author: Habry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    MORRIS GALVIN, PETITIONER, v. FLOCKHART FOUNDRY COMPANY, RESPONDENT.
    Degree of Permanent Disability Due to a Tilting of Pelvis, &c.
   A formal petition having been filed in the above matter asking for compensation under the terms of the Compensation law of this state, and an answer having been dnly filed, the same came on for a formal hearing before me in Newark, on Wednesday, February 11th, the petitioner being represented by Attorney Samuel Greenstone and the respondent by Attorney Richard W. Baker.

Mr. Galvin testified on his own behalf and also for the petitioner; Dr. Basson, Dr. Twinch and Dr. Keppler were called to testify. On behalf of the respondent Drs. Ruoff, Griffith and Holden were called to testify. It was claimed on behalf of the petitioner that, as a result of an accident which happened on April 9th, 1923, he was temporarily incapacitated for a considerable. period of time, and because of the fracture of the neck of the femur of the right leg he suffered a permanent disability, which should be taken in terms of partial total permanent disability, because of a tilting of the pelvis and some atrophy of the gluteal muscles. The doctors called by the petitioner estimated that there was a permanent disability amounting to between forty per cent, and fifty per cent, of partial total permanent disability. The doctors who testified on behalf of the respondent, however, claimed that permanent disability was limited to between twenty per cent, and twenty-five per cent, permanent loss of the right leg, basing their estimates on the leg, as the fracture was to the neck of the fumur, and there was no more atrophy of the gluteal muscles than would occur in the case of any fracture of the leg or in the case of an amputation of the leg. They also testified that there was no more tilting of the pelvis than there would he to any injury to the leg in which there was any shortening whatsoever present. They testified that there would be a tilting of the pelvis in the case of an amputation of the leg, which would have to be compensated for by an artificial limb.

After carefully examining the testimony in this case, I do hereby find that the petitioner did suffer an accident arising out of and in the course of his employment, on April 9th, 1923; that his wages were $20.52 per week; that he was temporarily incapacitated from the date of the accident up to January 21st, 1924, entitling him to temporary compensation for a period of thirty-nine and four-sevenths weeks at the rate of $12, all of which has been paid by the respondent; that the petitioner has suffered a permanent disability ■ of twenty-five per cent, loss of the right leg, entitling him to forty-three and tliree-iourths weeks’ compensation at $12 per week, all of which has been paid by the respondent. I do find, as a fact, that the permanent disability is limited to the leg, as the injury was to the leg and the atrophy of the gluteal muscles, and the tilting of the pelvis is merely the natural consequence of any serious fracture of the femur, with some resulting shortening or an amputation of the leg. Therefore, the disability should be limited to the leg, and I find, as a matter of fact, that the disability suffered by the petitioner is limited to the right leg.

Accordingly, I hereby order that the petitioner be entitled to thirty-nine and four-sevenths weeks’ compensation at $12 per week for temporary disability, and forty-three and three-fourths weeks’ compensation at $12 per week for permanent disability, all of which has already been paid by the respondent.

Habry J. Goas, Deputy Commissioner.


source: Caselaw Access Project

author: Campbell, J.

license: Public Domain

text:
    WILLIAM MARTIN v. WILLIAM P. CONDON.
    Decided July 14, 1925.
    Motor Vehicles — Non-residents—Service of Summons — Act of 1924 Providing That Motor Vehicle Owners or Operators From Other States, Not Licensed Here, in Accepting Privileges Extended Non-resident Owners Thereby Constitute Secretary of State Their Agent For Acceptance of Summons, Constitutional — State Has Power to Establish Reasonable Regulations Where Roads are Used by Motor Vehicles,
    This is a motion to sot aside the service of a summons and complaint.
    For the plaintiff, William O. French.

    For the defendant, Walter S. Keown.

   The opinion of the court was delivered by

Campbell, J.

The defendant, a.resident of Philadelphia, Pennsylvania, was, on August 1st, 1924, operating an autoprobile on the White Horse pike, in Atlantic county, this state, and while so operating a collision took place between plaintiff’s and defendant’s automobiles, whereby plaintiff claims to have been damaged as the result of alleged negligence of the defendant.

The suit was started March 19th, 1925, in this court,- with the venue in Atlantic county.

On March 20th, 1925, service of the summons and complaint was made ’on the secretary of state of New Jersey, who, on March 21st, forwarded the same, by registered mail, to defendant at'his'residence in Philadelphia.

Such service was made by authority of the statute. Pamph. L. 1924, p. 517.

That act provides, inter alia, that “* * * any operator or owner of a motor vehicle, not licensed under the laws of the State of New Jersey, * * * who shall' accept the privilege extended to 11011-resident * * * operators and owners by law of driving such motor vehicle, or of having the same driven or operated in the State of New Jersey, without a New Jersey registration or license, shall by such acceptance and operation of such automobile within the State of New Jersey make and constitute the secretary of state of the State of Now Jersey, his, her or their agent, for the. acceptance of process in any civil suit or proceeding by any resident of the State of New Jersey against such * * * operator or owner of such motor vehicle arising out of or by reason of any accident or collision occurring within the state in which a motor vehicle operated by such chauffeur or operator or such motor vehicle is involved.”

Two grounds are urged for setting aside the service—

1. Because such service' is not valid, in that it attempts to bring a non-resident defendant to the courts of this state to answer to an action in personum by process which is not served personally upon the defendant, but which was sent to him by mail.

2. Because the act authorizing such service is unconstitutional and void, in that it contravenes and is repugnant to article 14, section 1 of the United States constitution.

T am of the opinion that neither of these grounds is legally substantial.

1 am drawn to the argument that, in permitting the use of its highways by motor vehicles, the state has power to establish reasonable requirements as a condition precedent to such right of use, and that it is not an unreasonable! requirement to make provision for the jurisdiction of its courts over non-resident as well as resident users in cases of accident resulting from negligence in such use.

This, in the main, seems to find support in Kane v. New Jersey, 242 U. S. 160.

My attention has been brought to the case of Pawloski v. Hess, 114 N. E. Rep. 760, which seems to me to he entirely logical. It arose under a Massachusetts statute very similar to ours. Therein it is said—

“It appears to be a difference immaterial to its constitutional aspects that the statute thereunder consideration (Kane v. New Jersey, supra) required the. execution of a formal power of attorney to the state officer as a prerequisite to the use of the motor vehicle on the highway, while the statute here attacked provides that the actual voluntary driving o£ the motor vehicle on the highway shall be deemed to have the effect of a formal appointment of a designated public officer as agent of the driver. When the law clothes an intentional and intelligent act with specific consequences, then the doing of that act commonly entails those consequences.”

The application to set aside the service is denied, with costs.


text:
    SUMMIT PORCELAIN COMPANY, INCORPORATED, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF SUMMIT ET AL., RESPONDENTS.
    Decided July 14, 1925.
    Zoning — Location of Factory Addition in Territory Zoned For Retail Trade — Admitted That the Objection Was Not Based on Necessity For Protection of Health, Safety or Morals, But Entirely on Ground of General Welfare — Claimed That a Residential Community May Limit Existing Manufacturers and Prohibit New Ones — Case Held to Come Under Ignaciunas v. Risley, 2 N. J. Ad.v. R. 852.
    On certiorari.

    For the prosecutor. Osborne, Cornish & Scheclc and Thomas Brunetto.

    For the respondents, Clement K. Corbin. ■

   The opinion of the court was delivered by

Campbell, J.

This matter was argued before me, sitting as a single judge, under the statute, and it is a review of the action of the board of adjustment of the city of Summit in refusing a building permit to prosecutor, a corporation engaged since 1920 in the manufacture of electric porcelain products in the city of Summit. Finding it necessary Cor the proper and economic conduct of its business to erect a one-story concrete building thirty-seven feet by thirty-two feet to contain a kiln, it applied for a permit to erect such building to the building inspector of the city of Summit, who declined to issue it on the ground that such construction would bo in violation of the zoning ordinance of the city.

Prosecutor then appealed, pursuant to the terms of such ordinance, to the board of adjustment, and that board refused to issue such permit.

At the time this application was made and appeal prosecuted it was the intention to operate the kiln in such proposed building by heat generated by the burning of coal. Subsequently, such plan of heating was changed from coal to oil, and a new application, based upon such change, was made to the board of adjustment on March 20th, 1924, and that body refused the application on' March 30, 1924-, on the ground “that no good and sufficient reason exists to warrant granting an eighty per cent, increase in a forbidden non-conforming industry in a restricted zone in the very heart of the city.”

The eighty per cent, increase referred to in such finding has reference entirely to the value and bulk of the product manufactured by prosecutor.

The plant of prosecutor is located in a business district of the city, but is termed a non-conforming industry because of the following provision of the zoning ordinance, viz.:

Section 14, subdivision b — “No building or premises shall be used in anv part for any fabricating, manufacturing, converting, altering, finishing or assembling, where the major portion of the products manufactured or treated is to be sold other than at retail on the premises. No more than one-third of the total floor area of the building shall be occupied by such uses, except that the equivalent of the entire ground floor area may he thus occupied in any event.”

Such provision applies to a zone created by such ordinance and within which prosecutor’s plant is, and the proposed addition will be located.

Upon the argument before me it was frankly admitted by counsel.for respondents that there was no contention that such refusal to issue the permit was based upon any consideration or necessity for -the protection or promotion of health, safety or morals, but entirely upon the ground of general welfare, and it is argued that as the city of Summit is a residential community, the right exists, under the statutes authorizing • ordinances of this character, to prohibit future industries and limit, the growth and expansion of existing ones, except in certain prescribed areas,-so as to protect the remaining territory of the municipality in its use for residential purposes; make such portions more desirable for such uses, insure owners against the encroachments from business and increase the value of properties in such residential areas. And it is urged that the term “general welfare of the community” in the statute (Pamph. L. 1924, p. 324) must be given this' construction and meaning.

