author: Ackehson, S. C. C.

text:
    H. HOROWITZ, INCORPORATED, A NEW JERSEY CORPORATION, PLAINTIFF, v. WEEHAWKEN TRUST AND TITLE COMPANY, A NEW JERSEY CORPORATION, DEFENDANT.
    Decided March 15, 1932.
    Tor the plaintiff, George Bothstein.

    Tor the defendant, Dippel, Davis & Stewart.

   Ackehson, S. C. C.

The complaint seeks to recover from the defendant bank the balance of a deposit made with it by Harry Horowitz in the name of the plaintiff before its incorporation, which balance, the plaintiff claims, is $1,858. Defendant’s answer admits the deposit but denies the amount of the balance insisting that it is only $208, which amount the defendant is willing to pay to the plaintiff.

Plaintiff now moves to strike out as sham that part of the answer which alleges that there is only a balance of $208 standing to the credit of the plaintiff, and to strike out as frivolous that part of the answer which alleges a willingness to pay over the alleged balance of $208.

Taking up the last criticism first, we must remember that the complaint charges that defendant refuses to pay plaintiff the amount of $1,858. In admitting this the defendant is certainly justified in pleading what it claims to be the true balance, and its willingness to pay it, without having such pleading censured as frivolous.

The real question raised by this motion is whether the defendant’s claim that the real balance is only $208, is sham, and this turns upon whether two checks aggregating $1,650 are properly charged against the account in question.

Prom the affidavits submitted with this motion the following facts should be noted in their chronological order: On November 19th, 1931, Harry Horowitz went to the defendant’s place of business with Anna Sobel, a promoter of and now the president and treasurer and principal stockholder of the plaintiff corporation, and opened a checking account in the name of “H. Horowitz, Incorporated,” with the deposit of a certified check drawn by Anna Sobel on another bank. Harry Horowitz stated to the defendant’s treasurer, in the presence of Miss Sobel, that he was the secretary of “H. Horowitz, Incorporated,” a corporation, and that he was the only one authorized to sign cheeks drawn on the account. The certificate of incorporation of “H. Horowitz, Incorporated,” was not signed and executed until two days later on November 21st, 1931, and filed in the office of the secretary of state on November 24th, 1931. On November 24th, 1931, three checks were presented to the defendant by other banks where they had been deposited by the payees thereof. One was for $50, dated November 24th, 1931, payable to Joseph A. Harned and signed “H. Horowitz;” one for $50, dated November 24th, 1931, payable to George Rothstein and signed “H. Horowitz,” and one for $42, dated November 23d, 1931, payable to James Orlando and signed “II. Horowitz.” As the three cheeks bore the individual signature of H. Horowitz and he had no personal account with the defendant, its treasurer directed the bookkeeper to write the words “H. Horowitz, Incorporated,” above the signature and the word “secretary” below, on each cheek and they were charged to the account which had been opened as aforesaid.

On November 25th, 1931, Mr. II. Horowitz personally presented to the defendant a check for $150, payable to “cash” and signed “H. Horowitz.” Defendant’s bookkeeper, in the presence of Mr. Horowitz, informed the defendant’s teller that there was no individual account and wrote “11. Horowitz, Incorporated,” above the signature and Mr. Horowitz then individually endorsed the check and was paid the $150 in cash. On November 30th, 1931, at, about twelve o’clock noon, Mr. Horowitz personally presented another check for $1,500, payable to “cash” and signed “II. Horowitz.” At the direction of defendant’s teller, Mr. Horowitz added “Incorporated,” after the signature and again wrote his name “II. Horowitz” underneath, endorsed his name on the back and was paid the $1,500 in cash.

Afterwards on November 30th, 1931, at six-fifteen p. u., the defendant was served with a notice signed “H. Horowitz, Incorporated, by Anna Sobel, incorporator,” which informed defendant that the plaintiff was incorporated November 23 d, 1931; that no organization meeting had been held as yet, and that defendant was not to honor any checks against the account which had been opened in the name of “II. Horowitz, Incorporated,” until further instructed by resolution of the company, and that the defendant would be held strictly accountable for any moneys on deposit in the name of “II. Horowitz, Incorporated.” Defendant’s affidavits allege that this was the first notice it had received that “H. Horowitz, Incorporated,” had not as yet been fully organized and that Harry Horowitz was not its secretary and not authorized to sign checks against the aforesaid account. All of the above mentioned checks had already been charged against said account.

Oil December 1st, 1931, the organization meeting of the plaintiff corporation was held and its officers elected, and at this meeting a resolution was adopted ratifying and confirming the deposit, previously made by Harry Horowitz with the defendant, in opening an account in the name of “H. Horowitz, Incorporated,” and the issuance and payment of the first three checks hereinbefore mentioned in the following language:

“Whereas, one Harry Horowitz has received the sum of $2,000 for stock subscribed in this company, and has -deposited said sum of money with the Weehawken Trust and Title Company of Union City, in the name and to the credit of this company,

“Be it therefore resolved, that such deposit with the aforesaid bank to the credit of this company be and the same is hereby confirmed and ratified.

“‘Whereas it has been brought to the knowledge of this company that the said Harry Horowitz has, without the authorization or consent, of this company, issued checks upon the moneys on deposit to the credit of this company in the Weehawken Trust and Title Company, amount which checks are:

“ ‘One to the order of George Rothstein in the sum of $50.

“ ‘One to the order of Joseph A. Harned in the sum of $50.

“ ‘One to the order of James Orlando in the sum of $42.

“ ‘Be it further resolved, that the issuance of the aforementioned cheeks- only, be and they are hereby ratified and confirmed and acquiesced in, but this ratification and the confirmation shall not be construed or interpreted to be any ratification or confirmation of any authority or right on the part of said Harry Horowitz to draw upon the funds of this corporation.’ ”

It is to be noted from what has already been said that at the time the deposit contract was made on November 19th, 1931, the plaintiff corporation was not in existence. By the great weight of authority, however, a contract made by the promoters of a corporation before it was formed becomes the contract of the corporation, so that it is both entitled to the benefit thereof and liable thereon, if it expressly or impliedly ratifies and adopts the same after it comes into existence, provided it, is a contract which the corporation has the power under its charter to make. 14 C. J. 257. Whether we call the act by which the corporation becomes bound upon such contracts, a ratification or an adoption thereof, it is well settled that by voluntarily accepting the benefits accruing thereunder, after full knowledge, and having full liberty to decline the same, the corporation is regarded as adopting the contract cum onere, taking the burdens thereof with the benefits. Seacoast Railroad Co. v. Wood, 65 N. J. Eq. 530; 14 C. J. 259, 260; 17 A. L. R. (Anno.) 477. This principle is but the adaptation of the well recognized rule of the law of agency to the law of corporations that where a principal has an election either to repudiate or to ratify an unauthorized act of an agent on his behalf, he cannot, without the consent of the other party to the transaction, ratify in part or repudiate in part, but must either repudiate or ratify the whole transaction. lie cannot ratify that part which is beneficial to himself and reject the remainder, but with the benefits he must take the burden. Thus a principal cannot ratify a contract made for him by an agent without also ratifying and becoming bound by the terms and conditions, although unauthorized, upon which it was made, or without ratifying the representations and warranties, and all other instrumentalities employed by the agent as an inducement to bring about the contract. 2 C. J. 481, 482; Bodine v. Berg, 82 N. J. L. 662 (at p. 669).

So it must naturally follow, that while a corporation may adopt a contract made by another in its name before its incorporation, nevertheless in so doing it cannot adopt a part thereof which may be beneficial or desirable and discard that which is not, without the consent of the other party to the contract. Even in those jurisdictions, which look upon the act of the corporation in accepting such a contract, not as a ratification thereof, because of the absence of agency, but rather as an adoption in the nature of a novation, or the making of a new contract by the corporation as of the date of the adoption, the ordinary rules of contract law must apply. 14 C. J. 262, 263, §§ 294, 296. Hence, if the acts of the promoters of a corporation in making a contract for it before its organization are to be considered in the nature of a proposal to the future corporation for a contract, so that a binding engagement with the corporation will arise when it-accepts the same after it has been fully organized such acceptance must naturally be of the whole contract, as otherwise there would be no meeting of the minds essential to a binding legal engagement. 14 Id. 263, § 296.

• In the instant case it appears that the deposit in question was made and the account opened in the name of “H. Horowitz, Incorporated,” upon the understanding that Harry Horowitz, who actually made the deposit was secretary of “H. Horowitz, Incorporated,” and that he alone was authorized to sign checks drawn on the account. These were the terms of the deposit contract. The money did not then belong to the present plaintiff, because it was not then in existence, and the deposit could not become the property of the plaintiff until accepted by ratification or adoption of the deposit contract. Hence when the plaintiff, after its organization, by the above quoted resolution provided “that such deposit with the aforesaid bank to the credit of this company be and the same is hereby confirmed and ratified,” it necessarily had to adopt all of the terms, conditions and provisions of the deposit contract, as they existed up until that time. One of the terms was that Harry Horowitz alone had authority to sign checks drawn on the account and that is the way the matter stood at the time the plaintiff attempted to take the benefits of such contract while disregarding its burdens. Clearly the plaintiff could not, as it attempted to do by the aforesaid resolution, adopt, ratify or confirm the authority of Harry Horowitz to issue the first three checks drawn against the account, thereby taking the benefits of the deposit contract, and at the same time repudiate his authority to issue the last two checks which were presented for payment in accordance with the terms of the deposit contract as made by said Horowitz.

It, may be urged that each of the five checks drawn against this account constituted a different, separate and distinct transaction, and that, therefore, the ratification, confirmation or adoption of Horowitz’s act, in drawing one or more of them would not necessarily amount to a ratification or adoption of his acts with respect to the others. The difficulty with this suggestion is that it overlooks the fact that in order to accept the benefits of any of these cheeks, the plaintiff must not only ratify or confirm the particular check, but also the deposit contract against which it was drawn, which contract was a single transaction, and its ratification or adoption carried with it all of the terms and conditions imposed when the account was opened, including the right of said Horowitz to sign checks drawn against the account. Naturally under the foregoing rule, the plaintiff could not adopt the deposit contract where it might be beneficial so to do, and repudiate it where it would not, without the consent of the defendant bank.

