author: Baches, Y. C.

text:
    Joseph Spingarn, complainant, v. Ella Spingarn, defendant.
    [Decided June 3d, 1930.]

      Messrs. Lichtenstein, Schwartz & Friedenberg, for the complainant.

      Messrs. McCarter & English, for the defendant.
   Baches, Y. C.

This suit is by a husband against his wife to recover $38,850 of Liberty bonds and treasury notes, or their value. He claims she took them from his safe deposit box in the Guaranty Trust Company, New York, shortly before she left him in October, 1924. To her suit in the Supreme Court of New York for a separation, he counter-claimed for a separation and to recover $38,850 of Liberty bonds or their value. The present suit is for the identical property, though differently described. The court denied the wife relief and dismissed the husband’s counter-claim on the merits; so the judgment roll read. The husband seeks to avoid its force by the plea that the issue concerning the bonds was not in fact tried nor decided. According to the common law rule in this state the judgment is a bar. “In a second suit between the same parties for the same cause of action, all triable matters within the issues [of the first suit] are res judicata.” Nagel v. Conrad, 96 N. J. Eq. 61. In a second suit between the same parties for a different cause for action it is permissible to look into the record to ascertain whether an issue presented in the second suit was actually tried and decided in the first. “In a second suit between the same parties for a different cause of action only those matters within the issues actually litigated and determined [in the first suit] are res judicata.” Nagel v. Conrad, supra; Paterson v. Baker, 51 N. J. Eq. 49, and Walsh Estate, 80 N. J. Eq. 565, are illustrations of the application.

The rule in New York is even more stringent than at common law. Under section 482 of the Civil Practice act:

“A final judgment dismissing the complaint before the close of the plaintiff’s evidence does not prevent a new action for the same cause of action, unless it expressly declares that it is rendered upon the merits.
“A dismissal of a complaint or a counter-claim at the close of the plaintiff’s or defendant’s evidence, as the case may be, or a dismissal of a complaint or counter-claim at the close of the whole evidence is a final determination of the merits of the cause of action and bars a new action between the same parties or their privies for the same cause of action unless the court shall dismiss without prejudice.”

This case comes squarely within the provision of the second subdivision of the section. In Hollenbeck v. Aetna Casualty and Surety Co., 214 N. Y. Supp. 402, it is held that a judgment of dismissal on a nonsuit is a bar to a second suit unless it recites to be without prejudice, and that if the judgment be mistakenly entered, in failing to state that it is without prejudice, the remedy is to have it corrected. That that is the appropriate course is also indicated in Jones v. Gould, 129 N. Y. Supp. 1038, and Caruso v. Metropolitan Stores, 212 N. Y. Supp. 199. Both were on motions to correct the judgments in the earlier suits to avoid pleas of res judicata. Clark v. Scovill, 198 N. Y. 279, is authority that the attack must be direct. There, there were three defenses pleaded, two on the merits, one to the jurisdiction. A verdict was directed for the defendant followed by judgment of dismissal on the merits. On motion the trial court struck out the words “on the merits” as unwarranted. The order was appealed and reversed by the appellate division because the judgment might have rested on the meritorious defenses. The court of appeals reversed the appellate division, holding the true rule to be, that the judgment must have rested on them to have conclusive force. In other words if it might have rested on the non-meritorious plea the judgment was not a bar. Lodewick v. Cutting, 201 N. Y. Supp. 276, is not authority for a collateral attack. There the first suit had been dismissed on a demurrer to the complaint. The judgment role read that it was dismissed on the merits. At that time the code of civil procedure was in effect, section 1209 of which provided that

“A final judgment, dismissing the complaint, either before or after a trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment role, that it is rendered upon the merits.”

.In the second suit for the same cause for action the prior judgment was pleaded in bar. In denying the plea the court treated the words “upon the merits” as a patent inadvertence, and ignored them because the judgment roll bore plenary proof that the judgment was not and could not have been on the merits. The judgment roll in the instant case does not admit of such liberties. The taking of the bonds was a triable issue and it is not apparent from the record that the issue was not tried and determined. All the then known and available facts of the alleged theft of the bonds by the wife were laid before the court by the husband, circumstantially and in detail, and were denied by her. True, he was called as a witness by her and the facts were developed on direct and cross-examination in an effort to show the husband’s capacity to pay alimony in the event of a decree and the findings of fact and law were upon the wife’s cause for action, and none upon the issue of the bonds; but the manner of producing the evidence was immaterial, and the absence from the record of findings of fact and of law on that issue—an essential procedure for an appeal—is not evidential that the issue was not, in fact, tried and determined and the determination embodied in the judgment of dismissal on the merits.

The cause will stand over for thirty days to enable the husband to move for a correction of the judgment; otherwise, the prayer of the bill will be denied.

The wife counter-claims for $1,500 money lent; the return of wedding gifts, marked with her initials, and personal apparel, or their money value, and $5,000 of Liberty bonds.

1. The wife had a deposit account with Macy & Company, made up of checks to her order, given by the husband’s father, for board money, which the husband consented she should have. He borrowed $1,500 of it for the expenses of a pleasure trip for the two, promising to repay her. The money was hers by gift. He must make good his promise.

2. The wedding gifts—mostly from him, some from her friends, are her property. He gave her an automobile on their wedding day, bearing her initials, as a wedding gift; also, as wedding presents, silver and glassware, silver and glass ornaments and linens, all marked with her initials. Her trousseau is among the articles claimed. He does not deny the gifts, but asserts that the things were for community enjoyment and the gifts limited to that—a string to them. He gave them; he had them marked with her initials to identify them as hers, and he cannot retake them. Farrow v. Farrow, 72 N. J. Eq. 421. The fact that he took out in his name the license and the insurance on the automobile is not inconsistent with the gift. He claims the gifts from friends to be of the same type. The friends indicated the donee by the initials. The husband must respond in kind or for the value of the articles, and for that purpose there will be a ■reference to a master.

The $5,000 Liberty bonds. The wife claims that her husband gave her $25,000 in Liberty bonds in May, 1924; that shortly before she left he took them from her safe deposit box at the Corn Exchange Bank and returned but $20,000. She sues for the difference. He claims she never had Liberty bonds, bnt that he gave her $30,000 in securities, consisting of $5,000 United States treasury notes; $5,000 Anaconda Copper Mining Company; $5,000 American Woolen Mills; $5,000 American Chain Stores Company, and $10,000 Japanese bonds, and that when she threatened to leave him, and fearing she would and hoping to restrain her, he took out of her box at the Corn Exchange Bank all the securities except the American Woolen Mills, and placed them in his box at the Guaranty Trust Company, to which both had access but to which at the time, he carried the keys That he did not take the $5,000 American Woolen Mills, because they were registered in her name. That on the same or the next day, and evidently after she discovered that he had taken her securities, she went to his box at the Guaranty Trust Company, borrowed a key from an attendant and took his $28,850 in Liberty bonds and $10,000 in treasury notes, and her own $5,000 in treasury notes. Checked, they agreed upon mutual restitution, and he gave back the $20,000 of securities (she already had her $5,000 of treasury notes, which she had retaken, and to that fact he called attention) and she promised to return his bonds and notes, which later she refused to do, claiming she had not taken them. The question is did he take $25,000 in the securities or in Liberty bonds? The burden of proof is on her.

At the trial in New York she denied taking his bonds and notes and protested that up to that time she had not even heard that they were missing from his box. She also testified that he had given her $30,000 in bonds; that he took from her $25,000 and returned $20,000 of them. This tallies with his version except that she called the securities bonds, and she failed to state that, that she herself had retaken the $5,000 in treasury notes. Further, she was positive that when she left she had only $25,000 in securities. At the hearing in the present suit she confesses that at the time of the trial in New York she knew that her husband complained that his $38,850 in Liberty bonds and treasury notes were missing from his box and had demanded them of her before she left. And she now says that he gave her $50,000 in securities, that $25,000 were in Liberty bonds, and that when she testified in Few York that he had given her $30,000 in bonds and that she had $25,000 when she left, she meant that she had $25,000 in Liberty bonds. Fow, if that is what she then meant—that he gave her $25,000 in Liberty bonds and she had $25,000 when she left—her cause fails. That is, however, -not what she meant. What she then had in mind was, that her husband had given her $30,000 in the securities above itemized, that he had taken $25,000 of them and failed to • return $5,000'—the treasury notes she herself had retrieved. To have admitted that she had these notes would have verified his charge that she had been to his box and ■taken them and his $38,850 of bonds and notes,

The reason for the change of front, that her husband had given her $25,000 in Liberty bonds is transparent. Since the Few York trial $28,000 of his bonds, and her $5,000 in treasury notes, were traced to her possession. She sold $5,000 of the bonds; $8,000 were found in her mother’s home and she has $15,000. The $5,000 treasury notes were also found at her mother’s home. The bonds and the treasury notes ■were traced and identified by their serial numbers, of which <the husband had kept a record. .

Her explanation of how her husband came to give her $25,000 in Liberty bonds is romantic. She says that in April, 1924, he feloniously abstracted from her box in the Corn Exchange Bank $25,000 of Liberty bonds belonging to her mother, which she had there for safe keeping; that upon discovery she demanded their return and threatened to tell her mother and brothers; that he solicited a promise not to tell, and in a short time thereafter returned them and at the •same time made her a present of $25,000 of Liberty bonds '—hush money. That she put them and the $25,000 worth he gave her back in the same box where she also had her remaining securities, and that she took her mother’s out and took them to her mother’s home when, in October, she found •that he had taken hers. She admits that at the time he is supposed to have taken her mother’s bonds she knew he had $105,000 in securities in his vault, and she is unable to advanee any theory why he, admittedly wealthy and with good credit, should have taken her mother’s bonds upon which to raise money, which she says was the reason he gave. Nor is there any explanation why, in October, he should have taken the wife’s bonds and not also her other securities which she admits were together.

