author:
Harry J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DAVID JACKSON, PETITIONER, v. THE PENNSYLVANIA RAILROAD COMPANY, RESPONDENT.
    On determination and rule for judgment.
    Eor the petitioner, Charles Becker.

    Eor the.respondent, Harry C. Brown.

   After hearing the testimony I find that the petitioner failed to prove he was engaged in intrastate commerce at the time of the alleged accident, October 15th, 1925, which was alleged to have occurred at River street freight station, Newark, New Jersey.

*******

Harry J. Goas,

Deputy Commissioner.


source: Caselaw Access Project

author: Buchanan, Y. C.

license: Public Domain

text:
    Ludington Development Company, complainant, v. Harry J. Bogash et al., defendants.
    [Decided April 26th, 1926.]
    Process—Service on Non-residents—Service by Publication—Defendants Appear to Move to Set Vacate Order for Publication on the Ground That it was Improvidently Entered, the Case Being in Personam, Not in Rem—Motion Will be Denied—Whether Defendants’ Action, Under All the Circumstances, Constitutes a General or Special Appearance, Not Now Before the Court.
    On motion to set aside order of publication.

      Messrs. Wescott & Varbalow, for the motion.

      Messrs. Bleakly, Slochwell & Burling, contra.

   Buchanan, Y. C.

The suit is of the class known as suits for specific per-» formance, complainant, as vendee under contract of sale, seeking to acquire the legal title to the premises comprised in the contract, which are located in this state.

The defendants Bogash and Golden, who make the present motion, are grantees subsequent to the contract. They are non-residents of New Jersey, and have not been served with process in this state. An order of publication was made against them, and noti.ce of such order was served upon them personally in the State of Pennsylvania, in conformity to the terms of the order of publication and the statutes and practice in that behalf for service ' upon non-resident defendants.

The motion, and the notice thereof, constitute the only appearance made by these defendants in the suit. In the notice and the motion they specifically limit their appearance, or attempt so to do, as “special” and “solely for the purpose of attacking the validity of the proceedings relative to the order of publication, and not appearing generally.”

The motion is to vacate the order of publication (and set aside the proof of service thereof) on the ground that it was improvidently entered, because the cause of the action set up in the bill of complaint is one in personam, and not in rem.

No leave was obtained by these defendants from this court permitting them to make such special and limited appearance. Complainant argues that the motion should, for that reason, he denied, unless the appearance is to be deemed (by reason of the failure to obtain leave for special appearance) a general appearance, constituting a complete submission by the defendants to the jurisdiction of this court.

As an alternative to this proposition, complainant suggests that the present motion 'may he deemed an application for leave to appear specially, and that the application should be granted only on condition that the deféndant consent that if^ the motion, for- which they are given leave to appear specially, be decided against them, their appearance shall be deemed and taken to be a general appearance and complete submission to the jurisdiction.

With regard to this last proposition, it is sufficient to say that the defehdants have not asked, and are not asking, leave to appear specially. They have appeared, and their motion is to set aside the order of publication and the proof of service.

That -motion must be denied. Non-resident defendants cannot object to the entry of an order of publication. Kirkpatrick v. Post, 53 N. J. Eq. 591; affirmed, Ibid. 641. Nor can it be seen that they have any better right or standing to object to the filing of proofs that such order has been complied with.

Since the motion must be denied for the reason just stated, it is not necessary to consider whether or not the fact that defendants have appeared specially, without having first obtained leave so to do, would, of itself, require denial of their motion.

Whether or not the action which defendants have, in fact, taken, constitutes under all the circumstances a general appearance, is a question not now before the court.


author: Inoersoll, Y. C.

text:
    Florence Somers Scull, complainant, v. Gateway Casino, Incorporated, defendant.
    [Determined May 1st, 1926.]
    Easements—Bill to Restrain Interference—Defense Claims Abandonment for More Than Twenty Years, Denies the Existence of the Right Claimed and Challenges the Jurisdiction of the Court of Equity—Bill Will Not be Dismissed, but Transferred to Proper Law Court Under L. 1912, p. 417.
    On bill, &c. On order to show cause.
    Messrs. Bourgeois & Coulomb, for the complainant. Mr. Albert C. Abbott, for the defendant.
   Inoersoll, Y. C.

The bill of complaint seeks to restrain the defendant from interfering with an alleged easement of way in and over a strip of land owned by defendant.

The defense was, that said right had been abandoned for more than twenty years prior to the filing of the bill, and the answer expressly denied the existence of the right claimed. The answer further challenged the jurisdiction of this court.

Affidavits were heard, and. the existence of such an easement is in dispute.

The defendant claims that the bill should be dismissed, as stated to be the proper course in Mason v. Ross, 77 N. J. Eq. 527.

This was the proper procedure prior to the enactment of “An act to provide for the transfer of causes by and between the court of chancery and the supreme court, or circuit court or courts of common pleas.” P. L. 1912 p. 417.

This court having no jurisdiction, an order will be advised that the cause be transferred to the proper law court.


author: Pee Cueiam.

text:
    THE STATE, DEFENDANT IN ERROR, v. JOHN LETTER AND ANTHONY DICANIO, PLAINTIFFS IN ERROR.
    Decided April 16, 1926.
    Crimes—Robbery—Challenge of Jurors for Cause Cannot be Properly Made to the Panel in the Box; Such a Challenge Must be Made When Juror Presents Himself to be Sworn— Hearsay of One Defendant Against Another Improperly Admitted—Definition of Robbery and Destruction Between Larceny and Robbery Considered-Charge That Drunkenness in Any Degree Cannot Mitigate Commission of Crime is Inaccurate, and in This Case Led to Injury to One Defendant, Since, if He was too Drunk to do the Act Charged, Proof of Such Condition was an Effective Defense.
    On error to the Atlantic County Quarter Sessions.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    For the plaintiffs in error, John G. Reed.

    For the defendant in error, Louis A. Repetto.

   Pee Cueiam.

The defendants below were convicted of robbery in Atlantic County Quarter Sessions. The case is here before us on writ of error under the one hundred and thirty-sixth and one hundred and thirty-seventh sections of the Criminal Procedure act. The first cause for reversal relied on in the brief filed on behalf of the plaintiffs in error is: Eefusal of the trial court to allow defendant to examine jurors upon their voir dire before being sworn as jurors. There is no substance in this. According to the record the jurors were in the box and counsel for defendant stated to the court, “I would like to challenge for cause if I may. Have any of you ladies or gentlemen read anything about this case, or about these young men, and, if so, are your minds open and not susceptible of being prejudiced of what you have read?” The prosecutor objected and the court sustained the objection. This was right.'1 In the first place, there was no challenge for cause, and, moreover, such a challenge cannot be properly made to the panel in the box. A challenge for cause must be made when the juror presents himself to be sworn and before he is sworn, and such challenge must state the grounds upon which it is based. The second ground for reversal of the judgment is that the trial judge, over objection of defendants’ counsel, permitted the witness Eerreti, captain of the detective department, to testify to a conversation had by him with DiCanio at the time of his arrest, and in the absence of Letter, in which conversation DiCanio said, that Letter was his partner in the hold up and was engaged with him in the robbery. This testimony was hearsay, prejudicial and harmful to Letter, and, as was said by Chief Justice Gummere, in State v. Niesbblaski, 82 N. J. L. 177, where the circumstances of the case are somewhat analagous to the facts under consideration, to constitute reversible error. In the present case, the defendant affected by this error was Letter. The third point relied on for reversal is, that the trial judge erred in his instructions to the jury as to what constituted robbery. The court charged the jury “that robbery is stealing property with violence from the person or personal custody of another person. It is necessary, in order to constitute the crime, that the goods shall be on the person of the owner or owner’s agent, or shall be in his presence’and in his custody. The distinction between larceny and robbery is this: In larceny the property is taken privately and without knowledge of the owner; in robbery the property is taken forcibly with the knowledge of the owner, but against his will.” Both definitions are incorrect. Our statute declares that any person who shall forcibly take from the person of another money or personal goods or chattels by violence or putting in fear constitutes robbery. In the present case the definition as to what constituted robbery as applied to the facts in the cause was correct, for it appears that the money was forcibly taken from the person of the owner, and there was no phase of the case which involved mere larceny from the person, and, hence, the erroneous definition of what constitutes larceny, was harmless. The next point made and argued in the brief is that the court erroneously instructed the jury as follows: “The court instructs the jury that drunkenness in any degree cannot justify or mitigate the commission of crime.”

That drunkenness in any degree cannot justify the commission of crime as a general legal proposition is correct. Drunkenness cannot be pleaded successfully in justification of the commission of any unlawful act. The plea of justification implies a lawful reason for the commission of the alleged unlawful act. It has been universally hold that drunkenness affords no legal justification. But to say that drunkenness in any degree cannot * * * mitigate the commission of a crime is inaccurate.

It has been held by our Court of Errors and Appeals in Warner v. State, 56 N. J. L. 686, 690, and in Wilson v. State, 60 Id. 171, that when the character and extent of a crime is made by law to depend upon the state and condition of the defendant’s mind at the time and with reference to the act done, intoxication as a circumstance affecting such state and condition of the mind is a proper subject for inquiry and consideration by the jury as to the degree of crime committed.

It is to be particularly noted that in the present case of proof of intoxication of Letter was not offered either as a justification or in mitigation of the crime alleged against him, but as an important circumstance for the jury to consider whether he was in such a physical and mental state as to make it improbable that he had any connection with, or in anywise to have participated in, the robbery alleged to have been committed in the taxicab by DiCanio, in view of testimony to the effect that the defendant was practically carried to the cab and was “lying in the cab unconscious” “in a drunken stupor,” at the time of the commission of the alleged robbery.

