author: Pee Curiam.

text:
    JOSEPH W. SUTTON, RELATOR, v. LEROY S. CHAMPION, COLLECTOR OF TAXES OF THE TOWNSHIP OF MAURICE RIVER, IN THE COUNTY OF CUMBERLAND, AND THE TOWNSHIP OF MAURICE RIVER, IN THE COUNTY OF CUMBERLAND, RESPONDENTS.
    Argued May 7, 1924
    Decided November 24, 1924.
    Taxes and Assessments — Tax Sale for Non-payment — Failure to Redeem and Consummation of Sale — Unsuccessful Effort Then Made to Set Aside Sale by Certiorari — Bill Then Filed to Restrain an Ejectment Suit Which was Dismissed on Ground That Legal Remedy Had Been Debarred by . Laches —Notwithstanding Sale Properly Continued to be Assessed to Relator and, Finally, Tender of All Back Taxes Made and Refused — Mandamus to Compel Acceptance Refused.
    On alternative writ of mandamus.

    Before G-ujmeiik, Chief Justice, ancl Justices Paiikbu and Katzenbacii.
    For the relator, Herbert O. Bartlett and Walter II. Bacon.

    For the respondents, Louis II. Miller.

   Pee Curiam.

This case is before us on a demurrer to the return made under an alternative writ of mandamus. The relator is Joseph W. Sutton. The respondents are the collector of taxes of Maurice River township and the township of Maurice River. The facts, condensed, are that Joseph W. Sutton was the owner of five acres of land in Maurice River township, two of which were used for cemetery purposes. Sutton did not pay the taxes due upon this property, and on August 8th, 1914, Ellis Boggs, the then collector of taxes of the township, offered the property for sale. It was bought by the township. Boggs delivered to the township a certificate of sale, duly acknowledged. On September 4th, 1914, this certificate was recorded in the Cumberland county clerk’s -office. On April 25th, 1915, the township served on Sntton a notice in writing to redeem. An affidavit of the service was made. Sutton did not redeem. On January 8th, 1918, the notice to redeem, affidavit of service of notice to redeem, and an affidavit of non-redemption made by the township clerk were attached to the tax certificate recorded in the Cumberland county clerk’s office as a deed, and the tax deed was at the same time filed with the county clerk. Sutton then endeavored to set aside the tax sale by a writ of certiorari. In the Court of Errors and Appeals of this state it was finally decided, on November 17th, 1919, that in view of the provisions of section 14 of the Certiorari act of 1903 a review of the sale for unpaid taxes is limited to three years from the date of sale. The judgment of the Supreme Court dismissing the writ of certiorari was affirmed. Sutton then took another course. He filed a bill in the Court of Chancery to restrain an action of ejectment instituted by the township. This bill was dismissed on the ground that where the legal remedy is debarred by laches, equitable relief will not be afforded. An appeal was taken to the Court of Errors and Appeals from this decree, and on February 9th, 1922, the decree dismissing the bill was affirmed. Notwithstanding the sale the lands were assessed each year in the name of Sutton. On July 1st, 1923, Sutton tendered to the present collector of taxes the amount of all taxes due from 1913 to 1923. This tender was refused. He then applied for a writ of mandamus. The purpose of this proceeding is to permit the redemption of said lands by compelling the acceptance of the amount tendered. The effect of allowing the writ would be to hold the proceeding under which the tax sale was conducted void after it has been twice held by the Court of Errors and Appeals that Sutton was in laches and could not attack the proceedings because of his laches. The effect of granting to the relator the remedy he seeks would be to permit a collateral attack upon the tax proceedings'after the relator has been held barred from making a direct attack. The power to issue a writ of mandamus is a discretionary one. Jones Co. v. Guttenberg, 66 N. J. L. 58. To entitle a relator to his remedy it must appear that the relator has a legal right to have something done by the party to whom he seeks to have the writ directed and which has not been done. Nicholson Pavement Co. v. Mayor of Newark, 35 Id. 396. We think we should not mandamus the present collector of Maurice River township to accept the amount tendered by the relator, and thereby permit the relator to redeem, as the relator did not take within time the usual and proper method to have tine validity of the lax sale adjudicated. By reason of the ladies of the relator in this respect others may have obtained rights in the property which would he jeopardized. The legal right of the relator is not clear. The demurrer will lie overruled. The respondents are entitled to judgment on the demurrer, with costs.


source: Caselaw Access Project

author: Pee Cubiam.'

license: Public Domain

text:
    WID J. PAINTER v. HUDSON TRUST COMPANY.
    Decided November 24, 1924.
    Negligence — Personal Injury — Plaintiff, an Employe of an In-' dependent Employer, was injured While Working on Defendant’s Property — Case Went to Jury on Apparently Erroneous Instruction, Whether Plaintiff was Invitee or Licensee, and was There Decided Against Clear Weight of Evidence in View of Instructions — Verdict Must Therefore Be Set Aside on Theory That If Judgment Cannot be Supported on Theory Upon Which Presented it Must Be Set Aside.
    On defendant’s rule to show cause.
    Before Guinn-utu, Chief Justice, and Justices Paito it and Katzexhach.
    For the rule, McDermott, Enright £ Carpenter.

      Contra, William E. Sewell.

   Pee Cubiam.'

This was an action for personal injuries. The 'trial resulted in a verdict in favor of the plaintiff. Thereupon a rule to show cause why this verdict should not be set aside was granted by the trial judge, and we are now asked to make that rule' absolute.

The plaintiff was a foreman employed by the New York Telephone Company. On the day of the accident, he, with two assistants, was sent by his employer to cut the telephone cable that entered the building of the Hudson Trust Company, in West Hoboken. The proofs showed that tlie trust company was building a new banking house on its land, in unites; that is, a part of the new structure was erected while business was being carried on in the old. The plan was that when the new unit was finished the business should be transferred from the old to the new structure, the old building demolished and the remainder of the new banking house erected upon the land where the old building had stood, so that when the whole improvement was completed there would be a single building for the carrying on of the defendant’s business. The new unit had been completed; the trust company had removed from the old building into the new, and .then sent word to,the telephone company, requesting a telephone service to be installed in the new unit. This was done, and after the work of installation was finished the cable into tlie old building was ready to be cut, and the plaintiff and his assistants went to the old building for that purpose. They used an extension ladder to reach the point where the cable entered the building, which point was. up near the roof and almost immediately alongside a ventilator, which was one of several that had been placed in the outside wall of the old building many years before. While they were raising the ladder, the ventilator, which was made of iron, fell out of the wall, down to the street, and struck the plaintiff, seriousfy injuring him. The contention of the plaintiff was that this ventilator fell without anjdhing occurring to disturb it in its position, while the defendant claimed that it fell because the ladder which was being raised struck- against it. The trial court charged the jury that the plaintiff was not an invitee, hut a mere licensee, and that, consequently, if the ventilator fell because the ladder was pushed against it, the plaintiff could not recover. The verdict of the jury, being in favor of the plaintiff, carried with it, by necessary implication, a finding that the fall of the ventilator was not caused by the ladder coming in contact with it. Our examination of the testimony satisfies us that this implied finding is against the clear preponderance of the evidence, and that the virdict cannot he justified under the charge of the court. The trouble with the case, however, is that the charge erroneously limited the obligation of the defendant to that of a mere licensor, while, under the undisputed facts of the case, the duty imposed upon it with regard to affording protection to the plaintiff, while engaged in his work, was that imposed upon a person who invites another upon his premises io perform some act for his benefit. The defendant company had asked the telephone company to install a telephone service in the new unit; and this included, as we think, the removal of the old service from the building that was about to be torn down. It was in compliance with this request that the plaintiff was present at the place of the accident. Being an invitee, it is quite immaterial whether the ventilator fell because of the ladder being pushed against it or for some other reason; for, clearly, if the attachment of the ventilator to the wall had become so insecure that it was a menace to the safety of anybody engaged in removing the old telephone sendee, the defendant company was plainly negligent in permitting such a condition to exist.

But, although the case was left to the jury under an erroneous instruction as to the law which was manifestly injurious to the plaintiff, we are reluctantly compelled to set aside the verdict because of the plain disregard of that instruction by the jury; for it is entirely settled that, unless a verdict can he supported upon the theory of the law on which the case was submitted to the jury, it must be set aside. Sensfelder v. Stokes, 69 N. J. L. 86; Fritz, Administratrix, v. Sayre & Fisher Co., 77 Id. 236; Queen v. Jennings, 93 Id. 353.

The rule to show canse will be made absolute.


author: Per Curiam.

text:
    JOHN VAN CLIK, ADMINISTRATOR, ETC., PLAINTIFF, v. HACKENSACK WATER COMPANY AND JOHN McGARRY, DEFENDANTS. JOHN VAN CLIK, PLAINTIFF, v. HACKENSACK WATER COMPANY, A CORPORATION, AND JOHN McGARRY, DEFENDANTS.
    Submitted June 5, 1924
    Decided November 24, 1924.
    Negligence — Street Excavation Not Properly Filled In, Leaving Manhole Several Inches Above Grading! — Plaintiff’s Automobile Struck Manhole, Killing Plaintiff’s Wife and Injuring Himself — Evidence to Show Excavation Probable Cause of Accident — Charges of Contributory' Negligence Not Sustained, Street Being Open to Travel and No Warning Signals at Manhole — Jury Charge That Plaintiff, Though Having Contributed to Accident, Might Recover for Injury to Wife, Sustained.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbaci-i.
    For the plaintiffs, Ward & McGinnis (Peter J. McGmnis, of counsel).
    For the defendant Hackensack Water Company, Edwards & Smith (Edwin F. Smith, of counsel).
    For the defendant John McGarry, John W. McGeelmn, Jr.

   Per Curiam.

