text:
    THE TIMKEN-DETROIT COMPANY, PLAINTIFF-APPELLANT, v. ARROW REALTY COMPANY, DEFENDANT-RESPONDENT.
    Submitted October 16, 1931
    Decided December 10, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Por the appellant, Walter A. Beers.

    Por the appellee, Samuel G. Meyerson.

   Pee Cukiam.

Appellant installed an oil burner in a boiler of the appellee the total contract price of which was $565. The burner was sold to appellee under a conditional sales contract upon which an initial payment of $50 was made, the balance payable in installments. The contract provided that $70 of the contract price was for cost of installation and also contained the following provision: “The seller has examined the heating system of buyer and guarantees that the burner will produce sufficient heat to meet the requirements of the boiler or furnace in -which it is to be installed. If the burner, after a fair trial, within three months of service following installation, does not meet said requirements, the seller agrees to remove the burner and above ground equipment and return to the .buyer the amount paid on account of the purchase price thereof, and upon such removal and payment the contract shall terminate and both parties be released from all liability thereunder, except that the buyer shall remain liable for any unpaid balance of the installation charge aforesaid.”

The burner was installed in March, 1930. The building was under construction and not completely inclosed. After using the burner for about six weeks, warm weather made its use unnecessary until the first week of the following October. On October 7th, 1930, written complaint of lack of proper functioning of the burner was' given to appellant by the attorney of the appellee.

Appellant made an effort to bring about the operating of the burner in a manner satisfactory to the appellee, but without success, and on December 16th, 1930, appellee notified the appellant, by letter, that the burner was inefficient and unsatisfactory and demanded that appellant remove it within five days and return to the appellee the $50 that had been paid upon the contract price.

Finally, appellant having refused to remove the burner, appellee did so.

On February 25th, 1931, appellant brought suit against the appellee' for the balance of the contract price of $515, waiving the excess of $15, so as to bring the cause within the jurisdiction of the District Court. The appellee filed a set-off for $50 that had been paid on account of the contract and a counter-claim of $150 for damages to the boiler because of an alleged defective condition of the burner.

The cause was tried by the District Court judge, without a jury and resulted in a finding and judgment in favor of the appellant, plaintiff below, in the sum of $20 and costs. This finding was based upon the contract provision that $70 was the cost of installation which appellant was entitled to have from the appellee upon removal of the burner. Fifty dollars, only, having been paid, the appellee was indebted to appellant for the balance of $20.

From this judgment, plaintiff below appeals and argues under ten points for a reversal.

These ten points of argument may be consolidated into three—■

1. That there was no proof justifying a rescission of the contract by the appellee.

2. That the attempted rescission was not timely.

3. The right to rescind was waived by the defendant.

All of these matters depended, for proper solution, upon the proofs, and if there were facts supporting the findings of the trial judge his conclusions will not be disturbed by this court.

We find that there were proofs supporting the finding and, therefore, the judgment under review will be affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    CARRADINO PERGOLA AND ALFRED DONNARUMMA, PLAINTIFFS, v. BERNARD LOBERMANN AND MARY T. LOBERMANN, DEFENDANTS.
    Decided December 10, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the motion, Philip Sherman.

      Contra, A. Michael Lepore.

   Memorandum.

An examination and consideration of the proofs before us in this matter brings us to the conclusion that the judgments should not be permitted to be opened.

The application is therefore denied, with costs.


author: . Per Curiam.

text:
    JOSEPH SMITH, Jr., ET AL., PROSECUTORS, v. CITY OF ABSECON CITY, APPELLEE.
    Submitted October term, 1931
    Decided December 10, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Por the rule, Samuel Levenson.

    Contra, Joseph B. Persleie and Thomas G. Siddall.

   . Per Curiam.

The allowance of a writ of certiorari is sought to review two fire ordinances of the city of Absecon.

Ten reasons or grounds are urged why such review should be had.

We find none of these presents such a debatable question as will warrant the exercise of the discretion of this court in allowing the writ.

The writ of certiorari is therefore denied and the rule to show cause discharged, with costs.


author: Pee Curiam.

text:
    GEORGIANNA POWERS GOERKE ET AL., PLAINTIFFS, v. FRANK HUBENY, DEFENDANT.
    Submitted October term, 1931
    Decided December 10, 1931.
    Before Justices Campbell, Lloyd and Bodine.

      For the rule, Arthur T. Vanderbilt.

      Contra, Edward A. Marldey and Charles Stockdell Gray.

   Pee Curiam.

This is defendant’s rule under which it is sought to set aside a verdict of $15,000 in favor of the plaintiff Edwin H. Bennett, for personal injuries, &c., received in an automobile collision that took place at the intersection of Cherry ' and Sayre streets, Elizabeth, on April 15th, 1929.

Two reasons are urged—•

1. The verdict is against the weight of the evidence.

2. The verdict is excessive.

We do not so find and the rule to show cause will be discharged, with costs.


text:
    JESSE LOBSENZ, PLAINTIFF-RESPONDENT, v. HENRY LIEBERFREUND ET AL., DEFENDANTS-APPELLANTS.
    Submitted October term, 1931
    Decided December 10, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the motion, Meyer Lobsenz.

      Contra, Samuel F. Slaff and Vincent J. Paterno.

   Memorandum.

This is a motion to dismiss an appeal from a judgment entered at the Passaic County Circuit Court on December 1st, 1930.

Notice of appeal was filed December 15th, 1930, and the state of case was served in January, 1931. Nothing else appears to have been done toward the prosecution of and bringing on the appeal for argument.

The motion to dismiss is therefore granted, with costs.


author: Pee Cueiam.

text:
    THE CITY OF EAST ORANGE, PROSECUTOR, v. ESSEX COUNTY BOARD OF TAXATION AND THE SIXTY-SEVEN SOUTH MUNN, INCORPORATED, DEFENDANTS.
    Argued December 3, 1931
    Decided December 10, 1931.
    Before Justices Teenchard, Daly and Donges.
    Dor the prosecutor, Walter G. Ellis.

    Dor the defendants, Edward- B. McGlymn.

   Pee Cueiam.

This is an application on notice for the allowance of a writ of certiorari “to review a certain tax appeal made by The Sixty-seven South Munn, Incorporated, to the Essex county board of taxation involving taxes levied by the city of East Orange for the year 1931.”

Our examination of the moving papers, after listening to the argument of counsel, leads us to the conclusion that the application for the writ must be denied, but without costs on this motion.

It is so ordered accordingly.


author: Pee Ctteiam.

text:
    LORENZO POLICASTRO, PLAINTIFF, v. MARGARET LAINO ET AL., DEFENDANTS.
    Argued December 3, 1931
    Decided December 10, 1931.
    Before Justices Tren chard, Daly and Donges.
    For the plaintiff-applicant, Kuvin & Grand.

    For the defendants-respondents, John V. Laddey.

   Pee Ctteiam.

The application was for a writ of certiorari to review an order of the Essex County Circuit Court refusing to quash a writ of attachment.

Our examination of the moving papers and of the briefs submitted leads us to the conclusion that the application for a writ of certiorari must be denied, with costs.

It is so ordered accordingly.


author: Pee Cubiam.

text:
    THE CITY OF EAST ORANGE, PROSECUTOR, v. ESSEX COUNTY BOARD OF TAXATION AND KUSKIN & ROTH-BERG, INCORPORATED, DEFENDANTS.
    Argued December 3, 1931
    Decided December 10, 1931.
    Before Justices Tbenchabd, Daly and Donges.
    For the prosecutor, Walter G. Ellis.

    For the defendants, Edward R. McGlynn.

   Pee Cubiam.

This is an application on notice for the allowance of a writ of certiorari “to review a certain tax appeal made by Kuskin & Rothberg, Incorporated, to the Essex county board of taxation involving taxes levied by the city of East Orange for the year 1931.”

Our examination of the moving papers, after listening to the argument of counsel, leads us to the conclusion that the application for the writ must be denied, but without costs on this motion.

It is so ordered accordingly.


author: Soot, C. C. J.

text:
    NELLIE M. GRACE, PLAINTIFF, v. ATLANTIC CITY AND SHORE RAILROAD COMPANY, DEFENDANT.
    Decided December 14, 1931.
    Eor the rule, Bourgeois & Coulomb.

    Contra, William I. Garrison.

   Soot, C. C. J.

Plaintiff has a verdict in her favor against defendant and the defendant has a rule to show cause why this verdict should not be set aside as being contrary to the greater weight of the believable evidence.

At the close of plaintiff’s case the defendant had the following situation to meet: Plaintiff testified that she and Mr. Hassan waited on a safety island at Tennessee avenue in Atlantic City intending to take passage on an eastbound trolley car; that the car arrived and that she and Mr. H. boarded it; that Mr. H. preceded her. Mr. H. says that as he was in the vestibule of the ear paying his fare he heard a scream and. turning, saw that plaintiff was fastened between the two car doors; that thereafter Mr. H. and plaintiff took seats within the car.

Plaintiff, in describing the manner in which her injuries were alleged to have been received, says—“the door caught me from my face and shoulder down to my hand. As I went to pull my hand out I stretched my neck and I reached for that iron railing and as I did I pulled my neck and I sprained the ligaments in my neck.”

Plaintiff distinctly says that .she was not hurt while standing on the safety island and reaching into the car in an attempt to board it; that she was not injured while on the entrance step preparatory to entering the vestibule but that she was on the platform of the vestibule with the heel of her shoes three inches inside the outer edge of the vestibule platform.

Defendant was called upon to meet the situation created by this evidence, i. e., a positive assertion that defendant had been negligent in that, after Mrs. Grace had got within the vestibule of the trolley and was standing with her heels at least three inches inside the exterior line of the vestibule platform, the conductor closed the doors of the car and thus injured plaintiff.

Defendant’s evidence demonstrated beyond question that it was a physical impossibility that plaintiff could have been injured as she says she was. The doors were double and each door swung on a middle hinge, i. e., folded in toward the vestibule platform when closing and they were an inch or more below the level of the platform so that, when they closed, they rested upon the outer edge of the platform and were stopped by it from closing further than the outer edge.

Even assuming that plaintiff was hurt, she could not have been (to use her language) “caught me from my face and shoulder down to my hand.” She could not have been caught at all after entering the vestibule, excepting as she put her hand in back of her and then, unless she turned around and faced these doors, could not possibly have been caught from her face and shoulder down to her hand.

