author: Trenchard, J.

text:
    LUELLA A. PRIMMER AND FRANKLIN A. PRIMMER, HER HUSBAND, PLAINTIFFS, v. JULIA A. BALDWIN, CHARLES BALDWIN AND FRANK BALDWIN, DEFENDANTS.
    Argued March 1, 1923
    Decided March 15, 1923.
    Negligence — Motor Vehicles — Injury to Passenger — Liability Extends to Next of Kin — Executors’ Act.
    On motion to strike out complaint.
    For the motion, W. Holt Apgar.

      Contra, Kenneth H. Lanning.

   The opinion of the court was delivered by

Trenchard, J.

The plaintiffs in this action are Luella A. Primmer and Franklin A. Primmer, her husband. Count 1 of the complaint alleges, among other things, that on January 15th, 1931, plaintiffs, at the request of Henry W. Baldwin, were riding as passengers in an automobile driven by him; that the automobile was s.o negligently operated by Baldwin that it collided with another automobile, injuring the plaintiff Luella A. Primmer. She claims damages on this count. Count 3 repeats the same allegations and adds, among other things, that by reason thereof the plaintiff Franklin A. Primmer was obliged to pay out money to have his wife cured of such injuries, and has been deprived of the services and society of, and consort with, his wife. He claims damages on this count.

Clearly, these allegations would be sufficient to support an action against Henry W. Baldwin if he were alive and named as defendant. The complaint alleges, however, that he is dead. At common law the action would abate by reason of such death. But the Executors’ act of 1855 (Comp. Stat., p. 2360, ¶ 5) modifies the common law. It provides:

“That where any testator or intestate shall in his or her lifetime * * * have committed any trespass to the person or property, real or personal, of any person or persons, such person or persons, his or her executors or administrators, shall have and maintain the same action against the executors or administrators of such testator or intestate as he, she or they might have had or maintained against such testator or intestate, and shall have the lilce remedy and process for the damages recovered in such actions-as are now had and allowed in other actions against executors or administrators.”

By reason of this statute, the right of action against any person who has committed a trespass survives against such person’s executors or administrators. It has been held that the word “trespass,” as there used, means “tort,” and that the statute is remedial and should be liberally construed. Hackensack Trust Co. v. Vanden Berg, 88 N. J. L. 518. In that case the action was brought by the administrator of a person alleged to have been killed by wrongful act against the administratrix of the deceased tort-feasor. The Supreme Court held that under the Death act of 1848 the right of action survived in favor of the personal representative of the person whose death was caused' by wrongful act, and that, under the Executors’ act of 1855, it survived against the personal representative of the deceased tort-feasor. See, also, Ten Eyck v. Runk, 31 Id. 428; Tichenor v. Hayes, 41 Id. 193; Dodd v. Wilkinson, 41 N. J. Eq. 566.

This action is not for death but only for personal injuries. The Death act is therefore not involved. But, by virtue of the Executors’ act, the plaintiff’s right of action survives against Baldwin’s personal representative and an action might have been'had against such personal representative.

The defendants named in this action, however, are not Baldwin’s personal representative, but instead his heirs .and next of kin. Out of this fact arise the issues raised by the motion. The reasons assigned in the notice of the motion (while by implication conceding that the action might survive against the personal representative) make objection that it does not survive against the heirs and next of kin of the deceased tort-feasor, and this is the only question argued.

I am of the opinion that this objection is not well founded because, the executors’ statute above quoted causes the right of action to survive against the estate of the deceased tortfeasor, and that being so, it follows as a necessary consequence that his estate may be followed, as in the case of ordinary debts, not only into the hands of his personal representative, but, after distribution, into the hands of his distributees or next of kin.

In Hackensack Trust Co. v. Van Den Berg, 92 N. J. L. 412, the Court of Errors and Appeals expressly held that a plaintiff in a “suit based on an unliquidated demand in tort” is .a creditor within the meaning of the provisions of the Orphans Court act relating to decrees barring creditors. Comp. Stat., p. 3833. The court said (at p. 413): “* *' * we conclude that the word ‘creditor’ is not used in the restricted sense of one to whom a debt is due, but includes a party entitled to prosecute a suit upon a tort * *

In McCartin v. Traphagen, 43 N. J. Eq. 323, this very question was under consideration. The bill alleged misconduct by a deceased executor. Among those named as defendants were the personal representative of the deceased executor and also his heirs-at-law. It was objected that the heirs-at-law were not proper parties. The court overruled the objection, saying (at pp. 325, 326): “And it is also well settled that an action may be maintained against the legal representative of a-decedent, whether he died testate or intestate, to recover damages arising from a violation of the decedent’s legal duty, or a breach of trust. * * * And it would seem to follow, as á necessary deduction from'the right of action thus established, that any claim which may be made the basis of a recovery against the legal representative of a decedent will also be siéffvcieni, as a ground of action, to support a recovery against his heir-at-law.”

So, in this case, the plaintiffs, since they had a right of action against Baldwin which, by reason of the statute, survives against his estate, are entitled to enforce their claim against his estate either in the hands of the personal representative or the distributees. The allegations of the complaint upon the basis of which it is sought to charge the distributees are as follows: “8. On January 15th, 1921, said Henry W. Baldwin died intestate, leaving as his only heirs and next of kin * * *, the persons who are the defendants in this action.” “9. * * * Charles Baldwin was duly appointed administrator * * “10. Said * * * administrator * * * filed * * * an inventory * * * by which it appeared that personal property of said Henry W. Baldwin, deceased, to the amount of $25,549.75 had come into his possession as such administrator.” “11. Personal property of said Henry W. Baldwin, deceased, to the value of $25,549.75 *. * ? came into the possession of said administrator.” “12. Other personal property of said Henry W. Baldwin, deceased, not disclosed in said inventory, came into the possession of said adminstrator.” “13. Said administrator did not pay said plaintiff’s damages * * “14. Said administrator has distributed the assets of the estate of said Henry W. Baldwin which came into his-possession as such a’dministrator, to the next of kin in the manner prescribed by law, to wit,” one-third thereof to each of the three persons named as defendants in this action. “15. None of said defendants have executed refunding bonds to said administrator.” That is to say, it appears by the allegations of the complaint that the plaintiffs are creditors of the estate of Henry W. Baldwin; that their claims have not been paid and that the assets of the estate, to the extent of $25,549.75 and more, have been distributed to the three persons named as defendants in equal shares. The complaint then alleges the liability of the defendants severally for their one-third ratable parts of plaintiffs’ damages.'

Such liability is well recognized even when, as in this ease, no refunding bonds have been given. In McCartin v. Traphagen, already cited, it was said: “The proofs show that $10,-000 of his personal estate has been distributed to each of his children, and that a comparatively small amount remains in the hands of his administrator. Personal estate is the primary fund out of which the debts and liabilities of a decedent must be discharged. The rule is settled that a legatee who has received his legacy is always bound, at the instance of creditors, to refund his legacy, if there is a deficiency of assets to pay debts, whether the deficiency arises from an original want of assets or the waste of the executor. This liability flows from the superior right of creditors and does not at all rest upon contract. The legatee is liable whether he has given a refunding bond or not. It is an obvious rule of justice that neither a legatee nor one of the next of kin shall be entitled to anything until the obligations and liabilities of the person through whom they derive their rights have been paid.”

Since the objection to the complaint is not well founded, the motion to strike it out will be denied.


source: Caselaw Access Project

author: Kalisch, J.

license: Public Domain

text:
    STATE OF NEW JERSEY, NORMAN GASKILL, PROSECUTOR, v. JAMES REILY, DEFENDANT.
    Decided March 19, 1923.
    Motor Vehicles — Review of Conviction by Justice of Supreme Court.
    On petition of defendant to set aside his conviction of a violation of section 14, subdivision 3 of the Motor Vehicle act, chapter 208 of the laws of 1921.
    Before Mr. Justice Kalisch.
    For the petitioner, James Mercer Davis and Charles M. Atkinson.

    For the state, Herbert S. Killie.

   The opinion of the court was delivered by

Kalisch, J.

This matter comes before me by virtue of section 35 of the Motor Vehicle act of 1921, page 685, which, among other things, provides: “That it shall be lawful for the justice of the Supreme 'Court holding the circuit in each of the counties of this state, upon application made to him by a verified petition for that purpose by any person against whom a judgment or sentence for the violation of any of the provisions of this act shall have been rendered, who may desire to have the legality of his conviction reviewed or the reasonableness of the sentence or penalty imposed, to order the said complaint, process, proceedings, evidence and record of conviction to be forthwith brought before him, that the legality of such proceedings and sentence or judgment, or the reasonableness of the sentence or penalty may be summarily reviewed and determined; and if such proceedings and sentence of judgment shall thereupon be found to be illegal, or the sentence or penalty be unreasonable, forthwith to set aside the same and to order the remission or reduction of any fine and costs that may have been imposed or the discharge of any offender from custody.”

The defendant was convicted by Joseph C. Kingdom, recorder of Mount Holly, on March 1st, 1923, of a'violation of subdivision 3 of section 14 of the Motor Vehicle act, in that the defendant on the night of February 28th, 1923, while in a state of intoxication operated an automobile on a public street in Mount Holly, in the county of Burlington. This subdivision of section 14, in substance, provides that a person who shall operate a motor vehicle while under the influence of intoxicating liquor shall upon conviction thereof be punished by an imprisonment of not less than thirty days and not more than six months. In the present case the defendant was sentenced to imprisonment in the common jail of Burlington county for ninety days.

The main objection urged against the validity of the proceedings is that the record of conviction does not exhibit jurisdiction facts, namely, in that it does not show that there was a warrant issued upon a verified complaint, nor that the defendant was brought into court and arraigned before the recorder and pleaded to the charge.

■ This objection appears to me to be without any merit.

