author: Baches, V. C.

text:
    Angelo Melillo, complainant, v. John DeVincenzo et al., defendants.
    [Decided January 29th, 1935.]

      Mr. Alan Bruce Gonlin, for the complainant.

      Messrs. Pitney, Hardin d? Bhinner, for the Mutual Benefit Life Insurance.

      Mr. Mario Turtur, for John DeVincenzo et al.
   Baches, V. C.

The bill is to foreclose a mortgage given by Frank Vitagliano to the complainant Melillo, conveying fifty feet on the southerly side of Central avenue, Westfield. Vitagliano owned the adjoining fifty feet on the easterly side and on May 19th, 1930, mortgaged it and the easterly eight feet of the lot covered by the Melillo mortgage to the Mutual Benefit Life Insurance Company. Vitagliano had recently erected a building on the easterly fifty feet to which the eight-foot strip became appurtenant to meet the requirements of local zoning or building regulations, and a release of the strip from the lien of the Melillo mortgage was necessary to clear the title for the mortgage of the Mutual Benefit Life Insurance Company. The company produced a formally acknowledged and recorded release of the eight-foot strip, purporting to have been made by Melillo to Vitagliano May 19th, 1930, upon which it relied in making the mortgage loan. The release is signed by a mark. Melillo, an illiterate, denies he made the mark or that he acknowledged it as his signature to the notary, as she certified. The genuineness of the release is the single issue.

According to Yitagliano, a private banker and steamship agent and of some prominence among his less favored countrymen, Melillo agreed to release the strip, but later refused, demanding $1,500; after many interviews and counter-proposals Melillo came to his office on the morning of May 19th about eight-thirty and stated he was willing to take his offer of $1,000, whereupon the two went to the notary, Miss Tantum, employed in a local newspaper office some ten minutes away, who had frequently taken acknowledgments for Yitagliano. Yitagliano introduced Melillo to the notary and stated their mission; the notary said she did not know Melillo, but would take Yitagliano’s word for his identity. Melillo produced the form of release, given to him by Yitagliano at the outset, made his mark, the notary took the acknowledgment, certified and gave it back to Melillo who put it in his pocket. When they returned to Yitagliano’s office, Melillo took the paper out of his pocket and unctuously addressed Yitagliano (Yitagliano indicated with a flourish), “Mr. Yitagliano, this is a paper I just had to sign it for the eight feet. Where is the $1,000?” Yitagliano replied he was sorry he did not have it ready, but would have it in a few days, to which Melillo suggested, “if you haven’t got it, you can give me a check and put in a date when I should get enough money in the bank; give me a check. * * * Can you give me a check in three days after?” Yitagliano gave him a check post-dated May 22d, for $1,000, and Melillo gave him the release and went his way. That is Yitagliano’s story.

(Yitagliano’s canceled check for $1,000, to the order of Melillo, dated May 22d, 1930, was produced.)

One Sam Eocco says he was present when the two returned from the notary; he was there by appointment with Yitagliano to do some work. He relates that “Mr. Melillo pulled some paper out of his pocket and handed it to Mr. Yitagliano [and he, too, indicated the flourish] saying, ‘that is your paper I signed this morning * * * for the eight feet of ground.’ ” Melillo wanted his money; Yitagliano replied he didn’t have enough to pay him, that if he would give him two or three days to raise it he would give it to him; Melillo persisted and Yitagliano retorted, “all right, I can give you a check for two or three days late and you can hold the check.” Melillo agreed and Yitagliano gave him the check. That is Eocco’s story.

Melillo not only denies making the mark and appearing before the notary, but when brought face to face with her in court, says he never knew her nor ever had met her until taken to her for identification by his lawyer, accompanied by Yitagliano and his lawyer after the dispute over the release arose. The notary could not identify Melillo as the man who made the mark and says she took the acknowledgment because the maker of the mark was vouched for by Yitagliano.

Ordinarily the denials of the unlettered Melillo would go down before the legal force of the notary’s certificate and the testimony of Yitagliano reinforced by Eocco. Then, too, Melillo denied the mark on the release, when shown to him at the hearing, before looking at it, and it might be argued that his disposition was to deny everything. The explanation is that he had seen the release and knew what the paper was. He also denied his mark in endorsing the check when cashing it at the bank, and this would give further grounds for argument of a predisposition to repudiate everything. When it was called to his attention he explained that he did not think, and it is quite likely he did not understand.

The truth is: Melillo had retained Augustus C. Hash, an attorney in Westfield, to collect the mortgage debt. Mr. Hash wrote to Yitagliano under date of May 19th that his client insisted upon payment, and he produced a manifold copy of the letter. In response to the letter Yitagliano called May 23d, and gave him the check as a payment on account of the mortgage and promised to pay the balance within three months. Mr. Hash so testified and produced a manifold copy of a receipt he gave Yitagliano, which reads:

“May 23rd, 1930.
Mr. Frank Vitagliano,
Central Avenue,
Westfield, N. J.
Dear Sir:—
This is to acknowledge receipt of your check bearing date of May 22nd, 1930, payable to the order of Angelo Melillo in the sum of One thousand ($1,000) Dollars. The same to be credited on account of the principal of a mortgage made by yourself and wife to Mr. Melillo and which mortgage bears date of October 29th, 1928, and is recorded in the Union County Register’s office in Book 949 of mortgages at pages 485, etc. The mortgage being given originally in the sum of Fifty-five hundred ($5,500) Dollars.
The check delivered today in the sum of One Thousand ($1,000) Dollars will leave the principal sum of the mortgage at Forty-five hundred ($4,500) Dollars. It is understood that you will make arrangements to pay off the balance of the principal of the mortgage within three months from the date hereof.
Very truly yours,
ACN/MS.”

Mr. Nash’s stenographer, Miss Simonetto, wrote the letter and receipt upon his dictation and was present when Vitagliano gave her employer the check and she so testified and corroborated Mr. Nash in all the facts. Vitagliano deities he received the letter and the receipt, and he denies receiving a letter of August 28th, dictated by Mr. Nash, a copy of which the stenographer testifies typing and mailing (a copy was produced), calling his attention to the promise he had made to pay the balance due on.the mortgage. Mr. Nash and his stenographer are disinterested, reputable and reliable.

It is definitely established that Vitagliano did not give the check to Melillo for the release; his statement that he did is a pure fabrication and carries destruction to his otherwise plausible story of Melillo haggling with him over the price of the release, the compromise, going to the notary to execute the release and giving a post-dated check in pa3rment, and to the false tale of the convenient Roeeo, present quite by chance at the crucial moment, and after a lapse of four years remembered the decisive details of an affair in which he had not the slightest concern, who saw Melillo hand over the release with the flourish described by Vitagliano and receive the check.

The defendants obtained a rehearing. They produced witnesses to discredit Melillo, Mr. Nash and his stenographer.

One Panzanella testified that on the night of the day of the hearing (September 10th, 1934) between seven-thirty and eight o’clock he was standing with his friend, DiFonzo, at a street corner in Westfield as Melillo approached and greeted him, and being asked how he had made out with his ease, Melillo replied that the case was over and he had won; asked how he won, Melillo answered, “well, I won the case, but it cost me plenty money just to make a letter which Frank Yitagliano never received. * * * The letter shows the $1,000 that was paid was paid on the mortgage instead of the money for the driveway;” that Yitagliano’s lawyer tried to force him to say he signed the papers, but “I didn’t admit that; I held with my word from the beginning to the end, that I didn’t sign any papers. * * * I just put one over on Frank Yitagliano; that’s the only way I can fool him, by sticking to my word.” The witness: “You know that is bad. It’s a shame to go to court and lie to win a ease from another fellow.” Melillo: “I don’t care, it’s the only way I can get my money from the mortgage he owed me. * * * I don’t care. I won the case and they can’t do anything to me any more.” Melillo was a friend; the conversation lasted five minutes; nothing else was discussed.

DiFonzo tells of being with Panzanella and that Panzanella asked Melillo how he made out with the ease, to which he replied, “I won the case. * * * Only God knows how I win the case. * * * That letter that Mr. Yitagliano never received, only God knows how much it cost me.” Panzanella broke out, “gee, that’s a shame, those things to happen like that.” To which Melillo responded, “they want to try me to say yes, but I insist to say no. I cross the paper, but I insist to say no; and the lawyer try me, but I deny and say no.” Panzanella again said, “gee, that’s a shame,” and Melillo answered, “well, what do I care as long as I win the case? * * * It’s a shame, but that’s the only way I can get my money. * * * I won and nobody now can do nothing to me anymore. * * * What do I care? * * * I won the case. It don’t make any difference much.” The witness knew Melillo by sight.

William Porchetta testified that on September 16th, 1934, a Sunday, about three-thirty in the afternoon, in front of his place, he was talking to one Caldaro when Melillo came along and he asked him how he came out with his case. Melillo answered, “huh, I won my case very easily. * * * I would have been a fool to say I signed my cross on the paper when I could put one over on Vitagliano.” The witness’ reaction to this was, “then you lied. You would get in trouble if that was found out.” To which Melillo replied, “No, I can’t get in trouble, my case is over.” The witness then addressed Caldaro, “did you hear how he won his case ?” Caldero replied, “come on, let’s go, I don’t care about the case.” The witness said he had known Melillo for ten years.

