author: Pek Cukiam.

text:
    JEANETTE MANDRACKIE ET VIR. ET AL., PLAINTIFFS, v. FRED FISCHER AND FREDERICK DeNICKE FISCHER, DEFENDANTS.
    Submitted January term, 1929
    Decided May 8, 1929.
    Before Justices Black, Campbell and Case.
    Eor the rule, Samuel L. Hirschberg.

      Contra, Autenrieth, Gannon & WortendyTce.

   Pek Cukiam.

This suit was brought by Jeanette Mandrackie (her husband, Andrew Mandrackie, joining for incidental damages), Anna Bruno, Mildred Bruno and Lillian Bruno for injuries alleged to have occured while the plaintiffs were occupants of a car driven by the plaintiff Andrew Mandrackie, as a result of a collision with a car owned by Ered Fischer and driven by Frederick DeNieke Fischer. At the trial at the Hudson Circuit Lillian Bruno was nonsuited. Verdicts were rendered in favor of Fred Fischer as against all of the plaintiffs and in favor of Frederick DeNieke Fischer as against the plaintiffs Jeanette Mandrackie, Andrew Mandrackie and Anna Bruno. A judgment in favor of Mildred Bruno and against the defendant Frederick DeNieke Fischer was rendered for the sum of $100. Judgment was entered on the verdicts and the plaintiffs, having taken a rule to show cause why a new trial should not be granted, filed six reasons, of which three are argued on the brief, namely:

1. The verdicts in favor of the defendant Prederick DeNicke Pischer, are inconsistent with the verdict in favor of the plaintiff Mildred Bruno, and against him.

2. The verdict of $100 in favor of Mildred Bruno is grossly inadequate and should be set aside as to damages only.

3. The verdicts in favor of the defendant Prederick DeNicke Pischer, are against the great weight of the evidence.

An examination of the evidence discloses that the question of negligence' was in serious dispute. We' are unable to say that the verdicts of the jury against Jeanette Mandrackie, Andrew Mandrackie and Anna Bruno were so clearly against the weight of the evidence as to have been the result of either mistake, passion, prejudice or partiality. . This being so, they are not subject to be set aside on the mere argument that the Mildred Bruno verdict was inconsistent therewith. The several verdicts are the result of separate and distinct causes of action which, for convenience and under modern practice, are tried together. Each claim, however, remains a separate claim.

The plaintiffs ask for a new trial as to Miss Mildred Bruno on the single ground that the verdict is grossly inadequate and should be set aside as to damages only. With respect, to Miss Mildred Bruno the evidence was that the plaintiff had receivéd a slight injury to a shoulder which lasted for about two weeks, and that subsequently there developed what was designated as a traumatic hysteria of the spine—a psychic condition dependent upon mental shock. Assuming liability established, it was within the province of the jury to discard the spinal hysteria as being disconnected with the accident and to make its award on the hypothesis that the plaintiff had received a minor injury from which she suffered for two weeks and then recovered. Apparently this is what the jury did. A verdict of $100 cannot be considered as grossly inadequate.

We consider that none of the grounds set forth warrant a setting aside of the verdicts. The rule to show cause is therefore discharged, with costs.


source: Caselaw Access Project

author: Pee Cubiam.

license: Public Domain

text:
    JOHN C. BACKERT, RESPONDENT, v. MAX LEUCHTER, APPELLANT.
    Submitted January term, 1929
    Decided May 8, 1929.
    Before Justices Black, Campbell and Case.
    Eor the respondent, David Horuvitz (Leroy W. Loder, on the brief).
    Eor the appellant, M. Joseph Greenblait.

   Pee Cubiam.

This ease comes up on appeal from the Cumberland County Court of Common Pleas wherein the plaintiff below brought suit on several promissory notes, claiming to be a bona fide holder by endorsement and transfer for value in duo course before maturity. The defendant below by his answer charged that while on their face the notes showed another payee and the endorsement by that payee to the plaintiff, nevertheless, the notes had been given in payment of a certain linotype machine, the property .of the plaintiff, and that the payee named in the notes was in fact merely the agent of the plaintiff, that the defendant’s notes made to the payee were received by the latter as such agent and by him endorsed over to the plaintiff who had obligated himself by certain representations and warranties as to the condition of the machine; that the machine was not as represented and was in fact worthless and that the defendant, therefore, was not indebted on the notes to the plaintiff. The defendant added a counter-claim.

At the trial the judge directed a verdict for the plaintiff. The judgment thereon was appealed from chiefly upon the ground that the testimony set up disputed questions of fact, which it was the exclusive province of the jury to determine.

There is testimony to the effect that the linotype machine was the property of the plaintiff and that the payee named in the notes had simply acted as a broker- in selling the machine for him to the defendant; that the plaintiff before delivery of the notes had represented to defendant that the machine was as specified, rebuilt, complete and in first class condition; that the notes were delivered by defendant to plaintiff in payment though made payable to the broker; that the machine was not as represented, and that there was a part failure of consideration.

We are of the opinion that there was sufficient dispute in the evidence to take the case to the jury. The judgment, therefore, is reversed.


author: Peb Curiam.

text:
    CHARLES HARRIS ET AL., PLAINTIFFS, v. BRIANT’S GARAGE, INCORPORAED, ET AL., DEFENDANTS.
    Submitted January term, 1929
    Decided May 7, 1929.
    Before Justices Black, Campbell and Case.
    Eor the rule, Carey & Lane.

      Contra, Harold A. Price.

   Peb Curiam.

The plaintiffs have verdicts as follows: Charles Harris, $120; William Sexton, $1,150, and John Sexton, $20.

Several reasons are urged why these verdicts should be set aside, namely:

1. They are against the weight of the evidence.

2. As to those of Charles Harris and William Sexton they are excessive.

3. There is no evidence upon which the verdicts, as against Briant’s Garage, Incorporated, can be based.

4. Errors in the charge of the trial court.

Our examination satisfies us that none of these grounds warrant a setting aside of the verdicts.

The rule to show cause is therefore discharged, with costs.


author: Per Curiast.

text:
    WALTER LE ROY CAMP, Jr., ET AL., PLAINTIFFS, v. ATLANTIC CITY RAILROAD COMPANY, DEFENDANT.
    Submitted January term, 1929
    Decided May 7, 1929.
    Before Justices Black, Campbell and Case.
    Eor the rule, Thompson & Ilanstein.

      Contra, Bolts & Tripician.

   Per Curiast.

In an action for damages for negligence the plaintiffs have verdicts as follows: Camp, Jr., $1,000, and Camp, Sr., $500, which the defendant seeks to set aside upon the grounds that they are against the weight of the evidence and becáuse the plaintiff Camp, Jr., was guilty of contributory negligence.

We conclude that neither of these grounds is supported by the proofs and the rule to show cause will therefore be discharged, with costs.


author: Per Curiam.

text:
    ARTHUR M. KETSCHKE, PROSECUTOR, v. THE MAYOR AND COUNCIL OF THE BOROUGH OF WOODBRIDGE, RESPNDENTS.
    Submitted January term, 1929
    Decided May 7, 1929.
    Before Justices Black, Campbell and Case.
    Por the prosecutor, Wright, Vander Burgh & McCarthy.

    Por the respondent, Stanton T. Lawrence.

   Per Curiam.

The prosecutor having filed and submitted no brief within the time limited by the rules of this court, nor at any time, the writ of certiorari is dismissed, with costs.


author: Pee Curiam.

text:
    MARY WELCH ET AL., PLAINTIFFS, v. JOHN R. HOUGHTON ET AL., DEFENDANTS.
    Submitted January term, 1929
    Decided May 7, 1929.
    Before Justices Black, Campbell and Case.
    Por the rule, John A. Ijaird.

      Contra, Arthur. C. Mullen.

   Pee Curiam.

This is a negligence action in which the plaintiffs below have verdicts as follows: Mary Welch, $1,200; Harry Welch, $300; Minnie Hiss, $5,000; John M. Hiss, for personal injuries, $200; for loss of services of his wife, $300, and for expenses for effecting a cure of his wile, &c., $1,000.

The single reason urged against these verdicts is that they are excessive and that they are not justified and warranted by the proofs.

We have reached a contrary conclusion and the rule to show cause will be discharged, with costs.


text:
    NAHM TARZY, PLAINTIFF, v. UNITED PIECE DYE WORKS, DEFENDANT.
    Submitted January term, 1929
    Decided May 7, 1929.
    Before Justices Black, Campbell and Case.
    For the rule, John W. Ochford.

      Contra, Kellogg & Chance.

   Pee Curiam.

In an action for negligence the defendant has a verdict, and under this rule the plaintiff seeks to set it aside for the reasons:

1. It is against the weight of the evidence.

2. It is contrary to the charge of the court.

3. It indicates prejudice and partiality.

There was a fair dispute of facts presented by the proofs and our examination thereof does not bring us to the conclusion that the verdict was the result of mistake, prejudice or passion, and therefore the rule to show cause is discharged, with costs.


author: Pee Cubjam.

text:
    THEODORE BAKER, PLAINTIFF, v. SILVER ROSE DEVELOPING AND REALTY COMPANY, A CORPORATION, AND SAMUEL SILVERMAN, DEFENDANTS.
    Submitted January term, 1929
    Decided May 8, 1929.
    Before Justices Black, Campbell and Case.
    For the rule, Leo E. Luff.

      Contra, Armstrong & Mullen.

   Pee Cubjam.

The plaintiff obtained judgment for personal injuries and property damage against the defendants in the amount of $1,600. The case comes up on defendants’ rule to show cause.

The reasons as filed enumerate five points, namely, that the verdict was contrary to the weight of the evidence; that the evidence did not prove negligence on the part of the defendants; that the evidence did prove the plaintiff guilty of contributory negligence; that the verdict of the jury was excessive, and that the verdict was actuated by mistake, passion, prejudice and partiality.

