, A CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 27, 1948
    Decided October 11, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Harry Kay, for plaintiff-respondent.

      Mr. David Green (Messrs. Harkavy & Lieb, of counsel), for defendant-appellant.
   The opinion of the court was delivered by

Eastwood, J. A. D.

Plaintiff sued defendant insurance company for damages to his automobile under the collision liability provisions of an insurance policy, less $25 deductible under the terms thereof. The defense interposed was that plaintiff had breached the terms of the insurance contract, in that he had falsely stated his place of residence and place where the insured automobile would be principally garaged. The address given by plaintiff and place where his automobile was principally garaged was 320 Broadway, Newark 4, Essex County, New Jersey. Defendant contends that the proofs established that plaintiff resided at Bakers Mills, New York, and that his automobile and driver’s licenses were issued by the State of New York. Liability was denied by defendant on the theory that plaintiff’s statements of residence and place where the automobile would be principally garaged were false, and consequently it was not obliged under the terms of the policy to pay the damages sustained by plaintiff. The District Court, sitting as judge and jury, found that “plaintiff 'had an address at 320 Broadway, Newark 4, Essex County, New Jersey, and that the automobile of plaintiff was principally garaged and used in the above City, County and State, all within the meaning of the declarations of the policy;” that plaintiff “had an accident and that proof of loss of said accident was given to the defendant within the meaning of the terms of the policy;” and, therefore, that plaintiff was entitled to recover upon the said policy against defendant. The judgment from which this appeal stems was accordingly entered in favor of plaintiff against defendant.

The rule of law heretofore was well established that findings of fact by the trial judge, sitting as a court and jury 'in the district court, on conflicting evidence were conclusive on appeal. R. S. 2:32-202. Vischia v. Benjamin Motor Express, Inc., 24 N. J. Misc. 255 (Sup. Ct. 1945), 48 Atl. (2d) 391; Oliver v. Leonardo, 135 N. J. L. 210 (Sup. Ct. 1947), 51 Atl. (2d) 129; Underwood v. Katz, 135 N. J. L. 214 (Sup. CL 1947), 51 Atl. (2d) 127. The present rules governing the-courts of this State authorize an independent review by the appellate tribunal of issues of fact whether determined by a verdict of a jury or by the court sitting as a jury. Supreme Court Rule 1:2-20 and Superior Court, Appellate Division, Rule 4:2-6. Cf. Superior Court Rule 3:81-13. We do not find it necessary in this case to determine the precise effect of these rules. There was sufficient evidence below from which the district court judge, sitting as judge and jury, could find, as-he did, that plaintiff had an address within the meaning of the terms of the policy at 320 Broadway, Newark 4, Essex County, New Jersey, where his automobile was principally garaged. In the case sub judice, we perceive no justification for disturbing his findings of fact.

We have considered the other grounds advanced by defendant for reversal of the judgment below, and conclude that our determination is dispositive of the issue.

The judgment is affirmed with costs.


author: Bigelow, J. A. D.

text:
    PETER C. BUSCHBAUM, PLAINTIFF-RESPONDENT, v. PAUL W. BARRON, TRADING AS AFFILIATED BUSINESS BROKERS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 27, 1948
    Decided October 11, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Samuel L. Minsky (Mr. Heyman Zimel, of counsel,), for plaintiff-respondent.

      Mr. Lewis R. Harris, for defendant-appellant.
   The opinion of the court was delivered by

Bigelow, J. A. D.

The plaintiff engaged defendant as a business broker to find a purchaser for a small business known as Pete’s Tydol Service which was conducted on leased premises at Emerson, New Jersey. Defendant succeeded in doing so and plaintiff sold the business. The purchase price passed through defendant’s hands, first the initial deposit and then the balance of the price when the bill of sale was delivered. He retained his agreed commission, $175, and handed over the rest of the money to plaintiff. Two months later, plaintiff instituted suit for the money so retained, and was awarded judgment on the ground that defendant had not been entitled to any commission, as he was prohibited by the statute from participating as a broker in the transaction, since it included a transfer of the leasehold and defendant did not have a real estate broker’s license. R. S. 45:15 — 3.

The Court of Errors and Appeals in Kenney v. Paterson Milk & Cream Co. (E. & A. 1933) 110 N. J. Law 141, held that an unlicensed broker could not maintain an action for a commission on the sale of the defendant’s business as a going concern when the sale included real estate. A New York decision, Weingast v. Rialto Pastry Shop (1926) 243 N. Y. 113, 152 N. E. 693, was distinguished on sundry grounds, among them that there only an assignment of a lease was involved in the sale of the business and not the conveyance of the land itself. The few reported cases dealing with the necessity for a broker’s license, are collected in a note in 88 A. L. R. 1422. See also 8 Am. Jur. 996, Brokers, sec. 12. Whether the rule of the Kenney case forbids one without a real estate broker’s license to negotiate the sale of a small business where an assignment of the leasehold is incident to the deal, is a question which we need not attempt to answer, since we must reverse the judgment on another ground.

