text:
    JOSEPH TENNER AND THOMAS CARLESS, SHERIFF OF THE COUNTY OF PASSAIC, DEFENDANTS IN CERTIORARI, v. INDIANA PARTS DEPOTS, INCORPORATED, PROSECUTOR.
    Decided June 18, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Abraham I. Feltman (Harry Madell, of counsel).
    For Joseph Tenner, Bernard Freedman.

   Per Curiam.

The record in this case discloses that on a claim of property and demand for trial by jury as to such claim, made by the prosecutor, which property was in the possession of the sheriff, and consisted of three motor trucks attached by him, under and by virtue of a writ of attachment, at the suit of Joseph Tenner, plaintiff in attachment, against the Indiana Truck Corporation, as its property, and that on a trial being had upon said claim before the sheriff, sitting with a jury, the jury found a verdict of property in the Indiana Truck Corporation.

The record of this proceeding is before us on review by writ of certiorari, sued out bjr the prosecutor, the Indiana Parts Depots, Incorporated.

The return to the writ does not contain the testimony taken in the inquisition. The record contains the minutes of the sheriff taken at the time of the trial, but they do not contain the testimony given by the witnesses.

The printed case before us shows that the writ of certiorari was allowed by Mr. Justice Black, after testimony had been taken by the respective parties, as to what the facts were regarding the ownership of the trucks at the time the attachment was made.

It seems that this testimony was taken without any objection on part of the counsel "for defendants in certiorari.

Counsel of defendant Tenner, plaintiff in attachment, appeared at the hearing and cross-examined the prosecutor’s witnesses — in fact, counsel of defendant produced a witness on behalf of the plaintiff in attachment, who testified as to what the testimony and exhibits were in the inquisition held by the sheriff.

On behalf of the Indiana Parts Depots Company, Incorporated, prosecutor, its auditor testified to the .effect that the Indiana Truck Corporation owed to the Indiana Parts Depots, Incorporated, moneys aggregating at no time during the transaction hereinafter referred to less than $15,000. The Indiana Truck Corporation turned over to Heitman Motors, Incorporated, a corporation, the sales of certain trucks, under agreements in the form of trust certificates. The trucks attached as the property of the Indiana Truck Corporation were the subject of three agreements of this character. To these agreements were annexed an assignment by which the Indiana. Truck Corporation assigned all its right, title and interest in said trucks to the Indiana Parts Depots Company, Incorporated, the prosecutor herein.

It was by virtue of these agreements that the prosecutor of this writ claimed title to the trucks seized as the property of the defendant in the attachment proceedings.

The evidence is clear with reference to the steps which were taken to transfer the title of the trucks attached to the Indiana Parts Depots, Incorporated, the prosecutor. There was practically no testimony in contradiction of that adduced by the prosecutor.

It is well settled that in a proceeding of this nature the Supreme Court has the right to order a judgment of reversal, and also to enter a new judgment as the tribunal below ought to have rendered. Dubelbeiss v. West Hoboken, 82 N. J. L. 683.

Section 2 of the Certiorari act also confers on this court authority to determine disputed questions of fact ás well as law and to inquire into the facts by depositions taken on notice. This section of the statute also gives the court power to reverse or affirm the proceedings below.

In the intsant case notice of the taking of the depositions was given to counsel of Tenner, the plaintiff in attachment, and testimony was taken in the presence of his counsel, who participated in the taking of the testimony and raised no objection as to the regularity of the proceedings.

It seems to us to be of no vital importance whether the depositions were taken before or after the allowance of the writ of certiorari. The depositions were taken under an order of the court, to ascertain what facts were established at the inquest held by the sheriff. Notice was given to counsel on behalf of the prosecutor that the depositions would be used upon the hearing of the cause before the court.

The return of the sheriff was clearly inadequate.

The' depositions, taken under a rule of court, established beyond the peradventure of a doubt the prosecutor’s right to the trucks in question.

The proceedings before the sheriff should be set aside, and a judgment entered in this court to the effect that the trucks are the property of the prosecutor.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MARLYN REALTY COMPANY, PROSECUTOR, v. ZONING BOARD OF ADJUSTMENT OF THE TOWN OF WEST ORANGE ET AL., RESPONDENTS.
    Submitted May 13, 1927
    Decided June 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Howe & Davis.

    For the respondents, Alfred J. Grosso.

   Per Curiam.

This is a zoning case. It is before this court on a writ of certiorari to review the decision of the zoning board of adjustment of the town of West Orange. The prosecutor is the owner of a tract of land on the southwest corner of Gregory avenue and Orange Heights avenue in the town of West Orange. The lot has a frontage on Gregory avenue of one hundred feet and a frontage on Orange Heights avenue of forty-four feet. The prosecutor desires to erect a one-story building containing seven retail stores on this tract of land. The prosecutor made application to the building inspector of the town of West Orange, submitting an application in writing, plans, specifications, and tendering the amount of the legal fee for the issuing of the said permit. The building inspector notified the prosecutor that he would not issue the permit. The reason assigned for this refusal was that the zoning ordinance in force in the town of West Orange forbade the erection of stores on said premises. The property was zoned as a one-family district. This is conceded. The prosecutor then took an appeal to the zoning board of adjustment. This board heard the appeal. The prosecutor offered testimony to show that the buildings would be constructed in accordance with the building code of the municipality. The architect who prepared the plans testified that in his opinion the construction and existence of these stores would be in no way detrimental to the public health, morals or safety of the community. Citizens attended the meeting and made various statements with reference to the situation. Various objections-were advanced by those speaking against the granting of the building permit. The zoning board of adjustment denied the prosecutor's application. T he finding of facts and determination as set forth in the record is elaborate and mentions most of the matters which have been the subject of litigation in zoning cases during the past few years. The prosecutor then applied for and obtained the present writ of certiorari.

The constitutional amendment respecting zoning, which was approved and ratified on September 20th, 1927, and took effect October 18th, 1927, and the statute of April 3d, 1928, known as chapter 274 of the laws of 1928, have been reviewed in a recent decision of this court in the case of Koplin, relator, v. Village of South Orange, 6 N. J. Mis. R. 489. In the present case we consider that in the proceedings before the board of adjustment there was no testimony to the effect that the provisions of the ordinance are unreasonable. The presumption is that they are reasonable. Burg v. Ackerman, 5 Id. 96. There is also a presumption that the action of the board of adjustment was right. Silvester v. Princeton, 5 N. J. Adv. R. 1801. This court will not distrub the action of the board of adjustment unless its action is shown by evidence to be wrong. Oxford Construction Co. v. Orange, 137 Atl. Rep. 545.

The decision of the board of adjustment of the town of West Orange is, accordingly, affirmed. The writ of certiorari will be dismissed, without costs.


author: Porter, J.

text:
    Passaic County Circuit Court.
    MARGARET ZANOWITZ, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF RUDOLPH ZANOWITZ, PLAINTIFF, v. GEORGE COLON, DEFENDANT.
    For the plaintiff, Feder & Rinzler.

    For the defendant, Heller & Boss.

   Porter, J.

This matter comes before the court on an application to discharge a bail bond.

The facts are that this suit was brought against the defendant by a writ of capias ad respondendum, that bail was given by Michael Dubid as surety.

The affidavit on which the order for the capias was issued charged an outrageous assault. The complaint alleged the assault and also negligence. The allegation of the complaint alleges that the defendant assaulted Eudolph Zanowitz by colliding with him in an automobile accident, which automobile was negligently operated by the defendant. Zanowitz died as a result of his injuries. The cause was tried on January 21st, 1928, and a judgment rendered in favor of the plaintiff in the sum of $3,000 on the negligence count.

At the trial the attorney for the defendant moved to strike from the complaint the count charging "a malicious, willful, deliberate, atrocious assault and battery.” This motion was denied, but the court instructed the jury to indicate by its verdict, if for plaintiff, whether the defendant was guilty of atrocious assault and battery or of negligence. The verdict was not guilty of atrocious assault and Battery but guilty of negligence.

On Eebruary 27th, 1928, a scire facias was issued against the bail, and on the same date returned by the sheriff non est inventus.

It further appears that the defendant was indicted and convicted of manslaughter for causing the death of Zanowitz, and was, on April 12th, 1928, sentenced to a term in state prison, where he is still confined.

One of the reasons urged in support of the motion is that the bail should be discharged because the defendant was not condemned in the action. Having reached a decision on that point, the other points need not be considered.

The condition of the bond is that the bail shall pay “the costs and condemnation of this court,” if “the defendant, George Colon, shall be condemned in this action.” Unless he was so condemned the obligation of the bond was void.

The capias was issued on the charge, supported by the affidavit, of an outrageous assault. He was not condemned on that charge, but, in fact, exonerated. There could have been no capias issued on the negligence charge, and the fact that he was condemned on that charge only cannot enlarge the obligation of the bond to cover it. The bond, when it referred to “this action,” clearly meant the action on which the capias was issued, viz., the outrageous assault. It did not embrace any action on which the capias was not, and could not, be issued.

Eor these reasons the motion to discharge the bail is granted.


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    MARJORIE AIRD, APPELLEE, v. DAVID J. HYDE, TRADING, ETC., APPELLANT. GEORGE AIRD, APPELLEE, v. DAVID J. HYDE, TRADING, ETC., APPELLANT.
    Submitted May 16, 1927
    Decided June 13, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellees, John J. Breslin, Jr.

   Per Curiam.

After a dismissal and reinstatement of these appeals they were taken up and disposed of in conference, but no memorandum of decision seems to have reached the clerk.

The plaintiffs were passengers in defendants’ taxicab, and charged that they were injured by negligence of the driver in driving down hill too fast, whereby the car was caused to skid and finally crashed against an obstruction. The defense was that the car was carefully driven and that the accident was due to a breaking spring which disarranged the steering gear. This presented a question of fact for the judge sitting as a jury, which he decided in favor of the plaintiffs, and in which we cannot interfere, as there was evidence to support his finding. Hence, there was no error in refusing to nonsuit. The other point made is that it was error for the judge to remark at the close of the case: “These people hired a cab and they have a right to expect that they will be carried to their destination in safety.” While the proposition may not be technically flawless, every passenger carried by a common carrier for hire expects, and properly so, to be carried to his destination in safety.