Defendants’ counsel argues vigorously that the defendants were not in any way participants in plaintiff’s injuries, and that if the accident was caused by a car, it was a car of some persons other than the defendants. However, there is persuasive evidence that the damage was caused by the car driven by defendant Silverman and owned by his co-defendant.

Defendants’ counsel also contends that the verdict was the result of a religious prejudice against Mr. Silverman and was the result of mistake. There was not a word in the compíete record to sustain the contention of religious prejudice or prejudice of any character.. The argument is entirely without a vestige of support in the record.

We have examined the entire testimony in the light of the reasons as filed and of defendants’ brief, and find no cause for granting a new trial.

The rule, therefore, will be discharged, with costs.


author: Pee Cueiam.

text:
    H. L. DEVELOPMENT COMPANY, INCORPORATED, RESPONDENT, v. CONSOLIDATED MORTGAGE LOAN COMPANY, INCORPORATED, APPELLANT.
    Decided May 11, 1929.
    .Before Justices Teenciiabd, Kalisch and Lloyd.
    For the appellant, 0. Frank Shanley.

    For the respondent, Louis Rubenstein (Charles Rubenstein, of counsel).
   Pee Cueiam.

The plaintiff, H. L. Development Company, recovered a judgment in the District Court of Bayonne, against the defendant, for the sum of $100.

The facts, briefly stated, are that on February 18th, 1928, the development company made an application to the Consolidated Mortgage Loan Company, the appellant here, for a construction mortgage loan of the sum of $45,000, said loan to be secured by bond and mortgage covering certain premises described in the application, and located in the city of Hackensack.

At the time of the making of the application by the development company for the loan, it paid to the defendant, the mortgage loan company, an advance charge of $100 for legal fees, which payment was to be credited to final costs when the loan was granted and accepted, arid if the loan was not accepted by the applicant within ten days, the sum so paid was not to be returned.

On February 27th, 1928, the loan was granted by the mortgage loan company, and was accepted by the development company, in accordance with the terms of the application. An agreement was entered into between the parties on February 27th, 1928, as to the amounts of, and the times when, the sum of $35,000 which was to be paid in six payments, should be paid. The total amount to be paid being $45,000, there being a prior first mortgage of $10,000 on the property. On March 19th, 1928, the mortgage loan company gave notice to the development company of certain objection to the title to said property, which objection was that the premises in question were encumbered with a certain mortgage held by one E. Edward Burr, in the sum of $7,200; and further, that the development company had not produced a certain plot plan of the premises, and therefore it, the mortgage company, refused to make the mortgage loan and to return the $100.

There were also other minor objections. The objections appear to have been answered, on the following day by a letter written by the attorney of the development company, and the facts therein stated seem to be supported by the testimony in the cause, and thus raised factual questions to be decided by .the trial judge.

We think from an examination of the testimony, and the exhibits in the cause, that there was a basis laid by the plaintiff in the court below for the finding by the trial judge that the mortgage loan company refused to carry out its agreement, and canceled the loan, for the reason, as expressed by the trial judge, in his opinion, in disposing of the case, that the loan was not canceled because there was any defect in the title, but rather, because the loan was regarded as a bad risk.

In addition, we think that the mortgage loan company, having failed to make the loan, that under the clause in the written application, it could only properly retain the $100 paid to it by the development company in the event the development company refused to accept the loan. This the development company did not do. It held itself ready to accept the loan, as indicated by its letter to the mortgage loan company.

The judgment is affirmed, with costs.


text:
    EDWARD B. SWEENEY, APPELLANT, v. LOUIS G. GRISSLER, RESPONDENT.
    Decided May 11, 1929.
    Before Justices Tbenchaed, Kalisch and Lloyd.
    Eor the appellant, Earl A. Merrill.

    Eor the respondent, no appearance.
   Pee Cueiam.

This appeal should be dismissed. There is no agreed state of the case between the attorneys of the respective parties, nor is there a state of the case settled by the trial judge.

Appeal is dismissed, with costs.


text:
    ABRAHAM LEVENSON, PLAINTIFF, v. SAMUEL SLAFF, DEFENDANT.
    Decided May 11, 1929.
    Before Justices Teencilabd, Kalisch and Lloyd.
    Eor the rule, Edward A. Marhley.

      ■ Contra, Wilbur A. Heisley.

   Pee Cubiam.

This case came on for trial before Judge Porter, sitting without a jury, at the Passaic Circuit. He found in favor of the plaintiff and gave judgment for $1,642.17.

The record discloses that exceptions were taken by counsel of defendant to the findings of the judge, both of law and fact.

The reasons assigned for a new trial are fourteen in number. The first reason is that the verdict is against the clear weight of the evidence produced at the trial. The second, that the verdict is contrary to the evidence. We think neither reason has any merit. There was testimony before the trial judge fairly supporting his findings. The third reason assigned that the verdict is contrary to law is too general, and fails to point out in what particular respect the trial judge, in his findings, committed prejudicial error. The fourth reason is, that the trial judge should have given a verdict in favor of the defendant. This reason is too general since it fails to state any ground why there should have been a finding in favor of the defendant. The fifth reason is, that the alleged contract on which the suit was based was in violation of the statute of frauds.

The basis of the plaintiff’s action was an alleged contract made between him and Max Goldstein, on February 23d, 1923, whereby the plaintiff agreed with Goldstein to provide all the work for the plumbing, steam heating and hot water supply, and all the necessary materials therefor, for a certain building to be erected upon premises of which Goldstein was the owner, and for which Goldstein had agreed to pay the plaintiff the sum of $28,000. This contract was in writing.

Later, in the month of November, 1923, the plaintiff having proceeded with the furnishing of the work and materials and for which there was a balance due from Goldstein to the plaintiff, and Goldstein being in arrears for payments to be made for the materials which were being furnished, and for the work that was progressing, and, in fact, Goldstein being financially insolvent, and unable to comply with his promises, and in consequence unable to comply with the agreement referred to, and the plaintiff, under the Mechanics’ Lien law, being entitled to file a lien upon the land and premises, and against the buildings being then erected, and having refused to continue to furnish any further materials, or do any work, the defendant, Samuel Slaff, who held a mortgage on the premises in question for $35,000, being desirous of having the building completed, and to have the plaintiff continue to furnish the labor and materials for the purpose of enhancing the security of his mortgage, and also that of another mortgage on the premises, which was held by the Superior Finance Corporation, in which the defendant, Slaff, was also interested, thereupon requested the plaintiff to forbear from enforcing his claim under the Mechanics’ Lien law, and promised that if he, the plaintiff, would forbear to enforce his claim, and would continue to furnish materials and labor, and complete his contract with Goldstein, he, the defendant, would pay promptly and upon demand any and all -moneys due or to become due to the said plaintiff, for and on account of, and by reason of his having theretofore furnished any labor and materials, and also for all labor and materials which he should therefore furnish for said building, in course of construction. That the plaintiff, relying on the defendant’s promises, forbore to file a mechanics’ lien and continued to furnish labor and materials in the construction of the building.

The defendant denied the making of any such promise or promises.

The testimony adduced by the defendant raised these factual questions—first, whether or not the defendant verbally guaranteed the payment for the materials and labor which had already been furnished in the construction of the building, or had made himself personally liable by inducing the plaintiff to forbear from pursuing his remedy, under the statute, by filing a mechanics’ lien for such materials and labor already furnished, and whether the plaintiff relied upon such promise, and did so forbear, and secondly, whether the plaintiff upon the promise of the defendant that if the former would continue to furnish labor and materials in construction of the building, he, the defendant, would pay for the same, and that the plaintiff relied oh such promise and continued to furnish the labor and materials in the construction of the building.

We cannot say from a fair reading of the testimony that the findings of the trial judge on the factual questions were not fairly warranted.

The rule to show cause is' discharged, with costs.


author: Bodtne, J.

text:
    LESLIE M. SHAW, PLAINTIFF, v. ALICE A. MORRIS ET AL., EXECUTORS OF THE ESTATE OF WILLIAM McK. MORRIS, DECEASED, DEFENDANTS.
    Decided May 13, 1929.
    For the motion, V. Claude Palmer.

      Contra, Leslie M. Shaw and George M. Hillman.

   The opinion of the court was delivered by

Bodtne, J.

This is an application to open a judgment by default entered December 26th, 1928, for $112,195.92.

The cause of action is upon two contracts for the purchase of stock in Sloan & Chase, Incorporated, and for money received by the defendants’ testator.

An answer was not filed because defendants’ counsel had ■demanded a bill of particulars which had not been answered. At the same time the judgment was entered, the parties to the present suit were discussing a settlement, and the judgment came as a great surprise.

The decedent’s testator was very ill during the winter and ■spring of 1927. It was during this time that important transactions are said to have occurred leading up to his alleged liability on the contracts for the purchase of stock in Sloan & Chase. A copy of the modification of the original contracts upon which the suit is predicated produced before me is without date and shows no consideration, and if made •at all was made at the time when, as the testimony shows, the decedent was a very sick man.

There are, in my judgment, important questions arising from the defense of the case which, under our system, should be heard by a jury.

The defendants shall have twenty days in which to answer!


author: Pee Cukiam.

text:
    MAX MARGOLIS, RELATOR, v. THE TOWNSHIP OF MAPLEWOOD ET AL., DEFENDANTS.
    Argued May 8, 1929
    Decided May 21, 1929.
    Before Justices Pakkek, Black and Bodine.
    Por the relator, Howe & Davis and Merritt Lane.

    Por the defendants, McCarter ■& English and George W! McCarter and Robert H. McCarter.

   Pee Cukiam.