This is not a suit by the broker for his commission, but is an action by his client to recapture the commission which has already been paid. The listing agreement contained authority for defendant to deduct his commission from the purchase price. The contract of sale contained a covenant by the plaintiff to pay the commission upon the .closing of the transaction. When that time arrived, plaintiff was present and allowed defendant to receive the purchase price and take out of it the commission as contemplated by the listing agreement. While plaintiff did not himself count out the money for the commission and hand it to defendant, his acquiescence in what was done, as well as the authorization he had given defendant to deduct his commission, brings the case within the rules governing voluntary payments made under a mistake of law, or pursuant to an illegal bargain. Generally, the one who has made the payment is not entitled to restitution. Rest. Restitution, secs. 45 and 47. D’Aloia v. Summit, (Sup. Ct. 1916) 89 N. J. Law 154; Lehigh Valley R. R. Co. v. United Lead, Co., (Sup. Ct. 1926) 102 N. J. Law 545; 4 Am. Jur. 518, Assumpsit, sec. 23. The entire transaction had been executed. Plaintiff received from defendant full performance and paid only what he promised to pay. Plaintiff showed no basis for relief.

The judgment will be reversed with instructions to enter judgment for the defendant.


author: Donges, J. A. D.

text:
    GEORGE MAYO, PETITIONER-RESPONDENT, v. HUNT’S THEATRES, INC., DEFENDANT-APPELLANT.
    Superior Court of New jersey Appellate Division.
    Argued October 18, 1948
    Decided November 8, 1948.

      Before Judges McGeehan, Donges and Colie.

      Mr. T. Millet Hand and Mr. Nathan C. Staller, for petitioner-respondent.

      Mr. George T. Naame and Mr. Harry Miller, for defendant-appellant.
   The opinion of the court was delivered by

Donges, J. A. D.

Certiorari was allowed to review the determination of the Cape May County Court affirming an award in the Workmen’s Compensation Bureau in favor of petitioner-respondent, for disability resulting from an accident which was alleged to have arisen out of and in the course of his employment by the defendant-appellant, on February 2, 1946.

The accident and the injury to respondent are not controverted. Two questions were raised at the hearing and argued here, namely: (1) Was petitioner an employee of the defendant? (2) Did petitioner sustain an accident arising out of and in the course of his employment?

The answer to both questions is to be found in the testimony of petitioner, much of which was not denied. Petitioner had a truck and defendant through its superintendent, engaged him to work 8 hours a day for 6 days a week at a fixed amount. Petitioner testified that he did hauling, as he was directed by the persons having authority to direct employees as to their duties and that he performed whatever work he was directed to do. The superintendent of construction for defendant, Henry Witte, testified that he hired petitioner. On direct examination he testified:

“Q. Did you hire George Mayo? A. Yes * * *.
“Q. What did you hire him to do? A. Well, to do general hauling.
“Q. What did he have that induced you, if anything, to hire him? A. He had a truck. I hired him and the truck.
“Q. At what price ? A. $40.00 a week.
“Q. Now, did he perform his work of hauling? A. Yes.
“Q. Who told him what to do? A. Well, I told him or my foreman.
“Q. Now, did you ever tell him how to do it? A. No. Well, sure I told him how to do it if there was anything particular to do, but his general work was to haul anything that we might need. * * *
“Q. Now, in addition to general hauling, did he do any other work? A. Well, he helped to clean up around when there wasn’t any hauling to do.
“Q. So that while he may not have had a specific number of loads he had to haul, he was working 8 hours a day? A. Working 8 hours a day, yes.”
He further testified that Mayo did various jobs for defendant, hauling chairs from defendant’s theatres to churches and firewood to the farm of Mr. William C. Hunt. The witness was asked on cross-examination:
“Q. Is it- not a fact he was at the beck and call of the Pluntfs Theatres’ officers whenever they wanted him to do something, he did it? A. He was under my employ, but if they asked him to do anything, I guess he went right ahead and done it.”

This testimony supports the testimony of petitioner that he was employed to work for the Hunt’s Theatre, Inc. to do hauling with his truck and such other work as Mr. Witte and others in authority directed him to do. He was paid on a weekly basis, receiving a check each Friday, with the other employees of defendant.

Defendant urges that petitioner was not included in the list of employees whose compensation was subject to deductions for unemployment compensation, social security, etc. This, however, was a matter for the employer to take care of. The employment began in October, 1945, and ceased on February 2, 1946, and, if required, may have been an oversight of defendant.

From the testimony it appears that the relationship of master and servant existed in this case. In Errickson v. Schwiers Co., 108 N. J. L. 481 (Sup. Ct. 1932), it was said: “The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done.” See Burdick v. Liberty Motor Freight Lines, 128 N. J. Law 229 (Sup. Ct. 1942). To the same effect is Wadge v. Crestwood Acres, Inc., 20 N. J. Misc. 188, 128 N. J. L. 551 (Sup. Ct. 1942); aff. 129 N. J. Law 400 (E. & A. 1942); El v. Newark Star-Ledger, 131 N. J. Law 373, (Sup. Ct. 1944).