The judgments are affirmed.


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    WILLIAM FAUTZ, PROSECUTOR, v. JUVENILE COURT IN AND FOR THE COUNTY OF ESSEX, JOHN H. SCOTT, CLERK OF SAID JUVENILE COURT, AND THE TOWN OF IRVINGTON, IN THE COUNTY OF ESSEX, AND EVELYN GOWER, DEFENDANTS.
    Decided June 18, 1928.
    Before Justices Tkenchakd, Kalisch and Katzbnbach.
    For the prosecutor, Pomerehne, Laible & Kautz), Henry Pomerehne, of counsel).
    For the defendants, Louis A. Fast and John O. Muller.

   Per Curiam.

The principal legal question involved in this case growá out of an attack made by the prosecutor upon the constitutionality of chapter 175, Pamph. L. 1922, p. 299, which act is entitled “A supplement to an act entitled cAn act providing for the hearing and determination of disputes or matters affecting the domestic relations and welfare of children, and conferring jurisdiction upon the county juvenile courts/ approved February 18th, 1918.-”

The statute reads: “In counties of this state where there is or may be hereafter established a county juvenile court, said court is hereby vested with concurrid jurisdiction to hear and determine disputes regarding the parentage, care and custody and maintenance of illegitimate children, as provided for in the act entitled 'An act for the maintenance of bastard children’ [Eevision of 1898].”

''2. Complaint may be made by the mother of said child, or by two disinterested citizens, without the intervention of the overseer of the poor.”

The facts of the case, out of which grows the constitutional question referred to, are set forth in the return made by the judge of the juvenile court to the writ of certiorari, and which facts are, in substance, these: A verified complaint taken before an attorney-at-law, made by Evelyn Gower, on March 18th, 1927, was filed with the judge of the juvenile court, which complaint states that she was a single woman, and resided in the town of Irvington, New Jersey; that she was pregnant with child, likely to be born a bastard, and may become chargeable to- the town of Irvington; that William Eautz, the prosecutor, is the father of said unborn child; that thereupon a warrant was issued by the judge of the juvenile court for the arrest of the prosecutor, and upon the latter’s arraignment before the judge objection was made to his jurisdiction of the subject-matter of the complaint, which objection was overruled, and the trial of the cause was ordered on, and testimony was taken in support of the complaint; that the prosecutor was not sworn, nor offered any testimony in defense to the accusation, was convicted, and thereupon an order of filiation was made by the judge.

Before the enactment of the statute above quoted, proceedings relating to the maintenance of bastard children was fully provided for by an act entitled ''An act for the maintenance of bastard children” (Eevision of 1898), Pamph. L., ch. 241, p. 959.

This act, in substance, provides that a woman who shall be delivered of a bastard child, which shall be chargeable or likely to become chargeable to any township, or shall declare herself pregnant of child likely to be born a bastard, and to become chargeable to any township, any overseer of the poor of the township where such woman may be, or in the township wherein the legal settlement of such woman may be, may apply to a magistrate of the same county where such woman may be to make inquiry into the facts and circumstances of the case; that the magistrate shall, by examination of such woman on oath, and upon other testimony as may be offered, ascertain the father of such bastard child, or of such child likely to be born a bastard, shall issue his warrant, &c., and upon the person being arraigned before the magistrate who issued the warrant, if the accused denies he is the father of the bastard child, or such child likely to be born a bastard, he is entitled to a trial by jury if he demands it, or he may be tried by the magistrate without a jury, and, if convicted, the magistrate makes an order of filiation, from which the convicted person may appeal to the Court of Quarter Sessions of the county wherein the trial was had, in which court he is entitled to a trial de novo, and, if convicted, the order of filiation made by the court below may be affirmed, reduced or increased by a new order of filiation.

Furthermore, it is provided that the word "magistrate,” as used in the act, shall be deemed and understood to mean and include all justices of the peace, judges of city criminal courts, police justices, recorders and all other officers having the power of a magistrate.

Turning to chapter 83, Pamph. L. 1918, to which chapter 115 of the act of 1922 is declared to be a supplement, we find that chapter 83 is entitled "An act to amend the title and body of an act entitled ‘An act providing for the hearing and determination of disputes or matters affecting domestic relations and conferring jurisdiction upon the county juvenile court/ ” approved April 2d, 1912.

The act of 1918 is an amendment of the act of 1912.

A reading of the act of 1918 discloses its prime object to be to include various acts which relate to_ disputes involving the domestic relation or the welfare of children, and omits any reference to the Bastardy act, which omission must be given some significance, at least, that it leads to a permissible inference that the Bastardy act was intentionally omitted.

It is also to be observed that chapter 83 of the statute of 1918 was an act to amend the title and body of the act of 1912, which was entitled “An act providing for the hearing and determination of disputes or matters affecting domestic relations and conferring jurisdiction upon the county juvenile courts, which title was amended so as to read: ‘An act providing for the hearing and determination of disputes and matters affecting the domestic relations and welfare of children and conferring jurisdiction upon the 'county juvenile court/ ”

The second section of chapter 360 of the act of 1912 declares that by the phrase “disputes involving domestic relations” is meant, inter alia, where the gravamen of the complaint is the failure or neglect of one member of a family to satisfy or discharge his legal obligation to the other member or members of the family; and all charges against any persons for abandonment or non-support of wives, or children, or poor relatives, under any provisions of law, and all prosecution instituted by poormaster of any municipality, based upon or arising out of the marriage state.

The title of the act of 1912, supra, was amended by chapter 83 of the act of 1918, supra, so as to read, “An act providing for the hearing and determination of disputes or matters affecting the domestic relations and welfare of children and conferring jurisdiction upon the county juvenile court,” and then proceeds by section 2 to define what is meant by “disputes involving the domestic relations or welfare of children.”

The phrase “welfare of children” was added to the title of the act of 1918, and the statute then proceeds to provide that the jurisdiction of the juvenile court shall extend to and include the provisions of “An act for the settlement and relief of the poor” (Revision of 1911), and “An act concerning the welfare of children,” approved April 8th, 1915; and exscinds the proviso contained in section 2 of the act of 1912, which is of no vital importance as hearing on the consideration of the question involved in the instanct case.

The legal propriety of the proceedings instituted against the prosecutor depends upon whether or not the assailed legislative enactment of 1922 is in compliance with the mandate of article 4, section 7, placitum 4 of the constitution, which declares as follows: “To avoid improper influences which may result from intermixing in one and the same act, such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title.”

It is quite obvious from what has been stated that the statute in question is improperly designated as a supplement to the act of 1918, whereas it is a supplement to the act of 1912, since the statute of 1918 is simply an amendment of the act of 1912, 'and, therefore, became incorporated in that act. But this is not fatal to the validity of the statute.

Nevertheless, it is clear from a plain reading of the title and body of the act, that the title is misleading, and that the body of the act expressed more than one object, which is not expressed in the title.

By the statutes of 1912 and 1918, supra, the legislature defined what was meant by the phrase “disputes or matters affecting the domestic relations and welfare of children,” and by Inference excluded bastard children, and, therefore, it cannot be properly said that, under the phrase just quoted, the proposed legislation is for the welfare of children born out of wedlock.

Yet, in section 1 of the statute sub judice, it is provided that the juvenile court shall have concurrent jurisdiction to hear and determine disputes regarding the parentage, care, custody and maintenance of illegitimate children, as provided for in an act entitled “An act for the maintenance of bastard children” (Revision of 1898).

It is to be observed that no hint of any amendment of the act of 1898 is contained in the title to the legislative enactment under discussion. In fact, the first section of the act proclaims that the provisions of the legislative enactment of 1898 is to control and govern the proceedings in the juvenile court.

The second section of the statute, ’as has already been indicated, is an amendment of that section of the Bastardy act of 1898, which requires the complaint to be made by the overseer of the poor, whereas by the second section of the act under review the complaint may be made by the mother of the child or by two disinterested citizens without the intervention of the overseer of the poor.

We think the second section of the statute may be exscinded in that it was enacted in violation of the constitutional provision above referred to, and the first section conferring jurisdiction on the juvenile court in bastardy cases be permitted to stand.

The conviction being had on a complaint made under section 2 of the act, the conviction is set aside, with costs.


text:
    RAYMOND CONOVER, PROSECUTOR, v. CITY OF PLEASANTVILLE, RESPONDENT.
    Decided June 18, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Cole & Cole.

    For the respondent, Louis D. Champion.

   Per Curiam.

The prosecutor sued out of this court a writ of certiorari to review the validity of an ordinance of the city of Pleasantville.

There is a stipulation of facts between counsel of the respective parties, as follows: “For the purpose of the decision it is stipulated that prosecutor lives in Linwood, Atlantic county, New Jersey; that he does not have a place of business in the city of Pleasantville, and did not have at the time of this application for a license, to be issued under the ordinance under review, and that he was refused the right to otherwise qualify under the ordinance, because he had no place of business in Pleasantville.”

The ordinance returned in obedience to the writ of certiorari contains twenty sections, none of which is claimed to be invalid, except section 5, which is entitled “An ordinance for the examination, licensing and registration of persons, firms or corporations engaged or engaging in the business or work of installing and erecting wiring, fixtures, engines and machinery, or work of whatever character, for the conduct and use of electricity, and imposing fines, penalties and forfeitures for the violation thereof.”

It is quite manifest that the record in this case, in its present shape, does not bring up the question which is argued in the brief of counsel for the prosecutor.

It is not claimed that the ordinance is invalid in toto, but, as has been stated, the only claim made is that section 5 of the ordinance is invalid.

The situation presented here is, that a non-resident asks for a review of an ordinance which contains twenty sections, some of which are not claimed to be invalid.

