author: Pee Curiam.

text:
    FRANK BORGER, RELATOR, v. BOARD OF CHOSEN FREEHOLDERS AND ROBERT S. TIPPING, COUNTY TREASURER, RESPONDENTS.
    Argued May 7, 1935
    Decided August 21, 1935.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the relator, Major, Bach <& Garisen (James A. Major, of counsel).
    For the respondents, Walter G. Wvnne.

   Pee Curiam.

The relator holds an alternative writ of mandamus to which a return has been made followed by a demurrer on the part of the relator and a joinder in demurrer on the part of the respondents.

Frank Borger, the relator, is in the employ of the county of Bergen, serving under the sheriff of that county as head keeper of the county jail. He has had this employment for sixteen years, having been appointed at the age of thirty-five and is now in his fifty-first year.

On December. 12th, 1934, the board of chosen freeholders of Bergen county passed a resolution permitting the keepers employed in the Bergen county jail to participate in the benefits of a pension fund erected under the authority of chapter 104, Pamph. L. 1929. Cum. Supp. Comp. Stat. 1930, p. 344, § 48-*1900J(a). The writ before us recites that the said relator “duly applied” to the treasurer of the county to have three per cent, of his salary deducted monthly as a contribution to the pension fund as directed by the said statute. This the county treasurer refused to do for the reason that the relator had reached the age of fifty-one years. The writ enjoins the said county treasurer to deduct the said three per cent, from the salary of the said relator, as authorized by him, as a contribution to the fund and further directs the board of freeholders to appropriate each year a like sum towards the said pension fund or show cause to the contrary.

The return to the writ, in justification of the refusal of the officials to comply with its direction, admits that it has set up by appropriate resolution of December 12th, 1934, an authorization to keepers employed in the Bergen county jail to participate in the fund sanctioned by the statute (supra1 but says that such employes as have reached their forty-first birthday are not eligible to participate in or to enjoy pension fund rights because of the provisions of chapter 104, Pamph. L. 1930, p. 353 (Cum. Supp. Comp. Stat. 1930, p. 897 § 107-149EG); and it is further urged that the relator is guilty of laches.

As to the first point, chapter 104, laws of 1930, is an act concerning the employment of persons by the State of Kew Jersey or of any county or municipality thereof and by its first section provides that no person of the age of forty or over shall be barred from seeking employment in the service of the state or any county or municipality because of age, with the stipulation that this provision shall not apply to police or fire departments, &c. But it is the second paragraph upon which the respondent relies for refusing to accept the relator as a prospective pensioner, and it reads as follows: “Any person of the age of forty years or over accepting any employment in the state or any county or municipality thereof shall not be eligible to join any pension fund maintained by the state or any county or municipality thereof.”

We are clear that this section is not a bar to the relator’s joining the pension fund. A literal reading of the act makes it plain that it is not applicable to the situation before us. The relator is not in the class of persons presently accepting employment in the county. Statutes, unless the contrary clearly appears, should not be given retrospective operation. Regan v. State Board of Education, 109 N. J. L. 1; 159 Atl. Rep. 691; Monahan v. Matthews, 91 N. J. L. 123; 103 Atl. Rep. 40; Citizens' Gas Light Co. v. Alden, 44 N. J. L. 648.

We conclude therefore that the 1930 act {supra) is inapplicable.

The second point made by the respondents in justification of its refusal to receive the relator as a prospective pensioner is that he is in laches. The argument in support of this position is that the statute of 1929 {supra) provided for the retirement and pensioning of persons in the class of the relator came into being on April 16th, 1929, and that the relator should have made contribution in accordance with the direction of the statute during each of the intervening years. The record, however, shows that the board of freeholders of Bergen county did not, until December 12th, 1934, authorize the erection of the pension fund which was applicable to that class of employes in which the relator belongs. It appears that he acted with reasonable diligence as soon as the governing body of the county passed its resolution authorizing the creation of the pension fund. It is undisputed that the relator applied for a rule to show cause why mandamus should not issue on February 6th, 1935, and since the creation of the said pension fund was not sanctioned by the county authorities until December 12th, 1934, certainly a delay of less than two months cannot be considered so unreasonable as to amount to laches.

