author: Ueutze, C. P. J.

text:
    Camden County Court of Common Pleas.
    ALLEN ECKMAN, Jr., BY AND THROUGH HIS MOTHER AND NEXT FRIEND, CELESTE E. ECKMAN, AND CELESTE E. ECKMAN, IN HER OWN RIGHT, PLAINTIFFS, v. CLARENCE M. GREAR AND CLARENCE GREAR, DEFENDANTS.
    Decided October 17, 1936.
    Por the defendants, Marshall H. Diverty.

    Por the plaintiffs, Walter 8. Keown.

   Ueutze, C. P. J.

The proceeding before the court is on a rule to show cause why the service of the summons and complaint on the defendant Clarence Grear, who is a son of the other defendant herein, Clarence M. Grear, should not be set aside and dismissed. This motion is in behalf of the son and he is hereinafter called the defendant, and/or Clarence M. Grear, Jr.

On the 29th day of December, 1934, the defendant Clarence M. Grear, Jr., was driving an automobile in Camden county, which figured in an accident, and as a result thereof, the plaintiff Allen Eckman, Jr., was injured. At this time, the defendant was a minor, being about twenty years of age and lived at home with his parents in Camden. Subsequently this young man enlisted in the United States army in June of 1935, with his parents’ consent and on July 25th, 1935, he was sent to Hawaiian Islands where he hoped to qualify for admission to West Point Military Academy. Then on August 19th, 1935, the plaintiff herein, through the deputy sheriff of Camden county, sought to serve the summons and complaint, over which the present controversjr has arisen, upon the defendant Clarence M. Grear, Jr., by “leaving a true copy of the annexed summons and complaint with a member of his family above the age of fourteen years, to wit: On Clarence M. Grear, his father * * * at their dwelling or usual place of abode, 4000 Westfield Ave., City and County of Camden, New Jersey.”

The defendant, by permission of the court, has had a special appearance entered for him by his father and next friend, who is also a co-defendant, to dismiss the complaint for lack of proper service, as it is his contention that he was not within the jurisdiction of the court on August 19th, 1935, when service was sought to be made. Pursuant to this special appearance, the defendant has offered the proper type of proof to show that he was not served personally nor at his usual place of abode. This proof is by deposition of the co-defendant and father, Clarence M. Grear, Sr. The uncontroverted facts of this deposition show that the defendant resided with the deponent until his enlistment in the army and that on the 25th day of July, 1935, he sailed for the Hawaiian Islands pursuant to a three-year enlistment with the deponent’s consent. Before departing the defendant disposed of all his persona] belongings and intended to make a career of his service in the army. The defendant, the deponent testified, was self-sustaining and did not intend to return to his parents’ home in Camden. All ties with his home were severed and he was subject only to orders of the government. The deponent advised the deputy sheriff of the defendant’s whereabouts at the time service was made.

At common law, personal service upon a party to an action in personam, was imperative. In such an action the foundation of jurisdiction is physical power. McArdle Real Estate Co. v. McGowan, 109 N. J. L. 595; 163 Atl. Rep. 24; McDonald v. Mabee, 243 U. S. 90; 37 S. Ct. 343; Thomas v. Thomas, 96 Me. 223; 52 Atl. Rep. 642.

However, at an early date statutes were passed by all states to allow for substituted service, but the service provided for must be such that will assure the court that the defendant would be informed of the pendency of the suit. Pennoyer v. Neff, 95 U. S. 714; 24 L. Ed. 565. Since these statutes are in derogation of the common law they must be strictly construed and fully carried out to confer jurisdiction. Ruhle v. Caffrey, Judge, 113 N. J. L. 240; 174 Atl. Rep. 204; Thomas v. Thomas, supra. To this normal rule of construction upon statutes must be added the rule set forth in the case of Dock v. Elizabethtown Steam Manufacturing Co., 34 N. J. L. 312, wherein Mr. Justice Depue said: “The Practice act being designed merely as a means of administering justice, should be liberally construed in all its parts, except those which pertain to the mode of obtaining jurisdiction over the parties.”

The New Jersey statute as to service of process in actions in personam provides that “the first process in personal actions in cases where the plaintiff is not entitled to bail shall be a summons, a copy whereof shall be served on the defendant in person or left at his usual place of abode.” (Italics mine.) 2 Cum. Supp. Comp. Stat., p. 2198, § 52.

The question therefore resolves itself down to whether the defendant was served at “his usual place of abode” within the meaning of the statute in order to confer jurisdiction upon this court of the defendant Clarence M. G-rear, Jr.

Prom the facts disclosed by the deposition it is clear that the defendant has severed all connections with his parents’ home and is emancipated by his father. But whether the defendant was emancipated or not is immaterial because if the defendant’s “usual place of abode” was not with his parents at the time of the service, he cannot be served there. As has been stated, service of process in an action in personam must be personal or in accordance with the statute, and this whether the defendant be an adult, infant or lunatic. McArdle Real Estate Co. v. McGowan, supra.

The meaning of the phrase “usual place of abode” has a well defined meaning in the law and is different from the words “residence” and “domicile” when applied to service of process. The words “usual place of abode” is of the three, the most restricted in meaning. A clear distinction of “residence” and “domicile” is found in the ease of Stout v. Leonard, 37 N. J. L. 492 (at p. 495), where Chancellor Runyon said: “Residence is not domicile, though domicile is the legal conception of-residence. Domicile is residence combined with intention. It has been well defined to be a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. A man can have but one domicile for one and the same purpose at any one time though he may have numerous places of residence. His place of residence may be, and most generally is, his place of domicile but it obviously is not by any means necessarily so, for no length of residence without the intention of remaining will constitute domicile.” See, also, Baldwin v. Flagg, 43 N. J. L. 495; Shaefer v. Gilbert, 73 Md. 66; 20 Atl. Rep. 434. Going one step further “usual place of abode” is the place where the defendant is actually living at the time of the service. The word abode means one's fixed place of residence for the time being when the service is made. Thus if a person have several residences he must be served at the residence in which he is actually living at the time service is made. Feighan v. Sobers, 84 N. J. L. 575; 87 Atl. Rep. 636; affirmed, 86 N. J. L. 356; 91 Atl. Rep. 1068; Mygatt v. Coe, 63 N. J. L. 510; 44 Atl. Rep. 198; Sweeney v. Miner, 88 N. J. L. 361; 95 Atl. Rep. 1014; Berryhill v. Sepp, 119 N. W. Rep. 404; 106 Minn. 458. At the time of the service in this case, the defendant did not have his “usual place of abode” at the home of his parents. His abode at that time was in Hawaii as may be seen from the facts set forth in the deposition.

In conclusion, I wish to say that I have not lost sight of the cases of Missell v. Hayes 84 N. J. L. 196; 85 Atl. Rep. 818; affirmed, 86 N. J. L. 348; 91 Atl. Rep. 322, and Vredenburgh v. Weidmann, 14 N. J. Mis. R. 285; 183 Atl. Rep. 459, wherein the defendants were infants and service was made at their respective homes while students at college. By reason of these cases, the impression has been put forth by the plaintiff that as long as the defendant is an infant, the home of his parents is the proper place to serve him as his usual place of abode. This in effect would make the court substitute the domicile of the infant for his usual place of abode without further ado. An infant secures his domiciliary-status from his parent by operation of law but it does not necessarily follow that the infant’s usual place of abode need be in the same place any more than an adult’s domicile and place of abode need be in the same place. Usually, however, an infant’s place of abode is with his parents by virtue of the economic forces of dependency and the natural force of family ties. Mr. Justice Parker in the case of Vredenburgh v. Weidmann, supra, recognized such to be the fact when he said, “Roy is the son of John and during minority Roy’s home would normally and presumably be with his father.” The court then distinguished the line of cases of Sweeney v. Miner, supra, and Feighan v. Sobers, supra, from the ease then before it and the case of Missell v. Hayes, supra, by saying that in these two latter cases the defendant had not overcome the presumption of the infant’s place of abode nor of the correctness of the sheriff’s return and that only affidavits had been offered to show the defendant infant’s usual place of abode. The defendant should have submitted depositions.

In the case now before this court the defendant did submit depositions to show that the defendant’s usual place of abode was not in Camden with his father but rather was in Hawaii. The court is satisfied that such is the fact and that the defendant has disproved and rebutted the normal and presumable assumption that the infant’s place of abode was with his father at the time of the service of the summons and complaint and has also rebutted the presumption that the sheriff’s return was correct.

The defendant Clarence M. Grear, Jr.’s, usual place of abode was not at Camden with his father at the time of the service of the summons and complaint. Therefore the rule is made absolute and the service of the summons and complaint upon the defendant Clarence Grear is set aside.


source: Caselaw Access Project

author: Bodine, J.

license: Public Domain

text:
    EDWIN F. MARX, PLAINTIFF-APPELLEE, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, A CORPORATION OF THE STATE OF MARYLAND, DEFENDANT-APPELLANT.
    Argued October 6, 1936
    Decided October 23, 1936.
    Before Justices Trbnchard, Bodine and Heher.
    For the defendant-appellant, George R. Jaclcson and William P. Braun.

    For the plaintiff-appellee, Laurence Bemel.

   Bodine, J.

The defendant company insured a Ford truck 'owned and operated by Edwin F. Marx, who at the time of the issuance of the policy was engaged in farming and garbage removal in Lancaster county, Pennsylvania.

Under section 4, the policy provided that the company would not be liable while the automobile “(1) is used for any purposes not stated in the Declarations, nor, unless expressly and specifically stated in the policy, while the automobile is used for rental or livery purposes, carrying passengers for a consideration, towing a trailer not insured by the Company, demonstrating or testing.” No leave was granted to rent the truck. The policy further provided that the company would not be liable for loss or damage “(c) because of the use or operation of a trailer while attached to an automobile which is not insured by the Company.” It also provided under section 5: “A. The word ‘Automobile’ wherever used in this policy shall mean only a motor vehicle [or trailer] with reference to which the insurance hereunder is provided. The policy applies separately for each such motor vehicle, but a trailer and the motor vehicle to which it is attached shall be considered together as one automobile.” Just what the provisions about trailers may mean we need not decide.