The trial judge in stating to the jury that drunkenness in any degree cannot justify or mitigate the commission of crime, and without saying anything further on the subject, unwarrantly assumed that the defense of intoxication interposed by Letter was in justification of the charge against him, and, if not, at least, in mitigation of the offense. The incalculable harm done by this instruction to the jury was to take practically from its consideration in the question whether Letter’s intoxication was to such a degree that he was mentally and physically disabled from abetting or participating in the alleged robbery. This was error.

Eor if the drunkenness of Letter was to such a degree that he was not able to conceive any intent to commit the unlawful act and was physically helpless to abet or to participate in the commission of the unlawful act, proof of such a mental and physical state was as effective a defense to the accusation made against him as if he had been mentally and physically disabled by paralysis or some other disease from conceiving the criminal design and from executing it.

For the reasons given the judgment against DiCanio is affirmed and the judgment against Letter is reversed, and as to him a new trial is ordered.


author:
Charles E. Corbin,
      Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    DAVID DANN, PETITIONER, v. SCHULTE CIGAR COMPANY, DEFENDANT.
    Hernia—Due Notice of Accident Not Given—Case Dismissed
    On determination and order.
   A petition heretofore having been filed by the petitioner herein under the Workmen’s Compensation law, State of New Jersey, in all its amendments, and having been adjourned from time to time, and having come on for final hearing before Deputy Commissioner Charles E. Corbin, on Friday, February 5th, 1926, at the compensation court, 571 Jersey avenue, Jersey City, and the court having heard testimony of the petitioner, David Dann, and it appearing that on or about the 21st of February, 1924, he was in the employ of the respondent herein, and that while he was in his employ he received an accident while lifting a window, which accident resulted in a hernia, and it further appearing to the court that the petitioner did not report the accident to his employer until some time around the 14th of March, 1924, it is hereby ordered, that the petitioner did not comply with the statute in such cases as made and provided, and that he failed to give the necessary notice to his employer within twenty-four hours.

The petition is therefore dismissed.

Charles E. Corbin,

Deputy Commissioner.


author:
Harry J. Coas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RICHARD VENTURA, PETITIONER, v. BUCHMULLER TRANSPORATION, INCORPORATED, RESPONDENT.
    On determination and rule for judgment.
    Eor the petitioner, J oseph Gaudielle.

    Eor the respondent, McCarter & English.

   It appearing from the petitioner’s proofs that neither he nor anyone for him gave the respondent notice of his alleged injury, as required by the Workmen’s Compensation act, its amendments and supplements, and it further appearing that the respondent had no knowledge of any such alleged accident,

It is, on this 17th day of May, 1926, on motion of McCarter & English, attorneys for the respondent, ordered that the petition be and it is hereby dismissed and for nothing holden, and that judgment final be entered in favor of the respondent and against the petitioner.

Harry J. Coas,

Deputy Commissioner.


author: Peb Oubiam.

text:
    BLANCHE BUDNICK, BY NEXT FRIEND, AND JOSEPH BUDNICK, v. ISIDOR FINKEL, DOING BUSINESS AS ESSEX COUNTY NEWIS COMPANY.
    Submitted November Term, 1925
    Decided April 29, 1926.
    On rule to show cause.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Edwin F. Smith.

      Contra, Thomas F. Meaney.

   Peb Oubiam.

Defendant has this rule to show cause why the verdicts secured by plaintiffs should not be set aside. As no brief has been filed with us by counsel for the defendant, it is probable that the prosecution of such rule has been abandoned. We have, however, examined the proofs, and conclude that the verdicts should not be disturbed.

The rule to show cause is therefore discharged.


author: Per Curiam.

text:
    BENJAMIN FREEDMAN, PLAINTIFF, v. BENJAMIN WEISSMAN, TRADING AS WEISSMAN FURNITURE COMPANY.
    Submitted November 5, 1925
    Decided April 29, 1926.
    Negligence—Motor Vehicle Accident—Question Whether Defendant’s Servant was at Time of Accident Attending to Master's Business—Verdict Against Weight of Evidence.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisoh and Campbell.
    Eor the rule, William E. Holmwood.

      Contra, Louis Josephson.

   Per Curiam.

Plaintiff having a verdict for $3,800 the defendant has this rule seeking to. set it aside, because it is against the weight of the evidence, and is excessive.

Our consideration of the proofs causes us to conclude that the verdict is against the weight of the evidence upon the question as to whether or not defendant’s servant who was operating the motor car, causing the damage and injury, was at the time of the happening about his master’s business and acting within the scope of his employment.

The rule to show cause is therefore made absolute and a venire de novo awarded. °


author: Peb Cueiam.

text:
    JOHN W. LEONARD, ADMINISTRATOR AD PROSEQUENDUM OF ESTATE OF TIMOTHY P. LEONARD, DECEASED, PLAINTIFF-RESPONDENT, v. MICHAEL CACCIOPPOLI AND TONEY CACCIOPPOLI, DEFENDANTS-APPELLANTS.
    Submitted November 5, 1925
    Decided April 29, 1926.
    On appeal from a judgment of the Hudson 'Circuit.
    Before G-ummeke, Chief Justice, and Justices Kalisch and Campbell.
    For the appellant, William George.

    For the respondents, O’Brien & Tartalslcy.

   Peb Cueiam.

This is an appeal from a judgment of the Hudson County Circuit Court in favor of respondent.

The grounds for reversal are that the trial court erred in refusing to nonsuit and direct a verdict in favor of appellants upon the ground that no negligence had been established as against them.

There was evidence, however, of such negligence, and, therefore, it was not error to refuse to nonsuit or direct a verdict.

The judgment below is affirmed.


text:
    DAVID G. CONRAD ET AL., PLAINTIFFS, v. ABRAM GERBER ET AL., DEFENDANTS.
    Argued October 8, 1925
    Decided April 29, 1926.
    Negligence—Carelessly Starting Fire which Damaged Plaintiff's Property—Both Sides Ask to Set Verdict Aside, Plaintiff’s Because of Insufficiency of Award, Defendant’s Because Verdict was Against Weight of Evidence—New Trial Ordered.
    On rules to- show cause.
    Before Gummebe, Chiee Justice, and Justices Kalisch and Campbell.
    Eor the plaintiffs, Howard Ewart.

    Eor the defendants, Palmer & Powell.

   Pee Cueiam.

This action was tried at the Burlington Circuit, and had for its purpose the recovery of damages to timber, lumber, sawmill and machinery of the plaintiffs, which were burned by a fire alleged to have been caused by the negligent manner in which the defendants set and guarded a fire in their cranberry bog. The trial of the cause resulted in a verdict in favor of the plaintiffs for $4,273.56.

Both parties to the action have rules to show cause why this verdict should not be set aside.

The plaintiffs under their rule urge that the jury improperly assessed their damages and that the verdict is inadequate and should be set aside and a new trial had as to damages only.

On the other hand, the defendants contend that the verdict in fixing liability upon them for the fire which destroyed plaintiffs’ property is against the weight of the evidence, and should therefore be set aside and a new trial had as to all the issues.

Both parties agreeing that the verdict reflects the unfitness of the jury to pass properly upon the issues strengthens our conclusions, reached after an examination of the proofs, that the verdict must be set aside and a new trial had as to all the issues.

Both rules are therefore made absolute, and a venire de novo will issue.


author: Pee Ctjbiam.

text:
    ALLWIN P. SCHAEFER. PLAINTIFF-APPELLEE, v. COLLEONI REALTY COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted January 15, 1926
    Decided May 4, 1926.
    Negligence—Injury to Plaintiff by the Operation of Defendant’s Elevator—Plaintiff, a Plumber, was Employed by Defendant’s Lessee to Repair a Lavatory—The Repairs, In the Plaintiff's Judgment, Required His Presence in the Elevator Shaft, When He Directed Operator Not to Run Car While He was at Work—Car was Operated and Plaintiff Injured— Question a Close One, But the Trial Judge’s Opinion that Plaintiff was a Licensee, and was Within the Law of Invitation, Sustained.
    On defendant’s appeal from the District Court.
    Before Justices Pa ekbk, Mintukn and Black.
    IVr the plaintiff-appellee, Edward B. McGlynn.

    For the defendant-appellant, Edwards & Smith.

   Pee Ctjbiam.

This is an accident case tried before the District Court without a jury. The principal, if not the only question involved, is whether the trial judge sitting as a jury was entitled to find that the plaintiff was, in a legal sense, invited to be in the place where he was when injured.

The defendant was the owner of a building having an elevator operated by a servant o£ the defendant. It rented the front basement of the building for restaurant purposes to two partners named Lovey & Eormaz, the demised premises including a kitchen and a lavatory, and the lessees of these premises were obligated by the lease to keep the premises in sufficient repair on pain of forfeiture. The lavatory contained, among other things, a wash basin which was attached to a wall,, and the wall in question was one of those that enclosed the bottom of the elevator shaft; but this elevator shaft was not on the demised premises, the wall.of" the lavatory separating them, as already stated.

