text:
    CHARLES AND MARY LORENZ AND ANTHONY AND JOSEPHINE LORENZ, TRADING AS LORENZ BROTHERS, PLAINTIFFS-RESPONDENTS, v. HERBERT McCLOSKEY, DEFENDANT-APPELLANT.
    Submitted May 14, 1926
    Decided December 23, 1926.
    Landlord and Tenant — Tenant Claimed Constructive Eviction as Result of Landlord’s Failure to Repair a Leaking Roof— Upon Removing, Tenant Left Key With Janitor’s Wife in Charge, and After Repairs by the Landlord, Efforts Were Made to Rent, Also to Sell, Using the Apartment as a Model Apartment — Held, That Eviction Must be More Than Mere Trespass, but Something of a Grave and Permanent Character, Done by the Landlord With Intention of Depriving Tenant of the Premises — Held, Further, Though Mere Receipt of Keys and Efforts to Rent Did Not Constitute Acceptance of Surrender, the Use of the Apartment as a Model in an Effort to Sell the Entire Property, and in an Effort to Effect Rentals of Other Apartments, was a Use Inconsistent With Claim of Continued Relationship of Landlord and Tenant.
    On appeal from the First District Court of Newark.
    Before Justices Kaliscii, Katzekbaoii and Lloyd.
    For the appellant, Levy, Fenster & McCloskey.

    For the respondents, Stephen J. Lorenz.

   Per Curiam.

This .is an appeal from a judgment in the First District Court of Newark, entered for the plaintiffs, upon a verdict rendered by a jury against the defendant in the sum of $240, at the direction of the court.

The action was for rent for leased premises, at the rate of $80 per month, for the months of July, August and September. The lease was dated January 1st, 1925, and ran to September 30th, 1925, at the gross rental of $720, payable $80 monthly, in advance. The tenant of the property having moved ont on the 30th of June, 1925, set up a constructive eviction by the landlords and surrender of the premises as a defense to the action.

The proofs upon which the claim of constructive eviction was based were that the tenant occupied as the rented premises an apartment on the second floor of a four-story apartment building; that on June 15th, 1925, a drain pipe from the roof of the building became clogged, accumulating a large quantity of water which leaked through the roof, soaking the walls and ceiling of his bedroom, and making it impossible for him to sleep there; that the plaintiffs refused to remedy the condition, whereupon the tenant moved out of the property, and turned the key over to the wife of the superintendent of the building, she being in charge while the superintendent was in the hospital.

In Meeker v. Spalsbury, 66 N. J. L. 63, in a careful opinion by Justice Collins, quoting from other authorities therein cited, it is said: “That eviction must be not a mere trespass but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises; * * * and more fully and accurately defined * * * as an act of a permanent character done by the landlord in order to deprive, and which had the effect of depriving, the tenant of the use of the thing demised or of a part of it.”

It will thus be seen that the facts proven fall short of meeting these requirements. The obstruction to the tenant's enjoyment of the property was temporary, and certainly not designed by the landlords, but was a fortuitous event resulting from the leaking of the roof.

On the second point involved we reach a different conclusion. The proofs offered to support the claim that there had been a surrender of the premises, and an acceptance by the landlords, were that when the tenant moved out on June 30th, 1925, he turned the key over to the wife of the superintendent of the building, she being in charge in his absence, as above stated; that the landlords took possession of the vacated apartment about July 15th, 1925, following; painted and decorated it throughout and changed the living-room walls by panelling, and that about August 1st they showed the apartment in an effort to sell the apartment-house on the tenant co-operative plan, and also showed it as a model apartment in order to rent other apartments in the building. We think this presented a question which the trial judge should have submitted to the jury. The mere receipt of the keys and endeavoring to rent the property did not constitute an acceptance of surrender, but when it was used as a model apartment and exhibited to prospective purchasers to effect a sale of the property, and to applicants for other apartments to effect rentals, it was a use of the apartment for his own purposes inconsistent with the claim of the continued relationship of landlord and tenant.

The result we reach is that the direction of a verdict in favor of the plaintiff was erroneous, and that the case should be reversed, to the end that the question of a termination of the lease had been effected by the voluntary surrender by the tenant, and its acceptance by the landlords, may be passed upon by a jury.

The judgment is reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MICHAEL SOSNOWSKI, PLAINTIFF, v. FARMERS MUTUAL FIRE INSURANCE COMPANY OF WARREN COUNTY, DEFENDANT.
    Decided December 23, 1926.
    Appeals — Order to Nolle Pros For Failure to Prosecute — Plaintiff Had Given Notice of Appeal to Court of Errors and Appeals From an Order of Supreme Court, Making Absolute a Rule to Show Cause Why a New Trial Should Not be Granted— Communications Examined and Held, That no Assurance of Defendant That Motion to Dismiss Would Not be Pressed was Given
    Eor the plaintiff, Joseph T. Liehblich.

    Eor the defendant, King & Vogt.

   Per Curiam.

This is an application to set aside an order of nolle pros for failure to prosecute, made on the opening day of the present term, in the above-entitled action. The ground upon which the application is made is that the plaintiff had given notice of appeal to the Court of Errors and Appeals from an order of the Supreme Court making absolute a rule to show cause why a new trial should not be granted (the plaintiff in the court below having obtained a verdict and judgment thereon), and that he conceived that the defendant would not press the motion for nolle pros.

The communications between the parties bearing upon the subject are in writing, and an examination of them convinces us that the plaintiff had no justification for this attitude of mind, and was in nowise misled by any act of counsel for the defendant. The latter had given notice of a motion to dismiss and this motion was never withdrawn. It is true that counsel for the plaintiff had given notice of an appeal as above stated, ■ but his right to appeal from such an order was at once challenged by his adversary on the ground that such an appeal would not lie. No assurance was given, that the motion to dismiss would be withdrawn, or that it would not he pressed. We think the present position of the plaintiff is due entirely to his own default.

The motion to vacate the order of nolle pros is denied.


text:
    MAX KESSELMAN, PLAINTIFF-APPELLEE, v. SAMUEL COHEN AND AARON COHEN, DEFENDANTS-APPELLANTS.
    Submitted May 14, 1926
    Decided December 23, 1926.
    Landlord and Tenant — Suit For Rent Due on Premises After Being Padlocked by Order of United States Court — Judgment For Landlord — All Points of Defendant Considered on Appeal and Found Without Merit.
    On appeal from the District Court of the city of Trenton.
    Before Justices .Kalisch, Katzenbach. and Lloyd.
    Por the appellant, Philip M. Chamberlain.

    For the appellee, Josephson & Josephson.

   Per Curiam.

This is an action for rent. Max Kesselman leased to Samuel Cohen premises No. 234 North Clinton street, Trenton, for the term of three years, from November 1st, 1923. The rent was paid up to June, 1925, when the leased premises were padlocked by order of the United States District Court, and the rent thereafter due was unpaid. The rent sought to be collected'is in the sum of $375 for the months of June, July and August, 1925. There was no dispute about the amount of rent or that it was due according to the terms of the lease.

The action was brought against Samual Cohen, as the lessee, and Aaron Cohen, as guarantor. Judgment was given by the judge, sitting without a jury, for the plaintiff, and upon this judgment defendants appeal.

The first point raised in the brief of appellants is that the guaranty of Aaron Cohen was without consideration and that it was signed after the execution of the lease. This is not in accordance with the testimony. The signing of both was contemporaneous, and the court was justified in finding that the making of the lease was sufficient consideration for the “guaranty.”

The next point is that the court refused to permit the defendants to show that at the time of the making of the lease there was an agreement that if defendants would give plaintiff the sum of $1,500 in cash at the beginning of the term, and the premises were padlocked by decree of a United States District Court, the lease should be at an end between the parties. This obviously was an attempt to modify the terms of the lease in an important particular, and under the rule laid down in the leading case of Naumberg v. Young, 44 N. J. L. 331, was incompetent. There was no offer to show that the plaintiff had received $1,500 and should apply that to the extinguishment of the rent, the offer of this evidence being solely for the purpose of establishing a contemporary agreement, the effect of which would be to alter the terms of the agreement without incorporating it in the lease itself.

Point three is substantially the same question, and what has been said applies equally to it.

Point four is that the court erroneously refused to allow the defendants to show that the plaintiff knew that the premises were to be used by the lessee for an illegal purpose and to show that the premises were being so used with the plaintiff’s assent. The evidence attempted to be introduced falls short of any relevancy to the point here raised. The defendant Aaron Cohen was asked if he knew whether or not at any time prior to the execution of the lease, or at the time it was executed, Kesselman knew what the premises were to be used for. This was objected to and the objection sustained. Cohen was next asked whether Kesselman ever came into the premises after the execution of the lease and found liquor being sold in violation of the law. This was also objected to and the objection sustained. The first is objectionable as to form and far from indicating that the lease was made for an illegal use with plaintiffs knowledge, and as to the record knowledge of the defendants’ illegal use of the premises thereafter would not defeat plaintiffs claim for rent.

The last point is that the court erred in finding in favor of the plaintiff, and in support of this contention it is said that there was conclusive evidence of a surrender of the premises, because the plaintiff had told a subtenant to move out in three days, “that he would like to have the place.” This was certainly not conclusivo evidence of an acceptance of surrender of the premises. The testimony was entirely too vague to rest such a conclusion upon.

Finding no error, the judgment is affirmed.


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    CARMINE RICHARD, RESPONDENT, v. FRANCIS D. SPAGNA, APPELLANT.
    Submitted May 14, 1926
    Decided December 23, 1926.
    Sale of Real Estate — Agent’s Commissions — Agent’s Authority Contained in Written Memorandum — Agent Secured Buyer at Price Named Therein — Vendor Then Refused to Sell at That Price — Judgment For Agent For Amount Commissions Would Have Been — Vendor Questioned Many Things, Including Sufficiency of Memorandum — All Questions Examined and Judgment Sustained.
    On appeal from the Third District Court of the county of Bergen.
    Before Justices Kalis ch, Katzenbach and Lloyd.

      Por the respondent, Hart & Vanderwart.

