text:
    HENRY NIGHTENGALE, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided March 20, 1930.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Henry H. Fryling (William H. Speer, of counsel).

      Contra, Evans, Smith & Evans (John F. Evans, of counsel).
   Per Curiam.

The plaintiff obtained a verdict against the defendant at the Passaic County Circuit for $20,000. The defendant seeks to set the verdict aside for several reasons. Twenty are presented to that end. They are discussed in the defendant’s brief under seven heads.

Under the first head it is contended that the verdict is against the clear weight of the evidence, on the issue of negligence on part of the defendant, as well as on the issue of contributory negligence on part of the plaintiff, and the trial judge erred in refusing motion to nonsuit,- and for a direction of verdict -in favor of the defendant.

Counsel of defendant says, that under this head, reasons numbers 15, 16, 17 will be discussed.

Starting in with the legal propositions: (1) It is settled law that the court will not grant a nonsuit if there is any testimony tending to show there was negligence on part of the defendant. (3) That unless it clearly appears on part of the plaintiff’s case that his negligence was proximately contributory to the defendant’s negligent act a nonsuit cannot be legally granted. The burden of establishing contributory negligence is upon the defendant. (3) A trial judge cannot legally direct a verdict for the defendant unless it appears from the testimony offered, on behalf of defendant, or from all the evidence in the case, that there is a legal bar to the plaintiff’s right of recovery. Where the defendant’s testimony merely raises a question of fact, the case must go to the jury. (4) To warrant the setting aside a verdict against the clear weight of the evidence it must appear that it is the product of mistake, partiality, prejudice or passion.

In the light of those settled legal principles we have examined the testimony in the case before us with the result that we find, on the issue of negligence of the defendant, there was ample testimony tending to establish such negligence, and on the issue whether or not the plaintiff contributed to the defendant’s negligence that there was a fair issue of fact raised for the determination of a jury. The verdict of the jury cannot be properly challenged that it was against the clear weight of the evidence.

The plaintiff’s action against the defendant company grew out of a collision between one of the defendant’s trolley cars and a Ford automobile owned and operated by the plaintiff, which he was driving south on Main street, a public highway in the city of Paterson, with the result that the plaintiff was grievously injured.

The direction in which the plaintiff was operating his automobile, according to the testimony, required of him, as a careful driver, to give heed to the traffic in the rear of him, as well as to the traffic coming from the north in an opposite direction in which he was driving, and also to give heed to the traffic in Elizabeth street, into which street he was about to turn.

The proof is, that he made the cautionary observations, and saw the defendant’s trolley car, when it was about two hundred feet away, at which point, the plaintiff, after first holding out his hand, as a signal that he was about to turn into Elizabeth street, and while in the act of turning his automobile, was run into by the trolley ear.

There is plenary proof that the trolley car was being operated at an excessive rate of speed; that at the time the plaintiff was turning into Elizabeth street, the trolley car was two hundred feet away therefrom, and as there was no obstacle in the way to obstruct the view of the motorman, of the plaintiff’s automobile, the only permissible inference is, that if the motorman had been on the alert he could not have failed to have seen the defendant, as he was making the turn.

While it is true, the plaintiff had a clear view of the approaching trolley car, he had a right to assume that the motorman was paying due regard to the movement of the traffic ahead of him, and was acting with the ordinary prudence of a prudent man, and therefore, had his car under control, so that he, the plaintiff could make the turn with safety. This ordinary caution, according to the testimony, the motorman did not take.

It appears that after the trial had resulted in a verdict for the plaintiff and a rule to show cause had been allowed by the trial judge to the defendant why a new trial should not be granted, an application was made to the trial judge, presumably on the plea that since the trial, and the granting of the rule, the defendant had discovered new evidence which was material on the issue tried, and therefore asked leave to take depositions in that regard to be used upon the argument before this court upon the rule to show cause, which leave appears to have been granted.

There is nothing appearing in the depositions, or otherwise, that shows the defendant had used due diligence to obtain the testimony they now offer, before trial, or discloses that such testimony as they now offer, was not known to the defendant, before and at the time of the trial. On what basis this newly discovered evidence is offered, as such, does not appear. We know of no practice which allows the taking of depositions of an alleged newly discovered witness, unless there is a basis laid therefor, by affidavit. We find none in this case.

It appears that, after the trial which had resulted in a verdict for the plaintiff, February 14th, 1929, counsel of defendant applied to the trial judge within the time required by law, why the verdict should not be set a'side and a new trial granted. Subsequently, on March 5th, 1929, on application of counsel of defendant, the trial judge made an order granting the defendant leave to take depositions to be used in the argument of the rule to show cause, theretofore granted in the case.

There is no indication in the latter rule that the basis of it was newly discovered evidence, nor does the record disclose that the trial judge had before him any affidavit or affidavits upon which to found judicial action.

The entire proceeding was irregular and contrary to established practice. At the time of the allowance of the second rule, the trial judge was without any authority to amend or enlarge the original rule. The application should have been made by the moving party, on affidavit or affidavits disclosing that the evidence offered was newly discovered, and that it was materia] to the issue passed upon by the jury, and that the existence of the witness or witnesses who could give such testimony was or were unknown to the defendant before and at the time of the trial, and that the exercise of due diligence on part of the defendant failed to discover the existence of the witness or witnesses who could furnish such testimony, or as the case may be.

It is exclusively the function of the Supreme Court sitting en banc, on a rule to show cause allowed at the Circuit, in a Supreme Court issue, to enlarge such rule for the purpose of taking testimony, as indicated in the rule to be used in connection with the testimony adduced at the trial, upon the hearing of the argument of the rule to show cause.

We have, however, examined the testimony taken under the rule, because, according to the record no objection was raised to the irregularity of the proceedings and the testimony was apparently taken with the consent of counsel.

The alleged new evidence injected into the cause lacks all the essential elements of the recognized characteristics of newly discovered evidence. We need only mention here one of them. Even though the witness and the nature of his testimony were unknown to the defendant at the time of the trial, his testimony, at most, is merely cumulative. He is an added witness to the witnesses produced by the defendant who gave contradictory testimony to that given by the witnesses on part of the plaintiff, and especially by one of the plaintiff’s principal witnesses.

It is a matter of common knowledge that there is in every contested case a sharp conflict in the testimony of witnesses, so that it is often difficult to detect where the truth lies. Verdicts must have some stability. They ought not be subject to be disturbed on charges like the present, namely, that the principal witness for the plaintiff made statements, at the trial, which statements were in conflict with those made by him to the alleged newly discovered witness.

Eurthermore, it is essential before such alleged newly discovered evidence can be considered as such, the party offering ■such testimony must show strict compliance with the legal requirements to that end, and the proffered new testimony must not only be material and convincing, but of a character as would tend to reverse the result reached by the.jury. As the alleged newly discovered testimony is, obviously, cumulative on the subject which was in controversy, at the trial, the general legal rule is, not to disturb verdicts whore such is the case, for if a contrary course were pursued a verdict would never have any stability.

It is next argued, in the brief of defendant, that the trial judge erroneously permitted to be given in evidence, by the plaintiff, loss of business profits sustained by him. We have examined the testimony objected to and think it was competent. Its probative value was for the jury.

Next, it is said, that the trial judge erroneously refused to charge defendant’s request, “that if they find the plaintiff will have losses which will grow due in the future, they should, in arriving at their verdict, fix the present value of such losses as they find will grow due in the future.”

This request was made by counsel of defendant after the jury had retired to consider on their verdict. Counsel of defendant called the court’s attention to the fact that he had omitted to charge the jury regarding the burden of proof which rested upon the plaintiff. Thereupon, the court recalled the jury and charged on the burden of proof. The court then asked, “is there anything else now ?” then counsel for defendant apparently made an oral request to the court to charge the jury as above recited on the question of damages, which the court refused to do.

While the rejected request to charge embraces the true legal rule, we are unable to perceive how, under the testimony, in relation to the present damages suffered by the plaintiff, any harm resulted to the defendant, because of the refusal of the court to charge the request. The request was not really helpful to the jury unless accompanied by further explanation of the financial theory upon which the request was based.

This case is before us on a rule to show cause. The case of Lambert v. Mercer Traction Corporation, 103 N. J. L. 23, relied upon by counsel of defendant, for setting aside the verdict, was before the court, on error, and the question of damages awarded in that case was not a matter which could enter into the consideration of the case, on appeal.

The instant case also differs from the Lambert case in that when the request was made, similar in import to the request made in the present ease to the trial judge, the jury had not yet retired from the bar. In the present ease, the jury had retired and were considering the case upon its merits. The jury was recalled, at the request of defendant’s counsel for a single purpose, and that purpose was for the court to instruct the jury as to the burden of proof, and because the court asked, “is there anything else?” that counsel of defendant took the opportunity to further ask the court to charge on the question Of damages, as above recited.

Such practice was clearly in violation of all the legal rules which prevailed for more than half a century at the bar, but was relaxed in the Lambert case. However, the matter being before us on rule to show cause, we think the request to charge in the shape it was in, and under the circumstances, developed by the testimony, in the case, as to the injuries which the plaintiff received and the losses which he actually sustained, the failure to charge the request did no harm.

The past and present losses up to the time of the trial, and the past and present suffering of the plaintiff, the medical expenses, &c., without regard to future losses, are sufficient to-support a very substantial verdict.

Next, it is said, that the trial judge erred in permitting counsel of plaintiff to state to the jury what, in his opinion, would be a fair verdict for the plaintiff. There is no merit in this contention. We find nothing in the statement that can be said to be inflammatory or prejudicial to the defendant. If' counsel of defendant intended to take an exception to the-'statement made he should have requested the court to charge-the jury, that the statement by counsel, in that respect, be disregarded, and if the court failed so to do, take an exception.

Next, it is said the verdict is excessive. We think it is. We-have carefully examined the testimony in regard to the damages which the plaintiff suffered and have reached the conclusion that the verdict should be reduced to $15,000, and if plaintiff accepts the same, then the rule to show cause be discharged, and if not, the rule shall be made absolute.


source: Caselaw Access Project

author: Losche, J.

license: Public Domain

text:
    First Judicial District of Bergen County.
    GEORGE F. EATON, Jr., PLAINTIFF, v. CHARLES SCHILD AND CLARA SCHILD, DEFENDANTS.
    Eor the rule, Berthold Vorsanger.