The relator, under the statute, and under the circumstances, has the right to be admitted as a member of the pension fund. It is a fair assumption that other prospective pensioners were not challenged because they had not contributed from the date of the passage of the act in 1929, and to single out the relator on this score is discriminatory and unjust.

Section 9, chapter 104 of the laws of 1929 (Cum. Supp. Comp. Stat. 1930, p. 346, § 48-*1900J(9), provides for the creation of a pension fund through the employe filing an authorization with, the treasurer of the county to make a three per cent, deduction each month ont of his salary and the board of freeholders is directed to appropriate a like sum annually. If we construe the language of the section as a mandatory direction and if, as it appears, the county did nothing toward the creation of this pension fund by making an annual appropriation, as directed, until more than five years after the statute became effective, it is clear that the county was as much at fault as the relator and should not be heard to charge laches against the applicant when its own laches materially contributed to the situation.

A peremptory writ of mandamus will be awarded.


source: Caselaw Access Project

author: Pee Ctteiam.

license: Public Domain

text:
    COMMONWEALTH INVESTMENT COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. GUARANTEE TRUST COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Argued May 10, 1935
    Decided August 30, 1935.
    Before Justices Teenohaed, Hetiee and Peeskie.
    Por the rule, Irving I. Jacobs.

      Contra, Cole Cole.

   Pee Ctteiam.

Plaintiff sued on a certificate of deposit issued to plaintiff by the defendant bank. The defendant answered and the plaintiff moved to strike out the answer as “disclosing no cause of defense.” The Circuit Court judge, sitting as a Supreme Court commissioner, before whom the motion was made, concluded to deny the motion to strike the answer and so announced.

A few days later the attorney for the plaintiff drew and presented a rule which “ordered.that the application of the plaintiff for an order to strike out the answer of the defendant for the causes as aforesaid be and the same is hereby denied; and it is further ordered that on the whole record the complaint be and the same is hereby struck out for disclosing no cause of action, without cost to either party.” That rule was signed.

The plaintiff then caused judgment to be entered in favor of the defendant and against the plaintiff, and thereafter the plaintiff took an appeal to the Court cf Errors and Appeals. That appeal was dismissed, the court saying: “We know

of no way in which we can in order to review court action, reinstate a stricken complaint and enter judgment on the entire pleadings. This the trial court should have done if it was so intended.”

Thereafter the plaintiff, alleging that the rule on the motion to strike, filed by the Supreme Court commissioner, was made by inadvertence, obtained from a justice of this court a rule to show cause why the judgment in this court should not be opened, vacated and for nothing holden, in which rule it was ordered that the Supreme Court commissioner certify to this court “whether it was his intention to enter a judgment on the entire pleadings and not to strike the complaint.” In response to such order the Supreme Court commissioner certified to this court as follows: “(1) That I denied the motion for a rule striking out the answer filed in behalf of the defendant in the above entitled action. (2) That my conclusion was announced orally. (3) That subsequently on September 14th, 1934, the attorney of the plaintiff presented to me a rule bearing that date. Upon reading the rule so presented I made express and particular inquiry of the attorney for the plaintiff to ascertain if the rule was, in form and. in substance, as he desired it to be entered. He replied that he had prepared the rule as he desired it to be made and entered, and I thereupon signed the rule. (4) In signing the rule, it was my intention to effectuate the terms and provisions thereof pursuant to the application of the attorney of the plaintiff.”

How it will be observed that the attorney of the plaintiff drew the rule in question. But that is not all. He was expressly and particularly questioned by the judge as to its provisions and upon the insistence of the attorney for the plaintiff that the rule was what he desired (and was entitled to take if he chose) the order was signed. It was therefore the order which the attorney of the plaintiff insisted upon and which the judge, sitting as a Supreme Court commissioner, intended to make and did make.

Accordingly, the rule to show cause is discharged, without costs to either party.


author: Pee Ctjkiam.

text:
    JAMES BALDWIN, PLAINTIFF-APPELLANT, v. NORTH RIVER COAL AND WHARF COMPANY, DEFENDANT-RESPONDENT.
    Argued May 7, 1935
    Decided August 20, 1935.
    Before Bkogan, Chiee Justice, and Justices Lloyd and Donges.