The above cases are before us on defendants’ rules to show cause. Both cases arose out of the same accident. They were tried together. The Hackensack Water Company had entered into a contract with one John McGarry, to lay a water main in Anderson avenne, in the borough of Cliffside in Bergen county. After the main had been laid the work of filling in the excavation was done so as to leave a depression in the street. A manhole in the street was also left without sufficient filling being placed around it to make it level with the surface of the street. .On July 12th, 1922, at about one a. m., the plaintiff drove his automobile through Anderson street. The ear struck the depression and manhole and was overturned. The plaintiff’s wife, who' was in the car, was killed. The plaintiff was also injured. Actions were instituted by the plaintiff, Mr. Van Clik, individually; and as administrator ad prosequendum, of his wife’s estate to recover damages for his personal injuries and for damages arising from the death of Mrs. Yan Olik. The defenses set up by both defendants were that there was - no negligence, and that the plaintiff was guilty of contributory negligence. Each defendant also set up that if there was any negligence it was the negligence of the other defendant. Yerdicts were rendered in each suit against both defendants.

The defendants argue as their first point that the trial court should have directed a verdict for the defendants on the ground that there was no negligence of the defendants shown. Motions to this effect were made and overruled. There were in the automobile, besides the plaintiff and his wife, two other persons, Miss Bush and Mr. Kohberg. The plaintiff and these two passengers mentioned testified that, while the car was going at a moderate speed on Anderson avenue, there was a terrific bump, which threw the occupants of the car against the top of. the car, rendering some of them unconscious. There was also evidence of a depression in the roadway of approximately five and one-half inches in depth and six feet in width, at the place where the pipe had been laid. This testimony, in our opinion, entitled the- plaintiff to have submitted to the jury the question of the defendants’ negligence.

The defendants next contend that there was no evidence establishing the negligence of the defendants as the proximate cause of the accident. There was evidence from which it could be properly inferred that the depression in the street was the proximate cause of the accident. This was a jury question, and was, in our opinion, properly left tp the jury for consideration and decision.

The next point argued by the defendants is that the plaintiff should have been nonsuited for his contributory negligence. This argument is based upon the evidence that the. car was proceeding; at the rate of from fifteen to eighteen miles per hour; that the headlights were lit; that the night was clear; that the car could at the speed mentioned be stopped within a distance of two' or three feet, and that Yan Clik could have seen the depression in the street if he had been looking, and if he was not looking he was as negligent as if he had been looking, and had not observed the depression. This argument would place too> onerous a burden upon the plaintiff. The street was open to> travel. There was no warning hv light or barrier of any depression in the pave ment, and whether or not the plaintiff, under the circumstances, was guilty of contributory negligence, was a question for the jury, as upon the evidence fair-minded men might reasonably differ.

The last point made by the defendants deals with that portion of the charge of the trial, judge in which he stated that the contribiitory negligence of the plaintiff would not operate to defeat his action as the representative of his wife. This portion of the charge was as follows: “If that negligence [i. e.j the negligence of defendants] was the proximate cause of the injuries to1 the plaintiff and the death of his wife, then both defendants are liable to both plaintiffs unless Mr. Van Clik was guilty of contributory negligence, and in that event, of course, he could not recover. His contributory negligence would not operate to defeat his action as representative of his wife.”

The plaintiff had been married six weeks at the time of the accident. He was the sole next of kin, and was therefore the only beneficiary under the act. The defendants argue that the plaintiff, by his negligence, having created the cause of action, should not be permitted to reap m such cases the benefit of his own wrongful act. This question has, however, been decided in this state by this court in the case of Consolidated Traction Co. v. Hone, 59 N. J. L. 275, adversely to the contention made by the defendants in this case. We feel hound by this decision, the more cheerfully, perhaps, because we approve the reasoning and language of the eminent jurist who wrote it, the late Chief Justice Beasley.

This completes the consideration of the points briefed by the defendants. The rules to show cause are discharged.


text:
    THE STATE OF NEW JERSEY, EX REL. WILLIAM B. FULLERTON, PROSECUTOR, v. COURT OF COMMON PLEAS OF THE COUNTY OF ESSEX, RESPONDENT.
    Decided November 24, 1924.
    Motor Vehicles — Driving in intoxicated Condition — Suit Before Recorder — Appeal to Common Pleas — Judgment of Guilty In That Court — Certiorari- Allowed — Writ Held Improvidently Issued — Election of Common Pleas Having Been Made Defendant Cannot Now Review the Decision of Recorder's Court — Certiorari of Appeal Not Possible Until Final Judgment Entered.
    On certiorari to the Essex County Court of1 Common Pleas.
    Before Justices Kat.troh, Black and Campbell.
    For the prosecutor, Pearce U. Franklin.

    For the respondent, John If. McGeelmtt, Jr.

   Per Curiam.

Tlie prosecutor was convicted in the recorder’s court of the town of Verona for having violated subdivision 3 of section 14 of the Motor Vehicle act, approved April 8th, 1921, in that he, “William Eullerton, did on the 12th daj-- of October, a., d. 1923, on a public highway of the borough of Verona, in the county of Essex and State of New Jersey, to wit, on Bloomfield avenue, said Bloomfield avenue being at said time and place a public highway in the State of New Jersey, operate a motor vehicle while under the influence of intoxicating liquor,” &c. By the record before us it appears that on the 29th day of October, 1923, the prosecutor was tried upon the complaint made, and the recorder, after hearing the testimony of the witnesses and of the accused, William Eullerton, found the latter guilty of the offense charged in, the complaint, and committed him to tlie common ■jail of Essex county for a period of thirty days, and revoked his driver’s license.

From this conviction and judgment the prosecutor appealed to the Court of Common Pleas of Essex county, and the case was there tried de novo as directed by the statute 'in cases where an appeal is taken, and that court, after hearing the testimony on part of the state and of the defendant and his witnesses, made the following pronouncement :

“The evidence being closed, the court says it finds the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor in violation of subdivisión 3, section 14, of “An act defining motor vehicles, &c., approved April 8th, 1921. Sentence postponed until February 18th, 1924.”

The writ of certiorari was applied for and allowed on February 8th, 1924.

The reasons filed in this court are entitled as follows:

“New Jersey Supreme Court. William Fullerton v. Frank Bescherer, respondent. The prosecutor presents the following reasons for setting aside the conviction before the recorder’s court of the town of Verona, New Jersey, which said conviction is brought before this court by a writ of certiorari in a cause entitled as above.” Then the. prosecutor presents nine reasons why the conviction and judgment in the recorder’s court should be set aside. No reason is presented for setting aside the conviction in the Court of Common Pleas.

We think the writ was improvidently allowed and should be dismissed.

It is to be observed that section 28 of the Motor Vehicle act directs that the Common Pleas Court shall try the case de novo, "and in a summary way try and determine all such appeals, and in case the judgment or sentence of the magistrate shall he reversed on such appeal, the said Court of Common Pleas shall order,” &e.

The language of the section leaves no room for doubt that there must be a final determination of the appeal before it.

The prosecutor took his appeal to the Court of Common Pleas, from the conviction and judgment of the recorder, as he was entitled to under section 28, supra. He prosecuted his appeal by going to trial and having selected his forum, he cannot now resort to a writ of certiorari directed to the Court of Common Pleas for the purpose of reviewing the proceedings had before the recorder. See State v. McCarty, 2 N. J. Adv. R. 8.

We further are of the opinion that in a case of this nature, g-ucisi-eriminal, where the matter is brought by an appeal by the prosecutor into the Court of Common Pleas, and the prosecutor is defeated, in his appeal, he is not entitled to a writ of certiorari until a judgment has been pronounced. We have not been referred to any case which holds otherwise.

Moreover, there are no reasons filed which call into question the legality of the proceedings in the Common Pleas Court.

In State, William Dunn, Prosecutor, v. Overseer of the Poor of South, Amboy, 32 N. J. L. 275, Mr. Justice Vredenburgh (at p. 283) says: "In Vannoy r. Givens, Mr. Justice Carpenter says, we cannot reverse for error of the justice, for it is not his judgment, but the judgment of the appellate court, that is before us for review.”

In Hendricks v. Craig, 2 South. 569, the Court of Common Pleas says: “It was the judgment of the Court of Common Pleas which was removed, and the court could not look beyond it to the proceedings of the justice in order to find in them an objection, which had done the defendants an injury.”

The language used by Mr. Justice Yredenburgh, in State, Dunn, Prosecutor, v. Overseer of the Poor, supra (on p. 284), is pertinent to- the situation presented here. The learned justice said: “But it is urged, in the next place, that although this court cannot set aside the proceedings in the sessions, yet that they ought to set aside the order of the two justices for these alleged defects therein. There are many cases, both in the King’s- Bench and in this court, where the proceedings before the justices have been quashed for defective orders, where there has been no< appeal. But no case, I apprehend, can be found where this court has been constrained, by force of law, to affirm the proceedings on appeal, and yet quash the proceedings before the two justices.

“The order on appeal ipso facto nullifies the order of the two justices. As long as the proceedings of the appellate court stand, there is no order of the two justices. The only way to revive the order of the two justices is to set aside the proceedings of the sessions, and then this court may quash the proceedings of the two justices. If the two justices had not jurisdiction, what possible légal effect can result from setting aside the order of the justices, while the order on appeal is permitted to stand. Such a- proceeding would only be nullifjúng what is alread3r a nullity-.” Vannoy v. Givens, 3 Zab. 202; 3 East. 62; 2 Harr. 22.

So it seems to us tQ set aside the conviction and judgment of the recorder’s court would be of no advantage to the prosecutor so long as the conviction of the Common Pleas was in force, and the validity of that conviction has not been challenged by.anvr of the reasons presented by the prosecutor.

We are not to be understood as holding that the proceedings before the recorder, if he was without jurisdiction of the subject-matter, or of the person of the accused, are not reviewahle by certiorari or by habeas corpus, or in the method prescribed by section 35 of the Motor Vehicle act (at p. 685), but what we are deciding is that where an appeal has been taken which provides for a trial de novo in the appellate court, and such trial is had, the proceedings to réview the appeal must be directed against the court in which such appeal has been “heard and determined,” which phrase can mean nothing else than where judgment has been given.

