author: Pebskie, J.

text:
    IN THE MATTER OF THE APPLICATION TO HOLD FREDERICK BUGASCH, INCORPORATED, A CORPORATION OF NEW JERSEY, AND OTTO A. KASPER, IN CONTEMPT OF COURT.
    Argued May 2, 1934
    Decided October 15, 1934.

      Before Justices Tbenchabd, Hehek and Pebskie.
    Por the rule, Gliarles DeF. Besore.

   The opinion of the court was delivered by

Pebskie, J.

This matter comes up before us, on permission granted April oth, 1934, in open court, to reargue a rule to show cause, issued at the instance of the Hudson County Bar Association, in co-operation with the Conference of County Bar Associations, why the defendants should not be adjudged in contempt of this court, in that they practiced law without having been licensed to do so.

The illegal practice, it is charged, consisted of services rendered by the defendants to the estate of Emma S. Markert, deceased, in the probate of her will, preparing and filing inventory for inheritance tax purposes; the drawing and recording of two refunding bonds and releases.

It shall, perhaps, be helpful if we restate, as it is represented to us, the various steps in the cause already taken and the results thereof.

On the return of the original rule to show cause the bar associations appeared by their counsel, as amicus curim, and brought this matter to the attention of the court. Defendants also appeared. The moving parties realizing, by reason of the nature of the cause, that they were powerless to proceed further, as amicus curim, without authority from this court to do so, moved that this court appoint counsel to prosecute the cause in behalf of the court.

The court then requested the bar associations to file a brief directed to the jurisdiction of the court and the practice to be followed, which was subsequently prepared and filed by them, but the court did not appoint counsel to proceed. The defendants’ counsel informed the court that his clients were willing to have testimony taken by depositions rather than in open court, but filed no brief.

Subsequently the court dismissed the rule (No. 284, October term, 1933). In doing so it said:

“The only proofs before us consist of ex parte affidavits upon which the rule to show cause issued. Ex parte affidavits may be used for the purpose of obtaining a rule to show cause, but are not competent to prove facts necessary to support a motion not of course, or to be read on the hearing on a rule to show cause, depending on facts extrinsic the record. Such facts can only be brought before the court by depositions taken on notice. Baldwin v. Flagg, 43 N. J. L. 495, and cases there cited; Friend v. Scottish Union, &c., Insurance Co., 103 Id. 290; 136 Atl. Rep. 718.”

'“We have not considered either the merits or the applicability of the general procedure.”

The bar associations then made application to the court for a reargument, pointing out its embarrassment, already indicated, whereupon leave to reargue was granted.

Specifically and in the words of the bar associations, “the present application is the same as that made on the return of the rule, namely, that the defendants be required to plead, and if they plead not guityy, that counsel for the amici curice, or other counsel, be appointed to prosecute the matter in the name of this court, either by a hearing held before the court, at a day to be fixed, or by taking of depositions if the defendants consent thereto.”

The bar associations seek to impress upon the court that this cause was instituted as part of a nation-wide movement, sponsored by the American Bar Association, against unauthorized practitioners of the law. And that there need be no embarrassment as to compensation for counsel. The concluding sentence of the brief submitted to this as well as the original application is: “No doubt the voluntary services of counsel can be obtained since the action is prosecuted in the interest of the bar and to this end the Hudson County Bar Association and the conference offer their best offices-to the court.”

It is undoubtedly a fact that the proceedings sponsored as it is by local, state and national bar associations, has for its purposes the vindication of the court’s dignity and the preservation of the power of the court. While the result of such a prosecution may, and undoubtedly does ultimately inure to the individual benefit of those members of the profession who are property licensed, nevertheless, they are justly entitled to the emoluments, rewards and fees incident to their calling. And moreover, this resultant individual benefit does not change the character of the offense charged. The charge, if sustained, is an offense against organized society. It raises an issue between the public and the accused involving no private rights. It appears to be criminal and punitive in its nature. Thompson v. Pennsylvania Railroad Co., 48 N. J. Eq. 105; 21 Atl. Rep. 182; In re Merrill, 88 N. J. Eq. 261; 102 Atl. Rep. 400; Dodd v. Una, 40 N. J. Eq. 672; 5 Atl. Rep. 155.

While the court is, of course, impressed and concerned with the efforts of all and particularly those of the bar associations, which have for its purposes the vindication and preservation of its powers; for they are wholesome and praiseworthy objectives, nevertheless we are of the opinion that we should not resort to or exercise the inherent, but none the less drastic and extraordinary power and right of this court, to punish, under all circumstances, those who appear to have committed an act or acts which may be construed as being in contempt of court. It is a power that is not and should not be exercised lightly.

We are not, under the facts and circumstances of the instant case, inclined to exercise or resort to the mighty power of this court to punish the alleged wrongdoers by and through the process of contempt proceedings.

Prosecutors are not without a remedy. If the defendants practiced law without a license they are guilty of a criminal offense. In re Merrill, supra, New Jersey Photo Engraving Co. v. Schonert & Son, 95 N. J. Eq. 12; 122 Atl. Rep. 307. And they are amenable to the criminal laws of our state. Pamph. L. 1913, p. 358; Pamph. L. 1924, p. 308; Pamph. L. 1928, p. 676.

Por the reasons indicated the application is denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DANIEL DONOVAN, PATRICK GALLAGHER, CHARLES MORECRAFT, FRANCIS CONNORS, ANTHONY VATALARO, NATHAN LAPIDUS, STEPHEN TAYLOR, JOSEPH POPARTYS, STEPHEN GASDICK, LOUIS LISSENDEN, JOSEPH J. McCARTHY, MICHAEL FEDORECHKO, ALBERT BERKOWITZ, JAMES GLEASON, JOSEPH S. HARCHER, CHARLES KOLOKOWSKY, MICHAEL G. GAVRUN, JOSEPH MATCHKO, FRANK H. FITZPATRICK, JOSEPH W. DONOVAN, SAUL H. BUCHBINDER, CORNELIUS J. FACKINA, LEON J. COYLE, WILLIAM A. WILKINS, JOSEPH E. COLAHAN, PATRICK WARD, JOHN CALLAHAN, CATHERINE KIERNAN AND JOSEPH SAVAGE, PROSECUTORS, v. THE BOARD OF COMMISSIONERS OF THE CITY OF BAYONNE AND DENNIS O’LEARY, DIRECTOR OF PUBLIC SAFETY OF BAYONNE, DEFENDANTS.
    Submitted May 11, 1934
    Decided October 19, 1934.
    Before Justices Trenchard, Heher and Persicie.
    Por the prosecutors, William, Rubin.

    Por the respondents, Alfred Brenner (Patrick J. O’Connell, of counsel).
   Per Curiam.

The writ of certiorari brings up for review an ordinance abolishing the positions of the prosecutors, the official action of the director of public safety of the city of Bayonne together with resolutions adopted by the board of eommissiorors of the city of Bayonne dismissing prosecutors from their office of patrolman and policewoman, in the police department, and reducing the other prosecutors in rank in that department.

The record discloses this situation:

On January 2d, 1934, the board of commissioners of the city of Bayonne passed an ordinance abolishing certain positions in the police department of the city. On January 5th, 1934, the board adopted certain resolutions the effect of which was to vacate the positions of twenty-one patrolmen, one policewoman, one photographer and assistant to the superintendent of criminal identification, two detectives, one motor mechanic (with the rank of lieutenant), three lieutenants of police, and three captains of police, and the consequent dismissal of twenty-one patrolmen, one policewoman, one photographer and assistant to the superintendent of criminal identification, and the demotion of all others involved to lower ranks, except one captain of police who had retired as such from the police department before the adoption of such resolutions. On the same day (January 5th, 1934), the director of the department of public safety, acting independently in his individual capacity as director having charge of the police department of the city of Bayonne, took action corresponding in effect with the proceedings of the board of commissioners, and filed with the board and the city clerk notice to that effect and the board of commissioners thereupon adopted resolutions “ratifying, approving and confirming” the action of the said director of the department of public safety.

The reason set forth in the ordinance, resolutions and other measures pertaining to the matters in point is that the action was taken “in the interest of economy and sound government.”

The effect of such action was to cause a saving in the appropriation for police department salaries of $55,072, which sum was eliminated from the budget for the year 1934.

In connection with the demotion of the two lieutenants (who were the persons last promoted to lieutenancies), the testimony of the chief of police shows that the demotion of these two men having the rank of lieutenants was offset by the assignment to patrol duty of two other lieutenants of police, one of -whom had previously been assigned to the jitney office and the other to secretarial work in the office of the chief of police. With respect to the captaincies, the situation was that three captains were provided for in the police ordinance prior to the passage of the amendment under review. One of these places was vacant while the other two had been filled on December 12th, 1933, one week before the introduction of the amendatory ordinance which abolished, among other things, all three captaincies.

No new or novel question is raised in these proceedings.

