author: Cueaey, J.

text:
    Hudson County Circuit Court.
    WALTER C. BURGESS, ROBERT B. McCAIG AND JOSEPH KOCHANSKY, TRADING UNDER THE FIRM NAME OF THE HUDSON CONFECTION VENDING COMPANY, PLAINTIFFS, v. JOHN DREWEN, PROSECUTOR OF THE PLEAS OF HUDSON COUNTY, DEFENDANT.
    For the plaintiffs, Richard Doherty and William Gannon.

    For the defendant, John Drewen and Harlan Besson.

   Cueaey, J.

This matter comes before this court on motion to quash a writ of replevin directed against five hundred and thirty-one Mills O. K. Mint Vending slot machines now in the Goodman Warehouse in Jersey City, New Jersey, and seized as gambling devices by the prosecutor of the pleas of Hudson county.

The right to prosecute the writ is disputed for the following reasons:

1. Because the slot machines are in custodia leyis for use as evidence in a criminal proceeding pending against the plaintiffs in the replevin suit.

2. Because the slot machines are gambling devices within the meaning of section 168, Criminal Procedure act, 2 Comp. Stat., p. 1875.

Depositions were taken before Supreme Court Commissioner William C. Asper, in support of the motion to quash. The testimony of Prosecutor Drewen developed the facts that the slot machines were seized in the course of a criminal prosecution against the plaintiffs who have been indicted by the Hudson county grand jury on a charge of conspiracy to unlawfully keep and distribute slot machines which may be used for gambling purposes in various stores and public places in Hudson county, and that these machines are evidence necessary in the course of this prosecution. By the testimony of Detective Joseph Avia and Lieutenant of County Detectives. Peter Devine, it appears that the machines were slot machines which may be used for gambling purposes and that the mechanism was of such a character that they could be used not only for play for slugs but by removing a pin in the manufacture may be used for gambling with nickels. It also-appears that a number of these machines were stored at a place known as number 844 Newark avenue, Jersey City, New Jersey, in connection with the other slot machines commonly used for gambling with money. The testimony further shows-that Avia actually gambled for money in machine No. 755,. when it was located in a lunch wagon at Secaucus, New Jersey. The prosecutor claims the right to seize the machines-under section 65 A of the Crimes act (2 Gomp. Siat., p. 1766),. which provides as follows:

“Any person or corporation who shall have or keep in his- or its place of business or other premises, any slot machine- or device in the nature of a slot machine, which may be used for the purpose of playing for money or other valuable thing,, shall be guilty of a misdemeanor.”

The contention of the plaintiff is that the writ should not. be quashed because of the seizure of the machines in question was without a warrant and without any lawful justification.. He further says that such seizure was a violation of the constitutional guarantee that the people shall be secure in their persons, houses, papers, and effects, &e., and that the seizure-in this case having been made before any complaint was made- or warrant issued was therefore unlawful.

Of course, there can be no quarrel with this contention as an elementary proposition, if the facts in any given case can be brought within this classification. The difficulty with the present case is that we are dealing with articles that have been designated by the legislature as unlawful, and which the legislature has further said must not only be taken but also destroyed. The sworn testimony of the prosecutor, taken upon this rule is to the effect that the machines in question are being held by him as evidence to be used upon the trial of an indictment found by the grand jury against the owners, and are also to be held by him for the purpose of his making application to a court of competent jurisdiction for an order to destroy them, as required by the statute.

To allow this writ to stand here, would be tantamount to having this court pass upon the nature of the machines in question and thus usurp a jurisdiction which has been placed in the hands of the criminal courts.

Whether the machines in question are of such a nature as to come within the provision of the statute so as to permit their destruction is a question that properly belongs in the court having the jurisdiction over such matters. The record in this case shows that at least some of these machines had been used for gambling and that the others could be readily adjusted for like use. The contention of the prosecutor is that they were all of a like nature, and that the proper administration of the. criminal law requires that he be permitted to keep them until such time as their character has been determined. To allow their removal from his posssession at this time could easily result in an unwarranted interference with the orderly process of the criminal courts, and might easily lead to a miscarriage of justice. While this court is not called upon to pass upon the question of the character of the machines, it is bound to recognize the fact, that the prosecutor’s sworn testimony is to the effect that he has now set into operation the legal machinery which will determine that. To allow this writ to stand would be tantamount to having this court pass upon the question of their legality, and thus attempt to decide a question that is not within its j urisdiction.

The only question raised by the plaintiff is whether the owner’s constitutional rights have been invaded, by the seizure, and whether such invasion gives this court the right to take jurisdiction by the writ of replevin. Under the constitution no man’s property may be taken without due process-of the law, but when he invokes that right, he must show that he is invoking it for thé protection of something that is really property, and falls within the meaning of that term.

Until the question of the character of these machines has-been determined there can be no question of the constitutional rights of the owners having been invaded, which would justify the allowing of the processes of this court to be used to-regain the possession of them from the state.

The motion to quash the writ will be allowed.


source: Caselaw Access Project

author: Ackerson, J.

license: Public Domain

text:
    Hudson County Circuit Court.
    ESTHER SCHWARZ, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOHN SCHWARZ, DECEASED, PLAINTIFF, v. PUBLIC SERVICE TRANSPORTATION COMPANY, A CORPORATION, DEFENDANT.
    Eor the plaintiff, Platoff, Saperstein •& Platoff.

    Eor the defendant, Henry H. Pryling (James J. Higgins, of counsel).
   Ackerson, J.

This action was instituted by Esther Schwarz, as administratrix ad prosequendum of the estate of John Schwarz, deceased, on January 25th, 1928, alleging a cause of action under the “Death act.” 1 Cum. Supp. Comp. Stat., p. 928.

Application is now made for an order admitting her in the capacity of general administratrix of the estate of John Schwarz, deceased, as an additional party plaintiff in this action, and permitting the complaint to be amended by adding an additional count by such general administratrix, to recover damages alleged to have accrued to the estate o£ said deceased by reason of pain and suffering sustained and medical and hospital expenses incurred by him betwen the time of his injury and his death.

It appears from a copy of the proposed amended complaint annexed to the notice of motion, or was conceded at the argument, that on May 11th, 1927, the said John Schwarz, then four years of age, was injured in a collision with defendant’s auto-bus from which injuries he died a few hours later on the same day. Although said Esther Schwarz was appointed administrtrix ad prosequendum as aforesaid, on January 23d, 1928, she was not appointed general administratrix of said infant’s estate until October 22d, 1929, more than two years after the death of said John Schwarz.

The defendant, therefore, resists this motion upon the ground that the cause of action sought to be litigated through the medium of the proposed amendment is barred by sections 3 and 4 of the Statute of Limitations (3 Comp. Stat., p. 3164), which provide as follows:

“3. Two years limitations. Every action upon the case for words shall be commenced and sued within two years next after the words spoken and not after, and that all actions hereafter accruing for injuries to persons caused by wrongful act, neglect or default of any person or persons, firm or firms, individual or individuals, corporation or corporations within this state, shall be commenced and instituted within two years next after the cause of such action shall have accrued and not after. Rev. 1877, p. 594, as amended Pamph. L. 1896, p. 119.

4. Disabilities. That if any person or-persons who is, are, or shall be entitled to any of the actions specified in the three preceding sections of this act, is, are, or shall be, at the time of any such cause of action accruing, within the age of twenty-one years, or insane, that then such person or persons shall be at liberty to bring the said action so as he, she, or they institute or take the same within such time as is before limited after his, her, or their coming to or being of full age, or of sane memory, as by other person or persons having no such impediment might be done. Rev. 1877, p. 594.”

Assuming, but not deciding, because the point is not raised or argued by counsel, that a new party plaintiff with a different cause of action than that set forth in the original complaint, may, without consent of the defendant, be joined therein by amendment, the real question raised by this motion is whether the cause of action for the damages alleged to have been sustained by the infant, John Schwarz, between the time of his injury and his death, is barred after two years from his death or after two years from the appointment of the general administratrix for his estate.

It seems to me that the proper answer to this question depends upon whether the cause of action accrued before or after the death of said minor.

There seems to be authority in this state and elsewhere for the proposition that in all cases “where the cause of action did not exist during the life of the party, and came into existence subsequent to the party’s death, the statute does not begin to run until the appointment of a representative.” Stevenson v. Markley, 72 N. J. Eq. 686 (at p. 695); 24 C. J. 772, § 1915. The reason alleged for this rule is that no cause of action can originate in behalf of a personal representative until he comes into existence as such. But the principle of the foregoing rule, if sound, is not applicable to the case sub judice, because the injury, which is the subject of the present claim, was sustained several hours before the death of the infant, and it is definitely settled in this state that under such circumstances the cause of action accrued to the infant immediately upon the happening of the accident. Gillette v. Dela ware, Lackawanna and Western Railroad Co., 91 N. J. L. 220. In speaking of the infant’s rights in the case last cited, the court said:

“He may bring his suit at once notwithstanding his minority. It is true that the suit must bo prosecuted by guardian or next friend (Practice act of 1903, section 18), but it is not necessary that a next friend be appointed before suit begins; on the contrary, process may be sued out before the next friend is appointed. * * * Consequently, there was nothing to prevent the plaintiff’s taking out a summons the day after he was injured. His cause of action had accrued, for he was in a position to assert it in a court of law.” Grabert v. Central Railroad Co., 91 N. J. L. 604.

Since the cause of action, to cover which this amendment is sought, accrued to the infant, John Schwarz, during his lifetime, did his death, before reaching his majority, remove the disability against the operation of the statute of limitations provided for in section 4 of said statute above quoted?