The policy was in effect when the insured was in an accident resulting in a death. At that time there was attached to the truck a four-wheel trailer nowheres specifically mentioned in the policy. When an action was brought against the assured alleging that his negligent operation of the truck and trailer had caused the death, the company disclaimed liability.

The insured was successful in defending the death action. He then sued for his expenses in defending himself and recovered judgment therefor in the District Court for the First Judicial District of Essex county.

It appears that at the time of the accident the plaintiff had rented the truck to the Pyramid Motor Company for $75 for the week, and was on his way to pick up a load of merchandise in Newark in order to go back to Philadelphia that day upon their business. The finding by the trial judge that there was no use for rental or livery purposes by reason of the rental to the Pyramid Company is so contrary to the plaintiff’s own testimony, wherein he stated that he had leased the truck for the week in which the accident occurred and was about the business of the Pyramid Company at the time of the accident, that it cannot stand. We think the rental of the truck was clearly an avoidance of the policy and that the disclaimer of liability was clearly proper. Neilson v. American Mutual, &c., 111 N. J. L. 345; 168 Atl. Rap. 436.

It is, therefore, unnecessary for us to consider the other questions urged by the appellant.

The judgment is reversed.


text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, A CORPORATION OF CONNECTICUT, AUTHORIZED TO DO BUSINESS IN NEW JERSEY, PLAINTIFF-APPELLEE, v. JOSEPH F. JASOVSKY, DOING BUSINESS AS SOUTH HUDSON TRUCKING COMPANY, DEFENDANT-APPELLANT.
    Submitted October 15, 1936
    Decided October 23, 1936.
    Before Justices Tbenchaed, Bodine and Hehee.
    Bor the defendant-appellant, Stephen P. Piga.

    Bor the plaintiff-appellee, David M. Kirsch.

   Bodine, J.

Plaintiff had judgment for the earned premiums due, less the amount above the jurisdiction of the court, which was waived, on a policy it had written insuring the defendant’s automobile. The case was tried without a jury.

The proofs indicate that the defendant had ordered the policy in question from one of the plaintiff’s agents. The policy was written and delivered but the amount due was not paid. The defendant’s attorney specifies the following as to the determinations with respect to which he was dissatisfied:

“1. The District Court erred in entering judgment in favor of the plaintiff and against the defendant. 2. The District Court erred in rejecting defendant’s offered evidence.” These specifications are not sufficient and will not be considered. Majaika v. Jamison, 115 N. J. L. 358; 180 Atl. Rep. 402.

It might be noted, however, that we have read the appellant’s brief, and if we could consider the same we should determine that the points argued also were without merit. Since the judgment cannot be reversed on any ground specified, since the grounds fall short of the standard set by the decisions of our court and fail to point out the judicial action sought to be reviewed in the specific and concise manner required, the judgment under review must be affirmed, with costs.


author: Bobine^, J.

text:
    IN THE MATTER OF THE TRANSFER INHERITANCE TAXES ON THE ESTATE OF ALFRED FISCHESSER, DECEASED.
    Argued October 8, 1936
    Decided October 23, 1936.
    Before Justices Trenchakb, Bobine and Hehek.
    For the prosecutors-petitioners, Eugene F. Hillery and George W. C. McCarter.

    For the defendant-respondent, David T. Wilentz and William A. Moore.

   Bobine^, J.

Alfred Fischesser died a resident of this state October 14th, 1932. The commissioner assessing the transfer inheritance tax upon his estate included transfers occurring under and by virtue of five trust agreements made by decedent December 23d, 1929.

The writ seeks to review this action, which was sustained in the Prerogative Court, it being now urged that the five trusts were not created in contemplation of death. This seems not to be the fact.

It appears that at the time of the transfers, decedent was over sixty-eight years of age. He suffered from chronic heart disturbances and arteriosclerosis. He was a chemist and had for a long time taken digitalis without a doctor’s prescription. He was a highly intelligent man and attended to a consulting business as long as he could. The transferees were his wife and children. The value of the property passing by the five trust agreements in round figures was, $188,000. The value of decedent’s estate was around $315,000. It is inconceivable that in his precarious state of health he transferred so large a part of his estate except to avoid the payment of transfer taxes upon his death.

It is urged that the transfer was made in order to reduce income taxes and not in contemplation of death. The deceased may have had such an advantage in mind, but undoubtedly the dominating purpose was to avoid the payment, by his estate, of part of the transfer taxes. The findings of the learned Vice-Ordinary are supported by the proofs.

The decree under review is affirmed.


author: Bodine^ J.

text:
    LAMBERT OVERBECK, PLAINTIFF-APPELLEE, v. ERIE RAILROAD COMPANY, A BODY CORPORATE OF THE STATE OF NEW YORK, DEFENDANT-APPELLANT.
    Submitted October 15, 1936
    Decided October 23, 1936.
    Before Justices Trenchahd, Bodine and Heheb.

      For the defendant-appellant, Hobart & Minará (George S. Hobart and Augustine J. Kelly.

    For the plaintiff-appellee, Joseph V. Fumagalli and Peter Hofstra.

   Bodine^ J.

The defendant appeals from a judgment in favor of the plaintiff. The case was tried upon an agreed state of facts before the District Court without a jury.

It appears that on December 24th, 1934, the plaintiff was a passenger on the defendant’s railroad from Jersey City to Warren Point. He was a regular commuter and usually took the train on which ho was injured. The usual stopping time at Warren Point is just long enough to discharge passengers. The westerly end of the coach in which plaintiff was riding was opposite the west-bound platform when the train came to a stop. Sometimes, however, the east end of the rear car clears a train trestle, but not so on the night in question. Plaintiff instead of alighting by the west end of the car went out the east or rear door. Stepping down to the first step, he discovered that a girder of the trestle with which he was familiar blocked his exit on the right-hand side where he normally alighted. He attempted to return to the west end or front exit of the coach in order that he might alight, and placed his left hand in a crevice between the hinge part of the door and the side of the car. His intention was to pull himself around quickly in order to return to the other end of the car. Another passenger, leaving the train by the rear door but unaware of the plaintiff’s hand in the crevice of the door, allowed the door to close upon it causing the injuries for which the plaintiff had recovery. There was error in the failure of the court to grant the defendant’s motion for a directed verdict.

It is admitted that the stopping of the train so that the rear coach was partly on the trestle was not unusual. Tn fact, the plaintiff suspected this would be the situation. He choose to go to the rear of the car in which he was riding to see if the train was clear of the trestle instead of going to the front. He was not injured by the fact that the train had ' not cleared the trestle, but he was injured because another passenger closed the door on his hand.

“Although a common carrier is bound to exercise a high decree of care for the safety of its passengers, it is only responsible for injuries resulting from the act of a stranger when such act might reasonabty have been anticipated by it.” Miller v. West Jersey, &c., 71 N. J. L. 363 ; 59 Atl. Rep. 13; affirmed, 79 N. J. L. 499; 76 Atl. Rep. 973.

There is nothing in the stipulation to suggest that the carrier had any reasonable ground to anticipate that one passenger would close the door on another passenger’s finger. The occurrence was not due to faulty construction or to negligence in operation, but was due solely to the act of a stranger. He might have stepped on plaintiff’s foot or caused him some other injury which could not have been foreseen.

In the case of Kinder v. Erie Railroad Co., 109 N. J. L. 469; 162 Atl. Rep. 387, the plaintiff was a passenger on a train he was not accustomed to ride. When the train arrived at Bloomfield, where he was to alight, he proceeded to the forward end of the car in which he was riding. Finding that the right-hand side of the car was upon a bridge over a canal and realizing his danger, he turned to leave by the left-hand side and had alighted upon a planked space between the tracks when he was struck and injured by defendant’s train coming into the station from the opposite direction. The company had forbidden the running of trains into the station when another train was standing discharging passengers. In that case it was quite property held that the proofs made the case one for the jury. But in the present case, the plaintiff knew that the train sometimes stopped on the trestle, and to determine whether he might or might not alight at that point he went back to see. His injury occurred, not through any act of the defendant, but by reason of an act of a third person which the carrier had no reasonable ground to anticipate might occur,, and no reasonable method of guarding against.

The law relating to the causal connection between an original wrong and the resulting injury was but lately examined, and the authorities noted, in Daniel v. Gielty Truckimg Co., 116 N. J. L. 172; 182 Atl. Rep. 638. In view of the fact that there appears to he no proof indicative of an original wrong by the defendant company, the proximate cause of plaintiff’s injury, it is unnecessary to examine the authorities with respect to causal connection between the original wrong and the resulting injury where third parties contribute to the injury. It is more than clear that the resulting wrong in the present case, which was no act of the defendant, was the efficient cause of the injury. Even assuming that the defendant had been negligent in stopping its train where it did, that act in no way contributed to the plaintiff’s injury. He was not hurt in attempting to alight from the train but was injured by the careless manner in which a door was closed on his finger.

“An intervening cause is the act of an independent agency which destroys the causal connection between the negligent act of the defendant and the wrongful injury, the independent act being the immediate cause, in which ease damages are not recoverable because the original wrongful act is not the proximate cause.” Davenport v. McClellan, 88 N. J. L. 653; 96 Atl. Rep. 921. See, also, Smith v. James J. McFeely, Inc., 13 N. J, Mis. R. 25; 175 Atl. Rep. 368.

The judgment is reversed, and the District Court is directed to enter judgment in favor of the defendant in accordance with this opinion.


author: Per Curiam.

text:
    AGNES HALLIGAN, PLAINTIFF-RESPONDENT, v. WESTMONT LOVING SERVICE, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Argued October 7, 1936
    Decided October 23, 1936.