•This case comes before the court on a motion to quash or strike out the return to an alternative writ of mandamus allowed 'by the court, upon the ground that the return or excuses set up are sham or frivolous and set forth no legal, reason why the command of the writ should not be obeyed.. The court also directed by rule that upon any motion which might be made depositions could be taken to be used on such a motion. We think the motion should be denied, with costs.. Our examination and reading of the briefs and the depositions; taken under the rule, after considering the oral argument, of counsel, lead us to the conclusion that the return is not frivolous or sham. The motion is denied, with costs.


text:
    PAUL GERLI, TRUSTEE AND ASSIGNEE OF SUMMIT SILK COMPANY, PLAINTIFF, v. WASHINGTON PIECE DYEING AND FINISHING COMPANY, DEFENDANT.
    Argued May 7, 1929
    Decided May 20, 1929.
    Before Justices Pakiceb, Black and Bodine.
    Por the plaintiff, Aaron Lasser (Sidney Svirslcy, on the brief).
    Por the defendant, Robert II. McCarter (Abram I. Blue-stein, on the brief).
   Pek Cukiam.

The question involved was the liability of the defendant as assignee of a lease, for rent accrued. The defense was that the defendant had reassigned to a third party named Bertha Michelin, before any rent accrued, and the principal issue of fact at the trial was whether this reassignment was genuine or only pretended; for if genuine, defendant would be relieved of liabilty. Meyer v. Alliance Investment Co., 84 N. J. L. 450; 86 Id. 694; Linke v. Greenfield, 6 N. J. Adv. R. 324; 140 Atl. Rep. 314.

The trial judge properly refused to nonsuit or to direct a verdict, as the testimony presented a disputed question of fact whether the assignment was genuine or was a mere sham and not intended to take effect as between the parties to it. But he fell into error when he charged the jury that “there was, so far as the language was concerned, an effective assignment of that lease. If that effective assignment from the standpoint of language was also an honest assignment and not one made for the purpose of evading an honest responsibility under the lease, then that terminated what we know in law as the privity of contract.”

The obvious implication of this language as we read it is that if defendant actually assigned the lease and stripped itself of all right thereto, but did that for the purpose of evading responsibility for the rent, it would still be liable. This, we think, is not the law. If the assignment be actual and genuine, the purpose is immaterial. 36 C. J. 377. But aliter if it is a mere cover. Ibid. 378. The language in Linke v. Greenfield, supra,, reading “if defendant bona fide assigned to Fisher,” related to a genuine, as distinct from a pretended assignment.

'Other language in the charge correctly stated the law, but that does not cure the error. Neibel v. Winslow, 88 N. J. L. 191; Collins v. Central Railroad Co., 90 Id. 593; State v. Parks, 96 Id. 360.

The rule will be made absolute.


text:
    RICHARD W. BUCHHOLTZ ET AL., PROSECUTORS, v. THE BOARD OF ADJUSTMENT OF THE CITY OF VENTNOR ET AL., DEFENDANTS.
    Argued May 7, 1929
    Decided May 21, 1929.

      Before Justices Parker, Black and Bodiste.
    For the prosecutors, Bourgeois & Coulomb.

    For the defendants, John 8. Westcott and Hiram Steel-man.

   Per Curiam.

The certiorari in this case was allowed to review the judgment or order of the board of adjustment of the city of Vent-nor, dated December 24th, 1928, revoking a building permit, dated November 21st, 1928, issued by the inspector of buildings to the prosecutors. The prosecutors file four reasons for setting aside the order or judgment of the board of adjustment. First. Because the lands on which the building is being erected are not restricted by the zoning ordinances of Ventnor City and therefore the board was without jurisdiction to act.

Second and Third. Because there is no provision in the zoning ordinance which inhibits the erection or use of any building upon said lands.

Fourth. Because the board of adjustment was without authority to make the order vacating the building permit issued.

AYe find no legal merit in any of these reasons. They call for no extended discussion.

It may not be amiss, however, to add, the prosecutors urge and rely principally upon the fact that the building zone map of Vennor City provides—first, residence districts; second, apartment districts; third, business districts; on which is marked “Play Grounds,” “City Hall,” “Loop.” The blocks so marked do not come within the designation of any of the restricted districts, as shown upon the map and indicated by the key thereto, therefore, it is argued by the prosecutors that the board had no jurisdiction over the land in question, which is in the plot marked “Loop.” AYe think there is no basis for any such construction to be placed upon the building zone map. The purpose of the zoning map was not only to point out the various classes of zoned districts, but it attempts, also, to convey some information concerning locations to the map reader. Its purpose was not to restrict the zoning area by such descriptions. The result we have reached is the order or judgment of the board of adjustment is affirmed and the writ of certiorari is- dismissed, with costs.


text:
    BLACK AND WHITE OPERATING COMPANY, INCORPORATED, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, v. EMIL GROSBART, DEFENDANT-APPELLANT.
    Submitted October term, 1928
    Decided May 27, 1929.
    Before Justices Teenohaed, Kalisch and Lloyd.
    Eor the appellant, Harry Levin.

    Eor the respondent, George F. Seymour, Jr.

   Pee Curiam.

Since the per curiam opinion was filed in this case our attention has been called by counsel to a supplemental state of the case which appears to have been signed by the trial judge two months after the original state of the ease had been signed.

Without passing on the sufficiency of such a state of the record, we have examined the reasons urged for reversal and find them without merit, and the judgment is affirmed.


text:
    JERSEY PUBLISHING COMPANY, A CORPORATION, RELATOR, v. JOHN McCUTCHEON, STATE COMPTROLLER, RESPONDENT.
    Argued May 7, 1929
    Decided May 22, 1929.
    Before Justices Teenciiabd and Lloyd.
    Por tlie relator, John G. Flanigan and Crawford Jamison.

    For the respondent, William A. Stevens, attorney-general, and Duane F. Minará, assistant attorney-general.
   Pee Cueiam.

The relator has presented, on notice, a petition and affidavits, and asks for a peremptory writ of mandamus. In such case ordinarily a peremptory writ should not be awarded, but an alternative writ at most. State v. Elkinton, 30 N. J. L. 337.

At the argument, in an informal wajr, the respondent caused to be laid before us by affidavit matters which it was contended constitute a sufficient reason for his refusal of the demand made upon him.

Inasmuch as the facts stated in the affidavit thus presented are not admitted by the relator, we think we are not permitted, in considering the application, to examine the matters set forth therein, but that an alternative writ should issue to the end that by formal return or other or further pleadings an issue may be raised and appropriate action thereon taken by the court; upon which determination the right of review may be preserved.

A rule- will be entered for an alternative writ.


text:
    CHARLES ZEMEL ET AL., PETITIONERS, v. THE CITY OF NEWARK, RESPONDENT.
    Argued May 7, 1929
    Decided May 27, 1929.
    Before Justices Tbenchabd, Lloyd and Case.
    Eor the petitioners, Joseph Zemel.

   Pee Cueiam.

This is an application for a writ of certiorari to test the validity of an assessment, and its confirmation by the Circuit Court of Essex county, of benefits conferred on property of Charles Zemel et al., petitioners, Nos. 27 and 29 Jones street, Newark, as well as other lots, by the widening of Jones street.

The single ground on which the granting of the writ is urged is that in making the assessment the members of the board of assessment did not consider the buildings on the land. The twenty-first section of article 20 of the Municipalities act of 1917 (Pmnph. L. 1917, p. 378) directs that the board of assessment shall make a just and equitable assess-, ment of the benefits conferred upon any lands or real estate by reason of such improvement, having regard to the value of the lands and real estate benefited.

Petitioners filed an affidavit, and what purports to be a partial copy of the order confirming the report of the board, and what purports to be a copy of the opinion of the Circuit Court judge. The report of the board of assessment is not laid before us. The application was argued orally and it was contended that the members of the board of assessment were obliged, in reaching their conclusion, to take into consideration not only the land but the buildings on it. Xo brief was filed and no authority was citecl.

The affidavit of the petitioners sets forth certain extracts of the testimony taken before the Circuit Court judge. Whether there was other testimony of a contrary character either by these witnesses or by others does not appear. And in this connection we regard it as particularly significant that the report of the assessors is not laid before us. Assuming, however, that the statement of the witness which affiant recites is accepted that consideration was given to the land alone is true, the question arises whether this was an illegal method of assessment. The language of the statute is, “the benefits conferred on lands or real estate,” and also that in making their assessment they should have due regard to the lands and real estate benefited. The fact, if it be a fact, that in this instance the assessors considered the land alone does not justify us in finding that it is an illegal proceeding in the absence of proof or some showing to this court that valuation of the buildings thereon was essential to a proper assessment. Assuming, without deciding, that the act contemplated that the buildings should be taken into consideration, this does not entitle the applicants to the writ unless they show that the method pursued worked injury to them. This they have not done. They have not even suggested that they were prejudiced. The writ will be denied.


author: Bodine, J.

text:
    KATHERINE PESPECKY, BY HER NEXT FRIEND, MICHAEL PESPECKY, PLAINTIFFS, v. HARRY N. FORMAN, DEFENDANT.
    Argued May 7, 1929
    Decided May 21, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the motion, McDermott, Finegold & Hartshorne.

      Contra, Ward & McGinnis.

   The opinion of the court was delivered by

Bodine, J.

The plaintiff, a minor, by her brother as next friend, brought suit for the breach of a promise of marriage in the Passaic Circuit. The plaintiff alleges seduction under promise of marriage. The rule is for a change of venue to Monmouth county, where the defendant resides.

The plaintiff’s parents have lived in that county for many years, and she resided with them until shortly before her child was born in May of 1928. After the birth of the child, she returned to her parents’ home and received $15 a week from the defendant until October of 1928, when the payments ceased and she moved to Clift.on in Passaic county, because she had friends there and was able to secure employment. She left her parents’ home with their consent and has been steadily employed, receiving her own wages. She lives with a family whom she has known for the last ten years. Her brother, the next friend, resides next door. She prepares his meals and does his washing. Her testimony on the point as to why she moved is as follows: “I moved up there because I didn’t like the way the people talked about me here and I couldn’t get work and up here I had friends and they got me work right away.” A cogent reason for a change of residence.

The plaintiff appears to be emancipated. Berla v. Meisel, 53 Atl. Rep. 999.