These views lead to a dismissal of the writ.


text:
    ELIZABETH KLEIN AND AUGUST KLEIN, PLAINTIFFS-RESPONDENTS, v. MINNIE KOBRIN AND SAM. KOBRIN, DEFENDANTS-APPELLANTS.
    Submitted June 5, 1924
    Decided November 24. 1924.
    Negligence — Motor Vehicle Accident — Injury to Pedestrian Crossing Street — Conflicting Testimony Relating to Negligence of Driver and Contributory Negligence of Pedestrian —No Error in Refusal to Nonsuit or to Direct Verdict
    On appeal from the Essex Circuit Court.
    Before -Gummere, Chief Justice, and Justices Barker and Katzenbactl ' -
    For the defendants-appellants, John TP. McGeehan, Jr.

    For the plaintiffs-respondents, Edwards & Smith (Edwin F. Smith and Raymond Dawson, of counsel).
   Per Curiam.

This is an. appeal by the defendants below from judgments entered in the Essex County Circuit Court. The action was one to recover damages for injuries received by the plaintiff who was struck by the automobile of the defendant Minnie Kobrin, driven by her son, Sam Kobrin, also a defendant. The plaintiff alleged that the automobile was negligently driven. The driver was engaged at the time of the accident in business for his mother. T-he date of the accident was July 12th, 1922. The hour at which it occurred was eight p. m., daylight saving time, so it was still light. The plaintiff had been in Berger’s department store, located on the south side -of Springfield avenue, about opposite Camden street,'in the city of Newark. When she left the store it was her intention, according to her testimony, to cross from the south side to the north side of Springfield avenue. On Springfield avenue there is a double track line of street railway. The plaintiff testified she left the store, walked to the cross-walk, and .started across the street. When she stepped over the first rail of the track nearest to her she was struck by the defendant’s car. She stated she had looked up and down the street 'before leaving the curb and saw nothing coming. There was evidence offered to the effect that the driver did not blow the horn and that the car was traveling at a speed of twent3r-five miles per hour. At the conclusion of the plaintiff’s case a motion to nonsuit, based on the ground of the contributor3r negligence of the plaintiff, and failure of proof of the defendant’s negligence, was m&de and overruled. A motion toi -direct a verdict for the defendant at the close of the defendant’s testimony was also made and denied. Exceptions to these rulings óf the trial court were duly taken. The rulings of the trial court upon these motions have been made the grounds of appeal.

There wa,s evidence that the plaintiff was not crossing the •street at the cross-walk, but stepped out into the street between two parked automobiles in the middle of the block •and attempted to cross the street without looking in either direction, just as the defendant’s car was passing this point. There was also evidence that the car was not being driven at excessive speed. In view of the conflicting testimony offered with respect to the* contributory negligence of the plaintiff and the negligence of the driver of the car, we are of the opinion that the trial court ruled properly in overruling the defendant’s motions for a nonsuit and directed verdict. The evidence of the plaintiff’s negligence was not so conclusive that it could be said that the minds of reasonable men could not differ on this question. There was also evidence of the negligence of the driver of the car which the plaintiff was entitled to have submitted to the jury. Under these circumstances it was not error for the trial judge to overrule the motions made. Rhodehouse v. Director-General, 95 N. J. L. 355; Andre v. Mertens, 88 Id. 626; Galenter v. Peti, 96 Id. 112.

The judgments are affirmed, with costs.


text:
    MURRAY APFELBAUM, PLAINTIFF, v. EDWIN PIERCE AND CHARLES PIERCE, DEFENDANTS.
    Argued February 19, 1924
    Decided July 21, 1924.
    Pleadings — Motion to Strike Out Complaint — Supreme Court Rules No. 30 and 40 Construed to Mean Motion Must Be Made Before Answer Has Been Filed — An Answer States, Under the Heads “First Defense” and “Second Defense,” That Defendants Will Move On or Before Trial to Strike Out Complaint on Ground That No Cause of Action, a Motion Made Will Not Be Considered.
    Before Justices Kalisch, Katzenbach and Lloyp.
    For tlie • plaintiff, Leber & Bubaclc (Samuel F. Leber, of counsel).
    For the defendants, William F. Seddon.

   Per Curiam.

This case is before ns on a motion to strike out the complaint. The complaint sets forth that on December 3d, 1930, the defendant entered into a written agreement with the plaintiff (recited at length in the complaint) to pay the plaintiff $4,375 for leasing a building in Hackensack, New Jersej’, for a term of fifteen years. One thousand dollars was to be paid upon the execution of the lease, $1,000 on July 1st, 1930, date probably, intended July 1st, 1931, and the balance “three months after L. E. Steel Company are occupying 145 to 149 Main street, Hackensack.” In the month of February, 1933, the L. E. Steel Company either sublet or assigned the lease, with the consent of the defendants, to one Weisner Bros., Inc., who occupied the premises. The complaint further alleges that the two- pajnnents of $1,000 each were made, but the payment of $3,375 was not made. This amount is demanded. To this complaint an answer was filed. The answer .states under the heads of first defense and second defense that the defendants will move on or before tlie trial to strike out the complaint, because it does not set forth a legal cause of action. The case was noticed for trial at the December term of the Essex Circuit and placed oil the list. Notice of a motion that at the February term of this court the defendants would move lo- strike out the complaint was then given. The grounds stated are that the complaint does not show a cause of action and is insufficient, in law.

Rule 30 of the Supreme Court rules reads as follows-: “Order of pleadings. The order of pleadings shall be — (1) complaint: (2) motion addressed to the complaint; (3). answer; (4) motion addressed to the answer; (5) reply. Further pleadings may be had, if necessary, until issue is joined. Unless otherwise ordered by the court, pleadings must be filed and motions made in the order mentioned above."

Rule 40 provides as follows: “Demurrers are abolished. Any pleadings may be struck out on motion on the ground that it discloses no cause of action, defense or counter-claim, respectively. The order made upon such motion is appeal-able after final judgment. In lien of a motion to strike out, the same objection and any point of law [other than a question of pleading and practice] may be raised in the answer ing pleadings, and may be disposed of at or after the trial; but the court, on motion of either pa-rtv, may determine the questions so raised before trial, and if the decision be decisive of the whole case the court may give judgment for the successful party or make such order as may be just.”

We construe these sections as requiring a motion to strike out a complaint to be made to this court before an answer has been filed. After an answer has been filed the motion must be made at or after the trial before the judge to whom the cause has been referred for trial. The practice- pursued in ¡he present case, if sanctioned, could be made most oppressive to a plaintiff and a means of obtaining a delay in the trial of an action. In many counties the Circuit calendars are so crowded that frequently all the causes listed for trial cannot be reached during the term. A defendant could, as the case, was approached, give notice of a motion before this court to strike out the complaint. This would result in delay and deprive the plaintiff of a speedy trial of his case which our system of procedure seeks to give. While demurrers are abolished, and the motions mentioned in the rules are substituted therefore, yet the principles of the common law method of pleading are essentially followed. Eormerly, after the declaration was filed, the defendant was obliged either to demur or plead by way of traverse or by way of .confession and evidence. Now, the defendant must decide either to move to strike out the complaint or answer the1 com plaint. When he malíes a decision he must abide by it. He cannot decide to answer the complaint and do so, and then afterwards move to strike out the complaint, any more than under common law pleadings a defendant could plead to a declaration and then afterwards demur to it. The only modification of this practice is that found in the -Supreme Court rules and heretofore mentioned.

This motion in this case for this reason will not be considered, and is denied, with costs.


text:
    THE STATE, DEFENDANT IN ERROR, v. THOMAS L. SNOVER, PLAINTIFF IN ERROR.
    Submitted December 10, 1923
    Decided November 21, 1924.
    Crimes — Burning Buildings — Case Before Court on Strict Bill of Exceptions: — Questions of Admission of Documents and of the Other Evidence — Conviction Affirmed.
    On writ of error.
    Before Justices Kalisch and K'atzenbach.
    For the plaintiff in error, Joseph, ¥. Boseberry & Son.

    For the defendant; in error, Sylvester G. Smith, Jr.

   Per Curiam.

This case is before this court upon a writ of error directed to the Warren County Court of Quarter Sessions.

Thomas L. Snover, the plaintiff in error (hereafter referred to as the defendant), was indicted with three others by the grand jury of Warren county. The indictment contained three counts. The first count charged that the de fendants “did willfully and maliciously set fire to and burn a certain barn, not a parcel of a dwelling-house, and a certain grist mill, the property of one Harriet Willeverrt The defendant was tried and convicted. He was sentenced upon the first count to pay a, fine of $500 and to stand committed to the state prison at Trenton for a minimum term of not less than one year and a maximum term of not more than seven years. Sentence on the other two counts was suspended.

The only judgment under review is the judgment on conviction upon the first count of the indictment. A writ of error -will not lie in a criminal case until sentence has been pronounced. No sentence on the second and third eonnfs of the indictment was pronounced.

The ease is before us on a strict bill of exceptions. The record contains only a part of the testimony taken at the trial. The first point made in behalf of the defendant is that the trial court erred in admitting a record of insurance sent to the insurance company by the agent, and a duplicate of the insurance policy. The defendant contends that no notice 'to produce the policy of insurance was served upon the defendant, and that secondary evidence could not be introduced in default of the service of such motive. The fact of insurance is only important on the question of motive, and .secondary evidence is admissible to prove insurance. In a criminal ease the defendant is not obliged to respond to a notice to produce. He cannot he made to give any evidence that would tend to incriminate him. The copy* of an insurance policy was admitted in the case. Whether or not secondary evidence shall be admitted rests within the discretion of the court. This exercise of discretion will, generally, not be disturbed by air appellate court. Johnson v. Arnwine, 42 N. J. L. 450. The trial court did not err, in our opinion in admitting the record of insurance and the duplicate of the policy.

The second point argued in behalf of the defendant relates to the third, fourth and fifth assignments of error. These assignments deal with three questions put upon cross-examination to a witness, Isaac E. Wildrick, which were overruled These questions were as follows: “And you got hold of a note of $2,000 secured by* a mortgage that he had given to. your mother and put it in Judge Shipman’s hands for collection, did you not? Did you not immediately after her deaih take a note given by William O. Howell to her and sell it as heir-at-law to Andrew Yetter? The will was proved in the surrogate’s office September 1st, 1922, was it not?”