The wash basin worked loose from the wall, and the restaurant people, being obligated to repair, sent for the plaintiff, who was a plumber, to attend to the repairs and make the wash basin secure. Plaintiff on inspecting the basin concluded that the fastenings of the wash basin were insufficient, and that, in order to make a proper job, it would be advisable to run two or more bolts entirely through the wall and set up the nuts on the other side of the wall where the elevator worked. Accordingly, the plaintiff bored his holes through the wall, inserted his bolts and prepared to screw up the nuts on the other'side. According to his testimony, he warned the operator of the elevator, that he was going to be at work at the foot of the shaft, and not to run the elevator at all until the plaintiff had made his bolts secure. The evidence is not in accord as to just what the plaintiff said to the elevator man, the latter claiming that he was simply warned not to run the elevator down; but the plaintiff’s testimony was that the elevator was not to be moved at all unless the plaintiff was previously notified, so that he could get into a place of safety. The trial judge evidently took this theory of the case. Plaintiff accordingly went into the shaft and was screwing up the nuts on his bolts when the elevator without warning went .up and the counterweight came down on the plaintiff’s arm, inflicting the injury for which he sued.

The substantial defense in the case was that plaintiff was a trespasser, or, at best, a licensee so far as concerned the defendants, and, consequently, that they owed him no duty of care. The judge took the other view and held for the plaintiff.

The case is a close one, but we incline to think that there was no legal error in the judge’s finding. If proper repairs to the wash basin called for holts instead of screws, and this was a question of judgment on the part of the plaintiffs, then it would seem that the tenants were not only authorized hut required to enter the elevator shaft to such reasonable extent as was necessary or convenient to make these holts fast, and if they were authorized to do so, they were authorized to employ a proper workmau to do this for them. If so, the plaintiff was rightfully there and within the scope of the law of invitation, and in this situation the ease is indistinguishable from Harmer v. Reed Apartment Co., 68 N. J. L. 332.

The judgment will be affirmed.


text:
    ELLA VAN BUSKIRK, EXECUTRIX OF THE ESTATE OF GEORGE E. VAN BUSKIRK, DECEASED, AND OWEN F. TRAVERS, PLAINTIFFS, v. WILLIAM H. BARKHORN COMPANY AND ALBERT YAECK, DEFENDANTS.
    Argued October 7, 1925
    Decided April 29, 1926.
    Negligence—Motor Vehicle Injury—Evidence of Negligence Sufficient to Require Submission to Jury, and Its Findings Not Against Its Weight.
    On rule to show cause.
    Before G-ummere, Chief Justice, and Justices Kalis ch and Campbell.

      For the rule, William E. Holmwood.

      Contra, Palmer &■■ Cooper.

   Per Curiam.

The defendant William H. Barkhom Company, through its servant, the defendant Albert Yaeek, was, on April 1st, 1922, .operating a motor truck on Little street between DeWitt and .Union avenues, in Belleville, and in the operation of such truck George E. Van Buskirk and Owen E. Travers were injured, the injuries to the former resulting in death.

Upon a trial of an action for damages, the plaintiff Ella Van Buskirk, executrix of the estate of George E. Van Bus-kirk, deceased, obtained a verdict of $22,000, and the plaintiff Owen E. Travers a verdict of $500.

The defendants have a rule to show cause why such verdict should not be set aside.

As to both verdicts it is urged that they should be set aside because there was no proof of negligence on the part of the defendants, and the trial court should have directed a verdict in favor of the defendants as requested, and that if there was any evidence of negligence the weight thereof is not sufficient to support the findings of the jury.

Our examination of the proofs leads us to the conclusion that there was evidence of negligence requiring the submission of that question to the jury, and that the jury’s finding thereon is not against the weight of such evidence.

It is further urged .that the verdict in favor of Ella Van Buskirk, executrix, is excessive.

We do not find this to be so.

The rule to show cause is therefore discharged.


author: Pee Otjbiatvt.

text:
    LOUIS MAURER, PLAINTIFF-APPELLANT, v. MORRIS L. SIMON, DEFENDANT-APPELLEE.
    Submitted January 15, 1926
    Decided May 4, 1926.
    Negligence—Motor Vehicle Collision—Both Sides Claimed Damages—Plaintiff Nonsuited Because He Did Not Show Damages—This Probably an Error, Since He Might Have Been Entitled to Nominal Damages, But This Point Not Made on Appeal—Defendant’s Judgment on Counter-Claim Contested on Six Grounds Relating to Proof—Measure of Damages is Respective Value of Car, But Cost of Repair Admissible to Establish Such Values—Other Grounds Considered, But Found Without Merit.
    On plaintiff’s appeal from the District Court.
    Before Justices Pabkee, Mintubn and Black.
    For the plaintiff-appellant, Schneider & Schneider.

    For the defendant-appellee, John J. Breslin.

   Pee Otjbiatvt.

The suit arises out of a collision between two automobiles in the city of Passaic. Each party claimed that the other was in fault, and both parties claimed damages. The plaintiff was driving his car northerly on Main street and undertook to turn to his left into Oak street. The defendant, going south on Main street, struck the plaintiff’s car as -it was turning and forced it up against a telegraph pole on the south side of Oak street. Plaintiff sued for damages, and the defendant counter-claimed for damages. At the trial the plaintiff was nonsuited for failing to prove the amount of his damages. This nonsuit was probably erroneous, because of the well-settled rule that mere failure to prove substantial damages is not a ground of nonsuit, the claimant being entitled, at least, to a nominal verdict; but this point is not made on the present appeal, and, consequently, is removed from our consideration. The defendant having counter-claimed for damages was allowed a recovery of $400 on his counter-claim, and this judgment for damages is the gravamen of the plaintiff’s appeal.

Seven grounds of appeal are advanced. The first is abandoned; all the others relate to the defendant’s proof of damage. We take them up in order.

Number two is that the court allowed a witness over objection to testify what would be a fair and reasonable amount to repair the defendant’s ear. The argument on this' point is that the cost of repairs is not the proper measure of dapiages, but, rather, the difference between the value of the -car before and after the injury, citing Van Sciver v. Public Service Railway Co., 96 N. J. L. 13. Undoubtedly, the measure of damages is the difference in value, but it has been held more than once that the cost of repairs is, at least, evidential on that point, and, consequently, evidence of cost of repairs is legitimate. Hintz v. Roberts, 98 Id. 768.

Ground three is that the court refused to find as a fact that the defendant, Simon, did not testify to any loss whatsoever, and showed no evidence of payment of any bills whatsoever, and that he showed no damages.

The fourth, that the court refused to find that the damages were not proven in a proper manner.

The fifth, that the estimate submitted to the court was not any evidence of damage, and, therefore, no damages were proven on behalf of the defendant-appellee.

As to these, we think the answer is that, although there seems to have been no direct evidence as to the difference of the value of the defendant’s car before and after, nevertheless the cost of repair is, at least, evidential on that point, and, consequently, there was some legal proof of damage.

The sixth ground is that the court refused to find that there was no connection between the damages as found by the mechanic who testified to the same and the damages that were actually sustained. The mechanic, whose qualifications were admitted, saw the car on a Monday following the accident, and the accident occurred on the preceding Saturday at ten-thirty p. m. It seems quite reasonable for a jury to assume under those circumstances, and in view of the defendant’s evidence as to the injuries sustained by his car, which was quite specific, that the wreck examined by the witness Potter on Monday was the wreck that had been caused by the collision with the plaintiff’s car on Saturday.

The seventh and last ground is that the court refused to nonsuit for the reasons—(a) that there was no evidence of payment of any bills by or any damage to the defendant; (b) that there was no evidence of any damage suffered by the defendant; (3) that the damages were not proven in a proper manner. We are not aware of any rule which requires evidence of payment of bills by the owner of an injured car before he can recover damages for the injury, and, as to the other subdivisions of the motion, they are answered by what has already been said.

Finding that none of the grounds advanced exhibits error calling for a reversal, the judgment will be affirmed.


author: Pee Cukiam.

text:
    EDWARD T. RODGERS, RESPONDENT, v. THE HALL LACE COMPANY ET AL., APPELLANTS.
    Argued October 7, 1925
    Decided April 29, 1926.
    Contracts—Commissions for Sale of Goods and for Reasonable Compensation for Services—Judgment for Plaintiff-Defendant Claimed Part of Commissions Under Contract Should Be Used to Purchase Corporate Stock, Which They Stood Ready to Deliver—Court Held that Contract was Too Uncertain, and Submitted Matter to Jury Upon Quantum Meruit Count —Not Necessary to Pass Upon Court’s Ruling, Since Verdict of Jury was for a Lesser Amount Than that Which Would Have Been Proper Under Contract.
    On appeal from a judgment of the Hudson Circuit.
    Before Gummebe, Chibe Justice, and Justices Kalisch and Campbell.

      Eor the-appellants, George G. Tennant.

    Eor the respondents, Willia?n E. Decher.

   Pee Cukiam.

This is an appeal from a judgment of the Hudson Circuit in favor of respondent in an action to recover a balance claimed to be due' for commissions for sales of the products of appellants.

There was a.written contract engaging and employing respondent for a term from September 1st, 1922, to December 31st, 1923.

This contract provided, amongst other things, for the rendering of monthly statements of commissions earned and the making of payments thereof on the 25th of each month, and provided that all earnings of respondent over $250 per month were to be set aside for the purchase, by respondent, of stock of the H. S‘. Hall & Company, Incorporated, subject to any change in amount and class of stock that should be mutually agreed upon.

The complaint was originally in two counts, the first declaring upon this contract and alleging the sum due and unpaid thereunder to be $2,234.02, and the second count was for the reasonable value of services alleged to have been performed by respondent after the expiration of the term of the aforesaid contract, from January 1st to- January 14th, 1924, for which the sum of $500 was demanded.