      For the appellant. Levenson, Comen & Levenson.

    Por the respondent. Carey & Lane and Davis A. Pindar.

   Pee Ctjkiam.

This is an appeal from a judgment of nonsuit entered in the Hudson County Circuit Court. The action was to recover for personal injuries sustained by the plaintiff due to a fall on a pier of the defendant, alleged to be due to the negligence of the defendant. The trial court held that at the time and place of the accident the plaintiff was not an invitee of the defendant, but a licensee or trespasser to whom the defendant owed only the duty of refraining from willful injury, of which there was no evidence; and further held that the plaintiff was guilty of contributory negligence as a matter of law. Upon both these grounds he granted the motion for nonsuit.

The circumstances leading up to the accident were briefly as follows: Defendant operated a pier or wharf in Jersey City where coal was loaded onto barges. There appear to have been two decks or levels, one not far above the water line with passages from end to end, and the other about eight feet above with railroad tracks where cars were run in to be loaded. On this upper deck there was a footway along each side protected by a railing. At the point where plaintiff fell this footway and its railing, which was on the outside, curved or turned outward slightly.

On December 4th, 1931, a barge known as the Harold L., of which the plaintiff was part owner, was loaded at this wharf with coal and before it could be moved away it commenced to sink. Efforts were made during the day to keep it afloat and finally the captain of the boat was told by employes of the defendant to get his “boss” there to take care of the situation. Plaintiff was sent for but did not arrive until twelve-thirty o’clock on the morning of the 5th. He inspected the sinking boat and determined it was necessary to summon aid by telephone. An employe of the defendant told him there was a phone at the top of the pier and he went there but found the office containing the telephone was locked. He was then told there was another telephone at the other end of the pier and proceeded to walk the length of the pier on the top level. It was, of course, dark. There were some lights along the walk but they were testified to be dint and some distance apart. As the plaintiff approached the place where the iootwalk turned outward away from the railroad tracks some eighteen inches, a car stood on the tracks being unloaded, and it was testified that this car threw a shadow in his path.

'Pile photographic exhibits show that at this point there are openings in the floor of this level of the pier through which coal is dropped from cars to be loaded on the barges. The opening on the outside of the railroad tracks extends some eighteen inches from the track and there are openings between the rails of the track.

Plaintiff did not fall into that part of the opening which he first reached in his progress, but apparently stayed on the footway for a distance of approximately fifteen feet and then stepped off and into the hole, sustaining the injuries for which he seeks to recover.

We are of the opinion that the judgment of nonsuit was properly entered because of the contributory negligence of the plaintiff. In the middle of the night, in a dimly lighted place, he chose to wander around alone although not familiar with the details of the construction, and to blindly walk ahead into a place where he says his vision was obstructed by the shadow of the coal car and thus stepped into the hole. We are of the opinion that he did not use proper care for his own safety. There was a walk by which one could pass this place in safety, but plaintiff failed to keep on it because he chose to proceed when he could not see where he was walking.

In the state of the proofs, we are of the opinion that reasonable minds could not differ upon the question and that the plaintiff was guilty of contributory negligence as a matter of law in wandering about this structure, the general nature and purpose of which he must have known but the detailed construction of which was unfamiliar to him.

This determination makes it unnecessary to discuss the other ground of the nonsuit.

The judgment is affirmed.


author: Pee Cueiam. .

text:
    FANNIE HENDLER ET AL., PLAINTIFFS-RESPONDENTS, v. ROSE MEADOWS ET AL., DEFENDANTS-APPELLANTS.
    Argued May 8, 1935
    Decided August 20, 1935.
    Before Bbogan, Chief Justice, and Justices Lloyd and Donges.
    Por the appellants, McCarter <& English.

    Por the respondents, Louis Spiegel, Benjamin M. Weinberg and Percy H. Penn.

   Pee Cueiam. .

These are appeals from judgments of the Essex County Court of Common Pleas. The suits arise out of an automobile accident and the trial judge directed verdicts for the plaintiffs and submitted to the jury on the question of the quantum of damages.