The defendant insists that he was entitled to show the animosity of the witness towards the defendant, and these questions were asked for that purpose. The questions asked have no indication of such a purpose. They* were properly overruled as irrelevant and immaterial.

The next assignment of error argued for the defendant, is the; sixth assignment. This relates to the overruling by the trial court of a motion to direct a verdict of acquittal at the close of the evidence on the -part of the state. This is a matter not reviewable, because this case is before this court on a strict bill of exceptions. The entire record is not here. The appellant court cannot properly determine whether or not the trial court erred in its ruling unless all of the evidence offered by the state is before it. State v. Jaggers, 71 N. J. L. 281.

The defendant next argues the seventh assignment of error. This assignment of error deals with the refusal of the trial court to charge the following request: “What is set out in the first and second counts of the indictment charges the defendant with burning the bam, mill and dwelling-house of Harriet Willever. It does not appear by the testimony that anyone “was in the actual and immediate possesion of either the mill, barn or dwelling-house mentioned in those two counts at the time of the burning of either of them, or that it was the property of Harriet Willever. Therefore, the defendants cannot be convicted under either of said counts, which requires the offense to he against the person in the actual and immediate possession of the building of the property of Harriet Willever.” Whether the refusal of the trial court to charge this request was proper or not cannot he decided in the absence of all the evidence. The request refers to the testimony. All the testimony is not before us. The purpose of the request, however, was to have the court charge that the amendment to the Crimes act of 1919, chapter 106, did not alter the status of the law as defined in the case of State v. Fish, 27 N. J. L 323, and State v. Lentz, 92 Id. 17. The amendment of 1919 was for the express, purpose of changing the law as laid clown in these eases. After the 1919 amendment ail that was required to sustain the conviction for statutory arson or for burning buildings was that the state proved beyond a reasonable doubt — first, the burning of the building or dwelling, and second, either willful or malicious burning.

All the other assignments of error, from the eighth to the seventeenth, inclusive, deal with refusals to charge. These assignments cannot be considered in the absence of the entire testimony.

The judgment of conviction under review is affirmed.


text:
    ELWOOD McGINNIS, RELATOR, v. CITY OF ATLANTIC CITY. RESPONDENT.
    Argued October 7, 1924
    Decided December 4, 1924.
    Ordinances — Jitney Permits — Argument to Show That Withholding Permits Had Become an Abuse — Issuing Permit Not Merely Ministerial Act.
    On mandamus. On rule to show cause.
    Before Justices Kalisch, Black and Campbell.
    For the relator, Cole & Cole.

      For the respondent, Joseph B. Pershie.

   Per Curiam.

A rule to show cause was allowed on this case, on the 11th day of June, 1924, why a mandamus should not issue directed to the board of commissioners of the city of Atlantic City, New Jersey, requiring them to issue to the relator a permit or consent to drive a public jitney in Atlantic City pursuant to the statute. The ordinance of the city under which the license is sought was passed in pursuance of the authority granted in Pamph. L. 1917, p. 145, ch. 78. It is conceded there is a discretion rested in the governing body on this subject, but it is argued there has been a palpable abuse of such discretion in refusing a permit to the relator. It would serve no useful purpose to pursue the subject at length in view ,of the exhaustive arguments made;, both orally and in the briefs of the respective counsel. It is sufficient to say that we think the case is controlled by that of Zellers v. City Council of the City of Bridgeton, 2 N. J. Adv. R. 42 (at p. 958). The granting and issuing of licenses or permits for such purposes are not purely ministerial acts.

The writ is denied and the rule to show cause is discharged.


text:
    JOHN TRICOLO v. DONATO CENTALANZA.
    Argued May term, 1924
    Decided October term, 1924.
    Contracts — Suit to Recover on Quantum Meruit for Work Done on Contract, Completion of Which was Interfered With by an Assault of Plaintiff on Defendant — Questions of Facts Only Presented and Judgment Affirmed.
    On appeal from the Orange District Court.
    Before Justices Trunchard, Minturn and Lloyd.
    For the plaintiff-appellee, Gaetano M. Belfaiio.

    For the defendant-appellant, Thomas Brunelio.

   Per Curiam.

The plaintiff had a contract with defendant to perform certain mason work and furnish material for the alteration of defendant's building on Bloomfield avenue, in Montclair. While engaged in the performance of the work, the defendant and his brother attacked plaintiff, and committed an atrocious assault and battery upon him, as a result of which the plaintiff was compelled, owing to the severe character of his injuries, to cease work upon the building for several weeks, while he was under the care of a physician. He instituted this suit to- recover upon a quantum meruit for the work done. He testified that he performed all the work under his contract, except the plastering, and that $200 would cover the cost of performance of work left undone. There was testimony upon the defendant’s part of a contrary character, but as this contrariety of view presented an issue of fact, the finding of the trial court must prevail, there being a basis of fact to support it.

The court also found that the assault upon the plaintiff was the cause of his failure to- perform the contract in its entirety. That issue also presented a question of fact for the trial court. Murtland v. Atlantic City, 75 N. J. L. 592.

The right of the plaintiff to recover for the work performed under certain circumstances, upon the theory of a quantum meruit, is amply sustained by the authorities. Coppola v. Grande, 88 N. J. L. 324; McPherson v. Mackay, 91 Id. 473; Cavanaugh v. Ridgefield, 94 Id. 147; Atlantic City v. Farmers, 96 Id. 504.

Finding no error in the proceedings, the judgment is affirmed.


text:
    HENRY J. MELOSH ET AL., AS PARTNERS, ETC., PLAINTIFFS-APPELLEES, v. HARRY F. O’MEALIA ET AL., AS ADMINISTRATORS OF THE ESTATE OF JAMES F. O’MEALIA, DECEASED, AND EDWILDA O’MEALIA, INVIDUALLY, DEFENDANTS-APPELLANTS.
    Argued May term, 1924
    Decided October term, 1924.
    Contracts — Fees of Attorneys-at-Law — Action Against Defendant Personally and as Administrator — Allegations of Error Considered But Not Sustained — Services Were Rendered Charges Reasonable.
    On rule to show cause, Hudson Circuit.
    Before Justices Teen chard, Mintubn and Lloyd.

      Eor the rule, J. Raymond Tiffany.

    Contra, 2lelosli, 2iorlon & Melosh.

   Per Curiam.

This action ivas brought by the plaintiffs, who were attortorneys-at-law, to recover for legal services and expenses. The action was brought against the defendant Mrs. O’Mealia, both as administratrix of James E. O’Mealia and individually, and resulted in a verdict for the plaintiff against the (‘state in the sum of $539.80 against the defendant as an individual, and $111.38 as administratrix.

It is urged as error that the damages are contrary to the evidence, and excessive. The uncontradicted evidence disclosed that the- services were rendered, and that the prices charged were reasonable. The services were somewhat involved, because the defendant obtained the plaintiffs’ services upon various occasions, some of which undoubtedly were for individual matters, and others for her as administratrix. The plaintiff Mr. Melosh was carefully examined as to the proper apportionment of the various items of charge, and from this testimony, and from the testimony of the defendant herself, it would appear that much of the service rendered was given to the defendant upon her individual account, and not upon matters related to the estate or those interested in it. We are inclined to think that the apportionment of the charge, and the consequent verdict in this respect, should not be disturbed.

It is also urged that the court should have directed a verdict for the defendants. This position seems to be equally untenable. The ground of the contention is that the two hills are so intermingled that they cannot be regarded as a bill to either the estate or to- the defendant individually. While it is probably true that for charity’s sake the plaintiffs should have gone as far as possible in the direction of apportioning' the account, yet it is equally clear that this was a difficult matter to determine, intermixed, as the services were, and the services could be better segregated by the defendant herself, who was in a position to know her own reasons and motives in obtaining the service. If the services were obtained for the purpose of enhancing the property in the estate itself, or protecting it, they were properly chargeable to the estate itself, but otherwise they were obviously her personal account, and defendant best knew the purpose for which she was obtaining the service. This contention, therefore, is without merit.

It may also be observed in this connection that -it was conceded by the counsel for the rule that some of the items could be sued for without the presentation of any bill, and, such being the fact, neither a nonsuit nor a direction of a verdict would be legally justified. Wescott v. Baker, 83 N. J. L. 460; Brown v. Harriott, 81 Id. 484.

The rule will be discharged.


text:
    GEORGE FISHER, JR., BY HIS NEXT FRIEND, GEORGE FISHER, AND GEORGE FISHER, PLAINTIFFS, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT.
    Argued May 8, 1924
    Decided November 24, 1924.
    Negligence — Motor Vehicle Collision With Railroad Train— Judgment for Driver and Owner of Motor Truck — Rule Made Absolute on Ground That Judgment was Against Weight of Evidence: — Evidence That Train was Moving Very Slowly, and That There was a Clear View of Track for a Long Distance.
    On rule to show cause.
    Before Gemmbre, Chief Justice, and Justices Parker and Katzenjbach.
    Por the plaintiffs, Wescoit & Weaver.

    For the defendant, Bourgeois & Coulomb.

   Per Curiam.

The above action was instituted in this court by George Fisher, Jr., by his next friend, George Fisher, and George Fisher against the West Jersey and Seashore Railroad Company to recover damages for injuries sustained by George Fisher, Jr., in a grade crossing accident on October 1'lth, 1922. The defendant company was operating a train upon its right of way through the city of Wildwood, in the county of Cape May. The train was proceeding northwardly to the Wildwood station. George Fisher, Jr., was operating an automobile truck eastwardly on Rio Grande avenue. As Fisher, Jr., approached from, the west the crossing of the railroad company’s right'of way by Rio Grande avenue the defendant’s train was proceeding northwardly on the most easterly track of the two tracks laid upon the right of way. Fisher, Jr., did not evidently see the .train until within a few feet of it. When he saw it he turned his truck to the left, going parallel with the train northwardly on the southbound track. The wheels of the truck in passing over the ties bounced so as to throw the truck over to the northbound track. The butting stick of the locomotive struck the truck. The plaintiff was injured. A companion on the truck jumped off and escaped injury.