The plaintiff, however, seeks to extricate itself from the effect of the foregoing rule, by insisting that even if Horowitz had authority to sign all of these checks, nevertheless, he had no right to appropriate any part of the account to his own use. That, therefore, when he drew the last two checks aggregating $1,650 to the order of “cash,” endorsed them personally and cashed them with the defendant, the latter was put on inquiry to determine whether or not Horowitz was drawing these funds for his own use and not for corporate business; and failing to make such inquiry the defendant cannot legally charge these checks against the account. In support of this position the plaintiff relies upofi Havana C. R. Co. v. Central Trust Co., 123 C. C. A. 72; 204 Fed. Rep. 546; L. R. A. 1915 B 715, and Dennis Metal Manufacturing Co. v. Fidelity Union Trust Co., 99 N. J. L. 365. These cases, however, are more helpful to the defendant than to the plaintiff. In the first a corporate officer having authority to draw checks on the corporation’s account at a bank, drew one to his own order which he endorsed personally and deposited to the credit of his account in another bank, which last mentioned bank sent it on to the drawee bank which charged the check to the corporation’s account. The court held that “in case of a corporate check signed by an officer with express or implied authority, the mere fact that it1 is drawn to his order and therefore may be improperly used will not require the bank to question it. But if the bank have knowledge that the officer is using the check for his personal benefit, e. g., to pay his debt to the bank or to deposit it to his personal credit, then the bank is put upon inquiry, and if it fail to make it, pays at its peril.” The court, therefore, held that the check in question was properly chargeable to the corporation’s account.

In the second case above cited it was held that “where a bank received a check payable to a corporation and endorsed by the president of the corporation so as to make it payable to himself, which is deposited in the personal account of the president with the bank, the bank is chargeable with notice, so as to put it upon inquiry, to determine whether the president of the corporation was authorized so to use its funds as against the corporation.” It is to be noticed that this case supplied one of the examples mentioned in Havana O. R. Co. v. Central Trust Co., supra, as sufficient to put the bank on notice, i. e., that the check was deposited in the personal áccount of the drawing officer. Furthermore, the president of thé corporation in that instance had no authority to endorse checks for any purpose. In the case sub judice, however, the checks were not deposited to the credit of Harry Horowitz, in the defendant bank. If his authority to draw these checks upon the account in question as the alleged secretary of the plaintiff corporation cannot now be questioned, then it would make no difference whether the cheeks were drawn to his own order or to cash, so long as the bank had no knowledge or notice that the proceeds were not being used for corporate purposes. Corporations often have occasion to pay corporate officers by check, or to draw cash from their bank of deposit for corporate needs, and it would be an intolerable burden on banks to hold that they are put upon inquiry to ascertain the purpose for which such checks are being used before charging them to the corporation’s account.

As was said in the course of the opinion in Havana C. R. Co. v. Central Trust Co., supra:

“It must also be observed, from another point of view, that to relieve a bank from questioning the validity of checks in the form under consideration works no real injustice to corporation depositors. Corporations may protect themselves by requiring counter-signatures, provided they notify the bank of the requirement. If they do not choose to do so, it may fairly be presumed that they prefer the risk to the inconvenience. In such circumstances, it is not unfair to the depositor to say that if the bank have notice or knowledge of wrong-doing, it must make inquiry, but that if nothing wrong in the history of a check is brought to its attention, it is not called upon to inquire about it,; that a bank is not bound to question every corporate check regardless of amount —and manifestly no line can be drawn—merely because it is drawn by a corporate officer to his own order.”

See, also, footnotes to Allen v. Puritan Trust Co., L. R. A. 1915 C 518.

It follows from what has already been said that the defendant’s answer cannot be stricken out as sham, and the plaintiff’s motion is, therefore, denied, and an order may be presented in accordance with the conclusion thus reached.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    MARGUERITE DePOTTER, RELATOR, v. JAMES F. PATTEN, RESPONDENT.
    Decided March 22, 1932.

      Before Gtjmmeee, Chief Justice, and Justices Paekee and Case.
    Por the relator, William V. Herer.

    Por the respondent, David T. Wilentz.

   Pee Cueiam.

The relator, Marguerite DePotter, is a resident, elector, taxpayer and freeholder in the city of Eahway, and seeks by this proceeding to have the office of police justice of that city, to which one James P. Patten, the respondent, was appointed by the common council of Eahway on the 1st of January, 1931, declared vacant. She claims to be entitled to the relief sought by virtue of the following provision of the charter of the city of Eahway, which was granted by the legislature in 1865, viz., “that no person shall be eligible to any office in said city unless he shall then be an elector and resident thereof.” She asserts in her information that at the time of his appointment Patten was neither an elector nor resident of Eahway, and that, consequently, under the charter provision just, recited, his appointment by the common council of the city was in violation of law, and therefore a nullity.

Whether or not Patten was a resident of Eahway at the time of his appointment is a matter in dispute. It is conceded, however, that he was not then an elector of that city. It is contended on his behalf that his eligibility to the office at the time of his appointment did not depend upon whether or not he was an elector of the municipality, but that mere residence therein at that time was sufficient to justify the action of the common council. This contention is based upon the statute of 1877 (Comp. Stat., p. 3783), entitled “An act relative to offices, commissions and resignations.” This statute provides that “each and every person who shall hereafter hold any office in this state, under the authority thereof, shall reside within this state and execute such office; and also that every person holding an office, the authority and duties of which relate to a county only, shall reside in such county; and also that every person holding an office, the authority and duties of which relate to a city or township, shall reside within such city or township.” The relator contends that, although this statute was passed subsequent to the granting of the city charter, it does not affect the provision of that instrument which requires that an office holder shall be not only a resident, but also an elector at the time of his appointment.

In our opinion, this contention is sound. The legislature, by the act of 1877, did not attempt to prescribe the qualifications of a person for an office which is required to be filled by the common council of a municipality. It merely required the residence in the municipality of the appointee during the term for which he was appointed, leaving his qualifications as prescribed by earlier legislation unaffected thereby.

The charter provision of the city of Eahway prescribing the qualifications of persons who may be appointed to office in that municipality still remaining in force, the relator is entitled to judgment.


author: Per Curiam.

text:
    CELIA LURGE, PLAINTIFF, v. CHARLES H. GODFREY, DEFENDANT.
    Decided March 22, 1932.
    Before Gummeke, Chief Justice, and Justices Pakkek and Case.

      For the rule, Cole & Cole.

      Contra, Samuel Morris.

   Per Curiam.

The plaintiff, while walking along the sidewalk of Atlantic avenue, in Atlantic City, was injured by the frame of an awning which was attached to a building owned by the defendant and which fell from it as she was passing. She brought the present suit to recover compensation for the injuries received, the medical expenses incurred as a result thereof and the loss of earnings caused by her inability to carry on her work as a dressmaker. The jury rendered a verdict in her favor, awarding her $3,500.

Only two grounds are urged for setting aside this verdict. The first is that it was excessive and the second is based upon an alleged error contained in the court’s charge t,o the jury.

The proof submitted on the part of the plaintiff shewed that she was injured in the head and also on the shoulder, and that she suffered nervous prostration as a result of those injuries to such an extent that she was compelled to practically abandon her business as a dressmaker from the time of the reception of the injuries up to the time of the trial of the case. The proofs submitted on the part of the defendant showed that the plaintiff had not been injured about the head; that her injuries were not at all serious, and that, the loss resulting from her alleged inability to carry on her business as the result of the accident had no foundation in fact, her business having so fallen off before the happening of the accident as to leave her no profits from the conducting thereof. Whether the testimony on the part of the plaintiff or that on the part of the defendant was to be accepted as the correct statement of the facts involved in the case was a question for the jury to determine. Evidently its verdict was based upon its finding that the character of the plaintiff’s injuries and the loss of earnings by her were as testified by the witnesses called in her behalf. We cannot say that the jury was not justified in that, finding, and, this being so, the award based thereon seems to us to be moderate.

The only other ground for reversal is directed at the following instruction by the court to the jury: “If the plaintiff recovers, she is entitled to recover * * * for the moneys that she has lost by reason of inability to attend to her business by reason of the injuries sustained in this accident.” It is not suggested that this instruction was erroneous as a matter of law, but that it was improper because there was no proof in the case definite enough to justify a finding of a specific loss in the business. It seems to us that this ground for setting the verdict aside is also without merit. There was proof, as we have already stated, of a considerable loss in the plaintiff’s earnings resulting from the injuries which she received. The fact that she was not able to state definitely what that loss was did not bar the jury from making an award therefor.

Our conclusion is that the rule to show cause should be discharged.


author: Pee Curiam.

text:
    JOHN W. HANN, RESPONDENT, v. LEE ROY HOFFNAGLE ET AL., APPELLANTS.
    Decided March 22, 1932.
    Before Gummere, Cuiee Justice, and Justices Parker and Case.
    For the appellants, Lewis T. Stevens.

    For the respondent, Bex A. Donnelly.

   Pee Curiam.

