author: Flastnagan, J.

text:
    Essex County Orphans Court.
    In the matter of the probate of a paper-writing purporting to be the last will and testament of James G. Barnett, deceased.
    [Decided February 19th, 1924.]
    Wills — Probate of — Undue Influence Sustained — Lack of Testamentary Capacity Not Sustained — Acts Necessary to Constitute Undue Influence Considered and Applied.
    On appeal from probate.

      Messrs. Warren, Brill & Slardón (by John Warren), for the appellant.

      Mr. Charles C. Pilgrim and Mr. Frederic C. Bitger, for the respondent.
   Flastnagan, J.

A paper-writing purporting to he the last will and testament of James G. Barnett, having been offered for probate to the surrogate of Essex county by Tillie O. Barnett, was by him admitted to probate.

The estate of the deceased consists of a large amount of bolh real and personal property-

There were no children of deceased, his nearest blood relative being Ms nephew, Fred M. Barnett.

The will left the entire estate to- said Tillie O. Barnett, the wife of deceased, to the exclusion of his said nephew, who now appeals to this court from the surrogate’s court, petting ii]> as grounds of appeal lack of testamentary capacity, fraud and undue influence.

The dec-eased was a- man sixty odd years of age, of inferior, undeveloped mentality, bordering on the weak-minded. He was amiable, trustful, readily influenced by those about him, of either superior or more determined mentality, and had been accustomed all of his life to be led and to rely upon others to think and act.for him and to be guided by their views. His father was a man of influence and wealth. Every opportunity for advancement which wealth and position.offer was open to him, but his| character and ability were such that he availed of none of them. He inherited a fortune from his father and his father’s brother, and spent his life in luxury, without occupation, ambition or definite object and in a kind of mental stagnation.

Because he was his father’s son and inherited Iris property he took his father’s place as a director in the Murphy Varnish Company and as a trustee in the' Central Methodist Episcopal Church. At the meetings of those boards he played the part of the “dummy director,” never rendering a decision or passing judgment on anything that arose, but assuming an attitude of silent assent.

When he met the proponent he was in frequent contact with his father’s former- associates, people of character and standing in the community, whose lives were admirable and whose purposes were righteous and commendable. He was religious, charitable, quiet, kind and amiable.

Such was the decedent, James G. Barnett. Such were his associations at the time he met the proponent. He had been previously married- His wife had died, and he .was engaged to be married to another lady.

On the other hand, Tillie O. Barnett, the proponent, was a woman designing, worldly wise and of many adventures. Her associates were far removed in character from those of deceased. Divorced by two former husbands, she was no stranger to scandal and notoriety. Her marriage to deceased was her fourth marriage. On the stand she testified she had been married three times, and on being confronted with the facts pretended she had overlooked or forgotten one husband. Though Earle was neither her maiden name (that being Jannich), nor the name of any of her. husbands, she testified she could not remember whether she had ever been married under that name. She was careless and frequently untruthful under oath, and her testimony impressed me on the whole as of little value.

The respective ages, characters, training and experience of the parties to the transaction in question must necessarily throw light on the one’s capacity to exert and the other’s capacity to resist undue influence.

Tu the ease at bar the training and experience of proponent shows her to he fully capable and qualified-to dominate and control a man of the capacity, training and experience of the deceased. In Moore v. Blauvelt, 15 N. J. Eq. 367, the ordinary says: “It [undue influence] must necessarily depend, in each case, upon the means of coercion or influence possessed by one party over the other; upon the power, authority or control of the one, the age, the sex, the temper, the mental and physical condition, and the dependence of: the other” (p. 368).

In the spring of 1919 an acquaintance was “scraped up” between the proponent and deceased on the fishing pier at JBelmar, where deceased owned a summer residence. She was not over-delicate about her intentions and was overheard to say to some other women, in answer to- their inquiry as to what she was doing there, that she was “hunting for some rich old geaser.”

Tire acquaintance thus initiated was followed up by proponent, by visits by her to Barnett at his residence, where he was living alone with his domestics.

During the period following the meeting on the fishing pier proponent declared, on an occasion in New York, that she was going to marry a rich old man from Jersey and that “sometimes when you are married to an old man they don’t live very long and then you can enjoy all their money.” At another time she said that if she “got the old bool)” one Raymond Miller should have a nice present. After the wedding deceased gave Raymond a watch.

The “courtship” which was going on during these expressions of proponent culminated in the marriage of the parties on March 24th, 1920.

After tlie marriage was consummated proponent began to weaken and absorb the deceased mentally, and to acquire his property. She obstructed access to him by his former associates; those of his old family servants who were willing to stay she gradually displaced; she stopped his charities and ended the religious contributions, which his father had been accustomed to make before him and which he had inherited as a custom from his father; she assumed to regulate who should talk to him, personally or on the telephone; directed his mail to be delivered to her and took control of his business affairs.

Deceased was, of course, what is called “an easy mark,” and because of' this fact it may be that he was better off without some of his former friends and associates. He may have suffered petty impositions on the part of his servants, but the new way reflected the mind of Mrs. Barnett, while the old way reflected the mind of Mr. Barnett. Asked by one of his friends why he was not “seen about” and did not “come around,” Barnett responded that he was a prisoner and could not be around and do what he had been accustomed to do.

These circumstances and other satisfy me that deceased was subjected almost completely to proponent’s control and that he did nothing affirmative of any moment except under her prompting.

Proponent’s control, as already stated, extended to the management of his properties and business affairs, such as they were. The relations were confidential- As to his realty, a substantial part of it was procured to be transferred into her name, and such as he did not transfer to her she either sold or was endeavoring to sell and convert into personalty, a formi readily acquired bjr gift and more certain of inheritance by a wife where there are no children.

The testimony shows declarations by the deceased of his intention to make liberal provision for his nephew, Ered M. Barnett, the contestant, and the evidence shows that proponent successfully contrived to prevent contemplated visits by deceased to his nephew at the latter’s home in Chatham. Toward the close of decedent’s last illness, while he was in the hospital in New'York, expecting to die, and where he did die, proponent telephoned nightly to contestant, telling him not to come to see his uncle, stating either that it was undesirable or that l>e was not wanted by his uncle.

The will in question was made nearly two years before deceased died. The immediate stimulus which moved the deceased to make the will was a report by proponent to him of a pretended conversation between proponent and decased’s nephew, fabricated by proponent, apparently, out of the whole cloth. In this report to deceased the proponent, simulating a condition of mind of being, as she expressed it, “all worked up,” told the deceased that she had just returned from a visit to the nephew’s home and that the nephew had asked her whether deceased had made a will, and had threatened to1 pull deceased’s mother’s picture off the wall after his death. Upon this report to the simpleminded, deceased ho said to proponent: “If lie ever tries to pull my mother's picture down * * take the first thing and brain him.”

The appointment to draw the will was shortly thereafter made by proponent over the telephone with the scrivener, and proponent accompanied and was present with the deceased on the occasion when he visited the scrivener and executed his will.

The proponent testified that said conversation with the nephew took place on the occasion of a visit by her with her friend, one Mrs. Miers, to the nephew’s home in Chatham; but the conversallon is denied in loto by the nephew and Mrs. Miers is not produced, and I am satisfied, as I have said, that the conversation is a pure fabrication, concocted by proponent for the purpose of deceiving the deceased, and that it did deceive him, and was the immediate procuring, stimulating cause for his making the will, allaying a latent desire to make testamentary provision in the nephew’s favor.

It appears that on the day the will was prepared, when the parties were at the lawyer’s office, proponent made inquiry of testator as to whether he wanted to leave his nephew anything. I regard this as mere stage play for the benefit. of the scrivener. Proponent’s preparation of deceased for the event left no uncertainty in her mind as to what the answer would be, and that it would be a statement that he did not wish to leave him anything.

Before the will was made proponent declared her desire to have it made in her favor.

After the will was made and after the marriage, proponent showed uncertainty and nervousness about both the will and the marriage and concealed the existence: of the will. On two occasions, one in 1921 or 1922 and the other in 1923, when the deceased was at the hospital, in his last illness, she voluntarily represented to the deceased’s nephew that no will had been made.

As to the marriage, her nervousness and uncertainty went so far that she procured a second marriage ceremony to be performed by the recorder of North Bergen on December 12th, 1922, shortly before deceased’s death.

As to the will, her nervousness and uncertainty extended to the point that she attempted to get a second will executed, inducing a mutual friend or acquaintance to suggest to the decedent that he make a will in her favor.

Her nervousness about the validity of the will and the marriage is suggestive. of a consciousness of weakness akin to the consciousness of guilt inferrable from the flight of an accused after the commission of a crime.

After the illness of deceased became serious and he had gone to the hospital she took possession of the will, to which she had had access, placed it in the safe in the home and retained it there; until after deceased’s death, when it was produced and offered for probate by her.

Between the death of deceased and his funeral proponent rented a safe deposit box in New York in the name of herself and daughter and transferred certain property into it.

Some of the testimony for appellant in this case is that of former servants of the deceased’s household. Ordinarily, the testimony of servants against their former employers is considered with some reserve. In this case the old employes doubtless had an easy time under an easy-going, good-natured, simple-minded and idle master. No doubt they were jacked up by the new mistress; but these were old family servants of conservative, respected and God-fearing people. They were not likely to suit a woman of the manners, customs and character of proponent, and they might be expected to feel righteous indignation at having been placed in the position of authority over them which had been held by a woman such as their first mistress, the former Mrs. Barnett, seems to have been. Some hostility is for these reasons to he expected; but after due consideration of these circumstances, and all the circumstances, I feel that their testimony is credible.

The evidence in the case does not, in my opinion, sustain the claim of lack of testamentary capacity. As to undue influence, a different situation is presented. The testator, while he might not have been incapable of making a will, may have been incapable of resisting the desires of proponent.

