text:
    MARY FORSLAND, PLAINTIFF, v. IRA W. CALDWELL, DEFENDANT.
    Submitted May term, 1928
    Decided September 27, 1928.
    Before Justices Minturn, Black and Campbell.

      For the plaintiff, Charles A. Rooney.

    For the defendant, Walter X. Trumbull and Edward Griffin.

   Per Curiam.

This was an accident case brought to recover damages for personal injuries. The plaintiff was injured on January 22d, 1927, on a foggy, rainy night, sometime after sunset, as she was walking on the left-hand sjde of Newark avenue, in Jersey City, going toward Newark. When about to cross Chestnut street, some four feet into that street, she was struck by the defendant’s automobile, as the defendant was turning from Newark avenue into Chestnut street, causing her injuries.

The trial resulted in a verdict for the plaintiff for $7,500. The defendant obtained a rule to show cause. He writes down five reasons for a new trial, which are argued in the defendant’s brief under two heads, viz., the verdict is grossly excessive and contrary to the weight of the evidence. Our reading of the testimony 'sent up with the rule leads us to the conclusion that neither of these reasons urged for a new trial is tenable. Both questions, under the evidence, as we find, were properly decided by the jury. There was ample evidence for the jury to find negligence of the defendant, and sufficient evidence to justify the amount of the verdict. We find no sufficient reason for disturbing the verdict of the jury.

The rule to show cause is discharged.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DANIEL GREENBERG, PLAINTIFF, v. NATHAN SCHIFFMAN, DEFENDANT.
    Submitted May term, 1928
    Decided September 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the plaintiff, Kessler & Kessler.

    For the defendant, Kalisch & Kalisch.

   Per Curiam.

This was an accident ease, in which the plaintiff recovered a verdict of $8,500. The defendant obtained a rule to show cause. He writes down seven reasons for a new trial, which are argued in the brief of the defendant under two heads, viz., the verdict of the jury was contrary to the charge of the court and against the weight of the evidence. The verdict of the jury was excessive. Not so.

We can find no substantial reason for disturbing the verdict of the jury. The plaintiff’s injuries consisted of a fracturé of the tibia and fibia in the left leg and the fibia in the right leg; casts were put on both legs from above the knee to below the foot, including the entire foot. He was in the hospital for three weeks. He was in bed thirteen weeks. His legs were in casts eleven or twelve weeks.

The rule to show cause is discharged.


text:
    MARIAN BEHLEN ET AL., PLAINTIFFS, v. GEORGE EKHARDT ET AL., DEFENDANTS.
    Submitted May term, 1928
    Decided September 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the plaintiffs, John J. Breslin, Jr.

    For the defendants, Harley, Cox & Walburg.

   Per Curiam.

This suit was brought to recover damages for personal injuries. The trial resulted in a verdict for the plaintiff Marian Behlen for $10,500 and a verdict for her husband, William F. Behlen, for $1,500. The defendants obtained a rule to show cause. They write down four reasons for a new trial. Our examination of the reasons and the testimony sent up with the rule lead us to the conclusion that there is no sufficient reason for disturbing the verdict of the jury. The plaintiff Marian Behlen was injured, the sacro-iliac joint was knocked out of place with other injuries sustained. She was operated upon by Dr. Charles EL Jaeger, a specialist in bone and joint diseases called orthopedic, at the Lenox Hill Hospital, New York. He testified that he warned her strictly against doing anything that necessitates stooping, lifting things, even the slightest stooping movement is apt to redisloeate the sacro-iliac joint. He also said it was impossible to say how long that condition will continue to exist. His charge for the operation was $250.

The rule to show cause is discharged.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GERARDO GUARINO, PLAINTIFF IN ERROR.
    Submitted May term, 1928
    Decided September 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the plaintiff in error, J. Victor D’Aloia.

    For the defendant in error, Orville V. Meslar, prosecutor of the pleas.
   Per Curiam.

The defendant was tried upon an indictment, which charged him, in three counts, with assault and battery, atrocious assault and battery and assault and battery with intent to kill one Michael Barone, at Neteong, Morris county, on September 8th, 1927. The defense consisted of a denial of the charge and an alibi. The jury rendered a verdict of “guilty as charged.” The defendant was sentenced to state prison for a term of two years. The writ of error was sued out to review the conviction and sentence. The plaintiff in error files nine assignments of error and nine reasons for a reversal, which are identical. The points are argued under two heads in the defendant’s brief — numbers six, seven and nine, under the the first head, viz., error in the charge to the jury by the trial judge. These errors complained of are alleged to be in the following passages of the charge:

6. “If the cutting, the slashing or stabbing was done by some other person than the defendant, then you ask the question, whether or not you are satisfied from the evidence, beyond á reasonable doubt, that the defendant was present and aiding and abetting in the commission of the crime charged in the indictment? And after you have considered all of that evidence, and answered those questions, you will go further, and you will then take up the question of whether or not the defendant has satisfied you from the evidence he introduced that he was not present at the time and place charged by the state.”

7. “The burden of proving the defendant’s presence elsewhere than at the place and at the time charged in the indictment is not upon the state, that is a defense which the defendant interposes, and his testimony, and all the testimony introduced on his behalf, is put to you to say whether or not you believe it, because you are the sole judges.”

9. “Now, if you believe from the evidence introduced in support of this alibi that the defendant was not present at the time and place charged by the state, then the defendant is said to have established his abibi, and you are the sole judges from all of the testimony so introduced, as to whether or not he has established to your satisfaction the proof that he was not present at the time and place charged in the indictment.”

The argument is, that under such cases as State v. Sherlock, 60 N. J. L. 31; State v. Parks, 96 Id. 360; State v. Sahazian, 98 Id. 430, the burden was placed on the defendant to prove his absence by a preponderance of evidence, he was thereby deprived of the benefit of reasonable doubt. Not so, as we read the excerpts of the charge complained of in connection with the whole charge, which is the accepted rule, viz., the charge must be read as a whole. State v. Tachin, 92 Id. 269; State v. Randall, 95 Id. 452.

Thus, the court said: “The burden of so proving the defendant guilty rests upon the state throughout the whole case and never shifts. This rule is the ultimate one surviving all others, and it is an independent and final protection of the defendant, and, notwithstanding all other presumptions and burdens, if any arise in this case, it remains upon the state until and after all the evidence is in, and then the jurors must consider upon all the evidence in the case, whether or not this burden has been sustained.”

In addition to this excerpt from the charge, the court in three other places charged the jury, that the state must prove the defendant guilty beyond a reasonable doubt, or they must be “satisfied beyond a reasonable doubt from the evidence that the defendant was present,” &e. The court at the close of the charge also said: “Now, you will take this testimony and all of it, and guided by the rules of law which I have laid down arrive at your verdict, and if you are so satisfied from all the evidence beyond a reasonable doubt of the guilt of the defendant, your verdict will be guilty, and if you are not satisfied, then, of course, your verdict will be not guilty.”

We find no error in the charge. The other points argued for a reversal, viz., the court should have directed a verdict of acquittal, the verdict is against the weight of the evidence, are without merit and call for no extended discussion.

The judgment of the Morris County Quarter Sessions is affirmed.


text:
    CHESTER VAN SCIVER AND ALBURTUS HOFFMAN, BY THEIR NEXT FRIEND, RUSSEL VAN SCIVER, PLAINTIFFS-RESPONDENTS, v. ABBOTT’S ALDERNEY DAIRIES, A CORPORATION, DEFENDANT-APPELLANT.
    Decided September 27, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the rule, Howard L. Miller.

    Contra, Stanley K. Heilbron and Palmer & Powell.

   Per Curiam.

The plaintiff Chester Van Sciver obtained a verdict in the Burlington County Circuit in his favor for the sum of $4,-127.50. There was a rule to show cause allowed why the verdict should not be set aside, and to that end the defendant presents six reasons:

1. Because the weight of the testimony disclosed the plaintiff was guilty of contributory negligence.

2. Because the weight of the testimony shows the automobile of plaintiff was being driven at a rate of speed without regard to the traffic conditions.

3. ' Because according to the weight of the testimony plaintiff Chester Van Sciver was in control of the automobile, he being the only one with a driver’s license, and, therefore, was charged with the negligence of the operator of said automobile driver, who was only driving with a permit.

4. Because the court erred in permitting testimony of the operation of defendant’s truck the day after the accident.

5. Because the verdict is excessive.

6. Because the verdict is in diver other respects erroneous and contrary to the testimony.

The brief of the defendant’s counsel is devoted wholly to an attack upon the verdict rendered in favor of Van Sciver.

On the night of August 7th, 1926, Chester Van Sciver was riding with Alburtus Hoffman, at the latter’s request, in an automobile, which had been borrowed by Hoffman, along a public road in Burlington county, and with them were two young ladies sitting in the back seat of the automobile.

The testimony developed that Hoffman was driving the car on a permit, but he had never been licensed as a driver. That Van Sciver was a licensed driver, and was sitting on the front seat with Hoffman. That Van Sciver’s presence in the car, on the front seat with Hoffman, was for the purpose of complying with the Motor Vehicle law of this state, which requires that, when a person is driving a car under a permit, his operation of the car must be in the presence of and with a licensed driver. That Van Sciver was invited by Hoffman to ride with him, because he, Van Sciver, was a licensed driver, and for the purpose of complying with the law as above indicated.

As the car was being driven along on the right side of the road, it being a dark misty night, it unexpectedly came into collision with a truck which was standing in the highway, with no lights on it, and at the same time there was a car approaching from the opposite direction.

Hoffman was driving the car, and, according to the testimony, the car was never operated at a greater speed than twenty-five miles an hour, and sometimes as low as ten miles an hour.