In the case of an adult who dies after the accrual of a cause of action in his favor, “it is well settled that his death does not interrupt the running of the statute of limitations, because in such case there is in existence a person capable of suing” when the cause of action arose. 37 C. J. 1034, § 443; 24 Id. 772, § 1914; Dekay v. Darrah, 14 N. J. L. 288 (at p. 296). Upon an adult’s death his claim for damages, as personal property, passes to his legal representative. It is also true that upon the death of an infant, his existing claim for damages passes to his legal representative, and surely an administrator for the estate of a minor is appointed as readily as in the case of an adult. There is no reason whatever, why the next of kin of a minor should be favored over those of an adult under such circumstances. In either case they may apply for the appointment of an administrator almost immediately after the death of the principal. If an adult dies within a week of the end of the statutory period, his personal representative does not have any extension of time in which to bring suit beyond the time remaining of the statutory period, and the fact that the personal representative is ignorant of the existence of the cause of action does not affect the rule. 24 C. J. 772, § 1914, and yet even under the strict construction of sections 3 and 4 of the statute as contended for by the defendant, the personal representative of an infant would have two years from his death in which to institute suit for personal injury to such infant. Why then should such next of kin have any further time than that expressly given by the statute. They would have just as much opportunity to know or learn of a cause of action which had accrued in favor of the deceased infant in his lifetime, as would the next of kin of an adult, and probably more.

Every practical consideration which would lead to the imposition of any period of limitation, in cases such as this, would require that the period should extend for two years from the definitely ascertained time of death rather than from the uncertain time of the appointment of an administrator. No reason appears, if plaintiff’s contention is adopted, why the time might not be extended indefinitely by failure to apply for administration. The only persons who can procur'e the appointment of an administrator are ordinarily spouse, next of kin, or creditors of the decedent. Certainly the wrongdoer would have no standing to make the application. The very purpose of a period of limitation is that there may be, at some definitely ascertained period, an end to litigation. If the persons who are the beneficiaries of a right of action may choose their own time for applying for the appointment of an administrator and consequently for setting the statute running, the two-year period of limitation, so far as it applies to situations such as here presented, might as well have been omitted from the statute. The statute is one of repose. As was said in the ease of Dekay v. Darrah, supra (at p. 295):

“The object the legislature had in view, was not to give time, but to restrict and limit the period within which suits should be brought. * * * The party should not be aided at all by equitable considerations, inasmuch as the universality of mankind is more the object of the purview than individuals; that is to say, it respects the peace of all men in general more than the advantage of infants or other private persons.”

It seems to me, in view of the purpose of the statute of limitations, that a saving clause in favor of infants and insane persons, should not be extended beyond the plain requirements of their disability, so as to protect indefinitely persons who are not in need of such protection.

While there is no case in this state so nearly in point as to be controlling, nevertheless, I believe that reason and sound policy require me to hold that where a cause of action accrues to an infant, who later dies before reaching his majority, that the disability protected by section 4 of our statute of limitations is removed by the infant’s death, and that his representative must bring suit on such cause of action, within the period limited after his death. 37 C. J. 1037, § 445, and cases cited.

Before concluding I feel that I should refer to a statement appearing in Gillette v. Delaware, Lackawanna and Western Railroad Co., supra, as follows:

“.In the case of fatal injury and suit by a representative, it has been held that the cause of action did not accrue until the representative was appointed,” citing American Railroad Co. v. Coronas, 230 Fed. Rep. 545. This reference is very misleading, because it refers to a cause of action arising under the Federal Employers’ Liability act, which act fixes its own period of limitation, and more particularly because the cited case has been directly overruled by the United States Supreme Court in Reading Co. v. Koons, Adm., 271 U. S. 58, and is no longer authority for the proposition stated.

For the reasons already stated, the plaintiff’s motion to .amend her complaint will be denied without costs.


author: Wabe, J.

text:
    Salem Common Pleas Court.
    ALBERT E. HODGSON ET AL., PLAINTIFFS, v. STUART HARRIS AND HANNAH HARRIS, DEFENDANTS.
    Por the rule, Herbert C. Bartlett.

    Contra, Thomas G. Tuso.

   Wabe, J.

But a single question is involved in this controversy, and that is the liability of the defendant Hannah Harris for goods and merchandise supplied by the plaintiffs, on some occasions to the defendant Stuart Harris, and at other times to herself, the whole of which being used in and about the home of the defendant Hannah Harris, the said parties’ defendant, being husband and wife. These parties cohabited together as man and wife during the greater part of the period of time covered by the items of the account, the remaining period of the time in question as distinguishable from the rest because of the fact these parties lived separate and. apart, the husband having deserted the wife. He gave no notice to the world in general or to the plaintiffs in particular of this fact, neither did he cause notice to be given that he would not be liable for any debts not contracted by him in person. No defense being interposed by the defendant Stuart Harris judgment by default was entered for the full amount of the claim against him. In the present suit a judgment for a like amount and for the same items that formed the demand against the husband, has been entered following the verdict of the jury entered against the wife. The books of account on which the suit was predicated, have been examined by me, but throw but little light on this controversy. They are kept very poorly, but no worse than might be expected of the village merchant on the small scale, who looks not on his books as instruments of proof so much as a memoranda of an account on the basis of which his trade will on pay day make settlement. Measured by the rule laid down in the famous case of Coggs v. Bernard, reported by Lord Baymond, hardly any of the books of the village storekeeper, strictly speaking, have a place in the body of the evidence, but as human documents which the discretion of the court has allowed to go in evidence. These books are no exception. They are kept mostly in lead pencil writing, there is evidence of mistakes and erasures, and the persons charged thereby, “Mr. and Mrs. Harris” or “Stuart Harris and Wife,” as evidence, is of doubtful value. It does not require a very vivid imagination in looking at these books, to believe that the names of the persons to be charged, were inserted or changed as an afterthought, possibly when the worldly possession of these parties had been changed around. In this regard the chirography and general appearance of the entries are of interest. There are several items for money loaned, the very last item of the account being a charge of nine dollars for money supplied to the defendant, Hannah Harris, with which to procure automobile tags. Items of this nature cannot be a part or form any basis of a book of accounts. In the absence of a statute expressly provided otherwise, the rule is very generally laid down that a party cannot prove by his own books of account, by an entry therein, the fact that he has paid out money, made in the regular course of business, of a loan to a party, or paid out money for his benefit. Inslee v. Prall, 23 N. J. L. 457; Oberg v. Breen, 50 Id. 145; Hauser v. Leviness, 62 Id. 518. Books of account had their origin at a very early period in the necessity of things; but they are in derogation of one of the leading principals, to wit, that a party shall not be permitted to make evidence for himself. If they were proved to be books of original entry used by the party in the regular course of business, in which he made his daily entries of charge against all his customers, if they appeared to be fair on the face, and not open to suspicion for correctness, they were allowed to go to the jury as prima facie evidence of the truth of the charges they contain. But books of account cannot be received in evidence in New Jersey to prove the payment of money. Nor are they evidence of money lent. The necessity of admitting them as evidence of goods sold, services rendered, and other matters in the usual course of business, for which the common rule has been relaxed, does not exist in case of payments or advance of money. Inslee v. Prall, supra, and therefore such items as money lent or paid on account to someone “is not legally evidential in the plaintiff’s behalf.” Hauser v. Leviness, supra.

That it is the duty of the husband as an incident of the marriage state, to support and maintain his wife and family, and in connection therewith to furnish the necessaries of life for the home, cannot be denied. And by reason thereof, and as an incident of that relation, the right of the wife to pledge the husband’s credit for the same when unsupplied by him, is generally deemed to be founded upon the doctrine of implied agency. The agency of the wife is sometimes designated as the agency of necessity. Accurately speaking, however, the authority of the wife to purchase necessaries on her husband’s credit, as well as the liability of the husband therefor, need not be based on any theory or agency, express or implied. It results from the duty to furnish necessaries imposed upon the husband by law, as an incident of the marriage state or relation, and his failure or refusal to perform the duty. 30 Cyc. 591; Allen v. Reider, 41 Pa. Super. 534; Benjamin v. Dockman, 134 Mass. 418; Cunningham v. Reardon, 98 Id. 538; Anthony v. Phillips, 17 R. I. 188; 20 Atl. Rep. 933.

There are charges in these books of account which read as if they were items of indebtedness created jointly by both defendants and therefore entered as a joint charge. If these defendants were not parties in any of 'the domestic relations recognized by law, such items of indebtedness against both defendants might be correct, but when it is borne in mind that they were husband and wife, and the items of indebtedness were purchased for the home established by the husband, it becomes impossible of realization as a legal proposition that husband and wife can become jointly liable for the same necessaries of life supplied to the home, as each might individually be. I cannot conceive of an original undertaking in the purchase of necessaries for the home where both the husband and wife become joint debtors at the inception of the contract. Where, however, the husband is not living with his wife, it is possible that the wife may become the debtor as an original undertaking by entering into an express contract with the creditor at the time credit is extended independent of her deserting husband, but such fact must derive its force and existence from evidence outside of such books of account as are produced. In matters of this kind the books are of no value except as a memoranda of items furnished by plaintiff. It is contended, however, that the wife is liable for a certain class of items by binding herself to pay the same at a time subsequent to the time the same was contracted by the husband. In this connection it is argued that the act of April 9th, 1929 (Pamph. L. 1929, p. 110), removing the disabilities of married women, inasmuch as it removes the former inhibition in the then law to the effect that she shall not “be liable on any promise to pay the debt or answer for the default of any other person” has created a debt against this defendant on her promise to pay for what had been contracted by the husband with the plaintiffs. I do not think so. The statute of 1929 cannot lean back and include matters happening before its enactment as statutes can affect only acts and matters in future. Moreover, a reasonable construction of the 1929 statute must presuppose that it can have application only where the promise or undertaking is in writing. Otherwise to give it the construction argued by plaintiff would be to view it as impliedly repealing that portion of section 5 of the statute of frauds and perjuries expressly providing that to charge a defendant upon any special promise to answer for the debt, default or miscarriage of another person, the defendant’s liability must be based upon some agreement, note or memorandum, in writing, and signed by him, i. the party sought to be charged. This is a very ancient statute. It is in fact the inclusion in our statute law of a similar statute first passed by parliament in the age of the Second Charles, and despite the many innovations and progress of this age, it is likely to remain as part of our statute law.