Now to account for the $28,000 Liberty bonds and $5,000 treasury notes traced to her and found in her and her mother’s possession; she claims that the $5,000 of bonds she sold and the $15,000 she retains are those her husband returned to her—having kept $5,000 for which she is suing, and that the $8,000 of bonds and $5,000 in treasury notes her mother has are part of $25,000 given to her mother by her father just before he died, about the time or shortly before they were put in her Corn Exchange box for feafe keeping. But the bonds bear the serial numbers of the $28,000 taken from her husband’s box, and the treasury notes, the serial numbers of those he gave her, and that coincidence called for an explanation and disingenuously it is: That when her husband returned her mother’s and her securities, her mother’s in May and hers in October, 1924, he may not have returned those he had taken but substituted other bonds and treasury notes he then owned. It is ingenious but disproved. Her mother’s bonds were taken in April, and returned in May, 1924; that is her statement. Her husband had the $28,850 ear-marked bonds as late as October of that year, for he banked the interest coupons due the 15th of that month—so his deposit slips show.

And this is weird. She professes that neither she nor her mother cashed the semi-annual coupons on the ear-marked bonds that have since accrued, although they were cut off and missing when the bonds were found shortly before and during this trial. Asked to explain, she says her husband had clipped them off before he returned the bonds in 1924. To cut off the coupons that were to accrue right up to the time the bonds were found was uncanny foresight of when they were to be unearthed and it was indeed temarious of the husband to steal the coupons from his mother-in-law’s bonds—the bonds he had returned under threat of exposure, and to avoid scandal he had paid $25,000. Need it be added, that the wife’s mother, Mrs. Goldberg, never had $25,000 in government securities, received from her deceased husband? She was able to account for only $13,000—those identified as the complainant’s. Where were the other $12,000 ? She was in modest circumstances and they were surely not consumed in living.

There is also this bit of persuasive evidence that mark the husband’s story as true and the wife’s unworthy. To support her counter-claim, that he took from her box $25,000 in Liberty bonds and returned but $20,000, and to refute his version that he took $25,000 of securities and returned $20,000 and she herself recaptured $5,000 in treasury notes, she has persisted and reiterated that he never gave her $5,000 in treasury notes and therefore could not have taken and she retaken them. Nevertheless she admits that the $25,000 in securities were $5,000 Anaconda Copper Mining Company, $5,000 American Woolen Company, $5,000 American Chain Stores Company, and $10,000 Japanese bonds; the $5,000 treasury notes would sum up $30,000 in securities she testified in the New York trial that he gave her and which she now says was but $25,000. Now, the untruth of her denial is demonstrated by a memorandum she made of her holdings, made on the back of a Corn Exchange Bank envelope, her bank, and which she accidentally left behind, in which she listed the treasury notes as Series B1927 (NO) 45679, 45675-6-7-8; “Anaconda Copper Mining Company;” “American Woolen Company,” and “American Chain Company.” The $10,000 Japanese bonds do not appear on the slip because they were given to her shortly before she left.

The serial numbers on the five treasury notes identify them as those given to her by her husband and proves beyond peradventure the fact that her husband had given her $30,000 in securities of which $5,000 were the treasury notes, and further brands her testimony of a $25,000 Liberty bond gift as a fabrication; an expediency to meet and circumvent her husband’s charge that she stole his $38,850 bonds and treasury notes.

Her story is not believed and her prayer is denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PAUL BENCSKO, PLAINTIFF, v. CAESAR A. CANNARA, DEFENDANT.
    Argued May 7, 1930
    Decided May 19, 1930.
    Before Justices Black and Case.
    Eor the rule, Stein, McGlynn & Eannoch.

      Contra, John W. Palmer.

   Per Curiam.

The problem for solution in this case is whether the defendant, Caesar A. Cannara, was discharged from liability of a debt, in a bankruptcy proceeding by the United States District Court, District of New Jersey, on September 8th, 1925. The situation grew out of the following facts, as set forth in the defendant’s petition addressed to this court, viz.: A suit was commenced on November 23d, 1923, to recover damages for personal injuries caused by the negligence of the defendant, in operating an automobile. On January 27th, 1925, a verdict was entered against the defendant and in favor of the plaintiff, in the Essex Circuit Court for $10,000. A judgment was entered on the verdict on February 9th, 1925, for $10,000. On January 30th, 1925, the defendant and petitioner was adjudged a bankrupt by the United States District Court. On January 30th, 1925, the petitioner filed a schedule of his assets and liabilities, -which included a judgment in the New Jersey Supreme Court. On March 5th, 1925, a proof of claim was filed and on September 8th, 1925, the petitioner was discharged from all debts and claims, &c. On April 15th, 1930, the Chief Justice granted the rule to show cause, why the judgment should not be canceled, setting aside the execution issued thereon, enjoining the sale of the property levied under the execution. The'case is brought before the court on a stipulation of facts, in lieu of testimony. The crux of the case is whether a “verdict” and “judgment” are synonymous terms within the meaning of section 63 of the Bankruptcy act of 1898. It will be observed that the verdict was rendered on January 27th, 1925; the judgment was not entered until February 9th, 1925; but on January 30th, 1925, the petitioner was adjudged a bankrupt. The statute provides for debts which may be proved, viz., of “a fixed liability, as evidence by a judgment or an instrument in writing absolutely owing at the time of the filing of the petition against him, whether then payable or not, &e.”

After hearing the argument of the respective counsel and reading and considering the helpful and exhaustive briefs, we are led to the conclusion that the petitioner, the defendant was not discharged from the debt in question, on the ground that it was not made provable under the statute. The result is, the rule to show cause heretofore allowed by the Chief Justice on April 15th, 1930, is discharged, with costs.' An order may be entered to that effect.


author: Pee Cueiam.

text:
    MICHAEL MORELLA, PLAINTIFF-RESPONDENT, v. ADOLPH CARASSALE, DEFENDANT-APPELLANT.
    Argued May 6, 1930
    Decided May 19, 1930.
    Before Justices Black and Case.
    Eor the plaintiff-respondent, Leon Gerofslcy.

    For the defendant-appellant, W. Bddy Heath and Byman Herr.

   Pee Cueiam.

This suit was brought to recover the sum of $92 for the value of an automobile battery. The state of demand consists of two counts, in which the defendant is charged with “fraudulently, falsely and maliciously in answer to the plaintiff, &c., that he would take care of the matter of returning the battery.” The second count, like the first, charges that he, the defendant, “would see that the cost of the battery and hire thereof was taken care of.”

The case was tried by the court without a jury, resulting-in a judgment for the plaintiff for $92. The defendant appealed and filed six specifications of the determinations with respect to which the defendant is dissatisfied in point of law. We need be concerned only with the fifth, viz., there is no evidence upon which the judgment of the court can be sustained. As we read the testimony sent up with the appeal, the allegations made in the state of demand are not supported by the proofs, viz., fraud and malice. The plaintiff’s testimony is, that the defendant said to him at the time he gave the battery to the defendant, “I will take care of it.” It is difficult for us to see how that testimony supports the judgment or is evidence of any fraud. The judgment of the District Court of Somerset county is therefore reversed, with costs.


text:
    MORRIS D. ROSENTHAL, PLAINTIFF-APPELLANT, v. BALTIMORE AMERICAN INSURANCE COMPANY, DEFENDANT-RESPONDENT.
    Argued May 6, 1930
    Decided May 17, 1930.
    Before Justices Black and Case.
    Eor the plaintiff-appellant, Corn •& Silverman.

    For the defendant-respondent, Arthur T. Vanderbilt.

   Per Curiam.

Judgment was rendered in favor of the defendant, under an insurance policy against loss by theft of the plaintiff’s automobile. There is no merit in the appeal. The points raised call for no extended discussion. The judgment of the First District Court of Newark is affirmed. The policy of insurance sued on provides: “This entire policy shall be void if the interest of the assured be or become other than unconditional and sole ownership; or in ease of transfer or termination of the interest of the assured other than by death of the assured,” &c. The District Court rendered judgment for the defendant on the ground that the plaintiff had breached the terms of the policy.

With this view we are in accord. The judgment of the District Court is therefore affirmed.


text:
    DAVID FEINBERG, PLAINTIFF-RESPONDENT, v. BUILDING CONSTRUCTION COMPANY, DEFENDANT-APPELLANT.
    Argued May 6, 1930
    Decided May 19, 1930.
    Before Justices Black and Case.
    For the plaintiff-respondent, Fred & Max Feinberg.

    For the defendant-appellant, Seclow & Nessanbaum.

   Per Curiam.

This suit was brought to recover the sum of $500 for labor performed and materials supplied between the 21st of May and the 1st day of November, 1929; which last mentioned date is the day upon which the last work was performed. The land is a lot located on the northerly side of Wilkinson avenue in Jersey City, New Jersey.

The ease was tried by the court without a jury resulting in a judgment for the plaintiff and against the builder and owner for the sum of $500 generally; but, as against the mortgage of Ida Pecker the sum of $260 of such amount is prior and paramount to the mortgage of Ida Pecker. The defendant appeals and files three grounds of appeal. The testimony sent up with the appeal is quite voluminous. The view that we take of the case renders it quite unnecessary to make any extended discussion. After hearing the argument presented on the appeal, a reading of the briefs and a consideration of the testimony we are satisfied with the conclusion reached by the trial court. The controverted questions involved are largely questions of fact. The judgment rendered is supported by evidence. The judgment of the Eirst District Court of Jersey City is therefore affirmed.


text:
    WILLIAM J. COUGHLIN ET UX., PLAINTIFFS-RESPONDENTS, v. ENGLEWOOD HEIGHTS ESTATES, INCORPORATED, DEFENDANT-APPELLANT.
    Argued May 6, 1930
    Decided May 19, 1930.
    Before Justices Black and Case.
    Eor the plaintiffs-respondents, 8. Melville Hussey.

    Eor the defendant-appellant, O’Brien & Tarlalshy.

   Pee Cueiam.

This suit was brought to recover $500, the amount of an assessment against the plaintiff for streets and sidewalks by the city of Englewood, New Jersey. The basis of the suit is an agreement dated September 14th, 1926, for the purchase of lots 1 and 2 in block 199 E, as shown on a map of Englewood Heights. One of the provisions of the agreement is as follows: “The seller agrees that streets and sidewalks will be provided and water, gas, electricity and sewers available at said premises. Said streets and sidewalks to be paid for by seller.”