The right of the governing body to abolish such positions for the purpose of economy and in good faith has been consistently and repeatedly upheld by the court. Doyle v. Secaucus, 10 N. J. Mis. R. 334; affirmed, 110 N. J. L. 62; 163 Atl. Rep. 893; Spears v. North Bergen, 10 N. J. Mis. R. 962; affirmed, 110 N. J. L. 173; 164 Atl. Rep. 468; Paddock v. Hudson Tax Board, 82 N. J. L. 360; 83 Atl. Rep. 185.

That the action of the governing body in this case was in the interest of economy is clearly established by the record wherein it is shown that economies were effected in police department salaries to the extent of $55,072 and that this sum was eliminated from the budget for the year 1934.

There is no evidence establishing bad faith on the part of the governing body in these proceedings.

In the case of Blair v. Brady, 168 Atl. Rep. 668; 11 N. J. Mis. R. 854, Chief Justice Brogan, speaking for this court, said:

“The court will not substitute its judgment on matters of this kind that concern the regulation of the internal affairs of municipal departments for the judgment of those selected by the people and charged by law with the duty of regulating such affairs, in the absence of a clear showing of bad faith.”

There is no merit in the prosecutors’ contention that the action of the governing body was illegal because the same was taken before the ordinance abolishing the positions of the prosecutors became effective.

That the manner of proceedings undertaken by the governing body in making the demotions and dismissals in the case at bar was proper and lawful is established.

In the case of Spears v. North Bergen, supra, it was said by this court:

“Prosecutors contend under their first point that the resolutions were of no effect as of June 3d because the ordinances ■could not become effective until June 15th. However, the -case of Anderson v. Weehawken, 97 N. J. L. 371; 118 Atl. Rep. 208, is authority for the proposition that a fireman’s position may be abolished by resolution since his appointment was accomplished in the same way. We think the procedure was proper, namely, the abolition of the office as to each incumbent by resolution, and then the complete abolition of the position by ordinance in order that no other might be appointed.”

This is precisely the course pursued by the governing body in the case under consideration. The action of the governing body in passing such an ordinance is evidence of the good faith of the governing body in the matter because it insures the absolute abolition of the positions vacated by resolution of the governing body.

The right of the governing body to reduce the personnel of the police department is recognized by the legislature by the enactment of chapter 148 of the laws of 1933, page 299.

The ordinance and actions and resolutions of the municipal authorities under review will be affirmed, with costs.


author: Pee Cueiam.

text:
    NASH REFRIGERATION COMPANY, INCORPORATED, PLAINTIFF-RESPONDENT, v. CONSOLIDATED APPLIANCE COMPANY ET AL., DEFENDANTS-APPELLANTS.
    Argued May 2, 1934
    Decided October 16, 1934.

      Before Justices Lloyd, Case and Donges.
    For the appellant, Leonard J. Emmergliclc.

    For the respondent, Alexander Feller.

   Pee Cueiam.

Plaintiff had judgment against Consolidated Appliance Company and Enstice Brothers in the First District Court of Newark, in a suit on three notes made by Consolidated company to order of Enstice Brothers and endorsed by the latter to plaintiff. The notes were given for three refrigerators sold by plaintiff to appellant, the excess over $500 being waived. The state of case is very meagre, but, perhaps sufficient for a decision on the merits. Enstice Brothers appeal.

The trial judge said in the state of case settled for appeal: “The testimony as to the alleged sale on memorandum to the Consolidated Appliance Company, or that the plaintiff had any knowledge that Enstice Brothers were acting as distributors, was denied on behalf of the plaintiff, which claimed that the sale was a straight sale to Enstice Brothers and the Consolidated Appliance Company.

“It being my opinion that the testimony offered in behalf of the defendants was not sufficient to overcome the positive statements set forth in the documents in the case, * * * I found the fact to be that the notes were given as the purchase price of the three ice boxes in question * *

The two points argued are (1) that the evidence required a finding that the appellant’s endorsement created no legal liability to the respondent, and (3) the amount of the judgment is excessive.

1. From the state of the case, it appears that the plaintiff’s proof was that the notes were given in consideration of the sale by plaintiff to appellant of the three refrigerators. Appellant insisted it was distributor for plaintiff’s refrigerators and that it was not liable on the notes, inasmuch as it was acting for plaintiff in the transaction. The trial judge reached a contrary conclusion, and, on the state of the case, his conclusion was justified, in view of the denial by plaintiff’s proofs of ihe testimony on behalf of appellant.

2. The state of the case discloses that “the amount proved to be duo on the notes for principal and interest was $436.76, attorney’s fees in accordance with the contract in the notes was $65.50, totaling $502.26. The excess beyond $500 was waived.”

In the situation presented by the state of the ease, we conclude that the judgment must be affirmed, with costs.


author: Lawrence, C. 0. J.

text:
    REISEN LUMBER AND MILLWORK CORPORATION, A NEW JERSEY CORPORATION (CLAIMANT), PLAINTIFF, v. BEATRICE SCHNEIDERMAN, OWNER, AND DAVID SCHNEIDERMAN, BUILDER, DEFENDANTS.
    Decided April 23, 1934.
    Por the rule, David Schneiderman.

    Opposed, Philip Mandelbaum.

   Lawrence, C. 0. J.

This was a mechanics’ lien suit tried before the court and a jury. It resulted in a general verdict against the defendant David Schneiderman for $756.76, and specially against the building involved, with a directed verdict in favor of defendant Beatrice Schneiderman, the apparent legal owner of the land on which the building stands.

Defendant David Schneiderman took out the present rule to show cause and argued for a new trial on the ground that the verdict was irregular in so far as it attempted to fasten the debt as a lien on the building, since he had no estate in the land; and in any event, part of the debt related to materials sold and delivered before the filing of a notice of intention in the county clerk’s office, as required by statutory provision, and if plaintiff was entitled to a lien specially on the building, the amount thereof should not exceed $484.76, for the reason indicated.

At the trial, the factual situation, as disclosed by the evidence appears to have been that David Schneiderman contracted with plaintiff for the necessary materials for the erection of a bungalow on a lot of land at Mount Freedom, in Morris county. The materials contracted for with certain extras wore delivered to the land and used by Schneiderman in putting up the structure. After the building operation was under way, plaintiff discovered that the title to the land was in Beatrice Schneiderman, a sister of David. The latter, however, assured plaintiff that the material would be paid for and the deliveries were continued. Schneiderman gave his promissory notes as evidence of the contract price and paid on account before the notes fell due sums which appear to have been credited by plaintiff on the account for such of the materials as had been delivered prior to the filing of the notice of intention. Eventually, there remained due on the entire account the balance sought to be recovered, and plaintiff, through its representatives, claimed at the trial that this balance covered only such materials as had been delivered and not paid for after the notice of intention had been filed. The jury could have so found, under the evidence, and apparently did so. Defendant David Schneiderman did not in fact deny that the balance as claimed was due, but took the rather technical position that materials had been delivered before the filing of the notice of intention, and that the moneys paid by him should have been credited on account of materials delivered after such filing, whereupon, if a lien could be made to lay against the building, instead of the entire indebtedness, but $484.76 could be so specially returned as a lien if at all. It is sufficient to say that the right of plaintiff to credit the amounts paid to the account as it did was within its right, as no direction had been given by Schneiderman in that respect, and it is not perceived that the jury erred in its finding in that regard. Ho can take nothing of the point, in the circumstances.

So far as his raising the question as to the legal propriety of the special character of the verdict as against the building, it is suggested that he is not in a position to do so. He admitted at the trial that the title to the land was in his sister, Beatrice Schneiderman, and she so testified, alleging that she knew nothing about the transaction between plaintiff and her brother and did not in fact know that the building had been erected on the land; that she had not given her written consent to its erection and disclaimed all responsibility for it. Since no proof of a written consent was made, the court directed that a verdict be returned in her favor. Sec section 7 of the Mechanics5 Lien act, and Behr v. Interlaken Construction Co., 7 N. J. Mis. R. 743; 147 Atl. Rep. 499. She is not, consequently, concerned in the present rule to show cause. She appears, indeed, to have been so little interested as to state at the trial that a removal of the building would not be seriously objected to by her. However that may be, unless defendant Schneiderman really has an equitable interest in the land, the suggestion that he is not concerned, under the present rule to show cause, in raising the question, inasmuch as the legal title is in his sister, finds support in the evidence. If he has an equitable interest, then plaintiff may have a remedy in the Court of Chancery, and the special verdict should not be disturbed for that reason, that is to say, he should not be permitted to raise the question at this stage of the litigation. Since his sister appears to hold the legal title to the land on which the building is, she only could do so, but she is not a party to the rule. It will accordingly, be discharged.


author: Egan, V. C.

text:
    Stanley Rapczynski, complainant, v. Eagle Investment Company, a corporation, defendant.
    [Decided April 11th, 1934.]

      Mr. James L. McKeon, for the complainant, and for the defendants Edward Rapczynski, Anna Rapczynski and Edward Construction Company.

      Mr. Russel E. Greco, for the defendant.
   Egan, V. C.

The defendant, Eagle Investment Company, owns the following: “A certain tract or parcel of land located in the town of Kearny, county of Hudson, and State of Hew Jersey, being more particularly known as westerly half of lots Hos. 23 and 24, block 14 of Kearny Manor.”