The appellants answered admitting the contract, but denying full performance by the respondent and admitting the total amount of commissions earned to have been $2,012.74, and, as a separate defense, referring to the provision of the contract respecting the setting aside of all earnings exceeding $250 per month toward the purchase of stock the appellants allege that, after deducting from the commissions earned by respondent all payments made to him there was due respondent stock of the H. S. Hall & Company, Incorporated, in the sum of about $2,000 which appellants had, and then did tender themselves ready and willing to issue and deliver to respondent, but that ho had refused to accept, and continued so to do.

Eespondent abandoned any claim under the second count of the complaint and gave notice of an application to amend his complaint by adding a count through which he would seek a recovery of the balance claimed to be due of $2,012.74 upon a quantum meruit.

This amendment was allowed at the trial and appellants answered denying the right of respondent to recover thereunder because of the aforesaid written contract. Appellants also filed a counter-claim seeking to recover from respondent the sum of $175.71 as a balance claimed to be due for merchandise furnished him. This respondent answered admitting the purchase of the materials, but asserting that the balance of $175.71 claimed had been deducted from the amount due him, leaving the net amount due him from appellants the sum of $2,012.74 as claimed.

The trial court ruled that the provision of the contract respecting the setting aside of portions of respondent’s earnings for the purchase of stock was so uncertain as to render the entire contract so uncertain that a recovery could not be had thereon, and submitted the matter to the jury upon the quantum meruit count of the complaint.

The jury returned a verdict in favor of respondent for $1,435.70, and from the judgment entered thereon this appeal is taken.

The grounds of appeal argued are directed to the foregoing ruling of the trial court and to rulings upon the admission and rejection of evidence.

Whether or not the trial court was in error in holding the contract in question unenforcible after performance, except as to payment through stock of the H. S. Hall & Company, Incorporated, we do not pass upon, for the reason that if such ruling was erroneous it was not harmful to the appellants, because the verdict rendered and the judgment under review is for a lesser sum than that which would have been proper and warranted under the contract. Appellants, therefore, may not successfully complain.

We find no error in the rulings of the trial court upon the matters of evidence presented by this appeal.

The judgment below is affirmed, with costs.


text:
    FRANCES PABST, BY NEXT FRIEND ET AL., RESPONDENTS, v. HUDSON AND MANHATTAN RAILROAD COMPANY, APPELLANT.
    Submitted October 16, 1925
    Decided May 5, 1926.
    Negligence—Injury to Railroad Passenger While Going Down Defendant’s Stairs—There was. Evidence of Negligence to Justify Letting Case Go to Jury—Judge Charged that “Girl was a Passenger and was Entitled to Have Stairway in Good Condition for Her to be Carried on it”—This was Wrong; It Made the Company an Insurer—The Duty of Company is Merely to Exercise Reasonable Care to Provide a Safe Place for Passengers Going to and Coming From Trains.
    On appeal from -the Hudson Common Pleas.
    Before Gummebe, Chief Justice, and Justices Kalisoh and Campbell.
    Eor the appellant, Edward A. Markley and' Charles W. Broadlmrst.

    For the respondent, Alexander Simpson.

   Pee Cueiam.

This appeal brings up a judgment entered upon a verdict in favor of the plaintiff Frances Pabst, who sued to recover compensation for injuries resulting from a fall while going down the steps of the railroad company’s station at Exchange place, in the city of Jersey City. The averment of her complaint was that she slipped and fell by catching her shoe in a defective nosing upon one of the steps. The mother of this girl also sued to recover compensation for the expenses to which she was put by reason of her daughter’s injury. The jury, however, rendered no verdict either for or against her.

The first ground upon which a reversal is sought is that the court erred in refusing to direct a verdict foT the defendant, the contention being that there was no evidence of any negligence on its part. Our examination of the proofs leads us to the conclusion that it was a question for the jury whether the accident occurred as the plaintiffs claim, and, if so, whether the condition of the nosing had not been in existence for a sufficient time to charge the defendant with notice thereof. We conclude, therefore, that the refusal to direct a verdict for the reason stated was proper.

The next contention is that there should be a reversal in this case because of the fact that the jury rendered a verdict in favor of the daughter, but no verdict at all either for or against the mother. This fact, however, affords no justification for reversing the judgment in favor of the daughter. The failure of the jury, instead of being harmful, was beneficial to the defendant.

The last ground upon which we are asked to reverse this judgment is directed at the following instruction of the court to the jury: “The girl was a passenger, and was entitled to have the stairway in good condition for her to be carried on it.” We consider that this instruction placed upon the defendant company a greater burden than was justified by the law. In effect, it made the company an insurer. The true rule is stated by Mr. Justice Garrison, writing for the Court of Errors and Appeals, in the case of Mason v. Erie Railroad Co., 75 N. J. L. 521, which, in effect, is as follows: The duty of the railroad company is merely to exercise reasonable care to provide a safe place for passengers going to and coming from its trains.

Eor the error in the charge, we conclude that the judgment under review should be reversed.


author: Bee Curiam.

text:
    STEVE PALOCZ, PLAINTIFF, v. E. & S. TRANSPORTATION COMPANY, DEFENDANT. NICHOLAS DRANCHOK, PLAINTIFF, v. E. & S. TRANSPORTATION COMPANY, DEFENDANT.
    Submitted October 16, 1925
    Decided May 5, 1926.
    Negligence—Motor Vehicle Collision—“Jury Found Plaintiffs and Defendant Both Guilty of Negligence,” Upon which Court Directed that a Judgment Be Entered in Favor of Defendant—This, in View of Judge’s Charge, was a Proper Finding, and Will Not Be Set Aside—Alleged Error in Charge to Jury Not Considered, as no Exception was Taken.
    On plaintiffs’ rules to show cause.
    Before G-ummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the plaintiffs, Francis A. Gordon.

    Eor the defendant, Samuel D. Williams.

   Bee Curiam.

These two suits were brought against the defendant corporation to recover compensation for injuries resulting from an automobile collision, which occurred in Linden, between a ear driven by the plaintiff Dranchok, in which Paloez, the owner, was riding, and a! truck of the defendant traveling in an opposite direction. The two cases were consolidated for the purpose of trial.

The'd aim of the plaintiffs was that the collision resulted solely from the negligence of the driver of the defendant’s truck. The defense was that this collision was caused by the negligence of Dranchok and without any fault on the part of the defendant’s driver. At the close of the case the jury rendered the following verdict: “The plaintiffs and defendants are both guilty of negligence,” and on this verdict the trial court directed that a judgment be entered in favor of the defendant and against the plaintiff in each suit.

The principal ground upon which the plaintiffs seek to have these rules made absolute is that the defendant is not entitled to a judgment upon this verdict because of its form —that is, because the finding of negligence on the part of the plaintiff is not a declaration that such negligence contributed to the accident. This verdict, however, is to be taken in connection with the charge to the jury upon this point, which was as follows: “If you find that this accident was the result of the combined negligence of the driver of the plaintiffs’ car and the driver of the defendant’s car, then neither of the plaintiffs is entitled to a verdict.” It seems clear to us that the negligence attributed by the jury to these parties was the combined negligence of both drivers in the producing of the accident, that being the negligence, the existence of which was left to it to determine. So construing the verdict, the court properly moulded it to express the legitimate result of the finding. In addition, it may be said that, if the contention of plaintiffs’ counsel be sound—that is, that the jury did not find that the negligence of the plaintiffs contributed to the accident—it necessarily follows that it did not find that the negligence of the defendant’s driver was a producing cause of the accident, and, unless it so found, the defendant, of course, would be entitled to judgment.

It is further argued that the verdicts are against the weight of the evidence on the question of the contributory negligence of the plaintiffs. It is enough to say that our reading of the testimony leads us to the conclusion that this contention is without merit.

Lastly, it is argued that there was error in the charge of the trial court. It is sufficient to state, in disposing of this contention, that no exception was taken to any part of the instruction to the jury.

The rules to show cause will be discharged.


text:
    FILOMENA NESTICO, ADMINISTRATRIX, ETC., PLAINTIFF, v. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, DEFENDANT.
    Submitted October 16, 1925
    Decided May 5, 1926.
    Negligence—Death of Railroad Track Employe, Through Being Struck by Railroad Company's Engine—Under Federal Employers’ Liability Act—Verdict Not Found Against Weight of Evidence, Nor Excessive—Proper to Offer Certificate of Bureau of Vital Statistics Stating Cause of Death.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Frederic B. Scott.

    Contra, Edward A. Marhley and Charles W. Eappes.

   Per Curiam.

This was an action brought by the plaintiff under the Eederal Employers’ Liability act to recover compensation for the death of Pasquale Nestico (who was her husband), who was killed while engaged in work as a track laborer of the defendant on July 8th, 1923, near Little Palis. The jury rendered a verdict in favor of the plaintiff, and the defendant was allowed a rule.

The case of the plaintiff was that, while the .decedent was engaged in his work along the defendant company’s tracks, he was run down by an engine, to which no cars were attached, and that no warning of any kind was given to him of its approach, and that the defendant company did nothing to protect him against danger from it, although, apparently, it was not running on any schedule.

The first contention is that the verdict is against the weight of the evidence. We think this contention is without merit. The jury was entirely justified in finding that it was the duty of the defendant company to use reasonable care to protect its track laborers while at work on the tracks, and that it had failed in the performance of its duty. There is no suggestion that the engineer who was driving the engine which the plaintiff claimed ran the decedent down blew a whistle or did anything else to,give warning of its approach. It is said that the alinement of the track at this point was such as to prevent the engineer from seeing the decedent. But, if that is so, then it was for the jury to say whether the company ought not to have provided some other method of protecting him. It was further argued on this point that, because the engineer testified that he did not see the decedent on the track and did not know that he had been killed until some time after the accident happened, the jury was not justified in finding that the decedent was run down by this engine. We think there was plenty of testimony to support that conclusion.

