text:
    JOHN KREDL, PETITIONER—DEFENDANT IN CERTIORARI, v. MORRIS SKLAR, RESPONDENT—PROSECUTOR IN CERTIORARI.
    Submitted November 4, 1927
    Decided February 16, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor in certiorari, Kalisch & Kalisch.

    For the defendant in certiorari, Gurtman & Walker (William N. Gurtman, on the brief).
   Per Curiam.

This is a workmen’s compensation case. The petitioner is John Kredl. He and his children lived in Passaic, New Jersey. He sets forth in his petition that his son, John, was killed on June 3d, 1926, in Passaic, while in the employ of the defendant in an accident arising out of and in -the course-of his employment, and that his dependents are his father, the petitioner, and his sisters, Mary and Elizabeth, and his brother, Joseph.

The workmen’s compensation bureau awarded compensation.

The defendant employer argues two questions only.

The first is that the determination of facts and the order-does not determine every factor, upon which, under the-statute, the award of compensation depended, and that it is-indefinite.

We think this point is not well taken. The determination and order when read as a whole, we think, determines every factor upon which the award of compensation depended and is not indefinite.

The next point is that there was no legal justification in finding that the father of the deceased was either a partial or a total dependent upon the deceased at the time of the son’s death.

We think there is no merit in this point. The testimony discloses that this family — foreigners or of foreign extraction —were desperately poor. The decedent’s father was about fifty years of age. His sisters and brother were of tender years. The son John (decedent) was apparently the only bread-winner of the family at the time of his death. He worked for the defendant employer, and at the time of his death was the only member of the family having employment. He made on an average, by piece work of some sort, $20 a week. It so happened that some five months prior to the death of the son, the father, who at that time was at work, was thrown out of employment because of a strike in the local mills. He seems, according to the testimony, to have gone home and devoted himself for the next few months, up to the time of the son’s death, to housework and caring for the children, and from that time forward he had no employment at all and no income at all except the $20 which his son brought home, out of which he paid the household expenses, cared for the younger children the best he could, giving his son, the wage earner, $2.50 a week for spending money. He testified that he tried repeatedly to get employment at the mills and could not.

The question is whether the finding below that the father in these circumstances was an actual dependent of the son was justified.

We think such finding was supported by the evidence, the general effect of which is recited, and cannot be disturbed. Reardon v. P. & R. Ry. Co., 85 N. J. L. 90; Colucci v. Edison Portland Cement Co., 93 Id. 332.

The judgment is affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. PETER KEEGAN, PLAINTIFF IN ERROR.
    Submitted October term, 1927
    Decided February 14, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff in error, I. Faerber Goldenhorn.

    For the defendant in error, J. Vincent Barnitt.

   Per Curiam.

The plaintiff in error urges the single ground for reversal that the trial court erred in denying his motion to direct an acquittal at the end of the state’s case.

On the night of August 11th, 1924, the garage of the Interstate Forwarding Company was broken into and a truck loaded with woolen and cotton goods stolen therefrom. Keegan, plaintiff in error, with two other men, Dunlop and Wilkenfeld, were convicted as the guilty persons, and we have before us the appeal of Keegan alone, he contending that the evidence as to him was not sufficient to justify its submission to the jury.

To sustain its case the state proved that at an early hour on the morning of the 12th of August, 1924, appellant, in company with Dunlop and a man named Murphy, in pursuance of arrangements previously made, drove the truck in question with its contents to the garage of one Haft, stating that the goods had been purchased at a bankruptcy sale. The testimony to this effect was given by Haft and it is the eontention of plaintiff in error that Haft’s positive identification of him as the driver of the truck was later qualified to such an extent that it did not afford justification for the conviction which resulted.

Apart from the rule that a motion to direct an acquittal is addressed to the discretion of the trial judge and his action thereon is not reviewable on strict bill of exceptions as here presented (State v. Oliver, 3 N. J. Mis. R. 1018; affirmed, 4 N. J. Adv. R. 1746), we think that Haft’s testimony required submission of the case to the jury, and the judgment is affirmed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ROBERT McGRATH, PLAINTIFF IN ERROR.
    Argued October 4, 1927
    Decided February 14, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff in error, King & Vogt.

    For the defendant in error, Albert H. Holland.

   Per Curiam.

Robert McGrath was convicted of manslaughter in the killing of two females, a woman and a girl, by running over them with his automobile on the night of October 2d, 1926, and brings this writ of error.

It is first contended that the evidence was not sufficient to identify him with the killing and that in any event his conviction was against its clear weight.

An examination of the proofs adduced at the trial of the case convinces us that while these proofs were in large measure circumstantial, neither contention is sustained. It was shown that on the night in question McGrath, while in an intoxicated condition, was driving a Dodge sedan automobile on the'road running from Dover to Bowlbyville, in Morris county, and that a car of the description of this sedan containing an- occupant of the appearance of McGrath’s companion caused the deaths; that the car was zigzagging back and forth across the highway; that it had, after the accident, a bent fender, a broken headlight and a twisted light holder; that pieces of glass corresponding to the type of lens on the sedan were found at the place where the accident happened; that when first questioned as to the damaged condition of the car McGrath said it had been done on entering his garage, but finally claiming that he had on the night in question collided with another car.- These and other circumstances coupled with incriminating admission made by McGrath to a number of persons that he thought he had “hit something down the road,” made a case which fully justified the verdict of the jury.

Admitting in evidence of the pieces of glass found at the place of the accident early on the morning of October 3d was not error. State v. Barone, 96 N. J. L. 419; nor was it error to permit the partial identification of the other occupant of the McGrath car at the time of the accident. The recalling of the witness Palazza was in the discretion of the court and the request for instructions were all adequately covered in the charge.

The judgment is affirmed.


text:
    JAMES WOODRUFF AND ELEANOR WOODRUFF, PLAINTIFFS, v. PAUL LAWLER AND HARRY KOSS, DEFENDANTS.
    Submitted October term, 1927
    Decided February 14, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, Alexander Simpson.

    For the defendant Paul Lawler, Edward Griffin.

    For the defendant Harry Koss, William B. Stites.

   Per Curiam.

This is plaintiff’s rule for new trial in an automobile accident case, the jury having rendered a verdict of no cause of action in favor of both defendants, and it is argued in support of the rule that the verdict was against the weight of the evidence.

Plaintiffs were riding in Koss’ car on the night of February 24th, 1927. They were proceeding south on? Broadway in Bayonne. When they reached Forty-fourth street the car of the defendant Lawler, coming from the right, collided with the right side of the Koss ear. The two defendants endeavored to place the responsibility for the accident on each other, and, if the conduct of the two drivers constituted the whole of the case, it might be argued with force that the jury made a mistake in exonerating both; such accidents do not usually occur without fault in someone. There was, however, more in the-case; there was a sharp question as to whether the plain-tiffs were invitees or mere licensees in the car of Koss. Their own evidence shows that they were anxious to get to a theatre and that they went into Koss’ store while the latter’s car was standing in front, instead of taking a bus as they had intended. Whether they asked Koss to take them down or Kossinvited them to ride down in his ear was disputed. In the circumstances we think the jury may justly have concluded that the collision was due to the negligence of Koss and have-exonerated Lawler, but that it might also, with fidelity to-the evidence, have found that the plaintiffs were in the Kossear by their own invitation, and, therefore, that Koss, though negligent, was not liable to them as licensees in the absence-of willful wrong.

The rule is discharged.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MORRIS SHUSTER, HERMAN MITCHELL AND BENJAMIN HOFFMAN, PLAINTIFFS IN ERROR.
    Submitted October term, 1927
    Decided February 14, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs in error, Joseph Altman and John Rauffenbart.

    For the defendant in error, Robert McAllister.

   Per Curiam.

Plaintiffs in error, three in number, were convicted in the Atlantic County Court of Quarter Sessions of receiving stolen goods. Two grounds are relied on for reversal. First, that the verdict was contrary to the weight of the evidence; and second, that no lawful verdict was ever rendered.

We think the first is not sustained. There was ample proof that the goods were stolen, that the plaintiffs in error purchased them from the man who had stolen them Avith the knowledge that they had been stolen, and that they divided Avith the thief the proceeds of subsequent sales.

On the second point, however, we think the judgment must be reversed. The record shows that the case was tried before Judge Smathers and a jury, and that after the court adjourned, while it was not in session, in the absence of the judge, and without authority from him the clerk of the court received the verdict and discharged the jury.

The only authority vested in the clerk to receive the A7er-dict of a jury in a criminal case is to be found in section 2 of the act of 1899 {Pampli. L. 1899, p. 218; 2 Comp. Stat., p. 1844), which provides that the judge may direct a verdict to be taken by the clerk in the absence of the judge. Fo such authority was given in the present case and therefore no lawful verdict was rendered. State v. Simon, 101 N. J. L. 11.

The judgment is reversed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JACOB W. CROMWELL, PLAINTIFF IN ERROR.
    Argued October 5, 1927
    Decided February 14, 1928.

      Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff in error, James A. Hamill.

    For the defendant in error, John Milton.

   Per Curiam.

The defendant was convicted of bigamy in the Hudson County Court of Quarter Sessions. The specific charge was that, having a wife living, one Lillian Caldwell Cromwell, he, on the 20th of June, 1923, married Maria Sisti in the city of Bayonne. Erom that conviction the present writ of' error is taken, and the grounds upon which reversal of the judgment is asked are that the state failed to establish a valid marriage in New York to Lillian Caldwell, and that in any event the verdict was contrary to the weight of the evidence.