Caldero testified that he had an appointment with Porehetta for three-thirty on the Sunday of September 16th, 1934, to go to a movie, and while on the sidewalk in front of Porchetta’s place, Melillo came along and Porchetta asked him, “how did you make out with your case with Vitagliano, the Vitagliano case?” He replied, “I won the case very easily.” Upon being asked by Porchetta how he won it so easy, he said, “well,. I would have been a fool to admit signing the papers.” That Porchetta warned him to “watch out, don’t say too much about it, don’t talk about it, or you’ll get yourself in trouble.” Melillo: “Well, they can’t do nothing to me now, I won the case.” Caldero did not know Melillo before this meeting.

Melillo denies both meetings. He says that on the night of the day of the hearing he left his home about seven o’clock and went to the shop of Tony Dagostare close by, far distant from the Panzanella-DiPonzo meeting place, and remained there till ten-thirty playing cards. He did not know DiPonzo or Caldero and knew Porchetta by sight only.

George Chrone, a messenger for Conlin, Melillo’s lawyer, says that on the evening of the day of the trial, Conlin asked him to go to Westfield to see Melillo to get some money, he wanted another fee of $50; that he went to Dagostare’s shop, where, he knew, Melillo usually went; Dagostare was in the doorway and while standing there Jack Lanza came and a few minutes later he saw Melillo coming down the street; it was about seven o’clock; Peter Caruso joined them, and as he left Melillo, the rest went into the shop.

Tony Dagostare testified that on the night of September 10th, George Chrone came to his shop asking for Melillo and while standing outside with Jack Lanza and a Mr. Caruso he saw Melillo come up the street from his home; it was about seven o’clock; that Chrone, addressing Melillo, said, “Mr. Melillo, I just come up to see you, because the lawyer wanted a little money.” That after Chrone left they went inside and played cards, he, Lanza, Melillo and Caruso; they played until about ten-thirty, when all left.

Lanza and Caruso gave supporting testimony that they were with Melillo in Dagostare’s shop from seven o’clock until ten-thirty playing cards.

The case had not been decided; Melillo had not won; counsel had not argued the cause. The plot is overdone; it is inherently false in its sinister implication that Mr. Nash, a lawyer of high repute, conspired with Melillo and forged the letters and the receipt for profit (his fee was $10), and revolting in its aspersion that he and his former secretary foully perjured themselves. And had Melillo won, is it conceivable that he would have flaunted his depravity—that he won by flagrant perjury—upon casual meetings and before strangers (DiPonzo and Caldaro were strangers), to be spread through the Italian community in which Yitagliano lived, to ■his undoing and the loss of the victory of which he boasted? Yitagliano’s second draft upon his compatriots to help in a pinch is in keeping with the earlier planting of the accommodating Eocco, who saw the release given in exchange for the check? The release is a forgery and the certification of acknowledgment by the notary was procured by impersonation. The probative value of the certificate of acknowledgment, urged by the defendants and buttressed by the cases cited (Hyer v. Little, 20 N. J. Eq. 443; Tooker v. Sloan, 30 N. J. Eq. 394; Homeopathic Mutual Life Insurance Co. v. Marshall, 32 N. J. Eq. 103; Black v. Purnell, 50 N. J. Eq. 365; 24 Atl. Rep. 548; Gould v. Murley, 75 N. J. Eq. 512; 73 Atl. Rep. 129; Colonial Building and Loan Association v. Griffin, 85 N. J. Eq. 455; 96 Atl. Rep. 901; Brady v. McHugh, 94 N. J. Eq. 336; 119 Atl. Rep. 377; Potter v. Steer, 95 N. J. Eq. 102; 122 Atl. Rep. 685; Walkowitz v. Walkowitz, 95 N. J. Eq. 249; 122 Atl. Rep. 835; Greenberg v. Dessen, 99 N. J. Eq. 666; 134 Atl. Rep. 181; Mitschele-Baer, Inc., v. Livingston Sand and Gravel Sales Co., 108 N. J. Eq. 286; 154 Atl. Rep. 752; Young v. Duvall, 109 U. S. 573; 27 L. Ed. 1036, and Northwestern Mutual Life Insurance Co. v. Nelson, 103 U. S. 544; 26 L. Ed. 436), is overcome and destroyed.

The complainant is entitled to a decree and sale of the mortgaged premises free of the release.


source: Caselaw Access Project

author: Campbell, A. M.

license: Public Domain

text:
    Arturo Pieretti, petitioner, v. Letizia Innocenti Pieretti, defendant.
    [Decided January 26th, 1935.]

      Mr. Alfred A. Franck, for the petitioner.

      Mr. David Weineck, for the defendant.
   Campbell, A. M.

The facts are: The parties were married in 1912 and lived together in this state until August, 1925. During that month the wife left for Italy, accompanied by two children of the marriage. She was then pregnant, the child, Gino, having been born in Italy two months later. Her transportation, and that of the two children, was arranged and paid for by the husband. Her departure was under the friendliest of circumstances. In 1931 the husband visited his wife and children in Italy, remaining there for about a month. One of the children, who accompanied the wife to Italy, died there after the husband’s return to this state. Their seventeen-year-old daughter returned with the husband and has ever since been in his custody. Subsequently, the husband filed his petition in this court fot divorce for the cause of desertion. The wife filed an answer, service upon her having been by publication. The cause came on for final hearing, at which the wife was represented by counsel. A decree nisi was advised by me. At the conclusion of final hearing the question of custody and support and maintenance of Gino was continued for the purpose of permitting counsel to submit briefs.

Counsel have not submitted, nor do I find any reported cases in this state wherein a similar situation has been adjudicated.

The husband resists this application, generally, on the ground that while jurisdiction of this court was obtained over the wife and such of the children of the marriage as were domiciled in this state, or in the United States, it has not acquired nor can it acquire jurisdiction over Gino because he has never been out of the Kingdom of Italy; that the boy is beyond the jurisdiction of this court because its writ of habeas corpus would be ineffective in compelling his physical presence before this court. It is not the rule, as applying to the latter reason, that a writ of habeas corpus is the proper procedure. In Power v. Power, 65 N. J. Eq. 93; 55 Atl. Rep. 111, it was stated that it is not necessary to produce the body of a child into court in order that an order may be made for its support; that the proper practice is upon petition to the chancellor, as parens patria, in a summary manner. See, also, Nelson v. Wergland, 104 N. J. Eq. 334; 146 Atl. Rep. 32; Vincent v. Vincent, 108 N. J. Eq. 136; 154 Atl. Rep. 328.

Authority fo'r this court to make an order for custody and maintenance in the matter sub judice is found in section 25 of the Divorce act (2 Comp. Stat. 1910 p. 2035), which is, in part as follows: “Pending a suit for divorce or nullity, or after decree of divorce, it shall be lawful for the court of chancery to make such order * * * touching the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties [italics are mine] and the nature Of the case shall render fit, reasonable and just, and to require reasonable security for the due observance of such orders, and upon neglect or refusal to give such reasonable security as shall be required, or upon default in complying with the order, to award and issue process for the immediate sequestration of the personal estate, and the rents and profits of the real estate of the party so charged [italics are mine] * * The portions which I have italicized I will refer to later.

As to the domicile of the husband in this state there is no dispute. As to the domicile of the wife: In Hess v. Kimble, 79 N. J. Eq. 454; 81 Atl. Rep. 363, Vice-Chancellor Learning held, inter alia, that the term “residence,” as used in our Divorce act of 1907 (2 Comp. Stat. 1910 p. 2021) includes not only the factum of residence but also the animus manendi; the residence required by statute being equivalent to domicile. In Tracy v. Tracy, 62 N. J. Eq. 807; 48 Atl. Rep. 533, the court of errors and appeals held that a feme covert’s residence follows that of her husband but terminates with the reason upon which it rests; when the union between the two ceases, and an attitude of hostility arises, they may each have different residences. Cases cited. In Rinaldi v. Rinaldi, 94 N. J. Eq. 14; 118 Atl. Rep. 685, it was stated that a cause sufficient to justify a wife in leaving the matrimonial domicile of her husband and herself and acquiring an independent domicile of her own, is snch cause only as would entitle her to a decree of divorce or a judicial separation from him under the statute. Cases cited. It was also held (In re Geiser's Will, 82 N. J. Eq. 311; 87 Atl. Rep. 628) that the unity of domicile exists during coverture, unless the wife acquires one elsewhere by the husband’s consent; that such consent may be either actual or constructive and may be manifested by acquiescence, by abandonment, or by such conduct inimical to cohabitation as would secure to the wife a decree of divorce, a vinculo or a, mensa et thoro. And again, in Brown v. Brown, 112 N. J. Eq. 600; 165 Atl. Rep. 643, it was stated that where such residence or domicile is once established it is presumed to continue unless there be proof of the acquisition of a new domicile or residence; and to establish the latter more than a mere change of abode is requisite; the change of abode must be animus manendi. Cases cited.

Applying the foregoing rules to1 the circumstances under which the wife left her husband’s domicile in this state, supra, it is evident that she has not acquired an independent domicile of her own in Italy, and, consequently, aside from any other rule applicable to this subject, neither has Gino acquired a domicile there.

As to the domicile of Gino: The court held, in Rinaldi v. Rinaldi, supra, that the domicile of a legitimate unemancipated minor, whose will cannot concur with the fact of residence, is, if his father be living, the domicile of the father; that a minor cannot change his domicile of his own will.