“Under the provisions of the Practice act the venue of a Supreme Court issue may be laid in the county where the plaintiff resides.” Robbins v. Glendon, 103 N. J. L. 564.

“Residence under the statute, therefore, for the purpose of fixing the venue, means actual residence at the time of the institution of the suit.” Dabaghian v. Kaffafian, 71 N. J. L. 116.

“Residence is that fixed and permanent home to which, whenever absent, a person intends to return.” Cadwalader v. Howell, 18 N. J. L. 138. The plaintiff appears to have established such a residence at Clifton.

“While it is true that the cause of action arose prior to the making of the change, there is nothing in the law which prevents one, after a cause of action has arisen in one county, from changing his residence to another county. The question of residence is fixed as of the date the suit is instituted and not as of the date the cause of action accrued.” Robbins v. Glendon, supra.

The change of residence was made in good faith and upon the score of convenience the case may as well be tried in Passaic as in Monmouth county.

The rule will be dismissed.


text:
    WILLIAM HENDERSON, PROSECUTOR, v. THE STATE OF NEW JERSEY, RESPONDENT.
    Submitted May 7, 1929
    Decided May 27, 1929.
    Before Justices Trenciiard, Lloyd and Case.
    For tlie prosecutor, Thomas Brown.

    Contra, John B. Toolan.

   Per Curiam.

A writ of certiorari (accompanied by a motion to quash) brings before us an indictment of two counts against William Henderson, a member of the uniformed police department of Raritan township, Middlesex county. The first count, having made certain recitals, charges that the defendant did ££willfully and maliciously permit and suffer one Steve Toth to go at large and did unlawfully, knowingly, willfully and maliciously fail, neglect and refuse at the time and place aforesaid to apprehend and arrest said Steve Toth, who was then and there in view of said William Henderson, and with the knowledge and consent of said William Henderson, unlawfully transporting by automobile five five-gallon cans of liquor, to wit, whiskey, containing more than one-half of one per cent, of alcohol by volume, fit for use and to be used for beverage purposes, contrary to the form of the statute in such case made and provided, and against the peace of this state, the government and dignity of the same.” The second count, alter the preliminary recitals, charges that the defendant did “willfully and maliciously demand, receive and accept from the said Steve Toth as a bribe the sum of $180 in consideration whereof the said William Henderson did willfully and maliciously permit and suffer the said Steve Toth to go at large and did knowingly, willfully and maliciously fail, neglect and refuse at the time and place aforesaid, for the consideration aforesaid, to apprehend and arrest ■ the said Steve Toth when he the said Steve Toth was then and there in view of said William Henderson, with his knowledge and consent unlawfully transporting by automobile five five-gallon cans of liquor, to wit, whiskey, containing more than one-half of one per cent, of alcohol by volume, fit for use and to be used for beverage purposes, contrary to the form of statute in such case made and provided and against the peace of this state, the government and the dignity of the same.” The defendant-prosecutor of the writ calls attention to the recital, in the indictment, of the “Prohibition Enforcement act,” as chapter 225 of the pamphlet laws of 1922, whereas that act is really chapter'255; and to the spelling “fir” where “fit” is obviously intended; and contends that these errors are fatal and cannot be amended. He also argues that the indictment does not charge a common law crime, and that the Prohibition Enforcement act, by its strict terms, requires that an officer shall, in the order named, (1) examine a suspected vehicle, (2) seize the intoxicating liquors therein, (3) take possession of the vehicle and (4) arrest the person; that it does not become the duty of an officer to make the arrest until the three prior duties have been performed, and, consequently, that the indictment is faulty because, without alleging the performance, of the prior duties, it charges the defendant with mere failure to arrest. He further criticizes the indictment on the ground that it is uncertain, ambiguous and duplicitous.

If either count is good the motion to quash should be denied. State v. Startup, 39 N. J. L. 423.

We are of the opinion that both counts are good. The Prohibition act quite clearly makes it an offense to transport liquor; and the first count of the indictment in unmistakable terms charges the defendant with knowledge of that offense and consent thereto, and with malicious failure, neglect and refusal to arrest the perpetrator. If the defendant, a uniformed police officer, had the knowledge thus imputed to him and willfully neglected to make an arrest, he is guilty of neglect. of a duty imposed upon him bjr law and is indictable therefor. State v. Castle, 75 N. J. L. 187.

Likewise the second count, as a charge of malfeasance in office, is good. State v. Jefferson, 88 N. J. L. 447.

The misspelling “fir” and the inaccurate numerals may be corrected by amendment, since the indictment even as it stands charges- a crime. State v. Lamb, 81 N. J. L. 234.

We do not consider that the indictment is either uncertain, ambiguous or duplicitous. It is a clear presentation of the offenses alleged, - and fully apprises the defendant of the charges against which he is to prepare his defense.

The motion to quash is denied. The writ of certiorari is dismissed. The indictment is to be remitted to the Middle-six Sessions for further proceedings according to law.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. EUGENE GIBBS AND JOHN HERMAN, PLAINTIFFS IN ERROR.
    Decided May 29, 1929.
    Before Gummeke, Chief Justice, and Justices Black and Lloyd.

      For the plaintiff in error, Walter 8. Keown.

    For the defendant in error, Ethan P. Wescott and Joseph Varbalow.

   Pee Cueiam.

(Note.—The state of the case and briefs in this case were mislaid and were not presented to the justices until the May term, 1929.)

Plaintiffs in error were convicted in the Camden Quarter Sessions; Gibbs of rape and Herman of assault with intent to commit rape, and both sentenced to terms of imprisonment,

A number of reasons are presented for reversal of the judgments entered on the verdict, these reasons consisting of alleged trial errors and denial of a motion for direction of a verdict in favor of the defendants; also that the verdict is against the weight of the evidence.

The ruling of the court on the motion to direct a verdict could not have been otherwise, and our examination of the evidence convinces us that the verdict was not contrary to the weight of the evidence. The proofs were ample to establish that Gibbs had carnal knowledge of the girl and that this was against her will. In this he was aided by the defendant Herman, who assisted Gibbs in forcing her into an automobile, knowing full well the purpose of Gibbs to assault her. The intercourse by Gibbs is not denied, and the bruises and marks on the girl’s body after the assault were strong corroborative evidence that it was against her will. We find no error in the rulings on evidence.

The judgment is affirmed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ADOLPH KATZ, PLAINTIFF IN ERROR.
    Decided May 29, 1929.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff in error, Walter S. Keown.

    For the defendant in error, Ethan P. Wescoit and Joseph Varbalow.

   Per Curiam.

(Note.—The state of the case and briefs in this case were mislaid and were not presented to the justices until the May term, 1929.)

The plaintiff in error was convicted of arson in the Camden Quarter Sessions. Three assignments of error and five causes for reversal are presented for our consideration. The first three assignments of error are repeated in the first three specifications of causes for reversal: (1) The admission of a photograph; (2) and (3) the refusal of the court to control the case by direction of a verdict in favor of the defendant.

The photograph was properly received. Such slight changes in the conditions at the time of the fire from those existing at the time the photograph was taken were not such as to prejudice the defendant in maintaining his defense upon the merits, and did not make the photograph inadmissible. State v. Juliano, 103 N. J. L. 663.

In refusing to direct a verdict the court admitted no error. There was ample evidence to establish the defendant’s guilt and this leads us to the conclusion that the verdict on the weight of the evidence (fourth specification of causes for reversal) should not be disturbed.

The fifth and last cause for reversal appears to contend that the defendant could not have been found guilty of burning his own house under the one hundred and twenty-third section of the Crimes act as amended in 1919 (Pamph. L., p. 357), inasmuch as the defendant was the owner and occupant of the premises. The statute by its terms applies to just this situation. See State v. Duelks, 97 N. J. L. 43.

The judgment is affirmed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HAROLD BROWNE, PLAINTIFF IN ERROR.
    Decided June 3, 1929.
    Before Justices Tkenchaed, Kaliscii and Lloyd.
    For the plaintiff in error, Theodore Strong.

    For the defendant in error, John E. Toolan.

   Pee Cueiam.

A petition for a re-hearing was filed in the above stated cause, upon the theory that in the opinion filed therein, the court stated that twenty-five of the reasons presented by the counsel for plaintiff in error for a reversal could not be considered, because there was nothing in the printed case which indicated that the cause had been brought up for review under the one hundred and thirty-sixth section of the Criminal Procedure act. See State v. Browne, 7 N. J. Mis. R. 1.

Upon a re-examination of the record, we find there was such a certification which entitled the plaintiff in error to have the reasons considered under the one hundred and thirty-sixth section of the Criminal Procedure act, as well as on the assignments of errors. ,

The failure to consider the reasons arose from the fact that the printed case contained no special reference to the certificate in the index, and moreover, upon looking through the record, such certificate is not in the place where it is usual for it to be in the orderly making .up of the record.

We have since examined the reasons advanced, by counsel of plaintiff in error, for reversal of the judgment, and do not find them to be. of sufficient legal substance, so as to lead to any different result from that arrived at by the court, upon its original determination of the case.

The application for a re-hearing is denied.


text:
    DAVID CHAMPION, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT.
    Submitted May term, 1929
    Decided June 12, 1929.
    Before Justices Pabkeb, Black and Bodine.
    Eor the appellant, Henry H. Fryling.

    Eor the respondent, Samuel S. Stern.

   Pee Cukiam.

This is a companion case to No. 405. The trial resulted in a judgment for the plaintiff for $200. The judgment of the District Court is affirmed, with costs, for the reasons stated in No. 405 of the present term.


author: Jess, J.

text:
    Camden County Circuit Court.
    ANNA HEWITT ET AL., PLAINTIFFS, v. COUNTY OF CAMDEN AND BOARD OF EDUCATION OF THE CITY OF CAMDEN, DEFENDANTS.
    Eor the plaintiffs, Philip Wentíleos, 'William 0. French, Louis B. LeDuc and Waddington & Mathews.