Our examination of the case leads us to the conclusion that neither ground for reversal is well founded. The proofs offered by the state were that on September 4th, 1904, Cromwell and Lillian Caldwell went through a ceremonial marriage before a commissioner of deeds or notary public at Coney Island in the State of New York; that thereafter they lived together as man and wife in various places in that state until May, 1922, a son being born to thefn in 1909. The defendant treated her as his wife, introduced her as such and gave her name as his wife and beneficiary in his insurance policies. When registered for the draft in the late war he named her as his wife.

The contention of the defendant is that these, fiyct» did'.not make Lillian Caldwell his wife in the State of New York, inasmuch as that by statute in that state from/-^shfiaiy \lst, 1902, to January 1st, 1908, no marriage in New York was valid unless ceremonial, i. e., a marriage performed by a civil or ecclesiastic official duly authorized to solemnize marriages (of whom a notary public or a commissioner of deeds was not one); or what is claimed to be 'contractual, i. e., by written contract of marriage, signed by both parties, acknowledged and duly recorded. This being true as claimed it is further contended that when in 1907 common law marriages were restored by repeal of the above-mentioned statute, continuation of the relationship which existed during the years named did not constitute a valid marriage, and to establish this a member of the New York bar was called as an expert and so testified.

In the case of Chamberlain v. Chamberlain, 68 N. J. Eq. 736, it was held that “where a man and woman intend to marry and live together as husband and wife, but their intention is frustrated by the existence of some unknown impediment, when the impediment is removed and it is shown that the same intent continues, their relations are lawful.” This being the law in this state it will be presumed that a similar relation existing in the State of New York would effect a like result. Bodine v. Berg, 82 N. J. L. 662. examination of the decisions of the courts of that state, which we are permitted to judicially notice (see Evidence act, Comp. Stat., p. 2229, § 26), but confirms that presumption. Zigler v. Cassidy’s Sons, 220 N. Y. 98; Wilson v. Burnett, 105 N. Y. Mis. R. 279. Against this the testimony of the member of the New York bar could not avail to establish the law of that state to the contrary.

Tested by the law as we find it the jury was justified in finding that the defendant had a wife living at the time of his marriage in Hoboken. While there existed at the time of the first marriage the impediment of the statute, the proofs showed that the parties went through a ceremonial marriage at the hands of an official whom they believed qualified to perform it; that they lived together both before and after the repeal of the statute believing themselves husband and wife and acting the part both toward each other and to the outside world. The original relation was not meretricious in that it involved moral turpitude, and therefore when the impediment was removed a continuance of the marital relation as exhibited by the evidence constituted the parties husband and wife.

The judgment is affirmed.


text:
    THE STATE, EX REL. EDWIN E. ADAMS, v. WILLIAM P. YOUNG.
    Submitted February 1, 1928
    Decided February 15, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the relator, Waddington & Mathews.

    For the respondent, Robert Peacock.

   Per Curiam.

The relator is a citizen of the city of Burlington, and files this information in the nature of a quo warranto by leave of the court as provided by section 1 of the statute {Comp. Stat., p. 4210) to test the right of the respondent, Young, to hold the office of councilman of said city. The gravamen of the information is that while serving a three-year term as councilman, the relator was elected and qualified as an aider-man of the city, and that this vacated ipso facto his tenure of the office of councilman on the ground of incompatibility of the two offices. State v. Thompson, 20 N. J. L. 689. The facts are in the record and also are stipulated, trial by jury is waived, and the matter is thus made one of law for the court. The only real question for consideration is the incompatibility of the two offices, and this is to be settled by examination of the city charter and other statutes applicable, if any. It is suggested that any conflict of offices was cured by the resignation of respondent as alderman about ten days after he qualified as such; but if his qualification as alderman vacated the office of councilman, the damage was done and a subsequent resignation as alderman would not help the matter. It is further suggested that relator is in laches because respondent was allowed to serve a whole year as councilman. But conceding for present purpose what is at least most doubtful, that the doctrine of laches applies in a case of this kind, the answer is that the application was made to the court within a very few days after the qualification of respondent as alderman at the beginning of the year 1928.

We proceed, then, to an examination of the charter. Pamph. L. 1851, p. 149; amended in 1857, Pamph. L., p. 17, and 1868, Pamph. L., p. 494. By section 3 of that instrument, there shall be chosen one mayor, three aldermen and eleven members of council (increased to twelve by {he amendment of 1868). All are elected by the-legal voters of the city. The council is the actual legislative body; the aldermen and mayor are constituted justices of the peace ex officio, but with no power to try civil cases except such as arise under an ordinance or by-law of the city (penalties, &c.), under the charter, they constitute the local judicial department as council constitutes the legislative; so that when we consider that the whole scheme of local government is laid down by this one statute, and that the separation of legislative and judicial departments was at that time one of the fundamental ideas of civil government in this state, we cannot but conclude that the legislature never intended that the same person should hold office in each of those departments; a situation certain to produce a confusion in administration, as, for example, entrusting to the same person the enforcement of an ordinance, which he had taken part in enacting, we hold, therefore, that by the scheme of thé charter the offices of alderman and councilman were inconsistent,' and incompatible with each other.

The further suggestion is made that by an ordinance of 1892 certain police justices were authorized and appointed, with all the jurisdiction previously exercised by the aldermen, so that the occupation of the latter is now gone. No statutory authority for such an ordinance is cited; it may be supported by general laws; but we are not pointed to any legislative provision abrogating or impairing the jurisdiction of the aldermen under the charter.

Our conclusion is that there must be a judgment of ouster of the respondent as councilman, with costs.


text:
    SEMON MULLER, RELATOR, v. BRICKLAYERS’, MASONS’ AND PLASTERERS’ INTERNATIONAL UNION OF AMERICA, UNION NO. 23, NEW JERSEY, AND JEROME M. WESTERVELT, RESPONDENTS.
    Decided February 16, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the relator, Feder & Rinzler.

    For the respondents, Henry Carless.

   Per Curiam.

This is a rule to show cause why a writ of mandamus should not issue to compel -the respondent union and its seeretary to admit relator to membership in said union as a journeyman plasterer.

The relator claims that he has served the necessary four-year apprenticeship to qualify him for admission, although he admits that he failed to comply with the rules and regulations of the union in that he omitted to register and file his apprenticeship agreement in time.

It has been held in this state that labor unions may require such qualifications for membership and such formalities of election as they choose. Mayer v. Journeymen Stone Cutters Assn., 47 N. J. Eq. 519, 524.

It has also been laid down as a general rule supported by the adjudications, that “an expelled apprentice who has never been recognized as a full member of a union is not entitled to injunctive relief against the refusal of the society to grant him full membership and a union card.” 24 Cyc. 826, and cases. It is also to be observed that the rule is settled that the court will not interfere in the manner requested here in the affairs of an incorporated society or voluntary association of individuals, which is the status presented by the union in this case. Mayer v. Journeymen Stone Cutters Assn., supra.

The result is that the rule will be discharged, with costs.


text:
    NINTH STREET PIER COMPANY, A CORPORATION, PROSECUTOR, v. CITY OF OCEAN CITY ET AL., DEFENDANTS.
    Argued February 16, 1928
    Decided February 17, 1928.

      Before Justices Trenchard and Campbell.
    For the prosecutor, Joseph H. Carr.

    For the defendants, F. Stanley Kreps.

   Per Curiam.

A speedy decision of this matter is desired by all parties involved and is also regarded by the court as important because of public interests concerned.

We think the writ should be denied.

Under the Home Rule act (Pamph. L. 1917, p. 319) the city had power to pass ordinance No. 372 to acquire land for relocating, laying out and opening a public street or public boardwalk and to build a public boardwalk; and this the city did by ordinance No. 372.

The prosecutor contends that the city should have proceeded under the act of Pamph. L. 1889, p. 206, but this it was not bound to do. Burstiner v. East Orange, 4 N. J. Mis. R. 280.

Ordinance No. 372 provided for the undertaking as a public improvement at the expense of the public, and for the taking of lands therefor by condemnation, if necessary.

The necessary procedure is outlined in section 23 of article 20 of Home Rule act, and we think it was followed in this case.

The ordinance was introduced, accompanied by a map, which map and copy of the ordinance, after passage, were filed with the board of assessment, created in 1919, and still in force.

The board of assessment gave notice of the time and place of hearing to the prosecutor, held a hearing and made its report to the board of commissioners.

It is this report and award that the prosecutor desires to challenge by the writ of certiorari applied for.

The next contention is that there was no official authority to proceed under the Home Rule act.

We have already indicated that, in our view, ordinance No. 372 was authorized by law, and it was of course adopted by official action. It seems to be argued that there was no authority for the city clerk to deliver to the commissioners of assessment a copy of the ordinance and the map which accompanied it. We think the answer to that is that the necessary authority is found in section 23 of article 20 of the Home Rule act.

It is next said that the map filed was insufficient. We think the answer to that is that there was in this respect a substantial compliance with the requirement of section 23 of article 20 of the Home Rule act.

But apart from what we have said it is quite clear that the prosecutor has no just cause of complaint against the report and award. This is shown by the fact that its attorney seems to have expressed himself before the commisioners of assessment as content with a valuation of one dollar if the land was not taken in fee. The report was made upon those exact terms. The ordinance provides that the expense of the improvement and of acquiring the land is to be borne by the city of Ocean City at large and not by assessment, and the land on which the old boardwalk was built is automatically released by the easement deed.

In such posture of affairs it seems quite clear to us that, since this writ is a discretionary one, this great public work of prime necessity to a large number of persons should not be suspended by the allowance of a writ “in this case. Nelson v. Town of Kearney, 4 N. J. Mis. R. 157; Brown v. Atlantic City, 5 Id. 397.