It will serve no useful purpose to further consider the subject of domicile. The reports contain many cases illustrating the doctrine; the literature of the law is replete with a discussion of the subject. The proofs disclose that Gino is an unemancipated minor. Applying the rule to the circumstances, I find his domicile to be that of his father in this state, irrespective of the fact that he has always resided in a foreign country.

Concerning custody: section 97-21 of an act entitled, “An act to amend an act entitled, ‘An act concerning minors, their adoption, custody and maintenance (Revision of 1902)’” (1 Cum. Supp. Comp. Stat. p. 1556), being an amendment of section 21 (2 Comp. Stat. 1910 p. 2810), provides: “In making an order or decree relative to the custody of children pending a controversy between their parents, or in regard to their final possession, the rights of both parents, in the absence of misconduct, shall be held to be equally charged with their care, nurture, education and welfare, and the happiness and welfare of the children shall determine the custody or possession.” Section 21 of the original act (2 Comp. Stat. 1910 p. 2810) made no provision for “care, nurture, education and welfare.” It was, evidently, the legislative intendment, in enacting this amendment, to have it considered and applied as a complement to section 25 of the Divorce act, particularly to the extent of individuating the responsibility for support and maintenance, because “nurture” means to give nourishment to, to feed, to bring or train up, to educate; it seems to fortify the construction I have placed upon section 25, infra.

The husband has seen Gino but once since his birth eight years ago. He evinces no affection for the boy nor has he contributed anything towards his support. That he cho'se to bring his daughter back with him from Italy, to the exclusion of Gino, coupled with his vigorous resistance to that portion of this proceeding as relates to support and maintenance, leads to the conclusion that he cannot be entrusted with the personal safety, morals, health and happiness of Gino even should the Kingdom of Italy be inclined to give full faith and credit to our decree awarding custody to him. I have concluded that the welfare and happiness of Gino warrant his being placed in the care and custody of his mother.

As to the support and maintenance of Gino: Section 19 of “An act concerning divorces” (Rev. Stat. 1871-75 p. 25)), approved March 27th, 1874, provided that the “care and maintenance of the children” should be “by the said husband.” This statute was repealed by P. L. 1902 ch. 95. It was succeeded by “An act for divorce and for decrees of nullity of marriage and for alimony and the maintenance of children (Kevision of 1902)/’ being P. L. 1902 ch. 157. Section 19 of this latter statute (repealed by 2 Comp. Stat. 1910 p. 2021) is identical with section 25 of our present Divorce act. It is obvious that the legislative intent in enacting section 19 of the 1902 act, supra> as well as re-enacting it as section 25 of the present act, wherein were incorporated the phrases “circumstances of the parties” and “party so charged” (which I italicized, supra) was for the purpose of relieving the husband, or father, of the sole obligation imposed upon him by Rev. Stat. 1874-75, supra. Consequently, as applied to section 25 of the present Divorce act, “circumstances of the parties” is construed to mean the financial ability of the husband and wife jointly, and “party so charged” is construed to mean whichever parent is decreed to educate and maintain the children of the marriage.

The case discloses nothing from which it can be inferred or presumed that the wife is not of equal pecuniary ability with the husband to support and maintain Gino. Testimony adduced at the divorce hearing disclosed that the husband possesses unincumbered income producing real estate located in this state, and that he receives a salary of about $42 weekly from a position he has held for a number of years. Dor the purpose of judicially ascertaining the wife’s financial status it will be necessary, of course, to take depositions in Italy, where she now resides. This will, undoubtedly, consume considerable time and, also, cause some measure of expense. Furthermore, the reasonableness of the amount to’ be finally allowed for Gino’s support and maintenance will depend largely upon his needs and the financial ability of his mother and father, respectively. If his mother has means of her own she will be held to contribute toward his support and thus diminish the amount to be paid by his father; the rule in this respect not differing materially from that applied in the case of allowance of permanent alimony. In a matter such as this, consideration must be given to the care and attention the mother will be required to give to the boy, the assistance, if any, the mother will receive from him, and all other surrounding circumstances that will tend to equalize the financial burden between the parents, as nearly as may be.

During the interim, however, I am of the opinion that the husband should contribute toward Gino’s support. The amount shall be fixed at $20 per month (without deductions for cost of transmission) to be paid on the fifteenth day of each month, the first payment to be made on January 15th, instant. The method of transmission to Italy will be arranged between counsel. In the event of the husband desiring to inquire concerning the ability of Gino’s mother to contribute towards his support, he may have an appropriate order for that purpose, the cost of such proceedings, however, to be borne by him.

Solicitor for the wife will prepare and submit an order in accordance with the foregoing. Counsel fee, upon this application, will be settled on usual notice.


author: Stanton, A. M.

text:
    Charles Glusker, petitioner, v. Anna S. Glusker, defendant.
    [Decided April 3d, 1934.]

      Messrs. Perlcins, Drewen •& Nugent, for the petitioner.

      Messrs. Burnett •& Trelease, for the defendant.
   Stanton, A. M.

Petitioner seeks a divorce on the ground of desertion which he alleges began in the month of September, 1928, and continued down to the filing of the petition herein, on March 27th, 1933.

Defendant denies the desertion and charges that she was obliged to separate from the petitioner in November, 1916, because of his cruel and inhuman treatment, and that she has continued to live apart from him. Defendant counterclaims for separate maintenance. At the hearing, the answer was amended to fix the date of separation as October, 1915.

The parties were married in New York City on July 5th, 1903, and thereafter lived together in Brooklyn, New York, until October, 1915. Two sons were born of the marriage, David on May 8th, 1904, and Alfred on December 17th, 1911.

The defendant left the petitioner in October, 1915, and took with her the children of the marriage. Thereafter they never lived together.

The petitioner testified that he remained in the home for three years after his wife left; that thereafter he lived with his mother in the State -of New York, until November, 1927, when he moved to' Jersey City, where he rented an apartment in which he continued to reside down to the hearing. The defendant has always resided in the State of New York.

On December 23d, 1916, petitioner and defendant entered into a written separation agreement which, recited that the parties “have mutually agreed to live separate and apart from each other because of certain unhappy differences between them,” and provided, inter alia, that thereafter the parties should live separate and apart from each other forever; 'that the husband should pay to the wife the sum of $12 per week for the support of herself and the maintenance and education of the two children of the marriage; that the wife should have the custody of the two children subject to1 the husband’s right of visitation, and that neither party should interfere in any way with the other. In April, 1919, the defendant brought a suit against the petitioner in the supreme court of the State of Hew York, to set aside this agreement because its monetary provisions were inadequate and because she had entered into it under duress. On August 4th, 1919, a judgment was entered in that suit wherein it was decreed “that the agreement of separation entered into by and between the plaintiff and defendant on the 23d day of December, 1916, be and the same is hereby set aside.”

Following this, the parties had a meeting at the home of petitioner’s sister, which was attended by some relatives of the respective parties. There an agreement was made that in the future, petitioner should pay to defendant the sum of $22 per week. Petitioner says now that this allowance was made Eor the support, maintenance and education of the children of the marriage, whereas defendant testifies that it was for the support of herself and the children. At any rate, it was paid regularly down to October, 1932, at which time petitioner discontinued it because the younger son had recently married.

Petitioner bases his case on a willful desertion by the defendant which commenced in October, 1915, and continued down to the time of the commencement of this suit. It is his contention that the desertion became obstinate in September, 1928, and that ever since the defendant willfully, continuedly and obstinately deserted him. He urges that the separation agreement eliminated the element of obstinacy until September, 1928, and that, although the written agreement was set aside by the Hew York supreme court, nevertheless all of its terms were continued in effect by the oral agreement, except that with reference to the amount of alimony.

As to the circumstances and occurrences which preceded the separation, the parties relate totally conflicting stories. The husband states that at the time, he was a grade teacher in the public schools in Hew York City, and to make ends meet, was obliged to teacb evening school and Sunday school; that he and his wife disagreed upon finances; that they had difficulty in meeting the charges upon the house which thejr owned and in which they lived; that the wife thought she had operatic possibilities and demanded a musical education ; that he made provision for such education and in connection therewith went into debt to the extent of $1,000; that in the beginning of 1914, she began a systematic course of nagging; that she neglected the home and the children; that she went out frequently during the day in connection with her musical aspirations; that she became interested in the woman’s suffrage movement and was very active outside of the home in connection therewith; that the defendant resented it when he complained that he could not continue to go into debt and that they must live within their means, and that she must spend more time at home, caring for it and the children; that she repeatedly threatened to leave and that she did actually move out in the month of October, 1915, taking some of the furniture to her brother’s house. In this the petitioner is not corroborated, except as to the withdrawal.

The defendant, on the other hand, states that she was an industrious and hard working wife, always attentive to her husband, their children and the home; that she was interested in music and that she studied it after their marriage, but at very little expense, paying very moderate fees to one professor and enjoying a free scholarship from a musical institute in Brooklyn; that beginning six months after the marriage, the petitioner frequently urged her to leave him; that he unjustly charged her with adultery, in that he said her younger sOn was not his; that he was suspicious of her; that he continually quarreled with her and constantly belittled her; that she did on one occasion leave him for a period of several months, and returned on his contrite apology and assurance to treat her properly in the future. Defendant related an incident that occurred a few months before she left her husband that upset her greatly. During the night, a revolver, which was under a pillow in the bed in which she and her husband were sleeping, was discharged, and the bullet entered the pillow on which she was sleeping. She stated that the discharge of this revolver was not accidental, because petitioner admitted to her, just after it happened, that he was disgusted with everything and was going to end it all. She stated that her health was undermined by the conduct of the petitioner toward her and that the repeated demands of the petitioner that she remove from the house finally caused her to leave in October, 1915. There is no corroboration of the defendant in connection with the foregoing.