It follows that the determinations of the Bureau and of the County Court were amply supported by the testimony, and we conclude that the relationship of master and servant existed in this case.

Did the injury sustained by petitioner result from an accident arising out of and in the course of his employment?

Petitioner testified that he reported to work at 8:00 o’clock in the morning and worked to 4:30, sometimes to 5:00 in the afternoon; that he stopped at 12:00 o’clock for lunch; that he drove the truck to his home, had his lunch and left his home about 12:25 to return to work at 12:30 o’clock. On the day in question, he went home for lunch and remained a time thereafter to repair the muffler on his truck; that his superior knew of the condition and that he had told petitioner to stop at the Wildwood Trust Company and remove some trash, and then return to one of the defendant’s theatres and clean it, and then to get some chairs at one theatre and take them to the theatre he was to clean. Mr. Hunt, the head of the defendant corporation, testified that he told petitioner to take up the rubbish at the bank; that he did not recall telling him he would be paid for that particular work. It would appear that petitioner was doing such work in the line of his employment for defendant and not for the bank. He was accustomed to do whatever he was direteted to do by those in authority of the theatres, and, certainly, Mr. Hunt was such authority.

Defendant lays stress upon a statement alleged to have been made to an investigator for an insurance company, which contained a written statement signed by petitioner that he was to be paid $5 per week by the bank for removing trash therefrom. The statement was taken and signed a short time after the accident and the petitioner testified that his condition was such that he hardly knew what was taking place. He acknowledged signing the paper but denied having made the statement about compensation by the bank or knowing that it was in the statement signed by him. No one was produced to testify concerning the statements made by petitioner, and the only testimony with respect to any payment being made by the bank for the collection of rubbish was by Mr. Hunt, who testified that one McNeil, who did the work until about two weeks before petitioner was directed to pick it up, was paid $5 per week. As stated above, Mr. Hunt did not recall saying anything about payment to petitioner for such work, but merely directed him to stop at the bank to pick up accumulated rubbish. If any arrangement for separate employment by the bank had been made, certainly some one would have testified to it.

Petitioner left his home to go to the bank, and, as he passed over a railroad crossing was struck by a locomotive engine and was injured. If he was on a mission directed by his employer, and not separated by some understanding or employment from his usual employment, he was in the course of his employment with defendant. The absence of proof to the contrary, supports petitioner’s claim, and we conclude that his injuries resulted from an accident arising out of and in the course of his employment.

The judgment under review is affirmed, with costs.


author: Jacobs, S. J. A. D.

text:
    WILLIAM J. STONE, PETITIONER-RESPONDENT, v. DUGAN BROTHERS OF N. J., INC., RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 25, 1948
    Decided November 1, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Joseph Coult argued the cause for the respondent-appellant.

      Mr. Frank W. Shershin argued the cause for the petitioner-respondent.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This matter is before the court pursuant to a writ of certiorari allowed by the former Supreme Court to review an order of the Workmen’s Compensation Bureau dated January 23, 1947, vacating an earlier order of dismissal for lack of prosecution.

Petitioner William J. Stone duly filed a claim petition for increased disability with the Workmen’s Compensation Bureau and appellant Dugan Brothers of N. J., Inc., duly filed its answer. Hearing was begun, petitioner’s testimony was taken, the matter was adjourned before completion of the petitioner’s case, and thereafter was placed on the Bureau’s “not moved” list. Under date of February 28, 1946, the appellant served notice that on the 11th day of April, 1946, it would move “to dismiss the petition for failure to prosecute the same, unless the petitioner shall move the cause for trial within one month from the date thereof.” Under date of March 20, 1946, petitioner’s attorney wrote to the appellant’s attorney advising that he had requested the Deputy Commissioner of the Workmen’s Compensation Bureau to list the matter for trial. Thereafter the attorneys agreed to confer with the Deputy Commissioner for the fixing of a date for trial, but the conference never took place.

On the 10th day of April, petitioner’s attorney telephoned the Deputy Commissioner and, in his absence spoke with his secretary, requesting an adjournment for stated reasons which appeared sufficient. Inadvertently the request was never called to the Deputy Commissioner’s attention and on the following day, April 11, with no one appearing in opposition, he entered an order providing that “the claim petition filed herein be and the same is hereby considered abandoned and the said claim petition is hereby dismissed for want of prosecution.” Thereafter petitioner’s attorney obtained an order to show cause why the dismissal -should not be set aside, testimony in furtherance thereof was taken, and under date of January 23, 1947, the Deputy Commissioner vacated the order of dismissal upon his finding that “a timely request for adjournment was made by Mr. Shershin and through failure on the part of my secretary to convey such information to me, the dismissal of the petition was inadvertently entered on April 11, 1946.”