It appears that two of the three plaintiffs were passengers in a car owned by the defendant Eose Meadows and driven by the defendant Meyer Hendler, her brother. Plaintiffs Pannie Hendler and Isaac Hendler are the parents of the defendants, and plaintiff Goldie Zipkin is a friend of Meyer. They were taking an automobile ride on the night of Juty 18th, 1933, and while proceeding along Ocean avenue in Bradley Beach the car ran into an electric light pole in the center of the street. The collision occurred at nine-thirty p. M.

The first point argued deals with the refusal of the trial court to admit into evidence a statement signed by the appellant Bose Meadows prior to the trial. Counsel was attempting to develop the lack of agency of the driver at the time of the accident. The statement said, in part:

“On July 18th, 1933, some time in the morning, I told my brother Meyer Hendler, of 93 Hillside Ave., Newark, N. J., to take my Buick sedan and drive down to the Brunswick Hotel in Asbury Park, N. J., to see my mother * *

On the stand Mrs. Meadows testified that she had previously, on July 4th, asked her brother to call on their mother as often as he might have an opportunity to take her out for a ride, and further that she had given him permission to take friends along on such rides. Mrs. Meadows’ own counsel then pleaded surprise and asked to have the statement admitted to neutralize her testimony. In the circumstances of this ease, the refusal to admit the statement was harmless. Its only effect could have been to wipe out Mrs. Meadows’ testimony on this subject, and then there would have been left the presumption of agency arising from the operation of the automobile, and the testimony of George Hendler to the effect that Mrs. Meadows had told Meyer to take the mother out riding, all of which stands uncontradic-ted because the statement, if admitted, could not be given the effect of neutralizing testimony other than that of Mrs. Meadows.

The other point is that it was error to direct a verdict. The testimony was that while riding along Ocean avenue the car suddenly swerved and struck the pole. There was testimony from Miss Zipkin that the driver stated at the time that he had dozed momentarily. The defendant offered no testimony as to the manner of the happening of the accident. Appellants argue as if the direction were based solely on the proof of the admission that Hendler fell asleep, but this is not so. When a car proceeding along a street suddenly swerves into a pole with no apparent cause, and there is no attempt to explain the occurrence, no claim that any other car or person was involved or that there was a hidden defect in the ear, but simply a situation where the driver, whether asleep or awake, steered into a pole, it cannot be said that reasonable minds could differ on the question of negligence. There was no error in the direction of verdicts. Vendola v. Public Service Railway Co., 5 N. J. Mis. R. 285; 136 Atl. Rep. 415.

The judgments are affirmed, with costs.


author: Per Curiam.

text:
    ANTOINETTE TRIMONDI, PLAINTIFF-RESPONDENT, v. BOLESLAW NOWAKOSKI, DEFENDANT-APPELLANT.
    Argued May 9, 1935
    Decided August 20, 1935.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    Por the appellant, Marie Townsend, Jr., and Thomas F. Doyle.

    Por the respondent, Feinberg •& Feinberg.

   Per Curiam.

This is an appeal from an order of the Hudson County Court of Common Pleas, setting aside a jury verdict in favor of the defendant and granting a new trial in a negligence suit wherein plaintiff claimed damages for injuries sustained by a fall on steps of defendant which were claimed to be defective. The sole ground of appeal is that the trial judge committed an abuse of discretion in allowing the new trial.

The appeal must be dismissed because no final judgment has been entered in the court below, and where there is no final judgment in an action at law there can be no appeal. Van Hoogenstyn v. Delaware, Lackawanna and Western Railroad Co., 90 N. J. L. 189; 100 Atl. Rep. 232; Denholtz v. Donner, Denholtz & Co., 96 N. J. L. 545; 115 Atl. Rep. 351; Wheat v. Public Service, 97 N. J. L. 584; 117 Atl. Rep. 594; Hickman v. Powell, 99 N. J. L. 274; 124 Atl. Rep. 448.

The appeal is dismissed, with costs.


author: Pee Cueiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. SALVATORE LAMBERTINO, PLAINTIFF IN ERROR.
    Argued May 8, 1935
    Decided August 20, 1935.
    Before Bkogan, Chief Justice, and Justices Lloyd and Donges.