On May 35tli, 1931, it entered into a written agreement with Edward Construction Company, a corporation of New Jersey, under the terms of which the said company was to erect upon said land for it a two-family house and a one-car block garage; upon the completion of the same, it, the Eagle Investment Company, would then assign, or convey, a one-half undivided interest in the said land to the said construction company. The building was erected and is know as No. 80 Highland avenue.

On July 18th, 1933, in consideration of one dollar, the Edward Construction Company transferred to complainant its interest in the contract. The complainant wants a one-half interest in the properly, but the Eagle Investment Company refuses to convey it to him, and he seeks by these proceedings to compel the observance of the said agreement. The investment company admits the execution of the agreement with the construction company, but in its amended answer alleges that the said agreement was abandoned, and that a prior agreement, dated December 1st, 1930, with Edward Rapczynsld, was the one under which the said building was erected and that, therefore, the said construction company’s assignee, the complainant, is not entitled to any interest in the said land or building.

The investment company also filed a counter-claim and made said Edward Rapczynsld and Anna Rapczynsld, his wife, and Edward Construction Company defendants. It says that on or about July 8th, 1931, Rapczynsld completed the building and became entitled to a deed for his one-half share in the premises, but it will not perform under the contract because it holds these following claims against Rapczynski: “a judgment obtained by Joseph Kulpa on July 3d, 1933, in the Hudson county circuit court against him in the sum of $1,059.93 damages, and $54.03 costs, which judgment on July 15th, 1933, was assigned to it; that on March 30th, 1933, Rapczynsld became, or was, indebted to one Anarsio Amabile in the sum of $337.71, for which he gave his promissory note dated March 30th, 1933, payable September 30th, 1933, which note, on or about July 15th, 1933, was endorsed over to it, and remains unpaid; that on June 1st, 1933, Rapczynski became indebted to Russel E. Greco in the sum of $288.74, which claim Greco assigned to it on October 11th, 1933;” and that upon the payment of these several amounts, it will convey a one-half undivided equal interest in the said lands and premises to Rapczynski, or his assigns. These claims became due approximately two years, or close to that, after the building was completed.

It appears that the Edward Construction Company was incorporated bjg and upon the advice of the said Greco, who was legal adviser to Rapczynski; he is also president and counsel of the defendant investment company; that upon its incorporation, Rapczynski was made its president, and Anthony C. Okuniewicz its secretary. Okuniewicz is also the secretary of the defendant investment company. Okuniewicz, testifying on behalf of the investment company, said that all payments for the labor and material used in the construction of the buildings were made by checks to the order of Rapczynski, and that the work of construction was started by Rapczynski, under his contract, in December, 1930.

Rapczynski testified that the work of construction was not done under his contract, hut under the contract of May 25th, 1931, with the construction company, and that the work, under it, began within a few days after the execution of the latter contract.

The investment company, in support of its contention, offered in evidence checks to the order of Rapczynski showing payments on July 8th, 1931, for the sum of $5,323.59, and, on the same day, one for $546.40. Okuniewicz testified that after the completion of the building and its rental, from the rents collected by him, after deducting expenses, he gave checks to the order of Rapczynski for bis share of the rents.

Okuniewicz, in explanation of the execution of the Edward Construction Company contract, testified, in effect, that the construction company was incorporated because Rapczynski had gone to Poland and there married, and that if the title, or a part of it, to the said premises became vested in him it would then be subject to Rapczynski’s wife’s dower interest. That condition, I gather, the officers of the investment company did not welcome and, to avoid it, the incorporation of the construction company followed. It is the direct result of their plan; it was their thought, and the corporation is the product of it. The reason for it continued to exist and does not appear to have ceased at any time. If Rapczynski’s marital status, actual or contemplated, prompted the investment company and its officers to enter into the agreement with the construction company, there does not appear to have been any subsequent change in it to have warranted an abandonment or repudiation of the agreement. I find no evidence of a rescission of the construction companjr agreement entered into some five months after the making of the Rapczynski contract.

I believe the actions of all the parties not only suggests, but compels, the inference that the building was erected under the construction company’s contract, and such conclusion, in my opinion, will not do violence either to the facts or the logic of the situation. My observation of all the testimony and the attitude and conduct of the several witnesses forces this decision. Why did the parties go through the formality of drawing and executing a second contract if the first one were to prevail? Ho reason appears to sustain such action. Riehl v. Riehl, 101 N. J. Eq. 15; 137 Atl. Rep. 787.

The fact that the checks to cover the building costs were made to the order of Rapczynski, individually, and not as president of the construction company, I do not consider significant, because the methods of business observed by all the parties to these proceedings were loose and not according to the best standards, a sort of “hit and miss” management. Harmony prevailed until the building was completed and the defendant investment company was called upon to convey a one-half interest in the premises. It hesitated; it waited, it delayed. Then when almost two years elapsed after the completion of the building, it seems to have scurried about and collected claims and judgments rendered against Rapczynski, and had them assigned to it, and sets up those claims as a justification for retaining the entire title. I do not believe its motives have been, in the least, altruistic. If Rapczynski can be made to appear interested in the title to the premises, then his interest would be affected by his debts held by the investment company. I believe that is the thought in the minds of the officers of the investment company, and I think it pervaded and biased their testimony.

Greco, defendant investment company’s president and counsel, and Okuniewicz, its secretary, and erstwhile secretary of the construction company, are responsible for the anomalous situation. Greco, trained in the law, took a leading part in the proceedings surrounding the transaction; likewise Okuniewicz, a realtor, educated, intelligent and wide awake; while Bapczynski, a foreigner, dull in manner, speaks English with evident difficulty, was, in my opinion, guided and controlled by the officers of the investment company—they made “the bed for him to lie in” and he meekly and confidently followed their directions. Equity does not tolerate a surreptitious advantage where there was a reposing of trust and confidence by one in the other. Forman v. Grant Lunch Corp., 113 N. J. Eq. 175; 166 Atl. Rep. 219.

The determining point is: Under what contract was the house built, Bapczynski’s or the Edward Construction Company’s? I believe it was the construction company’s.

The investment company contends that Stanley Bapczynski’s interest in the Edward Construction Company’s contract was voluntarily acquired and without payment of adequate, or any consideration. Complainant, called by the defendant investment company, testified that he paid $600 for the assignment, or interest, and there was other testimony to the effect that he had paid a valuable consideration. His purchase of the construction company’s interest was made under the supervision of his counsel, his solicitor in these proceedings. His testimony remains uncontradicted. The investment company having called the complainant as its witness is bound by his testimony. Carluccio v. Winter, 108 N. J. Eq. 174; 154 Atl. Rep. 427; Krafte v. Belfus, 114 N. J. Eq. 207: 168 Atl. Rep. 755.

The fact that the Edward Construction Company was incorporated and organized by counsel for the defendant, and its secretary was also the secretary of the defendant, Eagle Investment Company, and the further fact that both agreements were prepared and drawn by the same counsel, is significant and cannot be overlooked.- The collection and acquisition of the several claims against Rapczynski by the defendant company may be evidence of business acumen, but it smacks of sharp practice and creates a bad taste. Of course, if the building were erected by Rapczynski, these claims undoubtedly would be a lien against his interest, if any, in the premises.

I am of the opinion that the conveyance or assignment by the Edward Construction Company to the complainant, Stanley Rapczynski, has not been shown to have been fraudulent, and that his interest in the contract is based upon a good and adeqate consideration.

There is no evidence whatever to indicate that at the time of the assignment of the contract by the Edward Construction Company to the complainant that the said company thereby became or was insolvent. Conway v. Raphel, 102 N. J. Eq. 531; 141 Atl. Rep. 804; Kearny Plumbing Supply Co. v. Gland, 105 N. J. Eq. 723; 149 Atl. Rep. 530.

I shall advise a decree requiring the defendant, the Eagle Investment Company, to specifically perform the terms of the said agreement entered into by it with the Edward Construction Company, and deliver a deed for a one-half undivided interest in said premises to the complainant.


author: Pee Ctteiam.

text:
    ALBERT DATZ, PETITIONER-RESPONDENT, v. UNION HILL HUDSON CORPORATION AND OCEAN ACCIDENT AND GUARANTEE CORPORATION, LIMITED, RESPONDENTS; OCEAN ACCIDENT AND GUARANTEE CORPORATION, LIMITED, PROSECUTOR.
    Submitted May 11, 1934
    Decided November 2, 1934.
    Before Justices Teenohaed, JIehek and Pebskie.
    Pot the petitioner-respondent, Andrew 0. Wittreich.

    Por the prosecutor, Wall, Haight, Carey & Hartpence.

   Pee Ctteiam.

Albert Datz (hereinafter called the “workman”) had an award against the Union Hill Hudson Corporation (hereinafter called the “assured”) in the workmen’s compensation bureau, based on the findings of the deputy commissioner. The deputy commissioner found that on December loth, 1932, the workman sustained injuries arising out of, and in the course of his employment with the assured. The judgment entered upon the award was subsequently docketed in the Common Pleas Court of Hudson county. On August 3d, 1933, that court issued an order to show cause, based on the prayer of a petition annexed to its application, why the Ocean Accident and Guarantee Corporation (hereinafter called the “carrier”) should not pay to the workman the moneys due and owing under the award and judgment docketed; and after hearing the court so ordered.