This appeal is taken by Bird V. Bees, one of the defendants, in a suit brought by the plaintiff upon a promissory note signed by West Wildwood Bakery, the business of which was carried on by the appellant Bees, and Lee Boy Hoffnagle, as partners (the signature being by the latter), and endorsed by a number of persons, Hann being one of them. The note was payable to the order of the Fidelitjr Trust Company, which discounted it in the usual course of business. Default was made in the payment of the note when it fell due, and Hann thereupon took it up, paying the amount due on it, and brought the present suit against the partnership and all endorsers prior to himself. Bees filed an answer, in which, after admitting the existence of the partnership at the time the note was given, he then asserted that the note was executed by his partner without his knowledge or consent and was discounted by his partner for the latter’s own benefit and not for the benefit of the firm. There was a motion to strike out this answer and for the entry of judgment against the defendant. The motion was granted, the court holding that the plaintiff took the note in good faith and for value, without any notice of infirmity in the instrument; that, having obtained it from the Fidelity Trust Company, which was a holder in due course for value, he stood in the place of that company so far as his right to enforce the note against the maker and prior endorsers was concerned. The defendant Bees has appealed from the judgment entered in accordance with this finding.

The fact that the Fidelity company was a holder in due course, and the further fact that the plaintiff had no knowledge of the fact, if it was a fact,, that Hoffnagle, who was one of the partners, had appropriated the amount received from the Fidelity company to his own use, are neither of them controverted. This being so, it seems to us that the trial court was entirely-justified in holding that, under the Negotiable Instruments act, the plaintiff was entitled to recover.

Our conclusion is that the judgment under review should be affirmed.


author: Brown, J.

text:
    Hudson County Circuit Court.
    THOMAS KEARNEY, VIRGINIA SMITH, FRANKLIN B. GREGORY, BY HIS FATHER AND NEXT OF KIN, AND JAMES GREGORY, IN HIS OWN RIGHT, PLAINTIFFS, v. JAMES BAPTIST, DEFENDANT.
    For the plaintiffs, Charles C. Coigan.

    For the defendant, Green & Green.

   Brown, J.

The plaintiffs Thomas Kearney and Virginia Smith, at the time of bringing their action were coneededly residents of the city of Philadelphia, in the State of Pennsylvania. The plaintiffs Franklin B. Gregory and James Gregory are coneededly residents of Princeton, in the State of New Jersey. The plaintiffs instituted suit in this court against the defendant to recover damages- alleged to have been proximatoly caused by the negligence of the defendant in the operation of an automobile on August, 2d, 1931, in Monmouth county, in this state.

Within due time the defendant, a resident of this state, served notice upon the non-resident, plaintiffs that the defendant would require the non-resident plaintiffs to file a bond as security for costs invoking as authority for this demand sections 204 and 205 of the Practice act. Section 204 of the Practice act (Pamph. L. 1903, p. 590) provides:

“If the plaintiff resides out of this state he shall, if required at any time before notice of trial, give bond to the defendant in one hundred dollars, with sufficient sureties resident in this state, with conditions to prosecute his action with effect and to pay costs if he discontinue, be nonsuited or a judgment pass against him; which bond shall be filed in the clerk’s office of the court in which such action is pending; or in lieu of such bond the plaintiff may deposit the sum named with the clerk as security to the defendant for costs.”

Section 205 of the.Practice act {Pamph. L. 1903, p. 591) provides :

“When a defendant is entitled to security for costs, he shall give notice to the plaintiff that he requires such security and thereupon all proceedings shall he stayed until such security is filed or deposit made, and the plaintiff upon filing such security or making such deposit, shall give notice thereof to the defendant with the names and residences of the sureties, after such notice the defendant shall have the same time to plead that he had at the service of the notice requiring security.”

The non-resident plaintiffs contend that they are not obliged to furnish security for costs for the reason that some of the plaintiffs are residents of this state.

Before the enactment of the Practice act of 1903, the practice was quite settled that a complainant who is a nonresident would not be required to give security if he were joined with a resident, complainant. Jones v. Knauss, 33 N. J. Eq. 188. The cases were quite uniform when this case' was decided (1881) that where one of several parties plaintiff is a resident, security could not be demanded. This seems to have been the practice at common law. See the cases cited in Jones v. Knauss, supra, and 15 C. J. (at p. 193). The latter authority (page 195) holds:

“Except under some special statute or rule of court, it is' very generally held that where there are several plaintiffs in an action, one of whom is a resident, the rule requiring security for costs for non-residents, does not apply.”

In an early anonymous case, cited in 3 N. J. L. 447, it was held that a rule would not be granted to stay proceedings until security for costs were offered when some of the plaintiffs were non-residents. This case was an action in ejectment. To the same effect is the case of Den v. Boqua, 10 N. J. L. 192, where it, was held that the court would not order the plaintiffs to give security for costs upon the ground that one of the plaintiffs resided in this state. This case was also an action in ejectment.

In view of the foregoing authorities the question presented for decision is whether, under the Practice act of 1903, where non-resident plaintiffs, evidently for their own convenience, joined in a suit arising out of an automobile accident with resident plaintiffs, are required to furnish security for costs. There appears no reported decision in this state deciding this precise question. The statute requiring security for costs is remedial and in order to effect its object, should be liberally construed.

The proposition to be settled is not what the practice was before the enactment of the Practice act of 1903, but how the practice has been effected by the enactment of that act. The intention expressed in section 204 of the Practice act of 1903 seems to be that if the plaintiff resides out of the state, he shall, if required at any time before notice of trial, give bond to the defendant in the sum of $100 with sufficient sureties resident in this state with condition to prosecute his action with effect and to pay costs if he discontinue, be nonsuited or a judgment passed against him. This means any non-resident plaintiff whether joined with resident plaintiffs, as in the instant case, or where they are the sole parties plaintiff.

The language of the statute warrants this construction, and it is a wholesome one, that a non-resident bringing a suit in the courts of our state should be required to give security. If a different construction is placed upon this statute, all a non-resident, would have to do in order to avoid furnishing security for costs would be to join with him in his suit, a resident who might be impecunious and a condition may prevail where he might bring many suits encumbering our calendars and in the event of defeat leave the defendant without even the inadequate compensation of the taxed costs.

The non-resident plaintiffs in this case could have brought separate actions against the defendant. Evidently for their own convenience or the convenience of themselves and the resident associates in suit, they included their claim in one and the same action. Notwithstanding this joinder of parties, each party sues under a distinct and separate count. A matter of convenience to the plaintiff litigants should not deprive the defendant of the safeguards granted to him by the statute. The court will sign an order requiring the nonresident plaintiffs to furnish costs as required by section 204 of the Practice act. Pamph. L. 1903, p. 590.


author: Minisi, J.

text:
    Second Judicial District Court of Essex County.
    EDWARD HOPKINS, PLAINTIFF, v. JOHN PARSONS AND WILLIAM PARSONS, TRADING AS PARSON BROTHERS, DEFENDANTS.
    Decided March 4, 1932.
    Eor the plaintiff, Nathan A. Rubin.

    Eor the defendant, Richard Spitz (Otto E. Riemenschneider, of counsel).
   Minisi, J.

This matter came on to be heard before a referee who had heard and advised a disposition of the matter on the facts, but submitted to the court a question of law raised by counsel as follows:

“Mr. Eiemenschneider: I want to move to strike out the complaint because the court has no jurisdiction in this action which is one “in tort,” and the statute was made for cases “on contract.”

An examination of the pleadings discloses that the original summons or notice is styled not “on contract,,” nor “in tort,” but “action at law.” The statement of claim, however, alleges that the plaintiff claims a judgment of fifty dollars ($50) from the defendant by reason of an automobile collision in which his automobile was damaged by the automobile of the defendant. There seems to be no doubt that, whether this is called an “action at law,” or by any other term, it is actually a cause grounded “in tort.” The question now before the court is whether or not the division of small claims has jurisdiction in actions ex delictu.

The small claims division in the District Court owes its existence to a statute. See Exkman’s District Court Prac tice (4th ed.), § 35-c. or Pamph. L. 1936, p. 373, § 3. Section 3 of the act reads:

“Jurisdiction of small claims division of said District Court shall he co-extensive with the District Court as now constituted where the debt, balance, penalty, damage, or other matters in dispute do not exceed, exclusive of cost, the sum of fifty dollars. The said division also shall have jurisdiction of suits in replevin where the value of the article to be replevined shall not exceed the sum of fifty dollars, as shown by the affidavit of value; and the practice in replevin suits shall be the same as that now followed in the District Court. Supplement, Pamph. L. 1936, p. 373, § 3.”

The case at bar does- not involve a “debt,” a “balance” not a “penalty,” but it does involve “damage,” and as the act gives jurisdiction to the division where there is “damage” not over the sum of fifty dollars ($50), it will be of interest to see what that word means in law. The word “damage” has been defined as:

“The loss or injury which results from an unlawful act, injury or deterioration caused by the negligence, design or accident of one person to another in respect to the latter’s personal property. In a popular sense, the word frequently means depreciation in value, whether such depreciation is caused by a wrongful or lawful act; but in statutes or other legal instruments giving compensation for “damages” the word always refers to some actionable wrong—some loss, injury or harm which results from the unlawful act, omission or negligence of another.” See 12 Cyc. 1193.

I am of the opinion that by the use of the word “damage” the legislature intended to give jurisdiction to the division of small claims in actions ex delictu or “in tort.” If the word “damage” were not in itself broad enough to include suits of this kind, the legislature has further clinched the matter by the use of the words “or other matters in dispute.”

The defendant’s motion to dismiss the complaint for want of jurisdiction is therefore denied, and judgment will enter on the referee’s report in favor of the plaintiff and against the defendant in the sum of $35 damages and costs.


text:
    CATHARINE RIEBEL ET VIR., PLAINTIFFS, v. CLARENCE H. LIDDLE ET AL., DEFENDANTS.
    Decided March 22, 1932.
    Before Gummere, Chiee Justice, and Justices Parker and Case.
    For the rule, John C. Stoclcel.

    Contra, Alfred D. Antonia.

   Per Curiam.

This is an action brought to recover compensation for personal injuries suffered by the plaintiff Catherine Eiebel from being struck down by an automobile belonging to the defendants and driven by one of them. The accident happened on State street, in Perth Amboy, while she was crossing the driveway leading from that street to the railroad station of the Pennsylvania Railroad Company. Her husband joined in the suit and seeks to recover compensation for the medical expenses incurred by him and resulting from his wife’s injuries and also for the loss of her consortium. The trial resulted in a verdict of $3,000 in favor of Mrs. Riebel and $634 in favor of her husband.

