text:
    JOSEPH TRELA, PROSECUTOR, v. CHARLES NOVAK, RESPONDENT.
    Submitted October 6, 1926
    Decided October 14, 1926.
    Landlord and Tenant—Notice to Terminate Tenancy—Two Defects Alleged—First, That the Legal Three Months’ Notice was Not Given; Second, That Notice was Not Properly Served—Notice was Served on the Same Day of the Third Month Before the Day of the Month Upon Which the Tenancy was to be Terminated—Held, Legal Service—Notice Served on an Employe in Charge of Only a Part of the Property, Upon a Barkeeper—Held, Not Adequate—Service Must be Upon Someone in Charge of the Whole Premises.
    On certiorari.

    Before Justices Kalisch and Lloyd.
    Eor the prosecutor, William B. Wilson.

    Eor the respondent, Stamler, Stamler & Koestler.

   Per Curiam.

Two questions are involved in' this case. The proceeding here is on a certiorari to test the validity of a judgment of dispossession in the District Court of Elizabeth. The questions involved are—

1. Whether the notice to vacate was served in time.

2. Whether it was properly served.

The tenancy was one conceded by both sides to require a three months’ notice. The lease was a monthly one antedating April 1st, 1926, and continuing thereafter from month to month. A notice was served by the landlord on the 1st day of June, 1926, requiring the delivery of the premises to the landlord on the 1st day of September following. It is contended that this was not adequate, in that it did not give the tenant the full three months’ notice required by law. It was further contended on the second point that the notice was defectively served.

In addition to the record of the case sent up on the return to the writ there had been filed by the parties a stipulation of facts (whether by leave of the court does not appear). A number of grounds have been assigned for setting aside the judgment, but all were abandoned upon the oral argument of the cause excepting the two above noted.

The first contention we think is not sound. In Baker v. Kenny, 69 N. J. L. 180, it was held that on a monthly tenancy a notice to vacate on a recurring period of holding was sufficient if served upon the corresponding date in the preceding month. The fact that the notice is three months in the present case cannot change the situation. We think in principle, the decision in that case is controlling here, and that hence a notice served on the 1st of June to vacate on the 1st. of September following was a compliance with the three months’ notice required by statute.

As to the second proposition we reach the contrary result. In the case of Antolik v. Saunders, 3 N. J. Mis. R. 352, it is stated by this court that the only question presented on certiorari to review a judgment of eviction on summary proceedings are—(1) whether the affiravit stated the necessary jurisdictional facts, and (2) whether there was any evidence from which such jurisdictional facts might he found. It is thus apparent that it was incumbent upon the landlord in this case to establish—(1) the facts by affidavit necessary to give the court jurisdiction, and (2) to further produce before the court evidence of such essential facts.

It will be noted that the statement in the affidavit is that the notice was served upon one Novak (no relation of the landlord), a person over the age of fourteen years and being the person in charge of the store in said demised premises, and in the stipulation that it was served upon Novak, a person over the age of fourteen years and being the bartender and employe of defendant and being in charge of said saloon in said premises. The property was a three-story brick building at 39 Marshall street, Elizabeth. It is perhaps not important that the affidavit and stipulation differ in their description of the part of the premises of which the man Novak was in charge; in one case described as a store and in the other case as a saloon, but it is vitally important that in both cases it should appear that the person served is in possession of the premises. By neither the affidavit nor the stipulation does it appear that Novak had any relation to the tenant except that as a bartender in charge of his saloon or store, as the case may he, and that he had charge of that part of the premises. He was not there in possession of the whole property, nor was he there in any capacity other than that of bartender, or employe, attending to the duties assigned him' and in charge of that particular part of the building.

The conclusion we reach is that the notice was defectively served and that the judgment in the District Court must be set aside.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THE STATE, EX REL. THE NEW JERSEY LAND COMPANY, RELATOR, v. CITY OF EAST ORANGE ET AL., RESPONDENTS.
    Decided October 23, 1926.
    Zoning—Garage and Stores in Residential Section—The Restriction on the Erection of Garages Not Unreasonable—Rule Discharged.
    On rule for mandamus.

    Before Justices Parker, Black and Campbell.
    Eor the relator, Thomas Brmetto.

    Eor the respondents, Walter G. Bilis.

   Per Curiam.

This is a rule to show cause why a mandamus should not issue, compelling the granting to relator of a building permit • for the erection of a one-story brick building on North Parkway and North Mnnn avenue, East Orange, such building to be used as a public garage and to also contain four commercial stores facing on both avenues.

The property of relator is known as 227 North Parkway, and runs through to North Munn avenue, where it is known as 204 North Munn avenue.

Directly north of relator’s property, on North Parkway, are a number of two-family dwellings. The same condition exists on North Munn avenue. On the southerly side of relator’s property, on North Parkway, is an armory building occupied by the State of New Jersey and used by it for drilling purposes. Adjoining relator’s property is a group of individual garages, occupied mostly by privately owned automobiles. Directly in front of relator’s property on Munn avenue is a large apartment-house in the course of construction, and directly opposite, on O ratón Parkway (formerly Thompson street), is a public park or plaza, one hundred feet in width and running parallel with Thompson street.

The permit was refused upon the ground that the use to which the proposed structure was intended to be put would be in violation of the zoning ordinance of the city of East Orange. !

This building, if erected, will in part be used as a public garage, and we are of the opinion that the provisions of the . ordinance restricting the locality in question against a building to be used for such purposes are not unreasonable. Hench v. East Orange, 2 N. J. Mis. R. 510; Portnoff v. Bigelow, 4 N. J. Mis. R. 539; Long v. Scott, Id. 767.

The rule to show cause will be therefore discharged, with costs.


text:
    NEWTON A. K. BUGBEE, COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, PROSECUTOR, v. FREDERICK C. TATUM, INDIVIDUALLY AND AS EXECUTOR OF THE LAST WILL AND TESTAMENT OF CHARLES A. TATUM, DECEASED, RESPONDENTS.
    Decided October 21, 1926.
    Taxes and Assessments—Inheritance Tax—Error in Calculating , Amount Estate Upon Which Tax Must be Paid—Error Corrected and Additional Tax Assessed—Comptroller Claims Interest on Additional Amount Assessed From the Expiration of Statutory Period—Chancellor’s Finding That Such Interest was Not Recoverable, Sustained.
    On certiorari.

    Before Justices Parker, Black afid Campbell.
    Por the prosecutor, Edwa/i'd L. Katzenbach, attorney-gen- ’ eral.
    Por the respondents, William E. Foster.

   Per Curiam.

This writ brings before us for review a decree of the Prerogative Court, requiring the payment by respondents into the treasury of the State of New Jersey,, $1,865.62, being ' the principal amount of an additional assessment for transfer inheritance taxes, without interest, penalty or costs.

Charles A. Tatum died November 13th, 1920. His will was probated November 24th, 1920. On September 15th, 1921, the comptroller fixed the amount of the transfer inheritance tax at $36,833.59, and this was paid October 4th, 1921. Thereafter, an additional return was made, and on October 21st, 1921, an additional sum of $1,030.09 was paid. On August 13th, 1924, the comptroller discovered that an error had been made by someone in his office, the correction of which resulted in a net increase of the personal estate to the extent of $54,408, and on that date made an additional assessment for $1,865.62 and! also a compromise tax of $296.28.

On the $1,865.62 the comptroller claims interest from November 13th, 1921, being one year after testator’s death.

The Yice Ordinary held that such interest was not recoverable under Re Vail, 93 N. J. Eq. 401, and we concur in such view.

The writ of certiorari is therefore dismissed, and the decree of the Prerogative Court is affirmed.


text:
    CONRAD F. GOERINGER, PROSECUTOR, v. ANNIE E. YOUNG, ADMINISTRATRIX, ETC., OF ISAAC W. YOUNG ET AL., RESPONDENTS.
    Decided October 21, 1926.
    Attachment—Motion to Quash Writ—Circuit Court’s Refusal— Affidavit Upon Which Writ Issued Showed That the Defendant was a Foreign Corporation, taut Did Not Show That a Summons Could Not be Served in This State—Affidavit Held Defective and Order of Circuit Court Refusing to Quash Set Aside.
    On certiorari.

    Before Justices Parker, Black and Campbell.
    For the prosecutor, King & Vogt.

    For the respondents, W. Reading Oebhardt.

   Per Curiam.

This writ brings up for review the proceedings upon the issuance of an attachment in an action of tort, by order of a Supreme Court commissioner, under section 84 of the Practice act (3 Comp. Stat., 4076), together with the proceedings had before the judge of the Circuit Court upon a motion to quash, and the rule made by that court refusing to quash.

There is only one matter urged that requires our consideration, and that is that the basic affidavit used and relied upon by the Supreme Court commissioner in making his Order directing the issuing of the writ does not contain the necessary facts to warrant such order.

That portion of the affidavit relating to the non-residence of the defendants, and inability to serve them with summons, is as follows:

“That the said Conrad E. Goeringer is a resident of the city of Wilkes-Barre/ in the State of Pennsylvania, and is doing business under the trade name of the C. E. Goeringer Construction Company, and that the C. E. Goeringer Construction Company is not a corporation organized under the laws of the State of New Jersey, but purports and assumes to be a corporation of the State of Pennsylvania, with its principal office in the city of Wilkes-Barre, in the State of Pennsylvania, and that neither of the said defendants is a resident of the State of New Jersey at this time, within the meaning of the law, and that a summons cannot be served on either of said defendants in the State of New Jersey."

In Hisor v. Vandiver, 83 N. J. L. 433, Mr. Justice Kalisch said: “Now, since a summons may be served personally upon, as well as at the place of abode of, a defendant, the legislative declaration that an attachment may issue where it appears that the defendant is a non-resident, and summons cannot be served, manifestly, requires that the affidavit upon which the process of attachment is applied for shall contain legal evidence of facts, showing that the defendant is not only a nonresident of this state, but also that a summons cannot be served."

Measured by this rule the affidavit falls short of the legal evidence of facts as to inability to serve the defendants with a summons, and is therefore fatally defective, and the order for the issuance of the attachment was improvidently made.