The boundary of legitimate influence is not a mathematical line. It has not and never can be defined with precision. It must he ascertained, in each particular case, under established rules of law, applied with the leaven of judicial common sense to all the facts, conditions and circumstances disclosed b3r the evidence.

The latitude allowed a husband or wife to influence the spouse arises out of the marital relation itself, but where the marriage is, as here, a mere incident and instrumentality in an unrighteous scheme whereby proponent designed to enrich herself at the expense of some “rich old geaser” victim, by any means which might come to hand, the usual latitude should not he allowed. That her purpose was not legitimate is evidenced by her own declarations; that her scheme was fraudulent is evidenced by the method of deception by which she carried it out, and by which the decedent was induced to make a will.

A husband and wife has ordinarily a right to counsel and persuade his or her spouse in the best interest and welfare of the family, to appeal to his or her sense of justice and duty, to urge liis or her views as to the proper, expedient or wise disposition to be made of the spouse’s propertj1', and also to influence the spouse in his or her favor. But this marital relation never covers the right to substitute one’s will for that of the other, through constraint or fear-, constant pressure of importunity or overbearing desire for peace or rest, misrepresentation, or any other means. “Fraudulent and malicious means whereby men are secretly induced to make their testatments are no' less detestable than open force.”

It has been said that in order to shift the burden of proof to a proponent of a-will, on an issue of undue influence, there must be some other elements “added to proof that testator’s mind was enfeebled so1 that it was difficult to resist improper influence and the establishment of intimate confidential relationship.” It is said that “slight circumstances” are sufficient to be added. Among the elements which may be thus added, which have been mentioned in the authorities, are these: (1) The initiation of proceedings for the preparation of the instrument; (2) participation in such preparation; (3) presence at the execution of the will; (4) efforts to exclude the natural objects of testator’s bounty from his societjr; (5) concealing the making of the will, and (6) taking possession of the will. Wheeler v. Whipple, 44 N. J. Eq. 145; In re Howard, 9 N. J. L. J. 144; Cooper’s Will, 75 N. J. Eq. 177; 76 N. J. Eq. 614; Morrisy’s Will, 111 Atl. Rep. 26.

In the case at bar we have the enfeebled mind difficult to resist improper influence of the proponent, the intimate, confidential, relationship, and all the other added circumstances numbered above from one to six. With all these, with the marriage a mere instrumentality in a scheme to get the testator’s fortune, and with the scheme consummated and the will induced by means of false and fraudulent representation by proponent ,to the deceased, the undue influence is affirmatively proved. But it is not necessary to rest the decision on this ground. The least that can be said is that a presumption of undue influence is raised and the burden shifted to proponent.

This presumption, “unless countervailed by satisfactory evidence, controls as a conclusion of fact.” It cannot be overcome by proponent’s testimony, because her testimony is neither “impeccable” nor “convincing.” The testimony of proponent’s attorney does not answer. The work of proponent had been done before the testator got to the attorney’s office. The scrivener was merely an innocent means used by proponent to put her will, not decedent’s, into effect.

The conclusion that false representations about his nephew were made to deceased^ inducing him to make a will excluding- the nephew, is based upon the testimony of proponent, and it is true that her testimony is frequently false, and, as has been said, on the whole, is neither “impeccable” nor “convincing.” The rule “falsus in uno, fálsus in omnibus” is not a mandatory one, but.is rather a permissible inference, and does not require the court to believe all or disbelieve all of a witness’s testimony who knowingly testifies falsely upon a material fact. It is for the court to sift the testimony, to seek out and ascertain the truth. The court may accept part of the testimony as true and reject part as false. State v. Dugan, 84 N. J. Law 606; 85 N. J. Law 730; State v. Samuels, 104 Atl. Rep. 322; 92 N. J. Law 131.

For the various reasons stated the appeal is sustained and probate of the alleged will is denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FRED GOECKEL ET AL., PLAINTIFFS-RESPONDENTS, v. ERIE RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted November term, 1923
    Decided March 4, 1924.
    Negligence — Motor Vehicle Collision, at Grade Crossing- — Supreme Court Cannot Hear and Determine Validity of Exceptions Reserved to a Verdict After They Have Been Considered and Determined by the Trial Court on Rule to Show Cause.
    On appeal.
    Before Gummere, Ci-iiee Justice, and Justices Minturn and Black.
    For the plaintiffs, Kalisch & Kalisch.

    For the defendant, Parker, Emery & Van Riper.

   Per Curiam.

This suit was brought to recover damages for personal injuries sustained by each of the plaintiffs and for damages to an auto truck owned by the plaintiff Fred Goeekel. The case grows out of a collision at a railroad grade crossing. The trial resulted in verdicts in favor of the plaintiffs. The defendant, the Erie Railroad Company, obtained a rule to show cause why a new trial should not be granted, reserving three exceptions taken at the trial. A new trial was refused, the rule "was discharged. The defendant then applied for a reargument of the rule, which was also denied, hence this appeal. The three exceptions reserved were, first, reading to the jury section 36b of the Railroad act; second, charging the plaintiff's second request, and third, the charge of the court in answer to the written communication from the jury, “must the bell at the crossing be ringing,” &c. These are all covered in the reasons filed for a new trial under the rule to show cause (Nos. 10, 13 and 24, Record, p. 266). This disposes of the case on appeal under the case of Faragasso v. Introcaso, 1 N. J. Adv. R. 1034, which holds the Supreme Court cannot hear and determine the validity of exceptions reserved to a verdict, after they have been considered and determined by the trial court on- the rule to show cause why the verdict should not be set aside.

The judgment is therefore affirmed, with costs.


text:
    ELIZABETH HALL ET AL., PLAINTIFFS, v. LOUIS FERRIERO ET AL., DEFENDANTS.
    Submitted November term, 1923
    Decided March 4, 1924.
    Negligence — Motor Vehicle Bus Injury — Examination Leads to Conclusion that Verdict Should Not be Disturbed.
    Before Gummeee, Chief Justice, and Justices Minturn and Black.
    Eor the plaintiff, Oroshen & Moriarity and Wilbur A. Heisley.

    Eor the defendant Louis Eerriero, John J. Murphy.

    Eor the defendants, Warren L. Beardsley, Lester T. Smith said-Jacob Schneider.

   Per Curiam.

This suit was brought to recover damages, for personal injuries to Elizabeth Hall, the infant daughter of Eaymond S. Hall, and for consequential damages to Eaymond S. Hall, as the father of Elizabeth Hall. Elizabeth Hall was a passenger in a jitney bus, which collided with an automobile driven by Louis Eerriero^ one of the defendants. The trial resulted in a verdict and judgment of $5,000 in favor of the infant and $2,500 in favor of the father against all the defendants. A rule to show cause was allowed limited to the question of damages, and also to the question of newlv-discovered evidence as related to the question of damages.

Our examination of the record leads us to the conclusion that the verdicts should not be disturbed, except in one particular. We think, under the evidence, the verdict of $2,500, in favor of the father, Eaymond'S. Hall, is excessive, and should be reduced to $1,500. If he will remit the excess the verdict will stand for $1,500, and the rule to show cause in each ease will be discharged, but without costs. Otherwise, the rule will be made absolute as to the plaintiff Raymond S. Hall and discharged as to Elizabeth Hall.'


author: Pee Curiam.

text:
    ANNA McNAMARA, PLAINTIFF, v. ERIE RAILROAD COMPANY, DEFENDANT.
    Submitted November term, 1923
    Decided March 4, 1924.
    Listing Causes — Case Not Moved Marked “Off for Term” — Rule to Show Cause Why Suit Should Not be Dismissed — Court Will Not Interfere With Control Trial Judge Must Have on the List.
    On rule, &c.
    Before Guaimeee, Ciuef Justice, and Justices Mintukn and Black.
    Eor the plaintiff, Edward F. Merrey.

    For the defendant, Collins & Corbin.

   Pee Curiam.

The object of this rule is to show cause why the suit of the plaintiff should not be dismissed.

On June 8th, 1923, the case was on the day call of cases noticed ready for trial at the Passaic Circuit' Court. The case not being moved, the trial judge marked the ease “off for the term.” ’ It is to review this action of the trial court that the rule was obtained. We cannot interfere with the control which the trial judge must have over the list of causes marked ready for trial.

The rule to show cause is discharged, with costs.


text:
    HENRY SCALA, PLAINTIFF, v. UNITED STATES HOFFMAN MACHINERY CORPORATION, DEFENDANT.
    Submitted November term, 1923
    Decided March 4, 1924.
    Negligence — Motor Vehicle Collision With an Unlighted Truck Parked on a Street — Plaintiff’s Judgment Sustained.
    On rule.
    Before Gummere, Ci-iiee Justice, and Justices Minturn and Black.
    For the plaintiff, Michael D. Miriello.

    For the defendant, Frank G. Turner.

   Per Curiam.

This was an accident case, in which the plaintiff received a verdict of $7,000 for personal injuries. The defendant obtained a rule to show cause and writes down ten reasons for a new trial. They call for no discussion. They are without legal merit. All the questions involved are questions of fact. The plaintiff was riding in an automobile driven by John Ferrari, about eight o’clock in the evening of March 30th, 1922. He ran into the defendant’s automobile truck, which was parked on Main street, Paterson, unlighted. As a result of the collision the plaintiff’s right leg was fractured at the hip; The doctor’s bill was $250. The hospital bill was $194. The plaintiff was earning on the average at the time of the accident $30 to $35 per week. He has been unable to work since the accident. The rule to show cause is discharged.


text:
    LOUIS RUNZ ET AL., PLAINTIFFS, v. CHARLES HARTMAN, DEFENDANT.
    Submitted November term, 1923
    Decided March 4, 1924.
    Negligence — Motor Vehicle Collision With Motorcycle — 'Evidence Showed Defendant Deflected His Course to the Left, Causing the Accident — Damages Not Excessive.
    On rule.
    Before Gummere, Chief Justice, and Justices Mikturn and Black.
    Eor the plaintiffs, Weinberger & Weinberger.

