author: Newman, J.

text:
    Passaic County Circuit Court.
    Paterson Glass Company, a corporation of the State of New Jersey, plaintiff, v. Max Goldstein et al., defendants.
    [Decided January 6th, 1924.]
    Mechanics' Lien — Motion to Discharge — Question of Prosecution of Suit Within Year — Facts Considered and Liens Discharged.
    On mechanics’ lien. On motion to discharge lien.

      Mr. Wübur A. Heisley, for the plaintiff.

      Messrs. Weinberger & Weinberger, for tho defendants.
   Newman, J.

This matter is before me on application to discharge the lien as to defendants Weinberger and Hartstein, Superior finance Corporation and Samuel Slaff, mortgagees, on the ground of failure to prosecute the suit diligently within one year from the date of issuing summons.

The motion was before be originally only as to defendants Weinberger and Hartstein. At the argument of that motion, on December Gth, counsel for plaintiff maintained that the motion could not be disposed of, except by an inquiry as to the facts, and sought permission to offer testimony upon that issue. On December 11th I filed a memorandum agreeing with him as to that contention, and notified counsel that I would try out that issue on December 29th, 1924. At that time counsel for both sides appeared for such purpose. In the meantime counsel for mortgagees Superior finance Corporation and Samuel Slaff had given notice of a similar application in their behalf, and counsel thereupon agreed that the testimony as then to be taken should be applicable to the application of all three of the mortgagees.

Testimony was_ thereupon taken on that issue. T do not find any dispute as to the facts. The only dispute being the inference to be drawn from those facts, and whether, under the circumstances, the plaintiff did prosecute his suit diligently within one year.

The summons in this case was issued on November 27th, 1923, and was served upon Goldstein, the builder and owner, on December 3d, 1923. It was not served upon the mortgagees until November 29th, 1924. The reason for this delay on the part of the plaintiff was that after he had filed his lien, to wit, on December 4th, 1923, the plaintiff, in common with other prospective lien claimants, entered into an agreement with Samuel Slaff and Samuel Eichenbaum, whereby they assigned, transferred and set over unto said Slaff and Eichenbaum all their right, title «and interest in the property upon which plaintiff had placed this lien, and also assigned to them whatever claim, interest, right or liability of any kind it might have against said building. Under the terms of that agreement these so-called trustees were to and did take title to the premises, and were to complete the building and pay the creditors upon a sale of the building, in accordance with the terms of said agreement as therein expressed. The agreement further provided that the object and intention of the parties of the first part> of whom plaintiff was one, was to obviate, eliminate and extinguish any interest or claim that the parties of the first part might have in the property, so as to vest a complete fee-simple interest in the property in Slaff and Eichenbaum. The agreement further provided that in case of any breach of the agreement on the part of the trastees, or a certain bond in the sum of $100,000, which they had given to the creditors, that then and in that event the creditors who were parties to the agreement might proceed to file claims.

The testimony of Mr. Loch, who was then the attorney of record of the plaintiff, shows that it was the intention of the plaintiff thereafter to abandon his right of lien in the belief that it would be adranageous to it, and the president of the plaintiff' company testified that he believed in would be for the best interest of the plaintiff to sign the agreement.

No proceedings under the lien were .taken by plaintiff after serving this builder and owner on December 3d, 1923, until the summons and complaint were again placed in the hands of the sheriff on November 29th, 1924, for service upon the mortgagees. The present attorney of the plaintiff became interested in the matter in September, 192-1. The original summons and complaint had been withheld from the files of the clerk of the county, and was not filed in his office until December 8th, 1924.

Counsel for plaintiff argues that these facts show a prosecution with reasonable diligence under the circumstances, and cites in support of his argument the case of Ennis v. Eden Mills, 65 N. J. Law 577. I do not regard the circumstances in that- case as analogous to the case at bar. In that case the property was custodia legis, and the court held that the plaintiff might, under those circumstances, expect the chancery receiver to marshal the assets according to the priority of any liens against it, and that whether he could have enforced any judgment against the property by sale would hare rested in the discretion of the chancellor, and that he might, while in the exercise of reasonable diligence, have deferred entry of judgment.

In the case at bar, plaintiff had never served the summons on these defendants until a year and two days after its issuance.

In that case the delay, in vieyv of the necessity of permission of the chancellor to dispose of the property, might be in the nature of an involuntary delay. Tn the ease at bar the delay' was purely voluntary on the part of the plaintiff, because it thought that in the pursuit of such course it might be more likely to obtain its money, in view of the fact that the building yvas not completed.

I clo not think that jeopardy of its financial interest is a matter which may be taken into consideration in determining the question of -diligence. It seems to* me that diligence would, in.the meaning of the statute, mean ordinary care towards the prosecution of the suit, taking into- consideration all the facts, including obstacles over which the plaintiff has no control, and delay, to- which the conduct of the defendant is a' contributing canse, or works an estoppel. .-

In the case at bar there were no obstacles for plaintiff to overcome, except the terms of the contract, to which it was a voluntary partjq'and to which defendants were not a party and over which they had no control. During the entire year they had no official knowledge by way of summons and complaint that the validity of their liens was challenged by the plaintiff.

It is argued by counsel for plaintiff that the fact that defendants were not parties to< this contract cannot effect the question of diligence. In the absence of any evidence, where no summons had been served for more than a year, the defendants would doubtless be entitled, as, of course, to a discharge of the lien. If the argument of counsel for plaintiff be sound, then this plaintiff could have entered into an agreement for a period of five years, or even ten years, during which time the validity of the liens of these mortgagees would still have remained open and undetermined. This argument does not appeal to- me as being sound. If sound, it could be used as an instrument to- harass and vex a mortgagee. During all that time he would be unable to dispose of his security, and its validity would remain in a state of uncertainty.

I find, therefore, as a fact, that as to> these mortgagees the plaintiff failed to prosecute its claim diligently within one year from the date of issuing such summons.

One other ground of discharge is urged by the mortgagees, to wit, that the claimant failed to- have summons issued in the suit within four months from the date of furnishing materials. The last materials were furnished July 27th, 1923, and'the four months expired on November 27th, 1923. Summons was issued and sealed by the clerk on that date. Counsel for the defendants, however, urges, that the summons is not issued until delivered to the sheriff, and cites as his authority Wharton v. Ward, 91 N. J. Law 45. I find nothing in the statute to support this contention, and, in fact, the case cited by counsel is authority to- the contrary.

An order may therefore be presented discharging the lien as to defendant Weinberger and Hartstein, Superior Finance Corporation and Samuel Slaff, mortgagees.


source: Caselaw Access Project

author: Campbell, J.

license: Public Domain

text:
    HARRY E. BALM, PROSECUTOR, v. THE CITY OF CAPE MAY AND FLOYD C. HUGHES, CLERK OF THE CITY OF CAPE MAY, RESPONDENTS.
    Decided January 3, 1925.
    Municipal Manager — Necessary Signatures to Petition For Referendum Election — Withdrawals After Filing — Petition Considered as Filed Day of Presentation — Clerk Without Discretion Under Statute to Consider List But Forthwith Must Call Election — Withdrawals From Petitions May Be Effective After Filing and Before Official Action is Taken, But Not After — When Action Is Required to be Taken Forthwith, Petitioners Csnnot Withdraw After Filing.
    Eor the p-osecutcr, Louis H. Miller.

    Eor the respondents, Lewis T. Sievens.

   The opinion of the court was delivered by

Campbell, J.

The writ of certiorari in this case was allowed fop the purpose of reviewing proceedings for the bringing on of a special election in the city of Cape May, at which would be submitted the question of the adoption of an act of the legislature entitled “An act relating to, regulating and providing for the government of municipalities, except counties, by a municipal council and a municipal manager,” approved March 19th, 1923. Pamph. L. 1923, ch. 113, p. 217.

The cause was heard by consent, under the statute by myself, as a single justice of the Supreme Court.

There were several reasons assigned, but the single one argued was that while the petition or petitions required by the statute in question to initiate the calling of the election contained, when lodged with the city clerk, the signatures of the necessary number of electors yet when such petitions were actually marked filed bjr such clerk, withdrawals had reduced the number of signers remaining below the number required.

Counsel have stipulated “that the facts set forth in the petition for the writ of certiorari herein are true.”

Those facts, so far as they are pertinent to- the foregoing reason urged by the prosecutor, are:

That the petition must contain the names of at least one hundred and eighty (180) voters who voted at the last preceding election held, for the purpose of electing members of the general assembly as shown by the official canvass of such election.

That said petitions were lodged with the city clerk on December 2d, 1924, and were then signed, or purported to- he signed, by two hundred and twenty two (222) persons, being forty-two- (42) mo-re tlian required by the statute.

That the city clerk proceeded to examine such petition for the purpose of determining the authenticity of the signatures, and whether or not they were those of persons qualified voters of the city who had voted at the last preceding election for members of the general assembly. That while such clerk was making such investigation, and on December 2d and 3d, fortv-six (46) of the signers, in writing, filed with him, withdrew'their names, thus, leaving such petitions, if such withdrawals are legally effective, with one hundred and seventy six (176) names, or four (4) less-than the necessary number.

That on December 4th, 1924, the city clerk actually marked such petitions filed, and then, as having been filed as of: the date, they were placed in Iris hands, namely, December 2d, 1924.

That on December 8th, 1924, the city clerk took steps to bring on the special election, fixing December 30th, 192 k as the date therefor, and posting, and otherwise giving notice thereof.

The single reason, before referred to as urged by tlie prosecutor, was argued in a twofold manner.

1. That although the petitions wore lodged with the city clerk on December 2d, 1924, and eventually by that officer marked filed as of that date, yet, as a matter of fact, he did not act upon them or actually mark them filed until December 4th, 1924, and because prior to December 4th there having been enough withdrawals of petitioners to reduce the number below that required by the statute, he could not call the election, because the petitions were then insufficient.

2. That whether or not the petitions are considered filed as of December 2d or December 4th, yet the city cleric took no actual steps to bring on the election thereunder until December 8th; 1924, and at that time, by the aforesaid withdrawals, the petitioners had been reduced below the number required by the statute, and the clerk had nothing upon which he could legally act.