    Contra, Reuben P. Goldstein.

   Losche, J.

The rule to show cause obtained by defendants brings up for consideration a judgment in favor of the plaintiff rendered after a trial without a jury. The state of demand, in part, alleges as follows :

“Plaintiff residing in the city, county and State of New York, says that:

1. On or about August 3d, 1929, he was operating his automobile in a westerly direction on Paterson Plank road, a public thoroughfare, near the town of- Secaucus, county of Hudson, and State of New Jersey.”

The action was brought to recover for property damage resulting from a collision between plaintiff’s and defendants’ automobiles. The automobile driven by plaintiff was the property of plaintiff’s wife and was registered in her maiden name, Celena Contemone. Plaintiff resided in New York with his wife where, on August 3d, 1929, she loaned him her automobile. Plaintiff then drove it to the place where the accident happened.

Defendants contend that upon these facts the judgment may not be sustained. To decide the question presented, it is necessary to determine plaintiff’s status with respect to the-automobile when it was damaged, as has been found, by defendants’ fault.

Bailment is a contractual relationship. 6 C. J. 1102, § 19-Plaintiff’s wife having loaned him the automobile in New York, the law of that state governs. Thompson v. Taylor, 66 N. J. L. 253 (at p. 257). Such a lending constituted plaintiff a bailee under the laws of New York since there is-in that state no impediment to a contract between husband and wife. Busch v. Klein, 38 N. Y. App. Div. 624; 55 N. Y. Supp. 917; Thompson v. Taylor, supra. Plaintiff then came-to this state and had his accident while holding the status of' bailee of the automobile.

A bailee may recover for the damage to the bailed article. N. Y., L. E. & W. R. R. Co. v. New Jersey Electric Railway Co., 60 N. J. L. 338 (at p. 341); affirmed, 61 Id. 287; Warren v. Finn, 84 Id. 206 (at p. 209); Preziaso v. Union City Cleaning and Dyeing Co., 6 N. J. Mis. R. 171 (at p. 172). His recovery may be to the full extent of the damage to the-article. The Central Railroad of New Jersey v. Bayway Refining Co., 81 N. J. L. 456 (at p. 459).

Defendants next contend that, if plaintiff is permitted to-recover, his bailor may recover a second time. In such second suit, however, the right to relief would rest upon the same-point or question, and, the same property and the same parties, or those in privity with them, would be involved. Privity exists between bailor and bailee. Ladany v. Assad (Conn.), 99 Atl. Rep. 762 (at p. 765). The doctrine, res adjudicata,. therefore, applies; White v. Mindes, 8 N. J. Adv. R. 124 (at p. 126) (not yet officially reported); and a recovery by the bailee is a bar to any recovery by his bailor. The Central Railroad of New Jersey v. Bayway Refining Co., supra.

Defendants next contend that, even though all this be-true, the state of demand is insufficient in that it merely refers to the automobile as “his automobile” and does not allege that plaintiff was a bailee. This is not so. The principles of the common law method of pleading are essentially followed despite the adoption of onr modern rules. Lully v. National Surety Co., 8 N. J. Adv. R. 202 (at p. 204) (not yet officially reported). At common law, to state a good cause of action in trespass for injury to personal property, it was necessary to allege that the property injured was the plaintiff’s. It was not necessary to allege legal ownership. An allegation of possession was sufficient since some of the incidents of ownership, among which is the right not to have the property injured, prima facie, follow possession. In Todd v. Jackson, 26 N. J. L. 525 (at p. 538), the Court of Errors and Appeals said:

“The action of trespass, both as to real and personal property, is a possessory action. A party in possession is, prima facie, the owner, and that possession will entitle him to recover to the extent of the injury done, unless the defendant show something in mitigation of the damages.”

In Thompson v. Jannarone Contracting Co., 6 N. J. Mis. R. 320 (at p. 321), the Supreme Court said:

“The action of trespass is a possessory action, the one in possession is the apparent owner and entitled to maintain the action.”

The state of demand in this ease satisfies the requirements. That plaintiff had certain property rights in the automobile may not be doubted because as against everyone but his bailor his possessory interest was equivalent to actual ownership (Warren v. Finn, 84 N. J. L. 206—at p. 209); and, to protect this interest plaintiff could and did sue in his own right.

Johnson v. Florida Brewing Co. (Fla.), 105 So. Rep. 319, was an action of trespass on the case wherein Johnson, a bailee, sought to recover damages caused to his bailed automobile in a collision with the defendant’s automobile. The declaration alleged that Johnson “was the owner” of the bailed automobile. The Supreme Court of Florida, in sustaining the declaration, said (at p. 320):

“It has been held in such an action that the usual mode of pleading is for the declaration to allege ownership by the plaintiff, and that any proof of ownership which will support the action of trespass will he sufficient under such an,allegation to entitle the plaintiff to recover; that, the mere right of possession being sufficient to maintain the action against every one but the owner of the legal title, the allegation that the plaintiff is the owner is well made out by merely proving his right of possession as bailee. Rocker v. Perkins, 17 D. C. (6 Mackey) 379. See, also, 21 Encycl. Pl. & Pr. 287.”

Other authorities to the same effect are: Armstrong v. Kubo & Co. (Cal.), 263 Pac. Rep. 365; Herries v. Bell (Mass.), 107 N. E. Rep. 944; Mizner v. Frazier, 40 Mich. 592; Swift v. Pacific Mail S. S. Co. (N. Y.), 12 N. E. Rep. 683; McMurray v. Fargo, 147 N. Y. App. Div. 422; 131 N. Y. Supp. 884; Yrisarri v. Clifford (N. M.), 249 Pac. Rep. 1011. Another consideration which should not be overlooked is that strict formality in pleading is not required in this court. Kennell v. Gershonovitz, 84 N. J. L. 577 (at p. 578).

Defendants’ final contention is that without an allegation in the state of demand setting forth plaintiff’s status as bailee, there is nothing in the record to enable them, if necessary later, to invoke the protection of the doctrine, res adjudicata. Defendants lose sight of the fact that parol evidence would he admissible to aid them in that event. Clark Thread Co. v. William Clark Co., 55 N. J. Eq. 658 (at p. 663—reversed on another point).

The rule to show cause is discharged.


author: Ingersoll, V. C.

text:
    Bessie Hauck Schneider, complainant, v. Winchester Development Company et al., defendants.
    [Decided April 2d, 1930.]

      Messrs. Repetto •& Godfrey, for the complainant.

      Mr. John A. Riggins, pro se, as receiver of Winchester Development Company.

      Messrs. Thompson & Hanstein, for the defendant Bichard P. Bloom.
   Ingersoll, V. C.

In addition to what I said at the time of the hearing, in which I declined to advise a decree for specific performance, but stated that I was very much inclined to believe that if it is within the power of the court—and I was, without looking into it, inclined to believe that it was—to advise a decree for the return of the money, or at least the imposing of a trust upon such funds as may be of the money which this man has paid, for which he has received nothing.

My attention has been called to Ludlum v. Buckingham, 35 N. J. Eq. 71 (at p. 82), where Vice-Chancellor Van Fleet said:

“In actions for specific performance, it seems to be settled that where the defendant has, pending the suit, deprived himself of the ability to perform, or where he has, before suit, disabled himself to perform, without the knowledge of the complainant, and the complainant brings his suit in good faith, believing that the defendant can perform a decree for specific performance, or where the complainant establishes a ease clearly showing that he is entitled to equitable relief, and it appears that he has no remedy at law, or that his legal remedy is precarious, equity, although it cannot enforce specific performance, will nevertheless retain jurisdiction, and give damages or compensation, either by estimating them itself, or by awarding an issue of quantum damnificatus. Morss v. Elmendorf, 11 Paige 277; Wiswall v. McGowan, 1 Hoffm. Ch. 126; Milkiman v. Ordway, 106 Mass. 232; Phillips v. Thompson, 1 Johns. Ch. 131.

“The rule deducible from the authorities, I take to be this: In actions for specific performance or kindred actions, a court of equity may always, when the compensation or damages can be ascertained by a simple calculation, give relief in that form, where such relief is indispensable to the working out, with completeness, of an equitable result, or the right to relief is a matter purely of equity cognizance, or the remedy at law is precarious or extremely difficult.”

The difficulty in applying this case to the case sub judice is that a receiver has been appointed for the Winchester Development Company, and said receiver has been admitted as a defendant, and before an order'can be made impressing a trust upon the assets of that corporation, the money paid must be traced into some specific asset of the insolvent corporation.

As Vice-Chancellor Learning said in Pierson v. Phillips, 85 N. J. Eq. 60:

“The evidence has not traced the • trust funds into any specific property. What actually became of the trust funds is not known, and it is impossible in such circumstances to determine that the money was in or formed a part of any asset of intestate’s estate in the absence of any evidence to that effect. Where the trust property cannot be identified either in its original or a substituted form, this court can afford no relief of the nature here sought; in such case the remedy of the cestui que trust is that of a creditor and is administered elsewhere. The following adjudicated cases of this state fully exemplify the views herein expressed: Ellicott v. Kuhl, 60 N. J. Eq. 333; Collins v. Lewis, 60 N. J. Eq. 488, 491; Heinisch v. Pennington, 73 N. J. Eq. 456, 463; Harrison v. Fleischman, 70 N. J. Eq. 301, 303; Smith v. Combs, 49 N. J. Eq. 420, 423.”

I will advise a decree dismissing the bill.


author: Per Curiam.

text:
    JAMES BOWEN, RELATOR, v. STATE HIGHWAY COMMISSION OF THE STATE OF NEW JERSEY, RESPONDENT.
    Argued October 1, 1929
    Decided March 25, 1930.
    Before Justices Trenchard, Lloyd and Case.
    Por the relator, John Milton.

    For the respondent, William A. Stevens, attorney-general, and Mario A. Sullivan, for the state highway commission.
   Per Curiam.

By this rule the state highway commission is required to show cause why a writ of mandamus should not issue, "directing the commission to proceed in the manner prescribed by law, to procure an ascertainment and appraisal of the value of the use and occupation of the lands of relator in Jersey City, occupied by the commission since July 1st, 1922, and the payment thereof to relator.”