Section 35 of the act requires the complaint, process, proceedings, evidence and record of conviction to be brought before the reviewing justice. This has been done here. There was a duly verified complaint setting forth the facts constituting a violation by the defendant of subdivision 3 of section 14 of the Motor Vehicle act. This was followed by a warrant of arrest which contained the charge of violation as set out in the complaint, and which contains the endorsement of the police officer, to whom the warrant was given to execute, to the effect that he returned the same with defendant in custody on March 1st, 1923; then follows the record of conviction of the same date setting forth the conviction of the defendant by the recorder and the testimony of witnesses duly sworn upon which such conviction was had, followed by a statement, as follows: “The defendant did not offer any testimony.” Then follows his conviction by the recorder of the offence as charged in the complaint and supported by the testimony and his commitment to the county jail for ninety days. The statute clearly contemplates that the complaint, process, proceedings, evidence and record of conviction shall constitute the record, and, as I view the matter, if they are regular and in accordance with legal requirements makes it unnecessary that their contents shall again be' recited in the conviction and commitment. The document entitled “Conviction and Commitment” does recite the making of the complaint by the prosecutor of the violation of subdivision 3 of section 14 of the Motor Vehicle act and sets out the names of the witnesses and their testimony. It is true that it does not set out that a warrant was issued upon the complaint nor that the defendant pleaded to the charge.

But this was not essential in the present case to the validity of the proceedings, since the presence of the defendant in custody appears, by the warrant itself and the return made thereon by the officer, who made the arrest, supplemented by the recorder’s reciting in the record of conviction at the conclusion of the testimony of the prosecutor’s .witnesses, that the defendant offered no testimony.

The statute which permits this review has established a corrrse of procedure the validity of which cannot be successfully challenged because it is not in conformity with the common law in summary proceedings. The statute authorizes the justice of the Supreme Court to review the legality of the conviction or the reasonableness of the sentence or penalty imposed, and this the justice is to determine solely from the complaint, process, proceedings, evidence and record of conviction which are brought before him. ■

Prom this I conclude that all these taken together shall constitute the record, and if they do all that was requisite to constitute a valid conviction appears, namely, jurisdiction in the recorder; the process whereby the defendant was brought before the court; the defendant’s appearance, the evidence presented, the adjudication and judgment. See Preusser v. Case, 54 N. J. L. 532, and cases there cited. It must be observed, however, that the procedure in the present case is pointed out by statute, whereas in the case cited the procedure was governed by the common law.

The order to discharge the defendant from custody must therefore be refused. I think, however, that under the evidence the penalty inflicted is in excess of what was warranted, and hence the penalty is reduced from ninety days to sixty days. An order to this effect is granted.


author: Per Curiam.

text:
    THE ACQUACKANONK WATER COMPANY, PLAINTIFF-APPELLANT, v. NATIONAL SILK DYEING COMPANY, DEFENDANT-RESPONDENT.
    Argued November 9 and 10, 1922
    Decided March 13, 1923.
    On appeal from the Passaic Circuit Court.
    Before Justices Kalisch, Black and Katzenbach.
    For the appellant, Humphreys & Sumner, and William B. Gourley.

    For the respondent, Griggs & Harding, and William I. Lewis.

   Per Curiam.

The judgments in these cases, No. 25, The Acquaekanonk Water Co-, v. National Silk Dyeing Co., No. 26, The Mayor and Aldermen of the City of Jersey City v. National Silk Dyeing Co., and No. 28, The Mayor and Aldermen of the City of Jersey City v. The Weidmann Silk Dyeing Co., -will he affirmed, for the reasons expre:?sed in the opinion of No. 27, The Acquaekanonk Water Co. v. Weidmann Silk Dyeing Co.

The judgments in the Passaic Circuit Court are affirmed.


text:
    SAMUEL P. WATSON, APPELLANT, v. THE MERCHANTS AND MANUFACTURERS BANK, RESPONDENT.
    Decided March 16, 1923.
    Checks — Certified at Request of Maker — Payment Stopped— Bank Must Respect Notice.
    Before Justices Beegen and Mintubn.
    For the appellant, Bernard H. McGovern.

    For the respondent, Biker & Biker.

   Per Curiam.

The maker of a check caused it to be certified by defendant bank and then endorsed it to one Tabb, who deposited it in his bank, which sent it to the defendant bank for collection. It was paid, although the maker had prior to payment notified defendant not to pay. The maker demanded payment from defendant and, on refusal, assigned the claim to plaintiff, who brought suit to recover the amount of the check, in which action judgment was for defendant and plaintiff appeals. The only question argued is whether the defendant had the right to pay the check after stop-notice.

The law seems to be settled, in Automobile Co. v. Rutherford Bank, 77 N. J. L. 649, that when a check is certified at request of the maker he is not discharged thereby and may stop payment, and the bank must respect such notice, and that both it and the drawer may set up that the check was fraudulently procured, but could not if certified by holder’s request. The case referred to governs this case and requires a reversal.


text:
    EDWARD KNOTHE AND FANNY KNOTHE, PLAINTIFFS, v. HARRIS BROTHERS COMPANY, ALSO DOING BUSINESS AS HARRIS TRADING COMPANY, AND NEW YORK CENTRAL RAILROAD COMPANY AND DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, DEFENDANTS.
    Submitted December 8, 1922
    Decided February 28, 1923.
    Contracts — Goods Bought not According to Agreement— Counter-Claim of Railroad Co.
    On rules to show 'cause why verdicts should not be set aside.
    Before Gummere, Chief Justice, and Justices Swayze, and Trenchard.
    For the rule of Harris Brothers Company, Mackay & Mackay.

    For the rule of New York Central Railroad Company, Wall, Haight, Carey & Hartpence.

    Contra, James H. Bolitho.

   Per Curiam.

The plaintiff Fanny Knothe sent an order to defendant Harris Brothers Company at Camp Merritt for eight thousand five hundred square feet of plaster board of which she had received a sample; four thousand five hundred square feet was for the plaintiff Fanny Knothe and four thousand square feet was for one Max Eosen, not a party plaintiff. The order was to be filled, and the price agreed upon was f. o. b. Camp Merritt. The plaintiff claims that when the goods were received at Dover they were defective. The plaintiff meanwhile having paid for them, and the goods having been sent back by her brother, she sued for the moneys which she had paid out and for damages sustained. In her complaint she added a count against the New York Central Railroad Company alleging that the goods had been damaged through the negligence of the railroad company. The railroad company made a general denial of the plaintiff’s claim, and counterclaimed for their charges in sending the goods back to Camp Merritt.

The court directed a nonsuit as to the plaintiffs against the railroad company. The jury rendered a general verdict in favor of the plaintiff Eanny Knothe against defendant Harris Brothers Company for $315.88, and also rendered a verdict of no cause of action in favor of plaintiff Fanny, Knothe and against the railroad company on the counter-claim of the railroad company.

The railroad company has a rule to show cause why the verdict against it on its counter-claim should not be set aside.

Harris Brothers Company have a rule to show cause why the verdict against them for $315.88 should not be set aside.

We think the verdict against Harris Brothers Company must be set aside because it is contrary to the charge of the court. Under the charge she could not recover more than $135 and interest. That the court said expressly. The rule obtained by Harris Brothers Company will be made absolute.

We think also that the verdict against the railroad company on its counter-claim must be set aside. There the question turns upon whether the shipment of the goods back over the railroad was made by the plaintiff Fanny Knothe. The evidence is that she sent her brother to the station to get the goods and he, seeing, as it is claimed, that the goods were not according to sample and were defective, ordered them shipped back; and there seems to be no question at all but that the plaintiff acquiesced in what her brother did. Her admissions, her letters and her testimony at the trial, we think, demonstrate conclusively that her brother was acting for her with her acquiescence at the time, and, moreover, that she ratified his act. It is therefore clear that the verdict against the railroad company on the counter-claim was against the weight of the evidence, and the rule of the railroad company will be made absolute.


text:
    EMMA C. BEUTEL ET UX. v. AXEL FALKENSTROM AND BAYUK BROTHERS COMPANY, INCORPORATED.
    Decided February 28, 1923.
    Negligence — Liability for Injury to Passengers in Jitney— Collision.
    On rule to show cause allowed to defendant Bayuk Brothers Company, Incorporated.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the defendant Bayuk Brothers Company, Incorporated, Joseph Coult, Jr..
    For the defendant Axel Falkenstrom, Thomas Brown.

    For the plaintiff, Robert Carey.

   Per Curiam.

This action was brought by Emma C. Beutel and her husband to recover compensation for injuries received by the wife while riding in a jitney bus belonging to Falkenstrom on the road from Metuchen to Perth Amboy. The injuries were the direct .result of a collision between the jitney bus and a motor truck of Bayuk Brothers Company, and the plaintiffs’ claim was based upon the averment 'that this collision resulted from the joint negligence of the driver of the jitney and of the driver of the motor truck, or the negligence of one or the other of them. The defendant Bayuk Brothers Company filed an answer denying liability. The defendant Falkenstrom also filed a similar answer, and set up in addition a counter-claim against Bayuk Brothers Company for damage to his jitney bus.

The trial resulted in k finding by the jury that the accident was the result of the negligence, of the driver of the truck and was not contributed to by any negligence on the part of the driver of the jitney. So finding, they assessed damages in favor of Mrs. Beutel for $28,150, and as compensation to her husband, the sum of $5,000. They also found a verdict in favor of Ealkenstrom for $300 on his counter-claim.

We are asked to set aside each one of these findings upon the ground that they are contrary to the weight of the evidence. We are also asked to reverse the verdicts in fayor of Mrs. Beutel and her husband upon the ground that each of them is excessive.

Taking up the first ground argued by counsel for Bayuk Brothers Company. Our examination of the testimony sent up with the rule satisfies us that the claim of the plaintiffs that the collision was the result, partly at least, of'the negligence of the driver of Bayuk Brothers Company’s truck was supported by a preponderance of the evidence. This being so, her right of recovery against that defendant was clear, and was not at all affected by the fact (if it was a fact) that the collision was to some extent the result of the carelessness of the driver of the jitney bus. Upon the question of the liability of Bayuk Brothers Company for the damage done to the Ealkenstrom jitney, we cannot say that the finding of the jury exonerating the driver of the truck from contributory negligence was contrary to the clear weight of the evidence. We conclude, therefore, that the verdicts now before us cannot be disturbed for the first reason.

