text:
    HERMAN HOROWITZ, PETITIONER-RELATOR, v. JOHN RATH, INSPECTOR OF BUILDINGS, ETC., OF BAYONNE, ET AL., RESPONDENTS.
    Submitted October term, 1930
    Decided January 20, 1931.
    Before Justices Parker, Campbell and Bodine.
    For the rule, Aaron A. Melniker.

      Qontra, James Benny.

   Pee Curiam.

The situation here seems to be that the building inspector refused to grant a permit for a nineteen-family apartment house upon the ground that a zoning ordinance was in process of being adopted. Several applications for such a permit seem to have been made, the last of which was September 10th, 1930. Thereupon an appeal was taken to the city commission under the provisions of the building code, which provides that such body must act upon such an appeal at its meeting next after such appeal is lodged with it. Nothing appears to have been done under such appeal by the commissioners except to refer it to its director of public works.

A zoning ordinance was introduced in the city commission on February 18th, 1930; laid over to March 4th and then to Mai'ch 18th, when it was referred to the committee of the whole to report April 1st, 1930. Such committee reported June 17th, recommending certain changes. This report was adopted and the passage of the ordinance laid over to June 26th, at which time the matter was referred to the city attorney who, on July 16th, 1930, filed his opinion that there had not been proper notice given of the hearings upon such proposed ordinance and that it should be reintroduced, with the amendments recommended by the committee of the whole. It does not appear that anything further has been done since that time.

The original ordinance provided for a zone A, restricted to residences for not more than two families each, and a zone B, permitting any character of residential structure. One of the proposed, and adopted, amendments provided for the placing of all residence areas in zone B, in which the maximum height of all buildings should be limited to six stories or seventy-five feet. The building of the applicant-relator is designed to be four and one-half stories or forty-five feet in height.

A single ground is urged why the writ of mandamus should be awarded and that is that the city has had more than a reasonable time since the adoption of the zoning-amendment to the constitution and the legislative act of 1928 in which to prepare and adopt its zoning ordinance.

In Butvinik v. Jersey City, 6 N. J. Mis. R. 803, we refused a writ because we said that municipal bodies should have a reasonable time to inquire into, prepare for and adopt such measures.

In Deerfield v. Hague, 8 N. J. Mis. R. 637, this court held that a reasonable time had been accorded Jersey City as laid down in Butvinik v. Jersey City, supra.

In that case Jersey City had not appointed its zoning commissioners until June 11th, 1929, and up to the time of rendering the opinion under which the writ of mandamus was awarded, August 2d, 1930, such commissioners had not made their report; all of this in face of the fact that the zoning amendment to the constitution was adopted September 20th, 1927, and the enabling statute was passed April 3d, 1928. Bamph. L. 1928, p. 696.

In the matter before us the proceedings have progressed to a point nearer, and more closely approaching, an adoption of an ordinance although not with that degree of dispatch meeting the approval of this court.

Under the circumstances, however, we do not feel that at this time we are warranted in awarding the writ prayed for. It’s denial, however, is without prejudice to the petition to re-apply for it at some later day or for a writ requiring the commissioners of Bayonne to proceed with and bring to a reasonably prompt termination the proceedings now pending respecting the adoption of the ordinance in question.

The rule to show cause is discharged, hut without costs.


source: Caselaw Access Project

author: Peb Clfbiam.

license: Public Domain

text:
    AL. EITNER, INCORPORATED, PLAINTIFF-RESPONDENT, v. EUGENE McGUIRE, DEFENDANT-PROSECUTOR.
    Submitted October term, 1930
    Decided January 20, 1931.
    Before Justices Pabkeli, Campbell and Bodine.
    For the prosecutor, Michael J. Tansey.

    For the respondent, Richard II. Gashion.

   Peb Clfbiam.

There is before us, for review, a judgment of the Second District Court of Newark in a landlord and tenant proceeding, dispossessing the prosecutor from the first floor and cellar of the premises known as 526 Sanford avenue, Newark, which he had gone into and continued in possession of under a letting with one Tansey, the then owner, on May 1st, 1930, having paid to his said landlord the rent for the month of May but not having paid that for the month of June. The premises were sold by the sheriff of Essex county under an execution in foreclosure proceedings on April 29th, 1930, to the respondent, and the deed by such officer was delivered to it on May 10th, 1930.

On June 25th, 1930, the respondent, by its duly authorized agent, made and filed in the District Court, an affidavit seting up that the prosecutor was in the occupancy and possession of the premises in question under an agreement made between him and Michael J. Tansey, “former owner of the said premises,” on May 1st, 1930, whereby Tansey let and rented the premises to prosecutor from month to month from May 1st, 1930, at the monthly rental of $50, payable in advance; that on May 10th, 1930, the sheriff of Essex county delivered to the respondent a deed for said premises under a sale of April 29th, 1930, pursuant to a fieri facias dated February 11th, 1930, in a foreclosure proceeding wherein Alfred Eitner was complainant and Michael J. Tansey. and others were defendants, “whereupon Al. Eitner, Inc., * * * became the owner of said premises and was thereafter entitled to the rents, issues and profits” thereof; that the said prosecutor was then indebted to the respondent in the sum of $50 for one month’s rent of said premises, due June 1st, 1930; that on June 19th, 1930, demand was made upon him for payment of said rent and requiring such payment of said rent and requiring such payment within three days or possession of the leased premises, and that prosecutor neither paid the rent nor delivered up possession of the premises.

Thereupon a summons was issued, returnable June 30th, 1930. On said return day both prosecutor-defendant and respondent-plaintiff appeared and the former questioned that title and right of possession .of the latter, who to establish this offered in evidence the sheriff’s deed and it was received by the trial judge over objection of the prosecutor. There was no proof of any relationship of landlord and tenant existing as between the parties.

xlgainst, and in face of, these objections the trial court awarded a judgment for possession against the prosecutor and in favor of the respondent.

The validity of this judgment is attacked here upon the ground that it was necessary for the respondent to clothe the court with jurisdiction, to prove and establish title to the premises and that is beyond the jurisdiction of the court below under section 18Í of the Landlord and Tenant act (3 Comp. Stat., p. 307-1), and which is in language following: “If upon the said trial the plaintiff shall not be able to prove, by lease or other evidence, his right to possession of the premises claimed by him, without proving title to lands, tenements and hereditaments, it shall be the duty of the said judge or justice of the peace to dismiss the action.”

In Watson v. Idler, 54 N. J. L. 467, this question was not decided because the tenant did not appear “so of all the jurisdictional facts set forth in the affidavit, no further proof of their existence becomes necessary, unless it is demanded by the tenant” said this court.

In Lloyd v. Richman, 57 N. J. L. 385, the point was not decided because the record brought up did not show the proof presented to the court below.

In Roberts v. McPherson, 62 N. J. L. 165, as in Watson v. Idler, the point was not before the court because the defendant below had not required proof to be made of the facts authorizing his removal.

The authorities cited by respondent that a tenant may not, in such proceedings, question the title of his landlord are well enough in their place, but have no application here because the relation of landlord and tenant, as between the prosecutor and respondent, did not exist.

So, also, are the authorities cited, holding that a purchaser .at an execution sale acquires the right, title and interest of his debtor in the lands so sold and purchased, good to the extent indicated, but these do not reach the question here involved under the section of the Landlord and Tenant act before referred to.

The situation here, plainly presented, is that the respondent, being called upon to produce proof of his right to possession of the premises was unable to do so except by proving title, and under the plain terms of the statute, before referred to, when put to this, the court below was without jurisdiction.

The judgment below must therefore be reversed and set aside, with costs.


author: Per Curiam.

text:
    EDWARD HARRIS, PROSECUTOR, v. INTERNATIONAL MOTOR COMPANY, RESPONDENT.
    Submitted October term, 1930
    Decided January 20, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutor, Turner <& Stalter.

    For the respondent, Isidor Kalisch.

   Per Curiam.

The writ brings up for review the judgment of the workmen’s compensation bureau, dismissing a petition upon the ground that it was not filed within the statutory period of one year, after the last payment of compensation.

The prosecutor was injured during the course of his employment with the respondent for which he was paid temporary compensation and full compensation for loss of his right foot. All of this was payable at $12 per week over a period of three hundred and twenty-five weeks. These payments were made by checks covering periods of four weeks in each payment. The check covering payment for the last installment was dated January 4th, 1928, and covered the period from January 3d to January 31st, 1928. The last compensation payment was due on January 31st, 1928, but was paid in advance although there was no authorization for so doing by the workmen’s compensation bureau. The petition in question here was filed January 23d, 1929.

The respondent contends that under that portion of section 5 [Pamph. L. 1918, ch. 149), “* * * or in case a part of the compensation has been paid by such employer, then within one year after the last payment of compensation” must be construed to mean, in the case before us, that such one-year period commenced to run January 4th, 1928.

We do not so read or construe this provision but do find and hold that the prosecutor had thereunder, one year from the date when the last payment became due and payable, namely, January 31st, 1928, in which to file said petition. As this was done there was error below in dismissing the petition and such judgment is reversed.

Respondent further contends that although there was error in dismissing the petition upon the ground stated, the prosecutor-petitioner was not injured thereby because his petition is an original petition, while under the circumstances he could file one only for a review of the agreement for compensation under Pamph. L. 1919, p. 211, 21 (f). This is not so. The statute gives the right to file an original petition within a year after payments stop. Herbert v. Hardware Co., 8 N. J. Adv. R. 487.

The judgment under review is reversed and set aside.


text:
    FELICETTA JANNARONE, PROSECUTRIX, v. THE BOARD OF ADJUSTMENT OF THE TOWN OF NUTLEY ET AL., RESPONDENTS.
    Submitted October term, 1930
    Decided January 20, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutrix, John B. Brown.

    Eor the respondents, William F. Gorman.

   Per Curiam.