As the attack made upon the verdict, in favor of Van Sciver, is that he was guilty of contributory negligence, the defendant, in order to sustain such an allegation, was under a legal duty to establish that Van Sciver had control over the actual operation of the car at the time the accident took place, and in this respect it appears the defendant failed, since Van Sciver’s presence in the car is accounted for by the uncontroverted fact that he was a licensed driver and had been invited as such by Hoffman, and was not in control of the car. The fact that he was a licensed driver did not, per se, give him any control over the actual operation of the car.

Eirrthermore, it appears that the trial judge very properly left for the jury’s consideration the factual questions whether or not these young men were engaged in a common enterprise at the time of the accident, and whether or not Van Sciver exercised any control over the movements or operation of the car. Negligence by the driver, Hoffman, would not bar a recovery. The burden of establishing contributory negligence was upon the defendant. We cannot say that the finding of the jury, that Van Sciver was not guilty of contributory negligence, was clearly against the weight of the evidence.

The fourth reason relied on by defendant for setting aside the verdict is, that the trial judge permitted testimony touching the operation of the defendant’s truck the day after the accident.

On this point one William Kee testified that he saw the truck being towed by another truck to the city of Burlington. It is claimed on behalf of defendant that this testimony was harmful, but we are unable to see upon what theory this testimony tended to prejudice the jury, or what effect it could have had on the question of negligence, either on part of the defendant or on the part of thé plaintiffs. Even ii the testimony was irrelevant, it was in no respect prejudicial.

The reason relied on and argued by defendant’s counsel, for a new trial, namely, that the verdict is excessive, is wholly without substance. The plaintiff sustained a fracture of the skull and of the lower jaw, and other serious injuries. The testimony in respect to the seriousness of the injuries leads us to the conclusion that the verdict of the jury was very moderate.

The rule to show cause is discharged, with costs.


text:
    LEBENSFELD BROTHERS, INCORPORATED, PLAINTIFF-APPELLEE, v. PHILIP BUDNE, DEFENDANT-APPELLANT.
    Submitted January term, 1928
    Decided October 2, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, Emile Neblo.

    For the appellee, Gross & Gross.

   Per Curiam.

This is an action in replevin to recover certain show cases and store fixtures sold by appellee to appellant under a conditional bill of sale. Default in payments thereunder having taken place a demand for the return of the goods was made and return being refused the action in question was brought.

The jury, by direction of the trial judge, returned a verdict for $450 for the value of the goods, in favor of the appellee.

There are seven grounds of appeal, viz.:

Í. Error in admitting conditional bill of sale because not properly proved.

2. Error in overruling certain questions put to the appellant.

3. Error in overruling certain questions put to the witness, Isaac Eaclar.

4. Refusal to submit cause to jury.

o. Judgment is irregular.

6. Proceedings irregular.

7. Error in refusing to accept in evidence proof of certain attachment proceedings.

We conclude that grounds one, five, six and seven present no reason for reversal.

Grounds two, three and four may be considered together.

The plaintiff below claimed the right to recover possession of the goods, because the defendant, the conditional vendee, had failed to make payments in accordance with the terms of the conditional bill of sale. The defendant contended that plaintiff, as a part of its undertaking, had agreed to install the fixtures and had, in part, at least, failed so to do.

The testimony referred to under grounds three and four as having been erroneously excluded was for the purpose of showing this breach of contract and failure of performance upon the part of the plaintiff.

This we think the defendant was entitled to show, if he could, because performance by the defendant by payments, other than the payment of $400 already made, was not required until and unless the plaintiff had performed by delivery and installation.

The question was not one of title but of the right of possession.

It was error therefore to exclude this proof and, if made, a jury question would have been presented because there was already in the case proof on the part of the plaintiff that the fixtures had been properly set up and installed in accordance with the terms of the contract.

The judgment below is reversed, with costs.


text:
    ELLSWORTH SMITH, PROSECUTOR, v. KEARNY ZONING BOARD OF APPEALS ET AL., RESPONDENTS.
    Submitted May term, 1928
    Decided October 2, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Conover English.

      For the respondents, Charles M. Myers.

   Per Curiam.

This writ brings up for review a judgment of the zoning board of appeals of Kearny reversing a finding of the super'intendent of buildings.

The present contest is being carried on solely by the prosecutor, a landowner, whose property is affected by the judgment and the owners of the property benefited by such judgment, the board of appeals and the governing body of Kearny taking no part in the litigation.

The facts are not in dispute.

By an application dated March 22d, 1928, Eeinsmith and Edelstein applied to the superintendent of buildings for a permit to erect a four-story brick apartment house to house twenty-six families, on premises 58-62 Seeley avenue. Such permit was refused upon the ground that the lands were located in a district restricted to one-family residences under a zoning ordinance of July 12th, 1922. The owners then, by written appeal, dated March 27th, 1928, and on that day served on the superintendent of buildings, appealed from the decision of that officer to the zoning board of appeals. This appeal was received by such board April 12th, 1928, and a public hearing was fixed for April 24th, 1928, and notice thereof was ordered given. Such notice was published in two newspapers.

The matter came on to be heard by such board on April 24th, 1928, and the minutes of such meeting show the following action and proceedings:

“Arthur Archibald appeared to represent Eeinsmith and Edelstein. Mr. Eaucett, 78 Rutherford Place; John Scott, 80 Rutherford Place; Mr. Link, 73 Rutherford Place; Mr. Guttman, 82 Seeley avenue; E. EL Law, 56 Seeley avenue; Mr. Smith, 66 Seeley avenue, and Mr. Schrieber, of 70 Seeley avenue, appeared before the board to protest against the erection of this building. After hearing both sides a recess was called. Upon resuming the meeting, upon a motion by Gargan, seconded by Mr. Swanton, the permit granted; three votes in the affirmative and two in the negative. Mr. Seaman and Mr. Benson voting in the negative. There was no testimony taken under oath.”

Paragraph 8 of the stipulation of facts (page 7, state of case) is as follows:

“On April 24th, 1928, the application of the owners of their appeal came before the Kearny zoning board of appeals. In the proceedings before the said board no testimony was taken under oath. A statement on behalf of the owners was made by their attorney, and a number of citizens were present and protested against the application. Among those who were present and protested was the prosecutor, Smith, and one Frank H. Lau, whose affidavit was filed on the application for the writ. No report of any committee was filed. At the conclusion of the statements by the attorney and the objectors the board recessed and left the room, and upon returning to the room, by a vote of three to two granted the permit to the owners.”

The superintendent of buildings thereupon immediately issued the permit. Notice of application for the present writ was served May 12th, 1928, and the writ allowed May 19th, 1928. In the meantime, from the granting of the permit to the notice of the application for the writ, the owners had expended upward of $2,500 toward foundation work, &c., for the building.

Four reasons are advanced and urged why this proceeding and judgment should be set aside.

1. The proceedings were void.

(a) Because the appeal did nót specify the grounds of appeal.

This is true, but it does not appear that the prosecutor was in anywise harmed or prejudiced thereby.

(b) The hearing was not such as contemplated by law, because there were no proofs before the board upon which it could act or base its judgment.

The proceeding appears to have been in violation of what this court held in Hendey v. Ackerman, 5 N. J. Adv. R. 600; 136 Atl. Rep. 733, but we pass this point without further comment.

2. The zoning board of appeals as constituted April 24th, 1928, was an illegally constituted body; and its judgment was illegal and void.

This point brings forth the following situations: The zoning ordinance under which Kearny is operating was adopted July 12th, 1922, and was adopted under authority of chapter 82, Pamph. L. 1921, p. 132, such statute providing for appointment by the mayor of five members of a board of appeals. Section 21 of the zoning ordinance, following the statute, so provided, and the members of the board were so appointed.

This statute (chapter 82, Pamph. L. 1921) was repealed by chapter 146, Pamph. L. 1924, p. 324, which provided for a board of adjustment to be appointed by the governing body or board of public works.

The first contention of the prosecutor under this point is that the act of 1924 abolished the board of appeals then in existence, and as Kearny never amended or changed its ordinance, nor made any appointment of a board of adjustment, there was no legal body or board to which the appeal in question could be taken.

An examination of the acts of 1921 and 1924, supra, causes us to conclude that the point is well taken, and that the zoning board of appeals, whose judgment is here under review, had no legal existence after the statute of 1924, supra, went into effect.

The result, therefore, is that all proceedings upon the appeal and the resulting judgment now under review are nullities and have no legal effect or status, and must therefore be set aside and reversed.

An examination of the acts of 1921 and 1924 and the ordinance of 1922, all supra, discloses that the board of appeals of Kearny, aside from being a legally non-existing body, had no such power, as it attempted to exercise with respect to the matter before it. Eor that reason, also, the proceedings and judgment under review must be set aside.

Further, the act of 1924, supra, was repealed by chapter 2?4, Pamph. L. 1928, which again provides for the appointment of a board of adjustment by the governing body or board of public works, as did the act of 1924, but with the further provision that such board "shall consist of five members who shall not hold any elective office or position under the municipality.”

This raises the question as to whether the act of 1928, which became effective April 3d, 1928, affected and was controlling with, respect to the proceedings now before us where the formal appeal is dated, and was served on the superintendent of buildings March 27th, 1928, and received and acted upon by the board of appeals April 12th, 1928.

Section 14 of the act of 1928 expressly repeals the before-mentioned act of 1924 (chapter 58, Pamph. L. 1925; chapter 315, Pamph. L. 1926, and chapter 203, Pamph. L. 1927), and expressly provides that any acts repealed by such acts so repealed shall not be revived or made valid.

Section 27 of the act of 1928 provides: “Whenever any municipality shall have adopted any ordinance or ordinances prior to the adoption of this act for any of the purposes set forth in this act, such ordinance or ordinances shall continue in effect as if they had been adopted under the provisions of this act, and it shall not be necessary in such cases for the governing body or board of public works to appoint a zoning commission as provided by section 6 herein. All such ordinances shall remain in full force and effect except in so far as they are inconsistent with the provisions of this act, until they shall have been amended or repealed by the governing body or board of public works.”