The following matters, among others, seem to be made to appear:

1. The land in question is part of a tract purchased by relator in November, 1922, consisting of two and fifty-three one-hundredths acres of meadow land, irregular in shape, bordering upon the Hackensack river and the Newark Plank road in Jersey City, for which he paid $32,000.

2. Because of the accidental destruction of the bridge over the river it became necessary for the state highway commission to take a part of such land for bridge purposes, and for its contractor to occupy temporarily other parts of it in their construction of the bridge, which work was begun in September, 1922.

3. Being unable to acquire such rights by purchase, the commission entered upon parts of such land preliminary to condemnation proceedings.

4. The part taken in condemnation contained forty-one hundredths of an acre for which the owner received $47,000 in the condemnation proceeding.

5. The condemnation was as of March 14th, 1924.

6. Between 1922 and 1924 there had been an increase of from one hundred and twenty-eight to three hundred per cent, in the market value of substantially similar lands.

7. The bridge was built by an independent contractor under contract with the state highway commission.

Belator in his brief claims compensation for the temporary occupation of two tracts of land:

1. A small triangular tract lying between the condemned property and the Plank road for the alleged occupation of such tract by the contractor during the time the bridge was in the course of construction.

2. The plot actually condemned by the state highway commission for the period between the time he got title up to the institution of condemnation proceedings.

As to the triangular plot, it seems to appear to consist of a small parcel of land lying between the plot subsequently condemned and the main road.

There is certainly no satisfactory proof that respondent ever occupied this piece of ground. If any occupancy at all is shown, it is occupancy by the contractor. Mandamus is a remedy that is used only where there is no other legal method of redress. Whether on relator’s showing he could successfully institute an action at law against the contractor for use and occupation, it is not necessary now to determine. But, as we think, he showed no occupancy by the state highway commission of this tract, and is therefore not entitled to a mandamus on this phase of the case.

As to the plot actually condemned, the respondent seems to have complied with the statute. Cum. Supp. Comp. Stat., p. 3091, § 12, ife. It entered into possession immediately because obviously the bridge had to be restored at once, as it was the main road between Jersey City and Newark. It tried to come to an agreement with the owner, and failing, after extended negotiations, began condemnation proceedings. It is a novel proposition that there should be two condemnation proceedings with reference to the same tract of land. It seems to us that the time and place for relator to have urged what he now urges was upon the return day of the original notice in the condemnation proceeding, at which time any compensation that might be due him for the temporary occupation of his land could have been included in the inquiry, and it is interesting to notice that as a matter of fact the report of the commissioners appointed in this case to appraise the value of the lands says that the award includes “the damages to be sustained in consequence of the taking and occupation thereof,”

It further appears that relator took an appeal to the Circuit Court, and the issue was framed therein in his presence, in which appeal relator was awarded a verdict, which, after appeal to the Supreme Court, was paid to him.

Now we think that the relator should not be permitted to stand by and see an issue framed which did not include all his alleged damages and then after the trial of such issue and the payment of the compensation awarded him in such action, come again into court and demand further damages which might have been included in the original proceeding. Apparently at the time there was a rising market, for the testimony of relator’s own witnesses in the condemnation proceedings was that there had been an increase of from one hundred and twenty-eight to three hundred per cent, of the market value in his property between 1922 and 1924. The commission entered upon the land in 1922. If condemnation proceedings had been started at that time the relator would have received much less than what he did as of 1924. And it is significant that the relator delayed Ms application from 1922 until July 8th, 1921, when the present application was made.

We are constrained to think that the writ must be denied, and accordingly the rule will be discharged, with costs.


author: Pee Cueiam.

text:
    RODERICK ESPOSITO, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS AND THE MAYOR, ETC., OF HOBOKEN, RESPONDENTS.
    Argued March 27, 1930
    Decided March 28, 1930.
    Before Justices Teenchabd, Lloyd and Case.
    Eor the prosecutor, Nicholas 8. Schloeder.

    Eor the respondents, Horace L. Alien.

   Pee Cueiam.

Our examination of the record discloses to our satisfaction that the order of the public utility board revoking the local consent of the prosecutor to operate an auto bus in Hoboken is amply supported by evidence and is legally unobjectionable. Accordingly, the rule to show cause why a writ of certiorari should not issue to review such order is discharged, with costs.


text:
    MARGARET DOSCHER, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT-APPELLANT.
    Submitted January 31, 1930
    Decided April 4, 1930.
    Before Justices Pakkee, Black and Bodine.
    Eor the plaintiff-respondent, Harry W. Lange and William H. Hunelce.

    Eor the defendant-appellant, Henry H. Fryling and Carl T. Freggens.

   Pee Cueiam.

This suit was brought in the Eirst District Court of Hudson county to recover damages for personal injuries. The trial with a jury resulted in a verdict and judgment for the plaintiff for $175. The defendant appeals and alleges, as a ground of appeal, that the trial court erred in refusing to direct a verdict in favor of the defendant, on the ground there was no evidence of negligence shown on the part of the defendant. This we think is so, and the judgment will be reversed. The plaintiff was a passenger of the defendant company on the 28th of November, 1928. At the Hudson Place Terminal in Hoboken, the bus being stopped, the plaintiff attempted to alight from the bus, when she was injured. She testified to the occurrence as follows: "Q: When you arrived at the terminal was the car stopped when you alighted? A. Yes, sir. Q. Now, just describe as best you can to the court and jury when you got out of this ear just how you did it ? A. Well, I walked out after a couple—a couple of people walked out before me, and I walked along the bus and held on the pole. There was a little step on the platform, and I stepped on the platform and then I put my foot out and I stepped and slipped down and the other foot was inside * *

In the testimony sent up in the paper book with the appeal, there is no suggestion that any of the appliances of the bus connected with the platform or steps were defective or out of order, causing the plaintiff to slip down on the steps of the bus, when she alighted therefrom.

The judgment of the First Judicial District Court of Hudson county is therefore reversed.


text:
    JACK R. REMINGTON, PLAINTIFF-APPELLANT, v. LAUTER PIANO COMPANY, AND IN THE ALTERNATIVE, JOSEPH A. FUERSTMAN, DEFENDANTS-RESPONDENTS.
    Submitted January 31, 1930
    Decided April 7, 1930.
    Before Justices Parker, Black and Bodine.
    For the plaintiff-appellant, Fast & Fast.

    For the defendants-respondents, Joseph A. Fuerslman.

   Per Curiam.

The plaintiff, Bemington, was employed in writing by Matilda Eobson to sell her property on North Twelfth street, Newark, New Jersey. He arranged for the sale of the prernises to Goldberg & Galler. A -written contract was executed which was binding upon the parties. Eemington’s commissions were fixed in writing, and he was entitled to the payment thereof from Mrs. Eobson. Before the sale was consummated, Mrs. Eobson and her husband conveyed the property in question to the Lau£er Piano Company, as trustees. The Lauter Piano Company was glad to carry out the sale to Goldberg & Galler. The money to be paid was for their benefit.

At the time fixed for settlement, Goldberg & Galler refused to go on with the purchase of the premises unless Eemington’s commissions were paid. Joseph A. Euerstman, an attorney-at-law representing the Lauter Piano Company, agreed to pay the commissions if Goldberg & Galler would immediately go on with the sale and if it transpired that Mrs. Eobson had signed the authorization for the commissions. There seems to be no dispute that Mrs. Eobson did sign the authorization, nor is it contended here that Euerstman lacked authority to bind the Lauter Piano Company.

The District Court found that Euerstman’s undertaking was an undertaking to answer for the debt of another, and since it was not in writing there could be no recovery.

We think it quite clear that Euerstman’s promise was an independent undertaking. He did not promise to pay Mrs. Eobson’s debt. He promised to,pay Eemington money if Goldberg & Galler would immediately go on with the purchase of the premises. Of course, Goldberg & Galler were under a contract to purchase the property. But the immediate settlement of their obligation by the payment of cash and the taking of title furnished a consideration to support the promise to pay Eemington a sum of money. This was not a payment of commissions for. the sale of real estate, but a payment promised for present settlement of a dispute.

So we find that the promise was not only an original undertaking, but that it was supported by a good and valid consideration. See Military College v. Brooks, 7 N. J. Adv. R. 1207.

The judgment below will be reversed.


text:
    GEORGE SMITH, PLAINTIFF, v. STARKEY FARMS, INCORPORATED, A CORPORATION, AND DAVID MERK, DEFENDANTS.
    Submitted January 31, 1930
    Decided April 7, 1930.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff, George L. Burton.

    For the defendant, William, K. Flanagan.

   Per Curiam.

A suit was commenced under the laws providing for service of process upon non-resident automobilists ifi actions growing out of injuries received by residents of this state by reason of automobile accidents occurring within the state. Pamph. L. 1924, p. 517 (amended 1927, p. 441).

The plaintiff’s residence is alleged to be at New Brunswick, New Jersey. A motion to strike the complaint, on the ground that the plaintiff was not a resident of this state, was made and testimony taken before one of the justices of this court, who denied the motion.

It appears that the plaintiff, a poor man, was injured in an automobile accident in this state. He had been a resident of Brooklyn, New York. He was taken to a New Brunswick hospital and was rather fretful while there and desired to return to Brooklyn. Eriends found him employment at South River, New Jersey. He went to this work when he was discharged from the hospital. He has kept his residence at New Brunswick, and has been continually working at South River.

We think'that whether the word "resident” as used in the statute means those domiciled in this state or merely those residing here, that the judgment of the single justice was proper. However, the term may have been used, the mental attitude and the intention of the plaintiff is largely determinative of the question of residence or domicile. The record shows a determination to reside and work in Middlesex county, accompanied by an actual abode and a place of employment. This would be quite sufficient to show plaintiff’s mental attitude and his intention with respect to the matter. The justice hearing the testimony could, with much greater preciseness, determine the shades of meaning intended from the language used than we.

The motion for the rule will be denied and the order denying the motion to set aside the service of summons will be affirmed.


author: Pee Ctjeiam.

text:
    JANE OSAR, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, DEFENDANT-APPELLANT.
    Decided April 7, 1930.