    Eor the defendant, Edivard S. Holman and Ward & Mc-Ginnis.

   Per Curiam.

This was an accident case brought to recover damages for personal injuries and under the Death act. The trial resulted in four verdicts, aggregating $14,000. The cause of the injuries was a collision on the afternoon of May 29th, 1922, on Market street, in Paterson, at the intersection of East Thirtieth street. The defendant’s touring car, operated by the defendant, came into collision with the motorcycle driven by the plaintiff Louis Runz. The plaintiff’s evidence shows that the motorcycle was upon the southerly side of Market street, traveling in an easterly direction, i. e., on plaintiff’s right-hand side. The defendant was traveling along Market street in a westerly direction; he had his head turned and had his hand back of him, waving at some one; he deflected his course of the left and steered his car into the path of the plaintiff. The defendant obtained a rule to show cause and writes down eight reasons for a new trial, which are argued under two heads in the defendant’s brief, viz., the verdict is against the weight of the evidence. We think not. The verdict is supported by the evidence. Second, the damages awarded are excessive. In the ease of Harold Munz, who was killed and who waq six years old, the verdict of $3,000 is large, but not such as we can say the verdict is excessive so as to the other verdicts.

The rule to show cause is discharged.


text:
    THE BOARD OF EDUCATION OF LONG BRANCH, IN THE COUNTY OF MONMOUTH, RELATOR, v. BOARD OF COMMISSIONERS OF LONG BRANCH, RESPONDENT.
    Submitted December 3, 1923
    Decided March 5, 1924.
    Schools — Improvements Provided For by Law — Amount of Money Necessary Certified by Board of Education to Governing Body — Appropriation Mandatory Under the Statute.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Trenci-iard and Campbell.
    For the relator, John W. Slocum.

    For the respondent, Thomas P. Fay.

   Per Curiam.

‘The depositions disclose the following matters of fact: On October 26th, 1921, the' board of education of Long Branch by resolution decided that it was necessary to purchase land upon which to- erect a new school building, and resolved, “that the following is a statement of the amount of money estimated to be necessary for the purchase of land as a site for said school building and expenses necessary and incident thereto, namely, $40,000.”

On November 2d, 1921, a statement of the amount of money estimated to he necessary for the purchase of lands for school'purposes, as set .forth in said resolution, was prepared and delivered to all the persons who were then members of the board of school estimate.

On November 23d, 1921, it was resolved by the hoard of school estimate “that it now fixes and determines upon $40,000 as a sum necessary for the acquiring of a suitable site for a new school building;” and “that two certificates setting forth said amount be made, one of which shall be delivered to the board of education and the other to the board of commissioners of the city of Long Branch.”

It is admitted that on November 23d, 1921, the board of school estimate made two certificates of such resolution, and on or about November 29th, 1921, one of said certificates was delivered by the board of school estimate to the board of education and tlie other was delivered to the commissioners of the city of Long Branch.

On January 31, 1922, the board of commissioners, by ordinance, appropriated the sum of $10,000 for the purchase of lands for school purposes.

On March l?th, 1922, the board of education called upon the board of commissioners for the sum of $2,500 on account of the total appropriation of $40,000. Such request was refused by the hoard of commissioners on March 21st, 1922. Subsequently, at the "same meeting, an ordinance repealing the ordinance making the appropriation of $40,000 for the purchase of-lands for a school site was adopted. Since the date last mentioned the hoard of commissioners have failed and refused to make any appropriation.

On May 19th, 1922, the board of education filed its -petition of appeal with the commissioner of education of the State of New Jersey, setting forth the refusal of the board of commissioners to raise the amount ordered for school pur-poses by the hoard of school estimate, and asked that the commissioner determine that matter; and on June 14th, 1922, the commissioner rendered his decision, in which he affirmed the action of the board of school estimate and ordered the board of commissioners to appropriate $40,000 for the purchase of lands as a school site.

On July 13th, 1922, the board of commissioners appealed to the state board of education from the decision of the commissioner, which afterwards affirmed the decision of the commissioner.

It further appears that the board of commissioners have failed, neglected and refused to; appropriate $40,000 certified as aforesaid.

It is admitted the $40,000 fixed and determined as aforesaid, when added to the total amount of bonds heretofore issued for any school purpose by the city and not redeemed, does not equal or exceed the sum of three per centum of the taxable valuation of the* real and personal property in the city.

It is admitted that the board of education has jurisdiction over the school district of the city of Long Branch; that the city is governed by an act of the legislature entitled, “An act relating 'to regulating and providing for the government of cities, towns, townships, boroughs, villages and municipalities governed by hoards of commissioners or improvement commissions in this state,” approved April 25th, 1911, and the various acts amendatory thereof and supplemental thereto, and the “Home Rule act”; that the present board of commissioners were duly elected by the legal voters of the said city, and are the body having the power to make appropriations of money raised by tax in said city.

Now, section 76 of the School act, as amended, reads as follows:

“Whenever a city board of education shall decide that it is necessary to raise money for the purchase of lands for school purposes, or for erecting, enlarging, repairing or furnishing a school house or school houses, it shall prepare and deliver to each member of the board of school estimate of such, school district a statement oí the amount of money estimated to be necessary for such inn-pose or purposes; said board of school estimate shall fix and determine the amount necessary for such purpose or purposes, and shall make two certificates of such amount, one of which certificates shall be delivered to said board of education, and the other to the common council, board of finance or other body in the city having the power to make appropriations of money raised by tax in such city, hereafter designated the governing body; said governing body may appropriate such sum or sums for such purpose or purposes in the same maimer as moneys appropriated for other purposes in such city are raised, assessed, levied and collected; or said governing body may appropriate and borrow such sum or sums for the purpose or purposes aforesaid, and may secure the repayment of the sum or sums so borrowed, together with interest thereon at a rate not to exceed six per centum per annum, by the issue of bonds in the corporate name of such city; bonds so issued shall be designated “school bonds,” may be registered or coupon, or both, of such denominations as the governing body may determine.” Pamph. L. 1921, p. 746.

The only changes in section 76 made by supplements or amendments since the revision of the School act in 1903 relate to the time and manner of pajóneut, the rate of interest and method of financing appropriations for school purposes.

Under section 76, when the board of school estimate have fixed and determined the amount necessary for the purchase of lands and the erection of a school house, it. is mandatory upon the body having the power to make appropriations of money raised by tax, to cause the amount to be raised by tax, or to borrow the same and secure its repayment by issue of bonds. Town Council of Montclair v. Baxter, 76 N. J. L. 68; Board of Education of Montclair v. Town Council of Montclair, Id. 59; Townsend v. State Board of Education, 95 Atl. Rep. 729.

On behalf of the board of commissioners it is urged that the appropriation of the money rests in their discretion; that the board of education exceeded its statutory power, and that such board of education and board of estimate failed in the performance of certain conditions precedent. But an examination of the cases cited will disclose that these various contentions have all been determined adversely to the claim of the board of commissioners.

Since the essential facts are not in dispute, the rule to show cause will be made absolute, and a writ of peremtory mandamus awarded in accordance with it, with costs.


text:
    ABRAHAM ISRAELOW, PLAINTIFF-APPELLANT, v. MAX KREITZER, DEFENDANT-APPELLEE.
    Submitted December 10, 1923
    Decided March 3, 1924.
    Fraud — Plaintiff Alleged Contract for Sale of Goods was Made For the Purpose of Obtaining Deposit — Proof That the Defendant Was Ready and Able to Perform But That Plaintiff Failed in His Part.
    On appeal from the District Court of the Second Judicial District of the County of Essex.
    Before Justices Kalisch and'Katzenbach.
    Eor the plaintiff-appellant, Gaetano M. Belfatto.

    Eor the defendant-appellee, Irving Siegler.

   Per Curiam.

This is a plaintiffs app’eal from a judgment rendered in favor of the defendant by the District Court of the Second Judicial District' of the County of Essex. The action was ip tort. The state of demand set forth that the defendant, in order to induce the plaintiff to pay him $200; falsely and fraudulently entered into a written agreement by which the defendant in consideration of the sum of $1,500 agreed to sell to the plaintiff, on July 30th, 1923, the business, stock in trade, and the good-will of a grocery business conducted by the defendant in premises 307 W. Kinney street, in the city of Newark; that the defendant was also to assign to the plaintiff his interest in an unexpired lease of the store, in which the business was conducted, and was to obtain from the lessor his consent to the assignment; that the defendant failed to sell the plaintiff said goods and assign the lease and obtain the said consent from the lessor, and that the defendant also refused to pay to the plaintiff the $200 which was paid as a deposit. The agreement referred to in the, state of demand was executed between the parties on July 26th, 1923. The purchase price was $1,500. The stock was to be free and clear of encumbrances. The agreement provided for the assignment of the lease to the purchaser, but did not provide that the vendor should obtain the consent of the owner to the assignment.

The state of the ease was settled by the trial judge, who, after reciting the evidence, found the following facts:

1. That plaintiff, or his attorney, did ask for and receive a list in writing of the names, place of residence or business of defendant’s creditors, together with a statement of the amount due each of them, and that defendant did say that there were some adjustments of credits due him on some of the bills which he would take up with his creditors.

2. That defendant did call at Mr. Belfatto’s office on the morning of July 30th, and was informed by Belfatto that the deal was off because plaintiff had been unable to get title to the real estate.