The case was tried by the court without a jury resulting in a judgment for the plaintiffs for $500. The defendant appeals and files six specifications of determinations with respect to whieli it is dissatisfied in point of law. We need only be concerned with Nos. 5 and 6; admitting testimony, which tended to vary or alter the terms of Exhibits P-1 and 2, the agreement and the deed executed in pursuance thereof. This point we think is well made. The objectionable testimony is as follows, viz.: A conversation with Mr. Wehrhan, agent. “A. The conversation was, ‘Who is going to pay for the assessment of the paving of the streets?’ He says, ‘Mr. Coughlin, we will take care of that when we draw up the original contract,’ &e.”

The plaintiff Mrs. Coughlin on direct examination was asked the following question to which objection was made and exception noted: “Q. Were you present when your husband discussed with Mr. Wehrhan the question of the assessment for paved streets—the prospective assessment? A. I was. Q. What did your husband say to Mr. Wehrhan about the assessment for paved streets? Mr. Tartalsky: I object. The contract speaks for itself. The Court: I will permit it. Mr. Tartalsky: Exception (granted). A. My husband asked Mr. Wehrhan who was going to pay for the assessment of the paving of the streets and sidewalk, and he said he was. The conversation was between Mr. Wehrhan and Mr. Coughlin in reference to the assessment for the pavement of the streets and sidewalks. Mr. Coughlin said he wouldn’t sign the contract unless it was put in the contract that the assessments would be paid for by the seller.”

This testimony is objectionable under the well known and much cited case of Naumberg v. Young, 44 N. J. L. 331, and in the recent case of Wills v. Camden Lime Co., 104 Id. 428. Eor this error by the trial court appearing in the record, the judgment of the First District Court of Jersey City must be reversed, and the judgment is therefore reversed.


author: Pek Cukiam.

text:
    JACOB BELSKY, TRADING AS “THE BEST,” PLAINTIFF, v. NORTHERN INSURANCE COMPANY, DEFENDANT.
    Argued May 7, 1930
    Decided May 19, 1930.
    Before Justices Black and Case.
    For the plaintiff, Joseph T. Lieblich.

    For the defendant, Carey & Lane.

   Pek Cukiam.

A motion in this case was made to strike out the answer filed by the defendant, upon the ground that it is sham and interposed solely for the purpose of delay. After hearing and considering the arguments of the respective counsel and the papers submitted; we think the motion to strike out the answer should be denied, with costs, and such will be the order of the court.


text:
    CHARLES ZEMEL ET AL., PLAINTIFFS-RESPONDENTS, v. PUBLIC SERVICE PRODUCTION COMPANY ET AL., DEFENDANTS-APPELLANTS.
    Argued May 7, 1930
    Decided May 19, 1930.
    Before Justices Black and Case.
    For the plaintiffs-respondents, Joseph Zemel.

    For the defendants-appellants, Henry H. Fryling, Carl T. Freggens and William H. Speer.

   Pee Cueiam.

The plaintiffs obtained a judgment for $475 against the defendants. The pleadings charge the defendants with force and arms breaking into and entering the premises of the plaintiffs and with shovels and pick axes dug up the sidewalk of the plaintiffs and made a pit or shaft and hole of great breadth and width in the sidewalk. The state of the case sent up with the appeal shows that the defendants “opened up Ward street and installed therein, and constructed a vault or manhole, approximately six by ten feet under the sidewalk on the Ward street frontage at Kirk alley, in which was placed three transformers and conduits used in connection with the business of the electric company in furnishing electrical energy either for light or power.” The trial court found “that the statutes, ordinances and permit under which the defendant installed the structure in question under the sidewalk did not authorize the defendants to take private property without just compensation.” With this view of the trial court we are in accord. The judgment will be affirmed. The only ground of appeal is alleged error by the trial court in giving judgment for the plaintiffs. The appellants to reverse the judgment rely upon the case of Nicoll v. The New York, &c., Tel. Co., 62 N. J. L. 733; but, that case involved the right of a telephone company to erect a telephone line within the limits of a public highway. It is not in point on the facts. The appellants, however, seek to justify their position by a -citation of a passage from the opinion in that case. Mr. Justice Dixon in the opinion with his usual precision and clearness discusses some of the phases of the questions involved in this case. But that case is not controlling under the facts of this case.

The judgment of the First District Court of Newark is therefore affirmed, with costs


text:
    FRANK JANITSCHECK ET UX., PLAINTIFFS-RESPONDENTS, v. MEBRO REALTY CORPORATION, DEFENDANT-APPELLANT.
    Argued May 6, 1930
    Decided May 19, 1930.
    Before Justices Black and Case.

      Eor the plaintiffs-respondents, Abraham Warren and Samuel Harber.

    Eor the defendant-appellant, Seclow & Nessanbaum.

   Pee Cueiam.

This suit was brought in the Eirst District Court of Jersey City to recover the sum of $432.94 an assessment for street improvements against lot No. 38 in block 903 and known as street No. 655 Liberty avenue, Jersey City, New Jersey. The basis of the suit is a written agreement dated April 4th, 1926; which contains this covenant “all street assessments shall be paid by the seller.” The assessment was confirmed March 1st, 1929. The case was tried by the court without a jury resulting in a judgment for the plaintiffs for $432.94. The defendant appeals and files seven specifications of determination with respect to which it is dissatisfied in point of law.

The trial court among other things found as a fact; “the improvement was contemplated and started, in fact, a year before the property was sold. A petition was made for the laying of the asphalting, and work for the laying of the pavement was started in September, 1926, a few days before the passing of the contract.” The case calls for no extended discussion, as we are in accord with the view taken and expressed at some length by the trial court at page 70 of the record. We find no error in the exclusion of testimony. The judgment of the Eirst District Court of Jersey City is therefore affirmed.


text:
    ADAM BLACK & SONS, INCORPORATED, PROSECUTOR, v. COURT OF COMMON PLEAS, HUDSON COUNTY, JOHN J. McGOVERN, CLERK, AND EDWARD A. BLACK, DEFENDANTS.
    Submitted October term, 1929
    Decided May 27, 1930.
    Before Justices Trencbard, Lloyd and Case.
    For the prosecutor, Edwards •& Smith (Edwin F. Smith and Raymond Dawson, on the brief).
    For the defendants, Kent & Kent (Samuel Kent; on the brief).
   Per Curiam.

The writ of certiorari brings up for review an award allowed under the Workmen’s Compensation act and affirmed by the Court of Common Pleas. The claimant is Edward A. Black. The prosecutor of the writ is Adam Black & Sons, Incorporated, a corporation, which incorporated with ten outstanding shares of stock, of which four were owned by the said Edward A. Black, four by his brother and one by each of their respective wives. Subsequently other shares were issued, some to the claimant, some to his aforesaid brother, some to a younger brother; but in what amounts or proportions does not appear. The business is about $150,000 per year in volume. At the time of the accident Black was the secretary and treasurer of the corporation, although the books were kept by a paid bookkeeper.

The workmen’s compensation bureau found that at the time of the accident the claimant was employed by the corporation, was paid a wage for his services and suffered an accident arising out of his employment. On appeal the Court of Common Pleas of the county of Hudson confirmed those findings. It is the policy of this court when two independent and distinct tribunals such as these have examined the facts and heard the testimony, a conclusion so reached ought not to be lightly disturbed by this court upon a mere inspection of the written word where there is ample support in the testimony for the conclusion so reached. Pearson v. Armstrong Cork Co., 6 N. J. Mis. R. 976; Mountain Ice Co. v. Durkin, Ibid. 1111.

It convincingly appears that Black was regularly employed as the general shop foreman of the prosecutor in its business of building and repairing automobile bodies, and that from seven-thirty A. M. to five p. M. daily, he regularly worked in overalls in the shop, doing the same work as the remaining twenty-five or twenty-eight mechanics and that he drew a wage of $60 per week; also, that at the time of the accident he was repairing the tailboard of a truck, cutting a bolt with a hammer and chisel, in the course of which the bolt broke off and hit him in the eye, causing the permanent loss of the entire vision of that eye.

As to most of the facts there is no dispute. The point of controversy is as to Black’s status at the time of the injury, that is, whether or not he was an employe within the purview of the Workmen’s Compensation act, and, therefore, entitled to compensation. Prosecutor contends that there was no evidence to establish petitioner’s status as an employe.

The statute (2 Cum. Supp. Comp. Slat., pp. **236, 32-b) provides that “employer is declared to be synonymous with master, and includes persons, partnerships and corporations; employe is synonymous with servant, and includes all natural persons who perform service for another for financial consideration * * Strictly speaking, the corporation in the instant case was the employer. It had an entity quite apart from that of any of its shareholders or officers. But there is a line of cases, amongst which is Bowne v. Bowne, 221 N. Y. 28; 116 N. E. Rep. 364, holding that a principal executive officer of a corporation is not an employe entitled to compensation for injuries received while assisting other employes in performing manual labor. This is not, however, to be understood as disbarring all officers of a corporation, regardless of the character of their actual services, from the benefit of compensation legislation; as is evidenced by the subsequent determinations of the New York Court of Appeals in Goldin v. Goldin Decorating Co., 247 N. Y. 603; 161 N. Y. Rep. 199, and Loonsk v. Loonsk Brothers Cleaning and Dyeing Works, 249 N. Y. 520; 164 N. Y. Rep. 568. Varying statutes, of course, give varying trends to court decisions in different jurisdictions. The editor of A. L. R. at page 377 of volume 25 reviews the field by observing that the mere fact that one is a stockholder, officer or director of a corporation does not necessarily preclude recovery for his injury or death as an employe of the company under Workmen’s Compensation acts. We think that the decision of the Supreme Court of Pennsylvania in Garville v. Bornot, 135 Atl. Rep. 652, though cited adversely by prosecutor, sustains this view.

The question appears to be novel in this state. England’s Executors v. Beatty, 41 N. J. Eq. 470, cited by prosecutor, does not, in our opinion, apply either as to law, facts or reasoning. We do not find, and think there cannot well be, at this stage of the jurisprudence on the subject, a hard and fast rule. An analysis of the facts of the instant case brings us to the conclusion that Black was an employe within the meaning of the statute, and that there is ample support in the testimony for the conclusion reached by the workmen’s compensation bureau and the Hudson Common Pleas.