Accordingly the writ will be denied, and the rule discharged.


author: Trenchard, J.

text:
    THE STATE OF NEW JERSEY (JOHN C. PLATT), PLAINTIFF-DEFENDANT IN CERTIORARI, v. NEW JERSEY MILK AND CREAM COMPANY, A CORPORATION, DEFENDANT-PROSECUTOR IN CERTIORARI.
    Argued December 10, 1927
    Decided February 23, 1928.
    Before Justice Trenchard, sitting alone pursuant to the statute.
    For the prosecutor in certiorari, Karkus & Karkus.

    For the defendant in certiorari, no appearance.
   Memorandum by

Trenchard, J.

This writ brings up what purports to be a conviction of the defendant, the prosecutor of the writ, for a violation of the New Jersey Bottle act.

The conviction and proceedings leading up thereto are so defective in so many respects as to render it legally impossible to sustain the conviction.

Nowhere in any of the papers does it sufficiently appear what the charge was or for what offense the defendant was convicted. If it be surmised that the offense in mind was the use or filling of bottles duly marked in the name or by the mark of another, there was no intimation, much less a change or statement that any such name or mark was duly filed, as required by the act, nor it may be added is there any suggestion that there was any evidence to such effect.

In such condition of the record brought up the conviction cannot be sustained. Bowden v. Overseer of the Poor, 41 N. J. L. 462.

Accordingly, the conviction will be set aside.


text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PROSECUTOR, v. COMETIS DE YOUNG, RESPONDENT.
    Submitted October 14, 1927
    Decided February 25, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Edward L. Katzenback, attorney-general, and Grover C. Richman.

    For the respondent, Elmer W. Romine and Alexander MacLeod.

   Per Curiam.

This case is before this court by the allowance of a writ of certiorari directed to the District Court of the city of Passaic. The writ brings up for review proceedings instituted by the state board of medical examiners of New Jersey against Cometis De Young for a violation of section 10 of the act entitled “An act to regulate the practice of medicine and surgery, to license physicians and surgeons, and to punish persons violating the provisions thereof,” approved May 22d, 1894. This section was amended by chapter 271 of the laws of 1915 and chapter 221 of the laws of 1921. It provides that any person practicing medicine or surgery without first having obtained and filed the license provided by the act shall be liable to a penalty of $200. The suit ifi the instant case was for $500, as De Young had been previously found guilty of the same offense and for a second offense, if guilty, the act makes the penalty $500.

The complaint was made by a member of the state board of medical examiners. It alleged that Cometis De Young had violated said section 10. The usual warrant was issued on the complaint. A trial was had before the Passaic District Court. It was admitted that De Young was a duly-licensed osteopathic physician. Those who were sworn in behalf of the state board testified that De Young had a large residence. In the window there was displayed a sign reading “Electric Treatments.” In large letters appeared the words “Doctor De Young.” In smaller letters appeared the words “Osteopathic Physician and Surgeon.” There was also another sign reading “Dr. De Young.” A sign reading “Dr. De Young’s Health Office” was placed under the bay window of the residence. A sign hung over the porch reading “Dr. De Young.” The testimony of one witness was to the effect that when she called De Young asked her what her trouble was. She told him she had pain in her stomach after eating. He asked if she was constipated, and when told she was, he said that the ascending colon might not be working and that the food lay there and caused pain and gas. De Young told the witness when she went home to take the juice of two sour oranges, rhubarb and soda, and to eat no dinner and no breakfast, and to com'e to his office in the morning at nine o’clock, when he would give her a glass of buttermilk and use the fleuroscope on her. The witness returned in the morning at the appointed time. De Young took her upstairs in a large room where there was an electric instrument. She removed- some of her clothing and stood in front of a frame. De Young turned the lights out. He then turned the current of an electric machine on. It threw a light so he could see the organs of her body. He said that her heart was overworked, liver enlarged and stomach dilated. He took her blood pressure and asked for a specimen of her urine, for analysis. He afterwards reported the result of the analysis. Electric treatments were also given her by a nurse under the defendant’s direction. Pour other witnesses for the state board testified substantially to the same effect.

At the conclusion of the case the trial court dismissed the complaint on the ground that as the defendant was licensed to practice osteopathy he had the right to give electric treatments. The question before us for decision is whether or not an osteopath who gives electric treatments to his patients is violating the Medical act. In the cáse of State Board of Medical Examiners v. Lezenby, 1 N. J. Mis. R. 20, it was held that the giving of electric treatments was a violation of the State Medical act. It does not appear in this case as to whether or not Lezenby was an osteopathic physician. The case is, however, authority to the effect that electric treatments constitute a violation of the Medical act. We cannot see that under the provisions of the Medical act it can make any difference by whom the electric treatments were given, if not given by a physican duly licensed to practice medicine and surgery under the Medical act, approved May 22d, 1894, and its amendments and supplements.

The contention of the defendant is that one who obtains a license to practice osteopathy has by the terms of the act (Pamph. L. 1913, p. 388) and its supplements, studied such subjects as would qualify him to give electric treatments. This argument is perhaps persuasive as to why osteopaths should by law be permitted to give electric treatments, but unsound as to their having under the statutes pertaining to the practice of osteopathy the legal right to do so. Under the law the osteopath is limited in his treatment to the manipulation of the human body by hand so as to bring all parts thereof into the proper position. With refereirce to the giving of electric treatments we feel that we are controlled by the case of State Board v. Lezenby.

There was also evidence that the defendant used the letters “Dr.” in connection with his name and in some places upon his residence without qualification. By section 8 of the Medical act any person is regarded as practicing medicine and surgery who shall use the letters “Dr.” in connection with his name and hold himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, or who shall either offer or undertake by any means or method to diagnose, treat, operate or prescribe for any human disease, pain, injury, .deformity or physical condition. Under this branch of the case the testimony seems to us to have warranted a conviction, as the defendant did use the letters “Dr.” in connection with his name and did offer and undertake by a method to treat a physical condition.

The judgment of the District Court of the city of Passaic is reversed.


text:
    HAHN MOTOR TRUCK CORPORATION, PROSECUTOR, v. CITY OF ATLANTIC CITY ET AL., RESPONDENTS.
    Argued October 17, 1927
    Decided February 25, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Isaac H. Nutter and Robert H. McCarter.

    For the respondents, Joseph B. Perskie and Thompson & Hanstein.

   Per Curiam.

This case is before this court upon a writ of ■certiorari. The writ is directed to the city of Atlantic City. It brings up for review a resolution of the board of commissioners of the city of Atlantic City accepting the bid of the- American LaErance Eire Engine Company, Incorporated (hereinafter called the American Company), for furnishing four one thousand gallons each, six cylinder, gasoline driven, triple combination pumpers, chemical and hose wagons, equipped with Boss thawing device. On March 31st, 1927, the board of commissioners passed an ordinance for the purchase of the apparatus for the fire department above described. The ordinance authorized the director of public safety to advertise for bids under specifications to be submitted by the bidders. The contract was to be awarded to the lowest responsible bidder or bidders offering to furnish the apparatus under specifications acceptable to the board of commisioners. The ordinance provided for payment to be made out of the proceeds of bonds to be issued for fire department purposes. In pursuance of this ordinance advertisements were published that bids would be received. Bids were submitted. Specifications were submitted with each bid. There were five bids. The Hahn Motor Truck Corporation (the prosecutor) was the lowest bidder. The contract, however, was awarded to the American Company, a higher bidder. The reason for selecting the apparatus of the American Company appears from the record to have been that most of the apparatus in use by the fire department of Atlantic City was of this make; that it had given satisfaction, and that renewal parts therefor could be easily obtained. A minor reason appears to have been that an agent of the Hahn Miotor Truck Corporation told the chief of the fire department that if their apparatus was selected they would donate to the pension fund three per cent, of the amount of the purchase price. This offer appears to have hastened the award of the contract to the American Company. The Hahn Motor Truck Corporation then applied for and obtained the writ of certiorari for a review of this award.

The prosecutor claims that it was the lowest bidder and was, hence, entitled to the award of the contract. We think the award to the American Company was fully justified. One of the conditions advertised in the notice of purchase of the fire apparatus was that bidders must submit with their bids pictures of the apparatus intended to be furnished. The apparatus for which bids were asked for were one thousand gallon pumpers. The prosecutor submitted a picture of a seven hundred and fifty gallon machine. It appears that the prosecutor’ had made no one thousand gallon machines. This constitutes a failure to comply with the requirements of the bid in a material matter. Case v. Trenton, 76 N. J. L. 696. An intending purchaser would naturally desire to see a true picture of the apparatus to be furnished. This omission to submit a true picture was a sufficient ground for the rejection of the bid.

There is also a broader ground which sustains the award to the American Company. The only statute requiring competitive bidding is that contained in chapter 319 of the laws of 1920. Pamph. L. 1920, p. 572. This statute reads as follows :

“No municipality shall enter into any contract for the doing of any work, or for the furnishing of any material, supplies or labor, the hiring of teams or vehicles where the sum to be expended exceeds the sum of $500, unless the governing body shall first publicly advertise therefor, and shall award the said contract for the doing of said work, or the furnishing of such materials, supplies or labor to the lowest responsible bidder, &c.”