As the result of the verdict of the jury, the present situation is strange indeed. There is now two judgments of record against different individuals but based on the same cause of action, and one can only conjecture the result in some future day should there be assignments of these judgments to third persons. Such a situation if left unchanged at its inception might necessitate the intervention of an equity court to prevent the collection of the same account twice. But obviously the jury in passing upon this matter failed to consider these matters and merely viewed the matter from the standpoint of the creditor who had been unpaid for the goods furnished by him. It is clear that the result attained was not brought about by a fair preponderance of the evidence, and should not stand. Looking at the books of account as well as the testimony taken, it is impossible for the court to separate what may as a determined question of fact, be legally claimed to be owing by the wife to the plaintiffs, separate and apart from such items of indebtedness that were contracted by the husband or furnished for his home during his physical presence there, whereby the judicial question of the acceptance by the plaintiffs of a lesser amount of damages than the assessment by the jury, might be tendered as the condition precedent for the entry of judgment final as the alternative of the grant of a new trial. This being impossible, the court has no other option than to award a new trial.

The rule to show cause is made absolute.


author: Peb Cubiam.

text:
    ROCKAWAY ROLLING MILL, PLAINTIFF, v. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY ET AL., DEFENDANTS.
    Decided March 7, 1930.
    Before G-ummeee, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Frederic B. Scott.

    Contra, Edward P. Stout.

   Peb Cubiam.

The plaintiff corporation is the owner of two tracts of land in the county of Morris which are separated from one another by the right of way of the defendant railroad company. Originally the two parcels and the right of way of the railroad company constituted a single tract of land; and from the time when the defendant constructed its railroad up to the time of the institution of the present suit the tracts now owned by the plaintiff were connected by a suitable wagonway or crossing. The question involved in the present litigation is whether that crossing is a permissive one which the railroad company can close at its option or whether it is an easement of way the title to which is in the plaintiff and of which it cannot be deprived by any action of the railroad company. The trial of this issue resulted in a verdict in favor of the plaintiff.

The first contention made before us by counsel of the defendant is that the verdict of the jury is contrary to the weight of the evidence. Our examination of the testimony sent up with the rule satisfies us that this contention is without substance. In other words, the evidence in the case fully justified the jury in its finding.

The only other ground upon which we are asked to set aside the verdict is based on the assertion that the trial court erred in permitting the president of the plaintiff company to testify that if this crossing or way over the defendant’s tracks was closed, it would cut off access of the plaintiff from its mill, which is located on one of the parcels owned by them, to the public highway. It is said that this testimony was incompetent because of the fact that counsel had previously agreed in the presence of the court that if the proofs showed the plaintiff’s claim to be legal, the damages to be awarded should be nominal; that is, six cents. The argument is that this question and the answer thereto would naturally prejudice the defendants before the jury with respect to the issue which was being tried. We are not able to see the logic of this contention. Assuming that in view of the stipulation the fact suggested by the question was immaterial, it seems to us that its admission was not harmful to the defendant corporation.

These are the only two reasons urged for ordering a new trial, and as we consider each of them to be without merit, the rule to show cause will be discharged.


author: Pee Cukiam.

text:
    EDWARD JOSLIN, BY NEXT FRIEND, PLAINTIFF, v. HUDSON CASUALTY INSURANCE COMPANY, DEFENDANT. ROBERT CLAYTON, BY NEXT FRIEND, ET AL., PLAINTIFFS, v. HUDSON CASUALTY INSURANCE COMPANY, DEFENDANT.
    Argued January 22, 1930
    Decided March 7, 1930.
    Before Justices Pakkeb, Black and Bodine.
    Eor the plaintiff, Burton A. Gaslcill.

    For the defendant, Walter Hanstein.

   Pee Cukiam.

The suits are based on the so-called “omnibus clause” of defendant’s accident liability policy in favor of one Antonio Pítale as owner of an automobile 'described in the policy. The evidence indicates, apparently without dispute, that while the automobile was being operated by Charles Pítale, son of the named assured, with the permission of the latter, there was an accident in which the several plaintiffs were injured; that they brought suits and recovered judgments against Charles Pítale, and failing to collect by execution against him, sued the present defendant in reliance on the omnibus coverage clause just mentioned, and had verdicts which are now before us on these rules to show cause. The claims seemed regular enough on the face of things with one or two exceptions to be considered in a moment; but the main ground of defense goes below the surface and in particular attacks the insurance policy as fraudulent as against the company, in that the real owner of the car was not Anthony but Charles; and also that Anthony in taking out the policy had warranted falsely that no policy issued to him on an automobile had been refused or canceled for three years next preceding.

Three reasons are assigned—that the verdicts were against the weight of evidence, and this involves the matters of fraud and misrepresentation; that the court excluded testimony of the witness Ranere, and that the court received certain testimony of the witness Lola Burdick. This last will be considered in connection with weight of evidence, but the point relating to the Ranere testimony may well be disposed of at this time. It was sought to show that after the accident Charles had bought a new car and placed it in the name of his sister Annie. The court excluded this testimony, and properly so. The theory of the offer was that it would corroborate the claim that Charles was the real owner of the car that was in the accident; but on well settled principles this testimony would have been incompetent for any such purpose. No authority for admitting it is cited, and we find noire.

The argument on weight of evidence rests on two averments in the answer, that Antonio had falsely warranted that he was unconditional and sole owner, and that he had similarly warranted no refusal or cancellation of a policy within three years. Both questions were fully and fairly treated in a charge to which no exception is now urged. The burden was on the defendant to sustain one or both defenses by weight of evidence. On the issue of ownership Antonio swore that he was the owner, and Charles also swore that Antonio was the real as well as ostensible owner. The cross-examination developed certain inconsistencies but evidently not to such an extent as to satisfy the jury that Antonio was not owner. Much stress is laid on a statement by Charles to defendant’s claim agent after the accident, which Charles explained by saying that he was then induced to claim ownership through representations by the claim agent that Antonio would be ruined by judgments in excess of the amount of the policy. As to all this it should be observed that Charles’ statement is in no way evidential against Antonio and so valueless in any other aspect than as an impeachment of Charles’ own testimony. Its force as such, and the plausibility and credibility of his explanation were for the j ury; we are not disposed to disturb their finding in that regard.

So also as to the alleged cancellation. As the court pointed out, the burden was on the defendant of proving both that a policy had been issued to him, and that it had been canceled. There ivas evidence that such a policy had been written, but none that it had been actually delivered or even mailed. Receipt of the cancellation notice was denied; and as that former policy was not put in evidence or its provisions otherwise proven, we are in the dark as to what the terms of cancellation were. Hence, in view of the strict reasoning of Fritz v. Pennsylvania Fire Insurance Co., 85 N. J. L. 171, wre cannot say that the jury erred in finding this defense not proven.

Einally, error is alleged in permitting testimony that when Antonio applied for the policy underlying these suits, he was not asked anything about unconditional or sole ownership, or cancellation of any prior policy. While this may have been immaterial on the matter of warranty, it was plainly material and relevant on the claim of fraud which was distinctly raised in the case.

The rules will be discharged.


author: Pee Ctjeiam.

text:
    STATE OF NEW JERSEY, RESPONDENT, v. CHARLES P. ACTON, PROSECUTOR.
    Argued January 22, 1930
    Decided March 10, 1930.
    Before Justices Teenchabd, Lloyd and Case.
    Eor the prosecutor,- F. Newlin Acton.

    Eor the respondent, William A. W. Grier.

   Pee Ctjeiam.

We think the indictment is defective in that it fails to state that the United States Eidelity and Guaranty Company, is within any of the classifications as specified by section 167 of the Crimes act, under which the indictment is framed, the language of which section is as follows:

“Any person who, holding an office of trust and profit under the authority of this state, or under any public or private corporation existing under the laws thereof, who shall embezzle any of the money, property or securities committed to his keeping, with intent to defraud the state or any county thereof, or any city, borough, township, body corporate or person, or shall fraudulently dispose of the same, shall be guilty of a high misdemeanor.”

The indictment in the present case states that the moneys were due to and the property of the United States Eidelity and Guaranty Company; that they were feloniously embezzled and converted by the defendant to his own use with intent to defraud the United States Fidelity and Guaranty Company, but there is nothing to indicate whether this company is a corporation, a social organization or other entity. This being true we think the indictment fatally defective. State v. Lyon, 45 N. J. L. 272; State v. Cohen, 7 N. J. Adv. R. 1199.

The case, but recently brought before us, is speedily disposed of to the end that a new indictment may be found before the statute of limitations shall intervene to protect the defendant from prosecution.

The motion to quash will be granted.


author: Pee Cttbiam.

text:
    SAMUEL HEINE, PLAINTIFF-APPELLANT, v. MARY GOUGER, DEFENDANT-RESPONDENT.
    Submitted January term, 1930
    Decided March 10, 1930.
    Before Justices Pabkeb, Black and Bodine.
    Por the plaintiff-appellant, Aaron Heine.

    Por the defendant-respondent, Sidney Kaplan.

   Pee Cttbiam.

This suit was brought in the Camden City District Court to recover a book account amounting to $244.80. The case was tried by the court without a jury resulting in a judgment for the defendant. There is nothing in the paper book sent up with the appeal, presenting a question of law, upon which the judgment of the District Court can properly be reviewed by -the Supreme Court. No specification of errors has been filed. Pratt v. Union National Bank, 81 N. J. L. 588. The judgment of the Camden City District Court is therefore affirmed, with costs.


author: Per Curiam.

text:
    IDA WECKSTEIN, PLAINTIFF-RESPONDENT, v. THE DELAWARE, ETC., RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted January term, 1930
    Decided March 10, 1930.
    Before Justices Parker, Black and Bodine.
    For the plaintiff-respondent, Frank G. Masini.