The settled legal rule in this state, as enunciated by the Court of Errors and Appeals, is that an ordinance will not be set aside in toto, where there are any valid sections of the ordinance, and that the remedy of a person who is aggrieved by the ordinance is to resist its enforcement, and thus contest the validity of the section claimed to be invalid.

See Pennsylvania Railroad Co. v. Jersey City, 47 N. J. L. 286, followed in Hamblet v. Asbury Park, 61 Id. 502, in which case it was held that the validity of an ordinance of a city of this state, imposing a license for revenue, will not be adjudicated upon a writ of certiorari brought by a non-resident prosecutor, against whom no action has been instituted. To the same effect is Kendall Manufacturing Co. v. Jersey City, 65 Id. 123.

In the present case the prosecutor lives in Linwood. The ordinance attacked, relates to the city of Pleasantville, and regulates the carrying on of the electrical business in that city, and by section 1 provides, that every registered master electrician who shall have a Iona fide place of business in the city of Pleasantville “shall display on the front of his or their place of business” a sign, “Registered Electrician,” hearing the name or names of the persons, firm or corporation in letters not less than one and one-half inches high, except as provided in sections 3 and 4.

We are unable to observe anything in this section which is unreasonable or in anywise raises the question which is raised in prosecutor’s brief concerning the validity of section 5.

The certiorari is dismissed, with costs.


text:
    LOUIS POTTERS, RELATOR, v. ELMER L. MOORE, BUILDING INSPECTOR, ET AL., RESPONDENTS.
    Submitted October 14, 1927
    Decided June 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Stamler & Koestler.

    For the respondents, Berkeley C. Austin.

   Per Curiam.

This is a zoning case. It is before this court on a rule to show cause why a peremptory or alternative writ of mandamus should not be issued out of this court directing the building inspector of the township of Cranford, in the county of Union and the township of Cranford to grant to the relator a building permit. The facts are stipulated. Erom these facts it appears that the relator is the owner of certain lands in the township of Cranford located on the corner of Burnside avenue and Marsh street. The relator applied in due form to the building inspector of the township of Cranford for a permit to construct three stores upon his property and tendered the proper fees for said permit. Plans and specifications complying with the building code were submitted to the building inspector. The practice in the township of Cranford with reference to building permits is that the building inspector turns oyer the applications to the township committee. If these applications violated the zoning ordinance which has been enacted by the township the matter is referred to a board of zoning adjustments to investigate and report back to the township committee its recommendation. The board appears to act in an advisory capacity. Because the proposed building was to be erected in a district in which commercial pursuits were not permitted the board of adjustment considered the application and referred the matter back to the township committee. The township committee then declined to grant the permit for the sole reason that the construction of said building would violate the zoning ordinance of the township of Cranford. An application for a rule to show cause why a peremptory or alternative writ of mandamus should not be issued was then made and allowed.

In the recent case of Koplin v. Tillage of South Orange et ah, the constitutional amendment with reference in zoning, which was approved and ratified by the voters of this state on September 20th, 1927, and took effect on October 18th, 1927, and the statute enacted by the legislature pursuant to the power conferred by the constitutional amendment, known as chapter 274 of the laws of 1928, were considered. A reference to this case will give fully the reasons for the decision which we have arrived at in the present case, which is to the effect that the rule to show cause should be discharged. The power to issue a writ of mandamus is a discretionary one. We feel it would be an abuse of power for this court to direct a municipality to grant a permit for the erection of a building the existence of which, if erected, has already been declared by legal authority to be improper.

If the relators desire to review the action of this court they are hereby given permission to enter a rule allowing and directing the molding of the pleadings to that end.

The rule to show cause is discharged and the writ of mandamus denied accordingly.


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    WILLIAM J. MINGLE, Jr., ET AL., PROSECUTORS, v. BOARD OF ADJUSTMENT OF THE CITY OF ORANGE ET AL., RESPONDENTS.
    Submitted October 14, 1927
    Decided June 19, 1928.
    Before Justices Trenohaed, Kalisch and Katzenbach.
    For the prosecutors, Green & Green.

    For the respondents, Howe & Davis.

   Per Curiam.

This case is presented to this court through the medium of a rule to show cause why a writ of certiorari should not be issued to review the decision of the board of adjustment of the city of Orange. The record presents a new phase of the zoning situation. John E. Mahoney owned a gasoline station located on the northeast corner of Centre street and Tremont avenue, in the city of Orange. In the front of the station were six gasoline pumps located between the sidewalk and the curb. In order to improve the condition created by motor vehicles stopping on the public highway, Mahoney purchased the corner property. He desired to make improvements upon his station and to add an automobile laundry, stores and apartments. The plan as first submitted was unsatisfactory. Mahoney made a new application. The building inspector refused to grant it. The matter was referred to the board of adjustment. After the plans were altered the board of adjustment approved the same and directed a permit to be given to Mahoney.

The prosecutors own the land upon the opposite corner. They claim they were not given any notice of the hearing before the board of adjustment. The hearing was to be had before the board of adjustment on July 14th, 1927. Notices were served and publication was made. No quorum of the board was present. The meeting was then adjourned to August 11th. Later, it was adjourned to August 25th. There is no question but what the newspaper publication was made and also that notices were left at the residence of William J. Mingle, Jr., a prosecutor, one under the door and one in the mail box. The contention of the prosecutors is that they were not served with the notice of appeal, and that the previous decision of the board was res adjudicata, and that the board of adjustment did not have authority to issue the permit. There is no statute or city ordinance fixing any method by which notice to the prosecutors was required to be given. At the time of the hearing the board of adjustment had before it evidence that notice had been served at the residences of the prosecutors and that publication had been duly made in a local newspaper. It was not denied by the prosecutors that service in the manner mentioned had been made. Their contention was they had not seen the papers. The fact that the prosecutors may not have received the notice or seen it in the newspaper might have been made, if the attention of the board of adjustment was called to it, basis for an application for an adjournment or a reopening of the case. No such action, however, was taken by the board of adjustment. We have reached the opinion that the board of adjustment had jurisdiction and that under the circumstances proper notice was given to the prosecutors.

The second contention is that the action first taken of refusing to grant the permit was res ad judicata. We see no merit in this contention, because the application under review was a second application. It was made to overcome the objections found with respect to the first application. The facts in the two applications were different. The position of the prosecutors is not within the principles of law covering the subject of res ad judicata.

The burden is upon the prosecutor to show that the action of the board of adjustment was unreasonable. This they failed to do. In fact, one of the prosecutors admits that the proposed rearrangement of the gasoline station of Mahoney will make it less objectionable than the station was during the preceding years in which it was conducted by Mahoney.

In view of the fact that there is a presumption that the action of the board of adjustment was right (Silvester v. Princeton, 5 N. J. Adv. R. 501), we have reached the conclusion that the action of the board of adjustment in the present case should not be disturbed. This results in a discharge of the rule to show cause.


text:
    DAVID STEINBERG, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE TOWN OF NUTLEY, RESPONDENT.
    Argued May 3, 1927
    Decided June 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Isadore H. Colton.

    For the respondent, J. Harry Hull.

   Per Curiam.

This is a zoning case. It is before this court on a writ of certiorari to review the decision of the board of adjustment, of the town of Nutley. The prosecutor is the owner of a tract of land in Nutley zoned for one-family dwellings. He desires to erect a modern fireproof apartment house containing-three stores therein upon this tract of land. The prosecutor had prepared a set of plans and specifications by a licensed architect. These plans were submitted to the New Jersey-board of tenement house supervision. The plans were examined by that board and in all respects approved. The prosecutor thereupon made an application to the superintendent of buildings of the town of Nutley for a permit for the erection of this apartment house, filing with him the plans, and specifications. These plans and specifications complied with the building code of the town of Nutley. The superintendent refused to issue the permit to the prosecutor for the-reason that he desired to erect an apartment house building-upon lands zoned for one-family residences. It was true in fact that the lands of the prosecutor were so zoned. The superintendent of buildings refused the permit. Thereupon the prosecutor appealed to the board of adjustment of the-town of Nutley. A date was set for a hearing. Upon this-date the prosecutor appeared with his architect. The testimony offered by the prosecutor was to the effect mentioned, namely, the preparation of the plans, the submission thereof, and the refusal of the superintendent of buildings to grant the permit. The board subsequently upheld the decision of the superintendent of buildings. The prosecutor then applied' for and obtained the present writ.

The constitutional amendment respecting zoning, which was-approved and ratified on September 20th, 1927, and took effect October 18th, 1927, and the statute of April 3d, 1928,. known as chapter 274 of the laws of 1928, have been reviewed in a recent decision of this court in the case of Koplin, relator, v. Village of South Orange, 6 N. J. Mis. R. 489. In the present case we consider that in the proceedings before' the board of adjustment there was no testimony to the effect that the provisions of the ordinance are unreasonable. The presumption is that they are reasonable. Burg v. Ackerman, 5 Id. 96. There is also a presumption that the action of the board of adjustment was right. Silvester v. Princeton, 5 N. J. Adv. R. 1801. This court will not disturb the action of the board of adjustment unless its action is shown by evidence to be wrong. Oxford Construction Co. v. Orange, 137 Atl. Rep. 545.

The decision of the board of adjustment of the town of Nutley is, accordingly, affirmed. The writ of certiorari will be dismissed, without costs.


text:
    NATHAN KASTOVISKY, RELATOR, v. JOHN D. CASTLES, INSPECTOR OF BUILDINGS OF THE TOWN OF KEARNY, ET AL., RESPONDENTS.
    Argued May 3, 1927
    Decided June 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Welanko & Strauss and Benjamin M. Weinberg.

    For the respondents, McCarter & English.

   Per Curiam.