    For the appellant, Adolph J. H. Peters (Nicholas 8. Schloeder, of counsel).
   Per Curiam.

In this case the plaintiff recovered in the Third District Court of Bergen county a judgment for $500 as commissions alleged to have been earned on procuring a purchaser for the defendant’s property, 521. Brandon Place, in the borough of Cliffwood Park, Bergen county.

The authority of the plaintiff was contained in a writing reading as follows:

“May 19, 1924.

The undersigned hereby authorizes Carmina Eichard, * *' * to sell the property described below, which is made part of this agreement, and for which services I agree to pay said agent a commission of five per cent. * * * these rates of commission to apply on the amount finally accepted, be it more or less than the price hereinafter named, provided the property is sold through said agent’s influence and efforts or the purchaser introduced by him.

Property, 521 Brandon Place.

Price, $13,500. Terms of sale, first mortgage, $7,000; $2,000 or $3,000 cash.

F. D. Spagna [l. s.].”

In February following the plaintiff procured one Praskac as a purchaser for the property. The purchaser attempted to negotiate with the owner, but was told the price was higher than that given in the authority to the plaintiff, with the result that the negotiations fell through. It clearly appeared that Praskac was able and willing to pay the price specified in the authorization, and formal tender was caused to be made by the plaintiff to the defendant of a contract which it was claimed was in accordance with the terms of the plaintiff’s authority. The trial judge, sitting without a jury, gave judgment for the plaintiff in the sum of $500. From that judgment this appeal is taken by the defendant, and a number of reasons assigned for reversal.

The first point raised is as to the refusal by the court of the defendant’s motion for a nonsuit ; the second, that the court erroneously gave judgment for the defendant. These are covered in substance by our consideration of the seventh point.

The third and fourth points are that the court erroneously admitted in evidence a proposed agreement which was tendered to the defendant, and a check for $100 tendered at the same time. These were competent. They formed part of the proofs to establish that the efforts of the plaintiff to supply a purchaser able -and willing to comply with the terms of purchase had been successful. It is criticised that the court received it as a contract. We do not find this to be the case. All the court said was: “I suppose that would be a matter for argument just whether it was a contract. He is offering it as a contract.” After some further discussion the court said, “l will allow it in evidence.” There is nothing in this to show that the court received it as evidence of a contract between the purchaser and the defendant, but if it were otherwise such action would not constitute reversible error. It was certainly evidence bearing on the performance by the plaintiff of his contract with the defendant, and if it be desired that the proof be limited, proper instruction should have been requested of the court to this end. Hill v. Maxwell, 77 N. J. L. 766.

The fifth point is that the court erroneously allowed the plaintiff to testify that Praskae was able to buy the property. This was not objectionable in itself, but whether so or not it was harmless, inasmuch as the uncontradicted testimony of Praskae was that he was able to make the purchase. We may add that according to the quotation in the appellant’s brief the question was propounded and the answer given before objection was made, and when the objection was finally raled upon no exception was taken. The objection was not only too late, but because of the absence of exception is not available to the appellant.

The sixth point is that there was no legal evidence to support the finding of the trial court as found in its opinion to the following effect:

“By virtue of this authorization I find the plaintiff procured one Charles Praskac, who agreed to purchase the premises at the price and upon the terms mentioned in the said authorization, and that said Praskac deposited $100 on account thereof.”

Counsel conceded that error cannot be assigned on the opinion of the court, but only on its judgment, and that if the judgment can be sustained on any theory the reviewing court will do so. The inaccuracy, however, is more apparent than real. What is clearly meant is that Praskac had signed the purchasing agreement and tendered the $100 deposit.

This brings us to the seventh and important point in the case, namely, that the contract between the plaintiff and the defendant did not contain all of the terms essential to authorize the plaintiff to make the contract, and deLeonard v. Papanas, 128 Atl. Rep. 922, is cited to support this contention. It will be noted that the terms are stated in this language: “Price, $13,500; terms of salé, first mortgage, $7,000; $2,000 or $3,000 cash.” The contention of the appellant is that the contract does not express any method of securing or paying the difference between the $9,000 or $10,000 and the $13,500 of the purchase-money.

The real question here presented is whether the agent under this writing could have made a binding contract with the purchaser. Seven thousand dollars and $2,000 or $7,000 and $3,000 do not together make $13,500. No provision is made as to how the difference of $4,500 or $3,500, as the ease may be, is to be paid ox secured. It is not to be supposed, of course, that the owner was willing to part with his property after having stated the price of $13,500 for a lesser sum amounting to either $9,000 or $10,000. The most that can be gathered is that the difference was to be on credit. How and whether that credit was to be secured is not stated, but it may be, the respondent contends, that the purchaser would be permitted to place a second mortgage for the difference. In this regard the case differs materially from the one cited. In the latter there was opportunity for the purchaser to place any amount of mortgage on the property prior to the claim of the seller. Here, there is no such condition. The purchaser is required to make a down payment, to give a first mortgage of $7,000, and to remain indebted to the seller for the difference between that combined sum and the purchase price. If the contract be accepted as it reads the responsible buyer could owe the balance for a reasonable time; that he was ready to give a second mortgage may possibly be treated as more favorable to the defendant than he had a right to ask. There is, however, proof in the case that in other respects the broker had procured a buyer strictly within the terms of his authority, and with respect to the mode of payment; that it was acceptable to the defendant, and his objection did not go to the method of securing the balance, his demand was for a larger price. This being true the plaintiff had procured a purchaser acceptable to the defendant in so far as this feature was concerned.

The last point raised in the case is that the contract was made in May, 1924, and that it expired of its own weight when no purchaser was found within a reasonable time. The difficulty with this position on the part of the defendant is that as late as March '10th and 16th, 1925, the defendant treats the authority as good in letters of those dates. At all events the question of whether or not the plaintiff had exercised his authority in a reasonable time was one of fact, and the judgment could not be disturbed on this account.

The judgment is affirmed.


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    ERNEST CALABRESE, APPELLEE, v. VINCENZO CALABRESE, APPELLANT.
    Submitted May 14, 1926
    Decided December 23, 1926.
    Contracts — Money Loaned — Admission of Evidence — Defense was That Money was Not Loaned For the Purpose of Paying Taxes as Alleged, but was Given to Daughter of Defendant, to Whom the Plaintiff was Engaged, For the Purpose of Buying Trousseau — Held, That Offer to Show Trousseau was Properly Excluded.
    On appeal from the First District Court of Jersey City.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, Levenson, Comen & Levenson.

    For the appellee, Ziegener & Lane.

   Per Curiam.

This was an action in the First District Court of Jersey City by Ernest Calabrese against Vincenzo Calabrese to recover the sum of $450 claimed to have been loaned to the defendant for the purpose of paying his (defendant’s) taxes. The single question in the case pertains to the ruling of the court respecting the admission of evidence. The defense was that one Virginia Calabrese, a daughter of the defendant, expected to marry the plaintiff and that the moneys had been given her by the plaintiff for the purpose of buying herself clothing and a trousseau. She so testified and further added that she had purchased the trousseau which was contained in a cedar chest. At this point the defendant’s attorney offered to produce in court from the chest the articles that she said she had purchased. Objection was made and sustained, and we think rightly. The offer was wholly irrelevant to the cause. It pertained to a transaction of the witness alone, not brought home to the plaintiff, and not tending to prove that the money actually went Into the purchase of the articles; and even if it did so prove, this would not be evidence that they had been given for such purpose.

This was the only point argued in the brief and it is without merit.

The judgment is affirmed.


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    NICHOLAS CONNOLLOY, PLAINTIFF, v. BOARD OF EDUCATION OF TRENTON, IN THE COUNTY OF MERCER, DEFENDANT.
    Submitted May 14, 1926
    Decided December 23, 1926.
    Contracts — Construction Agreements — Plaintiff Contracted For Plumbing Work on Building Upon Which Another Had the General Construction Contract — Each Contract Contained Provisions Regarding Extension of Time on Account of Delays — General Construction Contractor Applied to Architect For, and Received, Such an Exclusion — Complainant Thereupon Alleges That He was Hindered Thereby in the Completion of His Contract — Held, That the Terms of the Contracts Were Not Intended to Protect Either Party From the Hindering Acts of the Other, and That the Architect was Not Defendant’s Agent, but the Arbiter — Defendant’s Motion to Strike Out Will be Allowed.
    On contract.
    Before Justices Kaliscii, Katzenbach and Lloyd.
    For the plaintiff, Peter Baches.

    For the defendant, Ojiarles B. Bird and Aaron V. Dawes.

   Per Curiam.

The defendant moves to strike out the complaint filed in this case on four grounds, all of them resolving, however, into the single proposition that the complaint discloses no cause of action.

From the complaint it appears that the plaintiff is one of four contractors on a building in the city of Trenton, known as Junior High School No. 3, and being erected by the board of education of that city. The contract awarded to the plaintiff was for the plumbing work. For the general construction work the C. J. Smith Construction Company was awarded the contract. The terms of each contract required that the work should be completed within one hundred and eighty eight-hour working days from and after the date of the contract. The plaintiff’s contract was executed on March 9th, 1923; that of the C. J. Smith Construction Company on February 24th, 1923. The remaining contracts in connection with the building are not relevant to the present controversy.

Paragraph 25 of the specifications, which are made part of the contract, provides that "if either party to this contract shall suffer damage by delay, then he shall be reimbursed by the other party for such damage.” The same paragraph provides further that "in order to receive credit for delays the contractor shall make and file with the architect a written claim for allowance of time on account of such delays caused him within twenty-four hours of the occurrence of the same; but the time will not be extended unless the claim is found to be reasonable and that the contractor is entitled to such allowance under the contract.”

The complaint then proceeds to'state that the architect, “then and there being the agent of the said defendants,” granted extensions of time to the O. J. Smith Construction Company, "whereby the plaintiff was wrongfully hindered and delayed in the prosecution of his work.”