      Before Justices Pakkee, Black and Bodike.
    For the defendant-appellant, Mr. Henry H. Fryling.

    For the plaintiff-appellee, Stein & Stein.

   Pee Ctjeiam.

The plaintiff, Jane Osar, was the owner of 205 Yalley road, Clifton, New Jersey. The premises had been vacant for sometime and the gas had been turned off. Repairs were made to the premises and electric light fixtures were substituted for the old gas fixtures. The premises were then leased to Charles Wood, and on February 21st defendant, in response to a notice, sent an employe to turn the gas on. The employe had access to the cellar. The rest of the premises were locked, and he was not informed of any changes which had been made. There is some testimony that gas escaped through a defective plugging of a pipe in the kitchen ceiling, which was not visible. The change in the gas system had been made by an independent contractor employed by the plaintiff.

“The general rule requiring the use of ordinary care and diligence on the part of a gas company applies to its delivery of gas into the residence or other building of the consumer. The rule has been laid down, however, that in the absence of any fact upon which to base an inference of duty, the failure of a gas company, on introducing gas into a dwelling upon application, to inspect pipes or fixtures which were placed therein by the owner and over which the company has no control, is not negligence. The company is warranted in assuming that the interior system of pipes is sufficiently secure to permit the gas to be introduced with safety. To render the company liable in such cases there must be facts alleged to show notice of defects, or facts from which an inference of duty to inspect arises either from contract, custom or franchise.” 28 Corp. Jur. 594.

■When a new installation of electric wiring has been made, there is undoubtedly a duty upon the utility company to see that the work has been properly done before the power is transmitted from its line. Hoboken, &c., Co. v. United Electric Co., 71 N. J. L. 430.

This is a case of restoring the service, and the evidence indicates that the defendant knew nothing about any change in the gas piping. It was not given access to any part of the premises where changes had been made, and it was not informed concerning them. Nearly thirty-six hours after the gas had been turned on, the tenant Wood connected up his gas range and went out for supper. When he came back he took a lighted lamp into the bathroom above the kitchen and the explosion occurred. The testimony indicates that the gas may' have escaped from a pipe in the kitchen ceiling, which was covered over with plaster and was not obvious before the explosion. At any rate, there was no evidence of the escape of gas until some thirty-six hours after it had been turned on.

We fail to see how the proofs indicate a breach of duty, the proximate cause of the injury complained of. The judgment below will be reversed.


author: Pee Cubiam.

text:
    PASSAIC NATIONAL BANK AND TRUST COMPANY, PLAINTIFF-APPELLEE, v. FRANK M. GRISWOLD, IRA MASTENBROOK AND KARL KNAPP, DEFENDANTS-APPELLANTS.
    Submitted January 31, 1930
    Decided April 7, 1930.

      Before Justices Pabkeb, Black and Bodijste.
    Por the defendant-appellant, Karl Knapp and Spindel & Berr.

    Por the plaintiff-appellee, Feder & Binzler.

   Pee Cubiam.

The plaintiff brought suit on a promissory note endorsed by the defendant Karl Knapp. Knapp had not placed his address under his signature upon the back of the note. It appears that he had been a resident of Clifton, New Jersey, for the last eleven years and had never lived in Passaic and had not engaged in business there for nine years before the note fell due. The notary mailed the notice of protest addressed to Karl Knapp at Passaic, New Jersey. The envelope containing the notice and bearing the sender’s address seems not to have been returned, although Knapp testified he did not receive it. The notary made no effort to ascertain Knapp’s address, but since no address was given after the endorser’s signature he mailed the notice to Passaic. The maker of the note lived in Jersey City and the note was payable in Passaic.

It appears that the notice was not sent to the post office nearest to the endorser’s residence or to the post office where he was accustomed to receive his letters, or where he conducted his business, nor to the place where he was sojourning, as required under section 108 of the Negotiable Instruments law.

Nor does it appear that the notary exercised any diligence whatever in attempting to learn the endorser’s address. He made no inquiry of the maker, the officials of the bank, or any one else whether connected with the transaction or not, so that notice of dishonor could not be dispensed with under section 112 of the Negotiable Instruments act. First National Bank of Belmar v. Gray, 101 N. J. L. 179; Radin v. Creran, 8 N. J. Adv. R. 82.

This leads to a reversal of the judgment against Knapp.


text:
    IRVING VERNER AND MAX ZOFNAS, PLAINTIFFS, v. LOUIS BOHEN, DEFENDANT.
    Argued October term, 1929
    Decided April 9, 1930.
    Before Justices Tbenchaed, Lloyd and Case. '
    Eor the rule, Seller & Boss.

      Contra, Turner & Stalter.

   Per Curiam.

■ There was a verdict for the defendant and plaintiffs have a rule for a new trial, in which it is urged that the verdict is against the weight of the evidence.

Plaintiffs were riding with defendant at the latter’s invitation when the truck in which they were riding ran into a tree and plaintiffs and defendant were all injured. Defendant’s explanation was that he turned to the curb distant five feet on his right to avoid striking a boy who darted out from his left side. The plaintiff Yerner testified that defendant had given him a different explanation. This the defendant denied. We think a fair jury question was presented and that the rule should be discharged.


text:
    SOPHIE LUNASKI AND JULIAN LUNASKI, PLAINTIFFS, v. S. KOSSON & SONS, A CORPORATION, AND PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANTS.
    Submitted October term, 1929
    Decided April 9, 1930.
    Before Justices Tbenchaed, Lloyd and Case.
    Eor the rule, Edward II. Baches and Henry H. Fryling.

      Contra, De Turch & West.

   Per Curiam.

These are rules for new trials allowed to defendants. There was a general verdict against both. The case arose out of a collision between a bus of the Public Service Co-ordinated Transport Company and Kosson’s truck, plaintiff being a passenger in the bus. There was a verdict in favor of Mrs. Lunaski for $5,000 and for the husband for $1,500.

The reasons for making the rules absolute are in both cases that the verdicts were excessive, contrary to the weight of the evidence, and in the Public Service Co-ordinated Transport case, that a nonsuit should have been granted.

Mrs. Lunaski was injured in consequence of the collision between the bus and the truck. The mere fact of injury under the circumstances resulting from the collision presented a case in which a nonsuit could not be ordered. Shay v. Camden and Suburban Railway Co., 66 N. J. L. 334; Hughes v. Atlantic City Railroad Co., 85 Id. 212. Apart from the inference of negligence presumable under such a state of facts, there was affirmative proof that the operator of the bus was uot at the time of the collision in the exercise of the care exacted of one engaged in carrying passengers for hire.

Nor do we think the verdicts were against the weight of the evidence. The jury might well conclude from the proofs that it was the combined negligence of the servants of the two defendants which caused the plaintiffs’ injuries.

The rules are discharged.


text:
    WILLIAM JACOBS, PLAINTIFF, v. FRANK EHEHALT, DEFENDANT.
    Argued October term, 1929
    Decided April 9, 1930.
    Before Justices Teen chard, Lloyd and Case.
    For the rule, Coult, Satz & Tomlinson.

      Contra, Samuel Seller.

   Per Curiam.

Plaintiff recovered a verdict for $5,000 and the defendant has a rule for new trial, contending that the damages are excessive.

Plaintiff had a broken fibula of the left leg; had it in a cast for six weeks; stiffness followed and there is some impairment of motion. He is a farmer seventy years old, does much of his own work and may have trouble in performing the heavier duties incident thereto. He had a medical bill of $249.

We think, however, that the verdict is excessive. If the plaintiff will accept the sum of $3,500 the rule will be discharged; otherwise it will be made absolute.


text:
    JOHN SWEENEY, PLAINTIFF, v. PUBLIC SERVICE COORDINATED TRANSPORT, DEFENDANT.
    Submitted October term, 1929
    Decided April 9, 1930.
    Before Justices Tbencbabd, Lloyd and Case.
    For the rule, Ilenry H. Fryling.

      Contra, Francis A. Gordon.

   Per Curiam.

This is defendant’s rule for new trial and the reason urged for making the rule absolute is that the verdict is excessive in amount. We think this is so.

The plaintiff was a passenger in the defendant’s trolley car and was injured as a result of a collision between the car in which he was riding and a standing trolley ear owned and operated by the same company. The plaintiff was injured in his knees, head, chest and mouth; he was unconscious for a time, was taken to a hospital, given first aid treatment and then taken to his home where he was confined to his bed for a week; three of his teeth were knocked out, impairing mastication, and he is subject to dizzy spells and rheumatic conditions. He had several hundred dollars of medical and other expenses incident to his treatments and lost six weeks pay as a watchman.

While the injuries were severe and perhaps permanent, we think the verdict is excessive. If the plaintiff will remit all above the sum of $3,500, the verdict may stand for that amount; otherwise a new trial will be granted.


text:
    JOSEPHINE SICA, AN INFANT, BY JOSEPH SICA, HER NEXT FRIEND, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Submitted October term, 1929
    Decided April 9, 1930.
    Before Justices Teenohaed, Lloyd and Case.
    Eor the rule, Henry H. Fryling.

    Contra, Emil Stremlau.

   Per Curiam.

Plaintiff was a passenger in defendant’s bus and while seated therein her leg came in contact with the acid in a battery, part of the mechanism of the bus. A severe burn resulted and required dressings for a considerable period of time, involving thirty-six medical visits. The burns prevented her from working with a resultant loss of $18 per week for a month. A scar about the size o'f a fifty cent piece remained and this will be permanent. The injured part continues to be tender and sensitive. The jury rendered a verdict in her favor for $3,000

It is urged that the embarrassment of a scar on an obscure portion of the limb is not of serious import. The injury was to the calf of the leg. In the present style of dress, including the height of the skirt and the thinness of the hose, it cannot be said that such a scar is either in an obscure place or not subject to observation and consequent embarrassment to the plaintiff.

Taking into consideration the medical expenses of $84, the loss of her wages, the pain and inconvenience and the permanency of the scar, we cannot say that the amount is so clearly excessive that we should disturb it.

The rule for new trial will be discharged.


author: Pee Cueiasi.

text:
    ANNA RUBEL, PLAINTIFF, v. OSCAR WEISS AND DORA BLUESTEIN, DEFENDANTS.
    Submitted October term, 1929
    Decided April 9, 1930.
    Before Justices Tkenciiaed, Lloyd and Case.
    Por the rule, William B. Stites.