3. That after defendant had called on Belfatto, as above recited, that he went to his attorney’s office (Mr. Siegler) and that Mr. Siegler talked to Belfatto on the ’phone, and that Belfatto informed him the deal was off for the same reason.

-1. That after the call by defendant on Belfatto, neither he nor his client, the plaintiff, endeavored to get in touch with defendant or his attorney to inform them that the deal was to be consummated.

The trial court also found as a matter of law the following:

1. The plaintiff was in nowise harmed by any variance in amounts of individual bills, as there -were alleged credits wdiich would have reduced the bilis if allowed, and, if not allowed, he still was not harmed, because he had the necessary information by means of which he could make the in-, quiry of the creditor and give notice required by “An act to prohibit sale of merchandise, goods and chattels in bulk in fraud of creditors.” Supp. Comp. Stat., p. 748.

2. That the plaintiff wras bound by the acts of his attorney in telling defendant the deal was off and that defendant and his attorney had a right to reply on the information thus given them.

3. That the plaintiff abandoned his contract.

4. That the defendant, after being told by Belfatto the deal was off, and after that statement tvas confirmed by Belfatto to Siegler, wras not bound in law to present an assignment of lease, bill of sale or proof of payment of his creditors.

5. That, both as a matter of lawr and fact, no fraud or deceit -was practiced by defendant m the matter of procuring the execution of the contract or the payment of the deposit money.

The court found the plaintiff had not sustained the burdene of proof, and therefore gave a judgment for the defendant.

Bindings of fact are conclusive if there be evidence to support them. Resky v. Meyer, 119 Atl. Rep. 97.

The first reason for reversal is that the evidence shows that the defendant failed to furnish the plaintiff with the list of the names and places of residence or business of his creditors, and the amount due to. each of them as required by the act of 1915, chapter 208, page 377.

The state of the case as settled, found as a fact that the plaintiff received this information. This finding, precludes the appellant from insisting otherwise.

The second reason for reversal is that on July 30th, 1923, the defendant failed to tender to tire plaintiff the bill of-sale and the assignment of the lease of said store as required by the agreement. As the court found as a fact that the defendant called at the office of the defendant’s attorney (Mr. Belfa tto) and was informed that the deal was off, there was no need for the plaintiff to make a tender as it was a useless act, owing to the position taken by the defendant.

The third reason for reversal is that the plaintiff’s testimony was corroborated by three witnesses and the defendant’s testimony was not corroborated. Upon an appeal from a District Court, this court canont deal with the weight of the testimony.

The fourth reason for reversal is the admission over objection of conversations between the defendant and plaintiff’s attorney. The attorney of the plaintiff was the plaintiff’s agent. The conversation in question related to the transaction which the plaintiff had engaged the attorney to conduct for him. The attorney had therefore authority to bind his principal by what he said.

The plaintiff having defaulted in performing the covenants of the agreement on his part to be performed, was not entitled to a return of the deposit made at the time of the execution of the agreement.

The judgment is affirmed.


author: Pee Cueiam.

text:
    THOMAS B. BOOTH, PLAINTIFF-RESPONDENT, v. CHARLES F. KRAEMER, DEFENDANT-APPELLANT.
    Submitted December 8, 1923
    Decided March 3, 1924.
    Agency — Real Estate Commissions — Commission Due a Sub-Agent for Procuring Sale in Which Principal Could Not Perform Because of Inability to Perfect Title — Settlement Between Principal and Agent — Amount Due Sub-Agent Who Worked on Commission Followed and Must be Paid Out of Settlement Between Principal and Agent.
    On appeal from the Essex County Court of Common Pleas.
    Before Justices Kalis oh and Katzenbaci-i.
    Eor the defendant-appellant, Jacob L. Newman.

    Eor the plaintiff-appellee, Ilary Levin.

   Pee Cueiam.

This is an appeal by the defendant below from a judgment, in the Essex County Court of Common Pleas, rendered upon the verdict of a jury in favor of the plaintiff below, for the sum of $2,284 damages and $56.68 costs. The suit was instituted against Dr. Charles E. Ivraemer, a realtor of Newark. The plaintiff was Thomas Booth, a former employe of the defendant.

The evidence shows that the Klaxon Horn Company owned a manufacturing plant in the city of Newark. It desired to sell this plant. It emplo3red Dr. Kraemer as a broker for this purpose. Booth was in the office of Dr. Kraemer, at the time working upon what is known as a forty-sixty basis; that is to sa3r, if Booth effected a sale of a property he was to receive forty per cent, of the commissions, sixty per cent, going to Dr. Kraemer.

On April 9th, 1920, Kraemer and Booth went to the Klaxon company’s plant and saw its president, Mr. MeConnell, who gave in writing to Kraemer an exclusive authority to sell the company’s plant for $250,000, or such other price as the Klaxon company might thereafter consent to. The agreement provided that if a purchaser was procured then Kraemer was to receive as commissions five per cent, of the purchase price. Booth took up for Kraemer the procuring of a customer for the property. The evidence discloses that Booth was busy for many months, following up different leads which he thought might result in a sale of the property. Finally, through the efforts of Booth, a sale of the plant to the Wallace & Tiernan Company, for the sum of $200,000, was effected. An agreement of sale was diawn up and executed by the parties. This was on October 20th, 1320. About November 1st, following, 'Kraemer informed the plaintiff that the deal was off; that the Klaxon company could not deliver a deed for the property because their title was had. It appears that portions of the plant were built upon property held by the Klaxon company through tax titles.

Booth remained with Kraemer until August 17th, 1921, when he left his employ. Kraemer stated to Booth that he had never received anything for his sendees in connection with the sale of the Klaxon property. Booth afterwards learned that Kraemer had been paid $3,000 by the Klaxon company. Kraemer appears to have accepted this in lieu of his commissions of $10,000. Booth upon learning this instituted the present action against Kraemer and recovered the judgment above mentioned. The judgment was evidently based upon the theory that Booth was entitled to forty per cent, of the sum of $5,000 received by Kraemer. Kraemer contended that the $5,000 was for the purpose of defraying his expenses and was not for commissions, and that for reasons of policy he had foregone any commissions which he might have claimed under the agreement with the Klaxon company.

The reasons or grounds of appeal appearing in the record are five in number. They all appear, with the exception of the fifth, to have been abandoned. Counsel for the appellant states in his brief that there are three grounds of appeal, as follows:

1. That there was error, in the assumption by the court in its charge to the jury, that the relations existing between the defendant-appellant and the plaintiff-respondent amounted to those recognized to exist between brokers associated for the purposes of transaction, or to those between a broker and a sub-agent.

2. That there was no proof that Dr. Kraemer had received any commissions from the Klaxon company; and

3. That the court erred in not directing a verdict for the defendant, in view of the fact that the relationship between the parties was shown to have been one of employer and employe.

An appellant has no right to substitute for the grounds of appeal' filed other grounds of appeal. They need not be considered. We will, as a matter of grace, not of right, consider the grounds or reasons stated in the brief.

As to the first ground of appeal there is no objection or exception in the record which raises this point. It, however, seems to us to be quite immaterial as to what the relationship was between Booth and Kraemer. The question was whether Booth was to receive for his efforts in consummating the sale forty per cent, of such commissions as Kraemer received. It made no difference whether the relationship was that of broker, or of broker and sub-agent, or of principal or agent, or of employer and employe.

The second ground of appeal, as stated in the brief, is not specified as a ground of appeal in the record. There is nothing in the record which discloses that any objection to evidence or the insufficiency of the proof was stated to the trial judge upon which he ruled adversely. There is also no merit in the appellant’s contention. There was proof that Kraemer had received $5,000 from the Klaxon company. It was for the jury to determine whether this was paid for commissions or something else.

Witli reference to the third ground of appeal, we cannot see how this is available to the plaintiff. The record does not show that the ground of objection now made was stated to the trial court and that the trial court ruled thereon adversely to the appellant. The appellant at the conclusion of the ease moved for the direction of a verdict on the gronnd that there was no question of fact for the jury to determine. This motion was denied. No exception to the court’s- ruling was taken. This lias nothing to do with the point now insisted upon that a verdict should have been directed because the relationship between the parties was that of employer and employe.

The judgment is affirmed, with costs.


text:
    HARRY COLEMAN, PLAINTIFF-APPELLEE, v. ABE A. GOLDSTEIN AND BENJAMIN LIEB, TRADING AS UNITED DRUG STORE, DEFENDANTS-APPELLANTS.
    Submitted December 10, 1923
    Decided March 3, 1924.
    Lease of Store — 'Damages by Fire Through No Fault of Lessee»— Fire Clause in Contract Considered, and on Examination of Evidence. It Appeared That Introduction of Evidence to Show the Proportionate Reduction of Rent was Necessary and a New Trial Was Awarded.
    Oil appeal from the First District Court of the City of Newark.
    Before Justices Kaltsch and Katzenbacti.
    For the defendant-appellants, Harry Castelbaum.

    For Ihe plaintiff-appellee, (John & Cohn.

   Pee Cueiam.

This is a defendants’ appeal from a judgment of the First District Court of the City of Newark. On March 6th, 1922, the plaintiff below, Harry Coleman, leased to Abe A. Gold-stein and Benjamin Lieb, trading as the United Drug Store, a store at 467 Broad street, in the city of Newark. The term commenced on April 1st, 1922, and ivas for a period of five years. ' The rental for the first two years was $3,600, payable in equal monthly installments, in advance on the first day of each and every month during the term. The lease contained the following provision: “The lessee agrees that in case the premises hereby leased shall be partially damaged by fire at any time during said term, so as to render the same untenable, the lessees shall give immediate notice thereof to the lessor, who shall thereupon cause the same to be repaired with all reasonable dispatch and a proportionate reduction of rent shall be allowed the lessee for the time so occupied in repairing such part or parts of said premises as may be so damaged, provided the lessee be not in the use and occupancy of the letten premises; but in case the premises shall be so damaged by fire or otherwise that the lessor shall decide to rebuild, or in case of the total destruction of the building of which the demised premises, are a part, the term shall cease and the accrued rent shall be paid up to the time of the damage or such termination.”