The case as presented, therefore, leaves nothing for consideration and determination, but the single question as to whether the general welfare provision in the statute has the meaning attempted to be attributed to it by the respondents.

The answer must be in the negative. That clause has been definitely defined-by the Court of Errors and Appeals in Ignaciunas v. Risley, 2 N. J. Adv. R. 852; wherein it is said: “The ordinary use of property is not authorized by the general welfare clause of the statute to be prohibited, because repugnant to the sentiments or desires - of a particular class residing in the immediate neighborhood thereof, but only. because such use is detrimental to the interests of the public at-large. -In other'words, the restriction authorized by .this provision of the statute upon the u'ntrammeled use of property for the promotion of the general welfare 'of the community must be such as will tend in some degree to prevent harm to the public generally, or to promote .-the -common good of the whole -people of such community.” . That is, the general welfare of the community, through such ordinances, is to be promoted by provisions reasonably necessary to protect the health, safety and morals of the whole people constituting the particular community.

. View in this light, I cannot think the prohibitions of the ordinance in question, as applied to prosecutor’s situation, can he said to be reasonable.

Eor that reason the decision of the board of adjustment has no legal support and justification, and must therefore be set aside, and the same is set aside, with costs.


author: Donges. J.

text:
    FREDERICK A. DUGGAN, PLAINTIFF, v. JAMES LAFKAS ET AL., DEFENDANTS.
    Decided July 11, 1925.
    Ejectment: — Lessee’s Contract Provided For Payment of Rent and Income of Taxes in New Lease Extending Term of a Former Lease — Part Payment Only Was Made According to Terms— Not Necessary to Decide Whether Provision of Lease is a Condition or Covenant, if Condition It was One Precedent to the Creation of a New Term, if Covenant There Had Been a Breach — Acceptance of Part of Taxes Did Not Waive Requirement.
    For the plaintiff. Jante.s J. HcGoogan.

    For the defendants, Pomerehne, Laible & Kautz.

   The opinion of the court was delivered by

Donges. J.

Tins case is before me on stipulated facts, to lie decided without a jury.

ft is an action in ejectment brought against Lafkas and three others as partners, and Pagos & Rogokas, Incorporated, for possession of a part of premises No. 13 East State street, Trenton, New Jersey.

The partners were lessees of the premises in question under a lease with plaintiff expiring October 18th, 1924. On September 1st, 1920, they entered into an agreement with plaintiff to lease the premises for a term to commence on October 18th, 1924, and to terminate October 12th, 1928, at the yearly rent of $4,200, payable in installments of $350 per month in advance.

The lessees assigned this lease to the corporation defendant.

The new lease provided, paragraph 3, page 1—

“It is agreed that before the party of the second part enter into possession of the premises under the terms of this lease, they shall pay all increases in taxes over the taxes levied upon the .premises No. 13 East State street, Trenton, New Jersey, in the year 1920, and which are levied for the years 1921, 1922, 1923 and 1924, and that they will, during the continuance of this lease, semi-annually pay a similar increase over the taxes levied in the year 1920 upon the said premises to the party of the first part, for taxes levied during the years 1925, 1926, 1927 and 1928.”

It was provided, paragraph 7—

“The said party of the second part covenants to pay to the said party of the first part the said rent as herein specified, and the said amounts, representing increases in taxes, as herein specified.”

It was further provided, paragraph 5, that—

“IE any rent shall be due and unpaid, or if default shall be made in any oE the covenants herein contained, then it shall be lawful for the party of the first part to re-enter the said premises and to remove all persons therefrom.”

In the stipulated facts two points are raised by plaintiff as grounds for judgment — first, that the proportion of taxes for 1924 to be paid by the lessees were not paid or tendered before the date when the new term was to begin, and second, that assignment by the partner lessees to the corporation defendant was a breach of the covenant not to “sublet or underlet” the premises. . There is no allegation in the complaint covering the second point, and it is not argued in plaintiff’s brief, reliance being placed on the first point.

From the agreed facts it appears that all excess of taxes for the years 1920, 1921, 1922 and 1923 were paid by the lessees, and that—

“On or about April 11th, 1924, plaintiff sent to the defendant a bill for the first half of taxes for the year 1921, in excess of the 1920 levy, which the defendants paid to and which plaintiff accepted, a receipt for which was given, a copy of which is as follows:

“Trenton, N. J., April 11, 1924.
Presto Lunch Go.
To Frederick A. Duggan, Dr.
To increase in taxes for 1924 in excess of 1920. . $671.18
Credit on .account.......................... 335.59
Balance due ........................ $335.59
Received payment,
(Signed) F. A. Duggan/
“No further demand for the second half of said taxes was made by plaintiff prior to demand for possession, at which time plaintiff refused to accept said second half of said taxes.”

Plaintiff made demand on October 20th, 1924, for possession, which was refused.

““12. On October 31st, 1924-, defendant, Pagos & Rogokos Company, Incorporated, tendered to the plaintiff in person $350, for November, 1924, rent, together with $335.59, second half of excess taxes for the year 1924, both of which amounts tendered plaintiff refused to accept.”

Rent for all of October was paid on October 1st.

It is not necessary to decide whether the provision contained in the lease respecting taxes is a condition or a covenant. If it was a condition, it "was a condition precedent to the creation of a new term, and, never having been performed, defendants never took under the lease. If, as I am inclined to believe, it was a covenant, as stated in paragraph 7 of the lease, there was a breach, which, under the re-entry clause, gave plaintiff a right to possession.

Defendants insist that, by accepting a part-of the taxes'for 1924, plaintiff waived the requirement that-it be paid in full before the new term began: I am unable to adopt this view. The language employed is clear and definite. 'There is'an obligation imposed upon the lessee to make such payment. Lessee was apprised of the amount due. There is nothing in the agreed facts from which it. appears that the plaintiff waved this provision. Certainly, by accepting part in April, it cannot be said that the lessee had a right to assume that payment of the balance within the prescribed time would not be required.

I conclude that plaintiff is entitled to judgment.


author: Doxges, J.

text:
    WILLIAM BOOTH, PLAINTIFF, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, DEFENDANT.
    Decided July 11, 1925.
    Insurance — Accident—Insurance Against Total and Continuous Disability From Time of Accident — Evidence Showed Plaintiff Did Some Work After Accident Before Total Disability Developed But Was Suffering From Trouble Which Shortly Developed Into Total Disability — Meld, That Plaintiff Was Entitled to Recover in Full.
    For tlie plaintiff. Bleakly, Btockwell cC Burling.

    For the defendant, Carr & Carroll.

   The opinion of the court is delivered hy

Doxges, J.

Suit is brought to recover on a contract of insurance issued by defendant to plaintiff, assuring him certain payments in event of accidental bodily injuries, whether fatal or non-fatal.

The facts are stipulated and are submitted for determination without a jury.

The question presented is whether, under file agreed facts, plaintiff is entitled to recover under the clause in the policy providing for full indemnity if the assured meet accidental injury, which “shall, independently and exclusively of all other causes, continuously and wholly disable and prevent the insured from the date of accident from performing any and every kind of duty per tain jug to his occupation,” or under another provision for partial indemnity if “such injury shall not wholly disable the insured, hut, independently and exclusively of all other” causes, shall from the date of the accident [or immediately following total disability'] continuously disable and prevent him from performing one or more material daily duties pertaining to his occupation.”

From the agreed facts it appears that on May 19th, 1921, during the term of the policy, at Newport News Shipbuilding Company, at Newport News, Virginia, while in his employment as a ship surveyor'and inspector, plaintiff accidentally fell and was struck upon the head and chin and was rendered insensible. Upon recovering his senses he had the apparent and superficial wounds and injuries dressed and went to his temporary residence in Newport News. He immediately complained of dizziness., headache, blurred vision, and that his eyes “had gone bad on him.” He “could not see well enough nor' carry an association of ideas long enough to head a telegram from his employer;” was obliged to have it read to him and could not recall the answer made thereto. Prom the time of the accident his vision was impaired, he could read only one letter of a word at a time, and seemed unable to comprehend the whole word at once. He could not write with his usual facility. He suffered pains in the head.

Prom May 19th to‘ June 20th, 1924, plaintiff went to his place of employment and endeavored to perform his duties for a part of each day. He was unable to remain for the usual period of time, and was obliged to remain away entirely for one clay in each week. The quality of his work fell off from the date of the injury and grew progressively worse. He failed to note defects in the work under his supervision, and others made reports thereon.

On June 20th, 1924, plaintiff became very ill. He was only semi-conscious. He lost the .use of his voice and of his right arm and right leg, and on June 23d he suffered a complete paralysis of the right side, and on June 30th was operated on for decompression of the brain.

It is agreed that plaintiff had typical right hemiplegia, accompanied by asphasia, caused by a lesion in the left internal capsule of the brain; that the affected vision, loss of memory and lack of co-ordination, as evidenced in plaintiff’s handwriting, are symptoms of brain disorder; that- his condition was due to hemorrhage or thrombosis; that plaintiff’s condition is known as “spate” or late apoplexy, and is caused by a concussion of the brain, the result of a fall or a blow, and that his total breakdown and total incapacity are a direct result of the accident, and prevent him from performing any and every kind of duty pertaining to his occupation.

Defendant insists plaintiff was not wholly disabled and prevented' from performing any and every kind of duty from the date of the accident, because he went to his place of employment and apparently performed some of the duties of his occupation, and that he was not wholly disabled and prevented from performing them until June 20th, when he became paralyzed and was unable to get about at all.

A fair and reasonable construction of the contract does not support this conclusion. If the contract clearly said this, a court would lie bound by the terms of the contract, unless such construction would bring about an unreasonable or absurd result, or would defeat the manifest intention of the parties and the object and purpose of entering into the contract.