Petitioner denied the above allegations. I am satisfied that his regard for, and his treatment of this younger son, Alfred, clearly negatives the idea that he denied the paternity of that child. He denies that he ordered her from their home.

My observation of the parties at the hearing satisfied me that they were both high strung and temperamental. The evidence established that for several years prior to the desertion, there was a clash of personalities, tastes and ambitions, which gave rise to discord and dissension. There was incompatability, but nothing more. I am not at all convinced that petitioner’s conduct justified the defendant’s withdrawal from the home.

Petitioner states that after his wife left him, he kept the house open three years for her to return; that he saw her repeatedly during the early stages of their separation and endeavored to have her return, and that he had other people use their good offices to that end. The son, Dr. David Glusker, testified that at his father’s request he spoke to his mother many times about reconciliation; that prior to the year 1920 he did somn several occasions; that his mother at some of these times Said that such a thing was ridiculous, and at other times asked his opinion as to whether it would be wise for her to go back, but he refused to give any opinion. Defendant stated that she refused to go back to her husband because she did not feel that he was truly contrite and was not satisfied that he would behave properly toward her in the future. She justified her position by stating that she returned to him once on his promises of amendment, but that he did not live up to them.

On the foregoing facts, a serious question arises as to whether the petitioner is not barred from relief for the reason that the defendant willfully, continuedly and obstinately deserted him for a period of two years, during which time neither of the parties was a resident of the State of New Jersey, but in fact both were residents of the State of New York, where desertion was not a ground for divorce. Koch v. Koch, 79 N. J. Eq. 24; 80 Atl. Rep. 113; Buckley v. Buckley, 95 N. J. Eq. 783; 124 Atl. Rep. 605; Rockefeller v. Rockefeller, 113 N. J. Eq. 274; 166 Atl. Rep. 474.

However, the petitioner contends that he consented to the desertion, or at least acquiesced in it, as is evidenced by the separation agreement between the parties. He urges also that he did not give up hope, but continued through the years to 1928, trying to win back his wife. But desertion becomes obstinate, not when the injured party concludes that there is no further hope of reconciliation, but rather when the desertion is persisted in against his will. Be that as it may, let us consider the ease further on the theory that petitioner bases it.

Petitioner testifies that in September, 1928, he and the defendant went together to Lucerne in the Adirondacks. He was contemplating purchasing some property there for use as a boys’ camp. He desired to have his wife look the camp over with him and to have the benefit of her advice. She stated that her reason for going was that she had an interest in the property in Brooklyn which he proposed to exchange for the camp. At any rate, after an overnight trip, they arrived at Lucerne on a Saturday and looked over some sites. ■ Saturday night they stayed at a farm house in Lucerne with a family with whom they were acquainted. Nothing was said about reconciliation on the journey to Lucerne. Petitioner testified that when time came for retiring, it was found that their ho'sts had set aside but one bedroom for them. When he went into the bedroom, Mrs. Glusker stated that if he did not leave at once, she would scream. Thereupon, he withdrew. The next day, Sunday, their relations were friendly as they started for home on the train. He testified that they discussed things of mutual interest and he began to feel that she was becoming somewhat friendly toward him. He took what he thought a favorable opportunity to discuss the subject of reconciliation, when the train was in the vicinity of Poughkeepsie. He told her it was about time that things were straightened out and that they patched up their difficulties and lived together. He stated that her response was that she was not fit for Mm morally. That so upset him that he got up and retired to the smoking car, and the matter was discussed no further.

Petitioner admits that no further effort was made by him after this incident to terminate the separation. Petitioner is corroborated with respect to the date of this trip by his son, Dr. David Glusker, who testified that shortly afterwards his mother told him of the trip to Lucerne and the offer of reconciliation.

Defendant admits that petitioner spoke to her on the return from Lucerne about reconciliation. She denies, however, that she said that she was morally unfit for him. She bases the refusal to return to Mm at this time, as she did the previous refusals, on the ground that she had returned to him once before, and that she felt that there was no justification for giving him any further chances. Defendant states, moreover, that this trip was made some time prior to 1926, probably in the year 1925. She bases this on the fact that she went to Europe in 1926 and her visit to Lucerne with her husband anteceded that.

Assuming, but not deciding, that the situation down to the fall of 1928 was as petitioner contends, namely, that the defendant was guilty of willful and continued desertion during the years 1915 to 1928, but that such desertion was not obstinate, nevertheless, petitioner cannot succeed in this action.

These parties had lived apart for thirteen years prior to the Lucerne trip. During that time, they saw each other frequently. Their meetings were generally in connection with the care, maintenance and education of their children, in whom they were deeply interested. The parents arranged and jointly paid for the education of the son, David, who attended school until he was twenty-two years of age, at which time he was graduated from the University of Pennsylvania Medical School. They helped to support Mm thereafter, while he was interned at a Brooklyn hospital for a period of two years, and during the time that he did research work at the University of Bochester. On the occasion of his marriage in the year 1930, they joined in giving him a substantial present. Both parents provided for the other son, who apparently was somewhat of a problem, until his marriage, when he was approximately twenty-one years of age. The parties had a great mutual interest in their sons and they fully discharged their obligations to them. During the entire period of the separation, the children were friendly with both of them.

The defendant, from the time she left her husband, was able' to earn money. For some years past, she has been engaged in the insurance brokerage business, and she testified that she had earned up to $3,000 a year.

Where a husband and wife have been living apart for thirteen years, by consent or acquiescence, though the separation began against the wishes of the husband, and where their positions in life have been so radically changed, as in this case, and where one of the parties desires to terminate that state of separation and resume normal cohabitation, the duty is upon that party to establish clearly and convincingly that his intentions and efforts in that regard are honest and sincere. It might be said that the efforts to terminate such a separation should be in proportion to the period of time it has existed. The burden is on him to prove that he made proper efforts to terminate the separation under the circumstances of the case, and doubt as to this is resolved against him. Goldberg v. Goldberg, 101 N. J. Eq. 284; 137 Atl. Rep. 438; Sheeran v. Sheeran, 115 N. J. Eq. 75.

The question naturally arises, did the husband honestly and sincerely desire his wife to return to him, or was he laying the foundation for this divorce suit? It has been said that a man in this situation should woo his wife as he did during the courtship. Consider the effort upon which petitioner relies. He went with his wife on a business trip over a week-end; on the way home, in the parlor car of the train, he proposed reconciliation; and upon her refusal for the reason, as he states, that she was not morally fit, he became emotionally upset and went off to another ear, and thereafter never spoke to her about the matter again, and never made any further effort to induce her to return to him.

In passing upon the good faith and sincerity of the petitioner, it is proper to consider his change of residence. At the time of his marriage, he was a public school teacher in New York City, and he continued in such employment down to the time of the hearing. In the meantime, he had risen to the position of vice-principal. While it satisfactorily appears that petitioner took up his residence in Jersey City in the fall of 1927 and continued to reside there down to the time of the hearing, nevertheless he gives no reason for this change of residence. Ordinarily, public servants live in the state where they are employed. When this unusual and unexplained change of residence is considered in connection with the nature, character and length of the separation of the parties and the effort which petitioner made to terminate it in September, 1928, it is fair to conclude that petitioner’s effort was not an honest and sincere one; that he did not act in good faith for the purpose of inducing his wife to return to him, but rather with the idea of laying a foundation for this action. Petitioner cannot prevail in his suit.

As regards the counter-claim of the defendant, it is admitted that she left her husband. The burden is upon her to establish that she was justified in so doing. Taylor v. Taylor, 73 N. J. Eq. 745; 70 Atl. Rep. 323. As stated above, it does not satisfactorily appear that she sustained this burden. Defendant has not established that the petitioner was guilty of extreme cruelty.

A decree dismissing the petition and counter-claim will be advised.


author: Bodine, J.

text:
    IN THE MATTER OF THE PETITION OF THE LITTLE FERRY NATIONAL BANK, LITTLE FERRY, NEW JERSEY, FOR THE MAKING AND FILING OF AN ORDER THAT THE MUNICIPAL CORPORATION, TOWNSHIP OF LODI, HAS DEFAULTED FOR OVER SIXTY DAYS IN THE PAYMENT OF THE PRINCIPAL AND INTEREST OF ITS CERTAIN OUTSTANDING NOTES AND BONDS HELD BY PETITIONER, TO THE END THAT THE MUNICIPAL FINANCE COMMISSION CREATED PURSUANT TO THE PROVISIONS OF AN ACT ENTITLED, “AN ACT CONCERNING MUNICIPAL FINANCES,” CONSTITUTING CHAPTER 340 OF THE LAWS OF 1931, AND ANY SUPPLEMENTS THEREOF AND AMENDMENTS THERETO, SHALL HAVE AND EXERCISE WITH RESPECT TO SAID MUNICIPALITY THE POWERS AND DUTIES PRESCRIBED BY SAID ACT.
    Decided January 21, 1935.
    Before Justice Bodinei, sitting alone pursuant to the statute.
    For the petitioner, McDermott, Enright <& Carpenter.

    For the township of Lodi, Chandless, Weller & Selser.

   Bodine, J.

An application was made under chapter 340 of the laws of 1931 (Pamph. L., p. 830), as amended and supplemented, to the end that the municipal finance commission function in the township of Lodi.