The appellant contends that the order of dismissal on April 11, 1946, was properly made pursuant to R. S. 34:15-54 and that under Long Branch v. Finn, 131 N. J. Law 488 (Sup. Ct. 1944) the Bureau had no authority thereafter to vacate it, “in the absence of fraud or conduct which would give rise to an estoppel.” See Skislak v. The Continental Mining & Smelting Corp., 137 N. J. Law 157 (Sup. Ct. 1948). The petitioner contends, on the other hand, (1) that the Bureau’s authority to vacate an order of dismissal for lack of prosecution is not confined to cases of fraud or estoppel, but extend to cases of mistake or inadvertence,-and (2) that in any event, the Legislature has, by chapter 267 of the Laws of 1947 (R. S. 34:15-54) given express power to -the 'Bureau to vacate, for good cause shown within one year thereafter, any order of dismissal for want of prosecution and has expre-ssly validated prior orders vacating such orders of dismissal.

The historic power of courts to open their judgments has not been confined to instances of fraud but extends to cases of mistake, inadvertence “or like just cause.” See Newark v. Smith, 120 N. J. Law 56, 59 (Sup. C.t. 1938). In Assets Development Co. v. Wall, 97 N. J. Law 468 (E. & A. 1922) the court stated that this “power to open judgments upon good cause shown” continues while the cause remains under the court’s control. Under the rules of practice now prevailing, the application to open the judgment must be made within a reasonable time and where the application is based upon newly discovered evidence, fraud, mistake, inadvertence, surprise or excusable neglect, it must be made within one year. See Rule 3:60-2.

It is true that the foregoing relates to court proceedings and is not strictly applicable to giicwf-judicial determinations by administrative agencies. Nevertheless, our courts have, in furtherance of the interests of justice, applied similar principles to administrative proceedings. Thus, in Katz v. Zepela, 10 N. J. Misc. R. 258 (Sup. C.t. 1932) affirmed 110 N. J. Law 14 (E. & A. 1933) the court, in reliance upon the earlier decision in Rose v. Wagner Construction Co., 2 N. J. Misc. R. 118 (Sup. Ct. 1924), sustained the power of the Workmen’s Compensation Bureau to set aside an earlier order of dismissal. Referring to the Rose case, the court stated that the decision seemed “to give the Bureau the same control over its judgments that the common law courts have.”

Appellant, in support of its position that, in the absence of fraud or estoppel, the Bureau may not reopen an order of dismissal, relies entirely upon Long Branch v. Finn, supra. However, insofar as the opinion in that case discloses, not only was fraud or estoppel absent, but mistake or inadvertence was likewise absent. That the court in the Finn case did not intend to confine the Bureau in reopening orders of dismissal strictly to cases of fraud or estoppel, is evident from the following language in Schaible v. Champenois & Co., Inc., 131 N. J. Law 436 (Sup. Ct. 1944) affirmed 132 N. J. Law 417 (E. & A. 1945) decided by the same justices of the former Supreme Court at the same term of court:

“The Bureau was without power to vacate the order of dismissal in the absence of fraud, misrepresentation, mistake or the discovery of evidence which could not have been previously found by the exercise of reasonable diligence.”

Under the Workmen’s Compensation Act the Bureau had implied statutory power to reopen its earlier judgment of dismissal. See R. S. 34:15-58; Rose v. Wagner Construction Co. supra, at p. 120; Breen Iron Works v. Richardson, 115 N. J. Law 305, at p. 308 (Sup. Ct. 1935) affirmed 117 N. J. Law 150 (E. & A. 1936). Although the act is silent on the subject, we are satisfied that the statutory power to reopen fully embraces instances where the judgment has been entered through mistake or inadvertence. Considering that the Deputy Commissioner could properly have denied the application for dismissal upon being satisfied that the proceedings would thereafter be prosecuted diligently and his express finding that request for adjournment, though seasonably made, had not reached him through 'his secretary’s failure and that the order of dismissal was thereupon inadvertently entered, we find nothing improper in the Bureau’s determination that its earlier order of dismissal should be vacated.

Since the above results in a determination in favor of the petitioner-respondent, we have no occasion to consider his second point resting upon P. L. 1947, c. 267 which became law on June 11, 1947, after the order of dismissal was entered and vacated. Question is raised, which we need not here determine, as to whether retroactive application of that statute to orders entered in the Bureau prior to its enactment would violate pertinent constitutional restrictions. Compare Casieri's Case, 286 Mass. 50, 190 N. E. 118 (1934) with Paramino Lumber Co. v. Marshall, 309 U. S. 370, 84 L. Ed. 814 (1940). See also Plahn v. Givernaud, 85 N. J. Eq. 143 (E. & A. 1915).