      Before Brogan, Chief Justice, and Justices Case and Perskie.
    Por the plaintiff-respondent, Walter 8. Ke.own {George D. Rothermel, of counsel).
    Por the defendant-appellant, French, Richards & Bradley {Floyd H. Bradley, of counsel).
   Per Curiam.

This is an appeal by the defendant from a judgment recovered in the Camden County Common Pleas Court, by the plaintiff, for personal injuries.

The plaintiff, a woman of fifty-five j^ears of age, attended an afternoon card party, held by the defendant on January 29th, 1935, in premises owned by it, for which an admission fee was charged, which she paid. The testimony of the plaintiff and her witnesses tended to prove that on her arrival at the building of defendant she made inquiry as to where she was to put her coat, and was directed to a room in the building. She had been in this particular room on other occasions but it had been altered since she had last seen it. In the room there was sufficient light from windows to enable one to see. At the far end of the room stood a table upon which the coats of other patrons of the card party were piled. The table was placed alongside a railing which, however, was concealed from view by the coats piled upon the table. The concealed railing guarded the open well of the staircase leading from the room down to a lower level. The plaintiff testified that she was not aware of the staircase: that the side railing was, under the conditions then existing, completely hidden from view; that to dispose of her coat she went to the extreme right side of the table, at which point the top of the staircase was located; that she did not see the stairs between the railing and the adjacent wall and, falling down, received serious injuries.

The appellant argues that it was error for the trial court to deny its motion for a nonsuit and direction of verdict and rests its argument on the grounds (a) that there was no proof that the defendant was guilty of any negligence, and (b) that the plaintiff, as a matter of law, was guilty of contributory negligence. We do not agree with either of these contentions. The plaintiff was an invitee and the defendant was under the duty of exercising ordinary care to keep the premises reasonably safe for those who came by invitation. This is the well settled rule for which no citation of authority is necessary.

Under the testimony in the case, it appears that the danger of the open staircase was almost entirely concealed by the table, upon which the coats were piled high enough to prevent one from observing the rail paralleling the staircase lengthwise, and the jury might properly have determined the condition that obtained to be one lacking in the due care required of the defendant. By the same token the question, as to whether or not the conduct of the plaintiff amounted to contributory negligence, was not one of law under the evidence but one of fact for the jury, and the court was correct in refusing to take the case from the jury either by nonsuit of the plaintiff or by directing a verdict for the defendant.

It is next argued that the trial court fell into error in refusing to declare a mistrial. As to this point, it appears that plaintiff’s counsel, in opening the case to the jnry, said, in speaking of the room in question, “there was no protection there at the time of the accident. Immediately after the accident they placed a protection there * * Defendant objected to this and asked the court to withdraw a juror and declare a mistrial. The court denied the motion and said, “I doubt whether testimony to that effect is admissible.” Defendant’s counsel then said, “will your honor charge the jury to that effect and allow an exception?” The court said, “exception is allowed and I will consider the matter.”

Pursuing this theory, plaintiff’s counsel, during the trial, asked a witness this question: “Since the time of the accident was there any protective railing placed at the head of the staircase?” An objection to the question was sustained and of course the question was not answered. Defendant’s counsel did not again bring to the court’s attention the matter of instructing the jury to disregard the objectionable remark made by plaintiff’s counsel in his opening to the jury and we do not consider that any harm was done. If defense counsel thought it was important he should have brought it again to the attention of the trial judge. We do not think it injuriously affected the defendant.

Other points are argued seriatim: that it was error to permit a defense witness to answer a certain question on redirect examination; that it was error to refuse to admit into evidence a certain photograph of the room in question, and that the court erred in rejecting defendant’s fifteenth request to charge. As to the first, the question was objectionable since it was based on an assumption of fact. The answer, however, tended to negative the assumption of fact and the appellant’s complaint in this regard lacks substance. As to the second, admittedly the photograph did not portray the room as it was at the time of the accident and was properly excluded and, as to the third, the instruction of the trial judge to the jury correctly stated the law as to contributory negligence, and that being so, the court was under no obligation to accept the language of the request to charge as presented by the defendant.

The judgment will be affirmed, with costs.


text:
    MICHAEL A. SAGARESE, RELATOR, v. ALBERT H. HOLLAND, JUDGE, ET AL., RESPONDENTS.
    Argued October 7, 1936
    Decided October 20, 1936.

      Before Justices Parker and Lloyd.
    For the relator, Michael A. Sagarese, pro se.

    For the respondents, King & Vogt.

   Per Curiam.

At a previous term of this court relator moved for judgment on an alternative writ of mandamus and for the award of a peremptory writ. The court refused the application on the ground that the case had become merely academic. See 14 N. J. Mis. R. 652; 186 Atl. Rep. 589. Now the relator claims that he is entitled to costs (No. 240); and the respondents, having failed heretofore to enter the proper rule refusing a peremptory writ and finally determining the litigation in their favor, apply at this time for leave to enter such rule. (No. 233.)

The history of the case will be found in Sagarese v. Holland, 116 N. J. L. 137; 183 Atl. Rep. 195. The relator having applied for a mandamus, the application was heard by this court at the October term, 1931, and on February 8th, 1932, the court awarded an alternative writ saying “the legal right is not clear, and the facts which may well be pertinent are not definitely settled.” Sagarese v. Holland, 10 N. J. Mis. R. 230; 159 Atl. Rep. 146. The issue having been framed on the alternative writ, the case went to the Circuit for trial before a Circuit judge and this resulted in the entry of a judgment “dismissing” the alternative writ, with costs. On appeal the Court of Errors and Appeals held this was technically wrong (116 N. J. L. 137; 183 Atl. Rep. 195 supra), and sent the record back to the Supreme Court for proper action. That court signed an amended postea settling the essential facts and on that postea relator asked for a peremptory writ, which this court refused, as already stated. 14 N. J. Mis. R. 652; 186 Atl. Rep. 589, supra. Upon the rendering of this decision the proper action for the respondents to have taken was to enter a rule for judgment in their favor denying the writ. This they did not do and now ask leave to enter such judgment. We think that there was a lapse on their part» hut in the interests of terminating this tedious litigation, respondents may enter a suitable rule for judgment in their favor.

On the other hand there is a cross-application for the award of costs in favor of the relator. He appeared at the argument and handed up a brief in lieu of orally arguing the matter. This brief has been carefully considered with the result that we find ourselves unable to concur in the proposition that he is entitled to costs under the circumstances.

The application for costs will„ therefore, be denied.


text:
    GEORGE SAXTON, BY HIS FATHER AND NEXT FRIEND, HOMER P. SAXTON, Jr., AND HOMER P. SAXTON, Jr., AND DOROTHY M. SAXTON, IN THEIR OWN RIGHT, PLAINTIFFS, v. THE CITY OF OCEAN CITY, A MUNICIPAL CORPORATION, DEFENDANT.
    Submitted October 15, 1936
    Decided October 23, 1936.
    Before Justices Trenciiard, Bodine and Heher.
    For the defendant-applicant, John E. Boswell and W. Holt Apgar.

    For the plaintiff-respondent, Albert S. Woodruff and Bruce A. Wallace.

   Per Curiam.

The defendant seeks to have the venue in a local action changed from Camden county, where the plaintiffs reside, to Cape May county, where the accident occurred.

The action is to recover for personal injuries sustained on the boardwalk at Ocean City. Many municipal officers and employes will be necessary witnesses. The plaintiffs will be obliged to establish their case by calling a number of medical witnesses resident in Camden. Since the cost and inconvenience to the public must be considered, there is more than a mere inconvenience in requiring the defendant to appear in this suit at Camden, the county seat - of Camden county. Keeley v. Belmar, 97 N. J. L. 98; 116 Atl. Rep. 273; Hesselbrock v. Burlington County, 111 N. J. L. 177; 168 Atl. Rep. 45.

The venue should be changed to the county in which the cause of action arose. A rule to that effect may be entered.


text:
    VICTOR K. La MER AND ETHEL A. La MER, HIS WIFE, PROSECUTORS, v. ABNER W. GILL, BUILDING INSPECTOR OF THE BOROUGH OF LEONIA, BERGEN COUNTY, NEW JERSEY, AND THE BOARD OF ADJUSTMENT OF THE BOROUGH OF LEONIA, ETC., DEFENDANTS.
    Argued October 6, 1936
    Decided October 23, 1936.
    Before -Justices Trenchakd, Bodine and Hehek.
    Bor the prosecutors, Joseph M. Botolo.

    Bor the defendants, JDeBaun & Westervelt (Jesse B. Leslie).

   Bodine, J.

The writ brings up for review a zoning ordinance of the borough of Leonia adopted March 20th, 1934, pursuant to the constitutional amendment and the enabling act. Pamph. L. 1928, ch. 274, p. 696; Cum. Supp. Comp. Stat. 192-5-1930, pp. 1244, 1245, §§ *136-4200 J (1), (2), (3).

It appears that the prosecutors are the owners of a lot of land in Leonia upon which is erected a two and one-half-story stucco on frame residence. The house is twenty-two and one-tenth feet wide in front and twenty-four and three-tenths feet wide in the back. It is the narrowest house on the street. Proscutors sought a variation in the terms of the zoning ordinance in order that they might extend their dwelling to the east. The extension would be erected up to and within three feet of their easterly line. A restriction in their deed is said to prevent a building nearer than fifteen feet from the westerly side of the lot. That like restrictions affect all lots in the neighborhood is not contraverted, such restriction being in existence long before the zoning ordinance was adopted.

When a building permit was refused by the building inspector, because a violation of the zoning ordinance would result, an appeal was taken to the board of adjustment. The property owners in the vicinity consented in writing to the contemplated improvement, and no property owner is of record as opposed to an exception in prosecutor’s favor.