It is apparent, therefore, that any and all ordinances remained effective, although based upon statutes repealed by this act of 1928 in so far as they were not in conflict with the provisions of such latter statute.

It seems to us perfectly clear, also, that if the zoning board of appeals, created by the Kearny ordinance of 1922, founded upon the act of 1921, did not lose its standing by the act of 1924 repealing the act of 1921, it did become defunct by the act of 1928, and again the proceedings before it and its judgment are without legal effect and value and must be set aside.

3. That the judgment in question is illegal, because it, in effect, permits a construction and use not provided for, but, on the contrary, prohibited by the ordinance, and such action is in violation of paragraphs 2 and 3 of section 9 of the act of 1928 in that the lands in question do not abut a district in which such a structure is permitted.

The respondents contend that the act of 1928 has no application to the proceedings in question.

We, however, are of a contrary opinion.

It must be kept in mind that after the adoption of the amendment to the constitution respecting zoning, the legislative effort was to make such constitutional provision effective and to protect the several municipalities in the benefits to be derived therefrom, and that such legislative effort was this act of 1928.

We think that but for paragraph 4 of section 9 of the act of 1928 there was no power in any board or body, however legally qualified, to act as expressed by the judgment before us, and that the zoning board of appeals made no effort or pretense of acting therunder, and, therefore, if a legally-constituted body, its proceedings and judgment were illegal and must be set aside.

Bespondents urge that the foregoing requirements of the act were practically complied with, inasmuch as the governing body refused to adopt a resolution pledging itself to assist prosecutor in the present proceeding.

This is without substance or merit, and is far aside from the procedure laid down by paragraph 4 of section 9 of the act of 1928.

4. That the act of 1928 is controlling as to the proceedings before us.

This, as before indicated, we think is so.

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


text:
    EDITH McINTOSH v. ANNA M. HUNT.
    Submitted May term, 1928
    Decided October 2, 1928.

      Before Justices Minturn, Black and Campbell.
    For the rule, Melosh, Morten & Melosh.

      Contra, Abraham I. Feltman.

   Per Curiam.

This is an action for the alienation of plaintiff’s husband’s affections and for criminal conversation.

The jury found for the plaintiff upon the alienation count, and the defendant asks that this verdict be set aside for two reasons' — ■

1. Because the court erroneously excluded the following question upon the cross-examination of the plaintiff: “Mrs. McIntosh, you remember at the yesterday afternoon session you testified to certain names you said that Constance Kopp called Mrs. Hunt on this evening of December 29th, 1923. At the close of yesterday’s session did you not tell Miss Constance Kopp that — did you not admit to her and say to her that that was not true ?

The question was excluded because of its duplicity, and correctly so. No effort was subsequently made to reframe or recast the question, and, therefore, the question as to whether it related to a matter competent and material is not before us.

2. The remaining reason is that the court refused to charge defendant’s request as follows:

“Testimony of detectives in this class of cases should be scrutinized carefully with the utmost circumspection and caution.”

The court did charge: “Testimony of detectives in this class of case should be scrutinized carefully.”

We think the instruction as charged was sufficient and meets the requirement in Farrow v. Farrow, 70 N. J. Eq. 777, that such testimony will be received with careful scrutiny, and in Slack v. Slack, 89 Id. 589, where it is said “detectives testimony is competent, but it is scrutinized carefully before given credence.”

We conclude that the verdict should not be disturbed and that the rule should be discharged, with costs.


text:
    BOICE-RUNYON COMPANY, RESPONDENT, v. DANIEL DILLON, IMPLEADED, ETC., APPELLANT.
    Decided October 4, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the appellant, William A. Kirk.

    For the respondent, Harvey Rothberg.

   Per Curiam.

This is a suit on a hook account of building materials sold and delivered. The suit was against the appellant, Dillon, and one Otto Olsen jointly, on the theory of partnership or joint adventure; and there was a judgment against both defendants; Olsen does not appeal.

Two grounds of appeal are assigned — that the verdict was against the weight of evidence, and that the trial court erred in refusing to nonsuit as to Dillon. The first of these, on well-settled principles, is not cognizable on an appeal. As to the refusal to nonsuit, it is urged that there is no evidence to connect Dillon with Olsen as a partner or joint adventurer. We find that there was abundant evidence on that point — for example, that Dillon himself assumed responsibility as a joint and several obligor, ordered material for the particular job, &c., and the direct testimony of Olsen called for the plaintiff, that he and Dillon “were partners on a fifty-fifty basis.”

In this state of the evidence it would have been clear error to nonsuit, and the motion was properly denied.

This leads to an affirmance of the judgment.


text:
    PETER SALAGARAS v. GLOBE AND RUTGERS FIRE INSURANCE COMPANY OF NEW YORK.
    Submitted January term, 1928
    Decided October 5, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the rule, Lewis Starr.

      Contra, Harry Heher.

   Per Curiam.

This is an action to recover for a loss by fire under a policy of insurance. The plaintiff has a verdict of $3,182.38, which we are asked to set aside.

There are one hundred and fourteen reasons assigned and argued under several heads or points, and the state of case consists of over one thousand pages.

It would he an almost impossible task, and, in the end, a useless one, to treat of each reason or point separately and specifically.

We have examined all the reasons urged and find none, in our judgment, warranting a setting aside of the verdict.

The rule to show cause will therefore he discharged, with costs.


author: Parker, J.

text:
    GEORGE E. HORTON ET AL., PARTNERS, ETC., PROSECUTORS, v. BOARD OF EDUCATION OF THE BOROUGH OF ORADELL ET AL., RESPONDENTS.
    Decided October 11, 1928.
    Before Justice Parker, sitting alone.
    For the prosecutors, Feder & Rinzler.

    For the board of education, J. Williard De Yoe.

    For the respondent Alberg Construction Company, Charles J. McCarthy.

   Parker, J.

The prosecutors bid for the award of a contract with the board of education for the construction of a school house, but the board awarded the contract to respondent Al-berg Construction Company. Apart from questions - of laches, which I do not consider, it was quite plain at the argument that on two or three excellent grounds (e. g., that prosecutors were the lowest bidders, and that the board took into consideration the varying times required to finish the work) the award was illegal, or:, at least, that a writ should go, provided, always, that the board was subject to á statute requiring advertisement for bids and an award to the lowest responsible bidder. Counsel fbr respondents insisted that there was no statute of this character controlling the board of education of the borough; that neither the School law nor the Municipalities act applies; that the advertisement was purely voluntary; that the board was controlled only by its own discretion in making an award, and that it does not appear that such discretion was abused, which last may be conceded.

On examination, I conclude that respondents are right. As to the School law, sections 52 and 53 (Comp. Stat., p. 4741) are part of article 6 relating to school districts, &c., cities only. By section 243 of the same act (Comp. Stat., p. 4805) the city scheme may be adopted by referendum in a town, township or borough, and will then be operative therein, as in fact was the situation in Kay v. Board, &c., of Kearny, 83 N. J. L. 551, 553, and in Scola v. Board, &c., of Montclair, 77 Id. 73, 75. Both Kearny and Montclair were towns, and had adopted the city scheme. Railing such adoption in the present case — and there is no suggestion that the borough ever so acted through its electorate — we are relegated to article 7 of the School law (Comp. Slat., p. 4747 et seq.)\ entitled "township, incorporated town and borough school districts.” Section 86, page 4751, confers general powers to build schools, &c., but there appears to be no requirement for letting out contracts by advertisement or to the lowest bidder.

Turning to the question whether legislation relating to municipal corporations generally may apply to school boards, it may be that chapter 342 of the laws of 1912 (Pamph. L., p. 593), applying to any "public body in any county, * * * borough or village” to let out contracts over $500 by advertisement, was broad enough to include school boards; but that act was repealed (Pamph. L. 1918, p. 734), and the obvious intent of the legislature, by passing the Municipalities act of 1917 (Pamph. L., p. 319) was to supersede such acts and establish a general scheme. The Municipalities act plainly does not include school boards; its scope is carefully defined in section 1 of article 1, and the phrase “governing body” is similarly defined in section 2. In neither is there any mention of a school district or board of education. While I have not re-examined this lengthy act in detail, I venture to say that it enacts nothing on the subjects of schools, school districts or board of education by name. The index to Merrey and Eckman, “New Jersey Municipalities act,” does not mention any of these subjects.

I conclude, therefore, that no competitive bidding was required under the Municipalities act; and failing the adoption by referendum of the city scheme of the School act (and no such adoption appears or is claimed), no competition was required in this case under the School act. Hence, no case for allocatur seems to be presented, and the rule to show cause will be discharged, with costs.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. WILLIAM CLEGG LANGLEY, PLAINTIFF IN ERROR.
    Argued October 2, 1928
    Decided October 15, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiff in error, King & Vogt, Frank S. Kelley and Harold A. Price.

    For the defendant in error, Orville V. Meslar.

   Per Curiam.

The plaintiff in error was indicted for making an assault and an unlawful attempt to carnally abuse Dorothy E. Hickerson, a woman-child under the age of twelve years. He was tried, convicted and sentenced to the state prison at hard labor for the term of two years. The case is before us upon strict bill of exceptions and under section 136 of the Criminal Procedure act. The assignments of error are eleven in number and the causes for reversal are ten. We do not think it necessary to comment on all of these. The point most stressed in the brief and argument for the plaintiff in error is the admission in evidence of the particulars of the prosecutrix’s complaint as related by several witnesses. After the attempt to carnally abuse was made the prosecutrix returned home. She had lost a glove. Her mother directed her and a boy friend, David Wehman, to go out and search for the glove. While they were searching the prosecutrix told in detail the particulars of the assault upon her. The trial judge permitted Wehman, over objection, to tell everything which the prosecutrix told him. We are of the opinion that this was error. The fact that a complaint has been made immediately after the occurrence is admissible, but the particulars are inadmissible. In the case of State v. Ivins, 36 N. J. L. 233, Chief Justice Beasley said:

“But on the second ground of the objection the defense must prevail. The particulars of the prosecutrix’s complaint were clearly inadmissible. It is every day’s practice to exclude such narrations in trials for rape. There is no doubt upon the subject, and it is not necessary to pursue it. The sessions should be advised, on this account, to set aside the verdict.”