It is stated in the brief of the prosecutor (carrier) that “the only question in this case is whether or not the voluntary surrender of the policy for cancellation by the assured, Union Rill Hudson Corporation, through its broker, was, in fact, a cancellation of liability and termination of coverage as of November 28th, 1982.”

We think that the carrier’s contention that there was such a voluntary surrender and that it had the effect of a cancellation of liability, is without merit.

There was no competent and satisfactory evidence of a “voluntary surrender of the policy for cancellation by the assured.” True, there was proof of a notice of cancellation given by the carrier in December, the effective date of which will be hereinafter stated.

The policy’s language in the instant case provided how it could be canceled and how only it could be canceled. It seems plain that until cancellation was effected under the terms of its provisions, the policy remained in full force and operation. By its terms the policy covered from September 1st, 1932, to September 1st, 1933.

Section B of the policy provides:

“This policy may be canceled at any time by either of the parties upon written notice to the other party stating when, not less than ten days thereafter, cancellation shall be effective. The effective date of such cancellation shall then be the end of the policy period. The law of any state, in which this policy applies, which requires that notice of cancellation shall be given to any board, commission or other state agency is hereby made a part of this policy and cancellation in such state shall not be effective except in compliance with such law.”

The law of the State of New Jersey provides:

“No contract of insurance issued by a stock company or mutual association against liability arising under the said Workmen’s Compensation act shall be canceled within the time limited in such contract after its expiration, until at le,ast ten days after notice of cancellation of such contract on a date specified in such notice shall be filed in the office of the commissioner of banking and insurance, and also served on the employers. Such notice shall be served on the employer by delivering it to him or sending it by registered letter, addressed to the employer at his or its last known place of business; provided, that if the employer be a partnership, then such notice may be so given to any of the partners, and if the employer be a corporation, then the notice may be given to the agent or any officer of the corporation upon whom legal process may be served.” Pamph. L. 1917, ch. 178, p. 525.

It is plain that the liability imposed upon the “carrier” falls into two parts: that which it voluntarily undertook under the terms of its policy contract, and that which was then and there imposed upon it by law. This involves the necessity of giving written notice by registered letter to the other party, and stating when, and not less than ten days thereafter, cancellation shall be effective. This notice was not given until after December 15th, the date upon which liability arose. The uncontradicted proof is that the “assured” received such notice through the “mails” (but not “registered mails”) cancelling the policy as of twelve-one noon on December 28th, 1932. Hence the policy was in full force and effect until twelve-one noon on that date, looking at the matter in the light most favorable to the “carrier.” Since the accident which gave rise to the claim upon which its liability becomes operative occurred prior to that date, the policy cannot be avoided upon the theory of cancellation.

The rule is well settled that where a valid contract of insurance has been effectuated, the company cannot cancel the policy without consent of insured, except where it may bo permitted to do so by statute, or by a reservation in the policy itself. The principle that underlies this rule is that which precludes a party from destroying existing contract rights except upon a strict observance of the reservations contained in the contract itself, or some statute, or by agreement or waiver of his rights by the other party. 2 Joyce Law of Insurance (2d ed.), §§ 1660-1670.

In view of the only question presented (and we have considered no other question), it seems clear that the determination and judgment brought up for review must be affirmed, with costs, and it is so ordered.


author: Smith, C. C. J.

text:
    THE WORKINGMEN’S BUILDING AND LOAN ASSOCIATION OF THE CITY OF NEWARK v. THERESE HUNGER AND RICHARD HUNGER, HER HUSBAND.
    Decided November 7, 1934.
    For the defendants, Ernest F. Masini.

    For the plaintiff, Lowy & Lowy (by Herman Waldman).

   Smith, C. C. J.

(Orally.) This is a motion to .strike the complaint. The basis of the motion is that the plaintiff does not allege in its complaint a compliance with the statute requiring the filing of a lis pendens prior to the institution of suit.

The provisions of section 51 of the act on mortgages, providing for the filing of lis pendens prior to commencing action .on the bond for deficiency, in my opinion cannot be waived by the defendant, as the plaintiff in this action contends was done.

Where a lis pendens has been actually filed in the proper time and the complaint fails to aver filing of notice, the complaint may be amended, it seems to me, to aver such filing, provided, of course, it has been filed. I do not believe that a lis pendens can now be filed to amend the defect in this complaint, although it may be that such can be done, because it may be that the failure to allege such filing does not render the complaint defective as stating no cause for action. The question is whether the plaintiff has failed to comply with the statutory condition, and not whether he has pleaded such compliance. It is for the defendants to set up such non-compliance. South Broad Building and Loan Association v. Brunetto, 112 N. J. L. 79; 169 Atl. Rep. 870.

While this case considers the matter as an affirmative defense, it does not npset the rulings of previous cases that the filing of the notice is essential.

This statutory provision must be strictly complied with, and the filing of the notice of lis pendens after the institution of an action is ineffectual. This is so, even in the face of an order permitting the filing of such notice nunc pro tunc. Such order is invalid. Louis Csipo, Inc., v. Nagy (Court of Errors and Appeals), 111 N. J. L. 469; 168 Atl. Rep. 610; Mutual Savings Fund Harmonia v. Gunne (Court of Errors and Appeals), 110 N. J. L. 41; 164 Atl. Rep. 43.

Now, in the case of Neu v. Rogge, 88 N. J. L. 335; 95 Atl. Rep. 632, there is this statement: “The clear legislative intent was, by a public record, to make secure the title to a purchaser of mortgaged lands which had been foreclosed and failed to realize, on sale thereof, the amount secured by the bond and mortgage, and which were subject to redemption by the person within six months after the entry of judgment against him for the deficiency on the bond.

“Thus it appears that upon the entry of judgment for the deficiency on the bond such judgment automatically voids the foreclosure and sale and gives the judgment debtor the opportunity to redeem by paying in full the amount for which the decree was rendered, &c., provided he brings suit for redemption within six months after the entry of such judgment against him.”

Such a situation made the titles to mortgaged lands purchased under foreclosure sales uncertain and precarious, for under the act of 1880 there was nothing to prevent an action from being commenced and a judgment entered in any one of the counties of this state or in a foreign jurisdiction. Hence, a prospective purchaser might find nothing on record affecting the property in the county where it is situate, and thus such purchaser, though he exercised the greatest diligence and caution, might be led into the purchase of a defeasible title. This is the main evil which the act of 1907 intended to remedy.

Counsel for the plaintiff urges further that since no prospective purchaser is affected by the judgment in this ease, and the defendants do not deny the debt that, therefore, the defendants suffer no wrong of which they can complain.

I think a defendant not only suffers a wrong but the public also when a judgment is entered against a defendant contrary to the express mandate of the legislature. The legislature expressly forbids the entry of a judgment in a case like the present, unless a lis pendens was filed prior to the bringing of the action. To my mind the statute is mandatory in this respect. As has been pointed out, it declares a public policy for the conservation and protection of the public records relating to the title to lands.

Therefore, the statute being for the protection of the public and not merely for the protection of the defendants, I conclude it cannot be waived by them, and I will grant the motion to strike out the complaint.


author: Pur Curiam.

text:
    IRENE PIERCE TAYLOR, PIERCE TAYLOR AND MARY CAMPBELL, PLAINTIFFS-RESPONDENTS, v. ISADORE RABINOWITZ, DEFENDANT-APPELLANT.
    Submitted May term, 1934
    Decided November 9, 1934.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Por the plaintiffs-respondents, Bassin & Bassin (Harry Weltcheh, of counsel).
    Por the defendant-appellant, Joseph C. Paul (George L. Burton, of counsel).
   Pur Curiam.

The plaintiffs below recovered a judgment in the Middle-sex County Court of Common Pleas for injuries sustained by them when they, as pedestrians crossing the highway, were struck by an automobile owned and driven by the defendant.

The sole contention of the defendant-appellant is that the charge of the trial court to the jury contained reversible error. The part of the charge challenged is as follows: “Was the defendant negligent in the operation of his car and did that negligence contribute to the accident.” And again, “but if you should find that his negligence did contribute to the injury, then you will go to the second question which is important in the case, namely, were the two plaintiffs also guilty of contributory negligence, did their own negligence contribute to the accident.” And again, “* * * even though a defendant in a case is guilty of negligence, and even though his negligence contributes to the injury, yet if the plaintiff is also negligent, and the plaintiff’s negligence contributes to the accident, then, of course, the plaintiff cannot recover.”

This charge to the jury falls short of the legal requirement under our cases, is erroneous, and contains, in our judgment, harmful error.

In tort actions, predicated upon the defendant’s negligence, it is not sufficient to instruct the jury that they must find that the defendant’s negligence “contributed” to the injury.. The essentials are that the defendant’s negligence, if found to exist, must be determined by the jury to have been the proximate cause of the injury.