    For the defendant-appellant, Frederic B. Scott.

   Per Curiam.

The trial of this case resulted in a judgment for the plaintiff for $210. The case was tried by the court without a jury. The suit was brought to recover damages for personal injuries caused to the plaintiff by tripping over a sidewalk raised six inches on Eoseville avenue in the city of Newark. The judgment of the District Court is based upon the following facts set out in the agreed state of facts sent up in the paper book: Prior to November 8th, 1928, in the elimination of grade crossings of the defendant company, to and through the city of Newark, the defendant company entered into a contract with the city of Newark, wherein the highway of Roseville avenue was agreed to be carried over the railroad tracks and right of way of the defendant company. By the contract the true pavement level of the sidewalk of Rose-ville avenue was fixed, set and determined by the contract. The city of Newark directed the defendant to repair its sidewalk on Roseville avenue. The defendant completed the laying of the sidewalk and putting it in alignment with the true pavement level, as provided for in the contract, and then opened it up for public travel thereon. The pavement as laid was approximately six inches higher than the sidewalk of the adjacent property owned by a Mr. Cooney. The city of Newark, by its agent, instructed the defendant company, when the work was completed, not to put any ashes or anything else on the Cooney sidewalk, to cause the drop from the defendant’s recently completed sidewalk, to be less than six inches hereinbefore referred to. On November 8th, 1928, at about five-thirty p. m., after dark, the plaintiff, while walking over the Cooney sidewalk, toward the completed sidewalk of the defendant, and being unaware of the drop of six inches, tripped over the rise in the sidewalk of the defendant company and received the injuries sued for in the suit.

In the case of Wood Co. v. Balsam,, 100 N. J. L. 277, this court said, those using the highway were obliged to take cognizance of a lawful construction, and to govern themselves accordingly in its use. The application of the principle of law there decided applied to the facts of this case set out in the agreed state of facts leads to a reversal of the judgment. Other cases in which the same principle is illustrated and applied by our courts are Denzer v. Delaware, &c., Railroad Co., 103 Id. 95; Lorentz v. Public Service Railway Co., 103 Id. 104.

The judgment of the Second Judicial District Court of Hudson county is therefore reversed.


text:
    THOMPSON-REILLY COMPANY, PLAINTIFF-APPELLANT, v. JOHN EGGERTS, DEFENDANT-RESPONDENT.
    Submitted January term, 1930
    Decided March 10, 1930.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff-appellant, Patterson, Bhome & Morgan.

    Eor the defendant-respondent, Durand, Ivins & Carton.

   Per Curiam.

This suit was brought in the First Judicial District Court of Monmouth county. The suit was to recover the balance due under a conditional sales contract the sum of $388.07 upon a Kellogg washer. The trial with a jury resulted in a verdict and judgment of “no cause of action.” The plaintiff appeals and files as a specification of the determination of the District Court, with which it is dissatisfied in point of law, that it was error for the court to deny the plaintiff’s motion for a direction of a verdict in its favor. Our reading of the state of the case and testimony as summarized by the parties, sent up with the appeal, leads us to the conclusion that it was not error for the court to submit the controverted questions of fact to the jury for determination. It may not be amiss, however, to add that the testimony adduced at the trial is not brought up with the record. There is no copy of the state of demand and no copy of any specification of defenses, if there were any filed.

The judgment of the District Court of Monmouth county is therefore affirmed, with costs.


text:
    EVA L. BACON, BY JOHN L. BACON, HER NEXT FRIEND, AND JOHN L. BACON, INDIVIDUALLY, PLAINTIFFS, v. STANDARD OIL COMPANY, INCORPORATED, AND EDWARD A. JOHNS, DEFENDANTS.
    Decided March 10, 1930.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Lum, Tamblyn & Colyer (Ralph E. Lum, of counsel).

      Contra, Hanley & Wynne (Norman R. Wynne, of counsel).
   Peb Cubiam.

This case was tried in the Bergen Circuit and resulted in a verdict for the defendants.

On behalf of the plaintiffs a rule to show cause why the verdict should not be set aside was applied for and allowed, which rule is now before us for consideration.

Three reasons are presented and relied on by counsel of plaintiffs for setting aside the verdict:

(1) Because the verdict is contrary to and against the weight of the evidence. (2) Because the court erred in striking out the answer to the following question propounded to Dr. McCormack, the witness for the plaintiff, by the plaintiffs’ counsel: “Assuming, doctor, that that injury or the crushing of that bone of Eva’s, had been occasioned by a solid, hard rubber tire, what in your opinion would be the width of the tire that occasioned that injury?” (3) Because the court erred in striking out the answer to the following questions propounded to Dr. McCormack, witness for the plaintiffs, by plaintiffs’ counsel: "Assuming, doctor, that the front tire of the automobile truck which ran over Eva, both the front and rear tires being solid rubber tires; assuming that the front tire was from four to five inches wide and the rear tire from nine to eleven inches wide, in your opinion, which tire on that truck occasioned the injury to Eva’s leg?”

As to the first reason that the verdict is contrary to and against the weight of the evidence, a short resume of the facts is all that will be necessary to point out that the verdict is not so clearly against the weight of the evidence as would warrant us to interfere with it.

The minor plaintiff, aged three years, accompanied her mother to a store on Palisade avenue, in Englewood. The trip was made by the mother and child in the family automobile, which on arriving at its destination was parked in .front of the store where the purchases were to be made. The store was located in the second building west of the intersection of Dean street. There was another car parked between the intersection of Dean street, and the car of the minor’s mother. The mother having completed her purchases, was carrying her bundles in her arm and leading her child by the other hand, and when she reached her automobile she released the child’s hand in order to open the door of the automobile, when the child, thus freed from restraint, walked or ran between the parked cars into the roadway and was struck and run over by a passing auto truck of the defendant company, and as a consequence she was seriously injured and mangled.

Eor the minor plaintiff, it is contended that she was run over by the front wheel of the truck, but the preponderating weight of credible testimony clearly establishes that the minor plaintiff ran into the truck near the rear wheel and was run over by it, and that at the time the vehicle was being operated at a speed of about six miles an hour.

We are unable to comprehend on what theory, under the testimony in the cause, the jury could have arrived at any other verdict than one for the defendants.

We find no merit in reasons two and three, which relate to the rejection of testimony, offered by defendant, by the trial court. We think the testimony was inadmissible. The questions were purely speculative, and even if not, there was no proper foundation laid for their being put to the witness.

Moreover, the questions asked the witness were of a character not subject to opinion evidence, but were to be solved in the ordinary way by a jury, upon facts elicited by the testimony.

The rule in this regard is well stated in Kuttner v. Central Railroad Co., 80 N. J. L. 11 (at p. 14), where, after reciting the questions which had been asked the witness, this court, speaking through the Chief Justice, said: “Each of these questions called for the opinion of the respective witnesses to whom they were addressed upon matters outside the line of their special knowledge; upon matters of mechanics rather than of medical science. The answers to them, if given, would have been without probative force. The opinions of experts, except as to those matters which they have knowledge not acquired by ordinary persons, have no place in judicial procedure. The questions were properly excluded.” -

The plaintiffs’ rule is discharged, with costs.


author: Pee Cubiam.

text:
    CHARLES W. LORGAN AND ORA LORGAN, HIS WIFE, PLAINTIFFS-RESPONDENTS, v. JESSE W. PALMER, DEFENDANT-APPELLANT.
    Submitted October 11, 1929
    Decided March 13, 1930.

      Before Justices Teenohakd, Lloyd and Case.
    Por the appellant, Morris & Downing (Levi II. Morris, of counsel).
    For the respondents, Dolan & Dolan.

   Pee Cubiam.

This is an appeal from a judgment of the Sussex County Circuit Court, entered upon the verdict of a jury in favor of the plaintiffs. The defendant appeals.

The action was in ejectment to recover possession of a portion of premises alleged to be owned by the plaintiffs from which defendant Palmer had ousted the plaintiffs.

The first two grounds of appeal are that the verdict was contrary to the evidence, and that the verdict was against the weight of the evidence. These cannot be considered on appeal.

The third ground of appeal was because the court refused defendant’s motion for the direction of a verdict. We think that was properly refused because there was a disputed question of fact to be considered by the jury.

The fourth ground is that the court erroneously refused to allow the jury to view the premises. We think there was no error here. That was a matter resting within the sound discretion of the trial court, and in the absence of clear proof that such discretion was abused (of which there was none) the ruling will not be disturbed. Braelow v. Klein, 100 N. J. L. 156.

The next three points relate to alleged erroneous rulings on evidence. Wé have examined the rulings arid think they are corrct.

The judgment will be affirmed, with costs.


author: Pek Cubiam.

text:
    MARTIN MacNICHOLS, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, A CORPORATION, DEFENDANT.
    Submitted October 11, 1929
    Decided March 13, 1930.
    Before Justices Tbenchard, Lloyd and Case.
    Por the rule, Henry H. Fryling.

    Contra, Edwards & Smith (Edwin F. Smithy of counsel).
   Pek Cubiam.

This is defendant’s rule to show cause why plaintiff’s verdict for $25,000 should not be set aside. The only reason assigned by the defendant for setting aside the verdict is that same is excessive. We cannot say that it is.

Plaintiff was a passenger in a street car of the defendant. The car got beyond the control of the motorman and ran down hill into another car so that both cars were practically telescoped. The plaintiff was thrown about the trolley car, and was taken from the scene of the accident to the Jersey City Hospital unconscious, and remained unconscious until the next day. He remained in the hospital for twenty-one days and was then taken to his home. He received an injury to his head, an injury to his side, and an injury to his back. The most serious injury, according to the testimony, was to his brain.