Upon the question of the date of filing it is the rule that the date of filing endorsed upon a document by the official with whom it is required to be filed is pñma facie proof of its filing on such date. It is likewise true that it may be shown that such endorsed date is not the true date of filing, but I know of no authority permitting an official to receive a document required by statute to be filed with him or in his office and withhold it from his files to some subsequent date unless so authorized ,bv statute.

Now, the statute in question by section 402 of article 4 provides: ‘Upon such petition or request in writing being filed with the municipal clerk, the said clerk shall forthwith call an election * *

The statute nowhere, that I can discover, gives the municipal clerk any discretion. When placed in his hands the petition is filed under the statute^ and that irrespective of what time subsequent thereto he actually enters thereon the date of filing, or whether he makes any such entry or endorsement.

So, that under the statute -and the facts before me I must and do find that the petition was filed December 2d, 1924, and that when it was so filed it contained the signatures, or what purported to be the signatures, of two hundred and twenty-twoi (222) voters of the city of Cape May.

Upon the question of the right of petitioners to withdraw their names and cancel their consents or requests prior to December 8th, 1924, when the city clerk actually proceeded to take steps to bring on the special election, I am also.required to find against the contention of the prosecutor.

In statutory proceedings, of the character here under review, where jurisdiction is placed in a public officer to perform an act by petition, or where jurisdiction is directly given subject to. bo defeated by remonstrances, the rule is that withdrawals may be legally made up to the time fixed by the legislature for the taking effect of the jurisdiction or authority reposed in the public officer or public body.

In Biddle v. Riverton, 58 N. J. L. 290, an ordinance of the borough of Biverton directing an election to determine for or against an issue of bonds for electric lighting was under review. One of the statutory conditions precedent to the passage of such ordinance was a petition or consent in writing of the owners of more than one-half in value of the taxable "property in the borough. This was required to he in the hands of the borough council at the time of the adoption of the ordinance. The ordinance was passed December 31st, 1894. The council had before it a consent of the requisite number of taxpayers, dated December 26th, 1894, hut between that date and date of passage of the ordinance enough petitioners had withdrawn to reduce the number below that required by the statute, and, therefore, the council were not authorized to pass the ordinance because at the time of passage of the ordinance, being the time fixed by statute, they did not have the requisite number of petitioners. „

In Bachman v. Phillipsburg, 68 N. J. L. 552, the granting cf a saloon license was under review. One Gledhill, having signed the application, withdrew his name before the application was actually presented for action of the council.

And such withdrawal was held to- be effective. The court said: “We hold that the application must speak as, of the time when it is officially presented to the council and official cognizance is taken of it. Prior to that time names may be added or withdrawn. After that time the application is not subject to change.”

In Currie v. Atlantic City, 66 N. J. L. 140, the question was the withdrawal of consents for ihe construction of street railway lines after such consents, had been filed with the city council, and the conclusion of this court was that jurisdiction having been conferred upon the city council by their filing they could not be withdrawn and such jurisdiction taken away.

In Wilson v. Collingswood, 80 N. J. L. 626, a resolution of the council of the borough of Collingswood providing-for the submission to the voters the construction of water works was under review. There the statute required that such an improvement might not be undertaken except on application of one-fourth of property owners, and then thirty (30) daj's’ notice of intention to submit the proposition to the voters must be given, “and if within sixty (60) days after the first publication of such notice a remonstrance of at least one-half in value of the property owners be filed with the borough clerk, no election or further, proceedings shall be had.”

' Remonstrances amounting to more than the requisite one-half were filed, and from time to time there were withdrawals therefrom, and if such withdrawals were effective, then neither at the end of the sixty days, nor- at any time before, were there sufficient- remonstrances in force to1 defeat the scheme.

This court therein held: “The situation existing at the end of sixty days was controlling, and the inquiry should be whether at that time there were on file and in force sufficient remonstrances to oust jurisdiction, if not, the council might proceed. Up to that crucial point remonstrances might’be made or withdrawn * * *.”

To the same effect is Brodhead v. Flemington, 85 N. J. L. 25.

In Ford v. Gilbert, 89 N. J. L. 482, the action of a city clerk in finding insufficient a petition to initiate an ordinance was under review. The petition was filed May 21st. 1915, and a-t the time it was filed it contained the requisite number of signers. The statutory period of ten (10) days within which 'it was the duty of the clerk to examine the petition and certify the sufficiency thereof to the co-mmissioners expired at midnight, May 31st, 3'915. Late in the afternoon of that day, prior to the meeting of the commissioners, the clerk was presented with a petition of twenty-one (21) signers of the original petition asking that their names be withdrawn. Thereupon the. clerk presented such petition of withdrawal to the commissioners at their meeting that night. The commissioners passed a resolution permitting the withdrawal of the names requesting such withdrawal. Under the statute the clerk was required to examine the petition, and ten days were given him for this purpose. If he determined that it did not conform to the statute, he was charged with the duty of returning it to the agent, who filed it for the purpose of correction. Also, if the clerk believed the petition defective, he might present his objections to a Supreme Court justice, who was to proceed in a summary manner to examine the objections of the clerk and make an orden therein final and binding on all parties concerned. None of these statutory requirements were complied with, but in lieu thereof the clerk took it upon himself to present the withdrawal petition to the commissioners, and after then-resolution permitting the withdrawal was passed he issued his certificate that the petition was insufficient.

This court held therein: “The statute imposes, the duty upon ihe clerk to examine the petition and ascertain whether it is in conformity with the requirements of the statute. After he has done this, if he accepts and files the petition, the first step in the matter is completed, and jurisdiction vests. It is then too late for the signers to withdraw.”

Now, in the instant case, as I have already stated, tire statute makes no. provision for an examination of the petition by the municipal clerk.

The provisions of the act are:

Section 401, article 4. “This act shall be adopted by any municipality by a majority of the legal votes cast at a special election to he held in such municipality, which election shall he called by the municipal clerk upon request or petition in writing of the legal voters of the municipality not. less in number than fifteen per centum of the number of persons who voted at the past preceding election held for the purpose of electing members of the general assembly as shown by the official canvass o£ such election; and at such election no other proposition shall be voted upon.” And section 402. “Upon such petition or request in writing being -filed with the municipal clerk, the said clerk shall forthwith call an election to be held * * *.”

The city clerk was clothed with jurisdiction, and, in fact, was impressed with the duty of calling the election immediately; that the petitions were filed with him, and both by the legislative language and the authorities relating to the subject it was too late for petitioners to withdraw after such petitions were placed in the hands of the city clerk.

The writ of certiorari must therefore be dismissed, with costs.


author: Rpnyox, District Judge.

text:
    United States District Court, District of New Jersey.
    In the matter of the Press Printers and Publishers, Incorporated, bankrupt.
    Bankruptcy — Mandamus to Enforce Payment of Claim — Such Writ Cannot Be Used as Writ of Error, Nor Where Another Remedy Exists — Instrument Bears Name of “Lease,” But is, In Fact, a Conditional Sale Agreement — Recorded as a Chattel Mortgage — Failure to File Within Ten Days, Etc., As Required by the Conditional Sales Statute, Deprives Instrument of Preference.
    In bankruptcy. On petition of Babcock Printing Press Manufacturing Company, Incorporated, for writ of mandamus to compel payment of claim.

      Mr. Absalom P. Bachman, for the petitioner.

      Mr. Leon B. Cone, for the respondent.
   Rpnyox, District Judge.

The Press Printers and Publishers, Incorporated, a Morristown concern, and incorporated under Xew Jersey laws, was engaged in the newspaper and job printing business, when, on January 30th, 1923, an involuntary petition in bankruptcy was filed. The company was thereafter adjudicated a bankrupt, and a receiver appointed, wlm qualified and took control of the estate.

The matter was referred to Referee DoCoster, who made an order in which, among other things, he directed the present petitioner to show cause why the personal property of the bankrupt should not be sold “free and clear of all liens and encumbrances, a lien, if any, to attach t.O' the proceeds/'’

'Upon the return of said order the referee, after argument, determined, and by his further order directed said sale to be held,' providing therein that a lien, if any, should attach to the proceeds.

Pursuant thereto the sale was duly held and confirmed, and the referee designated as claims entitled to priority that of the landlord, one for labor', that of the Mergenthaler Linotype Company, and of Nathaniel C. Tonrs, trustee.

The present petition is not for the review of the referee’s order, but for the issuance of a writ of mandamus to compel the payment of the Babcock claim.

In other words, the petitioner, for all practical purposes, is seeking to substitute tire writ of mandamus for a writ of error, and, in so doing has, I believe, mistaken the nature of his proper remedy.

“A mandamus cannot be used as a writ of error, nor is it ever granted where the party asking it has another remedy as where the remedy is by appeal.” Morrison v. U. S. District Court, 147 U. S. 14; see, also, In re Baltimore and Ohio R. R., 108 U. S. 566.

The-instrument in question bears the name of lease, but an examination of its contents convinces me that in reality it is a conditional sale agreement, and, therefore, subject to the provisions of the Conditional, Sales act.

Paragraph 1, subdivision 2 of said act describes one sort of conditional sale as being “any contract for the bailment or leasing of goods by which the bailee or lessee contracts to pay as compensation a sum substantially equivalent to the value of the goods, and by which it is agreed that the bailee or lessee is bound to become the owner of such goods upon full compliance with the terms of the contract.”

As I read the so-called lease, it answers the requirements of the above description, and must, therefore, be classed as a conditional bill of sale. See In re Moyer, 15 Fed. Rep. 598; Lauter Co. v. Isenreath, 77 N. J. Law 821.

As a conditional sale agreement, the instrument further becomes subject to the provisions of the law regulating the filing thereof.

Ill the first place, the petitioner seemingly recognized that its instrument was not a lease, despite its name, and recorded it as a chattel mortgage.

Secondly, the act governing conditional sales provides that the agreement must, in the first instance, be filed within ten days, and refiled at the expiration of three years. The plaintiff omitted to carry either of these provisions into effect.