At the trial the plaintiffs recovered verdicts. The defendant applied for and obtained a rule to show cause why the verdicts should not be set aside. The case is before us under this rule.

. The defendant insists that the verdict rendered for the plaintiffs was contrary to tire weight of the testimony both on the subject of the plaintiffs’ contributory negligence and the defendant’s negligence. The plaintiff contends that certain trees obstructed his view of the train. These trees had had about five weeks prior to the accident the lower limbs cut so' that the lowest limb was over nine feet from the ground. Although the plaintiff was seated on a truck, we think the trees did not conceal a view of the approaching train. At a point twenty-five feet from the track upon which the train was running he had an unobstructed view of three thousand two- hundred feet in the direction the train was approaching. At a point sixty feet distant from the same track he could see five hundred and twenty-five feet southwardly. The train was approaching a station. It was not going rapidly.- A shanty located in the street did not obstruct Fisher, Jr’s., view, according toj his own testimony. Upon the question of the defendant’s negligence we are of the opinion that the verdict is contrary to the weight of the testimony.

The plaintiff and his companion said that they did not hear any signals of the approach of the train. There was evidence that the engine bell was r-ung continuously after the train left a station, known as Wildwood Crest, which was south of the place of the accident. There was also evidence that the whistle was blown. The train was traveling at a speed of between eight and ten miles an hour. The automobile was proceeding at the rate of ten miles an hour. Upon the question of the defendant’s negligence we are of the opinion that the verdicts -were contrary to the weight of the evidence.

The rule to show cause is made absolute.


author: Flannagan, J.

text:
    Court of Common Pleas, Essex County.
    The State of New Jersey v. James Victor D’Aloia.
    [Decided December 9th, 1924.]

      Disorderly Persons Act. — A conviction by the recorder’s court ol the town of Irvington, reciting that the defendant is convicted of being “a disorderly person,” is insufficient, as not specifying any crime.

      Disorderly Persons Act. — A conviction by the recorder’s court of the town of Irvington, specifying that defendant is convicted of violating section 3 of an act concerning disorderly persons, is insufficient, as not a conviction of any particular offense, said section specifying several offenses.

      Disorderly Persons Act. — A conviction by the recorder’s court of the town of Irvington, specifying that defendant is convicted of “the offense as charged in the complaint,” is insufficient, as not a conviction of any particular offense where the complaint specifies several offenses.

      Disorderly Persons Act. — A conviction by the recorder’s court of the town of Irvington, adjudging the defendant guilty of having uttered offensive language, is- insufficient. The language must be adjudged loud as well as offensive.

      Disorderly Persons Act. — A conviction by the recorder’s court of the town of Irvington, adjudging that defendant uttered offensive language at or near a public place, is insufficient. The language must be uttered iiv a public place. It is not within the statute if uttered near one.
    On appeal of summary conviction before magistrate.

      Mr. Edwin G. Adams, for the defendant.

      Mr. Charles E. Stewart, for the town of Irvington.
   Flannagan, J.

The defendant, upon complaint made, was tried, convicted and fined $10 in the recorder’s court of the town of Irving-ton.

He brings the proceedings before this court for review under the provisions of the statute, which requires this court to review and determine the “legality of such proceedings and conviction,” and “if such proceedings and conviction shall thereupon he found to be illegal forthwith, to set aside the same.” N. J. Supp. Comp. Stat. 1915 p. 490 11.

The defendant contends that the proceedings and “conviction” in the recorder’s court are illegal, for the reason, among others, that it cannot be ascertained from the return and de termination, which is called a “conviction” (see Preusser v. Case, 54 N. J. Law 532), of which offense he is convicted and for what wrongful act he is fined.

The return and determination or “conviction” specifies that he was convicted — first, of being a disorderly person; second, of violating section 3 of said statute, an act concerning disorderly persons, and third, the offense as charged in said complaint.

' As to the first specification, to wit, that lie was guilty of being “a disorderly person,” there is no such offense. “The conviction must be for some offense mentioned in the act. Being a disorderly person is not an offense.” State v. Regan, 67 N. J. Law 106.

As to the second specification, to wit, tiiat lie was guilty “of violating section 3 of said statute, an act concerning disorderly persons” (N. J. Supp. Comp. Stat. 1915 p. 487), it is manifest that this specification does not disclose any offense; it does not point to any of the offenses set forth in the act, but only refers to the act. The section of the act referred to enumerate the following as being disorderly persons :

(1) “Any person or persons who shall loiter or assemble on the streets, at the corners oi the streets, or in the public places of any city, village, borough, town or township oi this state, being under the influence oi intoxicating liquor.
(2) “Any person or persons who shall on such streets at the corner of such strets, or in such public places, or any railroad train, trolley car or other public conveyances within any city, village, borough, town or township of this state — (a) ‘indulge jn and utter loud and offensive or indecent language,’ or (b) ‘shall address or make audible and offensive remarks or comments upon any person passing along such streets or public places, or in any such railroad train, trolley car or other public conveyance,' or (c) 'shall obstruct or interfere with any person or persons lawfully being in and upon such streets or public places, or such train, trolley car or other public conveyances.’ ”

Whether the “conviction/’ stating that the defendant violated this act, convicts him of loitering in public places while intoxicated or of indulging in public in loud and offensive or indecent language, or of addressing audible and offensive remarks or comments upon persons in the street or in public places or conveyances, or of obstructing or interfering with persons on the streets . or in public' conveyances, cannot be determined from the language that he is “adjudged to be guilty of violating section 3 of said statute, an act concerning disorderly persons.”

In State v. Regan, supra, Mr. Justice Eort, speaking for the supreme court, says (at p. 107) : “A person must first be convicted of violating some provision of the act before he can, in the language of the act, be deemed and adjudged a disorderly person.”

As to the third specification, wit, that he was guilty of the “offense as charged in said complaint,” the complaint charges several offenses, but it is of only one of them that he is convicted. The offenses charged in the complaint are as follows:

First. That in being requested to display his automobile license, did say to complainant, a. police office, “Who the hell ai’e you ? I don’t have to show my license,” also calling com plainant “a liar.”

Second. Did indulge in and utter loud and offensive and indecent language.

Third. Made and addressed audible and offensive remarks and comments upon persons passing along said street.

Fourth,. Did obstruct and interfere with persons lawfully being In and upon said streets and public places.

Of which of these charges he is convicted is not stated. In Salter v. Bayonne, 59 N. J. Law 128, Mr. Justice Lippincott, speaking for the supreme court, says: “It is necessary that every essential ingredient to the offense must he set out, and it must be definitely stated of what offense the violator of the ordinance is convicted. * * * The complainant set out several offenses under the ordinance. The conviction fails to aver of which there was a conviction. In these respects the conviction is faulty.” At p. 180.

The failure of the “conviction” to show of which offense the defendant is adjudged guilty, to show which provision of the act he is adjudged to have violated, renders it illegah State, v. Regan, supra; Salter v. Bayonne, supra. It must therefore he set aside.

It is contended in support of the conviction that as the .complaint charges that the defendant “at or near Springfield and Clinton avenues * * * in being requested to display Ms automobile license, did say to complainant, ‘Who the hell are you; I don’t have to show my license,’ also calling him a liar;” that this is sufficient as a conviction, the complaint being referred to in the “conviction,” and, therefore, to he taken as part thereof.

Laying aside for the moment the fact that this allegation is insufficient because combined and confused with other charges as already pointed out, and assuming that it stands alone as the only charge in the, complaint, and treating it as a part of the “conviction,” still, as pointed out by the learned counsel for the defendant, it is defective as a recital of a “conviction.”

The section involved (N. J. Supp. Comp. Stat. 1915 p. 487) read as follows :

“Any person or persons wlio shall loiter or assemble on the streets, at the corners of the streets, or in the public places of any city, village, borough, town or township of this state, being under the influence of intoxicating liquor, and any person or persons who shall on such streets, at the corners of such streets, or in such public pflaces. or any railroad train, trolley car or other public conveyances within any city, village, borough, town or township of this state, indulge in and utter loud and offensive or indecent language, or shall address or make audible and offensive remarks or comments upon any person passing along such streets or public places, or in any such railroad train, trolley car or other public conveyances, or shall obstruct or interfere with any person or persons lawfully being in and upon such streets or pubic places or such train, trolley car or other public-conveyances, shall be deemed and adjudged to be a disorderly person.”

It is apparent from this language quoted that the statute has reference to public places. The particular language of the statute applicable to the question now under discussion is as follows: “Any person * * * who shall on such streets, at the corners of such streets, o-r in such public places * * * within any * * * town * * * of this state indulge in and utter loud and offensive or indecent language * * * shall be deemed and adjudged to be a disorderly person.”

The particular language of defendant, as it is quoted in the complaint, is offensive in its character, but it is not adjudged to have been uttered in a public place. It is not stated that the defendant at a public place near Springfield and Clinton avenues uttered said offensive words, but it is stated that he uttered them “at or near Springfield and Clinton avenues.” It is patent that not all of the places near Springfield and Clinton avenues are public places. The failure to adjudge that the language was uttered in a public place is fatal. Cowell v. State, 68 N. J. Law 523; Peer v. Dixon, 82 N. J. Law 366.

Moreover, it is not adjudged that said particular words of defendant quoted in the complaint, still treating the complaint as part of the determination or “conviction,” were loud. This is essential, as the statute provides that language must be both “loud and offensive.”

The said contention in behalf of the town is therefore unsound.