This is a zoning case. The relator applied to the building inspector of the town of Kearny for a permit for the erection of a three-story brick building designed to contain twelve apartments, on lands owned by the relator. The required iees were paid. The building inspector refused to issue the permit for the reason that the lands were located in what is known as “Zone B” under a zoning ordinance of the town of Kearny. “Zone B” is a residential zone. The land upon which the relator desired to erect said apartment house was restricted by the zoning ordinance to the erection of dwellings designed to be not over two and one-half stories in height and accommodating not more than two families. The zoning ordinance established a board of appeals. The relator applied to the board of appeals for a reversal of the action of the building inspector. A public hearing was had. The board of appeals affirmed the action of the building inspector. The relator then obtained the rule to show cause why an alternative or peremptory writ of mandamus should not issue out of this court commanding the said inspector of buildings to issue to the relator the permit applied for, under which the case is presented to this' court.

We think the writ of mandamus must be denied. There are two reasons which prompt us to take this action. The first is that, in our opinion, the relator has misconceived his remedy. He sought the action of the board of appeals. This board is in effect the same as a board of adjustment created under chapter 146 of the laws of 1924, as amended by chapter 315 of the laws of 1926. The relator having applied to the board of appeals and submitted to the jurisdiction of that board, cannot now contend that it was not a properly constituted board, and did not have in effect the powers of a board of adjustment formed under the acts hereinbefore mentioned. The proper method for the relator to have taken to review the decision of the board of appeals was certiorari. Paramount Realty and Construction Co., Incorporated v. Schmitt, Building Superintendent of the Town of Irvington, 5 N. J. Mis. R. 177; Chancellor Development Corp. v. Senior, 4 Id. 633; Burg v. Ackerman, Supervisor of Buildings, 5 Id. 96.

The second reason for a denial of the writ asked for is that the writ of mandamus is a discretionary writ. Jones Co. v. Guttenberg, 66 N. J. L. 58. In view of the recent constitutional amendment respecting zoning and the legislation enacted with reference thereto (chapter 274 of the laws of 1928), it would be, it seems to us, an abuse of the power of this court to direct the municipality to grant a permit for the erection of a building, the existence of which, if erected, has already been declared by legal authority to be improper. The views of the court in this respect have been more fully set forth in the opinion filed on May 14th, 1928, in the case of Koplin v. Village of South Orange et al., 6 N. J. Mis. R. 489.

If a review of this decision is desired, permission is hereby given to the relator to enter a rule allowing and directing the molding of the pleadings to this end.

The rule to show cause is discharged.


text:
    HANSBURY CONSTRUCTION COMPANY, RELATOR, v. JEFFERSON D. MILLER, BUILDING INSPECTOR, ET AL., RESPONDENTS.
    Submitted May 13, 1927
    Decided June 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Alexander M. Goldfinger.

    For the respondents, Whittemore & McLean.

   Per Curiam.

This is a zoning case. It presents the same questions as number 285 of the May term, 1927. Eor the reasons given in that case the rule to show cause in this case is discharged and the writ of mandamus applied for denied.

If the relator desires to review the action of this court it is hereby given permission to enter a rule allowing and directing the molding of the pleadings to that end.


text:
    PAUL J. URBAN AND JOHN TERPAY, PROSECUTORS, v. THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF HILLSIDE ET AL., RESPONDENTS.
    Submitted October 14, 1927
    Decided June 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutors, William A. Brooks and Charles Jones.

    For the respondents, Whittemore & McLean.

   Per Curiam.

This case is before this court on a writ of certiorari allowed to review the decision of the board of adjustment of the township of Hillside, in the county of Union. The prosecutors own a tract of land facing on Bailey avenue, which runs approximately at right angles to Forth Broad street, which is the main thoroughfare from Fewark to Elizabeth. The lot has a frontage of one hundred feet and a depth of some one hundred and ten feet to one hundred and fifty feet. The prosecutors submitted plans and specifications in due form for a three-story brick apartment house to be erected upon their premises. The plans and specifications had been duly approved by the tenement house commission. They also conformed to the building code of the township of Hillside. On April 14th, 1927, a permit was issued to the prosecutors to build said apartment house. Contracts were drawn and entered into for the construction of the building. On April 26th, 1927, the township committee revoked the permit and referred the matter to the board of adjustment. The prosecutors then appeared before the board of adjustment and argued the matter of the issuance of a building permit without any reservation of their rights under the granted permit. The brief of the prosecutors states to the contrary, but the stipulation of facts does not show that there was any reservation of rights made by the prosecutors at the time they appeared before the board of adjustment under the granted permit. The board of adjustment refused to grant a permit for an apartment house, as the lands of the prosecutors were in zone “A” under a zoning ordinance of the township. Under the restrictions with reference to zone “A” only one-family houses could be erected.

The prosecutors now contend that a permit having once been given and acted upon it cannot be revoked. If the matter rested here and proper objections had been made before the board of adjustment there might be some merit in this contention. The prosecutors, however, filed another application for a permit with the building inspector on July 27th, 1927. By the filing of this application the prosecutors, in our opinion, waived any question as to their right to retain the advantage gained by them by the issue of the original permit. The application of July 27th, 1927, was refused by the building inspector. The prosecutor appealed to the board of adjustment. A hearing was had. The board refused the permit. It is this action of the board which is brought up under the writ of 'certiorari.

The constitutional amendment respecting zoning, which was approved and ratified on September 20th, 1927, and took effect October 18th, 1927, and the statute of April 3d, 1928, known as chapter 274 of the laws of 1928, have been reviewed in a recent decision of this court in the case of Koplin, relator, v. Village of South Orange et al., 6 N. J. Mis. R. 489. In the present case we consider that in the proceedings before the board of adjustment there was no testimony to the effect that the provisions of the ordinance are unreasonable. The presumption is that they are reasonable. Burg v. Ackerman, 5 Id. 96. There is also a presumption that the action of the board of adjustment was right. Silvester v. Princeton, 5 N. J. Adv. R. 1801. This court will not disturb the action of the board of adjustment unless its action is shown by evidence to be wrong. Oxford Construction Co. v. Orange, 4 N. J. Mis. R. 515.

The decision of the board of adjustment of the township of Hillside is accordingly affirmed. The writ of certiorari will be dismissed, without costs.


text:
    HANSBURY CONSTRUCTION COMPANY, RELATOR, v. JEFFERSON D. MILLER, BUILDING INSPECTOR, ET AL., RESPONDENTS.
    Submitted May 13, 1927
    Decided June 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Alexander M. Goldfinger.

    For the respondents, Whittemore & McLean.

   Per Curiam.

This is a zoning case. It is before this court on a rule to show cause why a peremptory or alternative writ of mandamus should not be issued out of this court directing the building inspector and the township of Hillside, in the county of Union, to grant to the relator a building permit. The relator is the owner of a tract of land at the corner of Grumman avenue and Compton Place, in the township of Hillside. It desires to erect thereon a two-story building, containing three stores and two apartments. It made application for a building permit to the building inspector and submitted plans and specifications as required by the building code of the township. The building inspector notified the relator that he would not issue the said permit. The reason assigned by him was that by the zoning ordinance of the township the erection of the building which the relator proposed to erect was forbidden. The record does not disclose in what manner the lands of the relator are zoned. There is, however, a stipulation contained in the record that the building inspector would not issue the permit, giving as his reason therefor that the zoning ordinance forbade the erection of the building upon the premises which the relator owned. This is tantamount to a stipulation that the property was zoned against stores and apartments. It does not appear in the record that there is a board of adjustment in the said township. The relator then applied for and obtained the rule to show cause hereinbefore referred to.

In the recent case of Koplin v. Village of South Orange et al., the constitutional amendment with reference to zoning, which was approved and ratified by the voters of this state on September 20th, 1927, and took effect on October 18th, 1927, and the statute enacted by the legislature pursuant to the power conferred by the constitutional amendment known as chapter 274 of the laws of 1928, were considered. A reference to this case will give fully the reasons for the decision which we have arrived at in the present case, which is to the effect that the rule to show cause should be discharged. The power to issue a writ of mandamus is a discretionary one. We feel it would be an abuse of power for this court to direct a municipality to grant a permit for the erection of a building, the existence of which, if erected, has already been declared by legal authority to be improper for the safety of the community.

If the relators desire to review the action of this court they are hereby given permission to enter a rule allowing and directing the molding of the pleadings to that end.

The rule to show cause is discharged and the writ of mandamus denied accordingly.


text:
    LINWOOD COMPANY, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE TOWN OF BLOOMFIELD, RESPONDENT.
    Submitted October 14, 1927
    Decided June 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Isadore E. Colton.

    For the respondent, Raymond F. Davis.

   Per Curiam.

This is a zoning case. It is before this court on a writ of certiorari allowed to review the decision of the board of adjustment of the town of Bloomfield. The prosecutor is the owner of a tract of land located on the northeast corner of Morse avenue and Carteret street, in the town of Bloomfield. The tract is sizty-six feet wide and one hundred and fifteen feet in depth. The prosecutor desires to erect a modern fireproof building containing seven stores. It had plans and specifications prepared by a licensed architect. These plans and specifications were filed with the building inspector and the legal fees were, tendered for a building permit. The building inspector refused to issue the permit on the sole and only ground that the lands of the prosecutor were located, under a zoning ordinance enacted by the town in “A” district. Under the restrictions in the zoning ordinance no building could be erected in this district which was intended to be used for store purposes. Upon the refusal of the building inspector to issue the permit the prosecutor filed an appeal to the board of adjustment. A hearing was had on this appeal. There was no legal testimony taken at this hearing. A number of residents in the neighborhood of the proposed stores objected to the location thereof in that location. They gave various reasons which they urged as a basis for their objections. The board, upon consideration, refused to grant a permit to the prosecutor. Thereupon the prosecutor applied for and obtained this writ of certiorari under which the case is presented to us.