      For the plaintiff in error, Joseph Varbalow.

    For the defendant in error, Samuel P. Orlando.

   Pee Cueiam.

This is a writ of error to review the conviction of one Salvatore Lambertino at the Camden Quarter Sessions on a charge of atrocious assault and battery upon Marcella Beck, now deceased.

It appears that on the evening of September 20th, 1932, Miss Beck, in company with Lambertino, Joseph Lubrano, and some others came to the house of the plaintiff in error in Camden from Philadelphia and there engaged in a party at which drinks were served. During the evening Miss Beck was assaulted and her jaw was broken in several places. Lubrano and Lambertino were arrested and indicted for rape. Lubrano pleaded guilty. Lambertino jumped bail and ñed from the state. He was apprehended in St. Louis on July 14th, 1934. In the meantime Miss Beck had died. An indictment for atrocious assault and battery was then found, and it was upon this indictment that the trial below was had.

The first point argued is that the trial court should have quashed the indictment on the ground that it failed to specify the exact date of the offense, and on the further ground that it was found by the grand jury on incompetent testimony. The indictment fixed the date of the assault as “on or about the 20th day of September in the year of our Lord one thousand nine hundred and thirty-two, the exact day being to this grand inquest as yet unknown.” This objection is not seriously urged in this court and we see no merit in it. The failure to charge the crime occurred before or after midnight on the night in question is not fatal.

It is urged that the indictment must have been found on testimony of the prosecutor and on hearsay evidence. Ho authority is cited for the proposition that a trial court may inquire into the quality of proof presented to the grand' jury. The contrary seems to be the rule. State v. Pick (Md.), 121 Atl. Rep. 918; State v. Walsh (N. H.), 84 Atl. Rep. 42.

It should be noted that the objections to the indictment were not timely. They were presented after the plea was entered and no request to withdraw the plea having been made, the so-called “motion to quash” was not properly made.

The second point is that it was error to admit testimony that the plaintiff in error had fled the jurisdiction and to charge the jury that they might consider this fact. The complaint is that at the time the defendant fled he was under indictment for rape, whereas he was here being tried for assault and battery. However, we think this makes no difference. The rape with which he was charged included an assault and battery, and the defendant fled from the results of the occurrence which gave rise to both indictments. It is well settled that evidence of flight may be admitted and considered by the jury. State v. Jaggers, 71 N. J. L. 281; 58 Atl. Rep. 1014; State v. Harrington, 87 N. J. L. 713; 94 Atl. Rep. 623.

The third point is that there was error in the admission of testimony as to an alleged identification and accusation of the plaintiff in error by the assaulted girl at the time of his arrest. It appears that county detectives entered his home late in the evening and John Fitzgerald, a reporter, brought the girl to the door of the room where the detectives had Lambertino. Both Fitzgerald and chief of detectives Doran testified that Miss Beck pointed out the plaintiff in error as the one who had assaulted her. The complaint is that this testimony was not of such a character as to fulfill the requirements of the cases, such as State v. Donnelly, 26 N. J. L. 601; State v. Rosa, 72 Id. 462; 62 Atl. Rep. 695; State v. D’Adame, 84 N. J. L. 386; 86 Atl. Rep. 414, and others. The argument is that it did not appear that the defendant heard the words spoken and understood the nature of the incident. The trial judge struck out the testimony of Fitzgerald and instructed the jury to disregard it because the witness was apparently not able to say that the defendant did hear. The testimony of Chief Doran was allowed to stand, and we think rightly so, because he testified the defendant and the girl were only about six feet apart and “it was within the hearing, very easy, of him.” The court told the jury it was for them to decide whether defendant heard it or not. Under the circumstances we do not think the grounds on which this testimony was objected to were well taken, and are of opinion that there was no error in its admission and in the charge of the court on the use the jury was to make of it.

It is next argued that it was error for the trial court to permit the state to recall one of its witnesses after the defense had rested and to give evidence of new matter. This rested within the sound discretion of the court and there was no abuse of that discretion. Care was exercised to give the defendant every opportunity to meet this testimony and no unfair advantage was given the state.