On February 13th, 1923, a fire occurred in the premises, without the fault of the lessees. The lessor began the repair of the premises. On March 2d, 1923, the defendants paid the rent in full for the month of February and received a receipt which stated that the rent was paid “subject to fire adjustment as per lease.”

On March 14th, 1923, the repairs were completed. The lessor, by his agent, sent on that day a letter to the lessees that the premises occupied by them were fully repaired and that the rent, starting March 15th, 1923, was -due in full. The lessees contended that their rent was paid up to April 1st, 1923. The lessor instituted suit against the lessees in the First District Court of the city of Newark, and the court rendered a verdict in favor of the plaintiff for $150, filing the following conclusions: “In this case 1 find that a fire occurred on February 14th, or 15th, 1923, in the premises of the plaintiff, occupied by the defendant as tenant.

“That the whole of the rent for February was afterward paid, subject to an adjustment; that the plaintiff later notified the defendant that the rent would commence on March loth, 1923. This I construe to he the adjustment; therefore, judgment will be entered for $150 for the balance due for the March rent.”

The letter referred to read as follows:

“3/14/23

United Drug Co.,

Broad cor Orange Sts.

Newark, N. J.

Gentlemen:

- This is to notify you that the premises occupied by you, which has been recently damaged by fire, is fully repaired. Your rent, starting March loth, 1923, is due, in full.

Very truly yours,

Fklst & Frkst, Inc.,

Louis Nass.”

The appellants contend that the finding by the court as a fact that this letter was the adjustment intended by the parties is not supported by any evidence. To have held, as the court did, that this letter was an adjustment was in effect to hold that the defendants had accepted the same as an adjustment. In our opinion there was no evidence which justified a finding that the defendants had adjusted the rent on this basis. The defendants had paid, for fourteen clays for the month of February, when they did not have the full use of the premises. This payment was made, as the receipt states, upon the condition that it was to be subject to adjustment. The defendants also did not have the full use of the premises for the first half .of the month of March. The provisions of the lease do not, in onr opinion, warrant the 'contention of the appellants that there should be a total rebate of the rent for the period between February 14th, 1923, and March 15th, 1923. There was evidence that there was some use made of the premises by the defendants. The lease provided for a proportionate reduction. This, we think, meant that if the lessees had some use of the premises that there was to be some rental paid to the lessor. This view makes the introduction of evidence necessary, so as to determine what the proportionate reduction should be. This is a question of fact. The District Court was not justified, in our opinion, in holding that the notification given in the letter of March 14th, 1923, to which the defendants had not assented, was of itself an adjustment within the meaning of the lease.

This view leads to a reversal of the judgment and the issue of a venire de novo.


text:
    JOSEPH BURSTINER AND FANNIE BURSTINER, PROSECUTORS, v. THE CITY OF EAST ORANGE; LINCOLN E. ROWLEY, CLERK OF THE CITY OF EAST ORANGE; JAMES H. MUCHMORE AND J. WOODS McWILLIAMS, MEMBERS OF THE BOARD OF ASSESSMENTS OF THE CITY OF EAST ORANGE, AND HERMAN B. LEHLBACH, SECRETARY AND MEMBER OF THE BOARD OF ASSESSMENTS OF THE CITY OF EAST ORANGE, RESPONDENTS.
    Submitted December 3, 1923
    Decided March 14, 1924.
    Assessments of Benefits^ — Widening North Harrison Street, East Orange — Proceedings Taken Under Home Rule Act — Fifteen Reasons for Setting Aside Assessment Considered Under the Points Argued by Prosecutors.
    On certiorari.

    Before Justices Tren chard and Campbell.
    For the respondents, Waller G. Ellis.

   Per Curiam.

This writ of certiorari seeks the review of a certain assessment for special benefits against the lands of the prosecutors for the widening of North Harrison street at its junction with Main street, in the city of East Orange.

As a part of such improvement lands of the prosecutors John F. Cronen and Charles H. Thorne and wife were taken. AH the proceedings were taken and conducted under the Home Rule act. Pamph. L. 1917, ch. 152, p. 319, and amendment, Pamph. L. 1918, ch. 163, and amendment, Pamph. L. 1921, ch. 195, p. 511.

Fifteen reasons are assigned why the assessment should he set aside, but we will treat of them under the points as set forth and argued in the brief of. counsel for the prosecutors.

Point I.

The burden, is on the municipality to sustain the assessment by the proceedings returned with ilie writ.

With this we find no difficulty in agreeing, subject to some slight modification. As was said in Becker v. Garwood, 96 N. J. L. 327: “It is essential that it should affirmatively appear that the assessment is not in excess of the peculiar benefit, advantage or increase in value which the land received by reason of such improvement.5'"

But we do not find in the case before us the situation that existed calling for the foregoing pronouncement.

' The qualification we referred to has to do with the construction of the Home Rule act and is found in the following language in section 26 of article 31: “And in construing the provisions of this act all courts shall construe the same nfost favorably to municipalities, it being the intention hereof to give all municipalities, to which this act applies, the fullest and most complete powers possible over the internal affairs of such municipalities for self-government.55

Point II.

The municipality intended a general improvement and failed to give notice of, and afford a hearing on, the question of local improvement, hence it is barred from imposing a separate subsequent assessment for benefits.

We find this is answered, against the contention of the prosecutors, by the provisions of the Home Rule act, supra, and the second before us showing the giving of notice of intention to consider the undertaking of the improvement in question.

Section 1, article 20: “A local improvement is one, the cost of which, or any portion thereof, may be assessed apon lands in the vicinity thereof benefited thereby.55

“b. The widening, straightening, extending, altering or changing in any manner the location oí a street, road, alley or other public highway or portion thereof.”

% % * # % #

“Every municipality shall have power to undertake any or all the above-mentioned works as a general improvement, to be paid for by general taxation.”

Section 8, article 20 (Pamph. L. 1918, ch. 163, p. 484), amending section 9, article 20, chapter 152 (Pamph L. 1917), provides: “After the introduction of any ordinance authorizing any local improvement, public notice shall be given to all persons whose lands may be affected thereby, or who may be interested therein, of the intention of the governing body to consider the undertaking of such improvement, * *

- Such, therefore, is n “local improvement,” as defined and recognized by the Home Rule act, and the proceeding prescribed for the initiation thereof.

Clearly, such was the improvement in question.

Poijtt III.

The hoard of assessments in making its report for damages, dated June 8th, 1921, and the city council in confirming said report for damages, were concluded, and did conclude, the city of East Orange by said report for damages and the confirmation thereof, so that there could not be a subsequent separate assessment for alleged special benefits.

{a) Because by section 22, article 20, Home Rule act (Pamph. L. 1917, p. 378), it is clearly shown that municipality should have deducted the benefits from the damages and the award should have been for the difference.

(5) Because the true legal rule for awarding damages for the taking of part of land is the difference between the fair market value immediately before taking and the fair market value of the property left, immediately after the taking, keeping in mind, as to the value of the property after the taking, the circumstances surrounding the property, as in this case, the frontage on the new street.

The answer to reason “a55 under this point is that prosecutors5 counsel has misconstrued the meaning of section 22 referred to or, what would seem more probable, has overlooked the language of the amendment of that section (Pamph. L. 1921, p. 511), because the “damages55 in that section referred to is not the compensation for the taking of the lands necessary for the improvement, but damages incidental to the physical work of effecting the improvement, and is so expressed in such amendment: “* * * shall also at the same time [time of levying assessments for benefits upon the completion of the improvement] fix and determine the amount, if any, that any property is damaged incidentally to the making of the improvement, but exclusive of damages for lands taken. The amount of such incidental damages accruing to any parcel of land or real esi.ate shall be deducted from the amount of any benefits assessed therqon.55

The answer to reason “b55 under this point is that the principles enunciated in the cases cited in support thereof have no application to the Home Eule act.

In Mangles v. Freeholders, 55 N. J. L. 88, Mr. Justice Dixon, speaking for the Supreme Court, was passing upon awards for lands taken for a highway under a statute which provided that the commissioners were “to make a just and equitable estimate and appraisement of the compensation and damages each owner of the real estate and land to be taken will sustain by reason of such taking, considering in such appraisal the condition in which each owner’s parcel will be left after taking so much thereof as will be necessary for said opening, and the benefits that will result from such road to the owner or owners of such land and real estate55; and he held such a legislative plan for compensation for lands taken for public uses was not a violation of the constitutional mandate. That lands might have been taken under the foregoing statutory plan, or by making compensation for the lands taken and damages to remaining lands of the owner by one body and assessing the benefits arising from the improvemlent by another body is suggested, if not conceded, by the following language, at page 94: “No doubt if the law had directed that the power of eminent domain' should be employed -conditionally on payment for the land taken and damages, without deduction for benefits, and that special assessments should be assessed under the taxing power, more even-handed justice might have been done, but as it [the statute there under consideration] directs that the eminent domain be exercised in full constitutional force, on making compensation deemed just in view of benefit as well as detriment, it is for the court merely to see that the legislative mandate be obeyed.”

In Randolph v. Freeholders of Union, 63 N. J. L. 155, Mr. Justice Collins, passing upon a statute very similar to that in Mangles v. Freeholders, supra, came to the same conclusion.