In view of the nature of the contract and the object sought, it is a fair and reasonable eongtruetion to hold that where the injury is such that the results continue from the date of accident and wholly incapacitate the assured within such time as is required for the processes of nature to bring about .su,ch total disability, there is a continuous and total disability from the date of the accident. It is admitted in this case that the condition which resulted in paralysis on June 20th was present immediately following the accident. To say that it did not wholly disable and prevent the insured from the (late of the accident from performing his duties, because he endeavored to perform them, is to put a strained and unfair interpretation upon the term used and to do violence to the obvious purpose of the contract. The fact that Booth tried to work is not to be taken as conclusive evidence of his ability to do so. On the contrary, the agreed facts leave no doubt that, from the time of injury, he was in a serious condition, and that prudence required that he refrain from all effort until he was cured. In the observation of all iheve have been instances where men have stuck to their posts long after ability was gone, and there are historic instances of dying men persisting in performing duty. Plaintiff should not be penalized for honest efforts to keep going when nature demanded that he desist. ■

Nor does the use of the word “prevent” mean that there shall be a physical absence from the })lace of employment. I take the word in this connection to mean that plaintiff must be unfitted for his usual duties, and be hindered and impeted by his injury in performing them.

It follows from the above that plaintiff wras continuously and -wholly disabled and prevented from the date of the accident from performing any and every kind of duty pertaining to his occupation.

These view's are supported by numerous cases, among which are Rathbun v. Globe Indemnity Co., 184 N. W. Rep. 903; Metropolitan Casualty Insurance Co. v. Cato, 74 So. Rep. 114; Wall v. Casually Co., 86 S. W. Rep. 491; North American, Accident Insurance Co. v. Miller, 193 Id. 750; Erickson, v. Order, &c., 176 Pac. Rep. 989; Martin v. Travelers Insurance Co., 247 N. 17. Rep. 1024.

If there were any doubt of the soundness of the conclusion above stated on the broad question of the fair and reasonable moaning of the contract as to when insured is. wholly disabled and prevented from performing his duties, our court of last resort settled what is meant by the rvords “any and every kind of duty pertaining to his occupation.” In the case of Gross v. Commercial Casualty Insurance Co., 90 N. J. L. 594, almost identical wmrds were involved, and it w'as held that to be totally disabled and prevented from performing any and every kind of work, it'vuis not necessary that insured “be so disabled as to prevent him from doing anything'whatsoever pertaining to his occupation or to any part of his business, but that he must be so disabled as to prevent him from doing any and every kind of business pertaining to his occupation, and that there was a difference between being able to perform any part and any and every kind of business.”

The facts in -this case clearly show' that if Booth was able to perform any part of his duties after the injury, he wras wholly disabled and prevented from performing any and every kind of duty pertaining to Ms occupation. The fact that he could not see well, and lacked mental co-ordination, made it impossible for him to perform bis duty as an inspector of technical work.

I conclude, therefore, that plaintiff is entitled to recover Ml compensation under the terms of his contract of insurance.

Under the stipulation judgment “should be entered at the rate of $25 per week, from June 20th, 1924, to the date of adjudication of the cause.”


author: Lloyd, J.

text:
    NOAH MacDOWELL & COMPANY, PLAINTIFF, v. EDWARD AND JOHN BURKE, LIMITED, DEFENDANT.
    Decided July 27, 1923.
    Attachment — General Appearance by the Defendant and Complaint Filed Setting Forth Cause of Action — Motion to Strike Out Complaint on Ground That, as Filed, It is For Unliquidated Damages — Dispute Relates to Failure of General Distributor of Manufacturer to Take Entire Product as Agreed Upon — Defendant’s Contention Well Founded — Entrance of General Appearance Should Not Affect His Rights in the Case as It Has Progressed — Complaint Struck Out Attachment Will Remain.
    Fox the plaintiff, Geran & Mattack.

    For the defendant, Pitney, Hardin <& Skinner.

   The opinion of the court was delivered by

Lloyd, J.

This is a motion to strike out the’complaint, release the property attached under a writ from the lien of .the attachment, or quash the writ of attachment, on the ground that the claim set forth by the complaint is unliquidated damages.

The attachment was sued out under the act of 1901 and based upon the statutory affidavit. An auditor was appointed and a report filed by him, but within the time limited by the statute the defendant entered a general appearance. Thereafter the plaintiff served its complaint setting forth the cause of action in the case.

The basis of the motion is that the cause of action as now filed is for unliquidated damages, and that a writ of attachment for such claim will not issue. An examination of the complaint discloses that it is based upon a alleged breach of written contract entered into between the parties whereby the defendant became the distributor over the entire world of certain products manufactured by the plaintiff, and the plaintiff was to sell to the defendant for cash all of the said products manufactured by it, or to be manufactured by it, during the lifetime of the contract, or until the 30th of April, 1930; that at the time of the execution of the contract on April 24-th, 1919, the plaintiff corporation was manufacturing twelve thousand cases of merchandise per year, and lias continued to manufacture its product at that rate ever since; that the defendant has refused to take the entire output of the plaintiff, and as a result the plaintiff has lost the profit which would have accrued to it had it not been for such refusal. The complaint further sets forth that the profit to the plaintiff amounfed to one dollar per ease; that the defendant corporation has refused to accept twenty thousand cases, and the same are held subject to the order of the defendant.

It seems to me the defendant’s contention is well founded. The term “profit” is, in itself, a most elastic one, and depends in a business operation upon many factors. To determine its amount in any given case neither reference to the contract nor to any method of calculation arising out of it, or resulting from it by operation of law, could establish the profit which the plaintiff would have made upon the merchandise so manut'aciured. In the cast* of Heckscher v. Trotter, 48 N. J. L. 421. Mr. Justice Dixon, quoting from Petered. Bail (the law being that an attachment will lie only if the plaintiff would have been entitled lo hold the defendant to bail upon filing an affidavit of the cause of action), says: “The general rule adopted by all the courts is consistent and uniform, that where the cause of action arises from a debt or money demand, or where it sounds in damages, but the damages are capable of being ascertained with certainty by mere arithmetical computation, the defendant may be hoi den to bail as of course; but, on the other hand, where the cause of action consists merely in a right to recover some damages, but those damages are general, indefinite, and undertermined or incapable of being reduced by calculation to a proper degree of certainty without the intervention of a jury, the defendant cannot be holden to bail as of course.” The principle was recognized as far back as Jeffrey v. Wooley, 5 Halst. 123. There- have been numerous cases in our courts, most of them in the Supreme Court, in which this standard has been recognized and applied. Tested thereby, it seems to me in this case that by no extension of the term “liquidated” could the plaintiff’s claim be brought within it. It was engaged in the business of manufacturing products involving a secret formula, and the conditions of manufacture must have been almost as variant as the days upon which the, manufacture took place. Entering into the result are the endless elements which go to make up business profit and loss. To determine the profit, if any, a jury would be essential, and the defendant would have a right to test it before that body by cross-examination of witnesses. It would seem to me, therefore, that the claim of the plaintiff must be classified as unliquidated.

But it is said that the plaintiff could not succeed in its motion because of having entered a general appearance to the action. Here, again, it seems to me the plaintiff cannot prevail. The original affidavit filed in the cause was in statutory form, and averred the existence of a debt for which an attachment would lie. It was to the action as thus founded that the defendant entered an, appearance. At that time the complaint now being dealt with had not been filed. When it was filed it was a complete departure from a cause of action within the affidavit filed, and is based upon a cause of action for which an attachment would not lie. When the appearance was entered it must have been upon the assumption that the plaintiff had a legal cause of action sustainable under a proceeding by attachment. When the complaint was filed it was for a cause of action of which the court in that form of procedure would have no jurisdiction. To permit a party to bring into court a defendant by attachment of its property based upon an asserted cause of action cognizable therein, and thereafter introduce a claim which, if filed in the beginning, would have nullified the proceeding, would be to sanction an imposition on the defendant and a perversion of the process of the court. When the defendant entered its appearance it was bound to anticipate the-filing of any cause of action .for which an attachment would lie. It was not bound to anticipate a canse of action for which an attachment would not lie. Under these circumstances, it seems to me to be most inequitable that the defendant should be estopped by its appearance from contesting the right of action as now sought to be recovered. It also seems to me that this position is supported by ample authority in other cases under the act. In Heckscher v. Trotter, supra, it was said by Mr. Justice Dixon that, by appearing generally, the defendant acknowledged that due steps have been taken to bring him personally into court to answer whatever demands the plaintiff may lawfully present in such action as he has instituted. The same justice, speaking in Winant v. Nautical Preparatory School, 70 N. J. L. 367, sa5rs: “By this general appearance and pleading to the action the defendant conclusively acknowledged that he was legally brought -into court. The eases cited | quoting cases], while they indicate, that after such appearance the legality of the claim may be inquired into, did not suggest that a demurrer to the declaration could prevail. It may be that if the declaration presented a cause of action wholly outside of that for which the attachment issued, it would be stricken out on motion.” Subsequently, in the ,-ame case1 — Winant v. Nautical School, reported in 27 N. J. L. J. 208 — Mr. Justice Pitney, after quoting the language of Mr. Justice Dixon as above, says: “The final step in the nature of appearance is the present motion, which [like the present was to strike out the complaint] is expressly based on the ground of want of jurisdiction over the person of the defendant for the purpose of the unliquidated demand set up in the first count of the declaration. It seems to me plain that, in faking either of these steps, the defendant has not waived the objection now presented.”