The respondent says in his brief that the objection to the charge, which is now made the ground of appeal, was not called to the attention of the trial judge. Whether that is so or not we have no way of knowing. The exception appears in the record without objection on respondent’s part as to the time or manner of entering such exception. The parties are bound by the record and so is this court.

The judgment will be reversed and a venire de novo awarded.


author: Brogan, Chief Justice.

text:
    BERNARD COOK, PLAINTIFF-RESPONDENT, v. MAX BERG, DEFENDANT-APPELLANT.
    Submitted May term, 1934
    Decided November 9, 1934.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Por the plaintiff-respondent, George B. Walsh.

    Por the defendant-appellant, Collins & Corbin (Edward A. MarJeley and Patrióle F. McDeviti, of counsel).
   The opinion of the court was delivered by

Brogan, Chief Justice.

The plaintiff below recovered a judgment for personal injuries in the Common Pleas Court of Union county. While crossing a public highway in Elizabeth, New Jersey, he was struck by a taxicab owned and operated by the defendant.. The sole ground of appeal is that the trial court should either have granted the defendant’s motion for nonsuit or his motion for a directed verdict on the ground that the plaintiff, as a matter of law, was guilty of contributory negligence.

It appears that the plaintiff was crossing north Broad street from the west to the east side and was using the crosswalk at the intersection of Mary street. There are two sets of car tracks on that street, running generally north and south, and plaintiff had reached the most easterly rail at the time of the happening which would indicate, according to the testimony, that he had got across about two-thirds of the way.

Plaintiff’s testimony was that he hurried over the crosswalk, saw a bus about one hundred and twenty-five feet south of him, which would be on his right, coming towards him and that it seemed to be slowing up; that he cautiously watched the approach of the bus and that when it was about twenty-five feet away defendant’s taxicab swung from behind the bus and came on at a fast rate of speed, estimated by witnesses as ranging from twenty-five to forty miles an hour. The defendant produced testimony which, if believed, would make out the plaintiff to have been a careless “jay-walker.” Disinterested witnesses, on the other hand, testified to facts which corroborated plaintiff’s description of the happening. In this posture of affairs it was not error to have denied both the motions for nonsuit and for direction of verdict on the score of contributory negligence of the plaintiff. That question was for the jury. Overend v. Kiernan, 5 N. J. Mis. R. 704; 137 Atl. Rep. 881; Hammersma v. Smith, 110 N. J. L. 523; 165 Atl. Rep. 555; Matinowski v. Jersey City and Lyndhurst Bus Co., 112 N. J. L. 103; 169 Atl. Rep. 636.

The judgment is affirmed, with costs.


text:
    W. R. O’BRIEN, INCORPORATED, A CORPORATION, PLAINTIFF-APPELLEE, v. VEHICLE UNDERWRITING AGENCY CORPORATION, A CORPORATION, DEFENDANT APPELLANT.
    Submitted May term, 1934
    Decided November 16, 1934.

      Before Brogan, Chief Justice, and Justices Parker and Bobine.
    Eor the plaintiff-appellee, Harold J. Cavanaugh (James F. X. O’Brien, of counsel).
    Eor the defendant-appellant, Gechtman & Beirne (William Fogel, of counsel).
   Per Curiam.

The plaintiff below was awarded a verdict by the trial judge, who sat without a jury, in the Essex County Circuit Court. Judgment was entered in its favor and defendant appeals.

The case arises out of an oral agreement made between the plaintiff, an insurance broker, and the defendant, insurance agency, wherein it was agreed that the defendant corporation would allow a fifteen per cent, commission on any and all bus or taxicab insurance business underwritten by the defendant through the plaintiff, the further agreement being that the plaintiff was free to place any or all bus or taxicab, insurance business with any other insurance company where lower rates might be obtained than those offered by the defendant corporation.

The complaint alleges that between the months of April and August, 1933, the plaintiff and the defendant carried on this arrangement, many policies of insurance having been written, but that in August, 1933, the defendant insisted that the plaintiff corporation send its entire bus and taxicab insurance business to the defendant company, informing the plaintiff that it would cancel all the policies of plaintiff’s customers unless this was done. The complaint further alleges that the plaintiff refused to accede to this demand and that the defendant thereupon, and without just cause, canceled all policies written by the plaintiff corportaion with the defendant corporation and sent out representatives of its own to canvass this business and succeeded in getting a substantial part thereof which the defendant corporation proceeded to rewrite through its own agents and employes. The answer of the defendant denied all these allegations and counter-claimed for some unpaid premiums and also for two unpaid checks.

The trial court in the main found that the allegations of the complaint were supported by the evidence, allowed the defendant certain credits, dismissed the counter-claim, and gave judgment for the plaintiff.

The defendant sets out seventeen grounds for reversal which are argued under seven headings. The first is that the trial court erred in denying defendant’s motion for nonsuit. It is apparent that this is essentially a fact case. The defendant’s argument is that in each of the policies there was a cancellation clause and that the defendant was entitled to cancel the policies. Obviously this is true but here the cancellation is made the ground of complaint and it was contended and proved that the policies were canceled and for the purpose of rewriting the insurance without paying a commission to the plaintiff, and since there was evidence to support that charge and the court, sitting without a jury, believed it, it was proper to deny the motion for nonsuit.

The other argument made under this point is that there should have been a nonsuit because defendant should not be compelled to pay commissions on policies where no premiums-were received. As to this, there is evidence, which the court believed, that checks for such premiums were tendered and refused, and the court found that all of this apparently was in line with the defendant’s plan to deprive the plaintiff of the benefit of its contract.

The second point is that a verdict should have been directed in favor of the defendant. There is no merit whatever in this contention. These cancellations were not effected in good faith, as the court found, hence the commissions-were due.

The third point is that the court committed error in awarding judgment to the plaintiff on the theory that the plaintiff was a broker. The argument made is that the plaintiff was either a broker or an agent. The court found the plaintiff not to be an agent of the defendant. Therefore, plaintiff was the broker. The status ascribed by the court to the plaintiff is immaterial in view of the fact that no matter what the status of the plaintiff, the court found as a fact that the parties had agreed that all business insurance of this character, obtained by the plaintiff and placed with the defendant, was subject to the commission arrangement whereby plaintiff was to receive fifteen per cent, of the premium.

The fourth and fifth points present nothing for us to review. The questions there raised should have been presented on rule to show cause. The statement that the trial court abused its discretion has no foundation.

The next point argued is that the trial court erred in sustaining objections to questions propounded to a defense witness. The questions asked had for their object the proving of the custom. The questions were properly excluded. The authorities upon which the appellant relies have no application here. It is permissible to prove custom where a contract is ambiguous. Here there was no ambiguity.

The last point made is that the judgment of the trial court opens the door to fraud. A ground of appeal must challenge the action of the trial court. This point does not do so. It does not charge judicial error. Klein v. Shryer, 106 N. J. L. 432; 150 Atl. Rep. 321; Booth v. Keegan, 108 N. J. L. 538; 159 Atl. Rep. 402.

The judgment is affirmed, with costs.


author: Egan, Y. C.

text:
    Restful Slipper Company, Incorporated, a corporation, complainant, v. United Shoe and Leather Union et al., defendants
    [Decided November 23d, 1934.]

      Messrs. Gross & Gross, for the complainant.

      Mr. Abraham J. Isserman, for the defendants.
   Egan, Y. C.

This matter comes before me on a motion to strike the counter-claim filed by the defendants herein upon these grounds: “1. The said counter-claim does not set forth facts sufficient to constitute a cause of action, in behalf of these counter-claimants, cognizable in equity. 2. That these defendants have no status to assert the cause of action set out in the said counter-claim.”

The counter-claim has been amended as follows:

“35&—Prior to the commission of the alleged unlawful acts of the complainant, a duly certified copy of the aforesaid Code of Pair Competition for the Boot and Shoe Industry was filed with the Governor of the State of Hew Jersey, pursuant to chapter 372 of Hew Jersey P. L. 1933 and in accordance with the provisions thereof.”

Paragraph 36 of the counter-claim in effect alleges that the-complainant “engages in intrastate commerce in the State of New Jersey.” In the face of this allegation, the counter-claimants seek to enjoin the complainant from continuing violating “the code of fair competition” or section 7-A of the National Industrial Recovery act. The defendants' counter-claim cannot stand on either ground. Even though the complainant violated section 7-A of the National Industrial Recovery act these defendants are without power to institute proceedings in equity to prevent and restrain such violations. Under 15 U. S. C. A., section 703 (c) the power to prevent and restrain violations, such as are charged in the counter-claim, is invested in the district court of the United States, and proceedings must be instituted by the district attorneys of the United States in their respective districts under the direction of the attorney-general. The provision which governs reads as follows:

(c) “The several district courts of the United States are hereby-invested with jurisdiction to prevent and restrain violations of any code of fair competition approved under this chapter; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney-General, to institute proceedings in equity to prevent and restrain such violations.”