The judgment below is affirmed, with costs.


text:
    MARY E. MacDONALD, PLAINTIFF, v. JAMES T. WEART, JAMES D. COURTNEY, OLIVER CONOVER AND EARL COOPER, DEFENDANTS.
    Submitted October term, 1929
    Decided May 27, 1930.
    Before Justices Tbenchabd, Lloyd and Case.
    Eor the plaintiff, William Elmer Brown, Jr.

    Eor the defendants James T. Weart and Earl Cooper, T. Harry Rowland and C. Richard Allen.

    Eor the defendants James D. Courtney and Oliver Conover, Carr & Carroll.

   Pee Cueiam.

Plaintiff was injured in a collision between an automobile owned by defendant Weart and driven by defendant Cooper, in which she was a passenger, and a truck owned by defendant Courtney and driven by defendant Conover. The jury brought in a verdict for the plaintiff and against the defendants Courtney and Conover in the amount of $4,250. Courtney and Conover obtained a rule to show cause why the verdict should not be set aside and a new trial granted; whereupon the plaintiff caused a rule to issue why the verdict in favor of the defendants Weart and Cooper should not be set aside and a new trial granted as to them. It is made clear in plaintiff’s brief that the last mentioned rule to show cause is not to be pressed unless the court decides affirmatively on the first.

Defendants Courtney and Conover allege as reasons for the prosecution of their rule that (1) the verdict was against the weight of the evidence.' (2) the plaintiff should have been nonsuited and (3) the damages are excessive.

The accident occurred at the intersection of Cinnaminson avenue and Broad street in Palmyra, Burlington county. The automobile in which the plaintiff was riding was passing along Cinnaminson avenue in a northerly direction. The Courtney truck was proceeding along Broad street in a general westerly direction. The collision was approximately at the middle of the intersection of the two streets. There was evidence from which the jury could have found that the word “stop” was painted in fifteen inch letters across the pavement of Broad street in a position to be read by vehicular drivers approaching along that thoroughfare toward the intersection with Cinnaminson avenue; that Conover, the driver of Courtney’s truck, as he approached the intersection, had, at a distance of seventy-one feet therefrom, an unobstructed view of Cinnaminson avenue for a distance of seventy-two feet in the direction from which the Weart car was approaching, and that view was not at any time interrupted; that Con-over approached the intersection at a speed of twenty miles an hour without sounding his horn or giving other warning and that he did not apply his brakes until from two to five feet away from the Weart car; that the Weart car was approaching at about eight miles an hour and was practically past the intersection of the streets when it was sturck by the truck and driven crosswise from its own direction, but in a line with the direction in which the truck was moving, up against a traffic sign weighing about two tons with such force as to move that object about four feet, and that it was the front of the truck that collided with the side of the automobile.

With the proofs in such condition that the jury could have found the foregoing state of facts, we are unable to say that the verdict is so clearly against the weight of the evidence as to give rise to the inference that it is the result of mistake, passion, prejudice or partiality. Floersch v. Donnell, 82 N. J. L. 357.

It does appear that the truck was approaching the intersection from the right of the driver of the pleasure car, but the Traffic act regulation in that respect does not constitute a hard and fast rule. It is an additional factor to be considered. Paulsen v. Klinge, 92 N. J. L. 99.

Whether or not the failure to observe a traffic regulation is negligence in the given case is a matter to be determined by a jury. Baker v. Fogg & Hires Co., 95 N. J. L. 230.

We find no sufficient cause for setting the verdict aside at the instance of the defendants; and, as we think will appear from the resume of the evidence as given, that there was not reversible error in the refusal of the court to nonsuit the plaintiff.

On the subject of damages there was evidence that the plaintiff had severe injuries from which she had suffered in varying degree from the time of the accident until the date of the trial, which was two years and .eight months later. While there was contradiction in the testimony as to the extent of the injuries and the degree of the plaintiffs pain and disability, the facts were for the determination of the jury, and it is apparent that the jury believed the evidence given on behalf of the plaintiff. We are unable to determine that the jury was not justified in so doing, or that the amount of the award was so out of line with such evidence as to cause the verdict to be set aside or the amount thereof reduced.

Our conclusion is that both rules should be discharged.


text:
    HARRY ENNEVER ET AL., PROSECUTORS, v. BOROUGH OF HARRINGTON PARK, RESPONDENT.
    Submitted October 1, 1929
    Decided May 27, 1930.
    Before Justices Tren chard, Lloyd and Case.
    Eor the prosecutors, Morrison, Lloyd .<£ Morrison.

    Eor the respondent, Fred TP. Mattocks.

   Per Curiam.

This case comes up on writ of certiorari to review the assessments for benefits laid against the properties of the prosecutors for the improvement of the parkway in the borough of Harrington.

The ordinance under which the work was done called for a twenty-foot pavement, and certain parts of the pavement actually laid somewhat exceeded that width. The prosecutors contend that that irregularity voids the assessments inasmuch as a proportionately larger sum of money was thus required to be raised. Detailed proofs are not before us, but it appears that eight thousand nine and three-tenths yards of pavement were laid, whereas the engineer’s preliminary estimate on the basis of the ordinance was -six thousand five hundred yards. If the difference in these figures were to be taken as the measure of the excess width, the extra cost was $4,829.76 which, as apportioned amongst the properties liable, means something under $15 to each of the prosecutors; hut we are not satisfied that even this much, in either yardage or cost, is involved inasmuch as we are unable to determine irom the evidence how much oí that variation is due to actual excess in width. The prosecutors place before us a sketch upon which is shown the roadway and upon which, at several points, is indicated the width at those points as measured by one of the prosecutors; and the width of the pavement thus appears to be twenty feet in the middle of each block, widening, -as it approaches the cross streets, into what is generally known as an “apron,” or short extension towards the transverse street opening. We are unable to say that this comparatively slight variation was not necessary to give proper engineering stability to the road as prescribed in the ordinance. The actual cost of the improvement, $39,568.64, was well within the appropriation of $45,000 contained in the ordinance.

Moreover, the prosecutors seem to have stood by and, without objection, observed the work, of which they now complain, being done. Prosecutor Ennever admits that he was present at all of the meetings of council and was familiar with the plan to widen the pavement at the corners and did not object. Prosecutor Elint says that when the construction began ho knew of the change and made no objection. There was no remonstrance from anyone until the work had been completed, and not then until the hearing was had on the assessments. The objections then made, as they appear from the record, were not that the work was not duly authorized or that the municipal authority had been exceeded, but that the objectors were not benefited by the improvement. There never was any justification for believing that the work was to be done or was being done other than as a local improvement, to be paid for by assessments upon the property owners.

We consider that, under the circumstances of the case, the prosecutors should have presented a timely objection and that by their attitude they acquiesced in such change as was made in the extent of the improvement’; and that their laches in this respect should result in a dismissal of the writ.

The writ is dismissed, with costs.


author: Pee Curiam.

text:
    JOSEPH MARIN, PLAINTIFF-RESPONDENT, v. FRANK M. MITCHELL, DEFENDANT-APPELLANT.
    Submitted October term, 1929
    Decided May 27, 1930.
    Before Justices Teen chard, Lloyd and Case.
    Eor the plaintiff-respondent, Gross & Gross.

    Eor the defendant-appellant, Marie Townsend, Jr.

   Pee Curiam.

This is an appeal from a judgment of $1,775.52 in favor of the plaintiff and against the defendant at the Hudson County Circuit Court in an action to recover broker’s commissions for procuring a buyer of lease held by the defendant on certain garage premises. The appeal relates solely to the admission of questions in the examination of William Schaefer.

It was in evidence, without objection, that Schaefer was employed by the defendant as manager in full charge of the garage, which was the subject-matter of the lease and the suit, and that the plaintiff came to the garage with Mindlin, the subsequent purchaser of the lease, and that the plaintiff came into the office and asked permission to go through the garage; that the witness knew wliat plaintiff wanted. Thereupon the witness was asked what it was that Marin wanted, and the question was objected to upon the ground that it was an immaterial, irrelevant, self-serving declaration. We think the question was not subject to either of these criticisms. The answer was then given, namely: “Eor the purpose of seeing the place, showing the place to the prospect;” and in answer to further questions, unobjected to, the witness explained that by “the prospect” he meant a prospective purchaser for the garage lease. The question was then asked: “Will you please repeat all of the conversation between you and Mr. Marin when he called there on that occasion?” After discussion the question was reframed to read: “What did Mr. Marin say when he came there?” Objection was made upon the ground that the witness had no authority to bind the defendant and that agency could not be proved by a self-serving declaration. The question was admitted and the answer was: “He asked for permission to go through the garage; he had a prospect with him to purchase the garage.” The question was not objectionable upon the ground stated to the court and even though it were objectionable, it is harmless for the reason that the witness had already testified that Marin was there for the purpose of seeing the garage and showing it to a prospective purchaser of the lease.

We do not find in the questions any intent to bind the defendant by the act or word of the witness as an agent, nor do we find in the answers any such effect. The plaintiff had been authorized directly by the defendant in writing to sublet, on defendant’s behalf, the garage premises. Subsequently the defendant conveyed the lease to Mindlin, the gentleman whom the plaintiff showed the premises to. A disputed question was whether the plaintiff had been the effective agent in the transaction, and the testimony was incidental to the proof of what the plaintiff had actually done toward accomplishing the sale. The purport of the testimony was that the plaintiff had taken Mindlin for the purpose of showing him the premises, and in this respect it was cumulative and corroborative of other evidence in the case.

The judgment below will be affirmed.


text:
    BURNS HOLDING CORPORATION, RELATOR, v. STATE HIGHWAY COMMISSION, RESPONDENT.
    Argued May 7, 1930
    Decided May 26, 1930.
    Before Justices Parker, Campbell and Bodine.
    Eor the relator, Beynier J. Wortendylce, Jr.

   Per Curiam.

The application is for a mandamus to require the state highway commission to institute and complete a proceeding under the Eminent Domain act of 1900 (Comp. Stat., p. 3183), to assess and pay to relator the damage alleged to have been sustained by it on account of the building of part of a new state highway between Rahway and Metuchen, between the tracks of the Pennsylvania railroad and the state reform school. The Perth Amboy branch of that railroad crosses the tract of which relator’s property is a part, from northwest to southeast.