Having failed properly to record its conditional sale agreement, I am of the opinion that the plaintiff has forfeited the preferential position which might otherwise have obtained, and that its instrument is void for any such purpose as against judgment creditors, and entitled it to no .claim for the payment it asks. See Unitype Co. v. Long, 143 Fed. Rep. 315; Groner v. Babcock Printing Press Mfg. Co., 267 Fed. Rep. 322.

Without going into any other point advanced by counsel, it appears to me that the above facts constitute such a situation as to have warranted the referee in making the order which the plaintiff seeks to annul by means of its petition for the issuance of a writ of mandamus.

The motion herein for such writ must be denied.


author: Ackerson, J. . Henry E. Ackerson, Judge.

text:
    Hudson County Circuit Court.
    Thomas A. Mannion, Jr., an infant, by next friend, plaintiff, v. Thomas A. Mannion, defendant.

      Mr. Franlc G. Turner, for 'the plaintiff.

      Mr. Edward A. Marlcley, for the' defendant.
    Negligence — lUnemancipated Minor Cannot Sue By Next Friend, During Minority, iFoir Injury Caused By Parents' Negligence.
   Ackerson, J. .

This motion is to strike out the complaint in the above-entitled cause — first, upon the ground that the suit is brought by a minor child by a next friend, and. that neither the complaint nor the records in the county clerk’s office disclose that the alleged next friend ivas ever appointed by an order of this court, and secondly, upon the ground that the suit is brought by an unemancipated minor son against his father to recover damages resulting from the alleged negligence of the father.

At the argument of the motion I understood that the first ground of objection was waived, upon the understanding that if the defendant did not prevail upon his motion to strike out the complaint, that an order would be obtained properly appointing the next friend to prosecute the suit, and if I am wrong about this, counsel for the defendant may apply upon notice for a ruling upon this question.

Taking up then the second objection raised, we are confronted with the situation that there are two counts in the complaint, in the first of which po reference is made to the relation ship of the parties and for all that appears from this count, the plaintiff may be a stranger to the defendant. The second count, however, sets forth specifically that the infant plaintiff is the son of the defendant, and, therefore, the second objection above mentioned, although not raised by the pleading in the first count, nevertheless, is squarely raised by the pleading in the second count.

There is no controlling case in New Jersey, hut the cases elsewhere are’ almost unanimous that no suit can be maintained by an unemancipated minor son against his father for an injury resulting from his negligence. 29 Cyc. 1663; Small v. Morrison (Supreme Court of North Carolina.), 118. S. E. Rep. 12: Smith, v. Smith, (Appellate Court of Indiana, January 16, 1924). 142 N. E. Rep. 128; Foley v. Foley (cited 1925), 61 Ill. App. 577; McKelvey v. McKelvey, 111 Tenn. 388; 77 S. W. Rep. 664.

Counsel for the plaintiff cited the cases of Treschman v. Treschman, 28 Ind. App. Ct. 206; 61 N. E. Rep. 961, and Clasen v. Pruhs, 69 Neb. 278; 95 N. W. Rep. 640, in support of the proposition that a minor may sue his parent, in tort, for negligence.

An examination of the first case above cited by the plaintiff shows that it is clearly distinguishable, for in that case the defendant, who was the step-mother of the plaintiff, did not stand in the position of loco parentis, and this distinction is enforceably brought out in the case of Smith v. Smith, supra, where the court, in discussing the case of Treschman v. Treschman, supra, says:

“True, the opinion in that case contains a discussion, which appears to indicate that a minor child, under certain extreme circumstances, might maintain an action against its parent for damages arising from the infliction of personal injuries, bul so much of the opinion as appears to so hold is purely obiter tlmlum, as no such question was involved in that action.”

The second case cited hv counsel for the plaintiff, Clason v. Pruhs, supra, does not seem to have considered fully the question here raised for solution, for the case seems to have been decided upon the authority of criminal cases, and the decision seems to have turned upon the question of whether the plaintiff was subjected to inhuman and brutal treatment in excess o£ the authority properly reposed in the defendant during the time the defendant stood in loco parentis to the child.

Tn any event, the great weight of authority unquestionably sustains the proposition that a minor child cannot sue one cf his parents, at least, during minority, for the negligent act of such parent from which the child suffers injury to his person.

This rule is undoubtedly founded upon a sound .public policy, and is based upon the interest that society has in preserving harmony in the domestic relations, an interest which has been manifested since the earliest organization of civil government, an interest inspired by the universálly recognized fact that the maintenance of harmonious and proper family relations'is conductive to good citizenship, and, therefore, works to the welfare o£ the state.

This leads, therefore, to the conclusion that the second count of the complaint must be stricken out as not stating a legal cause of action, and the same ruling would hold as to the first count, if it appeared therefrom that the relationship of the parties was that of parent and child, but inasmuch as this fact does not appear from the allegations of the first count, that will be allowed to stand, but if the fact appears at the trial, as it undoubtedly must, that the plaintiff is a minor son of the defendant, and was unemancipated and living in the household of defendant at the time of the negligent act complained of, a nonsuit would undoubtedly be granted.

The second count will be therefore stricken out and the first count allowed to stand and an order may be presented, drawn in accordance with this conclusion.

Henry E. Ackerson, Judge.


author: Porter, J. Newton H. Portee, Judge.

text:
    Essex Common Pleas.
    State v. Robert DeHart.
    [Decided January 12th, 1925.]
    Motor Vehicles — Driving in Intoxicated Condition — Intoxication Proved. — Though Policeman Did Not See Defendant Drive Car, Defendant’s Admission and Other Circumstances Establishes Fact — Question of Legality of Arrest Does Not Affect C,oiurt’s Jurisdiction. — If Arrest Was Illegal, Remedy is a Civil Action — Conviction Sustained.

      Mr. George F. Harris, town attorney for Montclair, for the state.

      Mr. William T/. Rawson, for the defendant.
   Porter, J.

This case comes before this court on an appeal from the recorder’s court of the town of Montclair, under the provisions of the Motor Vehicle act. The defendant was charaged. with driving an automobile while under the influence of intoxicating liquor, was tried and found guilty in the recorder’s court. A trial de novo being had here, two witnesses were produced on behalf of the state and none on behalf of the defendant.

Joseph Casey, a police officer of Montclair, testified that he was called to the corner of Greenwood avenue and Glen Ridge avenue, Montclair, at about twelve fifty-five oil the morning of Sunday, September 14th, 1924-, where two automobiles had collided. Ho made inquiry as. to who was in charge of the respective automobiles, and was told by Mr. Mayo that he was in charge of one, and by the defendant that he was in charge of the other one. The officer then asked for and received the licenses of both men. H.e states that no one was in the defendant’s car, and that he did not see him operating his car. He further says that he noticed that the defendant’s eyes were swollen and heavy, that he had difficulty in closing the automobile door, and that he was unsteady in his walk. He took him to the police station and made a report to the lieutenant, who then sent for the town physician. The officer further testiñed that he was present Mien the doctor came and examined the defendant, and says that he observed that the defendant could not walk in a straight line when asked to do so by the doctor. During the afternoon of the same day the officer went to' the home of the police recorder and there made a formal complaint against the defendant, charging him with driving his automodble on a public highway while under the'influence of intoxicating liquor.

The other witness called on behalf of the state was Doctor Maurice Cohen, town physician of Montclair. He testiñed' that he examined the defendant on September 14th at the police station. He found the defendant had an alcoholic breath, a staggering gate, thick speech, dilated pupils of the eyes, cold, clammy skin, decreased knee jerks, and that he unintelligently- answered questions. From this examination the doctor found that the defendant was under the influence of intoxicating liquor.

Defendant’s attorney urges, in support of a motion -to dismiss, that there is no evidence that the defendant had been driving his car. That is the only question of fact in the case, because the only testimony concerning his condition, on the night in question, is that he was under the influence of intoxicating liquor. The defendant does not take the stand himself nor bring any witnesses to testify either that he was not under the influence of intoxicating liquor, nor that he had not been driving his car. There is no testimony that there was anyone with him in the car. The polic-e officer testifies that there was no one in the car when he arrived, no companions of the defendant accompanied him to the police station or made themselves known to the officer, nor have any appeared to testify, either in the court below or here. Moreover, the defendant told the officer that he was in charge of the automobile and produced his license. This occurrence was very late at night, nearly one o’clock.

Under these undisputed facts the inference is unescapable that the defendant had been driving his automobile. Under the testimony there is no doubt hut that the defendant was under the influence of intoxicating liquor, consequently the burden of proof has been amply sustained on behalf of the state as to the truth of the charge.

There remains to be considered, however, a question of law that was raised by the attorney for the defendant, as to the jurisdiction of the recorder’s court. He moved for a dismissal of the charge on the ground that the police recorder was without jurisdiction, because the police officer had arrested the defendant without a warrant for an offense which was not committed in his presence. An examination of the record below shows that he made the same motion there, at the outset of the hearing; that the recorder stated that he would hear the testimony and allow the motion to be made later in the proceedings. The motion was accordingly again made, after the testimony had been heard, and decision on that motion iras reserved. Later, the recorder denied the motion.

This question of jurisdiction is properly raised in this court. State v. Rosenblum, 2 N. J. Adv. R. 1882. Section 31 of the Motor Vehicle act, which is the basis for this motion, provides that—

“Any constable or police officer, or motor vehicle inspector, or the commissioner oil mol or vehicles, is 'hereby authorized to arrest, without warrant, any person violating in the presence of such constable or police officer, or motor vehicle inspector, or the commissioner of motor vehicles, any of the provisions of this act, and to bring the defendant before any magistrate of the county where such offense is committed.”

It is true that no offense under the Motor Vehicle act was committed by the defendant in the presence of the arresting officer. This-offense not being an offense at common law, such as would give the officer the right to- arrest without a warrant, he can obtain the right to- arrest only by virtue of the statute law. As has been observed, the statute only gives him the right to arrest without warrant where the offense was committed in his presence.