    Oordra, Feder & Rinzler.

   Pee Cueiasi.

This is the defendants’ rule for new trial in an automobile accident case. The plaintiff recovered a verdict of $2,000 on this, the second trial of the case—the first trial having resulted in a verdict of $2,500.

The reasons urged for making the rule absolute are (1) that the verdict is against the weight of the evidence; (2) that the verdict is excessive; (3) that a nonsuit should have been granted or a verdict directed in favor of the defendant Weiss, the owner of the defendant car; and (4) that a non-suit should have been granted or a verdict directed in favor of the defendants because plaintiff was guil'ty of contributory negligence; also that there was error in the rulings on evidence and in the charge to the jury.

The accident happened at the corner of Main and Brook avenues in Passaic. According to testimony given on behalf of the plaintiff, defendant’s car was driven at a high rate of speed and the collision occurred when the car of the plaintiff was three-fourths of the way across the intersection. The defendant denied this and asserted that, in addition to not regarding the right of way, the plaintiff was guilty of negligence in not observing the approach of the car. Plaintiff’s car was driven by a man named Bishop; that of the defendant by a lady friend of the defendant’s wife who was an occupant of the car.

In this situation the defendant Weiss contends that the ownership of the car carrying a presumption of operation was not sufficient to go to the jury. The car was being driven by a friend of the defendant’s wife and apparently for the pleasure of that wife. It was a car used both for business and family purposes. We think the verdict, in so far as the legal phase are concerned, was justified both as to the chauffeur of the defendant’s car and the owner Weiss. Also that the verdict is not against the weight of the evidence.

As to the damages: $500 of actual loss was proven. Plaintiff was injured by bruises and cuts, was taken to a hospital and had her shoulder in a plaster cast for several weeks as a result of the injuries received to it. Her testimony is that this injury occasions pain and it is difficult for her to use the arm freely. These facts taken in connection with the further fact that the accident happened two years before the case was tried, the verdict does not seem to be excessive.

The remaining reasons do not call for discussion. The rule is discharged.


author: Ungeb, S. C. C.

text:
    Essex County Quarter Sessions.
    STATE OF NEW JERSEY, PLAINTIFF, v. WILLIAM BEST, DEFENDANT.
    For the motion, William Schilling.

   jji % í|í %

Ungeb, S. C. C.

This is an application to quash a search warrant issued under the act entitled “An act concerning intoxicating liquor, used or to be used for beverage purposes,” approved March 17th, 1922 (Pamph. L. 1922, ch. 255), and to secure the return of the liquor seized in the execution of the warrant. The warrant was issued on December 9th, 1929, upon the application of Joseph Kaminski, supported by the affidavit of himself and Victor Hugo, dated December 6th, 1929. The affidavit of Kaminski recites that on November 26th, 1929, he, together with Victor Hugo, entered the bar room in premises known as No. 44 First street, corner of Central avenue, Newark, New Jersey, which consists of a two-story brick structure, with a closed entrance on the corner and an open entrance on First street which leads to a hallway, the first door to the left through that hallway leading to a bar room on the ground floor, equipped with a bar, back bar, a cash register, tables, chairs and other equipment. The affidavit further recites that three men at the bar were drinking what appeared to be whiskey and beer, and two of them were apparently under the influence of liquor.

The affiant ordered two glasses of beer and two glasses of whiskey, and was served from a bottle taken from under the front bar, and found the contents to be beer and whiskey for which the sum of $1.30 was paid and rung up on a cash register.

' So much of Joseph Kaminski’s affidavit is supported by Victor Hugo. Kaminski for himself deposed that on November 13th, 1929, he entered the same premises and purchased a glass of whiskey.

The affidavit also contains an accurate description of the person in charge of the premises.'

The warrant issued authorizes and commands the officers to whom it was addressed to forthwith enter at any time of-the day, the bar room in the premises commonly known as No. 44 First street, and proceeds to describe the premises as hereinabove set forth, and authorizes and commands such officer to there diligently search any locked desk, drawer, safe, vault, closet, icebox, container and receptacle contained therein, and any cellar, basement, subcellar, room or rooms connected or used in connection therewith, for all such intoxicating beer, whiskey and other liquor that may be kept or stored therein.

The warrant was executed and resulted in the seizure, on December 16th, 1929, of fourteen bottles of assorted, alleged intoxicating liquor. The search and seizure took place in the day time.

The present application is made pursuant to the provisions of the statute, and the first of seven grounds urged by the defendant on his motion to quash is that the warrant in question authorized a search at any time of the day or night, and that there is no positive proof in the case that liquor was on the premises so as to warrant a search in the night time.

The warrant provides for a search “at any time of the day,” and the contention of the defendant that tííis provision authorizes a search in the night time as well as in the day time finds support in many decision. The word “day” is defined in a number of ways in 17 C. J. 1131, among them the following :

“A civil day of twenty-four hours, beginning and ending at midnight, the period of time between any midnight and the midnight following; the space of twenty-four hours from midnight to midnight; the unit of time, commencing at twelve p. m. and ending at twelve p. m., running from midnight to midnight; the time elapsing from one midnight to the succeeding one; twenty-four hours, extending from midnight to midnight, including morning, evening and night. Also a period of time consisting of twenty-four hours, and including the solar day and the night; the space of time which elapses while the earth makes a complete revolution upon its axis; a division of time; twenty-four hours; twenty-four hours, and not merely the day as popularly understood, from sunrise to sunset, or during the time that the light of the sun is visible.”

However, the affidavits upon which the warrant was issued contain a positive statement that on November 26th, 1929, at five-thirty p. ar., liquor was purchased in the premises and the affiants severally stated that they tasted the contents served them and found them to be beer and whiskey. The defendant contends that this statement is insufficient to warrant a search in the night time for the reason that the warrant was not issued until December 9th, 1929, and was not execirted until December 16th, 1929, urging that positive knowledge cannot extend over such a lapse of time. In support of his contention in this respect, the defendant cites In re Hollywood Cabaret, 5 Fed. Rep. (2d ed.) 651 (C. C. A. Second Circuit). In that case it appeared that one of the warrants concerned issued three and one-half weeks after the affiant visited the place to be searched. No information was before the court respecting the duration of time in connection with another warrant under consideration. The court said :

“If such a short time had elapsed between the purchase of liquor upon the premises and the making of the affidavit and issue of the search warrant that it was quite certain that the liquor seen or tasted was from- the same stock that would still naturally be upon the premises, it is unnecessary for us to determine that the averment of positive knowledge might not be sufficient for a night search warrant. We do not pass upon such a situation as that. But where a number of weeks or an indefinite time has elapsed between the inspection of the premises and the making of the affidavit, there can be no positive knowledge unless the work “positive” is indistinguishable from “probable.”

The instant case is, however, distinguishable. Ten days intervened between the purchase and the affidavit. The affidavit indicates that the premises in which the liquor was purchased was fitted up in a rather permanent fashion for the sale of liquor, for it contained a bar and back bar and purchases were rung up on a cash register. In addition there were tables, chairs and a gambling machine. The affiants observed men apparently under the influence of liquor in the premises. Liquor was purchased on two occasions. When such proofs as these are shown, the legal presumption is that the condition indicated continued to exist for a reasonable time thereafter, nothing to the contrary appearing. From the last purchase referred to in the affidavits, until the date of the issuance of the warrant, thirteen days elapsed and up to the time of the execution of the warrant, twenty days elapsed. I am constrained to hold that under the circumstances the intervening time was not unreasonable and that the allegations in the affidavits are sufficiently positive to meet with the requirements of the law. Hawker v. Queck, 1 Fed. Rep. (2d ed.) 77; In re Hollywood Cabaret, supra (dissenting opinion).

The second ground relied upon by the defendant is that the description in the warrant is too broad for the reason that it authorizes a search of any locked drawer, desk, safe, vault, closet, icebox, container and receptacle therein contained, and any cellar, basement, subcellar, room or rooms connected or used in connection therewith. It is contended that the word “therewith” last referred to means the entire building known as No. 44 First street, Newark, New Jersey. The reading of the warrant clearly indicates that this is not a fact and that it refers to the saloon described therein.

The affidavits reciting as they do, an establishment of a permanent nature where more than one purchase of liquor was made, and where men were seen intoxicated, the authorization to make the search indicated of receptacles or rooms used in connection with the saloon proper was entirely warranted. The description is none the less one of a particular place. It includes merely the appurtenances of a described place used as a saloon.

The next point made is that the warrant does not particularly describe the property to be seized. The warrant authorized a search for intoxicating beer, whiskey and other liquor. Section 2 of the act provides that the word “liquor” and the words “intoxicating liquor” shall be construed to mean and to include:

“(A) Alcohol, and brandy, whiskey, rum, gin, beer, ale, porter, wine and any other spirituous, vinous, malt, brewed or fermented liquor or mixed liquors, which contain one-half of one per centum or more of alcohol, by volume, and which are used or to be used for beverage purposes;

“(B) All liquids, admixtures and compounds, whether medicated, proprietary, patented or not, and by whatever name called, which contain one-half of one per centum, or more, of-alcohol, by volume, and which are fit for use for beverage purposes.

“In any complaint, warrant, accusation, allegation or indictment, the word liquor’ shall be a sufficient description of any or all of the liquors or liquids, defined herein.”

The officers who searched the property seized a quantity of liquor, and the statute and warrant are broad enough to support the seizure made.

But the defendant alleges the warrant does not recite that the search was to be made for liquor for beverage purposes and reliance is placed upon State v. Freulli,, 98 N. J. L. 395; 119 All. Rep. 787. In that case, a Supreme Court decision, it was held that an indictment under the statute now under consideration merely charging an unlawful sale of liquor without adding that such sale was for beverage purposes, alleges no offense under the statute. This decision rests upon the fact that the statute in question relates to liquor to be used for beverage purposes and that chapter 241 of Pampb. L. 1922, commonly referred to as the Non-Beverage act, permits -the sale of intoxicating liquor under certain circumstances -which might be unlawful under the statute first mentioned. Unless an indictment contains a statement that the violation consisted in -dealing with liquor for beverage purposes, the accused would be unable to determine the nature of the accusation and for violation for which statute he was indicted.