The same justice in Sullivan v. Moffat, 68 N. J. L. 211, had before him the precise question here presented, and says: “The plaintiff insists that this motion is precluded by the general appearance, and cites the decisions in Connelly v. Lerche, 56 Id. 95, and Watson v. Noblett, 65 Id. 506, to support the position. But those eases aTe not apt for the present purpose. In each the motion was to quash the writ and so to end the suit. Manifestly, that should not be done after a general appearance, for the writ had accomplished part of its purpose by bringing the defendant into court. But there is a plain distinction between quashing the writ and releasing porperty unlawfully attached under it, Avhich is sufficiently pointed out by the opinions in Heckscher v. Trotter, supra, and Moore v. Richardson, 65 N. J. L. 531.”

It must be recognized that the purpose of an attachment against a foreign debtor is, in its inception, to compel the appearance of a defendant having property in this state who is not otherwise within the reach of its process. To the end that he may receive notice, comprehensive advertisement is required by the act, and a long period of opportunity is afforded for an appearance. It is a harsh proceeding, and in many cases may work hardship against an owner of property within the state, but who may be resident beyond its limits by the sacrifice of his property or subjecting it to an unjust claim without his knowledge. It seems to me that, like all extraordianry process, .it should be held within its own bounds. While the thirty-third section of the act declares that “it shall be construed in all courts in the most liberal manner for the detection of fraud, the advancement of justice and the benefit of creditors,” as was said by the Supreme Court in Connelly v. Lerche, supra, “this provision was clearly not intended to give the courts, under decisions in this state, any right to uphold an attachment where there was not, in fact, proper ground therefor.” A misuse of the process under the act is not for.the advancement of justice, nor, ultimately, for the benefit of creditors.

The motion is in the alternative. The most that the dedefendant is entitled to ask is that that part of the motion which seeks to strike out the complaint should be allowed. The affidavit upon which the process was originally issued is adequate for the purpose, and, perchance, a complaint in accordance with the statute may by leave of the court yet be filed.

My conclusion is that the present complaint should not be permitted and should he stricken out. The attachment, of coarse, will remain, and for all valid purposes that the attachment may issue the defendant will be held to be in court, but not for those causes of action which lie outside of the claims for which an attachment will lie.

The parties in this action have stipulated that in the hearing of the present motion I should sit as and for the court in banc in one of its branches.


author: Kocher, Advisory Master.

text:
    Essex County Orphans Court.
    In the matter of the estate of Herman Ahrend, deceased.
    [Decided July 21st, 1925.]
    Trustees — Executors—Accounting—Estate's Funds Invested in Real Estate, Bought For Purpose of Home For Widow of Decedent, Mother of Both the Trustee and the Exceptant— Title to Property Placed in Widow’s Name — Previous Informal Accounting in which All Beneficiaries Signed Acceptancei— Exceptant, One of the Signers, Now Objects — Orphans' Court Without Jurisdiction to Direct Reconveyance — Trustees Must Invest Funds as Directed by Statute, No Provision For Investment in Real Estate — Exception Allowed.
    On exceptions to account.

      Mr. Theodore 'G-. Hindenlang, proctor for the accontants.

      Mr. Fred Q. Stichel, Jr., proctor for the exceptant.
   Kocher, Advisory Master.

Herman Ahrend, late of .the county of Essex, deceased, left a last will and testament, which was duly admitted to probate by the surrogate of the said county of Essex on the 15th day of Januarjr, 1917, wherein and whereby he gave certain factory property, owned by him, to his son Henry, and the residue of his estate to his wife, Anna, for life, with remainder to his children, Henry, Annie, Johanna, Lizzie, Augusta and Ada, and wherein he appointed his son Henry and his wife, Anna, executors thereof.

The said executors did not file any account until the 4th day of March, 1925, to which account various exceptions were taken by testator’s daughter Ada, who is not on friendly terms with her brothers and sisters. Among the items excepted to is one wherein accountants pray allowance for the sum of $10,514.31, expended b}' them for the purchase of a house and lot on Treacy avenue, Newark, New Jersey.

It is settled that trustees must invest the trust funds as directed by statute, and that they may not purchase real estate. Smith v. Robinson, 83 N. J. Eq. 384. The accountants, however, attempt to justify such investment by putting in evidence an informal accounting had between the executors and all parties in interest, at the end of which accounting appears the following: “We, the undersigned, being all of children of Herman Ahrend, deceased, do hereby declare that we having read the foregoing account, do accept the same as being true and just, both as to the charges and discharges thereof, and that we do hereby waive the filing of the said account in the office of the surrogate of Essex county.’’ This was signed hv all of the children of Herman Ahrend. This account contained the same item reciting the purchase of real estate now before the court, and it is contended on the part of accountants that, having approved the account containing this item, exceptant, who is one of the children of the testator and who signed the informal account, is now estopped from objecting to this item.

I do not think, however, that this contension can he successfully sustained, in view of the fact that the executor, himself, as well as all his brothers and sisters, except Lizzie, those friendly with exceptant as well as those unfriendly, testified that the intention of all concerned was that the house was purchased for the purpose of providing their mother with a home (luring her lifetime, and that the property was to revert to the estate of the testator upon the death of their mother, and that tliev signed the above-mentioned informal account with that understanding, whereas, in fact, the title to the property in question was taken in the name of the widow, so that she now holds the fee-simple with power of disposing of same upon her death. Herman says that he placed the title in his mother because he was so advised by a member of the liar who is now deceased. However that may be, it would appear that any intelligent layman must know that he cannot take funds of an estate and purchase property placing the title thereto in the tenant for life. The situation presented in this (¡ase is so unusual that it lias been impossible to find cases even remotely bearing upon the subject. The case of Woodruff v. Lounsborry, 40 N. J. Eq. 545 (at the bottom of p. 549), is, however, illustrative of the point.

The fundamental principle in regard to a trustee, whether an executor, administrator or guardian, is that he shall derive to himself no gain, benefit or advantage by the use of the trust funds. Whatever profit may be made or may accrue shall apply to and become a parcel of the estate. Voorhees v. Stoothoff, 11 N. J. Law 145.

Of course, this court has no jurisdiction to order the executor to obtain a conveyance of the property from his mother to the estate, or to hold that the mother holds the title in trust for the estate, and, even though it had, there are other complications which would effectually prevent this simple solution of the problem. The accountant testified that he had expended a considerable sum of his own monej1' on the property in constructing a garage thereon and other improvements, amounting in all, as I recall, to $4,000 or thereabouts. In order to secure this money he had his mother, the holder of the title, convey him a one-half interest therein, and later on in a proceeding in the court of chancery, to which only he and his mother were parties, the title being in his mother, the deed to him was set aside and a lien imposed upon the property for the amount which he alleges he expended. This being so, the property is encumbered by this lien.

It would appear that the only solution is to allow the exception and to surcharge the executor with the amount thereof and such additional sum as shall equal the present value of the property.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    THERESA N. BOLOS, PETITIONER, v. TRENTON FIRE CLAY AND PORCELAIN COMPANY, RESPONDENT.
    Injury Resulting in Death Caused by Falling from Running-Board of Motor Truck of Employer While Returning to Work After Dinner — Employment Begins After Recess, When Employe Again Comes Under Jurisdiction of Employer1 — Whistle to Resume Work Had Blown.
   On and previous to May 8th, 1924, the petitioner’s husband was employed by the Trenton Fire Clay and Porcelain Company, a subsidiary of the J. L. Mott Company, as a helper on one of its trucks used chiefly in work about the yards of the plants. These trucks were nightly housed in a garage on the property of the J. L. Mott Company, and behind or near the garage, on the same property, was a stable where, according to the testimony”, some of the men were accustomed to eat their lunches. The garage was a short distance removed and on the opposite side of the public street from the gateway, giving entrance to the yard of the respondent’s plant.

, The driver of the truck, on which the decedent was helper, stated that when the noon whistle blew be understood his assistant to say he was going home for dinner. The widow, however, testified that he did not come home, hut that their daughter, as was her custom, took her father’s lunch to him at the stable. This phase of the matter is unimportant, since the chauffeur of the truck, from which the decedent fell, testified that, about the time of the blowing of the whistle terminating the lunch hour, he saw the petitioner’s husband coming from the stable to tbe garage, where he mounted the running-board of the truck that this chauffeur was driving, for the purpose of riding to the other yard, where he had left the car on which he worked when the noon whistle blew. Claim is made by the respondent that in so doing the decedent disobeyed orders relative thereto. This contention is without merit, in view of testimony by the assistant executive manager that the order consisted of the posting of printed notices some years previous to this occurrence, and that he could not state whether or not at this time these notices are still in evidence. There is no evidence to show that the decedent could read the English language, or that he had ever been personalty instructed not to ride on the running-board of a truck. Indeed, there was direct testimony that men have at times ridden on the running-board of various trucks. Little weight can be given to this contention, especially in view of the decision in the case of Kloaszynski v. Klie, 102 Atl. Rep. 5.

' Resuming the statement of the facts in this case, it appears that the truck, on the running-board of which the decedent was riding, left the garage, traversed the street to the entrance to the yard where the decedent’s truck had been left, and that at the moment when the truck turned to enter the gate the decedent lost his hold, or was thrown bjr centrifugal force, from his position to the pavement, inflicting injuries from which he shortly died. It is established that tlie whistle to resume work had blown before the occurrence of this accident.