We have before us the decision and judgment of the board -of adjustment of the town of Nutley affirming the action of the building inspector in refusing to issue a building permit for the construction of a building on the lands of the prosecutrix, which structure, if erected, would result -in a nonconforming use of the lands under the zoning ordinance of Nutley, which places such lands in class B residence zone. 'The permit applied for was for the erection upon such lands ■of a sand and stone hopper and a railroad spur.

Upon appeal the board of adjustment, after hearing testimony, found and determined that “a variance in the terms of the ordinance, as requested by the appellant, will be contrary to the public interest and that there are no special conditions that will result in unnecessary hardship because of a literal enforcement of the provisions of the ordinance,” ¡and further, that the use desired to be made of the lands by the appellant “would increase the traffic congestion at the corner of Park avenue and Walnut street and the literal enforcement of the terms of the ordinance would promote the health and general welfare of the people living in the neighborhood and would tend to secure the safety of the school children at the corner.”

In urging a reversal of the judgment before us the prosecutrix insists:

1. That it is unreasonable in that the testimony conclusively shows that owing to special conditions, including the physical layout of the premises, a literal enforcement of the zoning ordinance has and will result in unnecessary hardship to the landowner.

2. That prosecutrix’s land, proposed to be used as a material storage yard, is so located that it is particularly adapted for such proposed use, and the character of the surrounding neighborhood is such that it is an unreasonable application of the zoning ordinance to prohibit such use, and such use would in nowise be a detriment to the public health, welfare or safety.

3. That such judgment violates article 1, section 16, and article 4, section 7, paragraph 8 of the state constitution, as taking the property of prosecutrix without compensation.

4. That such judgment violates article 1, paragraph 1 of the state constitution in that it trespasses upon the natural and inalienable rights of acquiring, possessing, enjoying and protecting property.

o. That such judgment violates section 1 of the fourteenth amendment to the constitution of the United States respecting due process and equal protection of the laws.

As to grounds one and two, raised by the prosecutrix, there are two answers, both calling for a finding against her.

The first of these is that the action of the respondent, board of adjustment, is limited by the statute (Pamph. L. 1928, ch. 274), under section 3, as follows:

“To authorize upon appeal in specific cases such variance as will not be contrary to the public interest, where owing to special conditions, a literal performance of the provisions of the ordinance will result in unnecessary hardship and so> that the spirit of the ordinance shall be observed and substantial justice done; and provided that no such variance shall be made to grant or allow a structure or use in a district restricted against such structure or use unless the lands in respect of which the variance is made about a district in which such structure or use is authorized by the zoning ordinance; * *

■ Second. The board of adjustment acts judicially and its findings will not be set aside by this court unless found to be without support in fact or la;w. Bellofatto v. Montclair, 6 N. J. Mis. R. 512; Harrison v. Montclair, 6 Id. 570; Construction Co. v. Irvinglon, 6 Id. 547; Levine v. Rutherford, 6 Id. 548.

In these directions we are unable to say that the board of adjustment was in error in finding and adjudging as it did.

Under points three, four and five we think prosecutrix can take nothing. By the amendment to the constitution rer specting zoning all rights therefore existing under the constitution in conflict with that amendment were relinquished.

We conclude that the judgment under review must be affirmed and the writ dismissed, with costs.


author: Pee Curiam.

text:
    JOHN W. HOFFMAN, PLAINTIFF, v. WILLIAM H. DOWNS, DEFENDANT.
    Submitted May term, 1930
    Decided January 22, 1931.
    Before Justices Case, Daly and Donges.

      Eor the plaintiff, King & Vogt {Harold A. Price, on the brief).
    Eor the defendant, Elmer IF. Romine.

   Pee Curiam.

The matter comes before us on the defendant’s rule to show cause why the verdict rendered in the Morris Circuit should not be set aside and a new trial granted. The points argued on the brief are—first, that the verdict was contrary to the weight of evidence, and second, that the court committed error in its charge to the jury.

The action was for commissions alleged by the plaintiff to be due him under a written contract with the defendant for the plaintiff’s services in negotiating an agreement of lease between the defendant and a tenant. The written agreement sued upon was proved. It required the defendant to pay to the plaintiff the sum of $1,650 in ten annual installments, with the provision that if any of the payments should become due and remain unpaid for a period of thirty days, the total of the unpaid balances would immediately become due and payable. It was further proved that one of the stipulated payments was not paid on the due date and remained unpaid for more than thirty days. The amount of the verdict is in accordance with the unpaid installments. There obviously was adequate evidence to sustain the verdict. It is ill evidence that the tenant during the term of the lease became insolvent and defaulted in the rent. Defendant testifies that two days after the making of the written contract he had thought the matter over and said to the plaintiff: "How about if these people should fail to continue to pay their rent or not furnish the coal for heat. * * * Am I supposed to pay you the full rental in ease of that happening?” And that the defendant replied: “Well, he says, no not in that ease.” Even if this testimony had remained uncontradicted it would be of questionable legal force inasmuch as no consideration was shown (Titus, &c., v. Cairo, 37 N. J. L. 98); but the plaintiff categorically denied that testimony, and the matter at the very least became one for the jury to dispose of. The written agreement between. plaintiff and defendant was not, by its terms, contingent, upon the compliance by the tenant with the obligations of' the latter’s lease.

We have also examined the judge’s charge in the light of' the exceptions and the reasons for the exceptions stated at the time of the taking thereof. We find no harmful error therein.

The rule will be dismissed, with costs.


text:
    GRACE S. VAN HOUTEN AND ARNOLD JACOBY, PLAINTIFFS-RESPONDENTS, v. JEANIE CAMPBELL, DEFENDANT-APPELLANT.
    Submitted May term, 1930
    Decided January 22, 1931.
    Before Justices Case, Daly and Donges.
    For the plaintiffs-respon dents, Samuel Bosenfeld.

    For the defendant-appellant, Ward & McGinnis.

   Per Curiam.

The major portion of the specification of errors is a recital of a motion by the defendant, at the close of plaintiffs’ casej. for a direction of judgment in favor of the plaintiff for "nominal damages/’ the reasons therefor, the reservation of decision thereon, the putting in of the defense under permission by the court, a renewal of the motion, a submitting, of briefs, a denial of the motion, and the entry of judgment, in favor of the plaintiff, closing with the statement that, "the court erred in this determination and appellant is dissatisfied with same in point of law.” We are unable to determine precisely which of the court’s determinations is the one objected to by appellant. We gather from her brief that she lays the error in the denial of the motion to direct, but we do not understand that the defendant has a right to compel a verdict, large or small, to be entered in favor of an unwilling plaintiff. Perhaps the defendant meant thus-to limit the extent of plaintiffs’ recovery, but the motion was not appropriate to that end. Nor was the motion sufficiently explicit. A verdict for money damages is in figures or their equivalent, not in the nomenclature "nominal damages.” Plaintiff would now waive aside the entire defense on the theory that the defendant, having moved for a direction, was not entitled to produce testimony thereafter—a. matter which, by pertinent objection, should have been—but according to the record was not—presented at the trial. Nevertheless, we find no reversible error in this division of appellant’s case.

A further allegation of error requires a brief statement, of the case. The action arises out of a contract relating to a "Hair Devitalizing Machine.” There had been an earlier agreement between the distributor and one Clark, giving the-latter certain agent’s and lessee’s rights. Clark’s rights were assigned to Yan Ilouten. Yan Houten, one of the plaintiffs herein, and Campbell, the defendant herein, entered into-an agreement whereby the former undertook to assign “the contract” to Campbell, and the latter agreed to purchase the same for $500, payable $100 on the next day, namely, November 19th, 1929, and $400 on December 2d, 1929; the-contract to be actually transferred upon the making of the $400 payment. Nothing further was done except that, as-the stipulated facts recite, “the plaintiff was notified by the •defendant that she would not take the machine.” This suit was brought for the recovery of the contract price.

It is conceded by both parties that the case is within the Sale of Goods act (4 Comp. Stat., p. 4647); but a dispute .arose at the trial and is continued on appeal as to which .section of the act was operative, whether section 63, subsection 2, as argued by the plaintiff, or section 64 as argued by the •defendant. The trial judge, sitting without a jury, found, in his decision, that “this action was brought by the plaintiff under section 63, subsection 2, of the Sales act, and not .section 64, and under this section plaintiff is entitled to recover the purchase price of the contract, viz., five hundred ■dollars.”

Nothing had been done under the contract. The contract was wholly executory. “The rule of law is that either party to a contract, wholly or partially executory on the part of the •other party, always has the right to stop performance by the ■other party subject to that party’s right to damages. Ell. L. S. 611. Eepudiating a contract to sell goods or countermanding performance, does not rescind the contract, but ■constitutes a breach of it. 2 Mech. S., § 1092. If the breach ■of contract takes place before any of the goods have been •delivered, the measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of ■events, from the buyer’s breach of contract.' Sales of Goods Act, § 64 (1) (2); Comp. Stat., p. 4662; Ell. L. 8. 612;” Bixler v. Finkle, 85 N. J. L. 77. See, also, Crichfield-Loeffler, Inc., v. Taverna, 4 N. J. Mis. R. 310.

Section 64 of the Sales act, supra, subsections 1 and 2, provide as follows: “(1) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non-accept.ance. (2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of •events, from the buj^er’s breach of contract.” 4 Comp. Stat., jp. 4662. That language, in our opinion, is controlling. It ■cannot be said that the obligation to pay the $500 was so irrespective of delivery that section 63, subsection 2, became-applicable.

There was no proof of damage ensuing from the defendant’s breach of contract.

The finding of the trial judge was in error. Judgment below will be reversed.


text:
    JOSEPH WACHSTEIN AND NORMA WACHSTEIN BY NEXT FRIEND, PLAINTIFFS-PROSECUTORS, v. COLLINGS CARRIAGE COMPANY, A CORPORATION, DEFENDANT-RESPONDENT.
    Submitted May term, 1930
    Decided January 22, 1931.
    Before Justices Case, Daly and Donges.
    For the prosecutors, Patricio PL. Harding.

