author: Bentley, V. C.

text:
    Mary A. Lewis et al., complainants, v. Albert T. Hunt et al., defendants.
    [Submitted February 9th, 1923.
    Decided March 23d, 1923.]
    Conveyances — Setting Aside of Conveyances Made Without Consideration — Deed in Consideration of Love and Affection Valid — Resulting Trusts — .Constructive Trusts — ^Property Held Jointly — Property Held in Severalty.
    On bill, &c.

      Messrs. Autenreith & Gannon (by Mr. Joseph F. Autenreith), for the complainants.

      Messrs. Melosh, Morten & Melosh (by Mr. Louis G. Morten), for the defendants.
   Bentley, V. C.

This suit involves a bill to set aside a conveyance made by the complainant Mary A. Lewis and her husband to the defendant Albert T. Hunt, and a counter-claim by the said Hunt, wherein Helen Y. Luck and her husband are joined as defendants to impress a trust.

One Margaret T. Hunt, wife of the defendant Hunt, died intestate on the 9th day of January, 1921, seized of three pieces of real estate, which will he referred to as the “Halladay street,” “Jersey City” and “Bayonne” properties, respectively. The first she held in joint tenancy with her husband and is not involved in this suit. The latter two she held in severalty, and it is the character in which she so held that is to be determined.

She left surviving her as her heirs-at-law the complainant Mary A. Lewis and a granddaughter, the defendant Helen Y. Luck, a daughter of a deceased son. She was also survived by the defendant Hunt, who was her second husband, Mrs. Lewis and Mrs. Luck’s father being her children by a former marriage, there having been none as the result o.f her marriage with the defendant.

The bill, in addition to the foregoing facts, alleges that the complainant Mary A. Lewis was seized of an undivided one-half of the Carteret avenue and Bayonne properties: that shortly after her mother’s death Hunt, representing to her that she had no beneficial interest in said lands, requested her to sign a deed of the premises to him, threatening that if she did not do so he would start a suit against her and put her to great expense and costs; that in her ignorance and féar of such consequences she consented thereto, receiving no •consideration; that subsequently she learned that she was the owner of an undivided one-half interest as aforesaid.

The answer admits that Hunt told Mrs. Lewis that he was the equitable owner, and alleges that she well knew the conditions existing at the time of the execution of the deed mentioned in the bill. The defendant, by way of counter-claim, alleges that shortly after his marriage with Mrs. Hunt, who at that time had an estate of not more than $350, it was agreed between them that he should turn over to .her all moneys coming into his hands, whether by way of wages or otherwise, and that such money and all other property should be held in their joint names with the right of survivorship. Mrs. Luck and her husband by this counter-claim 'were made parties to the suit.

On the final hearing the testimony was violently contradictory and was so voluminous that it -would be intolerable to present even a synopsis of it. It presents two main considerations. The first question to be taken up is the effect to be given to the deed from the complainants to the defendant Hunt. The second involves the estate that Mrs. Hunt acquired by the conveyance of the Carteret avenue and Bayonne properties to her.

I am convinced, from the testimony and the comparison of Mrs. Lewis’ bill with her testimony at the final hearing, that she has irrevocably parted with any interest she may have had in those parcels of land by her deed to Hunt. It is highly significant that her testimony not only varies from the aliegations of her bill, but is absolutely inconsistent therewith. Her bill charges that by fraud and misrepresentation as to her rights in her mother’s estate she executed a deed of the property under consideration, and it was rather startling to hear her testify at the final hearing that she did not know she was signing a deed, but was told by the defendant that the paper was “to lift the mortgage” on the Bayonne property. In addition, she swore that when her husband asked the consequence of refusing to sign the deed Mr. Melosh, the solicitor, said: “Then she will have to prove it was not Hunt’s money;” this, in connection with her testimony that Mr. Melosh told her that Hunt could go to court and get the property if they didn’t sign, indicates clearly that she understood her act. It seems to me, for these reasons, there is no alternative but the dismissal of the bill.

In passing, it may be said that the testimony on both sides indicated that up to this time the complainants and Hunt were living in the greatest amity, and at that time or shortly thereafter Hunt took up his residence with the complainants and lived with them until after the filing of the bill. A deed in consideration of love and affection is valid.

Eliminating the suit of Mrs. Lewis there remains for consideration the rights of Mrs. Luck who, as I have said, stands in the position that her father would if he were living. She has made no conveyance of her estate in the properties under consideration. Her rights are the same to-day that they were upon the death of her grandmother. If the prayer of the defendant’s counter-claim against her is to be granted it must, of necessity, be upon the ground that her grandmother held the title as trustee, either under a resulting or a constructive trust, because under the statute no express trust could be proved.

Assuming the truth of all that Hunt says, it is clear that he has not established a resulting trust. It is elementary that where property is purchased by one for a stranger, and the purchase-money is paid by the stranger, and title is taken in the name of the person making the purchase, a trust results. Cutler v. Tuttle, 19 N. J. Eq. 549. This case is cited with approval by Mr. Justice Swaj^ze, speaking for the court of errors and appeals, in Beck v. Beck, 78 N. J. Eq. 544 (at ¶. 548): “But if some of the purchase-money did come from the earnings of Hunt, neither he nor anyone else, now that death has closed the mouth of his former wife, can point out how much. Of course, a complainant cannot come into court and establish a resulting as distinguished from a constructive trust and say that some, he .knows not how much, of his money was used in the purchase of land in another’s name.”

“Where the payment of a part only is claimed, the evidence must show, in the same clear manner, the exact portion of the whole price which was paid.” Pom. Eq. Jur. 1040.

Tn the case of Cutler v. Tuttle, supra, it is said: “There is no doubt that payment of part of the purchase-money will create a resulting trust to the extent of that payment, but the amounts paid by the different parties must be shown with certainty, and the resulting trust will not be held to arise upon payments made in common by one asserting his claim and the grantee in the deed, when the consideration is set forth in the deed as moving solely from the latter, unless satisfactory evidence is offered, exhibiting the portion which was really the property of each, and establishing the fact that the payment was made for some specific part or distinct interest in the estate.” Baker v. Vining, 30 Me. 121; Sayre v. Townsend, 15 Wend. 647; McGowan v. McGowan, 14 Gray 119; 1 Lead. Cas. Eq. 276.

To the same effect is the opinion in Thalman v. Canon, 24 N. J. Eq. 127 (at p. 133), where it is said that there must be clearly established proof of the payment of a definite part of it. To like effect is the case Parker v. Snyder, 31 N. J. Eq. 164; affirmed, 32 N. J. Eq. 827.

The testimony is clear that in addition to the money the .decedent saved from her husband’s wages she acquired considerable means through her exertions in maintaining a boarding-house, which became her separate property under the statute (3 Comp. Slat. p. 3225; Small v. Pryor, 69 N. J. Eq. 606); and it is not only impossible under the proofs but would be impossible under any circumstances to definitely allocate the portions of the considerations of these properties which came from her and those which arose from the savings out of the defendant Hunt’s earnings, because while he is able to state with fair accuracy his wages at the various stages of life there is no way, now that his wife is dead, to determine how much she saved out of the wages that he turned over to her.

Eor these reasons I do not feel that he has succeeded on his counter-claim as to Mrs. Luck under the theory of a resulting trust. I have dealt with the subject of a resulting trust because, although counsel does not contend for one in his brief, yet I feel if Hunt could have established that all or any alloquot part of the purchase price was advanced by him, he-would clearly be entitled to a trust pro tanto.

This leaves for consideration the question as to whether or not he has established a constructive trust.

Vice-Chancellor Van Fleet, in the leading ease of Midmer v. Midmer’s Executors, 26 N. J. Eq. 299 (at p. 304), says:

“The effort always is, in cases of this class, to overcome and destroy a regular, formal, written title, by showing, by evidence less solemn and trustworthy, that the written instrument itself, that though the deed says the purchase money was paid by A, and the lands were conveyed to him for his own use and benefit, yet, in truth, he did not pay the purchase money, but it was paid by B, and the conveyance was not made to A for his own use and benefit, but to him in trust for B. To make such an effort successful, the law, for the safety of titles, requires that the proof shall be of the most convincing and satisfactory kind. Nothing short of certain, definite, reliable, and convincing proof, will justify the court in divesting one man of title to lands, evidenced by a regular deed, and putting it in another. Cutler v. Tuttle, 4 C. E. Gr. 560; Boyd v. McLean, 1 Johns. Ch. 582; Lench v. Lench, 10 Ves. 517.”

This language has been approved by the court of errors and appeals on many occasions, with regard to the proof requisite to establish a trust, and the reason for the burden is so apparent that it would be a waste of time to discuss-it any further.

In the case at bar the' defendant Hunt rests his claim upon his testimony as to the agreement with his wife, corroborated by the testimony of the witnesses Header and Silverstein. The. former, a carpenter, swears that lie was employed by Mrs. Hunt to do some work upon her Bayonne house in the summer of 1918, when he was assisted by Hunt; that in the evening Mrs. Hunt prepared supper for them, and that while talking during or after the meal there was discussed a contest over the estate of a former neighbor of Hunt’s before his family moved to Bayonne named Kaiser; and that Mrs. Hunt, a propos of that subject, said that there would be no contest over the Hunt property because it was held jointly by them and would go to the survivor. This witness did not appear to have a good memory and was unable to recollect many of the surrounding circumstances of this conversation when cross-examined.

Silverstein testified that he and Hunt ,were members of the auditing committee of their lodge, and that twice he had heard Mrs. Hunt make similar statements, once in the year 1915 in talking about the Carteret avenue'purchase and again in 1917 when talking about the litigation over the Kaiser estate. He was also at a loss to recall any of the surrounding circumstances. He said that-Hunt had spoken to him about his testimony after the death of Mrs. Hunt.