Next, it is argued that the verdict is excessive. The only ground upon which this contention is rested is that the jury, in fixing the amount of compensation, failed to perform the duty imposed on it by the Federal Employers’ Liability act of diminishing the damages to a reasonable extent where it appears that the accident was the result of the contributory negligence of the employe. We think the jury was under no obligation to reduce the damages for this reason, because there was no proof upon which to base a finding of negligence on the part of the decedent. As has already been stated, the decedent, apparently, had no notice whatever that this engine, which was running off schedule, was approaching him, and had no reason to anticipate its presence.

Next, it is argued that the trial court erred in refusing to charge the defendant’s ninth request. The plaintiff had offered in evidence the certificate of the bureau of vital statistics evidencing decedent’s death and the cause of it. The defendant requested the court to charge that the portion of the certificate which stated the cause of death should be disregarded by the jury. This the court refused to do’,’ and properly so. Sections 28 and 29 of the Evidence act provide that “all transcripts of death made by any physician according to law shall be received as proper written evidence of the matters and facts contained therein.” But, even if the certificate was not evidential on the subject of the cause of death, the refusal to charge was not harmful to the defendant, for the evidence practically demonstrated that the cause of the death was as we have already set forth.

Lastly, it is said that the court erred in directing the jury to disregard evidence submitted on behalf of the defendant as to tests made for the purpose of telling how far an engineer could see from the point where the tests were made to the point where the decedent was struck. This evidence, we think, was clearly immaterial, and the court properly directed the jury to disregard it. If the engineer, because of his inability to see, could not operate his engine in such a way as to avoid running down laborers upon the track, that certainly did not excuse the defendant from its obligation of protection.

The rule to show cause will be discharged.


author: Pee Curiam.

text:
    THE STATE, DEFENDANT IN ERROR, v. EDWARD T. BENTON, Jr., PLAINTIEF IN ERROR.
    Submitted October 16, 1925
    Decided May 5, 1926.
    Crimes—Embezzlement—Illegal Testimony Not Admitted as Alleged—Sufficient Testimony for Case to Go to Jury—Verdict Not Against Weight of Evidence.
    On error to the Passaic Quarter Sessions.
    Eor the plaintiff in error, Abram Klenert.

    Eor the state, J. Willard Be Yoe, prosecutor of the pleas.
   Pee Curiam.

The defendant in this case was convicted on an indictment charging him with embezzling moneys belonging to one Anna Lee.

The first ground npon which the plaintiff in error seeks a reversal of this conviction is directed at the alleged Illegal admission of testimony of Anna Lee. Our examination of this testimony leads us to the conclusion that it was properly admitted.

The second contention is that the trial court erroneously refused to direct the jury to acquit the defendant. This motion, we think, was properly refused, there being testimony to support the contention of the state that the defendant was guilty as charged.

The last ground for reversal argned by counsel for the defendant is that the verdict of the jury was against the weight of the evidence. No assignment nor reason, however, has been filed raising this question.

The judgment under review will be affirmed.


text:
    MINNIE LIEBECK v. JULIA BENNIS.
    Submitted October 16, 1925
    Decided May 5, 1926.
    Negligence—Injury to Domestic Employe of Tenant Caused by Falling of Porch—Complaint Contained No Averment that Repairs were Made During Continuance of Lease—It is Elementary Law that, in Absence of an Averment of a Material Fact, the Presumption is that it Does Not Exist, and the Rule that a Landlord is Not Bound to Repair Leased Premises During the Term Unless He Contracts to Do So, Becomes Applicable—Trial Court’s Ruling that there was no Cause of Action Sustained.
    On appeal from, the Atlantic Common Pleas.
    Before G-ummere, Chiee Justice, and Justices Kalisch and Campbell.
    Por the appellant, Samuel Morris.

    Por the respondent, S. Paul Ridgway.

   Per Curiam.

The appeal .in this case is taken from an order and judgments thereon directing the third count of the complaint filed by the plaintiff to be stricken out and judgment for the defendant entered accordingly. The averment of this count was that the plaintiff had been employed as cook by a Mrs. Murphy, who was a tenant in occupation of premises belonging to the defendant; that, in the performance of her duties as the employe of Mrs. Murphy, she had occasion to go to the back porch of the premises, and that while standing there the edge of the porch suddenly gave way, precipitating her to the walk below, the fall resulting in the injuries for which she seeks compensation from the defendant. The fact upon which liability on the part of the defendant is predicated is that some time prior to the happening of the accident the defendant caused this porch to be repaired in such a negligent manner, and used such a poor quality of lumber in making the repair as to render the porch dangerous, and that in doing this he violated a duty owing by him to the tenant and her employes.

We concur in the view expressed by the trial court that this count discloses no cause of action in favor of the plaintiff and against the defendant. It contains no averment that these repairs were made during the continuance of the lease under which Mrs. Murphy was in possession. It is entirely settled in this state that the landlord is not bound to repair leased premises during the term unless he has contracted to do so. No obligation will be implied on the part of the landlord, in the absence of such contract, that he shall make repairs because of the premises being in a dangerous condition. And the exemption of a landlord from liability for injuries sustained by a tenant under the conditions named applies as well to members of the family of the tenant. Clyne v. Helmes, 61 N. J. L. 358, and cases cited.

'This principle of law does not apply where a landlord undertakes to make repairs to the leased premises during the continuance of the lease, and performs the work of repair so negligently that injury results to the tenant, or a member of his family, by reason of such negligence. But, as has already been pointed out, there is no averment in the count of any repair on the part of the landlord during the continuance of the lease, and, in the absence thereof, the presumption is that the contrary is the fact. It is elementary law that, in the absence of an averment of the existence of a material fact, the presumption is that it does not exist.

The judgment under review will be affirmed.


text:
    THE STATE, EX REL. HENRY V. WALKER, RELATOR, v. MILTON A. MAAS, RESPONDENT.
    Argued May 4, 1926
    Decided May 5, 1926.
    On quo warranto. On rule to show cause.
    Before Justices Trenchard and Katzenbach.
    Eor the relator, Conover English.

    Eor the respondent, Alfred F. Skinner.

   Per Curiam.

This is a motion to mould the pleadings for the purpose of appeal.

We have considered the affidavit which has been presented to us by the respondent (which we have filed with the clerk), and have also considered the arguments addressed to us by counsel for both the relator and respondent, and we are constrained to think that in the circumstances of this case, as exhibited by the record and the affidavit, we would not be justified in moulding the pleadings as requested.

The motion, therefore, is accordingly denied.


author: Per Cubiam.

text:
    CHARLES W. SELLERS, APPELLANT, v. FRANK A. MOREHOUSE, RESPONDENT.
    Submitted October 16, 1925
    Decided May 4, 1926.
    Negotiable Instrumenta—Promissory Note—Counter-Claim for Commissions, &c.—Plaintiff, President of a Corporation, by which Defendant was Employed—Note at First in Favor of Corporation, Later it was Made in Favor of Plaintiff Individually—if Counter-Claim Existed in Fact, Claim was Against Corporation, Not the President Individually—Numerous Transactions Involved—Release Finally Executed Included Settlement of Ail Transactions Except Note in Question—Verdict Against Plaintiff and in Favor of Defendant Reversed.
    On appeal from the Monmouth County Court of Common Pleas.
    Before G-ummebe, Chief Justice, and Justices Kalisch and Campbell.
    Por the appellant, Lester G. Leonard {lloward S. Higginson, of counsel).
    Por the respondent, Reilly, Quinn & Parsons.

   Per Cubiam.

The plaintiff appeals from a judgment rendered against him in the Monmouth County Court of Common Pleas, and in favor of the defendant for the sum of $994.85, with costs,

The plaintiff brought his action against the defendant upon a promissory note, which was as follows:

“New York City, May 31st, 1933.

One year from date I promise to pay to the order of Charles W. Sellers, five hundred twenty-eight and 38/100 [$538.38] dollars, with interest thereon at 6°/0 from date at 34 Stone street.

Value received. Prank A. Morehouse.”

The defendant, in his answer, denied' that he owed the plaintiff “any money or sums of money upon said note,” and by way of counter-claim sets forth that the plaintiff-was the president of the Export Freight Forwarding Company, Inc., a body corporate, and on behalf of said company agreed with defendant to pay him fifty per cent, of the net proceeds of the warehouse department and ten per cent, of the new business secured by the defendant for the company, and that on November 1st, 1918, the defendant secured for the plaintiff a contract between the plaintiff’s company and the Bayway Storage and Supply Company, for the term of five years. That on October 1st, 1920, the contract secured as aforesaid by the defendant was altered between the parties thereto, and that the sum of $2,500 was paid to the plaintiff as the consideration of such alteration (presumably by the Bayway Storage and'Supply Company), in which sum the defendant had an equal undivided one-half interest. That the plaintiff refused to pay the defendant and had made no accounting to him, and that he, the defendant, had demanded from the plaintiff the sum of $1,250, less the amount of the note held by the plaintiff of $528.38, that is, the sum of $721.62.

The plaintiff, in reply to defendant’s answer and counterclaim, among other things, sets up that on May 21st, 1923, the defendant executed and delivered to plaintiff a release under seal, discharging all demands then existing in favor of defendant against the plaintiff, to which, in turn, by way of answer to the reply setting up the release, the defendant asserted that the release was obtained fraudulently and upon the representation by the plaintiff that there were no further moneys due to the defendant at the time of the execution of the release, whereas, as a matter of fact, the plaintiff had then and there funds in his possession belonging to the defendant in the amount of $1,200.