The order of the Circuit Court, refusing to quash the writ, is therefore set aside, as is also the order of the Supreme Court commissioner directing the issuance of the writ, and the writ of attachment is quashed.


text:
    JOHN A. PFARR, RELATOR, v. GEORGE A. SCHMIDT, BUILDING INSPECTOR OF THE TOWN OF IRVINGTON, RESPONDENT.
    Decided October 21, 1926.
    Zoning—Stores in Restricted Section—Case Within Ignaciunas v. Nutley—Urged That the Present Proceeding is Premature Because No Appeal Had Been Taken to Board of Adjustment—Nothing Before Court to Show That There is a Board of Adjustment—Peremptory Writ Awarded.
    On rule for mandamus.

    Before Justices Parker, Black and Campbell.
    Eor the relator, John J. McClosTcey.

    Por the respondent, Charles H. Stewart.

   Per Curiam.

This is a rule to show cause why a mandamus should not issue requiring the respondent to issue to relator a permit to erect a building containing stores on property situate at the northeast comer of Myrtle and Avon avenues, in Irving-ton. Under the zoning ordinance of Irvington the property is in a district in which stores are prohibited. The plans for the building comply with the building code, and relator made proper application for the permit, which was refused solely upon the ground that a building occupied by stores, in the proposed location, violated the zoning ordinance.

The application for the permit was made December 22d, 1925. On May 24th, 1922, the zoning ordinance had been amended by changing the plot at the southeast comer of Madison and Myrtle avenues, one block from relator’s lands, from a residential to a business zone, and such property now has a building thereon containing stores.

There seems to be no reason advanced against the issuance of the permit, other than such a'building, as proposed, would violate the ordinance in question.

That situation is controlled by Ignaciunas v. Nutley, 99 N. J. L. 389, and the cases which follow- it.

It is also urged that the present proceeding is premature because no appeal from the refusal of respondent has been taken to the board of adjustment.

But this court and the Court of Errors and Appeals has held to the contrary. Warner v. Board of Adjustment, &c., 4 N. J. Adv. R. 344; Krumgold & Sons v. Jersey City, 130 Id. 635; Losick v. Binda, Id. 537; Lutz & Clayton v. Kaltenbach, 131 Id. 899.

These cases, however, were all before the supplement to the Home Rule act. This supplement is chapter 315 (Pamph. L. 1926, p. 526), and became effective March 31st, 1926.

Upon an application for an alternative writ of mandamus, Chief Justice Gummere held that this supplement clothed boards of adjustment with certain powers of review, and that the remedy of the property owner would not be by mandamus, but by certiorari, to review the action of the board of adjustment. Chancellor Development Corp. v. Senior, 4 N. J. Mis. R. 633.

But we do not find that this question is before us, because there is nothing in the proofs or stipulation of facts showing that respondent has created a board of adjustment. It does appear that after the application for the permit on December 22d, 1925, and its refusal on the same date, relator, on January 19th, 1926, made an application to the board of commissioners of Irvington to amend its zoning ordinance so that relator’s property would be taken out of a residential zone and placed in a business zone. It appears further that this application was denied on January 26th, T926, and that the present rule to show cause was allowed on April 10th, 1926.

With the cause as it is before us, the rule to show cause is made absolute, and a peremptory writ of mandamus is awarded.


author: Peb Cukiam.

text:
    THE STATE v. FRANK W. BALDWIN AND ELMER N. POINSETT, DEFENDANTS.
    Decided October 21, 1926.
    Crimes—Conspiracy—Indictment Charged Conspiracy, but Does Not Allege or Charge any Overt Act—Held, Indictment Must be Quashed.
    On rule for certiorari.

    Before Justices Black and Campbell.
    Eor the rule, Harry Heher.

      Contra, William H. Geraghty and Walter D. Cougle.

   Peb Cukiam.

This in an application for a writ of certiorari to review an indictment returned to the Mercer County Quarter Sessions Court, charging the defendants with a conspiracy to cheat and defraud C. Trevor Dunham, Incorporated, of certain moneys amounting to $1,536.90.

This particular attack upon the indictment is that while charging a conspiracy it does not allege or charge any overt act in the execution of such agreement.

In this particular we think the indictment is defective. So, it was held in Wood v. State, 47 N. J. L. 180, when the provision of the Crimes act were similar unto section 37 of the present act. 2 Comp. Stat., p. 1757.

A stipulation has been entered into by counsel that this court shall, on passing upon this application for a writ of certiorari, decide the meritorious question as to the validity of the indictment, and should the court decide that the indictment be quashed a writ of certiorari shall issue $,nd judgment shall be 'entered quashing the indictment immediately upon making return to said writ, without further argument or consideration.

Our conclusion being that the indictment must be quashed, the proceedings as provided for the foregoing stipulation will be taken.


text:
    M. AND G. CONSTRUCTION COMPANY AND HARRY J. MAX, RELATORS, v. BOARD OF COMMISSIONERS OF THE CITY OF JERSEY CITY ET AL., RESPONDENTS.
    Decided October 21, 1926.
    Zoning—Group of Garages in Residential District—Ordinance Limiting Number of Garages to Five Vehicles Held Not Unreasonable—Rule Discharged.
    On rule for mandamus.

    Before Justices Parker, Black and Campbell.
    Eor the relators, Egan & Armstrong.

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

   Per Curiam.

This is a rule to show cause why a mandamus should not issue requiring the issuance to relators of a permit to erect a group of twenty-one individual garages on Yroom street, Jersey City, in a neighborhood largely residential and within one hundred feet of a church.

The zoning ordinance of Jersey City prohibits the erection of group garages for more than five vehicles if any part of such buildings, at the entrance of the same, lies within one hundred and fifty feet of a church.

We think that such a regulation is reasonable, and there is nothing in the facts of the present case to lead to a contrary view. Hench v. East Orange, 2 N. J. Mis. R. 510; Portnoff v. Bigelow, 133 Atl. Rep. 534; Long v. Scott, Id. 767; N. J. Land Co. v. East Orange, No. 237 of the present term.

The rule to show cause is therefore discharged, with costs.


author: Peb Curiam.

text:
    HAROLD COURTER, PROSECUTOR, v. THOMAS PEER, RECORDER OF THE TOWNSHIP OF CALDWELL, ET AL., RESPONDENTS.
    Decided October 21, 1926.
    On certiorari.

    Before Justices Parker, Black and Campbell.
    Eor the prosecutor, J. Chester Massinger.

    Eor the respondents, Edward J. Katzenbach and Grover C. Bichman.

   Peb Curiam.

This matter is before us in all respects and with the same reasons urged as in Alois Rou, Prosecutor, v. Thomas Peer et al., No. 280 of this term, and our conclusion is that the writ of certiorari must be dismissed for the same reasons given in case No. 280.


text:
    JULIA GUTTMAN, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, RESPONDENT.
    Decided October 21, 1926.
    Zoning—Stores in Two-Family House in Restricted Territory— Case Within Ignaciunas v. Risley—Peremptory Writ Awarded.
    On rule for mandamus.

    Before Justices Parker, Black and Campbell.
    For the relator, Kessler & Kessler.

    For the respondent, Walter G. Ellis.

   Per Curiam.

This is a rule to show cause why a mandamus should not issue requiring respondent to issue to relator a building permit to make alterations in her two-and-one-half-story dwelling, occupied by two families, situate at the northwest comer of Clifford and Halstead streets, in East Orange. Eelator proposes to change such building so that it will contain stores on the first floor.

The permit was refused upon the ground that the zoning ordinance of East Orange prohibits buildings to be used as stores in the-zone in which relator’s lands are located.

From the stipulation of facts, it appears that relator’s lands are not within a strictly residential section of the city, and we are unable to distinguish this case from that of Ignaciunas v. Nutley, 99 N. J. L. 389, and the several cases following it.

The rale to show cause will, therefore, be made absolute, and a peremptory writ of mandamus issue.


text:
    ALOIS ROU, PROSECUTOR, v. THOMAS PEER, RECORDER OF THE TOWNSHIP OF CALDWELL, ET AL., RESPONDENTS.
    Decided October 21, 1926.
    Fish and Game—Violations—Convictions—Magistrates—Alleged Reason for Setting Aside Conviction is That Complaint Does Not Show That Action was Taken Before a Magistrate— The Attack is Not That Thomas Peer is Not Recorder, but That He is Not Properly Designated as Such—Court Takes Judicial Notice of Political Divisions, and That Townships Have Authority to Appoint Recorders, Also That Complaint and Judgment of Conviction Contains the Recorder’s Seal.
    On certiorari.

    Before Justices Parker, Black and Campbell.
    For the prosecutor, J. Chester Massinger.

    For the respondents, Edward L. Katzeribach and Grover C. Bichman.

   Per Curiam.

The writ in this case brings before us for review the judgment of conviction and the proceedings had before the respondent Thomas Peer, recorder of the township of Caldwell, ih the county of Essex, under proceedings under “An act for the protection of certain kinds of birds, game and fish, to regulate their method of capture and possession (Eevision, 1903)/’ approved April 14th, 1903, and the amendment thereof approved April 9th, 1914.

The particular charge against the prosecutor was that of hunting on October 21, 1925, in the township of Pequannock, Morris county, without having a license, as provided for and required by such statutes.

The first reason urged for a setting aside of the proceedings and judgment, is that the complaint does not show, upon its face, that it was made before a magistrate.

The complaint reads:

"State of New Jersey, )

"County of Esses. j

, "Personally appeared before the subscriber, one of the re-' corders in and for the county of Essex and State of New jersey, Robert Stocker, who, being duly sworn, &e. * * *. '• "This is signed by the complaining witness as follows: ‘Robert Stocker, Deputy Warden/ and then appears the jurat and signature of the recorder, as follows:

“Sworn and subscribed before me this 22d day of November, a. d. nineteen hundred and twenty-five.

“Thomas Peer [Seal].

"Recorder—Caldwell, N. J., P. 0. Address.”

The same reason is directed toward the conviction, which is as follows:

"State of New Jersey, ^

"County of j

"Be it remembered that on this 24th day of November, A. D. nineteen hundred and twenty-five, at Caldwell township, in said county, Alois Rou, defendant, was by Thomas Speer, one of the recorders in and for said county * * *.

"This conviction is signed—

“Thomas Peer, Recorder.

"P. 0. Address of Magistrate.”

We take judicial notice of the political divisions and subdivisions of the state, of the laws of the state and of the courts and judges thereof. 23 Corp. Jur. 82, § 1865, &c.; p. 105, § 1910, &c.