Defendant was not called upon to show that plaintiff could not possibly have been hurt under any and all circumstances but, simply, that she could not have been injured under the conditions disclosed by her testimony. I say that because it may have been possible for plaintiff to have been caught by the doors if, while she was on the safety isle, she reached her arm into the vestibule while the conductor was shutting the doors. (This could not have happened had she been standing on the vestibule entrance step because her weight would have prevented the step from raising and the doors from closing.)

If plaintiff was injured while standing on the safety island and while attempting to board the trolley from that position and the evidence had justified such a finding, the jury would have had to pass on plaintiff’s contributory negligence before giving her a verdict. Plaintiff’s own version of the happening withdrew these considerations from the jury and eliminated any possible discussion of contributory negligence on her part. She put herself in the interior of the vestibule and in a place where she could not have been injured as she says she was.

Even had I arrived at a different conclusion on this phase of the case, still it seems to me obvious that the verdict of the jury was contrary to the weight of the believable evidence.

Mr. Hasson says that he saw the doors close on Mrs. Grace and that he saw this from his position in the vestibule as he paid his fare. Pour witnesses testify that Mr. H. preceded Mrs. Grace into the trolley; that he paid his own fare and went into-the interior of the car and was therein when Mrs. Grace screamed. If these four witnesses are to be believed Mr. H. is discredited. Three of these defendant witnesses were absolutely disinterested (passengers) and one was the conductor. One of these passengers was seated on the long seat in the extreme rear of the trolley and opposite the conductor and two were standing on the rear (vestibule) platform. Just how the jury could have discredited these witnesses and believe Mr. H., especially in view of the impossibility of the accident happening as plaintiff says it did, I fail to see.

These same three disinterested witnesses and the conductor also testify as to what happened when Mrs. Grace attempted to board the trolley and if their testimony is to be believed, Mrs. Grace was not on the trolley at all when the conductor started to shut the doors. On this phase of the case I also think that Mrs. Grace failed to carry the burden of proof.

It may be that Mrs. Grace received some slight injury in boarding the trolley. If she did, she made the mistake of not telling just how it happened rather than putting herself in a position where it could not have happened. It may be that if she had told just how she received whatever injury she may have sustained, that she would have disclosed her own contributory negligence. However that may be, the rule must be made absolute.

I have purposely refrained from commmenting on Mrs. Grace’s testimony as to the extent of her injuries but, I must say, that it seems rather unsual at least, that injuries to the left arm, shoulder, neck and wrist would have caused a tumor to appear on her right shoulder. It is true that Dr. Kline did not discover this tumor until over a month after the accident but Dr. Shenfeld says that he saw the same tumor about six months before the alleged injuries.


author: Per Curiam.

text:
    MATTEO BISCOTTO, PLAINTIFF, v. JOHN H. B. DALRYMPLE, TRADING AS RARITAN TRUCKING COMPANY; THE TULLER CONSTRUCTION COMPANY, AND ROSS & TAYLOR, INCORPORATED, DEFENDANTS.
    Submitted October 16, 1931
    Decided December 15, 1931.

      Before Justices Campbell, Lloyd and Bodine.
    For the plaintiff, Samuel H. Adler (Herman H. Anclcstein, of counsel).
    For the defendant Boss & Taylor, Incorporated, Charles StocJcdell Gray.

   Per Curiam.

The plaintiff had judgment for $6,000 in an action tried at the Middlesex Circuit. The defendant seeks to have the verdict set aside on the ground that a nonsuit should have been granted or a verdict directed, on the ground that by the clear weight of evidence there was no proof that the defendant was negligent. It was further argued that by the clear and unequivocal testimony the defendant was proved guilty of contributory negligence.

The plaintiff, a truck farmer, shortly before the accident was driving a Ford over route No. 26 of the New Jersey state highway system near Adams, New Jersey. The defendant was operating, in the vicinity of the paved portion of the roadway, a highway construction crane. Plaintiff testified that as he was passing this machine it suddenly and without warning swung across the road and struck his car causing the injuries of which he complained. The observations which he made before passing indicated to him that he had plenty of room to pass. The machine was not moving,-but when he was so close to it that he could not avoid it, it started to move and struck his car. The flagman, stationed by the contractor to give warning, testified that the plaintiff had passed him and had paid no attention whatever to the red flag which he waved.

The operator of the crane said that the driver of the car had his eyes shut—a circumstance that seems hardly credible. There’was testimony by employes of the defendant, and others, to the effect that the plaintiff’s car was being driven in a careless manner.

From our examination of the whole record, we think the conflicting accounts of the occurrence were properly for the jury. We think that plaintiff’s account of the accident was far more likely than that contained in the testimony of the witnesses called for the defense. Numerically the witnesses on behalf of the defendant outweigh the plaintiff, but this circumstance standing alone is not determinative of the weight of the evidence.

The rule will be discharged, with costs.


author: Feb Curiam.

text:
    JEREMIAH J. HARTIGAN, PROSECUTOR, v. THE HUDSON COUNTY PARK COMMISSION, RESPONDENT.
    Submitted October 16, 1931
    Decided December 15, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the prosecutor, 0. Stanley Smith.

    For the respondent, J. Raymond Tiffany.

   Feb Curiam.

The prosecutor was a foreman of laborers employed by the old Hudson county boulevard commission. He seeks to review the action of the new Hudson county park commission in abolishing the position which he occupied, claiming that he had a right to the office because he held an exempt fireman’s certificate.

The stipulation of facts and the record returned with the writ are too attenuated for us to determine the prosecutor’s right to the possession of the office claimed, if such it be. Loper v. Millville, 53 N. J. L. 362.

In so far as the writ seeks to attack the existence of the defendant commission, it is unnecessary for us to say more than that the principal questions suggested have been passed upon in McCarthy v. Walter, 107 N. J. L. 223.

The writ will therefore be dismissed.


text:
    JENNIE MARCUS, WIFE OF HYMAN MARCUS, AND HYMAN MARCUS, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. ST. PAUL MERCURY INDEMNITY COMPANY, ST. PAUL, MINNESOTA, A BODY CORPORATE, DEFENDANT-APPELLANT.
    Submitted October 16, 1931
    Decided December 15, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the defendant-appellant, Green & Green (Harold F'aricas, of counsel).
    For the plaintiffs-respondents, Siegendorf •& Schwartz.

   Per Curiam.

The appeal brings up a judgment in favor of the plaintiffs.

Mrs. Marcus claimed personal injuries by reason of a fall on premises of the Lay Fish Market at 24 Peck Slip, Mew York City. She and her husband consulted a firm of attorneys with a view of having a suit for damages instituted. The attorneys brought the matter to the attention of the Lay Pish Market by letter dated March 17th, 1931, and in reply thereto received a letter under date of March 23d, 1931, purporting to be from the Salvadge Adjustment Corporation, adjuster for the St. Paul Mercury Indemnity Company, the defendant in this case, requesting them to discuss the matter with Mr. Gallagher, of the casualty department, with a view to settlement. Negotiations were commenced and there was a visit to Gallagher and a Mr. Kosch, who occupied offices in the suite of offices used by the defendant indemnity company and the Salvage Adjustment Corporation. The upshot of the negotiations was that these individuals agreed to settle the case for $275 upon the plaintiffs executing a release. The release was executed and the agreement of settlement was then repudiated resulting in the present action.

It is contended that the agreement of settlement was without consideration and that there was no proof either of the agency of the Salvage Adjustment Corporation or of Gallagher or Kosch to negotiate a settlement for the St. Paul Mercury Indemnity Company, and further that the letters addressed to the plaintiffs’ attorneys were not properly received in evidence.

The defendant called Harry Hyman, the president of the Salvage Adjustment Corporation, who testified that the company adjusted losses for the defendant indemnity company, but that the only persons having authority to approve settlements were the president and vice-president of the Salvage Adjustment Corporation; that although Kosch and Gallagher were both employed by the Salvage Adjustment Corporation, they had no authority to make settlements. It further appeared that the letters received in evidence were written in due course of business by Gallagher and that the letterhead bearing the name of the St. Paul Mercury Indemnity Company was used with the approval of that company. It also appeared that both Kosch and Gallagher had authority to discuss settlements but were instructed to state that their action must be approved before it became final.

It seems to us apparent that the defendant was not prejudiced by the receipt of the letters in evidence, in view of the testimony offered in its behalf. It would also seem from the testimony introduced that the court was justified in finding that the contract of settlement was perdicated upon a good and valid consideration. There was no denial of the defendant’s liability and the only proof offered was indicative of the limited authority reposed in the employes of the Salvage Adjustment Corporation.

Conceding that possibly the letters were improperly received in evidence at the time they were offered, it seems to us that the testimony on behalf of the defendant confirmed the action of the trial judge and established the plaintiffs’ right of recovery. It was a fair inference from all the testimony that Gallagher and Kosch were clothed with apparent authority to settle the matter. Since there was proof to support the findings of the trial judge, those findings cannot be disturbed on appeal.

The judgment will be affirmed, with costs.


author: Lawrence, C. C. J.

text:
    RICHARD C. ANNETT, PLAINTIFF, v. WILLIAM W. VAUGHAN, DEFENDANT.
    Decided December 17, 1931.
    Before Lawrence, Circuit Court judge.

      For the rule, Harold McDermott and Charles L. Garrick.

      Contra, Applegate, Stevens, Foster & Beussille (Lester C. Leonard, of counsel).
   Lawrence, C. C. J.

I find myself in a rather anomalous situation as to the disposition of the rule to show cause in this case, due to a circumstance evidently not in contemplation of the framer of the act which was passed by the legislature, approved April 28th, 1931, and now known as chapter 3oG of the session laws. Pamph. L., p. 874. The act provides that when a rule to show cause why a new trial should not be granted is allowed by the Circuit Court judge before whom the trial of a Supreme Court issue has been held, the hearing on the rule shall be had before such Circuit Court judge, and the judgment shall be entered upon his decision in the same manner and with like effect as if rendered by the Supreme Court.