The first ground upon which we are asked to make this rule absolute is that the verdict in favor of the plaintiffs is against the weight, of the evidence. We think there is no merit in this contention. The undisputed proof shows that Mrs. Eiebel who was walking along the sidewalk of State street, undertook to cross over the driveway into the Pennsylvania railroad station when she came to it, and that while doing so the defendant Pfeiffer, who was driving the car, turned from State street into the driveway without noticing her at all until he was within a few feet of her, and that he gave no warning of his intention to make this turn until it was too late for Mrs. Eiebel to avoid the collision. These facts, we think, make it plain that the accident was the rekult of the carelessness of the driver of defendant’s car, and there is nothing in them to justify the contention made on behalf of the defendants that Mrs. Eiebel was negligent in failing to observe the car as it turned into the driveway.

The only other contention is that the verdicts in favor of the plaintiffs are excessive. The amount awarded to the husband is only slightly in excess of the moneys actually expended by him in the treatment of his wife. Mrs. Eiebel was a woman sixty-one years old at the time of the accident. The injuries received by her were quite severe. Her right, knee joint was injured; she was struck on the head; and numerous parts of her body were bruised. As the result of her injuries she was confined to her bed for something like-four months, and was not able to leave her house until about, eight months after the accident. She suffered a great deal of pain and does not attempt to walk unless she uses a cane. She also suffers from psychoneurosis as a result of the accident and will probably continue to do so during the rest of her life, certainly for an indefinite time hereafter. In this, situation, we 'do not think we would be justified in saying that the award to the wife is so clearly excessive as to warrant us in setting the verdict aside.


text:
    FRANCIS A. MULVANEY, PLAINTIFF, v. KNIGHT CONSTRUCTION COMPANY, DEFENDANT.
    Decided March 22, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    For the rule, Coult, Satz & Tomlinson.

    Contra, Collins & Corbin.

   Per Curiam.

This was an action for personal injuries. The plaintiff was an employe of one Vanderhoof, his employment consisting of the driving of a truck carrying materials belonging to his employer to different places where they were to be delivered to purchasers. In July, 1929, he was driving a truck containing certain fill and other material to the Canoe Brook reservoir in Chatham, Morris county, part of which was being constructed by the defendant, the Knight Construction Company, and the material in the truck was being carried to the place where the latter corporation was engaged in its work for the purpose of being delivered to it. This truck, while at the reservoir grounds, became stuck in the mud, and the defendant undertook to pull it out by attaching to it what is known as a caterpillar tractor. While the plaintiff was fastening the chain of the tractor to the truck, the driver of the tractor, without warning, pushed it up against the truck, crushing the plaintiff, who was between these two vehicles. The trial resulted in a verdict in favor of the plaintiff, the jury awarding him $30,000 as compensation for the injuries which he received, and the only ground upon which we are asked to make the rule absolute is that this verdict is excessive.

The undisputed proofs showed that the plaintiff was twenty-two years old at the time of the accident; that at that time he was earning $39 a week as a truck driver, and on occasion moneys in excess of this compensation for work done by him on Sunday. The suit was tried one year and nine months after the accident, during all of which time he was unable to do any work whatever, and as a result, lost the wages which he otherwise would presumably have earned. The total amount of this loss is approximately $3,500. In addition to his loss of wages he was required to expend for medical services $740, and also $450 in the payment of his hospital bill. There were other incidental expenses incurred as the result of the injury, amounting to approximately $75. The total loss, including the loss of wages and the expenses referred to, approximated some $4,800, leaving the award for his injuries a little over $25,000. We are not prepared to say that this award is so plainly excessive as to justify a setting aside of the verdict. His left foot was practically torn from his leg, or at least, it was twisted around so that the bones were fractured and the foot hung down as if it was attached by a string to his leg. Repeated efforts to restore the foot and that part of the leg to its normal condition have failed; the wound became infected, and that infection had continued from the time of the accident up to the time of the trial, sometimes improving to a certain extent, and then growing worse again. He also had two severe puncture wounds in the thigh, i and another one on the inner surface of the left knee. These wounds have healed up, but for a long time caused him great pain. Notwithstanding the numerous attempts to restore the leg and foot to its normal condition, he is not able to walk except with the help of a crutch or a cane, and this condition is a permanent one. The evidence with relation to the nature of the plaintiff’s injuries was testified to by two physicians called by him, whose qualifications were undisputed, and there was no attempt made by the defendant to controvert the soundness of the conclusions expressed by these two experts. The plaintiff, in all probability, will never be able to do any work again unless he can fill a job where he is not required to be on his feet at all, and whether he has the ability to do that or not the testimony does not disclose.

Our conclusion is that the verdict should not be set aside on the ground that it is excessive.


text:
    JOSEPH LASKOWSKI, PLAINTIFF, v. EMERY MANKOVICH ET AL., DEFENDANTS.
    Decided March 22, 1932.
    Before Gummeee, Chief Justice, and Justices Pabkeb and Case.
    For the rule, Collins & Corbin.

      Contra, David T. Wilentz.

   Pee Cueiam.

The plaintiff brought suit to recover compensation for injuries received by him and resulting from his being struck and knocked down by an automobile driven by the defendant Mankovich. The accident occurred in Perth Amboy on the 30th of February, 1930, at about nine o’clock in the evening. The plaintiff was a resident of Perth Amboy, his home being located on State street in that city. He left it for the purpose of going to a bakery shop which was on the other side of the street. In going, he walked down to the corner of State and Wayne streets, and there crossed over to the side of State street upon which the bakeshop was located. He then walked down to the shop, made his purchase, and then walked along State street until he came opposite to his home, which was about half way between Wayne street and James street, the next intersecting highway, and then undertook to cross the street in the middle of the block. Before stepping off the curb he looked in the direction in which the defendants’ car was coming and saw the headlights of the car, but as he said, could not see the body of the car nor tell how fast it was going. Then, without any further observation, he started to cross the street, and when he was some four feet or more from the curb on the far side, he was struck by the defendants’ automobile which was traveling on its right side of the highway.

It is first contended as a reason for setting aside the verdict that the finding of the jury that plaintiff was not guilty of contributory negligence is contrary to the great weight of the testimony. It seems to us that his own story shows that the accident was largely the result of his own negligence. He observed the car coming, he was not able to tell the speed at which it was traveling, and then undertook to cross over the street without making any further observation, making no attempt to see whether the car was approaching so rapidly as to be a threat of danger to him. The speed of the ear, as the uncontradicted testimony on the part of the defendant shows, was about twenty miles an hour, and that was not in excess of the speed allowed by the traffic law at a location like that where the accident happened.

It is also urged, as a reason for setting aside the verdict, that it is excessive. The jury awarded the plaintiff $6,000 as compensation for the injuries received by him, plus the amount expended in the treatment of his injuries, to wit, $241. The injuries included a fracture of the right ankle, a laceration of the scalp, and also two ulcers which developed on the leg as a result of the fracture thereof. As a result of the fracture the plaintiff walks with a limp, and according to the testimony of the physicians, this is a permanent condition. Although the verdict seems quite generous, we are not prepared to say it is so clearly excessive as to justify the court in setting it aside on that ground as well as on the ground of contributory negligence.

For the reason first indicated, our conclusion is that the rule should be made absolute.


author: Peb Citbiam.

text:
    GENERAL EQUIPMENT COMPANY, APPELLANT, v. HARRY H. ZEIN ET AL., RESPONDENTS.
    Decided March 22, 1932.
    Before Gttmmeke, Chief Justice, and Justices Paekeb and Case.
    For the appellant, Jacob Lipman.

    For the respondent, Feder & Binder.

   Peb Citbiam.

This was an action in replevin. In September, 1928, the General Equipment Company sold by a conditional sales agreement a steam shovel to the “Gordon Engineering Company, of Clifton, New Jersey, a New Jersey .corporation.” The agreement was signed, so far as the purchaser was concerned, by “Gordon Engineering Company, Dudley Gordon.” It had attached to it an affidavit made by Dudley Gordon which contained a statement that he was the president of the Gordon Engineering Company, the purchaser of the steam shovel, and was familiar with its corporate seal, and that the same was affixed to the instrument as the voluntary act and deed of the corporation. Subsequent to the sale of this steam shovel under the conditional sales contract, the defendant Zein entered into the emplojr of Gordon, and the latter, having failed to pay him the compensation earned by him, agreed to turn over to him in discharge of his obligation this steam shovel. Gordon failed to do this, and then Zein sued out an attachment, against the steam shovel. When the General Equipment. Company learned of the situation, and also was informed that the alleged purchaser of the steam shovel had no legal existence—that is, that there was no such corporation as that named in the conditional sales contract as the purchaser—which was the fact, it brought the present action of replevin to recover the possession of the steam shovel. The case was tried before the court, without a jury, and resulted in a finding in favor of the defendant Zein, principally upon the ground that the General Equipment Company had failed to file the conditional contract of sale within the ten days required by the statute.

It seems to us that this was erroneous. Gordon never had any title whatever to this steam shovel. He obtained possession of it through a fraud perpetrated by him upon the General Equipment Company; that is, by representing that he was acting for a corporation known as the Gordon Engineering Company, of Clifton, New Jersey, in negotiating the purchase. He completed the fraud by executing the conditional sales contract in the name of the corporation and falsely swearing that he was its president. In this situation, it seems to us, the General Equipment Company was-entitled, at any time alter discovering the fraud and learning that it had sold the steam shovel to a non-existing purchaser, to retake possession thereof, and that the conditional sales statute has no relevancy to the present situation. If we are right in this view, then the trial court was in error in finding in favor of the defendant and directing judgment to be entered on such finding.