We think a fair reading of the provision first above quoted evinces that it is intended to protect either party from the hindering acts of the other, and does not apply to delays provided for in the contract itself. If for illustration the board were unable to obtain title to the property or were unable to eject a tenant or were unable to comply with the terms .of the contract respecting the payment of money, all of these due to its acts or failures, and for which the defendant would be responsible, it would constitute delays to the opposite party which we think would fall within the plain intent and meaning of the contract. On the other hand, dela3>s that might occur as incident to the performance of the contract by the acts of other parties to it we think would not be within the purview of the provision quoted or available to the plaintiff as a ground for reimbursement for damages suffered. That this is so we think is self-evident from the results which would flow from the allowance of a claim such as here asserted. It is obvious that the defendant might be as greatly damaged by an extension of time to one of its contractors as is the plaintiff. Could it be said that the defendant, therefore, under the same provision would have a claim against the C. J. Smith Construction Company or more pertinently against the plaintiff himself under this clause? It would seem to us not. Such recriminatory claims could not have been in the contemplation of the parties. On the contrary, delays for which provision is made within the contract itself would be delays which all contracting parties would take into consideration and allow for in the making of the contracts themselves.

Assuming, therefore, that the delays contemplated by the section relied upon by the plaintiff cover only those which were occasioned by the acts of the other party to the contract, the question remains whether the extension accorded to the C. J. Smith Construction Company, and which as a result occasioned delaj to the plaintiff, was the act of the defendant. On this point we think there can be no element of doubt. While the complaint avers agency, in no part of the contract is the architect made the agent of either party. On the contrary, where he is authorized to act it is in the nature of an arbiter and he acts in a judicial capacity. The case is similar to that of Gerisch v. Herold, 82 N. J. L. 605, in which it was held that questions submitted to the architect for his decisions are so submitted to him in a judicial capacity and his findings are conclusive and binding on the parties. It cannot be contended that if the C. J. Smith Construction Company’s application for an extension of time had been resisted by the board of education that this would have been effective to preventsuch extension. It was to the architect standing neutrally between the parties that the right to determine the question was committed and to him alone. He could not be controlled in his decisions by either party.

In our view the complaint fails to exhibit a cause of action and the motion to strike out will therefore be allowed.


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    CHARLES H. WINTER, PLAINTIFF-APPELLEE, v. NORTH JERSEY BUS COMPANY, DEFENDANT-APPELLANT. GUSSIE PURDY, PLAINTIFF-APPELLEE, v. NORTH JERSEY BUS COMPANY, DEFENDANT-APPELLANT.
    Submitted May 14, 1926
    Decided December 23, 1926.
    Negligence — Motor Vehicle Collision With Motor Bus — Alleged That Driver of Bus was Not Defendant’s Agent, or that His Negligence Caused the Accident — Plaintiff’s Car was Following Bus, Which Suddenly, Without Warning, Turned to Left, Crossing Entire Road, Forcing Plaintiff’s Car Into Ditch, Causing Damage — Defendant Had Loaned Bus to Another Company For a Special Trip, but it was Being Driven by Defendant’s Driver, While the Other Company’s Employe was Aboard, Collecting Fares — Held, That Under the Circumstances it was a Question of Fact on the Relation of Master and Servant as well as on the Question of Negligence.
    On appeal from the Paterson District Court.
    Before Justices Kalisoh, Katzenbach and Lloyd.
    Eor the appellant, James M. Dunn.

    Eor the appellee, George Gold and William B. Gourley.

   Per Curiam.

The above-entitled cases were tried together in the Paterson District Court before the judge without a jury, and verdicts and judgments were rendered for both plaintiffs. The actions grew out of a collision on February 21st, 1925, at about six o’clock in the evening of that day between a Buick touring car, driven by the plaintiff Charles H. Winter, and the defendant’s bus. The judgment in favor of the plaintiff Winter was for damages to his car and for personal injuries, and to the plaintiff Purdy for injuries to her person and to her artificial teeth. From these judgments defendant appeals, and the two cases were argued together.

The grounds of appeal argued are that the court erroneously decided that the driver of the bus was the agent of the defendant and that his negligence caused the accident.

An examination of the evidence convinces us that the trial judge was justified in his findings in both respects. There was proof that the plaintiff Winter was driving some distance in the rear of the bus of the defendant company operated by its driver, and that suddenly without warning the driver of the bus slowed down and turned to the left, crossing the entire width of the road, and that in doing so the plaintiff in also turning to the left to avoid the bus was forced off the road, with the result that his car went into a ditch causing the damages for which the actions were brought. This was evidence of negligence and justified the court in so finding. Jackson v. Geiger, 100 N. J. L. 330.

It was also contended by the defendant that the bus at the time of the accident was in the use of, and under the control of, another company (the Paterson Eiverdale Company), a company wholly unconnected with the defendant. At the close of the plaintiff’s case it appeared that the bus was the property of the defendant and was being driven by its driver. The defendant’s proofs tended to show that at four o’clock of the afternoon of the day in question one James Farrell, of the Paterson Eiverdale Company, called up the president of the defendant company and asked for the loan of the bus to make the five-fifteen trip, and to this the president of the defendant said, “Yes, you can have it,” and said, “It ls up in the garage and the driver came down with it and I let him have it with the understanding that his driver should go along and collect the fares.” The driver did go along and there was proof both ways that the driver of the Paterson Riverdale Company who went along both did and did not direct the movements of the bus.

At the close of the plaintiffs’ case there was a presumption of law that the bus was in the possession and control of the defendant or its agent at the time of the accident (Mahan v. Walker, 97 N. J. L. 304; Tischler v. Steinholtz, 99 Id. 149), but it is contended by the appellant that the presumption thus existing was clearly overcome by uncontradicted proof which presented a situation where a motion for the direction of a verdict for the defendant should have been granted.

Assuming, without deciding, that the cases cited justify as a matter of law the view that the presumption can in any case be rebutted to such a degree that the question should become one of law for the court and not of fact, we think it clear that the proofs on behalf of the defendant did not meet this test. The request of the Paterson Riverdale Company was for the loan of its bus; nothing was said about the driver, but the chauffeur went with it. The loan of the bus was on condition that the driver of the Paterson Riverdale Company go along to collect fares, inferentially leaving the defendant’s servant, as such, to operate the bus. The chauffeur was then in the employ- of the defendant, presumably in its pay, and it is consistent with the proofs in the case that he continued in such relation at the time of the accident. Under these circumstances we think there was a question of fact on the relation of master and servant as well as on the question of negligence.

The judgments are affirmed.


author: Porter, J.

text:
    Bergen County Circuit Court.
    ROBERT A. ALTSCHULER, PLAINTIFF, v. CHARLES W. OWEN, DEFENDANT.
    Decided December 24, 1926.
    Attachment — Two Writs Issued Out of Different Courts and Levies Made on Different Property — Held, That While the Case Does Not Come Within Those Which Hold That While Different Writs May be Issued, Only One Suit Wii! be Allowed to go to Judgment and Only One Auditor Appointed, in That There are Here Different Courts and Different Property — There Seems No Reason For the Application of a Different Principle — Auditor Appointed in Senior Case Will Administer All the Property Levied Upon.
    In attachment. On petition of A. C. Keppler et al.
    Eor the petitioner, Sidney W. FIdridge.

    For the respondent, lies' B. Altschuler.

   Porter, J.

The facts -which were stipulated by counsel on this motion are, in part, as follows:

(1) Keppler & Company brought an attachment suit against Citarles W. Owen, an absconding and non-resident debtor, on August 3d, 1926. for $58,840.88. A writ was delivered to the sheriff of Bergen county on August 4th, 1926, returnable August 23d, 1926, whereupon he levied on certain residence property and contents. This writ was returned to the clerk of the Supreme Court by the sheriff on August 13th, 1926.

(2) On August 10th, 1926, an attachment suit was brought in the Bergen Connty Circuit Court against said Owen by Robert A. Altschuler for $5,512.50, and a writ of attachment issued on that date returnable on September 14th, 1926. Said writ was delivered to the sheriff on August 10th, 1926, and he levied on that date on twenty shares of stock of United Bond and Mortgage Company and a certificate of membership in Hackensack Golf Club, all standing in the name of the said defendant.

(3) An auditor was appointed by the Supreme Court on August 26th, 1926, and an auditor was appointed by the Circuit Court on September 14th, 1926.

(4) On August 26th, 1926, an alias writ of attachment was issued out of the Supreme Court in the Keppler suit aforesaid, directed to the sheriff of Bergen county, who thereunder, on August 31st, 1926, levied upon the twenty shares of stock of United Bond and Mortgage Company and the certificate of membership in Hackensack Golf Club aforesaid.

(5) On September 18th, 1926, a pluries writ of attachment was issued out of the Supreme Court in the Keppler suit aforesaid, directed to the sheriff of Bergen county, who thereunder, on October 8th, 1926, levied upon the twenty shares of stock of United Bond and Mortgage Company and the certificate of membership in Hackensack Golf Club aforesaid.

It seems settled under the decisions of this state that more than one writ of attachment may issue out of the same court against the same defendant at the suit of different plaintiffs, but that but one such suit be permitted to go to judgment and out one auditor shall be appointed.

The legislative intent was to conserve the property of an absent or absconding debtor for the benefit of the attaching and applying creditors; to take the property into the custody of the law and to administer it for that purpose. Harris v. Linnard, 9 N. J. L. 58; Cummins v. Blair, 18 Id. 151; Bruntdred v. Del Hoyo, 20 Id. 328; Brown v. Bissett, 21 Id. 46; Duffin v. Wolf, 21 Id. 475; Blatchford v. Conover, 40 N. J. Eq. 205; Woodward v. Lishman, 80 N. J. L. 586.

The case at bar, however, is distinguishable from all of the above-cited cases, in that the writs were not issued out of the same court and the property levied on was not the same. No ease is cited which covers this situation. Nor have I found any. In principle, however, I see no difference. The writ in the Supreme Court suit was issued and executed prior to the Circuit Court writ and is therefore the senior writ and should take precedence. This is so, notwithstanding the fact that different property was levied on under the original writs.

The auditor appointed by the Supreme Court in the Keppler suit should administer all of the property levied on for the benefit of the plaintiff in that suit and applying creditors thereunder as provided by statute.