Does this proof measure up to tire standard laid down in the Midmer Case ? I feel that it does not. Erailty of human memory, coupled with the friendship of the witnesses for Hunt, lead me to believe that, in all honesty and sincerity, they form but a slender support for an argument that is designed to break the effect of a rule of the greatest importance. In addition, there is the strange slumbering of Hunt during all the years that he lived on terms of the greatest intimacy with his wife and in apparent amity. These properties, with the exception of a bank account the existence of which was unknown to Hunt, constituted all the property that he and his wife had acquired. It seems incredible that over a period of ten years tax bills and receipts, water "bills and receipts, insurance policies, and other documents, could have gone in and out of the home without his being aware of the true condition of the title of the properties involved. While he swears that he did not even attend to the passing of title, it is evident that the loans on the purchase-money mortgages were not made without his joining in those instruments and, probably, the bonds they were designed to secure. It is incredible that this cool, intelligent and observant man could have failed in all the transactions concerning these properties, over all those years, to have had any inkling of the true state of affairs. At least, there is an abiding doubt sufficient to invoke the rule in Midmer v. Midmer’s Executors, supra.

In this state of the proofs, this man asks that this court brand with fraud the woman with whom he lived until the time of her death. It seems to me that to do so would render insecure the title to all property after the owner should, by reason of death, no longer be present to answer the charges made against him.. The .wisdom of the rule laid down by Vice-Chancellor Van Eleet bars the counter-claimant from the relief he seeks.

It is argued in behalf of the complainants that if the defendant Hunt has failed to establish the allegations of his counter-claim it necessarily follows that the complainants have made out their .bill. I think not, because while the proofs of that do fall short of what is required under the rule in this state, yet I do not believe that there was any fraud or misrepresentation practiced as against the complainants. I believe that Hunt told his stepdaughter what he actually believed to be true, and that for some reason she freely and voluntarily relinquished her rights. Whether it was in consideration of the affection that existed at that time between her and Hunt, or because of some promise made to him at the time, or the natural hope that a willing compliance with his request might cause him to reciprocate by devising the property to her I do not know, npr is it necessary to decide. The fact is that she knew she was executing a deed to him and she did it without any such fraud upon his part as would vitiate the instrument.

I will advise a decree in accordance with the foregoing views.


source: Caselaw Access Project

license: Public Domain

text:
    Harry Bijur, complainant, v. Bijur Motor Appliance Company, defendant.
    [Submitted April 16th, 1923.
    Decided April 24th, 1923.]
    Insolvency and Receivers — Insolvency of Foreign Corporations —Sale of Entire Assets under Law of State of Incorporation ■ — Appointment of Receiver or Liquidation by Directors of Corporation Admittedly Insolvent — Sale of Assets under Section 64 of Corporation Act.
    On bill, &c.

      Messrs. Hershenstein & Finnerty, by Mr. Charles Hershenstein, and Mr. Harry Bijur (of the New York bar), on behalf of the complainant.

      Mr. J. Harry Hull, on behalf of the creditor Lionello Perera.

      Messrs. Wall, Haight, Carey & Hartpence, by Mr. Thomas G. Haight, and Mr. Joseph M. Hartfield (of White & Case, of the New York bar), on behalf of the defendants.
   Bentley, V. C.

This bill is for a receiver and is filed against the Bijur Motor Appliance Company, a corporation of the State of Delawaré, authorized ‘to do business in this state. It is filed by the complainant on behalf of himself and all other stockholders and creditors of the company who wish to come in and contribute to the expense of this suit. An independent bill was filed simultaneously by Lionello Perera., and by agreement of all the parties he is to 'be considered as a co-complainant.

The defendant is the successor of the Bijur Motor Lighting Company which, finding itself in financial difficulties during the war, was placed in the hands of receivers. Out of that litigation there came a reorganization and the formation of the present company. The reorganization was financed by the General Electric Company, which thereupon became and has ever since been the principal stockholder and creditor.

The General Electric Company now owns nine thousand seven hundred and fifty shares of the common stock of the defendant company out of a total issue of ten thousand shares, five thousand shares of the first preferred stock of the defendant which is the entire issue of -that class, and two thousand six hundred and sixty-seven shares of second preferred stock out1 of three thousand one hundred and twenty-five issued. In addition, it has advanced and loaned, upon demand notes, $1,300,000, which is now due and owing from the defendant and, furthermore, has purchased $1,050,800 of notes issued by the defendant to other creditors, so that it has acquired all of the debts of the Bijur Motor Appliance Company except $7,900, excluding ordinary current expenses.

The complainant, Harry Bijur, owns one hundred and eighty-nine and one-half shares of second preferred stock and $1,500 of corporate notes; and the complainant Perera is the holder of eighty-seven and one-half shares of the second preferred stock; so that in the complainants there is not represented any of the common stock or the first preferred stock.

The bill charges., that until faced with the conditions consequent upon the world war the defendant’s predecessor was operated under a capitalization of $312,500, at profits ranging from $150,000 to $300,000 a year, and that since the control thereof has come into the hands of 'the General Electric Company the business has been operated at a constantly-increasing loss, until to-day the company is insolvent. That the defendant and its predecessors were organized and conducted for the purpose of manufacturing the necessary machinery for the starting and lighting of automobiles, and that- before the reorganization mentioned above the defendant’s predecessor, or the inventor, before conveying his rights in his patents, licensed the Eclipse Machine Company, for a very smaE consideration, to manufacture under the inventor’s patents, which license has been the subject of litigation which has eventually terminated in upholding the validity of the same. Therefrom, the complainants charge, has arisen a situation whereby between them the defendant and the Eclipse Machine Company' enjoy the control of the manufacture of such devices throughout the world.

On March 23d, 1923, upon notice as prescribed by section 64u of the Corporation act of the State of Delaware, a stockholders’ meeting was held in Hoboken, at the plant of the defendant, where authority was voted by the stockholders to the directors to make sale of all the property of 'the defendant for a sum not less than $240,000, after it was explained to the stockholders that the defendant’s competitor, the Eclipse Machine Company, had -agreed to purchase the plant to be sold for the sum of $240,000. It should be said, in passing, that such sale was not to include cash in bank, claims for excess 'taxes paid, and certain other ehoses in action, but- was, however, to include all patents and patent rights of the defendant.

The insolvency of the corporation is not only abundantly shown but is conceded. So that it becomes a question whether, in its discretion, the court should continue the receiver or discharge him. The argument proceeded upon this theory and the dispute between the parties was whether the directors could and would dispose of the defendant’s assets to the best advantage of all the stockholders and creditors or whether a receiver would discharge that function to better advantage notwithstanding the increased burden of expense. Since the argument, however, there has been presented a further question as to whether or not the directors, under any circumstances, can make a sale of all or any of the assets of the company, in contemplation of the sixty-fourth section of our Corporation act.

The affidavits presented upon behalf of the defendant do not materially challenge the allegations of the bill except to deny that the consummation of the contract with the Eclipse Machine Company will establish a monopoly of the starting and lighting industry in that corporation, with which denial I am inclined to agree,’ because of the fact that it is conceded that at least three of the leading American makes of automobiles do not use a system manufactured under the Bijur patents, namely, the Dodge, t'he Buiek, and the Cadillac.

The principal argument of the complainants is that the patents protecting the inventions made by Mr. Bijur are of enormous value, whereas they are listed in the defendant s statement as having but a nominal value of $8,921.38. The defendant has shown conclusively, so far as subsequent improvement patents are concerned, they are now in litigation and the decisions to date strongly indicate that they are of no value whatsoever.

But the complainant's say, even so, the original basis patent is the one under which the Eclipse Machine Company’s license was made and that the Eclipse Machine Company is making annually a profit of upwards of a million dollars in its manufacture of- starting and lighting devices. It appears that such devices made by the Eclipse Machine Company are the well-known Bendix Drive, of which only a part is manufactured under the Bijur license. The Eclipse Machine Company manufactures an individual part of such device which it sells in tremendous quantities to other manufacturers, and it is impracticable for the defendant to compete in such a trade. The defendant has been manufacturing not a part but a complete starting and lighting ■ system which apparently is used only in the very expensive grade of automobiles such as the Winton and the Eolls-Boyce. In short, it appears that the difficulty with the defendant’s business has been that it is making a high-grade appliance for which there is not a sufficient market to turn them out in production quantities so as to be commercialfy a success.

There has been no direct evidence- upon-'the part of the complainants as to the market value of the Bijur patent and, of course, this burden is upon them: The allegation is made with great- earnestness that such patent or patents are of very great value. But they are assertions only. It does not appear that either Mr. Bijur or Mr. Perera are experts in this matter and, on the other hand, the affidavits of trained lawyers, specializing in patent law, justify the value placed upon such patents by the defendant.. The defendant’s affidavits also show, and I think with all necessary and proper detail, that its officers and directors had tried diligently for the last two years to effect a sale of its assets, naming at least six of the concerns engaged in'a like business, with whom the matter has been discussed. These affidavits further show that, I think in all but. one instance, after an examination of the plant, no offer was made and, in the remaining instance, a tentative offer of $200,000 was made, which was subsequently withdrawn.

Similarly, I am not impressed with the argument that the directors should be removed, because of the fact that under their management the affairs of the defendant have gone from bad to worse. Eor the reasons I have expressed above, I think that the business was a hopeless one from the start because of the character and grade of the device manufactured in competition with a similar device manufactured under a better commercial scheme. There has been no charge of fraud or dishonest3r made by the complainants against the directors of the company. It is true that through the entire argument by the complainants’ counsel there has run an undercurrent of insinuation, but nothing that the defendant could meet. Of course, it is unnecessary for me to spend any time upon such insinuations. Perhaps it may be within the realm of possibility that there is a corrupt agreement between the General Electric Company and the Eclipse Machine Company, but there is not one scintilla of proof to that effect. It is impossible for me to decide this ease upon what may be. I am obliged to arrive at my determination upon the facts that have been proved.