We, therefore, take judicial notice of the fact that there exists in this state a political subdivision known as the township of Caldwell, and that it is located in the county of Essex. We further take notice, judicially, that there are statutes relating to, and providing for, the government of the several townships of this state, including, of course, the township of Caldwell, and that in such statutes there is legislative authority granted and given for the appointment of a magistrate known as a recorder.

The attack made here is not that Thomas Peer is not the recorder of the township of Caldwell, duly and regularly appointed and qualified as such, as required by the statute, but simply that in the complaint and conviction he has not properly or sufficiently designated himself as recorder of the township of Caldwell. The original complaint and judgment of conviction upon file in the office of the clerk of this court contain the following imprint of the seal of the magistrate: “Recorder, Township of Caldwell, Essex County, N. J.”

We think the deficiency complained of is fully supplied by the facts and circumstances.

The further reason for setting aside the proceedings and conviction is that the conviction does not show the names of the witnesses who testified for the defendant.

Complaint was also, and at the same time and for a like violation, made against one Harold Courier, and the proceedings in that matter are also before us under a writ of certiorari (No. 281 of the present term), and in the return to that writ there is a return of the minutes or notes of the trial. Prom this it appears that both matters were heard at one time, and as one proceeding, and from such return it appears that there were no witnesses produced or sworn on the part of the defendants below, but, on the contrary, they were advised and directed, by the attorney representing them, not to answer any questions or make any statement.

The conclusion we have reached is that the writ of certiorari must be dismissed.


author: Pee Cueiam.

text:
    MARIO TURTUR, PROSECUTOR, v. THEODORE W. BROKAW, CLERK OF THE CITY OF ELIZABETH, ET AL., RESPONDENTS.
    Decided October 21, 1926.
    Officers—Certiorari to Review the Act of City Clerk in Certifying One Turley on Payroll as License Inspector—Both the Prosecutor, Turtur, and Turley Claim the Office—Contest is One as to the Legal Right to Hold the Office, and the Remedy is Quo Warranto—Certiorari Dismissed.
    On certiorari.

    Before Justices Paek.ee, Black and Campbell.
    Eor the prosecutor, Louis J. Feit.

    Eor the respondents, Füward Nugent.

   Pee Cueiam.

This writ brings up for review the action of the city clerk ■•and officials of the city of Elizabeth in certifying one William J. Turley on the payroll of the city, for services rendered as license inspector of the board of excise commissioners, from ■January 1st, 1926, to January 15th, 1926.

The prosecutor desires to test the validity of this certifieaiion, contending that he, and not Turley, is the duly authorized license inspector of the city of Elizabeth.

Paragraph 17 of the stipulation of facts before us is as follows:

“Upon the election of Mario Turtur as license inspector as aforesaid, both said Turtur and Turley attempted to perform the duties of license inspector. Said Turley still has his desk in the office of the city clerk in the same manner as prior to January 1st, 1926, and if called as a witness would swear that he is performing exactly the same duties as he performed prior to the election of said Turtur. Turtur, if called as a witness, would swear that he had performed all of the duties pertaining to the office of license inspector. Both Turtur and Turley, as license inspectors, make reports to the board of excise commissioners of the city of Elizabeth, but the reports of Turley are not accepted and acted upon, and the board does accept and act on the reports of Turtur.”

Clearly, this is a case of contest as to the right to hold and occupy an office, with a serious contest as to which of the two parties claiming the right is actually occupying the office.

The situation is not like that in Murphy v. Freeholders, 92 N. J. L. 244, and cases therein cited, where an officer was in possession of the office and sought to remove from his way a proceeding which might be used unlawfully to eject him or disturb him in the tenure of his office.

On the contrary, as we have before stated, this is a contest as to the legal right to have and occupy a public office, and the remedy to settle that controversy is quo wwrrcmto.

The writ of certiorari is therefore dismissed, with costs.


text:
    ROTHBERG BROTHERS, INCORPORATED, RELATOR, v. BOARD OF COMMISSIONERS OF JERSEY CITY ET AL., RESPONDENTS.
    Decided October 21, 1926.
    Zoning—Stores in Restricted Territory—Case Within Ignaciunas v. Nutley.
    On rule for mandamus.

    Before Justices Parker, Black and Campbell.
    Eor the relator, L. Bdwa/rd Herrmann.

    Eor the respondents—no appearance.
   Per Curiam.

This is a rule to show cause why a mandamus should not issue, requiring the issuing to relator of a building permit for the erection of two four-family brick buildings, with one store in the first floor of each, on Bandolph avenue, Jersey City, New Jersey.

The only ground appearing for the refusal to issue the permit is that the land, upon which the proposed buildings are to be erected, are within a district or zone in which buildings to be used for stores and business are prohibited by the zoning ordinance of the city.

Under Ignaciunas v. Nutley, 99 N. J. L. 389, and other cases, relator is entitled to relief, and the rule to show cause will be made absolute and a peremptory writ of mandamus issue.


author:
Harry J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    VICTOR A. GLASSER, PETITIONER, v. SAMUEL BOTHWINICK & SON, INCORPORATED, RESPONDENT.
    Injury to Head of Employe, a Painter—Injury Caused an Aggravation of Mastoid Trouble for Which There Had Been an Operation About Fifteen Years Before, but From Which Employe Seemed to Have so Far Recovered That He Had Been Able for Several Years to Work at His Trade—Mastoid Trouble Now Considered Permanent—Temporary and Permanent Compensation Awarded.
    For the petitioner, Henry Garless.

    For the respondent, Emile Neblo (representing Edwards & Smith).

   3. The said Victor A. Glasser on the 28th day of August, 1925, was in the employ of the respondent as a house painter at the wages of fifty ($50) dollars per week. On the said 28th day of August, 1925, he was working for the respondent as a painter, and was engaged in the painting of a house on Peshine avenue, Newark, New Jersey, and while so engaged a large piece of wood about one and one-half feet long, three inches wide and one and one-half inches thick fell on petitioner’s head, striking him on the front of the pereital area. It caused his head to bleed. He was taken to a hospital soon after the happening of the accident, at which place the wound on his head was dressed. While he was on his way to the hospital he vomited and also that same evening when at his home. Soon after the accident his left ear commenced discharging. He had severe headaches, twitching of the left side of his face, suffered from dizziness of such a nature that he could not stand upon a scaffold or ladder or anything more than a few feet above the level, and was unable to perform any labor from August 28th, 1925, until February 26th, 1926,- with the exception of seven days, upon which he was able to work during the first few weeks following the accident and injury. It appeared that about fourteen years ago the petitioner was operated upon for mastoids, and at that time had a running • discharge from the left ear and a paralysis of the left side of the face. That he recovered from the operation to such an extent that for a number of years prior to August 28th, 1925, he had been able to work regularly at his occupation as a house painter.

• 4. It appears from the testimony that the accident and injury to the petitioner on the said 28th day of August, 1925, has aggravated the old condition for which, he was operated upon as aforesaid as to produce his present condition of physical instability, headaches, nervousness, dizziness and the running or discharge from petitioner’s ear, and that his present condition is a permanent one.

' ‘ 5;- The' said accident arose out of and in the course of petitioner’s employment with the respondent, who had actual-knowledge of the happening thereof.

6. By reason of said accident the petitioner was unable to follow his usual or any other occupation, except on seven days, from August 28th, 1925, to February 26th, 1926, being a period of twenty-six (26) weeks, for which he is entitled to compensation at the rate of seventeen ($17) dollars per week, amounting to four hundred and forty-two ($442) dollars.

.. 7. Said accident and injury produced, in addition to said temporary disability, a permanent disability, which consists of. a lessening of petitioner’s ability to hear, a twitching of the facial nerves, headaches, dizziness and physical instability, and which permanent disability equals thirty (30%) per cent, of total disability, and for which he is entitled to one hundred and fifty (150) weeks’ compensation at the rate of seventeen ($17) dollars per week, amounting to two thousand five hundred and fifty ($2,550) dollars.

Harry J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CHARLES McDEVITT, PETITIONER, v. EUGENE LASKY, RESPONDENT.
    Employe Claims Injury as the Result of Fall—Defense That There was no Injury Resulting Therefrom, but That He Suffered From an Injury Received Before Entering Respondent’s Employ.
   The petitioner herein having duly filed his petition alleging that on the 29th day of December, 1924, he was in the employ of the respondent at 784 Broadway, Bayonne, New Jersey, and was on his way to the cellar when he slipped and fell on a broom handle and thereby caused injury to his leg for which he asks compensation, and the respondent having duly filed his answer in which he set np the defense that the petitioner was suffering from disease which grew out of an accident that occurred some years before the petitioner entered the employ of the respondent, and denying that there was any claims for compensation payable from the respondent to the petitioner, and it appearing that the petitioner was injured about the year 1921 when he was kicked by another boy, and as a result of this a disease has been set np for which operations have been performed during the years 1922 and 1923, and it appearing that the petitioner suffered no disability either of a temporary or permanent nature growing out of the alleged accident of December 29th, 1924, and that the only disability suffered by the petitioner is the condition of disease growing out of the previous accident of 1921, and the witnesses having testified on behalf of the: petitioner and on, behalf of the respondent and the deputy-commissioner of compensation having awarded judgment in favor of the respondent and against the petitioner.

Charles E. Corbin,

Deputy Commissioner of Compensation.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    NICHOLAS KANERY (CANERY), PETITIONER, v. CENTRAL RAILROAD OF NEW JERSEY, RESPONDENT.
    Injury to Blacksmith Employed by Respondent Through an Alleged Hot Metal Falling on His Foot—Question of Doubt Whether Injury was the Result of Employment by Respondent—Compromise Settlement Accordingly Agreed to.
    Eor the petitioner, Charles Becker.

    For the respondent, De Voe Tomlinson.

   Some time, on or about July 3d, 1925, at about three-thirty P. m., the petitioner was employed by the respondent as a blacksmith, working at the respondent’s plant located in Elizabeth, New Jersey, and, while working with some hot metal, the petitioner contends that the metal fell on his foot, receiving a burn and injury from this said accident.

The petitioner claims that Mr. Kelly, the foreman, had knowledge of the said accident, but the respondent filed its answer on the above-mentioned date, stating that it had no knowledge of the accident, and further, that the amputation •of the right foot above the knee was not the result of an accident.