At the time of the trial (two years after the accident) he had riot been able to work. At the time of the accident he was employed as a laborer by a plumber in Jersey Oity and earned $6 a day. He was twenty-nine years of age, in vigorous health. The testimony justifies the conclusion that his brain was seriously and permanently injured, and that his condition will not improve, but will probably grow worse, because of a degeneration of the cells of the brain, the result of such injury.

In the light of all the evidence bearing upon the question of damages, it is impossible for us to say that the verdict is excessive.

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


text:
    HARRY DENNY AND EDNA DENNY, PLAINTIFFS, v. HILL THEATRE, INCORPORATED, A CORPORATION, THERON KRUM AND BENJAMIN HARRIS, DEFENDANTS.
    Submitted October 11, 1929
    Decided March 13, 1930.
    Before Justices Tkencilabd, Lloyd and Case.
    Eor the rule, William Harris.

      Gonira, John W. McGeehan, Jr.

   Per Curiam.

This is a rule to show cause obtained by the defendants upon the verdicts entered in favor of the plaintiffs Harry Denny (who was an infant when the suit was instituted but became of age before the trial) and Edna Denny, his mother, against the Hill Theatre, Incorporated, a corporation; Theron Krum and Benjamin Harris, as hereinafter more particularly set forth.

The action arose out of a violent assault alleged to have been committed upon Harry Denny while he was a member of the audience in the theatre of the Hill Theatre, Incorporated, by Theron Krum, a special officer employed by the theatre, and Benjamin Harris, an officer of the company. According to the testimony of Denny and an eye-witness, Bert Hyler, who accompanied him to the theatre, Harris stopped Denny and Hyler as they were going down the stairs, intending to leave the theatre after seeing a performance, and ordered them to go back the other way. A verbal discussion followed and then-the defendant Harris called some woman and told her to get an officer, and the special officer arrived after Denny and Hyler had returned to their box on the order of Harris; that thereupon, when the officer arrived, Harris walked over and said, “here is the two wise guys now,” and told them to get out of the theatre, and when he said that he grabbed Denny by the coat and when Denny started to get up, he grabbed Denny’s hands behind his back and Denny tried to get away, and while Harris held Denny’s hands behind him, thus preventing his running away or defending himself, the special officer hit Denny upon the head with a billy, Denny’s hands still being held behind him by Harris while the blow was struck by Krum.

According to the defendants’ testimony the blow was struck by the officer in an effort to defend himself, after he had been assaulted by Denny, and Harris was not present at all.

At the trial, the chief questions in dispute were: (1) Whether the plaintiff was assaulted as he alleged, there being contradictory evidence in this respect, and (2) whether or not his admittedly serious and permanent present condition was a result of the blow upon the head received at the hands of the defendants. Upon this latter proposition, in addition to the evidence of the history of the progress of his head condition following the blow, plaintiffs produced medical experts, who testified in effect that Denny sustained a compound fracture of the skull and hemorrhages of the brain as the result of the blow, and that the injury to the brain producing the hemorrhages in question was the direct cause of his present condition, which is a traumatic encephalitis, or a partial destruction of various of the nerve centers of the brain, in other words, a deterioration of certain areas of the brain. As against this testimony, the defendants produced experts, who while in effect admitting that such condition could result from such a blow, testified that in their opinion in the present case it was not the result of the blow, but of an infection. The defendants, as we have stated, also sought to disprove the plaintiffs’ evidence as to the manner of sustaining the blow in question, although admitting that he was struck upon the head with the billy in question, and upon the questions of fact thus presented, the jury found in favor of the plaintiffs.

Because of the nature of the case, involving as it did an obviously unusually severe resultant injury, and because of the involvement of punitive damages because of the nature of the alleged assault, the trial court exercised its right under rule 70 of the Practice act of 1912 (amended March, 1919), Supreme Court rule number 110, to request the jury to return answers to written questions embracing the disputed facts in issue and the amount of damages, and the questions and answers were duly returned and entered upon the minutes, and the court entered a general verdict based theron -in favor of the plaintiff Harry Denny, and against the defendants, Theron Krum, Benjamin Harris and Hill Theatre, Incorporated, for the sum of fifty thousand ($50,000) dollars, being the amount of compensatory damages found by the jury in his favor, and the further sum of eight thousand five hundred ($8,500) dollars in favor of the plaintiff Harry Denny, and against the defendants Theron Krum and Benjamin Harris, being the amount of exemplary damages found by the jury. There was also entered a general verdict in favor of Edna Denny against the three defendants in the sum of two thousand five hundred ($2,500) dollars.

The brief of the defendants is confined to three general grounds:

First, that the verdicts are contrary to the weight of the evidence, with respect to liability. Secondly, that it is particularly contrary to the weight of the evidence as to the defendant Harris, with respect to liability.

With respect to these two grounds it is sufficient to say that the verdicts rest upon matters of evidence that present plain questions of fact for the jury, and that the evidence upon which such verdicts rest amply supports them from the viewpoint of liability.

We find no contention that the verdict in favor of Edna Denny (the mother), against the three defendants is excessive, and certainly we cannot say that it is, and consequently that verdict may stand.

We find no serious contention, if any, that the verdict for •the sum of $8,500 for exemplary damages in favor of the plaintiff Harry Denny and against the defendants Theron Krum and Benjamin Harris is excessive, and certainly we cannot say that it is, and consequently, that verdict may stand.

But with respect to the verdict of $50,000 in favor of the plaintiff Harry Denny and against the defendants Theron Krum, Benjamin Harris and Hill Theatre, Incorporated, for compensatory damages, it is argued that it is excessive, and we think that it is.

It will serve no useful purpose to review the evidence in detail. It is sufficient to say that our examination of it results in the conclusion that the limit of compensatory damages justified by the evidence in the case is the sum of thirty thousand ($30,000) dollars.

If the plaintiff will remit the excess of compensatory damages over that amount the rule will be discharged; if not, the verdict as to compensatory damages of Harry Denny will be set aside and a new trial awarded as to such compensatory damages only, the verdicts standing good in all other respects.


author: Pek Cukiam.

text:
    WEST JERSEY AND SEASHORE RAILROAD COMPANY ET AL., PROSECUTORS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL., DEFENDANTS. ATLANTIC CITY RAILROAD COMPANY ET AL., PROSECUTORS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL., DEFENDANTS.
    Argued January 22 and 23, 1930
    Decided March 7, 1930.
    Before Justices Pakkek, Black and Bodine.
    Por the prosecutors, Harry V. Osborne and Floyd H. Bradley (Clifford A. Baldtvin, on the brief).
    Por the board of public utility commissioners, John 0. Bigelow.

    Por the Public Service Co-ordinated Transport, William-H. 8peer.

    Por Union Bus Company et al., Emerson L. Richards.

   Pek Cukiam.

These cases were ably argued and fully briefed. They have also received the consideration that is their due.

The attack is on an order made by the board of public utility commissioners on June 27th, 1929, relating to the operation of public buses on the White Horse Pike running from Camden to Atlantic City. The effect of the order is to permit the operation of five local buses by Public Service Co-ordinated Transport between Egg Harbor City and Berlin, in addition to its pre-existing service between Camden and Berlin and Hammonton, and Atlantic City and Egg Harbor; such buses to be restricted to local business; of ten through buses by the Pennsylvania General Transit Company, affiliated with the West Jersey and Seashore Eailroad Company, between Camden and Atlantic City; of ten through buses by the Eeading Transportation Company, affiliated with the Atlantic City Eailroad Company, between the same points; and of three through buses by the White Way Tours, three by the Parlor DeLuxe Coach Company, and four by the Union Bus Company between the same points. The last three concerns operate under one management, called the O. G. Schultz management, and the Union company buses are routed by way of Pleasantville, a slight detour to the south. The total number applied for was one hundred and thirty-five, which the board reduced to thirty-five, deeming that number adequate.

The principal part of the attack is by the two railroad companies and their affiliated bus lines, on the exclusive privileges for local traffic thus granted to the public service buses. Prior to this decision by the board, which was made after public hearings lasting over some three months, in which all parties concerned were fully heard, there had been no local bus service at all between Egg Harbor and Hammonton, a distance of eleven miles. The public service had operated between Camden and Berlin with one bus going as far as Hammonton. In 1928 the Public Service Co-ordinated Transport applied for leave to extend its service to Atlantic City, and the board refused a permit. Then it acquired the franchise of a local line operating between Atlantic City and Egg Harbor, which still left the gap of eleven miles between Egg Harbor and Hammonton, and on January 20th, 1929, applied for leave to close that gap and increase the Hammonton-Berlin service. The present prosecutors resisted this, and in March and April countered with applications to supplement the existing railroad service with twenty-five buses each. The three other-companies, viz., the O. 0. Schultz management, at the same-time asked for twenty or more buses each. The board heard all the applications together and decided on a total of thirty-five buses, distributed as above stated.

Reams of paper have been filled with the testimony and' exhibits submitted to the board and briefs of counsel, but the ultimate points for decision are as usual quite simple.. Did the board have jurisdiction? Undeniably it did. Was there evidence to support its determination ? Unquestionably there was. Was that determination unreasonable, and particularly, were property rights infringed thereby ? This seems to be the crux of the dispute. Unless the prosecutors have-shown that this question should be answered in the affirmative, their attack fails.

Taking up the exclusive local service: As a result of the-order, the public service may operate buses to Berlin from the Camden end, and operate other buses from Atlantic City to-Berlin; so that anyone who cares to ride between Camden and Atlantic City on a local bus making an indefinite number of stops, with a change to another similar bus at Berlin, will have the privilege of so doing. It may fairly be surmised that the resulting encroachment on the through business of the railroads and the business of through bus lines is negligible. But the railroads claim that the local bus trade will cut into the local business by railroad; to which the reply is made, and satisfactorily to us, that as the railroads relied for almost all their passenger business on fast through trains, of which as a matter of common knowledge large numbers are operated every clay, and local service was limited to one or two trains each way, it is difficult to see how they have been or will be injured to any appreciable extent by local bus facilities. If, as they claim, they are entitled as public utilities to protection against destructive competition, it should be a competition with a service which they have been giving. Then as to the bus lines affiliated with the railroads; they made no move toward a permit for over two months after the application of the public service was on file. We deem that the board was fully justified in deciding that the public would be best served by assigning this new field to a corporation which had thus demonstrated its interest in supplying the public need and its ability to satisfy it, instead of turning that field over to a perhaps destructive competition by lines which theretofore had shown no interest in the matter.