Taking up the consideration of the contention that the verdicts in favor of Mrs. Beutel and her husband are excessive. It is not denied that the woman was very seriously injured. A piece of wood, with a metal attached to the end of it, entered her body on the left side of the buttocks, and passed entirely through that portion of her body, coming out on the right side. As a result of the injury, she was confined to her bed for five months: That she suffered great pain constantly during that period, we think, is made clear by the testimony. That she is a cripple for life, we think, is also a conclusion which can be justified by the proofs. Not only are her limbs affected, but her back also, showing injury to the spinal column as well as to the muscular and nervous systems. That the injury to her nervous system was very severe is apparent from the fact that at the time of the trial her hair had turned completely gray. She was at the time of the accident only thirty-one years old and was in good health, and by reason of -the accident, future life has been made a burden to her and her power of enjoyment of that life practically destroyed. Although the award in her favor is a very large one, we are not prepared to say, in view of the woman’s condition, that it is so excessive as to justify our interference.

As to the award to the husband. The proofs showed that the actual expenses incurred by him up1 to the time of the trial exceeded $1,700. ,It was also shown that his wife would thereafter require, from time to time, medical attention. The jury allowed him approximately $3,300, therefore, for future expenses and for the permanent deprivation of his wife’s services and society. Taking into consideration the fact that, as a result of this accident, the joy- of paternity is denied to him, without abnormal risk to the life of his wife, resulting from the accident, and that the pleasures ordinarily accompanying marital relations are practically prohibited to him, we cannot say that this allowance is excessive.

We conclude, therefore, that the rule to show cause should be discharged.


text:
    DOMENICO MAURIELLO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. GUISEPPI SARTEMINO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. LORENZO ROTUNDO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. FRANCISCO FIOISCO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. FELIX ALBANO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. SEBASTIANO ESPOSITO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. SERAPINO EANNI, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. GRAZIA DERVICO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. MICHAEL MESITI, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS. RALPH TOSSO, RESPONDENT-PLAINTIFF, v. FRANK MAZZARO AND SAM CIARDI, APPELLANTS-DEFENDANTS.

      Decided February 28, 1923.
    Contracts — Breach of — Made on Sunday.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiffs, Charles A. Rathbun.

    For the defendants, King & Vogt and James H. Bolitho.

   Per Curiam.

There are ten separate cases brought by1 the plaintiffs against same defendants to recover money had and received, and were all tried together.

The claim of the plaintiffs is that they agreed to purchase grapes from defendants by separate contracts, and paid the money on defendants’ promise to deliver, which was never performed. The defence was that it was a joint enterprise and as there was a loss each must bear a proportionate share. What defendant testified to was that it was proposed to buy a carload of grapes in boxes, and that before doing so each plaintiff made a separate arrangement with defendants to take a certain quantity, to be paid for in advance, and having contracts for different amounts sufficient to make a carload, it was ordered, but defendants refused to accept delivery because the grapes were not of the quality ordered from the seller, and were sold by carrier for freight, leaving a surplus.

The points argued are (a) that the ruling of the court that it would not allow each defendant six challenges was error. No foundation was laid for appeal on this ground. At the opening of the case a question was raised and discussed as to number of challenges, and the court said it would only allow six, not six to each defendant, but no challenges were made and the court was never required to pass on the concrete question; (b) court refused to nonsuit although the money' was paid on Sunday by all the plaintiffs, except two. One plaintiff ordered fifty boxes on Saturday, but'was told he must pay the money and he gave it on Sunday. Another ordered and paid Sunday night. Others ordered or paid, on Sunday, in whole or part, the balance being paid on a week day. They were all Sunday contracts except those with Albano and Tosso, and not subject to ratification. The trial court was wrong when it held that they were not Sunday contracts because the actions were for money had and received. The contracts were made on Sunday, except those of Albano and Tosso, and the money was paid on contracts which the law will not aid to enforce. The next point is error in charge. The plaintiffs brought suit to recover for money had and received and made out their case when they proved the contract and payment. The defendant undertook to meet this proof of a joint enterprise and the court charged that the burden of this" was on defendant. This was not error. The defence was the setting up by defendants of a new contract which they were bound to establish by a preponderance of proof.

“The proof upon both sides applies to the affirmation or negative of one or the same issue or proportion of fact, and the party whose case requires the proof of that fact has all along the burden of proof. It does not shift though the weight in either scale may at times preponderate.” Hughes v. Williams, 229 Mass. 467; 116 N.E. Rep. 914. As the court was in error about the Sunday contracts, all the judgments except those in favor of Albano and Tosso should be reversed and those should be affirmed. Other matters were argued but the error of the trial court on the question of the Sunday law was so injurious to the other defendants that it is not necessary to consider them. The judgments in all the cases except those in favor of Albano and Tosso, which are affirmed, will be reversed.


text:
    RHEINOLD HUENEGARTH v. KASPER KRONES.
    Decided February 28, 1923.
    Negligence — Automobile—Evidence—Rights at Crossing of Street.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trerchard.
    For the rule, Theodore McC. Marsh.

      Contra, Alexander Simpson.

   Per Curiam.

This was an automobile accident case. The plaintiff, who was on foot, attempted to cross Washington street, in the city of Hoboken, at about its intersection with Twelfth street. While making the crossing he was run down and injured by the defendant’s automobile. The verdict of the jury was in his favor and his damages were assessed at $7,000.

The contention of the defendant upon the argument of this rule is that the verdict was contrary .to the clear preponderance of the evidence in three particulars: (1) That the finding of the jury was that the accident was the result of the negligence of the defendant; (2) that its finding was that the accident was not contributed to by the negligence of the plaintiff; and (3) that the finding on the question of damages was greatly in excess of what the evidence warranted.

The plaintiff attempted to cross Washington street from west to east. An automobile was parked along the westerly curb a few feet to the north of where the plaintiff started to make his crossing. He proceeded into the street beyond the point where the parked car interfered with his vision, looked to the north and saw some cars coming, waited for them to pass, and then, after taking a few steps forward, was struck by the defendant’s car, which was running in the same direction as the cars that he first observed. To this extent the testimony on behalf of the plaintiff is uncontradicted. The plaintiff says that he failed to observe the approach of the defendant’s car, although he saw the others and permitted them to pass. He further says that he looked, and that he listened for a signal and heard none. The proof is undisputed that at the time of the accident he was blind in one eye and that the sight of his other eye was somewhat impaired. It is also undisputed that within an hour after the occurrence of the accident he became totally and permanently blind. On these facts, we do not think it can be said that the finding of the jury that the plaintiff acted with the reasonable care that is required of a man under similar conditions was contrary to the weight of the evidence. They might very well have found that his failure to observe the approach of the defendant’s car was the result of his defective eyesight. But it cannot be said that 'a man whose vision is somewhat obscured is guilty of negligence merely because he undertakes to cross a public street at a point where he is justified in assuming that his rights as a foot passenger will be respected by the drivers of automobiles traveling along the highway. Nor can we say that the jury was not justified in finding that the accident was the result of negligence on -the part of the driver of the defendant’s autombile. The law imposed upon him the duty of using due care to observe whether or not people were crossing the street at this point, and to use care to have his car under such control as not to jeopardize the safety of foot passengers who were using due care in crossing. The testimony in the case, we think, justified the jury in finding that such care was not exercised by the driver.

We conclude, therefore, that this verdict cannot be disturbed upon either the one or. the other of these two findings of the wry-

As to the exclusiveness oí the verdict. The principal ground upon which the defendant attacks the award is that the proofs justified the conclusion that the loss of sight of one eye was due to the syphilitic condition of the plaintiff, and that the impaired vision of the other eye was the natural result of that condition, and that this condition was a progressive one and would finally result in the-total blindness of the plaintiff. This may be true; but the jury was fully justified in finding that the total blindness of the plaintiff was produced, not by the diseased condition adverted to, but by the accident itself; and, if we accept the theory of the physicians of the defendant as to the great probability of total blindness resulting from the plaintiff's syphilitic condition, there is nothing by which it could be determined whether that total blindness would result in the near future or after several years; and, this being so, we do not feel justified in saying that the absolute deprivation of sight, resulting, as it did, from this negligent act of the defendant's driver, did not justify the award made by the jury.

The rule to show cause will be discharged.


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    HENRY ZEHNBAUER v. PORTER BUNN.
    Decided February 28, 1923.
    Process — Service—Partnership Property Used by One Partner in His Private Business — Negligence.
    On appeal from the Hudson Common Pleas.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the appellant, Collins & Corbin.

    For the respondent, Thomas F. A. Griffin.

   Per Curiam.

This was an action for personal injuries-. The plaintiff was a passenger in a jitney bus, which was -being propelled along Bergen avenue, in the city of Jersey City. When near an intersecting street known as Union street the jitney stopped to discharge and take on passengers. While standing still a motor truck, which belonged to -the defendant, Bunn, and one Mosher, as partners, ran into the jitney bus and injured the plaintiff. The present suit was brought to recover compensation for injuries received by reason of the collision, and both partners were made defendants. Process was duly served upon Bunn, but service was not obtained upon Mosher, who, at the time of the commencement of the suit, was a nonresident. In this situation, the trial was proceeded with against Bunn alone, and it resulted in a verdict in favor of the plaintiff.

The undisputed proof was that the truck belonged to the partnership-; that at the time of -the accident it was being driven by Mosher, one of the partners; that tire firm business in which the truck was being used had been entirely completed for the day and the truck had been run into the garage some hours before -the accident happened; that Mosher, who had removed his residence from the city of Passaic to Jersey City, afterward went to the garage, and took the truck out for the purpose of going to Passaic, there to, get some of his personal effects, which he had left in his former residence, and transport them to Jersey City; and that while on the trip back from Passaic to Jersey City the collision occurred. These facts were all testified to by Mosher. As we have said, none of them were disputed, and no attempt was made to impeach the credit of the witness. In this situation, we think the court was required to grant the motion to direct a verdict as against the defendant, Bunn; for there was nothing in the case to show that the truck was being used for any partnership purpose or that it was being used for Mosher’s personal affairs with tire consent of Bunn.