It appears that several days after this accident the petitioner was treated by Doctor Lowrey, of the city of Newark, •county of Essex and State of New Jersey, and on or about July 24th, 1925, the petitioner was admitted into the Elizabeth General Hospital, which is eighteen days after the said accident, and was discharged in an improved condition on August 28th, 1925. On or about October 27th, 1925, and ■on or about November 7th, 1925, while in the Newark City Hospital, an operation and amputation was performed of the leg, and the diagnosis is as follows: “Arterio sclerotic gangrene of right foot. Diabetes mellitus.”

Since there is a doubt as to whether or not the petitioner or the respondent could prove their case, and whether or not the petitioner could prove that this injury was caused and arose out of and in the course of his employment, and whether the respondent could prove that the injury was not caused by and did not arise out oE and in the course of the petitioner’s employment, all parties above mentioned had agreed upon and effected a settlement in lump sum for $1,700, and Doctor Samuel A. Shapiro and Doctor James H. Lowrey appeared on behalf of the petitioner, and Doctor Eieppler and Doctor Arlitz on behalf of the respondent.

In agreeing upon such a settlement the respondent has taken in consideration the service of the petitioner, having been in the respondent’s employment for more than twenty-three years.

It is expressly understood and agreed that from the sum of $1,700, $150 will be paid for medical expenses and $200 for counsel fee, leaving a balance of $1,350 to be paid to the petitioner. All expenses will be paid by the petitioner out of the above-stated amount.

The stenographic fee will be paid equally by both parties, and it is also expressly understood and agreed that if the petitioner shall endeavor to obtain an artificial leg the same shall be paid by him.

Harry J. Goas,

Deputy Commissioner.


author:
Charles E. Corbin,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DANIEL F. O’BRIEN, PETITIONER, v. MAX ABELES, DEFENDANT.
    On determination and judgment.
    Eor the petitioner, I. Boss McCombe.

    Eor the respondent, B. J. Bruñe.

   It was stipulated and agreed by counsel and respondent’s representative that for the purpose of compromising and forever closing the case, respondent shall pay to the petitioner the following sum by way of compensation, namely, four weeks at seventeen ($17) dollars for total disability. The legal advisor of the petitioner is to receive a counsel fee of fifty ($50.00) dollars, which respondent is to pay in addition thereto, together with the sum of fifteen dollars ($15) dollars for medical expense, and thirty-nine ($39) dollars payable to Doctor L. S. Donahue, physician for petitioner, and that the case is to he terminated upon this settlement.

Charles E. Corbin,

Deputy Commissioner.


author: Backes, V. C.

text:
    Albert W. Wilsdon, petitioner, v. Victoria R. Wilsdon, also known as Victoria E. Wilsdon, defendant.
    [Decided October 20th, 1926.]
    Divorce—Cruelty—Proofs Appear to Sustain Charge, but Petition is Dismissed Because Six Months Did Not Elapse Between Last Act of Cruelty and Filing Petition.
    On exception to master’s report.

      Mr. Albert W. Wilsdon, pro se, for the exceptant.
   Backes, V. C.

Exception is taken to the special master’s report that the petition for divorce on the ground of extreme cruelty be dismissed. The parties are still living together, but not in marital relation. The petition was filed June 3d, 1925, and, as later amended, charges three acts of physical violence, the last on December 22d, 1924, and false and malicious accusations of marital incontinence from January, 1923, until the filing of the petition. The proofs, it would appear, sustain the charges. The petition must, however, be dismissed because six months did not elapse between the last act of cruelty complained of and the filing of the petition, as required by chapter 187 of the laws of 1923. P. L. 1923 p. 494; Coe v. Coe, 127 Atl. Rep. 339.

Exception overruled.


author:
Haeey J. Goas, .
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    THOMAS DUTTON, PETITIONER, v. FRANK SCANLON AND MICHAEL OWENS, RESPONDENTS.
    Injury to Employe Caused by Falling Into a Coal-Chute While Carrying a Large Can of Ashes—Question of Medical Services, Extent of Temporary Disability and Extent of Permanent Disability—Much Testimony Offered on Both Sides and Reviewed at Length Here.
    For the petitioner, William Horda Smith.

    For the respondents, Harry E. Walburg.

   ********

2. Petitioner proved that he was injured in an accident arising out of and in the course of his employment on January 13th, 1926, with the respondents, and received $20 per week. He testified that he received temporary disability up to March 26th, 1926, from the date of the accident.

3. The only question involved was the medical question, as to how much longer he was entitled to temporary disability and as to whether there was any permanent -disability. The petitioner testified that he was carrying out ashes from his place of' employment with respondents, and was carrying out a can of ashes weighing about sixty pounds, and was crossing a sidewalk when a coal-chute cover on which he stepped slipped and became out of place. As a result of this, petitioner fell through-the coal-chute, and while he was in the act of falling he clung to the can of ashes and found himself with his two legs in the coal-chute below the surface of the sidewalk and the rest of his body above the surface of the sidewalk. He testified that he hurt his left knee when he fell and injured his chest, and at the present time he is suffering from pains in the chest, pains in the left shoulder and pains in the left hand. He also said that he is unable to grasp anything with the left hand, and that since the time of the accident up to the present time he has been unable to work, and during that time he has lost twenty-eight pounds. He states that he suffers from attacks of dizziness, insomnia, nervousness and weakness. He testified that he was treated by Dr. Coffey, who treated him from the time immediately following the accident up to the present time, and X-ray pictures taken by Dr. Hood of the City Hospital of Newark, on March 17th, April 9th, April 16th, May 9th, 1926, showed the lateral view of the chest, and it indicated a fracture of the sternum or breast bone, and the latter fragment of the chest bone was bent forward. Another picture showed evidence of a fracture at the base of the meta-carpal of the thumb of the left hand, and there was also evidence of an old fracture of the thistle and the latter, Dr. Hood stated, was evidently an old fracture. Another picture showed a sprained fracture of cronium process of the scapula. The doctor stated that the pictures indicated that the bone is chipped off and is irregular in shape. This seems to corroborate with petitioner’s statement in respect to pains from these very same regions in which Dr. Hood found fractures.

4. Dr. Coffey said that had been treating the petitioner since the date of the accident up to the present time, and he corroborates petitioner in so far as the symptoms were concerned, and stated that he had looked at the pictures taken by Dr. Hood and they corroborated his findings. He said that he knew petitioner before this accident, and the petitioner was an athletic type and always appeared to be in good health, but since the accident he has declined considerably and lost weight. Dr. Coffey further testified that he was satisfied that there was permanent disability of the left shoulder; there- was disability of the left hand approximately thirty-five per cent., and taking these conditions in consideration, together with the condition of the chest, the fact that he lost weight, the fact that he was nervous and that he could not sleep, and that he complains of general pains throughout his body, he felt that petitioner was thirty to thirty-five per cent, total permanently disabled.

5. Petitioner said that before this accident he was able to lift beer barrels in the course of his employment, and always did hard work and always was in good physical condition.

6. The respondents introduced the fact that about a year ago Mr. Dutton, the petitioner, was in an automobile accident, but I cannot give that much weight, because there was no testimony before me that he was seriously injured or that he was injured at all—in fact, Dr. Coffey testified that he recalled the accident and that there was absolutely no injuries to petitioner as a result of that accident.

7. The testimony of the respondents further showed that he was treated by Dr. Szerlip from January 15th to February 9th, 1926, for injuries to his left knee, left hip and chest. Dr. Szerlip testified that at the time he examined him he complained of injuries to his left knee, hip and chest, and it is evident that Dr. Szerlip would have treated him for a longer period of time. Further, then, that Dr. Szerlip testified on cross-examination that it was his intention to have an X-ray picture of the chest taken, and this X-ray was not taken because the petitioner did not return to him for any further treatment. Dr. Szerlip also testified that the petitioner did not complain of any injury to his left hand or shoulder while under his treatment.

8. Dr. Bull testified for the respondent that he treated the petitioner from February 24th to April 3d, 1926. The petitioner complained of injuries to his left knee, left hip and chest when he first came to be treated. Two weeks later he complained of pain in his left hand, which was swollen. Dr. Bull diagnosed this condition as rheumatism. No complaint was made of injury to the left shoulder. On February 24th, 3926, an X-ray picture of the petitioner’s chest was taken by Dr. Bull and was offered in evidence by the respondent.

9. Dr. Sanlow testified for the respondent that he treated the petitioner at the City Hospital from March 28th to March 31st, 1926. The petitioner complained of pain in his left hand and chest. He was discharged on March 31st, 1926.

3 0. Dr. Krueger testified for the respondent that he treated the petitioner the first time he came to Dr. Szerlip’s office. The petitioner complained of injuries to his left knee, left hip and chest. No complaint was made of any other injuries.

11. Dr. Brothers, who was called by the respondents, testified that there was no permanent injury, but I cannot reconcile this testimony with the nature of the accident, with the X-ray pictures produced by the petitioner and the testimony of the petitioner’s doctors who saw him and treated him from the time of the accident to the present time. Dr. Brothers merely made a physical examination of him a week or two ago. Dr. Brothers and Dr. Szerlip, after examining the X-rays introduced by the petitioner and the respondent, testified that, in their opinion, there was a displacement and not a fracture of the ensiform, but that the position of the ensiform did not interfere with any organs, and that it was an old condition. They also testified that from an examination of the X-rays, it was their opinion that the fractures of the left thumb and left shoulder were old ones. They also testified that a fracture of the meta-carpal bone would cause swelling and pain immediately after the accident, and that a sprained fracture of the cronium process would also cause severe pain and very likely an injury to the ligaments of the ihoulder.

12. I feel that Dr. Brother’s opinion in respect to the percentage of disability is low, and I also feel that Dr. Coffey’s opinion as to the percentage is somewhat high. I am, however, inclined to believe that there is a fairly substantial total permanent disability. As a result of my findings I hereby determine that the petitioner is entitled to fifteen per cent, total permanent disability, which amounts to seventy-five weeks at the rate of $13.33 per week, and the petitioner is also entitled to temporary disability from March 26th, 1926, to July 7th, 1926, at the rate of $13.33 per week.