The objects of a search warrant, however, and its nature are totally dissimilar. It is but an order in writing signed by a magistrate, directed to a peace officer, commanding him to search for personal property and bring it before the magistrate. People v. Kempner, 208 N. Y. 16; 101 N. E. Rep. 794. The search warrant was not known to the early common law. Its use was at first confined to the search for stolen goods. The abuses which grew up in connection with the use of search warrants and the writs of assistance in early colonial times, lead to constitutional provisions, to prevent unreasonable searches and seizures, but not searches and seizures which are reasonable. The warrant then, being of a nature different from that of an indictment and serving an entirely different purpose need not allege that the dealing with liquor was a dealing with it for beverage purposes. The issuance of a warrant is in itself a finding by the magistrate, that there is probable cause for its issuance, and a warrant is only issued where it is alleged that there has been a violation of the law.

The officer is required to, and did leave a copy of the warrant together with a receipt for the property taken, upon executing it. The warrant here indicates on its face that it was issued for the violation of “sections 10 and 15 of the act-entitled, cAn act concerning intoxicating liquor,' used or to be used for beverage purposes/ approved March 17th, 1922Y The defendant cannot prevail upon this ground, in any event, for this reason.

The fourth ground alleged, is that the warrant authorized a search of the wrong premises. The warrant and affidavits-referred to the saloon as being in the building known as No. 44 Eirst street, Newark, New Jersey, and referred to it as a corner building located at Eirst street and Central avenue. The defendant contends that the correct address of the building is No. 401 Central avenue, and not No. 44 First street. Testimony on this point was taken and it indicates that there is an entrance to the premises on First street and that by going through this entrance which leads to hallway, access may be had to the bar room in the manner described in the affidavits. The testimony indicates clearly that there is no merit to this point.

Another allegation made by the defendant is that the warrant does not allege or set forth any date on which liquor was sold. State v. Freulli, supra, is relied upon here again. It is distinguishable for the same reasons stated above.

Furthermore, section 19 of the act requires that in issuing a search warrant, the magistrate must state the particular grounds or probable cause for its issue and the names of the persons whose affidavits have been taken in support thereof. The warrant in the instant case complies with this requirement, although it does not particularly state the dates on which liquor was purchased. The act, however, contains the following provisions:

“26. If the ground on which the warrants were issued be controverted, the magistrate must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing and subscribed by him.

27. If, on the return of any search warrant, it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause the property to be returned to the person from whom it was taken; but if it appears that the property taken is the same as that described in the warrant, and that there is probable cause for believing the existence of the grounds on which the warrant was issued, then the magistrate shall order the same to be retained in the custody of the person seizing it, or to be otherwise disposed of according to law.”

Although it was open to the defendant to take testimony on the return of the warrant on this point, he has offered none which in any way relates to the dates of the sales of liquor referred to in the affidavits. Nothing is made to appear that there was no probable cause for believing the existence of the grounds upon which the warrant was issued, but on the contrary, the results of the search and seizure sustain the allegations of the affidavits and the finding of probable cause. It is true that the question to be determined on such a motion as this, is not to be decided from the results of the search, but rather from the situation presented when the warrant is issued. So considering this point, the warrant on its face is in a form sufficient to inform the defendant of the nature of the charge made by the affidavits, and if he be in doubt as to the dates of the alleged violation, the statute affords him ample'protection of his rights in this behalf.

■ The sixth point made is that there was no real evidence before the court when the warrant was issued. It is said that the affiants stated that they purchased what appeared to be beer and whiskey. An examination of the affidavits, however, indicate that the deponents clearly stated that they asked for beer and whiskey and tasted the contents served them and found it to be beer and whiskey.

The last ground urged in support of this motion is that the receipt left by the officer does not specify in detail the property taken. The receipt is for fourteen bottles of assorted alleged liquor, and the provisions hereinabove referred to in section 2 of the act, giving to the word “liquor” a meaning which embraces all of the liquids referred to therein, is broad enough to cover the liquids seized in this case. The receipt is not designed to serve, for the defendant, a higher office or purpose than a warrant or an indictment and since the word “liquor” is deemed sufficient in those instruments, it satisfies the requirements of the receipt as well. The return of the warrant does not indicate that a receipt was left, but where in fact, as here, this was done, the return is amendable to conform to the fact. Gandreau v. United States, 300 Fed. Rep. 21 (C. C. A. First Circuit).

The motion is denied.


text:
    FILOMENA MIGLIACCIO, ADMINISTRATRIX, ETC., RESPONDENT, v. PUBLIC SERVICE RAILWAY COMPANY, APPELLANT.
    Decided April 15, 1930.
    Before Gummere, Chief Justice, and Justices Kalisoh and Campbell.
    Por the appellant, Henry II. Fryling and William II. Speer.

    Por the respondent, Alfred Brenner and Thomas J. Brogan.

   Pee Cueiam.

The plaintiff’s decedent in January, 1920, while riding in an automobile belonging to one Pepe, was injured in a collision between it and a trolley car of the defendant company. At the time of the accident he was a strong healthy man. The injuries received by him were serious, and he never regained his strength. Some months after the happening of the accident he developed tuberculosis, from which disease ho died on the 20th of April, 1921. The present suit is brought under the “Death act” and is based upon the claim that decedent’s death resulted from the injuries received by him in the collision. The case was left to the jury upon this theory and they rendered a verdict in favor of the plaintiff. Erom the judgment entered thereon the present appeal is taken, the claim being that the trial court erroneously refused to direct a nonsuit, the motion for such direction being based upon the claim that decedent’s death from tuberculosis was not the natural and probable result of the accident.

The present judgment was entered upon a second trial of this action. The first trial resulted in a verdict for the plaintiff and from the judgment entered thereon an appeal was taken to this court. The judgment was reversed upon the ground that even if the proofs justified the conclusion that the deceased became infected with tuberculosis because of lowered vitality due to the accident, such a result could not reasonably have been foreseen by the defendant and was not the natural and probable consequence of the wrongful act of the defendant, and that this being so the latter was not responsible for the death of plaintiff’s decedent. 101 N. J. L. 496. The judgment of reversal by this court was affirmed by the Court of Errors and Appeals. 102 Id. 442. The proofs submitted at the second trial, which resulted in the judgment now before us for review, were practically identical with those submitted at the first trial so far as this fundamental rule of liability is involved. The refusal to direct- a nonsuit by the trial court was in plain disregard of the action of the Court of Errors and Appeals to which we have referred. That decision is controlling upon lower courts, and the failure to observe its mandate was legal error.

Eor the reason indicated the judgment under review will be reversed.


author: Per Cubiam.

text:
    WILLIAM J. CORCORAN, PROSECUTOR, v. CHARLES J. McCARTHY, JUDGE OF THE FIRST CRIMINAL JUDICIAL DISTRICT COURT OF BERGEN COUNTY ET AL., DEFENDANTS.
    Argued October 1, 1929
    Decided April 14, 1930.
    Before Justices Teenohabd, Lloyd and Case.
    Eor the prosecutor, William George.

    Eor the defendants, James Be Turck.

   Per Cubiam.

This writ of certiorari brings up the order of removal of the prosecutor, clerk of the Eirst Criminal Judicial District Court of Bergen county, made by the judge of that court, and also the “approval” thereof by the judge of the Quarter Sessions Court of such county.

The act under which the prosecutor held as clerk is chapter 204 of Pamph. L. 1926, § 13, of which provides among other things as follows:

“Every such clerk appointed as aforesaid shall hold office during good behavior and shall be removed for cause only after an opportunity to be heard respecting the cause assigned for removal, and such order for removal shall not be effective and operative until such proceedings are reviewed and approved by the judge of the Court of Quarter Sessions,” &c.

We think the order of removal must be set aside because no “opportunity to be heard respecting the cause assigned for removal” was given the clerk.

The record discloses that on March 30th, 1929, the clerk was served with notice of his removal from his position as clerk, effective April 1st, 1929, signed by the judge of such District Court, and attached to such notice of removal was a statement of the fifteen “reasons” for such removal. No notice of hearing upon such “reasons” was given to the clerk, nor was any hearing had upon such “reasons.” On May 3d, 1929, there was what is claimed to have been a “review,” before the judge of Quarter Sessions, of such order of removal. But no notice of such review was given to the clerk, nor did he have knowledge of the proceedings.

Both the order of removal and the approval thereof will be set aside, with costs.


author: Pise Ceeiam.

text:
    FRANKLIN FOX ET UX., PLAINTIFFS-RESPONDENTS, v. McCULLOUGH-GENTLE TRUCKING COMPANY, DEFENDANT-APPELLANT.
    Submitted January term, 1930
    Decided April 17, 1930.
    Before Justices Parker, Black and Bodine.'
    For the plaintifEs-respondents, Murray, Butler & Butler.

    For the defendant-appellant, Turner & Stalter.

   Pise Ceeiam.

This suit was brought to recover damages for personal injuries. The complaint charges, that the defendant had negligently parked an automobile truck, on January 17th, 1938, on a public highway near Eranklin Park, with parking lights obscured across that part of the highway used by vehicles, along the right side of the road, the plaintiff w'as unable to see the automobile truck of the defendant, until he was so close to it that a collision was unavoidable, the plaintiffs’ automobile, in which he and his wife were riding, struck the rear of the defendant’s truck causing the injuries sued for. The trial resulted in a verdict for the plaintiff Eranklin Fox for $8,500 reduced to $5,000 and a verdict in favor of the plaintiff Lydia Eox for $50. A rule to show cause reserving defendant’s exceptions was allowed by the trial judge. The defendant appealed and filed four grounds of appeal, viz., error by the trial court in refusing to nonsuit the plaintiff or direct a verdict in favor of the defendant. The legal questions involved, viz., negligence of the defendant and contributory negligence of the plaintiff call for no extended discussion. As stated by Mr. Justice Kaliseh in the case of Fox v. Great Atlantic, &c., Tea Co., 84 N. J. L. 726, a motion for a nonsuit admits the truth of the plaintiff’s evidence and of every inference of fact, that can be legitimately drawn therefrom, but denies its sufficiency in law. Cases of collision on highways almost invariably involve questions of concurrent negligence on the part of both actors, in these cases, negligence and contributory negligence are in a peculiar sense questions for a jury. Finding no error in the record the judgment of the Essex County Circuit Court is therefore affirmed.


text:
    HELEN CLARK, RESPONDENT, v. STANDARD SANITARY MANUFACTURING COMPANY, A CORPORATION, APPELLANT. HAROLD CLARK, RESPONDENT, v. STANDARD SANITARY MANUFACTURING COMPANY, A CORPORATION, APPELLANT.
    Submitted January 24, 1930
    Decided April 17, 1930.
    Before Justices Parker, Black and Bodine.
    Eor the appellant, Henry Sclilittenhart.