    For the respondent, Gurry <& Purnell (Edward T. Gurry,. on the brief).
   Per Curiam.

Suit was for personal injuries to the minor plaintiff, a child of between four and five 3rears of age, and for incidental damages to the father. The jury rendered a verdict of “no-cause of action” in favor af the defendant against both plaintiffs. The matter comes before us on plaintiffs’ rule to show cause why a new trial should not be granted, and the reasons assigned are that the verdict was the product of feeling,. prejudice, bias and mistake, and that the verdict was clearly against the weight of the evidence. The child, who had been playing on the sidewalk, walked or ran in front of defendant’s automobile truck and was thus injured. The jury ■could have found from the evidence that defendant’s truck was being driven at a speed of about fifteen miles per hour ■along the public highway; that the child, without warning of any kind, when the truck was from fifteen to twenty feet distant, suddenly dashed from-the scene of play, a place of ■safety, into the path of the truck; that the driver thereupon made strenuous but unsuccessful effort to stop the vehicle; that the child was immediately at the rear of the truck when ihe latter came to a stop.'

We are not persuaded that the verdict was the product of prejudice, bias or mistake, nor do we find it against the clear weight of the evidence.

The rule will be dismissed, with costs.


text:
    BELYEA COMPANY, INCORPORATED, PLAINTIFF, v. WILLIAM McCullough, DEFENDANT.
    Submitted May term, 1930
    Decided January 22, 1931.
    Before Justices Case, Daly and Donges.
    Eor the defendant, Jerome J. Dunn.

   Per Curiam.

The matter comes before us on defendant’s rule to show ■cause why a new trial should not be granted. The plaintiff secured a judgment by direction of the court at the Passaic Circuit in the absence of the defendant and of the defendant’s attorney. The trial was duly noticed for the term and the plaintiff’s procedure was in accordance with its rights. We are persuaded that the then attorney for the defendant, .since substituted, was negligent in relying unduly upon the .assurance of the clerk that special notice of the approach of the trial would be given. There appears to be a meritorious ■defense, however, and no argument is presented to us in opposition to the application.

The rule may be made absolute.


author: Pee Ctjbiam.

text:
    MARCHESE AUTO SALES COMPANY, INCORPORATED, PLAINTIFF-RESPONDENT, v. RALPH VAN KEUREN, DEFENDANT-APPELLANT.
    Submitted May term, 1930
    Decided January 22, 1931.
    Before Justices Case, Daly and Donges.
    Por the defendant-appellant, Joseph H. Gaudielle and James A. Major.

   Pee Ctjbiam.

The suit was on an agreement whereby, as alleged in the state of demand, defendant agreed to work for plaintiff as an •automobile salesman, for a compensation of five per centum ■on automobiles sold by him, with a drawing account of $50 per week chargeable against his commissions. As further alleged in the state of demand, defendant left the employ of plaintiff owing the latter an overdraft of $533.34 ahovecommissions. For that amount plaintiff sued, waiving the excess above $500.

At the trial plaintiff proved an agreement in essence as-alleged in its pleading but with the added provision that, moneys paid as drawing account were to be advances on commissions and were to be repaid to plaintiff if defendant should not, in fact, earn the amount thereof. At the close-of plaintiff’s case defendant moved for a nonsuit “on the ground that plaintiff had not established a case under the law of this state, citing Roofing Sales Co. v. Rose, 103 N. J. L. 553.” The motion was denied. Defendant took the stand,, gave his version of the employment contract, otherwise produced his case and, having rested, moved for, and was denied,, a direction of verdict.

The defendant under the second point of his brief contends that the court erred in denying his motion for nonsuit: upon the ground that plaintiff had not made out a prima. facie case; and he still relies upon Roofing Sales Co. v. Rose, supra. That case holds that “in the absence of a special agreement, an agent who receives advances on account of commissions cannot be held to a personal liability for such advances, although the commissions charged by him do not equal the advances and although his employment has ceased.”'

In the case before us, however, there was a special agreement proved b.y the plaintiff; and that agreement was that, the defendant would repay so much of his drawing account, as was not equalled by his actual earnings. True, the. defendant made denial, but the question was, in that aspect, factual and not legal. True, also, the agreement was not so-pleaded in the state of demand; but that was the case as presented by the plaintiff and met by the defendant. There-was no allegation of surprise or other objection entered by the defendant to this presentation of the contract. We think there was no error in the refusal to nonsuit.

Defendant’s remaining points on the appeal are that the-court erred in admitting in evidence certain payroll books. and in permitting defendant to be cross-examined regarding the contents of certain papers. The defendant, however, admitted that these papers were duplicates of original statements which were given to him each month for the purpose of showing the state of his account and that they correctly showed the excess of advancements over commissions. We find no harmful error in these rulings.

The judgment below will be affirmed.


author: Pee Cubiam.

text:
    VINCENT C. DUFFY, PLAINTIFF-RESPONDENT, v. JOSEPH SANER, DEFENDANT-APPELLANT.
    Submitted May term, 1930
    Decided January 22, 1931.
    Before Justices Cash, Daly and Donges.
    Por the defendant-appellant, Peter Hofstra.

   Pee Cubiam.

This is an appeal from a judgment entered on a directed verdict in the First District Court of Paterson.

The defendant had been convicted on a charge of reckless driving and as a part of the punishment had been deprived of his automobile driver’s license for a period of one year. Some weeks later the license was reinstated through the efforts of the plaintiff, and the plaintiff now seeks to recover the sum of $200 for such services. He sued on two counts, one on express contract and the other for the value of the services rendered. The case comes up on stipulated facts, incorporated within which is the testimony of the defendant that there was no agreement to pay any amount, for the services, but that the arrangement was that the “services- were to have been rendered gratuitously through -the friendship of one Mr. Zimlinghaus, a police officer of the city of Paterson, who was the mutual friend of both the plaintiff and the defendant.” Granting that the evidence given for the plaintiff was diametrically opposed, material facts, and the inferences to be drawn therefrom, were thus-put in dispute. We are unable to say that fair-minded men might not well differ about them. The finding of fact was for the jury. Our conclusion is that the court erroneously directed a verdict in favor of the plaintiff. This is one of the points made by the appellant. The remaining points need not be considered.

We have not had the benefit of a presentation by the respondent.

The judgment below will be reversed.


author: Pee Ctieiam.

text:
    ROBERT K. CASSATT ET AL., TRADING AS CASSATT & COMPANY, PLAINTIFFS, v. THE FIRST NATIONAL BANK OF WEST NEW YORK, NEW JERSEY, A CORPORATION, DEFENDANT.
    Submitted May term, 1930
    Decided January 22, 1931.
    Before Justices Case, Daly and Donges.

      Eor the plaintiffs-respondents, McCarter & English (George 17. C. McCarter, on the brief).
    Eor the defendant-prosecutor, Samuel L. Jlirschberg.

   Pee Ctieiam.

The suit is brought to recover the purchase price of stock alleged to have been purchased by the defendant from the plaintiffs. The plaintiffs are a partnership whose principal office is in the city of Philadelphia and one of whom resides in the city of Camden. The defendant is a national banking association with its place of business in West New York, Hudson county, New Jersey. The suit was instituted in the Supreme Court and the venue laid in Camden county. The-rule is to show cause why the venue should not be changed to some other county. The prosecutor contends, first, that a change of venue in the case should be granted as a matter of right, and second, that if the court should determine that the defendant is not entitled to the change of venue as a matter of right, the discretion of the court should be exercised in favor of the defendant.

Our attention is directed to section 94 of the United States Code, title 12, chapter 2, National Banks, which provides:

“Actions and proceedings against any association under this chapter may be had in any district-or territorial court of the United States, held within the district in which such association may be established, or in any state, county or municipal court in the county or city in which said association is located having jurisdiction in similar cases. (R. S., Sec. 5198; Feb. 18, 1875, C. 90; Sec. 1, 18 Stat. 320.)”

The prosecutor imputes such force to that language as-that the defendant association being located in Hudson county, the venue in the present suit must be laid in that county, and in support of its contention cites Raiola doing business, &c., American and British Travelers Club v. Los Angeles First National Trust and Savings Bank, 133 N. Y. Mis. 630; and Crocker v. Marine National Bank, 101 Mass. 240.

We are inclined to think that the direct application of the .statute is to jurisdiction and that it is not in such potent •control of venue as to be imperative in the present case. The decisions to which we have just referred arose out of instances in which the banking institutions were not located physically within the territorial jurisdiction of the courts in which the actions were brought. The Supreme Court of this .state together with the Court of Chancery and the Prerogative 'Court are courts of state-wide original jurisdiction and are “in” every county and municipality of the state. It would hardly be argued, for instance, that a national banking association with its place of business in a county where no Chancery chambers were maintained could not be made a party defendant to an appropriate suit in the Court of Chancery. We are not persuaded that a change of venue should .be allowed as a matter of right.

It is, of course, within the discretion of the court to grant .a change of venue (Defiance Fruit Co. v. Fox, 76 N. J. L. 482), if a proper case is presented for the affirmative use of •that discretion. So far as the needs of the trial are disclosed, there will be no occasion for the exhaustive production of •either officials or records. It appears that the matter is one within a limited compass and that the absence from the bank of such officials and documents as are necessary for the trial will not seriously inconvenience the defendant in its banking operations. As against a nice balancing of circumstances of mere accommodation to the parties, the legal right •of the plaintiff should prevail. Demurest v. Hurd, 46 N. J. L. 471. It is for the prosecutor to show special cause for •changing the venue. State Bank at Morris v. Hederiberg, 16 N. J. L. 352.