It appears from the testimony that the transactions of the parties, upon which the plaintiff’s action is founded, were treated, by the trial judge, as transactions between them, as individuals, and as not involving the Export Freight Forwarding Company, Ine., in its corporate capacity, though the initial contract of employment of the defendant reads as follows:

“New York, 4-1-1918.
Mr. E. A. Morehouse,
Office.
Dear Sir: Effective April first, we will pay you 50% of the net profits of the Warehouse Department, and 10% on any business secured and controlled by you on Lighterage Export or Import, and allow you a drawing account of $35 per week. This to continue in effect until cancellation by mutual consent of both parties.
Very truly yours,
The Export Freight Forwarding Co., Inc.
Per C. W. Sellers.”

It further appeared in the case that the note given to the plaintiff, individually, was a renewal of a note of $491.53, due on December 1st, 1921, payable to the order of “The Export Freight Forwarding Co., Inc.,” with interest at five per cent.

The trial 'judge, as has already been said, regarded the controversy as between the parties, and not involving the corporation in its corporate capacity, for he says in his charge: “In ordinary circumstances, as the litigation here involved would have concerned that company, but for the fact that subsequently * * * subsequent to this letter, involving the employment of Mr. Morehouse by Mr. Sellers, he, apparent^', regarded their relations as individuals, and in the ensuing transactions between them including the final adjustment of their differences, whereby Mr. Morehouse, the defendant, was asked to contribute to certain losses involved in the transactions between the parties, with the result that the original note, of which the note in suit is a renewal, was made and given to Mr. Sellers. Therefore, this case is submitted to Arou, gentlemen, on the theory that the controversy does involve the individuals and not the corporation, namely, the Export Freight Forwarding Company. Mr. Sellers sues upon this note as an individual, and Mr. More-house defends, therefore, as against his claim.”

Now, as to the pleadings. To the action upon the promissory note the defendant denied that he owed the plaintiff any monej' upon it. With his denial the defendant filed a counter-claim, which, upon its face, shows that the claim of the defendant, if he had any, was against the Export Freight Forwarding Company and not against the plaintiff. The plaintiff made no motion to strike out the counter-claim, and answered that he leave the defendant to make proof as to the allegations in the counter-claim, and further pleaded a release under seal, executed by the defendant to the plaintiff, Charles W. Sellers, and the Export Freight Forwarding Company. To this the defendant replied that the release was obtained fraudulently, &c.

The written contract of emplojonent of the defendant, on April 1st, 1918, was between the Export Freight Forwarding Company, Inc., and the defendant. The contract was signed, “The Export Freight Forwarding Co., Inc., Per C. W. Sellers.” The defendant was therefore made aware that C. W. Sellers was acting on behalf of his company and not in his individual capacity. The circumstance that upon an accounting had in November, 1920, between the corporation and defendant, there was found to be due from the defendant to the corporation, $491.53, for which sum the defendant gave his note to the corporation, is strong confirmatory proof that the defendant was dealing with the corporation, as such, and not with Mr. Sellers, its president, individually. The subsequent transaction, that is, the renewal of the note after it had remained unpaid for nearly two years, and then made payable to C. W. Sellers, individually, is, in our judgment, of no particular significance.

It further appears from the testimony of the defendant that the consideration of the original note of $491, made payable to the Export Freight Forwarding Company, represented fifty per cent.’ of the loss sustained by the company in a shipment of hides, which percentage of loss the defend■nt, under his contract with the Export Freight Forwarding Company, was obligated to pay.

According to the defendant’s testimony the amount, which he was under obligation to pay to the company, was determined by a settlement of accounts had in November, 1920, between them; that the defendant at the time was not in the emplov of the company and had not been since May 1st, 1920.'

The record shows that on or about the 15th day of November, 1918, a contract was entered into by and between the Bayway Storage and Supply Company, Inc., of Bayway, Elizabeth, and the Export Freight Forwarding Company, Inc., a New York state corporation, located in New York City, by the terms of which contract the Bayway company employed and designated the freight forwarding company its sole agent for securing merchandise to be stored at the former’s plant located at Bayway, Elizabeth, for which the freight forwarding company was to receive from the Bayway company twenty-five per cent, of all collections on storage or other charges except labor, which commission or labor was fixed at ten per cent. It was further agreed by the Bayway company that no merchandise was to be taken, received or placed in its warehouse, premises or on storage except through and with the consent of the freight forwarding company as the Ba}rway company’s agent during the continuance of the agreement, and that by this agreement it is meant that the freight forwarding company should be the sole agent and only person who shall have the right to solicit merchandise to he placed on storage in the Bayway company’s warehouse. The contract was to remain in full force and effect until May 1st, 1923, unless canceled by mutual consent of the parties, in writing.

It is conceded that the defendant secured this contract for the freight forwarding company.

This occurred in November, 1918. On the 31st of March, 1920, tbe defendant sent in his resignation, and it is to he particularly observed that he writes: “I herewith tender my resignation from your firm pending outstanding contracts and collections in which we are mutually interested,” &e. The letter is. addressed to C. W. Sellers, but the contents clearly indicate that it was sent to the latter in his representative capacity, as a member of the corporation. In reply, ¡Mr. Sellers submitted a letter written on the business stationery of the Export Freight Forwarding Company, Inc., pn April 3d, 1920, and subscribed by C. W. Sellers, and .addressed to the defendant, in which letter it' clearly appears that Sellers, on behalf of the company, accepts the defendant’s resignation, for after acknowledging the receipt of the tendered resignation Sellers refers to “on any business contracted for between now and when you leave” that the defendant will receive the same percentage of the net profits as he had .been receiving, &c.; evidently, under his contract with the Export Freight Forwarding Company. The tenor of the letter leaves no doubt that it solely concerns the interest of the freight forwarding company, for at the bottom of the letter it closes with the request, “will you please sign acceptance,” &e. This letter is subscribed, “C. W. Sellers, F. A. More-house, accepted.”

From a plain reading of the testimony there is no room even for a possible doubt that the defendant had complete knowledge that he was an employe of the freight forwarding company, and that its business was being transacted through C. W. Sellers, its president. The defendant, immediately after leaving the employ of the freight forwarding company, went into the employ of the Bayway company, with whom the freight forwarding company entered into the contract procured by the defendant, and in the net profits of the latter company, derived from the storage of merchandise under its contract with the Bayway company, the defendant was to participate under the terms of his contract with the freight forwarding company. The defendant, in his testimony, makes the admission that at the time he left the freight forwarding company’s employ there was nothing due him for commissions, he having been fully paid. It was not until about six months after the defendant left the freight forwarding company’s employ that he was called upon to share in the loss sustained by the freight forwarding company, which resulted in the giving of his note, as had already been fully detailed. An undisputed fact in the case is that after the defendant left the employ of the freight company and went into the employ of the Bayway company, a controversy arose between the two companies, the former company charged the latter with having violated the contract procured by the defendant, in that the Bayway company was dealing directly with the freight company’s customers and had solicited business from its old customers, which conduct was in violation of the Bayxway company’s agreement that no merchandise shall be taken, received or placed by it in said warehouse, premises or storage except through and with the consent of the freight forwarding company as the Bayway company’s agent, and that by this part of the agreement it is meant that the freight forwarding company shall be the sole and only person who shall have the right to, solicit merchandise to be placed on storage in the Baywav company’s warehouse. In view of this situation it was agreed that the Bayway company pay to the freight forwarding company the sum of $2,500, which was partly to reimburse it for lost commissions and partly for a cancellation of the old contract and the entering into a new one, which, in terms, deprived the freight forwarding company from being the sole agent except for the customers specifically named in paragraph three- of the contract, and leaving the Bayway company free to employ other agents to solicit contracts for storage, &c., except from those mentioned in paragraph three.

There was also a reduction of the commission to be paid to the freight forwarding company from twenty-five per cent, to ten per cent. It was also stipulated that during the term pf this new agreement, which term was to run from October 1st, 1920, to July 1st, 1924, the Bayway corporation would not take any storage by or through it, the defendant or Mr. Eink. On the 12th day of November, 1920, this contract was modified between the parties thereto, in that clause, nine, of the contract of October 1st, 1920, which prohibited the Bayway company from taking any storage that may be procured by or through it, the defendant or Mr. Eink was Annulled. The contract expressly authorizes the Bayway Corporation, the defendant or Mr. Eink, to> procure merchandise fo be stored in the Bayway company’s warehouse during the period commencing October 1st, 1920, and terminating July 1st, 1921, a commission of ten per cent, of the amount billed after collection made by the Bayway company to the freight ^orwarding company. An accurate account was to be kept of all merchandise stored in the warehouse procured by the defendant, Mr. Eink or the Bayway company, &c. It was further stipulated that the contract of October 1st, 1921, shall ¡remain unchanged and unaltered in its terms, including, especially, paragraph three.