With regard to the legal phases of this case, it can be said with assurance that an employe’s employment begins after each recess, when he again comes under the jurisdiction of the employer. It can also be accepted that an employe comes under the jurisdiction of the master the moment he steps on the premises of his employer. No employer would for a moment subscribe to any other theory. In the present case, if the ground on which the garage stood was not owned by the subsidiary company who emplo3recl this man, the fact remains that the trucks were kept in this garage, which fact, not only gave him rightful entrance to this place, but actually required him to go there in order to begin his day’s work. Furthermore, these employes had every reason to believe, and no means of knowing otherwise, than that all the property aboye mentioned belonged to the concern for which they worked. Fairness to this widow and the dependent children, must dictate the finding that the deceased was on the projiPTty owned or controlled by his employer when the whistle sounded for work. That he was not at the exact point where he was expected to be at that moment, is a matter which, it seems to me, rightfully belongs to the disciplinary function of plant management, and should have been so dealt with by the officials had the employe remained within reach. Unfortunately, this cannot now be done. To attempt so to do would be to raise the question of fault as a determining factor. Manifestly, this would be unjust, as in no case can fault on the part of the employer subject him to a greater liability than that fixed by the statute. The loss of an arm by a circular saw which an employer has negligently left without the guard actually required by law, cannot react against said employer for an amount greater than the, scheduled compensation. That being so, fault on fhe part of the employe cannot, in justice, be an excuse for penalizing the employe. A prime desideratum of the Compensation law is the elimination of fault as an element of a case. Where a plant or company property is situated on both sides of a street, it must be, conceded that the employe’s employment does not cease while he. is proceeding from one such place to the other. The exact point of an accident under these conditions is irrelevant. This reasoning at once disposes of the contention of the respondent that this employe was not where he should have been, and that he was, riding on the running-board of a truck, and brings ns face to face with the necessity of issuing an award in favor of the petitioner and her dependent children. An order will be drawn up accordingly.

W. E. Stubbs, Deputy Commissioner of Compensation.


author: Charles E. Corbih, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    CLARENCE FOOKS, PETITIONER, v. GEORGE M. HARRIS & SON AND TRAVELERS INSURANCE COMPANY, RESPONDENTS.
    Insurance Carriers Liability — Employer Must Carry Insurance— Not Within Jurisdiction of. Bureau to Determine Questions of Policy or Contract Between Employer and Insurance . Carrier — Judgment Against Employer, Who Has Recourse to Law Courts Against Carrier.
    For the complainants, Frank T. Lloyd, Jr.

    For the employer-respondent, Joseph B. Tyler.

    For the insurance company-respondent, E. B. Brandrijf.

   # * # * ?;< % ❖ * #

This is an action brought by petitioner, Clarence Fooks, against George M. Harris & Son as employer and Travelers Insurance Company as insurance carrier. At the time of hearing a stipulation was entered upon the record, as follows: "It is stipulated and agreed between' the attorneys for petitioner and respondent that claimant suffered an accident on June 31st, 1933, arising out of and in the course of his employment with George M. Harris & Son. The accident was as follows: He cranked a Mack truck while it was in gear; the truck started ahead, and, while trying to stop it, his arm was caught and injured. As a result of said accident petitioner suffered temporary disability to November 31st, 1933, and permanent disability of one-thircl loss of his right hand. His wages at the time of the accident were $31 a week, making the compensation rate $13. Medical expenses amounting to $135. The question at issue is the payment of the compensation, and by which defendant or both.”

From the above stipulation it can be readily seen that the only question at issue is as to whether the employer or the insurance company is liable to pay for the above-stated compensation due. ' The respondent George M. Harris & Sou at the trial of the case put in evidence an insurance policy given by the Travelers Insurance Company to George M. Harris & Son, covering all liability of George M. Harris & Son for compensation due for employes in case of accident, and George M. Harris & Son contends that, because of such insurance, the Travelers Insurance Company is liable for the payment of compensation to petitioner. Respondent the Travelers Insurance Company contends that the workmen’s compensation bureau is without jurisdiction to determine questions of insurance or questions involving relations between an employer and an insurance carrier; also, that respondent George M. Harris & Son fraudulently made use of the policy for insurance by procuring same after the accident to petitioner.

There is no doubt in my mind but that the employer, George M. Harris & Son, is primarily liable for payment of compensation for injuries to petitioner. As to the jurisdiction of the workmen’s compensation bureau to find judgment against the insurance carrier, it is necesary to carefully examine the relation which the Workmen’s Compensation Insurance act of 1917 and amendments bears to the Workmen’s Compensation act of 1911 and amendments. After such examination it is my conclusion that the intent of the legislature in the act of 1917, and amendments, was to compel an employer to carry compensation insurance policy, and to compel the insurance carrier to be under a contractual relationship with the employer and its employes to such an extent that the insurance carrier would be liable for all damages resulting in injuries to employes of an employer arising out of and in the course of such employment. However, it was not the intent of the legislature that questions involving the policy or contract between the employer and the insurance carrier should be decided by the bureau, but it was their intent that compensation for injuries arising out of and in the course of employment should he fixed by the bureau.

There is nothing in the Workmen’s Compensation act nor in the Workmen’s Compensation Insurance' act giving the workmen’s." compensation bureau jurisdiction to determine questions of insurance or questions involving relations between an employer and its insurance carrier. Such matters must be adjudicated by common'law tribunals. Therefore, I am without jurisdiction to find a judgment as against the Travelers Insurance Company, but do find that respondent George M. Harris & Son is liable for compensation due the petitioner, Clarence Looks, as a result of an accident arising out of and in the course, of his employment. In order that the respondent George M. Harris & Son may be reimbursed from the insurance carrier for such compensation, G'eorge M. Harris & Son should sue in a common law court of competent jurisdiction on the policy. At that time the insurance company then will have an opportunity to present the defense 'of fraud in the procurance of the policy.

I do therefore find and determine as to the respondent Travelers Insurance Company that this bureau is without jurisdiction to enter judgment as against said company, but as against respondent George M. Harris & Son I do find as follows:

Lirst. That the petitioner, Clarence Looks, was, on the 21st day of June, 1923, in the employe of respondent George M. Harris & Son, Which employment was subject to the compensation section of page 96, laws of 1911, and supplements and amendments 'thereto.

Second. That on the aforesaid date petitioner met with an accident arising out of and in the course of his employment; that intoxication was not the proximate cause, nor was the injury'self-inflicted.

>¡< • jfi # # *.*:

Charles E. Corbih, Deputy Commissioner.


author: Per Curiaai.

text:
    WLADYSLAW PONIATOWSKI AND JOSEPH ZAWISKA, PLAINTIFFS-APPELLEES, v. JOHN W. CAMAC, DEFENDANT-APPELLANT.
    Submit led March 13, 1925
    Decided August 3, 1925.
    Contracts — Damages For Alleged Sale of Rights in a Party Wall in Which Defendant. Had No Title, and Also For Deceit— Defendant Alleged Nonsuit Should Have Been Granted, That Plaintiff in Using Ground Took the Property and at Least Used the Brick and Mortar — Contention Held to be Without Merit.
    On appeal from the Camden District Court.
    Before Justices Trex chard, Minturn and Lloyd.
    For the appellant, French & Richards.

    For Ihe appellees, I). Trueman. Stackhouse.

   Per Curiaai.

The plaintiffs in this case brought suit in two counts, in one to "recover the sum of $150, with interest, being for moneys paid to the defendant for one-half of a party wall purchased of him and to which the latter had no title, and in the other a like sum as dainages arising out of the same transaction in a count for deceit. On tlie trial in the Camden District Court judgment was rendered in their favor for $165.

Substantially, two grounds of appeal are filed in the case. The first is that the court should have granted a nonsuit and erroneously entered judgment for the plaintiff, and the second is to a ruling on a question asked of the plaintiff on cross-examination.

The plaintiffs proved that, they were the owners of premises 1615 Louis street, in the city of Camden; that they were desirous of building on this lot and of utilizing the party wall then existing at 1613 Louis street. The defendant by a warranty deed undertook to convey to the plaintiffs the southerly half of the party wall in question, consisting of four and one-half inches on Louis street and thirty feet in depth. The plaintiffs proceeded to build on their lot and-also on the ground thus attempted to be conveyed. After the ground has been so used the plaintiffs ascertained that the defendant, Camac, did not own the land and no right to convey.

The first question is whether, a nonsuit should have been granted. • It is claimed that the plaintiffs in utilizing the ground took the property, and, at least, obtained the use of the bricks and mortar in the party wall. We think this contention is without merit. While it is true the party wall erected by the defendant was used by the plaintiffs in the construction of their building, it is als.o true that they were trespassers on the land, and could not maintain their use of the four and one-half inches without the consent of the owner of the soil. To obtain this consent they were obliged to pay •.$150. There was some evidence of the damages sustained under the count in deceit, which count was also sustained by the facts which the -court could find established. These were that the defendant had a paper title which did not include the locus in quo,, from which it could be inferred thaj; he was familiar with his title and its limitations; that in this situation he not only asserted that he was the owner of the party wall, but that he had paid $200 more than anyone else in the row in order that he might buy it. This evidence, undenied by him, was certainty sufficient to justify an inference of deceit. Feldmesser v. Lemberger, 3 N. J. Adv. R. 513.

The alleged trial error arose in this wise: On cross-examination defendant’s counsel asked of the plaintiff the following question : “Was not the original agreement for you to pay Camac $150 for -the use of the party wall and was not the deed for the ground an after thought?” The question was excluded, and properly. Whether there was air original agreement had no possible bearing on the case being tried, which was to recover damages based upon the representation as to ownership and failure of consideration. There was no claim that such original agreement, if there was one, in anywise became a part of the transaction, which was finally consummated between the parties.

The judgment will be affirmed.


author: Pee CuEiAir.

text:
    MATHUSHEK & SON PIANO COMPANY, PLAINTIFF-APPELLANT, v. PERCY HUDSON, DEFENDANT-APPELLEE.
    Submitted March 13, 1925
    Decided August 3, 1925.
    Conditional Sales — Replevin—Contract Called For Payment in Monthly Installments With Interest — Judgment For Defendant on Ground That Principal Had Been Tendered, and as There Was No Rate of interest Mentioned None Could be Collected — This Was Error — Contract Stated Interest, and When No Rate is Mentioned Legal Rate is Implied.
    On appeal from the Ivonne District Court.
    Before Justices Teexchaed, MrNTuux and Lloyd.
    For the appellant, 21 ax L. Solinsky.

    For the appellee, Alberico O. OiccarelU.

   Pee CuEiAir.