The order of the Bureau dated January 23, 1947, vacating the order of dismissal dated April 11, 1946, is affirmed and the cause is remanded to the Bureau with directions that it be prosecuted diligently.


text:
    PAULINE PETROSINO, ADMINISTRATRIX AD PROSEQUENDUM OF JOSEPH PETROSINO, DECEASED AND PAULINE PETROSINO, ADMINISTRATRIX OF THE ESTATE OF JOSEPH PETROSINO, DECEASED, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE COORDINATED TRANSPORT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 11, 1948
    Decided November 1, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Carl T. Freggens argued the cause for the defendant-appellant.

      Mr. Edward Stover argued the cause for the plaintiff-respondent (Mr. Bernard S. Glick, attorney).
   The opinion of the court, was delivered by

Jacobs, S. J. A. D.

This is an appeal in a negligence action from a judgment of the Hudson County Court of Common Pleas in favor of the plaintiff-respondent.

On the morning of December 12, 1944, the plaintiff’s dece-. dent husband left his home to report to work at the Continental Foods Plant in Hoboken. He carried his lunch and proceeded along First Street towards Washington Street where he customarily took a bus going north. Shortly thereafter he was struck by the defendant’s bus which was making a right turn from First Street to proceed south on Washington Street. No one who testified at the trial actually saw the defendant’s bus strike the decedent, although there were witnesses who described the surrounding circumstances immediately prior and subsequent thereto. From their testimony, including the justifiable inferences, the jury could reasonably find that the accident occurred in the manner hereinafter described.

At about 6 a. m. the decedent had reached the intersection of Washington Street and First Street and was about to cross Washington Street to wait for his bus. The morning was clear, the street lights were illuminated, and the visibility was good. The defendant’s bus had stopped on First Street at the corner of Washington Street to permit passengers to alight and to wait for a green traffic light. When the light changed to green, the bus started to make a right turn. In the meantime, the decedent had already started to cross Washington Street and was observed by one witness after having taken two or three steps from the curb. The bus driver did not sound his horn; indeed, he testified that he did not see the decedent or anyone crossing the street. While the turn was being completed, the decedent was run over by the front right wheel of the bus which quickly came to a stop. The decedent was immediately taken to St. Mary’s Hospital where he remained until March 26, 1945; he was then transferred to St. Francis Hospital where he died on March 31, 1945. Thereafter the plaintiff, as administratrix ad prosequendum and as general administratrix, instituted her action for wrongful death and for injuries from the date of the accident to the date of death.

During the trial there was considerable medical testimony as well as testimony with respect to actuarial tables and the happening of the accident. After having denied defendant’s motions for non-suit and directed verdict, the court submitted the issues of negligence, contributory negligence and damages to the jury which returned its verdict in favor of the plaintiff to the clerk in the absence of the judge. Thereafter the defendant obtained a rule to show cause why the verdict should not be set aside primarily on the ground that there was legal error in its taking and entering. Depositions in support of the rule were taken by the defendant to establish (a) what happened in the courtroom at the time the verdict was rendered, and (b) what happened in the juryroom prior thereto.

When the members of the jury returned to the courtroom the clerk asked them whether they had reached a verdict. The foreman replied, “We find for the plaintiff and against the defendant.” He then sat down and said nothing further. The clerk then inquired as to what amounts had been found on the two counts of the plaintiff’s complaint. The foreman then rose and said that there was a matter of $1100 medical expenses and that the jurors were confused about the actuarial tables. One or two of the other jurors then conferred with the foreman, at which point he withdrew a paper from his pocket and read the sum of $14,958.58 on the first count, which he said was taken from the tables, and when asked for the amount on the second count he again referred to the paper and read the sum of $7,484.83, which he changed to $7,474.83. The paper from which the foreman read was never introduced in evidence and had been inadvertently handed to the jury with the exhibits in evidence. It bore notes made by the manager of the actuarial department of an insurance company who had testified for the defendant. After the completion of the foreman’s remarks, the clerk repeated the verdict of $14,958.58 on the first count and $7,474.83 on the second count and concluded with the customary “And so say you all.” At this point counsel for the defendant requested that the jury be polled but this request was denied by the clerk. The subsequent testimony of the jurors indicated that although the jury had agreed in favor of the plaintiff on the issue of liability, no agreement was ever reached as to damages, and the jury’s return to the courtroom was to obtain further instructions bearing on damages.

The trial judge reached the conclusion that the verdict was “regularly and legally rendered by the jury and received and recorded by the clerk of the court” and accordingly discharged the rule to show cause. Thereupon the defendant appealed urging that error was committed (1) in rulings on the admission of evidence, (2) in the trial court’s charge, (3) in the denial of the defendant’s motions for non-suit and directed verdict, and (4) in the taking and entering of the verdict.

1.

Rulings on the Admission of Evidence.