No land of relator has been or is to be taken. The claim (is exclusively for injury to the value of such land because by the construction of the highway on an elevated embankment to the westward of such land it is cut off from communication with the outer world unless at large expense it be connected with the elevated new highway by one or more inclined causeways or ramps. There seems to be no denial of the claim—in fact it is stipulated—that whereas before the construction relator’s lands were accessible over certain mapped streets running northwest and southeast and parallel with the Perth Amboy branch of the railroad, the new embankment crosses said streets to the west of relator’s land and effectually closes them unless they be graded up to the new land.

Notwithstanding the apparent hardship of the ease, we have to conclude that this rule must be discharged. Counsel for prosecutor cites no authority in this state in support of the rule; and while in some other jurisdictions the right to damages is recognized, such judicial opinion as we find in this state is apparently to the contrary, in the absence of statute conferring the right. In Hatt v. Newark, 79 N. J. L. 550, Mr. Justice Bergen, speaking for the Court of Errors and Appeals, said: “The right of the state to destroy public improvements of this class without compensation is not limited by the constitution, and except for the statute, as expressed in the charter of the city, this street could have been vacated without the slightest consideration of its effect upon any land lying along it, or the payment by the city of compensation to any landowners for damages.” See, also, Newark and Bloomfield Railroad Co. v. Montclair, 84 Id. 46. In Harrison Land Co. v. Crucible Steel Co., 82 N. J. Eq. 419, the late Vice-Chancellor Emery remarked, citing the above and other cases: “Complainant’s land is apparently damaged or injuriously affected by the vacation of the street, but its land is neither taken nor appropriated, and therefore does not seem to come within the provision of section 56 [of the charter] for compensation. Unless such provision is expressly directed by statute to be made, streets may, under our constitution, be vacated without compensation.”

The rule to show cause will therefore be discharged; but as the quoted decisions seem to some extent obiter, we are disposed to accord to relator an opportunity to review this ruling. It may be that the case is within section 6 of the Mandamus act (Comp. Stat., p. 3216) which permits such review; but to avoid any question on that score, if the relator so elects, a record may be made up cousistiug of au alternative writ and return, and such, other pleadings as will properly present the point now decided, with a judgment in accordance with the views above expressed, to the end that the matter may be reviewed by the Court of Errors and-Appeals.


author: Pee Cukiam.

text:
    BOLISH BOLLMAN, PROSECUTOR, v. JAMES E. McGOVERN, RESPONDENT.
    Submitted October term, 1929
    Decided May 27, 1930.
    Before Justices Tkenchaed, Lloyd and Case.
    For the prosecutor, Rae, King ■& O’Brien.

    For the respondent, Turner & Stalter.

   Pee Cukiam.

Bolish Bollman, an employe of James F. McGovern, brought suit against the latter for traumatic inguinal hernia, claimed to have come to Bollman as the result of an accident arising out of and in the course of his employment on the ninth day of November, 1927. The workmen’s compensation bureau found for Bollman. That judgment was appealed to the Hudson County Court of Common Pleas and an affirmance there had. The record is now before us.

The prosecutor of the writ argues two points, namely, (1) the petitioner below failed to prove a traumatic hernia within the meaning of the workmen’s compensation statute because the evidence failed to show a puncturing or tearing of the abdominal wall and the descent of the hernia, and (2) the defendant failed to prove that there was such prostration that the employe was compelled to cease work immediately.

Pamplh. L. 1923, ch. 49, p. 101 (at p. 104, subdiv. “x”), provides that where there is real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, compensation will be allowed; and that all other cases will be considered as either congenital or of slow development and not compensable, being a disease rather than an accidental injury, unless conclusive proof is offered of the matters which we shall presently designate, for the purpose of convenience, numerically and comment upon in their order.

The alleged injury occurred while-Bollman was engaged in his employment as laborer loading trucks at a steamship pier. He was loading á truck with heavy cases of cigars averaging from two hundred and fifty to three hundred pounds.

The statute to which we have referred requires conclusive proof that the hernia was immediately caused by such sudden effort or severe strain; that

“First. The descent of the hernia immediately followed the cause.”

The testimony is that as the workman was lifting these cases of cigars he felt a pain in his right side and felt a lump there about the size of a hen’s egg.

“Second. That there was a severe pain in the hernial region.” Note the observation just made as to the evidence under “First.”

“Third. That there was such prostration that the employe was compelled to cease work immediately.”

The testimony is that the workman immediately “knocked off work,” doubled up with pain, showed the lump to some of his fellow workmen and sought medical aid.

“Fourth. That the above facts were of such severity that the same were noticed by the claimant and communicated to the employer within twenty-four hours after the occurrence of the hernia.”

The testimony is that the workman immediately, upon feeling the lump, reported to Mr. McGovern, his employer, who was at the time on the dock.

“Fifth. That there was such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia.”

The testimony is that the employer, McGovern, forthwith after the accident directed the injured workman to go to Dr. Short, and that the injured man upon going to Dr. Short’s .office found that he was not in and, therefore, went to St. Francis Hospital. Dr. Sullivan of St. Francis Hospital certified that on November 9th, 1927, he examined Bollman and found that the latter had a right inguinal hernia. Prior to that day Bollman had never had hernia.

The foregoing being the requirements of the statute and portions of the pertinent evidence,' the compensation commissioner who heard the evidence determined that Bollman was an employe as alleged and that, in the course of his employment, he suffered an injury that was a traumatic inguinal hernia which was caused immediately by a sudden effort or strain under the conditions imposed by the statute and the commissioner fixed compensation accordingly. The appeal to the Hudson County Court of Common Pleas resulted in an affirmance by that court of the determination of facts and rule for judgment made by the workmen’s compensation bureau.

When two independent and distinct tribunals have examined the facts and heard the testimony, we do not think that a conclusion so reached should be lightly disturbed by this court. Mountain Ice Co. v. Durkin, 6 N. J. Mis. R. 1111; affirmed, 7 N. J. Adv. R. 1152. We are of the opinion that there was ample proof to sustain the findings of the commissioner.

The judgment below is affirmed, with costs.


text:
    JOSEPH DURGETT, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, IMPLEADED AS PUBLIC SERVICE CO-ORDINATED TRANSPORTATION COMPANY AND WILLIAM CASSIDY, DEFENDANTS.
    Submitted October term, 1929
    Decided May 27, 1930.
    Before Justices Trenci-iard, Lloyd and Case.
    For the rule, Henry H. Fryling (Harold F. Dorgeval on the brief).

      Contra, Aaron L. Simon.

   Pee Curiam.

The plaintiff, driving an automobile along a public highway, met with a collision at a cross street intersection with a bus of the defendant company and brought this suit for personal injuries and property loss. He was awarded a verdict by the jury in the amount of $3,000. Public Service Co-ordinated Transport caused a rule to show cause to issue, and in support of it argues two points, namely:

(1) The verdict is against the clear weight of the evidence on the issue of negligence on the part of the defendant, as well as on the issue of contributory negligence on the part of the plaintiff, and the trial judge erred in refusing defendant’s motion for a nonsuit; and

(2) The damages awarded by the jury are excessive.

It was open to the jury to find from the evidence that the plaintiff was driving an automobile at the rate of fifteen miles an hour; that as he approached the cross street he slowed down to about ten miles; that when about eight feet from the intersection he noticed a bus approaching from his left at a distance of about twenty five feet from the corner; that when he reached the crosswalk the bus was from twelve to fifteen feet from the intersection; that the bus was traveling at about the rate of twenty-five miles an hour; that the plaintiff signaled as he approached the intersection but that no signal was given by the defendant’s driver; that the defendant’s bus struck the plaintiff’s car at the forward part of the left side of the last named vehicle. If this evidence is true, the plaintiff, traveling at a more moderate speed, reached the crossing in advance of and on the right of the defendant’s bus, plaintiff having signaled his approach and the defendant’s driver having given no signal that the bus was to proceed across the intersection.. Under normal conditions the driver of a vehicle is required to give the right of way to another vehicle coming from his right. Zanzonico v. Yellow Cab Co., 4 N. J. Mis. R. 458; 133 Atl. Rep. 84; Mulligan v. Losi, 5 N. J. Mis. R. 1019. While the traffic act regulations in this respect are not alone the basis of a right of recovery, this provision is to be considered by the jury along with other testimony on the issue of negligence. Healey v. Braested, 98 N. J. L. 520. Where the evidence, and the inferences reasonably arising therefrom, will support a verdict for the plaintiff, a motion for a nonsuit must be denied. Weston Co. v. Benecke, 82 N. J. L. 445. To justify a court in setting aside the verdict of a jury on the ground that it is against the weight of the evidence, it must be so palpable as to give rise to the inference that it is the result of mistake, passion or prejudice. Floersch v. Donnell, 82 N. J. L. 357. We find against the prosecutor of the rule on its first point.

We conclude, however, that the damages awarded by the jury are excessive. The actual money loss and disbursements of the plaintiff total about $381. The plaintiff sustained a broken shoulder, was X-rayed, strapped with heavy adhesive over a period of four months, and, though he suffered pain and still is, to some extent, incapacitated in lifting objects, he continued his work without interruption and does not appear to be seriously impaired. We consider that a verdict of $1,500 would have been ample under the evidence. If the plaintiff will remit the excess of damages over that amount, the rule will be discharged; if not, the verdict as to the amount of damages will be set aside and a new trial awarded as to such damages; the verdict standing good in all other respects.


author: Pee Cubiam.

text:
    HOWARD RIECK, PLAINTIFF, v. THOMAS EWING AND EDNA EWING, DEFENDANTS.
    Submitted October term, 1929
    Decided May 27, 1930.
    Before Justices Tbenchaed, Lloyd and Case.
    For the rule, Carr & Carroll.

      Contra, LeBoy W. Loder.

   Pee Cubiam.

This matter comes before the court on a rule allowed the defendants requiring the plaintiff to show cause why the verdict of $15,000 entered against them at the Cumberland Circuit should not be set aside and a new trial granted.