The board of adjustment passed a resolution recommending that a permit be issued permitting the extension of the house to within five feet from the easterly side of the lot. The proper officials of the borough passed an ordinance pursuant to this recommendation, but this change will be of no benefit to the prosecutors.

The zoning ordinance provides that in the zone where the property in question is situate that there shall be two side yards with a total width of eighteen feet, the least of which shall not be less than eight feet, except that, in the case of a one-story building the total side yard width may be reduced to fourteen feet providing neither side yard is less than six feet in width.

The proofs clearly indicate that the proposed extension will not affect the light and air of any of the surrounding properties. As before noted, none of the persons owning property or living in the neighborhood are opposed to the improvements. The total of the side yards, when the proposed extensions are made, will be eighteen feet. The house on the lot to the east of prosecutor’s property is almost seventy-five feet from the building if extended. A garage recently erected on this property is more than eleven feet from the line. The proofs indicate that the only practical way in which the prosecutors can enlarge their home to meet their requirements is to build as they propose. Many of the houses in the vicinity are built less than eight feet from the side line and seven are less than five feet therefrom. Several have less than a total of eighteen feet of side yard and one is less than three feet from the side line.

It clearly appears that those who built in the vicinity prior to the adoption of the ordinance are able to make a use of their lots denied to the prosecutors. The record is barren of any evidence that the ordinance, as adopted, is so designed as to promote the health, morals or general welfare of the community. The size of yards and open spaces have, of course, a direct bearing with respect to the density of population, but it appears in the instant case that those who have heretofore built their homes have not placed their houses in accordance with the spirit of the zoning ordinance as later adopted. If the prosecutors make the use which they desire of their property, there will still be a greater open space on either side of their building than between some of the other buildings in the neighborhood. The total of yard space will remain as determined by the ordinance and there will be no apparent crowding of structures. The proposed use can in no way adversely affect the health, safety, comfort, morals and general welfare of the borough. Nor is it necessary to secure safety from fire, panic or other dangers. A distance of fourteen feet between structures should be sufficient.

The attack is directly against the ordinance which was adopted pursuant to legislative authority. The writ lies for such a purpose. Saddle River Township v. Public Service Electric, &c., 110 N. J. L. 433; 166 Atl. Rep. 148. The presumption of reasonableness was completely rebutted by the proofs adduced. The circumstance that the ordinance imposes a restriction which bears no reasonable relation to the character of the district and the particular uses to which the properties in the neighborhood have been devoted is sufficient. The application of the ordinance must be reasonable. Koplin v. South Orange, 6 N. J. Mis. R. 489; 142 Atl. Rep. 235. Since others in this neighborhood have built within three feet of their lot, it seems unreasonable to preclude the prosecutors from so doing (Mulleady v. Trenton, 9 N. J. Mis. R. 1102; 156 Atl. Rep. 843), especially in view of the circumstance that the prosecutors will not use any greater portion of their lot than permitted under the ordinance.

The ordinance, in so far as it unreasonably restricts the prosecutors in the use of their property, is set aside.


text:
    HAROLD HERMAN, PLAINTIFF-APPELLANT, v. PAULINE ROSENBAUM, DEFENDANT-RESPONDENT.
    Argued October 6, 1936
    Decided October 30, 1936.
    Before Justices Tbbnchaed, Bodine and Heheb.
    Por the plaintiff-appellant, Eppston & Eppston (Harold A. Eppston).

    Pot the defendant-respondent, Milton B. Levin.

   Bodine, J.

The appellant sued on two promissory notes each dated November 26th, 1934. One of the notes was complete and regular upon its face. It was made by the defendant to the order of Mrs. Madge Stein, who endorsed it. It was delivered by Mrs. Stein to her attorney, Harold A. Eppston, who before maturity delivered the note to the plaintiff. The consideration for the transfer of both notes to the plaintiff was a credit extended to Mr. Eppston on a previously existing debt.

It appears that the notes were given by the defendant to Mrs. Stein in settlement of an agreement for the dissolution of a partnership which had previously existed between them. Mr. Eppston was attorney for Mrs. Stein and the notes in suit were delivered to him in payment for his services. Before maturity and without knowledge that the dissolution agreement had been breached, he delivered one of the notes to the present holder. The other note, however, was assigned after protest, so as to this note the plaintiff took with notice of any infirmity which might exist.

The ease was tried in the District Court without a jury. The District Court judge found that the plaintiff was an assignee of both notes and not a holder in due course, and hence entered judgment for the defendant. This was error as to the note taken before maturity.

“Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.” Comp. Stat., p. 3738, § 24.

“A holder in due course is a holder who has taken the instrument under the following conditions: 1. That it is complete and regular upon its face; 2, that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; 3, that he took it in good faith and for value; 4, that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.” Comp. Stat., p. 3741, § 52.

“A holder in due course holds'the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.” Comp. Stat., p. 3741, § 57.

“Every holder is deemed prima facie to be a holder in due course.” Comp. Stat., p. 3741, § 59.

“Where the holder has a lien on the instrument, arising either from contract or by implication of law, he is deemed a holder for value to the extent of his lien.” Comp. Stat., p. 3728, § 27.

One of the notes was complete and regular upon its face and was procured before maturity. For all that appears, the plaintiff took in good faith and without notice of any infirmity in the instrument, or defect in the title of the person negotiating it. As to this note he should have judgment.

Value is defined in Comp. Stat., p. 3738, § 25, as follows: “Value is any consideration sufficient to support a simple contract; an antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time.”

It appears in the findings of fact that at the time of the transfer to the plaintiff, a credit was extended to Mr. Eppston upon his debt. It is immaterial, under the fact, whether the plaintiff took the notes in settlement of a pre-existing debt, or whether he took them merely as security for that debt. To the extent to which he took the notes as security, he was certainly entitled to recover. Of course, the note assigned after protest stands in a different position.

The judgment of the District Court so far as inconsistent with this opinion is reversed.


text:
    YOUNG MEN’S CHRISTIAN ASSOCIATION OF GARFIELD, NEW JERSEY, ET AL., PROSECUTOR, v. STATE BOARD OF TAX APPEALS, DEFENDANT.
    Submitted May 5, 1936
    Decided August 12, 1936.
    Before Justices Parker, Lloyd and Donges.
    For the prosecutors, Smith & Slingerland and McCarter English.

    Eor the defendant, no appearance.
   Per Curiam.

This writ of certiorari brings up a judgment of the state board of tax appeals affirming a determination of the Bergen county board of taxation disallowing an exemption claimed by the prosecutors.

The case is a companion case to Y. M. C. A. of Ridgewood v. State Board, 117 N. J. L. 196, and as far as the assessment against the personal property of the prosecutor, Y. M. C. A. of Garfield is concerned, is controlled by that case. The assessment against the personal property is, therefore, set aside.

The situation with respect to the real property is somewhat different. The prosecutor Y. M. C. A. of Garfield was incorporated under the act for the incorporation of associations not for pecuniary profit on October 24th, 1927. Prior thereto, due to the interest of Mr. Samuel Hird in Y. M. 0. A. work, the land in question was deeded by Samuel Hird & Sons, Incorporated, to the “Trustees of the Bergen County Committee of the Y. M. C. A., a corporation.” There was and is no such body. Doubtless the intention was to convey to “The County Committee of the Young Men’s Christian Association of Bergen County, New Jersey,” a corporation not for pecuniary profit. The testimony is that it was the intention that the property should be held by the County Committee until such time as the Garfield Y. M. C. A. was incorporated, when it was to be conveyed to that association, This was never done, apparently because of an oversight.

The property was assessed in the name of the Y. M. C. A. of Garfield. That corporation sought an exemption in the Bergen county board of taxation and appealed to the state board of tax appeals. There for the first time, it became known what the state of the title was.

The section of the statute in question reads, in part: “provided further, that the foregoing exemptions shall apply only where the association, corporation or institution claiming the exemption owns the property in question and is incorporated or organized under the laws of this state and authorized to carry out the purposes on account of which such exemption is claimed: * *

The state board denied the exemption because the Y. M. C. A. of Garfield, the body seeking the exemption, was not the owner of the property.

We are of the opinion that this finding was correct. Statutes of exemption from taxation must be strictly construed. Admittedly the Garfield association was not the holder of the legal title and we think it must be the holder of the title to succeed. It could not claim exemption as the owner of the equitable title. Nor is the municipality estopped, as claimed, from denying ownership in the Garfield association merely because it assessed the property in that name.

There are also joined as prosecutors in this writ “Trustees of the Bergen County Committee of the Young Men’s Christian Associations,” the non-existent grantee of the Ilird deed, and “the County Committee of the Young Men’s Christian Associations of Bergen County, New Jersey.” It is claimed that the latter corporation has the title and is a corporation organized not for pecuniary profit for the purpose of carrying out work of the character performed in the building, which work is such as to entitle it to an exemption. The difficulty is that this corporation was not the institution seeking the exemption in the lower tribunals, and we fail to see how it can first assert such a claim in this court. We are of the opinion that it has no standing to join in this proceeding at this date.

Strictly applying the statute, as we must, we conclude that a case requiring exemption of the real property from taxation has not been presented.

The determination of the state board of tax appeals is affirmed in so far as it deals with the real property, and reversed, in so far as it deals with the personal property assessed.


author: Warke, Judge.

text:
    Atlantic County Orphans Court.
    IN THE MATTER OF THE ESTATE OF ANNIE E. WAGNER, DECEASED, WHO DIED TESTATE.
    Decided October 29, 1936.
    Por the petitioner, Clevenger '<& Clevenger.

    Por the respondents, William Charlton.

   Warke, Judge.