    For the respondents, Breslin & Breslin.

   Per Curiam.

The plaintiff, a tenant in an apartment house, was injured by turning off a faucet in the bathroom of her apartment. Her testimony was that she felt a sudden sensation of pain and found that her hand was bleeding profusely and that an artery had been cut and an examination developed the fact that the porcelain handle of the faucet had broken in her hand and a jagged piece of porcelain had cut it. The defendant was the manufacturer of the particular faucet. She sued the defendant for damages, her husband joining in for loss of his wife’s services. Each plaintiff had a judgment and on these appeals the points are made, first, that the court erred in refusing a nonsuit on the grounds that no duty by the defendant to the plaintiffs was shown; also, that there was no evidence of negligence on the part of the defendant; and that the court should have directed a verdict for the defendant on the ground that the evidence showed conclusively that the defendant had used due care in making tests; also, that there was no proof that the defect in the handle was a proximate cause of the injury; that there was no proof that the handle was defective when it left the hands of the defendant; that the court erred in permitting the witness Holden to testify as an expert; and that it refused to charge certain requests.

We consider that a question for the jury was presented on all the material aspects of the case. It was conceded that the defendant had made the faucet in question and there was evidence to show that these porcelain handles were liable to break if not properly manufactured. A handle of this sort is something which is more or less in constant use and it is necessarily subject to a certain amount of shock in turning on and off, so that it is quite reasonable to say that a manufacturer should use due care to manufacture it with the quality of resisting this ordinary usage. Apparently it broke when the faucet was being turned off in the usual and ordinary way. Such an occurrence would seem to speak of negligent construction but, apart from this, there was the testimony of the witness Holden, who claimed to have examined the broken pieces, that the handle had been over-baked and was consequently brittle. It is claimed that an article of this kind does not come within the class of articles with respect to which action will lie in cases of defect causing injury, but to this we are unable to agree. In recent years there have been a number of cases in •our reports in which simple articles have broken down with consequent injury to the users. In several of these cases the plaintiff failed of recovery because the action was brought not against the manufacturer but against the merchant who had in good faith bought the article from the manufacturer as, for example, a ginger ale bottle and the wheel of an automobile. Here the suit is directly against the manufacturer, and, properly so. The evidence for the defendant tending to show proper construction merely imposed upon the jury a duty of weighing the evidence in that regard.

The testimony of the witness Holden we think was properly admitted. He said that he had been in the business of plumbing contractor for twenty-one years and had inspected thousands of faucets in that time. This seemed to be enough to satisfy the court in admitting his testimony to the jury for whatever weight the jury might be disposed to give it.

The court was asked to qualify a charge with relation to the duty owed by the manufacturer in the following manner: “But even so, if you find that this article is not inherently dangerous, that is, not dangeruos in itself, nor is it likely to become dangerous when put to the use for which it is intended, then the defendant, Standard Sanitary Manufacturing Company owes to the plaintiff no duty whatsoever.”

What we have said above in relation to the motions to non-suit, and to direct, covers this point also.

We find no injurious error and therefore the judgment will be affirmed.


text:
    VENDEL GERENSCER ET AL., PLAINTIFFS, v. JOSEPH HAYES, DEFENDANT.
    Submitted January 24, 1930
    Decided April 18, 1930.
    Before Justices Pabkeb, Black and Bodine.
    Por the plaintiffs, Theodore Strong & Son.

    Por the defendant, McDermott, Enright <& Carpenter.

   Pee Cubiam.

The plaintiff, a boy of some thirteen years, working for his father, a milkman, in delivering milk, had just left a bottle of milk at the place of a customer and was on his way back across the street to his father’s car with empty bottles when he was struck by the defendant’s car. It was after dark and the accident took place in the middle of the block, the boy having to work his way out from the curb around the front of a parked car and having just arrived on the open street when he was struck by the defendant’s car. Apart from the questions of contributory negligence which, on account of the boy’s age, slightly under fourteen, were technically with the jury, we think the finding that the defendant was negligent is clearly against the weight of evidence. The evidence that the defendant was driving at any fast speed was most unsatisfactory. The evidence that the lights on his car were not lighted is also most unsatisfactory, and is adequately met by the testimony for the defendant.

This case is similar in many aspects to Rich v. Eldredge, 7 N. J. Adv. R. 1123, in which a nonsuit was ordered and sustained by the Court of Errors and Appeals.

The rule to show cause will be made absolute.


text:
    JOHN BATTAGLIA, BY NEXT FRIEND, ETC., ET AL., PLAINTIFFS, v. JOSEPH BONIAKOWSKI, DEFENDANT.
    Submitted January term, 1930
    Decided April 17, 1930.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiffs, Edward A. Marlcley and Howard F. McIntyre.

    Eor the defendant, McDermott, Enright <& Carpenter and Carl S. Kuebler.

   Per Curiam.

This suit was brought to recover damages for personal injuries. The trial resulted in a verdict and judgment for the plaintiffs. A rule to show cause was allowed by the trial judge. The only reason alleged for granting a new trial is, the verdict in favor of the plaintiff was against the weight of the evidence. Our reading of the testimony sent up under the rule, in the paper book, leads us to the conclusion, that the rule to show cause should he discharged. The rule to show cause is therefore discharged.


author: Loschb, J.

text:
    First Judicial District of Burger County.
    DAVID RICHTER, TRADING AS RICHTER MANUFACTURING COMPANY, PLAINTIFF, v. CHARLES ZOCCOLI, DEFENDANT.
    For the plaintiff, Jerome Alper.

    For the defendant, Martin J. Cummins.

   Loschb, J.

This case was tried without a jury. The only question presented is at what place was delivery to be made under the following contract:

“Eichter Manufacturing Co.
Sanitary Food Containers 410-412-414-416 East 32nd Street New York City
Order No. 596 ' Date July 9 1929
Ship to Charles Zoccoli
At 82 Teaneck Road, Ridgefield Parle, N. J.
Terms: 2% 10 days, Net 30 Ship: Soon as Possible
Salesman Deminey F. O. B. Factory
On account of certain kinds of oil in foods, of a penetrating nature, we cannot guarantee these containers to be always grease proof.
Two Thousand y2 lb. Paraffine Eood Containers about 60 lbs. to the M
One Thousand 1 lb. Paraffine Eood Containers about 80 lbs. to the M
-Thousand 2 lb. Paraffine Eood Containers
about 120 lbs. to the M
-Thousand 3 lb. Paraffine Eood Containers
about 160 lbs. to the M
-Thousand 6 lb. Paraffine Eood Containers
about 200 lbs. to the M
Total 3000
NEW ADDRESS WASHINGTON & FRONT STS. BROOKLYN, N. Y.
Three thousand sanitary Eood Containers at Thirty-one and half cis. per lb. (Siy2) net weight printed.
No agreements or representations verbally or otherwise, will be recognized unless specified on this order.
This order is not subject to cancellation.
Signed O. Zoecoli
Cover Name of Eirm
LOX
3 3 'By

(The italicized matter-is written in pencil and the balance is printed.)

Plaintiff contends that the expression, “E. O. B. Eactory,” means that its obligation was to deliver the merchandise free on board the carrier at its factory and that the words, “Ship to Chas. Zoecoli at 82 Teaneck Eoad, Eidgefield Park, N. J.,” are merely indicative of the destination to which it was required to advise the carrier to deliver the merchandise.

Defendant, on the other hand, urges that “E. O. B. Eactory” would determine the place of delivery were it not for the fact that the contract specifies the place of delivery and the intention of the parties when it says, “Ship to Chas. Zoccoli at 82 Teaneck Eoad, Eidgefield Park, N. J.”

Neither party offered evidence to prove a special meaning of the expression, “E. O. B. Eactory.” The court, therefore, must seek its meaning within the four corners of the contract. The expression has been defined frequently. Some courts have taken judicial notice of its meaning. See 1 Williston on Sales (2d ed.), 598, § 280a; 23 Corp. Jur. 125, § 1942; 11 A. L. R. 661 (at p. 663). Under the authority of 4 Comp. Stat. 1910, p. 4665, § 74, resort may be had to decisions of courts of other states wherein the Uniform Sales act has been adopted.

The initials themselves stand for “free on board,” which more specifically means that the seller is obligated to put the subject of the sale into the hands of the carrier free of expense to the buyer, and the subject of the sale is at the risk of the buyer from such time. Vogt v. Shienebeck, 122 Wis. 491; 100 N. W. Rep. 820; 1 Williston on Sales (2d ed.), 597, § 280a. Such being the meaning of the expressoin “E. O. B.,” it remains to be said that “E. O. B. Eaetory” really means “E. O. B. railroad cars at the factory.” Berkshire Cotton Manufacturing Co. v. Cohen, 198 N. Y. Supp. 240. It is obvious, therefore, that title passed thereunder when the subject of the sale was delivered free on board the carrier at plaintiff’s factory. The courts of other states have so held. In Standard Casing Co. v. California Casing Co., 233 N. Y. 413 (at p. 416), the New York Court of Appeals said:

“The general rule is that upon a sale T. o. b. the point of shipment’ title passes from the seller at the moment of delivery to the carrier, and the subject of the sale is thereafter at the buyer’s risk. Williston, Sales, § 280, p. 409; United States v. Andrew & Co., 207 U. S. 229, 241; Detroit Southern Railroad Co. v. Malcolmson, 144 Mich. 172. The operation of the rule is, of course, subordinate to intention.”