Some point has also been made of the continued expenditures by the General Electric Company in purchasing the debenture notes referred- to above, after the defendant appeared to be hopelessly involvd in ruin. This.seems to me to be rather corroborative of the specific denial that there is any relationship existing between the General Electric Company and the Eclipse Machine Company, as set out in next to the last paragraph of the affidavit of Charles E. Patterson; because, if there had been a corrupt scheme existing between these two corporations to wreck and thus gain control of the defendant company it would not have been necessary for the General Electric Company to squander such a vast treasure. Two million dollars of its money would have done quite as well as three millions.

The complainants also make a determined attack upon the terms of sale of the assets of the defendant, arguing that such terms show that the assets are not being sold for the best interests of the creditors. The principal objection is that paragraph 2 provides that the sale shall be subject to the completion of unfilled contracts and the carrying out of the guarantees of the Bijur Motor Appliance Company in supplying parts and maintaining service stations under the valid contracts of the defendant. It seems to me that this court cannot quarrel with the attempt to honestly abide by contracts made with it in good faith, and that any effort to disregard the terms of such contracts would submit the corporation to liability for damages. That the quantum of such damages might be difficult of ascertainment is no reason why the court should interfere with an effort to honestly fulfill the same.

It is also objected that the terms of sale require the payment of the purchase price in cash at the time of the sale. It seems to me that this is a wise and ordinary precaution against adventurers attempting to gamble with the situation. If large quantities of machinery and other property are to be sold for as price of $240,000 or more it seems to me that any representative bidder would have no difficulty in financing himself in advance of the sale. The bid of anyone unable to do so should be scrutinized with great caution and even suspicion.

In the absence of any proof of fraud or incompetence against the directors there is a very powerful reason for refusing in this easel to remove them by the appointment of a receiver, and that is that by no probability does it appear that to dd¡ so would accomplish the protection of the creditors and stockholders who are complainants. The proofs are that to enable any other stockholder or creditor than the General Electric Company to profit upon the winding up of this corporation it would be necessary that its assets sell for almost $3,000,000 over and above the offer, and only offer, that has been made. That the patent rights could bring the price obtained upon the sale up to that sum is incredible. As I have pointed out before, the value placed upon the patents by the company is justified and corroborated by the affidavits of experts, while the allegation of value by the complainants is without the slightest rational foundation.

Eor the reasons I have indicated, it does not seem to me that this isj á proper case to remove the directors in favor of a receiver or receivers and the necessarily heavy expense thereof (City Pottery Co. v. Yates, 37 N. J. Eq. 543), unless it be upon the ground now to: be considered. The complainants maintain that under section 64 of the General Corporation act it is illegal under any circumstances for the directors to sell the corporate assets. That section provides as follows:

“Whenever any corporation shall become insolvent or shall suspend its ordinary business for want of funds to carry on the same, neither the directors nor any officer or agent of the corporation shall sell, convey, assign or transfer any of its estates, effects, choses in action, goods, chattels, rights or credits, lands or tenements; nor shall they or either of them make any such sale, conveyance, assignment or transfer in1 contemplation of insolvency, and every such sale, conveyance', assignment or transfer shall be utterly null and void as against creditor’s; provided, that a iona fide purchase for a valuable consideration, before the corporation shall have actually suspended its ordinary business, by any person without notice of such insolvency or of the sale being made in contemplation of insolvency, shall not be invalidated or impeached.”

The cases of Hoover Steel Ball Co. v. Shaefer Ball Bearing Co., 89 N. J. Eq. 435; Cope v. Walton & Co., 77 N. J. Eq. 512, and Miller v. Gourley, 65 N. J. Eq. 237, are cited by the complainants in support of their construction of that section. These, however, are all cases involving a preference given by a board of directors acting in the performance of their ordinary duties. No|w>, it must be apparent that directors who are faced with a critical condition such as is contemplated by section 31 of the General Corporation act, act in an entirely different capacity from the same officers in the ordinary performance 'of their duties as the governing body of a corporation. It must be borne in mind 'that the sixty-fourth section was a re-enactmient of section 2 of the act entitled “An act to prevent frauds by incorporated companies.” P. L. 1829 p. 58.

A reading of the cases just cited with this fact in mind makes the situation very different where, as provided in section 31, the consent of not less than two-thirds of all the stockholders authorize such sale. The prohibition against the sale, conveyance, &e., contained in the sixty-fourth section, refers to a sale of property by the directors of an insolvent corporation in the apparently ordinary course of their duties, but as the purpose of that section was to prevent frauds upon creditors, it is not violated when the sale is made in the manner provided by law for the winding up of the affairs of a corporation, the payment of its debts and the distribution of its assets among its stockholders according to their priorities.

It must be apparent that section 61 will not bear the .construction for which the complainants contend when considered in connection .with sections 65 and 66. There, the act authorizes the court to appoint a receiver or receivers of an insolvent corporation within the court’s discretion. Were it true that under the- sixty-fourth section the directors, as trustees, are incapacitated to wind up the affairs of such a company and distribute its assets according to law, then either there would be no discretion as to the appointment of a receiver or else if there were a discretion which the court refused to exercise it would be impossible to ever effectuate the intention of the law.

I will advise an order discharging the order to show cause and the receiver appointed on April 5th, 1923.


author: Leaming, Vice-Ordinary.

text:
    In the matter of the probate of paper writing purporting to be the last will and codicil of Elizabeth H. Lloyd, deceased.
    [Submitted April 9th, 1923.
    Decided April 23d, 1923.]
    Wills — Probate of — Testamentary Capacity at Time of Making.
    On appeal from the Cumberland county orphans court.

      Mr. Louis H. Miller, for the appellant.

      Mr. Leroy W. Loder, for the respondent Temple University.

      Mr. David A. Veeder, for the respondents Prank and Anna Baldwin.

      Mr. Cyrus D. Marter, for the respondent Sophia Woodruff.

      Mr. Edwin F. Miller, for the other respondents.
   Leaming, Vice-Ordinary.

The decree of the orphans court will be affirmed, for the reasons' stated in the opinion filed by Judge Logue.

In reading the testimony one feature, not specifically referred to by the learned judge, has impressed me. Should all the facts and opinions which have been testified to by the witnesses of appellant be accepted as reasonably accurate, it is yet obvious that not later than March, 1916, testatrix had become entirely normal. It is impossible to determine otherwise without improperly disregarding the testimony of the several disinterested witnesses touching her condition subsequent to that date. Indeed, it is the testimony of these disinterested witnesses which is entitled to superior credence, and their testimony is the only testimony which embraces the time when the will was executed. It is also worthy of note that while appellant’s witnesses describe testatrix as having lost interest in all things, including her interest in readirtg, during the period touching which they testify, the disinterested witnesses already referred to touching the later period which embraces the date of the will, all testify that testatrix was an habitual reader with a normal interest in general affairs.

I am also impressed that appellant’s witnesses may be mistaken in their claim that testatrix remained with William Hankins until the day before Christmas, 1915, and was in Millville in March, 1916. I think it more probable that testatrix opened her rooming-house in Philadelphia in 1915, and conducted it until cold weather and then opened her new rooming-house at 262 South Eleventh street, and conducted it until after the will was executed in April, 1916. It was there that Dr.- Conwell visited her shortly before the will was executed.

The health of testatrix appears to have continued to be good during 1916 and 1917. At Christmas time, 1917, she was a clerk in a drug store. By June, 1918, when the codicil was executed, she had undoubtedly become more feeble; but I am convinced the evidence does not justify the conclusion that she did not at that time enjoy testamentary capacity.


author: Per Curiam.

text:
    SOLOMON M. CUTLER ET AL., TRADING, ETC., AS BORAK & CUTLER COMPANY, PLAINTIFFS, v. HERMAN ELLIS, DEFENDANT.
    Argued November 8, 1922
    Decided May 19, 1923.
    Sale of Goods — Plaintiffs Unable to Perform their Part, Which, However, is Capable of Performance, does not Entitle Them to Verdict — Payments on Account of Contract — Charge to Jury — Instructions Given Jury Through Medium of Clerk.
    Oil 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, Thomas Brown.

      Contra, Wight, Wight & Golenbock.

   Per Curiam.

This action was brought by the plaintiffs alleging that the defendant agreed with them to sell and deliver to them ninety-seven barrels of whiskey-at a price of $7 per gallon; that plaintiffs paid defendant $5,000 on account and were ready and willing to pay the remainder of the purchase price and to do all things required of them by the contract; that although plaintiffs did everjffhing required of them by the contract, defendant refused to perform his part and retained the $5,000, for which suit was brought.

The trial resulted in a verdict for the defendant, and this is plaintiffs’ rule to show cause why the verdict should not be set aside.

The first point is that <cby the overwhelming testimony in the case, the trial judge should have charged the jury that if the plaintiffs could not obtain permits, judgment should be found in favor of the plaintiffs for $5,000.”

We do not think that is so. From the evidence it seems to us that by the contract (which was not in writing) the plaintiffs assumed the obligation of getting the proper government permits, and that they did not do. The mere fact that the plaintiffs contracted for the doing by them of a thing that they could not do, but which was not impossible of performance, did not entitle them to a verdict. But another and complete answer to this point is that there was no request to charge the matter which it is now asserted should have been charged.

The second point is that “the trial judge erred by instructing the jury to return a verdict for the plaintiffs for $5,000 or nothing." We think the instruction correct.