We conclude that the rule should be dismissed, with costs.


author: Pee Curiam:.

text:
    ALICE V. LOHMAN, PLAINTIFF-RESPONDENT, v. PHILIP LINDEMAN, DEFENDANT-APPELLANT. JOHN N. LOHMAN, PLAINTIFF-RESPONDENT, v. PHILIP LINDEMAN, DEFENDANT-APPELLANT. JOHN N. LOHMAN, PLAINTIFF-RESPONDENT, v. PHILIP LINDEMAN, DEFENDANT-APPELLANT.
    Submitted May term, 1930
    Decided January 22, 1931.
    Before Justices Case, Daly and Donges.
    For the plaintiffs-respondents, Stein, McGlynn & Hannoch {Norman B. Gtroberi, on the brief).
    For the defendant-appellant, Harley, Gox & Walburg {John J. Francis, on the brief).
   Pee Curiam:.

This appeal arises out of three verdicts against the defendant, two of them being for personal injury claims of John FT. Lohman and Alice Lohman, respectively, and the third for property damage claim of John FT. Lohman. The claims arose out of a collision between an automobile in which the plaintiffs were riding and the defendant’s automobile driven by the defendant’s employe, Lazarus Jones, then under the influence of liquor. The verdicts were entered on the finding of the judge sitting without a jury. The errors complained of are that the court denied the motion of the defendant for directed verdicts predicated upon the ground that his automobile was not being operated by his servant or agent on his business or within the scope of the employment at the time of the accident, and that the court erred in entering judgments for the plaintiffs and against the defendant inasmuch as the automobile of the defendant was not being operated in and about his business by his agent or servant within the scope of his employment at the time of the accident.

We consider that the motion for directed verdicts was properly denied and that there was sufficient evidence to sustain the court in a finding adverse to the defendant in respect to the operation of the car within the scope of the driver’s employment.

Defendant is engaged in the retail coal and ice business and operates two yards in the city of East Orange. The defendant himself did not take the witness-stand but his son, Victor D. Lindeman, testified that the latter, having authority in the operation of the business, had sent Jones to deliver a piece of ice at Victor’s house between nine and nine-thirty o’clock in the morning; that that errand would reasonably take fifteen to twenty minutes of time; that the ice was delivered and that Jones did not return; that Jones had no other orders from the yard at which the witness was located but could well pass the other yard in the course of his errand and might have received instructions there; that the site of the accident was several blocks from the course normally to be pursued in performing the aforesaid errand. A police officer testified that the accident occurred about ten o’clock and that the driver was then intoxicated.

We are unable to say that either the time or the location of the accident is so distant from the proper sphere of Jones’ employment as to relieve the defendant as a matter of law from liability. The determination was properly one of fact, and the verdicts had support in point of fact in the evidence.

The judgments below will be affirmed.


author: Pee Ceeiam.

text:
    MARY WARSHAWSKY AND MORRIS WARSHAWSKY, PLAINTIFFS-RESPONDENTS, v. NEVINS BUS COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May term, 1930
    Decided January 22, 1931.
    Before Justices Case, Daly and Donges.
    Eor the plaintiffs-respondents, Feinberg & Feinberg.

    Eor the defendant-appellant, Charles C. Colgan.

   Pee Ceeiam.

The action arises out of an illness alleged to have been incurred by the plaintiff Mary Warshawsky, while a passenger on a bus of the defendant, passing from Yew York City to Bayonne. The testimony of Mrs. Warshawsky is that she hoarded the bus at Seventh avenue and Thirty-seventh street, Yew York City, and experienced no ill effects until the bus was passing through the tunnel, when she began to feel dizzy; that her indisposition increased and that when she alighted from the bus at Bayonne she was ill and called one Dr. Eeinberg. Dr. Eeinberg testifies that his examination of the plaintiff disclosed that she was suffering from the inhalation of monoxide gas; and Mrs. Warshawsky includes in her testimony the statement that she detected the odor of gas while in the bus. The District Court judge, sitting withont a jnry, found for the plaintiffs, having theretofore denied defendant’s motions for nonsuit and for a direction of verdict respectively. The question, simply stated, is whether the doctrine of res ipsa loquitur applies to the facts of the case. The District Court finding was on the assumption that the doctrine is applicable and the respondent seeks to sustain the propriety of that application. The appellant dissents therefrom.

In Mumma v. Easton and Amboy Railroad Co., 73 N. J. L. 653, 658, it is said that the principle of the doctrine of res ipsa loquitur is that when, through any instrumentality or agency under the management or control of a defendant or his servants, there is an occurrence, injurious to the plaintiff, which, in the ordinary course of things, would not take place if the person in control were exercising due care, the occurrence itself, in the absence of explanation by defendant, affords prima facie evidence that there was want of due care.

Our examination of the testimony leads us to think that the case is not within the doctrine as thus defined. Assuming that the cause of the plaintiff’s disability was the inhalation of monoxide gas, it is not established that that poisonous vapor came from any instrumentality under the control of the defendant or the defendant’s servants. It is common knowledge that monoxide gas is given off in the exhaust of motor engines and that wherever there is impaired ventilation the gas is apt to accumulate. It is suggestive that the plaintiff, having boarded the car at Seventh avenue and Thirty-seventh street, experienced no ill results before she arrived at the tunnel, and that it was in the tunnel, where ordinarily many motor vehicles are constantly passing with their exhausts necessarily in operation, that the plaintiff began to feel uncomfortable. It is in the evidence that the engine of the bus on which the plaintiff was a passenger discharged monoxide gas, but it is not established that the gas inhaled by the plaintiff came from that source. The proof of an occurrence of an accident does not raise a presumption of negligence; where the testimony which proves the occurrence by which the plaintiff was injured discloses circumstances from which the negligent conduct of the defendant is a reasonable inference, a case is presented which calls for a defense. Bahr v. Lombard, Ayres & Co., 53 N. J. L. 233.

We do not find proof of circumstances from which the negligent conduct of the defendant may be said to be a reasonable inference, and wo are, therefore, brought to the conclusion that the judgment below is not to be sustained upon the doctrine of res ipsa loquitur, and that there should be a reversal.


text:
    JOSEPH NAGY AND HARRY THOMPSON, PLAINTIFFS, v. GERARD C. MANZIANO, TRADING AS METUCHEN TAXICAB COMPANY, AND EUGENE BYRNE, DEFENDANTS.
    Submitted May term, 1930
    Decided January 22, 1931.
    Before. Justices Case and Donges.
    For the plaintiffs-respondents, David T. Wilentz.

    For the defendants-appellants, George F. Seymour, Jr.

   Pee Curiam.

Plaintiff Thompson- is out of the case by a voluntary non-suit. Nagy received a jury verdict for $12,500 against both defendants. The case comes to us on rule to show cause, allowed at the .Middlesex Circuit, why a new trial should not be granted. The points argued are (1) that the verdict was contrary to the weight of the evidence and (2) that the damages are excessive.

The action arose out of an automobile collision at the juncture of the Lincoln Highway and a road leading to Perth Amboy. There is evidence to sustain a finding that Nagy, driving a car of which he was the owner, came from the direction of Perth Amboy, approached the Lincoln Highway, stopped at the sign at that thoroughfare, proceeded to turn into the Lincoln Highway, reached a position on plaintiff’s right thereof and was there hit by a taxicab, owned by defendant Manziano and driven by defendant Byrne, while the latter car was traveling on its own left side of the highway. We consider that the question of liability was manifestly one for the jury and that the disposition thereof is supported by the evidence.

We believe, however, that the verdict was excessive. The accident occurred June 17th, 1929. Plaintiff returned to his work September 30th, 1929, and has since continued without interruption. His wages were paid in full during his absence. The same wage was maintained after his return as before. The only money outlay proved was $735 for doctors’ bills and X-ray costs. There is evidence of a diminished acuteness in the hearing of one ear and of a compression fracture of two of the vertebrae that should receive care for a period and that will somewhat impair the process of bending the body toward the floor; and there is evidence also of occasional visitations of dizziness. Suit was instituted within a month and a half after the accident and brought to trial five and one-half months thereafter. The proofs do not justify an assumption that the ultimate impairment will be substantially greater than it was at the latter date.

Our conclusion is that the judgment below may stand if the plaintiff will consent to the reduction of the verdict to the amount of $7,500; that otherwise the rule may be made absolute.


text:
    RAE JAYSON, PLAINTIFF-RESPONDENT, v. AMERICAN CASUALTY COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1930
    Decided January 22, 1931.
    Before Justices Case, Daly and Donges.
    For the plaintiff-respondent, Kalisch •& Kalisch and Robert I. Morris (Isidor Kalisch, on the brief).
    For the defendant-appellant, Walter X. Trumbull {Joseph G. Paul, on the brief).
   Per Curiam.

The defendant company had issued its policy of indemnity insurance on May 6th, 1924, to one Eose Kirschner, who on or about June loth, 1926, conveyed the involved premises to the plaintiff. Plaintiff’s husband testified that at the time of the conveyance he went to the office of Edward S. Bess-man and there sa,w the office manager, one Miss Goldberg, and asked to have the policy endorsed over to his wife; that Miss Goldberg thereupon told him that there was coverage without a binder; that he left the policy and after several weeks, namely, about the 24th of March, 1926, received it back and filed it with his “other policies.” The policy as produced in court was the original policy issued to Eose Kirschner, containing an endorsement transferring its coverage as of noon on March 24th, 1926, to the plaintiff, Eae Jayson. Meanwhile, on March 21st, 1926, an accident had been suffered by one Alex Katz, who brought suit against the present plaintiff. The matter was one as to which the policy would be effective if plaintiff were entitled to its coverage on March 21st, the date of the accident; but the present defendant denied liability, declined to defend Mrs. Jayson against the action by Katz and later refused to pay the judgment recovered by the latter. The present suit was instituted by Mrs. Jayson to recover under the policy of indemnity. The District Court found judgment for the plaintiff. Erom that judgment defendant appeals on the single ground that the trial court erred as a matter of law in refusing to grant a direction of verdict in favor of the defendant in that the terms of the policy specifically set forth that the plaintiff, Rae Jayson, was not covered by the policy of the defendant until twelve o’clock noon on March 24th, 1926, whereas the accident upon which the plaintiff based her cause of action occurred on March 21st, 1926.