The applicant is a national banking association. It holds a large number of township notes and bonds on which the interest has been in default over sixty days. There is no dispute that the bank is the holder for value of the municipal obligation in question.

The contention is made that as to some of the obligations that the same were unconstitutionally issued and as to others that the Pierson act (Pamph. L. 1916, ch. 252, p. 525), was not complied with.

The laws of 1931, page 830, provide merely for a summary hearing as to the default. It is conceded that there was such default. To delay action merely because there may be some question as to the validity of issue of some of the municipal obligations would defeat the very purpose for which the act was intended. Municipal financing, past and present, must be placed on a sound basis.

In order for the court to safeguard the interest of the municipality and the bondholders, it is not necessary to determine more than the circumstance that obligations were issued for value, upon which interest was once paid, but which are now over sixty days in default.

The Pierson act (Pamph. L. 1916, p. 252, § 10), provides as follows: “Any bonds reciting that they are issued pur-

suant to this act, shall in any suit, action or proceeding involving their validity be conclusively deemed to be fully authorized by this act and to have been issued, sold, executed and delivered in conformity herewith and with all other provisions of statutes applicable thereto, and shall be incontestable anything herein or in other statutes to the contrary notwithstanding, unless such suit, action or proceeding is begun prior to the delivery of such bonds.”

At all events, some of petitioner’s obligations so recite. In this proceeding, the validity of these obligations, and other obligations issued for value, may not be questioned.

The rule will be made absolute.


author: Brogan, Chief Justice.

text:
    HENRY L. BRANT, TRADING AS BRANT LUMBER COMPANY, PLAINTIFF-APPELLEE, v. GEORGE KIESER, DEFENDANT-APPELLANT.
    Submitted October term, 1934
    Decided January 23, 1935.

      Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the plaintiff-appellee, Franklin H. Berry.

    For the defendant-appellant, Ira F. Smith.

   Brogan, Chief Justice.

The appeal is from the judgment of the Common Pleas Court of Ocean county entered in favor of the plaintiff. Seven grounds of appeal are urged for a reversal. Six are valueless.

The grounds (a) that the verdict was contrary to the weight of evidence; (b) that it was a compromise verdict; (c) that it was not predicated upon the evidence; (d) that the verdict was contrary to law, are ineffectual since they do not challenge judicial error. Booth v. Keegan, 108 N. J. L. 538; 159 Atl. Rep. 402. These questions should have been raised on rule to show cause. An appendix to the appellee’s brief would indicate that they were so raised and determined adversely to the appellant.

The next ground challenges the admission of evidence. This, too1, is ineffectual because it does not point out the questions and answers, the admission of which is challenged as error. Booth v. Keegan, supra.

The ground íot reversal, asserting that there should have been a nonsuit, is abandoned. The sixth ground, however, is formally correct, to the effect that a verdict should have been directed for the defendant, but it has no merit whatever. Furthermore it was raised on rule to show cause and is, therefore, not available as a ground of appeal.

The judgment is affirmed, with costs.


author: Pee Cueiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JAMES HOGAN, PLAINTIFF IN ERROR.
    Submitted May term, 1934
    Decided February 1, 1935.
    Before Justices Teenchard, Heher and Peeskie.
    Por the plaintiff in error, Julius J. Seiden.

    Por the defendant in error, Daniel O’Regan, prosecutor of the pleas.
   Pee Cueiam.

Plaintiff in error was convicted of robbery. He sued out a writ of error, and the entire record of the proceedings had upon the trial was, pursuant to the authority conferred by section 136 of the Criminal Procedure act (2 Comp. Stat., p. 1863), returned with the bill of exceptions. The grounds now urged for reversal, raised both by an assignment of errors and a specification of causes therefor under section 137 of the act referred to (2 Comp. Stat., p. 1866) are: (1) the verdict is contrary to and against the weight of the evidence, and (2) the trial judge committed prejudicial error in overruling certain questions propounded to the state’s witnesses on cross-examination.

These are the circumstances: The only witnesses whose testimony tended to inculpate plaintiff in error were two self-confessed accomplices, Gourley and Wilson, and this was their story: Hogan, a lifelong resident of the community in which the robbery was perpetrated, and who had never been convicted of crime, suggested to the mentioned accomplices and another, one Brand, who took no part in the trial, either as a defendant or as a witness, that they “take” a truck of the Lorrillard Tobacco Company, containing a cargo of tobacco, after its departure from a plant or warehouse of the tobacco company maintained in the neighborhood in which plaintiff in error and Gourley and Wilson resided. Gourley was a virtual stranger to plaintiff in error. They had met for the- first time a week or two' before this alleged proposal was made. Hogan, so the confessed accomplices testified, made the inquiries requisite to determine the time of the holdup; and it was agreed that, in the execution of the plan, Hogan would suddenly drive his automobile in front of the truck, shortly after its departure from the plant, and thus compel the driver to reduce its speed, when GoRrley and Wilson would ascend to the driver’s seat, and', at the point of a revolver, take control thereof. This was the course pursued, so Gourley and Wilson testified. Unquestionably, Gourley and Wilson seized the truck shortly after its departure from the Lorillard plant. They testified that, upon reaching the driver’s cabin, they took control from the truck driver and his helper at the point of a revolver, and that, after having driven for some distance through busy thoroughfares of Jersey City, Wilson and the driver and helper, the latter two making no outcry, dropped from the truck, leaving Gourley in possession. The reason for this is not clear, although there is evidence tending to show that the police were then in pursuit, and that Wilson deserted the truck to avoid capture. Some distance beyond this point the pursuing police caught up with the truck, and to'ok Gourley into custody. The latter promptly made' a statement, admitting that he and Wilson conducted the holdup, but making no mention of Hogan. Wilson, upon his arrest, made a like admission without mentioning Hogan. Sometime later, Gourley made a second statement to the. police authorities, and then for the first time told a story that involved Hogan. Wilson did not make mention of Hogan until the morning of the day of the trial. Neither the truck driver nor his helper was called as a witness and the failure is not excused. Hogan testified in his own behalf. While he vigorously denied all participation in the preparation for and perpetration of the crime, his testimony, in some of its phases, particularly as to his acquaintance with Gourley and Wilson, is not altogether convincing. But, inasmuch as a reversal is required on the second ground, it will be unnecessary to determine the first, and therefore an appraisal and weighing of the evidence will serve no useful purpose.

The questions propounded to Gourley on cross-examination were clearly designed to show the facts and circumstances attending his inculpation of the plaintiff in error, for the obvious purpose of enabling the jury to determine whether he was actuated by self-interest. He was asked, for instance, if, at the time of his involvement of plaintiff in error in this criminal enterprise, he was about to be sentenced on a plea of guilty. This and questions of like character, designed to show partiality and bias inspired by motives of self-protection, were overruled. Exceptions were duly taken.

We find prejudicial error in these rulings. A jury may convict a prisoner upon the testimony of an accomplice alone, if, in its judgment, such testimony is entirely credible and worthy of belief. State v. Fearce, 113 N. J. L. 155; 172 Atl. Rep. 575; State v. Bove, 98 N. J. L. 350; 116 Atl. Rep. 766; affirmed, 98 N. J. L. 576; 119 Atl. Rep. 926; State v. Bossone, 88 N. J. L. 45; 95 Atl. Rep. 969; affirmed, 89 N. J. L. 724; 99 Atl. Rep. 310; State v. Lieberman, 80 N. J. L. 506; 79 Atl. Rep. 331; State v. Hyer, 39 N. J. L. 598; State v. Bien, 95 Id. 474; 113 Atl. Rep. 248; State v. Simon, 71 N. J. L. 142; 58 Atl. Rep. 107; affirmed, 59 Id. 1118. But such testimony must, for obvious reasons, be elo'sely scrutinized. The accomplices, tainted as they are with confessed criminality, are often influenced in their testimony by the strong motive of hope of favor or pardon. Therefore, it is incumbent upon the courts tó “look carefully into the secret motives that might actuate bad minds to draw in and victimize the innocent.” State v. Hyer, supra. See, also, State v. Bien, supra. In these circumstances there was all the more reason for a liberal application of the general rule that questions directed toward eliciting the interest of the witness are proper. In State v. Black, 91 N. J. L. 361; 118 Atl. Rep. 103, this court applied the principle. The state called to the witness stand two alleged co-conspirators, brothers, who gave testimony that, if believed,-established the truth of the charge contained in the indictment. On the cross-examination of one, who followed his brother to the witness stand, counsel for the accused sought to obtain an admission that he and his brother had “consulted together about appearing and giving testimony in the case,” but the questions directed to that end were overruled. In an opinion directing a reversal, Chief Justice Gummere said: “The fact that these two co-defendants had turned ‘state’s evidence’ naturally affected injuriously the credit to be given to their testimony; for it was suggestive, at least, of a bargain between them and the state authorities with relation to the punishment which would be inflicted upon them in case their testimony aided in bringing about Black’s conviction. In this situation, the fact that before these two' witnesses were called they had consulted with relation to the testimony to be given by them—if such was the fact—coupled with the similarity of their testimony actually given, tended to further discredit them as witnesses by giving some color, at least, to the conclusion that Black might have been the subject of a ‘frame up’ engineered by these two brothers. As a general rule any fact that bears against the credibility of a witness is relevant to the issue being tried; and the party against whom the witness is called has a right to have that fact laid before the jury in order to aid them in determining what credit should be given to the person testifying.” Assuming, without deciding, that, as held in some jurisdictions, the scope and extent o'f a cross-examination designed to show the interest of the witnesses is within the sound discretion of the trial judge, plaintiff in error, by this curtailment of the cross-examination of the witness in question, suffered manifest wrong and injury, within the intendment of section 136 of the Criminal Procedure act, and a reversal is therefore required, to the end that a new trial be had.