For these reasons the proceedings afid “conviction” are illegal and must be set aside as such.


author: Griffin, V. C.

text:
    Harvey L. Wyatt et al., executors, &c., complainants, v. Mildred Bergen, defendant.
    [Submitted September 2d, 1924.
    Decided December 10th, 1924.]
    3. Complainants’ testatrix contracted to sell lands fixing the date for performance. In the contract the vendor covenanted and agreed tlnC the building erected on the lands above described does not encroach on adjoining property, nor does the buildings on adjoining lands encroach on the property above described. On the date of the contract the coping of an adjoining building encroached on the premises in question three inches for a depth of about twenty-two feet. Time was not by the contract made of its essence.
    2. The defendant not having taken title on a date to which the passing was adjourned, the complainants gave notice, in writing, to the defendant, fixing a date for closing, which made time of the essence of the contract. After receipt of this notice defendant had a survey made which disclosed the encroachment, and one day before the time fixed in complainonts’ notice, defendant sent a notice to complainants rejecting the title, giving several reasons, one of which is that the building adjoining the premises in question on the north encroached over for twenty-five one hundredths of a fooi on the premises in question for approximately a distance of twenty-two feci, more or less. About a month after the above notice was served the complainants had the encroachment removed, and within a week thereafter conferred with defendant’s counsel for the purpose of fixing a date to pass title. Defendant’s counsel declined, slating that defendant stood on her notice rejecting the title. Shortly thereafter the bill was filed. Held (1) eomplainont having made time of the esesnee of the contract, and being unable on the day appointed to deliver it title free from encroachments, the defendant had a right to refuse to carry out the contract; (2) where an encroachment is slight the court might decree specific performance with abatement of purchase price: yet, where the contract contains a covenant that there are no encroachments, specific performance will not be decreed, because to do so would be to draw a new contract for (lie parties upon which their minds had never met: (3) there is no difference in principle between a case where time is not of the essence of the contract, and the encroachment exists at the time of final decree, and a cast1 where the encroachment is removed before bill filed but after the date appointed for closing title, where time is of the essence of the contract.

      Messrs. Melosh, Morten & Melosh, for the complainants.

      Messrs. Gross & Gross, for the defendant.
   Griffin, V. C.

The bill in this cause was filed to compel the defendant vendee to specifically perform a contract entered into on the 15th day of September, 1922, whereby Anna E. Simpson, widow, in her lifetime, contracted to' convey, and the defendant contracted to purchase, certain lands in Hudson county for the sum of $20,000, to be paid for as follows: Five hundred dollars on the execution of the agreement, $1,500 on delivery of a deed and the balance by mortgage for $15,000. In the contract the vendor “covenants and agrees that the building erected on the land above described does not encroach on adjoining property, nor does any buildings on adjoining property encroach on the land above described.” The title was to’ pass on January 10th. 1923. On November 1th, 1922, Mrs. Simpson died, leaving a will in which she appointed the complainants as her executors. After the date fixed in the contract for the closing of the title the complainants wrote the defendant as follows:

“You are hereby notified that the executors of the Estate of Annie F. Simpson demand that you perform your contract made with Annie F. Simpson, dated September 15, 1922, for the purchase of premises No. 50 Tonnele Avenue, such performance to take place on or before January 31, 1923. Wfe have endeavored to find your address and have asked the Branleygran Company to furnish it to us, hut they have not complied with such request. Had we known your address we would liave communicated with you on the 10th inst. When title is closed the interest will be demanded upon the unpaid purchase price from January 10, 1923.”

On February 1st, 1923, one Joseph Irving, who' was the agent of the defendant, wrote a letter to Mr. Morton, one of the executors, as follows:

“After being notified by you, that you would require an additional deposit of $500 on account of the contract made by the late Mrs. Anne Simpson with Miss Mildred Bergen, for premises 50 Tonnele Avenue, this city, I immediately got in touch with Miss Bergen, and she authorizes me to state to you that on the 12th inst. she will mail check for the amount you require.
“I am. doing all I can to get myself in readiness for the closing of the matter.”

On February 5th, 1923, Mr. Morten wrote Mr. Irving, Exhibit 5, as follows:

“Replying to your letter of the 1st inst. relative to the purchase of property Jso. 50 Tonnele Avenue, Jersey City, I would advise that the Rev. Dr. Wyatt and myself, executors of the estate of the late Anna F. Simpson, feel that in giving- you until February 12, within which to make an additional deposit of $500', is all the time that we can grant, and unless you make this deposit we will have to consider the contract as abandoned by you and either rent the property or make some other disposition thereof, so that the interest of the estate may be protected. I am wi-iting you so that there may be no misunderstanding, and ask you to regard this as formal notice to that effect.
“We do this so that we will not be open to any criticism ourselves, and while personally we would like to give you longer time and every possible opportunity to avoid any loss, yet in duty to the persons who are the beneficiaries under the will of Mrs. Simpson, we cannot do what we would like to do, but we must do as the law requires us to do.
“I feel quite certain that you appreciate the position in which we are placed and will govern yourself accordingly.”

This additional deposit of $500 having been paid, the time for closing the title was extended to- April 1st. On April 3d. 1923, complainants’ solicitors wrote to the defendant a letter, Exhibit 6, of which the following is a copy:

“You have not. performed contract for purchase of Tonnele Avenue property, and, on behalf of the executors of the estate of Anna F. Simpson, we now give you notice that if contract is not performed by the 10th inst.. we shall deem the contract null and void, and feel at liberty to make such disposition of the property as opportunity may afford. All your rights under contract heretofore made will cease and determine after April 10, 1023.”

On April 9th the defendant’s solicitors wrote the complainants’ solicitors, Exhibit 7, of which the following is a copy:

“We represent Mildred Bergen, the purchaser of property No. 50 Tonnele Avenue, Jersey City, which she purchased on September 15th last from Anna P. Simpson.
“Our client has turned over to .us your letter of the 3rd inst., addressed to her.
“We desire to say that our client rejects the title in question for the following reasons:
‘T. That the building adjoining the premises in question on the north encroaches over for 25/100ths of a foot on the' premises in' question for approximately a distance of 22 feet, more or less.
“2. Thar, the executors of the seller are unable at the present time to convey according to contract terms, because the lands in question are liable for the debts of the deceased for one year from the date of her death.
“3. There is no waiver of inheritance tax releasing the property in question on file in the County Clerk’s Office in Hudson County'.
“4. That there is a life estate in the premises in question outstanding in Ida B. Simpson, the life tenant mentioned in the will of Anna IT. Simpson.
“The purchaser is able to perform and has had the balance of the purchase price in readiness for some time past, and she insists upon rejecting the title .for the reasons above set forth.
“Will yc-u kindly have your client make arrangements to refund the deposit, as well as search and survey fees and fees paid to the broker under the contract in question.”

About the 18th of April, 1923, the defendant rendered a claim, under oath, to the complainants for a return of the money’s'paid under the contract, and for search and survey fees.

It appears that the complainants'were anxious to close the title promptly, and the defendant, for some unexplained reason, desired delay. In this situation the complainants wrote the letter of April 3d, 1923, 'Exhibit 6, in which the complainants gave plain notice to the defendant that, unless the title was closed on April 10th, the contract would be null and void, thus attempting to declare time to be of the essence of the contract, which was not the case before.

A question arises as to whether this notice, Exhibit 6, in the language of Mr. Justice Holmes, in Stewart v. Griffith, 217 U. S. 323; 30 Sup. Ct. Rep. 528, was “politely to apply a spur” to the defendant to speed her in the performance of the contract, or whether it was intended to operate as making time of the essence of the contract. As applied to the letters, Exhibit 8 (undated) and Exhibit 5, of February 5th, 1023, it is easy to conclude that these were intended to “spur” the defendant to perform her contract, but, as applied to the letter of April 3d, it cannot he. The language in the letter of April 3d is positive and certain, leaving no room for doubt that it was the intention of the complainants to regard the contract at an end on April 10th, 1923, if the defendant did not perform on or before that date, thus attempting to make time the essence of the contract.

At the time Exhibit 6, of April 3d, 1923, was written, the complainants were unaware of the fact that the coping of an adjoining building encroached on the premises in question about three inches for a distance of about twenty-two feet in depth. This discovery was made by the defendant on April 6th, when she had a survey made. It does not appear that the result of this survey was made known to the complainants, or that they had any knowledge of that fact until they received Exhibit 7, of April 9th, 3923. They then undertook to have the encroachment removed, which was dene be: tween the 1st and the 30th of May following, and on the 17th of May the complainants’ solicitors advised the defendant’s solicitors that the encroachment had been removed, and that they were ready to> deliver a deed for the premises in question at a time to he fixed. The defendant’s silieitors refused to entertain the proposition, and stated that their client still maintained the position she had taken when the letter Exhibit 7 was written.

The complainants argiie that time was not made of the essence of the contract by defendant at any time; that the notice of the defendant rejecting the title did not so make it, and they argue that twenty days’ notice should have been given by defendant requiring the performance thereof. Orange Society, &c., v. Konski, 94 N. J. Eq. 632; 121 Atl. Rep. 448. I cannot agree with this view. The defendant, by Exhibit 7, did not attempt to make time of the essence of the contract; this was attempted to be done by the complainants, and, as the complainants could not give good title, by reason of this encroachment, on April 10th, the defendaait, accepting the notice of the complainants in the light that it was intended, gave notice rejecting the title because of the encroachment. And this she had a right to do. Where the encroachment is slight, the court might decree specific performance with an abatement of the purchase price- (Schienman et al. v. Bloch, 97 N. J. Law 404; 117 Atl. Rep. 389; affirmed, 98 N. J. Law 571; Doherty v. Egan Waste Co., 91 N. J. Eq. 400, 406; 111 Atl. Rep. 499); yet, where the contract contained a covenant that there were no encroachments, the rule seems to- be otherwise. In the case of Herring et al. v. Esposito, 119 Atl. Rep. 765, the contract in question had a clause against encroachments similar to the one in the present suit; there the encroachment was slight (from two to one and five-eighths inches), and Vice-Chancellor Bentley distinguished* between cases in which there were no specific covenants against encroachments and one containing such covenant, and said, in effect, that the court could not disregard the clause of the contract, because to do- so wo-ulcl be to draw a new contract for the parties upon which their minds had never met, and he dismissed the bill, and decreed that the complainant should return the defendant the deposit. There the case was on final hearing, with the encroachments continuing at the time of final decree; here- the ease is on final hearing with the encroachment removed, but the principle, it seems to me, is the same in both cases, whether the encroachment existed at the time of final hearing, where time is not of the essence of the contract, or on the day appointed fox the closing of the contract, where time was made of its essence.