It is urged that it was error to admit evidence of an admission by the plaintiff in error that he had had sexual intercourse with Miss Beck on the night of the assault. This was admitted not for the purpose of attacking the character of the accused, but because the state’s theory was that the assault was committed in the effort to have intercourse. The court in his charge limited the use of the evidence by the jury to that extent, and we think there was no harmful error.

The last point argued is that the verdict was against the weight of the evidence. After a careful reading of all the proofs we are of the opinion that there was ample evidence to support the conviction.

The judgment is affirmed.


text:
    ANTHONINO MAROTTA, PETITIONER, v. JOSEPH FABI, RESPONDENT-PROSECUTOR.
    Submitted May 17, 1935
    Decided September 11, 1935.

      Before Justices Parker, Case and Bobine.
    Por the prosecutor, Samuel Levinson.

    Por the petitioner, .Louis M. Mallin.

   Per Curiam.

This is a workmen’s compensation case. The deputy commissioner dismissed the petition. On appeal, the Atlantic Common Pleas reversed, and awarded compensation. The employer sued out the present writ.

Apart from technical questions of costs and counsel fee, the dispute is solely on weight and sufficiency of evidence as to the occurrence of an accident on May 9th, 1934. The other elements of recovery are not challenged. The history of the case is that petitioner worked for defendant, a contractor, as a concrete finisher, and in December, 1933, sustained a more or less severe sprain of the right hand and wrist, which caused him to stop work and undergo treatment by the employer’s physician. Por this he received compensation. Ultimately he returned to work, and claimed to have sprained the same hand and wrist a second time on May 9th, because of some unusual effort. He was again examined by the same physician, and without formal petition filed, there appears to have been an informal hearing of some kind on May 31st, 1934, before Beferee Monroe, who reported in writing to the deputy commissioner that he had “dismissed the claim due to the fact that there did not seem to be an accident involved.” What evidence there was before the referee is not shown in the printed book. If petitioner made any statements before the referee that were inconsistent with his testimony before the commissioner, there is no evidence of such statements. On cross-examination petitioner was asked what Monroe had said to him, and respondent’s counsel not getting the answer that he expected, announced his intention of producing Mr. Monroe, but that was never done. It does not seem to he claimed that the "sprain” of May 9th claimed by petitioner was not an accident. A somewhat similar situation was presented to us in the case of Van Meter v. Morehouse, 13 N. J. Mis. R. 558; 179 Atl. Rep. 678.

We have carefully examined the evidence before us, unimpeached by anything petitioner ma3r have stated on the informal hearing, and conclude that the Court of Common Pleas was justified in its conclusion that the injury received on May 9th was an aggravation of the prior injury of December 23d. That being the factual question argued, and the decision here on the merits turning thereon, the judgment of the pleas should be affirmed, as regards the award of compensation.

The Court of Common Pleas awarded costs and counsel fee in that court. Its jurisdiction so to do is not here challenged. But in addition it awarded costs and counsel fee as something that should have been done in the bureau; and this is challenged. Counsel cite no apposite decision on this point, and we are not aware of any at this writing. Costs, and counsel fees, which class as costs, are the creature of statute; and turning to the statute we find the commissioner and deputy commissioners vested with power to award costs and counsel fee to a successful petitioner. On the appeal it was adjudged that the petitioner should have been successful below. The decision was not a mere reversal and remand for new trial, as at common law, or a reversal with directions to make a new decree, as in equity; it was the act of the pleas, put by statute in the place of the bureau, for the purpose of itself rendering such judgment as should have been rendered in the court of first instance, with its incidents of costs and counsel fee, to which the statute superadded the costs and counsel fee necessitated by the appeal.

In this aspect also, the judgment should be affirmed.


author: Per Curtail

text:
    PUBLIC SERVICE ELECTRIC AND GAS COMPANY, WILLIAM T. READ, T. GORDON COULTER, THOMAS B. LEE AND THE WOOD MANUFACTURING COMPANY, PROSECUTORS, v. CITY OF CAMDEN AND CHARLES F. WISE ET AL., DEFENDANTS.
    Argued May 9, 1935
    Decided September 21, 1935.
    Before Justices Parker, Case and Bodine.
    Por tlie prosecutors, William H. Speer, Boyle & Archer, Charles S. Straw and Rudolph S. Ayers.