The plaintiff, instead of awaiting an opportunity to obtain service on Mosher, and then proceeding against both partners jointly and severally, took the chance of being able to fasten the liability upon Bunn alone, and this he failed to do.

The judgment under review will be reversed.


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    MORRIS MARGOLIS AND HYMAN M. MARGOLIS, PLAINTIFFS-RESPONDENTS, v. MAX PINNAS AND SAM PINNAS, PARTNERS, TRADING AS PINNAS & PINNAS, DEFENDANTS-APPELLANTS.
    Submitted December 8, 1922 —
    Decided February 28, 1923.
    Contracts — False Representations! — Evidence of Fraud by Plaintiff.
    On appeal from the Essex County Circuit Court-.
    Before Gummere, Chief Justice, and Justices Swayze and Teenchard.
    For the appellants, Harry Levin.

    For the respondents, Benjamin M. Weinberg.

   Per Curiam.

This is an appeal from a judgment in favor of the-plaintiffs, entered upon the verdict of a jury at the Essex Circuit, in an action to recover $800, alleged to have been obtained by false representations.

The plaintiffs and one Lachenauer entered into a written contract whereby 'plaintiffs were to purchase certain real estate. Plaintiffs found that they needed $10,000 in cash to carry through the purchase. Plaintiffs’ testimony was that they were induced to enter into a contract to pay, and did pay the defendants $800 by reason of defendants’ fraudulent representations that the $800 which plaintiffs were to pay defendants was to be given by them as a bonus to the person whom they were to induce to furnish the money on a second mortgage, when as a matter of fact, Lachenauer, the vendor, whose agents the defendants were, was willing to and did take the second mortgage without exacting any bonus.

The defence was a denial of fraud, and an insistence that the contract was as it was written, namely, that the $800 was in payment for defendants’ services in getting the mortgage.

The first point (which does not seem to be supported by any proper assignment of error) is that the plaintiff was permitted to testify as to matters covered by the written agreement, and to prove certain oral statements made by the defendants at the time the written contract was made, tending to show fraud.

We think- that since the action was to recover money paid pursuant to- a contract obtained by fraudulent representations, it was open to- the plaintiffs to put in this proof. The rule is, as stated in 2 Jones Evi. 547, that “for the purpose of proving the fraud, verbal statements which are material and fraudulent, although made before or at the time of the written agreement, may be proved.”

The next point argued is that the court erred in refusing to nonsuit. We think not. We think that the evidence of the plaintiff tended to- show that the money was obtained by a false representation that it was to be used for a purpose which it was no-t used for and not intended to be used for. The fact that there was evidence to tire contrary is no reason for a nonsuit.

The next point argued is that the court erroneously permitted the plaintiff to be asked the following question: “Well, in this particular case then, was the word ‘service? put in to cover up- the word bonus?”

That particular question was not answered, and the next question along the same line was answered in the negative, so that we think, if erroneous, it was harmless.

The judgment will be affirmed, with costs.


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    FILOMENA MIGLIACCIO, ADMINISTRATRIX, v. PUBLIC SERVICE RAILWAY COMPANY AND JACOB PEPE.
    Decided February 28, 1923.
    Negligence — Liability for Injury to Passengers — Motor Vehicle— Trolley Car Collision — Duty of Carrier — Contributory Negligence.
    On appeal from the Hudson Common Pleas.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the appellant Public Service Railway Company, Leonard J. Tynan.

    For the appellant Jacob Pepe, Autenreith & Gannon.

    For the respondent, Alfred Brenner.

   Per Curiam.

The plaintiff’s decedent, Ferdinand Migliaccio, while riding in the automobile of the defendant Pepe, on the latter’s invitation, was injured in a collision between the automobile and a trolley car of the Public Service Eailway Company at the intersection of Avenue C and Twentieth street, in the city of Bayonne. The accident occurred on January 4th, 1920, and plaintiff’s decedent died on April 20th, 1921. He died of tuberculosis, and this ¡suit was brought to recover the pecuniary loss sustained by his widow and next of kin by his death, the plaintiff’s claim being that the disease of which he died was the natural and proximate result of the accident. The trial resulted in a verdict in favor of the plaintiff and against each of the defendants, and from the judgment entered upon that verdict each defendant appeals.

The principal causes of reversal specified by the respective defendants are directed at the charge of the court to the jury. The first instruction complained of dealt with the matter of liability, and is in the following words: “It is the fact that both Pepe and the Public Service Railway Company did rest under a legal duty to Migliaceio, and, if they disregarded that duty, they subjected themselves to legal liability.” By this instruction the jury was told, in effect, that, if either one of these defendants disregarded the duty they owed to the decedent (that duty being subsequently defined as the use of ordinary prudence and caution on their respective parts while operating the automobile and the trolley car), they were legally liable for the injuries ¡sustained by the decedent, and were responsible to his widow and next of kin for the pecuniary loss sustained by them, if his death resulted from those injuries. In this instruction we consider there was harmful error; for it left out of consideration entirely the question whether or not the decedent, by his own want of care, contributed to any extent to the happening of the accident, and there was direct evidence in the case upon which contributory negligence on his part might have been predicated.

The next alleged error in the charge to the jury is directed at the instruction -with. relation to the duty of the motorman of the Public Service Railway Company. The court said, “This duty required him to be careful to maintain at all times such control of his trolley car as would enable him to slow itsj progress, or, if necessary, to stop it in order to avoid collision with this automobile of Pepe’s.” This instruction imposed upon the motorman a duty greater than that which the law required of him, under the circumstances of the case. The true rule in cases of this kind is that a motorman must have his car under such control as to avoid a collision with another vehicle, the driver of which, without negligence on his part, attempts to cross in front of the- trolley ear; and where it is apparent that the driver of the other vehicle, in disregard of the rights of the motorman, is going to attempt to cross in front of the trolley car, the motorman must use every reasonable effort to stop his car for the purpose of avoiding a collision.

Having reached the conclusion that the first of the instructions objected to was not only erroneous, but was harmful to each one of the defendants, and that the second instruction placed upon the motorman a duty greater than that required by law,, we find it unnecessary to consider the other grounds of reversal.

Eor the reasons indicated, the judgment against each one of these defendants will be reversed and a venire de novo ordered.


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    SAMUEL C. DARKS, PLAINTIFF, v. MICHAEL WALDY, DEFENDANT.
    Submitted December 8, 1922
    Decided February 28, 1923.
    Motor Vehicles — Contracts for Repair — Liability for Injury to Car While Repairing.
    On defendant’s rule to show cause why a verdict in favor of the plaintiff should not be set aside.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, J. Emil Walscheid (Dippel & Davis on the brief).

      Contra, Levitan & Levitan (Abraham Levitan on the brief).
   Per Curiam.

This is defendant’s rule to show cause why a verdict in favor of the plaintiff for $712 should not be set aside.

Plaintiff owned an automobile. Defendant was an automobile repair man. Plaintiff’s case was that he engaged defendant to repair the motor of his automobile; that after the defendant completed the job the plaintiff paid him $85 for it and defendant delivered the car to the plaintiff; that then tíre plaintiff undertook to start the car out of defendant’s shop and in the act of starting, the motor “went to pieces” and “became smashed.”

Plaintiff then had the car repaired elsewhere and brought this suit to recover damages resulting to him by reason of what he alleges to be the negligent repair work of the defendant.

The first point is that the verdict was contrary to the weight of the evidence on the question of defendant’s negligence.

Our examination of the case leads us to think that considering all of the testimony on both sides, much of it expert testimony, and more particularly considering the testimony to the effect that defendant used on the motor, in his attempt to repair it, a steel crowbar three and a half feet long and three-quarters of an inch thick, to pry off the old trimming chains, that there was presented a fair jury question and we cannot say that the verdict was contrary to the weight of the evidence.

The next point argued by the defendant is that the judge erred in refusing to grant a nonsuit. What we have said in respect to the former point disposes of this, in our judgment.

These are the only questions which we find argued.

The rule will be discharged.


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    AGNES BAKER, ADMINISTRATRIX OF FOREST R. BAKER, DECEASED, PLAINTIFF-RESPONDENT, v. JACOB GENNETT, DEFENDANT-APPELLANT.
    Submitted December 8, 1922
    Decided February 28, 1923.
    Motor Vehicles — Collision at mght — Evidence Justified Letting Case go to Jury.
    On appeal from the Essex County Circuit Court.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the appellant, Collins & Corbin (Edward N. Markley and William B. Harley on the brief).
    For the respondent, John A. Matthews and Grosken & Moriarty.

   Per Curiam.

This is an appeal from a judgment for the plaintiff entered upon the verdict of a- jury.

The plaintiff is the administratrix of Eorest R. Baker. He, with others, was riding in his automobile along the highway and came into collision with a truck of the defendant. He was killed as a result of the collision.

It is argued that there was no-evidence of any negligence upon the part of the defendant which was the proximate cause of the accident, and heneé a verdict should have been directed. We think there is no merit in that contention.

Erom the testimony upon the part of the plaintiff by the three occupants of the automobile it wasi open to the jury to find that they were traveling at the rate of about fifteen miles an hour in the night-time, the night being clear overhead but foggy along the ground; that their proper automobile lights were lighted; that suddenly the defendant’s truck loomed up about fourteen feet away, in the centre of the highway, which was only about sixteen feet wide; and that the truck, which had considerable overhang, hit the plaintiff’s car on the left side, notwithstanding the fact that plaintiff’s car was well over to the right and proper side of the road, the right-hand wheels of the automobile running along the shoulder of the road. There was also testimony that the headlights of the truck were very dim, consisting of oil lights.

The alleged negligence, the proximate cause of fhe accident, and the alleged negligence of the plaintiff, were jury questions.

The judgment will be affirmed, with costs.