Whether the time fixed in the notice of April 3d was short and unreasonable need not be considered. That question might have been raised by the defendant if she desired to perform. Instead, however, she treated it as sufficient, and gave notice of the encroachment, and rejected the title. Under such circumstances the complainants are not entitled to compel the specific performance of the contract.

Havjng reached this conclusion, it is unnecessary to con sider the other three objections of the defendant contained in Exhibit 7.

A decree will be advised dismissing the bill, and that the complainants return the deposit demanded in the counterclaim, together with the expenses referred to in the statute.


author: Ingersoll, V. C.

text:
    In the matter of the application of Mary J. Lamb, a married woman abandoned by her husband, for sale of her lands.
    [Decided December 16th, 1924.]
    Sale of Lands — Woman Abandoned by Husband — Husband’s Whereabouts Unknown More Than Twenty Years — Left Surviving Children — Petition for Purpose of Confirming Conveyance Heretofore Made of Petitioner’s Interest — Facts as Found by Master Sustained — Finding in Case of Bucci v. Popovich Distinguished and Decree Granting Petition Advised.
    On exceptions to master’s report. On petition, &c.
    J/r. Louis X. Tripician, for the petitioner.
   Ingersoll, V. C.

The special master found and reported the following facts, all of which are sustained by the evidence taken:

“That it is true, as set forth in the petition, that the land sought to he sold under the application is technically owned by the petitioner in her own right, having come to her from her brother’s estate, and was not acquired by gift through or from her husband, Eugene A. Lamb.
“That the petitioner was married to her husband, the said Eugene A. Lamb, July 27th, 1890, and that he deserted her on February 15th, 1902, since which time she has continuously lived in a state of separation from him; that during the time last alioresaid, petitioner's said husband has continuously neglected and refused, and still neglects and refuses, to support her.
“That the portion of the property described in the complainant's’ bill, and against which relief was claimed at this time, is worth, at least, the sum of $10,000.
“That the property described in the petition in this cause, together with other land formerly forming a part thereof, on December 29th, 1881, was conveyed by Robert Bradberry and Rebecca-, his wife, to Thomas V. Bradberry, who was the brother of petitioner; that Thomas V. Bradberry, after becoming seized of the fee-simple title to said premises, departed this life without leaving any children, or children of deceased children, and without leaving any widow him to survive, but leaving him to survive a,s his only heir-at-law, the petitioner; that the said Thomas V. Bradberry was a resident of the city and county of Philadelphia, in the State of Pennsylvania, and left a last will and testament, which was proven in that jurisdiction, but Avhich is not provable in this jurisdiction, because of the fact that the attestation clause attached thereto is not in accordance with the laws of the State of New Jersey, and because of the death of the-witnesses to the said will, and the inability of the parties in interest to establish the same by other evidence; that the said Thomas Y. Bradberry died December 19th, 1885, before the marriage of petitioner; that by the will of the said Thomas Y. Bradberry the property described in the petition in this cause was devised to the mother, Rebecca A. Brad-berry; that on March 21st, 1892, the mother, by reason of the said will and believing in its efficacy, conveyed all of the said property to John Jacob Mezger; that a portion of the property afterwards became vested in one Rosa Wandell and the petitioner, on January 14th, 1920, attempted to confirm the same in her, without her husband joining in the said deed, and that the application is one to perfect a defective title.
“That after the marriage of the petitioner to Eugene A. Lamb, two children were horn to them, both of whom are still alive, so that the said Eugene A. Lamb has a vested, contingent remainder in the premises described in the complainant's bill, which will become effective in the event of him surviving his wife, the said petitioner.
“That it’ is not quite clear from the testimony in the case that the said petitioner is a resident of the State of New Jersey, although she testified she considered it to be such.”

He concludes as follows: “I also certify and report that, because of the fact that the husband has a vested interest in the premises by reason of the birth of issue born alive, the petitioner should not be allowed to make a sale without her said husband joining in the said conveyance, and that the petition should be dismissed.”

The special master was apparently guided by In re Riva, 83 N. J. Eq. 200, in making his report. In that case the court exercised its discretion, and dismissed the petition. It is unnecessary to determine what interest the husband now has in the land in question, or whether this is a “proper ease” by -which the wife can divest him of that right. Bucci v. Popovich. 93 N. J. Eq. 121 (at p. 128); affirmed by per curiam opinion. Ibid. 511.

I am of the opinion that the relief should be granted in this case.

The only apparent purpose of this sale is to legally divest the wife of her interest in the premises for which she made and executed her deed many years ago to the present holder of the paper title.

Without doubt, both the petitioner and her mother believed that the mother, Rebecca A. Bradberry, had the power to convey, when she, Mrs Bradberry, on March 21st, 1892, executed her deed to John Jacob Mezger. Upon the discovery that petitioners had an interest in the lands* she, on January 14tli, 1910, conveyed to Rose Wandeil, the then holder of the paper title.

In that deed, and the acknowledgment thereof, the petitioner was declared to be a widow. If she was a widow at that time, there is no necessity for the present proceedings. If not, her deed, without her husband joining therein, was not effective.

The testimony is that he has not been heard from for more than twenty years. It is unnecessary to cite cases, that he is presumed to be dead.

The reasons given by the court in In re Riva, Ibid., for refusing the relief, are reasons for granting the relief in the. present case.

The petitioner desires that she be now divested of that interest, which was supposed to have been conveyed by her deed of confirmation.

' It might be said that the interest may he purchased by another than the present holder at the sale, but that is an unlikely contingency; under the existing situation, no one other than he would desire to bid therefor.

.This might be a valid objection to the sale, were it not the fact that the petitioner does not expect any financial return from the sale.

She has no equitable claim upon the premises, and makes none. She evidently does no desire to endeavor to secure a divorce, as suggested by the court in Bucci v. Popovich, supra, as being a method of divesting the husband's rights (if her husband is still living).

Considering the entire situation, I am constrained to believe that the relief prayed for should be allowed, and I will advise a decree sustaining the exception and granting the prayer of the petition.


author: Buchanan, V. C.

text:
    Phillipsburg Trust Company, administrator cum testamento annexo, complainant, v. Lillian M. Smith et al., defendants.
    [Decided December 16th, 1924.]
    Bank Depositsi — Joint Account — Account Originally in Name of Husband — Account Subsequently Changed — Some Ambiguity in Instructions — Question Whether.in Terms a Joint Interest was Created — Evidence Supported the Existence of Such an Interest.
    On final hearing.

      Mr. Osiris D. McOonnell, for the complainant.

      Mr. William A. Stryker, for the defendant Lillian M. Smith.
   Buchanan, V. C.

This case involves the determination of the ownership of a certain bank deposit credit with the Lincoln Trust Company of New York, amounting, at the date of death of complainant’s testator, Theodore M. Smith, to $2,501.65. Subsequently, some $1,300 was withdrawn by the defendant Mrs. Smith, and the balance was paid over to complainant.

The hank account originally stood in the name of decedent and comprised deposits of his own moneys. On February 27th, 1922, it amounted to some $1,200, and by a deposit made by him on that day of his own money was in creased to $2,501.65. At the same time he made this deposit, and, evidently, as a part of the same transaction, he had the account changed. He did not have his pass-book with him, so no change was made thereon; the hank officer changed the ledger account to “T. M. Smith or Lillian H. Smith;” both decedent and his wife signed a “signature card” bearing the following instruction:

“We hereby authorize the Lincoln Trust Company to place to the credit of our joint account checks drawn to the order of any one of us and endorsed by any one of us. All moneys standing to our joint credit aré to be subject to the draft of any one of us. All moneys to be paid to the survivor after the death of either of us.”

There is, perhaps, some ambiguity in this card, as to whether or not it in terms created a joint interest or account in the moneys already in the account, but, as I have said, the transaction was all at the same time; decedent took his wife there for the purpose; he was ill and expected to undergo an operation and be'' confined to a hospital for some time, with the possibility, of course, of more serious results.

1 am satisfied by a preponderance of the evidence that it was the intention of the husband at that time to effectuate a then presently operating transfer to his wife of an interest in' the bank credit then existing, to' such an extent as to malee her a joint owner thereof with him, with the incident of survivorship. Under the law of this state, as well as that of New York, the'wife became the owner of the bank credit by survivorship on the death of the husband. There seems some doubt as to whether a -statute of New York. (section 198 of chapter 369 of the Banking act of New York of 1914), duly pleaded, proved and admitted, is applicable to the case at bar, but, if it be, it but serves to strengthen the conclusion to which I have come, by adding a presumption to the other evidence.

The wile, therefore, rightfully drew the portion mentioned, and is entitled to the balance which ivas paid to complainant.


text:
    August Schaefer, complainant, v. David Macroff et al., defendants.
    [Decided December 16th, 1924.]
    Specific Performance — Contract for Sale of Lands or Payment of Specified Sum as Liquidated Damages — Alleged Claim That Irresponsibility of Defendant Defeats the Contract— Property Sold to Another Who Had Constructive Notice of Contract — Decree to Enforce Will Not be Made — Complainant May Have Order Transferring Cause Under Statute.
    On final hearing.

      Mr. David Mandel, for the complainant.

      Mr. Thomas II. Brown, for the defendants Macrolf and Higgins.

      Mr. Charles K. Seaman, Jr., for the defendants Patterson and Lake.
   Buchanan, V. C.

Complainant’s hill is of the kind usually termed for specific performance of a contract for the sale of lands. On September li)tli, 1923, Macrolf as vendor and Schaefer as vendee executed a contract for the sale and conveyance of a certain property in Perth Amboy. Macrolf did not own the lands; he claimed an equitable title in them which ne was then seeking to enforce in a suit against one Anna Sola.t. This was recited in the contract. A down payment of $300 was expressed in the contract and was made, complainant, however, taking from Macrolf a $300 note (on which he required the endorsement of one Thorne). By the terms of the contract this note was to be paid if Maeroff failed to make conveyance. This was also a provision that if Maeroff failed to make conve3rance, for any other reason than inability to acquire title from Anua Solat, he should pay $500 liquidated damages.