It seems unnecessary to say more on this phase of the case. As to the permits to the Schultz lines, these latter are primarily interstate and to that extent not under control of the board. It is not at all clear that they work any substantial harm to the railroads, for as intimated in the testimony and as is fairly plain to even the casual observer, the enormous growth of the private automobile as a means of transport, coupled with the existence of a great state road from Camden to Atlantic City and the facilities of the new bridge over the Delaware at Camden, are quite enough to account for the falling off in the business of trains operating from fixed termini and on a fixed schedule.

We find, therefore, no infirmity in the decision reached by the board, and the writs of certiorari are accordingly dismissed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. CLAUDE F. BURRELL, PLAINTIFF IN ERROR.
    Decided March 7, 1930.

      Before Gummere, Chiee Justice, and Justices Kalisch and Campbell.
    Eor the plaintiff in error, Warren Dixon.

    Eor the state, John F. Drewen, prosecutor of the pleas.
   Per Curiam.

The grand jury of Hudson county presented an indictment against the plaintiff in error, based upon the supplement to the Crimes act, passed in 1917' (Pamph. D., p. 110), which makes the desertion or willful neglect to support a wife and children by the husband, leaving them in destitute or necessitous circumstances, a misdemeanor. The trial resulted in his conviction, and the court thereupon pronounced the following sentence: “The defendant is sentenced to be confined in jail county farm at hard labor for a period of one year and thence until costs of prosecution are paid. Defendant to furnish a bond of $1,500 to guarantee the payment of $25 a week to his wife through probation officer.” The defendant now seeks to have the judgment pronounced upon him reversed for two reasons'—first, because the state failed to prove by a preponderance of the evidence that he was guilty of a violation of the statute referred to; and second, that the sentence pronounced upon him was illegal.

As to the first ground of reversal, our examination of the proofs satisfies us that the jury were entirely justified in finding that the evidence submitted on the part of the state supported the charge laid in the indictment.

As to the second ground of reversal, the prosecutor of the pleas practically admits that the provision with relation to the furnishing of a bond by the defendant was improperly made a part of the sentence. We are inclined to agree with this conclusion. The power of the court to require the furnishing of a bond is a matter not at all involved in the punishment to be inflicted, and this being so the judgment under review should be reversed. Such reversal, however, does not necessitate the retrial of the case. Section 144 of our Criminal Procedure act (Comp. Skat., p. 1867) provides that whenever a final judgment in a criminal ease shall be reversed on account of error in the sentence, the court in which such reversal was had may remand the case for the purpose of having a proper judgment rendered by the trial court. The reversal in the present case will be limited to a direction that the trial court render such judgment therein as should have been rendered; and that the record be remitted for that purpose.


text:
    HARRY H. FOLEY ET AL., PLAINTIFFS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT ET AL., DEFENDANTS.
    Decided March 7, 1930.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Henry II. Fryling and Carl T. Freggens.

      Contra, Charles A. Rooney.

   Per Curiam.

The plaintiff Harry Foley, a boy twenty years old, was employed bir the firm of Moser & Company as one of its truck drivers. While driving the truck along the highway between Rockaway and Dover he collided with a bus of the Public Service Co-ordinated Transport which was being driven by the defendant Albert Nelson, and was quite severely injured. The present suit was brought by him and his father, the claim of the latter being for the medical expenses incurred by him in the treatment of his son and the loss of the son’s wages. The trial resulted in a verdict against the Public Service Company, the jury awarding the son $5,000 and the father $1,000.

The only ground upon which we are asked to direct a new trial is that these verdicts are excessive. Our examination of the proofs leads us to the conclusion that the award to the son was reasonable one considering the injuries received by him in the accident. As to the verdict of $1,000 in favor of the father, although it is liberal, we cannot say that it is so clearly excessive as to justify this court in setting it aside.

The rule to show cause will be discharged.


text:
    THEODIS MORRISON, PLAINTIFF-RESPONDENT, v. NATHAN H. BERGER, DEFENDANT-APPELLANT.
    Decided March 10, 1930.
    Before G-ummeee, Chief Justice, and Justices Kalisch and Campbell.
    Por the appellant, Williams & Leonard (Lester C. Leonard, of counsel).
    Por the respondent, Benjamin M. Weinberg.

   Per Curiam.

The facts presented on this appeal, briefly stated, are that the plaintiff below, respondent here, on May 13th, 1938, while riding on his father’s arito track, which was then being operated by the father along Belmont avenue, a public street in Newark, the track was run into by an automobile operated by the defendant-appellant, and as a result, the plaintiff was seriously injured.

There are two grounds of appeal upon which the appellant relies for a reversal of the judgment against him.

The grounds relied on seem to be ignored in the brief of counsel of appellant, as is indicated in the very first point argued in his brief, wherein he states: “That the court erred in submitting to the jury an issue of joint liability when the complaint contained no allegation of joint negligence.” But this circumstance is not made a ground of appeal. Even if it were, from a reading of the record before us, it is obviously without any merit.

The appellant states his first ground of appeal to be: “Because the trial court erred in charging as follows: ‘Perhaps I ought to go a step further , at this time and say that we are not concerned in this case as to whether or not his father, who was operating the track, was guilty of negligence, unless indeed it was the sole negligence of his father which caused this accident; because, even assuming that his father was negligent in the operation of his truck, that would not prevent his son from recovering if you found that Mr. Berger was also negligent in the operation of his automobile and that his negligent operation of his automobile coinciding with the negligence of the father of this plaintiff was the proximate •cause of the collision and his injuries. Under those circumstances the young man Theodis would still be entitled to your verdict. In other words, if both the father and Mr. Berger were negligent in the operation of their two automobiles and if their concurring negligence, their negligence acting together, was the proximate cause of this collision, the son would be entitled to your verdict against Mr. Berger,’”

We think the trial judge accurately laid down the legal rules applicable to the facts developed by the testimony in the cause. The record discloses no exception taken by counsel of appellant to that part of the judge’s charge, as above recited, and made the first ground of appellant’s appeal. It is to be further observed that the excerpt, under consideration, contains several distinct legal propositions, and neither the exception nor the ground of appeal points out in which statement of the legal propositions applicable to the facts of the case the trial judge committed error.

It is settled law where a broad exception is taken to a portion of a charge which involves two distinct legal propositions, one sound and the other unsound, unless the particular error is definitely pointed out in the exception and in the ground of appeal the exception taken will be of no avail.

Now as to the second ground of appeal relied on by appellant for a reversal of the judgment which is stated to be: “Because the trial court erred in charging as follows: “The burden of proving contributory negligence and the burden of proving that he was out upon that running board and that it was because of his being on the running board that he received his injuries in this collision was upon the defendant. The defendant must show that by the greater weight of the-evidence before he is entitled to have you find contributory negligence on the part of this young man, but if it does so appear from the greater weight of the evidence that that is where he was and that that contributed to his injuries, then your verdict should be in favor of the defendant, Berger.’ ”

The trial judge accurately stated the legal principle governing the subject-matter with which he was dealing.

The criticism made upon this portion of the charge of the trial judge as to its legal accuracy is frivolous.

Judgment is affirmed, with costs.


text:
    BENJAMIN BLACK, TRADING, ETC., PLAINTIFF-RESPONDENT, v. MAX YANOWSKY, DEFENDANT-APPELLANT.
    Submitted January term, 1930
    Decided March 10, 1930.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff-respondent, Milberg & Milberg.

    For the defendant-appellant, Jacob J. Tandler and Morris 0. Fredman.

   Per Curiam.

This suit was brought in the Second District Court of Jersey City to recover for goods and merchandise sold amounting to the sum of $134.50. The ease was tried by the court without a jury, resulting in a judgment for the plaintiff. The state of the case sent up with the appeal shows that after adjudication, but before discharge in bankruptcy, the plaintiff gave merchandise to the defendant in consideration of the latter’s oral promise to paj’ the debt due and owing prior to the adjudication. The plaintiff’s debt was included within the discharged claims. This suit cannot be maintained under the case of Holt v. Akarman, 84 N. J. L. 371; that ease holds that a discharge in bankruptcy shall release a bankrupt of all his provable debts, and a promise by a bankrupt to pay a debt made between adjudication and his discharge is ineffectual to revive the debt.

The judgment of the Second District Court of Jersey City is therefore reversed, with costs.


author: Pee Cueiam.

text:
    LENORE M. NASH, BY HER NEXT FRIEND, WALTER A. NASH, AND WALTER A. NASH IN HIS OWN RIGHT, PLAINTIFFS, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, AND FURMAN MULFORD, OR IN THE ALTERNATIVE WEST JERSEY AND SEASHORE RAILROAD COMPANY, OR FURMAN MULFORD, DEFENDANTS. MARY E. KEEFER, PLAINTIFF, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, AND FURMAN MULFORD, OR IN THE ALTERNATIVE WEST JERSEY AND SEASHORE RAILROAD COMPANY, OR FURMAN MULFORD, DEFENDANTS.
    Decided March 10, 1930.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    For West Jersey and Seashore Eailroad Company, Bourgeois <& Coulomb.

    For the plaintiffs, Boyle $ Archer (William T. Boyle, of counsel).
   Pee Cueiam.

Because the two- cases grew out of the same accident, they were tried together, by consent of counsel, at the Camden County Circuit Court, which trial resulted in a verdict for the plaintiff Lenore M. Nash for $1,000; for her father, Walter A. Nash, $200, and for Mary Keffer, in her action, $1,000, against the defendants.