The defendant below, and the respondent here, claims that this matter is not properly before us because there was no exception taken to the refusal of the plaintiff’s motion to direct a finding in its favor, and that, unless there was such exception, no appeal will lie. We think this contention is without merit. The case was tried in February, 1931, and at the close of the case there was a motion made by each party for a favorable finding. Ho action was taken upon these motions until April, when the court filed a memorandum holding that the motion of the defendant Zein should be granted and that a judgment should be entered in his favor. The principal ground of appeal is that the trial court erred in directing such a judgment to be entered instead of directing a judgment in favor of the appellant. In the case of Smith v. Cruse, 101 N. J. L. 82, the Court of Errors and Appeals held that where the trial court sits without a jury it cannot enter judgment for one party without finding in favor of that party, and that, there is no requirement that the defeated party must have made a request for a finding of law or fact and excepted to an adverse finding in order to secure a reversal ■of the judgment, and that an appeal is given to him as a matter of right although he did not submit the grounds for objection to the trial court, where the objection relates ■only to the final judgment and not to alleged errors occurring in the proceedings on the trial.

For the reasons indicated, we conclude that the judgment under review should be reversed.


text:
    GUSSIE BLAND, APPELLANT, v. DAVID GROSS, RESPONDENT.
    Decided March 22, 1932.
    Before Gummere, Chiee Justice, and Justices Parker and Case.
    Eor the appellant, Meyer C. Ellenstein.

    For the respondent, Charles Btockdell Gray.

   Per Curiam.

Mrs. Bland was a tenant of an apartment in premises located on Court street, in the city of Newark, and owned by the defendant, Gross. There was no written lease. She rented the premises, however, for a specified sum, to be payable monthly, upon the condition that the defendant, as landlord, would keep the apartment in repair during her tenancy. During the latter part of April, 1931, the ceiling in the kitchen of the apartment cracked and became defective. On the 1st of May she notified the defendant of this condition, and he then promised to make the necessary repairs so that the kitchen would be safe for occupation. She again called his attention to the condition of the ceiling on May 15th, he not having as yet repaired it, and he again promised to do so. Six days later, the defendant not having performed his promise to repair it, the ceiling broke, falling upon the plaintiff and quite severely injuring her. The present suit was brought, to recover compensation for the injuries which she received. At the close of the plaintiffs case counsel for the defendant moved for a nonsuit on the ground of assumption of risk by the plaintiff and of contributory negligence on her part, and this motion was granted, the court holding that the plaintiff, being aware of the dangerous condition of the ceiling, assumed the risk of injury which might result therefrom; and, further, that she was negligent in using the kitchen while the ceiling was in danger of falling as a result of the breaks therein. From the judgment entered in accordance with this ruling the plaintiff has appealed.

It seems to us that this ruling was erroneous. In the case of Ionin v. E. D. & M. Corp., 107 N. J. L. 145, Mrs. Ionin was placing some dishes in her pantry when the ceiling fell,upon her, causing personal injuries, and she brought suit to recover compensation therefor from the landlord. The condition of the ceiling was due to the lack of repair of the roof, through which the rain drifted and rotted away the ceiling. The defendant had its attention called to the situation some little time before the accident by Mrs. Ionin, and promised to make the necessary repairs to the premises. This, however, it, failed to do prior to the happening of the accident. The Court of Errors and Appeals held that, although as a general proposition, where the tenant had knowledge of the defective condition of the premises and continues thereafter to occupy the same, he is considered to have assumed the risk, and in case of injury resulting from such defects he is held guilty of contributory negligence, this rule is not applicable where the landlord has promised to make repairs after his attention has been called to the defective condition of the premises and he has failed to keep that promise, the court stating that “the promise to repair after the landlord has had its attention called to the defective condition would relieve the tenant from the burden of assuming the risk during such time as would reasonably appear proper for the repairs to be made and the promise of the landlord to be fulfilled.” If the plaintiff did not assume the risk of injury during such time as would reasonably appear proper for the repairs to be made, it follows, by implication, that she would not be guilty of contributory negligence in using the kitchen during that time.

It seems proper to add that what would be a reasonable time within which the landlord should make such repairs is a question of fact, to be determined by a jury.

Considering the case cited as controlling, our conclusion is that the judgment under review should be reversed.


author: Pee Cuelul

text:
    STATE, EX REL. JOHN KLAIR AND WALTER COMER, APPLICANTS, v. HARRY BACHARACH, RESPONDENT.
    Submitted March 4, 1932
    Decided March 24, 1932.
    Before Justices Trenchard, Daly and Donges.
    For the applicants, Samuel Morris.

    For the respondent, Merritt Lane.

   Pee Cuelul

Applicants seek leave oí this court, to file ail information in the nature of quo warranto, as citizens and taxpayers, under section 1 of the Quo Warranto act. 3 Comp. Slat., p. 4210.

The applicants assert that the respondent has for about, twenty months, or since July 10th, 1930, unlawfully held, used and executed the office of a member of the board of public utility commissioners of this state. The respondent was appointed as such utility commissioner on March 23d, 1929, duly qualified and has acted since that date. A vacancy occurring by the death of Mayor Buffu, of Atlantic City, the remaining four city commissioners elected respondent as commissioner for the unexpired term of the late Mayor Buffu. He took oath as a commissioner of Atlantic City on July 10th, 1930, and was selected by the city commissioners as mayor on that day.

The applicants assert that, since his selection as mayor of Atlantic City, the respondent unlawfully continues in the office of utility commissioner, and assert that this is so for the following reasons:

1. By reason of the express law. Pamph. L. 1911, p. 375, § 9-

2. The two offices are incompatible.

3. By accepting the position of mayor, Mr. Bacharach forfeited his position as public utility commissioner.

The statute of 1911 (2 Cum. Supp. Comp. Stat., p. 2878), in the first section, provides:

“There shall be a commission vested with the powers and duties hereinafter specified, which shall consist of three persons, citizens of this state, not under thirty years of age, who shall be appointed by the governor, by and with the advice and consent of the senate, and who shall constitute and be designated and known as the board of public utility commissioners. Fot more than two of said commissioners shall be members of the same political party.”

Section 9 provides:

“Fo member or employe of said board shall have any official or professional relation or connection with, or hold any stock or securities in, any public utility as herein defined, operating within the State of New Jersey, or hold any other office of profit or trust under the government of this state or of the United States.”

It is the provision that “no member * * * shall * * * hold any other office of profit or trust under the government of this state,” that applicants invoke as disqualifying the respondent.

It will be observed that the interdiction of the statute is not against the holding of any other office, or of any other public office, or of any other office of profit or trust, but against the holding of any other office of profit or trust under the government of this state. The legislature confined its prohibition to offices “under the government of this state.” If the legislature had intended to exclude the holding of any other office of profit or trust, it could easily have done so by the use of appropriate language. It would have been easy to provide that the incumbent should not hold any other office, whether under the government of this state or of any municipality. It must be' assumed, therefore, that the legislature intended the limitation to extend no further than the language used reasonably imports. Since the selection of respondent as a city commissoner of Atlantic City, and his designation as mayor thereof, the legislature has been in session, and, indeed, now is in session, but no one has sought to have the prohibition now urged extended in unmistakable language by legislative action.

We think there is grave doubt that the prohibition extends beyond offices that are state offices as distinguished from municipal offices. Nor are we persuaded that the office of mayor of a municipality is such an office as falls within the class designated by the statute in question. As a matter of fact, it appears that the office to which respondent was elected was that of a city commissioner. He was selected to act as mayor, but all duties are assigned to him as commissioner, and do not devolve upon him as mayor.

Applicants urge that because the mayor may be called upon to act as police judge (which insistment is denied by respondent as a matter of fact and as a matter of law), that he thereby becomes an officer under the government of the state. It has been held that the office of a police justice or judge of a police court is a municipal office and not a state office. Perry v. Bianchi, 96 N. J. L. 113.

The applicants assert that, without regard to the statute, the two offices occupied by respondent are incompatible under the common law. We think there is grave doubt whether this question may be raised against respondent, in view of the legislative declaration as to what shall disqualify a member of the board of public utility commissioners. The legislature has expressly stated what other offices may not be held, and it would appear to follow that any office not falling within the designated class is to be deemed not incompatible with the office in question.

But, apart from these considerations, this court has a wide discretion in granting or withholding its permission to a desiring relator, who makes no claim to the office, in cases of this kind, even where a good objection to the title of the person whose right is called in question is shown. Mitchell v. Tolan, 33 N. J. L. 195; Houseman v. Earle, 98 Id. 379; Mulsoff v. Sloat, 8 N. J. Mis. R. 554; Reihl v. Wynne, 105 N. J. L. 507.

We are unanimously of opinion that the present case is one calling for a sound discretion resulting in a denial of the application.

There is great doubt that the applicants would be successful in the proposed effort to oust respondent. Meantime, the right of a member of an important public body to participate in the important duties assigned to that body will be in question, resulting in embarrassment and, perhaps, the slowing up of the work of the commission.

While a citizen may make such an application, we think that, in a case like this one, it would be better practice to apply first to the attorney-general to institute proceedings involving the right t,o hold such an important office. Particularly is this true where, as here, the applicants have permitted almost twenty months to elapse before taking action, and such action is sought within two months of the expiration of the respondent’s term of office as mayor. Houseman v. Earle, supra; Mulsoff v. Sloat, supra.

In a case of this kind, the public interest will be considered above the claim of a right asserted by a citizen to oust an incumbent of an office. Consideration of the possible damage resulting leads ns to conclude that the application should be denied. There will be no costs to either party.


text:
    WILLIAM DREXLER, RESPONDENT, v. GOTHAM CARD AND PAPER COMPANY, INCORPORATED, ET AL., APPELLANTS.
    Decided March 22, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Por the appellants, Mark Townsend, Jr.

    Por the respondent, Pesin & Pesin.

   Per Curiam.