The circumstance to which I refer is this: when this suit, which involves an action in ejectment, was reached for trial at the Monmouth Circuit, it was submitted to me as the trial judge, without a jury, by consent, to be determined on the law and the facts. There was no stipulation as to the latter, but the court was called upon, in lieu of a jury, to pass upon the weight of the evidence, comprehending testimony of witnesses, deeds, maps and other muniments of title. A postea was signed containing a finding of facts, determination and rule for judgment. As it was against the plaintiff, he applied, in due season, for a rule to show cause why a new trial should not be granted on the ground that the court’s finding was contrary to the weight of the evidence. It was allowed and made returnable before the Supreme Court, with the hearing before me as trial judge, under the new statute. On reflection, I incline to the view that since I passed upon the weight of the evidence at the conclusion of the trial, to again consider the question under the present rule would not be within the purview of the act. In other words, it would seem that where the trial judge hears a Supreme Court issue at the Circuit without a jury and decides it on the law and the facts, which necessarily requires him to pass upon the weight of the evidence, ordinarily the function of the jury, the rule to show cause allowed should be heard by the court in banc and not by the trial judge.

It is accordingly suggested that counsel for plaintiff apply to the court to amend the present rule to show cause to the end that it may be heard and considered by it, instead of by the trial judge. The inherent power of the court to do so has not been changed by the recent act.


text:
    IRVING FIELDMAN, PLAINTIFF, v. FREDERICK G. THOMAS, DEFENDANT.
    Submitted May 14, 1931
    Decided December 18, 1931.
    Before Justices Trenchard, Daly and Donges.
    Dor the rule, Louis B. Freund.

    Qonira, LehTbach, Johnson & Orm'ond.

   Per Curiam.

Plaintiff brings up a verdict rendered against him by a jury after a trial at Essex Circuit. Plaintiff sued for the sum of $5,875 commissions for the sale of property of the defendant, and in his complaint set out three counts. The first count was based upon an oral contract for the payment of such commissions followed by a letter dated the same day setting out the terms of the contract between the parties theretofore made by parol. The second count alleged that defendant as vendor and one Schnee as vendee entered into a written contract for the sale and purchase respectively of the property, such purchaser having been procured by the plaintiff, and that such agreement being made February 9th, 1928, on February 10th, 1928, the vendor and vendee agreed to cancel the agreement and in a letter written and signed by the defendant to the vendee Schnee, the defendant agreed to pay the plaintiff his commissions as broker in procuring the purchaser. The third count was not pressed and it is not necessary to consider it.

The plaintiff alleges that, under the first count, he came within the terms of the statute of 1918 providing generally that a broker or real estate agent may, in the place of the written memorandum required by section 10 of the statute of frauds, write to his client a letter setting forth the terms of his engagement, and, unless the client repudiates by notice in writing at any time, the agent may recover upon such contract. In the instant case the defendant did not repudiate the contract as set out by the plaintiff but on the contrary expressly agreed, in the written cancellation of the contract to sell, to pay the plaintiff his commission.

The court directed a verdict against the plaintiff on the first count because, as he says, “the first count indicates the cause of action brought under the statute, that the agreement made between the broker and the vendor was contingent upon the transfer oE title.” In this conclusion we think the court erred. The language used in the letter of the plaintiff to defendant, which forms the contract under the terms of the statute, is as follows: “As per our understanding I am to receive a commission of two and one-half per cent, of the sale price payable when title is passed.” The trial court construed this language to mean that unless and until the title passed no commissions were payable.

"We have not been referred to any case which passes upon the identical language, but this language does not differ essentially from such language as was used in Rauchwanger v. Katzin, 82 N. J. L. 339, where the owner contracted to pay commissions upon “the day of settlement.” It is similar to that used in Lehrhoff v. Schwartsky, 125 Atl. Rep. 496, where the language was “said amount to be paid to the above Louis Lehrhoff and Jacob Steinberg on the date of closing of title to said premises.” To the same effect are Taylor & Rose, Inc., v. Buonincontri, 101 N. J. L. 278, and in the court of errors and appeals (Dermody v. New Jersey Realties, Inc., 101 Id. 334), where the language was “the above commission to be paid to you at the time of passing title,” and other cases where language fixing the time of payment but not making such payment contingent upon the actual passing of title, is used. In other words, in this case the language fixes the time of payment and does not set up a contingency upon the happening of which such payment was to be made.

Under our cases the sale was consummated when the defendant and Schnee entered into a binding agreement for the sale and purchase respectively of the property. That such sale was actually consummated is evidenced by the agreement of_ February 10th between the defendant and the purchaser expressly cancelling the agreement of sale and releasing the vendor from its terms. This cancellation was at the instance of the defendant, who desired to be released from his agreement to sell. Defendant may not defeat plaintiff’s claim by having himself relieved of the obligation to pass title to his vendee. Dermody v. New Jersey Realties, Inc., supra.

The conclusion above expressed renders it unnecessary to consider the other points.

The rule to show cause is made absolute, and a new trial granted as to the first count of the complaint.


author: Ackeeson, S. C. C.

text:
    HENRY SALZMAN AND MINNIE B. SOBEL (NEE MINNIE BISGAER), PLAINTIFFS, v. WILLIAM C. ROBINSON AND AMELIA ROBINSON, HIS WIFE, DEFENDANTS.
    Decided December 19, 1931.
    Por the plaintiffs, John B. ZabrisMe.

    Por the defendants, Levenson, Comen & Levenson.

   Ackeeson, S. C. C.

This action was begun by attachment under subdivision (1) of the first section of the Attachment act of 1901 (Pamph. L. 1901, p. 158; 1 Comp. Siai., p. 132) and now comes before me upon a rule to show cause why the writ of attachment should not be quashed. No reasons for so doing are set up in the rule, and the only reason advanced on the argument is that the defendants were at the time of the issuance of the writ and now are residents of this state.

No objection is advanced as to the form of the affidavits upon which the writ was issued, which state in the words of subdivision (1) of section one of the statute that the defendants are indebted to the plaintiffs “in the sum of five thousand three hundred eighty-nine dollars and forty-one ($5,389.41) cents and deponent verily believes that the said William C. Eobinson and Amelia Eobinson, his wife, abscond from their creditors, and are not to deponent’s knowledge or belief residents in the State of New Jersey at this time, and that they owe * * * the sum of $5,389.41 as nearly as deponent can ascertain.”

Depositions for each side were taken under the rule and I have little doubt from a reading of them that the defendants maintained a residence at 288 Terrace avenue, Hasbrouck Heights, in this state at the time of the issuance of the writ of attachment, but I am also of the opinion that the conduct of the defendants as disclosed by the depositions, was such as to justify the conclusion that they were absconding debtors within the meaning of the Attachment act providing relief in such cases. That portion of the Attachment act under which the writ of attachment was issued in this cause provides that an attachmemnt may issue “where the plaintiff, his agent or attorney, shall make affidavit that he verily believes the debtor absconds from his creditors and is not, to the deponent’s knowledge or belief, resident in this state at the time, and that he owes to the plaintiff a debt, specifying as nearly as practicable the amount thereof,” &c.

Since the defendants rely solely upon the assertion that they were both residents of this state at the time of the issuance of the writ of attachment, it becomes important to determine whether or not non-residence in this state is an essential of jurisdiction under subdivision (1) of the first section of the Attachment act of 1901. At first blush it would appear that because the conjunctive “and” is used in this subsection that both the element of absconding and non-residence would have to be established in order to maintain an attachment under this subdivision. But this question seems to have been settled to the contrary, so far, at least, as the Circuit Court is concerned by the following eases: Hirt Co. v. Ayling, 33 N. J. L. J. 343; Le Sage v. Schmitt, 10 Id. 10; Stone v. Stites, 14 Id. 25. In the second of the cited cases, Mr. Justice Depue definitely stated the law to be that “a man who absconds from his creditors is liable to attachment although he has a residence in the state at which process may be served;” and he says, furthermore, that “where a man has actually absconded from his creditors, although his residence may be within the state and within reach, he is nevertheless an absconding debtor within the meaning of the-statute.” In the case last cited Mr. Justice Garrison says that “the distinction between non-resident and absconding debtors under our Attachment act is radical. In the former case the test is whether the defendant has within this state a residence or usual place of abode, where service of legal process, binding upon him, can be made. In the latter the test is whether the defendant eludes his creditors under circumstances convincing to them that his conduct has that object in view. It will be noticed that the essence of jurisdiction in this latter class of cases in not residence, which is a matter of fact, but conduct capable of influencing the mind and of inducing a belief; hence as the defendant’s conduct is solely within his own control; he is held responsible for an honest belief respecting it created in the mind of his creditor, provided such belief is fairly deducible from the behavior of the defendant himself.”

Since the defendants rely upon the fact that they have a residence in this state to defeat the attachment in this cause, it is apparent that they could not prevail upon this rule to show cause, because that is not an essential ground for the attachment.

I am unwilling, however, to pass by the question of whether or not the depositions justify the conclusion that the defendants were absconding debtors.

In the ease of Stafford v. Gaiser, 57 N. J. L. 574 (at p. 578), Mr. Justice Lippincott, speaking for our Supreme Court, said: “Now, if one eludes his creditors he intends to defeat or delay them. If one eludes his creditors, then he can be held to the intent of evading process, and all the law requires in order to constitute an absconding debtor is that he shall put himself in such a position that he can and does successfully evade the service of process.

In one case it may be by concealment in his own house. It may consist in going from place to place so quickly as to evade meeting with service of process anywhere. There is a limit to the creditors’ search for him, else he might never be served with process, and no attachment would ever be sustained. The creditor is bound to ascertain, if he can do so by all natural ordinary means at hand, his debtor’s whereabouts, in order to serve him with process, but this obligation has its limits in reason and common sense. * * * If a person depart from his usual residence, or remain absent therefrom or conceal himself in his house, so that he cannot be served with process, with intent to avoid service of process, or to delay or defraud his creditors, he is an absconding debtor. Ives v. Curtiss, 2 Root 133.”

In the case sub judice it is noticeable that the defendant William C. Eobinson has not supplied the court with a deposition and no reason is given why he could not, after the rule to show cause was obtained, have been examined as a witness in his own behalf and I feel, therefore, that the court is justified in inferring that whatever testimony he may have been able to give would have been unfavorable to him. Drennan v. Hausman, 7 N. J. Mis. R. 91; Nelson v. Public Service Transportation Co., 135 Atl. Rep. 467.