The precise complaint seems to be that the judge should have instructed the jury to return a verdict for. $5,000 in favor of the plaintiffs, but that clearly the judge could not' do under the evidence. We, therefore, think the instruction was one of which the plaintiffs cannot complain.

It is further complained under this head that this instruction was communicated to the jury through the medium of the clerk upon their inquiry as to whether they might find a compromise verdict for the plaintiffs for $2,500.

Of course, the manner in which the instruction was imparted was informal and irregular, but that ought not to result in setting aside the verdict, when, as appears clearly, the lawful rights of the plaintiffs were not prejudiced thereby.

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


author: Bergen, J.

text:
    WILLIAM D. KELLY, PROSECUTOR, v. OLIVER B. MERRILL ET AL., POLICE PENSION FUND COMMISSIONERS OF THE CITY OF SUMMIT, DEFENDANTS.
    Decided May 18, 1923.
    Pensions — Police—Act of 1920 — Right to Notice and Hearing— Proof of Membership of Force.
    On certiorari.

    Argued before a single justice.
    For the prosecutor, Alfred A. Stein.

    For the defendants, Gorra N. Williams.

   Bergen, J.

The prosecutor filed his petition with the police pension comniission of the city of Summit February 6th, 1921, praying to be retired with a pension from’his office of policeman under chapter 160 (Pamph. L. 1920), which was denied, and this writ was allowed to review that action. The minutes of defendant show: “Petition of William Kelly, residing at 32 Park avenue, dated February 6th, 1921, asking for retirement on pension was read, and after discussion of the facts in the case, petition was refused, as William Kelly was not a member of the police at the time the act went into effect, nor had he been in any way connected with it since.” The prosecutor was not*present, nor notified that his application was to be considered on the day the action was taken nearly two years after it was filed. No evidence was taken or hearing of any sort afforded prosecutor. The statute providing for the retirement of members of the police department (Pamph. L. 1920, p. 324) provides inter alia that any member of the police department in any municipality, who shall receive any injury resulting in permanent disability, in the performance of his duty, which shall incapacitate him shall, upon the certificate of the municipal physician, or of one designated for that purpose by the pension commission, be retired with a pension.

This authorizes the retirement of any police officer permanently incapacitated as aforesaid, without regard to his desires, but the same section (2) of the act further provides that if any such member of the police department shall desire to retire, because of any injury or disease, he shall apply to the commission, who shall call to their aid the physician of the department, and that the applicant may call to his aid any regularly licensed physician, and that they, or that of any other person called with respect to the matter, may be sworn “before the commission shall determine, by resolution, whether the said person [applicant] is entitled to the benefits of this act.” This clearly intends that the applicant shall have a hearing, with opportunity to prove the facts on which his application is based, and one of them is his membership of the police force. It is not denied that he was duly appointed a policeman in 1905 and served as such until 1917, from which period his connection with the department is a disputed question of fact. It is admitted that he was not removed from his office by the municipal authorities, but the commissioners assumed that he had impliedly resigned, or abandoned his office, without proof of any fact to support it. What the commission did was to hold the petition without action for nearly two years, and then without notice to the applicant, decided that, he was not a member of the police force, and, therefore, not entitled to-the benefit of the act. This was a judicial act determined against the prosecutor without a hearing, or notice that one would be afforded him.

This is contrary to the settled law relating to such proceeding. The action denying prosecutor’s application will be set aside in order that he may have a proper hearing before it is determined against him.

The resolution under review will be set aside, with costs.


author: Donges, J.

text:
    Gloucester County Circuit Court.
    Sarah Agnes Moss, plaintiff, v. John W. Davidson, defendant.
    [Decided April 25th, 1923.]
    Landlord and Tenant — Objectionable Tenancy — Persistent Refusal to Pay Rent — Personal Feeling Between Landlord and Tenant.

      Mr. Austin H. Swackhamer, for the plaintiff.

      Messrs. Avis & Avis, for the defendant.
   Donges, J.

Suit was brought under the Landlord and Tenant act, before a justice of the peace, to recover possession of a dwelling-house, and was, by order, removed to this court.

Three grounds were alleged as causes for removal of defendant from the premises:

1. That defendant had twice defaulted in rent, and had not paid same until suit- was brought to collect same.

2. That defendant refused to pay rent directly to plaintiff, but does so through her attorney.

3. That defendant has made disparaging, if not slanderous, statements concerning plaintiff and has manifested a hostile attitude toward plaintiff.

1. The testimony showed that there was some feeling between plaintiff and defendant (who married the daughter of plaintiff’s husband by a prior marriage), by reason of the disposition of plaintiff’s husband’s property by his will, and that for several months, defendant did not pay rent until required to do so by legal proceedings. His explanation is that he thought he, or his wife, had some lights to the property and that he withheld the rent until the’question was settled. Thereafter he promptly paid the rent to plaintiff’s attorney. For some months he has not been in default. He has recognized plaintiff’s rights as landlord, and there is every reason to anticipate there will be no further delinquency as regards the payment of rent.

Under the proofs, I am unable to conclude that defendant can be said to be objectionable “because of non-payment of rent.”

2. There is undoubtly some feeling between the parties, which has prompted defendant to make payments to plaintiff’s attorney. But, if the agreement of letting required defendant to pay the rent directly to plaintiff, defendant cannot choose the avenue for payment. Plaintiff’s attorney could have refused to receive it and defendant would be obliged to pay it to plaintiff. The fact that it was accepted as a payment to plaintiff, leaves plaintiff in no position to complain thereof. Future payments should be made to plaintiff directly. A continued refusal or failure to make payments as required by the contract might render defendant objectionable under the statute, and result in giving plaintiff a right to possession. 'While a Tew instances of default might not be sufficient to render a tenant objectionable, within the meaning of chapter 93, laws of 1922, I am inclined to think that persistent and frequent defaults, requiring numerous suits to collect, would probably constitute an objectionable tenancy, as contemplated by the act. The legislature intended to make a tenant’s tenure more secure, but did not intend to permit tenants to avoid their duties to pay rent as required by their contracts of letting. Repeated violations would render the tenant objectionable.

3. The statute provides for the removal of a tenant, who is “objectionable because of non-payment of rent or otherwise, in which ease the landlord or lessor shall establish to the satisfaction of the court, that the tenant is actually objectionable.”

I am of the opinion that the term “objectionable * * * otherwise/5 used in the first section of the act under discussion, refers to conduct that would, prior to the passage of the supplement of 1922, have rendered the tenant liable to be dispossessed because of the use to which the property was put, because it was being used for immoral purposes or as a nuisance, or because of some conduct with respect to the use of the property that would subject the landlord to loss, damage or serious inconvenience. The thing dealt with by the legislature is the use of property, and my opinion is that the objectionable acts relate to the use of the property and not to the personal relations of the landlord and tenant. Certainly, no court would read into the act, which deals entirely with property rights, a right to terminate a contract of letting, simply because the lessor no longer liked the lessee and had concluded that the lessee was personally objectionable to him, unless such meaning was clearly and unmistakably indicated in the statute.

I conclude that the statute relates to objectionable conduct in the| use of the demised premises and not conduct that renders .a tenant "persona nongraia” to the landlord.

Under the circumstances of this case, judgment must be in favor of the defendant.


text:
    FRANK H. TUFT, PLAINTIFF, v. ROBERT M. ELMER, DEFENDANT.
    Argued February 20, 1923
    Decided May 22, 1923.
    Action on Note — Renewal of Former Note — Affidavit of Merits Filed but Answer not-Filed and Judgment Taken — Motion to Open Default Judgment.
    On motion to open default judgment.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff, Lewis Starr.

    For the defendant, Waddington & Matthews.

   Per Curiam.

The suit is on a promissory note made by defendant to the order of the plaintiff, so far as we can gather from the papers before us; but plainly this note was in renewal of a former note made by defendant to his own order and endorsed by him and delivered to one Benjamin, who delivered it to the plaintiff with his endorsement; plaintiff, therefore, claiming to be a holder in due course. ' Defendant was served with summons and complaint in this suit, employed an attorney, who filed an affidavit of merits but overlooked filing an answer and judgment by default was entered for want of answer. The application is made under the statute providing for relief against default of the attorney, but, of course, the disposition of the motion remains within our discretion Smith v. Livesey, 67 N. J. L. 269.

Examining into the merits, the situation was, as we find it, substantially as follows: When the first note fell due it had been negotiated to plaintiff, who put it through the banks for collection, and it went to protest. Plaintiff then looked up the defendant and had an interview with him, the details of which are to some extent disputed, and the result of that interview was that defendant made his check for $500 on account of the note to the order of “cash” and delivered it to plaintiff, who later banked it, and it was paid in regular course. Defendant also made the second note, now in suit, and delivered it to plaintiff, but it was not paid.

As has been said, there is some dispute about what was said when defendant gave the present note. Defendant does not deny getting back his former note, but says plaintiff took off the certificate of protest. This plaintiff denies. We do not find it necessary to discuss the point as it seems immaterial. It is conceded that plaintiff erased his endorsement from the first note, as he naturally would when he surrendered it. •There was some conversation on the point that defendant had better settle the first note; he says plaintiff told him it would be better to avoid publicity; plaintiff denies this and says defendant said he realized he would have to stand a loss on the note. The point on which all this bears is that defendant claimed he had given the first note to Benjamin to pay for some mining stock which was never issued, in a mine which never existed, so that defendant got nothing for his note, and naturally did not feel like paying it. Plaintiff has throughout denied any knowledge of fraud in the inception of the note, and asserted that he bought it in the usual course of business.