It seems to us that the provisions of the above statute are not applicable to the purchase of fire apparatus. One who furnishes apparatus is not furnishing materials and supplies in the sense these words are used in the statute. No city could draft specifications for fire apparatus which would apply to all fire apparatus of the kind desired. There can be no standard specifications for such apparatus. Each manufacturer makes his apparatus under patents, processes or designs different from that of other manufacturers. It is these differences which support the claim of the superiority of apparatus made by each manufacturer over that manufactured by his competitors. We think a city purchasing fire apparatus has some discretion, within proper limits, as to the apparatus which it will purchase. Hammonton v. Elvins, 101 N. J. L. 38.

The award of the contract to the American Company is affirmed. The writ of certiorari is dismissed, with costs.


text:
    ROSE KRONENBERG, RELATOR, v. MARK F. MASTERS, INSPECTOR OF BUILDINGS OF THE BOROUGH OF MAYWOOD, ET AL., RESPONDENTS.
    Submitted October 14, 1927
    Decided February 25, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Abraham I. Bluestein and Harry Nadell.

    For the respondents, Charles J. McCarthy.

   Per Curiam.

This case is before us on a rule to show cause why a peremptory or alternative writ of mandamus should not be issued to the inspector of buildings in the borough of May-wood, in the county of Bergen, to direct him to issue a building permit to the relator, Rose Kronenberg. This ease involves no question of zoning. There is no zoning ordinance in the borough of Maywood. The relator desired to build upon a lot owned by her in said borough a building consisting of two stores and three apartments. Plans, specifications and proper fee were tendered to the building inspector. He refused to grant a permit for the reason that it was not shown that the proposed building would set back twenty feet from the curb line at every point, as required by the building code. There was no other objection to the plans and specifications. The plan of the building as first submitted did raise a question as to whether there was to be a twenty-foot set-back from the curb line of all of the proposed building. A new plan of the location of the proposed building upon the lot was then prepared, which eliminated any question that the building was to be set back twenty feet from the curb line. This plan was submitted. The permit was again refused. .When the relator applied to the mayor and council to ascertain why no action had been taken in her case she was informed that the matter was in the hands of the counsel for the borough. Time went on. Nothing was done. The application for a mandamus was then made and the rule allowed.

In our opinion a peremptory writ of mandamus should be issued. There is no proposed violation of the building cqde shown in the testimony. There is no zoning ordinance in the borough, hence, no board of adjustment. Mandamus is the proper remedy. If the respondents desire to appeal this decision consent to the moulding of the pleadings is given.

A peremptory writ of mandamus is awarded.


text:
    THE ADVANCE DEVELOPMENT CORPORATION, RELATOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Submitted October 14, 1927
    Decided February 25, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.

      For the relator, Gross & Gross.

    For the respondents, Thomas J. Brogan and Charles Hershenstein.

   Per Curiam.

This case is presented to us on a rule to show cause why a writ of mandamus should not issue commanding the municipal corporation, the mayor and aldermen of Jersey City, its board of commissioners, and its superintendent of buildings, to issue to the relator, the Advance Development Corporation, a corporation, a building permit for the erection of a five-story apartment house at the southeast corner of West Side avenue and Bentley avenue, in the city of Jersey City. The relator is the owner of the land upon which the proposed building is desired to be erected. The lot fronts fifty feet on Bentley avenue and one hundred and seventeen feet on West Side avenue. There is no ordinance of the city of Jersey City, either by way of a zoning ordinance or otherwise, which prohibits the erection of the proposed building. The ease, therefore, is not a zoning case.

The plans for the proposed building were prepared by a duly licensed architect. They were drafted in accordance with the requirements of the building code of Jersey City. The architect applied on August 9th, 1927, to the superintendent of buildings for a building permit for the relator and submitted the plans and specifications. The architect was instructed by the superintendent of buildings to make the application to the board of commissioners. The reason for such an instruction does not clearly appear. The board of commissioners deferred the hearing of the application until September 13th, 1927. On September 12th, 1927, the plans and specifications previously submitted to the superintendent of buildings were filed. On September 13th, 1927, a number of persons appeared before the board of commissioners and objected to the granting of the building permit on the ground that they did not desire to have an apartment house erected on the block, as the block was now occupied by residences. This was the only reason advanced. The apartment house was strictly residential in character. It was to be set back five feet from the building line. After hearing the objectors the board deferred action in the matter in the hope that the proposed zoning amendment to the constitution would be adopted at the special election on September 20th, 1927. There was no question as to the violation of any zoning restriction raised by the application.

No decision was arrived at by the board. Application for the present rule was then made. The relator insists that the refusal of the respondents to act upon his application is tantamount to a denial of it. We think this position well taken. The case of Cleveland v. Board of Finance of Jersey City, 38 N. J. L. 259, supports the relator’s contention. The respondents claim that the application has never been acted upon and until action has been had mandamus proceedings are premature. This argument is answered by the case of Cleveland v. Board of Finance, &c., supra, in which it was held that there need not be a positive refusal on the part of public officers or municipal bodies to perform a duty enjoined upon them to authorize the interposition of the court by mandamus. It is sufficient if there is unreasonable delay and a manifest intention not to perform it. We think the intention not to act is clearly proven. The delay for this reason seems to us unreasonable.

The respondents urge in the second place that in view of the passage of the zoning amendments to the constitution opportunity should be given to the legislature to enforce the will of the people. This argument presumably means that no action should be taken upon the relator’s application until the legislature has passed further statutes on the subject of zoning. The status of the relator is, we think, fixed at the time it made its application for the building permit. We see no reason why the inaction of the superintendent of buildings should be sanctioned until legislation is enacted and ordinances passed which would per chance act retroactively and adversely upon the use to which the relator is now entitled to put its property. Some consideration should be shown the owner who desires to change an unimproved property into an improved property which will yield an income to the owner and increase by taxation the city’s revenues. Taxes on the property are not suspended during an application of this nature. Interest on liens, if any, is running. Often by delay, which is unjustified, and litigation, which is unnecessarily prolonged, an owner may suffer severe financal loss.

A refusal to perform a clear duty cannot be justified because owners of adjacent properties may object to the erection in the locality of a building which does not conform to their ideas.

We see nothing in the record presented to us which warrants the refusal to grant the building permit applied for. A peremptory writ of mandamus is 'allowed. If the respondents desire to appeal this decision consent to the moulding of the pleadings is given.


author: Porter, J.

text:
    Passaic County Circuit Court.
    ANDREJ SIMKO, JAN TOMECK, STEFAN DVORSCHAK, ALEXANDER FORAJ, JAN CHVOSTAK, MICHAEL KOCKA, STEPHEN LIPTAK, JOZEF POLSA, MICHAEL BEZEG, JOHN KASSAI, JAN GIRA, MICHAEL KADILYAK, JOHN DERZAK AND MICHAEL AJCH, PLAINTIFFS, v. FIRST CATHOLIC SLOVAK UNION OF UNITED STATES OF AMERICA, DEFENDANT.
    For the plaintiffs, Feder & Rinzler.

    For the defendant, Weinberger & Weinberger.

   Porter, J.

It appears that the defendant expelled from its membership a number of its members, a large number of whom claim to have been improperly expelled from the society and who have brought suits in this court for consequent damages. Under the by-laws of the defendant, its members are required to be members in good standing of the Roman Catholic Church, and to conform to many rules relating to the observance of certain religious practices of that faith.

The plaintiffs allege that they were members of the defendant society in good standing and were illegally and wrongfully expelled.

The complaint sets forth a cause of action, giving names, dates and all necessary allegations. The answer filed denies these allegations.

The nature of the interrogatories is to ascertain whether the plaintiffs have in fact complied with the various provisions of the by-laws, thus clearly seeking information of justification for its action in expelling plaintiffs from its membership. Some of the information it seeks is, of course, solely within the knowledge of the plaintiffs, as, for instance, whether he received certain sacraments of the church on certain religious festivals. But it is not the province of interrogatories to seek evidence to justify the defense but rather to ascertain the basis of the action. If the plaintiffs were expelled for non-compliance with the by-laws, that is a matter of defense, and if the defendant has no evidence to substantiate its expulsion of the plaintiffs on that ground, it cannot by interrogatories compel the plaintiffs to furnish it such proof. The defendant argues that it is entitled to have this question answered, else how is it to know whether the members did in fact comply or not with this particular bylaw. It may be true that many of the by-laws requiring the members to do certain things, or to abstain from doing others, may be such that no one but the member himself may know whether or not he has violated same. If so, that fact was known to the defendant when same were adopted; and if the defendant is embarrassed now by reason thereof, it cannot complain because of the impracticability of such bylaws. And so, if the defendant expels a member on the theory that he must have or may have violated one or more of the provisions of the by-laws, it does so at its peril, if it in fact has no knowledge of the facts. Certainly, after expelling a member, it cannot by interrogatories ask the expelled member to prove its case by admitting the violation of by-laws.

Presumably the members were expelled for known violations of the rules, non-payment of dues or some other act within the knowledge of the defendant, hence the answer denying the allegations of the complaint. If so, there being a complete defense to the action, no further information should be needed by the defendant. If, on the other hand, the defendant acted without knowledge of the violation of any by-law arbitrarily and without justification, it is not the duty of the court, under the rules of practice, to allow it to pry into the plaintiffs’ case, as it seems to me clearly it is seeking to do in this case in most of the questions asked. The other questions are also improper, because the answers are within the knowledge of the defendant himself.

The motion to strike is granted.


author: Backes, V. C.

text:
    Blum Building Company, complainant, v. Charles Guarino, defendant.
    [Decided March 14th, 1928.]

      Mr. Michael G. Alenick, for the complainant.

      Mr. Ferdinand D. Masucci, for the defendant.
   Backes, V. C.