A. Plaintiff complains that the report of St. Francis Hospital from the time of decedent’s entry on March 26, 1945, to his death on March 31, 1945, was erroneously admitted. The report was prepared under the supervision of Dr. Sciorsci, who testified with respect thereto, and contained entries by him as well as by other staff members, including interns and nurses. As Dean Wigmore has pointed out, such report might well be deemed admissible upon proper identification without the necessity of calling all of the nurses and interns who made the individual entries. 6 Wigmore, Evidence (3rd ed. 1940; § 1707; Opdyke v. Halbach, 123 N. J. Law 123 (Sup. Ct. 1939). But cf. Cohen v. Bradley Beach, 135 N. J. Law 276 (E. & A. 1947). However, we need not pursue this issue further since, in the light of other testimony properly admitted, there was nothing in the report prejudicial to the defendant. We are satisfied from our examination of the record that the report did not injuriously affect “the substantial rights” of the defendant and, accordingly, find no ground for reversal without passing on the alleged error in its admission. DeSantis v. Lange, 137 N J. Law 480 (Sup. Ct. 1948); Crager v. West Hoboken Transfer & Express Co., 132 N. J. Law 547, 548 (Sup. Ct. 1945); De Freitas v. Metropolitan Life Insurance Co., 131 N. J. Law 5, 8 (Sup. Ct. 1943). See Rules 1:2-20, 4:2-6.

B. The defendant also complains that Dr. Sciorsci was permitted to testify as to the cause of the decedent’s death as disclosed by an autopsy. Although another physician performed the autopsy, Dr. Sciorsci witnessed it, examined the tissues, and formed his diagnosis. Under such circumstances, his evidence was admissible. Furthermore, his testimony in this connection was not harmful to the defendant since it was merely in accord with the uncontradicted testimony of the physician who performed the autopsy.

C. Defendant asserts error in sustaining an objection to a question which asked its actuary witness to state how the jury, when they arrive at the dollar loss sustained by plaintiff, would “proceed to calculate the capital fund on the factors you have given us.” The question was objected to on the ground that the pertinent factors had not been incorporated. The defendant could readily have satisfied this objection by changing the form of the question but chose not to do so. In fact, a material factor had been omitted in the witness’ prior testimony and the exclusion of the question in the form submitted was within the trial court’s authority. In any event, no showing of prejudice appears.

2.

The Trial Court’s Charge.

The portion of the court’s charge which is complained of is as follows:

“ * * * If he was at the corner ready to cross when the light was green he had the right of way over the bus and would have the right to assume that the driver would exercise proper care and caution for his safety. This would likewise be the law if the deceased had started to cross with the green light and was on his way across. In both of the latter events he would be under no duty to make further observation if it were reasonably safe for him to cross at the time he started to do so, unless the driver sounded his horn as the law required him to do, in the event that a-pedestrian might be affected by such a turn. * * * ”

The appellant contends that the foregoing language improperly relieved the decedent of his duty of care in crossing the street. A reading of the entire charge rather than! the quoted excerpt discloses that the court, in clear language, instructed the jury that the decedent was under a duty to use due care, was not relieved of “the duty of looking out for his. own safety,” and that recovery was to be denied if the decedent was guilty of negligence which contributed to the accident. At the close of his charge, the court, pursuant to a request of the defendant, instructed the jury that,

« * * * jf you find that had the decedent made a reasonably effective observation for his own safety, he would have discovered a situation of impending danger to him, which he could have avoided by a delay of a fraction of a.minute or a slight detour; and if you find that he failed to make such observation for his own safety or that, having made such observation, he failed to act with due care for hie own safety in the light of what that observation disclosed to him, then this plaintiff cannot recover, and your verdict must be in favor of the defendant for no cause of action.”

We are satisfied from our reading of the entire charge that the legal principles, applicable under the evidence in the case,. were fairly presented to the jury and that the defendant suffered no harm from the language complained about; consequently error therein is not ground for reversal. See Lenz v. Public Service Railway Co., 98 N. J. Law 849, 852 (E. & A. 1923); Niles v. Phillips Express Co., 118 N. J. Law 455, 462 (E. & A. 1937); Middleton v. Public Service Co-Ordinated Transport, 131 N. J. Law 322 (E. & A. 1944).

3.

Denial of the Defendant’s Motions for Non-Suit and Directed Verdict.

The defendant contends that the trial court committed error in denying its motions for non-suit and directed verdict on the ground that there was no negligence on the defendant’s part and that the accident resulted from the sole or contributory negligence of the decedent. We are satisfied from the evidence in the entire case (see Beck v. Monmouth Lumber Co., 137 N. J. Law 268, 271 (E. & A. 1948) ) that there was sufficient evidence to call for a jury determination on the issues of negligence and contributory negligence. See Hyman v. Bierman, 130 N. J. Law 170 (E. & A. 1943); Lyons v. Volz, 114 Atl. 318 (N. J. Sup. Ct. 1920) not officially reported. Under the facts in the case, fairly inferable by the jury, the decedent had the “right of way” (R. S. 39:4-32) and the bus driver was required, before making his turn, to see that such movement could be made in safety and that if a pedestrian might be affected by such movement, to “give clearly audible signal by sounding the horn.” (R. S. 39:4-126.) Admittedly the driver gave no such warning and, indeed, did not see, though visibility was good, the decedent who had already started to proceed across the cross-walk with the green light. In contrast to the defendant's contention, the facts established more than the mere happening of the accident and the jury could reasonably find that the decedent was not negligent and that the accident resulted from the bus driver’s negligence in failing to observe the decedent and sound his horn before making his turn. See Hyman v. Bierman, supra, and Lyons v. Volz, supra.