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    KATHERINE BARR, ADMINISTRATRIX AD PROS. PLAINTIFF, v. PHILIP TULLY, DEFENDANT.
    Submitted December 8, 1922
    Decided February 28, 1923.
    Negligence — Injury Caused by Runaway — Evidence Showed Plaintiff’s Act Responsible for Accident.
    On defendant’s rule to show cause why a verdict in favor of the plaintiff should not be set aside.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, Edwards & Smith (Edwin F. Smith and Raymond Dawson on the brief).

      Contra, Levitan & Levitan (Abraham Levitan on the brief).
   Per Curiam.

This is defendant’s rule to show cause why a verdict in favor of the plaintiff should not be set aside, a verdict of $6,250 having been rendered for the plaintiff.

The defendant conducted a produce and trucking business. Sometimes he rented out wagons to peddlers who purchased vegetables from him. Barr, the decedent, was a peddler and frequently rented wagons of the defendant.

On the day of the accident, Barr called at Tully’s place to get a wagon and some vegetables. Tully was not there. According to the plaintiff’s case the decedent took a wagon which had been under repairs and to which the shafts had not yet been attached, -and himself attached the shafts, and had it loaded with vegetables, when the defendant came in and counted the vegetables, and without more the decedent drove off.

The testimony was to the effect that the decedent selected the wagon himself out of the blacksmith shop and affixed the shafts himself, screwing up the bolts, and that it was not the wagon he generally used, although that wagon was there.

It appeared that decedent proceeded with his horse and wagon down the street. The shafts came out, fell down on the horse’s heels, the horse ran away and the decedent was injured so that he died the next morning.

The trial judge in his charge seems to have made the recovery of the plaintiff dependent upon whether the defendant or one of his employes put the shafts on the wagon. He charged (and we incline to think properly) as follows: “The defendant says that what happened was that Barr went to Tully’s yard and actually went into the blacksmith shop, causing the wagon which he wished to use to be taken out of the -blacksmith shop ■ and himself put those shafts in the wagon. If he did, and took the wagon out after he had done that thing, Tully is not liable for it, because under the law, Barr would assume the risk of an injury from what he had done himself. * * * Just ask yourselves, who put those shafts on? Was it done by Tully or some of his men, or was it done by Barr ? If it was done by Barr, that ends the case, and Barr’s widow can have no verdict at all. If the shafts were put on by Mr. Tully or his representative, then you ask yourselves the further question, was there negligence either in putting on those shafts or in the inspection of those shafts.”

The defendant contends that the great weight of the evidence is that Barr put on the shafts. We are clearly of the opinion that that is so. Indeed the evidence seems to be conclusive to that effect.

It follows, therefore, that the verdict cannot be sustained.

The rule will be made absolute.


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    HENRY R. HOLMES, PLAINTIFF-PROSECUTOR, v. ROBERT E. MURPHY, DEFENDANT-RESPONDENT.
    Argued November 9, 1922
    Decided February 28, 1923.
    Right of Way — Easement—Use for More Than Twenty Years Must be Adverse to Owner — Presumption is that Land was Used with Owner’s Consent.
    On plaintiff’s rule to show cause why a verdict in favor of the defendant should not be set aside.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, Linton Satterthwaite.

      Contra, Peter Backes.

   Per Curiam.

This was an action brought by the plaintiff to recover damages for the alleged obstruction of a way by the defendant, Murphy. The trial resulted in a verdict for the defendant.

The situation was this: The locus in quo is in Hamilton Square, Mercer county, at the point where Nottingham way intersects Mercer street. The defendant owns a plot of ground at this point, on the rear of which was a building, which for many years was used as a country hotel. The plaintiff owns a plot of ground upon which was erected a store immediately adjacent to the old hotel building. His case was that the public, for considerably more than twenty years, had been in the habit of passing over this vacant land of the defendant as a short cut from the one street to the other, instead of going around the corner, and that they were in the habit of using this same tract for the purpose of going to and from the store which he now owns. His contention was (1) that this was a public way, and (2) that, if it was not, he had a private easement over it for himself and his customers.

There was no delineation of any public way over this tract of land, nor was there any suggestion that the public authorities had done anything indicating that they were under any obligation to maintain it. On the contrary, it would seem, from the fact that the county and municipal authorities had directed that the two streets we have mentioned be curbed so as to exclude this piece of land from both of the streets, that they repudiated any idea that this was public property, to be conserved by the public authorities. This fact, taken in conjunction with the further fact that there was no- defined way across this tract used by the public, we think justified the jury in denying the existence of a public street or way across this lot.

As to the alleged, existence of a private easement in favor of the plaintiff and his predecessors in title, we think that question was properly resolved. Where a party crosses over the land of another with such frequency as to indicate that he has a way over it, the presumption is that he is using the way with the permission of the owner and not adversely to him, and, by force of this presumption, the owner of the land is entitled to withdraw the permission whenever he sees fit. To succeed in establishing a way against the owner, it must be proved that the user was adverse, and there seems to' have been no testimony of that kind in the case.

This disposes of practically all of the 'questions argued by the plaintiff, except his criticisms on the charge of the court, and we find nothing of merit in them. It is true that the Court expressed his opinion of this ease in pretty clear1 language, but that afforded no ground for reversal. It is a prerogative of the judge to state to the jury what impression the testimony has made on his mind.

The mile will be discharged.


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    ARCHIBALD PERCY ET AL. v. TONY DONATONI.
    Decided February 28, 1923.
    Contracts — Sale of Lumber — Warranty—Verdict Contrary to Charge but not Injurious to Appellant.
    On plaintiff’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, Meyerson & Ely.

      Contra, James H. Bolitho.

   Per Curiam.

The plaintiffs entered into a contract with the defendant for the purchase from him of a pile of lumber at Beach Glen, containing some forty-seven thousand feet, at the price of $40 per thousand feet, and paid $1,200 upon the contract price. They removed from the pile and appropriated to their own use eleven thousand seven hundred and eighty-five feet of the lumber, but refused to take away any more of it, because; as they claimed, the defendant had warranted that it was all No. 1 oak and white wood, free from knots and suitable for automobile body building, whereas the contrary was the fact, and for this reason they demanded from the defendant a repayment of $128.60, that being the difference between the amount advanced by them on the purchase price and the contract value of the lumber actually taken and used by them. The defendant refused to comply with the demand, and they thereupon instituted this suit to compel the repayment of the moneys demanded.

The defendant answered, denying the existence of any warranty, and, by way of counter-claim, sought to recover the balance of the purchase price.

At the trial the court left to the determination of the jury the. question whether or not there had been a warranty of the character of this lumber such as was claimed by the plaintiffs, and instructed them that, if they should, find that such a warranty had been made, the plaintiffs were entitled to recover the difference between the $1,200 paid on account of the purchase price and the value as fixed by the contract of the lumber actually taken and used by the plaintiffs; but that, if they should find that the defendant did not warrant the lumber in the way indicated, but just sold it as it was, then he was entitled to recover the difference between the contract price and the amount paid thereon — that difference being $680. The jury returned a verdict of $340 in favor of the defendant.

The only ground upon which we are asked to make the rule to show cause absolute is that the verdict of the jury was contrary to the charge of the court, because they awarded the defendant $340 instead of $680.

The verdict of the jury, by necessary implication, carried with it a finding that there had been no such warranty as was claimed by the plaintiffs. Having so found, their duty was to assess the damages to which the defendant was entitled at the sum specified by the trial court. But their failure to do so was injurious to the defendant and not to the plaintiffs; and, as they suffered no wrong or injury by this action of the jury, they are not entitled .to have the verdict set aside and a new trial ordered.

The rule to show cause will be discharged.


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    JEANETTE W. MORRIS ET UX. v. ARTHUR HOFHEIMER ET AL., EXECUTORS.
    Decided February 28, 1923.
    Assault — Adequacy of Damages — Plaintiff a Nurse, Defendant’s Testatrix an Elderly Woman.
    On plaintiffs’ rule to show cause.
    Before Gummere, Chief Justice, and Justices Swatze and Trenchard.
    For the rule, Jacob L. Newman.

    Contra, William N. Runyon.

   Per Curiam.

This action was brought to recover damages for. an assault alleged to have been committed upon the female plaintiff by the defendants’ testatrix, Lena Hofheimer. The trial resulted1 in a verdict in favor of the plaintiff Jeanette W. Morris, and the jury awarded her $80 as compensation for the injuries received. We are asked to set aside this verdict upon the ground that it is grossly inadequate.

Mrs. Morris was a trained nurse. She had been employed to act as night nurse for Mr. Hofheimer, at his residence, near Plainfield. Her employment began about the middle of August, 1921. At that time, according to her story, Mr. Hofheimer’s physical as well as his mental condition was on the down grade, and he died some throe months later. The plaintiff’s claim was that early in the morning of August 29th, while Mrs. Morris was trying-to prevent her patient from getting out of bed, Mrs. Hofheimer, who occupied another bed in the same room, assaulted her viciously, knocked her down on the floor and, when she (the plaintiff) tried to escape and ran into the next room, Mrs. Hofheimer there continued the assault, and threw her against the bedstead in that room, quite seriously injuring her thigh.

At the time of the trial not only was Mr. Hofheimer dead, but Mrs. Hofheimer also had passed away, dying on the 11th of April, 1922, and while the suit was pending. Of the three witnesses who were present at the alleged assault in the patient’s bedroom, only Mrs. Morris was left to testify at the time of the trial. So far as the assualt in the adjoining room was concerned, she is contradicted by. Dr. Meyer, who was in attendance professionally upon Mr. Plofheimer and who was spending the night at his patient’s home. Dr. Meyer was in the bed against which Mrs. Morris claims to have been thrown, and, as I have said, denies absolutely the committing of any assault upon Mrs. Morris by Mrs. Hofheimer in that room.