This case was followed in State v. Shupe, 86 N. J. L. 410.

Upon this ground alone we have reached the conclusion, without considering the other assignments of error or causes for reversal, that the judgment of conviction should be reversed. It is accordingly reversed.


text:
    HORACE G. PRALL ET AL., PROSECUTORS, v. THE UNITED STATES LEATHER COMPANY, DEFENDANT.
    Argued October 3, 1928
    Decided October 18, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutors, Walter L. McDermott and Henry W. Runyon, Walter E. Godfrey and Aaron H. Mary (of the New York bar).
    For the defendant, Pitney, Hardin & Skinner and Waldron M. Ward.

   Per Curiam.

The certiorari in this case was allowed to review an order made in the Hudson County Circuit Court; the order was dated February 3d, 1928; it confirmed a report made by three appraisers appointed by the court to appraise preferred shares of stock owned by the prosecutors in the United States Leather Company at $71'per share.

The proceedings are pursuant to section 108 of the General Corporation act of New Jersey. Pamph. L. 1896, p. 312; 1902, p. 700, as amended by Pamph. L. 1920, p. 284. That statute provides, “upon the merger or consolidation of any two or more corporation, which do not have the right to exercise any franchise for public use into a single corporation,” &c. “Eor the appointment of three disinterested appraisers to appraise the full market value of his stock without regard to any depreciation or appreciation thereof in consequence of the said merger or consolidation.”

The question presented for solution is: Have the appraisers fully performed the duty laid upon them by the statute? The prosecutors alleged grievance is they have not, while the defendant argues the contrary, and cites in support thereof the appraisers’ report dated January 20th, 1928, and the order of confirmation by the Circuit Court dated February 3d, 1928. It is also argued that this court is bound by the decision of the Court of Errors and Appeals in the case of Matter of the condemnation of the capital stock of the Morris Canal and Banking Co., 6 N. J. Adv. R. 987. While it is true that the proceedings in that case were under a different statute, viz., Pamph. L. 1923, p. 210, § 7, and the facts are also somewhat dissimilar, the statute in that case provides, “three commissioners or appraisers to appraise the full market value of said stock and what damages, if any, should be assessed for the taking of same.” The extent and scope of the decision in that ease' is sufficiently comprehensive to include this case, although, under a different statute, the method contended for by the prosecutors in this case, for ascertaining the full market value of their shares of stock, was condemned in that case as unsound. The order of confirmation of the Circuit Court of Hudson county under review will be confirmed.


text:
    GUISEPPE MORALES, PROSECUTOR, v. THE BOARD OF ADJUSTMENT OF THE CITY OF PASSAIC ET AL., DEFENDANTS.
    Argued October 2, 1928
    Decided October 18, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Roegner & Levy.

    For the defendants, Feder & Rinzler and Joseph J. Weinberger.

   Per Curiam.

This is an application for a certiorari to review the decision of the board of adjustment of the city of Passaic, dated July 31st, 1928, reversing the decision of the supervisor of buildings, refusing a permit to use premises No. 43 Aspen street for the purpose of manufacturing mattresses. The chief of the fire department, Reginald H. Bowker, testified that it would not add to the fire risk of the buildings as a hazard— positively not. It is a two-story brick building. The prosecutor owns Nos. 37-39 Aspen street immediately adjoining, oh which he conducts a bakery shop. The writ is asked for on the ground that the board of adjustment was without jurisdictioon to hear the appeal under the act Pamph. L. 1928, p. 701, § 2, as there was no proof "that no such structure or use shall be allowed more than one hundred and fifty [150] feet beyond the boundary line of the district in which structure or use is authorized by the zoning ordinance.”

Before the justice of the Supreme Court before whom the application was made in the first instance, it was admitted in open court and made a part of the order denying the writ, which is before us now by a written stipulation to the effect; that the building in question, No. 43 Aspen street, “is not more than, hut within, one hundred and fifty [150] feet beyond the boundary line of the district in which said structure or use is authorized by the zoning ordinance of the city of Passaic.”

It seems to us that this is dispositive of the case on the question of jurisdiction. The writ of certiorari is therefore refused.


text:
    PHILIP LIPSHUTZ ET AL., PROSECUTORS, v. ISADORE KAPLAN ET AL., DEFENDANTS.
    Argued October 2, 1928
    Decided October 18, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutors, Edward Griffin and William Rutin.

    For the defendants, Rosario S. Mazzola and James Benny.

   Per Curiam.

The writ of certiorari was allowed in this case to review a resolution of the board of commissioners of the city of Bayonne, dated June 5th, 1928, granting a permit or license to the defendant Isadore Kaplan to operate a poultry market at No. 78 West Twentieth street, Bayonne, New Jersey, and to transfer a license No. 1 held by him from No. 75 West Twentieth street, Bayonne, to No. 78 West Twentieth street, Bayonne, New Jersey.

The prosecutor urges several reasons for setting aside the resolution — -first, failure to comply with section 2 of the ordinance under which the resolution was granted; second, failure to comply with section 3 of the ordinance; third, failure to comply with section 7 of the ordinance.

Under the evidence in the record these reasons are not-tenable. (Testimony of Morris Brodman, page 43, et seq., of the record.) Our examination of the record, together with the reasons filed for setting aside the resolution, lead us to the conclusion that the defendant Isadore Kaplan, previous to the passage of the resolution by the board of commissioners, complied with all the provisions of the cited ordinance. We find no substantial reasons for disturbing the resolution granting the permits. The action of the board of commissioners of the city of Bayonne, granting the permits to Isadore Kaplan, dated June 5th, 1928, is affirmed, and the writ of certiorari is denied, with costs.


text:
    OTIS R. SEAMAN, PROSECUTOR, v. JAMES STROLLO ET AL., DEFENDANTS.
    Argued October 2, 1928
    Decided October 18, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, McCarter & English.

    For the defendant, James Strollo and Lum, Tamblyn & Colyer.

   Per Curiam.

In this case the writ of certiorari was allowed to review the action of Thomas Beatty, one of the commissioners of the city of Long Branch, appointing the defendant James Strollo city engineer. It is conceded that Long Branch is governed by five commissioners elected under the Walsh act (Pamph. L. 1911, p. 462; Pamph. L. 1915, p. 496; 2 Cum. Supp. Comp. Stat., p. 2462), and that a municipal election held on May 8th, 1928, five commissioners were elected, of which Thomas Beatty was one. The only point involved in the case is whether the board of commissioners of a city as a body acting under the Walsh act, at its first or organizing meeting, has power to choose a city engineer, or whether that power is lodged in the individual commissioner?

We think the answer to this question, under our decision, in the ease of Sykes v. Heinzman, 100 N. J. L. 12, must be that the appointment of the defendant James Strollo, by Commissioner Thomas Beatty as city engineer of Long Branch, was a valid and legal one.

This view leads to a dismissal of the writ of certiorari, with costs.


text:
    STANISLAWA KUKOWSKI, RELATOR, v. JOHN RATH, BUILDING INSPECTOR; ALONZO FRENCH, IN CHARGE OF ISSUANCE OF BUILDING PERMITS; JOSEPH MINTON, LUCIUS DONOHUE, BERT DALY, HOMER AXFORD AND GEORGE E. KEENAN, BOARD OF COMMISSIONERS OF THE CITY OF BAYONNE, DEFENDANTS.
    Argued May term
    Decided October 22, 1928.
    Before Justices Minturn, Black and Campbell.

      For the relator, Benjamin Nessenbaum.

    For the defendants, James Benny.

   Per Curiam.

The relator is the owner of a plot of land, about thirty-nine feet wide by one hundred and fourteen feet deep at the corner of East Third street and Broadway, in the city of Bayonne. A two-family dwelling house has been erected on the Broadway side of the plot, while in the rear thereof, facing East Third street, an old building is now used for garage purposes.

The relator made application to the defendants for the purpose of obtaining the necessary consent or permission to replace the garage structure with a brick one-story building to be used as a grocery and delicatessen about the same width as. the garage.

Broadway is the main business thoroughfare of Bayonne. throughout its entire length, and the whole neighborhood has assumed the character of a business environment. Automobile buses stop in the neighborhood of the property in question to take on and discharge passengers. Large factories are erected within the immediate vicinity, while car barns used for the street railway cars are within a few blocks of the locus in quo. There is also in operation a large amusement park within a few blocks of the place. The property in question, therefore, is important as a business asset because of its commercial possibilities.

In this situation the relator applied for a permit for the purpose of erecting the proposed one-story structure. This was refused, and from this refusal she appealed to the commissioners of the city, who have refrained from taking any action thereon upon the ground that the neighbors object to the issuing of the permit.

The relator tendered the necessary fees and complied with all the requirements concerning the filing of plans and specifications under the provisions of the building code. There is no zoning ordinance in the city. Her appeal to the board of commissioners of the city was made on the 2oth of April, 1928. The commissioners referred the application to the city attorney, who referred the matter back to the city commissioners, who have in turn referred it to a sub-committee. No action whatever has been taken upon the application, and the defendants neither refuse nor grant the concession asked by the relator.

No objection has been made that the plans and specifications are not in compliance with the building ordinances of the city nor with the municipal regulations thereof, while it is in evidence that permits have been issued for the erection of other stores in the immediate neighborhood, to which objections similar to those now advanced might well be held applicable.

The difficulty in the present instance is that the commissioners in whose hands the matter rests have failed to take action for or against the granting of this permit, and no legal reason seems to exist why they should at least not act in the matter, nor does counsel on the argument advance any satisfactory reason to warrant the inactivity of the defendants.