The complainant sues to recover down money on a contract to purchase land of which, as charged, the defendant had not good title and could not grant according to his contract. The contract calls for a lot one hundred by two hundred and eighty feet more or less on the westerly side of Lincoln avenue, Newark. The defendant has title by a survey which calls for a lot four hundred and twenty-three feet in depth from which there is excepted a tract of land in the rear of his property “beginning at a point in the southerly line of lot No. 60, block 680, therein distant three and twenty-five hundredths feet easterly from the easterly line of Summer avenue; thence running easterly along the said southeasterly line of said lot No. 60, sixty-eight and fifty-eight hundredths feet to the northwesterly corner of lot No. 11 on ■said block; thence running southerly along the westerly line of the same thirty-eight and forty-two hundredths feet to the southwesterly corner of said lot No. 11 one hundred and thirty feet; thence southerly seventy feet more or less to the southerly line of the tract hereby conveyed; thence westerly one hundred and ninety feet more or less to the southeasterly corner of lot No. 55 on said block, and thence northerly along the easterly line of the same one hundred and eight and twenty-five hundredths feet to the place of beginning.” The location of this excepted area is the thing in dispute. The lot and block numbers refer to the Newark tax map as it stood in 1916; in that year the map was rearranged. The description of the excepted area was first used in 1919 and the framer used the old map for the location. The lots referred to in the description of the excepted area are located with certainty on the map, and using this as our guide there can be no question that the excepted area extends fifteen feet plus over the defendant’s rear line as established by his survey. This circumstance standing alone would not warrant a recovery in view of the fact that the contract calls for a depth of two hundred and eighty feet “more or .less.” But this difficulty presents itself. A three-car cement garage on the rear of defendant’s lot extends fourteen feet over the rear line and over and on the excepted area. The land agreed to be sold included the garage, and as the defendant had not title the complainant was justified in rescinding and is entitled to the return of the purchase price and disbursements.

Decree for complainant.


text:
    JAMES H. DONNELLY, OVERSEER OF THE POOR, PROSECUTOR, v. PASSAIC COUNTY COURT OF QUARTER SESSIONS AND BERNARD FRIEND, RESPONDENTS.
    Submitted October 14, 1927
    Decided February 25, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Ward & McGinnis.

    For the respondents, Feder & Rinzler.

   Per Curiam.

This case is before this court on a writ of certiorari directed to the judge of the Court of Quarter Sessions in and for the county of Passaic. The writ brings up for review a proceeding under the Bastardy act instituted by the overseer of the poor of the city of Passaic against one Bernard Friend. The said overseer of the poor entered a complaint in the police court of the city of Passaic against Bernard Friend, charging him with being the putative father of a child born to Justin Szvetior, a single woman. Upon the filing of this complaint a warrant was issued. A trial was had before the police court. The court found in favor of the defendant. The overseer of the poor then appealed the case to the Court of Quarter Sessions in and for the county of Passaic. The case came on for hearing. At the opening of the trial a motion was made by counsel for the defendant to dismiss the proceedings upon the ground that the complaint and warrant were defective. The court, as the state of the case shows, reserved decision on this motion and proceeded to hear the testimony. At the conclusion of the evidence the attorney for the defendant then renewed the motion made at the opening and further moved for acquittal on the evidence. The state of the ease then states as follows: “The evidence and argument of counsel being closed the court, after mature deliberation thereon, says it finds for the defendant.”

The state of the case as presented to this court contains the deposition of Louis A. Cawley, the attorney representing the overseer of the poor, taken since the allowance of the writ of certiorari. Mr. Oowley testifies that the appeal was dismissed upon the ground that the jurisdictional fact as held by the court that the appellant was likely to become a charge upon the city of Passaic was not established. This testimony contradicts the record in the case as returned by the clerk of the court. The argument made in behalf of the prosecutor of the writ is that the determination of the overseer of the poor that the child of Justin Szvetior would be likely to become a charge upon the municipality is one that rests solely within the determination of the overseer of the poor and is not a matter that can be considered by the court. If we thought this question was presented by the record before us we would, we think, be in accord with the argument of the prosecutor, but as the record of the case discloses that the judge after mature deliberation found for the defendant it is useless to consider and decide the question raised. The only construction we can place on the record as it is submitted to. us is that the trial judge found on the evidence submitted that the defendant was not the putative father of the child. The testimony taken on this branch of the case is not included in the record, but if it were we would have no right to decide the question of paternity. The weight of evidence is not reviewable by certiorari. Ruff v. Kebler, 62 N. J. L. 186.

The judgment of the Court of Quarter Sessions in and for the county of Passaic is affirmed, with costs.


text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES D. BAUDENDISTEL, DEFENDANT-PROSECUTOR.
    Decided March 6, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Nathan H. Berger.

    For the respondent, Edward L. Katzenbach, attorney-general of New Jersey.
   Per Curiam.

The prosecutor was convicted in the First District Court of Jersey City on a complaint charging him with a violation of section 10 of an act of the legislature of the State of New Jersey, entitled "An act to regulate the practice of medicine and surgery, to license physicians and surgeons and to punish persons violating provisions thereof,” approved May 22d, 1894, and said section 10 was amended by an act approved April 8th, 1921, in that the prosecutor during the months of February, March, &c., 1925, and during the months of January, February, &c., 1926, and during the month of January, 1927, at West New York, &c., did commence and continue the practice of medicine and surgery within the meaning of section 8 of said act, and said section 8 was amended by an act approved April 12th, 1915, without first having obtained and filed a license for such practice, issued by the state board of medical examiners of New Jersey, as provided for under the provisons of said act, and that on the 15th day of June, 1923, the prosecutor was convicted in said court for a violation of the provision of said section 10 of the act, and that the violation mentioned is another and a continuation of the violation for which the prosecutor was previously convicted.

There was testimony that the prosecutor was an osteopath and chiropractor. In the window of his office there was displayed a white sign Avith black letters, “Dr. Chas. Baudendistel.”

There was testimony that the prosecutor on divers dates mentioned in the complaint treated persons who came to him for medical treatment by giving them medicines to effect a cure for the bodily ailments of which they complained.

There was also proof that the prosecutor had been convicted in the First District Court of Jersey City for a previous violation of the provisions of the section of the above-cited act.

The prosecutor made no 'attempt to refute the charges against him and only offered in his defense a license to practice osteopathy issued by-the state board to him, on January 12th, 1917, and also an official license issued to him to practice chiropractics, by the state board of chiropractor examiners, on November 22d, 1920. The defense then rested its case and contended, and now contends here, that under the .license granted to the prosecutor, to practice osteopathy, the acts complained of and testified to by the witnesses, did not come within the inhibition of section 10 of the statute alleged to have been violated, since osteopaths were expressly excluded from the application of the prohibitory provisions regulating the practice of medicine and surgery, by virtue of section 9 of the act.

We think the practice of osteopathy is confined to the manipulation of the human body by applying the hands only to the body of the patient. See State v. Herring, 70 N. J. L. 34.

Judgment is affirmed, with costs.


text:
    WILLIAM J. COUGHLAN, PROSECUTOR, v. CITY OF CLIFTON ET AL., DEFENDANTS.
    Submited November 4, 1927
    Decided February 25, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Edward F. Merrey.

    For the defendants, William B. Gourley.

   Per Curiam.

This writ of certiorari brings up for review a resolution of the city of Clifton, adopted April 5th, 1927, to establish a pension fund for the benefit of -the firemen of that city.

The decision of the question raised involves a construction of chapter 160 of the laws of 1920 {Pamph. L., p. 324), being “An act providing for the retirement of policemen and firemen of the police and fire departments in municipalities of this state, including all police officers having supervision or regulation of traffic upon county roads, and providing a pension for such retired policemen and firemen and members of the police and fire departments, and the widows, children and sole dependent parents of deceased members of said departments.”

Section 10 of the act provides for submitting the question ■of the adoption of the act to the voters of any municipalitjr. By section 9 it is provided: “This act shall take effect immediately in every municipality in which a fund for the retirement or pensioning of policemen or firemen or either is now in effect, but shall not take effect in any other municipality until its adoption by the majority of the voters at any general election or special election called for such purpose.”

The city of Clifton, at the time of the passage of chapter 160 of the laws of 1920, had a police and fire department, but no pension system for the fire department, although there was such a system for the police department.

The prosecutor contends that although section 9 of chapter 160 of Pamph. L. 1920, provides that it shall take effect immediately in every municipality in which a fund for the retirement or pensioning of policemen or firemen, or either, is now in effect, and although in the year 1920 there existed a fund for the police department, nevertheless this act did not become operative in Clifton in favor of firemen, and could only become effective to the firemen in that city by vote of its citizens, and, hence, that the resolution under review is void.

We think that contention is unsound. We think that a referendum was not necessary. It has already been so determined in Hulme v. Commissioners of Trenlon, 95 N. J. L. 30; affirmed, 95 Id. 545, where the act was challenged as special legislation and sustained. Certainly upon the question now raised that decision is conclusive upon this court.

Another point made by the prosecutor is that because the resolution did not direct the financial officer of the city to deduct two per cent, from the wages of the firemen from the-year 1920, when the act went into effect, until the date of the resolution, it is void.

We think that contention also without merit. The essential part of the resolution in dispute reads: “Upon the passage-of this resolution, the firemen be placed in the pension fund, and the pension fund commission so notified and the proper officers be notified to deduct the two per cent, from the wages of the firemen according to law, and the same be paid to the pension fund commission, and that the city contribute four per cent, as now done in the police salaries.”

We find nothing in the terms of that resolution which would justify us in setting it aside. It is unobjectionable in law. 'The resolution did not put the law in effect. The statute did that. The effect of the resolution was to notify the commission and fiscal officers of the law and to proceed thereunder.