This was an action of replevin in the Bayonne District Court to recover possession of a piano held by the defendant under a conditional sales agreement. It was heard by the judge without a jury, and resulted in a judgment for the defendant. The plaintiff appeals and claims that, under the evidence, the verdict and judgment should have been for the plaintiff.

The contract called for the payment of the purchase price of the piano in monthly installments, with interest, reserving title in the seller until all was.paid, with the right to take possession in default, and the proofs were that the principal was either paid or tendered by the defendant before suit brought, but that no interest was ever paid or tendered. At the trial there was offered in evidence' a receipt which read as follows: “May 23, 1921. Received from P. Hudson, fifteen dollars [$15]. The Mathushek & Son Piano Co., per D. Stern. Balance, $335. Price of piano, $700. Amount paid, $345.”

The court held that, because the rate of interest was not 'stated, none could be collected, and also that the .words added to the receipt constituted a waiver of interest, and on these conclusions gave judgment for the defendant.

In this we think there was error. The contract obligated the defendant to pay interest as well as principal, and, in the absence of a stated rate of interest, .the law implies the legal rate.' From such payment he could only be absolved, by some method recognized in the law. An erroneous statement of the balance due by the creditor could not effect such result. Debts are not so easily extinguished. As was said in Clifton v. Tulane, 47 N. J. Eq. 351; affirmed, 48 Id. 310, a case in which, like the present, the. effort was made to establish that interest had been forgiven or canceled, “a debt * * * cannot be extinguished by a mere statement of the creditor that he will not enforce it, or that he forgives it, or even by a receipt for the whole, when, in fact, a part only has been paid.” On the undisputed facts as they appear in the record the court should have found for the plaintiff.

The judgment will be reversed.


author: Pee Curiam.,

text:
    JOHN FULLER, BY HIS NEXT FRIEND, JEANNE FULLER, AND JEANNE FULLER, PLAINTIFFS-APPELLEES, v. STATE CAFETERIA, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted March 13, 1925
    Decided August 3, 1925.
    Assault — Customer at Restaurant Directed by Manager to Get Out, Upon Refusal He Was Ejected — Judgment for Plaintiff — Ample Evidence, if Believed, That Excess Force Was Used — While Excerpts From Charge Not All That Might be Desired, They Do Not Lead to Reversal.
    Before Justices Tren chard, Minturn and Lloyd.
    Por the appellant, Darling, Barnes & Bowden.

    For the appellees, A. Harry Moore.

   Pee Curiam.,

This was au action in the Second District Court of Jersey City to recover damages for persona] injuries sustained in. an assault at the hands of the manager of the defendant corporation. The plaintiff John Puller claims for personal injuries, and his mother, Jeanne Puller, for loss of his services. The story of John Puller is that ho entered the restaurant of the defendant about twelve-thirty A. m. on May 13th, 1924, and was getting something to eat; that he sat down to a table, and, while there, was accosted bv the manager and told to get out; that he refused, and the manager then grabbed the chair from under him and assaulted him. Two grounds of appeal are set forth: One the refusal of the court to grant defendant’s motion for a direction of a verdict for the defendant ; the other that certain portions of the charge were erroneous. The refusal to direct a verdict was clearly right. There was ample evidence both from the plaintiff’s testimony and that of the defendant that the act of the manager was in the course of his employment, and, if the proofs offered by the plaintiffs are believed, that an excess of force was used in ejecting the plaintiff. Eor this the defendant would be answerable. West Jersey and Seashore Railroad Co. v. Welsh, 62 N. J. L. 655.

The portions of the charge to which exception is taken are as follows:

1. “If, on the other hand, the defendant convinces you by the preponderance of the evidence or the greater weight of the evidence that the defendant’s version of the story is the true version of the story, then you must believe the defendant and render your verdict accordingly.
2. “I leave the story told by the witnesses for the plaintiffs and witnesses for the defendant entirely in your hands. You must consider thoroughly all the evidence that has been adduced here and convince yourself which one has told you the story you are to believe, which side has convinced you by the greater weight of the evidence that they are telling the truth. When you decide that, then you are to render your verdict accordingly.”

While these excerpts from the charge are not all that might be desired, nor, indeed, entirely happy in expression, we do not think they should lead to a reversal. The court had previously told the jury that it was the duty of the plaintiffs to establish their case by a preponderance of the evidence, by the greater weight of the evidence. This clearly stated the legal obligation resting on the plaintiff. When the court added that if the defendant convinced the jury by the same evidence that his version of the story was true, then they must believe him and render a verdict accordingly, it stated what was undoubtedly a sound legal proposition. While there was a contingency not covered by the charge, viz., that if the evidence was hiequilibrium on both sides there should be a verdict for the defendant, no exception was taken to this omission, nor any request submitted either before or after the charge to cover the omission, and when the judge told the jury the}r 'must consider which side had convinced them by the greater weight of the evidence, and render a verdiet accordingly, it must be taken in connection with what he had already said as to the burden imposed by the law on the plaintiff.

In this situation we think there was no Such manifest injury to the defendant as is contemplated by the statute, and the judgment will be affirmed.


author: Per Curtam.

text:
    WILLIAM G. LECONEY, PLAINTIFF-APPELLEE, v. CHRISTOPHER KOCH, DEFENDANT-APPELLANT.
    Submitted March 13, 1925
    Decided August 3, 1925.
    Contracts — Admission of Evidence' — Contract For Agent’s Commission on Sale of Land — Contract Proved and Sale Made— Owner Offered to Show That Agent Interfered Rather Than Helped Sale — Offer Rejected and No Exception Taken— Offer Probably Competent but Court and Opposing Party Entitled to Have Here an Exception Taken.
    On appeal from the Burlington County Circuit Court.
    Before Justices Teen chard, Minturn and Lloyd.
    Por the appellant, James Mercer Davis.

    Por the appellee, Palmer & Powell.

   Per Curtam.

This was an action in the Burlington County Circuit Court to recover commissions on a written contract between the plaintiff, Leconey, and the defendant, Koch, which entitled plaintiff to three per cent, commissions in the event of a sale of real estate by “the agent or the owner.” The plaintiff proved the contract and a sale of the property by the owner, the defendant in the case. The defendant offered to show that the plaintiff did nothing in pursuance of the agreement; that, on the other hand, he tried to discourage intending purchasers, of the property from purchasing. This offer was overruled by the court, but no exception taken by the defendant to the ruling. The offer was probably competent and the proofs should have been received, inasmuch as the first dutjr of an agent is to. exercise good faith toward his principal, and, failing this, to forfeit his right to compensation (2 C. J. 760; Rogers v. Genung, 76 N. J. Eq. 306), but it has'been repeatedly decided by the Court of Errors and Appeals that when rulings are invoked an offer or objection alone is not sufficient. It frequently happens in the trial of causes that, in the disposition of the many legal questions which arise in the reception and rejection of evidence, the action of the court is acquiesced in, and such is the presumption unless dissent therefrom is clearly manifest in the subsequent action of counsel. Benz v. Central Railroad of N. J., 82 N. J. L. 198; Kargman v. Carlo, 85 Id. 635; Baker v. Fogg & Hires Co., 95 Id. 230. As was said by Mr. Justice Trenchard, speaking for'the Court of Errors-and Appeals in the Kargman case, supra, “common sense and common fairness alike require that if counsel thinks the trial judge has fallen into legal error he should call attention to it at a time and in such a manner that the judge may know that his ruling is to be made a ground of. appeal, and thereby afford an opportunity to the judge to revise his ruling and to opposing counsel to modify his position so as to save error.” In the present ease, no exception having been taken to the refusal to admit the evidence, this action on the part of the judge cannot be here considered.

The only other ground of appeal is that the court erroneously directed a verdict for the plaintiff. There were no disputed facts in the case. The contract was admitted and the sale proven. This entitled the agent to his commission; and there was no other course open to the trial judge after the exclusion of the evidence intended to establish bad faith in the agent.

Finding no error properly raised, the judgment will be affirmed.


author: Pee Cukiam.

text:
    REBECCA ESTER WINSTON, PLAINTIFF-RESPONDENT, v. ATLANTIC CITY RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Argued March 4, 1925
    Decided July 27, 1925.
    Negligence — Railroad Setting Fire to Forest — Engines’ Equipment For Preventing Fires Not Adequate — Alleged Liability of an Engine of Another Company Using the Same Right of Way Not Sustained — Judgment of $93,000 in View of All the Facts Apparently Not Excessive.
    On defendant’s rule to show cause why plaintiff’s verdict should not he set aside.
    Before Justices Tbejstobabd and Mintubn.
    For the rule, Thompson & Hansiein.

      Conira, William O. French.

   Pee Cukiam.

This is defendant’s rule to show cause why a new trial should not he granted on the grounds that the plaintiff’s verdict of $93,000 is “against the weight of the evidence and the damages are excessive [reserving all exceptions]Counsel for the defendant state in their brief that “it is not intended to argue here any of the exceptions allowed at the trial, or the submission of the case to the jury, or any other grounds of legal error.”

The complaint charged that the defendant steam railroad company negligently operated its locomotive engine over its tracks adjoining plaintiff’s land without having the same equipped, protected and maintained against the emission of sparks of fire, as provided by law, and that, by reason of the negligent operation of the engine, sparks of fire were emitted, fell upon the land adjoining the right of way, and communicated fire to the grass, &c., upon the land, and thence to the grass, &c., of the lands of plaintiff, and burned over four thousand two hundred acres of plaintiff’s property, destroying trees and humus.

The defense was a general denial of'the allegations, and further — (1) that on' the day in question the defendant’s engine was equipped with a spark arrester in good condition, of a design in common use approved by experience; (2) that the roadway of' defendant was clear and free of any combustible matter; (3) and that the fire in question was caused without any negligence on the .part of the' .defendant, and defendant at all times was operating its trains in a- proper and efficient manner and without any negligence on its part.