    Eor the board of education of the city of Camden, Harold W. Bennett.

    Eor the county of Camden, Walter 8. Keown.

   Jess, J.

The plaintiffs haye resorted to the statute of New Jersey entitled “An act concerning declaratory judgments and decrees,” approved March 11th, 1934 (Pamph. L. 1934, p. 313), for an adjudication of the title claimed by them in certain lands, as the heirs-at-law of the grantors. The defendants join with the plaintiffs in submitting for determination by the court, siting without a jury, and upon a stipulation of facts, the following issue:

Have the heirs and assigns at law of the parties of the first and second parts named in the deed of June 23d, 1804, mentioned in paragraph 2 of the amended complaint herein, any estate, right, title or interest in the premises herein involved and described in paragraph 1 of the amended complaint herein; and if so, what estate, right, title or interest?

It is further stipulated that a decision adverse to the claim of the plaintiffs shall be deemed dispositive of the issues, subject only to the right of appeal.

The land as to which the controversy arises is a lot situate in the city of Camden on the westerly side of Sixth street, between Market and Arch streets, and upon which the Genge public school formerly stood. This land will hereinafter be designated as “the Genge tract.” On June 23d, 1804, Joseph Lyon and others conveyed their title in fee to the Genge tract, by deed of bargain and sale, to Edward Smith, William Elintham, George Genge and Thomas Ackley, in trust, for the uses declared in the conveyance, and which are hereinafter set forth. This deed will be designated as “the deed of 1804.”

By act of the legislature of New Jersey (Pamph. L. 1854, p. 353), the acting trustee or trustees, or persons having control of the land described in the deed of 1804, were authorized to convey the premises to the board of education of the city of Camden.

Thereafter, on January 26th, 1856, Edward Smith, the sole surviving trustee, executed and delivered a deed for the premises to the board of education. This deed hereinafter will be referred to as “the deed of 1856.” The grantees named in this deed went into possession and used the property for school purposes until the summer of 1927. In April of that year the board of education entered into an agreement with the county of Camden by the terms of which the board agreed to sell or lease, and the county agreed to buy or lease, all of the board’s right, title and interest in the Genge tract. Following this agreement, in September, the school building that stood oh the tract was razed and early in 1928 the work was started of constructing foundations thereon for the court house annex to be built upon the Genge tract and adjoining lands. Pursuant to a provision of this agreement the amount to be paid by the county to the board of education as the purchase price of the land was fixed by the late Mr. Justice Katzenbaeh, after hearing evidence as to the market value thereof, at $330,000. The board of education subsequently filed in the Court of Chancery a petition for permission to sell the Genge tract to the count}1, of Camden, under the provisions of an act of the legislature {Pamph. L. 1905, p. 287), which authorizes the sale of trust properties in cases where it is found impracticable to devote the property to the uses designated by the donor. The proceedings thus instituted resulted in the entry of a decree, on March 5th, 1929, authorizing the sale in accordance with the prayer of the petition. This decree was based upon the report of the special master, to whom the matter was referred, that in his opinion the land in question was no longer adapted for school purposes because of the change in conditions in the area contemplated to be served by the school. The decree directed that the board of education should use the proceeds of the sale of the property as a capital fund to defray the cost of the erection and equipment of a school or schools, in order that said fund may be used as nearly as possible in accordance with the trust provisions of the original deed. In pursuance of the decree, and of the agreement before mentioned, the board of education has conveyed the Genge tract to the county of Camden.

The plaintiffs contend that the legal consequence of the foregoing facts is to work a reversion of the title to the land to them as the heirs of the original grantors. That contention presents the sole issue to be decided in this proceeding.

To answer that question it is essential, first, to determine whether the deed of 1804 created a public charitable trust.

- The consideration named in that deed is one dollar paid to each of the grantors and “divers other good causes and considerations * * * and especially for settling adjoining the two several lots of ground, tenements and hereditaments hereinafter described unto and upon such uses and trusts as are hereinafter expressed and declared.” The grant is to the grantees and to their heirs forever. The habendum is to the grantees, “their heirs and assigns to and for their own proper use and behoof forever. In trust, nevertheless, to and for the several uses, intents and purposes hereinafter mentioned and declared of and concerning the same, that is to say, upon special trust and confidence that the said trustees and the survivors and survivor of them and their and his heirs shall and will from time to time and at all times hereafter forever permit and suffer such of the freeholders of the said town of Camden as have already subscribed or shall or may hereafter subscribe towards the expenses of erecting the buildings hereinafter mentioned to erect and build upon the lot or lots of ground aforesaid hereby granted or on some part or parts thereof a school house for the instruction and education therein of the children of the freeholders of the said town of Camden, whether such freeholders be inhabitants of the said town or not, and of the children of all and every such other person and persons as shall inhabit or dwell,within the said town of Camden, and also at will and pleasure to erect and build upon the said lot or lots of ground hereby granted or on some part or parts thereof a dwelling house for the residence of the preceptor or teacher or preceptors or teachers of the said school for the time being, and also at will and pleasure to erect and build thereon all necessary houses of office and other out-houses for the convenient accommodation of the said school house and dwelling house, respectively, and also to repair and rebuild and occupy the same as aforesaid from time to time forever.” “And upon this further trust, that if after the children hereinbefore designated shall from time to time have been first admitted as scholars into the said school there shall remain any vacancies, such vacancies may from time to time be filled by the children of the neighborhood for whom application for admission may be made. And upon this further trust, that the said school so to be opened as aforesaid shall be governed by such rules and regulations as the freeholders of the town of Camden who have already subscribed or shall or may hereafter subscribe as aforesaid shall from-time to time prescribe, ordain and establish, and upon this further trust, that they, the said Edward Smith, William Elintham, George Genge and Thomas Ackley and the survivors and survivor of them and their and his heirs shall and may from time to time make leases of the premises or of such part and parcel thereof as they may think proper and otherwise manage, improve and dispose of the same so always nevertheless that a school shall be kept upon the "premises for the instruction and education of the children aforesaid in manner aforesaid, and so also that all rents, issues, profits and moneys that may from time to time be had or obtained from the premises or from any part thereof shall be applied to the maintenance and support of the said school and to the repairs of the buildings and all other incidental expenses thereof.”

Clear and comprehensive definitions of public charities and charitable trusts are collated in the opinion of the late Mr. Justice Katzenbach, speaking for the Court of Errors and Appeals, in Noice v. Schnell, 5 N. J. Adv. R. 764. Among these are the following:

“A charity in its legal sense may be more fully defined as a gift, to be applied, consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it be so described as to show that it is charitable in its nature. Jackson v. Phillips, 96 Mass. 539.”

“Charitable trusts include all gifts in trust for religious and educational purposes in their ever varying diversity. 2 Perry Trusts (5th ed.) 314.”

“A gift is a public charity when there is a benefit to be conferred on the public at large, or on some portion thereof, or upon an indefinite class of persons. 5 It. G. L. 293, § 3.”

“Trusts for the establishment and support of .free or public schools are favored by the courts and bequests for such purposes have repeatedly been upheld as valid charities or as creating valid trusts for charitable uses. 8 Am. & Eng. Ann, Gas. 925.”

In the light of the foregoing definitions, which are only a few of many of the same purport that might be cited, it is manifest that the deed of 1804 created a valid charitable trust, public in its nature.

While it is not formally stipulated as a fact, I think from evidence before me there can be no question that the trust actually vested in the trustees and was executed by them over a long period. This is indicated by the preamble to the legislative act of 1854, supra, authorizing the sale of the Genge tract to the board of education. Moreover, the law presumes that every gift, whether in trust or act, is accepted until the contrary is proved. Perry Trusts (6th ed.) 441, 448. There has been no proof to rebut this presumption. Indeed the theory of the plaintiffs’ case necessarily presupposes a vesting of the trust, since their claim rests upon an alleged breach of the trust, and there could be no breach of a trust that had never vested or been accepted. With respect to the deed of 1856, it is stipulated that the board of education took title to the land and maintained a school house thereon in which classes were regularly conducted until the summer of 1921. Nor can there be any question that the board of education, as well by virtue of statutory authority as by its implied powers, had the capacity to take and hold title to the Genge tract for the purposes of the trust. Pamph. L. 1854, ch. 35, p. 88; Guild v. Newark, 99 Atl. Rep. 120; 8 Am. & Eng. Ann. Cas. 927.

The second question to be considered is this:

Has the conveyance of the Genge tract by the board of education of the city of Camden to the county of Camden and its use by the county for a purpose not within the terms of' the trust upon which the land was held, effected a reversion of the title to the heirs-at-law of the grantors in the deed of' 1804?

The plaintiffs argue that this question must be answered in the affirmative because, they say, the deed of 1804 to the-trustees, or the deed of 1856 by the surviving trustee to the board of education, or each of the deeds, conveyed a determinable, or limited fee, or was a conveyance upon a condition subsequent.

The deed of 1804 declared the trust and prescribed its terms. The subsequent conveyance of 1856 by the surviving trustee, executed under the sanction of a legislative enactment, was in furtherance of the execution of the trust and certainly must be construed as being consonant with the terms thereof. So that, whether the conveyance was of a determinable fee or upon a condition, must be determined by the terms of the original grant.

The language in the deed of 1804 which the plaintiffs insist constitutes a limitation or condition upon whcih the estate was granted, reads as follows:

“* * * so always nevertheless that a school shall be kept upon the premises for the instruction and education of the children aforesaid in manner aforesaid.”

These words follow a provision that the trustees “may from time to time make leases of the premises or such part and parcel thereof as they may think proper and otherwise manage, improve and dispose of the same.” Read in connection with its context the restrictive provision probably was intended to qualify and limit the power given the trustees to lease, manage and dispose of the property. Even, however, if we give to the clause the broadest effect of which it is susceptible, it must be treated, not as constituting a condition or a determinable fee, but rather a limitation in trust.