In the opinion filed on May 14th, 1928, by this court in the case of Koplin v. Village of South Orange et al., the constitutional amendment respecting zoning and the statute passed by the 1928 legislature known as chapter 274 of the laws of 1928, were fully considered. In the opinion special reference is made to the retroactive effect given by the legislature in the act referred to to zoning ordinance passed by municipalities prior to the approval and ratification of the constitutional amendment on the subject of zoning. In the present case we see no testimony in the proceedings before the board of adjustment which in anywise shows the zoning ordinance in question to be unreasonable. The presumption is that ordinances of this character are reasonable. Burg v. Ackerman, 5 N. J. Mis. R. 96. We do not feel that we should disturb the action of a board of adjustment unless it is shown by evidence to be wrong. Oxford Construction Co. v. Orange, 4 Id. 515.

These views lead to the affirmance of the action of the board of adjustment of the town of Bloomfield. The writ of certiorari will be dismissed, without costs.


text:
    EMANUEL DREYFUS, PETITIONER—DEFENDANT IN CERTIORARI, v. LUTZ COMPANY, INCORPORATED, PROSECUTOR.
    Decided June 21, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Kellogg & Chance.

    For the defendant, Littauer & Herzfeld (Carol Weitz, of counsel).
   Per Curiam.

On an appeal to the Court of Common Pleas from the workmen’s compensation bureau, which had dismissed the petitioner’s petition for compensation filed by him with the bureau, on the ground that the accident complained of and met with by him while in the employ of the defendant prosecutor, did not arise out of the employment, the Common Pleas Court found that the injury complained of by the petitioner was caused by an accident arising out of and in the course of his employment, and thereupon made an award for compensation.

It is this judicial action of the Court of Common. Pleas which is brought before us for review by writ of certiorari.

Four reasons are presented in the printed case why the judgment of the Court of Common Pleas should be reversed.

In the brief of counsel of prosecutor all the reasons are abandoned, with the exception of the first reason, which is as follows: “Because the said order [or determination] does not state in detail the scope of the employment of the petitioner, Emanuel Drejdus, and does not state in detail the nature of the accident, but merely states the judge’s conclusion that the injury was by an accident arising out of and in the course of the employment of said Emanuel Dreyfus, so that said judgment is not supported by specific findings of fact which may be submitted to and considered by a court of review.”

Counsel of prosecutor in their brief say: “The principal question involved is as to whether the ‘determination’ or order of the Common Pleas judge, giving judgment in accordance with the law laid down by the Court of Errors and Appeals as to what specific findings of fact are required.”

Other questions are raised by the recent trial, but plaintiff in certiorari rests upon one point.

There is no merit in the contention of counsel for prosecutor that the “determination” of the judge of the Court of Common Pleas must be supported by the specific findings of such facts as may be submitted to and considered by the court of review as sustaining such determination.

Prosecutor relies upon Dunnewald v. Steers, Inc., 89 N. J. L. 601, decided at the June term, 1916, of the Court of Errors and Appeals, which court held that to warrant a recovery under section 2 of the Workmen’s Compensation act (Pamph. L. 1911, p. 134, as amended by Pamph. L. 1913, p. 302) from an employer for the death of an employe, it must appear, among other things, that the employe’s death was caused by (a) an accident, (b) arising out of (c) and in the course of his employment, and all the essential facts must be found by the trial judge, and must be contained in his written determination.

In the first place, it must be borne in mind that at the time of the decision referred to, the Court of Common Pleas had original jurisdiction of this class of cases.

Section 20 of the statute of 1913, page 308, which law was in force at the time Dunnewald v. Steers, Inc., supra, was decided, provided: “At the time fixed for hearing, or any adjournment thereof, said judge shall hear such witnesses,” &e., “and in a summary manner decide the merits of the controversy. This determination shall be filed in writing with the clerk of the Common Pleas Court, and judgment shall be entered thereon in the same manner as in the causes tried in the Court of Common Pleas, and shall contain a statement of fact as determined by said judge.”

The Court of Common Pleas no longer has original jurisdiction of workmen’s compensation cases. In that respect it has been supplanted by the workmen’s compensation bureau. Pamph. L. 1918, ch. 149, p. 429, as amended by Pamph. L. 1921, ch. 229.

Section 19 of the amended act (at p. 135), relating to appeal from the workmen’s compensation bureau to the Court of Common Pleas, provides: “The trial of such appeal shall be based exclusively upon the transcript of the record and testimony, and at the time fixed for hearing argument may be presented by each side, to the said judge, who shall in a summary manner decide the merits of the controversy, and the judgment of the Court of Common Pleas on any such appeal shall be conclusive and binding.”

The instant case in its circumstances, in regard to the legal situation, is similar to what appeared in Charlock v. M. W. Kellogg Co., 4 N. J. Mis. R. 260, and where the point relied on by the prosecutor is like unto the one under consideration here, and, therefore that case is controlling upon this court.

In the last cited case, like here, the finding of the Court of Common Pleas was “that the petitioner’s injury arose out of and in the course of his employment.”

It was there held that if there is any evidence in support of the finding of the Common Pleas judge, this finding is conclusive on the Supreme Court.

We find testimony in the case which tends to support the finding of the Common Pleas Court, and, therefore, its judgment is affirmed, with costs.


author: Walker, Chancellor.

text:
    In the matter of the Jury Commissioner of Passaic County.
    [Decided June 23d, 1928.]

      Mr. James J. Murner, for the commissioner.
   Walker, Chancellor.

Ob or about Thursday, May 17th, 1928, Mr. Justice Black, of the supreme court, holding the Passaic circuit, presented to me affidavits of Peter Hickerson] Thomas J. Reardon and Dorothy Yitell, from which it appeared that Samuel Geldziler, the jury commissioner of Passaic county, appointed by the chancellor under the act of 1913, had been guilty of using his office for political purposes, and asked that the jury commissioner be removed, under section 3 of the act referred to. P. L. 1913 p. 8£8. An investigation had then recently been made by the prosecutor’s office of Passaic county, and the affidavits taken were sent by the assistant prosecutor to Mr. Justice Black. Section 3 is as follows:

“The chancellor of this state may, at any time, remove the appointed commissioner in any county, and in case of a vacancy occurring by such removal, or by death, resignation, removal from the county, or because of disqualification by the assuming of duties of any other public office, or for any other reason, shall appoint his successor for the balance of the term. The certificate of'removal and of appointment to fill the vacancy shall be filed in the office of the clerk of such county.”

Thus it appears that the chancellor making the appointment has an absolute discretion to remove the appointed commissioner at any time without hearing. This is unlike the case of an official where the statute requires a notice and hearing before removal. McCran v. Gaul, 96 N. J. Law 165. The position in question is a public office. Brodman v. Rade, 2 N. J. Mis. R. 364, 366. However, although an appointed jury commissioner accepts his appointment subject to power in the chancellor to make a summary removal of him, nevertheless, in deference to the general principle of law, which is, that no man shall be condemned unheard, I concluded to give Mr. Geldziler, the commissioner, a hearing. In consequence, on May 18th, 1928, I wrote him enclosing copies of the three affidavits that had been presented to me, informing him how they were handed to me, stating that they showed that he had been guilty of political activity in reference to the office of jury commissioner, which, of course, should be entirely divorced from politics, and stating that I would give him an opportunity to make defense if he so desired. To this communication I received from Mr. Geldziler, under date of May 21st, 1928, a letter saying that he desired to deny the charges, and requested me to grant him an oral hearing, and on May 26th he enclosed to me seven affidavits. The oral hearing mentioned has also been had.

It now becomes pertinent to inquire what is the substance of the affidavits of the persons complaining of the conduct of the commissioner.

Peter Hickerson swore that he resides in Paterson and is a registered voter there; that on or about May 7th, 1928, he received a letter from the jury commissioner of Passaic stating that deponent was eligible for jury duty, and that if he desired to serve to communicate with Mr. Geldziler; that he called on Mr. Geldziler at the Passaic county court house, where the following conversation took place:

“I told Mr. Geldziler who I was and showed him the notice and told him that it would be both inconvenient for me and for the firm for which I worked to serve as a juror. Blr. Geldziler then replied: ‘If you do me a favor, I will do you a favor.’ I said: ‘What is it?' He said: ‘Give Jimmie Murner a vote.’ I said: T will.’ Then he said: ‘This is on my honor and I want you to be on your honor,’ then we shook hands on it.”

Thomas J. Reardon also swore that he was a legal voter in Paterson; that he received a letter from Mr. Geldziler, on or about May 7th, 1928, of the same tenor and effect as that received by Mr. Hickerson; that on May 9th, 1928, he went to the office of Mr. Geldziler, jury commissioner, in the court house, Paterson, and that the following conversation took place:

“I walked in and he said: ‘Hello, how are you Tom?’ I said: ‘Alright.’ I said: T have some notices here in my pocket,’ and I drew the three notices out. I said: ‘My three sisters-in-law received notice and they are not residents of the state just at present. They came back and are thinking of buying a house.’ ‘They asked me to come and ask you about those notices to be excused from jury duty.’ I said: T also have one for my wife.’ I said: ‘She will not be able to do jury duty.’ He said: ‘That is alright. Mr. Reardon, we will take care of that.’ He said to the clerk: ‘Mark them excused.’ He said: ‘How about yourself or your boy?’ I said: T am not particular, I will serve and I think my boy will. I will serve anytime I am drawn and I think the boy will do likewise.’ So he said: ‘Now, Mr. Rear-don, I want to ask you, I have got a very dear friend running for office and I would like you to give him a vote to help him.’ I replied that I knew his dear friend but would not vote for him as Mr. Kelly was my choice. Then he said: ‘Well, how far is Kelly going to beat Murner?’ and I said that I couldn’t say. He said: ‘All the machine is behind him.’ I said: T don’t know about that but I know I am with him and I think all respectable democracy is with him.’ ”

Dorothy Yitell swore that she received a communication from Mr. Geldziler of the same tenor and effect as those received by Messrs. Hickerson and Reardon; that she called at the office of Mr. Geldziler in the court honse in Paterson with her sister, and the following there took place:

“I said to him that I had come in answer to the letter and showed him the letter I had received. He then said to me: ‘Do you desire to serve on the. jury?’ I said: ‘Yes.’ He said to my sister: ‘Did you receive a letter?’ She said: ‘No.’ He said: ‘Would you like to serve?’ She said: ‘Yes.’ He said: ‘Will you give Jimmie Murner a vote?’ She said: ‘Yes.’ He said to me: ‘Will you?’ I said: ‘Yes.’ Then he said: T will see that you serve on the jury.’ ”

It is observable from these communications that, if true, they show activity on the part of Mr. Geldziler, the appointed commissioner, to use his office with reference to furthering political interests. He was offered an opportunity to defend himself, the offer not being limited in anywise. It was at his choice. • He chose to submit affidavits, and when they came in, much to my surprise there was no affidavit from Mr. Geldziler himself. In other words, no point blank denial by him on oath of the charges that had been made against him.