But even though the arrest was illegal, does that fact deprive' the court of jurisdiction ? If so^ the- most flagrant violation of this act might go- unpunished and the act rendered inoperative and void, except where and when violated under the eyes of one of the officers enumerated in the statute. In cases of intoxicated drivers many, if not all of them, would become sober by the time their identity could be established and a warrant issued and the arrest made. An examination of them then b3r a physician or anyone else would thus be of little or no benefit. The legality or illegality of the arrest is not the important or controlling question, and does not affect the jurisdiction.of the court. Section 25 of the Motor Vehicle act gives jurisdiction to- the police magistrate to proceed in a summary way, to- hear and determine the guilt or innocence of the person against whom a complaint has been made The accused cannot be excused no-r the jurisdiction thus conferred be divested because of the manner of his arrest. The defendant was, as a matter of fact, brought before the court and there formally charged with a violation of this act, and tire court had jurisdiction to try the complaint, notwithstanding the fact that the original arrest was illegal. The defendant has his remedy for the illegal arrest in a civil action. The supreme court of Massachusetts so held in tire case of Commonwealth v. Tay, 48 N. E Rep. 1086.

For these reasons the motion to dismiss is denied.

I find .the defendant guilty as charged.

Newton H. Portee, Judge.


author: TxgeksoXjTj, Y. C.

text:
    John N. McGarvey, complainant, v. Charles W. Young et al., defendants.
    [Decided January 16th, 1925.]
    Revision of Contracts — Allegation of Complainant That Defendant Acted Solely as His Agent, Admitting That He Was to Share in Profits Under Certain Circumstances — Defendant Alleges That Under Said Circumstances Complainant was to Share in Profits, Otherwise Money Advanced Was to be Returned — Neither Contention- Impressive.
    On bill for relief and specific performance. On final hearing.

      Messrs, dole & Cole, for the complainant.

      Mr. Jimerson L. Richards, for the defendant Young.

      Mr. Ruby R. Tale, for the defendant International Speedway Association.
   TxgeksoXjTj, Y. C.

Evidence produced by the complainant, a real estate operator and builder of Philadelphia, is — that on or about the 22d of November, 1923, the defendant Young called upon Mm and stated: that a piece- of ground in Atlantic City (the premises in question) cohid be purchased at a reasonable figure, and inquired if he (complainant) could be interested in it.

After examination of the premises by the complainant, the defendant Young made two- or more visits to- Cleveland, Ohio-, to- interview the owners, and secured an agreement of sale of the premisés, made to and in the name of the defendant.

The complainant furnished, the money paid to secure this agreement.

There appears to have been some conversation between the parties concerning the propriety of having this agreement recorded in the name of Young, and Conger, a clerk in the title company’s office, suggested it should be assigned to McGarvey, and, according to his (MeGarvey’s) statement, “Mr. Young stepped aside and he said, ‘We will adjust that in another agreement, wherein you will get the $25,000,’ ” and it was recorded in the clerk’s office of Atlantic county, the complainant and defendant going together to May’s Lauding for that purpose.

In the cross-examination of the complainant by the counsel of the speedway company, also, defendant, the complainant said: “L went to Mr. McCain’s office and I told him, by reason of certain things that had happened between Mr. Young and myself, I could have no further connection with Mr. Young, and that I ought to have the assignment of that agreement to me as security for mjr money that was put up, and Mr. McCain saj^s to me, jWhat about the proposition whereby you were to let Mr. Young have this property in return for $25,000 ?’ I says, “I will stand on that proposition, and I stand there to-day.” He qualifies, in the next answer “provided he was able to do so before I was compelled to settle.”

The claim of the complainant is that the defendant Young acted solely as his agent in the entire transaction, and that the contract was improperly made in the name of the defendant Young, and should be reformed. He admits,, however, as above stated, that if sale was made before time of settlement, he was to receive as his share of the profits the sum of $25,000.

The claim of the defendant Young is that the contract was properly made in his name, and that the agreement was — if the property was sold within a certain time, he and McGarvey were partners and the money was to be divided— and, in case it was not sold within that time, McGarvey was to have returned to him the money advanced, and have no further interest in the agreement.

The court is not impressed with either oí those claims. It is not prohable that Young would devote a great deal oí time making several trips to Atlantic City and Cleveland, and assume personally the payment of part, at least, of expenses, without any arrangement for remuneration or profit to him. Neither is it probable that the complainant would advance considerable sums of money, and agree that he was to have no profit unless a resale was made before time of settlement, and that he was only to have his money returned less a certain. deduction of the expenses.

Neither the testimony produced by the complainant that Young was his agent, but that, on the happening of a certain contingency, he would accept $25,000 in full consideration for his interest in the contract and that produced by the defendant that the agreement was for the joint benefit of the parties, only if the property was resold within a, certain time, and if not sold (as it was. not) McGarvey was only to have his money returned, is convincing.

Should the complainant accept a decree for the repayment of the money advanced by him in the enterprise, such decree will bo advised, otherwise the bill must, be dismissed.


author: Buchanan-, Y. C.

text:
    William J. Boehm, executor, &c., complainant, v. Mary Domagauer Rieder et al., defendants.
    [Decided January 19th, 1925.]
    Specific Performance — Agreement Entered Into to Settle Claims of Defendant in Estate of Deceased Husband? — Facts Set Out.in an Earlier Reported Case — Defendant Not in Default.
    On final hearing.

      Messrs. Bbamler, Stamler & Koestler, for the complainant.

      Mr. Abe J. David, for the defendants. ■
   Buchanan-, Y. C.

'The facts in this ease are sufficiently set forth in the Opinion filed herein on motion to substitute and add parties. Boehm v. Rieder, 2 N. J. Adv. R. 1075. Subsequent to, and in pursuance of, the order entered on that motion, the administrator and heirs-at-law and next of kin of Mary Domagauer Rieder came in as parties defendant, and a. supplemental answer and counter-claim was filed setting up the settlement agreement and the facts in regard thereto, and the matter duly came on to final hearing, a.t which time complainant moved to dismiss his bill, leaving' the counterclaim the only issue.

By the admissions in the pleadings and the proofs at final hearing the facts are substantially as set forth in the affidavit referred to in the earlier opinion. The counter-claimants have demanded the specific fulfillment of the settlement agreement, and the defendants to the counter-claim have refused.

The notice of exercise of option was validly exercised on January 21st, although the ten days’ time expired oar the 20th, since the 20th was Sunday. This is tacitly conceded by the defendants to- the couarter-claim.

For the reasons set forth in tire earlier opiirion, I will advise a decree for specific performance. The case was at that time argued as oar the merits, and mo new. arguments or authorities have been presented to- me at this hearing, except the contentions of the- defendants to the counterclaim to- which I shall presently refer.

The agreement was entered irrto for the purpose of settling the claims of Mary Domagauer Rieder o'f, iir arrd to the estate of her deceased husband. The first paragraph clearly contains and evidences the esserree of the agreement as well as its purpose, “there shall be paid to- Mary D. Riecler the sum of $20,000 in full settlement of all her rights and claims,” &e. The election was given her to take $11/100 of this sum in property instead of cash. This she elected to do, hut this, of course, did not vary the essence of the agreement.

It is contended that she was herself in default, because she had not executed the documents for surrendering her equitable life estate and dower interest, but this contention is not supported by the agreement. Under the terms of the agreement she was to execute these “in consideration of” the payment of the $20,000 (or the conveyance of the homestead and the personal property and payment of the balance, as the agreement was modified by the option exercised). Her execution was not required prior to such conveyance and payment — at most, it can be held concurrent.

It is clear that, under the terms of the agreement, the vendees had until April 1st to make payment, and since they had not made or tendered payment or conveyance at the time of Mrs. Rieder’s death, on March 5th, it is difficult to see how she was in default. Certainly, the mere lion-execution of instruments far in advance of the time for delivery cannot constitute default, even though her illness were not sufficient reason for her not doing so.

There were some proofs taken at the hearing with regard to certain articles of jewelry. These, however, were expressly excepted from the settlement agreement by the eighth paragraph thereof; and I am unable to see that the proofs show any inequitable conduct by Mrs. Rieder, or the present counter-claimants in respect thereto; nor any reason why they should be deprived of decree for specific performance thereby.


author: BucHAUAisr, Y. C.

text:
    Florence K. Ballinger, complainant, v. Reta O. Bartolett et al., defendants.
    [Decided January 19th, 1925.]
    Conveyances: — Petition to Set Aside — Alleged Sale to a Stepdaughter at a Price Below Value to Injury of Heirs — No Direct Evidence of Conspiracy or Fraud — Complainant In Laches — Property Brought' About Its Value.
    On final hearing.

      Mr. Ábe J. David, for the- complainant.

      Mr. Welcome IT. Bender, for the defendants.
   BucHAUAisr, Y. C.

Mary E. Ireland died in 1910, seized of a dwelling-house, 449 Morris avenue, Elizabeth. By her will, after payment of debts and a contingent bequest of $500, she left her residuary estate (which, so far as appears comprised nothing but the dwelling) to her husband, James H. Ireland, for life, plus an added power of using so much of the- principal “as mat'' be necessary to comfortably sustain him under his present standard of living,” with remainder at his death to her children. (There were two children, complainant and a brother, who died intestate shortly afterwards.) The husband was also named executor and given a blanket power of sale in usual form.

In 1912 he remarried, acquiring thereby a step-daughter, the defendant, Reta Bartolett, to whom in 1917 he conveyed the dwelling for $5,800, out of which he paid off mortgage encumbrances of $4,500 and accrued interest and taxes of about $500.

He never filed an account as executor until 1921, after being cited to doi so- by complainant. She filed exceptions to the account, inter alia, that the price obtained for the- house was inadequate. These exceptions were not determined when Judge Pierce’s term expired, and they still remain undetermined.

James H. Ireland died in August, 1924, and the present bill was filed the next mouth. It seeks, to have the deed set aside or a reconveyance. The contention of complainant is that the price was inadequate', that it was not necessary tor Ireland to sell it in order to sustain himself according to his previous standard of living, and that defendant is either an actual party to a scheme to defraud complainant, or a purchaser with notice of a breach of trust.