The writ will be dismissed, with costs.


text:
    JERSEY CENTRAL POWER AND LIGHT COMPANY, PROSECUTOR, v. BOROUGH OF SPRING LAKE AND EASTERN NEW JERSEY POWER COMPANY, RESPONDENTS.
    Argued October 6, 1927
    Decided February 25, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Walter L. McDermott.

    For the respondent Eastern New Jersey Power Company, Osborne, Cornish & Scheck.

    For the respondent borough of Spring Lake, Durand, Ivins & Carton.

   Per Curiam.

This case is before this court on a rule to show cause why a writ of certiorari should not be allowed to review three resolutions adopted by the mayor and council of the borough of Spring Lake awarding three contracts for the lighting of streets, parks and boardwalk to the Eastern New Jersey Power Company. The rule to show cause embodies a stay. The prosecutor of the rule is the Jersey Central Power and Light Company. The borough of Spring Lake has been served for many years by two electric light companies. Under the provisions of chapter 130 of the laws of 1926 (Pamph. L. 1926, p. 239), the board of public utility commissioners, upon application of the Jersey Central Power and Light Company, one of the companies engaged in business in Spring Lake, divided the territory in the borough of Spring Lake so that the Eastern New Jersey Power was assigned the territory north of the northerly line of Passaic avenue, and the Jersey Central Power and Light Company was assigned the territory south of said Passaic avenue line. This segregation applied only to private consumers.. The opinion of the board of public utility commissioners specifically stated that the board had no jurisdiction with reference to the official action that Spring Lake might desire to take, so the decision of said board as to the territory to be served by each company has no bearing upon this application.

The lighting contracts of the borough of Spring Lake expired. The borough advertised for proposals under three schedules, entitled A, B and C. The prosecutor and respondent each submitted bids. The term was for five years from January 1st, 1927. The respondent Eastern New Jersey Power Company (hereinafter called the respondent), was the lowest bidder. Under plan A its bid was $5,850, while that of the prosecutor was $6,997. Under plan B its bid was for $2,850, while that of the prosecutor was $3,039.50. 'Under plan C, for the lighting of the boardwalk and parks, the bid of the respondent was $922.50 and that of the prosecutor $944. The contracts were awarded to the respondent. The prosecutor seeks a writ of certiorari to attack these awards.

The first ground of attack is that the hids of the respondent under plans A and B were improper because no definite contract could be based on them. The bids of the respondent were for a lump sum. The bids of the prosecutor were for a sum per light. The specifications provided that in addition to the lights to be furnished the successful bidder should furnish additional lights if ordered to do so by the borough. The contention of the prosecutor is that this provision vitiates the contracts because if additional lights were, during the pendency of the contracts, ordered it would require an agreement between the parties with reference to the price to be paid for the additional lights. This does not necessarily follow as the number of lights desired for the borough was definitely stated and all were of the same candle power, so the cost per light is a matter of easy determination. A further answer to the prosecutor’s contention is that no additional lights might be required during the term of the contracts. If they should be the respondent would be obliged to furnish them, and if an agreement as to the price would have to be made and the respondent refused to make it the borough would have other remedies against the respondent to enforce the provisions of the agreement. The- form of contract proposed is the customary form for street lighting. We cannot see how the form of the bid if embodied in a contract would make the contract illegal. It would certainly be more unfair if a definite price was sought to be agreed upon in the contract for any additional lights that might be in the future ordered by the municipality as the location of these lights and the length of time they would have to be furnished would be factors in ascertaining what was a fair price for the borough to pay for such additional service.

The prosecutor also argues in this connection that the bids submitted did not meet the proposals under plans A and B. The argument advanced with reference to this point is the same as the one advanced in support of the first point.

The next point argued is that the bids of the respondent were not the lowest. This is not so. The figures as given above show the respondent’s bid to have been the lowest.

The next ground of attack is that the award for lighting the boardwalk and parks is illegal. The argument upon this point rests upon the provision for additional lights which has already been considered.

The next point is that all three awards were illegal as contravening the order of the board of public utility commissioners. The order referred to is the one previously mentioned, namely, the division of the borough of Spring Lake into lighting districts. This point is not well taken because the board in its opinion said, as we have stated, that the board ha'd no jurisdiction with reference to such official action as the borough of Spring Lake might desire to take in a matter of this kind.

The respondents question the standing of the prosecutor to apply for a writ because the prosecutor is not the lowest bidder and the record does not show the prosecutor to be a taxpayer. We think this point well taken. In Critchfield v. Mayor of Jersey City, 4 N. J. Mis. R. 299, this court said:

“Upon wholly technical grounds, most of them unworthy of consideration, the prosecutor, as an unsuccessful bidder, seeks to deprive the municipality of an obviously advantageous contract. He himself on his own showing could not obtain the award and is not a party in interest. In this situation he will not be heard to prevent the making of the contract and a completion of the city’s work.” The cases of West Jersey Traction Co. v. Camden, 58 N. J. L. 362, and Atlantic Gas and Water Co. v. Atlantic City, 73 Id. 360, are to the same effect.

The writ of certiorari is a discretionary writ. Proceedings to review municipal actions are not personal actions on which a prosecutor may on sharp grounds insist upon a personal right.

We find no illegality in the proceedings taken by the borough council of Spring Lake in the award of these contracts. The rule to show cause is discharged, with costs.


text:
    LOUIS D. GOLDBERG, PLAINTIFF-RESPONDENT, v. BENJAMIN FARBER AND ISIDOR KAPLAN, DEFENDANTS-APPELLANTS. NORTH JERSEY MORTGAGE COMPANY, INCORPORATED, PLAINTIFF-RESPONDENT, v. BENJAMIN FARBER AND ISIDOR KAPLAN, DEFENDANTS-APPELLANTS.
    Argued October 6, 1927
    Decided February 25, 1928.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellants, Braelow & Tepper and George F. Lahey, Jr.

    For the respondents, Zucker & Goldberg.

   Per Curiam.

The above cases are two appeals from, the Essex County-Circuit Court. The appeals were argued together. They present the same question, namely, the propriety of striking out an amended answer and entering summary judgment. The actions were instituted upon a bond given by the defendants in an attachment suit. One suit was by the attaching creditor; the other by an applying creditor. The facts briefly are that an attachment was issued by Louis D. Goldberg out of the Essex County Circuit Court against Jacob Miller and Joseph Friedman, partners, under which goods and chattels belonging to said partners trading as Miller Eriedman Company were attached. .On June 7th, 1924, as the defendants in attachment wanted to appear, a bond was given to the sheriff of Essex county in the sum of $8,754.60 by the defendants in attachment with Benjamin Earber and Isidor Kaplan as sureties. The condition of the bond was that if a return of the goods seized was made, if judgment should be rendered for the plaintiff, then the obligation would be void. Goldberg obtained a judgment for $4,465.02. The goods were not returned. The sheriff assigned the bond to Goldberg who instituted suit upon it against Earber and Kaplan, the sureties. The answer as amended set up eight defenses. These were all struck out and summary judgment entered in favor of Goldberg.

The first ground of appeal is based upon the striking out of the seventh defense. As to this defense the lower court said:

“The seventh separate defense is that-the true value of the goods and chattels, rights and credits and moneys and effects to be returned by them according to terms of their said bonds was less than $1,000 in value. That is no 'defense, and will be stricken out.”

What the appellants desire to do is to prove the true value of the goods taken and have a judgment entered against them for only such value. We see no merit in this contention. The suit is on the bond which speaks for itself. The bond is for the payment of a specific sum of money if the goods are not returned. The bond was given under section 17, paragraph 1, of the Attachment act. This provision is as follows:

“A bond to the officer who attached the personal property in double the appraised value thereof, conditioned for the return of the said property in case judgment shall be rendered for the plaintiff or for any of the applying creditors; which bond, in case of breach of said condition, the said officer shall on application of the plaintiff or applying creditor, without fee, assign to such person as the court shall direct, to be prosecuted for the benefit of the plaintiff and applying creditors.”

The appellants desire further to read into this section the words of the ninth section of the Attachment act which is as follows:

“9. Custody of personal property attached; bond by garnishee to officer; officer’s compensation. — The personal property so attached shall remain in the safe keeping of the officer to answer and abide the judgment of the court, unless the garnishee, after inventory and appraisement thereof, shall enter into bond to the officer with two sufficient sureties, being freeholders of the county, or with a qualified surety company, in double the sum at which such property was appraised, with condition that the said personal property, or the full value thereof, to be estimated by such appraisement, shall be forthcoming to answer the judgment of the court; the officer shall receive reasonable compensation for the cost of storage, the wages of watchman, or other expense necessary to securely keep the property, to be fixed by the court or a judge thereof and included in the officer’s fees for executing the writ, and to be taxed in the costs; such compensation shall be paid out of the first moneys arising from the sale of the property.” Pamph. L. 1901, p. 161.

This section of the act applies to garnishees and in our opinion cannot be read into a bond given under section YtP paragraph 1.

The attachment act (section 33) says the act must be construed in the most liberal manner for the benefit of creditors. It would certainly not be beneficial to creditors to sanction a practice which would permit testimony to be given as to the .value of the goods attached after a bond is given, approved by the court, accepted by the creditor, and the goods are discharged from the lien of the attachment. The debtor, if he chose to do so, could sell or secrete the goods so that a creditor could obtain no testimony as to their value.