I will now examine the affidavits submitted on behalf of the defense.

Thomas Carless, one of the affiants, is sheriff of Passaic county. He simply swore that the notices that were sent out from the office of the commissioners of juries were sent out with his knowledge and consent after a conference held with Judge Porter of the Passaic county court; that they were sent out for the purpose of giving the commissioners of juries an opportunity to make a personal observation of those eligible for jury duty and to determine the number of those who were willing to serve and those who did not desire to serve; that he had sent out similar notices and had interviewed several persons eligible for such duty. This goes to the question of the notices alone.

An affidavit of Peter Murner is submitted. He swore that he is a member of the police department of Paterson; that on May 12th, 1928, he had pointed out to him by a citizen two young men that he had seen breaking into a store, and that he, deponent, apprehended them, one of whom was William J. Reardon, son of Thomas J. Reardon, who had made an affidavit with reference to the activity of Commissioner Geldziler; that he had preferred a charge of burglary against young Reardon prior to the taking of the affidavit of his father, which he had read. The object of this affidavit, of course, is to show animus upon the part of Thomas J. Rear-don in the making of his affidavit. It does not dispute the truth thereof, except inferentially, so far as interest may be thought to discredit him.

An affidavit of Sarah E. Little is submitted. She swore that she is employed in the office of the commissioners of juries of Passaic; that she was present in that office at all times when it was open, and was present when Commissioner Geldziler interviewed those responding to notices sent out, and was- in a position to hear the conversations, and at no time did she ever hear ” Commissioner Geldziler make any promises to anyone regarding service on the jury; that she had read the affidavits of Dorothy Vitell, Thomas J. Eeardon and Peter Hickerson, and knew the statements concerning Commissioner Geldziler’s activity to be in fact untrue.

May Scowcroft also made affidavit and swore that she was a clerk in the office of the commissioners, and corroborated the statements made by Miss Little.

Natalie Schlenger also made an affidavit and swore that she was employed as a clerk in the office of the commissioners of juries, and corroborated the testimony given by the Misses Little and Scowcroft; and further deposed that under the direction of Commissioner Geldziler she mailed out several notices, of which the following is a true copy:

“Jury Commissioners:
Thomas Caeless, Sheriff and
Samuel Geldzilee.
In examining the lists for jury service, I find listed thereon your name, and I am writing to ask you to get in touch with me and let me know whether or not you are desirous of serving on the jury.
Commissioner
Commissioner.”

The only important thing about these three affidavits of the women is that they were in attendance in the office (which was fairly small) at all times when Commissioner Geldziler was there, and said that he did not make any promises with reference to jury duty in return for a vote for anyone, or words to that effect. Now, this is what is known in law as negative testimony. It is that the witness did not hear anyone make certain remarks. It is like the conflicting testimony that is submitted to courts every term, notably in railroad accident cases, where one class of witnesses say that a bell rang or a whistle was sounded, and another class say that they heard no sound at all given, and that they were in a position to hear. It is a question of fact for the jury to determine whether in all the circumstances the signals were given, and so I, sitting here in this matter, am a trier of the facts, and must determine whether or not, in all the circumstances, the statements contained in the affidavits of Hiekerson, Reardon and Yitell are true. And I conclude they are in substance correct. It is a notorious fact that one can sit in his library with a loudly striking clock in the room, and if mentally alert and not pursuing any subject, may hear the sound; but if interested in reading or something else, the clock may strike hours, half hours and quarters without being heard at all. And it is equally notorious that railroad trains, which made considerable noise ordinarily in a given house, will be entirely unheard there during hours of mental concentration. So this negative testimony does not impress me greatly, if I assume, which I think I must, that these women clerks were busily engaged in their duties when those in the office were talking to Mr. Geldziler; and, besides, they doubtless are desirous, so far as possible, of aiding Mr. Geldziler in this matter. But this is not all. The fact that Mr. Geldziler does not himself make an affidavit, and, on oath, does not deny in terms each and every accusation made by these affidavits against him, is persuasive to my mind that those statements are substantially true. No judge could justify himself in deciding otherwise.

William Norval made an affidavit in which he swore that he was county physician of Passaic, with an office in the court house, which was shared by the commissioners of juries; that he was present on several occasions when Commissioner Geldziler interviewed persons responding to notices sent out, and on no occasion did he hear him make any promises or solicit any votes. Of course, there may have been many occasions when Mr. Geldziler had an opportunity to do what Dr. Nor-val says lie never heard. His testimony is purely negative and is of value in deciding the merits of this case.

Elizabeth Hughes Higham says that she was a candidate for election to membership on the Democratic state committee at the primary election held May 15th last; that on the 19th of April, 1928, she was called on the telephone by Assistant Prosecutor James N. Dunn, who stated that he heard that she was supporting the candidacy of James J. Murner for membership on the Democratic state committee, and he stated to her that “we have a petition with a sufficient number of signers” which they would file against her if she was in favor of Mr. Murner’s candidacy; that she was familiar with Mr. Dunn’s voice and knows that he was the person talking to her; that on the night of the primary election she was at a certain polling place (naming it), and that during the count Assistant Prosecutor Dunn, who is not a resident or voter in that district, came in and watched the count. This goes to show political activity against Murner and Miss Higham herself, but does not really touch the merits of the question in controversy. These are all of the affidavits submitted on both sides.

The object of the Jury Commissioner act above cited was, of course, to remove the juries from political control, and it was intended thereby that the appointed jury commissioner, while being required to be a member of a political party opposite to that of the sheriff, and, of course, properly so, should engage in the selection of high-class citizens for jury duty, but that he was not to use his office as such for any political purpose. The sheriff, likewise, should not indulge in the selection of juries with any purpose of political control in mind; but as to sheriffs I have no jurisdiction whatever, none is accused here, and as to them as a class I have nothing to say. Doubtless the absolute discretion confided to the chancellor to remove jury commissioners appointed by him was given by the act of 1913 for the purpose of enabling him at all times to have control over those he selected, and to remove them if occasion should, in his judgment, so require. In two or three instances I have heard of conduct unbecoming the office of jury commissioner by sundry incumbents and have not reappointed them when their terms expired. In this instance, however, the jury commissioner has been expressly charged with a violation of duty, and I am asked by the supreme court justice, holding the Passaic circuit, to remove him. This is an accusation which I am not at liberty to disregard, and in investigation of the matter, as the jury commissioner occupies a quasi-judicial position, I laid down for myself rules of law governing a judge in deciding the facts of a given case. In applying those rules I feel compelled to conclude that the commissioner has been guilty of the conduct attributed to him.

The commissioner accepted the offer of an oral hearing, and he came to Trenton with his counsel and with the three young women clerks in the jury commissioners’ office in Paterson. Where there is authority to appoint those clerks I do not know and decide nothing, as the matter is not before me, nor have I jurisdiction. There is, however, in the law, provision for the appointment of a clerk.

Counsel for the commissioner offered to swear the young women and permit me to cross-examine them. I decline, as I had no questions I desired to ask them; they had made their statements in affidavits which were submitted. And in his argument counsel did say that Mr. Geldziler denied all of the accusations that were made against him. Of course, he could say that arguendo; but he had no affidavit of Mr. Geldziler denying the facts, specifically charged. I had hoped and expected that in justice to the commissioner some statement would be made excusing the absence of an exculpatory affidavit from him, but none was forthcoming. I can only marvel at his silence, and must conclude from that alone that the facts stated in the affidavits of Hickerson, Reardon and Vitell are true. This leads to the inevitable conclusion that the commissioner has used his office for political purposes, and I am therefore constrained to the conclusion that he should be removed, and such will be the order.

Before leaving the subject I think I ought to say that there is nothing objectionable in the form of the letters sent out by the jury commissioners of Passaic county. A similar letter, I understand, is sent out by the commissioners of the adjoining county of Bergen, and I know that in Mercer county, at least some years ago, a letter somewhat similar in form was sent out. There can be no impropriety in jury commissioners inquiring of residents if they are eligible for jury duty, and whether or not they desire to serve. Such ascertainment beforehand will often save the court considerable time in considering applications to be excused, and the trial court, when drawing a jury, on the question of challenges, &c. Another thing: There seems to be a fierce fight in Passaic county between opposing factions of the Democratic party which has assumed a stage of bitterness not creditable to the participants. But as to that I have nothing to do, nor has it anything to do with the facts of the case in hand. And, let me say, that what Mr. Geldziler did with reference to soliciting votes at the primary for a candidate in whom he was interested, is, of course, unobjectionable. The objection comes in when, as here, he solicited them to so vote in connection with a promise either to place them upon, or excuse them from, the jury lists. It seems to me remarkable that Mr. Geldziler in his zeal for his candidate would permit himself to forget what was required of him by the office which he held. His personal character generally is not assailed.

Although this is a proceeding before the chancellor as a statutory agent, nevertheless, by P. L. 1915 p. 28, all such proceedings shall be entitled in the court of chancery and filed there, to the end that the clerk may make certified copies of all such proceedings when requested, and that such copies when certified shall have the same force and effect as certified procedings in cases in the court. State v. Giberson, 94 N. J. Eq. 25, 26.

Order accordingly.