The appointment of the auditor in the Altschuler Circuit Court suit should be set aside.

An order will be signed in accordance with these views.


author: Flannagan, J.

text:
    Essex County Court of Quarter Sessions.
    STATE OF NEW JERSEY v. ROY BLACK AND TWENTY OTHER PERSONS.
    Decided December 16, 1926.
    Evidence — Unreasonable Searches and Seizures — Defendants, Charged With Crime, Allege That Their Books and Records Were Taken as the Result of an Unreasonable Search and Seizure, and Move For Their Return — Court Reviews at Length the Federal and State Cases on This Subject, and Holds That Though the Books Were Seized by Unreasonable Search and Seizure, There is No Reason to Suppress Them as Evidence, That They are, Notwithstanding, Admissible.
    Eor the state, J. Victor D’Aloia.

    Eor the motion, William A. Wachenfeld and Harold Bimandl.

   Flannagan, J.

On the 4th day of October, 1926, certain county detectives, acting under the prosecutor of the pleas, arrested certain of the defendants at their respective places of business and there seized the minutes and other books in their possession of the “Federation of Kosher Butchers Association,” a corporation organized under the laws of New Jersey. The detectives held a warrant for the arrest of the defendants individually who stand indicted by the grand jury for conspiracy. Such books were in the defendants’ possession as recording and financial secretary, respectively, of such corporation.

The prosecutor of the pleas, who has possession of these books, proposes to use them on the trial of the indictment as evidence against the defendants tending to support such charge. The corporation now comes into court and moves by petition to prevent the use of such books as evidence by an order directing their return and prohibiting their use, on the ground that they were obtained by illegal search and seizure in violation of paragraph 6 of article 1 of the constitution of the State of New Jersey.

The essence of the application is to prevent the use of the books as .evidence. If possession of the books were the only object sought, resort could and would be had to the usual means of recovering personal property wrongfully taken or held and no excuse for proceedings by motion in a criminal court could be found.

Testimony was taken upon the motion and an issue of fact raised, but assuming for the moment that petitioner has the necessary standing to move in this action and that the books were seized by unreasonable search and seizure in violation of the constitutional provision, the question still remains as to whether the petitioner is entitled to an order directing their return and for their suppression as evidence herein.

The petitioner cites in support of its motion cases decided by the United States Supreme Court, all of which taken together establish that under the provisions of the fourth amendment of the United States constitution against unreasonable searches and seizures, the federal court will, on motion before trial, order the return and suppression as evidence of books and papers of a private corporation seized by an officer of the government by unreasonable search and seizure; and, further, will, on the trial, without any motion previous to the trial, exclude them as evidence if it appears uncontradiefed by the testimony tha t they were so obtained; and, further, that evidence once obtained by the government by unreasonable search and seizure must remain effectively suppressed against any further subpoena or search warrant unless such subpoena or search warrant is based upon evidence obtained independently of the articles ordered returned or the information illegally obtained, oven though holding that no privilege attaches to books and papers of a private corporation under the fifth amendment against self-incrimination either in favor of the corporation or the officers thereof or in favor of an officer having acquired personal ownership thereof. Silverthorn Lumber Co. v. United States, 251 U. S. 385; Wheeler v. United States, 226 Id. 478 (489); Wilson v. United States, 221 Id. 361 (385); Grant v. United States, 227 Id. 74 (79, 80); Agnello v. United States, 269 Id. 20.

It goes without saying that the provisions of the constitution of this state against unreasonable searches and seizures must and will be respected and enforced hy the courts of this state ahd hy appropriate legislation if any be needed. The only question now to be determined is, Has the particular practice adopted by the federal courts of enforcing the provisions of the federal constitution by indirection, through motion and order thereon suppressing evidence tending to prove the defendants guilty of crime, been adopted hy the courts of this state generally to enforce a corresponding provision of the state constitution, and will this practice be adopted by this court? This course of the federal courts involves the creation of a new exception to the general rule of evidence that books and chattels illegally obtained will, notwithstanding, be received in evidence if evidential per se, and the adoption of a new practice of adjudging the right to possession to personal property on a motion and ordering, its delivery thereon.

It will be observed that the result of such practice is not to punish the individual who has violated the constitutional provision hy making an unreasonable search and seizure, but to shield the criminal and penalize the people of the state by suppressing evidence tending to prove an offense “against its peace and dignity.”

The practice is, and must patently be applied, without reference to the guilt or innocence of the defendant or the character of the article seized. “It extends to all equally— to those justly suspected or accused as well as to the innocent.” Agnello v. United States, supra. It has been suggested that there is a distinction to be drawn between seized articles which are, apparently, contraband on inspection, like a blackjack, and hooks which are on their face innocent, though this distinction is seemingly not recognized in the Agnello case. Whether a thing is innocent or not must depend upon the circumstances in its possession. If the doctrine applies to one class of incriminating evidence it must apply to another, if it covers books and papers it covers burglars’ tools, narcotics and infernal machines. If the unreasonable search and seizure is what condemns it, I can see no distinction in principle between the seizure of a blackjack and the seizure of books; either may be innocent in themselves and lawfully possessed, depending upon the circumstances of the particular case. The one may be kept innocently in the home as a weapon of protection against robbery, and the other in the office as a record of ordinary business transactions. Either may be possessed as instrumentalities in accomplishing a criminal purpose.

The whole subject is very fully and ably considered by Professor Wigmore; the authorities, state and federal, reviewed, and the practice in the federal courts vigorously attacked as a new and unwarranted innovation in the law of evidence. In commenting upon this method of enforcing the constitution as enunciated by the Supreme Court, this distinguished author condemns it as “indirect and unnatural,” and says:

“The natural way to do justice here would be to enforce the splendid and healthy principle of the fourth amendment directly, i. e., by sending for the high-handed, over-zealous marshal who had searched without a warrant, imposing a thirty-day imprisonment for his contempt of the constitution and then proceed to affirm the sentence of the convicted criminal. But the proposed indirect and unnatural method is as follows: Titus, you have been found guilty of conducting a lottery; Flavius, you have confessedly violated the constitution. Titus ought to suffer imprisonment for the crime, and Flavins for contempt. But, no! We shall let you both go free. We shall not pnnish Flavius directly, but shall do so by reversing Titus’ conviction. This is our way of teaching people like Flavius to behave, and of teaching people like Titns to behave, and, incidentally, of securing respect for the constitution. Our way of upholding the constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else.” See 4 Wigm. Ev. (2d ed.). §§ 2183, 2184, 22596 and 2264.

The fourth and fifth amendments of the United States constitution have no application to state courts; they are limitations upon federal power alone, and rules of evidence and practice established in federal courts to enforce their provisions have no binding effect on state courts.

Decisions in the courts of many of the states adhere to the view supported by Professor Wigmore as opposed to that adopted by the federal courts. In People v. Defore, 242 N. Y. 13, Judge Cardoza (now elected Chief Judge), in a very learned and able opinion, says that the federal doctrine has been adopted in fourteen states and rejected in thirty-one. He reviews the authorities fully and with the unanimous concurrence of the court rejects the federal view.

See People v. Defore, supra, and eases there cited from the various states.

The administration of the law in New Jersey has always been practical and never over-sensitive to shield an accused. Where an accused on trial remains silent and does not take the stand and contradict evidence of facts adduced against him which he could deny, the judge may comment upon his failure to do so instead of sitting in impotent silence. Parker v. State, 61 N. J. L. 313; 62 Id. 801; State v. Howard, 83 Id. 638; State v. Twinning, 73 Id. 691; State v. Schlosser, 85 Id. 165; 86 Id. 374; State v. DiBeneditto, 82 Id. 171; State v. Callahan, 76 Id. 427; State v. Wines, 65 Id. 31; State v. Bien, 95 Id. 474; State v. Schilling, 112 Atl. Rep. 405; State v. Kisik, 2 N. J. Adv. R. 1036. And the judge also has the right in New Jersey to express his opinion on the guilt or innocence of an accused so long as he makes it appear that the jury is the ultimate judge of the facts. Indeed, it is held sometimes to be the duty of the judge to give the jury the benefit of his experience by an expression of his opinion on the facts. State v. Bien, supra; State v. Schilling, 112 Atl. Rep. 403; State v. Randell, 95 N. J. L. 452; State v. Lesson, 3 N. J. Mis. R. 970; State v. Schuyler, 75 N. J. L. 487; State v. Hummer, 73 Id. 714; State v. Pulley, 82 Id. 579; State v. Dracone, 1 N. J. Adv. R. 1490 ; State v. Kashkevich, 1 Id. 488; State v. Warrody, 77 N. J. L. 348; State v. Overton, 85 Id. 287. And this state has also long ago adopted the rule that writings obtained illegally are nevertheless admissible in evidence.

In State v. McQueen, 69 N. J. L. 522 (528), Mr. Justice Mahlon Pitney, speaking for the State Supreme Court, says: “As to the mode in which the document now in question was obtained, it is very generally held that papers unlawfully procured, even by means of unjustifiable search and seizure, are nevertheless admissible if evidential per se.”

(It is worthy of note that Mr. Justice Pitney, having subsequently become a justice of the United States Supreme Court, dissented in the Silverthorn Lumber Co. case cited above.)

In State v. Gould, 1 N. J. Adv. R. 1238, Chief Justice G-ummere, speaking for the Supreme Court (Justices Minturn and Black sitting with him), says:

“The argument was that in permitting the shoes obtained in the way recited to be submitted as evidence to the jury, the defendant’s constitutional right to be protected against unreasonable search and seizure was violated. But conceding for the purpose of deciding the point raised, that the taking of the shoes was an unlawful invasion of defendant’s constitutional right, that fact was no bar to the admission in evidence of these articles. As was stated by Mr. Justice Pitney, writing for this court in State v. McQueen, 69 N. J. L. 522, 528, fit is * * * generally held that papers [and other articles] unlawfully procured, even by means of an unjustifiable search or seizure, are nevertheless admissible if evidential per se.’ And this principle was re-asserted by this court in the case of State v. Lyons, decided at our last November term. The last reason argued is that the court, in a proceeding had before the trial, refused to order the return of this pair of shoes to the defendant upon an application made for that purpose. Such refusal, however, cannot vitiate the conviction even if the judicial action was erroneous.”