This conclusion is supported by a long line of authorities in this state, a number of which are referred to in MacKenzie v. Trustees, 67 N. J. Eq. 652; 61 Atl. Rep. 1027, and in Mills v. Davison, 54 N. J. Eq. 659; 35 Atl. Rep. 1072. In some of the eases cited estates had been granted upon clearly-expressed conditions that they should be devoted to specified charitable uses, and it was held that a failure to use them for such purposes did not result in a reverter.

In the case, In re Young Women’s Christian Association of New York City, 126 Atl. Rep. 610, there was involved a charitable devise the terms of which were set out in meticulous detail and in which it was provided that in the event of the failure of the conditions of the gift, the estate devised should revert. Vice-Chancellor Fielder, following MacKenzie v. Trustees, supra, held that the terms of the gift were not conditions subsequent but were limitations in trust and that there was no reverter.

In support of their contention that the trustees under the deed of 1804 took only a determinable fee, the plaintiffs cite Board of Freeholders of Cumberland County v. Buck et al., 79 N. J. Eq. 472; 82 Atl. Rep. 418. In that case the land in' controversy was convejmd to the board of freeholders to have and to hold, “so long as the same shall be used for the purpose herein before mentioned and no longer.” The use of the property for the purpose named in the deed was permanently abandoned. The contention of the county was that the language of the deed relating to the use of the premises conveyed must be construed as a covenant. Vice-Chancellor Learning held that the deed vested in the grantees a determinable fee. He pointed out the distinction between words of condition and words of limitation, and decided that the provisions of the deed in question so clearly and adequately created a limitation that it was impossible to regard the language used as not having been intended to defeat the estate granted “or as in the nature of a covenant or trust.” The phrase quoted sufficiently differentiates that case from the one sub judice.

Counsel for the plaintiffs also rely upon the deed of 1856 to support their claim to title by reversion. It is argued that a limitation of the fee is found in that deed because, in the language of that act which authorizes a conversance to the board of education by deed, “which shall vest in said board a good and valid title to said real estate as against said acting trustee, or any person claiming title to the said premises, so long as the same are used by the said board exclusively for the purpose of education.”

The grant is to the board of education of the city of Camden, their successors and assigns. The habendum is to the board, “their successors and assigns to and for the only proper use and behoof of the said, the board of education of the city of Camden, their successors and assigns forever.”

It is manifest that by the deed of 1856 there was a conveyance in fee, without any limitation, unless such limitation was intended to be created by the recital of the legislative act in the premises of the deed. Construing the grant and the habendum- in the light of that recital, the most that can be said is that the intent of the grantor was to convey the land subject to the same limitation as that imposed by the deed of 1804, to wit, a limitation in trust.

It is fairly inferable that the purpose of the legislature in inserting in the act of 1854 the clause cited was to safeguard the charitable object of the original grantors of the land that it should be used for educational purposes. If that be so, the stipulation, “so long as the same are used * * * exclusively for the purposes of education,” may be regarded as a paraphrase of the clause in the deed of 1804, “so always nevertheless that a school house shall be kept upon the premises.” It must be assumed, at least, that the legislature did not intend, by anything contained in the act permitting the sale of the property, to create any limitation upon the estate granted, or to set up any scheme for the use of the property not within the expressed intent and objects of the original grantors, inasmuch as any such purpose would not be within the legislative power. 5 Am. & Eng. Encycl. L. 516, citing Tharp v. Fleming, 1 Houst. (Deal.) 580; Cary Library v. Bliss, 151 Mass. 364; Greenville v. Mason, 53 N. H. 515.

Considering all the parts of the deed of 1856 together, including the recital of the trust provisions in the original conveyance and of the legislative act, it is clear that, by virtue of that deed, title in fee was vested in the board of education for the purposes of the charitable trust declared in the original grant, without any limitation, saving only a limitation in. trust.

Freeholders v. Buck, supra, is not an authority contrary to this view. The question of a charitable trust did not arise in that case and therefore the rationale of the decision has no application to the problem here presented. Conclusive evidence of that fact is supplied by the later opinion of Vice-Chancellor Learning in Cuthbert v. McNeill, 142 Atl. Rep. 667; affirmed by the Court of Errors and Appeals, 7 N. J. Adv. R. 832. In that case the court dealt with a question essentially the same as that to be decided in this proceeding. The claim there was, as the claim here is, that by reason of the failure to use the land for the purposes specified in the grant, and its sale by the trustees under the statute of 1905, supra, the trust had been broken and that, in consequence, the title had become vested by reverter in the heirs-at-law of the grantor. The learned Vice-Chancellor, citing Mills v. Davison, supra; MacKenzie v. Trustees, supra, and other authorities, shows that a resulting trust does not arise in favor of the heirs-at-law of donor of a public trust, by reason of the abuse of such trust; that if a charitable trust takes effect in the first instance, the heir-at-law is disinherited once and for all; that when a valid charitable trust has been created without a provision for a reversion, it raised an implied condition against a reverter, permanently excludes the interests of the heirs and next of kin, and does not leave them so much as a “scintilla of right;" that the remedies for non-performance of a charitable trust are available alone to the attorney-general, in behalf of the public, and to the trustee or cestui que trust, in aid of the trust. These remedies do not eontemplate forfeitures of title for breach of the trust, or impracticability of performance by reason of changed conditions. This exposition of the law is entirely opposite to the question under consideration, and demonstrates the inconsistency of the theory of reverter with the rule that a charitable trust which has once taken effect can never cease during the period, perpetual or otherwise, for which it was intended to subsist. A reversion would necessarily terminate the trust and defeat the charitable objects to its donor.

As has been indicated, I am satisfied that the deed of 1804 and the trust imposed thereby, are the controlling factors in the determination of this case. Assuming, however, that the plaintiffs’ rights are to be tested by the deed of 1856 and that that deed contained a limitation, the authorities heretofore cited lead irresistibly to the same conclusion as has been reached with regard to the restrictive provision in the deed of 1804, namefy, that it is a limitation in trust and not a condition, the breach of which gives the heirs a right to re-enter or a limitation of the fee which, ipso facto, effects a reverter.

The findings of the court will be filed in accordance with the conclusions reached, and for the reasons stated, in this memorandum.


author: Backes, Y. C.

text:
    Edward R. McGlynn, trustee of James L. Kempthorne, bankrupt, complainant, v. James L. Kempthorne et al., defendants.
    [Decided June 19th, 1929.]

      Mr. William A. Lord, for the complainant.

      Mr. John A. Bernhard, for the defendants.
   Backes, Y. C.

James L. Kempthorne filed a voluntary petition in bankruptcy in June, 1927. About the same time his wife acquired title to her home in Maplewood in which she invested $2,500. The trustee in bankruptcy seeks to impress the property with a trust in favor of the bankrupt’s estate, claiming that the bankrupt furnished the $2,500 purchase price and took title in his wife’s name in fraud of creditors; and failing in that, the trustee seeks to impress the property with a trust for $2,500, charging that the purchase price was paid by the wife out of money received from the bankrupt in payment of a debt due her while he was bankrupt and within four months before the filing of the petition in bankruptcy, contrary to section 96 of the Bankruptcy act.

It is established that the money paid in the purchase of the property belonged to the wife, not the bankrupt.

- There is no evidence of bankruptcy before the date of filing of the petition, and the proof is that the debt was repaid to the wife more than four months before its filing. It came about in this manner. After the Kempthornes were-married in 1924 the wife, from time to time, loaned the-husband monejr, upwards of $5,000 for use in his business, which he repaid down to approximately $2,000. In the year before the bankruptcy, when his business was apparently flourishing, it was arranged that the husband should invest, the balance due his wife, or as much of it as was required, in a joint real estate venture which turned out profitably. He invested of her money $1,500 upon which a profit of $4,000 was realized just before the petition in bankruptcy. Out of the net return the husband took $3,000 and the wife $2,500, and with her share she purchased the premises in suit. The trustee’s contention that the $2,500 was a preferential payment of her debt within four months of the bankruptcy is without merit. The payment took place at the time of the investment, the year before bankruptcy. That was the arrangement. That is the undisputed and unimpeached testimony, all of which comes from the defense produced by the trustee, and to which he is committed. The unfavorable inferences which he seeks to draw from it does not sustain the charge of fraud, and' no violation of the Bankruptcy act appearing, the bill will be dismissed.


author: Baches, Y. C.

text:
    William Gill, complainant, v. The State Garage, Incorporated, et al., defendants.
    [Decided June 26th, 1929.]

      Mr. John V. Laddey and Mr. Israel B. Greene, for the ■complainant.

      Mr. William If. Flanagan, for the defendants.
   Baches, Y. C.

It is necessary to deal only with exceptions taken to a «ingle subject of the master’s report—the stun to be charged against the directors-trnstees. A decree will he entered in favor of the receiver for the amount hereafter found due ■and the receiver will make distribution in the regular course of administration. Mr. Krueger, one of the directors, claims to be, and he apparently is a creditor oí the company in a large sum. He will he given an opportunity to present his claim under oath to the receiver upon an order to limit creditors. It will then he adjudged according to the common practice.

Mr. Krueger, it would appear, had been for a long while the sole stockholder of the company and alone, and at a loss, managed its only property, a garage. He defrayed the current losses. He sold the garage in 1923, at a loss, and the company went out of business. All the debts except the complainant’s were paid and Krueger took what was left to reimburse himself as far as it went. All creditors were entitled to participate equally in the distribution and the directors are accountable. Gill v. State Garage, Inc., 5 N. J. Mis. R. 759. As Krueger was both trustee-debtor and personal creditor it was thought that a computation could possibly be made of the sum ultimately to be paid by the directors to the complainant and a reference was made to that end to a master. Mr. Krueger has not seen fit or was unable to establish with any degree of certainty his standing as a creditor, and that course is now abandoned and he must pursue his remedy in the manner indicated. That course is left open to him only because the one taken for expediency sake will not permit a decree barring him. If he hopes to succeed before the receiver he cannot rely on isolated accounts paid by him for the company. He must account for all of his dealings with the company and the balance struck will be the sum of his participation in the distribution.