Macroff’s suit against Anna Solat was settled by a stipulation whereby she agreed to make conveyance to such person as should be nominated by Macro EE. Her conveyance was made to the defendant Higgins, who was nominated by Macroff’s solicitor, with Macroff’s acquiescence, if not at his direction. Complainant seeks a conveyance from Higgins, who would appear to have taken title with constructive notice of complainant’s rights, by reason of the filing of the contract and of a lis pendens.

The difficulty is that the contract was intended by the parties as an alternative contract, which might be performed by Maeroff either by making conveyance or by paying the stipulated $500 “liquidated damages,” plus a return of the deposit. This is the testimony of Mr. Mande!, who acted for both parties in the execution of the contract. In such a case equity declines to grant the peculiar relief of specific performance or decree for conveyance and leaves the parties to their remedy at law. Porter v. Williams, 93 N. J. Eq. 88.

Complainant contends, however, that in the present case he is entitled to decree for conveyance, on the ground that Maeroff, though entitled at his election to pay the alternative amount, did not make an election at all, but refused to do either, and that it would be aiding Maeroff to perpetrate a fraud on complainant, if decree for conveyance (or for an equitable lion for the alternative amount) be denied, since Maeroff is financially irresponsible.

I cannot concur in this view. In the first place, the evidence fails to show that Maeroff is financially irresponsible. In the second place, that was a risk complainant must have contemplated at the time the contract was made. The fact that he demanded an endorsed note for the $300 shows that he did, in fact, contemplate it. In the third place, it seems clear that Macroff did make an election (when he caused or permitted the conveyance to Higgins) not to convey to complainant. The fact that he did not pay or tender to com plainant the alternative moneys cannot alter that fact. And, lastly, even assuming Macroff’s acts and intentions to have been fraudulent, there is no proof to connect Higgins with any such fraud. All that Higgins was chargeable with was notice of complainant’s contract, a contract under which Macroff had the right not to make conveyance. Under the contract, the payment of the stipulated alternative amount was not in anywise attempted to be made a lien on the property. I can see no equity in complainant entitling him to a conveyance from Higgins or to the impressing of an equitable lien on the property as against Higgins.

As far as the $300 down payment is concerned, complainant has no- claim to the establishment of an equitable lien on the property therefore, because he demanded and took other security. Cf. Brinkerhoff v. Van Sciven, 4 N. J. Eq. 251 (at p. 257).

A decree will be advised accordingly.

If complainant desires he may have an order transferring the cause, under the transfer of causes statute.


author: Katzenbach, J.

text:
    WARREN ROBINSON, PLAINTIFF, v. ANDREW W. MELLON DEFENDANT.
    Decided December 10, 1924.
    Attachment — Ex Parte Affidavit of Defendant — Such Affidavit Sufficient for Rule to Show Cause, But Not. Sufficient to Support Motion to Dismiss Writ — Affidavit in This Case Only a Denial of Existence of Debt — Nature of Affidavit Upon Which Writ is Based.
    On motion to quash writ of attachment.
    Por the motion, Patrick II. Harding.

      QonLra, D. 'Trueman Stackhouse.

   The opinion of the conri was delivered by

Katzenbach, J.

A writ of attachment was issued out of the Supreme Court at the instance of the plaintiff, Warren Robinson. It is based upon subdivision 2 of section 1 of the Attachment act (1 Comp. Stat., p. 133), which provides that an attachment shall issue where the plaintiff, his agent or attorney, shall make affidavit that the debtor is not to deponent’s knowledge or belief resident in this state at the time, and that he owes to tire plaintiff a debt, specifying, as nearly as practicable, tire amount thereof. The affidavit reads as follows: “Warren Robinson, of full age, being duly sworn according to law, on his oath says:

“1. That Andrew E. Mellon owes to deponent a debt, the amount whereof, as nearly as deponent can specify, is forty-seven hundred dollars ($4,7'00).

“2. The said Andrew W. Mellon is not, to deponent’s knowledge or belief, a resident of the State of New Jersey at this time.”

The defendant moves to quash the writ upon the grounds— first, that the affidavit does not set out a contract; second, that it does not state a fixed or definite sum due plaintiff. An ex parte affidavit Iras been filed 'by the defendant, made by the agent of the defendant having charge of his property interests, stating that the work called for in an agreement between the parties was not done by the plaintiff, and no bill was rendered by the plaintiff, and that the defendant does not owe the plaintiff any sum whatsoever. It was suggested at the argument of this motion that, in the opinion of the court, depositions should be taken under a rule which the court would allow. This has not been done, and the court has been asked to decide the motion upon the record before it. The defendant insists that, in view of the failure of the plaintiff to deny the substance- of the affidavit of defendant’s agent, there is no necessity of taking depositions. The plaintiff’s counsel contends that the plaintiff is. not called on to make any reply to the affidavit, as it is insufficient fo-r the purpose for which it is intended. The position taken by counsel for the plaintiff is, in my opinion, correct.

In the casei of Shadduck v. Marsh, 21 N. J. L. 434, this court said: “The affidavit of the defendant is not sufficient in support of a motion to quash; proof must he produced from a different quarter. It may be competent for the purpose of obtaining a, rule to- show cause, hut it is not evidence upon which the rule can he made absolute.”

In Baldwin v. Flagg, 43 N. J. L. 495, this court said: “The motion [to quash a writ of attachment] was heard in the Circuit, and is presented here on affidavits taken ex parte without notice. The proper practice in such cases is to obtain a rule in the court out of which the writ is issued that the plain!iff show cause why the writ should not be set aside, with leave to take affidavits under which depositions may be taken in compliance with * * * the Practice act.”

Ex parte affidavits may be used for the purpose of obtaining a rule to show cause, but are not competent to prove facts necessary to support a motion not, of course, or to be read on the hearing of a rule to show cause, depending on facts extrinsic the record. Such facts can only be brought before the court by depositions taken on notice. The practice of taking affidavits ex parte, to he nsed on the argument of a motion, is peculiar to the Court of Chancery. If copies are regularly served, such affidavits may be used in the Court of Chancery in virtue of the * * * Chancery rules. This practice has never been adopted in the courts of law.

The rales of this court require that'all affidavits taken in pursuance of any rale of court, or to be made use of on any argument or hearing * * * “shall be taken on four days’ notice, at least, of the time and place of taking the same, and not otherwise.”

While the use of the affidavit would be improper, it is, perhaps, not improper to say that, if it were used, it would be insufficient to quash the writ, as a writ will not be quashed upon a mere denial by the defendant of the existence of a debt, and that is all the affidavit avers.

Upon the first ground of attack, which is that the affidavit does not set forth a. contract or cause of action, it has been held that the affidavit does.not have to' set forth a contract or cause of action. It is prima, facia sufficient if it states that the defendant is indebted to the plaintiff in a, certain sum of money, and the defendant- is not, to- the knowledge or belief of the affiant, resident in this state at the time of making the affidavit. In Day v. Burnett, 18 N. J. L. 287, this court said: “It is very plain, therefore, that the words of the statute do not require the cause of action to be stated in the applicant’s, affidavit for the writ.”

The eases of Shadduck v. Marsh, supra; Anspach v. Spring Lake, 58 N. J. L. 136, and Weller v. United Garment Workers of America, 40 Id. 91, are to the same effect.

The affidavit recites that the debt, as nearly as deponent can specify, is $4,700. This language is justified by the statute quoted, which does not require the amount to be’ stated exactly, and gives to the plaintiff some latitude in this respect.

The second ground of attack is that the affidavit does not show a liquidated or definite sum due. It is true that a writ of attachment cannot be issued where the damages ar-e unliquidated. Heckscher v. Trotter, 48 N. J. L. 419. In the present case, however, there is nothing to show that the damages are not liquidated.

The motion to quash is denied, with costs.


author: Per Curi.ul

text:
    EL MORA REALTY COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY. PLAINTIFF-APPELLANT. v. JOHN C. GRIFFIN, DEFENDANT-RESPONDENT.
    Argued May 7, 1924
    Decided November 24, 1924.
    Appeals — Rules to Show Cause — Rule Reserved Certain Exceptions — Notwithstanding Reservations all Questions Were Considered Upon Hearing on Rule — Upon Discharge of Rule Appeal was Taken — Action on Rule Considered as Abandonment of Reservations — Appeal Dismissed.
    Ou appeal from the Union County Circuit Court.
    Before Goiluere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiff-apellant, TVhiilemore & McLean.

    For the defendant-respondent, Jeremiah A. Kiernan.

   Per Curi.ul

The plaintiff instituted an action of ejectment in the Union County Circuit Court. The case was referred to and tried by the juclgfc of the Court of Common Pleas for the county of Union. A verdict was rendered for the defendant. Upon the plaintiff's application a rale to show cause was applied for and allowed why the verdict should not be set aside. This rule reserved, however, the exceptions taken to certain rulings of the trial court. Notwithstanding the reservation of these questions, they were all argued and considered upon the hearing of1 the rule to show cause. The rule was discharged. The questions reserved under the rule are now made the grounds of appeal to this, court. The respondent invokes the case of Faragasso v. Introcasso, 1 N. J. Adv. R. 1034 (not yet officially reported), as a bar to the consideration upon this appeal of the same questions passed upon by the trial judge under the rule. We think this position well taken. Ais was pointed out in the opinion of Faragasso v. Introcasso, supra, the consideration of the questions raised upon the appeal would be tantamount to reviewing' the action of the trial court in discharging the rule. Such judicial action has been frequently held not to be reviewable. When a party argues under a rule the questions reserved in the rule, his action is a waiver of the reservations made in the rule. His action will be deemed an abandonment of the exceptions reserved. In the case referred to (Faragasso v. Introcasso). the appeal was for this reason dismissed. Eor the same reason, and following the established practice, the present appeal is dismissed, with costs.