In veiw of these facts, namely, that Mrs. Morris’s story with relation to the assault committed in the patient’s bedroom could not be contradicted by the only other persons then in that room, and that her story with relation to what occurred in Dr. Meyer’s room is absolutely contradicted by him, taken in consideration with the undisputed facts that Mrs. Hofheimer was á woman of about sixty-five years of age, and then suffering from diabetes, while Mrs. Morris was thirty-three, years of age, weighed one hundred and eighty-one pound's, and was, as she herself testified, in perfect physical condition, at the time of the alleged assault, we cannot say that the verdict of the jury in assessing the damages at $80 was without reasonable support from the evidence.

The rule to show cause will be discharged.


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    ANTONETTA FAUL, ADMINISTRATRIX, v. WILLIAM McCULLOUGH.
    Decided February 28, 1923.
    Negligence — Motor Vehicle Running Down Defendant — Rules of Road — Contributory Negligence.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, M. Caswell Heine.

    Contra, Peter J. McGinnis.

   Per Curiam.

This suit was instituted to recover compensation for the death of Michael Paul, which resulted from injuries received by him through being run down by a truck of the defendant shortly after five o’clock in the afternoon of November 26th, 1921, while wralking along the Bergen pike road, a few miles out of Hackensack. The only ground submitted by counsel as a reason for setting aside the verdict rendered in favor of the plaintiff is that the finding of the jury on the question of negligence of the defendant’s driver is contrary to the weight of the evidence.

The proofs showed that the decedent, who was an employe at the Plintkote mills, having finished his work for the day, started for home on foot; that, after crossing a bridge over the Hackensack river, he swung over to the left side of the road, the walking being better on that side; that he was followed by the truck of the defendant, and that the driver of the truck, after crossing the bridge and proceeding some twenty-five yards, also swung his truck over .to the left side of the road, and, in doing so, collided with and ran over the deceased. In swinging over to the left side of the road, which, under ordinary conditions was an improper thing to do, the driver was bound to use due care to avoid collision with a vehicle coming in the other direction or with foot passengers walking on that side of the road; in other words, to look carefully at this side of the road for the purpose of avoiding such an accident as occurred in this case. It was a question for the jury, under the testimony, whether he had not failed'in this regard, and we think that their finding that such failure had been shown is not against the weight of the evidence.

We think that the contention of the defendant that the decedent was guilty of contributory negligence, and that the jury should have so found, is also without merit. There is nothing in the proofs to testify the conclusion that he had any reason to expect that the defendant’s truck would be swung over to the wrong side of the road, and, unless such reason existed, he was under no obligation to take precautions against the happening of the accident which in fact occurred.

The rule to show cause will be discharged. .


author: Pee Curiam.

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    HARRY H. SHAW v. JOHN EGGIE AND JOSEPH EGGIE, TRADING AS PARKSIDE MOTOR CAR COMPANY.
    Decided February 28, 1923.
    Briefs — Defendants’ Rule to Show Cause Dismissed Upon Failure to File Under Rule.
    On defendants’ rule to show cause.
    For the rule, Sidney T. Smith.

      Contra, Patrick H. Harding.

   Pee Curiam.

On tlie preliminary call of the list at the opening of the term, counsel for the respective parties advised the court that the case would be submitted, by agreement, on printed briefs. Notwithstanding this agreement, however, counsel for the defendants has failed to submit to the court any brief for his clients, either within the time limited by our standing rule or at any subsequent date. Such failure raises a presumption that the defendants have abandoned the further prosecution of the rule to show cause, and, this being so, that rule will be discharged.


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    FRANKLIN DRIVER v. PUBLIC SERVICE RAILWAY COMPANY.
    Decided February 28, 1923.
    Negligence — Horse and Wagon Collision with Trolley Car— Measure, of Damages.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, Leonard J. Tynan.

      Contra, Charles W. Letzgus.

   Per Curiam.

This is an action for personal injuries. The plaintiff, while driving through one of the public streets of Woodbury, was run into from behind by a trolley car of the defendant company. His wagon was partly demolished, his horse was so badly hurt as to necessitate its being killed, and he himself received severe injuries to his person. The trial resulted in a verdict in plaintiff’s favor, and the damages were assessed at $15,000.

The only ground upon which we are asked to set aside this verdict is that it is grossly excessive.

It is conceded by counsel for the defendant that the money loss sustained by the plaintiff as the dire.ct result of this accident is approximately $2,200, and the argument is that a sum much less than $12,800 would fairly compensate him for his personal injuries.

Although the award is large, we cannot say that it is manifestly excessive. The plaintiff was fifty-six years old at the lime of the accident. He was then in good health. That his injuries were severe cannot be questioned. We think that the jury was justified in finding that he had sustained a concussion of the brain and an injury to the spine, as well as a severe laceration of his leg; that as a result of these injuries he was at the time of the trial, which took place some twenty months after the occurrence of the accident, unable to sit in a comfortable position or get out of his chair without great difficulty; that, although he could walk to some extent, he was not able to go> up' and down stairs without trouble; and that his earning power had been practically destroyed. Assuming that the jury found these facts (as, we think, the testimony justified them in fihding), we are unwilling to say that the sum awarded him for these injuries is SO' excessive as to justify judicial interference.

The rule to show cause will be discharged.


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    PATERSON CONTRACTING COMPANY, PROSECUTOR, v. CITY OF HACKENSACK, THE HACKENSACK IMPROVEMENT COMMISSION AND G. DI NAPOLI & COMPANY, DEFENDANTS.
    Submitted February 20, 1923
    Decided March 8, 1923.
    Contracto — Municipal—Lowest Bid — Adequacy of Reason for Rejection — Method of Rejection.
    On certiorari. On rule to show cause.
    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Randal B. Lewis.

    For the defendants, Wendell J. Wright.

   Per Curiam.

The governing body of the city of Hackensack is the Hackensack Improvement Commission. This body advertised for proposals for the construction under one contract of certain sewers (the contract is referred to as contract No. 4). The bids or proposals were presented at a meeting of the commission held on October 16th, 1922. The Paterson Contracting Company presented a bid, regular as to form, which was the lowest bid. This bid was $140,382.70. G. Di Napoli & Company was the next lowest bidder. Their bid was $141,579.75. On November 6th, 1922, the contract was awarded to the G. Di Napoli & Company. The ground for making the award to G. Di Napoli & Company and rejecting the bid of the Paterson Contracting Company was a specific finding that the Paterson Contracting Company had not demonstrated that it had sufficient experience in the character of the work involved, sufficient capital or financial backing, and proper office facilities, including means for quick communication (telephone) to properly execute the contract. This result was reached without having given to the Paterson Contracting Company a hearing as was determined by Mr. Justice Parker, sitting alone, in certiorari proceedings under the statute. The award was set aside by Mr. Justice Parker for the reason that no hearing had been given to the Paterson Contracting Company.

The record discloses that after this decision was rendered the commission passed a resolution fixing January 23d, 1923, as the date for a hearing on the subject of the responsibility of the Paterson Contracting Company. Notice of the hearing was duly given. The company appeared by counsel. Its president, Mr. Maggi, testified that, he had had experience in sewer work, acting as superintendent or assistant superintendent, since 1915; that he had done trunk sewer work and deep sewer work; that he or the Paterson Contracting Company had constructed some twelve sewers for the city of Paterson. He presented a letter (admitted without objection) from the city engineer of Paterson to the effect that the wo. It of the Paterson Contracting Company had been entirely satisfactory, and that in his opinion it could handle any sewer work satisfactorily.

A letter from the county engineer of Passaic county to the same effect was produced by Mr. Maggi. He further testified that his company had the necessary machinery for the work except one machine (Moore Trench Machine) which he had made arrangements to get. He offered evidence that the Maryland Casualty Company would give the surety bond to accompany the contract. He also testified that the Paterson Contracting Company had between $15,000 and $16,000 in cash, and could raise from its quick assets between $20,000 and $30,000 additional, if necessary, in a week. It was proven that there was telephone communication with the company through a telephone in the name of one of its officers* and further telephone service was offered. Mr. Mariono, secretary and treasurer of the company, testified that he had resources of $50,000 which he was willing to pledge to finance the project. There was other evidence offered by the company which was cumulative. The commission offered no witnesses. The engineer of the commission had been called by the Paterson Contracting Company as a witness but his cross-examination shows no technical, practical or financial inability on the part of the Paterson Contracting Company to perform the contract.

Immediately after the testimony was taken the commission passed a resolution previously prepared rejecting the bid of the Paterson Contracting Company upon the ground previously mentioned and awarding the contract to G. Di Napoli & Company. A rule to show cause why a writ of certiorari to review this award should not be issued was allowed by Mr. Justice Parker. This matter is before us under this rule. We think the evidence justifies the allowance of a writ. A writ of certiorari is allowed and may be presented forthwith to this court for allowance.


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    CHALKEY HAINES ET AL., PLAINTIFFS, v. SEABROOK FARMS COMPANY, DEFENDANTS.
    Argued February 20, 1923
    Decided March 2, 1923.
    Appeals — Filing Notice Nunc pro Tunc — Statutes and Rules Provide One Year — Favorable Action Here Would be Futile in Court of Ultimate Jurisdiction.
    On motion to direct filing of a notice of appeal nunc pro tunc.

    Before Justices Parker and Bergen.
    For the motion, Herbert A. Drake.

   Per Curiam.

Plaintiffs were subjected to an adverse judgment in this court on J anuary 27th, 1922, and had a year from that time in which to take an appeal. Comp. Stat., p. 2208, § 2; Rule 137, Supreme Court rules of 1919. Pranti v. Junk, 93 N. J. L. 387. From the motion papers it appears that counsel prepared and served a notice of appeal on January 22d, 1923, but overlooked the matter of filing the notice and proof of service until after he had left his office at the noon hour of Saturday, January 27th, and his office being then closed, deferred further action until Monday, the 29th, when he mailed the notice to the clerk with a special delivery stamp thereon, and it reached its destination the same day. He now moves this court to direct the clerk to mark the notice as “filed J anuary 29th, 1923, as of January 27th, 1923, nunc pro tunc.”

We think the motion should be denied, and for two reasons —first, assuming that the application is properly made in this court, it should be denied on its merits; secondly, we think that any favorable action here would be futile so far as affecting the appellate court, which has the ultimate jurisdiction in the matter.