We think it unnecessary to discuss in detail what was said at the conversation preceding the making of the new note. When the first note turned up in the hands of an endorsee, defendant found himself confronted with the alternative of repudiating the note and standing a suit, or paying it, or getting time. He chose the last b3r paying $500 on account and giving a new note; so that whatever he might have been able, to - assert as a defence to the original note, he seems to have waived, and obtained a compromise of a claim presently due by giving the second note. We think he has failed to make out a meritorious defence which entitles him to an opening of this judgment; especially as he seems to have taken some advantage of the delay to convey certain real estate to his wife.

There is nothing in the circumstances that the defendant’s check was made to the order of “cash.” This is satisfactorily explained by the affidavit of plaintiff that he wished to take it to the bank and draw the money on it at once, and refrained in view of defendant’s request to wait a few days.

The motion will be denied, with costs.


author: Stickel, Jr., J.

text:
    Essex County Court of Oyer and Terminer.
    State of New Jersey v. William E. Battles.
    Criminal Insane — Act of 1922 Relating to Confinement in Asylum Pending Cure Considered — Power of Trial Court — Responsibility Assumed — -Evidence Considered — Adjudication of Sanity.
    On indictment for murder. Opinion and conclusions as to sanity.

      Mr. William B. Brandon, for the petitioner.

      Mr. John O. Bigelow, prosecutor of the pleas of Essex county, and Mr. Joseph L. Smith, assistant prosecutor of the pleas of Essex county, for the state.
   Stickel, Jr., J.

This is a proceeding initiated by the defendant, a person under sentence of death for murder, to determine whether he is so far insane as to be without sufficient degree of reason to be responsible for his crime, so as not to be conscious of having committed the crime he has been convicted of, so as not to be aware he is amenable to punishment, and so as to be unappreciative of his situation as one condemned to death, and, in case he is determined to be so insane, to transfer him to the New Jersey State Hospital at Trenton, there to be confined until he is sane, according to the standard provided by the act.

The proceeding is inspired by chapter 101 of the laws of 1922, page 186, but an examination of that act will indicate that no authority is created by that act in this or any other court to make such inquiry.

It provides what shall be done with persons found insane according to the standards set up by the act, namely, that they shall be transferred to the New Jersey hospital at Trenton and what shall be done with them when so far sane under the act as to be the subject of execution, namely, that they be returned to state prison and the sentence of death carried out, but nowhere does it authorize the inquiry by the trial court. It implies that the court has the power, but does not confer such power.

W’hence comes the power, then, that the act implies the trial court possesses ?

Counsel for the defendant calls attention to section 172 of the Criminal Procedure act (2 Comp. Stat. p. 1817), but that section, clearly by its terms and according to the decisions of this state, does not apply to prisoners under sentence of death. In re Herron, 77 N. J. Law 315; 72 Atl. Rep. 133; In re Lang, 77 N. J. Law 207; 71 Atl. Rep. 17. No other statute has been called to my attention, nor have I been able to find any which confers the power to make the desired inquiry 'in the ease of a prisoner sentenced to death.

It is true that section 437, class E of "An act concerning the charitable, correctional, reformatory and penal institutions, boards and commissions, located and conducted in this state, which are supported in whole or in part from county, municipal or state funds.” Chapter 147, laws of 1918, page 343 (at p. 890), provides that where a person

“in confinement under commitment, indictment or sentence, or under any process, shall appear to be insane; epileptic, imbecile or feeble minded, the justice of the supreme court presiding in the courts of the county in which such person is confined, or judge of the court of-common pleas of said county,”

may make inquiry into such a person’s mental condition and transfer him to a proper institution for treatment, but a mere reading of this section in connection with chapter 101 of the laws of 1922 will serve to demonstrate that the section of the 1918 laws applies to all persons in confinement except those under sentence of death, while the act of 1922 establishes the-conditions under which persons sentenced to death may be transferred to the state hospital. -

In this connection the observation of the court (In re Lang, 77 N. J. Law 207; 71 Atl. Rep. 47), in disposing of a somewhat similar situation, is very-much in point. The court said “we cannot agree that the legislature intended the same test of insanity to be made, the ground of deferring execution indefinitely in a case'like the present. It is of course entirely proper that a lawful citizen, or one accused of crime awaiting trial, or convicted of crime punishable by imprisonment, who is mentally deranged in any way, should be transferred to an asylum for treatment, and, if possible, cure, and also as a measure of protection to the public or his fellow-prisoners, as the case may be. He has his life to lead, and public policy requires that he should be treated so as to lead it to the best advantage on his release, if a prisoner, from his imprisonment. But the case of a murderer sentenced to-death is different. His life is forfeited, and we are not willing to adopt the view that in cases where the law has decreed that a murderer should be put to death, and the court or a jury has found that he is conscious of having committed a crime, is aware that he is amenable to punishament and is appreciative of his situation as a murderer condemned to death, he shall be permitted to escape just' punishment because of a mental infirmity which has no bearing on any of these features of the case.

“If this be the law, the capacity to distinguish between right and wrong with respect to an act of murder would become for all practical' purposes an academic question in ■cases of murder committed under the influence of an irresistible impulse, as in State v. Graves, 5 N. J. L. J. 54; Mackin v. State, 30 Vr. 495, and Gena v. State, 30 Vr. 488, if it could be shown in an investigation under the statute that such impulse was due to mental derangement still persisting; or, indeed, if any other mental derangement, however insignificant or irrelevant, could be made to appear. We should not be willing to say that the legislature intended to enact such a drastic change in our jurisprudence without' some definite evidence of that intent, and such evidence we fail to find in the statute under consideration.”

It will be observed that the legislature by the laws of 1922, chapter 101, has adopted a specific test of insanity as the ground for deferring execution, and that that test is couched in almost the exact language of the court in the Lang Case.

There being no direct statutory conference of the power to make the inquiry in question, we turn to the common law and there we find that the judge of the trial court was bound to grant a reprieve where after sentence the prisoner became insane. The reason given was “not that a man, who has become insane, is not a fit object of example, though this might be urged in his favor, but that he is incapable of saying anything in bar of execution or assigning any error in the judgment.” 4 Bl. Com. 395; 1 Chit. Crim. L. 761; 1 Hale P. C. 34, 35; 1 Hawk. P. C. ch. 1 ¶ 4. And see Freeman v. People, 4 Den. (N. Y.) 9; 47 Am. Dec. 216, and Nobles v. Georgia, 168 U. S. Sup. Ct. 398.

Whether this common law power of the trial court still exists may be questioned, particularly in view of the 'fact that the legislature after at one time providing for the procedure in case of insanity after sentence, including a sentence of death, repealed so much of the law as applied to sentences to death (see In re Lang, supra), but in view of the action of Mr. Justice Lippincott, in In re Edward Clifford, 22 N. J. L. J. 176, in proceeding to make such an inquiry under the rules of the common law, although noting the doubts as to the jurisdiction of the court, and in view of the clear legislative implication of the existence of the power shown by the act of 1922, I determined to make the inquiry, and to do so according to the common law rules, except so far as the act of 1922 may be said to modify such rules or procedure.

The present state of the law is not satisfactory, requiring as it seems to do a long inquiry into the sanity of one condemned to death, even where that issue has been heard and determined at a trial, wherever a physician or physicians retained by the defendant conclude that the defendant is insane according to the standards set up by. the act, and it would seem desirable that the legislature determine as a matter of policy either to confer or deny the power to make this inquiry, or, conferring the power, indicate the circumstances under which the court should initiate such an inquiry.

At common law the judge in his discretion might call a jury to his aid, but in view of the written request of the defendant and the earnest verbal appeal of his counsel, and because I believed the best interests of the state and defendant would be conserved by hearing this matter alone, I proceeded to assume the heavy burden myself.

This burden, this responsibility, is to determine whether the defendant is now, not at the time the crime was committed, so far insane as to be without sufficient degree of reason to be responsible for his crime, so as not to be conscious of having committed the crime of which he has been convicted, so as not to be aware that he is amenable to punishment and so as to be unappreciative of his situation as one condemned to death.

The court fully appreciates the grave character of this inquiry, and no words are needed to describe the responsibility which has been cast upon or assumed by it. It feels it, and keenly.

And because it feels that responsibility, I have given to counsel for the defence the widest latitude in the presentation of evidence, and in the examining and cross-examining of witnesses, while the prosecutor moved, apparently, by similar considerations, has done nothing to hamper the defendant in bringing out to the fullest extent his claims and contentions, but, on 'the contrary, has co-operated in getting before the court such claims, while at all times denying their validity and accuracy, and offering in contradiction thereof the evidence secured by him, so that not only has the insanity of the defendant as of to-day been in fact tried, but his insanity as of the day of the murder as well.

I have listened carefully and attentively to the evidence; have made repeated inquiries to clear up doubtful points in my mind, read all the exhibits, except the transcript of the trial, my memory of the trial being not only clear bnt vivid, and likely to remain so for some time to come, and I have taken time over night to deliberate and weigh the issue.

As a result, the very strong impression which the evidence made xxpon my mind at the conclusion of the hearing has become a fixed conclusion, namely, that William E. Battles not only is sane to-day but was sane at the time of the murder, and that he was then, and is ixow, of sufficient degree of reason to be responsible for his crime; was then conscious that he was committing a crime, and is now conscious of having committed it, that he is now aware that he is amenable to punishment, and was thexx so aware, and that he is now appreciative of his situation, as one condemned to death.

I will not go into an analysis of the exuden ce, but will content myself with a few observations and a brief reference to what appear to me to be salient points in the case.