Mrs. Eobinson gave a deposition but it does not satisfy me that she was not evading the service of process and she does not satisfy me that her husband was away from home engaged in his business as a traveling salesman during all the time from May 14th, 1931, to the latter part of June, 1931. In fact she admits that Mr. Eobinson was home during the latter part of June, 1931, and she further says that no one visited her home during May and June, 1931, except her sister, and that her sister was there about two or three-days and this was around the early part of May. When confronted with the question of whether or not she remembers seeing the deputy sheriffs who attempted to serve the summons in this matter as well as Mr. Salzman at her home or on her premises she invariably answers that she does not remember seeing them although two of these deputy sheriffs positively remember that they saw a woman in the house or on the premises resembling Mrs. Eobinson at times when she herself says that her sister was not there.

In spite of the fact that Mrs. Eobinson says that no one was staying at or visiting her home during this period except her sister for two or three days early in May, nevertheless Deputy Sheriff Thomas D. Mackay positively remembers that in June when he visited the defendant’s premises he saw a man there, who although denying that he was Mr. Robinson, nevertheless left the officer and went into the house.

Without going further into the testimony it is sufficient to say that the uncertain testimony of Mrs. Robinson with respect to the conduct of herself and her husband during the period in question is so unsatisfactory, as not to overcome the straightforward testimony of the deputy sheriff and Mr. Salzman and Mr. Weiss, from which the inference may justly be drawn that these defendants were absconding debtors within the meaning of the Attachment act and the rule to show cause is therefore discharged.


author: Aokbkson, S. C. C.

text:
    LOUIS FINKELSTEIN, PLAINTIFF, v. HYMAN BRODSKY, DEFENDANT.
    Decided December 24, 1931.
    For the plaintiff, Lichtenstein, Schwartz & Friedenberg.

    For the defendant, Siuhr ■& Vogt.

   Aokbkson, S. C. C.

This matter comes before me upon a motion to strike out the defendant’s answer upon the the grounds that it is sham, frivolous, does not set forth facts sufficient to constitute a defense and is filed for the purpose of delay.

The complaint is in five counts and seeks to recover from the defendant the sum of $2,000 with interest, alleged to be the balance of $2,500, delivered by the plaintiff to the defendant on January 20th, 1921, as security against loss by the defendant by reason of the execution by him of two certain bail bonds or recognizances, aggregating $18,500, for Samuel Cohen and Sadie Cohen, in the Hudson county Court of Quarter Sessions.

It is alleged that said money was to be returned to plaintiff upon the discharge of said bail bonds from the record after all disbursements incidental thereto had been deducted, as set forth in a written document, referred to as “receipt,” of which the following is a copy:

“Received from Louis Pinkelstein the sum of two thousand five hundred dollars ($2,500) as security for bail bonds entered into by Hyman Brodsky for Samuel Cohen and Sadie Cohen this day which bail bonds aggregate $18,500, in the matter of the State v. Samuel Cohen and Sadie Cohen, charged with a crime in Hudson county, Hew Jersey.

“This money is to be returned to the said Louis Pinkelstein upon the discharge of the said bail bonds from the record after all disbursements incidental thereto are deducted.”

It is further alleged that said bail bonds or recognizances were discharged of record on June 3d, 1931, and that the defendant has not had, suffered or sustained any losses or disbursements by reason of said documents or the discharge thereof, but that defendant after returning $500 on July 8th, 1931, has failed and refused to deliver the remaining $2,000 to the plaintiff.

The defendant has presented his affidavit in opposition to this motion and therein admits the deposit of the $2,500 as security for the aforesaid bail bonds and the execution and delivery at that time of the so-called “receipt,” hereinabove set out, and also admits that the bail bonds were discharged June 3d, 1931, and that he returned $500 to the plaintiff on July 8th, 1931. The only reason alleged in defendant’s affidavit for not returning the balance of said deposit, amounting to $2,000, is the assertion that at the time of the delivery of said deposit of $2,500 to the defendant it was agreed, using the language of the affidavit:

“That said sum was to be returned by me upon the discharge of said bail bonds from the records after all disbursements incidental thereto were deducted by me. It was further agreed by and between the said plaintiff and myself that I was to charge a premium of three per cent, of the amount of said sum of $18,500. Said three per cent, was to be charged against the sum of $2,500 and a premium of one per cent, of the amount of said sum of $18,500 for each and every year after the first year, which amount was to be charged against the said sum of $2,500. It was further agreed by and between the plaintiff and myself that said premiums charged were to be considered as disbursements incidental to the discharge of said bail bonds, in accordance with the receipt given by myself to the plaintiff, a true copy of which the plaintiff has annexed to the complaint and marked schedule A. It was not until June 3d, 1931, that said bail bonds and all recognizances were discharged of record, by order of the Hudson county Court of Quarter Sessions, and the total amount of premiums chargeable by myself against the said $2,500 at that time was the sum of $2,012.50.”

The defendant conceded on the oral argument, and expressly concedes in his brief, that the alleged agreement to charge premiums for the bonds against the deposit was made orally and contemporaneously with the delivery of the aforesaid sum of $2,500 as security and the delivery of the alleged “receipt.”

It is apparent, therefore, that the validity of defendant’s contention as a defense depends upon whether the writing which was given by the defendant to the plaintiff on January 20th, 1921, and above set forth, is a bare receipt, as claimed by the defendant or whether it is a contract. If it is the former, then the aforesaid oral agreement respecting premiums could be received to amplify the receipt. Joslin v. Giese, 59 N. J. L. 130; Otis Elevator Co. v. Stafford, 95 Id. 79. If the writing is a contract, then the aforesaid oral agreement could not be received to add to or alter the terms thereof. Naumberg v. Young, 44 Id. 331.

The first paragraph of the writing is plainly an acknowledgment of the receipt of money, but the last paragraph makes it something more than that. It reads as follows:

“This money is to be returned to the said Louis Finkelstein upon the discharge of the said bail bonds from the record after all disbursements incidental thereto are deducted.” Here we have an agreement to repay the money upon the happening of a certain event, and this makes the receipt contractual in form and exclusive of other evidence as to the terms of the contract that it contains. Katcher v. American Express Co., 94 N. J. L. 165.

It follows, therefore, that inasmuch as the defendant suffered no losses and has had no disbursements incidental to the discharge of said bail bonds from the record the defendant has no defense to this action.

It may not be amiss to observe that even if the alleged oral promise of the plaintiff to pay premiums by having them deducted from the security money were made after the written agreement in question it would still be ineffectual as a defense because made without consideration. The defendant having already executed the bonds would suffer no detriment, and of course there would be no benefit to the plaintiff.

It follows, from what has been said, that inasmuch as the defendant cannot legally show any oral agreement for premiums to be deducted from the security money, the entire answer based thereon is sham, and does not show any defense to this action and should be stricken out.

The plaintiff having properly supported his complaint by competent affidavits, I recommend that summary judgment be entered in favor of the plaintiff and against the defendant for the sum of $2,000, with interest thereon from June 3d, 1931.


author: Ingebsoll, V. C.

text:
    Camden Safe Deposit and Trust Company, complainant, v. Atlantic Properties, Incorporated, et al., defendants.
    [Decided October 29th, 1931.]

      Mr. George Reynolds, for the complainant and receiver.

      Messrs. Oassman & Gottlieb, for the petitioner, Stanley Atlantic Eealty Company.
   Ingebsoll, V. C.

A claim was filed by the Stanley Atlantic Eealty Company against the receiver for the sum of $60.50. This is for commission at five-per cent, upon rents collected from tenants of the mortgaged premises.

At the time of the appointment of the receiver, three certain tenants were in possession of portions of the mortgaged premises by virtue of certain leases, in each of which said leases was a provision that the Stanley Atlantic Eealty Company should receive five per cent, of the amount of rent collected, it, the Stanley Atlantic Eealty Company, being the agent which secured these tenants.

The court of errors and appeals, in the case of Atlantic Realty Co. v. Lott, 88 N. J. Law 694, in a per curiam, opinion, affirmed the supreme court, in which such a contract was held enforceable.

It, of necessity, follows that from the rent actually paid by the tenants, ninety-five per cent, belonged to the lessor and five per cent, to the agent. The appointment of a receiver did not change the legal effect of these leases. The amount of $60.50 collected by the receiver will, therefore, be paid to the Stanley Atlantic Realty Company.


author: Ingersoll, V. C.

text:
    Elizabeth W. Gandy, complainant, v. M. Ramona L. Stanton and Julia Scull, executrices of the estate of Lucia N. R. McQuaide, deceased, et al., defendants.
    [Decided October 30th, 1931.]

      Mr. W. Holt Apgar, for the complainant.

      Messrs. Bolte, Tripician & Kirkman, for the defendants Sophia de Bonis, Helen S. Relf, M. Ramona L. Stanton and Aldrich C.-Crowe.

      Mr. Andrew' G. Boswell, for M. Ramona L. Stanton and Julia Scull, executrices.
   Ingersoll, V. C.

. This bill is filed for the construction of the will of Lucia N. R. McQuaide, deceased, and was heard upon the following stipulations:

1. That Lucia 1ST. R. McQuaide, formerly of Ocean City, county of Cape May, died on October 17th, 1927, leaving the following last will and testament, and that the same was probated in the comity of Cape May on ISTovember 2d, 1927:

“I, Lucia N. R. McQuaide, of the City of Ocean City, County of Cape May and State of New Jersey, do make, publish and declare this as and for my last will and testament:
“I direct, that my executrices, hereinafter named pay all my just debts and funeral expenses as soon as the same can conviently be done after my decease.
“I give, devise and bequeath to my daughter, Sophia De Bonis of Paris, France, temporarily residing in Italy, Grandmother's gold pin; gold bar pin; cluster diamond ring; crest ring; gold chain and cross and Mother’s breast pin, and any other trinkets she may desire; to my sister Helen S. Relf of Denver, Colorado, Forget-me-not chain and blue beads; to M. Ramona L. Stanton, Atlantic City, New Jersey, my wedding ring; down quilt; blankets and any other trinkets she may desire; to Helen T. Theobald, Philadelphia, Pennsylvania, pearl choker and emerald clasp and new handkerchiefs; to Dorothy Theobald, Philadelphia, Pennsylvania, silver sugar spoon, butter knife and three forks marked “B” “S” “L”; to Freddy Theobald, Philadelphia, Pennsylvania, silver pen holder; Italian Red Cross Button; Prayer Book; Gold Bird Scarf Pin; to Emma Schearer, Ocean City, New Jersey,’ pin that Sophia gave me; pearl pen holder; picture on wall and Testament; to'Walter Dale, Ocean City, New Jersey, electric stove and electric grill; to Maude L. Smith, Bellcoville, New Jersey, table linens; china, bedding and any dresses she may desire; to my sister-in-law, Dr. F. Quindaro Mc-Quaide, Philadelphia, Pennsylvania, three Bagdad curtains, paisley bag and also that she may keep the sewing machine, belonging to me, but now in her possession, or she may return mine and have her own, which is now in my possession; to Julia Scull, Ocean City, New Jersey, Tea spoon; spoon for tea; electric toaster; New Thought Books, if she wishes them; Bible; the sewing machine not desired by Dr. F. Quindaro McQuaide; Brown handerchief basket; to my cousin, Mary Glen Draper, Canton, Massachusette, silver brush; Lorgnette; Sophia’s pictures; round gold pin with green stones; Jewelled comb; slipper buckles; blue turquoise scarf pin; to Lena Seal, Ocean City, New Jersey, knitting books; needles, yarn and crochet materials; to Catharine Aitkens, Philadelphia, Pennsylvania, olive wood sewing box; Emerson heater and gold beads; to Grace Schey, Atlantic City, New Jersey, jet comb ; jet beads; jet ear-rings ; to Dr. Aldrich C. Crowe, Ocean City, New Jersey, all my pitchers and little yellow flower bowl; to Pliebe Emma Doughty, Ocean City, New Jersey, the book “Eleanor Duse;” to Florie Pearson, Philadelphia, Pennsylvania, jade beads and jade ear-rings; to Emilie Boxler, Ocean City, New Jersey, my mirror and lamp; to Mary Ledyard, Philadelphia, Pennsylvania, long pearl necklace and pearl ear-rings; to Irene Fling, Roxborough, Pennsylvania, steel bag ;- round painted knitting basket and gold belt pin; to Elizabeth.Yocum, Roxborough, Pennsylvania, cameo pin and large brown basket with cover; to Lena Williams, Ocean City, New Jersey, round gold-pin and my aprons; that the aforesaid persons to have the gifts bequeathed to them and to their own proper use forever.
“All the rest, residue and remainder of my estate, except money,. I give to Elizabeth W. Gandy, Ocean City, New Jersey, to be distributed as she may see fit among the poor.
' “It is further my will that all legal papers found among my effects-be sent to my daughter, Sophia De Bonis, Paris, France.
“It is further my will that my body be cremated and my funeral! be private with Episcopal Burial Services.
“It is further my will, that if there is money, after all my said bills are paid, that it be equally divided among the following, my said daughter, Sophia de Bonis; my said sister, Helen S. Relf; the said Ramona L. Stanton and the said Dr. Aldrich C. Crowe,, share and share alike, to their own proper use and benefit forever.
“I hereby nominate and appoint M. Ramona L. Stanton and Julia Scull, executrices of this my last will and testament, hereby revoking any and all other wills by me at any time made..
“In witness whereof, I have hereunto set my hand and seal this: Twenty-third day of April, one thousand nine hundred and twenty-seven.
Lucia N. R. McQuade [seal]
“Signed, sealed, published and declared by the said testatrix, as and for her last will and_ testament, in the presence of us and each of us, who in her presence and in the presence of each other and by her-request we subscribed our names as witnesses hereto at the -end of her will.
Sabah M. Abbott
Anna M. Meehan.”

3. That the said executrices caused an inventory and appraisement to be made and to be filed with the surrogate-of the county of Cape May, a copy of Avhich is hereunto attached and made a part hereof.

4. That the complainant, Elizabeth W. Gandy, is mentioned, in the said will as follows and not otherwise:

“All the rest, residue and remainder of my estate, except money,. I give to Elizabeth W. Gandy, of Ocean City, New Jersey, as she-may see fit to be distributed among the poor.”

5. That the estate of the said decedent, Lucia N. R. MeQuaide, consisted, inter alia in New Jersey, of various bequests of personal property, a great many of which are referred. to in the third paragraph of the said will, but that in addition to the said articles set forth in the said third paragraph of said will there were other pieces of personal property, to wit, overnight bag, suit case, sewing basket, trunk, three chairs, bed, two covered boxes, sofa cushions, dress material (new), rugs, clothing, dresses, underwear and shoes, coats, supplies, food, fur coat, kitchen utensils, screen, all of which she did not specifically dispose of in said last will and testament.

6. That at the time of the death of Lucia H. E. McQuaide she had on deposit in the Germantown Trust Company, Philadelphia, Pennsylvania, the sum of $553.27; that there was cash on hand of $289.98; that she owned one and one-half shares of stock of the Equitable Building and Loan Association, Atlantic City, Hew Jersey, of the value of $305.44; that she also owned two and one-half shares of the stock of the Security Building and Loan Association of Atlantic City, Hew Jersey, of the value of $510 and a promissory note of Bertha Johnson for $200.

7. That the chattels (exclusive of money or deposits in banks ox stock) mentioned in the said inventory which had not been specifically disposed of by said last will and testament were delivered by said executrices to Elizabeth W. Gandy and by her accepted.

It is stipulated that Lucia H. E. McQuaide died leaving Sophia de Bonis surviving her as her only child and heir-at-law, she being a widow at the time of her death and having had no other children but the said Sophia de Bonis.

It is stipulated by and between the parties hereto that in the event the fourth clause of the said will is declared void and of no legal effect for the reason that it is vague, uriascertainable and indefinite as to the class, or classes, of persons for which the charitable legacy or bequest was created or made, or for any other reason, that then all of the rest, residue and remainder of the estate, with the exception of the chattels and trinkets specifically bequeathed in paragraph three and the chattels and trinkets not specificfially bequeathed but similar to those bequeathed in paragraph three shall be considered as money and shall be decreed as having been bequeathed and devised to M. Kamona L. Stanton, Sophia de Bonis, Helen S. Keif and Aldrich C. Crowe. However, in the event the fourth clause of said will, to wit—

“All the rest, residue and remainder of my estate, except money, I give to Elizabeth W. Gandy, Ocean City, New Jersey, to be distributed as she may see fit among the poor.”

is held to be legal, valid and effective, and in the event that the said real estate located in Pennsylvania, in which the testatrix had an undivided interest, is held and determined by the court not to be money, as that word is used by the testatrix in the following paragraph of the said testatrix’s will:

“It is further my will, that if there is money, after all my said bills are paid, that it be equally divided among the following, my said daughter, Sophia de Bonis; my said sister, Helen S. Relf; the said Ramona L. Stanton and the said Dr. Aldrich C. Crowe, share and share alike to their own proper use and benefit forever.”

and for that reason is not to be equally divided among the persons mentioned in said paragraph, then the $15,000 into which the real estate has been converted by sale by all those interested since the death of the said testatrix, shall be distributed to the complainant.

Attached to these stipulations is an inventory and appraisement, showing cash in bank and on hand, value of building and loan stock, a certain promissory note and many items of jewelry, kitchen utensils, &c., amounting to $2,028.35.

In re Rogers’ Estate, 91 N. J. Eg. 294, Vice-Chancellor Learning said: “Where the context of a will discloses the intent of testator to attribute to the word ‘money’ a specific meaning which is more comprehensive, that meaning will be adopted, and may comprehend any class of property so defined by the context.”

I am satisfied that the term “money” in this will meant all of the property, with the exception of those articles of personal property similar or of the nature of those specifically mentioned in a previous clause of the will, as In re Thayers, 139 N. Y. 141, and in Ostrom v. Datz, 274 Pa. 375; 118 Atl. Rep. 313, where it was held that the use of the term “money” was intended to dispose of all the testator’s property remaining after the specific devise and bequests. This view follows, also Baldwin v. Baldwin, 107 N. J. Eq. 91.

A decree will be advised in accordance with this memoranda.


author: Ingeksoll, V. C.

text:
    Ephraim Gill et al., complainants, v. Wading River Realty Company et al., defendants.
    [Decided October 31st, 1931.]

      Mr. Samuel P. Orlando and Mr. Carl Kisselman, for the complainants.

      Messrs. Harcourt & Steelman, for the defendants.
   Ingeksoll, V. C.

The bill is filed praying for relief, first, that a deed in fee-simple to John M. Zurn for certain lands and premises should be set aside. It is admitted that the authority for this conveyance was limited to the giving of a lease for ninety-nine years. • Complainant is entitled to relief.

The second prayer is to set aside certain certificates of stock as having been issued without authority. I am convinced, without a restatement of the testimony, which was very voluminous, that the stock issued to Zurn was issued for a good and valuable consideration.

In Perkins v. Trinity Realty Co., 69 N. J. Eq. 723; affirmed by per curiam opinion (71 N. J. Eq. 304), Vice-Chancellor Garrison (at p. 731) said: “Our courts, however, hold that the plea of ultra vires will not avail a corporation with respect to an act for which it has received consideration in any case where the status quo ante cannot be restored, and in such cases the corporation is estopped to set up the plea of ultra vires," citing a number of cases. And on page 732: “To permit stockholders of corporations to unanimously make a disposition of the corporate property where no one else’s rights are in any way prejudiced, and afterwards to repudiate their action upon the ground that it was beyond the power of the fictional body to do the act, could serve no useful purpose, and would be merely available in aid of fraud. In cases where stockholders have all assented to corporate action, and no rights of the .state or creditors intervene, the doctrine of estoppel is fully applicable, and the plea of ultra vires is unavailing.”

It follows as a necessary corollary that where-the stockholders and officers of a corporation have received from an individual cash or payment for labor and material furnished for the corporation and authorized or permitted the officer to issue stock for such amount, the issuance of such stock must be held valid. If it becomes necessary, I reserve the' right to «amplify this memorandum.

A decree will be advised in accordance herewith.


author: Ingeesold, V. C.

text:
    Camden Safe Deposit and Trust Company, trustee under the will of George Holl, deceased, complainant, v. John F. Holl et al., defendants.
    [Decided November 16, 1931.]

      Mr. George Reynolds, for the complainant.

      Mr. Francis J. Holl, for the defendant John F. Holl.

      Mr. J oseph H. Carr, for the defendant Andrew J. Holl.

      Mr. Raymond L. Siris, for the defendants Ada C. Eisley, Carrie Pedrick, Louis Neubauer, Frank Neubauer and Viola Standenmaier.

      Messrs. Boyle .& Archer, for the defendants Frank Burnett, Jr., and Harry S. Burnett.