4.

The Taking and Entering of the Verdict.

In the light of our determinations, no reversible error had been committed upon the submission of the case to the jury. Defendant’s final contention, however, is that there was reversible error in the manner of the taking and entering of the verdict which has hereinbefore been described. Without passing upon the propriety of examining the jurors as to what transpired within the juryroom (see Peters v. Fogarty, 55 N. J. Law 386 (Sup. Ct. 1893) ), we have concluded from what transpired in the courtroom itself that the verdict, insofar as it pertained to damages, was improperly received and recorded. The foreman reported that the jury had returned a verdict for the plaintiff, then sat down and kept quiet. That determined the issue of liability in favor of the plaintiff and as to that there was no uncertainty or confusion. With respect to damages, however, there was serious uncertainty and confusion and although the clerk entered a verdict, which omitted the foreman’s original statement including his reference to the sum of $1100 for medical expenses, and moulded it in. proper form, his action in doing so exceeded his ministerial functions. Cf. Corn v. Kaplan, 103 N. J. Law 628 (E. & A. 1927). The situation was one calling for the trial judge’s attention, but under the practice then prevailing, it was permissible for him to authorize the clerk to receive and record the verdict as rendered. See Sockolowski v. Olkowski, 102 N. J. Law 50, 53 (Sup. Ct. 1925). This practice has been terminated by Rule 3 :38-2 which provides that, “Every verdict shall be returned by the jury to the judge in open court.”

, We are satisfied that the interests of justice require that the jury’s verdict be sustained insofar as it establishes liability, but that it be set aside insofar as it fixes damages. A venire de novo is awarded, confined to the issue of damages.


author: Eastwood, J. S. C.

text:
    WANDA MARTHA ROBERTS, PLAINTIFF-APPELLANT, v. BOARD OF ADJUSTMENT OF THE BOROUGH OF FORT LEE AND THE BOROUGH OF FORT LEE, BERGEN COUNTY, NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division.
    Argued October 25, 1948
    Decided November 8, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. John E. Selser argued the cause for the appellant (Messrs. Selser & Shenier, attorneys).

      Mr. G. Earl Brugler argued the cause for the respondents (Mr. Lawrence A. Cavinato, attorney).
   The opinion of the court was delivered by

Eastwood, J. S. C.

Certiorari was allowed by the former Supreme Court to review the action of the Board of Adjustment of 'the Borough of Fort Lee denying plaintiff’s application for a variance from the local Zoning Ordinance to permit plaintiff to erect and operate a milk bar building on her property. Preliminarily, plaintiff applied to the Building Inspector of the Borough of Fort Lee for a permit to construct a milk bar. The Building Inspector refused to grant the permit because the property was zoned for one-family residential purposes only.

An extended recital of the factual situation is not necessary and may be summarized briefly as follows: Plaintiff’s property consists of a triangular shaped tract of land bounded on i'ts three sides by three state highways known as Palisade Avenue, Route 5 and Route S-l-A, fronting on Palisade Avenue approximately 125 feet, 242 feet on Route S-l-A and 250 feet on an unopened street known as Euclid Avenue, which bisects the entire triangle. The remainder of the triangle, which is not owned by plaintiff, is occupied by a gasoline station. The entire plot is restricted by the borough zoning ordinance to one-family dwellings. Plaintiff’s property is vacant land except for an old burned-out real estate office which has not been used for many years. The locus was changed from a business zone to a one-family dwelling zone in 1939. At that time numerous businesses operating in the vicinity continued to function as non-conforming uses. These consist mainly of night clubs, gasoline stations, bars and hot dog stands. Plaintiff purchased her property subsequent to the adoption of the present zoning ordinance. The matter was heard by the Board of Adjustment and its judgment was adverse to plaintiff. The following excerpt from said judgment discloses the reasons for its determination:

“ * * * After carefully considering your request to change the above plot from Residential to Business, and erecting a Milkbar facing Palisade Avenue, the Board of Adjustment and Appeal find that practically all of the adjoining property owners are very much opposed to this change. They all purchased their properties with the understanding that it was zoned for residences only, and your client bought this property recently knowing that it was not zoned for business purposes.”