The policy in paragraph 15 provided as follows: “No assignment of interest under this policy shall be binding upon the company unless its ratification of such assignment signed by the president or secretary be endorsed hereon.”

Where a policy of liability insurance contains express restrictions and limitations of authority with reference to transfers of the insured’s interest, the provisions of the policy cannot be ignored or overridden by the unauthorized acts of a subordinate agent and unless the modus operandi, relating to transfer of ownership, contained in a policy of insurance, be complied with, there is no privity of contract between the insurer and transferee upon which liability of the former can be predicated. Shyowitz v. Union Indemnity Co., 104 N. J. L. 339. The plaintiff contends that that principle is not applicable and that the provisions of the policy had been complied with inasmuch as the transfer of ownership, having previously been recognized by an agent, was thereafter “ratified” by the official act of the company, and that this “ratification” brought within the policy a liability that had meanwhile accrued. The argument, in our opinion, lacks substance. We find nothing in the endorsement on the policy to suggest that the insured had knowledge of an earlier effort at assignment. Nor do we understand that the endorsement was itself a ratification of prior acts. It appears to us to be a simple transfer, as of the date therein set forth, namely, March 24th, 1926, of the beneficial interest. If the plaintiff’s contention were correct, then the act of the company in making over the benefit of an existing policy to a new owner of property, no matter how long after the acquisition, would thereby automatically establish indemnification to the new owner for any liability that had accrued against the latter, not merely since the presentation of the policy to an agent, but since the acquisition of title by the new owner. For the assignment of interest referred to in paragraph 15 of the policy is the assignment from the old to the new owner; and if an endorsement on the policy making it good to the new owner is to be interpreted as done nunc pro tunc as of the acquisition of interest, all intermediate events would fall within its scope. Such a situation is rather startling as applied to a contract of insurance.

Our view is that there was no privity of contract between Rae Jayson and the defendant company until March 24th, 1926, and that consequently there was no liability on the part of the defendant to reimburse the plaintiff because of the Katz accident or the judgment arising therefrom.

The judgment below will be reversed.


text:
    IN RE APPLICATION OF ROBERT B. MEIGS TO BE READMITTED TO EXAMINATION FOR LICENSE AS AN ATTORNEY.
    Decided January 22, 1931.
    Before Justices Case, Daly and Donges.
    Eor the applicant, James I. Bowers.

   Per Curiam.

Applicant is an attorney of another state, recently admitted. He took the New Jersey examination for attorney under rule 5 (a) of this court and failed to pass. He sought to take a re-examination and was refused certification because he had not filed with the clerk proof that he had, under rule 6 (c), served a clerkship during the period intervening since his last prior examination. He now seeks a construction of the rules that will entitle him, in his present status as a practicing attorney of another state, to a re-examination. On his behalf it is contended that the requirement was not intended to apply to attorneys of another state; that the privilege of an original examination is accorded them without the necessity for a clerkship, and that it is hardly to be expected that those who have become practitioners elsewhere would give up that privilege and again seek employment as clerks; that In re Natelson, 3 N. J. Mis. R. 549, is in support of that argument; and finally that a clerkship, if it be deemed essential, ought not to be required to be served within the State of New Jersey, but should be such a clerkship as is met by continuing in the practice of law in another state or is consistent with such practice.

We are unable to agree with the arguments thus advanced. The Natelson decision relates only to such applicants as have a record of ten years or more of practice in another state. There can be no doubt that section 6 (c) relates to students within our own state who, after arduous preliminary requirements and three years of clerkship with a counselor-at-law of this state, or of combined clerkship and attendance at an approved law school, have taken, and failed in, the attorneys’ examination. There is nothing in the language of the rule, and little in logic, to suggest that those who have been accorded admission to the bar of other states should not also come within its purview. The very fact of their admission elsewhere and their failure here suggests that their deficiency is in that very practice and procedure which would be the heart of a New Jersey clerkship.

On the showing of an admission elsewhere the courtesy of a first examination is accorded them. They are given the opportunity of proving that they not only have such general knowledge of law as is assumed bjr their admission elsewhere, but that they also are versed in the special application of legal principles within this jurisdiction and particularly that thejr are familiar with our judicial system and the practice thereunder. A breaking down under the test indicates the need of further study; and the rule provides how this shall be had.

The rule under discussion reads: “6 (c). When applicant for attorney lias taken an examination and failed in same, he must, before he can take another examination, file with the clerk proof that he has served a full, fair and bona fide clerkship of six hours each day, Saturdays excepted, in the office of an attorney-at-law, who is also a counselor, during the time intervening since his last prior examination.” There are four subdivisions to rule 6. Each of the other three relate without distinction to all applicants whether they be attorneys from other states or law students from this state. Subdivision “c” appears to us to have the same indivisible and general application. Only by the addition of words that are not there can any particular class of applicants be taken from its purview.

We think, further, that the office in which the clerkship is to be served should be that of an attorney-at-law, who is also a counselor, of this state.

We thus construe the rule. No special reason is advanced for a relaxation thereof in the present case. The application, which is in effect for permission to take the examination, is denied.


author: Per Ciirtam.

text:
    ROY CUTTER, PETITIONER, v. INTERNATIONAL MOTOR COMPANY, RESPONDENT.
    Submitted October term, 1930
    Decided January 23, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the petitioner, Edmund A. Hayes.

    Eor the respondent, Joseph C. Paul.

   Per Ciirtam.

The ease arises under the Workmen’s Compensation act. The commissioner awarded compensation for an eye injury. The workman was employed as a core maker. Part of his work was to clean the cores with sand. He got sand in his eye. The injury was aggravated by a disease called interstitial keratitis. Any blow, or dirt, or dust in the eye will bring the infection to the surface.

The Court of Common Pleas overlooked this testimony, establishing the causal connection between the blow and the injury, and reversed the findings of the commissioner.

We think there is evidence to support the findings of the commissioner, but not to support the findings of the Common Pleas Court. Atchison v. Colgate & Co., 3 N. J. Mis. R. 451; Charlock v. Kellogg Co., 4 Id. 260

The judgment of the Court of Common Pleas reversing the findings of the commissioner is reversed, with costs.


text:
    MAXWELL E. BUBLITZ AND ADELHEID BUBLITZ, PROSECUTORS, v. BOROUGH OF HILLSDALE, IN THE COUNTY OF BERGEN, DEFENDANT.
    Submitted October term, 1930
    Decided January 23, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutors, Isaacs ■& Gunther.

    Por the defendant, Maclcay & Maclcay.

   Per Curiam.

A previous application was made to Mr. Justice Parker at chambers. His conclusions appear in Bublitz v. Hillsdale, 8 N. J. Mis. R. 334. A further consideration of the matter by the three judges sitting in Part II lead to the same result as that expressed in those conclusions.

The writ will be denied, with costs.


text:
    GRACE JOHNSON, PETITIONER-DEFENDANT, v. ULSTER IRON WORKS, RESPONDENT-PROSECUTOR.
    Submitted October term, 1930
    Decided January 23, 1931.
    Before Justices Pabkek, Campbell and Bodine.
    Eor the petitioner-defendant, John C. Grimshaw.

    For the respondent-prosecutor, Harley, Cox ■& Walburg.

   Pee Curiam.

The petitioner was the widow of Clarence Johnson, who was a puddler employed in defendanPs iron works at Dover, New Jersey. Johnson, shortly before his death, was working at one of the furnaces. He was observed to be falling and died of cerebral hemorrhage.

There is no testimony of an accident. The man was last observed at his place of work. There was nothing unusual in the same or in the manner of the performance of his work. The cerebral hemorrhage might have preceded or followed the fall yet the most satisfying of the medical testimony indicated a poor heart condition of long standing.

The commissioner dismissed the petition on the theory that the petitioner had failed to establish proof of an accident. The Common Pleas Court reversed the findings of the commissioner and in so doing fell into error. This is a case where the proofs show no more than a fall at the usual place of work—not a fall from a platform. Mountain Ice v. Durkin, 6 N. J. Mis. R. 1113. There is no testimony that deceased was doing anything different from that which he was called upon to do, and the usual appliances appear to have been in order. There is nothing to suggest an accident save Johnson’s death. The medical testimony is as consistent with the theory of a cerebral hemorrhage causing the fall as with the theory that the fall caused the cerebral hemorrhage. Hence, the ease is entirely lacking in evidence of an injury occurring from an accident and the findings of the commissioner were proper. Atchison Co. v. Colgate & Co., 128 Atl. Rep. 598.

The judgment below is reversed.


text:
    MARIE PIZUTTI ET AL., PLAINTIFFS, v. MORRIS A. MILLER ET AL., DEFENDANTS.
    Decided February 6, 1931.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    For the rule, Edward A. Marlcley and Charles W. Broadhursl.

      Contra, Breslin & Breslin.

   Per Curiam.

This is an automobile accident case. The plaintiff Marie Pizutti, a girl under twenty-one years of age, was riding in an automobile owned and operated by one DeLillis along Washington avenue, in the town of Nutley. The defendant Morris Miller was driving his car along the same highway in an opposite direction. The two ears collided, and suit was brought against Miller and also against DeLillis to recover compensation for the injuries received by the girl in the collision, her father also joining as a plaintiff to recover moneys expended in the medical treatment of the girl and compensation for the loss of her services. The trial resulted in verdicts in favor of the plaintiffs against both Miller and DeLillis, the jury awarding the girl $20,000 and her father $7,500. The defendant Miller thereupon applied -for and obtained the present rule to show cause why the verdicts against him should not be set aside.

The principal ground upon which we are asked to set aside the verdicts as against Miller is that the finding of the jury, so far as it determined that he was in any way responsible for the accident, was contrary to the clear weight of the evidence. Our consideration of the proofs sent up with the state of the case satisfies us that this is so, and for this reason we conclude that the verdicts against the defendant Miller should be set aside. Reaching this conclusion, it is unnecessary to consider any of the other reasons advanced by his counsel for making the rule absolute.