To the same effect are: International Co. v. Sun-Maid Raisin Growers (Md.), 127 Atl. Rep. 393 (at p. 395); New York & Pennsylvania Co. v. Cunard Coal Co. (Pa.), 132 Atl. Rep. 828 (at p. 829).

Defendant urges that the mere “E. O. B. Eaetory” without any accompanying word or symbol to indicate that it was used to define the place of delivery is not sufficient to authorize the-court in concluding that the expression determines the place of delivery. The expression has been given such a fixed and definite interpretation that the absence of such word or symbol does not detract from the meaning hereinbefore given it. In fact, the highest court of New York in Standard Casing Co. v. California Casing Co., supra, held that “E. O. B. San Erancisco,” governed the place of delivery, even though it appeared under the general heading, “Price.”

Defendant calls attention to. the Uniform Sales act (4 Comp. Stat., p. 4653, § 19, rule 5, and p. 4658, § 46(1) ), and insists that the interpretation of “F. O. B. Eactory” herein-before given must be subordinated if an inconsistent intention be evidenced. That is true. However, the use of the expression, “Ship to Chas. Zoccoli at 83 Teaneck Eoad, Eidgefield Park, N. J.,” which defendant contends evidencés such intention, is not inconsistent with the determination that delivery was governed by the expression, “E. 0. B. Eactory.” These words are shipping directions. Plaintiff obviously could not put the merchandise on the railroad cars and tell the carrier to take it to defendant. Such shipping directions were supplied in the expression, “Ship to Chas. Zoccoli at 83 Teaneck Eoad, Eidgefield Park, N. J.”

Judgment' should be entered in favor of plaintiff.


author: Baches, Y. C.

text:
    Caroline F. Wurdemann, by her next friend, Fred S. Berner, complainant, v. William H. Wurdemann, Fred C. Van Keuren, Percy L. Proctor, Riverside Coal and Supply Company and Van Keuren and Son, defendants.
    [Decided April 24th, 1930.]

      Mr. Charles F. Black, for the complainant.

      Messrs. Lehlbach, Johnson & Ormond, for the defendants.
   Baches, Y. C.

The bill is to rescind a series of transactions on the ground of fraud:

The complainant and her husband held the entire issue of capital stock of the Riverside Coal and Supply Company—the complainant sixty-four shares, her husband five, and a dummy one. The company carried on business at Lyndhurst on a plot known as the “dock” property on the Passaic river. The husband was in charge. In 1925 the company was desperately in need of financial assistance. Its assets, aside from the dock property—said to be worth $30,000, mortgaged for $10,000— were worth $24,000, book value; yard equipment made up $15,150 of the assets. There was little cash; merchandise accounts and notes receivable amounted to $8,000. Pressing liabilities were $18,000. Frederick C. Yan Keuren, owner of Yan Keuren & Son, a corporation engaged in the same line, coal and building supplies, in Newark, agreed to aid with money and credit upon this arrangement; ten shares of the stock were issued to him (one to a dummy director) and Mr. Wurdemann retained his five. Mrs. Wurdemann surrendered her holdings, and, for doing this, the dock property was conveyed to Yan Keuren in trust, to convey it to her in six years upon Yan Keuren’s being repaid and indemnified, and subject to Yan Keuren’s right to mortgage it to raise funds for the company. It was, evidently, the hope and expectation, at that time, that the company could work out its salvation in six years so that, by then, Yan Keuren would own two-thirds and Wurdemann one-third of a successful business and Mrs. Wurdemann would have the dock property. Yan Keuren and his company furnished a large amount of material and credit; Wurdemann ran the business, A year later (1926) the dock property was reconveyed to the company to strengthen its financial standing. Yan Keuren surrendered his preferential right to indemnity and Mrs. Wurdemann her equity, if any remained, upon agreement that the property should be reconveyed to Yan Keuren and the status quo ante restored if the company did not in the ensuing three years manage the dock property with financial success according to standard fixed in the agreement. The dock property had on it coal pockets, a warehouse, and two or three dwellings, more or less dilapidated, but usable and rentable. A year later (1927) the company executed to Yan Keuren & Son, a mortgage on'the dock property for $20,500, for money to pay debts. It was consented to by Mrs. Wurdemann. At the same time there was assigned to Yan Keuren & Son an existing mortgage on the property of $4,500, evidently purchased with company funds. Wurdemann was discharged as manager in 1928. Thereupon this bill was filed to rescind the arrangements and to set aside the conveyance and mortgage and to declare void the agreements resulting in the reorganization of the company in 1925, the reconveyance to the company of the dock property in 1926 and the execution of the mortgage in 1927, all of which Mrs. Wurdemann now claims were obtained from her under duress, in that Yan Keuren held out to her that her husband was criminally liable for failure to return federal income tax reports of the company for some years past, and that he would hold the dock property in trust for six years so that the government could not reach it, and that through fear of her husband’s arrest she made the first bargain ; that a year later, when she consented to a reconveyance of the dock property to the company, he alarmed her with the same threat to her husband’s liberty and also falsely reported an impending foreclosure of a prior mortgage, and that when she consented to the mortgage to Yan Keuren & Son in 1927 he again menaced her with danger of her husband’s going to jail.

It may be that Mrs. Wurdemann, a housewife, did not understand the intricacies of the legal documents, but she understood the scheme, always. The documents were explained to her by counsel of integrity, and she comprehended; she was not imposed upon and it is the sympathetic view of the court that her claim is the urge of a distressed mind, desperate and despairing. Yan Keuren was prosperous, in a successful business, and had no designs on her company’s business. He was willing to help in the rescue, and, of course, profit by it, if successful; the complainant understood that. He ventured his money and merchandise depending on the company’s assets which included the dock property. The conveyance of the dock property was to secure him if his endeavors failed. The surrender by the complainant of her holdings and the reorganization of the company was to insure his profit if he succeeded. He would have had the same security had he advanced the money without the deed and mortgage, and if the transactions be voided and the deed and mortgage set aside, the dock property stands as his security, for it will revert to the company, not to the complainant; and he is the only substantial creditor.

At the hearing Yan Keuren offered to restore the status quo ante upon the payment of the moneys due to him, now $41,000 plus, and later submitted the offer in writing. Nothing could be fairer. The complainant declined or was unable to accept. She must do equity before she can hope to enjoy equity.

The court will entertain the offer and a decree will be entered that the transaction in all its phases be undone upon payment to Yan Keuren what is due him, and upon failure to pay within sixty days the bill will be dismissed.


text:
    JOHN D. REESE, PLAINTIFF, v. THE KLINE BUILDING AND CONSTRUCTION COMPANY, A CORPORATION OF NEW YORK, LICENSED TO TRANSACT BUSINESS IN NEW JERSEY, DEFENDANT.
    Submitted January 24, 1930
    Decided April 18, 1930.
    Before Justices Paekee, Black and Bodine.
    Eor the plaintiff, J eróme J. Dunn.

    Eor the defendant, Feder & Rinzler.

   Pee Cueiam.

This suit arises out of a written contract for excavation and grading. The amount to be paid was $2,500 payable on the completion of the work with the privilege to the defendant of making payments from time to time as the work progressed, and the balance, if any, upon the completion of the job. The contract called for the filling in to grade of a street certain lots numbered upon a map which was fully identified, and then follows this clause: “The party of the second part [plaintiff] will also cut down any hills or banks on the property * * * wherever same are indicated by the party of the first part.” The plaintiff went to work and claims to have filled in all the lots specified in the manner required, although this was denied by the defendant and, as will be seen, the jury were inclined to believe that the filling in portion of the contract had not been fairly completed. An important controversy at the trial related to the clause about cutting down the hills or banks. The defendant claims, and the plaintiff admitted, that he had not cut down any hills or banks and the plaintiff’s explanation of this was that no hills or banks had been indicated for him to cut down until after he had announced Ms work as finished and asked for his money. The defendant had paid $1,100 on account of the $2,500 contract price and the suit was for the difference.

Assuming for present purposes, without deciding that the jury were justified in finding as their verdict seems to indicate, that the claim of defendant’s non-performance was unsubstantial so far as related to the failure to cut down hills and banks, nevertheless we think the verdict cannot be sustained because the case shows plainly that the jury were not inclined to award the plaintiff the full amount of his claim but were compelled to do so by error of the court. The case shows that the jury sent in a question to the court asking whether they could give Reese a judgment for a less amount than the balance alleged due. The court re-called them and charged as follows: “Now, if you conclude that he has performed his contract, he is entitled to the full sum. If he has not performed Ms contract, then, of course, he is not entitled to recover anything, because, before a man can recover he must do all things necessary under the contract.” In charging the jury as he did in reply to this question the trial judge evidently overlooked the rule of substantial performance applicable in cases of working contracts, that if the contractor substantially complies with the contract, even though he has failed in some minor particulars, he is entitled to recover the contract price less what will be a fair allowance to the owner to make good the defects in the performance of the contract. Feeney v. Bardsley, 66 N. J. L. 239; Brannworth v. Verona, 94 Id. 194, and cases cited. As has been said, the jury were clearly disposed to make some reduction in the recovery because of shortage in the performance and were prevented from doing so by this charge. Naturally, we cannot tell what reduction they had in mind; and while there was no exception to this charge, none is necessary on a rule to show cause where the court, in its discretion, may relieve against error without the strict formality of an exception.

We think the error was sufficient to vitiate the verdict and consequently the rule to show cause will be made absolute.


text:
    STEVE FEDOR, Sr., ADMINISTRATOR, ETC., PLAINTIFF, v. KUEHNE CHEMICAL COMPANY, DEFENDANT.
    Submitted January term, 1930
    Decided April 17, 1930.
    Before Justices Paekee, Black and Bodine.
    For the plaintiff, David T. Wilentz.

    Por the defendant, Thomas Brown.

   Pee Cueiam.

This suit was brought to recover damages under the Death act. Victor Pedor, the deceased, a boy “close to nine” years was killed on the 19th day of December, 1928, by being struck by an automobile on Amboy avenue in the city of Perth Am-boy. The trial resulted in a verdict for the plaintiff for $5,000. The defendant obtained a rule to show cause and writes down three reasons for a new trial; the verdict is excessive ; it is against the weight of the evidence; it is against the charge of the trial judge. We find no sufficient reason for disturbing the verdict of the jury. The rule .to show cause is therefore discharged.