The question appears to have been decided in the case of Hanness v. Bonnell, 23 N. J. L. 159, where the court said:

“The defendant was permitted to receive and enjoy the property during the pendency of the attachment, upon the condition that he would return it in case judgment should be rendered for any creditor. Judgment having been rendered and he having failed to return the property, the bondsmen are amenable to the penalty.”

In Vreeland v. Bruen, 21 N. J. L. 214, the court said (at p. 229) :

“The goods were first seized to compel the defendant’s appearance; until that was effected, or judgment and sale, the lien continued; but when the defendant appeared and entered into special bail, the lien was discharged, and the plaintiff and applying creditors were compelled to look to the defendant and his bail * * *. The property is given up, and no power remains with the sheriff to reclaim it, or even to hold or dispose of it, under the original lien. It must necessarily become subject to the defendant’s sale or disposition, liable to any new liens that the owner or the law may create, or subject to be seized and sold under execution, without any power to prevent it. Suppose, after the bond was given, a judgment creditor should cause the property to be sold by execution, could this court, if applied to, stay the sale, or order the sheriff to pay the money over for the benefit of the attachment? No, the answer would be; you must look to your bond; and * * * suppose, instead of the sheriff, the defendant himself, or since his discharge as a bankrupt, his assignee should attempt to sell the personal estate levied on, could he be restrained at the instance of the plaintiff? I think not; because his lien is divested, and other liens have arisen, leaving the party to his bond.”

The second ground of appeal argued is that the court erred in holding that the obligation of the defendants was the sum mentioned in the bond rather than the value of the goods. This is, in effect, the same question as has just been considered. It is argued by the appellants that because no appraisement of the goods was made the situation is altered. If the defendants in attachment chose to put up a bond without an appraisement being made they waived an appraisement. Berry v. Wasserman, 179 Mass. 537.

The second ease is that of an applying creditor who secured a judgment against the sureties on the bond. The same questions are involved in this case. The judgments of the Essex County Circuit Court are affirmed, with costs.


text:
    CHESTER N. ROGERS, PROSECUTOR, v. HUGH McGOWAN, Jr., MAYOR, AND ARTHUR W. KNEERIN ET AL., COMMISSIONERS OF THE VILLAGE OF RIDGEFIELD PARK, BERGEN COUNTY, NEW JERSEY, ET AL., ETC., DEFENDANTS.
    Decided February 28, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Mark A. Sullivan.

    For the defendants, Wall, Haight, Carey & Hartpence (Morrison, Lloyd & Morrison, of counsel).
   Per Curiam.

This writ brings up for review a resolution of the board of commissioners of Ridgefield Park, in the county of Bergen, passed on November 23d, 1926, confirming an award made by the general board of assessment to John A. Baldwin.

There was a motion to dismiss the writ for failure to bring on the argument of the cause at the January term, 1927. This circumstance will be considered and dealt with in the course of this opinion.

The conceded facts are that approximately five years ago an application was made to the board of public utility commissioners to compel the West Shore Railway Company, owner, and New York Central Railroad Company, lessee, to erect a passenger station at Mount Yernon street in said municipality. On September 15th, 1922, an order was made for the erection of the station on or before January 1st, 1926. On June 1st, 1926, the municipality and the railroad entered into a written agreement by which the municpality was to acquire land 'necessary for the station and platform. On July 1st, 1926, the board approved the plans for the erection of the station. On July 6th, 1926, an ordinance was introduced to acquire land needed for the station. On July 20th, 1926, a hearing on the ordinance was had, at which hearing the prosecutor was present.

The municipality offered to purchase the land needed but the owners refused, and .on October 17th, 1926, the matter was referred to the general board of assessment to make an award. On October 19th, 1926, a report of awards was made. On November 3d, 1926, the awards were confirmed, the prosecutor being present at this meeting. Notice of awards and confirmation was given to the owners on November 9th, 1926. Some owners appealed, and Mr. Baldwin accepted the award on Nocember 19th, 1926, and was paid for his land on November 20th, 1926, and made a deed on November 24th, 1926, to the municipality.

The writ in this case was allowed on December 2d, 1926. After the allowance of the writ, defendants, other than the commissioners of the village and village clerk were added. The added defendants were the railroad companies and the owners of the lands to be effected.

On the motion made before us, that the writ should be dismissed because of the failure of the prosecutor to bring on the case for argument at the January term, 1927, we think the writ should not be dismissed on that ground, since it appears that there was not sufficient opportunity afforded.the prosecutor to take the necessary depositions and prepare the case for argument at the January term. We think, however, that the writ should be dismissed for laches for the reasons hereinafter stated.

According to the proofs in the cause, the prosecutor delayed taking any steps to enforce such legal rights as he might have had, until Mr. Baldwin, whose award he attacks, had delivered the deed for his property, and had been paid the money. Moreover, he stood by without challenging the legality of the proceedings, in relation to the contract, the ordinance and the proceedings under which the work was being done, and waited until the railroad company had finished a large part of the work, under its contract, and the municipality had expended its funds in connection therewith. It appears by the proofs that at the time of the application for, and the issuance of, the writ, the passenger platform was about forty per cent, completed; the foundation for the new station finished, and materials were upon the ground for the completion of the job.

Thus, it is manifest that the prosecutor permitted over five months to elapse from the time the contract was entered into between the railroad company and the municipality, and from the passage of the ordinance and the report of the awards made by the board of assessment, though he had full knowledge of all the steps that were being taken by the municipality and the railroad company, before he made any attempt to attack the validity of the contract, or the ordinance, or the award made to Mr. Baldwin, and as a consequence, the prosecutor, by his conduct, has caused the municipality to be led into a position which cannot now be altered without great financial loss to the municipality. In such a posture of affairs, the prosecutor is not entitled to be heard, and the writ should be dismissed, as improvidently granted.

Writ is dismissed, with costs.


text:
    CHARLES B. EDDY, PROSECUTOR, v. INHABITANTS OF THE CITY OF PLAINFIELD, RESPONDENTS.
    Submitted October 14, 1927
    Decided February 29, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Arthur Lovell.

    For the respondent, Charles A. Reed.

   Per Curiam.

This case is before this court upon a writ of certiorari. The writ was allowed to review an ordinance of the city of Plain-field, accepting a street or road, being a continuation of Stelle avenue, and running from Plainfield avenue on the east to Grant avenue on the west. The ordinance was adopted on April 18th, 1927. The prosecutor challenges the ordinance upon the ground that some of the land over which the street runs has never been dedicated to public use. The reasons and briefs do not raise the question as to whether certiorari is the proper procedure to raise the issue which we are asked to decide. We, therefore, will not pass upon this question.

The street referred to in the ordinance is some two thousand two hundred feet long. This makes the frontage on both sides four thousand four hundred feet. The prosecutor owns four hundred feet of frontage, two hundred feet on each side of the street. His lots, corner lots, are located at the Grant avenue end of the street. He claims the four hundred feet of the alleged street abutting on his property was never dedicated to public use. The respondents contend that every foot of land in the street accepted by the ordinance was dedicated. This dedication, it claims, is evidence by (1) maps placed on file by the owners showing the street; (2) by sales of land from these maps and reference in the deeds in the description of the lands sold to the street, and (3) by the actual opening and laying out of said street with the consent of abutting land owners. The street is first mentioned in a deed dated July 11th, 1872, made by James Leonard to Edwin M. Daniel. This deed establishing a new line between the parties thereto parallel with the centre line of Eighth street, four hundred feet therefrom and extending one thousand three hundred and seven and five-tenths feet westerly from Plainfield avenue towards Grant avenue. In this deed is contained the following: “Said last-mentioned boundary line being the center line of a proposed new street to be laid out and opened sixty feet in width and designated by the parties hereto as Ninth street.”

In 1874 a map was filed by the owners of the land in the office of the register of deeds for Union county. This map was entitled “Map of Choice Villa Sites and Building Plots situated in the City of Plainfield, N. J., No. 1.” On this map is shown a street designated as Ninth street. The center line of the street as shown on the map substantially follows the division line between the properties of Leonard and Daniel as established by the deed between these parties dated July 11th, 1872. James Leonard, Edwin M. Daniel and Isaac W. Rushmore were the owners of the fee of the street. It appears that in every deed made by these parties or their grantees after the map was filed reference is made to the street and the existence thereof recognized.

Prior to the year 1910 Ninth street had never been marked out on the ground. It had been acknowledged to be a street in contracts made in 1894 by Rushmore with parties by the name of Barrows and Pinto and by the deeds given to execute the contracts. In 1919 the Central Holding Company offered to lay out the street, grade it, macadamize it, construct concrete sidewalks, install sewer, gas and water pipes, and plant trees along the sidewalks without expense to the property owners. This offer was accepted by the property owners and the street was graded, sewer pipes laid, concrete sidewalks and curbs constructed. No gas or water mains were installed; the street was not macadamized, and trees along the sidewalk were not planted. The prosecutor claims that because of the failure of the Central Holding Company to fully perform.the contract he revoked his consent to the laying out of the street. The alleged revocation was evidenced by putting up signs that it was a private road.

The facts above recited are taken from the statement of the facts agreed upon between the parties to this proceeding and embodied in the state of the case. The facts have been abridged but sufficient of the facts have been recited to lay the ground-work for the consideration of the questions involved.

The first question we will consider is whether there is evidence of the dedication of the land forming the street in question sufficient to bar the prosecutor who claims from one who is alleged by the respondent to have joined in the dedication of the land to public use. It has been settled by many cases in the courts of this state that the making of deeds by landowners, • recognizing the existence of a street, is conclusive evidence against them or those who claim under them of the dedication of the street to the public use. State, Central Railroad Company of New Jersey, v. The City of Elizabeth, 37 N. J. L. 432.