Under the circumstances a writ of mandamus will be allowed to compel the defendants to take action in the matter. Eor that purpose a writ of mandamus against the defendants will be allowed.


text:
    POINT BREEZE FERRY AND IMPROVEMENT COMPANY, PROSECUTOR, v. MAYOR AND ALDERMEN OF JERSEY CITY, A MUNICIPAL CORPORATION, ET AL., DEFENDANTS.
    Argued October 25, 1928
    Decided October 29, 1928.

      Before Justices Minturn, Black and Campbell.
    For the prosecutor, John W. Queen and Richard Boardman.

    For the defendants, Edward P. Stout.

   Per Curiam.

This is an application to vacate an allocatur of a certiorari. The certiorari was allowed to review the sale of taxes affecting lot C in block 1514, old block 1513-1517, on property located on New York bay, and also the resolution of the mayor and aldermen of Jersey City, dated June 26th, 1928, for the apportionment of said taxes. The return made to the certiorari shows that the taxes involved were levied for the years 1874 to 1907. These taxes were in the report of the commissioners of adjustment of Jersey City, No. 113. This report was affirmed by the Hudson County Circuit Court on July 9th, 1908. The report was removed by certiorari to the Supreme Court and was affirmed by that court on April 26th, 1909. Subsequent taxes were levied down to the year 1927. A bill was filed in the Court of Chancery affecting these taxes, which was dismissed on the 16th day of January, 1928, by an order of that court. Subsequently a bill was filed in the United States District Court for the District of New Jersey affecting these taxes, which on the 8th day of October, 1928, was dismissed by that court.

We think that in matters affecting municipalities a certiorari should not be allowed, except upon notice, and where municipal taxes are involved, the certiorari should not be allowed, except upon the payment of taxes conceded to be due. This was the practice adopted in the case of the Trustees of Stevens Institute of Technology v. State Board of Taxes and Assessment, decided by this court at the October term, 1928.

We think the allocatur should be vacated and the certiorari dismissed.

A rule to that effect may be entered.


text:
    IDA M. PEARSON, PETITIONER-RESPONDENT, v. ARMSTRONG CORK COMPANY, RESPONDENT-PROSECUTOR.
    Argued October term, 1928
    Decided October 25, 1928.
    Before Justices Minturn, Black and Campbell.
    For the petitioner-respondent, Riggins & Davis.

    For the respondent-prosecutor, Ralph N. Kellam.

   Per Curiam.

The petitioner in this case filed her petition on May 26th, 1925, to the workmen’s compensation bureau, praying for compensation for the death of her husband, alleging in response to question number seventeen on said petition as follows :

“Q. What was the nature of the accident, and how did it happen ?

"A. The petitioner’s deceased husband contracted in the course of his employment with respondent wood alcohol poisoning, the said poisoning being caused by the nature of the plaintiff’s business, and from which poisoning the petitioner’s husband died on or about May 12th, 1925.”,

The matter was heard before the deputy commissioner on the 30th of June, 1925, who found “that the said William H. Pearson, deceased, did so contract wood alcohol poisoning in the course of his employment with the Armstrong Cork Company, the above-named respondent, and also that the deceased employe, William H. Pearson, died from endocarditis caused by wood alcohol poisoning occupationally contracted.”

Erom this award the prosecutor appealed to the Court of Common Pleas of Camden county, where the said award was affirmed and judgment entered accordingly.

This writ of certiorari was allowed on the 25th of June, 1928, to the prosecutor to have the judgment so entered reviewed.

The deceased was engaged in a business for at least two years which obliged him to grind gum and mix wood alcohol and denatured alcohol with the same. The room in which he worked at times was permeated with alcoholic fumes. The doctors who were called for the petitioner in their opinions stated the history of the decedent’s case and gave it as their opinion that the physical condition preceding his death was caused or contributed to by some poisoning, and they concluded that it was wood alcohol because the decedent was employed in the use of it, and they were satisfied that the poison which entered the body came from external conditions and was not due to any natural causes.

The respondent called a physician experienced in chemistry, who entertained the opposite view.

The testimony was of such a character as to leave the question as to the exact cause and origin of death under the circumstances to the judgment of the workmen’s compensation bureau and that of the county court upon appeal.

We have reviewed the testimony of the witnesses in favor of the prosecutor and in favor of the defendant, and we are inclined to agree with the opinion of the Court of' Common Pleas that the facts and circumstances of the case are strongly in support of the conclusion that the toxemia existing was the result of external wood alcohol poisoning or the absorption by the deceased of such irritant poisoning, and that death was caused or accelerated by said poisons taken into his system during the course of his employment by respondent.

Where two independent and distinct tribunals such as these have examined the facts and heard the testimony we do not think that a conclusion so reached should be lightly disturbed by this court upon a mere inspection of the written word, where there is ample support in the testimony for the conclusion so reached, and we therefore are of the opinion that such conclusion should stand undisturbed.

Since this is the only question which has been argued, we have reached the conclusion that the judgment of the Court of Common Pleas should be affirmed, and such will be the order.


author: Ackerson, S. C. C.

text:
    MAX MINSKY, PLAINTIFF, v. MEYER SATENSTEIN AND GUSSIE SATENSTEIN, DEFENDANT.
    For the plaintiff, Samuel Harber.

    For the defendant, Samuel L. Hirschberg.

   Ackerson, S. C. C.

The complaint in this action contains two counts. The first alleges malicious interference by the defendants with a Contract to marry existing between the plaintiff and his fiancee, Bertha Satenstein, resulting in a breach thereof. No relationship between the defendants and said Bertha Satenstein is alleged however. The second charges a malicious conspiracy between the defendants, who are alleged to be parents of plaintiff’s fiancee, to bring about a breach of the aforesaid contract to marry actually resulting in a breach thereof.

The matter now comes before me upon a motion to strike out the complaint — first, upon the ground that the allegations of the complaint are not specific and precise, but are based upon conclusions of law, and, secondly, upon the ground that the complaint does not set forth a legal cause of action.

As already noted, the complaint charges the defendants with malice in procuring a breach of the contract to marry, and also with maliciously carrying out á conspiracy to cause a breach thereof. In setting forth the charges in the complaint, the plaintiff has resorted to general allegations, but it is definitely established in this state that:

‘‘Where the gist of the action is malice, the general allegations of conspiracy, persuasion, threats, &c.j are good pleading.” Malone v. Brotherhood, &c., 110 Atl. Rep. 696; VanHorn v. VanHorn, 52 N. J. L. 284.

It is apparent, therefore, that the complaint should not be stricken out for the first reason urged by the defendants.

Turning now to the question of whether or not the complaint sets forth a good cause of action, we have to deal with the question of the liability of a third person for inducing the breach of a contract to marry, and this question is a novel one so far as the jurisprudence of this state is concerned.

In the early law, we find that the first recognition of a distinct cause of action for the interference by a third person with a contractual relationship arose in those cases where the third person interfered with the relation of master and servant. The recognition of a cause of action in such cases finally lead to the decisions in the cases of Lumley v. Gye, 2 El. & B. 216; 1 Eng. Rul. Cas. 706, and Temperton v. Russell, 1 Q. B. (1893) 715, in which it was definitely decided that the right of action for maliciously procuring a breach of contract is not confined to contracts for personal services but extends to other contracts as well, where the element of malice is present. The reluctant but gradual absorption of this doctrine into the jurisprudence of our state is clearly shown in the case of VanHorn v. VanHorn, supra, where is was said that:

“Where there is a suable contract between a contractor and contraetee, there is difficulty, in principle, in showing privity in another, or to make the person who procures a breach of the contract the proximate cause of injury. The party who breaks the contract, for whatever cause, whether by procurement of others or of his own volition, is primarily responsible to the other party; and the procurer, it would seem, can only be held responsible for the breach where there is malice shown to the sufferer, giving a distinct cause of action for the malice which caused the breach of the contract, resulting in damage to him.”

While there has been a general expansion of the doctrine of the liability of a third person for interference with a contractual relationship, nevertheless the courts have apparently been reluctant to protect contracts to marry from malicious or fraudulent interference by third persons. This reluctance has been in part due to fear that the result of extending protection to such contracts would be to render parents liable for advising children in their parental capacity, where such advice might result in the breach of a contract to marry. Annotation to case of Ableman v. Holman, 47 A. L. R. (Anno.) 442. A contract to marry stands upon a different footing from the general commercial contract. In the former the state has an interest to see that the contract when consummated by marriage results in a union which will not only prove happy and lasting, but will fit well into the general social scheme. The protection of this interest of the state rests primarily with the parents of those contemplating marriage, therefore, it is generally recognized that parents have the right to advise their children whether they shall enter into contracts to marry, and also to advise the breach of such contracts already entered into, when in the judgment of the parents a marriage ought not to take place, and such advice or the result thereof is not actionable. Leonard v. Whetstone, 34 Ind. App. 383; 68 N. E. Rep. 197; 107 A. S. R. 252, and 15 R. C. L. 18. If the parents thus have the right to act, their motive in acting cannot, of itself, make the act wrongful. 15 R. C. L. 59, § 19. If any other rule were to be pronounced, it would be inviting litigation of a character which would do much to break down family discipline and control.

The case of Leonard v. Whetstone, supra, is directly in point. The complaint was based upon a charge that the parents of a young man who was engaged to marry had “conspired together to wrong the plaintiff, and to prevent the marriage by maliciously persuading, commanding and hiring their son not to marry the plaintiff, and to violate his marriage contract.” The court in dealing with a motion to strike out the complaint as legally insufficient said, inter alia:

“We cannot hold other than that a parent has a perfect right to advise the child whether he or she shall enter into a contract of such importance as one of marriage. Nor should parents’ advice be withheld from a child where an agreement to marry has been made, and in the judgment of the parents of either of the contracting parties the union ought not to take place.
“Judge Cooley, in his work on Torts, second edition, page 227, says: “The prevention of a marriage by the interference of a third person cannot, in general, in itself, be a legal wrong. Thus if one, by solicitations, or by the arts of ridicule or otherwise, shall induce one to break off an existing contract of marriage, no action will lie for it, however contemptible and blamable may be the conduct.’
“But if a person is induced to refuse to comply with his agreement to marry by false and slanderous charges made against the other party to the agreement by a third person, the action is not against the third person for causing a breach of the contract, but for slander or libel, as the case might be.”