This is the return of a rule to show cause why the order allowing Thomas B. Wootton, John R. Chism and Robert M. Johnston,, administrators with the will annexed of Mary A. Wootton, deceased, to institute a suit on the refunding bonds on file in the Annie E. Wagner Estate, one of which was the refunding bond of this petitioner’s testator, William R. Layton, granted July 28th, 1936, should not be set aside, annulled and revoked.

Annie E. Wagner died April 26th, 1926. A rule barring creditors was entered in her estate of November 8th, 1926. All debts which were presented to the executor, having been paid, the estate was distributed to the legatees and their releases and refunding bonds taken and filed and recorded in the office of the surrogate of Atlantic county, on or about August 22d, 1927. Thomas B. Wootton, John R. Chism and Robert M. Johnston, administrators cum testamento annexo of Mary A. Wootton, deceased^ now claim to be a creditor of the estate oí Annie E. Wagner by reason of a deficiency arising on the foreclosure of a mortgage. No claim was ever presented by the said Mary A. Wootton, or by any one in her behalf, or in behalf of her estate. A suit was started in behalf of the estate of Mary A. Wootton in the Court of Chancery of the State of New Jersey to recover from the legatees of Annie E. Wagner for the amount oí the said deficiency, and on the ruling of the vice-chancellor that a suit could not be instituted against the legatees of Annie E. Wagner until an order permitting suit on the refunding bond had been allowed by the Orphans’ Court, the complainants applied for and received the order now in question.

The order was granted on the application of the administrators with the will annexed of Mary A. Wootton, deceased, without any notice thereof being given to this petitioner. The petitioner contends that he should have been given notice of the application and an opportunity to present his arguments against the allowance of the order.

The application for the order was made in accordance with section 78 of the Orphans Court act (3 Comp. Stat., p. 3837), which provides, inter alia, that “any creditor, who may be barred by virtue of any decree of limitation, may by order of the Orphans Court, bring suit on such refunding bond in the name of the executor, &c.” The statute does not require that such creditor give notice of his intention to apply for such order to the defendant thereto. This petitioner contends that such notice ought to be given notwithstanding the fact that the statute does not require it.

There seems to bo no argument as to the rule of law invoiced by the petitioner here, nor of the eminent fitness and propriety of such rule. The argument is as to the correctness of applying it in this situation.

The rule is “that when an act is to be done by a court or other authority which is especially to affect a particular individual, reasonable notice should be given to him so that he may appear and be heard if he thinks proper.” Hudson County v. State, 24 N. J. L. 718. Otherwise stated, the law is that no man shall be deprived of his rights without an opportunity of being heard. It is also true that the fact that the state does not require notice to he given, does not change this principle.

The decisive feature of any considerate such as this, is “are any rights to be adjudicated either finally or otherwise in the contemplated proceedings? If they are, notice should be given. If not, such a notice is unnecessary.

It seems to me that the order for leave to sue does not dispose of any rights of the parties. I think counsel for the respondent here correctly pronounces the intention of the legislature in requiring such order by his explanation that a creditor who has not been barred, must prosecute his claim against the decedant’s estate in the Orphans Court against the executor or administrator, and may not proceed directly against devisees or legatees of the decedent, and such a creditor is therefore required to demonstrate to the Orphans Court that he has in fact been barred and obtain its leave to seek his recovery in some other tribunal. I, at least fail to appreciate any other reason for the requirement of the order. His rights and the rights of those whom he seeks to sue are not triable, not to be tried by the Orphans Court, but in the tribunal proper to such litigation.

To hold otherwise would be to require defendants in such cases to make their defense twice, first in the Orphans Court upon the application for the order for leave to sue, and secondly in the trial court. Certainly this was not contemplated. All that the act was designed for was to have the creditor qualify as one entitled to sue, having been barred from proceeding against the executor. That he is not so barred would be the only tenable objection to granting the order, and whether he is or not is always a matter of record.

I am for these reasons of the opinion that notice of the application for leave to sue was not a prerequisite to the granting of the order, that this petitioner was not entitled to such notice and this petition to vacate that order is therefore denied.


author: Egan, V. C.

text:
    The Equitable Life Assurance Society of the United States, a corporation, complainant, v. Margarethe Janssen et al., defendants. Massachusetts Mutual Life Insurance Company, a corporation, complainant, v. Margarethe Janssen et al., defendants.
    [Decided October 26th, 1936.]

      Messrs. Hershenstein, O’Brien d Tartalshy, for the defendant Margarethe Janssen.

      Messrs. Lichtenstein Schwartz d Friedenburg, for the defendants Frederick W. Janssen, Jr., Emma Wieboldt and Margaret Biehler, individually, and Frederick W. Janssen and John Schlicthing, as executors, &c.

      Messrs. Oaede d Gaede, for the defendant The First National Bank of Hoboken.
   Egan, V. C.

By agreement of counsel, the two above entitled matters were heard together, and the facts involved in both cases were stipulated. The Equitable Life Assurance Society of'the United States, on Deecmber 23d, 1927, issued its policy of insurance number 4,598,431 on the life of Frederick W. Janssen in the amount of $10,000, naming as beneficiaries, Frederick W. Janssen* Jr., Emma Janssen and Margaret Janssen, children of the insured, equally or to the survivor of them.

The Massachusetts Mutual Life Insurance Company issued its policies of insurance on the life of the said Frederick W. Janssen as follows:

Number Date Amount Beneficiary

583,866 September 12, 1922 $10,000 Margaretha Janssen, wife,

586,859 October 11, 1922 10,000 Margaretha Janssen, wife,

725,639 January 4, 1926 5,000 Frederick W. Janssen, Jr., son.

On October 8th, 1929, the insured, as settlor, and The First National Bank of Hoboken, as trustee, entered into a trust agreement by which it was agreed that the bank should collect and receive all sums payable to it upon the settlor’s death, or prior thereto, pursuant to the terms of all the policies which should then be in force and effect, insuring the life of the settlor and designating “The First National Bank of Hoboken* Trustee.” Attached to the trust agreement was a list of the policies in force at the time of the making of the agreement, in which was included the four policies above set forth. The trustee under the agreement was required to invest and reinvest the proceeds of the policies received by it; and the income arising therefrom, it was directed to pay to the defendant, Margarethe Janssen, wife of the settlor, for and during the period of her lifetime; and upon her death, the corpus was to be paid in equal shares to the children of the settlor; and if any of them should predecease Margarethe Janssen, then the share of each such deceased child, was directed to be distributed to his or her next of kin in accordanee with the intestate laws of this state in effect on the date of Margarethe Janssen’s death. The trust agreement, inter alia, contained these two clauses:

“The settlor may deliver to the trustee any policy or policies of life insurance in which the trustee is named as beneficiary, but the trustee shall not be under any obligation to pay any premiums on any policy and the settlor may at any time cease to pay the premiums thereon ¿ind may at any time withdraw any or all of such policies.
“The settlor reserves the right at any time or from time to time, without the consent of any person and without notice to any person other than the trusee, to make such changes in the amount or character of the interests of the respective beneficiaries as he may desire, and to terminate the interest of any of said beneficiaries in favor of any other person or persons, upon notice in writing to the trustee directing such change or changes to be made, provided such written notice be executed and acknowledged as deeds for the transfer of real property in New Jersey are required to be acknowledged, but except for said reserved right to change the interests and/or the identity of the beneficiaries, this trust shall be deemed to be irrevocable, and no interest is reserved to the settlor or his estate except as herein expressly provided.”

On November 4th, 1929, upon the written request of the insured, pursuant to the reserved right in the policy to change the beneficiaries therein, and with the written consent of the beneficiaries, the said policies issued by the Massachusetts Mutual Life Insurance Company were amended by endorsement which reads as follows:

“Springfield, Mass., November 4, 1929.
If this policy shall mature as a death claim the proceeds shall be paid to The First National Bank, of Hoboken, N. J., as trustee, or its successor in trust, in accordance with trust agreement dated October 8, 1929, without liability on the part of the Insurance Company to see to the carrying out of the terms of the trust; a legal request therefor having been received.
The right is hereby reserved to the insured to successively change the benefit hereunder, without the consent of any benficiary.
J. Wells, Asst. Secretary.”

The said last named policies contained the following provisions :

“If any beneficiary die before the insured, the interest of such beneficiary will vest in the executors or administrators of the insured unless otherwise provided herein.
“Subject to the rights of any assignee, the insured may, in accordance with any right reserved in the application for this policy, or amendments thereto, successively change the beneficiary hereunder; provided that any such change shall become operative only when endorsed upon the policy at the Company’s Home Office pursuant to such form of request as the Company may require.”

In the application for each of the above policies, or amendments thereto, the right was reserved successively to change the beneficiary thereunder without the consent of any beneficiary.

The Equitable Life Assurance Society policy contained the following provisions:

“(a) The Insured may from time to time during its continuance, change the beneficiary or beneficiaries by a written request, upon the Society’s blank, filed at its Home Office, but such change shall take effect only upon the endorsement of the same hereon by the Society;
“If the executors, administrators or assigns of the Insured be not expressly designated as beneficiary and if there be no other beneficiary living at the death of the Insured, payment will be made to the surviving children of the Insured; or should none survive, then to the Insured’s executors, administrators or assigns.”

The insured, Frederick W. Janssen, by request in writing made to the Equitable Life Assurance Society, asked that the policy be rewritten; the said Society on April 8th, 1930, rewrote the aforesaid policy number 4,598,431, so that the name of the beneficiary therein became “The First National Bank of Hoboken.” The policy as rewritten gave the right to the insured to change the beneficiary or assign the policy and contained the provision last above quoted.

The four aforesaid policies were delivered to The First National Bank of Hoboken to be held by it as trustee under the trust agreement.