In the present case the land of the prosecutor had been deeded by instruments recognizing the existence of the street. This is conclusive evidence against the grantors or subsequent owners of the land that the street has been dedicated to the public use. Camden v. McAndrews and Forbes Co., 85 N. J. L. 260. The recognition of a street by a description in a deed is as controlling as if the street were dedicated by a map. Tweddel v. South Orange, 95 Id. 327. Not only in the instant case is there a dedication by reference to the street in conveyances of lands abutting thereon, but there is also a dedication by the 1874 map which was filed in the Union county clerk’s office by the owners of the lands out of which the street in question was carved. The conveyance of a lot by reference to a map made by a vendor and filed in the proper public office which describes the land conveyed as bounding upon said designated street constitutes a dedication to public use of the street as laid out on the map. Schmidt v. Spaeth, 82 Id. 575.

The act of the prosecutor in permitting and consenting to the action of the Central Holding Company with reference to work upon the street as hereinbefore mentioned bars the prosecutor in our opinion from denying at this time that there has been a dedication of the street. His acts manifested an intent to dedicate. This was sufficient. Such an intention cannot be subsequently revoked because of the breach of contract of one who had agreed to do the work of .improving the street.

We have, therefore, reached the conclusion that by the conveyances, map and acts of the prosecutor, there has been evidenced a dedication to public use of the street or road particularly described in said ordinance. The other prerequisite, namely, the acceptance of the dedication by the public in order to create it a public street, is evidenced by the passage of the ordinance attacked.

The ordinance attacked is sustained. The writ of certiorari is dismissed, with costs to the respondent.


text:
    PLAINFIELD-UNION WATER COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF NEW JERSEY, RESPONDENT.
    Argued May 30, 1927
    Decided March 3, 1928.

      Before Justices Trenchard, Kalisch and Katzehbach.
    For the prosecutor, Frank Bergen and Robert H. McCarter.

    For the respondent Board of Public Utility Commissioners of New Jersey, Thomas Brown.

    For the intervening respondent the inhabitants of the city of Plainfield, William Newcorn.

   Per Curiam.

This case is before us upon a writ of certiorari allowed to review an order of the board of public utility commissioners dated August 26th, 1926. In the order the board dismissed a petition of the prosecutor, Plainfield-Union Water Company, by which the petitioner sought to amortize deficits in earnings for the years 1924 and 1925 and rate case expenses by an increase in rates over a two-year period commencing October 1st, 1926. The amount sought to be recouped by the prosecutor was $205,961.63. The board allowed the utility in the order to recoup $91,189. Of this sum $35,691 was for the expenses of the rate case and the balance was for the deficits below a reasonable return during the years 1924 and 1925.

The record, which is voluminous and includes depositions taken under the writ, presents from the standpoint of the prosecutor a tale of the woes of a water utility, brought about by inadequate rates, an unfair valuation of the property devoted to public use, a lessened supply of water due to drought, quo warranto proceedings, inability to attract capital because of the attack on its charter in the quo warranto action, and insufficient income from invested capital. Many of the matters mentioned in the briefs filed in behalf of the prosecutor enlist to a degree our sympathy, but the findings of fact made by the board are based upon conflicting evidence. We cannot, therefore, reverse these findings, there being evidence to support them.

The first ground of attack is leveled at the refusal of the board to recoup a ten per cent, deduction upon bills which the board ordered to be made for inadequate service. This deduction was ordered in May, 1924. It was continued until the board by an order made June 10th, 1926, directed the prosecutor to cease making the deduction because the service of the prosecutor had in the meantime become adequate. The prosecutor for two years had acquiesced in this order. The order for the making the deduction was either good or bad at the time it was made. The remedy of the prosecutor, if it felt aggrieved, was to review it at the time it was made. The prosecutor could not acquiesce in the decision of the board and comply with the order and two years later attack it. The public utility statute prescribes that a writ of certiorari shall be applied for within thirty days after the making of the order. A party aggrieved cannot permit this period to expire and later seek a review of the subject matter of the order by presenting a petition for the allowance, in future bills of the amount deducted for inadequate service under the former order and if not granted review the question by certiorari of the order based on the petition for review. We think the refusal of the board to allow the amounts deducted from customers’ bills for inadequate service to be recouped in the manner sought by the prosecutor proper.

The prosecutor next contends that the order of May 22d, 1924, requiring the ten per cent, deduction from bills for inadequate service was made without notice to prosecutor and is void. This claim, in the first place, is not borne out by the record, and in the second place, should have been made in a review of the order of May 22d, 1924, and not in a review of the order brought up in this proceeding. This also applies to the sixth reason which is that the prosecutor was not rendering inadequate service at the time the order was made or subsequent thereto.

The prosecutor also claims that it should be allowed in its capital investment fifteen per cent, of the amount added thereto during the years 1924 and 1925 for overhead expenditures. Where a valuation of the property of a utility is being made ab initio and without data as to the actual expenditure made at the time of plant installation such an allowance is justified, but in the present case there was evidence that the overhead expenditures incurred in plant additions were charged in the expense account and paid out of the expense account. Under such evidence we think the board correct in its refusal to again allow them arbitrarily and on a theoretical basis as a capital investment. The same reasoning applies to the claim of ten per cent, for going value. The plant was in operation at the time the capital expenditures for 1924 and 1925 were being jnade. We cannot say the board was wrong in arriving at the conclusion that this item should not be allowed.

A claim for interest on the amortization of the difference in rates was asked by the prosecutor and disallowed by the board. We think this disallowance is supported by the case of Indiana Bell Telephone Co. v. Public Service Commission of Indiana et al., 300 Fed. Rep. 190.

The record contains a mass of figures with relation to the amount which the prosecutor is entitled to recoup. The board reviewed and considered these figures. There were discrepancies between the amounts the witnesses of the prosecutor testified to and the amounts reported by the prosecutor to the board in its reports. Our review of this testimony has brought up to the conclusion that we cannot say the result arrived at by the board is unsupported by the evidence. The order of the board will, therefore, not be disturbed.

In this case a motion to strike out the testimony taken under the rule allowed in these proceedings was made. This question has been considered and disposed of in the case of Middlesex Water Co. v. Board of Public Utility Commissioners of New Jersey, 6 N. J. Mis. R. 51, which was argued before us on the same day as the case under consideration. The motion to strike out the testimony taken under the rule is denied for the reasons expressed in the opinion in the case referred to.

The order under review is affirmed, with costs.


author: Lawrence, J.

text:
    Morris County Circuit Court.
    JOANNA M. STILES v. MAX KURILOFF AND MORRIS KURILOFF.
    For the plaintiff, Benjamin W. Ellicott.

    For the defendant, Leon E. Cone.

   Lawrence, J.

At the opening of the trial of this case, counsel for defendant moved to strike the complaint on the ground that it did not set forth a cause of action. Notice of this motion accompanied the answer filed. The gravamen of the action as set forth in the complaint appears to be that plaintiff was the owner of a certain farm in this county and entered into a written contract for sale thereof with a third person. The contract was signed and duly executed, and the down payment stipulated on account of the purchase price was made. Before the time fixed therein for the delivery of the deed, however, the purchaser declined to take title because of his discovery that after the contract had been executed a lis pendens had been filed in the county clerk’s office by defendants giving notice that a suit had been commenced in the court of chancery to subject the land to the lien of a judgment obtained by them against a brother of plaintiff alleging that he, in fact, was the equitable owner of the farm and that plaintiff held the legal title in trust for him. This suit is declared to have been without justification and it appears that the bill was subsequently dismissed for want of prosecution. On the refusal of the purchaser to take title, plaintiff returned to him the down payment and brought this action against the defendants, setting up in her complaint a slander of title resulting in her loss of the price agreed upon in the contract of sale. The suit is in some respects unusual and very little authority is found on the subject in our state reports. However, in the time at my disposal I have examined the text books and cases cited from other states and find the rule to be this: An action for slander of title to land cannot be maintained by the owner for statements causing the breach by a third person of a valid contract to purchase, such statements having been made subsequent to the execution thereof. A number of authorities to like effect are cited, and I take it that that was the principle applied in the ease of Burkett v. Griffith, found in 13 L. R. A. (at p. 707), which principle I also find set forth in R. C. L., Cyc. and Corp. Jur. There is apparently no precise authority in New Jersey on the subject, and yet I feel obliged to accept the rule just stated as applicable to this case, for there is nothing to indicate in the complaint that the contract for sale made by plaintiff with the third person was not enforceable, and if enforceable, she suffered no damage by reason of the filing of the bill of complaint and Us pendens by defendants. She could have filed a bill for specific performance in the Court of Chancery or sued for a breach of the contract. She did neither but voluntarily returned the down payment. That being so, the cases appear to hold that there cannot be anjr slander of title of an actionable character after the actual sale, as evidenced by the agreement in writing.

The authority cited carries this text, and I shall adapt it to the present case. If the plaintiff has merely a general intention to sell, or if the words uttered or published do not reach any intending pureháser, or if they do not prevent any sale, or are uttered after the sale is completed or agreed upon and contracted for, the plaintiff does not suffer any damage from such utterance or publication. If the plaintiff has sustained any damage in consequence of the refusal of any person to perform his lawful contract with her, it is a loss which may be compensated in an action brought by her against such person; and the law supposes that in such action the plaintiff would receive a full indemnity, unless, of course, plaintiff voluntarily releases such person from his contract, in which event she would naturally be without remedy.

It is evident that no cause of action is set forth in the complaint in the present action and the motion to strike will be granted.