In State v. King, 4 N. J. Mis. R. 218, the Supreme Court (Justices Trenchard, Katzenbach and Lloyd sitting), says:

“Assuming, however, liquor was taken in the raid and the raid was made without a search warrant, these facts do not warrant a trial judge in refusing to admit in evidence the liquor taken. A person is only protected from testimonial compulsion; that is, from the extortion of unwilling confessions or declarations implicating him in crime. Chattels obtained from a person’s control without the use of process against him as a witness may be used, evidentially, for the proof of their identity, or other circumstances affecting them, must be made by others without the employment of the accused’s oath. Wigm. Ev., § 2264. In State v. Krinski, 62 Atl. Rep. 37; 78 Vt. 162, it was held by the Supreme Court of Vermont that in a prosecution for keeping for sale intoxicating liquors without a license, it was proper to admit in evidence liquors which had been seized, irrespective of the legality of the warrant. The provisions of the federal constitution regarding unreasonable searches and seizures are not limitations upon state powers. Section 6 of article 1 of the New Jersey state constitution protects persons and property only against unreasonable searches and seizures. In view of the evidence which the state possessed of the character of the place prior to the raid, it cannot well be said, in our opinion, that the seizure of the liquor found in the place was in any sense unreasonable. The admission of the liquor seized in evidence was not error.”

In State v. Lyons the Court of Errors and Appeals unanimously affirmed the Supreme Court (1 N. J. Mis. R. 15), for the reasons stated in its opinion below. The Supreme Court (Justices Kalisch, Black and Katzenbach sitting) says in such opinion:

“The trial court undoubtedly thought that the objection was the same as previously made, viz., that the exhibit was not admissible because taken without a search warrant. It has been settled in this state in the case of State v. McQueen, 69 N. J. L. 522, that papers unlawfully procured by an unjustifiable search and seizure are admissible in evidence if evidential per se.”

If this language is to be taken to mean what it says, then these eases show that the rule is settled in New Jersey that articles evidential per se, though it appear on the trial that they were obtained by unreasonable search and seizure, are admissible in evidence notwithstanding. The established New Jersey rule cannot be harmonized with the federal court rule, for the federal court holds that if the unconstitutional character of the seizure appear uncontradicted upon the trial it is reversible error to have admitted the evidence. Agnello v. United States, supra.

It only remains to consider whether in N ew Jersey a different situation would arise if a motion to suppress be made before the trial.

If the court on a trial is not called upon to suppress evidence when it is assumed that it was obtained by unreasonable search and seizure, why should it do so on a motion before trial when it appears that it was so seized?

It is claimed that such a practice has already been established. If so, it is in conflict with the cases already cited. But no such practice has been established in this state.

There is no statute in New Jersey authorizing the court on a motion to adjudicate the right to possession of personal property and to order returned such property alleged to have been illegally seized. Nor is there a single decision in the courts of our state where property has been, on motion, ordered returned because seized by unlawful search and seizure, or evidence illegally obtained suppressed on motion to do so. The attempt has been made a number of times, but in every instance the motion has been denied; and while language favorable to petitioner’s present contention has been used it is all obiter dicta.

In State v. Mausert, 88 N. J. L. 286, it could be inferred from the language of the opinion that if there had been an unreasonable search and seizure it would have been the duty of the trial court to order a return of the book illegally seized, but the court does not say so, and it was not necessary to decide the question as the decision was placed on the ground that there was no unreasonable search and seizure. If there was no unreasonable search and seizure it was unnecessary to decide what would have been done had there been one.

In State v. Gilberson, 99 N. J. L. 85, the decision was also on the ground that there was no unreasonable search and seizure, but on the contrary that the search and seizure was with the defendant’s consent.

The case of State v. Condon, 40 N. J. L. J. 293, was one in Middlesex Oyer and Terminer, and the decision was also placed on the ground that the search and seizure was not unreasonable but was by consent. In this case the language strongly supports petitioner’s contention, but as it appeared that the search and seizure was by consent it was not necessary to decide what would have been done had it been unreasonable and illegal.

I conclude that if the books were seized by unreasonable search and seizure this does not constitute a reason to suppress them. They are,, notwithstanding, admissible in evidence. In so far as the motion asks for the recovery of their possession, a remedy is invoked which does not exist by motion in the courts of this state. The motion will therefore be denied.

The defendants from whose custody the books were taken testified on the motion, but they do not say they made any protest, objection or opposition at the time, or that any promise was made or threat or force used, but they say that a misrepresentation was made. They say that detective Slut-sky stated, “We have a warrant for you and the books,” and thereupon arrested them and took the books. Detective Slutsky had no warrant for the books, and I am unable to accept the statement that he made any such deliberate and false representation. However, having decided the motion on the legal questions involved, it is not necessary to make any decision on the facts.


text:
    NICHOLAS J. CURTIS, PLAINTIFF, v. NICHOLAS J. PAPPAS AND HELEN N. PAPPAS, PARTNERS, TRADING UNDER THE NAME AND STYLE OF THE PAPPAS SEA FOOD RESTAURANT, AND, IN THE ALTERNATIVE, NICHOLAS J. PAPPAS, INDIVIDUALLY, AND HELEN N. PAPPAS. INDIVIDUALLY, DEFENDANTS.
    Argued May 4, 1926
    Decided November 11, 1926.
    District Courts — Appeals—Plaintiff Petitions For Mandamus to Review Judgment of District Court — Statute Outlines Procedure When Suitor Feels Himself Aggrieved — Supreme Court Has No Power to Depart From Procedure Fixed by Legislature — An Appeal is the Only Course.
    On application for writ of mandamus.

    Before Justices Kajusch and Katzenbach.

      Pro se, Nicholas J. Curtis.

    For the defendants, William Rosenlcranz.

   Per Curiam.

Nicholas J. Curtis, acting for himself, has presented to this court a petition in which he asks that a writ of mandamus be allowed by this court to review a judgment of the District Court of the city of Paterson rendered in a suit instituted by him against Nicholas J. Pappas and Helen N. Pappas. From a reading of the petition it appears that on October 19th, 1925, the petitioner instituted in said court a suit against Nicholas J. Pappas and Helen N. Pappas to recover wages which the petitioner claimed were owing him by the defendants. The amount claimed was $347.92. The petitioner claimed that he was to be paid a regular wage of $25 per week, and for any overtime at the rate of twenty-nine cents per hour.

On. December 14th, 1925, the District Court of the city of Paterson tried the case. The petitioner offers in this proceeding affidavits as to what was testified to by the witnesses which he produced at that trial. Judgment was given by the District Court in favor of the petitioner for $43.75; with the amount of the judgment the petitioner was dissatisfied. On December 17th, 1925, he filed exceptions to the rulings of the court. An attorney-at-law had conducted for him the trial. In the matter of filing the exceptions the petitioner acted for himself. The petitioner later applied to Mr. Justice Black for a writ of certiorari. Mr. Justice Black returned to the petitioner the papers submitted with a letter stating that if the'petitioner desired to review the judgment of the District Court he should do so by appeal.

The petitioner has taken no action by appeal to have the judgment reviewed. The statute outlines the procedure to be followed where a party feels himself aggrieved by a judgment of a District Court. In such cases the legislature designates the practice to be followed. This court has not the power to depart from the procedure fixed by the legislature. Appeals from judgments of District Courts must be made in conformity with the statutes respecting appeals. The petitioner seeks to explain his conduct in the present ease by stating that he did not know the law in this respect. This is not a sufficient excuse for his failure. He is presumed to know the law. We regret that the petitioner did not take personally or by his attorney the proper steps to review the judgment. We feel, however, that we cannot depart from the statutory provisions regarding appeals by granting the mandamus asked for by the petitioner to review the judgment of the District Court.

The petition is dismissed.


text:
    JOSEPH CONTRAS, RELATOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY ET AL., DEFENDANTS.
    Argued October term, 1926
    Decided December 30, 1926.
    Zoning — Erection of Garage in Place of a Shed — Alleged That the Fire Hazard Would be Increased — Demurrer to Return— Statement in Demurrer Denying Truth of Alleged Facts Not Considered — Mandamus Refused.
    On mandamus. On demurrer to return.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    For the relator, John Milton.

      Contra, Thomas J. Brogan and Charles Hershenstein.

   Per Curiam.

The relator is the owner of property on St. Paul’s avenue, in Jersey City, the tract being seventy-five feet front and one hundred feet deep. On it there is erected a one-story frame shed, which he had been using as a combination stable and garage, in connection with his business. He applied to the building commission for authority to remove the shed, and to erect upon the property a one-story public garage. This application was denied by the commission, and he then appealed to the board of commissioners of Jersey City, who sustained the refusal. Thereupon, he applied for and obtained an alternative writ of mandamus.

In the return to the writ, the defendants justified the action of the board of commissioners “upon the ground that the erection of the contemplated garage by the relator will increase the fire hazard in the locality where the building is proposed to be erected or alteration made.” The relator demurred to this return, stating that he did not admit the truth of the allegations contained therein, but asserting that they are insufficient in law to justify the defendants in refusing to grant the permit.

The .statement in the demurrer that the relator does not admit the truth of the facts alleged ought'not to be considered, since the very function of the demurrer is to determine whether the facts set forth in the pleading demurred to afford legal justification for the action of the parties against whom the demurrer is filed. If the relator desired to controvert the facts set out in the return, it was incumbent upon him to file a replication thereto, and thus present an issue of fact to be determined by testimony pro and con, under the familiar rules of common law pleading. 22 R. C. L. 712, and cases; Bonynge v. Frank, 89 N. J. L. 240.

Assuming, as we must, in the present state of the pleadings that the erection of the contemplated building would tend to increase the fire hazard to the detriment of the community, we think that the refusal to grant the permit, under such circumstances, is within the police power of the municipality, and conclude that a peremptory writ of mandamus should be refused.


text:
    JERSEY LAND COMPANY, A CORPORATION, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, ET AL.
    Argued October term, 1926
    Decided December 30, 1926.
    Zoning — Erection of Large Public Garage — Under Norma! Conditions the Right to Erect a Private Garage is Undoubted and Perhaps Also a Public Garage — This Case on the Border Line and Writ Denied.
    On application for peremptory writ of mandamus.