There is no direct evidence of conspiracy. There are some suspicions circmnstances, and the defendant was by no means entirety frank in her testimony. The burden of proof, however, is on complainant, and the proofs are insufficient to establish conspiracy, intentional fraud or undue influence.

Upon the question of values, I am satisfied that the present value of the property is about $10,500 to $11,000. The opinions of complainant’s and defendants’ experts are in fairly close accord as to this, although one of defendants’ experts places the value as high as $12,500. The figures of complainant’s experts as to the value at the time of sale in November, 1917, are $8,500, $9,500 and $11,000. The $9,500 is by the man who places the present, value at $12,-500; the $11,000 by the same man, who places present value at $11,000, which, of course, cannot be credited. Bv the great weight of evidence, as well as by common knowledge, there has been considerable increase in real estate values since 1917, a large factor therein being the great decrease in the purchasing power of the dollar. Moreover, it appears that defendant Iras spent over $3,000 in repairs and improvements since the conveyance, of which, at least, $1,500 or $2,000 would figure in the present increased value of the house. Defendants’ experts place the 1917 value at $6,000 to $6,250. Defendant testifies that the house was in very bad.repair in 1917, with extremely dilapidated roof and consequent general destruction of interior papering, plasterings and the like. This is not contradicted by complainant. All the experts agreed that the market for real estate was extremely inactive in 1917. Defendant testifies that Mr. Ireland sold because the second mortgage had been called in, and his efforts to replace it or pay it off had been futile, and that he had made efforts to sell to others in vain. This, also, is not' contradicted.

On the whole, J am inclined to the view that on all the evidence the property was sold for- about as much as it was possible to get for it at that time. It might well be that. Mr. Ireland would be chargeable with the loss occasioned by his permitting the property to get into such disrepair, and permitting arrears of tax.es and interest to accrue, and the consequent loss- by .reason of -practically forced sale. That, however, is not the present issue; and defendant further testified -that Ireland had had some negotiations with complainant. as to the situation prior to making the sale. Complainant did not deny this.

In the circumstances as they existed at the time of sale, I cannot see but that Ireland did what was best for the- estate, to save • what he could rather- than lose all in a foreclosure sale. lie had an absolute power to sell under the will, and while, of- course, it would be a- breach of trust to¡ exercise that power other than for the interests of the estate (except as permitted by the provisions of the will in his own behalf), it does not seem that he committed a breach of trust by such sale a.t that time, whatever may have been his fault prior thereto.

I think it must also- be noted that complainant is in laches, and that this is material in the determination of the cause. She says .she did not know that the sale had been made until two or three (years after the fact, which would be in 1919 or 1920, and did not know the price until the account was filed in 1921. She had full knowledge of all the facts, however, in May or June, 1921, yet waited until after her father’s death in August, 1-924, before filing her bill. The loss of the father’s testimony, as well as evidence that he alone probably would have had knowledge of, was thus occasioned to defendant.

I have already spoken of defendant’s lack of frankness. That is too mild a characterization of some of her testimony, such as, for instance, her statement to the effect that at the time she bought the property she thought it of no value whatever, and considered every dollar put into the purchase as an absolute loss.

Because thereof the decree dismissing the bill will be without costs.


author: Buchanan, Y. C.

text:
    Louis Kagel, complainant, v. Harry I. Johnson et al., defendants.
    [Decided January 19th, 1925.]
    Partnership — Joint Adventure — Relationship Disputed by Two of the Associates Who Claim Complainant Failed to Contribute to Capital According to Agreement and Not Entitled to Benefits Thereof — Agreement in the Nature of Partnership or, Perhaps, Joint Adventure Found to Exist and Accounting Decreed.
    On final hearing.

      Mr. Joseph E. Iluni and Mr. Amos Wain, fox the complainant.

      Mr. William N. Cooper, for the defendants.
   Buchanan, Y. C.

Complainant’s bill alleges that a partnership' existed between himself and defendants, and seeks an accounting and payment of his share of the partnership assets. Defendants deny that a partnership ever existed, and contend that complainant is entitled only to the return of a sum of $600 loaned, with interest, which they had previously tendered.

The testimony of all the parties indicates that none had a particularly clear or definite comprehension o£ the situation existing between them or their relative rights and duties. This is not to be wondered at in view of their lack of education and of legal assistance. I doubt, indeed, if the evidence on complainant’s behalf would have been sufficient by itself to establish the alleged partnership, but the testimony of the principal defendant, Harry' Johnson, Sr., and of his assistant, Berman, leave no doubt in my mind but that a partnership', or something in the nature of a. partnership', was agreed upon and actually became existent and operating.

The facts as I find them to be are that an agreement was made by the complainant and the defendant Harry Johnson, Sr., and his son, George Johnson, that they should become partners or jointly interested in a manufacturing venture involving the purchase of lands, erection of buildings, installation of machinery and operation of business by manufacture and sale. The defendant Harry Johnson, Sr., was to have a half interest in the project and the other two each a quarter interest, and the capital or fluids necessary for the project were to be furnished by them in the same proportions.

The amount of this capital was not fixed or agreed upon. The fact that complainant and George Johnson each furnished $600 (the latter afterwards put up an additional $100) would indicate that the original estimate was around $2,400. Johnson, Sr., testifies he estimated the required capital at about $5,000 or $6,000. He also testifies that the actual capital put into the venture was about $10,000, of which he put up all but the $1,300 contributed by complainant and George Johnson. I am hv no means favorably impressed with much of his testimony, and his interest, of course, is to fix these figures as high as possible. While it well may be the capital required was more than $2,400, T am equally satisfied that it did not amount to $10,000, and I am strongly inclined to the belief that a considerable portion of the moneys which went into the later additions to the plant were profits from the operation.

It is quite evident from the testimony of Johnson, Sr., himself, and that of his chief salesman, Berman, without considering corroborative testimony of several other witnesses, that the partnership or joint venture commenced and was actually carried on for nearly a year without any question thereof being raised by Johnson, Sr., or anyone else. The property was purchased in January, 1921, the buildings erected with the assistance of the labor of Johnson, Sr., and the complainant, and occasional help from George Johnson. The factory started to operate in April or Majr, and it "was not until about Christmas that Johnson, Sr., determined that complainant was not a partner. He says he had asked complainant several times for additional contributions to the required eopital, and, finally, about Christinas time asked him for the last time: "I got to know; I got to- make a-government report and I want to know whether I got partners or not.” “Hie said he couldn’t get no more money. * * * I said, 'All right, you ain’t no partner to me, then.’ ” He said that up to that time he had considered him' a partner.

Prior to that time, as I have said, they had functioned as a partnership or a joint business. Johnson, Sr., had obviously so informed the insurance company, which issued a liability policy to the concern in the joint names; he admits that he was the person who gave the information to the agent. He never had the names changed in the subsequent policies.

Johnson, Sr., offered complainant Ms $600 back, which complainant refused to take. Things went on thereafter pretty much as before, complainant considering himself a partner, and Johnson, Sr., apparently not so considering him. Johnson, Sr., had always been the controlling figure in the 'concern, naturally, from Ms larger interest, kept the books, and managed the finances and operation. The title to the lands had been taken in the name of Harry Johnson, Jr., because of trouble between Johnson, Sr., and his wife, as Johnson, Sr., says. Complainant and his mother both say they were shown a deed with several names on it, including complainant’s. In this they seem to he mistaken, as the deed is made only to Harry Johnson, Jr., but there is no. question about the property being partnership or joint property, for, admittedly, Johnson, Sr., obtained $118.75 from complainant (exactly one-fourth of the $475 purchase price) with which to complete the- purchase.

The title being so held, Johnson, Sr., was able to do what he did do in 1923, i. a., sell and convey the property and business to one David without consulting complainant, for $15,-000. No share of this was given or offered to complainant, although the return of the $600 was again offered him.

The fact is, as has been shown, that the agreement for partnership or joint venture was actually consummated substantially. It was not a mere unexecuted executory agreement. It was, in fact, executed, although, apparently, not completely executed by complainant, in that he failed to contribute all of his one-fourth share of the apparent cost. But assuming that there was, in fact, a breach by him in this behalf, that assuredly did not- give Johnson, Sr., the right to exclude him from the business into which he had put, not only his $6'00, but nearly a year’s work besides (at the time of the attempted rescission by Johnson, Sr.), although complainant would, of course, be liable for whatever damage was caused by his breach, and, doubtless, his share in the business would bo subject to a lien for the unpaid capital and the additional damages.

This is so if the project here be deemed a partnership. Hartman v. Wochr, 18 N. J. Eq. 333; McCabe v. Sinclair, 66 N. J. Eq. 24. It is also true'if the project be deemed a joint adventure not amounting to a technical partnership. 33 Cyc. 884; Turtur v. Isserman, 2 N. J. Mis. R. 1084.

It is clear that the partnership or venture has been terminated. Complainant is entitled to an accounting (which may be had before a master) on the basis of his having a quarter share in the business, with such debits against the same as shall be proper by reason of his default in contribution to capital, if that appear. The present assets include profits as well as capital, but complainant’s "one-quarter interest in the business,” of course, impliedly includes profits as well as capital.

It appears that George Johnson’s interest in the business was sold to> and his place taken by, Harry Johnson, Jr., all parties consenting. This was during the continuance of the business, but, obviously, in nowise affects the issues as to complainant’s right or interest in the venture.


author: Buchanan, V. C.

text:
    Harry Zlotnik, complainant, v. Israel Weiner et al., defendants.
    [Decided January 29th, 1925.]
    Mortgages — Foreclosure—Provisions for Release of Part of Mortgaged Premises Upon Payment of a Stipulated Sum— Amount Paid But Property Not Released — Decreed That it be Released Before Sale.
    On final hearing.

      Mr. Frwrile 8. Weiner, for the complainant.

      Messrs. Whitiemore & McLecm, for the defendants Amandolare.
   Buchanan, V. C.

The bill is for foreclosure of a mortgage of $1,100, made May 1st, 1917, comprising three lots with a total frontage of seventy-five feet. Due proof is made that there is due $700 principal, plus interest on $1,100, from May 1st, 1917, to June 27th, 1917, and on $700 from that date to the present time.