The attorney for the petitioner is entitled to receive his counsel fee payable by the respondents in the amount of $150, the amount agreed upon by the respective attorneys, and $50 counsel fee to be paid by the petitioner in the preparation for trial and his appearances and actual trial in the above-entitled matter. ,

$$$$$$$$

Haeey J. Goas, .

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ALEXANDER SZASZ, PETITIONER, v. JOHN A. ROEBLING’S SONS COMPANY, RESPONDENT.
    Injury to Finger Properly Treated—More Than Year Afterward Alleged an Injury Occurred to Shoulder at Some Time—No Notice of Later Claim Until After One Year From Time of Alleged Accident—Furthermore, Testimony Tends to Show Accident Did Not Occur.
    Eor the petitioner, William Reich.

    For the respondent, George Macpherson.

   This is an action brought under the Workmen’s Compensation law in which the petitioner was represented by Attorney William Eeich and the respondent by George Macpherson, and the facts at the hearing held on July 3d, 1926, are briefly as follows:

On January 31st, 1925, the petitioner alleges that he was injured by being struck in the chest, right arm and shoulder by a reel which was being handled by a crane. The respondent contends that the accident which occurred on said date caused injury to the petitioner’s finger only, and that the respondent had no knowledge of any other injury to the petitioner’s body. The injury to the finger was properly treated by the employer, and no claim for compensation was filed with the workmen’s compensation burean until after the expiration of one year. The petitioner now seeks to have the one-year time limit provision of the statute set aside on the ground that no report of the petitioner’s injury was made to the state. To deprive an employer of his protection under the one-year time limit clause of the statute, the petitioner must show that said employer had knowledge of the injury disabling the petitioner for a longer time than the waiting period prescribed by law. The testimony taken in this cause fails to establish that the respondent had knowledge of any disability caused by the accident of January 31st resulting in a disability longer than ten days—in fact, the testimony fails to establish that the petitioner was injured in the manner in which he claims. The testimony of two eye witnesses who saw the entire occurrence establishes that nothing struck the petitioner as described by him.

W. E. Stubbs,

Deputy Commissioner of Compensation.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN KULICK, PETITIONER, v. UMKOMAAS WOOLEN MILLS, RESPONDENT.
    On determination and rule fox judgment.
    Eor the petitioner, Nathan Rabinowitz.

    For the respondent, Richard W. Balcer.

   The deputy commissioner was asked to approve this compromise and enter an award on the same.

I, therefore, find and determine that the petitioner, in accordance with the compromise, is entitled to compensation for temporary disability for a period of six (6) weeks, all of which has already been paid, and compensation for permanent disability for a period of five (5) weeks based upon ten (10%) per cent, of the left second and third fingers, the compensation rate being seventeen ($17) dollars.

It is therefore on this 27th day of September, 1926, ordered that judgment be entered in favor of the petitioner for eleven (11) weeks’ compensation, six weeks of which have already been paid, and that the balance be paid immediately by the respondent at the rate of seventeen ($17) dollars.

Harry J. Goas,

Deputy Commissioner.


text:
    JOSEPH BELL, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Submitted May 15, 1926
    Decided November 6, 1926.
    Zoning—Case Within Ignaciunas v. Risley.
    On demurrer to return to an alternative writ of mandamus.

    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    Eor the relator, Benjamin Newman.

    Eor the respondents, Walter G. Ellis.

   Per Curiam.

This is a zoning case. There was an alternative writ, a return thereto, a demurrer to the return, and a stipulation as to the facts.

The relator sought a permit for the erection of a building containing three commercial stores on the first floor and two living apartments on the second floor, on land owned by him at the comer of William and North Eifteenth streets, in the city of East Orange. The permit was refused because the land in question was zoned as a “medium volume residence district” in which commercial store buildings were prohibited.

We think this case is controlled by the decision n Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 99 Id. 389. The relator is entitled to judgment, and a peremptory writ of mandamus will issue.


text:
    FLORA L. KEEPERS, PLAINTIFF, v. IRMA ROUTH, DEFENDANT.
    Submitted May 15, 1926
    Decided November 6, 1926.
    Negligence—Motor Vehicle Accident—Injury to Passenger of Defendant—Verdict Not Found Against Weight of Evidence —Question of Invitee or Licensee—All Other Questions Raised Considered and Dismissed.
    On plaintiff’s rule to show cause why defendant’s verdict should not be set aside.
    Before Gummere, Chief Justice, and Justices Teen-chard and Mintuen.
    Eor the rule, Ward Eremer.

    Contra, Joseph C. Paul and Durand, Ivins & Carton.

   Per Curiam.

This is plaintiff’s rule to show cause why a verdict in favor of defendant at the Monmouth Circuit should not be set aside.

The plaintiff was injured while riding in an automobile owned and operated by the defendant. The injury resulted from a collision between that car and another car at a highway intersection.

■ It is argued that the verdict is against the weight of the evidence. On careful examination of the conflicting evidence, and after reflection, we cannot say it is so. It looks to us like a typical jury ease. The jury may have found that there was no invitation from defendant to plaintiff to ride in her ear, and if the jury was justified in so finding, as we think it was, and the verdict was not contrary to the great weight of the evidence in this respect, as we think it was not, then this verdict ought not to be disturbed. But if it be assumed that the plaintiff was an invitee, and that, therefore, the defendant owed her the duty of the exercise of reasonable care, we come to the question of whether the defendant did exercise reasonable care. It may be said that the jury found that she did, and on that question we cannot say that the verdict, resting as it does upon conflicting evidence, was against the great weight of the evidence.

We have examined, with care, the other points.

We do not think that there was error in the charge, nor in the refusal to charge the requests of the plaintiff. We find, on examination, the requests were not proper to be charged by reason of matters contained therein, or as requiring the court to decide disputed questions of fact, or as requiring the court to charge respecting testimony which was not in the case, or not required to be charged because already charged.

Upon a consideration of the whole case we think the rule to show cause must be discharged, and it is so ordered.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RUTH LEE, PETITIONER, v. MAX ROSENTHAL AND FANNIE ROSENTHAL, RESPONDENTS.
    Injury to Foot of Employe, a Domestic Servant, Caused by a Nall—Temporary Disability as Claimed—Employe Refused Further Medical Attention From Employer’s Physician, Employing Her Own, No Allowance for Her Own Doctor’s Fees.
    On determination of facts and rule for judgment.
    For the petitioner, Jacob W. Silverman.

    Eor the respondents, Charles Becker.

   A petition having been filed in the above-stated matter, praying for the compensation to which the petitioner may be entitled by virtue of the terms and provisions of an act of the legislature of the State of New Jersey entitled "An act prescribing the liability of an employer to make compensation for injuries received by an employe in -the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, together with the several supplements thereto and acts amendatory thereof, and a time and place for the hearing of said position having been fixed, and it appearing to the court that the said petition and the order fixing the time and place of said hearing having been duly served on the respondent and the petitioner, and respondent having appeared on the 26th day of May, 1926, the date set for the hearing thereof, and on the 9th day of June, 1926, the date to which the matter was continued, and in the presence of Jacob W. Silverman, attorney for petitioner, and Charles Becker, attorney for respondents, and the court having heard the testimony adduced in behalf of the parties hereto;

I do find and determine from the evidence taken in this cause as follows, to wit:

1. That Ruth Lee was, on the 1th day of January, 1926, in the employ of the respondents, Max Rosenthal and Fannie Rosenthal, in the capacity of domestic and general house-worker, which employment was subject to the compensation section of chapter 95, laws of New Jersey, 1911, and supplements thereto.

2. That on the above-mentioned date petitioner, Ruth Lee, met with an accident arising out of and in the course of the said employment.

3. That the respondents herein had knowledge of said accident within the time prescribed by law.

4. That at the time of the accident the said Ruth Lee received wages in said employment of $12 per week, together with meals.

5. That the money value of said meals was included by the court at $2.50 per week per person, and that the weekly wages of the petitioner have therefore been computed at fourteen dollars and fifty cents ($14.50).

6. That no compensation was paid to the petitioner on account of disability arising out of said accident.

7. Petitioner received medical treatment from Dr. Louis Davis, whose fee was paid by respondents, and from Dr. Morris 0. Dubois, of Newark, New Jersey, whose entire fee for services was fifty-five ($55) dollars.

8. Petitioner expended for medicines and supplies at Helfgott’s Pharmacy, 30 Waverly avenue, the sum of ten ($10) dollars.

9. Petitioner on the 7th day of January, 1926, while in the employ of the respondents as domestic and general house-worker, met with an accident arising out of and in the course of her employment. It appears from the testimony of the petitioner that while in the act of taking certain papers and rubbish into the yard, incidental to the apartment of the respondents, at 730 High street, Newark, New Jersey, the petitioner stepped on a nail, sustaining injuries to the ball of her left foot, as a result of which she sustained ternporary disability from the said 7th- day of January, 1926, up to March 10th, 1926. She further testified that she had received treatment from Dr. Louis Davis, of Newark, New Jersey, on January 7th and 8th, upon which latter day she was discharged by Dr. Davis, and that Dr. Davis treated her at the request and cost of the respondents. She further stated that after January 8th her foot became more swollen, whereupon about January 15th, 1926, she went for treatment to Dr. M. G. Dubois, of Newark, New Jersey, who attended to her until the 10th of March, during which time she was absolutely unable to work. Petitioner further testified that she did not commence work after the accident until the middle of March, 1926, with a Mrs. Eagot, of Hawthorne avenue, Newark, New Jersey.

10. Dr. Morris G. Dubois, of Newark, New Jersey, in behalf of the petitioner, testified that he had treated the petitioner from on or about the 15th day of January, 1926, to the 10th day of March, 1926, and that the left foot of the petitioner was swollen, which swelling had extended to the knee, and that he had advised her to stay in bed for the first three weeks after the commencement of treatment, and that she was absolutely unable to work or use her foot throughout the said period. The doctor further testified that his bill was fifty-five ($55) dollars. He stated that the history of the case as given him by the petitioner was that the injury was incurred by stepping on a nail- He also testified that petitioner sustained no permanent injuries.

11. Benjamin Lee, husband of petitioner, testified that Dr. Louis Davis, on January 8th, 1926, had advised him that his wife, the petitioner, need no further treatment. He further stated that a few days before January 15th, 1926, the wife’s condition having failed to improve, he made demand upon Mrs. Rosenthal, one of the respondents, to furnish medical attention, which was refused. He also testified that petitioner did not recommence work until the middle of March, 1926.