      Mr. A. Moulton McNutt, for the defendant Edward W. Frey, guardian, &c., of Edward Frey.

      Mr. Harold W. Bennett, for the defendant Stella May Holl Wilson.
   Ingeesold, V. C.

The first question is, have the trustees power to sell and convey certain premises, not specifically mentioned? It is apparent from the context of the will that the trustees have an implied power of sale to convey said premises.

Second, in the will, the trustees were directed to distribute, among others, two-elevenths of the estate to one Caroline Yalet, a sister of the deceased; that the said Caroline Yalet survived the testator and died September 30th, 1914, leaving her surviving a daughter, Ada C. Eisley, who is still living and of full age, and descendants of two deceased daughters, Emma Y. Sutherland and Yiolet Neubauer. Emma Y. Sutherland predeceased the testator and died October 30th, 1903, leaving a daughter, Eita S. Erey, who died after the testator on November 15th, 1919, leaving as her only heir a son, Edward Frey. The said Yiolet Neubauer survived the testator and died April 22d, 1913, leaving four children, to wit, Carrie Pedrick, Frank Neubauer, Louis Neubauer and Yiola Standenmaier.

The said two-elevenths should be divided as follows: One-third to Ada C. Eisley, one-third to Edward Frey as the sole representative of Emma V. Sutherland, and one-third in equal parts to Carrie Pedrick, Frank Neubauer, Louis Neubauer and Yiola Standenmaier, as representatives of the said Violet Neubauer.

A decree in accordance with these views will be advised.


author: Ingeksoll, Y. C.

text:
    S. Pearson Morris, complainant, v. George Davis et al., defendants.
    [Decided November 16th, 1931.]

      Mr. Bussell Godfrey (Mr. George IF. C. McCarter, of counsel), for the complainant.

      Mr. Daniel de Brier, for the defendant Joseph B. Perskie, executor, &c.

      Mr. Albert C. Abbott, for the defendant Chelsea Title and Guaranty Company.
   Ingeksoll, Y. C.

The prayer against the defendant George Davis is “that an adjudication, by a final determination of this court, may be made as to whether or not complainant’s mortgage is valid and effectual or invalid and ineffectual to charge the premises as a mortgage lien.”

This mortgage was signed by a married woman, without her husband joining therein. The law is that a mortgage executed by a married woman on her separate estate, without her husband joining, is ineffective as a mortgage lien, and incapable of foreclosure. Atlantic Guaranty and Title Insurance Co. v. McDevitt, 105 N. J. Eq. 570. And although it is equally well settled that a court of equity will declare and enforce a lien against the separate estate for the debt intended to be secured by the mortgage, there is no prayer in complainant’s bill asking for the enforcement of such a lien, and the brief of the complainant states that the only decree this court can make is the decree prayed for in paragraph 2 of the prayer of the bill, above quoted—that complainant’s mortgage is invalid and ineffectual to charge the premises as a mortgage lien. There is no relief prayed for against the defendant Chelsea Title and Guaranty Company, nor is, nor has there been, at the hearing or in the brief, any attempt to have any decree except one holding that the said mortgage is ineffective as a mortgage lien and incapable of foreclosure. It follows, therefore, that the bill to foreclose must be dismissed. .


author: Ingersoll, Y. C.

text:
    Richard W. Gropp, complainant, v. Lester L. Freedman et al., defendants.
    [Decided November 17th, 1931.]

      Mr. Palmer M. Way (Mr. S. Rusting Leap, of counsel), for the complainant.

      Mr. D. Trueman Stackhouse (Mr. Emerson L. Richards, of counsel), for the defendants.
   Ingersoll, Y. C.

A petition is filed to open the decree heretofore entered in this cause. The petition alleges neglect on the part of counsel in not endeavoring to have the hearing reopened and certain testimony presented to the court, a copy of which is attached to and made a part of the petition.

The opening or vacating of a decree rests in the sound discretion of the chancellor. Mitchell v. Mitchell, 96 N. J. Eg. 29. “In order to open a decree regularly entered, it is necessary that it. appear that the defendant has some good defense, and what that defense is. And to justify a rehearing on the ground of newly discovered evidence, the new matter must, as has been seen, be of such a character that if it had been heard it would probably have altered the result. A final decree will not be opened to let in a defense where, from the affidavits submitted, it appears that the evidence to sustain such defense would be insufficient to overcome that on which the decree was founded. Morris v. Hinchman, 32 N. J. Eq. 204; Sandford v. Wellborn, 85 N. J. Eq. 577, 587. A rehearing will not be granted * * * if the evidence t,o be offered is merely cumulative.” 1 Kocher’s Chancery Practice 105, citing McDowell v. Perrine, 36 N. J. Eq. 632 and other cases.

An examination of the testimony desired to be offered, together with a reading of the testimony heretofore taken compels me to find that the testimony desired to be offered is not a sufficient justification for the opening of the cause and the granting of a rehearing. The petition will therefore be dismissed.


author: Ingersoll, Y. C. .

text:
    Equitable Trust Company, executor and trustee under the last will and testament of William Kane, deceased, complainant, v. Clara Celeste Garton et al., defendants.
    [Decided December 12th, 1931.]

      Mr. Frank C. Propert, for the complainant.
   Ingersoll, Y. C. .

This bill is filed by the complainant as executor and trustee under the will of William Kane, deceased, for a construction of the will and-codicils of the said William Kane. The defendants are all the parties in interest and were duly served, but filed no answer. It is heard upon a stipulation signed by the solicitor of complainant and all of the defendants. The prayer of the bill is as follows:

: -“That this court may construe the said last will and testament and codicils of the said William Kane, deceased, and may declare who are the persons entitled to the said residuary estate and the extent and proportions of their respective intrests and shares therein.”

This prayer is subject to criticism in that at the close of the ease, that is, the filing of the stipulations, the .court would have been unable to determine what detail of -the will the court was asked to construe. In this case, however, counsel for the complainant has presented a most careful and well-prepared memorandum in which he specifically named the questions- to be determined in the construction of the said will and codicils.

The first question: “What is the effect of the first codicil [dated March 23d, 1918] upon that portion of the original will relating to the residuary estate?” He divides this into (a) a portion of the fourth item of the codicil, which reads:

“I do now direct in lieu thereof that in the event of such a contingency arising, payment shall be made out of the share due to the issue of any one that may have died when and as such issue respectively shall attain the age of twenty-five years.”

I find that this item of the codicil does not revoke any gift or change the quantity of any share given by the original will, but that it does change the timé of the payment of the share of the principal from the time mentioned in the will to the time “such issue respectively shall attain the age of twenty-five years.”

(b) As to the fifth item of the codicil: Kate G. Hollingsworth having died prior to the date of the codicil, leaving issue, the testator directed the testator’s trustee to pay the income of one-third of the residuary estate until they should respectively attain the age of twenty-five years, and to pay and transfer said one-third of the principal of the residuary estate to them, in equal shares, when and as they should respectively attain the age of twenty-five years.

The second question: “What is the meaning of the words To her children or their issue’ as used in that portion of the original will relating to the disposition of the principal of the residuary estate upon the death of testator’s nieces?”

It seems manifest “to her children or their issue,” in connection with his directions concerning the distribution of principal, he intended to and did, in fact, refer only to the issue of any deceased child of the niece to which issue he had just referred.

The third question is: “What is the meaning of the words To the surviving niece or nieces or their issue’ as used in that portion of the original will relating to the disposition of the share of any niece of testator dying without leaving issue surviving her?”

It is not apparent that in the course of nature that this situation could arise. It is apparent that the testator intended the words “or their issue” to refer only to the issue of the deceased nieces of the testator, and not to the issue o£ living nieces as well.

The fourth question is: “Do the testator’s will and codicils violate the rule against perpetuities?”

Without quoting cases, they do not.

The last question is: “The gifts of income and principal of the residuary estate upon the death of testator’s nieces being made to classes, do the members of each class take as joint owners or tenants or as owners or tenants in common?”

The intent is clear that the testator intended these beneficiaries to take in their classes as tenants in common and not as joint tenants.

A decree will be advised in accordance with these views.


text:
    ANDREW LEWIS, PLAINTIFF, v. JAMES FELZ AND CHARLES LOESSIG, DEFENDANTS.
    Submitted October 16, 1931
    Decided December 22, 1931.
    Before ■ Justices Campbell, Lloyd and Bodine.
    Bor the plaintiff, Harry Spitzer.

    Bor the defendant, John G. Stoclcel.

   Pee Cueiam.

Our examination of the evidence leads us to the conclusion that the verdict was supported by the clear weight of evidence. The damages, however, seem excessive, and unless the plaintiff consents to a reduction of his judgment to the sum of $2,400, a rule absolute for a new trial will be entered. Otherwise the rule will be discharged.


text:
    HARRY D. HILL, PROSECUTOR, v. CITY OF WILDWOOD ET AL., DEFENDANTS.
    Argued December 23, 1931
    Decided December 24, 1931.
    Before Justices Teenchakd, Daly and Dongbs.
    Bor the prosecutor, Augustine B. Bepetio.

    Bor the defendants, Clarence L. Cole, Jonathan Hand and George A. Bourgeois.

   Pee Cubiam.

Application is made for a writ of certiorari to review a certain resolution of the commissioners of the city of Wild-wood, adopted December 16th, 1931, providing for the sale of certain beach front park bonds of the city of Wildwood, and, likewise, for permission to take additional depositions to be used on said application for a writ of certiorari.

We have considered the merits of these applications and conclude that both should be denied.

The applications are therefore denied, with costs.


text:
    MABEL E. MANAHAN, PROSECUTOR, v. CITY OF ENGLEWOOD, DEFENDANT.
    Argued December 23, 1931
    Decided December 31, 1931.
    Before Justices Teenchakd, Daly and Donges.
    For the prosecutor, David H. Sterner.

    For the defendant, Morrison, Lloyd & Morrison and F. Hamilton Reeve.

   Pee Cubiam.

The prosecutrix sued out a writ of certiorari to review a judgment of the First Judicial District Court of Bergen county awarding defendant possession of certain premises in the city of Englewood. That judgment was reversed by this court. Prosecutrix now seeks a writ of restitution commanding the defendant to put her in possession of said premises.

■ It appears that the writ of certiorari was allowed on the day that the warrant for possession was issued. It was executed on the same dajr and prior to notice to defendant- and the officer executing the warrant.