The mortgage contained a clause agreeing to release thirty feet front of the mortgaged premises for $400. The mortgagor intended to build on this’thirty-foot lot, as complainant knew, and they made a mortgage to one Eiynn covering this thirty feet to secure $1,800. The sum of $400 was paid to complainant June 27th, 1917. I am satisfied from the evidence that this payment was intended to be given and received for a release of the thirty feet in question. No such release was executed by complainant. The defendants Amandolare now stand in the shoes of Eiynn, and are entitled 'to decree on their counter-claim, directing execution and delivery of release by complainant. They are entitled to costs as against complainant, on execution and delivery of the release, is entitled to foreclosure decree, with costs (except as against the defendants Amandola re), and with provision for sale of the mortgaged premises, excepting the portion directed to be released.


author: Per Curiam.

text:
    HELEN PETTIT, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ALVIN PETTIT, DECEASED, PLAINTIFF, v. PENNSYLVANIA RAILROAD COMPANY, IMPLEADED, DEFENDANT.
    Argued November term, 1924
    Decided January 20, 1925.
    Negligence — Grade Crossing Accident — Question of Proper Signals . From Engine — Court’s Refusal to Charge That the Presence of Freight Cars Obscuring Plaintiff’s Vision Was Not Negligence of Defendant — Charge Practically Included in Instructions Relating to the Whistle and Belli — Rule Discharged.
    On rule to show cause.
    Before Justices Trenohard, Minturn and Lloyd.
    Eor the rule, John S. Applegate & Son.

    Contra, Ward Kremer and Benjamin Weinberg.

   Per Curiam.

The plaintiff, as administratrix of her husband, obtained a verdict in the Monmouth Circuit on Juty 2d, 1924, in the sum of $7,500. The case is before us on defendant’s rule to show cause why the verdict should not be set aside and a new trial granted. The grounds upon which the rule is argued are that the verdict is against the weight of the evidence on both the question of negligence and contributory negligence and on the refusal of certain requests to charge. The negligence alleged, and upon which the case was submitted, consisted in the failure of the defendant to give proper warning of the approach of its train by bell or whistle. The evidence produced by the plaintiff on this point, as is not unusual in such cases, was negative in character, and it consisted of the testimony of persons in the neighborhood, though not -within view of the approaching train, to the effect that they did not hear any signals given.

On behalf of the defendant the train crew, consisting of the engineer and fireman, the conductor, two brakemen, and a clerk employed in the freight house, were called as witnesses. Two salient facts appear in the proofs. One is that all the witnesses, save one whose testimony is of little value, on behalf of the plaintiff were closely related to the plaintiff, and on behalf of the railroad company that all are its employes. While the testimony of the plaintiff’s witnesses was impaired in its affirmative value there were also discrepancies in the testimony of the defendant’s witnesses which likewise impaired the value of their evidence. The train was an extra one, passing through the settled portion of the beach front in Monmouth county, and was approaching the crossing where the accident happened in Bradley Park from the direction of Ocean Grove. Prom some of the evidence given on behalf of the defendant it might be inferred that the whistle signals were given for the first time very close to the crossing, which, of course, was not in compliance with the statutory requirements, and as to the sounding of the bell this was heard only by the fireman and engineer.

As, to the negligence of the deceased in approaching the crossing, assuming the absence of the statutory signals, which fact the jury must have found, it is important to consider the circumstances surrounding the accident. It appears from the substantial proofs in the case that intervening between the train and the automobile as they converged toward the crossing there were a number of box cars which obscured the view of one driving on the tracks until within close proximity to the track upon which the train was approaching. Whether the deceased was in the exercise of due care in attempting to cross the track under these circumstances has been by the statute committed to the jury. The question is always what a reasonably prudent person would do under the circumstances.

The errors assigned and argued are with respect to the denial of the following requests to charge:

“The presence of freight cars in the vicinity of the crossing, even though they may have obscured the view of the deceased, is not any evidence of negligence on the part of the defendant.
“The presence of freight cars can be considered by you only in determining whether or not decedent was guilty of contributory negligence. It has no bearing on the question of negligence on the part of defendant.
“You cannot consider the speed of the train in determining whether defendant was negligent.”

While these requests as drawn were all refused, we think they were substantially covered in the charge itself. In that charge the court had carefulty limited the negligence of the defendant to the failure to give signals by bell or whistle. This, of necessity, excluded any other possible element to which the requests to charge might have application. As the case went to the jury no negligence in the defendant ivas predicated on the presence of the freight cars nor the speed of the train. ■ It necessarily followed that the presence of the freight cars had bearing then only on the negligence of the deceased, and that the speed of the train was without,'relevance to the negligence of the defendant.

Prom the foregoing no legal error in the trial of the case appears, and this being a second trial and a second finding-in favor of the plaintiff, we do not feel that the evidence on the question of negligence in the defendant or contributory negligence in the deceased was so overwhelmingly in favor of the defendant as to justify the court in again disturbing it. The rule for a new trial is discharged.


text:
    WALTER REBENFELD, PLAINTIFF-RESPONDENT, v. JOSEPH FRIEDBERG, TRADING, ETC., DEFENDANT-APPELLANT.
    Argued October 6, 1924
    Decided .January 20, 1925.
    Sale of Real Estate — Contracts Between Agents for Sharing Commission — Commission on Sale Paid, Share Due Other Agent Collectable if Contract is Valid — Contract Examined and Found With Consideration — .Counter-claim for Injury to an Automobile, One in Tort and Not Subject to Counterclaim Under District Court Act.
    On appeal from the District Court.
    P>efore Justices Thenchard, Mtnturn and Lloyd.
    Eor the appellant. Cole iC Cole.

    For the respondent, Louis M. Mallín (Uly.sses G. Styron. of counsel).
   Per Curiam.

This is an appeal from the District Conrt of Atlantic City from a judgment rendered in favor of the plaintiff for $500, upon a written contract reading as follows:

“February 29th, 1924.

T, Joseph Friedberg, do hereby agree to pay Walter Rebenfeld the sum of five hundred ($500) dollars out of the commissions earned on the sale and exchange of properties between Katheryn Lambert and Horace C. Myers, and to pay the same to him as and when I receive said commissions. It is further agreed that in the event the said Walter Rebenfeld makes any sales of or rentals any properties, whereby he is the sole agent or broker in such transaction, that I am to receive only fifty per cent, of such commissions as he may earn while acting as salesman under the office of the Coast Realty Co.

Jos. Friedberg.

Accepted.

Walter Rebenfeld.”

It was proved in the case that the defendant had received the commissions specified, and hence the $500 was dpe to the plaintiff if the contract were a valid one. It was contended in the court below that the agreement was without consideration and void. We think not. The promise is to pay out of the commissions "earned.” Earned by whom? Obviously, by-the plaintiff, in part, at least. It is hardly to be supposed that the defendant was promising a gratuity wholly' from his. own moneys in payment of his own earnings. This being true, it can fairly be held to be an admission of moneys due the plaintiff for earnings and of earnings as against the defendant, and for which presumably an action would lie. If doubt exists as to the proper construction, we think it is cleared up by the remaining part of the agreement whereby the defendant agreed to accept fifty per cent, of commission earned by plaintiff on sales or rentals when plaintiff was the sole agent and broker. The word, “earn” here used is highly illuminiating as to the import and application of the word "earned,” on which the promise, was given. ■ The whole paper has the familiar aspect of two brokers co-operating in their dealings whereby an equity grew out of these in favor of one of the parties and the giving by the other of a memorandum as an acknowledgment of an indebtedness.

It is next claimed that the court erred in striking out the counter-claim. The counter-claim was for injuries to an automobile alleged to have resulted from its unlawful talcing by the plaintiff. Tins, obviously, was in tort, and not the subject of counter-claim under the District Court act. Slaytor-Jennings Co. v. Specialty Paper Box Co., 69 N. J. L. 214. If reliance is based on the Practice act of 1912, section 12, as applicable to District Cprrrt- proceedings, the defendant is in no better position, for this section rests the right to strike out the counter-claim, in the discretion of the court. In Reveruzzi v. Caruso, 91 Atl. Rep. 1022, it was held that the Practice act of 1912 and sections 60 and 61 of the District Court act did not essentially change the general statute of set-off.

It is next claimed that there was no proof that the debt, if it ever existed, had not been paid. The burden was on the defendant to prove that he had paid the debt. Fein v. Meier, 71 N. J. L. 12.

The judgment is affirmed.


author: Per Opeiail

text:
    EXCEL SERVICE COMPANY, A CORPORATION, PLAINTIFF, v. JAMES E. WORDLEY, DEFENDANT.
    Submitted November 6, 1924
    Derided January 20, 1925.
    Agency — Insurance—Broker Solicited Business as “Agent”— Received Commission From Defendant — Policy Canceled and Return Premium Paid by Insurance Agent to Broker— Plaintiff Sought to Recover Premium From Agent Defendant — Judgment of Trial Court for Plaintiff Justified Because the Facts Justified the Presumption That Broker was De* fendant’s Agent.
    On appeal from the District Court.
    Before Justices Tkenctiaeb, Mint den and Lloyd.
    Por the plaintiff-appellee, Arthur B. Seymour.

    For the defendant-appellant, Porter, Zink ■& Lafferty.

   Per Opeiail

This is a question of agency.- Wordley, the defendant below, was agent of the Scottish Union Insurance Company. As such he wrote a policy covering plaintiff’s property, and on it he received the premium. Soon after its issuance the plaintiff had it canceled; the return premium was paid to Wordley by the insurance company, and he, in turn, paid it over to one Cross. The question presented is whether Cross was the agent of the- plaintiff to receive the return premium.

The evidence showed that Cross had solicited the insurance from the plaintiff; that the premium was paid to him, and that Cross had placed the insurance, “as agent,” receiving twenty-five per cent, of the premium which he had paid Wordley, from Wordley in return. It also appeared that this was but one of a number of similar transactions of defendant and Cross.