There are many decisions of the United States district courts throughout the nation which have denied the right of any person or persons, other than the attorney-general or United States district attorneys, to institute proceedings to restrain violations of the N. I. R. A. upon the ground that the statutory remedy is available only to the designated officer. Purvis et al. v. Bazemore, 5 Fed. Supp. 230; Stanley v. Peabody Coal Co., Ibid. 612; Western Powder Manufacturing Co. v. Interstate Coal Co., Ibid. 619; Progressive Miners of America, Local Union No. 109, et al. v. Peabody Coal Co. et al., 7 Fed. Supp. 340.

The defendants can find no support for their stand under the New Jersey Recovery act (P. L. 1933 ch. 372 p. 1016), because they have failed to allege a compliance with section 3-B thereof. This last mentioned section, in effect, provides that where a code of fair competition shall affect intrastate •commerce, application must first be made to the governor for his approval of the code; and it further provides that the .governor may grant his approval if he finds no inequitable restraints are imposed; and, also, that the code is consistent with any like code, approved or prescribed by the president; .and that such code is not designed to promote monopolies.

There is no allegation or assertion in the counter-claim that the governor ever approved any code of fair competition in intrastate commerce in this state for the boot and shoe manufacturing industry.

Paragraph 36 of the counter-claim reads as follows:

“Complainant, in the operation of the above mentioned .Jersey City plant, engages in intrastate commerce in the .State of New Jersey.”

Notwithstanding this allegation of intrastate commerce, the defendants also invoke the aid of the federal statute. It is not necessary to comment upon the weakness of the defendants’ position because they have not observed the mandate of •either the federal or state act. The above quotation from 15 U. S. C. A., § 703 (e), and the decisions of the federal •courts above quoted, are dispositive of the defendants’ right.

I shall advise an order striking the counter-claim upon the ground that the defendants are without power to invoke the provisions of section 7-A of the N. I. R. A., and also for the further reason that the provisions of the State Eecovery act not having been complied with, the defendants cannot therefore avail themselves of the provisions of that statute.


text:
    MARY COSTA, RELATOR, v. C. FRED DANDROW, BUILDING INSPECTOR OF THE TOWNSHIP OF TEANECK, AND TOWNSHIP OF TEANECK. A MUNICIPAL CORPORATION, RESPONDENTS.
    Submitted May term, 1934
    Decided November 9, 1934.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the relator, Vincent M. Rotolo.

    For the respondents, DeBaun Westervelt (Warner W. Westervelt, Jr., of counsel).
   Per Curiam.

This case comes before us on return to an alternative writ of mandamus as to why a building permit should not be issued to the relator to erect a building in the borough of Teaneck.

The facts have been stipulated, and they are briefly as follows:

Relator owns a tract of land at the southwest corner of Queen Anne road and Highwood street in Teaneck, New Jersey. An old building stood on this plot, and the plan was to remove it and substitute in its place a two and one-half-story dwelling with stores on the ground floor, living apartments above, and a three-car garage in the rear. Queen-Anne road, running north and south, is zoned for business. Highwood street, running westerly from Queen Anne road, is a block long and is zoned for residential purposes. The-old building on the tract was removed; plans and specifications were filed with the building inspector showing the intended new structure; and application was made for a building permit which was accompanied by a payment of the requisite fee for such permit. The building inspector declined the issue of the permit and suggested that an appeal be taken to the board of adjustment of the township because the zoning ordinance provided for a setback of fifteen feet on Ilighwood street.

Therefore, on August 7th, 1931, the property owner filed an appeal with the board of adjustment. Necessary requirements as to notice of such public hearing were observed. The result of the meeting was that the board determined that the “appeal should be allowed” so far as the main building was concerned, but that the garage portion of the structure be set back two feet from the building line on High-wood street.

The contractor, although no permit was issued, excavated the cellar and erected foundation walls. The work was stopped by the building inspector, who directed the contractor to proceed no further until “further objections to the erection of the building had been removed.”

On October 16th, 1931, the building inspector made out the permit for the structure in question but did not deliver same because on October 17th an objection was raised to the action of the board of adjustment by various property owners. This resulted in a new application being made on March 16th. 1932, to the board of adjustment, which was in the nature of a rehearing. Proper notice was given, and on April Both, 1932, a meeting of the board of adjustment was held, to which were invited the members of the town council of .the municipality, where the matter was discussed. The members of the town council wanted legal advice on the matter under consideration and this was given by letter at a later date. At any rate, it appears from the stipulation that on June 1st, 1932, the board of adjustment met and confirmed its former action of September 2d, 1931, wherein they determined that “the appeal should be allowed.” On June 13th, 1932, the board of adjustment notified the township manager of its action, and on June 23d, 1932, in reply to that notification, the township manager inquired of the board of adjustment whether he was to understand that the board of adjustment recommended favorably to the council that an exception be made to the zoning ordinance in favor of the relator to the extent that she be permitted to build out to the corner of Highwood street. So far as the record shows, no answer was made to this letter by the board of adjustment.

It is also stipulated that the building inspector has never received any authority or instruction in regard to the issuance of the permit.

In this posture- of affairs the fact that the applicant for the permit, the relator here, changed her position and spent money upon the excavation and the building of the foundation walls is of no avail. The cases relied upon, viz., Freeman v. Hague, 106 N. J. L. 137; 147 Atl. Rep. 553; Atlantic Broadcasting Co. v. Wayne Township, 109 N. J. L. 442; 162 Atl. Rep. 631, are not helpful. The old building was not removed because of any permit issued or promised for a new building by the building inspector. There was no cancellation or rescisión of a permit lawfully issued such as to bring the facts in this case within the doctrine laid down by the cases above mentioned. The destruction of the old building and the erection of the new are not stated to have been interdependent. The relator relies upon the provisions of chapter 274. Pamph. L. 1928, § 9, subsections 3 and 4. Section 9 of the statute embraces the grant of power to, and outlines the jurisdiction of, the board of adjustment. Subsection 3, supra, grants the board of adjustment power to authorize upon appeal in specific cases, such variance from the terms of the ordinance as will not be contrary to public interest where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done, &c. Section 4 unquestionably empowers the board of adjustment to.recommend in writing to the governing body exceptions to the zoning ordinance in specific cases which according to the statute, the governing body may by resolution approve or disapprove. Now in this matter no recommendations are made by the adjustment board and consequently no duty devolved upon the administrative officer in charge of granting permits to forthwith issue permit for such structure or use. The stipulation shows that the secretary of the adjustment board was instructed to notify the township manager by letter stating their views in this case. Just what the letter stated does not appear from the record. However, the second paragraph of subsection 4 reads as follows:

“In exercising the above mentioned powers, such board of adjustment may, in conformity with the provisions of this act, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and make such order, requirement, decision or determination as ought to be made, and to that end have all the powers of the administrative officer from whom the appeal is talcen."

The board of adjustment apparently never issued the permit although under the language of the statute just mentioned it had the power to do so. The alternative mandamus in this case is d irected to the building inspector of the municipality and the township of Teaneck, the municipal corporation. By paragraph 19 of the stipulation of facts in the state of the case it appears that the building inspector never received any authority or instruction in regard to the issuance of the permit, consequently as to him the writ must fail. • As far as the township is concerned, it does not appear from the record that any recommendations were made by the board of adjustment to the governing body of the municipality regarding exceptions to its zoning ordinance, but even if there was such recommendation, under paragraph 9, subsection 4, the governing body would be free to use its own judgment as to whether or not to adopt or reject in whole or in part the recommendations so made. These are the only two parties respondent to this writ. Members of the adjustment board are not joined as parties. The peremptory writ therefore cannot go as to these two respondents.

The application therefore fails and the alternative mandamus will be dismissed.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    THEODORE SKRATT, PLAINTIFF, v. PRIMO CARNERA, DEFENDANT.
    Decided November 24, 1934.
    For the applying creditor, Adrian Bonnelly, Marcus E. Donnelly.

    For the defendant, John J. Treacy.

   Brown, C. C. J.