This is an action brought to recover compensation for personal injuries received by the plaintiff arising out of a collision between an automobile which he was driving and an automobile belonging to the defendants. The trial of the case resulted in a verdict in favor of the plaintiff, and the defendants have appealed from the judgment entered thereon.

The only two grounds of appeal are based upon the alleged error of the trial court in overruling the defendants’ motion to strike out the answers to two questions asked by plaintiff’s attorney of a physician named Sirken, called to testify to the nature of the injuries which the plaintiff asserted he had received in the collision. The principal injuries for which the plaintiff claimed compensation were a hernia resulting from a blow in the abdomen and the partial disability of one of his arms. In the direct examination of Dr. Sirken he was asked this question: “Assuming that this individual [the plaintiff] said he had no hernia before the accident, and then received a trauma, a blow in the abdomen, and this hernia made its appearance for the first time, would you then say it was the result of the accident, assuming that you had found a post-operative hernia?” To this question the following answer was given by the witness: “I can answer that question because a trauma like that could produce a hernia at a postoperative scar.” The attorney for the defendants moved to strike out this answer on the ground that it takes into consideration possibilities and not probabilities. The court refused to strike the answer out, and this refusal is made the basis for the first ground of reversal.

An examination of the case shows that no exception was taken to the ruling of the court on the motion to strike out the answer. This being so, the question of the propriety of the judge’s ruling is not before the court for review and will not be considered. This is the rule laid down by the Court of Errors and Appeals in the case of Burt v. Brownstone Realty Co., 95 N. J. L. 457, and has been followed in numerous earlier cases which are cited in that opinion.

The other ground urged for reversal is that the trial court erred in overruling defendants’ objection to the following question asked of Dr. Sirken by plaintiff’s attorney: “Doctor, if he had had this accident do you say that this arm condition could come from such a trauma as described?” The question was objected to, the objection was overruled and an exception duly taken to the court’s action in permitting the question to be answered. We see no error in the court’s ruling, but if we had reached the opposite conclusion, that fact would not justify a reversal of the judgment before us for this reason: The question was asked of the witness on his re-examination following the cross-examination by the attorney of the defendants. In the cross-examination the witness was asked the following question: “As to the condition of the arm you observed certain things, did you not? A. Yes. Q. And from your observation could you definitely state that there was an impaired function of the arm? A. Yes, I could. Q. Without knowing the history, doctor, could you definitely state what the condition of his arm was due to ? A. I could definitely state a number of causes that the condition of his arm might be due to. Q. What are some of the causes? A. Trauma. Q. What else could it be due to besides trauma? A. Some infection or disease.” The question objected to, as will be observed, was a mere repetition of the question which counsel for the defendants put to the witness on his cross-examination, and which was answered by the latter, and manifestly could not have produced any harm or injury to the defendants.

For the reasons indicated, we conclude that the judgment under review should be affirmed.


text:
    OTTO BISHOP, PLAINTIFF-APPELLEE, v. HARRY CADMAN, DEFENDANT-APPELLANT. OTTO BISHOP AND FRANK SISKO, PLAINTIFFS-APPELLEES, v. HARRY CADMAN, DEFENDANT-APPELLANT.
    Submitted January term, 1932
    Decided March 28, 1932.

      Before Justices Campbell, Lloyd and Bodine.
    Por the appellant, Samuel H. Nelson.

    Por the appellees, Harry Unger.

   Pee Cueiam.

The judgments appealed from resulted from a trial of two actions growing out of the same occurrence in which the damages resulted from the collision of an automobile claimed to be owned by both plaintiffs and at the time being driven by the plaintiff Bishop, with a taxicab owned by the defendant-appellant and being operated by his servant.

The judgment in the case in which Bishop is the sole plaintiff is for damages for his personal injuries and in the other case is for damages to the automobile.

The attack upon both judgments is in the first instance that the trial court erred in refusing to nonsuit.

The first error, and one which applies to both judgments, is said to be that Bishop, the driver of the automobile, was contributorily negligent as a matter of law. But from the proofs we do not so conclude but on the contrary the state of the proofs was such as to make this a jury question and, therefore, it was not error to refuse to nonsuit on this ground.

The second error, and which, if it exists, applies only to the judgment in favor of both plaintiffs for damage to the car driven by Bishop, is that while the state of demand alleged that the plaintiffs were the owners of the car, it was, at the trial, admitted that the plaintiffs were not the actual owners but were holding and had possession of the car under a conditional bill of sale. It is conceded by counsel for appellant that there was a right of action in the plaintiffs as bailees and the whole contention appears to be that they pleaded their right to recover as unconditional owners, while the proofs upon which they have their recovery is that they were bailees. Counsel for appellant does not point out or even suggest how, if at all, he met with harmful or prejudicial error thereby.

The law does not require strict formality in pleadings in the District Court. Kennell v. Gershonovitz, 84 N. J. L. 577.

Although there Avas no amendment applied for or made at the trial, yet, Avhere the real question in controversy has been fully and fairly tried, though not precisely pleaded, and the complaining party has not been surprised or injured the reviewing court on appeal has the power to amend the pleadings in order to support the judgment and will, in such case, in the interest of justice, exercise the power. Levenson Wrecking Co. v. Gatti-McQuade Co., 93 N. J. L. 184.

The next ground is that the court erred in refusing to strike out all the evidence concerning property damage. This motion was made upon the ground that the plaintiffs were not the absolute owners as alleged in the state of demand but, as shown by the proofs, conditional owners or bailees. There was no error for the reasons stated under the last above mentioned ground.

Finally it is urged that the trial court erred in charging the jury that the plaintiffs alleged that they were seeking to recover not as owners but as bailees.

The conclusion reached respecting the last two grounds of appeal is applicable here.

The judgments appealed from are affirmed, with costs.


author: Campbell, J.

text:
    SEVENTY-FIRST STREET AND BROADWAY CORPORATION, v. THOMAS R. THORNE.
    For the plaintiff, Insley, Vreeland and Decker.

    For the defendant, Wall, Haight, Carey £ Hartpence.

   Campbell, J.

The defendant holds a rule calling upon the plaintiff to show cause why the levy made upon the pension fund of the International Mercantile Marine Company should not be vacated.

The judgment under which the execution in question issued was taken by default in a proceeding in attachment. Thereafter a scire facias issued and was served upon the International Mercantile Marine Company and the trustees of the pension fund of that company. To this a return was made seting up, among other things: “(a) that under the rules and regulations governing said pension fund, the defendant, Thorne, has no right or credit therein which is subject to attachment or execution; * * * (c) that said fund is exempt from attachment, execution, levy or seizure by any alleged creditor of the defendant as a beneficiary of said fund.”

The plaintiff moved to dismiss the return and the matter came on before and was heard by Judge Ackerson, sitting as Supreme Court commissioner, who filed his conclusions in this court. His conclusion is “for the reasons already stated, I am forced to conclude that the defendant has no right or credit in the pension fund in question, and that the funds sought to be reached are exempt from garnishment.”

A judgment denying the motion to strike out the before mentioned return was duly entered in this court on January 29th, 1932. 9 N. J. Mis. R. 99.

On February 2d, 1932, an execution was issued out of this court under the same judgment in attachment under which the scire facias before referred to had issued and the sheriff of Hudson county made the following levy:

“Levied on pension fund money due and to become due to the above named defendant, Thomas E. Thorne, from the International Mercantile Marine Company pension fund levy made by serving Edward F. Briggs, secretary, Hudson Trust Company, agent for International Mercantile Marine Company, February 2d, 1932.” Thereupon the rule now before me issued.

It appears beyond question that under the motion to set aside the return to the scire facias and by the judgment thereunder it was definitely and decisively found and settled that the pension fund in question was not subject to attachment, garnishment or levy.

While that judgment stands it is dispositive of the question before me under the present rule to show cause, which rule will be made absolute and the levy under the execution vacated and set aside. A proper rule, in consonance herewith, may be presented for signing.


author: Eldredge, C. C. J.

text:
    WILLIAM E. ROBB, PLAINTIFF, v. SHORE BUS TRANSPORTATION COMPANY, DEFENDANT.
    Decided March 26, 1932.

      Before Eldredge, Circuit Court judge.
    Eor the plaintiff, Milton G. Nurock.

    For the defendant, Gurry £ Purnell.

   Eldredge, C. C. J.

Summons in the above entitled suit was dated October 9th, 1931, but service of the summons and complaint was not made until October 23d, 1931, and not filed until November 13th of the same year. On October 15th, 1931, the defendant served a summons and state of demand on the plaintiff in a suit begun in the Camden City District Court, involving the same cause of action. The summons was returnable in the Camden City District Court on October 22d, 1931. Trial was had in the District Court on the 23d day of December, 1931, and at its conclusion, the court found in favor of the defendant.

After the return day of the summons in the District Court but before trial therein, the defendant filed its answer in the present suit. In reply to the second separate defense alleged in the answer of the defendant, the plaintiff says that the matter is res adjudicata.

Counsel for the defendant now moves to strike out that part of the reply concerning res adjudicata> and relies upon the case of Bergin v. Ganley, 107 N. J. L. 242; 154 Atl. Rep. 131. In that case, the Chief Justice who rendered the opinion, had the following to say:

“It may be conceded that a judgment recovered in a court of competent jurisdiction is res adjudicata as to a suit subsequently begun in another court involving the same facts and the rights and obligations of the respective parties resulting from those facts. But, although this may be considered to be a settled principle of law, an inferior court cannot deprive a higher tribunal of its jurisdiction to hear and determine a suit pending therein by taking cognizance of the same cause of action in a suit begun subsequent to the institution of that pending in the higher court. * * * In our opinion, the Supreme Court once having obtained jurisdiction of the parties and the subject-matter, cannot be deprived thereof by any such procedure.”