The defendant testified that Cross was not his agent, and that he paid the return premium to Cross. The court found for the plaintiff, and we think was justified in so doing. We find no conclusive evidence that Cross was the agent of plaintiff to receive the return premium. The mere fact that he had placed the insurance in the first instance gave him no authority to receive the return premium on surrender of the policy as agent of the insured. The defendant having paid the money to Cross, carried the burden of proving that Cross was the agent of the Excel Service Company. Cross had acted with Wordley in other insurance matters, and, in fact, both he and Wordley were agents of the insurance company in the instant case. He had received from Wordley twenty-five per cent, of the initial premium. This, Wordley could not give, nor Cross receive except as an insurance broker. It could not be paid to anyone on behalf of the insured. Sy,pp. Comp. Stcd.j p. 814. It must be presumed that Cross received it lawfully as his share of the whole commission. This being time it establishes that up to that point he was simply an insurance agent dealing with another insurance agent in the transaction. It further appeared, however, that the plaintiff gave the instructions for cancellation of the policy to Cross. Whether, under the circumstances, this constituted an authority to collect was, we think, a question of fact. A mere instruction to have a policy canceled would not necessarily cany with it a power to receive the return premium. The court having found for the plaintiff, resolved this question of fact adversely to the defendant. This finding of fact we' cannot review.

The judgment will be affinned.


author: Per C driah.

text:
    F. A. NORTH COMPANY, A CORPORATION, PLAINTIFF-APPELLANT, v. CARMELO MANIERA, DEFENDANT-APPELLEE.
    Submitted November 7, 1924
    Decided January 21, 1925.
    Contracts — Rent of Piano — Counter-claim of Alleged Unfitness for Use — Error to Admit Statement of Plaintiff’si Employe, a Mere Workman Employed to Move the Piano, That It was “Unfit for Use.”
    On appeal from tile Atlantic: City District Court.
    Before Justices Tren chard, Minttjrn and Lloyd.
    Por the appellant, Albert Hughes and Aaron Dawes.

    Por the appellee, S. Paul Ridgeway and Katzenbach & Hunt.

   Per C driah.

This action was brought in the District Court of Atlantic City to recover $36, being three months rent for a piano, hired under a written contract or lease. The defendant filed a counter-claim for $152 for alleged damages by reason of breach of an implied warranty of fitness for use. Judgment was rendered in favor of defendant for $112 and costs by the trial judge, sitting without a jury.

. After reciting ou'dence produced hv the defendant tending to show that the instrument was not fit for use, the agreed state of case states “the defendant then stopped payment on the lease and demanded that the instrument he removed. Defendant testified, over objections of plaintiff, that such testimony was incompetent, that plaintiff’s agent then visited the defendant’s house with a workman, who, having examined the instrument, turned to plaintiff’s agent and said, Tor * * * sake get it out of here, it’s no good,’ referring to the piano in question, the declarations of the workman were admitted over the objections of plaintiff’s attorney on the ground that the statements were not binding, and were made without the authority and were incompetent.”

Plaintiff now urges-that, as matters stood, such testimony was incompetent and not binding on the plaintiff.

We think that there, was error in the admission of the declaration of the workman, “get it out of here; it is no good.” This workman, plainly, had no authority'to bind the plaintiff, and if he had been present in the court, would not have been permitted to testify until his .expert qualifications had been shown. The statement was hearsay, and the workman was not authorized to make declarations concerning the condition of the piano. Huebner v. Erie Railroad Co., 69 N. J. L. 327, is controlling. A principal is bound by'acts and- concomitant declarations of an. agent touching such matters only as are within the scopé of his general emplo3rment, or have been specially entrusted to his agencjr bjr the principal.' As the proofs stood, he went there as a “workman” (not as a repairman) in response to a demand “that the instrument be removedThe-fair implication is that this particular workman was sent to remove the Instrument, and not to ascertain its condition and fitness for use as a musical instrument. It is true that he examined the instrument, but the declaration was made thereafter, and his examination, so fan as appears, was entirely consistent -with the purpose for which he was sent, namely, to remove the piano.

We, therefore, think that the workman’s declaration was not made by one authorized to'make it so as to be binding upon the-plaintiff, and that the- court erred in admitting it. As the court thought it was evidential, it is just to presume that he gave credence to it in deciding against the plaintiff.

Since the case must be retried we remark that we do not perceive -any other error in the trial.

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


author: Pee Curiam.

text:
    FLORA WETTSTEIN, PETITIONER-RESPONDENT, v. WHITALL-TATUM COMPANY, PROSECUTOR.
    Submitted October term, 1924
    Decided January 23, 1925.
    Workmen’s Compensation — Question Whether Accident Resulted During Employment, and If So, Whether That Was Not Result of Disobedience — Award Sustained.
    Oil certiorari.

    Before Justices Kalis oh, Black and Campbell.
    Por the prosecutor, Howard L. Miller.

    Por the respondent, Wescotl £ Weaver.

   Pee Curiam.

This is a workmen’s compensation case, in which the petitioner had an award for the death of her husband, Charles C. Wettstein, in the workmen’s compensation bureau. On an appeal to the Cumberland County Court of Common Pleas, the award was affirmed. The dominant facts are undisputed. The questions involved are, whether the accident resulting in the death of Charles C. Wettstein arose out of and in the course of his employment, and, if so, whether his death was the result of disobedience of his superior’s orders. The facts are clearly and concisely summarized in the opinion filed by Judge Logue in the Court of Common Pleas of Cumberland county. We are satisfied with that opinion. The judgment of that court is affirmed, for the reasons stated Hi the opinion filed by Judge Logue.


text:
    ELVIRA RENDINO, PLAINTIFF, v. JAMES C. DAVIS, DIRECTOR GENERAL OF RAILROADS, DEFENDANT.
    Argued October 7, 1924
    -Decided January 23 1925.
    Negligence — Grade Crossing — Fourth Trial-Judgment for Plaintiff — Court Loath to Disturb a Second Verdict for Plaintiff on Conflicting Evidence.
    On application for a rule to show cause.
    Before Justices Kalisch, Black and Campbell.
    For tire rule, John S. Applegate & Son.

    Contra, Kellogg Chance. ■

   Pee Curiam.

This is an accident case, the trial resulting in a verdict for the plaintiff for $12,000. The trial judge refused a rule to show cause, hence, the application for a rule is made to the court on the ground that the great preponderance of the evidence shows that there was no negligence of the defendant causing the injury. The accident happened on July 21st, 1918, at six p. M., while attempting to cross a grade crossing of the New York and Long Branch Railroad Company known .as Grassmere avenue, at Interlaken, New Jersey. At the time of the accident, the plaintiff was riding in an automobile driven and owned, by Ernest Cabriola. There have been four trials of the case. At the first trial the verdict was in-favor of the plaintiff for $25,000. Upon the second trial the jury disagreed. Upon the third trial the verdict was for the defendant. See Rendino v. Davis, 122 Atl. Rep. 757. Our reading of the record leads us to the conclusion that the evidence raises a jury question on the controverted questions involved. The court is loath to disturb a second verdict for the plaintiff on conflicting evidence. Inasmuch as the case is as fully before the court as though a rule had been granted, and the argument was one to set aside the verdict, we can dispose of the case from that point of view, and deny the application for a rule to show cause in the first instance; that will be the order of the court.


author: ,Per Curiam.

text:
    TOWN OF IRVINGTON, IN THE COUNTY OF ESSEX, PROSECUTOR, v. INDEPENDENT NEW JERSEY VEREIN, DEFENDANT.
    Argued January 6, 1925
    Decided January 23, 1925.
    Taxes and Assessments» — Assessments for Benefits Set Aside on Ground That Property was Used Exclusively for Cemetery Purposes and Exempt Under Statute.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    For the prosecutor, Charles II. Stewart.

    For the defendant, William Greenfield.

   ,Per Curiam.

The writ of certiorari was issued in this case to review an order made by Judge Dungan on the 6th day of September, 1924, relieving the Independent New Jersey "Verein, the defendant, from an assessment for benefits or local improvements, levied by the board of commissioners of assessment, for local improvements of the town of Irvington, on the ground that the defendant is exempt from such an assessment, the property being used exclusively for eenletery purposes.

The question involved is the meaning of the phrase "all public taxes, rates or assessments,” in the Cemetery Associations act, as applied to the lands and property of such associations. Comp. Stat, of N. J., p. 375, § 8. Judge Dungan filed an opinion, in which the facts aré fully stated, and the reasons for his conclusion. We aire satisfied with that opinion, and affirm the order for the reasons stated by Judge Dungan.

The order is affirmed and the writ of certiorari is dismissed, with costs. •


text:
    GEORGE ZELLERS, PROSECUTOR, v. CUMBERLAND TRACTION COMPANY ET AL., DEFENDANTS.
    Submitted October term, 1924
    Decided January 23, 1925.
    Public Utilities — Motor Buses — Prosecutor’s Contention That Commissioners Mistakenly Treated as a Whole the Route Over Which Prosecutor was Operating Bus; That He was Operating Prior to March 15th, 1921, and That Cumberland Traction Company was Itself Operating Without Permits, Does Not Affect Jurisdiction of Commission Over Controversy and Power to Make Order to Discontinue Operation of Prosecutor’s Buses.
    On certiorari.

    Before Justices Kalisch, Black and Camppell.
    For the prosecutor, WescoU & Weaver and Bex A. Donnelly.

    For the defendants, Walter IT. Bacon and Thomas Brown.

   Per Curiam.

The writ of certiorari was allowed, in this case, to review the legality of an order made by the board of public utility commissioners, dated July 24th, and to become effective August 21st, 1924, under which George Zellers, the prosecutor, was ordered to discontinue the operation of any auto-bus or auto-buses on the route therein described, without obtaining the necessary municipal permits and the approval of the hoard of public utilhw commissioners. The operation without such permits and approval, the board held was unlawful. The prosecutor seeks to set aside the order of the hoard of public utility commissioners, and be writes down twelve reasons for setting aside the order, as follows:

1. The board of utility commissioners had no jurisdiction in the matter, because the said George Zellers was legally and regularly operating his auto-buses over the route in question by municipal licenses and consents, prior to March 15th, 1921, which, by virtue of section 2, chapter 149, laws of 1921, exempted him from such jurisdiction.