    Before Gum mere, Grief Justice, and Justices Trenuhard and M intern.
    For the relator, Leber & liuback.

    For the respondents, Walter O. Ellis.

   Per Curiam.

The practical question propounded by this application is whether a peremptory writ of mandamus should go to compel the city to issue a permit for the erection of a large public garage building, designed to accommodate sixty automobiles, to be used by the general public, having an entrance on Park ¿venue, in East Orange, in view of the fact that the entrance is on a grade and two hundred and thirty-eight feet from the largest grammar school i n the city.

Under normal conditions the right to erect a private garage is undoubted, and perhaps a public garage may be justified, yet this case is on the border line, and the denial of the city to grant the permit is well within the exercise of the police power of the city.

It is settled in this state that a municipality has a right by ordinance to prohibit the erection of a garage within a certain number of feet of certain congested centers occupied by churches, schools, and the like, and this, it seems to us, is what has practically been done by the ordinance in question. The city has been divided into districts, and in certain districts, apparently, for police and sanitary reasons the erection of a public garage is prohibited.

In Hench v. East Orange, 2 N. J. Mis. R. 510, we declare that the presumption is that such a zoning ordinance is within the police power, and the burden is on the property owner to show the contrary; and quite recently that rule was applied to the ordinance in question, in the case of Long v. Scott, 4 Id. 587, where the same prohibition was laid against vacant land, and it was declared that the burden was on the relator to show that the provision in question was not reasonable.

In the case of Portnof v. Bigelow, 4 N. J. Mis. R. 539, this court refused to permit a public garage in a residential district, saying: “We are unable to perceive anything unreasonable about forbidding a large public garage in the midst of a continuous block of closely-built dwelling-houses. How much stronger is the present case in its ground for refusal, in the known built-up character of'the residence district, the proximity of school houses to the relator’s land, and the physical division of Park avenue as a street.”

We think these adjudications sufficiently declare the governing legal principle, and clarify the situation presented by the facts in this case, to warrant the denial of the writ.

Such will be the rule.


text:
    ETHEL DUNBADEN ET AL. v. CASTLES ICE CREAM COMPANY ET AL. CLARA PAQUIN, BY NEXT FRIEND, v. CASTLES ICE CREAM COMPANY ET AL.
    Argued October term, 1926
    Decided December 30, 1926.
    Negligence — Injury Through Motor Vehicle Collision — Only Question was One of Excessive Damages Awarded Plaintiff— Held, Considering the Permanent Scar, the Award was Not Excessive.
    On rules to show cause.
    Before Gummebe, Chief Justice, and Justices Teenohaed and Musttubn.
    For the rule, Kellogg & Chance.

      Conira, Frank W. Heilenday.

   Per Curiam.

A car belonging to the Castles Ice Cream Company was being driven by the defendant Grundman in a northerly direction on St. George avenue, in the city of Rahway. Behind this car, and proceeding in the same direction, was a Ford sedan, in which the plaintiffs were proceeding. Traveling in the opposite direction was another car belonging to the defendant Newman. As frequently happens in such situations, these cars came together, and as a result of the collision each of the plaintiffs were injured. The jury awarded the plaintiffs Ethel Dunbaden, $650; Alva Dunbaden, her husband, $500, and Clara Paquin, $2,500.

The rules to show cause, for some reason not apparent, reserved all exceptions, and the only contention made before us is that the verdict in the Clara Paquin case was excessive. She had a bad cut on her right eye, which had to be sewed up, and which has left a scar, more or less disfiguring. One of her hands was cut and had to be bandaged for some weeks. She was bruised on her left side and suffered pain therefrom for about two months. Her nose was cut and she was confined to her bed for about ten- days. She had to remain away from work for two weeks, .and the next five weeks she went to the office with her face and hand bandaged. Considering the fact that she was an attractive young woman, and that the scar over her eye will result in a permanent disfigurement, it cannot be said that the verdict is unreasonable. Lloyd v. Breslin, 3 N. J. Mis. R. 507.

The amounts of the other verdicts are not criticised, and we think, therefore, the rules should be discharged.


text:
    RICHARD MARTIN v. ORIENT INSURANCE COMPANY.
    Argued October term, 1926
    Decided December 30, 1926.
    Insurance — iFire—No Breach of Warranty in Description — Jury Justified in Finding That on the Lots in Question Were Situated a Dwelling and a Dance Hall — No Misdescription of Property — Verdict Not Against Weight of Evidence.
    On rule to show cause, Monmouth Circuit.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    Por the rule, Arthur T. Vanderbilt.

      Contra, Charles B. Coolc.

   Per Curiam.

The action was tried before the court and jury in the Monmouth Circuit, and a verdict was rendered for the plaintiff for $2,000.

The action was brought, to recover the face value oí a fire insurance policy, originally covering household furniture, in a dwelling situated in Asbury Park, and later by a removal rider, "transferred to cover in the frame dwelling situated at 663 and 664 Brookside avenue, West Deal.”

The plaintiff’s evidence was that he sent his wife to effect the change in the coverage, and that he was without the benefit of street numbers as to the new location; that his wife submitted the title deed of the premises to defendant’s agent, and that the agent copied the lot numbers 663 and 664 Brookside avenue on the removal rider; that the policy was then returned to plaintiff with transfer endorsed thereon, together with a check of eighty cents for returned premium.

The defendant’s first point is that there was error in the refusal of the motions for a nonsuit, and for a direction, on the ground of a breach of warranty in the description, and the use of the premises containing the goods; the contention being that the coverage was actually in a frame dwelling, whereas the property destroyed was contained in a. combined dwelling and dance hall.

The jury were justified in finding under the evidence that on the lots 663 and 664 Brookside avenue there was situated a dwelling and a dance hall, the latter having been built at a later date than the former; that the structures were separate, with independent roofs, and an eighteen to twenty-four-inch alley between them, and that the furniture insured was all contained in the dwelling.

Under this point the defendant also argues that there was a misdescription of location, in that the rider described the furniture as contained in a dwelling-house located on two lots, 663 and 664 Brookside avenue, whereas, in fact, the dwelling was on lot 663 only. The legal rule is settled that "if the property is otherwise sufficiently indentified, or casting out what is false in the description, there is still enough left to clearly point out the place where the property is, a misdescription as to location will not avoid the policy.” 26 Corp. Jur. 164, § 203, and cases cited.

The legal correctness of part of the charge is made the basis of the next point. The defendant sets up as separate defense — (1) breach of warranty; (2) material misrepresentation; (3) fraudulent representation; all being directed to the description, use and location of the property.

What was charged by the court in relation to alleged fraudulent representations is criticised as not being correct in connection with the defense of breach of warranty. • The defendant submitted various requests fully covering these three defenses, all of which are fully charged by the court. The contention, therefore, is manifestly without merit.

It is finally urged that the verdict is against the weight of the evidence, on the question whether the structure containing the insured goods was a dwelling or a combined dwelling and dance hall. This contention, obviously, is disposed of by what has been stated with reference to the previous contentions supplemented by the fact that the defendant offered no witnesses in support of the contention.

The rule will be discharged.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CHARLES A. SISCO, PETITIONER, v. BENJAMIN EASTWOOD COMPANY, RESPONDENT.
    Alleged Injury to Wrist of Petitioner — Treated For Injury and Returned to Work in Two Days — Afterward Laid Off — Claim of Respondent That the Permanent Injury Now Complained of was Not Received In Course of Employment.
    On petition for compensation. On determination and rule for judgment of dismissal.
   ❖ ❖ # $ $ $ $ #

The petitioner contended that on January 5th, 1926, about eight-thirty a. ai ., his left wrist was caught in the belt of a machine; that he reported at once to the office and was sent to Ur. Neer, who had X-rays taken that day; that he returned to work about two days thereafter and continued until he was laid off at the office. He complained of his wrist having swollen since; inability to do heavy lifting as formerly, and that he had been to Dr. Neer for some treatment. It further appeared that he admitted fracturing both wrists and elbow five years ago-, taking an examination at the Paterson fire department, falling from a ladder. The wrist in question was broken at that time.

Dr. William Neer, called as a witness by petitioner, testified that Sisco was sent to him on December 23d, 1925, giving history of injury to left wrist. Examination disclosed a sprain of left wrist. He sent him to Dr. Golding for X-ray, and the findings indicated an old colies fracture of left wrist. Fracture had healed with lower fragment tilted backward, resulting in permanent silver fork deformity; no evidence of recent fracture or dislocation. The doctor described the treatments he rendered, stating that the effect of the sprain was slight; that the man was working and it was his opinion that he did not have any disability, temporary or permanent, as a result of this injury. He did have an old fracture which was not caused at this time.

The respondent produced the testimony of Dr. Golding, who took the X-ray; Dr. Clay; Mr. Whitmore, foreman, and Mr. O’Herne, payroll man. Without commenting in detail upon their testimony, I am satisfied from the evidence that claimant has not and did not sustain the burden required of him to prove a compensable injury, as claimed. The unrefuted medical evidence indicates an old fracture of the wrist, not caused <?r aggravated by this alleged, described occurrence, and the effect of the present claimed injury was that of a mild sprain which would not and did not interfere with his vocational activities. I have also given due consideration to Dr. Clay’s testimony and that of the other witnesses produced by respondent, and upon the evidence presented, I am impelled to the conclusion that the claim is not sustained and the petition should he dismissed.

ífc sfs ífí % t{: ¡}i Hi

Harry J. Goas, Deputy Commissioner.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor Workmen’s Compensation Bureau.
    ELLA MARTIN, PETITIONER, v. EDWARD O. BELAIS, RESPONDENT.
    Casual Employment — Petitioner was Injured While Engaged Only to Dust and Arrange Respondent’s Summer Home For Occupancy — Held, Not Compensatable.
    On summary of facts, opinion and determination.
    Eor the petitioner, Francis L. Stone.