The defendants are husband and wife. The former was the owner of a car in which he was also a passenger and which was being driven by the latter when it mounted the curb and struck and broke off an awning pole. The pole in falling struck the plaintiff and the damages grew out of that accident. The injury at first appeared to be slight, consisting of an abrasion upon the nose from which a little blood exuded, but the plaintiff suffered later distress, had medical and surgical attention and had money losses.

The reasons, as filed by the defendants, are four in number, namely, that the verdict was against the weight of the evidence, that the damages are excessive, that the verdict was contrary to the charge of the court, and that the jury disregarded the charge of the court. The main contention, however, is that the damages are grossly excessive and that in amount they are against the weight of the evidence.

We are satisfied that there was evidence to sustain a finding of liability against the defendants. No argument is presented to us upon the proposition that the verdict was contrary to the charge, of the court or that the jury disregarded the charge.

An examination of the testimony discloses that the disbursements for medical and hospital bills amounted to $653.61. There is further testimony from which it might be inferred that plaintiff suffered a prorated loss of approximately $1,387 in the employment of additional help to do the work which he, because of his disability, was not able to perform. The money losses thus put in evidence, if given their face value, are slightly over $2,000.

Our examination of the testimony leads us to the conclusion that the verdict of $15,000 was excessive and that a verdict of $7,500 would have been ample. If the plaintiff will remit the excess of damages over $7,500, the rule will be discharged; if not, the verdict will be set aside and a new trial awarded.


text:
    ROSE RIVELLO AND CARMAN RIVELLO, PLAINTIFFS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Submitted October term, 1929
    Decided May 27, 1930.
    Before Justices Trenobard, Lloyd and Case.
    For the rule, Henry H. Fryling (William F. Yosseller, on the brief).

      Contra, Burlew & Currie

   Per Curiam.

Plaintiff Eose Eivello was injured by falling into a ditch while she was alighting from one of defendant’s ears.

The rule to show cause goes only to the alleged excessive amount of the verdict, which was $2,500 for Eose Eivello» and $200 for her husband, Carman Eivello.

It is of no avail to discuss the injuries in detail. Sufficient to say that our examination of the record leads us to the conclusion that the award to the husband was not so exorbitant as to be disturbed; but that the amount awarded to Eose Eivello is excessive and should be reduced to $1,500. If the last named plaintiff will remit the excess of damages over the amount named, the rule will be discharged; if not, the verdict as to the damages awarded her will be set aside and a new trial awarded as to such damages; the verdicts standing good in all other respects.


author: Pee Oueiam.

text:
    JOHN KALOGERAKAS, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT AND JOHN ANDREWS, DEFENDANTS.
    Submitted October term, 1929
    Decided May 27, 1930.
    Before Justices Tkenchaed, Lloyd and Case.
    For the rule, Henry H. Fryling (Harold F. Dorgeval, on the brief).
    Contra, Aaron L. Simon.

   Pee Oueiam.

Plaintiff recovered a verdict of $4,000 for personal injuries received by him in being struck by defendant’s bus in his efforts to stop and board the bus at the intersection of two streets in Clifton. Defendant Public Service Co-ordinated Transport took out a rule to show cause why plaintiff’s verdict should not be set aside and argues four points which will be discussed in their order.

Defendant’s first point is that the verdict is against the clear weight of the evidence on the issue of negligence on the part of the defendant, as well as on the issue of con-tributary negligence on the part of plaintiff, and the trial judge erred in refusing motion for nonsuit and for direction of verdict in favor of the defendant.

There is evidence from which the jury could have found that the plaintiff, while at the corner of the two streets, looked and saw the bus “far away;” that he started to cross the street and walked about five steps when he looked and saw the bus then at a distance of one hundred feet; that there the plaintiff signaled the bus to stop and, having thus observed and signaled the bus, the plaintiff proceeded to cross the street to the far side in order to board the bus; that there was traffic other than the bus against which the plaintiff was .obliged to watch; that the plaintiff had seen the bus stop at the last preceding crossing but that the bus, without giving any warning signal, entered upon the crosswalk where plaintiff was at a speed from forty to forty-five miles per hour, and having struck the plaintiff at the crosswalk, proceeded a further distance of one hundred to one hundred and twenty feet before coming on to a stop. It appears to us that, if the jury thus found the facts, it could reasonably infer therefrom that the bus driver was negligent, that his negligence was the proximate cause of the accident, and that no negligence of the plaintiff contributed thereto.

A motion for a nonsuit admits the truth of the plaintiff’s evidence and of every inference of fact that can be legitimately drawn therefrom; where the evidence, and the inference reasonably arising therefrom, will support a verdict for the plaintiff, a motion for a nonsuit must be denied. Weston Co. v. Benecke, 82 N. J. L. 445.

If two inferences may reasonably be deduced from the evidence, one favorable to the plaintiff and one against him, a jury question is presented and a refusal to nonsuit is proper; upon a request for a direction of a verdict in favor of the defendant, the proof must be so clear that no other reasonable conclusion can be legitimately reached before such a peremptory instruction can be given. Consolidated Traction Co. v. Reeves, 58 N. J. L. 573.

To justify a court in setting aside a verdict on the ground that it is against the weight of the evidence, it must so clearly appear as to give rise to the inference that it is the result of mistake, passion, prejudice or partiality. Floersch v. Donnell, 82 N. J. L. 357.

The defendant’s second point is that the trial judge erroneously charged the jury on the subject of damages as to the loss of wages sustained by the plaintiff.

The insistment is that the court said that the plaintiff lost twelve weeks’ time when the correct calculation was nine weeks and two days. But the court instructed the jury to disregard any misstatement of fact that the court might make. The only harm that might have followed to defendant was an over-calculation of wages for two and a fraction weeks. The question in terms of dollars and cents is trifling and is cared for by our disposal of the case.

The third point directs the attention of the court to various other alleged errors in the court’s charge. Our eaxmination discloses no harmful error therein.

The fourth and last point is that the damages are excessive. We think they are.

Our conclusion is that $2,500 is the limit of damages justified by the evidence. If the plaintiff will remit the excess over that amount, the rule will be discharged; otherwise the verdict will be set aside in respect of damages and shall stand good in other respects.


text:
    AUGUSTE J. ROSSI, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE CITY OF PERTH AMBOY, AND THE CITY OF PERTH AMBOY, A MUNICIPAL CORPORATION, AND STILLMAN, DELEHANTY AND FERRIS, INCORPORATED, A CORPORATION, DEFENDANTS.
    Submitted October term, 1929
    Decided May 27, 1930.
    Before Justices Trencitard, Lloyd and Case.
    For the prosecutor, Henry X. Golenboch.

    For the Board of Commissioners of the City of Perth Am-boy and the City of Perth Amboy, Harry 8. Medinets.

    For Stillman, Delahanty & Ferris, Incorporated, Thomas Brown.

   Per Curiam.

This case comes up on writ of certiorari to review certain resolutions of the board of commissioners of the city of Perth Amboy, authorizing payments under a contract made between the said city and Stillman, Delahanty & Ferris, Incorporated, for the building of a stone bulkhead and its appurtenances.

The prosecutor does not question the propriety or legality of the ordinance or of the contract, nor does he allege fraud on the part of any of the defendants.

The contract embraces three related works; first, the building of a seawall, second, grouting of the same and, third, construction of certain sewer connections and allied works. The contract, dated October 20th, 1928, included all the projects as a single enterprise. Work began soon after the making of the contract. The disputed 'resolutions were of the following dates: December 5th, 1928; December 19th, 1928; February 6th, 1929; February 13th, 1929; March 20th, 1929; April 3d, 1929 and May 1st, 1929; and the payments were made accordingly. This proceeding began by a rule to show cause issued June 19th, 1929, more than six months after the first resolution and more than a month and a half after the last resolution.

The main questions at issue may briefly be stated. The controversy concerning the bulkhead hinges very largely upon the construction to be given an engineer’s sketch indicating a cross section. On this sketch appears what might be termed a zero line showing a depth of six feet measured downward from that line and a height of twelve feet, measured upward, above it. The prosecutor contends that the bulkhead was intended to be eighteen feet in height and that inasmuch as it is not so, the city should not have paid the contract price. The defendants reply that the top of the bulkhead was to constitute a continuous level twelve feet above the normal ground line, and that the distance of six feet shown below, what we have called the zero line, was intended as an elastic or contingent measurement to cover the extent to which the contractor might have to go downward either to meet depressions in the surface or to reach solid ground below a shifting top-soil; that'the contractor took the chances in this respect and that the amount bid was a lump sum regardless of whether greater or less work had to be done or more or fewer materials furnished.

The dispute concerning the grouting arises over the fact that that work was, under the city’s direction, done on the inside rather than on the outside of the bulkhead, that, owing to the greater slope on the outside of the bulkhead, the grouting that was done was actually less than that which was anticipated and that this should have resulted in a reduction of price. The answer made is that, after the contract was let, the city of Perth Amboy made an arrangement with an industrial concern whereby over a term of years the dumping of waste materials was to be made inside the bulkhead, thus constituting a fill that ultimately would make level land, and that to properly withhold the matter thus to be dumped it was necessary that the grouting should be on the inside of the bulkhead and that the difference in the cost of grouting was negligible, for the reason that certain working conveniences would have been available in the work on the outside of the bulkhead that were not available for the work as actually done on the inside.

The third phase of the controversy is concerned chiefly with the fact that there were fewer “bents,” less extensive cribbing, and less pipe, actually installed than the contract called for. No question is raised as to the engineering propriety of these changes. The reply is that there was a deduction actually made, in addition to which the contractor made no charge for specified extras for which it otherwise would have collected.

Inasmuch as the controversy is free of any charge of fraud, or intentional wrongdoing, and the money directed by the resolutions to be paid was in fact paid, the controversy resolves itself into a question of whether the city authorities acted within their strict legal rights in passing the resolutions. Neither the work nor the payments could have been stopped at the time the prosecutor bestirred himself.

The points and the facts are of a debatable character and called for the exercise of discretion on the part of the municipal body. That there was no such flagrant abuse of that discretion as to justify the imputation of fraud or willful misconduct is indicated by the absence of charges of that nature. In the absence of fraud and in view of the factual uncertainties, we consider that the laches of the prosecutor in delaying his application until after the municipal acts of which he complains were long since completed should result in a dismissal of the writ. Wood v. Millville, 85 N. J. L. 734.