The record further discloses that on October 25th, 1920, the Bayway company gave its check for $2,500 to settle its differences with the freight forwarding company. The check was made payable to the Bayway company’s president, and endorsed by him and by C. W. Sellers. On November 9th, 1922, the ■ defendant Morehouse, in a letter to G. W. Sellers, fays: “I have been awaiting settlement of my share of $2,500, paid by the Bayway Storage and Supply Company to the Export Ereight Forwarding Company, which I am informed you had in hand at the time of our final settlement, November 20th, and trust you are now able to settle this matter ¡without further delay * *

The defendant admits that he received no answer to this letter^ nevertheless, in a release executed by him on May 21st, 1923, which release stated that controversies and differences had arisen between the freight forwarding company, Charles W. Morehouse, the defendant, and Charles W. Sellers, ¿he defendant released Charles W. Sellers and the Export Ereight Forwarding Company from all claims of any nature pr bind whatsoever from the beginning of the world to the date of these presents.. In the same release Sellers and the Export Ereight Forwarding Company released Morehouse from all claims, &c., except the claim that Sellers had against him on the note for $528.38, upon which the plaintiff’s action was based in the instant ease. The posture of the case, at its close, was that it was undisputed that the contract of the defendant’s employment was with the Export Ereight ¡Forwarding Company, by virture of which instrument the company obligated itself to pay to the defendant fifty per cent, of the net profits of the warehouse department. Even if we elided the release and .accepted the untenable theory upon which the trial judge submitted the ease to the jury, namely, that Sellers was the Export Ereight Forwarding Company, or, vice versa, that the freight company was Sellers, there is nothing in the testimony and circumstances which reasonably permit the inference that the $2,500 paid was net profit. On the contrary, it appears indisputably that this sum was paid to the freight forwarding company partly as damages sustained by it by reason of breaches of its contract with the Bayway company, by the latter, and for a modification and alteration of the contract. If the nature of the transaction was profit, it cannot avail the defendant, since the case is utterly barren of any proof of what the net profit was, and if the defendant was entitled to recover at all on his counterclaim, he was limited to a recovery of net profit only. But there seems to be a fundamental bar to a recovery against Sellers, by the defendant upon his counter-claim. The legal obligation to pay defendant his share of the net profits rested upon the Export Ereight Forwarding Company under his contract with the company. If there is any debt arising out of the contract due to the defendant he must look to the company for payment. Even if Sellers had promised to pay the defendant, it was a promise to pay the debt of another, and unless such promise is in writing it cannot be enforced by reason of the statute of frauds and perjuries. 2 Comp. Stat.j p. 2612, § 5. It is not pretended that Sellers undertook in writing to be answerable to the defendant for profits prising under his contract with the Export Ereight Forwarding Company.

We have reached the conclusion that the refusal of the motion, on behalf of the plaintiff, for a direction of a verdict in his favor, against the defendant, was error.

Judgment is reversed, with costs.


author: Kocher, Advisory Master.

text:
    Essex County Orphans Court.
    In the matter of the estate of Eugene Kull, deceased.
    [Decided May 6th, 1926.]
    Wills—Probate—Testamentary Capacity—Testator Made Two Wills on Two Succeeding Days, the First Favorable to Wife, the Second to a Daughter of a Former Marriage—Evidence Showed that He Did So Deliberately, as He Said, to Have Peace in the Family, and His Wife Was Insistent and Disagreeable About it to Him—Though Suffering from a Serious Disease, There Seems Ample Evidence of Sufficient Mental Capacity.

      Mr. Theodore G. Hindenlang, for the proponent.

      Mr. Charles M. Myers, for the caveator.
   Kocher, Advisory Master.

Engene Kull, late of the' city of Newark, died on November 12th, 1925, he having committed suicide. He left him surviving as his next of kin a widow, his third wife,, whom he had married about three years prior to his death, and Anna Stein, a daughter by his first wife. Decedent left a last will and testament dated May 2d, 1925, wherein and whereby he left $5 to his wife and the residue of his estate to his daughter, against the probate of which will a caveat was filed by his widow, Minnie Kull.

The testimony shows that the will was executed in accordance with the statute, and the attack is upon the ground of lack of testamentary capacity.

The will in question was drawn - by Michael J. Estrin, a counselor-at-law of this state, who testified that he was in the habit of calling upon a client who resided in the upper flat of the house of which Kull' occupied the lower part, and that one day Mrs. Kull stopped him as he was leaving the house after a visit to his client and told him she wanted him to prepare a will for her husband, leaving everything to her. He thereupon stated that he would have to see her husband and obtain the instructions for the will from him, and an appointment was made to meet the husband at his butcher shop in the city of Newark.

Estrin called upon Kull, and, during the conversation with him, Kull told him that he had been having “lots of trouble” with his wife, and that she was insisting that he make a will leaving everything to her; that she was pestering the life out of him, and that the only way to have peace would be to satisfy her, and he asked whether, if he made a will, that would prevent him from making another one, and he was told that he could make as many as he pleased, and, after further discussion, Kull decided, for the sake of peace, to execute a will in favor of his wife, in her presence, and give it to her so that he could have peace in his home, and he instructed the witness to prepare another will leaving the entire estate to his daughter, and if, at a subsequent time, his marital relationship was better, he, subsequently, would make a new will, and, if the status was the samo, he would let the second will stand.

Estrin accordingly drew a will leaving $500 to the testator’s daughter and the residue of the estate to his wife, which will was dated May 1st, 1925, and was executed at Kull’s home in the presence of the wife, and, after execution, delivered to her. On the following day, May 2d, Estrin proceeded to Kull’s place of business, and had the second will, which is now attacked, executed by Kull.

Estrin further testified that he did not witness the first will, because he knew in advance that it would not be the last will, and did not want to witness it; that he drew it at the testator’s request in order to satisfy the wife and have peace in the family. It appears from the testimony that Mrs. Kull knew the combination of Kull’s safe and also had a key to the door of the shop. James Harrison, who was employed by Mr. Kull as an assistant, testified that Kull told him, “In case anything happens to mo, my wife always asked me to make a will, * * * so 1 made the will and made another will the following day, and if anything happens to me * * * you will find that will in the candy store in the safe,” where the will was, in fact, found after Kull’s death.

As regards testator’s testamentary capacity, it is fully proven that the testator had suffered from syphilis for at least three years prior to his death. Dr. Snavely testified that he examined him several times in the City Hospital where he went for treatments; that he was a man fifty-five or fifty-six j^ears of age, suffering ' from a four-plus case of syphilis; that there is a possibility of a “mental condition” following a four-plus Wasserman, but that there are cases that do not have any; that he found the testator depressed and very melancholy about himself and his finances; that he asked the testator his reason, and received the reply that he. was running a butcher shop and he thought everything was going to pieces; that he had no money and his financial condition was bad. The doctor further testified that he thought Kull could realize his nearest relatives, and that there was no question about that; that he was very changeable and suspicious; that he last saw him in the latter part of December, 1924, and that he was not cured when he left the hospital; that upon these facts he formed the opinion that he was incompetent to make a will. Two other physicians were called who testified substantially to the same effect.

There was a considerable volume of testimony to the effect that Kull was unable to transact business. On the other hand, there is the testimony of both Mr. Estrin and of Jack Rosenberg, the other witness to the will, that when they went to the butcher shop on the 2d of May to have the will executed they were obliged to wait for three-quarters of an hour or more until Mr. Kull could find leisure from waiting on customers to execute the will.

The rule is settled that the courts of this state guard the right of testamentary disposition 'jealously. They hold that this right may be exercised by a person of very moderate capacity. He may not be able at all times to recollect the names of persons or the families of those with whom he has been intimately acquainted. He may at times ask idle questions and repeat those which have been asked and answered. He may not have sufficient strength of memory and vigor oí intellect to digest all parts of a contract and yet be competent to make a will. In re Haines’ Estate, 3 N. J. Adv. R. 1296; Loveridge v. Brown, 3 N. J. Adv. R. 1050.

It is also settled that proofs of attempts to commit suicide, followed by suicide, exhibit at most but a temporary mental affliction, having no reference to the antecedent or subsequent periods of time. Koegel v. Egner, 54 N. J. Eq. 623. And the rule universally followed is that if testator is capable of recollecting of what his property consists, and who, either in consequence of ties of blood or of friendship, should be the objects of his bounty, and has a mind sufficiently sound to enable him to know and to understand what disposition he wishes made of his property after his death, may make a valid will. Ward v. Harrison, 3 N. J. Adv. R. 470; In re Freeman’s Will, 3 N. J. Adv. R. 484; 2 N. J. Mis. R. 642.

There can be no doubt that in the case under consideration the testator was highly depressed and emotional, subject at all times to fits of weeping; that he W'as suffering from syphilis, complicated with other troubles, and that for at least two years prior to his death he had very poor health. On the other hand, there is abundant evidence that the time he executed the will he was able and competent to transact business. The very circumstances surrounding the execution of the will show' keen judgment, because, as a matter of fact, the very first thing after leaving his deathbed in the hospital, Mrs. Null wrent directly to the butcher shop and demanded from the person who had purchased it from Mr. Hull in the meantime, all of Mr. Null’s papers, which were given to her. Estrin is a young attorney with an irreproachable character, and there is no reason whatever to disbelieve his story, unusual though it may be. If verification were needed, it is found in the fact that Kull was afraid to keep the will in his possession, and placed it where he knew his wife would not have access to it, and this is again verified by the fact that the will was found in the safe where the witness testified Kull told him it would be found.