A new trial will be ordered on the question of Miller’s liability and the extent thereof, in case it is shown to exist.


author: Beery, V. C.

text:
    Araneo-White Construction Company, a corporation, complainant, v. Joint Municipal Sewer Commission, defendant.
    [Decided February 27th, 1931.]

      Mr. Mario Turiur, for the complainant.

      Mr. Edward G. Pringle, for the defendant.
   Beery, V. C.

The complainant is a contractor and seeks a mandatory injunction against defendant, directing it to furnish complainant with plans and specifications for a supplementary joint trunk sewer and sewage disposal plant about to be constructed by the defendant; to compel the defendant to permit the complainant to submit a bid for such construction, and to restrain the defendant in the meantime from accepting any bid and awarding any contract for the work to any other bidder.

There is nothing in the bill of complaint describing the defendant other than by name, or indicating the legislative or other authority under which the defendant exists. From the answering affidavits, however, it appears that the joint municipal sewer commission is composed of representatives of the city of East Orange, the township of Hillside in the •county of Union, the town of Irvington, the township of Maplewood in the county of Essex, the township of Millburn in the county of Essex, the city of Newark, the borough of Eoselle Park, the village of South Orange, the city of Summit, the township of Union in the county of Union, and the town of West Orange, all municipal corporations of this state, and was organized and is acting pursuant to a contract entered into by said municipalities on June 1st, 1926, under the authority of P. L. 1899 ch. 36. The defendant is about to award a contract for an important public work, estimated by the engineer in charge to cost approximately $600,000. Sixteen separate contractors obtained plans and specifications for the work with a view to submitting bids therefor. Eight of these contractors submitted bids which were opened by the defendant commission on February 5th, 1931. Their consideration and the award of the proposed contract is scheduled for February 19th, 1931. The lowest of these bids is $444,614.50 and the highest $663,212. The defendant advertised for bids in January and the complainant applied to the engineer in charge for a set of plans and specifications for the proposed work. Previously the defendant municipalities interested in that work decided, at a joint meeting, to take advantage of the provisions of P. L. 1926 ch. 180 p. 301, authorizing municipalities, except counties, to require prospective bidders to submit questionnaires as to financial ability and experience, -and, acting through its engineer, the defendant required such questionnaire from the complainant. The information contained therein prompted the defendant to refuse to deliver plans and specifications to complainant and to refuse to permit complainant to submit any bid for the proposed work, for the reason, as stated in the complainant’s bill, “that the job was too complicated and too big for the complainant to handle.”

Complainant alleges that such refusal constituted an arbitrary exercise of the power conferred upon the defendant by P. L. 1926 ch. 180 is violative of the laws requiring competitive- bidding, and invades the complainant’s constitutional right of earning a livelihood. In support of the complainant’s first contention counsel cites, among other cases, that of Ianniello v. Harrison, 4 N. J. Mis. R. 111, in which it was held, following Faist v. Hoboken, 72 N. J. Law 361, and Kelly v. Freeholders, 90 N. J. Law J¡11, that after bids were received the governing body of a municipality could not arbitrarily refuse to award a contract to the- low bidder on the ground of his unsatisfactory financial responsibility without giving him a hearing. That case was decided on February 3d, 1926. P. L. 1926 ch. 180 was approved March 26th, 1926, and was apparently designed to give municipalities, except counties, the right to determine the financial or other responsibility of a prospective bidder in advance of the receipt of bids. It vested in such municipalities discretionary powers with the exercise of which this court will not interfere except in case of fraud. Eelief from the abuse of such discretion may be obtained by any person aggrieved in the appropriate tribunal, which is the supreme court. The authorities to this effect are legion. It is necessary to cite but one—Berdan v. Passaic Valley Sewerage Commission, 82 N. J. Eq. 235. Neither fraud nor facts indicating fraud are alleged in the bill of complaint. The act of 1926 referred to preserves to any aggrieved person the right to review the action of any municipality refusing to furnish plans and specifications for a public work to a prospective bidder. Such review, obviously, must be by mandamus or certiorari.

Neither the allegations of the bill of complaint nor the supporting affidavits disclose any action of the defendant which is violative of the law requiring competitive bidding on a basis of equality amongst bidders, and none of the authorities cited by complainant on this point have any application to this controversy. Nor is the case of Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, applicable. That case involved alleged undue interference with freedom of employment as between employer and employe. No such situation exists here.

It also appears that the bill is defective for want of parties. Burden v. Passaic Valley Sewerage Commission, supra. The order to show cause will be discharged and, as the bill does not present an equitable cause of action, it will be dismissed on the court’s own motion.


text:
    MARY E. ALLEN ET AL., PROSECUTORS, v. THE COMMON COUNCIL OF INHABITANTS OF THE CITY OF PLAINFIELD, AND GEORGE B. WEAN, CLERK OF SAID COMMON COUNCIL, DEFENDANTS.
    Submitted October term, 1930
    Decided February 3, 1931.
    Before Justices Parker, Campbell and Bodirte.
    For the prosecutors, Otto A. Stiefel.

    For the defendants, J. Henry Crane.

   Per Curiam.

The writ brings before the court a resolution of the common council of the city of Plainfield confirming certain assessments for benefits under a local improvement ordinance. The resolution in question recites the proceedings of the-city’s council from the time of the filing of the commissioners’ report until its confirmation. It shows that the commissioners’ report was before the common council for consideration on August 6th, 1928. It was referred back and again came before the common council on February 4th, 1929_ It was again referred back, and was before the common council on August 5th, 1929. It was then referred on January 21st, 1930, to the street and sewer committee. The report, with recommendations and revisions, came before the-common council for consideration on April 7th, 1930, when the report with revisions and alterations recommended was-adopted. Public hearings, after due notice as provided by law, were held in all instances.

It is argued to us that after the common council had twice referred back the report to the assessment commissioners it was without power to refer the report to a committee of the common council for enlargement. Section 27, article 20 of the Home Eule act, as amended (Pamph. L. 1925, p. 235), provides that after certain preliminary steps are taken, “the governing body, after considering the said report and map, may adopt and confirm the same with or without alterations as by them may seem proper. It shall be lawful for said governing body to refer the matter to any committee of their own body, or to the officer or board making such assessments for revision or correction before taking final action upon it.” This language seems to us to be very broad and in no sense to limit the number of times the governing body may return the report for correction, or to limit its right to refer the report over to the commissioners of assessments or to a committee of its own body.

Pursuant to the Home Eule act the governing body of the city of Plainfield created an assessment commission. These commissioners were therefore officers. Hoboken Land, and Improvement Co. v. Hoboken, 36 N. J. L. 291, 292; Fredericks v. Board of Health, 82 Id. 200; Bublitz v. Hillsdale, 150 Atl. Rep. 229. The ordinance provided that the members of this commission should be named by the mayor, with the advice and consent of the common council. It is argued that under the Home Eule act these officers should have been named by the governing body and not by the mayor. We are of the view that the mere fact that the mayor, as well as the common council, acted did not make the selection invalid. The members of the commission were, at all events, named by the governing body even though the mayor concurred. The commissioners, however, were at all events de facto public officers and as such their acts are not subject to collateral attack. 43 C. J. 619.

The writ will be discharged, with costs.


author: Pee Cukiam.

text:
    SOMERS LUMBER COMPANY, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT, RESPONDENT.
    Argued January 21, 1931
    Decided February 5, 1931.
    Before Justices Paekee, Campbell and Bodine.
    For the prosecutor, Gole •& Gole.

    For the respondent, William A. Stevens, attorney-general, and John Solan.

   Pee Cukiam.

Prosecutor is a corporation organized under the laws of New Jersey, with its principal office in Atlantic City. Its total capital is $500,000, all issued and outstanding, of which $260,000 is invested in manufacturing and the remaining $240,000 is invested in the business of dealing in building materials.

Upon such a return being made to the respondent for the year 1929 that body assessed the prosecutor upon $240,000 of its capital stock, not employed in manufacturing, claiming authority for so doing under “An act to provide for the imposition of state taxes upon certain corporations and for the collection thereof,” approved April 18th, 1884. Pamph. L. 1884, p. 232, amended Pamph. L. 1891, p. 150, and Pamph. L. 1892, p. 136.

The controversy is limited to this, that the respondent insists that under the statute the assessment is justified and the prosecutor, with equal assurance, asserts that inasmuch as more than fifty per cent, of its capital stock is invested in a manufacturing enterprise carried on within this state its entire capital stock is exempt from tax under such statutes.

The history of the legislation relied upon to support the assessment is as follows:

Pamph. L. 1884, p. 232, entitled, “An act to provide for the imposition of state taxes upon certain corporations and for the collection thereof” by its fourth section, after providing for the taxing of certain specified classes of corporations, provided “that all other corporations incorporated under the laws of this state, and not hereinbefore provided for, shall pay a yearly license fee * * * on the amount of the capital and stock of such corporation; provided, that this act shall not apply to * * * manufacturing companies or mining companies carrying on business in this state.”

This act was construed, in this court, in Evening Journal Association and Jersey City Printing Co. v. State Board of Assessors et al., 47 N. J. L. 36. It was there said: “It is true that the act of 1884 imposes the tax by way of a license for exercising corporate franchises, but the tax is laid with respect to the capital stock of such corporations and for the privilege of doing business in this state, and in the classification of corporations in the statute, with a view of taxation or exemption from taxation, the business to which the capital of a corporation is applied must be regarded.”

The Evening Journal Association stated its object in its certificate of incorporation to be the printing and publishing of a newspaper, and jobbing, printing and publishing, but prior to the levying of the tax, then in question, had limited its business entirely to printing and publishing a newspaper so that at the time of the levy its entire capital was employed in that particular business. It was held that printing and publishing a newspaper was not manufacturing and therefore the assessment and tax were affirmed.