In Clausen v. Ridgefield (Court of Errors and Appeals), 91 N. J. L. 238, the only point decided was, that where a municipality has proceeded to- take lands for a street opening under the general Eminent Domain act (Pamph. L. 1900, p. 79), which act is exclusive except “where the payment of the award for lands taken and damages is authorized by statute to be set off against, or made wholly or partially .in benefits to be assessed for the same improvement,” it cannot, subsequent to such taking, assess benefits for such improvement against remaining lands of the owner, pursuant to the terms of any other statute authorizing the levying of special assessments for benefits.

In Robinson v. Edgewater, 119 Atl. Rep. 7, Mr. Justice Minturn, speaking for the Court of Errors and Appeals, does not make for a situation favorable to the contention of the prosecutors, but, on the contrary, he holds that the words “and benefits,” in section 23 of the Home Eule act, as amended in 1921, and referring to the trial of an appeal by the Circuit Court from an award for lands taken, “is clearly without cognate relation to the context of the act itself and is inconsistent with the duties imposed by law upon the commissioners appointed to make an award m the first instance,” and the rule for admeasurement of compensation for the taking of lands, under the act, is laid down as “the value of the land taken and damages resulting therefrom to the remaining lands.”

The constitutional requirement for the payment of compensation is in the following language: “Private property shall not be taken for public use without just compensation, but land may be taken for public highways as heretofore, until the legislature shall direct compensation to be made.”

The provision as to taking of lands for public highways was historically explained in Mangles v. Freeholders, supra.

Unquestionably, it is for the legislature to fix the method and procedure for the exercise of the right of eminent domain and the method of admeasurement or fixing of the “just compensation” required and exacted by the constitution.

This it has done most exactly, comprehensively, and reasonably by the Home Eule act.

The plan and procedure is:

Section 23, article 20 (Pamph. L. 1921, ch. 195, p. 511): “When any improvement ordinance shall require the taking of lands or real estate * * * the ordinance * * * when introduced shall state the location and character of the improvement * * * the lairds and real estate to be taken therefor- * * * and such ordinance shall be accompanied by a map * * * showing in detail the location and dimensions of such land and proposed to be taken.

“After the passage of such ordinance said map, together with a copy of the ordinance * * * shall be filed with the officer or board charged with the assessment for benefits in the municipality.

“Such officer or board * * * shall make an award for said lands and real estate to be taken, to the owner ox owners thereof * * * and shall certify and report the same to the governing body * * *.”

The section also provides the owner with an appeal to the Circuit Court from any award so made.

Section 11, article 20 (Pamph. L. 1917, ch. 152), provides: “Alter the completion of any local improvement the board * * * in charge thereof shall immediately notify officer or board * * * charged with the duty of making assessment for benefits, and request that a proper assessment be made on lands or real estate that may have been benefited or increa,sod in value by such improvement. The board in charge of such improvement shall furnish to the assessing officer or hoard a statement showing in detail the cost of such improvement, which shall include the cost of any land * * * purchased or condemned * * * and also cost of advertising, financing and inspecting the same and engineering expenses.”

Section 21, article 20 (Pamph. L. 1917, ch. 152), provides for the procedure by the assessing board, and requires “he or they shall thereupon make a just and equitable assessment of the benefits conferred upon any land or real estate by reason of such improvement, as the case m'ay be, having duo regard to the rights and interests of all persons concerned as well as to the value of the lands and real estate benefited.” “.After the completion” in this section means after the physical completion of the improvement upon the ground. Section 22, article 20 (Pamph. L. 1921, ch,. 195), provides that the assessment board, in addition to making the assessments for benefits, “shall also at the same time fix and determine fho amount, if any, that any property is damaged incidentally to the making of the improvement, but exclusive of damages for land taken. The amount of such incidental damages accruing to any parcel of land * * * shall lie deducted from the amount of any benefits assessed thereon.” This section, then, in connection with section 42, provides an appeal from any assessment or award of incidental damages to the Court of Common Pleas.

The undoubted legislative design was to separate and keep separate the proceedings in eminent domain and the assessment for benefits and incidental damages.

The record before us shows that this was done and the mandate of the legislative complied with.

Point IY.

To assess for special benefits by a subsequent proceeding when the board of assessments in filing its report of award for damages, and the city council in affirming said award for damages considered the value of the land remaining after the taking for improvement as land having a frontage on North Harrison street, makes the ¡oroseeutors pajr twice for the same benefit and is unconstitutional.

We are unable to find that this contention is borne out by the testimony or any part of the record before us.

Point Y.

The board of assessments in making the assessment improperly considered the part remaining from the Burstiner piece, after the taking and the part remaining from the Cronen piece, after the taking, as one entire piece, and did not consider that the entire piece was made by act of the prosecutors and not by the improvement, and did not allow for general increase in value of the property in the neighborhood.

(a) Because improvement ordinance called simply for a widened street and not for a street in an improve condition, hence it must be concluded the improvement is completed when the lands are taken.

(i) Because a great part of the value of both pieces— treated as one — was brought about, not by the improvement,. but by act of prosecutors in joining said pieces by purchase of Cronen piece at $6,000 on February 1st, 1922.

Our answer to reason "a” is that the Home Eule act fixes the time for making of assessment for benefits as "after the completion,” and, as we have already said, that means, in this case, after the actual, physical performance of the work.

This by the record before us appears to have been February 26 th, 1922.

Our answer to reason “b” is as to erason “a,” and these parcels had been united in ownership on February 1st, 1922, and were one parcel in ownership at the date from, which assessments were made, February 26th, 1922, and there was no error in the board of assessments in so treating them.

Point VI.

Other lands in the immediate neighborhood of the improvement were specially benefited by said improvement and wore not assessed for such benefits; if said property benefited as aforesaid were properly assessed, the assessment against prosecutors would be considerably less.

The answer to this is three-fold—

First — There is nothing in the record satisfying us that prosecutors’ land were assessed beyond the benefit conferred.

Second — Of a total cost exceeding $59,000, over $38,000* fell upon the city of East Orange to be paid by general taxation.

Third — These prosecutors have filed an appeal as provided by the statute, and this appeal is still pending, and they must pursue that method against an alleged unfair assessment before resorting to a writ of certiorari. Graham, v. Ocean City, 119 Atl. Rep. 772.

Point VII.

Said report of assessment does not show that the board made a just and equitable* assessment “of the benefits conferred upon any lands or real estate by reason of such improvement, as the case may be, having due regard to the rights and interest of all persons concerned as well as to the value of the land and real estate benefited,” as required by section 21, article 20, chapter 152 of laws of 1917.

The particular complaint seems to* be that the report of the board of assessment is not languaged in the exact words of the statute.

We do not find that the language of the report is in serious conflict with the letter of the act, and certainly is not with meaning and spirit of it. Furthermore, the evidence does not satisfy us that the assessment complained of was not made in accordance with proper principles as laid down by the act.

Point VIII.

The proceedings do not show that the city council requested the board of assessments that a proper assessment be made, and do not show that the city council furnished the board of assessments with a statement showing in detail the cost of said improvement as required by section 14, aiflicle 20, chapter 152 (Pamph. L. 1917).

This reason is without substance. The record shows ample compliance with these requirements of the statute.

Point IX.

The map accompanying the report of the assessment for benefits did not designate by letter or number each block and parcel of land allegedly peculiarly benefited by the improvement, and said map did not show the lands and real estate taken, damaged or benefited by said improvement and for which damages and benefits had been assessed as required by section 27, article 20, chapter 152 (Pamph. L. 1917).

This reason is also without material substance.

The maps indicated the parcels -either by letters or by the names of the owners. This provision of the statute is for the purpose of identification of parcels only, and so long as properly marked or identified, any variance for the strict statutory direction will not vitiate an otherwise valid assessment.'

The assessment under review will be affirmed, with costs.


author: Pee Cueiaim.

text:
    LEWIS WEISMAN, PLAINTIFF-RESPONDENT, v. CHARLES A. GILLIGAN, DEFENDANT-APPELLANT.
    Submitted December 8, 1923
    Decided March 3, 1924.
    Nonsuit — District Court — Evidence of Plaintiff Tended to Support Case But Did Not Account to Proof — Tried Without Jury — Parties Entitled as of Right, Not of Discretion, to a Judgment Which the Finding the Equivalent of a Verdibi, Entitles Them.
    On appeal from the District Court of East Orange.
    Before Dísticos Kalisch and Katzjbnbach..
    For the defendant-appellant, Louis J Beers.

    For the plaintiff-respondent, Herman B. J. Weclcstein.

   Pee Cueiaim.

This is an appeal from a judgment of nonsuit entered in the District Court of East Orange by direction of the court. The case was tried by the court without a jury. The defendant below is the appellant. The agreed state of the case contains the following statement: “The action was in tort to recover damages to the plaintiff’s automobile in an automobile accident. Witnesses for the plaintiff were produced, sworn and testified. Plaintiff rested. No motion for a non-suit was made. Defendant produced witnesses who were sworn and testified. Defendant rested and closed his case. The plaintiff offered no rebuttal. No motion for a nonsuit or direction of a verdict was made by either side.” The case was submitted to the court for decision and the court made the following remarks: “Although the plaintiff lias shown some evidence of the negligence, in that the defendant was traveling at a high rate of speed, yet the testimony of the witnesses for the plaintiff and the defendant conflict, and the plaintiff has not sustained the burden of proof, neither has the defendant proved contributory negligence. I will enter a judgment of nonsuit.” To this ruling the defendant excepted.