If, therefore, a parent in an effort to break off an engagement stoops to libel or slander, the aggrieved party would have a remedy for the tort thus committed. Of course, a third party not standing in the relationship of parent to one of the contracting parties, is upon an entirely different footing, and any malicious interference with the contract by such party, would undoubtedly be actionable, but public policy as well as natural justice would seem to protect parents in their interference with a child’s contract to marry, not prompted by slander, libel or fraud. If this principle is correct, then it would make no difference whether parents conspired together to bring about a result which either might do separately.

As already stated, the question here considered is one of novel impression in this state, and we are, therefore, free to adopt that ruling which is best fitted to promote social welfare and conserve the best interests of the home and family relationships, and that rule undoubtedly is that parents have the right to advise their child against entering into a contract to marry and even persuading the child to break such a contract, and their reasons for so doing cannot be inquired into, leaving them liable, however, to an action for libel or slander if such means are used to accomplish that end. It is apparent, however, that the rule should not be extended beyond parents or those standing in loco parentis to one of the parties.

Of course, when once the marriage has been consummated, parents have no right to alienate the affection of one of the contracting parties from the other. But until the contract to marry culminates in matrimony, no such cause of action is recognized or exists. Annotation to case of Ableman v. Holman, supra.

Turning now to the complaint in the case sub judice, we find that the first count charges a malicious interference with a contract to marry, resulting in its breach, but nowhere in this count is it alleged that the defendants are the parents of the plaintiff’s fiancee, hence, we may deem, for the purpose of this count, that the defendants stand in the position of third parties, who are not in a position to invoke the rule above adopted, therefore this count should stand.

The second count, however, does allege that the defendants are the parents of the plaintiff’s fiancee and that they maliciously conspired to bring about a breach of the contract to marry, thereby setting forth a situation which falls within the protection of the rule above adopted, and, therefore, the second count should be stricken out as not setting forth a cause of action, and an order may be presented in accordance with the conclusions thus reached.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MATAGA STANKO, PETITIONER, v. MONTROSE CONSTRUCTION COMPANY, RESPONDENT.
    For the petitioner, Armstrong & Mullen.

    For the respondent, McDermott, Enright & Carpenter.

   * * # ❖ * ❖ *

1. A petition was filed by the petitioner, residing at 17 Eerris street, Jersey City, New Jersey, alleging that on July oth, 1927, he was employed by the respondent, and that on said date he met with an accident arising out of and in the course of his employment, which accident occurred as follows : That the petitioner was walking along the stones carrying a load of tools, and the stones being wet, he slipped, casting him to the earth, a distance of five feet from his footing, causing him to land on other stones which came in contact with his left side, causing him serious internal and external injuries, including injury to the skin, muscles, nerves, bones, ribs and a hernia. It is further alleged in said petition that he was employed at a salary of $33 per week.

2. The respondent admits the employment, admits that an accident occurred and that petitioner received temporary compensation from the date of said accident to November 12th, 1927, or eighteen and four-sevenths weeks at $17 per week, and paid the doctor’s bills occasioned by said accident.

3. I have listened to the testimony of Dr. Thomas Brennock, who testified for the petitioner, based upon an examination which he made on Eebruary 21st, 1928, and from which examination he claims to have found evidence of callus formation from the fifth to the ninth ribs on the left side, and claims that petitioner suffers pain on breathing and stooping, and that he also found a left inguinal hernia which was not complete. I cannot subscribe to his testimony in view of all the testimony in the case. It seems to me that there is nothing unusual about this, and that as Dr. Brennock himself said, it is unusual to have pain in a case of this nature after the bones have united. This doctor made an estimate of permanent disability. He admits that he is not .familiar with estimating compensation cases, and his estimate is clearly unjustified in this case.

4. It appears from the testimony of the petitioner, Mataga Stanko, that he has not worked since the accident and that he has not tried to secure any work.

5. On the part of the respondent, I am impressed with the testimony of Dr. Daniel J. Donahue, who treated the petitioner from July 6th to July 26th for contusions and fracture of the seventh rib on the left side, and discharged him on July 26th, at which time he was able to do light work. His testimony further shows that the petitioner should have been able to return to his regular occupation by the last of August. He found no permanent disability.

6. Dr. William J. Arlitz was called by the respondent and testified that he examined the petitioner on February 29th, 1928, but found no evidence of any permanent disability. Dr. Londrigan testified under subpoena that he examined this man on three different occasions for the workmen’s compensation bureau and was unable to find any permanent disability.

7. This case involved entirely a question of fact, and I find that by far the preponderance of the evidence shows that the petitioner did not suffer any permanent disability. It appears to me that he was paid liberally by the respondent for his temporary disability.

***** * *

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LAURA E. OPDYKE, PETITIONER, v. MORGAN COWPERTHWAITE, RESPONDENT.
   1. This is a proceeding brought under laws of the State of New Jersey, known as the Workmen’s Compensation act, by Laura E. Opdyke, petitioner, and against Morgan Cowperthwaite, respondent, claiming compensation to which she might be entitled by reason of the death of her husband.

2. A formal petition was filed December 15th, 1927, claiming compensation for the petitioner and her daughter, who was alleged to be a tubercular patient in a sanitarium and is twenty-five years old. The petition alleges that the deceased, while in the employ of the respondent, was riding on the employer’s horse in the performance of his duties on the employer’s estate. Trucks had been using a private road on the estate and the decedent had gone out to the road on horseback in order to protect his employer’s property and interests. While doing so the deceased was thrown from the horse and suffered such severe injuries that he died on February 9th, 1927; said accident occurring on the same date.

3. Respondent filed an answer to the petition and denied that the accident arose out of and in the course of the decedent’s employment with the respondent. According to the respondent the deceased was engaged as a gardener, and had no occasion to be riding horseback on the road on the estate, and had been ordered not to ride horseback. The respondent further claimed that the sole duties of the deceased were to act as a gardener.

4. The wages of the deceased were $100 a month.

5. The respondent had notice of the accident.

6. Death was caused as a result of the accident.

In view of the controversy which has arisen and the serious question of law and fact involved in the case, it is hereby stipulated and agreed between the respective parties that the above matter be settled on the following basis:

1. Allowance is to be made for the two dependents and payment to be made at the rate of $8 per week for two hundred and fifty weeks, in accordance with the provisions of the Workmen’s Compensation act.

2. Respondent is to pay the funeral expense up to $150.

3. Respondent is to pay medical expense in the amount of $138 and make reimbursement to the petitioner for medical expense in the amount of $60.

4. Counsel for the petitioner is entitled to a counsel fee of $200, payable $125 bjr the respondent and $75 by the petitioner.

Charles E. Corbin, Deputy Commissioner.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    BLANCHE OLIN AND MICHAEL AND FRANCES OLIN, PETITIONERS, v. C. S. ALLEN COMPANY, RESPONDENT.
    For the petitioners, Harry Kay.

    For the respondent, Arthur Butler Graham.

   That the petitioner, Blanche Olin, was in the employ of the respondent on June 30th, 1927. That the respondent, C. S. Allen Company, was engaged in conducting a candy sale for the Kresge Department Store, at Newark, New Jersey. That the petitioner was employed by the respondent as a saleslady in the said candy department.

That the only testimony produced by the petitioner Blanche Olin, as to the occurrence of an accident at about eight forty-five A. m. on June 30th, 1927, is her own. Her testimony, however, is inconsistent and must be rejected. The petitioner stated that she fell down the stairway used by the employes of the Kresge Department Store and remained at the bottom of the stairway for fully five minutes. That she reported the accident to a Mr. Sullivan or Mr. Seldon, either of the Kresge Department Store or of the C. S. Allen Company. The testimony given by John Tierney, a disinterested witness, who is the floorman of the Kresge Department Store, is to the effect that he was stationed at the stairway where the petitioner claims she fell from seven-thirty to nine A. h.; that he was always stationed there in the morning, and that he did not see the petitioner that morning nor did he see her fall. He knew the petitioner by sight and further testified that there were about two thousand employes who were continuously using this stairway at this particular time in the morning; that someone was continuously either going up or down. That it is improbable that the petitioner could have had an accident without anyone seeing her fall.

That the alleged accident was not reported to anyone employed by the Kresge Department Store or by the C. S. Allen Company. The records of the Kresge Department Store show that no person by the name of Sullivan or Seldon was ever in their employ. The letter from the C. S. Allen Company introduced into evidence by the respondent shows conclusively that the respondent never had a Mr. Sullivan or Mr. Seldon in its employ.

That the petitioner, Blanche Olin, was a nervous individual and was subject to fainting spells. That before the date, of the alleged accident herein she had had many fainting spells. These facts were conclusively established by the testimony of Dr. Herbert Schulte, the head physician of the Kresge Department Store; Ellen Anderson, the head nurse of the Kresge Department Store; Alice Smith, a nurse in the medical department of the Kresge Department Store, and even by the petitioner’s own physician, Dr. Benjamin Saslow.

Some of the hearings having been adjourned at the request of the respondent, thereby causing inconveniences and the incurring of disbursements by the petitioner, the respondent has agreed to pay to the petitioner $25 for these disbursements. This is not an order by the commissioner, but merely a consent by the respondent to pay these disbursements.