2. Because the said board mistakenly held that the route from Millville to Bridgeton should be treated as a whole, and that it had jurisdiction because municipal consents had not been renewed for the entire route, even though such consents had been renewed for part of said route.

3. That the finding set forth in the preceding reason is extraneous to the- pleadings, and was not discussed in the argument, and, hence, prosecutor has never had an opportunity to be heard thereon.

4. That no change in said route has been made by prosecutor, but it is the same route over which he has operated since the year 1919.

5. That said route does not, in whole or part, parallel upon the same street the line of any street railway or traction railway within the meaning of the act aforesaid.

6. That the Cumberland Traction Company, which wras the complainant in said matter before said board, has no franchise to operate its lines over the route in question, and, hence, is not a line paralled by the bus route operated by prosecutor.

7. Said board of commissioners' was without jurisdiction, because said route, as shown by said order, lies upon a turnpike and not upon a street within the meaning of the.,act aforesaid.

8. That the order in question, by ordering prosecutor to cease operations over said route, has created a monopoly in transporting passengers in favor of said traction company, the complainant in the matter.

9. That the whole procedure of defendant traction company in the matter under review is an admixture of fraud and deceit calculated to destroy a valuable public utility and to create thereby for itself a transportation monopoly over the route in question.

10. If any statute law purports to give the board of public utility commissioners the power to create a monopoly over said route in favor of said traction company to the exclusion of the said prosecutor, said law or laws are unconstitutional and void.

11. That the order in question prohibits prosecutor from operating his auto-buses over said route in Eairfield township, though he has never had a hearing thereon before the authorities of said township, or an opportunity to be heard as to the same.

12. That said order is in divers other respects illegal and void and should be set aside.

Tile prosecutor in the brief says the narrow question is one of jurisdiction of the board of public utility commissioners to make the order. The defendants, however, argue the reasons may all be summarized under three heads as follows:

First. The board mistakenly treated as a whole the route over which the prosecutor was operating its buses.

Second. The fact that the prosecutor was operating the buses prior to March 15th, 1921, removed him from the jurisdiction of the board.

Third. Tire Cumberland Traction Company was itself operating its street railways without first obtaining a franchise from the municipalities in which it operated.

It is not disputed that the prosecutor has not the consent to operate 1ns buses from the city of Bridgeton or from the township of Eairfield, through which a portion of his route runs. The point, however, urged by the prosecutor, is that the hoard of public utility commissioners is without jurisdiction to make the order, because the prosecutor was operating his buses over the route in question by municipal license and consents prior to March loth, 1921.

We think the act (Pcimph. L. 1921, p. 390) is, decisive of this entire controversy; that act provides (section 15) the board shall have general supervision and regulation of, jurisdiction and control over, all public utilities, &c. “Public utility” shall include “auto-bus, commonly called jitney, the route of which, in whole or in part, parallels upon the same street, the line of any street railway or traction railway.”

Section 2 provides: The powers of the board shall not include any supervision over the operation of any auto-bus, “over its present route, under and in accordance with the consent of the municipal authorities granted therefor prior to March 15th, 1921, by the owner of such consent on said date, or under and in accordance with the renewal of such consent granted to such owner as aforesaid, for further operation by him, upon the expiration of the time limit set forth in such consent.”

As stated, the prosecutor does not, at the present time, hold any consents to operate his buses from the city of Bridgeton or from the township of Fairfield, through which a portion of his route runs. This point was considered by Vice-Chancellor Learning in the case of Healey v. Sidonc, filed May 26th, 1924.

Under this statute we think the board of public utility commissioners had jurisdiction over the controversy and power to make the order under review. This, we think, renders unnecessary any further discussion of the reasons filed for setting aside the order.

The order of the public utility commissioners under review is affirmed and the supersedeas issue is vacated.


author: Per Cfrtam.

text:
    WALTER BOGERT ET AL., PROSECUTORS, v. HACKENSACK WATER COMPANY, DEFENDANT.
    Argued October 8, 1924
    Decided January 23, 1925.
    Eminent Domain — Hackensack Water Co. — Powers Conferred by Statute on Company, Including the Taking of Grist Mill— Grisit Mill Not Devoted to Public Usei — Powers Under Statute Not Exhausted Upon Completion of Works.
    On certiorari.

    Before Justices Kaltsch, Black and Campbell.
    For the prosecutors, Morrison, Lloyd <& Morrison.

    For the defendant, Wendell J. Wright.

   Per Cfrtam.

in this case, Mr. Justice Parker allowed a writ of certiorari to review the order made by him on June 14th, 1924, appointing commissioners to examine and appraise the lands described in the petition and to assess the damages to be sustained in taking and condemning the lands for the use of the Hackensack Water Company. The prosecutors write down six reasons for setting aside the order so made.

First. The Hackensack Water Company has no power to take by eminent domain the lands described in the petition. The answer to this is: On October 26th, 1881, the defendant company was organized by the consolidation of six aqueduct companies and the Hackensack Water Company, incorporated October 2d, 1881. This was authorized by Pa/mph. L: 1876, p. 103, § 12. The effect of such a consolidation was passed upon in Plainfield Water Co. v. Plainfield, 84 N. J. L. 634, 639. The company has the power to take the lands and divert streams of water under the acts Pamph. L. 1876, p. 323, § 15, and Pamph. Ij. 1888, p. 180. The consolidated company has all the powers of its constituent companies. It has the power to take the lands in question, if necessary, for its corporate purposes.

The second reason is substantially the same as the first, with the same answer.

Third. The company has no power to take so much of said premises as are lands under water, water courses, springs or pools. The General Water act (3 Comp. Stat., p. 3640, § 15; Pamph. L. 1888, p. 180) provides, "take all such lands and divert all such streams of water as shall be necessary for that purpose” (i. e., the purpose of incorporation); the statute makes no exceptions and, therefore, must be held to include all that pertains to the land. Olmsted v. Morris Aqueduct, 46 N. J. L. 495; affirmed, 47 Id. 311.

Fourth'. The companj^ has no power to take the grist mill, mill dam and mill pond on the described premises. The argument is based upon the idea that a grist mill is devoted to the public use. But the prosecutors nowhere point out or show that there is a legal obligation upon the mill to grind all the grain brought to it. It can select its customers. The operation of the mill is purely voluntary. It is. a private use. The owners of the mill, so far as we- are able to. discover from the record and" the briefs, are not under any obligation to serve the public, as was said in the case of Olmsted v. Morris Aqueduct, 47 N. J. L. 331. If no obligation rested upon'the water company to supply, on reasonable terms, all wlio apply for water, the use would be strictly private. -The duty of furnishing the public with water must be present, to make it of a public character.

Fifth. The powers granted to the Hackensack Water Company, or its predecessors, to construct their works, and to acquire, by eminent domain, lands and other property necessary for that purpose, were exhausted and terminated upon the completion of said works.

The answer to this is found in the case of Mayor, &c., of Paterson v. West Orange Co., 84 N. J. L. 460.

Sixth. The petition and the orders made and proceedings taken in relation thereto, are in divers other respects illegal, unjust and oppressive ; under this point the prosecutors argue in tlie brief that it is apparent, on the face of defendant’s eminent domain petition, that no such demonstration (i. e., the necessity) has been made, because, there is set forth only the conclusion of the defendant’s board of directors, that these lands are necessary and not the facts, which demonstrates that necessity. The petition in this respect is sufficient, in the absence of evidence to the contrary. None of the reasons alleged against the appointment of commissioners is sustained. The proceedings are therefore affirmed, with costs.


text:
    CATHERINE PETERS, PLAINTIFF, v. UNITED STATES STORES CORPORATION, DEFENDANT.
    Argued January 6, 1925
    Decided January 23, 1925.
    Negligence — Motor Vehicle Accident at Crossing — No Errors Found in Trial — Verdict Not Found Against Weight of Evidence — Verdict Not Excessive in View of Extent of Injury.
    On application for a rule to show cause.
    Before Justices Kalisoh, Black and Campbell.
    Eor the plaintiff, William G. Be Meza and John Winans.

    Eor the defendant, Kellogg & Chance. '

   Per Curiam.

This is an application for a rule to show cause. The plaintiff received a verdict for $10,000 in an accident ease. The trial judge refused a rule. The plaintiff is thirty-six years of age. She was injured by an automobile about nine p. m. on September 8th, 1923, while crossing West First street, from south to north, at or near Sycamore avenue, in Plain-field, New Jersey.

The defendant argues six reasons for the granting of a rule to show cause.

The first and second, alleged error in refusing to non-suit the plaintiff or direct a verdict in favor of the defendant. These motions were urged on the ground that the facts show contributory negligence of the plaintiff. This point, with that of the negligence of the defendant, was submitted by the trial judge to the jury to decide, as questions of fact, and rightly so, as we think.

Third and fourth, alleged errors in refusing defendant’s request to charge, and in the charge of the trial judge to the jury. We find no error under either point. The charge of the. trial judge is a clear, accurate and comprehensive- statement oí the legal principles applicable to the facts in the record.

Fifth, the verdict is against the clear weight of the evidence. We do not so -find it from our reading of the record.

Sixth, the damages awarded by the verdict are excessive.

There is substantially no disagreement as to the injuries. The plaintiffs occupation is that of housekeeper; she was thirty-six years old at the time of the accident; she was knocked unconscious by the automobile; she sustained an injury on the forehead, a fracture of the right femur, resulting in a shortening of the right leg of one and one-half (1%) inches. The doctor found a permanent impairment of the functions of this leg, amounting, to sixty per cent., at the time of the trial, October 23d, 1924. Some thirteen months after the accident, she testified, “so T got around with a crutch again, and it feels a little better.” Record, page 36. Without attempting to recite in detail all the evidence bearing upon the question of injuries and the Joss of earning capacity, it is sufficient to say, we find nothing in the record that would justify us in saying that the verdict was excessive, or that it was the result of mistake, passion or prejudice. Queen v. Jennings, 93 N. J. L. 353.

As we find nothing in the record to justify disturbing the verdict, so, we find no grounds on which a rule should lie granted. The application for a rule to show cause is therefore denied.