On February 21st, 1935, Frederick W. Janssen was confined with a serious illness, in the Overlook Hospital, Summit, New Jersey, where he was awaiting a critical operation, which he believed might prove fatal to him. With that feeling, he decided to cancel the trust agreement between himself and The First National Bank of Hoboken, and withdraw from the operation of said agreement all of the policies contained in said trust and to change the beneficiaries in said policies from The First National Bank of Hoboken, trustee, to Margarethe Janssen, his wife. To effect that intent, he, on said date, engaged the services of George A. Goodridge, an insurance broker, as his duly authorized agent for the purpose. Ou the day of his engagement, Goodridge telephoned the home office of the Equitable Life Assurance Society in New York City and stated to a Mr. Kelly, the Society’s duly authorized representative, and a member of the change of beneficiary department of the Society, that Frederick W. Janssen was about to terminate the trust with The First National Bank of Hoboken, Trustee; that he was very sick and was about to undergo a very serious operation within a few days; and that, consequently, the Society promptly mail a change of beneficiary papers to him in behalf of Frederick W. Janssen so as to change the beneficiary in said policy to Margarethe Janssen, his wife; and that Mr. Janssen had made written request to the Society; and that haste was necessary because of the circumstances; and that he (Mr. Goodridge) was telephoning in advance of the receipt of the letter with respect to the situation in order to expedite the matter. In the course of the telephone conversation, Good-ridge asked Kelly what the result would he if only Janssen’s written letter requesting the change of beneficiary were received by the Society before his death, and not the signed forms for such purpose furnished by the Society. He was then assured by Kelly that the Society, like others, would take a reasonable view of the situation.

On the day last aforesaid, Goodridge sent to the Massachusetts Mutual Life Insurance Company, at Springfield, Mass., its home office, a telegram, and a letter, outlining, in effect, the sabject-matter of the conversation which he had had over the telephone with Kelly of the Equitable Life Assurance Society. On the same day, at the Overlook Hospital, the insured, Frederick W. Janssen, with his wife, Margarethe, Margaret Biehler, Fred Janssen, Jr., and Emma Wieboldt, the three last named, his children, all of whom were the beneficiaries named in the aforesaid trust, executed and signed the following paper-writing:

“February 21st, 1935.
The First National Bank of Hoboken, N. J., Trustee, Hoboken, N. J. Gentlemen:
Changing circumstances lead me to make the following request: I wish to withdraw from the Life Insurance Trust, dated October 8th, 1929, the following policies:
Metropolitan ........... 3503372-A $10,000.00
“ ........... 3843801 10,000.00
“ ........... 4796189 5,000.00
........... 4796190-A 10,000.00
Massachusetts ......... 583866 10,000.00
“ ......... 586859 10,000.00
“ ......... 725639 5,000.00
New York Life ........ 9301675 10,000.00
Equitable Life ......... 4598431 10,000.00
Prudential ............ 6697344 20,000.00
Will you kindly deliver these papers to my representative, Mr. George A. Goodridge, who will receipt for them? Thank you for your prompt compliance with this request.
Let me take this opportunity to thank you for all favors of the past, which I have appreciated.
Very truly yours,
(Signed) F. W. Janssen.
Witness:
Julius Lichtenstein.
We, the undersigned, consent to the above.
February 21st, 1935.
Margaeethe Janssen, Margaret Biehler,
Fred Janssen, Jr.,
Emma Wieboldt.
Witness:
Julius Lichtenstein.
Receipt is acknowledged this day of the above mentioned life insurance policies.
George A. Goodridge.”

At the said time, February 21st, 1935, at the hospital, the insured, Frederick W. Janssen, signed the following letters intending that they be filed at the home offices of the respective insurance companies, thereby to effect changes of beneficiary under the said policies to his wife, Margarethe Janssen, viz.:

“February 21st, 1935.
Massachusetts Mutual Life Insurance Company,
Springfield,
Mass.
Gentlemen: Re: Policies Nos.: 583866; 586859; 725639.
This is to notify you that I am terminating the Life Insurance Trust of October 8th, 1929, with The First National Bank of Hoboken, New Jersey. I wish to name as beneficiary my wife, Mrs. Margaretha Janssen. Will you kindly prepare promptly the necessary papers for my signature.
Thank you for your cooperation.
Very truly yours,
Frederick W. Janssen.”
“February 21st, 1935.
Equitable Life Assurance Society,
393 Seventh Avenue,
New York City.
Gentlemen: Re: Policies Nos.: 4598431.
This is to notify you that I am terminating the Life Insurance Trust of October 8th, 1929, with The First National Bank of Hoboken, New Jersey. I wish to name as beneficiary my wife, Mrs. Margaretha Janssen. Will you kindly prepare promptly the necessary papers for my signature.
Thank you for your cooperation,
Very truly yours,
Frederick W. Janssen.”

Those letters were mailed to both insurance companies in the afternoon of February 21st, 1935. On the same day, at about five o’clock in the afternoon, The First Rational Bank of Hoboken delivered the four policies to Goodridge, aforesaid, upon the presentation by him of the letter addressed to it, above set forth. On receiving the policies from the bank, on the date last mentioned, Goodridge, for and in behalf of Frederick W. Janssen, mailed at the Hnited States post’ office, all of the Massachusetts Mutual Life Insurance Company’s and the Equitable Life Assurance Society’s policies to the home offices of the companies, enclosing with them a memorandum indicating that they were policies for the insurance companies’ attention as per the insured’s letter of February 21st, 1935. The policies were, in due course, received by the insurance companies prior to the death of Frederick W. Janssen. His death occurred on the morning of February 2oth, 1935. The day following the mailing of the policies to the insurance companies, February 22d, 1935, was Washington’s birthday, a holiday, and the companies were not then engaged in the transaction of business. The situation was the same on Saturday, February 23d, 1935; the home office of the Equitable Life Assurance Society was closed and it was not then engaged in the transaction of business. On February 25th, 1935, Goodridge received from the home office of the Massachusetts Life Insurance Company the following communication:

“February 23d, 1935.
Mr. George A. Goodrich,
50 Church Street,
New York, N. Y.
Re: Frederick W. Janssen
7 policies: 583,866
586,859
725,639
556,948
583,865
636,017-013
Dear Mr. Goodrich:
We enclose herewith seven amendments for signature of Mr. Frederick W. Janssen, with any witness, changing benefit under the policies in favor of his wife, Margaret Janssen.
The first three policies are under a Trust Agreement dated October 8, 1929, with First National Bank, of Hoboken.
It will be necessary to have the Trust Agreement revoked and proper letter of revocation furnished this Company by the Trustee Bank, dated prior to the dating of the three amendments enclosed under these three policies.
Please be sure to send us all seven policies for endorsement when returning the signed amendments and revocation letter.
Yery truly yours,
F. H. Lewis,
General Agent.”

This letter was received by Goodridge at his office on the morning of February 25th, 1935, after the death of Janssen.

Frederick W. Janssen left a last will and testament dated February 21st, 1935, and named therein as executor and trustee, John Schlichting and Frederick W. Janssen, Jr., his son. The will was probated by the surrogate of Union county on March 9th, 1935. The executor and trustee named therein qualified on said date.

The insurance companies’ attorneys filed their respective bills of interpleader, alleging that they could not safely pay the amount due on the policies in question to any one person because The First National Bank of Hoboken, as trustee, Margarethe Janssen, the executors of Frederick "W. Janssen’s estate, and the children of Frederick W. Janssen, had all requested payment thereof, and were discharged by interlocutory decrees by paying into this court the net amount due under said policies.

Were the rights of the First National Bank of Hoboken to the proceeds of the four policies terminated and destroyed by the withdrawal of the policies pursuant to the request of the insured on February 21st, 1935? It is my belief that they were. The last two lines of the first clause of the trust agreement above set forth states that the settlor “may at any time withdraw any or all of such policies.” In accordance with that stipulation, the settlor, in his lifetime, withdrew the policies in question from the custody and possession of the bank, which act, in my opinion, unquestionably implied, and caused, a revocation of the trust agreement. The policies were the subject of the trust agreement. With their withdrawal, the purpose of the agreement no longer existed. The settlor recited in his request for the withdrawal that his action was due to “changing circumstances.” He stated that he wished to withdraw the policies “from the life insurance trust.” He said that it was his intention to change the beneficiary in the policies from the trustee, and substitute as such, his wife. He did everything, in so far as he was able, to accomplish that result. He withdrew all his policies which had been in the possession of the bank, clearly indicating thereby that it was his intention to terminate, cancel and destroy the trust. Prudential Insurance Co. v. Reid, 107 N. J. Eq. 338; 152 Atl. Rep. 453; Prudential Insurance Co. v. Swanson, 111 N. J. Eq. 477; 162 Atl. Rep. 597. The defendant, The First National Bank of Hoboken, stresses paragraph 7 of the trust agreement which recites that except for certain reserved rights to change the interest and (or) the identity of the beneficiaries, the trust shall be deemed to be irrevocable, and no interest is reserved to the settlor or his estate as therein expressly provided. In considering written instruments, the court will endeavor to so construe them as to make all its parts, consistent with each other, stand. Therefore, the trust agreement in the instant case, I construe to be irrevocable only as to the policies which had not been withdrawn from the operation of the trust at the time of the settlor’s death.

The language in the trust agreement, quoted above, that the settlor may at any time withdraw any such policies, is most effective; and, when invoked, will produce an implied cancellation of the trust agrément as to those policies withdrawn by the settlor. Since the settlor withdrew the policies, which was his right under the terms of the trust agreement, what act, under the agreement, was then left for the bank to perform? It was left without power. The right of the bank to the proceeds due under the policies was extinguished with the withdrawal of the instruments which were the basis of the trust fund.

Since my determination is that there was a revocation of the trust as to the policies involved, then next for consideration arises the claim of the widow as beneficiary under the policies. The bank’s interest in the trust having ceased with the failure of the trust, leaves the executors and the children as the only ones interested in the policies. The children are all of age; and, they, through their counsel, stipulated, in open court, that it would not be necessary for me to decide this further question. Counsel for the widow stated that she consents that the proceeds of the Massachusetts policies be paid to the executors, and that the proceeds of the Equitable policy be paid to the children.