In the case of the Jersey City Printing Company its certificate of incorporation stated the object of its incorporation to be to conduct and prosecute the business of book printing and job printing, engraving, electrotyping and lithographing and, from the facts, the court found that it was so engaged at the time of the imposition of the tax, and holding that such a pursuit was manufacturing, the corporation was exempt under the statute and the tax and levy were set aside.

This case decided in 1885 was followed in 1888, the statute remaining the same, by Press Printing Co. v. State Board, 51 N. J. L. 75, the same justice delivering the opinion as in the prior cited case. Here the objects for which the Press Printing Company was formed, as set forth in its certificate of incorporation, were, the printing and publishing of a newspaper or newspapers, and the business of printing, publishing and selling books, blank books and stationery and the general business of job printing. After reference to the former case Evening Journal Association v. State Board, supra, the court held that “the prosecutor is a manufacturing company within the exemption so far as concerns its business of printing and publishing books and general job printing, but it is not such a company, within the meaning of the statute with respect to its business of printing and publishing a newspaper. In one sense the prosecutor is a manufacturing company; in another sense it is not; and it cannot claim exemption under the statute on business which is not within the proviso on the ground that part of its capital is employed in a business which falls within the proviso.”

The court then found, from the facts before it, “that the two branches of the prosecutor’s business are kept intact and that of its capital”—a certain definite amount was invested and used in the newspaper department and another, fixed amount, in the other department and thereupon held that the portion of its capital invested and employed outside of the printing and publishing of a newspaper was exempt under the statute and the assessment and tax, to that extent, was reduced.

In 1891 (Pamph. L. 1891, p. 150) the act of 1884, supra, was amended. We are here concerned only with the proviso contained in section 4, which, by the amendment, was then made to read as follows: “Provided, that this act shall not apply to * * * manufacturing or mining corporations at least fifty per centum of whose capital stock * * * invested in mining or manufacturing carried on within this state; if any manufacturing or mining company carrying on its business in this state shall have less than fifty per centum of its capital stock * * * invested in business carried on within this state such company shall pay the tax herein provided for companies not carrying on business in this state, but shall be entitled, in the computation of such tax, to a deduction from the amount of its capital stock of the assessed value of its real and personal estate so used in manufacturing or mining.”

In view of the construction placed upon the original act of 1884, supra, by this court, in the cases referred to, the legislative purpose intended to be expressed by this amendment seems perfectly plain and to us that purpose is that whenever a corporation of this state has one-half or more of its issued and outstanding capital actually invested and employed in manufacturing carried on in this state, its whole capital stock (and not that alone employed in manufacturing) is exempt from tax under the statute And this seems to be given added force from what was said to be the purpose of the exemption in Press Printing Co. v. Board, supra: “In this scheme of taxation, the obvious purpose was to exempt from this species of tax capital invested in the manufacturing or mining business in this state.”

The respondent argues that the mischief in the original act of 1884 sought to be remedied by the amendment of 1891 was “that manufacturing corporations were likely to gain exemption from the tax merely because they carried on business in this state, although the great portion of their manufacturing was done outside the state.”

The cases in this court already referred to, and they are the only ones brought to our attention, do not go in this direction. In the one case one of the corporations had none of its capital employed in manufacturing in this state and its whole capital was held subject to taxation and the other company had all of its capital invested in manufacturing enterprises and it was held to be entirely exempt.

In the other case a portion of the capital of the company, more than fifty per cent, was devoted to a non-manufacturing-purpose and the remainder in such a pursuit and that portion so used, alone, was held exempt from the tax. It seems to us the legislative intent was to encourage the employment of capital of corporations of the state in manufacturing and mining carried on in this state and the purpose of the amendment of 1891 was to make this plain and, fully exempt, the whole capital of such a corporation where fifty per cent, or more was actually so employed.

The act of 1884, supra, was further amended in 1892 (Pamph. L. 1892, p. 136), but the proviso in section 4, except for a slight variation in language, in nowise controlling or useful in its construction upon the point here involved, remains the same as in the amendment of 1891, supra.

We conclude that the entire capital stock of the prosecutor is exempt from taxation under the statute and therefore the-assessment and tax are set aside.


author: Case, J.

text:
    NEWARK ORPHAN ASYLUM ASSOCIATION, LEWIS L. SHAUB AND REFUND INVESTMENT CREDIT HOLDING COMPANY, PROSECUTORS, v. BOROUGH OF MOUNTAINSIDE, UNION COUNTY, AND ROBERT LAING, CLERK OF THE BOROUGH OF MOUNTAINSIDE, UNION COUNTY, RESPONDENTS.
    Decided February 4, 1931.
    For the prosecutors, Smith & Slingerland.

    For the respondents, Charles A. Otto, Jr.

   Case, J.

The prosecutors questioned certain assessments levied against them severally for the expenses incurred in laying a sidewalk in front of their respective properties in the borough of Mountainside. Their first three points attack the ordinance and the notice, or rather the alleged lack ■of notice, to the prosecutors of the pendency of the ordinance and of the purpose of the municipality to proceed thereunder in the actual doing of the work. While the proofs are not as clear as might be desired, I am inclined, reading them in their entirety, to believe that the ordinance was lawfully passed. From the remainder of this attack the prosecutors are barred by laches. The ordinance was passed January 7th, 1927‘. The laying of the sidewalks was completed in September of that year. There is sufficient to convince me that then or thereabouts all of the prosecutors, either in themselves or their predecessors in title, had either actual or constructive notice. For instance, it appears that the Newark Orphan Asylum Association, carrying the largest assessment, was in correspondence with the municipality in the summer of 1926 regarding the probable effect by way of assessment and otherwise upon the association of a similar sidewalk ordinance then pending but abandoned on the introduction of the ordinance in question; and the association had knowledge of the actual laying of the sidewalk during the progress of the work. No steps were taken to question the legality of the municipal action until December 12th, 1929, when application was made for the present writ. There was an acquiescence of more than two years after tire completion of an improvement manifestly to the advantage of the respective parties, the sidewalk meanwhile being in full use.

The third point is that the borough council did not advertise for bids before awarding the contract. No harm, however, is shown to have come to the prosecutors on this account, and no authority is cited to the effect that a failure to comply with the statute requiring advertisement for bids per se invalidates the assessments for the cost.

The remaining points go directly to the levying of the .assessments, the confirmation of which was made November 12th, 1929. The minutes of meetings of the borough council and indeed all other borough records, so far as their review discloses, were crude, inaccurate, insufficient and uninforming. So far as I am able to ascertain from the proofs the assessments were not levied in accordance with the statute. The record of the cost of the improvement (see Municipalities act—Pamph. L. 1917, ch. 152; 2 Cum. Supp., p. *136, art. 25, § 4) is not shown; the proceedings of the assessment commissioners were not in accordance with the statute, nor did the council confirm the report of the borough engineer (article 25, § 4, supra). The discrepancy between the apparent cost, $3,564.15, and the aggregate assessments, $4,039.55, is not shown; nor was notice given to the property owners of the time and place when the council would examine the report of the officer in charge of the improvement. Pamph. L. 1922, ch. 156; 2 Cum. Supp., p. *136-2511.

The assessments under review should be set aside, with costs to the porsecutors.


author: Pee Ctjkiam.

text:
    LILLIAN BECKER, PROSECUTRIX, v. NATHAN ROSENFELD, JUSTICE OF THE PEACE, DEFENDANT.
    Argued January 21, 1931
    Decided February 6, 1931.
    Before Justices Pakkek, Campbell and Bodine.
    Eor the prosecutrix, Kass & Eass.

   Pee Ctjkiam.

The conviction was not returned with the writ.

The writ will therefore be dismissed.


text:
    THOMAS ANSELL ET AL., PLAINTIFFS v. JULIA GERTRUDE LYLE-SAMUEL, DEFENDANT.
    Argued January 20, 1931
    Decided February 3, 1931.
    Before Justices Case, Daly and Donges.
    For the motion, McCarter & English.

    Contra, Treacy & Treacy and Merritt Lane.

   Per Curiam.

This is a motion by plaintiffs for a further bill of particulars.

Defendant answered the complaint on October 9th, 1929. On December 27th, 1929, plaintiffs demanded a bill of particulars, which was answered on March 18th, 1930. On April 5th, 1930, plaintiffs filed their reply; on April 24th, 1930, defendant’s rejoinder was filed; and on April 30th, 1930, plaintiffs’ sur-rejoinder was filed. Thereafter, plaintiffs gave notice of a motion before Mr. Justice Parker for a further bill of particulars, which was, on June 30th, 1930, denied, without prejudice to the application to the court in hanc.

The precise question here inolved was decided in Dixon v. Swenson, 101 N. J. L. 22, where it was held “that the filing of the answer was a waiver of the right to have a further bill of particulars.” We conclude that the filing of the plaintiffs’ reply was a waiver of the right to have a further bill of particulars.

The motion is denied, with costs.


text:
    CIRILLO MACARONE, PROSECUTOR, v. BOARD OF ADJUSTMENT OF TEANECK.
    Argued January 20, 1931
    Decided February 10, 1931.
    Before Justices Parker, Campbell and Bodine.
    For the prosecutor, James F. X. O’Brien.

    For the board, Frank A. Morrison.

    For the applicant Duffy, George F. Losche.

   Per Curiam.

Assuming, without conceding, that the applicant Duffy has a status to intervene, the application, on the very eve of a final judgment, comes too late.

On May 31st, 1930, prosecutor applied for a permit to build, which was granted on the following day. Duffy, a neighbor, appealed on April 12th; the appeal was heard on the 28th and the board revoked the permit June 2d. On June 28th Mr. Justice Parker granted a rule to show cause why certiorari should not be allowed, which was not prosecuted during the summer and was discharged for lack of prosecution on September 9th, and application to reinstate was denied October 14th. During all this time Duffy, while not a party, had his counsel, and was actively opposing any steps looking toward a reinstatement of the rule. On November 12th this court allowed a writ of certiorari, reasons appear to have been filed, depositions taken, and the matter seems to have been noticed for hearing before a single justice. At this juncture, according to the recitals of the rule presented to us for signature and consented to in writing, the board abandoned its defense and consented to entry of judgment setting aside its revocation; and on the presentation of that rule for signature, the application to intervene is made.