Counsel for the plaintiff and the defendant differ as to the interpretation to be placed upon the above pronouncement of the court. The former contends that the only question to be decided is whether the Supreme Court had jurisdiction of the parties and the subject-matter prior to the time when the Camden City District Court acquired jurisdiction, and that the Supreme Court could not acquire jurisdiction of the subject-matter of the suit until the cause was actually at issue. To this the latter replies that it is true that the Supreme Court must have acquired jurisdiction of the subject-matter of the suit, but that such jurisdiction is acquired when the suit is commenced, and that the suit is commenced when the summons is dated and signed by the attorney.

Discussing for a moment the position of counsel for the plaintiff, it may be true that the court does not acquire jurisdiction over the person of the defendant until service is made upon him, but that does not prevent the acquirement of jurisdiction over the plaintiff and over the subject-matter of the cause of action. Jurisdiction over the plaintiff and the subject-matter is acquired when suit is instituted by the plaintiff and summons issued, and that time is the commencement of the action. The only evidence before this court with respect to the issuance of the summons is its date, and for the purposes of this motion, that date is the date of the issuance. “The date is prima facie evidence that it was then issued.” Updike et al. v. Tenbroeck, 32 N. J. L. 105.

In the case of Whitaker v. Turnbull, 18 N. J. L. 172, the court said:

“I think the rule was correctly laid down at the Circuit: That when a writ is issued out of the office of the clerk or of the attorney acting, as is largely the practice in this state [at least, permissively] as agent or deputy of the clerk, in good faith for the purpose of being served or proceeded on and that purpose is not afterward abandoned, it is for all material purposes the actual commencement of the suit.”

We think that counsel for the plaintiff is placing too literal an interpretation upon that portion of the opinion in the case of Bergin v. G-anley, where the Chief Justice states: “In our opinion, the Supreme Court once having obtained jurisdiction of the parties and the subject-matter, cannot be deprived thereof by any such procedure.” This statement must be read in connection with other statements contained in the opinion, particularly that portion which reads that “an inferior court cannot deprive a higher tribunal of its jurisdiction to hear and determine a suit pending therein by taking cognizance of the same cause of action in a suit begun subsequent to the institution of that pending in the higher court.”

In the opinion of the court, the doctrine of Bergin v. G-anley is to be applied when once suit has been instituted, and that time appears to be well settled. In Updike et al. v. Tenbroeck, above cited, the same court said: “And in Massachusetts, the general doctrine is held that the day of the date of the writ is the commencement of the action, and particularly so where the statute of limitations is in question. Unless it should appear that the date was untrue * * * the writ in this case was clearly issued on the 25th day of June, 1859, before the three months had expired, in good faith, to be prosecuted, and that purpose was never abandoned, although the service was delayed to hear from the executors or their attorneys—the suit was commenced when the writ was issued—the date is prima, facie evidence that it was then issued, and there are no facts to contradict it or to show that the attorney of the plaintiff intended otherwise than that it should be the actual suit for the claim.”

Appljdng these principles to the case at bar, the Supreme Court obtained jurisdiction of the subject-matter of the suit on October 9th, 1931, which date is prior to the institution of the suit in the District Court, and of that jurisdiction it could not thereafter be deprived.

The motion to strike the reply concerning res adjudicaba will be granted.


author: Lawrence, S. C. C.

text:
    ETHEL B. LORD AND ELMER LORD, Jr., PLAINTIFFS, v. PAUL FREDERICI, ATTILIO PACCHIAROTTI, JESSE PACCHIAROTTI, GALLO BROTHERS, INCORPORATED, THE TOWN OF DOVER, A MUNICIPAL CORPORATION, AND ASSOCIATED GAS AND ELECTRIC SYSTEM, A CORPORATION, DEFENDANTS.
    Decided March 28, 1932.
    For the plaintiffs, Elmer W. Bomine.

    For the defendant, Samuel C. Meyerson.

   Lawrence, S. C. C.

This is a motion addressed to me as a Supreme Court commissioner, in behalf of the defendants Frederici, Pacchiarotti and the town of Dover. Incorporated in the notice is an application to strike an amended complaint, served, it appears, as in an original suit, with a summons in the usual form to all the defendants, on the ground that another and prior action is still pending, embracing the same subject-matter; that the second suit is vexatious and filed to harrass and annoy defendants; that the complaint does not set forth a cause of action, in that it alleges no violation of any duty owing plaintiffs by defendants or specify wherein they were negligent; and finally, as a part of the notice of the motion, is a further application to non pros. the first suit-—so-called—on the ground that it has not been noticed for trial for two or more successive terms of the Morris Circuit. Evidently the latter is intended to be submitted to me as the trial judge. I so consider it.

On July 18th, 1930, plaintiffs brought suit against the defendants Frederici, Gallo Brothers, Incorporated, and the town of Dover, alleging in the complaint, that on or about December 19th, 1929, Frederici was the owner of a certain building on West Blackwell street, in the town of Dover, in front of which was a sidewalk, a portion of which had been removed and an excavation made; that this excavation had been negligently permitted and allowed to remain in a dangerous condition, especially in the night time, without any warning or notice of its presence, so that while Mrs. Lord was walking along the sidewalk, without any negligence on her part, and unaware of its torn-up condition, she fell and was injured.

The defendants were charged, in separate counts, with being responsible for making the alleged excavation and negligently failing to guard it. Answers were filed and the case noticed for trial at the October term of the Circuit, as a Supreme Court issue. It was either not moved or reached, and does not appear to have been again noticed or carried over. The reason may be indicated by the fact that in the fall of 1931, counsel for plaintiffs applied to Mr. Justice Parker for leave to bring in as additional defendants the Pacehiarottis and Associated Gas and Electric System, a corporation. The application was granted, but instead of amending the original complaint, and following the procedure pointed out in the Practice act, a new suit was instituted on November 27th, 1931, in which all of the present defendants are named as parties and charged separately with negligently causing the excavation in question and in leaving it improperly protected as to the plaintiff, Mrs. Lord, and others having a lawful right to use the sidewalk. This suit is at issue, but whether it was so in time to have been noticed at the January term, 1932, does not appear and no point is made of it. It is assumed that it will be regularly noticed for trial at the May term of the Circuit.

Since the new suit was brought within the statutory period, it is supposed that the first has been abandoned and that a discontinuance will be entered. If this is done, as it should be, then the purpose of the present motion fails or becomes unnecessary to pursue, and the pending suit may go to trial. The criticism of the so-called amended complaint is not found to be justified; it does set forth a cause of action sufficiently, and while it may be that the proofs offered under it may not be adequate to fix liability on any or all of the defendants, that question cannot be disposed of by motion in advance of trial.

So far as the motion relates to the complaint in question, the application to strike will be denied; that part of it based on the pendency of the first suit covering the same subject-matter as the second is not regarded as properly before me as a Supreme Court commissioner; and the application to non pros, tlie former for failure to notice it for trial for four terms will be granted by me as the trial judge at the Circuit, unless a discontinuance be entered within ten days from the entry of the rule which may be submitted in accordance with the disposition of the motion here indicated. Costs to abide the result of the suit.


text:
    IZZE GOLDSTEIN, PLAINTIFF-APPELLEE, v. PAUL KOERNER, DEFENDANT-APPELLANT.
    Submitted January term, 1932
    Decided March 28, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Frank J. Davis.

    For the appellee, Aaron Heller.

   Per Curiam.

This was an action to recover for the performance of certain tile work; the state of demand being in two counts, the first alleging a right of recovery under an express contract fixing the price at $300 and the second seeking recovery for the reasonable price and value of the work which was alleged to be $300.

The defendant below filed specifications of defense admitting the making of the express contract for $300; asserting that the work was not done in accordance with the plans and specifications but that it was performed in an unworkmanlike manner and was valueless and that the entire work would have to be torn out and replaced. The defendant also filed a counter-claim setting up substantially the same facts as contained in his specifications of defenses but adding thereto that the tearing out and replacing of the work would cost $350 which amount he, the defendant, claims from the plaintiff.

The cause was tried without a jury and resulted in a finding in favor of the plaintiff for $225. Prom the resulting judgment the defendant appeals.

His entire argument is that there was no proof before the court below upon which the judgment can rest.

Counsel concedes that the rule of substantial performance is applicable but insists that there is no proof that the work was so performed.

But from the state of case agreed upon we conclude that there was proof warranting the trial court in so concluding. That being the situation the judgment below is affirmed, with costs.


author: Brown, S. C. C.

text:
    WILLIAM C. EGAN, PLAINTIFF, v. JAMES V. HEMINGWAY, ERNEST EVANS AND WILLIAM HEMINGWAY, DEFENDANTS.
    Decided March 31, 1932.
    For the plaintiff, Wall, Haight, Carey <& Hartpence.

    For the defendants, Nathan H. Berger.

   Brown, S. C. C.

The questions submitted for determination are presented on the plaintiff’s motion to strike out the defendants’ answer as being both sham and frivolous. The grounds for the motion are not properly pleaded (National Surety Co. v. Mulligan, 105 N. J. L. 336); nevertheless, the motion may be considered on either ground if supported by the pleadings or the affidavits. Sculthorpe v. Commonwealth Casualty Co., 98 Id. 845.

The suit is brought on two promissory notes; one dated April 9th, 1931, in the sum of $4,000, paj^able to Dennis Grundy on July 30th, 1931, at the Franklin Trust Company, Paterson, New Jersey, and signed by the defendant James V. Hemingway as maker and endorsed by the other defendants and H. Millan, Jr., and the payee Dennis Grundy. The other note in the sum of $6,000 is dated June 17th, 1931, payable within ninety days to Millan at the Peoples National Bank of Belleville, New Jersey. The maker is Grundy and is endorsed by Millan and the other defendants. Both notes were discounted before maturity at the J. Henry Schroder Trust Company of New York City, and were duly presented for payment which was refused and thereupon protested for non-payment.