12. Mrs. Rosenthal, one of the respondents, called to testify in behalf of the respondents, testified to the effect that the petitioner had incurred an accident on January 7th, 1926, in direct corroboration of the petitioner’s story as to the manner in which the injuries of the petitioner were sustained. She, however, testified that the petitioner refused to accept the services of her physician, Dr. Louis Davis, who, even after January 8th, 1926, had been instructed by her to treat the petitioner. She denied that Mr. Lee had made any demand upon her before January 15th for treatment of Mrs. Lee.

13. Dr. Louis Davis, called by the respondents, testified that he had requested Mrs. Lee to return to him for further treatment after January 8th, 1926, upon which day he had administered an anti-toxin to petitioner, and that the petitioner had entirely failed to avail herself of further treatment from Dr. Davis to be furnished by respondents, and further testified that petitioner sustained no permanent disability.

14. Mr. Max Eosenthal, one of the respondents, in behalf of the respondents testified that he had heard Dr. Davis request the petitioner to return for further treatments, which request was made on January 8th, 1926, and that both he and his wife had requested the husband, after January 8th, 1926, to send his wife to Dr. Davis for observation and treatment.

15. Mrs. Fagot, in behalf of respondents, testified that Mrs. Lee worked for her as domestic for a period commencing about February 18th, 1926. She, however, was not positive about the exact date, neither was she certain of the date that petitioner terminated her employment. She further testified that she had had two maids since Mrs. Lee had left her, and that she could no? remember how many maids she had had prior to her employment of Mrs. Lee.

16. There are direct conflicts of testimony in the case upon the following questions:

(a) Was petitioner discharged by Dr. Davis on January 8th, 1926, and refused further medical treatment thereafter ?

(b) Whether the period of temporary disability ceased on February 18th, 1926, or on March 10th, 1926?

17. I find that under reasonable circumstances, and in accordance with the ordinary customs and standards of the medical profession, Dr. Davis would have requested Mrs. Lee to return for further observation and treatment after the administering of the anti-toxin on January 8th, 1926. In view of this, of the testimony of Dr. Davis, and the corroboration by the respondents, I find that the petitioner discontinued treatment with Dr. Davis of her own volition, and of her own accord went to Dr. Dubois, under which circumstances the respondents are not bound to pay the medical fees of Dr. Dubois, and that same, to wit, fifty-five ($55) dollars, is to be paid to the said Dr. Dubois by petitioner.

18. On the question of temporary disability, considering the evidence of Dr. Dubois, who testified that the swelling of the foot of petitioner extended to the knee, and that he advised her to stay in bed, and of the extent of her disability, coupled with the evidence of Mr. and Mrs. Lee, upon the period of disability, I am inclined to think that Mrs. Eagot is mistaken as to the time when Mrs. Lee commenced employment with her, and I hereby find as a fact that Mrs. Lee, the petitioner, suffered teinporary disability from the 7th day of January, 1926, up to and including the 10th day of March, 1926, and that she sustained no permanent disability.

19. That the said bill for medicine and supplies in the sum of ten ($10) dollars is to be paid to petitioner by the respondents.

❖ #***#* *

Harry J. Goas,

Deputy Commissioner.


text:
    IDA SCALA, ADMINISTRATRIX AD PROSEQUENDUM OF JOHN SCALA, DECEASED, PLAINTIFF, v. E. & S. TRANSPORTATION COMPANY, INCORPORATED, DEFENDANT.
    Decided November 12, 1926.
    Negligence—Alleged Excessive Damages—Husband Killed—Wife Recovered $16,000—His Earnings About $2,000 Per Year— Was Thirty-seven Years of Age—Had Three Small Children—Held, Award Not Excessive.
    On rule for new trial.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Samuel D. Williams.

    Contra, Francis A. Gordon.

   Per Curiam.

Plaintiff has a verdict for $16,000 for damages resulting from the death of her husband. She is thirty-one years of age; her husband was thirty-seven years old at the time of his death and there are three children, aged eight, five and four years.

Plaintiff’s intestate was regularly employed as a machinist, earning something over $1,200 per year, and after his hours of regular employment he worked as a barber, earning $15 to $20 per week, making his total earnings something in the neighborhood of two thousand ($2,000) dollars per year. This is the defendant’s rule, and the only reason advanced for setting aside the verdict is that it is excessive. We do not think it is, and the rule to show cause is therefore discharged, with costs.


text:
    IN THE MATTER OF THE RECEIVERSHIP OF ADJAVANT ROOFING MANUFACTURING COMPANY, JOHN E. ISZARD, RECEIVER.
    Decided November 12, 1926.
    Corporations—Receivership—Creditor's Claim Heard Before Jury and Opposed by Other Creditors, Who Alleged Estoppel as the Result of a Certain Agreement—Alleged That Entire Case was Improperly Before Supreme Court Because All Proceedings Were Entitled in the Circuit Court and All Papers Filed With County Clerk—Held, Proceedings Being Purely Statutory and the Legislature Having Provided That a Supreme Court Justice Shall Frame an Issue Which Shall , be Tried in the Circuit Court, and That the Verdict Shall be Subject to the Control of the Supreme Court, the Statutory Proceedings Have Been Followed—Other Reasons For Reversal Considered and Dismissed.
    On rule for new trial.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Bourgeois & Coulomb.

      Contra, Mwood C. Weelcs.

   Pee Cueiam.

This cause was tried at the Atlantic County Circuit, pursuant to section 77 of the Corporation act, upon a feigned issue.

Elizabeth M. Chase having filed her claim with the receiver, for moneys alleged to have been advanced by her to the company, and the Busselloid Company, another creditor, having filed a caveat against the same, she demanded a trial by jury as provided for by the section of the Corporation act above referred to.

The demand of Mrs. Chase was for $10,000, and the Busselloid Company answered the complaint and defended the action, denying the claim of Mrs. Chase and setting up a certain agreement between her and others, and one Preston, acting for the Russelloid Company, as an estoppel.

Mrs. Chase obtained a verdict of $5,711.30, which under this rule we are asked to set aside.

Although not raised by any of the reasons assigned, it was argued that the entire proceeding now before this court was improper and irregular because all of the proceedings are entitled in the Atlantic County Circuit Court, and all pleadings, &e., filed with the clerk of that court, and the issue was tried by the Circuit Court judge, and, therefore, the present rule to show cause should have been heard and disposed of by the Circuit Court judge, or, if that be not so and the present rule to show cause is properly before this court, then all the prior proceedings are improper and should have been had in the Supreme Court and not the Circuit.

But we think this is not so. The proceeding is purely statutory and the legislature has provided that a justice of this court shall frame an issue which shall be tried in the Circuit Court, and that the verdict of the jury shall be subject to the control of this court as in suits originally instituted in this court.

While this differs from the practice and procedure in common law actions, yet, this being a purely statutory right the proceeding laid down by the statute must be, and in this case has been, followed.

It is further contended that the trial court erred in refusing to direct a verdict against Mrs, Chase upon the ground that because of her covenant in the agreement between herself and others, and Preston, representing the Russelloid Company, she was estopped from having a recovery.

But we think the learned trial judge did not err in refusing to direct a verdict.

Estoppel by deed is operative only between the parties to the deed and their privies. Strangers to the deed are not bound by, nor can they invoke, the estoppel. Osborne v. Tunis, 25 N. J. L. 633; Greggs v. Smith, 12 Id. 22; 16 Cyc. 710.

The second and third reasons are that the verdict is against, the weight of the evidence.

We do not find this to be so.

The fourth reason is not argued, and, therefore, is aban- . doned.

The fifth and sixth reasons attack- as erroneous that part of the court’s charge which is in the following language: “$4,788.20 is the amount which by the proof the plaintiff would be entitled to receive with interest from March 19th, 1923, if you find.the verdict for the plaintiff.”

This is not a complete quotation of all that the trial judge said upon this subject. Our reading of all that was said upon this subject leads us to the conclusion that there was no error therein.

The final ground is directed at the trial court’s instruction as to the effect of the agreement between Mrs. Chase and others, and Preston, before referred to.

This instruction was not erroneous. What we have said in disposing of the refusal of the trial court to direct a verdict .is applicable under this reason.

The rule to show cause is discharged, with costs.


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    THE CITY OF PERTH AMBOY ET AL. v. THE BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL.
    Decided November 12, 1926.
    Public Utilities—Grade Crossing Elimination—Municipality Having Had Due Notice and Having Acquiesced in Order and Approval of Plans, and Grade Crossing Having Been Eliminated at Large Cost, and Evidence Before Utility Commissioners, Amply Justified Their Conclusion—Rule is Dismissed.
    On rule for writ of certiorari.

      Before Justices Black and Campbell.
    For the rule, David T. Wilentz.

      Contra, Thomas Brown.

   Per Curiam.

This matter has been heard upon a rule to show cause why a writ of certiorari should not issue to review the decision of the board of public utility commissioners of January 7th, 1926, refusing to require the Central Eailroad Company of New Jersey and the Lehigh Valley Eailroad Company to change the construction of an overhead bridge at Washington street, in the city of Perth Amboy, which bridge had been fully constructed and completed at a cost of $300,000 by such railroad companies, pursuant to and in compliance with the order of said board dated May 17th, 1922, eliminating a dangerous railroad grade crossing, such order having been made in accordance with the “Fielder Grade Crossing act” (Pamph. L. 1913, ch. 57), after notice and hearing in which the representatives of the city of Perth Amboy participated, and acquiesced and approved of, and consented to, the plans upon which, and according to which, the bridge was constructed.

Aside from every other reason that might be advanced against the allowance of the writ in question, we find that the evidence before the board amply and completely justified its conclusion, as expressed in its judgment sought to be reviewed.

The rule to show cause is therefore dismissed.


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    PASSAIC CITY STEAM LAUNDRY COMPANY, INCORPORATED, PLAINTIFF, v. VICTOR ANTONUCCI, DEFENDANT.
    Submitted May 15, 1926
    Decided November 6, 1926.
    Negligence—Motor Vehicle Collision—Plaintiff’s Truck Ruined— Contributory Negligence Not Shown—Plaintiff’s Verdict Not Excessive Nor Contrary to Weight of Evidence.
    On defendant’s rule to show cause why plaintiff’s verdict should not be set aside.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    Por the rule, Feder & Binzler.