On behalf of the defendant railroad company, application was made to the trial judge for a rule to show cause why the verdicts rendered in favor of the plaintiffs should not be set aside and a new trial granted.

A rule to show cause was allowed in each case, and under each rule the following reasons are presented by counsel of defendant why the verdict should not be set aside and a new trial granted.

It is to be noted that the reasons assigned in each case are identical.

(1) Because the verdict rendered by the jury was against the clear weight of the evidence, as to the question of liability, and was the result of passion, prejudice or mistake.

(2) Because the trial court refused to charge defendants’ requests, numbers one, two, three, four, five and six.

It may be well to state hero that the several reasons presented by defendant’s counsel for a new trial, based upon the court’s refusal to charge certain requests, namely, that the mere statement of the requests by figures, without stating the substance of the requests presented, is not in compliance with the settled practice, and will not be considered by the court.

Counsel of defendants, in their brief, have, however, abandoned the reasons founded on the refusal to charge the requests, and say: “The only point which will be discussed is that upon the question as to whether the bridge ceased to open after it once began to open. The verdict was against the greater weight of the evidence.”

The two plaintiffs, Miss Nash and Miss Keffer, on July 20th, 1927, were passengers on a small excursion boat running from Wildwood to Cape May. The defendant company operated and maintained a bridge over Grassy Sound. The boat in making the trip was required to pass in a southerly direction through the drawbridge. At the point in question, the channel of Grassy Sound runs practically north and south, and the railroad east and west.

The boat was going in a southerly direction. It is conceded that its proper course was through the westerly side of the channel, and this was the course that the boat took.

Eor the plaintiff it is contended that the draw was out of repair; that the employes of the railroad company were engaged in putting it in. proper condition; that the boat, on which Miss Nash and Miss Keffer were riding, when it was a quarter of a mile or more from the drawbridge, blew the signal whistle for the draw to open, then proceeded on its way; that shortly after the signal was given the draw began to open, and when the boat was almost at the entrance of the draw, the draw ceased moving, not leaving space enough for the boat to pass through.

Eor the defendant company it is contended that the draw, after it started to open, continued to do so, and that the accident was caused because the boat was traveling at an improper rate of speed, and hence, reached the draw before it ought to have done so, and that the captain of the boat, Eurman Múlford, one of the defendants, was solely responsible for the situation and the accident which resulted.

It appears from the state of the case that Captain Mulford put in no defense, and that damages were assessed against him by the jury on his default. But we are not concerned with this since the defendant Mulford is not complaining.

The testimony in the case was conflicting, as it usually is in every case, there being opposing versions of how the accident happened, and as each version derives some support, in a measure, from the testimony and circumstances, it was a typical case for a jury to decide.

We cannot say from a fair reading of the testimony that the verdicts of the jury were so clearly against the weight of the evidence that they were the product of mistake, partiality, prejudice or passion.

Each of the rules to show cause is discharged, with costs.


author: Ingersoll, V. C.

text:
    Joseph Heissen, complainant, v. Nathan Bleznak et ux., et al., defendants.
    [Decided April 1st, 1930.]

      Mr. M. Joseph Qreenblatt, for the complainant.

      Mr. Adolph Stern> for the defendants Nathan and Esther Bleznak.
   Ingersoll, V. C.

Heissen, the complainant, is the owner of a tract of land in the village of Norma, upon which there has been erected for many years a dwelling house in which he resides. The land adjoining his to the northward was owned by one Seiden, upon which were several houses, one of which was within less than eight feet of the complainant’s house.

In 1921 the heirs of Seiden, having made plans to sell the lands and premises of which their mother had died seized, caused their lands to be surveyed, and at that time it was ascertained that the building above referred to encroached upon the land of the complainant several feet. Negotiations were entered into with the complainant for the purpose of obtaining from him a quit-claim deed for the land upon which his house stood. Accordingly, the complainant and his wife executed a quit-claim deed for the tract of land therein described in consideration of which the heirs of Seiden quit-claimed to the complainant certain land to the southward of his premises, which land was one-half of the body of a proposed street which had not been opened.

The heirs of Seiden, at an auction sale, sold the land and premises to one Scribner who thereafter conveyed to the defendant Nathan Bleznak.

After Bleznak had purchased the land, or during his negotiations therefor, the land was surveyed, and it developed that a portion of the complainant’s dwelling house encroached upon the land described in the quit-claim deed and, therefore, upon the land purchased by Scribner and purchased from him by Bleznak.

It is manifest that the surveyor or the scrivenor who prepared the quit-claim deed made a mistake and that instead of placing the line between the parties, Seiden and the complainant, at a point between the two houses, as was agreed upon between them, he erroneously placed the southern boundary line improperly.

The bill in this case is filed to reform the quit-claim deed made by Joseph Heissen and wife to Alice Seiden and others. The purpose of this quit-claim deed was manifestly to avoid the difficulty which had arisen by reason of the fact above stated, that a house of Seiden encroached upon Mr. Heissen’s land. The entire difficulty arises because of the fact that the boundary between the two lands does not run parallel with the buildings which are erected on each.

I take it that there can be no dispute but that the intention was that a line should be located so that the quit-claim deed would include the land upon which the Seiden house was erected. That was the purpose, that it would avoid the encroachment upon the Ileissen property. Evidently the surveyor or scrivenor made the error in locating that line a certain number of feet to the southward of where it originally was and by so doing caused exactly the same difficulty between the Heissen property as had previously existed on the Seiden property; the line was changed to take in part of the building of Heissen, and Heissen, therefore, quit-claimed a part of the land upon which his house stood.

I would have no difficulty whatever as between Heissen and Seiden if no third party intervened, to advise a decree that the quit-claim deed be reformed and the description be made to run, in effect, as was testified to by Mr. Ackley. There would be no difficulty at all in that. I haven’t the slightest doubt but that this quit-claim deed was a mistake and doesn’t do that which everybody intended to do and that which everybody, I think, thought they were doing.

The difficulty arises, however, in that Mr. Bleznak has purchased this land in the meantime, the Seiden land. Was he, by anything in connection with this case, put upon notice, such notice as would require him to investigate this matter? He purchased the land by metes and bounds and although he did not understand that he was purchasing the land upon which Heissen’s house stood, still, he is entitled to have the land conveyed to him, Heissen having executed the deed which made the title perfect in Bleznak’s grantors, provided, however, that Bleznak had no knowledge or notice, either actual or constructive, of the error in this quit-claim deed. I am convinced that no such notice can be imputed to him

There has been testimony concerning the existence of a fence, existing for a number of years, both at the front and at the rear of these properties. It is not pretended, however, that these fences were actually upon either the original line between the premises or the line agreed upon for the quitclaim deed or the actual lino of that deed, and the fact that they existed gives little if any assistance in a determination of this cause.

Heissen and Bleznak’s grantors made the mistake. Bleznak had no notice thereof and cannot now be compelled to give up the land purchased by him, and the quit-claim deed cannot be reformed and canceled as prayed for by the complainant. .

The ejectment suit, however, must be stayed and the defendant Bleznak will be directed to convey to the complainant that portion of his land upon which the house of the complainant encroaches, upon the payment by him of its full value in the market. Magnolia Construction Co. v. McQuillan, 94 N. J. Eq. 736.

Unless counsel can agree upon the lines of the land so to be conveyed, I will determine the same without further testimony, and if counsel cannot agree upon the amount to be paid, additional testimony may be taken to prove that value.


text:
    FRANK CASCONE, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF CARMELO CASCONE, PLAINTIFF, v. KAI HENDRICKSON, DEFENDANT.
    Decided March 10, 1930.
    Before Gummere, Chief Justice, and Justices Katasch and Campbell.
    Eor the rule, Samuel L. Hirschberg.

      Contra, Meany & Lifland (Thomas F. Meany, of counsel).
   Per Curiam.

There was a verdict in the Hudson County Circuit in favor of the defendant and against the plaintiff. A rule to show cause was applied for and obtained by plaintiff’s counsel, why the verdict should not be set aside and a new trial granted. The action was brought under the Death act.

The facts as developed by the testimony are as follows: The plaintiff’s intestate, while crossing Hudson Boulevard, at the intersection of Seventeenth street, in the township of North Bergen, was struck by the automobile of the defendant, who was driving it in a southerly direction. The injuries caused to the plaintiff’s decedent, by the collision, resulted in the latter’s death.

The testimony adduced on behalf of the plaintiff tended to show that his decedent was crossing the street on the crosswalk, and while so doing, the defendant’s automobile, which plaintiff’s witnesses estimated was traveling at a high rate of speed, and without giving any warning of its approach ran into the decedent.

On the defendant’s case two witnesses, who were riding in the automobile with him, testified the plaintiff’s decedent suddenly darted from the sidewalk, where he was standing with a number of other people, and ran across the road, apparently for the purpose of taking a bus that stopped on the other side of the highway; that when he left the curb he was so close to the defendant’s automobile that a collision was inevitable.

While it is true that the jury could have properly found a verdict for the plaintiff based upon the testimony of the witnesses, who testified in his behalf, if the jury believed their version how the accident happened but that factor, standing alone, gives no basis for setting aside the verdict where the testimony adduced on behalf of the plaintiff was controverted by the testimony of the defendant and his witnesses, as was in this case, for then the jury was called upon to determine which version of how the accident happened, as given by the witnesses, was true.

Moreover, even though the jury could have found on the testimony elicited from the defendant and his witnesses that the defendant was guilty of negligence, nevertheless, since there was also testimony in the case tending to show that plaintiff’s decedent was guilty of negligence contributing to his injury and death, the jury could properly find a verdict for the defendant.

When the disposition of a case hinges upon the veracity of witnesses, it is obvious that a jury who sees the witnesses and has an opportunity to observe their demeanor on the witness stand, is in a more advantageous position to judge as to the credit to be given their testimony than can be gathered from a reading of the testimony in print.