1. The statute imposes a limitation of one year, and rule 137 distinctly provides that the notice shall be served and filed within that time. This was concededly not done and no valid excuse is advanced for the default. The attorney knew perfectly well that the year was rapidly running out and should have exercised the greatest diligence to preserve his' client’s rights. He might even perhaps have saved them by hunting up the clerk on Saturday afternoon, or employing some one else to do so, but deliberately lets the whole matter go over till Monday.

2. The recognized rule of practice is that the validity of an appeal is a matter for the appellate court; and in similar oases the appellate court has refused to recognize attempts of the lower court to patch up á defective appeal. See such cases as Hillyer v. Schenck, 15 N. J. Eq. 398, and Mount v. Van Ness, 34 Id. 523. Hence, any attempt of this court to pass over the situation would not only be improper but futile.

The moving papers do not indicate that any notice of this motion was given to the opposing party, but as we conclude to deny the motion, it is sufficient merely to note the apparent absence of notice, to which the other side was plainly entitled before such a motion could be dealt witty adversely to them. Perhaps such notice was given in fact. Let a rule be entered denying the motion.


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    JOHN KOTWICA, APPELLEE, v. TEOFIL DANESKI, IMPLEADED WITH ALEXANDER J. PIETUKOWSKI, APPELLANT.
    Submitted December 21, 1922
    Decided February 20, 1923.
    Partnership — Evidence of — Liability of Partners' — Dissolution.
    On appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.

      For the appellant, William Greenfield.

    For the appellee, Smith & Slingerland.

   Per Curiam.

The suit was to recover back $350 paid by plaintiff to a concern called the “Polish National Burean” to be used in transporting two relatives of plaintiff from Poland to this country. The money was in fact handed to Pietukowski, who at the time of suit was out of the jurisdiction and was suspected of having absconded, and summons was served on appellant Daneski and recovery sought from him as a partner of Pietukowski in the “bureau.” See Blessing v. McLinden, 81 N. J. L. 379. Plaintiff had a verdict and judgment, and defendant appeals.

The first two points in appellant's brief, corresponding to “specifications” 1 and 2 of rulings claimed to be erroneous, are not properly before us, as the specifications do not specify, - but merely assert generally the admission of illegal, and exclusion of legal evidence. This is not sufficient. Lutlopp v. Heckman, 70 N. J. L. 272; Valenti v. Blessington, 96 Id. 498. The form in Pamph. L. 1912, pp. 415, 416, No. 37, Supreme Court Buies of 1919, page 79, indicates the correct manner of assigning error in rulings on evidence in the ordinary courts of common law. The “specification” under rule 143' differs only in name.

Points 3 and 4 are that the trial court erred in refusing to nonsuit and in refusing to direct a verdict for defendant.' The argument made under these points is that it was beyond the scope of PietukowskPs authority as a partner to go to Europe with the money, as he seems to have done. But to this we cannot agree. The money was plainly received within the scope of the partnership business, and it is idle to argue that because by the dishonesty or what not of a partner, it was not applied as agreed, that other partners are absolved from liability.

A point which exhibits some difficulty is that the judge charged the jury “as a matter of law1, that partnership has been proven.” This, of course, removed from the consideration of the jury the question whether a partnership existed at the time when plaintiff entrusted Pietukowsld with the money. The undisputed evidence was that in June, 1920 (the money was deposited in January, 1921), Pietukowski went to defendant and wanted to start in business and defendant put $500 in bank to open an account “under both names, Mr. Pietukowski and I,” checks- payable on signature of either or both; that the two went to the court house on June 21st, and executed and filed a certificate as provided by the act of 1906, entitled “An act to regulate the use of business names” (Pamph. L., p. 513; Comp. Stat., p. 3686), especially section 2 of that act, specifying “Polish National Bureau” as the name, and defendant and Pietukowski as the parties concerned. The certificate does not state1 that the business is a partnership, but no other inference is permissible. The act says that a certified copy shall be presumptive evidence of the facts therein contained; and such copy was put in evidence. It further appeared that Daneski, being a busy tradesman, took little active interest in the bureau, but visited the rented office on several Wednesdays when his butcher shop was closed; that he “did not understand the business and could not be bothered with it, had no time — and told him (Pietukowski) to go in business himself; I couldn’t bother with him.” After Pietukowski left, defendant continued to- pay the rent out of the partnership bank account. This lasted about a year after Pietukowsld left and while a subordinate employed by Pietukowski was running the place.

There can be no doubt that defendant agreed to go into business with Pietukowski, for he says so; nor that he executed and swore to the statutory declaration. He testified to that. He contributed or advanced $500 to start a joint bank account, and showed what activity his time would allow, in the joint affairs. Plainly a partnership status was created. Defendant says it was dissolved at his instance, but assuming this, dissolution involves the public, and there is not a scintilla in the case to show that any notice whatever was given oí a dissolution if one took place. Everything went on as before; so that plaintiff, dealing with the “bureau” was entitled to recourse against all those then appearing to be partners therein.

Defendant having become such partner so remained as to the public until after notice of his withdrawal. Hence, it was not error to charge that the partnership had been proven as to plaintiff.

These considerations lead to affirmance of the judgment.


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    ERNEST L. SAWYER, PLAINTIFF, v. PHILIP HUSSA AND LUDMILLA H. FLAGGE, EXECUTOR AND EXECUTRIX OF OSCAR HUSSA, DECEASED, DEFENDANTS.
    Submitted December 8, 1922
    Decided March 5, 1923.
    Contracts — Breach of — Sale of Land — Tender of Deed— Perfection of Title.
    On plaintiff’s rule to show cause why a verdict in favor of the defendants should not be set aside.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, Merritt Lane.

      Contra, Maximilian T. Rosenberg.

   Per Curiam.

Plaintiff sued to recover damages for an alleged breach of a contract to sell real estate. This contract was entered into in July, 1911. The purchase price was $26,000 — $1,000 on the signing of the agreement, $2,000 on or before January 1st, 1912, $3,000 on April 1st, 1912 (the day upon which the contract was to be closed), and the balance of $20,000 to be secured by a mortgage. The original contract was made between the defendants and one Brennan, and Brennan, on November 2d, 1911, assigned it to the plaintiff Sawyer, and one Allen, and on January 21st, 1921, Allen assigned his rights to the plaintiff.

Although the contract required the closing of the transaction on April 1st, 1912, it was then claimed that there were certain encumbrances upon the property which made the title doubtful, and the closing of the transaction was, therefore, extended for an indefinite time, in order that the ques.tion of the validity of these so-called encroachments might be tried out. This was done, and a decision rendered in September, 1917, holding that the alleged encroachments, or restrictions, were not encumbrances on the property. Erom that time on, although frequently pressed to perform, apparently nothing was done by the plaintiff and his associate, Allen, or either of them, looking to a performance of the contract. In fact, we think it quite plain that at no time were they, or either of them, ready, willing and able to carry it out; and so, on July 1st, 1920, the defendants sold the property to one Max.

The case was left to the jury upon the theory that, as the closing .of the contract had been left in abeyance so long, the defendants, in order to put an end to it, were required to make a tender of a deed to the plaintiff and thereby put him in default. There was proof that the attorney of the plaintiff, a Mr. Yon der Lippe, who seems to have been authorized to carry on all the negotiations with relation to the transaction as the representative of the plaintiff and his associate, waived to Mi'. Herrmann, attorney of the defendants, any tender of the deed, and that this was done before the conveyance to Max.

The trial resulted in a verdict for the defendants.

The first ground argued by the plaintiff in support of his application for a new trial is that Mr. Yon der Lippe had no authority to bind the plaintiff. We think the testimony is to the contrary. Certainly, it was a question for the jury, and they have resolved it in favor of the authority.

The next contention is that the case was submitted to the jury upon a false issue. If by this, as we suppose, is meant that the court was in error in limiting the question of the defendants’ rights to a verdict to the question whether or not there was a tender, or a waiver thereof, we think it can avail the plaintiff nothing. We think that the ease evidenced an abandonment of the contract by the plaintiff, but the failure to call that to the attention of the jury was certainly not harmful to him.

The only other contention is that the verdict is against the weight of the evidence. We think not. The proofs amply justify the verdict.

The rule will be discharged.


author: Newman, J.

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    Passaic County Circuit Court.
    Tiffany & Company, a body corporate, plaintiff, v. Maryon Andrews d’Erlanger, formerly known as Mrs. Peter Cooper Hewitt, defendant.
    [Decided March 28th, 1923.]
    Attachment — Foreign Executors — Delegation of Power of Attorney Sufficiently Broad to Sustain Attachment of Beneficiary’s Rights in Hands of Attorney — Interest of Beneficiary Under Will Sufficient to Sustain Attachment — Subject-Matter Though Within “Debt or Legacy,” is as a “Right and Credit Attachable.”
    On motion to set aside levies.

      Messrs. Wall, Haight, Carey & Harlpence, for the plaintiff.

      Mr. George W. McCarter, for the defendant.
   The opinion of the court was delivered by

Newman, J.

This is an attachment suit. By virtue of the original writ of attachment, the sheriff of Passaic county levied upon “all moneys that may be due to defendant in trust fund created by will of Mr. Peter Cooper Hewitt, in possession of Frederic Beggs, surrogate of Passaic county, as agent of Farmer’s Loan and Trust Company,” which was the executor of that will, and, by virtue of an alias writ, the same sheriff levied upon all moneys due and to grow due to defendant under an agreement between the defendant and said executor, by reason of which agreement defendant became a creditor of said estate.

The defendant moves to set aside these levies, first, on the ground that the executor, as garnishee, was not within the State of New Jersey, and second, that the rights levied upon in both instances are exempt from attachment.

As to the first ground.

The facts are all agreed upon by written stipulation, .and from that stipulation it appears that “both the writ of attachment and the alias writ herein were executed by the sheriff going to Prederic Beggs, surrogate of Passaic county, and, in his presence as agent or attorney in fact of the Parmer’s Loan and Trust Company, as executor, &c., of Peter Cooper Hewitt, deceased, making the statutory declaration as set forth in the returns of said writs and schedules thereto annexed.”