The master reported that the director-trustee had in hand from the sale of the garage.................. $78,174.93

There is a discrepancy due to the omission of two items of $11,000, mortgage, and $3,504.16, interest.

The master should file a corrected report.

The amount is correct, though the defendants submit that it should be larger, $79,281.29.

As to disbursements the following are satisfactorily established:

To building and loan association, for arrears, &c............................ $6,747.00

Second and third mortgages........ 39,000.00

Judgment of Republic Eireproofing Company...................... 5,526.41

Redemption from tax sale for 1921. . 5,375.50

Judgment ol Philip Lowy......... 1,443.75

Judgment ol Fidelity Union Trust Company ..................... 160.00

Making a total of . ......... $58,252.66

A decree will go to the receiver for....... $19,922.27

The master refused the first item for building and loan arrears. It was paid in a lump sum about the time of the sale, as shown by the building and loan company records. Krueger paid it.- Compensation is to be found in the purchase price charged to the directors.

The master disallowed the item for taxes. They were paid about the time of settlement. The tax receipt shows it. The payment was made by Krueger.

The sums of the other three items are arrived at by adding interest and costs to principal of the judgments.

The exceptions to the amount reported to be due the complainant of $2,867.22 is overuled. That is the correct sum. The judgment includes allowances for medical service and attorney’s fees in addition to the weekly allowance.

Exceptions are overruled or sustained accordingly.

Execution on the decree will be stayed on notice and giving security to pay complainant’s debt or as much as may be eventually apportioned to him out of the assets.


author: Per Cubiam.

text:
    GEORGE FIXTER, PLAINTIFF, v. CLARENCE VAN DEREN, DEFENDANT.
    Decided June 3, 1929.
    Before Justices Trenchaed, Kalisolt and Lloyd.
    Eor the rule, Conover English.

      Contra, Hobart & Minará.

   Per Cubiam.

There was a verdict for the plaintiff in the Hudson County Circuit against the defendant for the sum of $3,765, and a verdict against the defendant, and in favor of the plaintiff on a counter-claim, filed by the defendant in the action.

A rule to show cause was obtained from the trial judge why both of these verdicts should not be set aside and a new trial granted.

The record before us shows, that after the commencement of the action by George Eixter, the plaintiff herein, he died, and Mary Eixter, his executrix, was substituted on the record.

The testimony discloses, that on April 15th, 1920, Eixter and his wife, entered into a written contract with the defendant, whereby the former agreed to sell to the latter, certain land in the town of Harrison for $25,000. The sum of $5,000 was to be paid on the signing of the contract, and the balance of- $20,000 at the time of the passing of title, which was to take place on or before the second day of August, 1920.

Tlie sum oí $5,000 was paid on the day of the execution of the contract.

When the time for passing of the title arrived, it was mutually agreed between the parties to extend its performance to August 5th, 1920. On that date, a further agreement was entered into between the respective parties, as to the payment of the consideration money.

The agreement acknowledges the receipt of $5,000 by the plaintiff, on account of the purchase price of the property, according to the terms and conditions of the contract, and also acknowledges the receipt on August oth, 1920, of the further sum of $15,000 on account of the sale price of the property, and provided that as soon as the question of the riparian rights is settled, according to said contract, the plaintiff is to receive the balance of $5,000. Prom that time on, till 1925, live years after the last payment was made, the matter seems to have slumbered, for nothing appears to have been done by the defendant, to settle the question of riparian rights, and it was only after this great lapse of time, that Pixter brought his action to recover the $5,000 which was held by the defendant, with the former’s consent, so that the defendant should he afforded an opportunity to settle the question of riparian rights, as stipulated in the contract of August oth, 1920.

The testimony further discloses that the defendant in acquiring title to the Pixter property, was acting for the Otis Elevator Company, but in his own name, and that he also acquired other tracts of land in that vicinity for the same purpose and in like manner.

It further appears that by deed dated March 8th, 1922, but which deed was not recorded until December 11th, 1925, the defendant conveyed to the Otis Elevator Company, together with other tracts of land he had acquired, the same premises he bought from Pixter, and as has already been pointed out, the defendant had done nothing whatever in regard to having the riparian rights settled. It seems, that before the case came on for trial, through negotiations or otherwise, the defendant paid to the plaintiff the sum of $3,500 on account of the $5,000, leaving $1,500 which the plaintiff claimed was due and owing to the estate of George Fixter, he having died in the meanwhile, so that at the time of the trial, the claim of the plaintiff was that the estate was entitled to recover interest on the sum of $5,000 from August 5th, 1920, to February 4th, 1928, at which time the defendant paid $3,500 on account, to the plaintiff, and the sum of $1,500 with interest, from Februaiy 4th, 1928, to the date of the trial.

On behalf of the defendant, it was insisted that the plaintiff was not entitled to any interest, either on the $5,000 or the $1,500, under the circumstances under which the payment of the said sums was withheld by the defendant.

Under the counter-claim, defendant insisted he was entitled to .be reimbursed by the plaintiff for the expenses which he incurred as a result of the application made by him in the name of the Otis Elevator Company, to the board of commerce and navigation, to obtain a deed for the riparian rights, for which deed the defendant claimed he expended altogether, the sum of $865.65.

At the close of the ease, counsel of the defendant requested the trial judge to direct a verdict for the defendant on the counter-claim, in the sum of $865.65, which motion was denied.

On behalf of the plaintiff a motion was also made for the direction of a verdict, on the ground that the defendant had not sustained the burden of proof of his defense. This motion was also denied.

We think both of these motions were properly denied, since the questions involved were mixed questions of law and fact.

Counsel for defendant in his brief submitted to the court, says: “Two main questions, therefore, arise on this rule to show cause: (1) Did the trial judge commit error at law in leaving the case to the 'jury in charging them to construe the contract?

“2. Assuming he correctly left the case to the jury, should the verdict be set aside as contrary to the weight of the evidence ?”

The first question assumed that the trial judge in his charge to the jury instructed it to -construe the contract, whereas a plain reading of the charge makes it clear he did not do so.

From the testimony in the cause it appears, that at the time the contract was entered into between the paries, there existed certain riparian rights which the plaintiff had acquired and which his grantors had secured from the hoard of freeholders, &c., and that the plaintiff could only have had in mind to give such riparian rights as he then had, whilst for the defendant It was claimed that the term “riparian rights,” as used in the contract, was intended to cover more than the limited grant made by the board of freeholders, and this situation, manifestly, raised a factual question, as to what the intention of the parties was, and therefore was for the decision of a jury.

We think the trial judge accurately applied the legal rule to the facts developed by the testimonjy and properly submitted the question to the jury.

After a careful examination of the testimony in the cause, we have also reached the conclusion that the verdicts rendered by the jury were warranted by the evidence.

The rule to show cause is discharged, with costs.


text:
    ALBERT J. LUEBBERS, APPELLANT, v. CHARLES J. SCHAAL, RESPONDENT.
    Decided June 5, 1929.
    Before Justices Tbkstchabd, Kalisch and Lloyd.

      Eor the appellant, Frederick W. Schlosstein.

    Eor the respondent, Walter D. Van Riper.

   Pee Cueiam.

By a per curiam opinion filed in the instant case, and reported in 7 N. J. Mis. R. 310, it appears that the judgment of the District Court was' affirmed. It is there stated that the trial'judge gave judgment for $50 in favor of the plaintiff, and against the defendant, and that the defendant appealed to this court, whereas there was a judgment for the defendant, from which the plaintiff appealed, which judgment was affirmed. It is further stated in' the opinion, that no specifications of causes for reversal of the judgment were filed, pointing out any particular error relied on by the appellant for a reversal.

It appears that the state of the case agreed upon by the attorneys of the respective parties, and printed as the state of the case, did not contain the specifications of determinations of the District Court, but, such determinations were printed, and were submitted under a separate cover, and were filed with the clerk of the court, within due time, but through inadvertence were not before the court when the case came up for consideration.

The appellant having applied for a rehearing, we have reached the conclusion that the application be allowed, and that the cause be noticed for a rehearing before this court at the state house in Trenton, on the twentieth day of June, 1929, at one o’clock in the afternoon of that day.


text:
    BOROUGH OF FLORHAM PARK, A MUNICIPAL CORPORATION, AND OTHERS, PROSECUTORS, v. DEPARTMENT OF HEALTH OF THE STATE OF NEW JERSEY, AND OTHERS, DEFENDANTS.
    Argued May 8, 1929
    Decided June 5, 1929.
    Before Justices Parker, Black and Bodine.
    For the prosecutors, Robert E. Burke and Hobart & Minar d.

    For the defendants, Howard F. Barrett.

   Per Curiam.

Certain residents of Florham Park applied to the mayor and council and the board of health of the borough for approval of a plan for the establishment of a cemetery on the Hancock property, a tract of about forty acres in that borough. On June 4th, 1928, the mayor and council rejected the application. On June 11th, 1928, the board of health of the borough took similar action.

The promoters of the cemetery then applied to the state board of health, and on December 4th, 1928, a hearing was held by that board. At this hearing four members of the board were present. On February 5th, 1929, the permit was granted at a meeting of the board; six members being present and five qualified to vote.

The state board of health functions under chapter 288 of the laws of 1915, page 517. Under chapter 94 of the laws of 1922, page 175, the board is composed of eleven members.

At the time of the hearing and determination of the question in issue there were eleven qualified members of the board.

' There is no provision in the statute with respect to the number of the board that shall constitue a quorum for the transaction of business, although the board is empowered to make rules. It has, by rule, provided that five members shall constitute a quorum.