The physical situation was that the defendant company owned a double track line of railroad through the Risley station section, the place in question. By a working agreement between defendant and the Pennsylvania Railroad Company the latter also operated trains over the same right of way.

The defendant company strenuously urges that the jury found against the weight of the evidence when it found that the defendant started the fire at all.

We do not take that view. We think there was not only ample evidence, but the weight of the testimony was that the fire in question was started by engine No. 304 of the defendant, and not as contended by the defendant, by an engine of the Pennsylvania Railroad Company.

It seems a reasonable, and, indeed, a necessary inference, that the fire was started either by the defendant’s engine or the Pennsylvania railroad engine, which passed the station in question shortly after the defendant’s engine had passed. Now, several witnesses who were riding upon the Pennsylvaniá railroad train, which passed without stopping, testified that, as the train went by the Rislejr station, they saw the fire already started , in the “Indian grass” near the station, and this they saw from the car window as the train was passing by. That testimony (to say nothing of other testimony to the same effect), and there seems no reason to question it, seems to demonstrate that the fire was not started by the Pennsylvania engine, but by the defendant’s engine.

This becomes the more evident when we consider the testimony of the witnesses who made prompt examination of the fire and tried unsuccessfully to put it out. Prank Smith, a witness produced by the defendant, testified, in effect, that he was nearby and among the first persons at the fire (at which time it was “about one hundred feet square”) ; that he picked up a hot (coal) cinder about an inch in diameter. Another witness, called by the plaintiff, fixed the point of starting of the fire one hundred and eightv-five feet from the rail of defendant’s railroad. He testified that he found there “one large cinder partly consumed.” Jennie Westing testified that she was in her front yard along the right of way, four thousand two hundred and seventy-five feet from the station, and saw the defendant’s train making “black smoko and sparks” and “as she gained headway and got down to my house, after she had passed across the tracks, she began throwing sparks, I should judge from a ten-cent piece to a twentv-five-cent piece in size.” "Q. And how many sparks ? A. Quite a few. They were still warm. Q. Did you pick some up? A. I did. Q. And how soon after did you see the fire? A. Well, as T started across the track again T went to run down the road and I heard someone holler ‘Fire.’ I presume it was the shoemaker’s daughter, and I got down to the shoemaker’s place and it was very — it was a high wind, and I got very tired. Q. Was it a windy day? A. Very wind}'. Q. Which way was it blowing? A. Towards the station. Q. Now, bearing in mind the direction that the wind was blowing, was the place where you saw the fire in such a position so that the sparks, if they came from the smokestack, would have started that fire? A. Undoubtedly.”

Much effort is expended by the defendant to show the improbability of the testimony of individual witnesses called by the plaintiff. It may well be that, in respect to some matters, some one or more of the numerous witnesses called by the plaintiff were mistaken, but we have not had anything brought to our attention which makes us think that this verdict upon this topic is against the weight of the evidencie considered as a whole.

But the 'defendant insists that the jury’s finding, as it must have found, that the defendant’s spark arrester was not of approved pattern in general use in good condition at the time, was against the weight of the evidence.

We cannot agree that 'this 'is so. When'■ we consider the testimony to which we have referred as to the size and shape of the cinders, which the jury' could and did find started the fire and came from defendant’s engine, it seems to us quite evident that the testimony of the defendant’s mechanics and inspectors as to the condition of the spark arrester before aind after the fire, raised no more than a fair jury question on this topic,' depending in large measure upon the question of veracity of the respective witnesses, and wé cannot say that the determination of the jury as to this phase of the case was against the weight of the evidence.

The next point is that the verdict is excessive. The verdict was for $93,000.

When we come to analyze the testimony upon the question of damages, it is difficult to perceive just how it can be said to be excessive.

The plaintiff proved by Professor Prisbie and other witnesses the extent of the fire, the number of acres burned over, and, approximately, the number of thousand feet of timber, its kind and value, destroyed; and we.do not find that the defendant company has successfully discredited this testimony. The plaintiff’s testimony, assuming its admissibility, which is not now challenged, tends to show damages aggregating more than double the verdict rendered. The testimony as to damages upon the part of the defendant, as we analyse it, would seem to justify, by way of damages, all that the jury allowed the plaintiff. We, therefore, cannot say that the verdict is excessive.

The rule to show cause will be discharged.


author: Per Curiam.

text:
    WILLIAM G. McILVAIN, PLAINTIFF-APPELLANT, v. MOUNT HOLLY NATIONAL BANK, DEFENDANT-RESPONDENT.
    Submitted March 13, 1925
    Decided August 3, 1925.
    Appeals — Alleged Error of Court in Its View of Law as Applied to the Facts as Expressed in an Opinion on Rule to Show Cause Why New Trial Should Not Be Granted — Alleged Error in Granting New Trial — Neither Subject Ground to Review— Case Relates to Salé of Automobiles.
    Oil appeal from the Burlington County Common Pleas Court. •
    Before Justices Trenohard, Minturn and Lloyd.
    For the appellant, Kelsey & Killie.

    For the respondent, George M. Hillman.

   Per Curiam.

This is an appeal by the, plaintiff below from a ruling of the Burlington County Court of Common .Pleas, and the notice of appeal contains the following:

“Please take notice, that the plaintiff appeals from part one of the decision of Hon. William A.- Slaughter, judge of said Common Pleas Court, as contained in his written opinion in said cause, bearing date December 30th, 1924, and filed in said court, as to Validity of the sale of two automobiles/ to the New Jersey Supreme Court.

"REASONS.

1. The appeal of the plaintiff is taken because the court erred in holding that the verdict of the jury should be set aside and a new trial granted for the reason that the jury disregarded that part of the charge of the court which stated : ‘Plaintiff acquired no title to any automobile by virtue of the bill of sale, since it was not in accordance with the requirements of the statute [chapter 168, Pamph. L. 1919, p. 352], and, hence, plaintiff cannot recover for the proceeds of any automobile sold by the sheriff, whether such automobile be included in the plaintiff’s bill of sale or not.’

Respectfully submitted,

. H. S. Killie, Attorney of Plaintiff.”

No other pleadings are filed in this court, and, from the notice and the further facts appearing in the state of the case, it is apparent that there is nothing before us that we can review.

The precise question the appellant seeks to raise is as to the validity of the title to two automobiles which were the subject in part of litigation in the trial before the court and a jury, but no part of the evidence, no ruling of the judge, no exception to the charge is set forth upon which to ask a reversal of the judgment. On the contrary, the appellant contends, as appears from the reasons contained in his notice of appeal and from the argument in his brief, that the court erred in its view of the law applicable to the facts as expressed in an opinion filed on a rule to show cause why a new trial should not be granted. Also, that the court erred in granting a new trial.

Neither of these grounds are the subject of review. The action of the court in granting or refusing a new. trial cannot be brought before the court on appeal. Gaffney v. Illingsworlh, 90 N. J. L. 490. Much less it would seem could the views expressed in an opinion dealing with a rule for a new trial be made the subject on appeal.

The appeal will be dismissed.


author: Buchanan, V. C.

text:
    Garrett Dreier and Harry Dreier, executors and trustees of the estate of Samuel Dreier, deceased, complainants, v. Bertha Senger, David Dreier, Yetta Yood and Isadore Newcorn, defendants.
    [ Decided July 30th, 1925.]
    Wills — Construction—Doubtful Clauses Quoted and Held that, at Examination of Period of Trust,- Both Real and Personal Estate Shall Be Divided, that the Provisions of Will Contemplate Equal Parts “as Nearly as May Be,” that if Real Estate Cannot Be Equally Divided the Personal Estate May Be Divided to Adjust Unequalities.
    On final hearing.

      Mr. William Neircorn, for the complainants.

      Mr. Martin B. Stutsman, for the, respondents.
   Buchanan, V. C.

The bill is filed by the complainants as executors and trustees under the will of Samuel Dreier, deceased, for institutions and directions

Testator died July 30tli, 1910. His will named complainants as executors; provided for payment of debts and testamentary expenses; gave one Anna Subseliinski a bedroom suit and a life estate in a certain piece of real estate, and then proceeds as follows:

“Fourth. All the rest, residue and remainder of my estate of whatsoever kind and description and wheresoever situated, 1 give, devise and bequeath to Garret Dreier, of the city of New Brunswick, and Harry Dreier, of the city of Plainfield, New Jersey, in trust, nevertheless. for my heirs until fifteen (35) years after by death, at which time said estate shall be divided into five (5) equal parts, as_ nearly as may be; one part to my son Garret Dreier; one part to my son Harry Dreier; one part to my daughter Bertha Senger, wife of Charles P. Senger; one part to my son David Dreier, and one part to my two (2) grandchildren, Xetta Newcorn and Isadore Newcorn, children of my daughter Rachel Newcorn, deceased, to them, their heirs or assigns.
“After my decease and until the time of distribution as herein mentioned, I direct my executors hereinafter named to take charge of my estate, and to lease said premises to the best advantage, and, after deducting the necessary expenses of maintaining said property, to divide the remainder of the income into five (5) equal parts and pay the same to the beneficiaries as hereinabove named, in monthly or quarterly payments, as may be most convenient, with the provision that in case either of the children of my daughter Rachel Newcorn. deceased, shall die before the time of distribution and without leaving lawful issue, then the share of such grandchild to go to the remaining grandchild, and in case both of the said grandchildren shall die before time of distribution without leaving lawful issue, then I direct the one-fifth proportion of my estate as herein bequeathed to the children of Rachel Newcorn shall be equally divided between by heirs-at-law, the children of any deceased child to inherit the parent’s share.”

Anna Subschinski is still living, as are also the five named cesluis que Irusteni. The fifteen-year period had not elapsed at the filing of the bill. Decedent died seized of some ten parcels of real estate (including one in which Anna Subschinski has a life interest) of divers characteristics and values.