Both notes were endorsed to the plaintiff after maturity. The making and delivery of the notes as well as the signatures of all parties; the discounting before maturity by the Schroder Trust Company and the due presentment for payment; the refusal to pay and the due protest for non-payment are not denied. The defendants deny that they are liable on the notes and assert as a defense that the plaintiff “having taken the notes after maturity is not a holder in due course” and that the Schroder Trust Company discounted the notes with knowledge of infirmities which are chargeable to the plaintiff.

It is charged in the answer that those infirmities consist in that Millan “conspired” with one Berozza “to falsely and fraudulently represent to the defendants that Berozza had brought in oil wells on lands in Mexico;” which produced oil in large quantities. That if the defendants and Grundy would endorse and deliver the note to Millan “the defendants would acquire valuable royalty rights in said oil wells,” and that the proceeds of the notes or one of them would be used to develop the oil lands. It is further asserted that Millan “represented to the defendants that said Berozza was very wealthy and that a note from him payable to defendants would insure the latter against loss in the ventures.

The defendants say they relied upon those representations “without knowledge of their falsity” and executed and delivered the notes ’ to Millan. That one Thomas Shields, a trust officer of the Schroder Trust Company, “assisted” Millan in discounting the notes in the trust company “with full knowledge of the circumstances under which Millan obtained said notes.” It is also alleged that since the notes were discounted the defendants have since learned that the Millan “representations” were false and that Shields knew this before the notes were discounted and that the knowledge of Shields is chargeable to the Schroder Trust Company and renders its title to the notes defective. Another defense asserted is that in November, 1931, the Schroder Trust Company agreed with the defendants that if the latter' “would procure” the Samoa Gold Mines Corporation to assume the payment of the notes the defendants were to be relieved of payment.

The affidavit offered by the defendants jointly in support of their contention is singularly silent in not alleging that the defendants were actually deceived or defrauded by Millan or that the oil wells had not been “brought in” or that the defendants had not acquired valuable royalty rights or that the proceeds of the notes were not used as charged.

The affidavit of the defendants fails to show that Millan actually swindled the defendants; it also fails to show that Millan succeeded in swindling the defendants in procuring their signatures to the notes.

It is a well settled rule of law that in pleading fraud the facts relied upon to establish fraud should be set out and that mere allegations of fraud or mere misrepresentation are insufficient. Connor v. Dundee Chemical Works, 50 N. J. L. 258; Schuler v. Southern Iron and, Steel Co., 77 N. J. Eq. 70.

The affidavit of defendants does not disclose a false reprer sentation made to them; known to be false by the person making the representation and believed to 'be true by the defendants and acted upon by them to their disadvantage. This conclusion is evidently supported in part by defendants in their brief for they rest their charge against Shields as “entirely a question of scienter” which assertion presents the material part of the defense; that is, whether the Schroder Trust Company’s title to the notes is defective because of the alleged knowledge or scienter, as it is termed, of Shields. This question must be resolved against the defendants for the reason that they have failed in the affidavit submitted to prove that any fraud or deceit was actually committed to the knowledge of Shields.

While the defendants allege that a fraud was practiced upon them they fail to furnish proof to support their conclusions. Assuming Shields did have knowledge of the alleged misconduct of Millan, that knowledge is not chargeable against the Schroder Trust Company for Shields in having the notes discounted would be acting to promote his own interest and against the interest of the trust company. In such a situation he would in effect be a stranger to the trust company and his knowledge would not be imputable to it.

Where an officer of a corporation deals with the corporation in a matter in which his interest is opposed to the interest of the corporation he does not in such transaction represent the corporation so as to make his knowledge the knowledge of the corporation. De Kay v. Hackensack Water Co., 38 N. J. Eq. 158; First National Bank v. Christopher, 40 N. J. L. 435.

The motion to strike the answer will be allowed on the ground that the answer is sham. The plaintiff also moves for summary judgment. As the case now stands there appears no defense to the plaintiff’s claim and the making of the note^ the receipt of the proceeds and the proper presentation for payment and the non-payment are all conceded. The jurisdiction to grant the motion for summary judgment lies with a Supreme Court justice.


author: Porter, S. C. C.

text:
    ALEXANDER F. REID, Jr., PLAINTIFF, v. NORTH PARK AND DODD TRUST COMPANY, DEFENDANT.
    Decided March 31, 1932.

      For the plaintiff, Alexander F. Reid, Jr., pro se.

    For the defendant, William H. Osborne and Rudolph A.. Huebner.

   Porter, S. C. C.

The trial of this case resulted in a verdict by a jury in favor of the plaintiff of $12,500. This motion is for a new trial on the ground of newly discovered evidence.

The plaintiff is an attorney-at-law. He performed certain services in connection with the organizing and establishing of the defendant bank corporation under the laws of this state. His suit is to recover the value of his services and certain expenses incurred by him.

The matter was referred by this court to Supreme Court Commissioner Van Blarcom who heard testimony and reported in favor of the plaintiff and found him entitled to the sum of $2,900.56. The defendant appealed from this finding.

The case came on for trial before Judge Smith who declared a mistrial after hearing some of the plaintiff's testimony.

At the trial before me it developed that the plaintiff did perform services over a considerable period of time in organizing and establishing the bank; that he encountered difficulty in obtaining a charter and a certificate to do business from the commissioner of banking and insurance; that with the approval of his associates he engaged other counsel to assist in the matter, and paid him a fee for his services of $10,000. Later on, the necessary certificate not having been received from the commissioner of banking and insurance, mandamus proceedings were instituted to compel the said commissioner to issue the certificate. This certificate was finally obtained and the defendant commenced, and has continued since, to do business. It further developed that no bill for services or expenses was rendered by the plaintiff to the defendant until after this certificate was obtained and the bank had commenced to do business and a disagreement had arisen between the plaintiff and his associates. The bill was not paid.

The defendant says that no agreement was ever made to pay for any of plaintiff’s services hut that, on the contrary, it was understood that he was rendering the services in consideration of being retained by the defendant as counsel. Moreover, the defendant says that the plaintiff was in fact reimbursed out.of a fund raised from the sale of certain stock of the defendant bank. It is not disputed that two thousand five hundred shares of said stock were sold at $45 per share, there being a premium of $5 on each share, and that this premium fund amounted to the sum of $12,500. The disposition of this fund is very important. It is perhaps the most disputed fact in the case, and on its solution largely rests a proper decision on the issues in the suit.

This block of stock was sold by one Franklin G. MacPherson, a broker in securities, under an arrangement made with him by the plaintiff. The plaintiff says that this $12,500 was retained by MacPherson for his services and that he, the plaintiff, received no part of it. The defendant on the other hand, by several witnesses, says that this stock was sold at a premium of $5 a share under a plan evolved by the plaintiff for the sole purpose of raising a fund with which to pay the $10,000 counsel fee above mentioned and to reimburse the plaintiff for his expenses in connection with the organization of the bank, and that in fact the money was turned over to the plaintiff by MacPherson and used by the plaintiff for the said purposes. It is on this phase of the matter that the newly discovered evidence bears.

MacPherson was not a witness at the trial. The case was thoroughly tried. Presumably every bit of evidence available was presented, the trial lasting four days. The plaintiff testified unequivocally and in considerable detail with respect to this matter, and introduced other testimony as to the disposition of that fund, denying receiving any part of it. As against that testimony, several of plaintiff’s former associates testified that the plaintiff did the actual work in connection with the sale of that stock and only used MacPherson as a figurehead, MacPherson lending the use of his name as an accommodation only, and that the plaintiff did actually receive the $12,500 for the aforesaid purposes. They based their testimony to this effect on statements which they said the plaintiff made to them at the time of the transaction.

A few days afer the trial the defendant procured an affidavit from MacPherson corroborating the defendant’s version as to the disposition of this fund in every essential respect. The basis of the application for a new trial is this evidence now possessed by the defendant. It contends that this is newly discovered evidence, that reasonable diligence could not have obtained it before the trial, and that it goes to the merits of the case and is not cumulative to evidence already given.

Even assuming that this argument is sound under the facts in this case, there still remains another important element to be considered; that is the question of the effect on the issues that this evidence would have if given at a new trial. The rule is that the newly discovered evidence should “be so persuasive as to scarcely leave it debatable that the verdict is wrong.” Miller v. Ross, 43 N. J. L. 552. The court must be satisfied that the evidence is credible. Tovey v. Public Service Railway Co. 95 Atl. Rep. 265.

MacPherson’s testimony is neither persuasive nor credible, in my opinion. In the mandamus proceedings before Supreme Court Commissioner Jehiel G. Shipman, MacPherson testified under oath with precision and in detail under careful cross-examination on this very point directly contrary to the affidavit now before me. The discrepancy in his two statements, both under oath, is not with respect to unimportant details but is directly on this major important question. There can be no question, therefore, of confusion or mistake on his part, and I cannot escape the conviction that either his testimony or his affidavit is willful, deliberate perjury.

A new trial cannot be granted on any such basis.


text:
    JEAN YOUNG, PLAINTIFF-APPELLEE, v. WILLIAM RANDALL, DEFENDANT-APPELLANT.
    Submitted January term, 1932
    Decided March 29, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    Dor the appellant, James D. Carpenter, Jr.

    Dor the appellee, Thomas McNulty.

   Pee Cueiam.

This is an appeal from a judgment in favor of the plaintiff below for personal injuries resulting from her falling from an automobile operated by the defendant and in which she had been invited to ride by him.

There are three grounds for reversal submitted, two of which allege error in refusing to direct a verdict in favor of the defendant because there was no proof of negligence upon his part and the third because the plaintiff herself was guilty of negligence contributing to the happening.

It is not necessary to recite the proofs.

Our examination of them convinces us that there was no proof of negligence upon the part of the defendant-appellant which could in any wise be said to be the proximate cause of the happening. It was, therefore, error to refuse to direct the verdict. Beaching this conclusion it is unnecessary to consider the remaining ground for reversal.

The judgment below is reversed.