This it cannot do. The rule <?f law is succinctly stated in 43 Corp. Jur. 502 as follows: “A municipality may not fix its own quorum, either where there is a statute or charter provision fixing it, or in the absence thereof. If the charter is silent and there is no general law fixing a statutory quorum, then the common law rule of majority will govern, notwithstanding there may be a municipal by-law, rule or order prescribing a greater or less number for a quorum.” See, also, 2 Dill. Mun. Corp. (5th ed.), § 521; Barnert v. Paterson, 48 N. J. L. 395; Oxford v. Delaware, Lackawanna and Western Railroad, 64 Id. 195; Brown v. District of Columbia, 127 U. S. 579; United States v. Ballin, 144 Id. 1.

The state board being composed of eleven members no less than a majority can constitute a quorum. At the meeting of the board on December 4th, 1928, there was not a majority present. At the meeting of February 5th, 1929, Dr. Potts, the sixth member of the board present, was disqualified and did not participate because he was engineer for the borough of Florham Park. A member who is disqualified cannot be counted to make a quorum. Metropolitan Tel. Co. v. Domestic Tel. Co., 44 N. J. L. 568, 573.

It is argued that since the board has power to adopt rules it can change the rule with respect to a quorum. This, however, is not so. See Barnert v. Paterson, 48 N. J. L. 395; Outwater v. Carlstadt, 66 Id. 510; Tappan v. Long Branch, 59 Id. 371.

Since the action of the board was not properly taken, it is unnecessary to consider the other points raised.

The action of the state board will be set aside.


text:
    CHARLES ALSTON, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT-APPELLANT.
    Submitted May term, 1929
    Decided June 12, 1929.
    Before Justices Parker, Black and Bodtne.
    For the appellant, Henry H. Pryting.

    For the respondent, Samuel S. Stern.

   Pee Curiam.

This suit was brought to recover damages to an Oldsmobile touring car and compensation for personal injuries. The case was tried by the judge of the District Court without a jury, resulting in a judgment for the plaintiff for $225. The defendant files three specifications of determinations, with which it is dissatisfied in point of law—first and second, error by the trial court in refusing to nonsuit the plaintiff on the ground of lack of proof of negligence, and that the plaintiff was guilty of contributory negligence; third, error in entering judgment for the plaintiff.

The questions involved under the evidence in the record are pure questions of fact, determined by the trial judge.

Some of the important facts are these: The Oldsmobile touring ear injured in which the plaintiff was riding with his companion, David Champion, the plaintiff in No. 406, the present May term of the court, was being towed easterly on Grand street, Jersey City, by another car. Grand street runs east and west. In the middle of the street' are two sets of trolley tracks operated by the defendant company. There was an obstruction on the right-hand side of the street, so that the cars could not pass between the sidewalk on the right-hand side and the eastbound track. The driver of the first automobile pulled to his left to go around the obstruction. After the first car had gotten by the obstruction, the driver of that car turned to his right again. The second car, in which the plaintiff and his companion were riding, and which was being towed by an eight-foot tow rope, as it was in the act of swinging around the obstruction, i. e., a manhole, was struck between the doors on the left-hand side of the left-hand bumper of the defendant’s trolley car (record, page 27, lines 1-10). This is the crux of the case. The plaintiff has two witnesses to testify to this fact, the defendant had three witnesses to testify to the fact that the automobile hit the trolley car. The trolley car was going west in the opposite direction (record, page 27, line 20). There was evidence to justify the trial court’s finding, so the judgment of the District Court is affirmed, with costs.


text:
    CATHERINE KENNEDY AND WILLIAM J. KENNEDY, PLAINTIFFS-APPELLEES, v. PUBLIC SERVICE TRANSPORTATION COMPANY, DEFENDANT-APPELLANT.
    Submitted May 8, 1929
    Decided June 21, 1929,
    Before Justices Parker, Black and Bobine.
    Por the plaintiffs-appellees; George B. Walsh.

    Por the defendant-appellant, Henry H. Fryling.

   Per Curiam.

Husband and wife brought suit for personal injuries suffered by the wife while riding in the defendant’s bus.

The testimony in the plaintiffs’ ease show that Mrs. Kennedy was thrown by the sudden stopping of the bus, and her head injured. The testimony on behalf of the defendant shows that the sudden stopping of the bus was due to a Pord car suddenly cutting in in traffic in front of the bus, so that the bus driver, to avoid a collision, applied his brakes suddenly. There is some conflict of testimony as to the rate of speed of the bus.

On this state of proofs, the judgment below seems not erroneous and will be affirmed.


author: Per -Curiam.

text:
    ELBERT PALING, BY NEXT FRIEND, ET AL., APPELLEE, v. NEW YORK CENTRAL RAILROAD COMPANY, APPELLANT.
    Submitted May 17, 1929
    Decided June 21, 1929.
    Before Justices Parker and Bodine.
    For the appellant, George G. Tennant, Jr.

    Por the appellee, Irving Prince.

   Per -Curiam.

The plaintiff, who according to his claim, was a passenger on the defendant’s railroad, boarded a train of the defendant at Weehawken on his way home at about five-thirty p. m. and took a seat with a friend. It was a hot day, and they wished to open the window. This window was double. They succeeded in opening the inner window, and according to the testimony for the plaintiff, as they were working on the outer, window to open that also, the entire pane of glass of that window fell inward, and broke, cutting the plaintiff’s hand.

There was np explanation in the plaintiff’s case as to why the pane of glass dropped out. The case for the defendant was that the two young men were hammering on the glass and broke it in that way. This seems to have raised a question of fact for the trial judge sitting as a jury.

On the trial it was urged that there was no evidence to show that the plaintiff ivas a passenger; but this seems to be now abandoned.

It was further urged that there was nothing in the circumstances to indicate negligence of the defendant; and this naturally raised the question of res ipsa loquitur. We think that a question for the jury was raised by the occurrence of the accident, in the manner claimed by the plaintiff, and which the judge, sitting as a jury, was entitled to believe, and are content to rest this conclusion on the case of Hughes v. Atlantic City Railroad Co., 85 N. J. L. 212. This case is relied on for the appellant; but the reversal of the judgment for plaintiff in that case was based upon error in the charge in which the court improperly shifted the burden of proof.

The final ground urged was andáis that the evidence conclusively showed that the plaintiff was guilty of contributory negligence; and this depends entirely upon the view that the trial judge took of the facts. If, as we must assume, he found that the glass fell out because the plaintiff was trying to lift the window there was no reason why as a matter of law he should be required to find that the plaintiff was negligent in what he did.

The judgment will be affirmed.


text:
    WALTER H. TREFTZ, PLAINTIFF, v. WILLIAM H. KIRBY, DEFENDANT.
    Decided June 21, 1929.
    Before Gummeee, Chief Justice,'and Justice Parker.

      For the rule, William A. Moore.

   Per Curiam.

The plaintiff brought suit against the defendant to recover compensation for damage done to his touring car in a collision between it and an automobile truck belonging to the defendant, the accident occurring on the night of November 17th, 1927. The trial resulted in a verdict in favor of the plaintiff, the jury awarding him $500.

The first ground upon which we are asked to set aside the verdict is that the trial court erred in refusing to grant a motion for a mistrial made by the defendant. The plaintiff’s attorney had called as a witness the driver of his client’s car. On cross-examination the attorney asked this witness whether he had not made a statement in writing to someone with relation to the details of the accident. The witness admitted that he had. On redirect examination the attorney for the plaintiff asked the witness this question: “Whom did you make the statement to?” The answer was, “Why, to some insurance man.” Defendant’s attorney claimed that this testimony was prejudicial to the defendant, and based his motion for the direction of a mistrial upon the admission of this evidence. Assuming that the testimony was injurious to the defendant, it was, nevertheless, competent. The defendant having proved that a statement was made by the witness to some person, whose name was not called for on cross-examination, the plaintiff was entitled to know who that person was.

Next, it is contended as a ground for making the present rule absolute that the trial court erred in refusing to grant a motion for a nonsuit, and also a motion to direct a verdict, upon the ground that the proofs failed to show any negligence on the part of the defendant’s employe causing the accident, and upon the further ground that plaintiff contributed to the accident by his own negligence. Both of these motions were properly denied. The proofs showed that the defendant’s truck was parked near the curb on Main street, in the town of Lambertville, with no one in charge of it, when the accident happened; that it had no red light on its rear as a warning to people approaching in that direction, although such light is required by the motor vehicle statute when a car is parked after nightfall; that plaintiff’s car was being driven practically along the middle of the road at a speed of about twenty miles an hour; that just before reaching the truck of the defendant the driver of plaintiff’s car was compelled to swing to the right to avoid a car coming in the opposite direction, and almost immediately after this it came in contact with the truck; and that he failed to observe it because of the darkness of the night (it being raining), and also because of the absence of a red light upon its rear. These facts, in our opinion, present a case quite similar in legal aspect to that of Seibert v. Goldstein Co., 99 N. J. L. 200; and, as was held in that case, the question of the negligence of the defendant’s driver, and the contributory negligence of the driver of the plaintiff, were matters to be left to the jury for determination.

It is next argued that the court erred in permitting ihe plaintiff, at the close of the testimony submitted at the trial, to file a reply denying the contributory negligence charged against him in the answer, it appearing that the failure to file such reply was the result of the negligence of plaintiff’s attorney. As the question of contributory negligence was one of the matters involved in the case, the propriety of allowing this privilege rested in the discretion of the court, and in granting it the court cannot be said to have been guilty of any abuse in the exercise of that discretion.

It is next argued that the trial court erred in refusing to charge several requests submitted by the defendant. An examination of the ease, however, shows that no exception was taken to the refusal to charge these requests, and we see no reason for our consideration of them.

Lastly, it is argued that the verdict is against the weight of the evidence. We do not think so, and, in our opinion, the facts that have already been stated justify the conclusion that the driver of the defendant’s truck was guilty of negligence in leaving it unprotected and without a tail light; and that it was for the jury to say whether, under the conditions existing in this case, ‘there was any negligence on the part of the driver of the plaintiff’s ear.

The rule to show cause will be discharged.