    For the respondent, Langdon F. Morris.

      SUMMARY OF FACTS.
    The respondent resides in New York City and owns a summer residence at West Long Branch, New Jersey. In April or May, 1925, respondent’s wife entered into correspondence with one Emil Johnson, of West Long Branch, for the purpose of having Johnson’s wife dust and arrange for occupancy several rooms in respondent’s summer home, prior to the arrival of respondent and his wife for the summer. Johnson’s wife, being otherwise employed, at the request of respondent’s wife, Johnson secured the services of the petitioner for the purposes stated. On May 20th, 1925, petitioner went to respondent’s house and commenced to dust and clean up. While removing some dirt from the rear of 'the house, in descending the steps of the rear porch, her shoe was caught in the bottom step by reason of its springing down under her weight, and she was pitched forward, breaking her left ankle and receiving other injuries.
   OPINTOisT.

Petitioner was not performing any service in connection with her employer’s business, but was doing a number of specified things as a domestic. This being the case, the question is whether the service being performed comes within the exception of casual employment of paragraph 23 (c) of the Compensation law. Pamph. L. 1919, p. 211. The act defines casual employment, if not in connection with any business of the employer, as employment not regular, periodic or recurring.

It is obvious that the employment was not regular, as the petitioner was engaged not for any definite period, but merely to do certain specified acts which required only a few hours for their accomplishment. Furthermore, petitioner and respondent never met, or agreed upon the compensation to be paid for the services, and there is no suggestion that the petitioner’s services were anything more than temporary, or to be continued in any capacity.

Work of the nature of dusting and setting a house to rights for occupancy is in its essence not periodic. Successive cleanings and dusting after a house is occupied are of totally different nature, and at the most it can only be said that the employment is to be repeated or recur after a period of one year. Assuming that a house is occupied as a summer residence, it does not follow that the same services will be repeated each year, and even if it should be repeated, I am of the opinion that the services are too far separated and too remotely connected as to fall within the statutory definition of periodic or recurring.

Accordingly, I find that the employment of the petitioner was casual, and that the petitioner is not such employe within the. statute as will entitle her to compensation for her injuries.

;¡; :¡: *

W. E. Stubbs, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    MIKE KULICK, PETITIONER, v. E. I. DU PONT DE NEMOURS AND COMPANY, RESPONDENT.
    Alleged Permanent Injury to Toe and Back Through Contact With a Falling Carboy — Respondent Claims Injury was Temporary Only, Which was Treated in Respondent’s Hospital, and That Petitioner Returned to Work For Several Weeks— Held, That it is Not Shown That Permanent Injury was Received During the Course of Employment.
    On determination of facts and judgment.
    Eor the petitioner, Max Kummell and David Roslcein.

    Eor the respondent, Abel Klaw.

   The facts in this case show that the petitioner, Mike Kuliek, was in the employ of the respondent on January 13th, 1926, at the respondent’s plant, located at 256 Yanderpool street, Newark, New Jersey, at the rate of twenty-live dollars and eighty cents ($25.80) per week; that from the petitioner’s testimony he sustained an accidental injury on January 13th, 1926, resulting from the falling of a carboy which he was handling in the course of his employment; that ho immediately went to the plant hospital where he received first aid treatment and then returned to work.

That he received medical treatment on the day following the injury, and on January 15th, 1926; that he continued to work for the respondent until April 6th, 1926, when on account of his injuries he was compelled to cease work.

The petitioner testified that as a result of the injury he sustained a permanent disability to the great toe of Ms left foot and a sacro-illiac strain; that the injury to. his back resulting from a wrenched back which followed his attempt to avoid being hit by the carboy.

The petitioner produced medical testimony tending to substantiate his contention that he is at present suffering from a sacro-illiac strain, and that the condition is directly traceable to the accident.

The respondent did not deny the occurrence of the accident, but contended that the same resulted merely in an injury to the petitioner’s great toe of his left foot.

Physicians produced by the petitioner estimated his present permanent disability to be twenty per cent, of total permanent.

The petitioner then rested his case.

The respondent produced the supervisor and subsupervisor under whom the petitioner worked, who testified that the injury resulted merely in a laceration of the great toe of the petitioner’s left foot, and respondent also produced the records from the plant indicating that the petitioner had worked from the date of the accident until April 6th, 1926, without any complaint as to an injury to his back. The respondent also produced several physicians who testified that in their opinion the petitioner has suffered no permanent disability as a result of the accident, and an X-ray expert produced by the respondent testified that he had made X-ray plates of the petitioner and could find no disability disclosed therein.

After considering all of the testimony presented in the case, I have come to the conclusion that the petitioner could not have sustained an injury to his back in the manner in which he has described the occurrence of the accident, and I am very satisfied, from the medical testimony, that the petitioner is not at this time suffering from any disability resulting from the accident. The respondent offered in evidence a statement signed by the petitioner in which he made application for an informal hearing before this bureau prior to May 11th, 1926, wherein no claim is made for an injury to the petitioner’s back.

The petitioner has failed to satisfy me that he received an injury to his back while in the course of his employment with the respondent, and has failed to satisfy me that he has any permanent disability resulting from the accident.

Harry J. Goas, Deputy Commissioner.


text:
    MARY NELSON AND AUGUST NELSON, PLAINTIFFS, v. PUBLIC SERVICE TRANSPORTATION COMPANY, A CORPORATION, AND THEODORE GOMBERG, DEFENDANTS.
    Argued May 5, 1926
    Decided November 11, 1926
    Filed January 15, 1927.
    Negligence — Injury to Passenger of Motor Bus in Collision With Another Motor Car — Plaintiff Asks For Rule to Show Cause Because of Smallness of Verdict — Testimony Considered, and Held, That There is No Reason to Believe That the Verdict Rendered Displayed Passion or Prejudice.
    On plaintiffs’ rule to show cause.
    Before Justices Kamsch and Katzenbach.
    For the plaintiffs, Aaron A. Melniker.

    For the defendants, Schneider & Schneider (Jacob Schneider, on the brief).
   Per Curiam.

This case is before this court upon a plaintiff’s rule to show cause. The action was instituted by the plaintiffs to recover damages arising from an injury alleged to have been received by the plaintiff Mary Nelson, when a passenger in a bus of the Public Service Transportation Company. The bus of the transportation company collided with an automobile belonging to one Theodore Gomberg. Mrs. Nelson, after the collision, was treated by two physicians. She complained of an injury to her arm. The plaintiffs did not claim that the injury was permanent. No bone was broken. The chief item of damages was based upon the claim that the injury to Mrs. Nelson prevented her from keeping boarders.

The plaintiffs, so far as damages were concerned, relied solely upon their testimony. The two physicians who attended Mrs. Nelson were not called by the plaintiffs as witnesses. The testimony disclosed that Mrs. Nelson had been operated upon prior to the accident for a tumor. She had also given, some years before, premature birth to a child. She had been in another bus accident shortly before the accident out of which the present litigation arose.

The defendants called two physicians who testified that they had examined Mrs. Nelson. One of the physicians who testified stated that his examination had been made eleven or twelve days after the accident, and the only objective condition she had was a slight discoloration of the right arm. The other symptoms were subjective. The other physician examined Mrs. Nelson between six and seven months after the accident and testified that he found nothing to indicate any physical injury or any organic or nervous condition. The jury returned a verdict in favor of Mrs. 'Nelson for $75 and for Mr. Nelson of $25. These verdicts are small. We cannot, however, say that the amounts of the verdicts are not supported by the testimony. The plaintiffs did not call the physicians who had attended Mrs. Nelson immediately after the accident. The jury had the right to infer that they were not called because if called they would not testify favorably to the plaintiffs on the subject of Mrs. Nelson’s injury.

The claim for damages by reason of inability to keep boarders was minimized by the fact that the woman who had been hired to do housework after the accident was an aunt of Mrs. Nelson, and that help had been hired by Mrs. Nelson prior to the accident. Her mother also had aided her in this work.

The testimony with reference to the expenses incurred by Mr. Nelson was meagre and uncorroborated. The testimony given by the physicians called by the defendant was positive that they had found as a result of their examination no objective condition of injury to the arm of Mrs. Nelson except a slight discoloration.

Erom these facts we cannot say that the verdicts rendered display any passion or prejudice on the part of the jury against the plaintiffs. They appear to have been justified by the evidence adduced. The rule to show cause is discharged.


text:
    ALBERTA C. LOGAN, PLAINTIFF-RESPONDENT, v. AMERICAN RAILWAY EXPRESS COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1926
    Decided November 11, 1926
    Filed January 5, 1927.
    Negligence — Injury to Car in Motor Vehicle Collision — Plaintiff's Car was Being Backed Out of a Driveway — Driver of Defendant’s Car was Planning to Use the End of Driveway in Turning His Car — Plaintiff Alleges That the Driver of Her Car Had Not Yet Reached the Curb Line — Driver of Defendant’s Car Disputes This — Court Trying Facts Without a Jury Rendered Verdict For Plaintiff, Holding” No Contributory Negligence — Evidence Sufficient to Have Sent Case to Jury Had There Been One.
    On appeal from the District Court of the First Judicial District of the courty of Monmouth.
    Before Justices Kaliscii, Katzenbacii and Lloyd.
    For the plaintiff-respondent, Francis L. Stone.

    For the defendant-appellant, William B. Harley.

   Per Curiam.

This is an appeal from a judgment rendered by the District Court of the First Judicial District of the county of Monmouth. The action was instituted to recover damages to an automobile. The plaintiff, Alberta C. Logan, owned a car which she permitted her husband to drive. At the time of the accident Mr. Logan was backing this car out of a private driveway located on the southerly side of Sewell avenue, in the city of Asbury Park. While he was in the act of backing the car, and while the rear of the car was still, according to his testimony, within the curb line, a truck of the defendant, American Railway Express Company, struck the rear right-hand comer of Mrs. Logan’s car. Mr. Logan testified that he looked to- the right as he was backing the car out. This was to watch for vehicles traveling from the west which would pass on the right-hand side of the street. The defendant’s truck was being driven by an employe, who testified that he had been proceeding in an easterly direction on Sewell avenue and then backed his car up to the curb or gutter line (there being no curb) in order to make a full turn to go in a westerly direction. He testified that the rear of his car was even with the line of the gutter and that he had not actually gone upon the property of the plaintiff or passed the gutter line when the collision occurred, although he intended to utilize the driveway to make his turn.