The writ is dismissed, without costs.


text:
    H. BRADFORD RICHMOND, TRADING AS STRAND HOTEL, PROSECUTOR, v. KATHERINE SCHEIDELL, RESPONDENT.
    Submitted October term, 1929
    Decided May 27, 1930.
    Before Justices Tbenchakd, Lloyd and Case.
    Eor the prosecutor, Thompson & Hanstein.

    For the respondent, Albert A. F. McGee.

   Pee Cueiam.

This ease arose as a death action under the Workmen’s Compensation act (Pamph. L. 1911, ch. 95, its amendments and supplements) and is before us on a rule to show cause why a writ of certiorari should not issue at the instance of the employer, H. Bradford Hichmond, trading as Strand Hotel, to review the judgment in favor of Katherine Scheidell, the deceased employe’s widow and dependent..

The workmen’s compensation bureau, after hearing the testimony, entered an order granting the compensation appropriate in such instance. On an appeal therefrom by the employer, the Atlantic County Court of Common Pleas likewise found for the petitioner and directed that the appropriate compensation payments be made. 'Application was made to the Supreme Court justice presiding in Atlantic county for the issuance of a writ of certiorari, which application was denied.

The prosecutor contends, first, that the Supreme Court has power to review the facts, and, second, that the testimony does not establish that the decedent died as the result of an accident.

The Workmen’s Compensation act, in its original form {Pamph. L. 1911, p. 141, § 18), provided for a trial of the disputed facts and declared that the decision of the trial judge should be conclusive and binding as to all questions of fact. There followed a line of cases, headed by Hulley v. Moosbrugger, 88 N. J. L. 161, holding that such a determination of facts was conclusive on appeal. In 1921 (Pamph. L. 1921, ch. 230) paragraph 18 of the Workmen’s Compensation act was amended and the above-mentioned provision was omitted. Contemporaneously therewith chapter 229 of the Pamphlet Laws of 1921 amended paragraph 19 of chapter 149 of the Pamphlet Laws of 1918 (a supplement to the Workmen’s Compensation act) providing that nothing therein contained “shall be construed as limiting the jurisdiction of the Supreme Court to review questions of law and fact by certiorari." The Certiorari act (1 Comp. Slat., p. 405) provides that in all cases of writs of certiorari to review the proceedings of any special tribunal the court shall determine disputed questions of fact as well as of law. However, it has been held that where two independent and distinct tribunals have examined the facts and heard the testimony, a conclusion so reached should not be lightly disturbed by this court. Mountain Ice Co. v. Durkin, 6 N. J. Mis. R. 1111; affirmed, October 14th, 1929, 7 N. J. Adv. R. 1152.

In the instant ease there was testimony that the decedent was in the employ of the prosecutor as a painter; that on Eebruary 27th, 1928, he was specifically engaged in painting a bathroom in the prosecutor’s hotel; that incident to such work he had a stepladder to reach the higher portions of the room; that at about half past two decedent, with his foreman, returned from their lunch and from doing some work in the shop and reassumed labor in the hotel structure, the decedent going in the bathroom and his foreman in the adjoining room. At ten minutes to three the foreman entered the bathroom and found the decedent unconscious and in a slumped condition on the stepladder. There was medical testimony that the man was in a comatose condition, completely unconscious, with a hematoma or bloody tumor about the size of an egg at the back of his head, a black and blue spot on the right side of the head, contusions all over the spine reaching from the neck nearly to the end of the spine and bleeding from the'back of the throat. The examining physician, as a result of his observation and experience, testified that there was no doubt that there was a fracture at the base of the skull resulting in a traumatic cerebral hemorrhage that caused death on March 4th, 1928.

We think that, with such supporting testimony and with the affirmative finding of two tribunals, the results heretofore reached should not be disturbed and that there is not a

The writ will be denied and the rule discharged, with costs, justification for the issuing of the writ.


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    ELEANOR M. LeGRAND, BY HER NEXT FRIEND, EDNA LeGRAND, AND EDNA LeGRAND, INDIVIDUALLY, PROSECUTORS, v. HUBBARD & LANGE AND AMERICAN MUTUAL INSURANCE COMPANY, DEFENDANTS.
    Submitted October term, 1929
    Decided May 27, 1930.

      Before Justices Teenchaed, Lloyd and Case.
    Por the prosecutors, Grosso, Brundage & Anderson.

    For the defendants, McGarter & English.

   Pee Cukiam.

The matter arises on rule to show cause why a writ of certiorari should not issue to review a finding of facts and determination of the Middlesex Common Pleas, reversing an award made by the workmen’s compensation bureau in. favor of the prosecutors. The single ground presented by the prosecutors is that “the finding of the Middlesex Common Pleas that there is no proof that the inhalation of coal gas fumes by the decedent, Plorace R. LeGrand, was the cause of pneumonia from which he died, was erroneous and was not justified by the record.” The precise words of the court were: “There is no direct statement that the coal gas was the cause of the condition from which the decedent died, namely, pneumonia * * *.” We consider that that expression was literally correct in this sense, that there was no competent testimony that the decedent had inhaled coal gas. The testimony of the attending physician was: “The history, as I got it from Mr. LeGrand, was that * * * he was suddenly overcome by a sudden or unexpected gush of hot furnace fumes which he inhaled.” We do not understand that the rule permitting a doctor to testify to statements made to him by a patient makes such testimony evidential of the alleged facts of an accident.

However that may be, the court’s expression with which fault is found is in a preliminary memorandum and not in the “determination and rule for judgment.” It is of the latter that the rule before us asks for a review.

The “determination and rule for judgment” finds that “there was testimony concerning coal gas being present in the room where the said boiler was situated and it was argued by counsel for the petitioner that this was the cause of the condition from which the decedent died, namely, pneumonia. The proofs are not sufficient to support this argument and petitioners have failed to sustain the burden imposed upon them, by law, of establishing by a fair preponderance of the evidence, the fact that decedent’s death was caused by an accident arising out of and in the course of his employment.”

An examination of the testimony brings us to the same conclusion as that reached by the court below. We find no reason for allowing a writ and the rule is therefore dismissed, with costs.


text:
    IRONBOUND TRANSPORTATION COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, AND PUBLIC SERVICE COORDINATED TRANSPORT, DEPENDANTS.
    Argued May 23, 1930
    Decided May 28, 1930.
    Before Justices Paekee, Campbell and Bobine.
    For the prosecutors, James F. X. O’Brien.

    For the defendants Public Service Co-ordinated Transport, William H. Speer.

   Pee Cueiam.

The prosecutors as parties to a proceeding before the board of public utility commissioners, desire to review the decision of that board in approving the suspension of certain street railway service upon certain streets in the city of Newark, and approving also certain municipal consents or agreements enabling the Public Service Co-ordinated Transport to operate auto buses in substitution for such railway service.

Proper disposition of the application involves an ascertainment of the meaning and effect of the supplement of March 19th, 1928 (PamphL., p. 112), to the Utilities act of 1911, and specifically of the question whether the action taken by the board was within the four corners of that supplement.

We are frank to say that in our judgment, after examination of the statute and the proofs submitted on this application, a very serious question is presented as to whether the action of the board was with due warrant of law; and as an eminently debatable ease is presented, a writ of certiorari might well be allowed. However, as the application, though made on notice and argued on both sides (the utility board remaining passive in the matter) is merely for the allowance of a rule to show cause, such rule will be allowed, with the suggestion to the parties that if in view of what has been said, a speedy determination of the whole matter is desired, a writ may go at the option of the defendant Public Service Co-ordinated Transport.


text:
    ANDREW BRENGEL, MARY BAKER AND ELIZABETH BRENGEL, RELATORS, v. THE MAYOR AND ALDERMEN OF JERSEY CITY, BOARD OF COMMISSIONERS OF JERSEY CITY AND EDWARD J. SPOERER, SUPERINTENDENT OF DEPARTMENT OF BUILDINGS OF JERSEY CITY, DEFENDANTS.
    Submitted February 1, 1930
    Decided May 27, 1930.

      Before Justices Trenchaed, Lloyd and Case.
    Eor the relators, Ziegener <& Brenner (Robert H. Brenner, of counsel).
    Eor the defendants, Thomas J. Brogan (Charles Hershenstein, of counsel).
   Per Curiam.

This is a rule to show cause why the commissioners of Jersey City should not grant a permit to relators to erect an apartment house on lot No. 17 in Block “C” on “Map of the Heritage Homestead,” on North street in Jersey City, and a permit to erect an apartment house on lot No. 18 on North street on the same map in the same city.

It appears from the depositions taken on the rule to show cause that the relators on March 25th, 1929, applied for a permit for the erection of such houses on such lots to be twenty-three feet from the building line; that on June 3d, 1929, relators filed a new application for permit for the houses to be five feet from the building line, and this application was favorably acted upon and the permit granted, and apparently accepted by the relators, the permit being dated August 1st, 1929; then, apparently, the relators again changed their minds and filed another application on August 9th, 1929, this time for permit for houses to be flush with the street line; that upon this application a hearing was held by the commissioners and the permit refused, and it is this application that is the subject-matter of this rule to show cause.

It appears that the property in question is zoned as a residential section. The ordinance does not prohibit apartment houses. It further appears that on January 11th, 1930, Jersey City had in preparation a new zoning ordinance, but with respect to whether or not it since has been passed the record is silent.

The city now urges, among other things, that, in view of the fact that a new zoning ordinance is in preparation it should not now be required to grant the permit in question, especially since there is now outstanding in possession of the relators a permit authorizing the construction of the apartment houses 'five feet from the building line.

In this state of uncertainty as to the pertinent factual situation especially with respect to an outstanding permit inconsistent with the one now applied for, we think that the proper course is to award an alternative writ in order that thereby, with the return and other pleadings, the issue may be framed. An alternative writ is awarded accordingly.


text:
    FRANK HOLDSWORTH AND UNIVERSAL SECURITY COMPANY, RELATORS, v. FRANK HAGUE, WILLIAM B. QUINN, JOHN BEGGANS, MICHAEL I. FAGAN AND ARTHUR T. POTTERTON, COMMISSIONERS OF JERSEY CITY, THE MAYOR AND ALDERMEN OF JERSEY CITY, AND EDWARD J. SPOERER, SUPERINTENDENT OF BUILDINGS OF JERSEY CITY, DEFENDANTS.
    Argued January 21, 1930
    Decided May 27, 1930.