Judgment reversed, and a venire de novo awarded.


text:
    PAUL N. APGAR, PLAINTIFF-APPELLANT, v. WEONA BUILDING AND LOAN ASSOCIATION OF EAST ORANGE, NEW JERSEY, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLEE.
    Argued October 2, 1934
    Decided January 23, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Eor the plaintiff-appellant, Abraham, M. Herman.

    Eor the defendant-appellee, Harder & Olein (Aaron Harder, of counsel).
   Brogan, Chief Justice.

The court below, on motion addressed to the complaint, struck out the complaint on the ground that it disclosed no cause of action. From the judgment entered thereon the plaintiff appeals.

The complaint contains four counts, the first of which alleges that the plaintiff was a non-borrowing stockholder in the defendant building and loan association and that on a given date his shares of stock had a withdrawal value of $644.55 which amount the defendant refused to pay. The second count is to the same effect with the addition that it is charged that a cheek for the amount of the withdrawal value was made out in favor of the plaintiff and that he was wrongfully induced and persuaded to endorse the check over to the order of the defendant. The third count alleges an indebtedness between the defendant and the plaintiff in the said sum and that by representations, consciously fraudulent in fact on the part of the defendant, it induced the plaintiff to endorse over the check for the benefit of his wife concerning whom it was represented that she was indebted in a larger sum- to the defendant, and that in consideration of such endorsement the defendant would forego suit against her. These representations the plaintiff believed and, in consideration thereof, endorsed the check over to the defendant. The fourth count is a repetition of the allegations of the third count and plaintiff further says that because of the fraud practiced upon him he has elected to rescind his endorsement of the check and demands his money on the debt theory pleaded in the third count.

A bill of particulars appears in the record but it is meaningless because the questions which are answered are not printed and therefore the answers are not understandable.

- The motion to strike the complaint was urged on three grounds, the failure to give notice of withdrawal from the building and loan fund; the failure to state that the defendant has failed to apply its funds for withdrawal in accordance with the building and loan statute, and the failure to allege that the plaintiff is entitled to any withdrawal moneys under the regulations made by the commissioner of banking and insurance, pursuant to the building and loan statute. Courts of course are bound by the statutes but cannot take judicial notice of rules and regulations made by the commissioner of banking and insurance. These are not matters of common knowledge and, in order to receive the consideration to which they are entitled, must be pleaded.

The court below erred in striking out the third and fourth counts of the complaint. Clearly they state a cause of action. These counts on their face are neither sham nor frivolous and in considering a motion addressed to a pleading the trial court is bound to regard all the allegations, properly pleaded, where there is no proof to the contrary, and there was none here, as true, unless they are palpably false.

The judgment is reversed, and the case sent back for trial, costs to abide the event.


text:
    VENTNOR TRUST COMPANY, A BANKING CORPORATION, ETC., PLAINTIFF-APPELLANT, v. GEORGE W. LaBREE, DEFENDANT-APPELLEE.
    Submitted October term, 1934
    Decided January 24, 1935.
    Before Brogan, Chief Justice, and Justices Parkee and Bodine.
    Por the plaintiff-appellant, Glenn & Glenn.

    Por the defendant-appellee, William Charlton.

   Brogan, Chief Justice.

This appeal is from a judgment for the defendant in the Common Pleas Court of Atlantic county.

There are three reasons advanced for a reversal of the judgment: (1) that the judgment is contrary to law; (2) that the trial court refused to direct a verdict in favor of the plaintiff, and (3) that the trial court erroneously charged the jury.

A rule to show cause which was allowed and later, after argument, discharged, was based upon the reasons that the verdict of the jury was against the weight of the evidence and contrary to the charge of the court.

These questions having been settled by the discharge of the rule, there is therefore no question before us on appeal which is not within the scope of the rule to show cause which was argued and consequently there is no appealable ground before us. Cleaves v. Yeskel, 104 N. J. L. 497; 141 Atl. Rep. 814.

The judgment is affirmed, with costs.


author: Per Curiam.

text:
    RALPH FINELLA, PLAINTIFF-APPELLANT, v. FRANK C. OVERBURY, DEFENDANT-RESPONDENT.
    Submitted October term, 1934
    Decided January 29, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Por the plaintiff-appellant, Chandless, Weller <& Belser {John E. Selser).

    Por the defendant-respondent, Vander Burgh <& Marcus.

   Per Curiam.

The errors argued by the appellant relate to the charge of the court. The appellant, having argued a rule to show cause in the lower court without reservation of exceptions is precluded from an appeal upon alleged errors appearing in the charge of the court. Supreme Court rule 129. Jones v. City Limit Cab Co., 112 N. J. L. 482; 171 Atl. Rep. 791.

The appeal is dismissed, with costs.


author: Chtlt), A. M.

text:
    Helen Nichols Carney, complainant, v. J. Campbell Carney, defendant.
    [Decided January 30th, 1934.]

      Messrs. McCarter & English (by Mr. George W. McCarter), for the complainant.

      Mr. Herman H. Singer, for the defendant.
   Chtlt), A. M.

The parties to this suit were married on the 15th day of September, 1928, in South Orange, in this state. They lived for a short time, as I recall it, at a hotel, and then went to live with the complainant’s parents where they lived for some seven months, until the month of March, 1929. Thereupon they took up their residence in an apartment, and there remained for some considerable length of time. There were frequent visits by the complainant to her people, and in the month of September, 1930, the defendant called on the complainant, as I recall it, at the seashore, when she told him they would have to have a larger apartment, their lease expiring in the month of. October, 1930. The defendant says that the wife no longer desired to live at the apartment, and on September 23d, or thereabouts, 1930, he moved the furniture from the apartment and placed it in storage. The wife says that she knew nothing about this at the time and that the defendant brought her clothing to her home.

Prom about.the first of October, 1930, and down to November 11th, 1930, at which time the complainant was confined, the defendant called every night at her parents’ home. They were then apparently not living together, nor under the same ro'of. After the birth of the child, and on Thanksgiving eve, the defendant brought the complainant from the hospital and brought her to .the home, of her parents. Complainant’s testimony is that he called upon her every night until February, 1931. He apparently continued to call until the 28th of February, 1931, when there was a disturbance and quarrel over certain bills that the complainant had contracted. Thereafter, the defendant did not call at the home of his wife’s parents, and so far as appears from the evidence, did not again come in personal contact with his wife to talk to her.

The defendant husband says that his wife was unwilling to live with him, and that this accounts for her frequent visits to her home. The complainant in this case was apparently, and still is, a highly nervous woman. She, on the stand, relates a series of quarrels and nagging, and claims, as I recall it, one slight physical assault. After the quarrel of February 28th, 1931, the defendant husband wrote his wife a letter, requesting her return, to him. This was about the same time that he wrote several letters to trades people, cutting off her credit. Immediately after receiving the letter of March 12th, 1931, the complainant consulted Judge Harley, then a practicing lawyer, with respect to obtaining adequate support. Judge Harley had no records or data with which to refresh his memory, but he says that the complainant expressed a willingness to live with the defendant when she became well, and as he recalled it, the defendant indicated that he had had enough. There was a letter, as I recall it, on January 13th, 1932, from the defendant to the complainant, which the complainant denies the receipt of, and says that she did not answer any on the advice of counsel.

I think that there can can be no doubt that the complainant, at the time of the separation in February, 1931, had made up her mind that further cohabitation with this defendant was not desired. On the stand she said that she would not again live with him, presumably justifying this stand; that because the defendant had nagged and quarreled over bills, as she says, and had been unkind, justified her in this position. The defendant’s testimony is that he was at all times ready to live with his wife and that she refused to live with him.

The attitude of the complainant wife towards matrimony and the possible birth of children is indicated by the testimony of two women witnesses who were called here to-day.

I am satisfied that the wife was not justified by the husband’s conduct in refusing to live with him. I am also satisfied that she did avoid living with him during the time down to February 28th, 1931, as much as possible. She objected, so he says, to taking an apartment. Her excuse for not taking an apartment earlier than she did, was that the apartment was not ready, and that there was no one living in the apartment house. The janitor or superintendent of the apartment was called here to-day and says that at the time the Carney furniture was moved in, in December or January, 1929, that in the month of December there were eight or nine families living in the place and in January some twenty-four families. Feeling as I do, that the complainant has refused to live with her husband, it becomes necessary to take up the question as to whether there is a justification in that refusal.

The case before me is similar to the case of Fallon v. Fallon, 111 N. J. Eq. 512; 162 Atl. Rep. 406. That case, affirmed on opinion of Advisory Master Herr, correctly states the rule of law with respect to the rights and obligations of a wife. In that case it is said:

“It is the duty of the wife to live with her husband at his home and to' give him her services and society. From these obligations she is only relieved if she can show that the conduct of her husband has been such as will reasonably convince the court that her life or health are in danger or her life rendered one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife.”