If the matter were to be decided purely upon the experts’ testimony'- — that is, purely upon the opinions of the experts for the state and the defence, the standing and qualifications of the experts for the state, their opportunity for observation of the defendant, and the basis for their opinion in the light of my own observation of the defendant at this hearing and at the trial, would alone siiffice to satisfy me of defendant’s sanity. Dr. Walter S. Washington, for instance, examined the defendant before the trial, saw and observed him all during the trial, examined him over four hours at Trenton and observed him throughoxxt this hearing. Dr. Horsford, as an expert for the original counsel for the defendant, examined the defendant before the trial and observed him at this hearing, while Dr. Payne and Dr. Beling examined him at Trenton with Dr. Washington and observed him at the hearing. All found him sane; none found, him suffering with dementia prsecox, simple, or any form of dementia. Two of the experts produced by the defendant, Dr. Bosewater and Dr. Dowd, examined the defendant at Trenton over a period of five hours. Neither one had examined him before the trial or witnessed his demeanor at and throughout the trial. Each expressed' the view that he was insane within the act and suffering from dementia praecox, simple. The third defence expert, Dr. Thompson, never examined the defendant at all, and, while expressing the opinion, based upon what he had heard and seen at the hearing, and upon the hypothetical question propounded to the doctors for the defendant that the defendant might, or, perhaps, was suffering from dementia praecox'simple, he, nevertheless, said that except when in the episodes or seizures of emotional insanity, which Dr. Dowd and Dr. Rosewater agreed characterized, or, at least, were present in cases of this kind, Battles would know the difference between right and wrong, would be conscious of having committed his crime, aware that, he was amenable to punishment and appreciative of his present position.

But entirely aside from the fact that four experts for the state and one for the defence practically agree that the defendant is sane within the act and that but two, Drs. Rosewater and Dowd, find otherwise, and that these latter doctors by no means outrank any of the others in experience and qualifications, the nub of the question, it seems to me, lies in determining whether or not the important facts in the defence’s hypothetical question are true, for, if they are not, even the opinions of the defence experts must of necessity be altered.

As I understand it, mental deterioration is always present in dementia praecox, simple, incoherency of speech is usually present, while delusions are sometimes present in simple and commonly jn the advanced stages of dementia praecox, and indifference and suggestibility may be symptoms, probably are. Certainly if none of these elements were in fact present dementia praecox could scarcely be the diagnosis, as' I understand the testimony.

Let us their take up the various elements. Incoherency. It is hard to understand how anyone could find the defendant incoherent in speech. Certainly, he was not at the trial, though his voice was low-pitched and he was, consequently, hard to understand, and the examination by the state’s experts at Trenton reveal anything but incoherency in his answers at that time. Mental deterioriation.. The proof is that he finished the fourth grammar grade; that being so, his answers, except, perhaps, to the arithmetic questions and the “nonsense” questions, certainly do not show deterioriation, while his other answers, and particularly his definition of charity.; justice and goodness, show not only thought but an excellent ability to express it. Moreover, his act in November, 1922, in deceiving the probation office as to his identity, in avoiding the natural effect of his prior record by giving not merely a false name, which probably would not have sufficed to hide his identity, but a false address, false names of relatives and false addresses for them, is something that no one in my memory has been clever enough to succeed in before. And this admitted evidence of mentality and sanity (see the testimony of Dr. Dowd) is the more significant because if the claim of the defence that Battles' showed symptoms of dementia prsecox in his early school life is true, it is practically agreed by all the experts that he must have advanced to the profound or hopeless stage of this disease long before the date of -this occurrence. Delusion. The only delusion testified to was the story of the defendant that Wallace Brooks committed the deed. Dr. Dowd and Dr. Rosewater, who did not attend the trial, characterized it as a delusion. Dr. Washington, who did attend the trial and heard Brooks testify against the defendant, characterized it as a lie. Personally, having heard the story from the defendant almost immediately after the trial, having heard his denial at the trial that he, Battles, committed the crime, and having noted the persistence, with some variations, which he has detailed the story since Brooks testified against him, I am satisfied it is not a delusion. His very persistence in this story; his refusal at all times and up to date under rigid examinations to confess to all the details of the crime of which he has been convicted; the way he withstood the grilling cross-examination of Prosecutor D’Aloia at the trial, all to me negative any thought that he is suggestible, except when it accords with his idea of what will help him, and that he is indifferent only when indifference suits his purpose.

It is clear to me that those facts which are the essentials of the hypothetical question, and the absence of which would require any expert to answer that the defendant was not insane, have not been proved to exist, and do not exist.

I have adverted to some of the things in the testimony which have caused rue to arrive at my conclusion. There are many others, and, of course, I have not based my conclusion on the things I have adverted to alone, but upon a careful weighing, sifting, elimination and consideration of all the evidence.

As I pointed out before, the reason given at common law for deferring the execution of one insane was that he would be incapable of saying anything in bar of execution or of assigning error in the judgment.

There is not the slightest indication in this case that Battles is in that state of mind. On the contrarjq his conduct and answers, his story about Brooks, his unwillingness to admit damaging answers heretofore given while admitting harmless ones, serves to indicate that if anything exists which, if alleged would avail him in bar of execution, he is quite capable of bringing it out.

I am satisfied, therefore, that he is now sane, and, being so satisfied, I deny the relief prayed for-by the petition.

I desire to thank counsel for their courtesy and assistance to me throughout this trying proceeding.

Mr. Brandon — I wish to express my thanks to the court for the wide latitude permitted in an effort to prove the facts set forth in the petition and the prosecutor’s office.


text:
    Esses County Orphans Court.
    In the matter of the probate of a certain paper writing purporting to be the last will and testament of George A. Ohl, Sr., deceased.
    Wills — Testamentary Capacity — Evidence in Case.
    The opinion affirming this case will be found on page 165 of Miscellaneous Reports.

      Messrs. Stein, Stein & Hannock, for the caveators.

      Mr. John Trier, for the proponent.
   Stickel, Jr., J.

I have carefully read the testimony and studied the brief of counsel for the caveator and, as a result, I am of the same mind that I was at the conclusion of the hearing, namely, that the will is not the product of undue influence and that the testator was entirely capable at the time of the making of the will.

The impression I gained from hearing the evidence was the same impression I gained from reading the testimony, namély, that prior to 1919 the testator was a vigorous, virile, strong-minded, and, perhaps, stubborn -individual, accustomed to directing and governing his home, perhaps even to obedience from all in his household, a man of power and of force, a business man of ability and success; an earlier edition it appeared to me of the George A. Ohl, junior, who attended at the hearings and assisted counsel in this matter. As he grew older and his children grew up and acquired interests and families of their own and his wife died and his business interests were taken over by others, he found more and more time on his hands, less and less opportunity to direct and control, perhaps saw less of his children than he would have liked to have seen, and he began to long for companionship, for the catering and making much of, which is so dear to so many old folks who cannot help but remember the days when they were strong and powerful and in their prime, and his thoughts strayed to a new wife and a re-established home of his own. He found a woman, much younger than himself, ready to give him the companionship and the attention and the respect and perhaps the catering he wanted; he found someone -who was willing to make him a home, permit him to rule and govern it and restore him in his own estimation, at least, to some of his pristine prestige. She attended him, cared for him, made him a good wife, companioned him on his trips, perhaps even allowed him to lord it over her from 1912 until 1919 or 1920, when this strong, healthy man had a stroke, which impaired his physical ability, and, perhaps, to a lessor degree, his mental vigor. He then became more dependent on his wife for physical care, and lack of control over certain parts of his body made such care a most disagreeable task.

I-Tis wife, at' this time, gave herself to him unstintingly and unsparingly, and it was but natural that she should creep closer and closer into the affections and esteem of this very old man, so that-when he realized that he possessed but a comparatively small amount of property, and that his children were not in need, and some of them, at least, had plenty, he determined that he would give to the companion of his later years, the woman who had made his declining life as comfortable as possible, the remainder of his worldly goods, and he caused to be executed the deed to himself and his wife for the apartment-house, and later on the will which conveyed the balance óf his personal estate, a small amount, indeed, to his wife.

I do not believe any influence worked upon this man’s mind except the influence resulting from the affection and care, companionship and attention of a faithful wife over-a period of almost ten years, an influence which produced in his mind a feeling that she had earned the perhaps $30,000 or $35,000 represented by his apartment-house and other assets. I doubt very much that the remarks (assuming they were made) which certain of the children are claimed to have made about his second wife, and which one at least is-said to have admitted making, and for which she apologized, which remarks inspired the writing of the letter to Mrs. Braun, had any substantial effect upon the testator in the making of his will or altered or affected his intention to reward his wife. The family, not unnaturally, had resented his marriage so late in life to a woman so much younger, and, undoubtedly, that resentment had communicated itself to or had been felt by the testator. He was a proud man, and I imagine a stubborn man, and that feeling of resentment was in turn resented by him, and, undoubtedly, brought him closer to his second wife. The remarks about her when communicated to him kindled brightly the feeling of resentment, in all probability, and resulted in the letter that was written to Mrs. Braun, but that it changed an intention to leave his estate, or some part of it, to his children, to an intention to leave everything to his wife, I very greatly doubt. At most, I think it only fortified or justified him in his own mind in his pre-existing determination to reward his wife for her service, companionship and attention.

There is absolutely no substantial evidence that any one was excluded from seeing him, least of all his children. There is evidence that in and about the time he made the will members of his family'saw him frequently; there is abundant testimony showing his dominant state of mind when he made the will, and the testimony of Mr. Hey as to the circumstances under which he made the will, in which he told him the history of his life, his trials and success, so far as it indicates a mind undominated, is fully and convincingly corroborated by the testimony of the tenants in the apartment-house, the testimony of several of the testator’s friends, as well as by the testimony of Mrs. Wills, to the effect that when she called to her father’s attention the letter to Mrs. Braun, above mentioned and her exclusion, and informed him that Mrs. Braun did not apologize because she had done no wrong, the father, in the presence of his wife, who it is claimed dominated him, on repeated occasions told Mrs. Wills to tell Mrs. Braun to come over and see her father; come over and square and settle the matter, which Mrs. Braun did not do until her father was on his deathbed.