The defendant moves to vacate an order heretofore entered permitting one, Bonnelly, to file as applying creditor an alleged claim against the defendant and secondly that the claim of Bonnelly is not liquidated and therefore not cognizable before this court. From the proofs it appears that Adrian Bonnelly, a member of the bar of the State of Pennsylvania, performed legal services for the defendant, Camera. The services were of a miscellaneous character and evidently the charges made therefor were not-ascertained by agreement. The affiant, Bonnelly, alleges that the charge and reasonable value of such services was $2,500. Bonnelly, in March of 1931, undertook to collect his claim against the defendant, Camera, by issuing an attachment out of a court of the State of Pennsylvania against property alleged to be owned by Camera and located in that state. The attachment resulted in a judgment in favor of Bonnelly against Camera for the sum of $3,113.50. It appears that Camera did not enter an appearance in the Pennsylvania court and that he was a non-resident of that state when the judgment under the attachment was entered. The plaintiff, Skratt, in the month of June, 1934, obtained a writ of attachment out of this court and attached the rights and interest •of the defendant in moneys alleged to be on deposit by him in a bank in Hudson county. After those moneys were attached under the writ last mentioned Bonnelly applied to this court for an order permitting him to appear as an applying creditor for the purpose of having satisfied his judgment. On an ex parte application made by Bonnelly for a rule to be admitted as an applying creditor, Bonnelly stated that the defendant was indebted to him for a sum, stating the amount. The proceeding of Bonnelly against Camera in the State of Pennsylvania was a proceeding in rem and the judgment •entered in that proceeding was not a personal judgment but affected only property belonging to the defendant located in the State of Pennsylvania and which was the subject-matter of the attachment. The judgment in the State of Pennsylvania has no binding force upon the defendant other than to affect the property that was attached. Pennoyer v. Neff, 95 U. S. 714. There are two propositions that seem to be clearly established where a proceeding in attachment results in a judgment. One is that the judgment of the court though in form a personal judgment against the defendant has no effect beyond the,property attached in that suit. No general execution can be issued for any balance unpaid after the attached property is exhausted and no suit can be maintained on such a judgment in the same court or in any other court nor can the judgment be used as evidence in any proceeding not affecting the attached property. Second, the court in such a suit cannot proceed unless the officer finds some property of the defendant on which to levy the writ of attachment. Freeman v. Alderson, 119 U. S. 185. In the case of Schenck v. Griffin, 38 N. J. L. (at p. 465), it was held that no action can be brought on a judgment recovered •on an attachment in another state and that in an action on the original demand a judgment in attachment is not competent as prima facie evidence of the indebtedness. A judgment in attachment obtained by Bonnelly against the defendant, Camera, in the State of Pennsylvania has no binding effect upon the defendant in this state. In this state a writ of attachment cannot be issued where the damages are unliquidated. Hackscher v. Trotter, 48 Id. 419; 5 Atl. Rep. 581; Robinson v. Mellon, 2 N. J. Mis. R. 1184; 126 Atl. Rep. 863. Section 6 of the Attachment act (1 Comp. Stat. 1910, p. 136; Pamph. L. 1901, p. 158) provides:

“Any creditor of the defendant, whether his debt be due or not, upon filing with the clerk an affidavit made by himself or his agent that the defendant owes to him a debt, stating the amount, may enter in the minutes of the court at any time, as of course, a rule admitting him as an applying creditor under the attachment.”

If there is excluded from the affidavit of the applying creditor the reference to the judgment obtained in the State-of Pennsylvania there remains in his affidavit proof in effect, that the defendant is indebted to him for a reasonable sum for services rendered. The claim is not a liquidated claim. The statute requires the applying creditor to state the amount, of his claim. In the case of Smith v. Warden, 35 N. J. L. 346 (at p. 350), it was held that the applying creditor is only required to make and file an affidavit that the defendant in attachment owes him “a certain sum,” while section 6 of the Attachment act (1901), permits the applying creditor to file his debt, “whether his debt be due or not.” Considering the language used in the case of Smith v. Warden, supra, at-first glance it would appear that the phrase “a certain sum” means that the claim should be liquidated. A reference to-the Attachment act from its early enactment in this state and the amendments thereto and supplements thereof leads-to the conclusion that at the time the opinion was rendered in the Smith case the language under the Attachment act' concerning applying creditors was different from the Attachment act that effects this proceeding. According to the case of Hanness v. Smith (1848), 21 Id. 497, in construing the-Attachment act then in effect it was held:

“There is nothing in the statute which limits the judgment to the amount of the claim filed nor indeed does it require the creditor to specify or even file the amount of his-claim * * *. By the twenty-fifth section of the Attachment act, B. S. 53, the auditors are directed to audit and adjust the demands of the plaintiff and applying creditors, and to ascertain the sums due them respectively.”

In the year 1854 a supplement was enacted to the Attachment act providing (laws of 1109-1868, page 45, section 2) :

“2. It shall be lawful for any creditor or creditors of any defendant in attachment, upon filing with the clerk an affidavit that the defendant or defendants in attachment owes unto him or them a certain sum, to be therein specified, which affidavit shall be made by such creditor or his agent, to enter at any time a rule in the minutes of the court out of which a writ of attachment may have been issued, admitting such creditor or creditors as creditor or creditors under such attachment, and which said rule shall have the same force and effect as though the same had been entered in open court.”

This supplement was in effect when the opinion in Smith v. Warden was handed down. The court in that case evidently referred to the very language of the statute when it stated that an applying creditor should file an affidavit declaring that “a certain sum” was due to him. The Attachment act of 190.1, section 6, page 160, does not contain this language as to the sum being certain. This act provides in effect that any creditor whether his debt is due or not may file an affidavit that the defendant owes him a debt “stating the amount” and thereupon may enter a rule in the minutes of the court admitting the creditor as an applying creditor. Generally an attachment suit is considered a harsh remedy. In many jurisdictions an attaching creditor is regarded with less favor than he formerly was when an attachment of a debtor’s property was the only mode of compelling an appropriation of it to the payment of his debts. This is particularly true in view of the fact that an attaching creditor gains a preference over other creditors. It is the policy of the law in very many cases, especially where there is insolvency, to favor an equal distribution of the effects of a debtor among all of his creditors. It is for this reason that an aftaching creditor was held to comply strictly with the Attachment act. This same reasoning does not apply in the case-of an applying creditor. He is in the nature of an intervenor. He acts on the principle that the goods of the defendant are in legal custody and are for the benefit of all the creditors-of the defendant. 1 Shinn on Attachment 743, § 402. This-principle can well be applied to the 1901 Attachment act,, that is to say, an apptying creditor receives no preference and is entitled to his pro rata share together with other applying-creditors of the residue of the moneys of the defendant after the payment of the attaching creditor’s claim. The applying-creditor under our procedure is required to prove his claim so that even though the amount is unliquidated all that he-can recover is the amount that is due him. Where the Attachment act of 1901 directs that any creditor of the defendant may be admitted as an applying creditor it means any creditor whether his claim is liquidated or unliquidated may become such and all that such creditor is required to do is tosíate that a debt is owing to him, stating the amount. This-does not mean a liquidated amount.

The motion to vacate the order heretofore admitting Bonnelly as an applying creditor will be denied.


author: Pee Cubiam.

text:
    BERTHA FALK AND THEODORE FALK, PLAINTIFFS-APPELLEES, v. STANLEY FABIAN CORPORATION OF DELAWARE, DEFENDANT-APPELLANT.
    Submitted May term, 1934
    Decided November 16, 1934.
    Before Bbogan, CiiiEr Justice, and Justices Pabkeb and Bodine.
    For the plaintiffs-appellees, Nathan S. Goldman (John W. McGeehan, Jr., of counsel).
    For the defendant-appellant, Goult, Satz & Tomlinson (Joseph Goult, of counsel).
   Pee Cubiam.

A judgment was entered in favor of the plaintiffs below for personal injuries and the defendant appeals.

It appears that Bertha Falk, accompanied by her daughter, attended a moving picture theatre, owned and managed by the defendant, and that in leaving her seat in the theatre she fell down the stairs.

The error assigned on this appeal is the denial by the trial court of motions for nonsuit and for direction of verdict for the defendant. No testimony was offered by the defendant on the merits of the controversy.

Tn disposing of motions of this character the court must regard the plaintiff’s testimony in its more favorable light, must take as true all evidence which supports the view of the party against whom the motions are made, as well as give the plaintiff the benefit of all legitimate inferences that may be drawn from the testimony. The evidence for the plaintiff, under these rules, supports a finding that on leaving the seat in the theatre, which was in what plaintiff calls the “upstairs” part of the house, she reached the aisle used for ingress and egress to that part of the theatre; that there was a carpet on the stairway; that the carpet was laid in the center of the stairway about a foot equidistant from the outer edge of the seats on both sides thereof; that the carpet had a piece of felt underneath it so that the rise of the carpet was about an inch above the floor level; that the carpet was loose so that it moved; that the daughter of the plaintiff, accompanying her mother, almost fell over the carpet edge on which her mother tripped; that the carpet was not tacked down along the edge; also that there was a single light on the aisle about three steps below the place of the accident, which did not afford any illumination to the step where the accident occurred; that the binding of the carpet covering the tread of the step where the accident occurred was in a worn out condition, as shown by the photograph received in evidence, and that from its appearance such worn and frayed condition of the binding must have existed for a space of time sufficiently long to have put the defendant on notice. Under these circumstances, we think the question of the defendant’s negligence was for the jury.

The defendant, in maintaining a theatre, “must use ordinary care to make the premises as reasonably safe as is consistent with the practical operation of a theatre” and if it fails in this duty it may be held liable for personal injuries occasioned thereby. Owens v. Associated Realties Corp., 81 N. J. L. 586; 80 Atl. Rep. 325; Branch v. Klatt, 165 Mich. 666; Valentine Co. v. Sloan, 101 N. E. Rep. 102. The jury therefore might reasonably have found that the stair carpet was loose and in a bad condition and that it had been in such condition for a length of time sufficient to charge the defendant with notice thereof. It might also have legitimately found that the defendant had undertaken to illuminate the steps so that patrons coming and going might be able to observe the conditions confronting them on the staircase, and that it failed to do so properly.