That there was great friction between Mr. and Mrs. Kull is abundantly proven. Numerous witnesses testified to this fact, and it is further evidenced by her entering into a separation agreement with him in the latter part of 1924, or early part of 1925, whereby she received $1,000. She says that most of this was returned to Kull, but her manner on the stand and her contradictory testimony on this score appears to be of little value. Further, in August, 1925, she engaged an attorney to procure a divorce for her. The petition was filed, subpoenas issued and served, and an application was made for counsel fee and separate maintenance. A counsel fee of $50 was allowed and paid and an order that Kull pay his wife $15 a week made. Later on counsel was instructed to discontinue the divorce proceedings. In connection with conducting his defense to the divorce suit, Kull gave his attorney an elaborate statement of facts as the basis of the preparation of an affidavit which was introduced in evidence. As to testator’s statements in regard to his financial difficulty, it is abundantly proven that at that time his business was falling off by reason of the fact that he was too ill to give it the attention that it required, and the fact unquestionably is that he was worried about his business.

Applying the rules hereinbefore laid down to the case under consideration, I do not think that there is any question but that the testator possessed the mental capacity fixed by these rules, and I will advise a decree that the will be admitted to probate.


author: Walicee, Chakoellok.

text:
    Julia Herzeg, petitioner, v. Michael Herzeg, defendant.
    [Decided April 14th, 1926.]
    Service of Process—Application for Order Dispensing With Special Substituted Service, Counsel Alleging That All Methods of Service Have Been Exhausted—Facts Considered and the Rules and Orders do Not Seem to Have Been Fully Complied With, Nor All Methods Actually Exhausted, Cause Not Being Shown for Dispensing With Substituted Service, a New Order of Publication Must be Taken Out.
    On petition for divorce. On application for order of reference ex parte.

      Messrs. Feld, Weiss & Feld, for the petitioner.
   Walicee, Chakoellok.

Application has been made to me for an order dispensing with special substituted service in this cause. Counsel for the petitioner states that all methods of service being exhausted, he appealed to the advisory master, requesting that he refer the matter to a special master for hearing; that the advisory master refused to issue an order of reference in this cause, and insisted upon a fourth order of publication to be served upon some person known to the petitioner or the solicitor; that it appears every possible method has been exhausted to ascertain the whereabouts of the defendant, or any person who may be related to the said defendant by blood, marriage or otherwise, or any person who may be connected with the said defendant in business or otherwise, proof of which has all been made by affidavits.

The file in the cause shows that on April 4th, 1925, the petitioner, Julia Herzeg, made an affidavit that Mrs. Wizner, residing at 226 Third street, Passaic, New Jersey, a stepsister-in-law of defendant, informd her that she believed the defendant was at that time in Ereemansburg, Pennsylvania, and that she saw him about four months before at that place while attending a funeral; that Mrs. Louisa Kugler is a step-sister - of defendant, and that she resides at Ereemansburg, Pennsylvania; that John Herzeg, a brother of defendant, resides at the same place.

One of the solicitors of the petitioner, Edward A. Weiss, Esquire, on May 8th, 1925, made proof of inquiry by stating that on April 7th, 1925, he caused to be mailed a letter to Louisa Kugler, a step-sister of the defendant, at Ereemansburg, Pennsylvania, and a letter to John Herzeg, a brother of defendant (apparently to the same-place), making inquiry as to the whereabouts of the defendant.

No reply was received from Louisa Kugler, but John Herzeg, on April 15th, made answer, as follows:

“823 Hayes St.,
So. Bethlehem, Pa.
1925 April 15.
Dear Sir-—■
In reply of your letter I am sorry to state that I am unable to forward the desired address of Michael Herzeg, as he did not communicate with me since two years, his whereabouts is unknown to me.
Yours truly,
John Herzeg * * * -Karveis,
(name of agent actually writing.)”

Although the object of the inquiry was not stated in the manner required by the rule, nor was the postage stamp enclosed for the return of an answer, an order of publication was allowed directing service within twenty days upon the defendant of the petition and order, or notice of the order, as service substituted for personal service of process within the state, and in the manner prescribed by rules of court for such substituted service. The usual notice was published as directed, and in proof of services of the papers an affidavit' was filed, made by Mr. Weiss, in which he states that he "caused to be mailed by registered mail a letter [contents not stated] addressed to Mr. Michael Herzeg, the defendant in this case, at No. 49 Mahar avenue, Clifton, New Jersey, last-known residence of the defendant, which letter was returned. I also caused to be mailed by registered mail a letter [’contents not stated] addressed to Michael Herzeg, c/o Louisa Kugler, P. 0. Box No. 158, Ereemansburg, Pennsylvania, which letter was returned with a notation that the said Michael Herzeg had moved and left no address. Both these, letters were returned and are now in the possession of the solicitor.”

Not only does the proof fail to show that the envelope mailed contained a certified copy of the petition and of the order of publication, or notice thereof, and otherwise fails to comply with subdivision 3 of rule 258, but it also discloses that the substituted service was not had upon the defendant. Consequently, solicitors, on September 18th, 1925, applied for and were granted another order of publication, with a special direction of service upon John Herzeg, the brother of the defendant, Ereemansburg, Pennsylvania, personally or by leaving said papers at his place of abode, or by unregistered mail, the envelope to have upon it a return address, and the result of mailing to be shown by affidavit, when it should have provided that it be addressed to 823 Hayes street, South Bethlehem, Pennsylvania, as disclosed in the affidavit of Edward A. Weiss.

Counsel neglected to comply with this order, either by publishing it or serving the papers as directed, but after-wards, on October 28th, 1925, requested and procured another order of publication directing the special substituted service to be made as required in the order of September 8th, 1925.

In making proof of mailing, Mr. Weiss, in his affidavit, says that he personally mailed, in accordance with the requirements of the order of publication, certified copy of the petition and of the order of publication, to John Herzeg, Ereemansburg, Pennsylvania (when it should have been to his address at 823 Hayes street, South Bethlehem, Pennsylvania, as above set out), and he fails to state that the postage was prepaid, where he deposited the papers mailed, or the date on which they were mailed, as required by subdivision 3 of rule 258. He positively states, however, that the letter and contents have been returned with the post-office stamp thereon marked “Unknown.”

Upon application for an order of reference under this proof, the advisory master, on December 31st, 1925, made the following memorandum:

“'The papers were not served on John Herzeg as directed in the order of publication. Counsel should pay better attention. Three orders of publication have already been taken out in this cause.”

When papers were again presented to the advisory master, he made an additional memorandum reading:

“Petitioner is required to take out another order of publication.”

This they have failed to do, insisting, as already stated, that they have exhausted every possible method to ascertain the whereabouts of the defendant so as to procure a substituted service or a special substituted service in the matter.

Where the defendant is out of the state, or cannot, upon due inquiry, be found therein, or conceals himself within the state, section 14 of the Divorce act (P. L. 1907 p. .479) provides for the chancellor making an order directing the defendant to answer by a certain day, not less than two nor more than six months, and the order or notice thereof shall, within twenty days thereafter, be published in the newspaper designated in the order and continued therein for four weeks successively, one in every week, and also provides that service upon the defendant within or without this state of the petition and such order, or notice thereof as service substituted for personal service of process within this state, shall also be made within the same time, and in such manner as the chancellor may by general rules prescribe. See, also, P. L. 1907 p. 477 § 7.

The chancellor has by general rule 258 prescribed the manner in which the papers mentioned may be served on the defendant, but if such service cannot be made in the manner directed by the rules, then it is provided by subdivision 4 of such rule:

“By such service as the court may direct upon application for special substituted service in the cause, to be made within twenty days from the date of the order to answer.”,

Subdivision 5 provides that—

“No adjudication pursuant to the statute shall be made that publication could not be followed practically by service upon or notice to the defendant without this state, or by additional substituted service upon the defendant within this state, unless so made upon an application for special substituted service under subdivision • 4, or upon application for the order of reference; and in the latter case, unless it is made clearly to appear that no special substituted service could have been directed if application had been made therefor within the time allowed by subdivision 4.”

And subdivision 6 declares that—

“No order of reference shall be made in any case falling under this rule [258] until its requirements and the requirements of the preceding rule [257 ] shall have been satisfied.”

Application for adjudication that publication could not be followed practically by service upon the defendant without the state or by additional substituted service upon him within this state, is made in this cause upon application for an order of reference; consequently, it must clearly appear that no special substituted service could have been directed had application been made therefor within the time allowed by subdivision 4.

A special substituted service could have been directed to have been made on John Herzeg, at 823 Hayes street, South Bethlehem, Pennsylvania.

Out of an abundance of caution counsel should have addressed John Herzeg, not only at Ereemansburg, Pennsylvania, where he, apparently, does not live, but also at 823 Hayes street, South Bethlehem, Pennsylvania, where, apparently, he does live.

It appears that proper care and diligence would have enabled counsel to serve the papers on him (John Herzeg) within the time directed.

Pause is not shown for dispensing with substituted service, but, on the contrary, a new order of publication must be taken out, as directed by the advisory master.


author:
Harry J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH SZARY, PETITIONER, v. MANHATTAN RUBBER COMPANY, RESPONDENT.
    On petition tor compensation. On determination and rule for judgment.
   This matter coming on to be heard before Honorable Harry J. Goas, deputy commissioner, on October 20th, 1926, in the presence of the respective parties, on the claim of the petitioner that on June 9th, 1925, whije in the employment of the respondent, he sustained an injury to his left foot, and after hearing and considering the testimony and the arguments of counsel, and being of the opinion that the conditions under which the Compensation law permits the recovery of such an injury as proved to exist in this case, but in so far as the petitioner has failed to file a formal petition within the one-year period, as prescribed by law, under the statute, with the compensation bureau of the State of New Jersey,

It is, on this 3d day of November, 1926,. ordered that the petition be dismissed and that judgment be entered in favor of the respondent and against the petitioner, and that each party should pay $5.00 towards the stenographic fee.

Harry J. Goas,

Deputy Commissioner.