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    SOLOMON LOSICK AND ANGELINA LATRONICO, RELATORS, v. GEORGE C. GREENE, BUILDING INSPECTOR OF THE TOWNSHIP OF WEEHAWKEN, ET AL., RESPONDENTS.
    Argued May 6, 1927
    Decided June 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relators, Gross & Gross.

    For the respondents, William C. Asper.

   Per Curiam.

This is a zoning case. It is before this court on a rule to show cause why a peremptory or alternative writ of mandamus should not be issued directing the building inspector and the township committee of the township of Weehawken to grant to the relators a building permit. The relators desire to erect a five-story apartment house on a tract of land in said township owned by them. An application was made to the building inspector. He referred the matter to the township committee. The township committee refused to allow the building inspector to issue the building permit upon the ground that it violated the zoning ordinance of the township. The proposed building was not in an apartment house zone. No other reason was assigned for the refusal of the application. The relators appeared before the board of adjustment of the township by an attorney. The attorney was informed that the board of adjustment had no jurisdiction. The relators then applied for and obtained the rule to show cause.

In the recent case of Koplin v. Village of South Orange et al., the constitutional amendment with reference to zoning, which was approved and ratified by the voters of this state on September 20th, 1927, and took effect on October 18th, 1927, and the statute enacted by the legislature pursuant to the power conferred by the constitutional amendment, known as chapter 274 of the laws of 1928, were considered. A reference to this case will give fully the reasons for the decision which we have arrived at in the present case, which is to the effect that the rule to show cause should be discharged. The power to issue a writ of mandamus is a discretionary one. We feel it would be an abuse of power for this court to direct a municipality to grant a permit for the erection of a building, the existence of which, if erected, has already been declared by legal authority to be a menace to the safety of the community.

If the relators desire to review the action of this court they are hereby given permission to enter a rule allowing and directing the molding of the pleadings to that end.

The rule to show cause is discharged and the writ of mandamus denied accordingly.


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    THE BILT-WEL COMPANY, PROSECUTOR, v. JOHN G. SCOTT, BUILDING INSPECTOR, ET AL., RESPONDENTS.
    Submitted October 14, 1927
    Decided June 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.

      For the prosecutor, Levy, Fenster & McCloskey.

    For the respondents, Walter C. Ellis.

   Per Curiam.

This is a zoning case. It is before this court on a writ of certiorari allowed to review the decision of the board of adjustment of the city of East Orange. The facts are stipulated in the record. It appears from the stipulation that the prosecutor is the owner of premises located at the northwest corner of Burnett and Beach streets, in the city of East Orange. The prosecutor engaged an architect to prepare plans and specifications for a three-story brick apartment house designed for the occupancy of twelve families. The plans were prepared, submitted to the board of tenement house supervision and were approved by that body. On March 31st, 1927, the prosecutor made a written application for a building permit to the building inspector of the city of East Orange. It presented the plans and specifications mentioned and tendered the fees required by law for the issuance of a building permit. The city of East Orange had enacted a zoning ordinance. The land of the prosecutor, upon which it desires to erect the apartment house, is located in a zone known as a small volume residential district. The ordinance precludes the erection of an apartment house in this zone. Eor this reason the building inspector refused to grant the permit. The prosecutor then appealed to the board of adjustment. A date was fixed for the hearing, and after the hearing the board of adjustment unanimously' denied the granting of the permit sought. The prosecutor then applied for and was allowed a writ of certiorari to review the determination of said board of adjustment.

In the case of Koplin v. Village of South Orange et al., this court, in an opinion filed May 14th, 1928, considered the constitutional -amendment respecting zoning, which was approved and ratified on September 30th, 1927, and took effect October 18th, 1927, and the statute enacted by the last legislature, known as chapter 274 of the laws of 1928. This opinion, among other things, particularly referred to the retroactive effect which the statute gave to zoning ordinances. The prosecutor in the instant case bases its contention upon the cases which were heretofore controlling in these questions, but which by the constitutional amendment and the act of the legislature mentioned have become ineffective to grant the relief asked for by the prosecutor. There was no evidence offered in the present case before the board of adjustment to the effect that the provisions of the zoning ordinance were unreasonable. The presumption is that they are reasonable. Burg v. Ackerman, 5 N. J. Mis. R. 96. This court will not disturb the action of a board of adjustment unless its action is shown by evidence to be wrong. Oxford Construction Co. v. Orange, 4 Id. 515. The decision of the board of adjustment of the city of East Orange is affirmed. The writ of certiorari will be dismissed, without costs.


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    ISADORE J. KITAY, PROSECUTOR, v. JOHN QUIGLEY, INSPECTOR OF BUILDINGS, ET AL., RESPONDENTS.
    Submitted October 14, 1927
    Decided June 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Peter Cohn.

    For the respondents, Benjamin J. Spitz.

   Per Curiam.

This is a zoning case. It is before this court on a writ of certiorari allowed to review the action of the board of adjustment of the city of Paterson. The prosecutor is the owner of premises known as lots Nos. 349-351 Twelfth avenue, in the city of Paterson. The prosecutor desires to erect an apartment house designed to accommodate sixteen families upon said premises. He caused to be prepared plans and specifications which were submitted to and approved by the tenement house commission. These plans and specifications were then filed with the building inspector of the city of Paterson and the proper fees for a building permit tendered. The plans and specifications were in accordance with the building code of the city of Paterson. The building inspector refused to issue a permit. His refusal was based upon a section of the zoning ordinance of the city of Paterson which provided that “no dwelling or tenement house shall hereafter be erected or altered to accommodate or make provision for more than thirty-five families on any acre of land or more than a proportional number of families on a fractional part of any acre of land. The maximum number of families which may hereafter be housed on any plot of ground shall not exceed the integral number obtained by multiplying the acreage of such plot by thirty-five." The building inspector contended that the granting of a permit would violate this section of the zoning ordinance. He, therefore, refused to grant the permit. The prosecutor appealed to the board of adjustment. This board at a meeting held denied the prosecutor’s application for a permit and affirmed the action of the building inspector. The basis of its action appears to have been that the premises of the prosecutor were in the heart of a very fine residential district. The facts hereinbefore recited are stipulated in the record. After the refusal of the board of adjustment to reverse the ruling of the building inspector the writ of cerHoran in the instant case was allowed.

In the case of Koplin v. Village of South Orange et al., in which an opinion was filed in this court on May 14th, 1928, there is contained a review of the constitutional amendment respecting zoning, which was approved and ratified on. September 20th, 1927, and took effect on October 18th, 1927, and the statute enacted by the 1928 legislature upon this subject, known as chapter 274 of the laws of 1928. It is especially pointed out in this case that the zoning ordinances passed prior to the enactment of the constitutional amendment were deemed to be legal. The situation in the present case, therefore, is that the Zoning act relied upon by the city of Paterson in the present controversy is legal. It was therefore the duty of the prosecutor to show that the aplication of the zoning ordinance to his case was unreasonable. The presumption is that the zoning ordinance is reasonable. Burg v. Ackerman, 5 N. J. Mis. R. 96. We find nothing in the evidence which, under the circumstances, inclines us to the belief that the ordinance is unreasonable. In order to reverse the action of a board of adjustment there must he evidence produced before the court that the action of the hoard of adjustment is wrong. Oxford Construction Co. v. Orange, 4 Id. 515. We, therefore, have reached the conclusion in the instant case that the decision of the board of adjustment of the city of Paterson should be affirmed.

It is accordingly affirmed. The writ of certiorari will be dismissed, without costs.


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    SUSSEX PRINT WORKS, INCORPORATED, PLAINTIFF, v. LOUIS NOCHENSON, DEFENDANT.
    Decided June 21, 1928.
    For the rule, Hobart & Minard.

      Contra, McCarter & English.

   Per Curiam.

The plaintiff obtained a verdict in the Morris Circuit for the sum of $1,500/ in an action brought by him against the defendant to recover damages, which the plaintiff’s truck sustained, as a result of a collision with the defendant’s truck, which was left standing by the defendant’s servant on the public highway on the right side of the road, partly obstructing it to public travel.

The facts are these: On October 28th, 1924, at about five-thirty in the morning, it being very dark, the plaintiff’s servant, one Carpenter, was operating a five-ton White truck, loaded with two tons of silk, owned by the plaintiff, and which truck was being run at a speed of about fifteen miles an hour along the Pine Brook road, in Caldwell, in a westerly direction, on the right-hand side of the road. The testimony further discloses that the defendant’s truck broke down as a result of the motor stalling; that the driver of defendant’s truck stepped down from his seat on the truck and tried to crank the motor and found he was unable to do so; that thereupon he took a kerosene lighted lantern and went up the road waving his lantern, when Carpenter came along with plaintiff’s truck, and paid no heed to the signal; that there were no lights on the stalled truck (which fact was disputed), and that the truck blockaded the road to a considerable extent. The plaintiff further adduced testimony that there had been two holdups on the road near the same spot and that its drivers had been instructed not to allow anyone to stop them on the road, and for protection the driver Carpenter carried a revolver, and he testified he saw, a man coming along the road with a lantern, waving it; that he thought there was going to be a holdup; that he reached for his revolver and speeded up his truck to about eighteen miles an hour, and that when within about thirty-five feet of the place where the truck was obstructing the road, he espied its presence and then made an attempt to avoid colliding with it, but failed in his effort.

Pour reasons are presented by defendant for a new trial— 1. The verdict is contrary to the evidence. 2. The verdict is contrary to the weight of the evidence. 3. The verdict is contrary to the judge’s charge. 4 Damages awarded are excessive.

We are of the opinion that none of these reasons finds any merit from a plain reading of the testimony and the charge of the court.

The defendant’s truck was left standing on the public highway without any lights upon it, so as to give warning to oncoming automobiles. This circumstance alone warranted the jury to find the defendant guilty of negligence. Whether or not the plaintiff’s servant was guilty of negligence contributing to the collision was also clearly a jury question.