It is not made to appear that the lease was not lawfully terminated for breach thereof, and that any of the rights of prosecutrix respecting the property have been violated by her dispossession. McQuade v. Emmons, 38 N. J. L. 397.

The application is denied, with costs.


author: . Per Curiam.

text:
    OSCAR LANGE, PETITIONER-DEFENDANT IN CERTIORARI, v. EUREKA PRINTING WORKS, RESPONDENT PROSECUTOR IN CERTIORARI.
    Argued December 23, 1931
    Decided December 31, 1931.
    Before Justices Trenchard, Daly and Donges.
    -Dor the motion, Peder & Rinzler.

      Contra, Harley, Cox & Walb erg.

   . Per Curiam.

This is an application for a counsel fee in the Supreme Court by the prevailing party in a workmen’s compensation ease where the judgment of the workmen’s compensation bureau was brought into the Supreme Court by certiorari pursuant to Pamph. L. 1931, ch. 388, p. 1217.

Our conclusion is that there is no authority for the award of counsel fee in such case, and the application accordingly is denied, with costs.


author: Ackekson, C. C. J.

text:
    MARGARET HAWKINS AND GEORGE J. HAWKINS, PLAINTIFFS, v. ATLANTIC COAST TRANSPORTATION COMPANY, DEFENDANT.
    Decided December 18, 1931.
    For the plaintiffs, Carey & Lane.

    For the defendant, Autenrieth, Gannon & WortendyJce.

   Ackekson, C. C. J.

This matter comes before me upon a rule to show cause why the verdicts of $2,500 for Margaret Hawkins and $200 for her husband, George J. Hawkins, should not be set aside and a new trial granted upon the grounds that the verdicts are against the weight of evidence and are excessive.

I have carefully read the transcript of the evidence while the case is still fresh in my mind and have reached the conclusion that the verdicts are not against the weight of the evidence.

With regard to the amount of the verdict in favor of Mrs. Hawkins, the jury could have found from the testimony that she sustained, as the result of the accident, a contusion of the right hip, which cleared up in from ten days to six weeks, a bruise over the right eye (no scar), a sprain of the right ankle (no broken bones or torn ligaments), which she says kept her off her feet for six weeks, and which she says still bothers her during the cold weather, but which the family doctor says was cured in about three weeks. After the accident she went to a hospital where her ankle was dressed, but she went right home and was in bed about one week, during which time hemorrhages from the vagina developed, she being at the time about two and one-half months pregnant. A miscarriage resulted, and she was taken to the hospital where She was curretted which effected a complete clearing up of the hemorrhages, and after one week in the hospital she returned home, and after two weeks in bed she was up and around again. There was no permanent injury, and since the accident she has borne two children, one within two years thereafter.

Enough has been said to indicate that the verdict for $2,500 is excessive, and that $1,500 would have been ample compensation under the circumstances.

The verdict of $200 for Mr. Hawkins is not excessive, however, as he incurred a doctor’s bill of $60 and had to pay a woman to attend Mrs. Hawkins and do the house work for about three weeks at $25 per week, which would leave only $65 for loss of consortium.

If Mrs. Hawkins will file an acceptance of a reduction of $1,000 in the amount of her verdict on or before December 26th, 1931, the verdict may stand for $1,500 and the rule will be discharged, otherwise the rule will be made absolute and a new trial granted as to damages only. As to Mr. Hawkins, the rule will be discharged.


text:
    ASBURY PARK AND OCEAN GROVE BANK, BODY CORPORATE, PLAINTIFF, v. HORACE A. STONEHAM, DEFENDANT.
    Decided December 23, 1931.
   Lawrence, C. C. J.

This is a motion, in behalf of plaintiff to strike defendant’s answer on the ground that it is sham or frivolous. The suit is on a promissory note of the following tenor:

“Asbury Park, NT. J., Apr. 10, 1929. $14,500.

On demand, after date, I promise to pay to the order of G. P. Parmer Coal & Supply Co., fourteen thousand, five hundred 00/100 dollars, at the Asbury Park and Ocean Grove Bank of Asbury Park. Yalue received with interest.

No....... (Signed) Horace A. Stoneiiam.”

Endorsed:

G. P. Parmer Coal & Supply Company,

By Edward D. Parmer, Pres.

The defenses set up are that the plaintiff bank did not become the holder of the note in due course, in that it was not negotiated within a reasonable time after its date; that it could not have become the property of the bank through the medium of the indicated endorsement, upon the apparent theory that the president of a corporation has no authority to so endorse and transfer title; and that it was known to plaintiff at the time it received the note that there was an existing agreement between the payee and defendant that if the former demanded payment, it would assign to the latter its right, title and interest in and to any claim or stock interest it might have against or in the Kingsley Arms Company, Incorporated, the owner of a hotel and apartment building in Asbury Park, of which the Kelley Building Company, Incorporated, had been the building contractor. The allegation is that no such assignment was ever made to defendant.

Plaintiff’s motion to strike is on the ground that the matters set up do not present a legal defense to the note. Defendant’s affidavit submitted on the motion sets forth that prior to the execution of the note in suit, defendant had endorsed two notes executed by the Kelley Building Company, Incorporated, one for $10,000 and the other for $4,500; that he received no consideration therefor, to the knowledge of the G. P. Parmer Coal & Supply Company, and that they were held by the latter company pending an adjustment of the financial affairs of the Kingsley Arms Company, Incorporated, which had been adjudicated a bankrupt.

Subsequently, on April 10th, 1929, a proposed written agreement was presented to defendant which recited the indebtedness of Kingsley Arms Company, Incorporated, to the G. P. Parmer Coal & Supply Company, indirectly incurred through the Kelley Building Company, Incorporated, which had also become insolvent, and that a plan of adjustment of the financial affairs of both corporations had been submitted to the various creditors, wherein and whereby, it was proposed that the creditors, including the G. P. Parmer Coal & Supply Company, were to receive common and preferred stock of the Kingsley Arms Company, Incorporated, or a substituted or affiliated company, in lieu of the payment at that time of their respective claims; thereupon defendant signed the note here involved and received back the two notes previously endorsed by him upon the understanding that the note was to be held by the G. P. Parmer Coal & Supply Company until stock had been issued to that company. The agreement further recited that should the G. P. Parmer Coal & Supply Company demand payment of the note, it would assign to defendant all its right, title and interest in and to any claim or stock interest that it might have against the Kelley Building Company, Incorporated, and the Kingsley Arms Company, Incorporated, to the extent of $14,500.

The affidavit further states that no such assignment was ever made, but that the G. P. Parmer Coal & Supply Company filed claims with the receivers of the Kingsley Arms Company, Incorporated, and the Kelley Building Company, Incorporated, and therefore there is not due $14,500 from defendant on the note, who received no consideration for making the note in suit. It is also said, in the affidavit, that the agreement in question was executed by defendant and the coal and supply company and that the latter was familiar with the transaction, although the execution was not authorized by any resolution of the company. The con-eluding statement in the affidavit is that plaintiff “had or should have had knowledge of the defenses of deponent [defendant] to any action brought on the said note,” and that plaintiff has not acquired title to the note and is not a holder in due course.

Plaintiff’s reply affidavit, made by its president, set forth that the note was purchased by it of the payee for value; that it was regular on its face and was not to the bank’s knowledge overdue or protested; that it had no knowledge that defendant had executed the note without receiving value (the contrary being set forth therein); that there had been a failure of consideration, or that it was executed in accordance with an agreement of the nature referred to in defendant’s affidavit; but that plaintiff purchased the note in the ordinary course of its business, without knowledge or intimation that there were any defenses. It is further stated that it is now the holder for value, and has demanded payment of defendant which has been refused, although the amount thereof is due and unpaid.

It seems clear that defendant’s affidavit does not present any valid legal defense to the note in the hands of the plaintiff bank. It merely discloses that he became an accommodation endorser of two prior notes which were surrendered to him when he made the new note. The agreement apparently was that if the payee—G. P. Parmer Coal & Supply Company—demanded payment, as it evidently had a right to do, it would assign to defendant all its right, title and interest in and to any claim or stock interest it might have against or in the two corporations in question, or their affiliate, when organized. It is not even suggested in the affidavit, however, that either of the corporations was ever reorganized, or that a new corporation was formed to take over their interests. It is obvious, therefore, that the coal and supply company had nothing to assign to defendant, beyond its claim filed with the receivers of the corporation. In other words, it is not shown that the purpose of the alleged agreement was ever accomplished.

Assuming, consequently, that the plaintiff bank had not become a holder in dne course, thus letting in any defenses defendant may legitimately have had, or that the note had not been negotiated within a reasonable time after its issue, with like result, the defenses sought to be set up appear to be without substance. Finally, the claim made that the president of the coal and supply company had no inherent authority to endorse the note and dispose of it to the plaintiff bank, as indicated by the manner in which the endorsement appears, runs counter to the rule that the general authority of the president of a business corporation is sufficient to warrant him in collecting outstanding accounts and in selling the accounts for their face value. Cogan v. Conover Manufacturing Co., 69 N. J. Eq. 816.

The answer will be stricken as sham. A rule to that effect may be submitted. The application for summary judgment must be made, however, to the Supreme Court, or one of the justices thereof, in accordance with the practice.


author: Oliphant, S. C. C.

text:
    J. P. COCHRANE. LIQUIDATOR OF THE FIRST BANK OF LAKE WORTH, FLORIDA, PLAINTIFF, v. WILLIAM J. MORRIS, Jr., DEFENDANT.
    Decided December 30, 1931.
    Oliphant, Circuit judge, sitting as Supreme Court commissioner.
    For the plaintiff, Baches & Baches.

    For the defendant, Homan, Buchanan & Smith.

   Oliphant, S. C. C.

This matter comes before me on a motion to strike out the answer filed by the defendant.

The plaintiff is the liquidator of the First Bank of Lake Worth, Florida. The defendant is the record holder of twenty-one shares of the capital stock of said bank. This action is brought to recover from the defendant a one hundred per cent, assessment laid against him on his alleged liability under section 4128 R. G. S. 1920 of Florida, which provides as follows :

“Stockholders of every banking company shall be individually responsible, equally and ratably and not for one another for all contracts, accounts, debts and engagements of such company to the extent of the amount of their stock therein at the par vaue thereof in addition to the amount invested in such shares.”