Now, after due consideration and deliberation, I conclude that the petitioner has failed to sustain her burden of proof and has failed to establish that she had an accident arising out of and during the course of her .employment, and that the injuries which she claims to have sustained were not caused by an accident on June 30th, 1927, arising out of and during the course of her employment.

$$$$$$ #

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RUSSELL L. NIXON, BY HIS MOTHER AND NEXT FRIEND, ROSE M. NIXON, PETITIONER, v. AMERICAN BROWN-BOVERI ELECTRIC CORPORATION, RESPONDENT.
   This matter coming on to be heard before Charles E. Corbin, deputy commissioner, • at the city of Camden, New Jersey, on October 4th, 1927, October 20th, 1927, and December 12th, 1927, and the hearing being attended by William C. French, Esquire, by Samuel H. French on behalf of the petitioner and by Carr & Carroll, attorneys for the respondent, and I having heard and considered all the testimony adduced, do hereby determine and find as follows:

1. Russell L. Nixon, the petitioner, infant of the age of eighteen, filed his petition against the respondent, setting up in his petition the following claim:

2. That on April 12th, 1926, while employed by respondent in the work of pulling an electric cable on United States Steamship Saratoga, at Camden, New Jersey, he fell and struck a tank, causing an injury to the spine, and that the fall and resulting injury was caused by the cable being fed into his hands with a sudden thrust and with unusual rapidity, and that the cable got caught and suddenly stopped with a jerk and jolt; that the petitioner was compelled to stop work because of the injury on April l^th, 1926; that he was well enough to go to work again on May 5th, 1926, but performed duties with great difficulty and frequent absences. The petition further set up that there was a permanent injury resultant from the accident, which injury was claimed to be an “infection to the spine.” A large quantity of evidence was taken, both on behalf of the petitioner and of the respondent.

3. On April 12th, 1926, petitioner applied at the infirmary at the plant of the respondent claiming that he had received an injury to his back. - He was examined by a Dr. Ley, the physician in charge of the infirmary; he was stripped to the waist and there were no visible signs of an injury; no marks, abrasions, contusions or swelling. He was given electric-therapeutic heat treatments at the infirmary on April 12th, 13th, 14th, 15th, 16th and 19th, and on none of these occasions was there any visible evidence of injury. He lost no time or pay following the alleged accident. He left the employ of the respondent, giving as his reason therefor that he was going to take a better position. There were no witnesses to the alleged accident, nor was any report made thereof to his foreman or immediate superior. On May 4th, 1926, the petitioner obtained employment with the General Electric Company at Philadelphia, and worked for that company until September 18th, 1926, without the loss of any time due to any physical disability. Prior to his employment with the General Electric Company he was subjected to a physical examination by a physician employed by that company, which examination included the back and spine of the petitioner, and no physical disability or injury whatever was disclosed. In answer to one of the questions upon the employment form of the General Electric Company he disclaimed any prior accidental injury. He left the General Electric Company for the purpose of becoming a student in the Drexel Institute in Philadelphia. He entered that school almost immediately following his cessation of employment with the General Electric Company. He continued to attend the school regularly until the close of the school year, about June, 1927, having lost no time at the school. In December, 1926, an X-ray picture was taken which disclosed a condition of osteo arthritis of the right saero-illiae joint. A second X-ray picture was taken in the following January, disclosing a similar condition ■with some improvement. The medical testimony, while in conflict in some particulars, is in agreement upon the fact that osteo arthritis is of focal infection origin and not caused by traumatism. While some physicians for the petitioner were of the opinion that the injury claimed in this case was responsible for “lighting up” an existing infection, this opinion was flatly contradicted by the physicians called by the respondent, and I am of the opinion that the petitioner has failed to sustain the burden of proof in this particular, especially in view of the fact that there was no visible evidence of injury whatever seen or observed by any medical witness within a reasonable period following the alleged accident sufficient, in my opinion, to account for the injury. I am impressed by the medical testimony to the effect that had there been such an injury it would have been attended by such pain as to have made it extremely unlikely that this young man could have continued his several employments and his course at the Drexel Institute without interruption. , I find that there is no corroboration of the petitioner’s story as to how the alleged accident actually occurred. The method by which the particular work was accomplished was testified to by the superintendent of electrical work in charge of the work upon the steamship Saratoga, and was wholly at variance with the petitioner’s statement. The petitioner’s testimony as to the method of pulling the electric cable on board this ship indicated a method so crude and so at variance with modern methods as, in itself, to place a strain upon credulity. In this respect the case bears some resemblance to that of Petti v. The City of Newark, 5 N. J. Mis. R. 877.

I, having heard and considered the testimony adduced, do hereby determine and find as follows:

1. The petitioner was in the employment of the respondent on April 12th, 1926; that the amount of his weekly wages was $23.76; that on the 12th day of April, 1926, petitioner, while pulling a cable on the United States Steamship Sara-toga, at Camden, New Jersey, claims to have fallen and struck a tank causing injury to the spine and that the said fall and resulting injury were caused by the cable being fed into the hands of petitioner with á sudden thrust and unusual rapidity, by getting caught and suddenly stopping with a jerk and a jolt; that permanent injury resulted therefrom, and that such permanent injury was an infection to the spine. The fact of notice to respondent is not disputed.

3. The petitioner’s testimony with respect to the manner in which he received his injuries is without corroboration.

3. The testimony of respondent’s superintendent as to the method by which the cable was pulled is wholly at variance with that described by the petitioner.

4. That the doctor at the infirmary of the respondent who examined petitioner on the day of the alleged accident, the nurse who saw and treated the petitioner under the directions of the physician, that Dr. Gamón, the physician later employed by the petitioner, saw no physical signs of any external injury; that Miss McElhome, in charge of the records at the infirmary of respondent, who took the record of the history of the case directly from .the petitioner, obtained no history of an accident of the character described in the petition.

5. That the testimony of sundry witnesses established to my satisfaction the following facts:

1. That the petitioner continued in the employment of the respondent for about ten days following the date of the alleged accident without the loss of any time or pay; that he left the employment of respondent stating as his reason that he was going to a better position; that on or about May 4th, 1936, he obtained employment with the General Electric Company at Philadelphia and remained in the employ of that company until September 18th, 1936, without the loss of any time, stating as his reason for leaving that he was about to take a course in the Drexel Institute in Pheladelphia. Prior to his employment by the General Electric Company he was subjected to a physical examination by the physician in the employment of that company, which examination disclosed no physical disability whatever; that shortly following the determination of his employment at the General Electric Company he entered the Drexel Institute, where he continued as a student until approximately June, 1927, and that he lost no time whatever from the school.

2. I further find, after consideration of all of the testimony, that the petitioner did not prove by the preponderance of evidence that the disability complained of was the result of an accident arising out of and in the course of his employment with the respondent.

íJí i¡i :Jc }Jí %

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DANIEL ZYDOWSKY, PETITIONER, v. FORD MOTOR COMPANY, RESPONDENT.
   * * * * * *

1. That on or about Saturday, Eehruary 26th, 1927, between seven and eight p. m;., the said petitioner was employed as a loader by the said respondent and was engaged in the duties of his employment assisting in the loading of a boat called the Lake Benbow, at Hoboken, New Jersey, and he asserts that at the time and place above mentioned, he was struck on the back by some lumber which was being slung into the said vessel; and he further says he experienced some pain immediately upon the occurrence of the said alleged accident and stopped working for perhaps one-half hour, but continued thereafter, until the usual quitting time, about midnight; that the following day, being Sunday, he did not, in accordance with his usual custom, go to work, but that on the following day, Monday, February 28th, 1927, he worked his full time of eight hours at the place aforesaid, and on the followng day, Tuesday, March 1st, 1927, went to work as usual about four p. m., and had worked several hours when he sustained another accident resulting in the injury of several of his toes; that the latter injury confined him to the hospital until March 19th, 1927, and thereafter to his home, and for the temporary and permanent disability entailed by the said latter accident he has been compensated in full by the said respondent; and he further claims that on February 26th, 1927, he told his foreman that he had been injured, as aforesaid, which fact the said foreman absolutely denies; and it further appears from the testimony of the said petitioner that while he was confined to the hospital as a result of the injury to his toes he was advised by his attending physician that he should be operated upon for some other affliction; that on or about April 2d, 1927, he reported to the person in charge of the said respondent’s office that the reason he had not returned to work was that he was suffering from a hernia; and it further appears from his own testimony that he made no claim to the person in charge of the said respondent’s office regarding the injury to his back alleged to have been sustained on February 26th, 1927, until August 15th, 1927; and it further appearing that the only medical testimony produced by the said petitioner was that of a physician who examined him for the first time on December 14th, 1927, almost ten months after the said alleged accident,, and that -physician testified that the symptoms which the said petitioner exhibited might be caused either by the blow or by disease.

íjí í£ ^

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM DITMAR, PETITIONER, v. MEYER & RYBICKI, RESPONDENT.
   sjc Hi # # t[i #

1. That on or about November 3d, 1926, between nine-thirty and ten a. m., the said petitioner was employed as an iron worker by the respondent at the premises of the Public Service Railway Company in the city of Elizabeth, New Jersey, and while then and there standing on a roll of mesh he lost his footing and felt a pain in his back; that he was receiving wages of $10 per week and that the respondent had knowledge of the occurrence of the said accident within the time required by law; that he continued on the job for the balance of the day, which job was entirely finished that same day; that, he thereupon returned to his home and was treated by his own physician for a period of five or six weeks, during which time and on November 19th, 1926, he was examined by a plrysician for the respondent who diagnosed the injury as a strain of the muscle of the left side, about the middle of the crest of the ilium; that on November 29th, 1926, an X-ray was taken of his back at St. Michael’s Hospital which showed a cloudiness of the right sacro-iliac joint but no definite pathology and showed no injury to the left sacro-iliac joint although he complained of pain on that side; that on January 5th, 1921, he was examined by the physician attached to this bureau whose diagnosis was practically identical with that of the said respondent’s physician who actually treated the said petitioner from December 3d, 1926, to January 12th, 1927, at which time he was discharged; that thereafter he was examined by 'other physicians and treated by one of them, and several other X-rays were taken of his back; that before the filing of the said petition, the said respondent had paid to the said petitioner for temporary disability entailed by the said injury compensation at the rate of $17 per week for the period of eleven weeks, running from November 3d, 1926, to January 19th, 1927, and had paid further on account of the permanent disability entailed compensation at the rate of $17 per week for twenty-five weeks, running from January 19th to July 13th, 1927, which said period is equivalent to five per cent, of total and permanent disability; that from all of the evidence produced it appears that the said petitioner’s temporary disability did not exceed a period of eleven weeks and that the permanent disability does not exceed a period equivalent to five per cent, of total and permanent disability for which said periods he was fully compensated as above stated; that this conclusion is fortified by the results of another examination made by the physician of this bureau on or about August 25th, 1927, when it was discovered that the said petitioner exhibited symptoms which were not the result of the accident.