There was no legal duty, nor can we say any duty, prompted! by ordinary caution, that devolved upon the driver of the truck, carrying goods of great value, to stop his truck on a public highway, late at night, upon the mere waving of a lantern by a person coming along in the middle of a road, in the darkness, and at a place where two previous holdups had taken place.

A jury might readily believe that it was a highly dangerous undertaking for a man at that early hour in the morning to run along a public highway waving a lantern to stop automobilists coming along when he might have stood where the truck was ,stalled and waved his lantern from that position.

It is quite obvious that what happened to defendant’s truck might have been avoided if the truck had been equipped with proper lights to serve as warning in case of emergency.

It is a matter of common experience that automobiles are subject to be stalled upon the public road, and if they are driven at night they ought to be equipped with means to give warning upon the happening of such emergency.

The question whether or not Carpenter exercised reasonable care must be controlled by the circumstances which confronted him, and we cannot say that, under the circumstances developed by the testimony, he did not act with that degree of care that an ordinary prudent person, situated as he was, would have acted, under similar circumstances. The reason alleging excessive damages was not pursued or argued in defendant’s brief.

The rule to show cause is discharged, with costs.


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    ADOLPH NEWMAN, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Submitted January term, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Aaron Heller and Ward & McGinnis.

    For the defendant, Henry H. Fryling.

   Per Curiam.

The questions involved in this .case are questions of fact. The testimony shows there was a collision between the defendant’s trolley car and the plaintiff’s automobile, in which the plaintiff was riding. The collision occurred on April 20th, 1926, on Bloomfield avenue, near the intersection of Park street, in Montclair. Negligence is charged against the defendant company. The proofs support that charge. The automobile in which the plaintiff was riding was damaged and the plaintiff was injured. The trial resulted in a verdict for the plaintiff for $5,000 and against the defendant. The defendant obtained a rule to show cause why the verdict should not be set aside. The reasons assigned for a new trial are that the verdict is contrary to the weight of the evidence and the damages awarded by the jury are excessive. Our reading of the record leads us to the conclusion that neither one of these reasons is tenable.

The rule to show cause is discharged, with costs.


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    JOSEPH RAVESE, INDIVIDUALLY AND AS ADMINISTRATOR AD PROSEQUENDUM, PLAINTIFF, v. AUGUST W. HOCK ET AL., DEFENDANTS.
    Argued January 17, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Wright, Vander Burgh & McCarthy.

    For the defendants, Hobart & Minard.

   Per Curiam.

This suit was brought to recover damages under the Death act. The plaintiff’s intestate was killed about three o’clock on the afternoon of May 27th, 1926, while crossing Park avenue in the town of North Bergen, Hudson county, New Jersey, by being struck by an automobile owned by the defendant Howard E. Hock and operated by the defendant August W. Hock. The trial resulted in a verdict in favor of the plaintiff of $5,000 and against the defendant August W. Hock. The defendant obtained a rule' to show cause why the verdict should not be set aside, and he writes down sixteen reasons in support of the rule.

On the point of negligence and contributory negligence of the plaintiff’s intestate the case of Thornton v. Cater, 94 N. J. L. 435, is -in point. These were jury questions. So, we think the verdict is not against the weight of the evidence on the defendants’ negligence or on the issue of the contributory negligence of the decedent. We think there was no error in the refusal to charge certain requests oh behalf of the defendant.

The charge on the question of damages was accurate and ample in the absence of more specific written requests. The damages are not excessive in view of the testimony in the record.

We find no sufficient reason for disturbing the verdict. The rule to show cause is discharged.


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    CHARLES A. ROE, PLAINTIFF-RESPONDENT, v. CHARLES F. EGGLESTON, DEFENDANT-APPELLANT.
    Submitted January term, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the respondent, Kreps & Bell.

    For the appellant, John D. McMullin.

   Per Curiam.

This suit was brought to recover $1,400, with interest, from August 20th, 1925, for a real estate broker’s commission, alleged to have been earned under a written agreement dated June 20th, 1925. The following are the pertinent clauses:. “Five per centum (5%) on the gross amount of the purchase price for effecting this sale, to he paid at settlement; final settlement shall be made on or before August 20th, 1925. Time is of the essence of this agreement.”

The trial resulted in a directed verdict in favor of the plaintiff for $1,570. The defendant filed nine grounds for a reversal of the judgment. The first six alleged errors by the trial court in refusing to nonsuit the plaintiff and in directing a verdict in favor of the plaintiff. The seventh, eighth and ninth refer to trial errors in admitting and rejecting testimony. We find no error here, but if this is not so the rulings could not change or affect the result reached by the trial court. The ruling of the trial court in directing a verdict was based upon the construction of the written agreement above stated, viz., that it does not provide a contingency upon which payment is to be made, but falls under that class of cases where it is held that it fixes a time merely. That is a matter of law and no question arises for a submission to the jury. We think the ruling of the trial court is supported by the reported cases from the New Jersey courts, such as Mahlenbrock v. Stonehell Realty Co., 5 N. J. Adv. R. 1464; Haber v. Goldberg, 92 N. J. L. 373; Steinberg v. Mindlin, 96 Id. 206; Klipper v. Schlossberg, 96 Id. 397.

A real estate broker earns his commission when he secures a buyer on the seller’s terms. Steinberg v. Mindlin, supra.

Finding no error in the record the judgment of the Cape May County Court of Common Pleas is affirmed.


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    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. AMBROSE GALLAGHER, PLAINTIFF IN ERROR. STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HARRIS GREENBERG, PLAINTIFF IN ERROR.
    Submitted January term, 1928
    Decided June 21, 1928.

      Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the defendant in error, John Milton, prosecutor of the pleas.
    For the plaintiff in error Ambrose Gallagher, Thomas F. Meehan.

    For the plaintiff in error Harris Greenberg, Thomas J. Brogan.

   Per Curiam.

The defendants Ambrose Gallagher, Harris Greenberg and Edward Bruhns were tried in the Hudson County Court of Quarter Sessions upon an indictment charging them with conspiracy to defraud the Jagels-Bellis Company of under-weighing and undervaluing coal. Edward Bruhns was found not guilty by direction of the court. Ambrose Gallagher and Harris Greenberg were found guilty of a conspiracy by the jury.

They each sued out a writ of error from this court. They each assign two grounds of error and three specifications of causes for reversal, which are identical.

It is argued in the brief on behalf of Greenberg that neither a conspiracy to defraud, nor an overt act in pursuance thereof, was proved by the state, and on behalf of Gallagher, it is argued, the crime was not proved, as the only case made against him consisted of his admissions and confession. The crime charged was conspiracy and the admissions and confession of the defendant Gallagher did not prove the conspiracy. Moreover, the verdict of conspiracy was against the weight of the evidence.

The whole case, so it is argued, went to the jury on the confession of Gallagher, which did not involve Greenberg.

None of these points are tenable, because they are not true in point of fact, as a reading of the record will reveal. The defendant Gallagher made a written confession, page 108 et seq., testimony of May Dempsey. He did not take the stand in his own defense. His failure to offer himself as a witness may be considered and commented on. Parker v. State, 61 N. J. L. 308. C. Henry Jagels, a witness (at p. 123), charged Greenberg with short weighting of coal on his tickets. “Well/5 he said, “I will make everything good."

The state contends that it has proved two overt acts, one overt act when the defendant Gallagher in the presence ofGreenberg deliberately underweighed the coal purchased by the defendant Greenberg — five hundred pounds. Record, p. 72, l. 14, el seq; p. 73, l. 22. The other overt act, the defendant was charged with an inferior grade of coal, when he actually received a higher grade of coal. These acts were within the two-years5 period, and were proved to have been done at the time laid in the indictment, testimony of witness Joseph Brophy. Record, p. 73, l. 25, et seq.

The state does not rest its case upon the confession of Gallagher to prove a claim against the defendant Greenberg.

Rinding no error in the record, the judgment of the Hudson County Court of Quarter Sessions, in each case, is affirmed.


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    HERMAN J. KOEHLER, PLAINTIFF, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY ET AL., DEFENDANTS.
    Argued January 18, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.

      For the plaintiff, King & Vogl.

    For the defendant, Henry H. Fryling.

   Per Curiam.

This action was brought to recover damages under section 1 of an act entitled “An act to prevent the unlawful waste and destruction of timber in this state,” passed February 28th, 1820. 4 Comp. Stat. of N. J., p. 5396. The words of section 1, drawn into this controversy, are “destroy any tree, sapling or pole standing or, lying on any land within this state,” &c. The complaint alleges that the defendants unlawfully entered in and upon the land of the plaintiff and cut, felled and destroyed seven hundred and fifty-three trees and saplings standing thereon.

The trial resulted in the direction of a nonsuit as to the defendant Public Service Electric and Gas Company by the court, and a verdict by the jury in favor of the plaintiff for $3,936.

We find nowhere in the record a rule to show cause, but in the brief of the plaintiff it is stated a rule to show cause was taken out by the individual defendants, and at page 122 there are sixteen reasons filed why the verdict should be set aside and a new trial granted. A further examination of the record at page 1 “shows the rule printed.”

Our examination of the record, the reasons filed and the briefs, lead us to the conclusion that the rule or rules granted should be discharged, with costs.


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    PETERSON & READ COMPANY, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Argued January 18, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, David A. Rose.

    For the defendant, Henry H. Fryling.

   Per Curiam.

This suit was brought to recover damages to a Buiek sedan, model 40. The damages were caused by a collision with the defendant’s trolley car at a grade crossing about eight-thirty p. m., on February 5th, 1927, on River road, where the road is crossed by the trolley tracks of the defendant company at West Palmyra, New Jersey. The trial resulted in a verdict for $1,210 in favor of the plaintiff. The defendant obtained a rule to show cause why the verdict should not be set aside and a new trial granted. The defendant writes down five reasons in support of the rule. We think there is no merit in any of these reasons calling for any extended discussion. The rule to show cause is discharged, with costs.