Complainants ask determination by decree of this court as to whether they shall divide and distribute the real estate aforesaid amongst the cesiuis; or whether they should make sale thereof and divide the proceeds; whether they have power to sell and can give marketable title without the cestuis joining in the conveyances.

It seems to me that the will, properly interpreted, directs the trustees to divide and convey the real estate among the five cesiuis. It expressly gives the trustees the legal title to all the residuary estate, and directs that at the end of fifteen years from testator’s decease “the estate shall be divided into five equal parts as nearly as may be, one part to my son,” &c. The clear implication is that the trustees shall so divide and distribute.

It does not appear that such division and distribution is impossible. The ease was submitted by stipulation upon bill, answers and replications. The bill alleges and the answers admit that “it has been questioned * * * whether it is feasible or practicable to divide the real estate into five equal parts fairly and equitably between the devisees,” but there is no allegation that such division is in fact not practicable, nor any allegation of facts necessitating such a conclusion. If this were a partition suit, no master could determine the paucity of facts before the court whether or not the premises were actually partible. Moreover, it is to be observed that the will directs the. division, not merely of the real estate alone, but of the entire trust estate, personalty as well as realty. Presumably, if inequalities be inevitable as amongst five parts of real estate, they can be corrected in the apportionment of the personal property.

It is to be noted that the two trustees, who are also two of the cestuis que. iruslent, are parties to the suit only as trustees and not as individuals. This should be corrected before decree.


author: Cambell, J.

text:
    WILBERT S. BIRDSALL v. ANTHONY GARDELLA AND PETER BORI.
    Decided July 17, 1925.
    Arrest — Capias ad Respondendum — Bail—Judgment for Plaintiff — Capias ad Satisfaciendum Returned Non Est Inventus —Action on Bond — Defendants Allege Recognizance Was Not Filed With Clerk, that They Had in Good Faith Applied for- Bail Piece, But Because of Failure to File Recognizance They Could Not Procure It, that Debtor was in Florida, But Because of This They Cannot Compel His Return — Held, that Bail Piece Is Not Necessary to Take Defendant Into Custody, that Loss of Recognizance is Not a Bar to Action Thereon, if Proof of Its Existence is Forthcoming, As In Case of Any Lost Instrument.
    On motion to strike out answer and for order for summary judgment.
    Eor the plaintiff, Charles P. Brewer.

    For the defendants, Morris V. McDonald.

   The opinion of the court was delivered by

Cambell, J.

This matter comes on under a notice to strike out an answer and for an order for summary judgment under rule 57 of the Practice act of 1912.

On June 18th, 1924, plaintiff brought suit against one Erwin C. Fisher for the recovery of a debt alleged to have been contracted fraudulently, such action being commenced by a capias ad respondendum, and thereunder Fisher was taken into custody by the sheriff of Cumberland county. On June 21st, 1924, Fisher, with the defendants in the present action, appeared before Edwin P. Miller, Esq., a Supreme Court commissioner, and executed a recognizance of bail to the plaintiff in the sum of $2,400, and said commissioner thereupon executed and delivered to the sheriff a discharge, and, pursuant thereto, Fisher was released from custody by the sheriff.

On May 5th, 1925, judgment in said cause was entered against Fisher for $1,332.10.

Eisher did not pay the judgment, nor did he deliver himself, nor was he rendered in discharge by his bail, these defendants. A capias ad satisfaciendum was issued May 6th, 1925, delivered to the sheriff of Cumberland county May 9th, 1925, and by that officer returned non, esl inventus on May 15th, 1925. '

On May 20th, 1925, the plaintiff brought the present action against these defendants to recover the amount of said judgment upon their recognizance of bail by issuing and serving a summons and complaint.

After the execution of the recognizance and the discharge of Eisher, he remained in Cumberland county until some short period before the entry of the judgment against him on May 5th, 1925, when it is alleged he went to St. Peters-burg, Florida.

The complaint in this matter alleges as follows:

1. That on June 21st, 1924-, defendants entered into a recognizance, a true copy of which is attached and made part of the complaint.

2. That Fisher was condemned in the suit therein referred to in $1,258.80 damages and $73.30 costs.

3. That Eisher has failed to pay such damages and costs and had not rendered himself into the custody of the sheriff.

4. That a capias ad satisfaciendum, was issued to the sheriff of Cumberland county.

5. That such capias was placed in the hands of said sheriff May 9th, 1925, and by him returned non est inventus May 15th, 1925.

6. Defendants have not paid said damages and costs, nor have they rendered Eisher in discharge.

7. Plaintiff demands $1,332.10 and interest from May 6th, 1925.

To paragraphs 1, 2, 3, 4 and 5 defendants answered denying knowledge or information sufficient to form a belief as to their truth and admitting paragraph 6.

Eor a separate defense they allege that the recognizance of bail was not filed in the office of the clerk of this court as required by statute, and for that reason no action can be maintained thereon.

• For a further separate defense they allege that within the time limited by law they, in good faith, attempted to render, said Fisher in discharge, for that purpose made application to the clerk of this court for i bail piece for the purpose of causing the arrest' of Fisher, and they were unable to secure such bail piece because the recognizance is not of record in the office of said clerk, and they have therefore been hindered from delivering and rendering said Fisher and thereby prejudiced in their rights, and all rights of the plaintiff under such recognizance are null and void.

All the allegations contained in paragraphs 1, 2, 3, 4 and o of the complaint are fully and completely substantiated and made out by the affidavits presented by plaintiff. These are the affidavit of the attorney for the plaintiff and that of Edwin F. Miller, the Supreme Court commissioner before whom the recognizance of bail was taken, and who issued the order for the discharge of Fisher. In such affidavit he says that Fisher and the defendants appeared before him June 21st, 1924; that he made known to them the contents of the recognizance, and they executed and acknowledged the same before him; that to' the best of his knowledge and belief he mailed such recognizance immediately after its execution, with postage prepaid, to the clerk of this court for filing, and that he thereupon issued the certificate of discharge, a copy of which is appended to his affidavit, and likewise is so attached a copy of the recognizance, which affiant testifies is a true copy.

In answer thereto the defendant Bori by his affidavit says that the recognizance was never filed, and that plaintiff will be unable to produce'it and sustain the allegations of his complaint; that the only knowledge he has of the matter is that in the summer of 1923 a friend asked him to become bail for Fisher, who was a stranger to him, and he complied with the request; that he does not remember the date nor amount of the bond; that he is an Italian and does not read or speak the English language; that he signed a paper which he understood to be a bond, and that is his sole recollection; that no copy was given him and no bail piece was received from the clerk of this court; that he did not understand the responsibility attached to the transaction and gave the matter no further thought until served with the summons and complaint in this matter, and that he did not understand that Fisher was in his custody and never paid any attention to his doings, or the suit that was being prosecuted against him.

Further, that after being sued in the present action, he employed counsel and took steps to find Fisher; that ho found he had gone to St. Petersburg, Florida, several months before judgment was rendered against him; that he employed one Paola as his agent to go to Florida for the purpose of arresting Fisher and bringing him within the jurisdiction of this court, but found that no recognizance was filed, and it is impossible to secure a bail piece as authority for making such arrest in Florida; that he is informed that such bond, if such a bond was executed by him, has been lost; that he believes that if such bond has been filed and a bail piece issued he could have caused Fisher to be taken into custody and be rendered in discharge, but due to the failure to file such bond he was prevented from performing the obligation of said bond, and that he is advised by counsel that plaintiff cannot succeed in his action without producing the bond sued upon, and that failure to file the bond and issue the bail piece is a bar to plaintiffs action. '

To the same purport and effect is the affidavit of the other defendant Gardella.

The affidavit of Frank M. Paola is that he is associated with the attorney for the defendants; that immediately upon service of the summons and complaint in this matter he made an investigation and found that Fisher was in St. Petersburg, Florida, and being advised that defendants had twenty days to render him in discharge he endeavored, in good faith, to secure the necessary authority to apprehend Fisher : to this end a power of attorney from defendants to affiant was executed May 25th, 1925, funds were provided and deponent went personally to the clerk of this court to secure a bail piece ; that diligent search was made by such clerk and such bond could not be found, nor was there any record thereof and no authority for issuing a bail piece; that owing to such inability- to secure a bail piece or copy of the bond, it seemed entirely useless to deponent to endeavor to make the arrest in a foreign state, and such trip was abandoned and postponed ■ until such bond could be found or bail piece procured.

I am of the opinion that the answer must be stricken out, and I so find.

First. That satisfactory proof has been made before me of the allegations of paragraphs 1, 2, 3, 4 and 5 of the complaint, which the defendants by their answer sought to compel the plaintiff to make proof thereof.

Second. That the first separate defense presents no defense in law, because failure to file and record the recognizance in the office of the clerk of this court is not by the statute a ground barring recovery thereon.

Third. That the second separate defense presents no legal defense, because a bail piece is not necessary in order to permit or authorize defendants to take Fisher into custody. 6 O. J„ § 4; Id., 893, § 7; Id., 941, § 137.

It has been argued that plaintiff cannot succeed upon his present complaint, because the recognizance is not in existence, and, therefore, cannot be produced in proof., of his present complaint.

I know of no reason, however, why, upon proper proof of loss, there may not be recovery thereon as upon any other lost instrument, and at the argument it was suggested that an amendment of the complaint might be made if necessary.

In passing upon the present motion, I have considered it in the light as if the plaintiff was declaring upon the recognizance as a lost instrument, and in weighing the proofs I have found them convincing upon the question of such an instrument having been executed, lost and its contents established by parol evidence.

An order may therefore be taken striking out the answer and for summary judgment in favor of the plaintiff and against the defendants for the sum of $1,332.10 and interest thereon from May 6th, 1925, besides costs of suit to be taxed.