I am convinced not only of the testamentary capacity of the testator but that the present will represents the real intention of the testator, and I, therefore, admit the will to probate.


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    E. PRALL BIRD, PLAINTIFF, v. MOTH K-L COMPANY, DEFENDANT.
    Decided May 26, 1923.
    Service of Summons on Foreign Corporation — Motion to Set Aside and also to Strike Out one of the Paragraphs in Complaint — Submission to Jurisdiction of Court.
    On motion to make absolute a rule to show cause why the service of a summons and complaint should not be set aside.
    Argued February term, 1933, before a single justice.
    For the motion, John K. English.

    Contra, Richard Boardman.

   The opinion of the court was delivered by

Bergen, J.

The plaintiff resides in New York. Defendant is a corporation of the State of Delaware, with its business office in the State of New York. The summons and complaint in this cause was served on the president of the corporation at his residence in Cranford, New Jersey, and thereupon defendant gave notice of two proposed motions — (a) to set aside the service as irregular upon the ground, inter alia, that defendant was a foreign corporation not doing business in this state; (5)'to strike out one of the paragraphs in the complaint. At the hearing the latter motion was allowed and an order taken and entered by defendant, striking out the part of complaint objected to, and a rule to show cause allowed on the motion to set aside the service, under which proofs were taken, and defendant now moves that the rule be made absolute. Plaintiff objects to this on the ground that the motion to strike out a part of the complaint, and the taking of the rule granting that motion, amounted to a proceeding in the cause by defendant sufficient to constitute a general appearance overcoming any irregularity in the service of the summons. If the action of defendant was a general appearance, any irregularity in the service of the summons was waived thereby and the rule to show cause must be discharged because the defendant has voluntarily submitted to the jurisdiction of the court and availed itself of the benefit of that jurisdiction. The motion to strike out related to a part of the relief prayed for, and not being to the entire complaint, would be subject only to a special demurrer to be availed of under our practice by motion to strike out, but it is nevertheless in the nature of a proceeding in the cause which defendant could not take without appealing to the jurisdiction of the court, for it was in substance and effect a special demurrer, dealt with in a method peculiar to our Practice act, and amounted to a general appearance which waived all objections to the jurisdiction of the court over the cause of action and the person of defendant. United States v. Griefen, 72 N. J. L. 1; Albert v. Clarendon Land Co., 53 N. J. Eq. 623, 625. The rule to show cause allowed on. the motion to set aside the service of the summons will be discharged, with cost, reserving to the defendant the right to plead within twenty days after service of a copy of a rule discharging the rule to show cause.


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    THE STATE, DEFENDANT IN ERROR, v. WILLIAM JAYSON, PLAINTIFF IN ERROR.
    Submitted February 7, 1923
    Decided June 5, 1923.
    Crimes — Assault and Robbery — Defence of Alibi — Examination Regarding Written Confessions — Statements as Evidence— Error in Charge — Form of Written Confession.
    Before Justices Parker, Bergen and Minturn.
    For the state, John O. Bigelow, prosecutor of the pleas.
    For the plaintiff in error, Grosken & Moriarty.

   Per Curiam.

The defendant was indicted jointly with John Brice and Charles Wright for assault and robbery from the person. The case, on behalf of the state, showed that early in the day of October 3d, 1921, two men entered the store of the Beck Hazzard Company, in Newark, New Jersey, which had been opened for business by the manager, a Mr. Choate, who was then the only person there except the two men who had come in. One of these men asked him for a pair of shoes, and then Wright struck him on the head, knocking him down, after which one or both of the men took from his person some money and jewelry. Brice and Wright plead guilty and were sentenced to a term in the state prison. The defendant was then tried, convicted, and has taken a writ of error to review that judgment on which he assigned error, as well as filing specifications of causes, in support of his writ. His defence at the trial rested on an alibi. Brice and Wright were called as witnesses for the state, and both testified that they and defendant arranged to rob the safe in the store; that defendant had formerly worked there and knew the combination, but he did not want to go in until the manager was disposed of, as he would know him;1 that after the manager had been knocked down and tied the defendant was called, came in and attempted to open the safe, but could not because the combination had been changed since he had left his employment in the store, and all three went out, and the money taken from the manager and cash register was divided between the three. The defendant signed two written statements, and in one of them admitted walking with Brice and Wright to within a block of the store on the morning of the robbery, but refused to take part and walked away from the store, but came back just as the other two were leaving, and ran with them a short distance and then walked, and went into an auto bus, into which Brice and Wright followed. The second statement seems to be a part of the first, and concludes that he had never seen either of the other two men since they parted that day. These papers are marked Exhibits D4 and 85. Another exhibit in the case marked Dl was an affidavit made by Brice while in prison on the -22d of June, 1922, about three months before he was sworn as a witness at the trial, in which he said that the first time he met defendant was at police headquarters, which was in March, 1922.

Appellant’s first point argued is that it was improper to allow the state to cross-examine defendant about his written statements. We see no error in this because defendant had testified, on his own behalf, denying his presence at the scene of the crime, but had identified his signature on the statements, and, being in contradiction of his testimony, the state was entitled to prove the statements and their authenticity, and to put them in evidence later. The order of the proof is within the discretion of the court.

The next point argued is that it was error to admit the statements in evidence, on the ground that, although questions were asked, the statement was taken down in narrative form omitting the questions. A reading of the statements show an intelligent and connected statement of facts, which the defendant over his signature certified he had read, that it was true and made of his own free will without threats or promises, and while it denied his presence at the store when the crime was committed, it admitted acts done by him in connection with it that tended, if credited, to'impxxgn his veracity on the question of his denial as to presence at the commission of the crime. Proof of statements by a defend.ant, which are inconsistent with his testimony at the trial, are clearly competent on the question of his veracity, even if such admissions contain the denial of the perpetration of the crime. No other reasons are given, and.the exception was to a ruling admitting the statements in evidence, notwithstanding the objections based on the reasons stated, and forms no basis for the assignment of error on which the argument now made can rest. The argument is that although they were offered for the sole purpose of contradicting certain testimony of defendant, they had the effect on the jury of confessions by defendant that he was present abetting the crime. That they may have permitted such an inference is true, but that objection was not called to the attention of the trial court as a reason for their rejection when offered. As.was said by Mr. Justice Pitney in State v. MacQueen, 69 N. J. L. 522 (529): “Every presumption is in favor of the correctness of the result reached below, unless by the exceptions it is made to appear that some ruling injurious to the defendant was made by the trial judge in violation of some legal principle that was presented at the time for his consideration.” This disposes of the exception so far as the assignment of error under the writ of error is concerned.

Turning to the specification of causes under the one hundred and thirty-sixth section of the Criminal Procedure act (Comp. Stat., p. 1863), it is enough to say that defendant suffered no manifest wrong or injury by their admission. In them he admitted that he was in the company of the other robbers, and went with them on the way to the place the crime was committed and knew what they proposed to do, but refused to enter the store and walked past it; took no part in the crime, but met them after it was .committed. As a witness he testified he had never seen Brice or Wright until at police headquarters after the robbery; that he was not with them on the morning of October 3d, 1921, and was not in the store when the crime was committed, which was entirely inconsistent with the contents of his statements. On his cross-examination he was confronted with his written statements and denied he made any such statement, but admitted his signature to them. The cross-examination was objected to, but admitted as showing a previous statement or admission of facts at variance with his testimony, and were competent evidence impeaching his veracity when he testified that he was not at the place of the commission of the crime, and did not then know either Brice or Wright. That in the statement he denied any participation in the crime, did not render them inadmissible as to other relative facts. The wrong and injury referred to in the- statute means legal wrong and injury, and as the statements were competent evidence on the question of his presence or absence at the perpetration of the crime, their admission was not the wrong or injury contemplated by the statute.

The next point argued is that it was error to refuse to charge as requested on defendant’s behalf that the statements “can be used by the jury only as evidence to contradict the statements by Jayson as a witness in this ease, and cannot be used as affirmative evidence of his guilt of the charge laid in the indictment now being tried, because they were introduced in rebuttal and not as a part of the state’s main case.” Manifestly, this the court ought not to have charged, because whether introduced in rebuttal or as a part of the main case for the state, if otherwise competent, was of no consequence. The order of proof is within the discretion of the court which was not abused.

The next point is alleged error in the charge. The proof shows that while Brice was in state prison, the defendant, his father, Wright, and the attorney of defendant, Dr. Appel, went to see him, and claimed to have obtained an affidavit, made by Brice, that the first time he met the defendant was at the police headquarters in Newark, which was admitted as evidence on defendant’s behalf. Brice admitted his signature but denied that he understood its purport, but was told if he signed it he would get out. When the affidavit was produced there were present, besides those named, a number of prison officials who were not called as witnesses. Appel testified that Brice made a statement that defendant was not with him when the crime was committed, which he wrote down in the shape of an affidavit, which Brice refused to' sign, and that he destroyed it, and he prepared the affidavit produced, and Brice signed it. The alleged erroneous part of the charge is based on the foregoing summary of facts on wjhich the court charged that it was a salient circumstance that the officers of the prison who were present when the affidavit was made were not. called, was witnesses to prove that Brice did in fact make the statement. This was a mere comment on the weight of the evidence of appellant, the lawyer and defendant’s father, which might have been corroborated by persons disinterested, and their absence a ground of fair comment so long as the jury were not controlled, and they were not.'

Another point is that the court erroneously charged the jury that, in Iris opinion, it was a salient circumstance that appellant had destroyed the record he made of the first statement Brice made and refused to sign. This was nothing more than a comment on the evidence, and not. reviewahle.