    Contra, Irving L. Werlcsman.

   Per Curiam.

This is a rule to show cause obtained by the defendant why plaintiff’s verdict should not be set aside.

The suit was for recovery of damages resulting from an automobile collision, and the defendant counter-claimed for damages. At the trial it appeared that the defendant’s agent was operating a jitney bus on a public street, and the plaintiff, by its agent, was likewise operating its truck on another street. They collided at the intersection of such streets, under circumstances from which the jury was justified in finding that the plaintiff’s car had the right of way under the Motor Vehicle act. Both cars were badly damaged, and this gives rise to the plaintiff’s claim and the defendant’s counter-claim.

The jury found for the plaintiff for $1,000, and as to defendant’s counter-claim returned a verdict of no cause of action.

We think that the court did not err in refusing to grant defendant’s motion for nonsuit, nor in refusing to grant defendant’s motion for direction of a verdict, both of which were grounded upon the alleged contributory negligence of the plaintiff. Nor can we say that the verdict was contrary to the great weight of the evidence.

We cannot say that the verdict of $1,000 was excessive. The damage done to the truck seems to have made it a complete and total wreck. It was never used after the accident and was not worth more than $20 for junk. It had been bought in March, 1924, for $1,000. It was remodeled at a cost of $500 and a body was built for laundry purposes costing $450, so that the total cost of the car to plaintiff was $1,950. This uncontradicted evidence seems to justify the verdict.

The rule will be discharged.


author: Pee Cuexam.

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    GIZELLA FEINER v. BENJAMIN W. WARNER, SAMUEL WARNER AND PHILIP WARNER.
    Decided November 12, 1926.
    Assault and Battery—Plaintiff, Former Employe of One of Defendants, Alleged Assault When She Demanded Her Pay-Claim That Action was Several, Not Joint, Against the Defendants Not Sustained—Not Error to Refuse Nonsuit— Verdict Not Against Weight of Evidence.
    On rule for new trial.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Durand, Ivins & Carton.

      Contra, Isaiah Matlock.

   Pee Cuexam.

Plaintiff contracted with the defendant Benjamin W. Warner to serve as cook, for the season, at his hotel in Asbury Park. After serving about a month of the tejm she was either discharged or voluntarily left her employment, and made a demand.upon her employer for payment for her services, which demand seems not to have been complied with. The day following the first demand, at about one E. m., plaintiff asserts she again went to her employer, Benjamin W. Warner, and asked for payment. He was at that time seated on the porch of the hotel, reading. He declined to pay her and she says kicked her in the stomach, causing her to fall to the floor of the porch, immediately following which the defendant Samuel Warner, a son of the proprietor, Benjamin W. Warner, together with a bell boy, dragged plaintiff by her hair across the porch and the floor of the office of the hotel into an adjoining room, causing her head to strike against an iron bedstead. While lying on the floor in this room, she says, the defendant Philip Warner, a nephew of the proprietor, Benjamin W. Warner, called her a vile name and kicked her several times.

Some time thereafter Philip Warner telephoned the hospital and was advised that no ambulance was available, .and he thereupon telephoned police headquarters and requested that the police remove the plaintiff from the hotel. Two police officers, who responded, found plaintiff lying on the floor, either hysterical or delirious. She was taken to police headquarters and placed on a cot in the detention room. She was there examined by a physician, at the request of the police department, who expressed his' opinion that she was hysterical only. She was left in the detention room until the next morning, when- her condition was such that she was removed to a hospital, where she remained three weeks, and it was found that she had a fracture of the skull, extending into the ear, and was bruised about the hips, abdomen and legs.

Plaintiff has a verdict for $3,500, and defendants have this rifle seeking to set it aside, assigning seven reasons.

These may he considered under two heads:

First—Because the right of action, if any, is several, and not joint, and separate suits should have been brought or separate verdicts should have been returned.

This ground is urged under a refusal to nonsuit and exception taken to the following portion of the trial court’s charge: “If all of them, in your judgment, under the evidence, participated in such assault or aided and abetted in an assault, all of them would be jointly and severally liable under the law.”

It was not error to refuse to nonsuit, and the trial court very properly submitted this question to the jury, and the instruction complained of was correct in law. Allen v. Craig, 13 N. J. L. 294.

Second—Because the verdict is against the weight of the evidence.

We do not find this to be so.

The rule to show cause is therefore discharged, with costs.


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    CATHERINE RUSSICK, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOHN RUSSICK, DECEASED, v. ATLANTIC CITY RAILROAD COMPANY.
    Decided November 12, 1926.
    Negligence—Death Resulting From Grade Crossing Accident— Alleged Failure to Give Proper Notice of Approaching Train —Held, Verdict For Plaintiff is Against Clear Weight of Evidence.
    On rule for new trial.
    Before Gummeke, Chiee Justice, and Justices Kalisch and Campbell.
    Por the rule, Floyd U. Bradley.

      Contra, Albert 8. Woodruff.

   Per Curiam.

Plaintiff’s intestate was killed on October 10th, 1924, at a grade crossing of the defendant company, known as Davis road, which crossing was protected by a crossing bell. Plaintiff charged the defendant with negligence in that it failed to give notice of the approach of its train by such crossing bell, and also in that it failed to give either of the warnings, by bell or whistle, required by the statute. Plaintiff has a verdict for $5,000, and defendant has this rule seeking to set aside this verdict. Of the grounds or reasons urged under the rule, only one need be considered, and that is that the verdict is against the weight of the evidence. ■ Our consideration of the proofs has brought us to the conclusion that the verdict is against the clear weight of the evidence, upon the question of the negligence charged, and the rule to show cause is therefore made absolute and a venire de novo awarded.


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    ROBERT KOPLOW AND JACOB SCHOMER v. JOHN HICZWA.
    Decided November 12, 1926.
    Negligence—Collision Between Taxicab and Jitney Bus—Injury to Taxi Driver and His Passenger—Verdict For Defendant, Bus Owner, Set Aside on Ground That Evidence was Convincing That Collision Resulted From Negligent Driving of Bus, and Whether There was Contributory Negligence or Not, Passenger in Cab Had Right of Compensation Against Defendant.
    On plaintiffs’ rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalis ci-i and Campbell.
    Eor the rule, Weinberger & Weinberger.

    (The defendant was not represented by counsel at the argument.)
   Per Curiam.

The plaintiff Koplow was the owner of a taxicab. Schomer, the other plaintiff, was a passenger in it. While the cab was proceeding along a highway in the city of Passaic, known as Myrtle avenue, in a northerly direction, a jitney bus operated by the defendant collided with the cab at the corner of Myrtle avenue and Monroe street. The bus was traveling east on Monroe street. The collision resulted in the practical demolition of the cab and personal injury to each of the plaintiffs. The trial resulted in a verdict in favor of the defendant and against the plaintiffs.

Our examination and consideration of the evidence satisfies us that the proofs greatly preponderate in favor of the conclusion that the collision resulted solely from the negligent driving of the. jitney bus by the defendant.

Even if the jury had considered that the collision was the result of the joint negligence of the two drivers, that was no reason for refusing Schomer, the passenger in the taxicab, compensation from the defendant.

In our opinion, the verdict is so clearly in disregard of the evidence that the rule to show cause should be made absolute.


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    JOHN ERICKSON v. LEHIGH VALLEY RAILROAD COMPANY.
    Decided November 12, 1926.
    Employers’ Liability—Federal Statute—Injury to Railroad Employe—Held, Under Facts as Presented, Case was Properly Submitted to Jury—Under Federal Statute, Negligence of Fellow-Employe is Not a Bar to Plaintiff’s Right to Recover From Common Employer—Under Federal Statute, Employe Does Not Assume Risks That Arise Solely Out of the Acts of Fellow-Servants.
    On appeal from the Hudson Common Pleas.

      Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    For the-appellant, Collins & Corbin.

    For the respondent, Alexander Simpson.

   Pee Cueiam.

This action was brought by the plaintiff to recover compensation from the Lehigh Valley Railroad Company for injuries sustained by him while engaged in its service as one of its employes. It is admitted that, if liability exists, the suit is properly brought under the Federal Employers’ Liability act. The trial resulted in a verdict in favor of the plaintiff, and the defendant company has appealed from the judgment entered thereon.

The plaintiff was employed as an assistant to one Larkin to operate, at night, a crane used for coaling engines. The doing of this work necessitated the moving of the crane upon the tracks, from place to place, quite frequently. The plaintiff, while engaged in his work on the night of January 14th, 1935, left the crane for a few minutes for the purpose of getting a can of water, and there was proof that Larkin, who was then in charge of the crane, knew of this fact. On plaintiff’s return, and as he was attempting to get upon the crane, Larkin suddenly moved it backward, without warning, thereby throwing the plaintiff to the ground and causing the injuries for which he sued.

The only ground upon which we are asked to reverse the judgment under review is that the trial court erroneously refused to direct a verdict for the defendant. The motion for such direction was rested upon two grounds—first, that there was no evidence of negligence chargeable to the defendant, or that such negligence was the proximate cause of the accident; and, second, that the plaintiff assumed the risk of the injury which resulted from the accident. We think the refusal to direct a verdict was proper.

Under the facts stated, it was a question for the jury to determine whether Larkin, the defendant’s employe, knew of the plaintiff’s leaving the crane and his purpose in doing so. If the jury so found, it would have become its duty to determine whether, having such knowledge, Larkin used due care for the plaintiff’s safety in moving the crane without any warning to him, and without ascertaining whether he had returned or whether the moving of the crane would place him in jeopardy. It is argued in support of this first suggestion, advanced by the appellant, that as the crane was not equipped with a bell or a whistle, and that this fact was known to the plaintiff, Larkin was absolved from the duty of looking out for the return of the plaintiff or of using care to avoid injuring him. We are not impressed with this suggestion. The fact that the crane lacked this equipment was no justification for Larkin’s moving it without warning the plaintiff of his intention to do so, if he had reason to expect that, by such act, he would put the plaintiff in jeopardy. If, upon a consideration by the jury of the questions to which we have referred, that body should have determined that the accident happened solely through the negligence of Larkin, that negligence would be chargeable to the defendant company; for, under the federal statute, the negligence of a fellow-employe is no bar to the plaintiff’s right to recover against the common master.