The appellant contends that the court erred in granting a nonsuit and that he was entitled to a judgment. Section 167 of the District Court act provides that “every District Court shall have power to nonsuit the plaintiff in every case in which said proofs shall not entitle either plaintiff or defendant to the judgment of said court.” We construe the words of the court- in the agreed state of the case submitted to be a statement that the proof was not sufficiently satisfactory to the court to- entitle either plaintiff or defendant to a judgment, and that, he would therefore grant a nonsuit. We think it was within .the power of the court under this section of the statute to grant a nonsuit. The appellant relies upon the case of Settel v. Public Service Railway Co., 94 N. J. L. 137. The Court of Errors and Appeals in that case said: “The parties'are entitled as of right, not of discretion, to a judgment which the finding, the equivalent of a verdict, entitled them.” The trial judge in the District Court had said that he was not satisfied, by a fair preponderance of the evidence, of the negligence of the_ defendant, and then added, “in view of .that fact I am going to enter a nonsuit in this case' on the ground that the plaintiff was guilty of contributory negligence.” The Court of Errors and Appeals said this amounted to- a finding of fact that the plaintiff was guilty of contributory negligence.

In the present case the court said that the plaintiff had shown some evidence of negligence but had not sustained the burden of proof; that the evidence was conflicting; that the defendant had not proved the contributory negligence, and that he would therefore enter a judgment of nonsuit. This statement contained no finding of fact which differentiates it from the case of Settel v. Public Service Railway Co.

The judgment is affirmed.


text:
    WHITEHEAD BROTHERS COMPANY, A CORPORATION, PROSECUTOR, v. THE CITY OF SOUTH AMBOY, RESPONDENT.
    Submitted December 3, 1923
    Decided March 6, 1924.
    Assessment of Benefits — Improvement of Highways — Jurisdiction to Pass Ordinance — Procedure in Making Assessment.
    Oil certiorari, &c.
    Before Justices Trenchard and Campbell.
    Eor the prosecutor, George L. Burton.

    For the respondent, Francis B. Goan and John A. Goan.

   Pee Curiam.

This writ brings up for review an assessment on lands of the prosecutor for curbing and paving Bordentown avenue, in the city of South Amboy, said to have been done under an ordinance of the city approved May 25th, 1920.

The prosecutor relies on two reasons for setting aside the assessment, namely, want of “jurisdiction of the city of South Amboy to pass the ordinance” in question, and the alleged illegality of the assessment proceedings.

The argument of the prosecutor is largely predicated on the assumption that the street in South Amboy, known as Bordentown avenue, is a country road. This may or may not be a fact at other places or parts of the avenue, hut at the point on which the property of the prosecutor fronts, and for which the assessment is made, it is not now and never was a country road. Up to the time, almost, of the actual work of the laying of the pavement, the land there and on which the prosecutor’s land fronts was the property of the prosecutor. The prosecutor deeded the land at this point to the city for road purposes by deed dated July 27th, 1920, the deed setting forth that "it is the intent and purpose of this deed to convey to the city of South Amboy sufficient property to make Bjordentown avenue seventy-five feet wide.” That being the case, the prosecutor is estopped now to' say that this property is not a city street.

Moreover, chapter 99 of the laws of 1919 (Pamph. L., p. 246), gives to municipalities the right to improve-any road, streets, &c., with suitable curbing, gutters and sidewalk, provided the approval of the county is 'obtained where it is a county road. The approval of the board of chosen freeholders of the county is shown by the approval of the plans for the work at the joint meeting of the board of freeholders and the common council of June llih, 1920, and further by resolution passed by the freeholders at their meeting in July, 1920. There would therefore seem to be no question as to the jurisdiction of the city to pass the ordinance in question.

We perceive no illegality in the assessment. Notice of the .improvement and of the assessment seems to have been given to the prosecutor by publication and by mailing to its agent at South Amboy. We think that the prosecutor, in its attack upon the ordinance, has not bom ihe burden cast upon it to show that due notice of the ordinance has not been given. Donnelly v. Longport, 88 N. J. L. 68. The point that the ordinance was vague, indefinite and uncertain cannot avail the prosecutor. Where, as here, a property owner, without objection, has permitted a city to expend money for a public improvement and assess benefits for the improvement, he has no standing, by reason of his laches, to object to1 the assessment made on the ground of the invalidity of the ordinance. Graham v. Ocean City, 119 Atl. Rep. 772. The attempt of the prosecutor to avoid the effect of that rule by the claim that it was led to believe that its property was not to be assessed (Groel v. Newark, 78 N. J. L. 142) has no basis of fact to support the claim. On the contrary, the evidence is quite persuasive, not only that the prosecutor was well aware of the progress of the improvement at all times, but expected that its property would be assessed therefor.

The contention that the commissioners of assessment were ‘not appointed by resolution likewise seems to have no basis in fact.

The assessment will be affirmed, with costs.


author: Per Curiaai.

text:
    JACOB GOLD, APPELLANT, v. DAVID SCHNEIDER ET AL., APPELLEES.
    Submitted November term, 1923
    Decided March 8, 1924.
    Sale of Lands — Contract—Changed at Request of One of the Parties Orally — Such Party Cannot be Heard to Plead the Statute to Protect Him From the Contract.
    On appeal from the Hudson County Circuit Court.
    Before Guatoere, Ciitfj? Justice, and Justices Minturn and Black.
    For the appellant, Ileyman & Ileyman.

    For the appellees, Gross & Gross.

   Per Curiaai.

This action was brought for the recovery of $1,000, paid by the plaintiff to the defendants, under a written contract on account of the purchase price of certain lands therein described. The case was tried before a jury and- resulted in a verdict for the defendants, and the plaintiff appeals.

The written contract provided that this property should be conveyed, subject to certain mortgages to be held by banks, the particular banks not being specifíéd. When the deed was tendered, the mortgages as - provided by the contract had been procured, but were not held by banks, and therefore the plaintiff refused to accept the deed. The defendants met that situation by proof that the plaintiff shortly after the contract was signed came to them and asked to have the contract changed so that the mortgages should be made out to individuals instead of to banks; and that the defendants thereupon, although they had arranged for the bank mortgages, made the change in accordance with the plaintiff’s request. This agreement was oral, and, manifestly, could not operate to change the written contract. But the defendants are not litigating upon that theory. The question presented is whether the plaintiff, after persuading the defendants to agree to the change in the written contract is estopped to assert that he is entitled t'o have his money back, because of the failure of the defendants to comply with the provisions of the written agreement, which he caused to be altered. The only ground of appeal is based upon the theory that the plaintiff can rely upon the written contract and enforce its provisions, when he was the active instrumentality in bringing about its alteration to suit his own convenience.

Manifestly, the trial court was correct in invoking the doctrine of estoppel against him, for, as was declared in Thorne v. Mosher, 20 N. J. Eq. 257, a party is not allowed to take advantage of an act done, or the omission to do it, where such act or omission was designedly caused by himself.

The judgment will be affirmed.


text:
    JOHN B. KIERAN, PLAINTIFF-RESPONDENT, v. GERALD EATON AND ANNIE EATON, DEFENDANTS-APPELLANTS.
    Submitted December 10, 1923
    Decided March 3, 1924.
    Sale of Land — Time of Closing Extended From Time to Time Until One Side Notified the Other That It Could Not be Longer Prolonged — No Reply to Such Notification — Their Tender and Refusal.
    On appeal from the First District Court of Newark.

      Before Justices Kalisch and Katzekbacii.
    Eor the defendants-appellants, Joseph M. Degnan.

    Eor the plaintiff-respondent, Milton M. Unger.

   Pee Cueiam.

This is an appeal by the defendants below from a judgment of the First District Court of the City of Newark. On October 4th, 1922, John B. Kieran entered into an agreement in writing with Gerald, Eaton and Annie Eaton for the purchase of a property in West Orange, N. J. The purchase price was $4,300. Fifty dollars was paid-in cash at the time of signing the agreement and the balance of $4,250 -was to be paid in cash at the time of closing title, which was to be sixty days from the date of the agreement.

On December 3d, 1922, Mr. Kieran, the purchaser, was not ready to close the title. On December 11th, 1922, Mr. Eaton wrote to Mr. Kieran asking him to let the writer know by return mail when he was going to close. He also stated in the letter that circumstances in connection with the sale were becoming annoying; that Mr. Kieran must not expect the writer to let the thing go indefinitely, and that there was a legal limit to the time. Mr. Kieran made no reply to this letter. He did not communicate with the proposed vendors or see them until some time between Christmas and New Years, when ho called upon them and learned from them that they had concluded that they would not give him title to the property. Mr. Kieran called at the Eaton home on January 9th and Jauary 13th, following. Mr. Eaton wras not in on either occasion. He saw Mrs. Eaton. On the occasion of the last visit he took with him $4,250 in federal reserve notes, which he told Mrs. Eaton he had, and asked her if she had the deed for the property ready. Mrs. Eaton replied that he would have to see her husband. About thirty days afterwards Mr. Kieran requested Mr. Eaton for .■a deed to the property. On cross-examination Mr. Kieran said Mr. Eaton had never made any agreement to extend the time for performance of the agreement. Mr. Kieran instituted suit to recover the $50 deposit, a bill of $103 received from his lawyer for searches and examining title and $15 for interest on a sum he was to borrow and secure by a mortgage upon the property. During the course of the trial a letter written by Mr. Kieran to a Mr. Ralph Giordano was admitted in evidence over objection. Mr. Eaton had sent, on November 26th, 1922, a letter to Mr. Kieran, stating he had mailed the deed for the property to Mr. Giordano. Mr. Giordano testified in the case. ' He said; he did not know whether he represented Mr. and Mrs. Eaton or not; that he did represent a party holding a mortgage upon the property and he supposed that was the reason the deed was sent to him.

Upon this evidence the court rendered the following decision : “I find that the defendants waived the performance of the contract in question, within the time limited by the contract, and that thereafter the defendant avoided plaintiff and had no desire to perform the contract on their part.

“Judgment for the plaintiff for $168.”