The credibility of a witness is, pre-eminently, within the peculiar province of a jury to determine.

It seems to be necessary to repeatedly state that the verdict of a jury will not be set aside upon the ground that it is against the weight of the evidence, unless the verdict clearly evinces that it is the result of mistake, partiality, prejudice or passion. We do not find that to be the case here.

The rule to show cause is discharged, with costs.


text:
    OLIVER MENGLE AND MARY L. MENGLE, RELATORS, v. JOHN H. MAUGER AND THE TOWNSHIP OF HADDON, RESPONDENTS.
    Submitted October 11, 1929
    Decided March 19, 1930.
    Before Justices Teenchakd, Lloyd and Case.
    Eor the relators, Patrick H. Harding.

    Eor the respondents, Walter S. Keown.

   Pee Cukiam.

This application is for a writ of mandamus made on behalf of the relators, Oliver Mengle and Mary L. Mengle, who are the owners of the property described in the petition, to compel the township of Haddon and the building inspector of the township, to grant relators a permit to construct an addition to a building owned by the relators at the corner of White Horse Pike and Clinton avenue, in said township of Haddon, in the county of Camden.

The application was made originally to John H. Mauger, building inspector of the township of Haddon, and he refused the application upon the ground that the building in question, with such addition as the relators propose to make, would be a violation of an ordinance passed by the township committee on November 10th, 1925, annexed to the stipulation filed in this matter.

The relators contend that the writ should be allowed for the following reason, among others:

Because the ordinance in question does not affect the premises of relators inasmuch as the ordinance is intended and does cover only properties located in what is known as the Bettlewood Estates, and relators’ property is not in the Bettlewood Estates.

Relators derived their title by conveyance from Herman Odien and wife on August 21st, 1923, and there is nothing in this title deed, nor in any previous deed, that in any way affects or restricts the use of the property so far as the erection of buildings is concerned.

While the title is derived from William Bettle and wife, the Bettlewood Estates, which is a corporation that laid out the development subsequent to the death of William Bettle, never had title to the land in question.

The ordinance referred to was passed in November, 1925, or approximately three years after the relators took title to the property, and purports to establish a building line and restricts the erection of buildings on or along Clinton avenue, Collingswood avenue, Greenwood avenue, Oakland avenue, Ormond avenue, Holly avenue, Park avenue, Cedar avenue, Cuthbert road, Johnson avenue, Cold Spring avenue and the White Horse turnpike “in that section of the township of Haddon known as the Bettlewood Estates.”

A careful examination of the maps showing the Bettlewood Estates and the property of the relators, in connection with the ordinance, shows that the township committee, in passing this ordinance, did not intend that the ordinance was to affect any property not actually within the lines of the Bettlewood Estates. It is admitted in respondents’ brief that the Bettlewood Estates already had by deed established certain building lines or restrictions, and the ordinance was passed only to reaffirm or republish these restrictions.

Respondents contend that the ordinance, by including Clinton avenue, was intended to cover Clinton avenue all the way through to the White Horse Pike, but an examination of the map will show that while Clinton avenue runs from the White Horse Pike to a point beyond Cold Spring avenue, the land of the Bettlewood Estates ceases at a distance approximately two hundred and ninety-five feet east of the White Horse Pike. Manifestly, it would have been impossible for the township to have passed an ordinance affecting the Bettlewood Estates, without at least including that part of Clinton avenue lying between Cold Spring avenue and a point two hundred and ninety-five feet east of the White Horse Pike. This undoubtedly is the reason that Clinton avenue was set forth by name and included as part of the Bettlewood Estates.

There is nothing in the ordinance itself which recites the purpose thereof, but the governing authorities must have had in mind at the time of the passage of the ordinance the scheme of the Bettlewood Estates, which would set back all of the properties in this development to certain well-defined lines which are the same lines as recited and set forth specifically in the ordinance, and which as we have shown did not comprehend the property of the relators.

It is contended that the case of The Lynch Realty Co. v. Kaeser, 6 N. J. Mis. R. 523, controls the present situation. We think not. There the Supreme Court was very careful to point out that the ordinance, there and here in question, affecting the property of the Lynch Realty Company was nothing more than an affirmation of the restrictions set out in deeds given by the Bettlewood Esates to its various grantees, and that the imposition or burden of the ordinance on Lynch’s property was no greater under the ordinance than that imposed by the deed itself. In that case there is no dispute but what Lynch’s property was in the Bettlewood Estates and constituted part thereof. Not so here, and that makes the distinction between that case and this.

The result is that a peremptory writ of mandamus will be allowed. And if a review is desired the respondents are hereby given permission to enter a rule allowing and directing the moulding of the pleadings so as to permit such review.


text:
    MARY CONNICK AND JOSEPH CONNICK, PLAINTIFFS-RESPONDENTS, v. JOHN F. CRAIG, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted October 11, 1929
    Decided March 19, 1930.
    Before Justices Teen chard, Lloyd and Case.
    For the appellant, Collins & Corbin (Edward A. Marhley, of counsel).
    For the respondents, McCarthy & McTague (Frank P. McCarthy, of counsel).
   Per Curiam.

This is an appeal from the Hudson County Court of Common Pleas where the plaintiffs had a verdict and judgment against the defendant, John E. Craig, Incorporated, a non-suit having been granted as to the other defendants.

At the trial it appeared that plaintiffs were the tenants of defendants Lehmans. The Lehmans by written contract employed defendant, John E. Craig, Incorporated, to install a heating system on the premises. The Craig company removed the flooring of the kitchen, for the purpose of laying pipes, by cutting the tongues and grooves and sawing along the beam and taking up four boards. In re-laying this flooring the evidence indicates that the work was done negligently, although the company’s foreman tried the boards after they had been relaid and assured Mrs. Connick that they were all right for use. Mrs. Connick undertook to use the floor for passage from the kitchen to the dining room, when the boards gave way and she went through and injured her leg, and this suit was brought to recover for such injuries.

The evidence indicates that the flooring, as we have indicated, was not properly replaced. The old boards were used and were rested upon cleats supposed to be fastened to the beam, and the flooring gave way because the cleats placed by the company’s workman on the beam had pulled away from the beam, not being properly fastened. There was expert testimony at the trial that this was bad workmanship.

We believe that the evidence supports the allegation of negligence on the part of the Craig company and that such negligence was the proximate cause of the accident. That being so the motions for nonsuit and for a direction of a verdict for the defendant Craig company were properly denied.

It is also argued that the plaintiffs cannot recover because the negligence was that of an independent contractor. But in Sarno v. Gulf Refining Co., 99 N. J. L. 340; affirmed, 102 Id. 223, it was said:

“The rule is now finally established that where the owner of lands undertakes to do work, which in the ordinary mode of doing it is a nuisance, he is liable for any injury which may result from it to third persons, though the work is done by a contractor exercising an independent employment, and employing his own servants; but when the work is not in itself a nuisance, and the injury results from the negligence of such contractor or his servants in the execution of it, the contractor alone is liable, unless the owner is in default in employing an unskillful or improper person as the contractor.”

The application of that rule to the present case results in an affirmance of the judgment, with costs, and it is so ordered.


text:
    WEST RIDGELAWN CEMETERY, PROSECUTOR, v. THE CITY OF CLIFTON, DEFENDANT.
    Submitted October 11, 1929
    Decided March 19, 1930.
    Before Justices Trenchard, Lloyd and Case.
    Eor the prosecutor, Andrew Foulds, Jr.

    Eor the defendant, Frederick 8. Ranzenhofer.

   Per Curiam.

A writ of certiorari was granted in this cause to review the assessment of taxes for the years 1933 and 1933 by the city of Clifton against the lands of the prosecutor. Application for this writ was made pursuant to chapter 303, laws'of 1935, because of a pending suit in the Court of Chancery, -to foreclose the right of redemption of the prosecutor.

Two tracts of land are involved: One of seventeen and one-half acres and one of sixty acres, such tracts being separated only by a road. Taxes thereon were paid from 1906 to 1931, inclusive. Taxes for the years 1933 and 1933 were not paid and the property was sold for non-payment of taxes.

No appeal was taken from the assessment of taxes for the years 1922 and 1923 (the years in question), or from any other assessment, until recently when an appeal was taken by the prosecutor to the state board from the assessments for the years 1925 and 1926.

At the time the assessments in question were made, there were no interments in the smaller tract and interments in the larger tracts ceased in 1913, after twelve burials had been made.

The prosecutor became possessed of the lands in question in January, 1907. In 1909, a map was prepared of a portion of the ground subdividing it into cemetery plots. In 1912, a sign was erected with the name of the cemetery. In 1913 a factional quarrel took place between the trustees, and they did not function. In 1916 a deed for all of the property of the prosecutor was executed and the property conveyed to Adam Frank, in whose name the title remained until December 16th, 1924.

During the entire time that the prosecutor or Adam Frank, its successor in title, held the property, taxes were paid on these properties to the city of Clifton, thereby giving indication that the owners -did not claim exemption. As we read this record, the situation as it existed when the assessments in question were made, and for some years prior thereto, presented no plain indication that the property was then being actually used as a cemetery, or that such purpose was within reasonable contemplation, and certainly the only possible inference was that at such time the prosecutor had no purpose to claim an exemption of the land in question from taxation upon the theory that it was owned and used for cemetery purposes which is made the test by Fairview Heights Cemetery Co. v. Fay, 90 N. J. L. 427; affirmed, 91 Id. 687. Now, in view of the rule stated in Rosedale Cemetery Association v. Linden Township, 73 Id. 421, that “all exemptions from general taxation are to be considered strictly, the resolution in case of doubt being in favor of the rule which subjects all property to a just share of the public burdens,” we are of the opinion that the exemption here claimed is not made out.

The writ will be dismissed, with costs.