We think the case at bar is clearly within the rule laid down in Andre v. Mertens, 88 N. J. L. 626; 96 Atl. Rep. 893. The judgment below will be affirmed, with costs.


author: Per Cuktam.

text:
    THE STATE OF NEW JERSEY, ROY H. WILLIAMS, FISH AND GAME WARDEN, PROSECUTOR, v. WALTER C. BIGGS AND JULIUS PARKER, DEFENDANTS.
    Submitted May 11, 1934
    Decided November 30, 1934.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the prosecutor, David T. Wilentz, attorney-general, and Robert Peacoch, assistant attorney-general.
    For the defendants, Sebastian Gaeta (N. Demarest Campbell, of counsel).
   Per Cuktam.

The defendants were convicted in a recorder’s court under the Fish and Game law of fishing without a license, and appealed to the Common Pleas, where the conviction was reversed, and the state, through its fish warden, sued out this writ of certiorari.

The defense in the Pleas, the appeal being a trial de novo, was that the water in which defendants were fishing was a privately owned pond, in which they were fishing by permit from the owners, and that for such fishing no license is required. Comp. Stat., p. 2514, pl. 50; Pamph. L. 1003, p. 535. The prosecution maintained, however, that the pond was also a “runway for migratory fish,” and that for this reason it was not “private waters,” and a license was required. Ibid. Evidence was fully presented on the question whether the pond was in fact a runway for migratory fish, and the Court of Common Pleas decided as a question of fact that it was not, and consequently ordered an acquittal.

The question, as we have said, was one of fact, and the finding by the trial court that the pond was not a runway for migratory fish was amply supported by the evidence. We see no reason whatever to question the propriety of that finding, even assuming it to be within our province to review it on the evidence.

The judgment is affirmed.


author: Pee Ctjbiam.

text:
    WINANT VAN WINKLE, PETITIONER, v. EDWIN E. CAFFREY, JUDGE OF THE BERGEN COUNTY CIRCUIT COURT, RESPONDENT.
    Argued November 28, 1934
    Decided November 30, 1934.
    Before Justices Trenchard, Heher and Perskie.

      For the petitioner, McDermott, Enright & Carpenter (James D. Carpenter, Jr., of counsel).
    For the respondent, Hamilton Cross.

   Pee Ctjbiam.

This is a motion for a writ of prohibition to prohibit the Circuit Court of Bergen county from proceeding with a petition filed by William H. J. Ely pursuant to chapter 187 (Pamph. L. 1930, art. 26, p. 829), to contest the election of a senator in that county, in which the certificate of the county board of canvassers shows that Winant Van Winkle received six hundred and forty-six more votes than his opponent, William H. J. Ely.

Now at the outset it is well to fully recognize the fact that our state constitution provides in paragraph 2 of section 4, of article 4, that “each house [senate and general assembly] shall be the judge of the elections, returns and qualifications of its own members.”

Therefore it is undoubtedly true, as stated by Chief Justice Depue in Kearns v. Edwards, 17 N. J. L. J. 51, that “the constitution having conferred upon the legislative department the power to judge—that is judicially determine —it would not be competent for the legislature to confer that authority on the judicial department of government.” Again in Ruh v. Frambach, 47 N. J. L. 85, the Supreme Court said: “The legislature have the power to determine the source from which the certificate of elections shall issue, but the house of assembly being by the constitution the judge of election of its own members, can go behind the certificate whether issued by a board of canvassers or by order of a justice of the Supreme Court, and finally decide who is entitled to the seat. * * * The legislature could not invest a justice of the Supreme Court with the power of determining the election of a member of the assembly.”

If, then, the legislature intended by the act of 1930 to give the Circuit Court the power of finally judicially determining the election of a member of the senate (which of course it did not) that purpose failed because of the constitutional provision referred to.

It is plain, we think, that the legislature intended, when it enacted article 26 of the act of 1930, that the power to finally determine the election of a senator should remain where it is placed by the constitution. As was said by Chief Justice Beasley in Conger v. Convery, 52 N. J. L. 417; 20 Atl. Rep. 166; affirmed, 53 N. J. L. 658; 24 Atl. Rep. 1002: “The procedure which it [a similar act] establishes is to be regarded simply as a part of the apparatus for organizing government, by supplying it temporarily, and in view of a pressing public necessity, with its necessary members. In its purpose and nature it is similar to the judges of election and the county canvassers. It may, in fact, be said to be a supplement to such machinery. * * * This construction excludes, of course, the idea that the procedure has any conclusive effect, and regarding it in this light, it appears to be, in a constitutional point of view, unobjectionable, at least so far as it is employed merely as an electoral adjunct.”

The duties of the Circuit Court in carrying out the provisions of article 26 of the act are therefore ministerial, and are employed as an electoral adjunct. No doubt the Circuit Court- will' so limit its activities. Of course if it should exceed its true powers its action would be subject to review and annulment by the senate, and by appeal as provided for by the act itself, and otherwise.

In such circumstances we decline to grant a writ of prohibition, even if we were to assume that the use of such writ is recognized in the jurisprudence of this state. In this connection we point out that the writ of prohibition, so far as our cases disclose, has seldom been granted in this state. In State v. Price, 8 N. J. L. 358, and Ruh v. Frambach, supra, the writ was applied for and denied. No doubt one reason for the apparent disinclination to use the writ of prohibition in this state is that under our system of law other complete remedies generally exist, as in the present case; and the general rule is that ordinarily prohibition will be denied where other remedies exist which, if availed of, would afford complete and adequate relief. See cases collected in 30 C. J. 682.

The writ will be denied.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ANTHONY LOCICERO, PLAINTIFF IN ERROR.
    Argued May 1, 1934
    Decided November 30, 1934.
    Before Brogan, Chief Justice, and Justices Parker and B UDINE.
    Por the defendant in error, Orville V. Meslar, prosecutor of the pleas.
    Por the plaintiff in error, Heller & Boss (Harry II. Weinberger, of counsel).
   Per Curiam.

The plaintiff in error was convicted in the Morris County Court of Quarter Sessions of assault and robbery. The case comes before us for review on strict bill of exceptions and also under the one hundred and thirty-sixth section of the Criminal Procedure act.

A review of the entire record of the proceedings does not persuade us that the plaintiff in error suffered manifest wrong or injury at his trial. He was identified as the culprit by one of the state’s witnesses, Parks, the driver of the truck, as the man who assaulted him and made off with the truck; the written confession of defendant below was admitted into evidence and contained the story of the crime substantially as the witness, Parks, says it happened; the jury had the whole situation before it and determined the guilt of the defendant. Furthermore, it is not specifically argued that the verdict was against the weight of the evidence on the whole case. The only argument made for a reversal of the conviction is that the court received in evidence, over objection, the defendant’s confession of guilt. Before making and signing the confession, the defendant testified that he was harassed, kicked and brutally beaten for hours at a time by members of the police department and the detective bureau. Iiis testimony in this respect was denied by each of those so accused. The jail physician testified that as a matter of routine he examined the defendant and found him in sound physical condition; that' no contusions or discoloration appeared on his body. This examination was made three days after these alleged occurrences but even at that time some evidences of the beatings would be present if he had been treated as he says.

The other point made in support of the proposition that the trial court should have rejected the confession as not voluntary, is based on the fact that one of the police officers, at the time the confession was obtained, brought into the room a skull and set it on the table. This skull, according to the testimony, had been at Boonton police headquarters for about eight years and one of the witnesses, the chief of police of East Paterson, it appears, had some curiosity about it with the result that the Boonton police officer brought it from downstairs in the building up into the room where the plaintiff in error was being questioned. There is testimony to the effect that it was in the plain view of the prisoner and there is testimony to the contrary. The trial court, after hearing all of the testimony regarding the conditions surrounding the prisoner at the time he is alleged to have signed the confession, admitted it in evidence. The testimony concerning the admissibility of the confession and whether or not it was voluntarily made, was a question for the court. State v. Brooks, 30 N. J. L. 356 (at p. 364). At any rate, it has been determined again and again that the question of the admissibility of confessions is for the court solely and that it is not reviewable on writ of error if there is any legal evidence to support its findings. State v. Young, 67 Id. 223, 227, 228; 51 Atl. Rep. 939; State v. Hernia, 68 N. J. L. 299, 302; 53 Atl. Rep. 85; State v. MacQueen, 69 N. J. L. 522, 524; 55 Atl. Rep. 1006; State v. Monich, 74 N. J. L. 522, 526; 64 Atl. Rep. 1016; State v. Kwiathowski, 83 N. J. L. 650, 655; 85 Atl. Rep. 209; State v. Dolan, 86 N. J. L. 192, 195; 90 Atl. Rep. 1034; State v. Murphy, 87 N. J. L. 515, 525; 94 Atl. Rep. 640; State v. Compo, 108 N. J. L. 499, 503; 158 Atl. Rep. 541.

The jury heard and considered all this testimony and was privileged under the law to give the confession such weight as it merited. In criminal cases juries undoubtedly, in accordance with their prerogative, make up their minds on the whole case. What weight was given to the confession we do not know. Suffice it to say, there was legal evidence supporting the judge’s finding that the confession was voluntary. The judgment of the court below is affirmed.