* ❖

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MURPHY FAULKS, PETITIONER, v. PUBLIC SERVICE PRODUCTION COMPANY, RESPONDENT.

      For the petitioner, Michael Breitkopf.

    For the respondent, Henry J. Sorenson.

   j-|; t'fi ^

It appears that the petitioner was employed on October 21st, 1926, by the respondent as an iron worker, and while he was in the act of reaming holes with an iron reamer the petitioner caught his hand on the apparatus in such a way so that he received injuries to the second and third fingers of the right hand. Immediately after the accident the petitioner visited Dr. Lowrey, of the city of Newark, for treatment, and then returned to his work and continued working throughout the entire day. He worked continuously for three days after the accident, at which time he was one of a group of men who were laid off by the respondent because the work which they had been doing was completed, and there was no further need for them. Subsequent to that time the petitioner filed his petition claiming that he was entitled to temporary disability, and also permanent disability. His claim for permanent disability is based upon the fact that he alleges he has not as firm a grip at the present time as he had before the accident. In the petitioner’s case there was no doctor produced, but there was a stipulation entered between the counsel for the respective parties that Dr. Londrigan had made an estimate of ten per cent, permanent disability of the second and third fingers, but at the time that he made this estimate he did not have the benefit of the X-rays which were taken, and which clearly showed that there were no fractures involved. The significant fact in the petitioner’s testimony is that he had only seen a physician once for medical treatment, and that was on the day of the accident. The respondent contended that there was no temporary or permanent disability due, and that while they have given the man five per cent, loss of function of the second finger of the right hand, that this amount was given because there is a slight deformity on this finger, which deformity is not of a bony character, and so small that it is not noticeable. In sustaining the contention that there is no permanent disability on the part of the petitioner in this case, the respondent produced Dr. Washington, Dr. Eeury and Dr. Pascall, who all testified that there was perfect flection of the fingers, and a normal grip in the petitioner’s right hand. The respondent further produced X-rays, which were taken by Dr. Wyatt, a roentgenologist, who interpreted the X-rays. He testified that there was no evidence of any abnormalities, nor any fractures in the petitioner’s hand.

Inasmuch as the petitioner immediately returned to work, and continued working until he was laid off with a group of men with whom he had been working, and also in view of the positive medical testimony produced by the respondent which clearly shows that the petitioner is not suffering from a permanent disability, I therefore feel that there must be a verdict for respondent.

* * * * . * * *

Charles E. Corbin, Deputy Commissioner.


text:
    EVA L. LANNAGAN, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, ET AL., RESPONDENTS.
    Decided November 13, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the relator, Theodore G. Hindenlang.

    For the respondents, Walter C. Ellis.

   Per Curiam.

The relator applied to the building inspector of the city of East Orange for a permit to erect a single-family dwelling house upon a lot of land owned by her in that city; the application being accompanied with plans and specifications showing the character of the proposed building and its location upon the relator’s lot. The inspector refused to issue the permit, basing his refusal upon the fact that the proposed location of the building was prohibited by the zoning ordinance of East Orange, which required that such structures when built upon lots in the zone in which that of the relator was located must set back at least forty feet from the center line of the street and at least three feet from the side lines of the lot. It is conceded that the erection of the building in accordance with the plans and specifications submitted would be violative of the provisions of the municipal zoning ordinance just referred to, so far as its proposed location upon the relator’s lot was concerned; but it is contended on her behalf that this restriction upon the use and enjoyment of her property is invalid, under the doctrine of Eaton v. South Orange, 3 N. J. Mis. R. 956; Scola v. Senior, 102 N. J. L. 26, and Vatter v. Kaltenbach, Ibid. 470. These eases, however, were decided prior to the adoption of the zoning amendment of 1927 to the state constitution, and the enactment of the statute of 1928 pursuant to authority conferred upon the legislature by that amendment. The effect of this constitutional amendment and of the statute of 1928 was to validate the “set back” provisions of existing municipal zoning ordinances. It was so declared by this court in the case of Koplin v. Village of South Orange, 6 N. J. Mis. R. 489, and that case is controlling so far as this court is concerned.

The allowance of the peremptory writ applied for by the relator must therefore be denied.


text:
    JULIUS SHARFF AND LOUIS KOPLOWITZ, RELATORS, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Submitted May term, 1927
    Decided November 13, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the relators, Benjamin Newman.

    For the respondents, Walter C. Ellis.

   Per Curiam.

This is a zoning case and arises out of the refusal of respondent to issue a permit to relators to erect a thirty-three family apartment house at Nos. 334-8 North Walnut street, in the city of East Orange. A writ of alternative mandamus was allowed and to the return thereto relators demur.

Erom this return it appears that the application (made December 9th, 1926) was refused on the ground that construction of such a building at the place named would be in violation of a zoning ordinance of the city which prohibited, among other buildings, any dwelling house for more than one family.

While under the law as it stood at the time the permit was applied for such restriction might be deemed to be invalid, a zoning amendment to the .constitution has since been adopted by the people of the state, and a statute enacted thereunder has authorized such restrictive ordinances and continued in effect such ordinances theretofore adopted as if they had been adopted under the provisions of the act. The effect of the amendment and the statute passed thereunder on zoning ordinances like the present and the restrictions contained therein has been considered by this court in the case of Koplin v. Village of South Orange, 6 N. J. Mis. R. 489. Both ordinance and restrictions were sustained as applying to applications made before the amendment was passed or the legislation enacted. This conclusion is adverse to the relators’ right and controlling here.

The demurrer is overruled and a peremptory writ denied.


text:
    JULIUS SHARFF ET AL., RELATORS, v. JOHN G. SCOTT, BUILDING INSPECTOR, ETC., ET AL., DEFENDANTS.
    Submitted May term, 1927
    Decided November 13, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the relators, Benjamin Newman.

    For the defendants, Walter C. Ellis.

   Per Curiam.

An alternative writ of mandamus was issued out of this court on February 23d, 1927. The writ was directed to the building inspector of the city of East Orange to compel him to issue a permit to erect a four-story building or apartment house, containing thirty-two apartments on premises known as No. 145 North Arlington avenue, in East Orange.

The permit was refused on the ground that it would be in violation of an ordinance of the city of East Orange, approved March 16th, 1921, prohibiting such a building on lands located in what the ordinance defines as “small volume residence district.” The ordinance provides that in such a district only certain enumerated uses shall be allowed, among which is not included apartment houses. A return was filed to the alternative writ of mandamus. A demurrer was then filed to the return. A stipulation of facts was made part of the printed book sent up with the record. In this situation, we think our decision, in the recent case of Koplin v. Village of South Orange, 6 N. J. Mis. R. 489, is applicable and controlling; applying that decision to the facts of this case, the demurrer is overruled and a peremptory writ of mandamus is refused.


text:
    ROBERT E. MULCAHY, RELATOR, v. ALBERT E. PANCOAST, Jr., BUILDING INSPECTOR OF THE TOWNSHIP OF MAPLEWOOD, ET AL., RESPONDENTS.
    Decided November 13, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the relator, Jacob L. Newman.

    For the respondents, Samuel D. Williams.

   Per Curiam.

The relator in the present case applied to Pancoast, building inspector of the township of Maplewood, for a permit authorizing him to erect a duplex two-family house upon a lot of land owned by him and located on the corner of Franklin avenue and Prospect street, in that township. He also applied for a permit authorizing him to put up a similar building upon a lot at the corner of Franklin avenue and Princeton street. The issuing of these permits was refused by the building inspector upon the single ground that, by the zoning ordinance of the municipality, only single-family residences were permitted to be erected in the zone where these two lots were located.

The contention of the relator is that the ordinance upon which the inspector’s refusal was based was invalid, for the reason that its enforcement would deprive him of his property without due process of law, as such enforcement would not in anywise promote the common good of the community or protect the public health, safety and general welfare; and earlier decisions of our court are cited in support of that contention. Since the promulgation of the cited opinions, however, and in September, 1927, the people of our state adopted an amendment to our constitution authorizing the legislature to enact general laws under which municipalities might adopt zoning ordinances limiting and restricting to specified districts and regulating therein buildings and structures aecordng to their construction and the nature and extent of their use; and, in the exercise of that power, the legislature, on April 3d, 1928, enacted a statute authorizing municipalities to adopt ordinances of the character of that which is the subject of the present litigation and validating pre-existing ordinances of a similar character. Subsequent to the enactment of this statute, and in May, 1928, the ease of Koplin v. Village of South Orange, 6 N. J. Mis. R. 489, was decided by this court. The case in its facts is practically identical with that now before us. The conclusion reached was that the peremptory writ of mandamus applied for should be denied, the basis upon which the decision was rested being that the effect of the zoning amendment of our constitution, supplemented by the statute of 1928, operated to validate the pre-existing zoning ordinance of South Orange then under consideration. The cited case is controlling upon this court, and the allowance of a peremptory writ of mandamus, therefore, will be denied.