Whether or not there was a waiver of the time fixed for closing the title was a question of fact. If there be any evidence to support this finding it will not be disturbed. Williams v. M. T. C. Contracting Co., 74 N. J. L. 105; Resky v. Meyer, 119 Atl. Rep. 97. Our examination of the testimony, however, fails to reveal any evidence which will support this finding. Mr. Kieran testified that Mr. Eaton never made any agreement to extend the time. Mr. Kieran, notwithstanding the receipt of Mr. Eaton’s letter of December 11th, stating there was a legal limit to his time, and that the writer could not be expected to let the matter go on indefinitely, did not attempt to see Mr. and Mrs. Eaton until the week between Christinas and New Years. They had then concluded not to sell their property. Mr. Kieran was not ready at the time fixed for performance. He did not put the defendants below in default at the time fixed by the contract for closing title. Where a time is stipulated in a contract for its performance time is of its essence, unless a contrary intention appears from the face of the contract, or unless there is evidence of the waiver of the time fixed for its performance by the parties seeking rescission of the contract. Pietsch v. Stirling Home Builders, Inc., 117 Id. 475. In the absence of evidence of a waiver of the time fixed for closing title by the Eatons we cannot see how Mr. Kieran, who was the one in default, can recover the $50 paid as a deposit or the expenses he incurred.

We are also of the opinion that there is no evidence to support the finding that Mr. and Mrs. Eaton avoided the plaintiff. The fact that Mr. Eaton was not at home on either the evenings of January 9th and 13th, when Mr. Kieran called, is no evidence that he was avoiding Mr. Kieran in the absence of an appointment to meet Mr. Kieran.

The appellants make the further point that the letter written by Mr. Kieran to Mr. Giordano, dated December 15th, 1932, should not have been admitted in evidence. It could only be admissible upon the theory that Mr. Giordano represented Mr. and Mrs. Eaton in the transaction and that the letter confained a notice of some matter relevant to the transaction. As Mr. Giordano testified that he did not know whether or not he represented the Eatons, no proper foundation for the admission of the letter had been laid. The letter was also a self-serving declaration by Mr. Kieran and contained hearsay matter. It should not have been admitted in evidence.

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


text:
    HUGH O’BRIEN v. THE HOME INSURANCE COMPANY.
    Argued November term, 1923
    Decided March 8, 1924.
    Arbitration and Award — Whether Arbitrators Were Properly Chosen, and Acted, Matter for Jury.
    On rale to- show cause, Essex Circuit.
    Before Gummere,, Chief Justice,, and Justices Minturn and Black.
    For the rule, Hudson <& Joelson.

      Contra,, William A. Lord.

   Per Curiam.

The suit was brought to recover upon a fire insurance policy upon a jitney bus. The defendant pleaded an appraisal agreement, an award and tender of payment under the award. The plaintiff denied that such appraisal was made in accordance with the requirements of the policy, which was that each party should elect an appraiser, and that the two should appoint an umpire, and contended that no umpire was appointed, and that the man who assumed to act as such was not authorized to do so. This is a second trial of the case, and we ought therefore to hesitate to set-aside a verdict rendered in favor of the plaintiff, either as against the weight of the evidence or as excessive. This verdict' was approximately the same as the first, and two such-concurring verdicts should not be set aside as contrary to the weight of the testimony;

It is also urged that there should have been a r jhsuit or a verdict directed upon the ground that an arbitration had been agreed upon, and that the award settled the rights of the parties. Whether such an arbitration had in fact been agreed upon, whether the party who 'assumed to act as umpire had authority to so officiate, was a question of fact which should not have been taken from the jury, and their determination in two successive instances upon that question should not be disturbed. ¡

We think the rule should be discharged.


author: Pee Cubiam.

text:
    DANIEL KIDDON v. RUDOLPH STEIN.
    Argued November term, 1923
    Decided March 8, 1924.
    Negligence — Motor Vehicle Accident — Defendant Having Waited for a Bus to Pass Was Struck By Defendant’s Car — Contributory Negligence for the Jury to Determine.
    On rule to show cause, Passaic Circuit.
    Before G-ummebe, Chief Justice, and Justices Mintuen and Black.
    Eor the rule, Heine, Bradner <& Laird.

      Contra, Herman Christ.

   Pee Cubiam.

The plaintiff was on the easterly side of Dayton avenue, in the city of Passaic, and when be attempted to cross the street a jitney bus was traveling north on the same side of the street, and he waited for it to pass. After it had passed he stepped out into the street, as he came out from behind the bus he was struck by the car of the defendant. Eor this he brought suit and obtained a verdict for $15,000.

The first contention is that the plaintiff was guilty of contributory negligence, and that the motions for a nonsuit and the direction of a verdict should have been granted. This inquiry presented a question of fact. There was evidence that the defendant was traveling at a rapid rate of speed; some of the witnesses testify that he was going forty-five miles am. hour, and that he was on the wrong side of the street, being over toward the east side, the side from which the plaintiff was attempting to cross. The plaintiff waited until a jitney bus going north had passed him, and was struck while he was still east of the middle line of the street. He had a legal right to assume that he would not be in danger from a car traveling south until he had approached .the centre line of the highway, and in any event the question, was for a jury whether or not he was negligent in what he did under the circumstances. Napodensky v. West Jersey Railroad, 85 N. J. L. 336.

The only other insistence is that the verdict for $15,000 is excessive. While the plaintiff Avas seriously injured, and is at present apparently suffering from traumatic neurasthenia, nevertheless, we are inclined to think that $15,000 is excessive, and that the verdict should be reduced to $10,000. If the plaintiff will accept this abount in lieu of the amount of the verdict, this rule Avill be discharged, otherwise it will be made absolute as to the amount of damages only, for Avhich purpose a venire de nova may issue.


author: Peb CtfBiAM.

text:
    WILLIAM FARINELLA, APPELLEE, v. NICHOLAS DI CHAIRA AND COLOGERA ZINNO, APPELLANTS.
    Argued November term, 1923
    Decided March 8, 1924.
    Contracts — Subcontractor for Erection of Buildings Completes Work After Contractor Defaults — Allegation That the Owner Authorized the Subcontractor to Continue Disputed — Jury Verdict For Plaintiff Sustained.
    On appeal from the Essex Circuit.
    Before Gummere, Chief Justice, and Justices Minturn and Black.

      For the appellants, Gaetano M. Belfatto.

    For the appellee Vanderbilt & Eedden.

   Peb CtfBiAM.

The defendant Cologera Zinno made a contract with defendant Di Chaira for the erection of a building in East Orange. As general'contractor the latter subcontracted the plumbing work to the plaintiff at the contract price of $2,300. Before the building was completed defendant Di Chaira defaulted on his contract, and the plaintiff thereupon stopped work on the plumbing. His case against the defendant Zinno was based upon the allegation that'after he had stopped work, Zinno came to him and told him that if he would complete the plumbing, he (Zinno) would pay him for doing so, the balance of the price agreed upon between plaintiff and Di Chaira, namely, $1,700, and that on the faith of that promise he completed the work. The defense was that no such promise was made, and that situation obviously presented a question of fact. The trial court left it to the jury to determine whether there was such an independent and original promise, or whether the promise was to pa_y Di Chaira’s debt in case the latter failed to do so. The jury upon that issue found for the plaintiff. The only matter argued is the effect of the statute of frauds upon this contract, and whether as a matter of law the statute is applicable, the contention being that in effect it was a promise to pay the debt of another. But, manifestly, the effect of the verdict is that the work was performed upon the strength of an independent and original promise, upon which the defendant Zinno, under the well-settled rule of law, is liable. Hetfield v. Dow, 27 N. J. L. 440.

The result is that the judgment will be affirmed.


text:
    THE MAYOR AND ALDERMEN OF JERSEY CITY, PROSECUTOR, v. SIMON BLUM, COLLECTOR OF THE TOWN OF NUTLEY ET AL., RESPONDENTS.
    Submitted December 6, 1923
    Decided March 19, 1924.
    Taxes — Municipal Property In Another. Taxing District — Not Liable to Taxation.
    On certiorari, &c.

    Before Justices Teenchard and Campbell.
    For the prosecutor, Thomas J. Brogan.

    For the township of Hanover, Nathaniel G. Toms.

    For the town of Boonton and township of Montville, ¡Claude Garrison.

    For the township of Lyndhurst, Luther Shafer.

    For the town of Nutley, j. Harry Hull.

    For the township of Cedar Grove and township of Caldwell, J. Henry Harrison.

    For the township of Little Falls, Alexander M. McLeod.

    For the city of Clifton, William B. Gourley (of counsel with respondents, Spaulding ■Frazer).
   Pee Curiam.

The prosecutor, the mayor and aldermen of Jersey City '(of the county of Hudson), has a reservoir and appurtenances at the town of Boonton, New Jersey, for the impo unding of its potable water supply, and connected with such, reservoir are various conduits and pipes carrying the water from Boonton through the townships of Hanover and Montville, in Morris county; the townships of Cedar Grove and Caldwell and the town of Nutley, in Essex county; the township of Lyndhurst, in-Bergen county; the township of Little Balls and city of Clifton, in Passaic county, as well as other municipalities in Hudson count}', to the inhabitants of the city of Jersey City.

The various municipalities mentioned outside of Hudson county have assessed for the year 1922 within their respectice taxing districts the pipe, conduit, dam, &c., and this writ of certiorari> to which the several respondent municipalities have been made parties, challenges the validity of such-assessments.

The question thus presented is this: Is the property of one-taxing district, located in another taxing district and used for public purposes, exempt from taxation in the district where located ?

That same question was presented and decided in the affirmative in City of Newark v. Borough of West Paterson et al., at the present term of this court. That case was quite like this in its essential features, and is controlling here.

The several assessments of taxes brought up for review will be set aside, with costs.