At the hearing plaintiff produced as witnesses real estate agents of long experience with properties in the neighborhood involved in the litigation. They all testified 'that, in their opinion, plaintiff’s property was unsuitable for other than business purposes, and that the erection of the proposed milk bar would not result in depreciating property values in the immediate vicinity. Their testimony is clear and convincing. Defendants also offered real estate agents who testified that plaintiff’s property had residential possibilities, but our review of their testimony leads us to the conclusion that they were not in accord on this issue. An excerpt from the testimony of Michael J. Ryan, a real estate agent offered by defendants, is illustrative'. On cross-examination he testified:

“Q. Will you tell tbis Board, Mr. Ryan, whether it’s suitable for one-family residential purposes or not. A. It isn’t very desirable.
“Q. Would you recommend that be used for one-family residential purposes to me or any other of your clients? A. No, I don’t think I would. I am referring to parcel number one.”

Plaintiff contends that the refusal of the Board of Adjustment constitutes an unnecessary hardship resulting from a literal application of the zoning ordinance to her property, and that the restriction to residential uses bears no reasonable relation to the purposes for which the zoning ordinance was adopted. Our review of the testimony leads us to concur with these contentions. As was said in the leading case of Brandon v. Board of Com’rs of Town of Montclair, 124 N. J. L. 135, 11 A. 2d 304 (Sup. C.t. 1940), affd. 125 N. J. L. 367:

“Due to the necessity of generality in the subdivision of the municipality into districts under the zoning power, especial hardship ofttimes ensues unnecessarily and unreasonably to individual landowners; and the function of the board of adjustment under the statute is, through a variance, to relieve from such consequences, and thus to avert what would otherwise take the category of an unwarranted interference with the right of private property. Dowsey v. Kensington, 257 N. Y. 221, 177 N. E. 427, 86 A. L. R. 642. Such use restrictions are not reasonable unless fairly necessary for the attainment of one or more of the intents set forth in section 40:55-32, supra; and, while the general regulation may be reasonable, its application in the individual case, by reason of special conditions, may constitute an unnecessary and unjust invasion of the right of property.”

When it is considered that numerous non-conforming uses were in existence at the time when the locus was changed from business to residential, and are in existence and active operation at the present time, and when it is further borne in mind that plaintiff’s property is located at the intersection of three state highways, with a gasoline station presently located on the triangle, that there are no dwelling -houses in the immediate vicinity, it is not conceivable to us by what process of reasoning plaintiff’s property could be said to be in an area residential in nature. On the contrary, it is clear that a business use as proposed by the plaintiff is the -only use to which it might be adapted satisfactorily. The surrounding highways, which presumably bear vehicular traffic at all hours, definitely create a hazard making undesirable the use of the premises for residential purposes. Then, too, the character of the immediate neighborhood with its many non-conforming uses is such that the restriction imposed upon plaintiff’s land has no substantial relation to the public health, safety, morals, comfort, convenience, or the general good and welfare of the community as provided in R. S. 40:55-32. The restraint thus put upon plaintiff’s property passes the bounds of reason and assumes the character of a merely arbitrary fiat as condemned in Brandon v. Montclair, supra; Gabrielson v. Glen Ridge, 13 N. J. Misc. 142 (Sup. Ct. 1935); Nusser v. Board of Adjustment of Newark, 134 N. J. L. 174 (Sup. Ct. 1946), 46 A. 2d 657; United Advertising Corp. v. Board of Adjustment of Maplewood Township, 136 N. J. L. 336 (Sup. Ct. 1947), 56 A. 2d 406. The restriction imposed clearly constitutes an unnecessary hardship on the use of plaintiff’s land. We are of the opinion, however, that there is a distinction between appellant’s land, surrounded by three highways and a gasoline station, and other land in this one-family zone having a frontage on only one highway.

Certain technical objections are argued in defendants’ brief: (1) that the applicant requested an exception by the Board of Adjustment and not a variance, and (2) that the statute was not complied with by the applicant in that no proof of notice to other property owners of the proposed application was filed. We find no merit in either of these contentions. No such objections were made at the hearing before'the Board of Adjustment and defendants have not filed any supplemental appendix substantiating these grounds. See Rules 1:2-26, 1:3-3 (f). The record reveals that more than ninety per cent of the private property owners and several business property owners, all of whom were affected by plaintiff’s application, were present or represented by counsel at the hearing. In addition, at the argument of the cause before this courtj counsel for plaintiff stated that the required notice of hearing had been given ’and filed. We are satisfied that this provision of the statute was complied with.

The Board of Adjustment considered the application as one for a variance and, also, it clearly appears that the form of the appeal fully manifested its relation to the application made to and denied by the Building Inspector. Dickinson v. Inhabitants of the City of Plainfield et al., 13 N. J. Misc. 260 (Sup. Ct. 1935), 176 A. 716, affd. 116 N. J. L. 336 (E. & A. 1936), 184 A. 195.

We have considered all of the other arguments advanced by the defendants in support of their contentions and find them to be without merit.

The action of the Board of Adjustment of the Borough of Fort Lee, in refusing to recommend a variance to the Mayor and Council of the Borough of Fort Lee in the zoning ordinance respecting plaintiff’s land, is reversed and set aside. '