I feel that the clauses of the policies concerning the payment of the proceeds in the event that there is no living beneficiary at the time of the insured’s death are applicable to the pending situation, and that the proceeds of the Massachusetts Mutual Life Insurance policies should be paid to the executors of the insured, and that the proceeds of the Equitable Life Insurance policy should be paid to the children of the insured.

I will advise an order to conform with these conclusions.


author: Pee Ctjeiam.

text:
    THE YOUNG MEN’S CHRISTIAN ASSOCIATION OF HACKENSACK, NEW JERSEY, PROSECUTOR, v. STATE BOARD OF TAX APPEALS, DEFENDANT.
    Submitted May 5, 1936
    Decided August 12, 1936.
    For the prosecutor, Smith •& Slingerland and McCarter & English.

    For the defendant, Donald Waesche.

   Pee Ctjeiam.

In the essential facts and the principles of law to be applied, this case cannot be distinguished from that of The Young Men’s Christian Association of Ridgewood v. State Board of Tax Appeals, 117 N. J. L. 196. For the reasons expressed in the opinion in that case, the judgment brought up by the writ of certiorari here is reversed, and the assessment is set aside.


author: Case, J.

text:
    SAVOY BUILDING AND LOAN ASSOCIATION, PLAINTIFF-APPELLANT, v. ARTHUR TRUCILLO AND THERESA TRUCILLO, AND WIFE, DEFENDANTS-RESPONDENTS.
    Submitted October term, 1936
    Decided November 6, 1936.

      Before Bkogan, Chief Justice, and Justices Case and Peeskie.
    Por the plaintiff-appellant, Hwrry T. Davimos.

    Por the defendants-respondents, Edwin G. Adams and Thomas G. D’Avella.

   The opinion of the court was delivered by

Case, J.

The appeal is, by its terms, from an order of the Circuit Court of Hudson county dated June 3d, 1936, striking out the complaint and from an order of the same court dated July 2d, 1936, denying the application of the plaintiff to transfer the cause of action to the Court of Chancery. It does not appear from either the notice of appeal itself or from the record as presented to us that there was a final judgment. It is a well settled rule that appeal lies only from final judgment (Hoffman Associates, Inc., v. Snook, 112 N. J. L. 68; 169 Atl. Rep. 666; De Salvo v. Friedman, 112 N. J. L. 410; 169 Atl. Rep. 667), and that a judgment which is sought to be reviewed must appear as a part of the record. Harrington v. Greidanus, 9 N. J. Mis. R. 1340. The appeal will, therefore, be dismissed.

We add, however, that even on the assumption of an entry of and an appeal from a final judgment we find no error. The defendants, in making answer to the complaint, set up that the complaint failed to disclose a cause of action at law and that it was ambiguous and lacked certainty. Motions to strike the answer and to strike the complaint were heard and considered concurrently. The court found that the complaint was faulty in the respects charged and made an order striking it. The complaint grounded in a claim for deficiency under a foreclosure sale in Chancery. It alleged that in 1928 Carlomusto et ux. executed a bond and mortgage to plaintiff; that five years later the Carlomustos conveyed the mortgaged premises to defendants; that defendants took subject to a mortgage held by the plaintiff and “agreed and assumed to pay the same according to the terms thereof.” Perhaps the mortgage defendants agreed to pay was the one executed by their grantors. Possibly not. The complaint did not say. Perhaps the agreement was made with the Carlomustos, possibly with someone else—the plaintiff, for instance. Again, the complaint did not say. If the agreement was with plaintiff, no reason is presented why an action thereon for the deficiency would not lie at law, assuming, of course, a valuable consideration and correct preliminary procedure. If the action was so grounded, it was badly pleaded. Were the facts pleaded with certainty, it would more likely appear that the agreement was made with the Carlomustos, and in such event plaintiff’s recovery would lie in Chancery upon the equitable theories of subrogation and avoidance of circuity of action. Tichenor v. Dodd, 4 N. J. Eq. 454; Crowell v. Hospital of St. Barnabas, 27 Id. 650; Woodbury Heights Land Co. v. Loudenslager, 60 Id. 403. Doubt has been expressed in both chancery and the law courts as to whether Such an action is available in the courts of law. Malcolm v. Lavinson, 110 N. J. L. 63; 164 Atl. Rep. 318. Whether so or not need not be now decided. The complaint does not present the basis for a holding; it was properly struck.

Except to say that the printing of it in the state of case was improper, we pass without note a letter which appellant’s attorney states in his brief was written bjr him to the trial judge before the latter determined the motion to strike. The letter is not, and seemingly ought not to be, a part of the court files. It has no place in the record.

After the order striking had been filed, plaintiff presented its petition to transfer the cause to the Court of Chancery. The court denied the application. Appellant argues that the denial violated chapter 233, Pamph. L. 1912 (Cum. Supp. Comp. Stat. 1911-1924, p. 2833, § 163-148, 1), as amended by chapter 13, Pamph. L. 1915 (Cum. Supp. Comp. Stat. 1911-1924, p. 2833, ,§ 163-350, 3). Section 1 of the statute provides:

“No civil cause or matter, hereafter pending in any court mentioned in the above title, -which has not jurisdiction of the subject-matter, shall be dismissed for that cause only, but the cause or matter shall be transferred with the record thereof and all papers filed in the cause, for hearing and determination to the proper court, which shall thereupon proceed therein, as if the cause or matter had been originally com’ menced in that court.” (Italics ours.)

Although the statute, in the second section, permits a transfer to be made either upon or without application, a mere omission by the court to make a transfer on its own initiative is not ground for error as it does not constitute a judicial action; and appellant alleges.error, not in an omission, but in the actual denial, which, of course, must be considered in the light of the then existing status. It is not perceived upon what reasoning a court before which there are no pleadings may be asked to transfer a cause to another tribunal. Unless there be a complaint there is no cause of action made manifest. Having regard to the complaint struck in the present suit, the court could scarcely tell therefrom where, if anywhere, it should be lodged. Imperfection of pleading was the outstanding fault. There was no motion to amend. Without pausing to demonstrate that the court action was not on a finding of no jurisdiction, we observe that there were two grounds stated for the ruling and that therefore, even if lack of jurisdiction had been one of them, the cited statute would not apply.

Appeal dismissed.


author: Beogan, Chief Justice.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. IRVING R. HARRIS, ROSE WILPON AND JULIUS WILPON, PLAINTIFFS IN ERROR.
    Argued October 6, 1936
    Decided November 4, 1936.
    Before Bkogan, Chibe1 Justice, and Justices Case and Pekskie.
    Por the defendant in error, William A. Wachenfeld, prosecutor of the pleas; Joseph E. Conlon, first assistant prosecutor, and Leon W. Kapp, assistant prosecutor.
    Por the plaintiffs in error, 'Harry J. Weiner (George T. Vickers, of counsel).
   Beogan, Chief Justice.

The plaintiffs in error, Hose Wilpon, Julins Wilpon, her husband, and Irving E. Harris, a member of the bar of this state, were indicted and convicted of an attempt to obtain money by false pretenses.

The facts of the case are that Mrs. Wilpon met with an accident on the premises where she lived, in the city of Elizabeth. She retained as her attorney plaintiff in error Harris, who instituted an action at law, alleging that the injuries sustained by Mrs. Wilpon. were caused by a defect in a concrete step leading to the porch of the house in which she lived.

The state produced evidence tending to prove that Mrs. Wilpon did not meet with the accident, as was alleged in the complaint, and that all three plaintiffs in error had, since the accident, endeavored to persuade certain persons to make false statements concerning the accident and had succeeded in getting some of them to do so. The defense was a general denial.

Pive of the list of assigned errors are urged for a reversal of the conviction. The first is that there was no proof that Mrs. Wilpon did not receive her injuries as she alleged. We cannot agree with this contention. Sufficient evidence was presented by the state to make this element of the case a question for the jury. In detail, we find proof to support the conclusion that Mrs. Wilpon did not fall on or from the step in question. There is also ample evidence to corroborate the necessary element of the case that Harris and Julius Wilpon knew or believed that Mrs. Wilpon did not meet with the accident as the complaint in the suit for damages alleged. The record before us discloses that all three defendants endeavored to persuade some witnesses, and succeeded in persuading others, to make false statements as to where Mrs. Wilpon’s fall occurred, for the purpose of fastening liability on the owner of the premises.

One witness, Mrs. Bazyelo, speaking of the happening of the accident, testified that Mrs. Wilpon was walking backward towards the porch at the time of the accident, pulling a “baby-walker” or “kiddie car” containing her child. This witness had given a written statement to that effect to one Irving Rosenthal, an investigator for Harris, and she testified that later Harris asked her to change the statement she had made. She refused to do so. It also appears that Harris endeavored to have another prospective witness make statement of a set of facts helpful to Mrs. Wilpon’s claim, when in fact that person did not see the accident happen.

Another witness, Picerno, who was selling ice in the neighborhood at the time of the accident, was importuned by plaintiffs in error to change his statement of the facts and to say that Mrs. Wilpon fell on the concrete step or from it. Still another witness, Rose Durante Smith, testified that Harris got her to swear to a statement written out by him as to the manner in which the accident occurred, when in fact she did not see the accident happen. Other proof of like character was adduced.

Under the indictment, we think that the state, in order to make out a prima facie case, had the burden of showing that the injury to Mrs. Wilpon was not caused by the defective concrete step; that the defendants, knowing this, endeavored to persuade prospective witnesses to misstate the situation in order to fasten liability on the owner of the premises, and this burden the state discharged.

It is next argued that it was error for the court to exclude testimony as to the condition of the concrete step prior to Mrs. Wilpon’s accident. This contention we ñnd to be contrary to the facts. The witness, Elizabeth Blumenthal, was permitted to testify on direct examination as to the condition of the step in question on the day of the happening, both before and after the accident.