The next matter argued is that when the officer, Ryan, who wrote defendant’s statement, was asked what it represented, answered,-“It represents his confession of being implicated,” and at this point he was interrupted and defendant moved to strike out the answer, and the state consented. The- error claimed is that the court made no ruling, but was it asked to do so, both parties acting as though by consent of parties it was stricken out. At any rate the court did not refuse, and defendant did not insist on an affirmative ruling.

Another point made is that the verdict is against the evidence. This point was not argued,- and, therefore, may be considered as abandoned, but our consideration of the evidence leads us to the conclusion that it is not against the weight of the evidence.

The other points made are without merit or not argued. The judgment will be affirmed.


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    THE CITY OF PASSAIC AND BERNARD GILLEN, COMPLAINANTS-PROSECUTORS, v. LOUIS GROSS, DEFENDANT-RESPONDENT.
    Decided June 4, 1923.
    On petition for reargument.
    Before Justices Kalisch, Black and Katzenbach.
    For the petition, Collins & Corbin (Edward A. Marldey and Charles W. Broadhurst, of counsel).
   Per Curiam.

The matter set forth in the petition for a rehearing having been duly consideerd, the application for a rehearing is denied.


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    BOYERTOWN BURIAL CASKET COMPANY, APPELLEE, v. PUBLIC SERVICE CORPORATION, APPELLANT.
    Decided June 5, 1923.
    Negligence — Rear End Collision of Vehicles — Rule of Road Regarding Driver of Rear Vehicle — Instructions to Jury.
    Before Justices Parker, Bergen and Minturn.
    For the appellant, Leonard J. Tynan.

    For the appellee, Arthur T. Vanderbilt.

   Per Curiam.

Plaintiff recovered a judgment against defendant based on a collision between their respective vehicles, from which defendant has appealed, the only ground argued being an alleged error in the court’s instructions to the jury. From the evidence it may be inferred that defendant’s trolley car was standing at a regular stopping point; that plaintiff’s servant, driving a truck, passed it, and then turned on the tracks of defendant; that after going a short distance plaintiff’s driver, desiring to leave the tracks to the left, held out his hand to give defendant’s servant notice* of his intention, but before his truck was entirely clear of the track was struck from the rear by the approaching trolley car, causing the injury to the truck for which plaintiff recovered.

The instructions objected to are: “If there is a vehicle in front and a vehicle behind, and the driver of the vehicle in front indicates his intention 'to turn, the driver of the vehicle in the rear must have his machine under such control that he can, under reasonable operation, stop and prevent collision. He must use reasonable care, the same care that a reasonably prudent man would use in the same situation. If the driver indicates his intention to use another part of the road by extending his hand, then the driver of the vehicle in the rear must have his inachine under such control that he can slop and prevent a collision.”

The argument of appellant is, “The charge declared that when one vehicle is traveling in the same direction as, and behind, another vehicle, the rear vehicle must be so controlled that it positively will not hit the vehicle in front, regardless of the method of operation of the vehicle in front.” We cannot accede to this proposition. All the court said was that in the situation stated the trolley driver must use reasonable care and have his machine under such control that he can, under reasonable operation, stop and prevent a collision, if the driver of the vehicle in front indicates his intention to turn. This is far from making it a positive duty ‘to, in all cases, prevent a collision. The charge is in line with that approved in Consolidated Traction Co. v. Haight, 59 N. J. L. 577.

The judgment will be affirmed, with costs.


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    JOHN AMICO, PLAINTIFF, v. LORRIE DAMATO, DEFENDANT.
    Submitted February term, 1923
    Decided June 5, 1923.
    Negligence — Collision Between Motor Trucks — Accident at Street Crossing — Counter-Claim for Damages — Evidence Considered.
    On cross action. On counter-claim.
    Before Justices Kalisch, Black and Katzenbach.
    For the plaintiff, Morrison, Lloyd & Morrison.

    For the defendant, Collins & Corbin.

   Per Curiam.

This case is before us on a defendant’s rule to show cause why a verdict rendered in favor of the plaintiff should not be set aside and a new trial granted. The .suit arose out of a collision between two motor trucks. The defendant filed with his answer a counter-claim. Each party contended the accident was due to the negligence of the other. The motor truck of the plaintiff was being driven by his son on Rochelle avenue, in Rochelle Parle, Bergen county, southwardly, towards the borough of Lodi. Rochelle avenue extends along the easterly side of Saddle river. It is crossed at right angles by Essex street, which is continued over Saddle river by means of a bridge. The driver of the plaintiff’s truck testified that as he was approaching Essex street he blew the horn of his truck and saw no vehicle approaching the crossing. When he reached the center of Rochelle avenue, the truck which he was driving was struck by the defendant’s truck, which was being driven in a westerly direction, and knocked towards the bridge ■crossing the river. He further testified that the truck of the defendant was going “pretty fast,” and did not stop until it had proceeded a distance of two hundred and fifty feet.

The driver of the plaintiff’s truck was the only eye-witness testifying for the plaintiff. Another witness for the plaintiff testified that when he reached the scene of the accident the plaintiff’s truck was facing north on the right hand side of the road, about two feet from the bridge, and that in the centre of the street there were marks showing the direction the plaintiff’s truck had taken toward the bridge. The court, upon this testimony, declined to nonsuit. The driver of the defendant’s truck testified that he was going west on Essex street and had the two front wheels of his truck half on the bridge when he was struck by the plaintiff’s truck, that the front spring and chassis of the plaintiff’s truck were locked in the right rear wheel of the defendant’s truck. ■

The trial court refused to direct a verdict for the defendant. We think the rulings of the trial court were correct. The plaintiff, under the traffic act, had the right of way at the crossing. This, it is true, is but a circumstance to be taken into consideration in deciding the question of negligence, but this, taken in connection with the testimony of the driver of the plaintiff’s truck and the testimony of the marks on the road after the collision, was, we think, sufficient to permit the case to go to the jury on the question of the defendant’s negligence. There was also sufficient evidence on behalf of the defendant to warrant the submission of the defendant’s counter-claim to the jury. The evidence presented questions peculiarly for the determination of a jury. The jury evidently believed the testimony offered on behalf of the plaintiff. We are of the opinion that the jury was warranted by the evidence in accepting the plaintiff’s version of how the accident occurred and that the verdict is not contrary to the weight of the evidence.

The rule to show cause is discharged.


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    CITY OF BRIDGETON, DEFENDANT, v. LEWIS B. KESSLER, PROSECUTOR.
    Decided June 4, 1923.
    Jitney Ordinance — Alleged Violation of for Driving Without License Thereunder — Evidence Considered — Ordinances Imposing Penalty Strictly Construed.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, John W. Westcott and Henry O. Burt.

    For the defendant, Walter H. Bacon, Jr.

   Per Curiam.

The prosecutor was convicted in the mayor’s court of the city of Bridgeton of a violation of section 1 of its ordinance No. 298, approved July 11th, 1922, and July 17th, 1922, in that the prosecutor did cause to be operated, partly over the streets of the city of Bridgeton, an auto bus or jitney without having obtained a license therefor.

Section 1 of the ordinance alleged to have been violated provides: “All auto buses or jitneys operated or to be operated over specified routes, wholly or partly within the limits of the city of Bridgeton, shall be licensed, the drivers thereof shall obtain operators’ permits, and auto buses or jitneys shall he operated in accordance with the consents granted under the provisions of this ordinance.”

The complaint upon which the conviction was had is radically defective in several respects.

In the first place, there is nothing contained in section 1 of the ordinance which relates to a person causing a jitney or bus to be operated, &c. Section 2 of the ordinance, however, provides that, “Every owner, -lessee or possessor of an auto bus or jitney, as defined by section 1, before operating or causing or permitting to be operated any such auio bus or jitney, shall make application, &c., for a license for each auto bus, &c.

Now it is quite manifest that if the prosecutor caused an auto bus to be operated without having obtained a license therefor, he could not be properly convicted upon a complaint which charged a violation of section 1. But even if section 2 could properly be said to be a part of section 1, the complaint would still be fatally defective, since it does not allege that the prosecutor was either owner, lessee or possessor of the said auto bus or jitney, and it is to this class of individuals that section 2 exclusively applies. The prosecutor was entitled to be informed by the complaint whether he was charged as owner, lessee or possessor of the auto- bus or jitney, so that he might be apprised in what particular respect he had violated the ordinance. Furthermore, the complaint charges that it was either an auto bus or jitney, which the prosecutor caused to be operated, thus stating the subject matter of the complaint in the alternative which has repeatedly been held to be bad, since it tends to embarrass & defendant in his defence.

Statutes or ordinances, the violation of which subject a person to a penalty, must he strictly construed. Nothing can be intended in favor of the validity of the complaint or the proceedings. These legal rules are so familiar that citation of eases in support of them is unnecessary.

The record before us further discloses that at the trial Walter H. Bacon, Jr., was called as a witness on behalf of the city, and, against the objection of counsel of the prosecutor, was permitted to testify that he addressed a letter to the commissioner of motor vehicles, at the state house, Trenton, N. J., reading as follows: “Will you please furnish me with name and address of the owner of each of the automobiles bearing the following New Jersey licens'e numbers, 023113, 023114, 023115, 023148, 023152,” and that he received a reply on the letter which he wrote to the commissioner, that the owner of the automobile bearing the New Jersey license numbers of 023113 and 023114 was the prosecutor. The letter was offered in evidence and was objected to by counsel of prosecutor.

This testimony was clearly hearsay and was improperly received, and as it related to a matter material to the issue, is an additional reason for a reversal of the judgment.

Judgment reversed, with costs.