      Before Justices Trekchard, Lloyd and Case.
    For the relators, Richard Doherty.

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

   Per Curiam.

This is a rule to show cause directed to the commissioners of Jersey City requiring them to show cause why a peremptory writ of mandamus should not issue commanding them to issue to the relators a permit for the erection of a building at 78 Sip avenue, Jersey City, in accordance with the application of the relators.

Looking at the depositions it is seen that the relators de¡sired to erect a one-story structure resembling a railway ¡dining-car to be used as a restaurant at Journal Square, Jersey City, where many large buildings are located. The dining-car as proposed seems to be of one story, twelve feet high, with three chimneys.

It appears that the application was made to the building department and was referred to the city commissioners. After a hearing the permit was denied by the commissioners. The resolution denying the permit says that the erection of “said dining-car at the place desired would be inappropriate, would not be desirable in the neighborhood, would, from experience, attract loiterers and undesirable people and would be detrimental to public health, safety and the general welfare of citizens in that community.”

It seems to appear that Jersey City has a zoning ordinance which does not forbid a one-story building, and whether it permits a structure such as this designed for a restaurant is not clear from the record, the ordinance not being printed. It does, however, appear that such zoning ordinance “regulates type and uses to which buildings are to be put.” It further appears that on November 13th, 1929, the city had in preparation another zoning ordinance, but the record is silent as to whether or not it has since been adopted.

In this state of uncertainty as to the pertinent factual situation, and in view of the reasons given by the commissioners for the refusal of the permit, we think that the proper course is to award an alternative writ of mandamus in order that thereby, with the return and other pleadings, the issue may be framed. An alternative writ is awarded accordingly.


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    WILBUR F. SHINN AND ELIZABETH C. SHINN, PROSECUTORS, v. TOWN OF HAMMONTON, A MUNICIPAL CORPORATION, RESPONDENT.
    Submitted February 1, 1930
    Decided May 27, 1930.
    Before Justices Teenchabd, Lloyd and Case.
    Eor the prosecutors, Bolte, Tripician & Kirlcman.

    For the respondent, Peter H. Lucas.

   Pee Cubiam.

This is a rule to show cause why a writ of certiorari should not be granted to review the validity of a certain ordinance passed by the town of Hammonton, it being contended, amongst other things, that the ordinance was not lawfully passed.

The depositions tend to show that the prosecutors are residents and taxpayers of the town and own property affected by the ordinance.

The depositions show that the ordinance was entitled “An ordinance for laying out and paving a public street or road to be known as the Lake Boulevard and providing for the raising of the necessary moneys therefor by the issuance of temporary improvement notes or bonds,” and was passed December 23d, 1929.

The depositions further tend to show that the ordinance was introduced on October 14th, 1929; that it was advertised for hearing on the 28th of October; that on the last mentioned date a hearing was had and considerable opposition developed and thereupon the further consideration of the ordinance was adjourned from time to time until finally, on December 23d, 1929, the ordinance was amended in substance by inserting paragraph 10, as follows:

“This ordinance is passed with the understanding that the highway commission of the State of New Jersey will take over and hard surface the right of way herein acquired, and the money herein appropriated shall not be spent until such time as such highway commission of New Jersey shall agree to reimburse the town of Hammonton for the moneys actually spent for acquiring the rights of way,” &e.

On that same evening, after having made that substantial amendment, the record seems to indicate that the ordinance was passed the second and final reading. This showing certainly presents a debatable question as to the validity of the' ordinance.

The rule to show cause will therefore be made absolute and the writ allowed.


author: Bodinb, J.

text:
    E. R. WILLETS, PROSECUTOR, v. THE BOROUGH OF SEA GIRT, A MUNICIPAL CORPORATION, RESPONDENT.
    Decided June 3, 1930.
    Eor the prosecutor, Quinn, Parsons & Doremus.

    For the respondent, Durand, Ivins & Carton.

   The opinion of the court was delivered by

Bodinb, J.

The prosecutor, a property owner, seeks a writ of certiorari to review an ordinance of the borough of Sea Girt, authorizing the construction of a boardwalk in front of his property in Ocean avenue. The owner of the adjoining property sought in chancery an injunction to restrain the construction of the boardwalk in question.

Vice-Chancellor Berry considered most of the questions involved in this case, and his admirable and exhaustive opinion is reported in 106 N. J. Eq. 118. The conclusions at page 129 are as follows: “While undoubtedly this court has jurisdiction to entertain this bill because of the restrictive covenants involved, if for no other reason, The principle is universal, that where the rights of an individual are invaded, by the acts of persons clothed with authority, and who exercises that authority illegally, the persons aggrieved must seek redress by certiorari.’ Tucker v. Freeholders, 1 Id. 282.”

The ordinance providing for the erection of a boardwalk along the easterly side of Ocean avenue for nearly its entire length was adopted September 16th, 1929. The boardwalk is to be placed on the easterly side of Ocean avenue at aj place where the Atlantic ocean has so worn away the sand that the boardwalk must be built on piling so as to bring it up to a level with the westerly side of the avenue. The ordinance is regular in form and refers to filed plans and specifications which are adequate to indicate the location of the walk, its character and extent. The plans and specifications call for steps and approaches so that the walk may be reached from the westerly side of Ocean avenue. The approaches are five in number and are of the ramp type and extend across the highway.

It is first argued that the ordinance is vague and inadequate. -It does not so impress me. The ordinance itself is clarified by the plans and specification. A definite type of walk is indicated in a fixed and definite place with adequate means of reaching the same. The necessities of the case call for the building of the walk on piling at a considerable height above the beach. This very circumstance makes it necessary to provide some means for reaching the walk at suitable and convenient intervals.

There seems no merit in the suggestion that the building of the approaches is being attempted without an ordinance authorizing the same. The ordinance refers to the plans and specifications on file and these plans and specifications show the approaches. This is enough. State, Parker v. New Brunswick, 30 N. J. L. 395; State, Woodruff v. Orange, 32 Id. 49; New Jersey Digest Municipal Corporations, sec. 196.

In conclusion the prosecutor urges that the walk will be a public nuisance, a violation of the prosecutor’s constitutional rights and is beyond the powers of the municipality. The mere suggestion that the approaches will limit the use of the highway to pedestrians does not seem enough to defeat the act of the municipality. The highway has never had any greater use and in all probability never can have. The constant encroachment of the ocean has made any use of the highway, other than for pedestrians, impossible. The loose, shifting sands constantly washed by the ocean makes road building impossible. It is apparent that the walk will not interfere with the prosecutor’s light, air or view. Although built on piling the level is not above the level of the westerly side of the street.

Under chapter 152 of the laws of 1917, the municipality has the power to build a boardwalk (article 20, subdivision f). The walk makes for a more adequate public use.

Vice-Chancellor Berry satisfactorily disposes of the nuisance question in Huleít v. Sea Girt, supra.

The prosecutor’s rights under the constitution are not impaired by the approaches. There is such a difference between the level on the westerly side of the highway and the easterly side that the approaches are the only means by which the walk will be accessible. They, in no sense, interfere with access to prosecutor’s property and are to be so constructed that those who desire to walk on foot along the ocean may . do so. The approach to the ocean in front of the prosecutor’s property remains the same. The only thing is that the boardwalk is to be so built as to insure a greater use of the highway. No right exists to interfere with a more adequate use of the public highway.

The writ will be denied but without prejudice.


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    TEOFIE KORNYLAK, PROSECUTOR, v. FRANK HAGUE, ARTHUR POTTERTON, JOHN J. BEGGANS, MICHAEL J. FAGAN, WILLIAM B. QUINN, BOARD OF COMMISSIONERS OF JERSEY CITY, AND EDWARD J. HOLLAND, CITY CLERK OF JERSEY CITY, DEFENDANTS.
    Submitted February 1, 1930
    Decided June 9, 1930.

      Before Justices Teenci-iabd, Lloyd and Case.
    Eor the prosecutor, Samuel S. Stern (William L. Bae, of counsel).
    Eor the defendants, Thomas J. Brogan and Charles Hershenstein.

   Pee Cueiam.

The prosecutor of this writ is the owner of premises No. 9 Nunda avenue in Jersey City upon which is erected a two-story frame two-family house, and which was used and is used by him as living quarters for himself and family, and. also as a rooming house, accommodating six or seven boarders.

He desired to enlarge the building so as to keep more boarders. He filed a petition with the building department May 11th, 1929, in which petition, in answer to the question a’s to how the building was to be occupied as altered, he said “dwelling and boarding house.”

The application was accompanied by plans prepared by the architect. The application was granted and the permit was issued on May 11th, 1929. The prosecutor commenced work on the property in preparation for the new addition. He demolished a garage in the rear of the house in order to clear the site for the altered building. He borrowed money on a' mortgage to finance the work. He paid the appraisal fee to the mortgage company and he also paid a search fee and was granted the mortgage by the mortgage company. His search bill amounted to $125. Then on August 6th, 1929, his permit was revoked by the board of commissioners. But since the owner had expended money upon, the faith of the permit in the prosecution of the work permitted, the board was without power to revoke the permit unless it was obtained by fraud or deceit. Freeman v. Hague, 7 N. J. Adv. R. 1167. The resolution revoking the permit does not say that it was revoked because of any fraud or deceit. It says that the “alterations are intended to enlarge the premises and extend their present use which is that of a rooming house for men,” and, “therefore, in the interest of the public welfare,” the permit was revoked. Therein we see no finding or allegation of fraud or deceit. It is now argued, however, that there was fraud. The fraud is said to consist of the concealment of the purpose of the owner to make additional room for boarders. The landowner in the brief frankly states that that was his purpose. The city says that no such purpose was disclosed in the answers made by the landowner on the application blank; but we think that can hardly be said to be so. It seems to us that a fair reading of the answers made by the owner results in the conclusion that his settled purpose was to occupy the house as altered as a dwelling and “boarding house.” If that be so, and we think it is, there was no fraud.

The result is that the action of the board in revoking the permit is set aside, with costs.