The third argument made is that it was error to permit the state to elicit from a defense witness conversation had with others outside of the presence of the defendants. This testimony, however, was struck out by the court and the jury was instructed to disregard it. There was no error here. State v. Andoloro, 108 N. J. L. 47; 154 Atl. Rep. 819; State v. Danser, 116 N. J. L. 487; 184 Atl. Rep. 800.

It is next argued that the court fell into reversible error in its charge to the jury as to the burden of proof. The argument of the plaintiffs in error is that the language complained of put the burden upon the defense to prove beyond reasonable doubt that Mrs. Wilpon received the injuries in the manner which she claimed. Standing alone, this language of the charge would not be without fault. The charge, however, considered as a whole, in our judgment, made it plain to the jury that the defendants were presumed to be innocent until found guilty beyond reasonable doubt and that the obligation of proving the charge beyond reasonable doubt rested upon the state.

The last point made is that the court fell into error in charging the jury as to the effect to be given to the testimony of character witnesses. In this case evidence of the good reputation of the defendant Harris was introduced. It is argued that it was error for the court to have said to the jury, “if you have a reasonable doubt, no matter by what testimony that doubt may be engendered, whether it be the. testimony of witnesses to conversation or whether it be the testimony of character witnesses who have testified to the reputation of the defendants—and there has been such testimony and it of course should be considered and given its proper weight—if after consideration of all the evidence in the case you have reasonable doubt as to the guilt of the defendants or any of them, they should be acquitted.”

The gist of the argument is that no character witnesses were produced for the defendants Mr. and Mrs. Wilpon, but for Harris only, and that the judge’s charge was confusing, referring, as it is argued, to the defendants generally. We perceive no error here. The court was stating a general rule and speaking in the abstract, and we cannot conceive that the jury was misled.

The judgment is affirmed.


author: Cash, J.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MAX SILVERMAN, PLAINTIFF IN ERROR.
    Argued October 6, 1936
    Decided November 6, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    For the defendant in error, William A. Wachenfeld, prosecutor, and Joseph E. 0onion, first assistant prosecutor.
    For the plaintiff in error, Braelow & Tepper.

   The opinion of the court was delivered by

Cash, J.

Silverman was convicted of larceny on an indictment, found December 7th, 1934, charging him with the larceny of $4,000 held by M. & S. Agency, Incorporated, in trust for Samuel E. Zetner. The fifteenth assignment of error and the fifteenth reason for reversal are that the court erred in denying the motion for the plaintiff for a direction of verdict in his favor on the ground that there was no evidence of a larceny. The two-year period of limitations (Criminal Procedure act, section 152, 2 Comp. Stat. 1870) applies and consequently a larceny, to be cognizable under the indictment, must have been committed on or after December 7th, 1932.

M. & S. Agency, Incorporated, held certain moneys paid in by its several agents, of whom Zetner was one, and to be repaid to those agents if and to the extent that the corporation was not called upon to meet liability therefrom. The indictment charges a trusteeship on the part of the corporation, and we accept that terminology for the purposes of the discussion. Silverman was treasurer of the corporation and had authority, as treasurer, to sign the corporation checks. The larceny is said to have consisted of the withdrawal, by treasurer’s check, of certain of those trust moneys and the application of the same to Silverman’s personal uses. The bank account in which the trust moneys, including those held for Zetner, were placed was first kept at the West Orange Trust Company under the title “M. & S. Agency, Eeserve” and later at the National Newark and Essex Banking Company as “M. & S. Agency, Inc., Eeserve Account.” The account in the West Orange Trust Company was closed on or about January 14th, 1932. Therefore, no prosecution may be had with respect to it. On December 6th, 1932, $812.44 was on deposit at the National Newark and Essex Banking Company, and from that time forward the balance was never greater than that sum. The account was closed February 2d, 1933.

The remittances which Zetner made to the corporation and which it is said were placed in the reserve fund, beginning with August 1st, 1932, an arbitrary date, and ending with October 20th, 1932, when the last remittance was made, were five in number, all checks, varying from $35 to $103.50 in amount, and totaling $163.50. During the same period the deposits in the corporation reserve fund account were sixty in number, varying in amount up to $582.50, totaling approximately $4,700; and from that date forward to the closing of the account, as against no remittances whatever from Zetner, there were thirty-nine deposits, varying in amount up to $1,420, totaling upwards of $4,400. An extension of the comparative figures would only further emphasize the fact that the great bulk of money in the fund came from other persons than Zetner and that the account was not merely an accumulation of moneys held for him.

The date laid in the indictment as that on which the larceny occurred was January 11th, 1933. We find no proof of a criminal act committed either on that day or at any other time within the statutory period. One Hennessey, who had been in the employ of the corporation from February, 1931, until January, 1933, testified that during the period of about one year following the beginning of her employment some of the checks drawn upon the reserve fund were for salaries and that of these checks some, the witness could not say how many, were to the order of Silverman, each in the amount of $500, in payment of Silverman’s salary, which was $500 per week. There is no evidence of withdrawals from the fund during the period covered by the indictment except as contained in the deposit sheets from the National Newark and Essex Banking Company. Those sheets show fourteen withdrawals during the time in question ranging in amount from $12 to $3.25 and do not indicate the purposes for which or the persons in whose favor the funds were withdrawn. There is no proof that those withdrawals were not for legitimate uses of the corporation, or indeed that they were not for uses to which the reserve fund might properly be put, and so far as we can ascertain there are no proofs from which such conclusions may be fairly inferred.

The state gives much force to what it calls the course of conduct by Silverman with respect to the bank account during the period preceding January, 1933, as testified by Miss Hennessey and to the fact that Silverman did not take the witness stand. Neither of these factors is sufficient, in our opinion, to relieve the state from the burden of proving a larceny within the limits of the indictment. The failure of Silverman to take the stand is not such proof, and neither is a course of conduct by him in having earlier drawn salary checks from the fund. The testimony contains evidence of statements by Silverman that he would repay Zetner the moneys due him. But that, standing alone, is not an admission that money had been stolen from the corporation, much less that if money had been stolen Silverman was the thief.

We think that the motion for direction of verdict in favor of the defendant charged in the indictment should have been granted and that the refusal was error. It is unnecessary to discuss any of the remaining assignments of error or reasons for reversal, many of which, according to the rules set down in the eases (State v. Blaine, 104 N. J. L. 325; 140 Atl. Rep. 566; State v. Garzio, 113 N. J. L. 349; 175 Atl. Rep. 98), are not so stated as to be properly before us.

The judgment below will be reversed, to the end that a venire de novo issue.


author: Pee Cueiam.

text:
    MARY E. KAPOLKA, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF JOSEPH SIMEK, PLAINTIFF-APPELLANT, v. WILLIAM A. MOUNT AND RAYMOND A. DILATUSH, DEFENDANTS-APPELLEES.
    Submitted October term, 1936
    Decided November 4, 1936.

      Before Bkogan, Chief Justice, and Justices Case and Pekskie.
    Por the plaintiff-appellant, Edmund A. Hayes.

    Por the defendants-appellees, George L. Burton.

   Pee Cueiam.

The plaintiff appeals from a judgment awarded to the defendant by a jury in the Middlesex County Court of Common Pleas. We assume .the judgment was entered. None appears in the state of case. The appeal might properly be dismissed for this omission.

Seven grounds are written down as reasons for a reversal. The first and second present nothing for review since they point to no error of a judicial nature. If the appellant was entitled to relief for the reasons stated in those grounds the remedy was by rule to show cause. The remainder of the grounds for reversal challenge the charge of the trial court to the jury.

The fifth and sixth cannot be considered for the reason that no exception was taken to the language of the charge now complained of under these headings. The seventh ground is not argued and therefore will not be considered. These rules of procedure on appeal are too thoroughly settled to require any citation of authority.

The third and fourth grounds challenge the charge of the court in that the language favored the defendant and was prejudicial to the appellant. We can find no such fault in the charge. A reading of the charge in its entirety makes it plain that the court, in a careful manner, outlined for the jury the conflicting claims of the parties and their witnesses as to how the accident happened. The court was careful, however, to tell the jury that the determination of the facts was entirely for the jury and, further, that he referred to the facts only to assist the jury in considering its verdict, hut that the jury was the sole judge of the facts and inferences to be drawn therefrom.

There is no merit in any of the grounds argued for a reversal.

The judgment will be affirmed, with costs.


author: Brogan, Chief Justice.

text:
    ETHEL M. SINEY, EXECUTRIX AND TRUSTEE OF THE ESTATE OF CLYDE L. SINEY, DECEASED, PLAINTIFF-APPELLANT, v. PEOPLES BANK OF HAWTHORNE, A CORPORATION OF NEW JERSEY, HARRY R. DOBLER AND JAMES DOBLER, DEFENDANTS-APPELLEES.
    Submitted October term, 1936
    Decided November 4, 1936.
    Before Brogan, Chaef Justice, and Justices Case and Perskie.
    Por the plaintiff-appellant, Saul M. Mann.

    Por the defendants-appellees, for the bank, Alexander M. MacLeod; for the defendant James Dobler, Beggs & Grimshaw.

   Brogan, Chief Justice.

The trial court at the Passaic County Circuit struck out the complaint in the case as sham.

The plaintiff-appellant appeals from the order striking out the complaint. On behalf of the appellees we are met, in limine, with the point that a mere order, as such, striking out the complaint, is not appealable. This would seem to be so since no judgment has been entered. At least we find none in the state of case. Lully, Admx., v. National Surety Co., 106 N. J. L. 81; 148 Atl. Rep. 762; Venditto v. Spratt’s Patent (America), Ltd., 113 N. J. L. 357; 174 Atl. Rep. 697.

The appeal is dismissed, without prejudice, costs to the appellees.