The defendant by way of a fifth separate defense says that the complaint does not set forth or disclose any cause of action in that said action is contrary to the provisions of section 2 of the supplement of 1891 to the Corporation act (2 Comp. Stat. 1910, p. 1656, ¶ 94 B), and reserves his right to set up this defense as grounds for the dismissal of the complaint. The statute referred to reads as follows:

“ISTo action or proceeding shall be maintained in any court of law of this state against any stockholder, officer or director of any domestic or foreign corporation by or on behalf of any creditor of such corporation to enforce any statutory personal liability of such stockholder, official or director for or upon any debt, default or obligation of such corporation, whether such statutory personal liability be deemed penal or contractual, if such statutory personal liability be created bjr or arise from the statutes or laws of any other state or foreign country, and no pending or future action or proceeding to enforce any such statutory personal liability shall be maintained in any court of this state other than in a nature of an equitable accounting for the proportionate benefit of all parties interested to which such corporation and its legal representatives, if any, and all of its creditors and all of its stockholders shall be necessary parties.”

The liability of the defendant which is sought to be imposed is a statutory liability. The liquidator is acting on behalf of the creditors of the bank.

The statute invoked as a defense by the defendant was-passed to protect the citizens of Hew Jersey in just such a situation as is here presented. The case of Marshall v. Sherman, 148 N. Y. 9, is an excellent exposition of the law as it pertains to the instant case. The whole opinion might well be set out in this memorandum but will be omitted for the sake of brevity. The case was a suit at law seeking to enforce a stockholder’s statutory liability against a defendant. The defendant demurred to the complaint and the demurrer was denied below. The Court of Appeals reversed the lower court and sustained the demurrer.

Justice requires that a stockholder at best pay only his-proportionate share of the liabilities and that can only be-determined in a proper proceeding in a court of equity, which the statute contemplates.

Plaintiff relies on the cases of Western National Bank v. Reckless, 96 Fed. Rep. 70, and Graham v. Fleissner’s Executors, 107 N. J. L. 278. They do not apply to the case at bar.. In the former case, the suit was based on the defendant’s-statutory liability and section 94 B of the Corporation act-was raised as a defense by way of demurrer. The court overruled the demurrer, holding in that particular ease that the-statute was passed subsequent to the creation of the statutory-liability, and therefore constitutional provisions prevented its use as a defense. In the latter case the liability there sought to be imposed was the trust fund liability, and consequently that liability did not come within the scope of' section 94 B of the Corporation act, which applies only to a, statutory personal liability.

I am of the opinion that the fifth separate defense is a. good defense to the action, that the plaintiff does not allege- or disclose any cause of action against the defendant in that it is contrary to the provisions of paragraph 94 B of the Corporation act, hereinbefore set forth and that therefore the-complaint should be dismissed. Under these circumstances,, the other points raised need not be determined.

An order in conformity with the foregoing views may be-presented.


author: Macicay, C. C. J.

text:
    ANTHONY QUALTERE, PLAINTIFF, v. PATERSON, RIDGEWOOD AND WESTWOOD TRANSPORTATION COMPANY, AND THOMAS ERLEWEIN, DEFENDANTS.
    Decided December 24, 1931.
    Por the plaintiff, Ward & McGinnis.

    Por the defendants, Holmwood & Creighton.

   Macicay, C. C. J.

A careful examination of the testimony and briefs leads me to the conclusion that the verdict is not contrary to the weight of the evidence. The verdict, however, is excessive.

Admitting for the purpose of the argument that the loss -of wages, medical bills, X-rays, &c., total $4,664, nevertheless plaintiff was a laborer working for different concerns whenever he could get employment, and although at that time he was earning $42 and quite often $49 a week, to-day the man is receiving $25 a week compensation for this same kind of work, providing he can find it. It appears that the plaintiff is employed in a temporary line of work, which is perhaps a little different from what he had been doing and is not so strenuous, but even if he were able to handle the old line of work the salary would not be more than what he receives at present.

Dr. Pinke, after a careful and thorough examination, said there was a seventy per cent, loss of hearing in the right ear, that the bone induction or vibration was sixty per cent, bad and forty per cent, good, and that Mr. Qualtere’s equilibrium is properly and perfectly maintained. This was all the result of a very careful examination on the day of the trial and cannot be used, for the purpose of comparison, with the testimony of Dr. Markowitz, who had not examined plaintiff since May 28th, 1931, a number of months before the trial.

I am of the opinion that the verdict is excessive to the extent of $5,000. If the plaintiff will consent to accept $15,000 within twenty days from the entry of the order hereunder, the rule to show cause will be discharged, otherwise it will be made absolute and a venire facias may issue.


text:
    LOUIS HOROWITZ, ROSE HOROWITZ, AND MARY HOROWITZ, BY HER NEXT FRIEND, LOUIS HOROWITZ, PLAINTIFFS, v. JAMES HEARY, DEFENDANT.
    Decided January 8, 1932.
   Ackekson, C. C. J.

This matter comes before me upon a rule to show cause why the verdict rendered in favor of the defendant should not be set aside and a new trial granted because said verdict is against the weight of the evidence.

I have carefully read the transcript of the testimony and my notes, taken during -the trial, and the case is still fresh in my mind, and I feel that the verdict for the defendant is so clearly against the weight of the testimony as to indicate that the members of the jury were actuated by passion, prejudice or mistake, and the rule to show cause is therefore made absolute and a trial de novo ordered.


author: Ingeksoll, Y. 0.

text:
    In the matter of the appeal from the decree of the orphans court of the county of Camden, admitting to probate a certain paper writing as the last will and testament of John W. Johnson, deceased.
    [Decided January 13th, 1932.]

      Messrs. Boyle & Archer, for the appellants.

      Mr. Joseph Bede Tyler, for the respondents.
   Ingeksoll, Y. 0.

After a very careful examination of the testimony, and due consideration of the arguments presented, I concur in the findings of the orphans court, and were it not for the fact that the judge of that court concludes his opinion as follows: “I am of the opinion, and I find as a fact, that the caveators have failed in their proof to establish the fact that the will was the result of undue influence, and will dismiss the caveat and order the probate of the will/’ I would advise an affirmance upon that opinion.

However, I deem it necessary to refer to the question of burden of proof.

It is unnecessary to determine whether the circumstances which have been related raise the presumption that undue influence had been exerted by the proponent (In re Morrisey’s Will, 91 N. J. Eq. 180), as that presumption has been overcome by his denial in a convincing manner. In re Morrisey’s Will, supra; In re Sparks’ Case, 68 N. J. Eq. 242.

I will, therefore, advise an order affirming the order of the orphans court.


author: Per Curiam.

text:
    FRANK P. FARRELL, PROSECUTOR, v. THE BOARD OF EDUCATION OF THE TOWN OF WEST ORANGE, IN THE COUNTY OF ESSEX, AND RUSSELL RINEHART, SECRETARY OF THE BOARD OF EDUCATION OF THE TOWN OF WEST ORANGE, IN THE COUNTY OF ESSEX, AND BURNS LANE RICHARDSON COMPANY, INCORPORATED, A CORPORATION, DEFENDANTS.
    Argued December 23, 1931
    Decided December 31, 1931.
    Before Justices Teen chard, Daly and Donges.
    For the prosecutor, Michael T. & Hugh G. Barrett and Frederick J. Gassert.

    For the defendants, Grosso, Brundage & Anderson.

   Per Curiam.

This is an application for a writ of certiorari to review a resolution of the board of education of the town of West Orange in the county of Essex, adopted November 20th, 1931, awarding the contract for the heating and-ventilating work and equipment for a new school to be erected in the town of West Orange, to Burns Lane Bichardson Company, Incorporated, as the low bidder. Application for a writ heretofore made to Chief Justice Gummere was refused by him.

The specifications for the new school called for proposals for the heating and ventilating work and equipment upon the basis of a base bid and thirty-four alternates'—the board of education to determine which of the alternates would be selected and adopted. There were three bidders, Daniel McGrath Company, Burns Lane Bichardson Company, Incorporated, and Frank P. Farrell, the prosecutor. At a meeting of the board, held November 19th, 193.1, seven of the thirty-four alternates were upon motion selected and adopted, although the good judgment of selecting one of the main alternates was questioned by one of the members of the board. It was found that Daniel McGrath Company, upon the basis of the base bid and this selection of alternates, was the lowest bidder, but when a motion was proposed to award the contract to Daniel McGrath Company, Frank P. Farrell, through his attorney, protested upon the ground that Daniel McGrath Company was disqualified as a bidder because Daniel McGrath Company had not bid on all of the thirty-four alternates. Farrell further claimed that, if Daniel McGrath Company was disqualified, then he, Farrell, would be the lowest bidder and thus entitled to the contract. The motion proposed was not seconded, and no award of contract was made at the meeting. It then being very late at night, the meeting was adjourned and continued until the next evening, November 20th, 1931.

At the meeting held on November 20th, 1931, discussion as to the selection of alternates was renewed, and for apparently good reasons then advanced, there were some changes made in the selection made the night before; and upon the basis of the base bid, and the alternates finally selected and adopted by resolution at this meeting, it was found that Burns Lane Bichardson Company, Incorporated, was the lowest bidder, and accordingly resolution was adopted awarding the contract to Burns Lane Bichardson Company, Incorporated. This is the resolution the prosecutor wants reviewed.

The prosecutor Farrell contends that, though no contract had been awarded to him, or anyone else, at the meeting of November 19th, 1931, yet, since, as he claims, he was the lowest qualified bidder on the basis of the selection of alternates made by motion at that meeting, such motion created a vested right in him, Farrell, to the award of the contract, precluding any subsequent exercise of judgment upon the part of the board in the selection and adoption of alternates. There is no merit to this contention; and the cases cited by the prosecutor (Montefiore Cemetery Co. v. Board of Commissioners of the City of Newark, 130 Atl. Rep. 730; Hudson Telephone Co. v. Jersey City, 49 N. J. L. 303, and Whitney v. Van Buskirk, 40 Id. 463) bear no factual resemblance whatever to the instant case, and express no law in support of Farrell’s claim.

After a consideration of the arguments made and the affidavits presented, we find no showing of any substantial irregularity in the proceedings resulting in the award of contract made to Burns Lane Bichardson Company, Incorporated, and our conclusion is that in the exercise of sound discretion the writ should be denied.

The application is denied, with costs.