As to the claim that the plaintiff assumed the risks: We consider this contention also to be without substance. An employe assumes the risks which are incident to the work in which he is engaged; but, under the federal statute, he does not assume risks that arise solely out of the negligent acts of fellow-servants.

Our conclusion is that the judgment under review should be affirmed.


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    ETHEL M. VICTORY AND ABE J. DAVID, TRUSTEES, v. UNION COUNTY TRUST COMPANY, EXECUTOR, ETC.
    Decided November 12, 1926.
    Contracts—Contract For Support of Child Upon Sepáration of Parents—Father, Maker of Contract, Dies—Held, That Contract Implied the Continued Existence of Both Father and Mother, That Death Terminated Contract, and no Obligation was Imposed Upon Father’s Executors.
    On appeal from the Union Common Pleas.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellants, Abe J. David.

    For the respondent, Robert H. McAdams,
   Pee Cueiam.

This suit' was brought by Mrs. Victory and Abe J. David, • trustees, for the benefit of the former’s daughter, Alice, against the executor of the last will'and testament of Andrew Victory, who was at one time the husband of Mrs. Victory. The husband and wife separated prior to the 21st day of March, 1922, and on the date mentioned they entered into an agreement, together with Mr. Abe J. David, as trustee, which, after reciting the separation and providing that the mother should have the custody and control of the daughter, then further provided: “That the party of the first part [that is, the husband] will pay to the party of the.second part [that is, Mr. David], as trustee of the party of the third part [namely, Mrs. Victory], the sum of $35 each two weeks for the support, education and maintenance- of the child until the latter shall become of the age of twenty-one years.” The agreement also declared that the custody and control of the infant child by its mother was subject to the payments therein provided for, “and conditioned ppon the party of the first part being permitted to visit said child or have the custody of said child one day in every two weeks;” and, further, that “if the said infant child for any reason should cease to remain in the custody of the mother, then the aforesaid payments of $35 every two weeks shall terminate and cease.”

About two years after the making of this agreement Andrew Victory died, and this present suit is brought against the executor of his estate to compel it to continue the payment of $35 each two weeks until the daughter reaches the age of twenty-one years.

When the case came on to be tried, the facts above recited were all conceded, and thereupon the trial court directed a judgment of nonsuit against the plaintiffs, and from that judgment the latter have appealed.

The theory upon which the trial court directed a nonsuit was that, by the terms of this contract, the obligation to make the payments provided therein ceased upon the death of the husband. The contention of the appellants before us is that this construction put upon the instrument was erroneous, and that the obligation to make the payments rested upon the executor of the deceased husband after his death, and did not terminate until the daughter reached the age of twenty-one.

We consider that the view of the trial court is the correct one; that is, that it is apparent from the wording of the contract that it was based upon the implied condition of the continued existence of both the father and mother of the girl; that is, death terminated the contract, and, consequently, left no obligation on the part of the executors of his estate to continue its performance. The instrument contained mutual obligations, one of which was that the father should be permitted to visit or have the custody of the daughter at stated intervals during the running of the contract, and his obligation to make the payments called for by the contract was conditioned upon his enjoyment of that right. Clearly, this provision contemplated the continued existence of the father during the minority of the daughter. So, too, the provision that, if for any reason the daughter should cease to remain in the custody of the mother, the obligation of the father to make further payments should cease, is a plain indication that the parties to the contract contemplated that the obligations imposed by it should cease upon the death of the mother. The rule is settled that where the performance of a contract is intended to depend upon the continued existence of the parties to it, and its performance becomes impossible by reason of the death of one of the parties, it is an implied condition that such death shall dissolve the obligation created by the instrument.

We conclude, therefore, that the judgment under review should be affirmed.


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    SAMUEL H. KELLEY v. BESSIE CRAILSHEIMER.
    Decided November 12, 1926.
    Contracts—Commission For Procurement of Funds to be Secured by Mortgage—Contract was For Single Mortgage—This was Procured—Defendant Then Alleged That the Understanding was That There Were to be Two Mortgages—Held, That Contract was Explicit and Its Terms Cannot be Varied by Parole.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalis ch and Campbell.
    Eor the rule, John C. Beeá.

    Contra, Carlton Godfrey and William I. Garrison.

   Per Curiam.

The plaintiff, a real, estate and loan broker doing business in Atlantic City, brought this action to recover damages for the breach of a contract entered into between himself and the defendant, one Bessie Orailsheimer, and, on the trial, a verdict was directed in his favor. The latter is the owner of the Lenox apartments, in Atlantic City. The undisputed proofs are that she desired to borrow the sum of $100,000 upon this property, and that she entered into an agreement with the plaintiff looking to the accomplishment of this purpose, the pertinent part of which is as follows: “The undersigned desires to borrow $100,000 for the period of a year, and hereby authorizes Samuel H. Kelley to sell a bond and mortgage of the amount of $100,000, Building and Loan, A. 0. B. and Loan for said amount, and allow and pay Samuel II. Kelley a commission of two per cent, on the amount of said bond for services rendered in effecting the sale, mortgaging as security for said loan the property herein described.” Then follows a description of the Lenox apartments. The’ building and loan association referred to in this contract is conceded to be the Atlantic City Building and Loan Association. The plaintiff, in the performance of the obligation imposed upon him by the contract, applied to this association to make a loan to the defendant of the amount of $100,000, to be secured on the Lenox apartments, and the association agreed to do this, subject to certain provisions of its by-laws and charter, and, for the purpose of carrying out its agreement, the association submitted to the defendant a written application to it for a loan of the $100,000 upon the terms on which it had offered to make it, and the defendant signed the same. She afterward refused to accept the loan, stating as a reason therefor that what she really wanted was two mortgage loans, one for $40,000 on a building and loan mortgage and the other for $60,000 on a straight mortgage, and that the plaintiff understood this when he was employed by her as her broker. The reason for her refusal to accept the loan constitutes no bar for the plaintiff’s right to recover the compensation provided by his contract. By that instrument the plaintiff was authorized to negotiate for a loan of $100,000, to be secured by a single bond and mortgage, and she cannot vary the provisions of that contract or avoid the obligation imposed upon it by her claim that the plaintiff was to acquire for her two separate loans upon the property.

This was the view of the respective rights and' obligations of the parties which was held by the trial court, and led the court to direct a verdict in favor of the plaintiff for the amount of his commission.

For the reason indicated, we consider that the direction was proper, and that the rule to show cause should be discharged.


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    ROBERT REALTY COMPANY, RELATOR, v. CITY OF ORANGE ET AL., RESPONDENTS.
    Decided November 12, 1926.
    Zoning—Apartment-Houses in Restricted Territory in Which Restrictions Refer as Well to Height of Building and to Amount of Remaining Open Space—Held, That There Appears Nothing in the Case That Justifies the Assumption That the Ordinance is Necessary For the Protection of Health, Safety or Welfare—Peremptory Writ of Mandamus Allowed.
    On rule for mandamus.

    Before Justices Parker, Black and Campbell.
    For the relator, Frederic W. Schlosstein.

    For the respondents, William A. Calhoun and Spaulding Frazer.

   Per Curiam.

On January 6th, 1926, relator applied to the building and plumbing inspector of the city of Orange for permits to erect three four-story brick apartment-houses on the corner of Lincoln and Monntainview avenues. The permits were refused because the zoning ordinance of the city “forbids the erection of apartment-houses on the area of the premises owned by relator.” So appears by the agreed state of facts, which further sets forth: “The only reason for the refusal of the permits was the fact that the area was zoned against, and for no other reason.”

Eespondents, in their brief, urge two reasons why the permits should not be issued.

The first is that the zoning ordinance of the city prohibits buildings exceeding two and one-half stories in height, whereas the contemplated structures will be four stories in height; and second, because the zoning ordinance requires a rear yard for a two and one-half story building of at least twenty-five feet, and this amount is increased by six inches for each foot of lot in excess of seventy-five feet measured from the main front wall of the building. So, that if the Lincoln avenue side of the corner building be considered as the front, this building would have a rear yard of twenty-one and five-tenths (21 5/10) feet, while the ordinance calls for one of thirty-nine and six-tenths (39 6/10) feet; and, if Mountainview avenue be regarded as the front, the rear yard for this building is only fifteen (15) feet,, where a rear yard of twenty-five (25) feet would be required. That if the spaces as proposed between the buildings are to be considered as side yards, the ordinance provision would be further violated, for the reason that between the Lincoln avenue buildings there is a space of fifteen (15) feet, while buildings such as proposed, being at least forty (40) feet in height, would require side yards of at least twenty (20) feet. The second building on Lincoln avenue is only four and five-tenths (4 5/10) feet from the property line where the minimum side yard required by the ordinance would be fifteen (15) feet, and the easterly side yard of the second Mountainview avenue building is only seventeen and seven one-hundredths (If f/100) feet, when at least twenty (20) feet would be required by the ordinance.

The ordinance also provides that “no part of any building shall be higher than the distance it sets back from the street line of each street on which it faces, except that along one side of a comer lot such set-back distance may.be reduced by ten (10) feet.

There is absolutely nothing in the case as it is before us showing that these restrictions are called for or necessary to protect the public health and safety, or advance the public welfare. Giving to the restrictions that presumption of reasonableness that in law is required, such presumption • is Completely overcome by the conclusion that one is inevitably brought to by a reading- of these provisions of the ordinance, that they are designed to prohibit and make impossible the construction, in the designated area, of apartment-houses. In fact, nothing but “a dwelling for one family or for one housekeeping unit only” is the limitation contained in subdivision 1 of section 2 (a) of residence A district in which relator’s property is located.

Such ordinances have met with the emphatic disapproval of this court, and similar provisions have been declared illegal and not a valid exercise of the police power. Heller v. South Orange, 3 N. J. Mis. R. 1076.

We are not here called upon to decide, nor are we attempting to pass, upon the question of regulation of areas and open spaces nor heights of buildings. In proper cases reasonable and proper regulations to protect the public health and promote safety would be a reasonable and proper exercise of the police power, but as before stated, we do not find such a situation presented by the terms of the ordinance in question. Its terms are prohibitory rather than regulatory.

The peremptory writ of mandamus prayed' for is allowed.