The trial judge filed conclusions in the case. He ably reviews in his opinion the testimony and sets forth the provisions of the-Traffic act bearing on the subject of negligence. He considered the question of contributory negligence. The court found as a fact that the defendant was negligent in the operation of its truck and that the driver of the plaintiff’s car was free from contributory negligence.

The appellant now seeks to reverse the judgment upon the ground that the plaintiff was guilty of contributory negligence. The position taken by the appellant is that a motion was made at the conclusion of the case that a verdict be directed for the defendant on the ground of the contributory negligence of the driver of the plaintiff’s car, and that this motion should have been granted. The court denied the motion. We think that the court -was fully justified in denying the motion. From the facts of the case the contributory negligence of the plaintiff was a question for the determination of a jury, if a jury had been called in the case. There being no jury the court acted as a trier of the facts. The court found as a fact that there was no contributory negligence of the plaintiff. There was evidence at the close of the case sufficient to warrant the presentation of this question to the jury if there had been one. Therefore, we think the trial court acted properly in refusing to grant the motion.

The court will not reverse on appeal a judgment resting upon the decision of a factual question if there be any evidence to support it. Duff v. Prudential Insurance Co., 90 N. J. L. 646.

The judgment is affirmed, with costs.


text:
    DUFFY & THOMAS, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH MILLER ET AL., DEFENDANTS-APPELLANTS.
    Argued May 5, 1926
    Decided November 11, 1926
    Filed January 5, 1927.
    Sale of Real Estate — Agent’s Commissions — Agent’s Contract Contained a Provision That “No Money was to be Paid Unless Title Actually Passes” — Agent Procured Buyer, but Defendant Refused to Sell — Later, He Paid Wouid-be Buyer a Sum of Money to Discontinue a Suit For Specific Performance — Court Differentiated Between This Case and That of Dermody v. N. J. Realty Cc., Where Vendee Defaulted and Later Made Settlement by Payment of Damages, Holding That the Language of the Agent’s Contract was Explicit and Final.
    Oil appeal from the Second District Court of Jersey City.
    Before Justices Kabiscii and Katzexbach.
    For the deiendants-appellants, Aaron A. Melniker.

    For the plaintiff-respondent;, Ilenn & Burr.

   Per Curiam.

This is a defendant’s appeal from a judgment of the Second District Court of the city of Jersey City. The judgment was rendered in an action instituted to recover broker’s commissions of $250. The defendants below (hereinafter called the defendants), on June 7th, 1928, signed a contract agreeing to pay to the plaintiff below (hereinafter called the plaintiff) a commission of $250 for procuring a purchaser for the premises described in said agreement. The agreement contained the following words: “No money is to be paid unless title actually passes.” The plaintiff procured a customer for the property. The defendants and the customer entered into an agreement for the sale and purchase of the property. The vendee was willing, able and ready to perforin the contract, but the vendors refused to convey the property. The vendee then filed a bill in the Court of Chancery to have the contract specifically performed. The vendors paid to the vendee a sum of money to have the suit discontinued. The plaintiff contended that it had earned its commission and instituted the present action to recover it.

The District Court held that under the case of Dermody v. New Jersey Realty Co., 3 N. J. Adv. R. 702, the plaintiff was entitled to recover. In this case the agent procured a purchaser. A contract for the sale and purchase of the property was made. The vendee defaulted and later made settlement by the payment of damages to the vendors. The contract provided that the commission ivas to be paid at the time of passing title. The title did not pass. A judgment rendered by the Essex county court in favor of the vendor was reversed by the Court of Errors and Appeals on the ground that the settlement substituted payment of damages to the vendor in the place of the purchase-money.

In the case of Taylor & Rose, Inc., v. Buonincontri, 3 N. J. Adv. R. 881, the contract provided that the broker’s commission was to be paid “at the time of passing title.” This was held to indicate merely the time when the commission was payable.

We find it difficult, however, to overcome the effect of the language, embodied in the agreement under consideration which, as stated above, is “no money is to be paid unless title actually passes.” upon the authority of the case considered controlling by the court below. It seems to us that if a broker enters into a contract which makes his commission contingent upon the actual passing of the title to the property and not upon his finding a purchaser ready, able and willing to take the property at a price satisfactory to the owner, that he must be held to be bound by the terms of the contract.

This view leads to a reversal of the judgment rendered by the Second District Court of the city of Jersey City. The judgment is accordingly reversed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LOUIS KAPHAN (LOUIS KAPLAN), PLAINTIFF IN ERROR.
    Argued May 5, 1926
    Decided November 11, 1926
    Filed January 5. 1927.
    Crimes — Writs of Error — Prosecution—Reinstatement—Writ of Error Not Perfected and on Motion Dismissed — Defendant Became Fugitive From Justice — Upon Motion to Reinstate, Court Held That it is Impossible Where Defendant Cannot Be Made to Respond to Any Judgment the Court Might Enter.
    On motion to reinstate writ of error.
    Before Justices Kai/isch and Katzenjbach.
    For the plaintiff in error, William A. Kavanagh.

    For the defendant in error, Albert II. Holland.

   Per Curiam.

Louis Kaphan (Louis Kaplan) was indicted by the grand jury of the county of Morris for breaking and entering. The indictment was tried. Kaphan was convicted. He took a writ of error to this court. The plaintiff in error did not perfect the record. A notice by the prosecutor of the pleas for the county of Morris was given to the counsel for the plaintiff in error that on May 28th, 1925, he would move before this court to dismiss the writ of error. On that day the motion was laid over until June 1st, to afford the plaintiff in error an opportunity to perfect the record. The record was not perfected. On June 1st, no one appearing for the plaintiff in error, and no further explanation being given of the failure to perfect the record, the writ of error was dismissed. After the dismissal of the writ of error Kaphan was sought. He could not be found. On June 5th, 1925, his bail was forfeited. Since that date he has been a fugitive from justice. This was admitted in open court on the hearing of this motion. There is also documentary evidence in the form of affidavits to support this contention.

Counsel for Kaphan appealed the order dismissing the writ of error to the Court of Errors and Appeals. On February 8th, 1926, the Court of Errors and Appeals, on a motion to strike out the state of the ease, dismissed the writ of error. The order of the Court of Errors and Appeals directed that the record and proceedings be remitted to this court without prejudice to the plaintiff in error to apply to this court to reinstate the writ of error. The plaintiff in error has moved to reinstate the writ of error. This motion is resisted by the prosecutor of the pleas of Morris county. He takes the position that an appeal will not be heard while the plaintiff in error is a fugitive from justice. We consider this position well taken. In the case of Smith v. United States, 94 U. S. 97 (24 L. Ed. 32), it was held that it was within the discretion of the court to refuse to hear a criminal case in error unless the convicted party suing out the writ is where he can be made to respond to any judgment the court might render. A number of cases to this effect may be found in 15 Cent. Big., under the tit. "Criminal Law,’’ §§ 2971, 2979, and also in 8 Crim. L. (2d Dec. Dig.), § 113.

The motion to reinstate the writ of error is denied.


text:
    MARY KAVANAGH, PLAINTIFF-RESPONDENT, v. AUGUSTA E. BERMAN, DEFENDANT-APPELLANT.
    Submitted May term, 1926
    Decided November 11, 1926
    Filed January 5, 1927.
    Sale of Real Estate — Alleged Fraud of Agent — Plaintiff Proved That She Told Agent She Desired Lot Upon Which to Build a Home and That He Recommended the One in Question— After Payment of Considerable Money, She Saw the Lot and Found it Under Water — Agent Testified That She Saw Lot Before Payment — Held, That There was Sufficient Evidence to Support Plaintiff’s Judgment Obtained in the District Court, and, Accordingly, Will be Sustained Here.

      Before Justices Kalisch, Katzenbach and Lloyd.
    For the defendant-appellant, McCarter & English.

    For the plaintiff-respondent, Henry W. Lewis.

   Per Curiam.

This is an appeal by the defendant below (hereafter called the defendant) from a judgment of the District Court of the city of Atlantic City. The action was instituted to recover the sum of $500 paid upon a contract made between the plaintiff below (hereafter called the plaintiff) and the defendant, for the purchase of a lot at Margate City, New Jersey, which is near Atlantic City. The lot was sold to the plaintiff through the activities of one Abraham Littman, an agent of the defendant. Littman called upon the plaintiff. He produced a map of Margate City. He showed her on the map the lot (designated as lot 2, block 3A), and stated that it was a bargain at the price it was offered at. The plaintiff stated that she did not want a lot for investment, but did wish to purchase a lot upon which to build a home. Littman assured her that the lot was suited for this purpose. The plaintiff paid Littman $100. Later, she signed an agreement to purchase the lot for $3,800, and the plaintiff paid on account the further sum of $400. The testimony of the plaintiff is to the effect that after having entered into this agreement she inspected the lot on the following Sunday. She found the boardwalk and seawall at Margate City destroyed and the lot covered with water. She saw Littman on the following day and told him that she could not build a home on the lot and demanded the return of the money she had paid. This testimony was contradicted by Littman, who testified that the plaintiff had seen the lot before the agreement to purchase was made by her and was perfectly satisfied with it. In some particulars his testimony was corroborated by a stenographer in his employ. This contradictory testimony which bore upon the question of fraud raised a disputed question of fact, namely, whether the plaintiff had been defrauded or not, for the decisión of the lower court. The District Court found as a fact that there was fraud. The judgment rendered was based upon this finding. The argument of the appellant is to the effect that the evidence did not warrant this finding of fact. We cannot say there was no evidence to support the finding of fraud. It is well settled that upon an appeal from a District Court, if there be any evidence to support the finding of fact upon which the judgment is based, the judgment will be sustained. Duff v. Prudential Insurance Co., 90 N. J. L. 646.

The judgment is affirmed, with costs.