It is inconceivable that in view of Duffy’s active resistance from the outset, he could have been unaware of the allowance of the writ. Indeed, he does not even suggest that he was not fully posted on every step in the cause. All that he submits is a copy of the local proceedings, the application, permit, and appeal. From the allowance of the writ the cause has been permitted by applicant to take its course as between the parties of record. Now that it has reached its culmination, it is too late for him to interpose objections that should have been made with diligence and promptness.

The application will be denied, with costs.


text:
    SALVATORE MANNINO, RELATOR, v. FRANK B. MOFFETT, BUILDING INSPECTOR OF THE TOWN OF WESTFIELD, RESPONDENT.
    Argued January 20, 1931
    Decided February 5, 1931.
    Before Justices Parker, Campbell and Bodine.
    For the applicant, Earl A. Merrill.

    For the respondent, Paul Q. Oliver.

   Pee Cubiam.

Oil August 21st, 1930, the applicant, so called relator, made application to the building inspector of Westfield for a permit for an addition and alteration to a garage then existing on his lands. This was denied because the zoning ordinance provided that no garage within any “A” residential district, such as the lands in question are located in, shall provide space for more than three motor vehicles and the garage already erected upon such lands was then occupied by three automobiles, two of which were commercial vehicles, and this in violation of the terms and uses permitted by such ordinance. Upon such refusal the land owner appealed to the board of adjustment before which he was represented by his son, who, speaking for him, stated that the extension for which the permit was asked was for the purpose of making additional room in the garage for another car.

On August 27th, 1930, the board of adjustment denied the application.

Subsequently, on September 4th, 1930, a new application was made to the building inspector for a permit to erect an extension to the garage.

The plan attached to such application was similar in all essentials to that attached to the first application.

This application was also denied.

Petitioner now, and we think evasively, asserts that the proposed extension is for the purpose of storing tools used by him in his occupation as a gardener. We are not satisfied that his representations are bona fide. This application for a writ of mandamus, or a rule to show cause, was made to a member of this court and denied.

It comes, now, to the court with no greater genuineness of purpose.

Paragraph 14 of the petition, so speaks, by the following language:

“Petitioner has not made any application for any specific use of said proposed structure. It is his present intention to use the same as a tool house, and he believes that such use is a lawful use, but that question will be raised only when, and if, application for such use shall be made. It is not petitioner’s intention to put the structure to any unlawful use. If it shall appear, hereafter, that a proposed use is unlawful, of course, such purpose will be abandoned.”

One seeking the assistance of this court, through its prerogative writ of mandamus, must establish his right thereto and that by frankness and straightforward assertion of believable facts.

The application is denied, with costs.


text:
    LILLIAN BATEMAN, PLAINTIFF, v. PUBLIC SERVICE COORDINATED TRANSPORT AND CROSSTOWN TRANSPORTATION COMPANY, INCORPORATED, DEFENDANTS.
    Decided February 6, 1931.
    Before Gummere, Ciiiee Justice, and Justices Teen-chard and Lloyd.
    For the rules, Henry II. Fryling and George F. Seymour, Jr.

      Contra, Ward <& McGinnis.

   Pee Curiam.

This suit was brought by the plaintiff to recover compensation for injuries received by her in the collision of an auto-bus belonging to the defendant the Public Service Coordinated Transport with another auto-bus belonging to the Crosstown Transportation Company. Her claim is that the collision was the result of the joint negligence of the drivers of these two buses. The collision occurred at the intersection of Park avenue and Straight street, in the city of Paterson. The trial resulted in a verdict in her favor and against both of the defendants, the jury awarding her $10,000 as compensation for her injuries. After the rendition of the verdict, each of the defendants applied for and was allowed a rule to show cause why the verdict should not be set aside.

The only contention made before us on the part of the Public Service Co-ordinated Transport is that the award of the jury is excessive. Our examination of the testimony, bearing upon the question of the character and seriousness of the injuries received by the plaintiff, satisfies us that this contention is justified by the proofs.

The Crosstown Transportation Company also attacks the verdict upon the ground of its excessiveness, and further contends that the proofs show that the collision was due entirely to the negligence of the driver of the Public Service Co-ordinated Transport bus and not to any negligence on the part of the driver of its own bus. We consider that, on the proofs submitted, the jury was not in error in finding that the collision was the result of the joint negligence of both drivers.

If the plaintiff will consent to a reduction of the verdict to $7,000, she may enter judgment for that amount. Otherwise the rules to show cause will be made absolute.


text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. JOHN BORG AND CHARLES ROSENBERG, DEFENDANTS.
    Decided February 3, 1931.
    Before Justices Pahkee, Campbell and Bonnm
    Eor the application, Carey & Lane.

   Pee Cukiam.

The right to costs in a law action depends upon statute. 15 Corp. Jur. 21; New Jersey Digest, tit. “Costs,” § 2.

Pamp'h. L. 1921, ch. Ill, p. 204, provides that the prevailing party “in any action * * * in the Supreme Court' * * * shall be entitled to costs, except where otherwise provided by law * *

Section 242 of chapter 241 of the laws of 1903, page 599, provides: “In actions brought by the state * * * the state * * * shall recover costs as any other plaintiff; but if * * * the judgment shall pass against the plaintiff, the defendant shall not recover any costs against such plaintiff.” This provision of law was not repealed by chapter 231 of the laws of 1912, and seems‘to be controlling. However, unless the legislature provided by express enactment that costs should run against the state in criminal eases we know of no way by which costs could be taxed. Therefore, the legislative prohibition seems unnecessary but confirmatory of our judgment that no costs in this matter can be allowed.


text:
    WILLIAM FORFAR, PROSECUTOR, v. IGNATIUS KOSACIELECKI, ADMINISTRATOR, ETC., RESPONDENT.
    Argued January 20, 1931
    Decided February 6, 1931.
    Before Justices Parker, Campbell and Bodine.
    Por the prosecutor, Turner & Stalter.

    Por the respondent, Kalisch & Kalisch.

   Per Curiam.

The prosecutor seeks to review the action of one of the judges of the Court of Common Pleas in allowing a new trial after two successive verdicts.

“While in this state there is no statute, or rule established by decisions, limiting the number of times the court may set aside a verdict and grant a new trial because it is against the weight of the evidence, still a second concurring verdict upon the same state of facts or on slightly varying evidence should cause the court to hesitate before granting a third trial.” Brown v. Paterson Parchment Paper Co., 69 N. J. L. 475. See, also, Johnson v. Central Railroad, 109 Atl. Rep. 360; Fabiano v. Berckes, 123 Id. 887; Adkins v. Philadelphia, 150 Atl. Rep. 210; Scharwath v. Brooks, 150 Id. 211; 14 Cyc. Pl. & Pr. 992; 29 Cyc. 729.

The Court of Common Pleas in granting the rule for a third new trial was merely exercising its common law powers. Its action in so doing was discretionary. This court will not review such action, even though it might not have granted the rule. State v. Comstock, 95 N. J. L. 321; affirmed, 96 Id. 299.

The writ will be dismissed.


author: Per C'uriam.

text:
    HARRY J. DOHERTY ET AL., PLAINTIFFS, v. MICHAEL BOYAJIAN AND WALTER TASHYIAN, DEFENDANTS.
    Decided February 6, 1931.
    Before Gummere, Chibe Justice, and Justices Trenchaed and Lloyd.
    Por the rule, Howard L. Miller.

    Contra, William I. Garrison.

   Per C'uriam.

In July, 1926, the plaintiff Harry J. Doherty was driving his car on Penn street, in the city of Camden. His daughter, Agnes, the other plaintiff, was riding with him. As he was crossing Eighth street, which intersected Penn street, a car owned by the defendant Michael Boyajian, and driven by the defendant Walter Tashyian, collided with the car which he was driving. Both plaintiffs were injured in the collision, and this suit was brought by them jointly to recover compensation for their respective injuries, the daughter being a minor and the father acting as her next friend in the suit. At the close of the trial the jury rendered a verdict in favor of the plaintiff Harry J. Doherty and a verdict of no cause of action against the plaintiff Agnes Doherty.

The only question requiring discussion is whether these two verdicts are so inconsistent as to require them to be set aside. As has already been stated, the proofs show that the girl, Agnes, was injured in the collision, and this fact is conceded by counsel of the respective parties. This being so, if the father was entitled to a verdict, certainly the daughter was also. Consequently, the two verdicts are entirely inconsistent. The present case in this respect is like that of Lanning v. Trenton, &c., Traction Co., decided by this court, and reported in 3 N. J. Mis. R. 1006, where suit was brought by a wife for injuries received by her while a passenger in a ear of the defendant company, and her husband joined as plaintiff, seeking to recover the expenses incurred by him on account of his wife’s injuries, and also compensation for the loss of her services and society. The jury found a verdict in favor of Mrs. Lanning, which, of course, was based upon the theory that her injuries were the direct result of the negligence of the defendant’s motorman. At the same time they returned a verdict of no cause of action as to the claim of the husband, although the rendition of the medical services was not disputed, nor was the propriety of the charges made for such services challenged. It was there held that these two verdicts were absolutely irreconcilable, and demonstrated the unfitness of the jury to determine the respective rights and obligations of the parties to the litigation; that if the traction company was responsible for the injuries received by the wife, it followed as a matter of course that the husband was entitled to recover from the company such moneys as he had expended in the treatment of the injuries received by his wife, and also a reasonable compensation for the loss of her services and society. Reaching this conclusion, the court set the verdicts aside.

The present case being identical in its legal aspect with that to whicli we have referred, the rule to show cause will be made absolute.