Furthermore, in the same ease:

“The misconduct relied upon to justify the wife in leaving her husband must amount to a ground of divorce a mensa or a vinculo, and it is not a necessary ingredient in constructive desertion that the husband shall entertain, in connection with his acts of cruelty, any settled purpose to drive his wife from him; it is enough if such is the natural consequence of his acts.”

In other words, the cruelty which must he shown in this case to entitle the complainant to a decree is the same amount of cruelty which she would have to show where she is suing for a divorce on the ground of cruelty or on the ground of constructive desertion. Mere nagging, disagreeable, and taciturn conduct is not sufficient ground for divorce and therefore is not sufficient ground to justify the wife in refusing to live with the husband or in separating herself from him.

I therefore feel that the bill of complaint in this case must be dismissed.

We now take up the question of the husband’s counterclaim. The law imposes the duty on the husband to make reasonable advances to obtain the return of his wife. Her desertion, and such it was in this ease, must he against his will and it must have continued to be against his will throughout the entire period of the desertion charged. This man wrote a letter in March, shortly after the quarrel in February, asking his wife to return. He almost immediately thereafter wrote letters cutting off her credit. He had an interview with Judge Harley shortly after the writing of this letter, and in that interview, if Judge Harley’s testimony is to be believed, and I do believe it, this man expressed his unwillingness to live with his wife. In other words, her desertion of him or separation from him was not against his will, and therefore the allegation of willfulness, one of the three necessary elements, the other two being obstinance and co'ntinuancy of the desertion, has not in this case been proved by the defendant husband, and there will be a decree of dismissal of Ms counter-claim.

I will allow a connsel fee of $200 to the solicitor of the complainant.


author: Egan, V. C.

text:
    J. I. Kislak, Incorporated, a corporation of New Jersey, complainant, v. Irving J. Artof and C. B. Snyder Company, Incorporated, a corporation, defendants.
    [Decided February 7th, 1935.]

      Messrs. Gross é Gross, for the complainant.

      Mr. Sylvan Cohen, for the defendants.
   Egan, V. C.

The complainant, engaged in the real estate business, seeks a preliminary injunction to enjoin the defendant Artof, one of its former salesmen, from violating the provisions of an employment contract entered into between them, and to enjoin the defendant C. B. Snyder Company, Incorporated, by whom defendant is employed since about June 1st, 1933, as a salesman, from aiding him in the violation of the contract. The contract, among other things, provides that the defendant shall not enter into the real estate brokerage, real estate management, real estate mortgage or insurance brokerage business, or any other branch of the real estate business as conducted by the complainant, either as broker or salesman, principal or agent, employer or employe, officer, director, or otherwise, directly or indirectly in the counties of Hudson and Bergen, for a period of one year after the termination of said contract. It also provided that the maintenance by Artof of an office or other place of business within Hudson or Bergen county, for the transaction of any such real estate business, or entering into the employ of, or connecting or affiliating himself with anyone maintaining such an office or place of business in Hudson or Bergen county, should be considered a violation of the covenant not to engage in the said business in the counties mentioned.

The violation of the contract by the defendant has been clearly established.

The complainant had built up an extensive realty business in the counties of Hudson and Bergen and employed a number of salesmen, among them Artof. These salesmen were assigned to certain territories; ATto'f was given the counties of Hudson and Bergen. Complainant had accumulated extensive records of real estate information and listings of prospective buyers and sellers of real estate; to these records the members of the complainant organization, including defendant Artof had access. The business of complainant with its customers, and its listings of real estate, were discussed by its salesmen, officers and directors at regular meetings. These records of the complainant, and the business discussed and considered at the meetings, were all unquestionably of a confidential character and should have been so regarded.

Under the terms of the contract, in the event that either party would terminate it, they could do so only by giving written notice to that effect on or before February 28th, 1933, otherwise, it should continue to remain in force for another year. Artof on or about June 1st, 1933, left the complainant’s employ without giving any notice and associated himself as a real estate salesman with the defendant C. B. Snyder Company, Incorporated, a competitor of the complainant, whose office ivas located in Hoboken, in Hudson county, and he immediately proceeded to solicit the customers of the complainant Avho had been such during the time that the defendant was employed by iff

The defendant Artof entered the complainant’s employ without having had any experience in the real estate business and he continued in such employ from year to year for a period of seven years; through said employment he acquired knowledge of the realty business and obtained confidential information—the use of which against complainant’s interests would, to some extent, be an element of irreparable damage; and to permit Artof to use this confidential information, and thus make business contacts, at the expense, and to the detriment, of his former employer whose rights he solemnly pledged himself in writing to respect, would, in effect, be to encourage, approve, and place a premium upon fraud.

The defendant makes three points in opposition to the granting of the relief prayed for. First, he denies the material allegations of the bill and contends a preliminary injunction should not be granted. The answer is found in the opinion by the court of errors and appeals in the case of Ideal Laundry Co. v. Gugliemone, 107 N. J. Eq. 108; 151 Atl. Rep. 617: “While the general rule is that a preliminary injunction will not issue where the material facts in complainant’s bill and affidavits, on which the complainant’s right depends, is met by a full, explicit, and circumstantial denial under oath, yet where, as here, the denial lacks these essential qualities, and upon the entire showing from both sides it appears reasonably probable that the complainant had the right claimed, the injunction may issue. Scherman v. Stern, 93 N. J. Eq. 626; 117 Atl. Rep. 631; Brunetto v. Montclair, 87 N. J. Eq. 338; 100 Atl. Rep. 201; Meyer v. Somerville Water Co., 79 N. J. Eq. 618; 82 Atl. Rep. 915; Citizens’ Coach Co. v. Camden Horse Railway Co., 29 N. J. Eq. 299.”

This case comes squarely within that rule, for here, the defendant has utterly failed in the particulars thereby required. A further reason is, that in the instant case, great and irreparable injury will be suffered by the complainant should preliminary relief be denied it. That circumstance brings it within the exception laid down by the court of errors and appeals in Citizens’ Coach Co. v. Camden Horse Railway Co., supra, which is referred to in the Ideal Laundry Co. Case, supra, and in the case of Scherman v. Stern, supra, likewise cited therein.

The second ground of relief urged by the defendant is that the loss suffered by the complainant is not irreparable in character since the commissions to be earned by the defendant Artof may be readily calculated. That, however, is not the measure of the injury to the complainant. The impairment of its business and the diversion of its clientele to other channels, is of a much more serious nature. That loss, or damage, is not calculable or readily ascertainable. Ideal Laundry Co. v. Gugliemone, supra; Marvel v. Jonah, 83 N. J. Eq. 295; 90 Atl. Rep. 1004; Golden Cruller and Doughnut Co. v. Manasher, 95 N. J. Eq. 537; 123 Atl. Rep. 150; American Ice Co. v. Lynch, 74 N. J. Eq. 298; 70 Atl. Rep. 138.

The third point made by the defendant is, that under the provisions of paragraph 10 of his contract with the complainant, the complainant is entitled to an injunction to run for a period of one year from the final decree and not before. It seems clear, however, that the covenant is a divisible one, as was held by the court of errors and appeals to' be the situation, with a somewhat similar negative covenant, in the case of Kalz v. Newman, 97 N. J. Eq. 284; 127 Atl. Rep. 255, and Fleckenstein v. Fleckenstein, 76 N. J. Law 613; 71 Atl. Rep. 265, therein cited. The covenant provides independently of any other provision therein, that the defendant Artof shall not engage in the specified business within Hudson or Bergen counties, for a period of one year after the termination of his employment. It proceeds further to provide that in the event of legal proceedings are necessary for the enforcement of the covenant, the defendant may be enjoined for a year from the date of final adjudication. To give the covenant the interpretation contended for by the defendant, would permit him to continue to violate his contract for the entire period up to final decree during which time the destruction of the complainant’s business may be accomplished and the purpose of the injunction entirely frustrated. It seems to me that the object of the contract provision is to protect the complainant against a violation thereof during an entire year after the termination of the employment, but that if the employe, during that time, avails himself of the benefit of complainant’s business by his violation of the contract, that thereby he exposes himself to a further restraint for a period of one year after the final determination of the cause. To adopt the construction of this covenant, as contended by the defendant, would be tantamount to ignoring the inhibition against his engaging in the business within the prescribed territory within the year period, and by his very violation to extend him license to continue in that course. Such could not have been the intention, and defendant did not, according to his own affidavit, so understand it. In the case of Golden Cruller and Doughnut Co. v. Manasher, supra, it was held that: “In this case the only question involved is whether or not men shall be held to fair dealing and a compliance with the valid contracts that they make.”

I shall advise an order enjoining the defendant Artof, in the language of the covenant, and the defendant C. B. Snyder Company, Incorporated (which does not deny knowledge of complainant’s rights under its contract), from continuing Artof in its employ in violation of the covenant.


text:
    JACK WILLIAMS, PLAINTIFF-RESPONDENT, v. THE HERSHFIELD AGENCY, A CORPORATION OF NEW JERSEY, DEFENDANT, AND RUSSELL HARRIOTT, DEFENDANT-APPELLANT.
    Argued October term, 1934
    Decided January 29, 1935.
    Before Bkogan, Chief Justice, and Justices Pahkek and Bodine.
    Por the defendant-appellant, Collins & Corbin (Edward A. Markley and Howard F. McIntyre).
    Por the plaintiff-respondent, Isadore Rabinowitz.

   Bodine, J.