The agency of the surrogate had been conferred upon him by a written power of attorney, pursuant to the act of 1912 (P. L. 1912 p. 551; Supp. Comp. Stat. p. 1159 § 57), the trust company not being a “resident” of New Jersey, and the copy of the power of attorney incorporated in the stipulation shows that the executor

“has made, constituted and appointed, and by these presents does make, constitute and appoint Frederic Béggs, surrogate of the county of Passaic, State of New Jersey, and his successors in office, while he or they are in office, as its true and lawful attorney for it and in its name, place and stead upon whom all original process in any action at law or in equity against the estate of Peter Cooper Hewitt may be served, and hereby agrees that any original process against the estate of Peter Cooper Hewitt served upon, the-persons aforesaid, 'shall be of the same force and effect as if duly served upon it as such executor, pursuant to the statute in such case made and provided.”

. Defendant contends that the powers thus conferred upon the surrogate are not sufficiently broad, so that a levy upon rights of the defendant under said will or upon a debt due her from the estate can be legally made, by making the statutory declaration of attachment and levy in his presence,' as the representative, of the executor.

I am of the opinion that the levies should not be set aside on that ground.

There is no doubt that but for the lien of the attachment the defendant could bring suit against the executor in the courts of this state to enforce collection of the moneys so due her, and the original process in such suits could, by virtue of this power of attorney, be served upon the executor by service upon said surrogate. The rights attached are collectible within this state.

“The credit is attachable when it has followed the person garnished [who is the debtor to the absent defendant] and has thus come within the jurisdiction; when it is collectible wiithin the jurisdiction.” Waples Attach. 249; National Fire Insurance Co. v. Chambers, 53 N. J. Eq. 468, 479.

In National Fire Insurance Co. v. Chambers, Ibid., the insurance company was incorporated under the laws of Connecticut, hut had' been authorized to do business in Pennsylvania and had appointed an agent upon whom process could be served in that state in suits brought against it there.

It had insured Chambers, a resident of New Jersey, against loss b}7 fire covering a building in New Jersey, which building was thereafter damaged by fire and the insurance company therefor became indebted to Chambers.

A creditor of Chambers took out an attachment against him in the court of common pleas of Philadelphia, and levied on the sum thus due Chambers from the insurance compa^, and the statutory notice of the attachment and levy was thereupon given to its agent in Pennsylvania.

This attachment, levy and judgment thereon were attacked in the court of chancery of this state by an assignee of Chambers, in a bill of interpleader, but the late Vice-Chancellor Pitney sustained them as valid, and, in his usual forceful and logical manner, proceeded to.give his reasons therefor at some length. These reasons appeal to me as sound and conclusive.

He says (at p. 4-7S) that Chambers had a right to come into Pennsylvania “and bring an action against complainant [the insurance company] in the Pennsylvania courts upon his policy, not as an artificial person casually and temporarily present in the state, but as being provisionally domiciled there for the purpose of being sued. * * * If, then,the courts of Pennsylvania were open * * * to Mr. Chambers to sue the .complainant on his policy in the State of Pennsylvania, why was not the right so to do attachable ?” * * * He then proceeds (at p. 479) to quote from Waples Attach. (Ibid.) and adds:

“If, then, Mr. Chambers could have brought suit against complainant in the Philadelphia courts on his claim and recovered judgment against it, binding in all jurisdictions, I see no reason why such right of action could not be attached in the Pennsylvania courts.”

Applying this reasoning to the case at bar, it appearing that the defendant could have brought suit against the executor in the courts of this state, there is no reason why such right of action could not be attached in the courts of this state.

As to the second ground.

Defendant claims that even though the declaration and levy be sufficient, the interest of defendant under the will is not subject to attachment.

The will of Peter Cooper Hewitt, deceased, gives to the’ Parmer’s Loan and Trust Company, the executor, certain property, in trust, directs its investment and reinvestment, and then directs the executor “to apply to the use of my said wife, Maryon J. Hewitt” (the defendant herein), a specified portion of the income.

An income from a fund held by trustees under the provisions of a will, which income is directed to be paid to a debtor absolutely, is attachable. Baumann v. Ballantine, 76 N. J. Law 91.

It is contended by defendant that the income to be received by her under this provision of the will is not attachable, because the income is not thus directed to be paid to her but is directed to be applied to her use by the executor.

Whether income “shall be applied” or “be paid over” does not seem to me to make any material difference. The terms are substantially equivalent to each other. Moore v. Hegeman, 72 N. Y. 376, 384. To “apply” is equivalent to “pay.” Williamson v. Snook, 10 N. J. Law 65, 67.

The income from this source is therefore subject to attachment.

As to the third ground.

Defendant contends that any moneys due her as a creditor of the estate by virtue of the agreement between her and the executor are not attachable because the subject-matter attached is neither a debt nor a legacy.

The Attachment act, however, gives the sheriff a right to attach, among other things, the “rights and credits” of defendant. It is true that certain contingencies may arise under which she may not get any money under the agreement, or its payment majr be postponed, but it is nevertheless a “right” of defendant.

The money eventually due the payee of a note is attachable, although not yet due and payable. Briant v. Reed, 14 N. J. Eq. 271.

The rule to show cause will therefore be discharged.


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    EDWARD STERN AND HARRY STERN, TRADING AS LINCOLN AUTO COMPANY, APPELLANT, v. JAMES PAYNE ET AL., APPELLEE.
    Submitted December 21, 1922
    Decided February 20, 1923.
    Contracts — Lease of Motor Vehicle — Garage Keepers’ Lien Act— Contracts Made out of State — Replevin Did not Lie..
    On appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.
    For the appellant, Joseph Beck Tyler and Gorson & Gorson.

    For the appellees, 17. Elmer Brown, Joseph A. Gorio and Bolte, Sooy & Gill.

   Per Curiam.

This was a replevin suit. The plaintiffs, being owners in Pennsylvania of a motor vehicle, on June 10th, 1921, made a contract in that state with J ames Payne and William H. Eoy, which is framed as a contract of lease. Payne and Eoy brought the car into the State-of New Jersey and stored it in Atlantic City, pursuant to the requirements of a clause in the lease, at the garage of Tabbs Brothers, where a storage bill of some $21.75 was incurred, and this not being paid, Tabbs Brothers resorted to -the procedure prescribed in the Garage Keepers’ Lien act of 1915 and supplements (Pamph. L., p. 556) for the collection of the bill. Other claimants intervened under the act, advertisement was had, and the vehicle was sold at public sale for $200, which was sufficient to pay the expenses of seizure and sale and the outstanding claims, including that of Tabbs Brothers. Plaintiffs brought the present suit in replevin on the theory of the decision of the Court of Errors and Appeals in the case of Stern v. Ward, 94 N. J. L. 279, claiming in substance that as the contract, is a Pennsylvania contract, the statute just cited is not applicable, and that no lien upon the car was acquired by any of the claimants under that act. We think that with respect to the claim of Tabbs Brothers this is conspicuously incorrect for, by the very language of the contract invoked by the plaintiffs, it is provided that the car is to be stalled at Tabbs’ garage, which was the place where it was stalled, and where the bill of $21.15 was run up. The Garage Keepers’ Lien act provides in section 1 that where the car is stored * * * “at the request of with the consent of the owner or his representative” there shall be a lien, and viewing plaintiffs as the owners, it seems quite plain that the trial court was justified in finding that the car was stored with Tabbs Brothers, not merely with the consent of plaintiffs, but by their request and, indeed, at their express direction, so that plaintiffs are clearly within the terms of and subject to the New Jersey statute in this particular. If so, the procedure for the seizure and sale of the car is fully supported and the subsequent sale for $200 was a lawful une; more especially as it appears in the case that plaintiffs were aware of most of the proceedings and took no steps either to redeem or to contest them until after the sale was had. This, however, in our view, is unimportant. The present litigation seems to be between the plaintiffs and the purchaser at the public sale, and we make no doubt but that he secured a valid title as against the plaintiffs. As to the validity of the other claims attempted to be fastened by various parties upon the car or the fund, we are not concerned with these at this time for, if the sale itself was a lawful one, as we think it was, the remedy of the plaintiffs, if any, must be against the fund, or those that were paid out of it, with the exception of Tabbs Brothers. There was a judgment in the District Court for the defendant purchaser. This judgment is supportable, not only on the grounds above stated, but because the court was justified in disregarding the • testimony, whereby the plaintiffs sought to prove the law-of Pennsylvania on the subject. Their sole witness on this point was a member of the New Jersey bar who said he was also a member of the bar in Pennsylvania but had not practiced there for nineteen years, and had “attempted in all that time to keep np with the laws of that state, only on occasions like this where somebody had interrupted the peaceful existence of his regular way of things and called him as a witness.” The substance of his expert testimony was that the contract was, by the law of Pennsylvania, a lease, which may readily be conceded without impugning the proposition that if a lessor stipulate that the leased vehicle is to be stalled at a specified garage he may be held to have subjected his reversionary interest to the lien act.

The judgment will be affirmed.


text:
    No. 29
    THE CITY OF NEWARK, PLAINTIFF-APPELLANT, v. THE NATIONAL SILK DYEING COMPANY, DEFENDANT-RESPONDENT. THE CITY OF NEWARK, PLAINTIFF-APPELLANT, v. THE WEIDMANN SILK DYEING COMPANY, DEFENDANT-RESPONDENT.
    No. 30
    Argued November 9 and 10, 1922
    Decided March 13, 1923.
    On appeal from the Passaic Circuit Court.
    Before Justices Kalisch, Black and Katzenbach.
   Per Curiam.

The judgments in the above two cases Fos. 29 and 30'are affirmed, for the reasons stated in the opinion in Fo. 21, the Acquackanonk Water Co. v. the Weidmann Silk Dyeing Co.

The judgments of the Passaic Circuit Court are affirmed.

Note.—See Acquackanonk Water Co. v. Weidmann Silk Dyeing Co., Adv. R., p. 248.