The defendant Harriott appeals from a judgment in favor of the plaintiff. There was a nonsuit as to the corporate defendant. The plaintiff’s injuries were suffered while chatting with friends standing by a car parked along a road side. The car was properly lighted and well off the traveled portion of the highway. The defendant’s car was identified by one of the persons sitting in the parked car as the instrumentality of injury. The plaintiff, immediately after the injury, was taken to police barracks and troopers shortly thereafter apprehended the defendant, who admitted that while driving on the road where the accident occurred, he had struck something but had not troubled to see what had happened. The defendant’s car bore evidence of an impact with the car where the plaintiff had been standing. The issues of negligence and contributory negligence raised by the pleadings and proofs were properly submitted to the jury. It would have been clear error to grant either the motion for a nonsuit or a direction of a verdict.

The other grounds of appeal are not argued, and hence must be regarded as abandoned, but even so we have examined them and they possess no merit.

The judgment is affirmed, with costs.


text:
    THE STATE OF NEW JERSEY, EX REL. JOHN BIEGA ET AL., RELATORS, v. STANLEY P. ROSTKOWSKI ET AL., RESPONDENTS.
    Submitted October term, 1934
    Decided February 4, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the relators, David T. Wileniz.

    For the respondents, John G. SlocTcel.

   Bodine, J.

The proceeding tests the title to certain offices in the Polish Falcons “Kosciuszko.” The relators were duly elected December 21st, 1931. They attempted to merge several Polish societies. This action was restrained by the Court of Chancery. Besides the membership voted down the proposal. The relators each refused to conduct the meeting after this occurred, and a temporary chairman was chosen who continued the meeting to June 27th, 1932. In the meantime, impeachment proceedings were brought against the relators and they were removed from office. Officers were then chosen by the other faction to serve until December 19th, 1932, when new • officers were elected. Bach faction claimed that the other was not entitled to the office. An effort was made to compose the factional differences, both set of officers agreed to' resign and a special election was held in March, 1933, to effect the purpose of a committee.

The respondents were duly elected at this meeting to their respective offices, the relators participating in the election contest. To now disturb the respondents would defeat the will of the majority of the society and upset a well considered plan designed and participated in by both factions to effect a solution of internal difficulties. Since the relators participated in the March, 1933, election and thus treated the offices as vacant, they are now estopped to question the validity of the election of the respondents.

The respondents are, therefore, entitled to judgment, with costs.


text:
    HAROLD McBRIDE, PROSECUTOR, v. HOWARD J. BLOY, CLERK OF THE TOWNSHIP OF HILLSIDE; ARTHUR T. LEE, CHAIRMAN AND TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HILLSIDE; NORMAN L. SANFORD, CHIEF OF POLICE, AND EDWARD ULRICH, OSCAR BISHOP, HARRY SCHUETZLE AND J. LESTER SANFORD, DEFENDANTS.
    Argued October term, 1934
    Decided February 4, 1935.
    Before Bkogan, Chief Justice, and Justices Parker and Bodine.

      For the prosecutor, Samuel B. Goldstein and William Fogel.
    For the defendants, Siguard A. Emerson.

   Per Curiam.

Harold McBride, who for a number of months acted as police sergeant in the township of Hillside, seeks to have reviewed the action taken by the township in creating four offices of police sergeant, and in appointing thereto four police officers who had been less long in the service than he.

One who merely acts in an office cannot be regarded as having tenure. Frequently someone is designated to act for an officer, who, for one reason or another, is temporarily incapacitated. Such temporary incumbent does not have tenure. Therefore, the only question in this case is whether the municipality in appointing Messrs. Ulrich, Bishop, Schuetzle and Sanford as sergeants of police, pursuant to the township ordinance, acted in accordance with chapter 194 of Pamph. L. 1927, p. 377. This act provides that promotion shall be made with due regard to the length of service and merit in the police department, the preference being given to those having longest service.

From our examination of the record, it would seem that there was due regard to merit in the advancements made, but we cannot substitute our own judgment for that of the officials charged with the public duty by the mere circumstance that prosecutor had been a police officer for a few years longer than those advanced. As between those in the same class of service merit cannot be easily determined by the bare written record. Certainly, the legislature could not have intended, because they did not so say, that years of service should be the sole criterion. They provided that merit should be considered also. So far as we can discover from the record, there seems good reason for the action taken.

The rule is dismissed with costs.


text:
    DAVID T. WILENTZ, ATTORNEY-GENERAL, EX REL. A. G. BOLAND AND PAUL W. HAYES, RELATORS, v. JACK G. JERNEE, RESPONDENT.
    Argued October term, 1934
    Decided February 4, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Por the relators, Dole & Oole.

    Pot the respondent, Boswell id Boswell {W. Holt Apgar).

   Bodine, J.

The relators challenge the respondent’s right to the office of chief of police of Ocean City, Cape Majr county. Beliance is placed upon chapter 194, Pamph. L. 1927, p. 377. That act provides that in municipalities other than first and second class cities where a police department is in existence promotion shall be made from the membership of the police department. Chapter 335 (Pamph. L. 1931, p. 822; 8. 8. 1931 Annual, *136-1604a—1) provides that no' person shall be appointed an officer or member of a police department of any municipality who is more than forty years of age. The legislation expressly provides that it shall not affect any officer or member of a police force then holding office. Despondent is more than forty years of age. Ocean City is not a first or second class city.

The plea asserts, and the demurrer admits, that the respondent was first appointed to the police department March 1st, 1920, and has continued to serve in such police department continuously until on July 26th, 1933, when he was appointed chief of police. During his service in the police department he was seasonally transferred by the mayor from his usual police duties, such as patrolman, to take charge of life boats and to perform duties often performed by life guards. The duties performed by respondent while upon .the beach and in life guard assignment were performed as a member of the police department. The circumstance that latterly the budget has contained separate items for police and life guard expense seems not to alter the fact that the respondent, a member of the police department, by instruction from the head of his department, performed his duties as the change in season and the exigencies of the public service required.

Whether respondent patroled the streets, or the beach, took care of life boats, or saved citizens from drowning, he was continuously for more than fourteen years a member of the police department of the city. All the services performed by him were in the interest of the public safety and the mere circumstance that the mayor conceived it was wise to assign respondent to duty upon the beach rather than at the railroad station, or to duty in the station house, no more changed his employment than if he had been ordered to do detective work or plainclothes duty. He was, therefore, eligible for advancement under the act of 1927. And the act of 1931 by its express terms is inapplicable.

Judgment for the respondent, with costs.


text:
    SAMUEL KOCH, PLAINTIFF-APPELLANT, v. FRANKLIN MORTGAGE AND TITLE GUARANTY COMPANY, A CORPORATION, DEFENDANT-RESPONDENT.
    Submitted October term, 1934
    Decided February 4, 1935.

      Befóle Brogan, Chief Justice, and Justices Parker and' Bodine.
    Por the plaintiff-appellant, Marder Olein, (Aaron Harder).
    Por the defendant-respondent, Emil A. Trautman, Jr.

   Per Curiam.

Plaintiff appeals from a judgment in favor of the defendant. The action, as originally framed, sounded in tort as well as in contract. By amendment, the complaint was for a breach of contract made by a third party for plaintiff’s benefit. The plaintiff loaned money upon a second mortgage. The defendant title company attended to some details in connection with the loan. The first mortgage covering the premises required annual payments to be made in reduction thereof and was in whole payable in less than three years. Plaintiff maintained that the loan would not have been made if these circumstances had been disclosed. The trial judge submitted the case to the jury on the theory that the proofs adduced might indicate the breach of a contract to disclose these facts. A rule for a new trial was denied, all exceptions being reserved.

(1) Plaintiff first argues error in the refusal of the fifth request based upon language contained in the case of Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L. 487; 170 Atl. Rep. 22. The substance of this request was embodied in the third (and fourth requests charged.

(2, 3 and 4) It was not necessary to charge the eighth request, because the case was not submitted upon the theory that the contract, as breached, was made by an agent but on the theory that there was a contract for the benefit of a third party. The plaintiff was not harmed by the submission of the case on the theory of a contract for his benefit rather than on the theory of a contract made by his agent.

(5) The fact that the court charged the jury that if there was an obligation upon the part of others to disclose facts with respect to the amortization provision of the mortgage that circumstance could not impose a duty upon the defendant. This comment was certainly harmless.

(6) The trial court quite properly excluded certain questions asked a young lawyer called as a witness. Questions as to what may have been done in other instances in his short and limited practice seem immaterial either to show a custom, or to establish a usage among title companies in reporting defects back of a continuation search presently made.

(7) The plaintiff was paid a bonus for his loan. The trial court properly received evidence of this fact and limited damages to the amount advanced.

(8) We are unable to understand why the refusal to permit tender of the bond and mortgage should be assigned as error. Neither on the tort or contract theory would the tender of these documents have been relevant.

(9) We agree that the confidence in the Newmans’ ability to pay, they being sureties upon the bond, had no relevancy, but we fail to see harmful error in the admission of the testimony.

(10) Declarations by a third person are not admissible in evidence.

Such was the letter of the Bilt-well Company sent some weeks after completion of this transaction to a firm of New York lawyers.

(11) A letter offered in evidence speaks for itself. It was clearly improper to inquire as to its purpose.

(12 and 13) The ninth and tenth requests denied were substantially covered in other parts of the charge and in the requests granted.

(14 and 15) The plaintiff’s case failed by reason of the lack of facts sufficient to convince the jury of liability.

(16) There is nothing in the record to indicate an abuse of discretion in denying a new trial.

The judgment is affirmed, with costs.