    Por the city of Camden and Charles P. Wise, Edwin Q. C. Bleakly and Lewis Liberman.

    Por the other defendants, Thomas B. Hall and Qrover C. Richman.

   Per Curtail

The writ reviews a resolution of the board of commissioners of the city of Camden dated September 28th, 1933, and action thereafter taken. Prior thereto, a petition had been presented purporting to bo signed by fourteen thousand three hundred and fifty-eight legal voters of the city of Camden requesting a referendum on the question of whether the municipality should construct and operate a plant for the manufacture of electricity for supplying light, heat and power for its own purposes and for the purpose of selling and supplying the same to its inhabitants. The action under review was taken pursuant to article 33 of chapter 152 of Pamph. L. 1917, p. 442. Cum. Supp. Comp. Stat. 1911, p. 2314, § *136-3303. Section 3 of this article provides that if a petition signed by at least twenty per cent, of the legal voters of the municipality shall be presented to the governing body requesting a referendum vote, the governing body shall pass a resolution to the effect that a vote is required upon the question of acquiring a light, heat and power plant, as stated in the petition, and the proper municipal officer shall in the manner provided by law place the question upon the ballots used in the next general election. The question to be presented shall be in substantially the following form: “Shall the * * * of * * * (name the municipality) acquire or construct a plant or works for supplying * * * (here specify whether light, heat or power, or two or all of them * * * for the public or private uses of this municipality and its inhabitants?” “Yes,” “Fo.”

Section 4 of article 33 (Cum. Supp. Comp. Stat. 1911, p. 2315, § *136-3304), authorizes the municipality in operating the plant to do certain specified acts.

It seems that the referendum is limited to the acquisition or construction of plants for the supplying of light, heat or power for the public or private use of the municipality and its inhabitants.

The question was submitted to the voters on Fovember 7th, and the proposal, as submitted, was adopted by a large majority of the votes cast.

The resolution passed by the board of commissioners authorizing the election recited that the petition bore the requisite number of signatures of the legal voters. Unless the petition was signed by at least twenty per cent, of the legal voters of the municipality no action should have been taken thereon.

Paragraph 37, section 1 of the General Election law (Pamph. L. 1930, ch. 187, p. 671; Cum. Supp. Comp. Stat. 1925, p. 502, § 65-401A), provides as follows: “Every person possessing the qualifications required by the nineteenth amendment to the constitution of the United States and article II, section 1 of the constitution of the State of Few Jersey and having none of the disqualifications mentioned therein, and being duly registered as required by this act, shall be entitled to vote in the polling place assigned to the election district in which he actually resides, and not elsewhere; provided, however, that a person, who will have, on the day of general election, the qualifications to entitle him to vote shall have the right to be registered for and vote at the primary election and register for and vote at the general election, the same as though all qualifications were met before registration for the primary election.”

It, therefore, would seem that a legal voter was one possessed of the constitutional requirements but also duly registered. Obviously, no vote can be cast without registration. The city of Camden is within the operation of the permanent registration system. Paragraph 379, section 1 of the Election law, supra, as amended by chapter 174, Pamph. L. 1933, p. 373 (N. J. Stat. Annual 1933, § 65-2801 A), provides that: “In every municipality of this State having a population exceeding fifteen thousand, as ascertained by the Eederal census of the year one thousand rune hundred and twenty, no person shall be permitted to vote at any election unless such person shall have been registered as hereinafter provided, * * * .” Paragraph 383, section 5 (Pamph. L. 1930), provides that: “Each person, who at the time when he applies for registration resides in the district in which he expects to vote, who will be of the age of twenty-one years or more at the next ensuing general election, who is a citizen of the United States, and who, if he continues to reside in the district until the general election, will at the time have fulfilled all the requirements as to length of residence to qualify him as a legal voter, shall, unless otherwise disqualified, be entitled to be registered in such district; and when once registered shall not be required to register again in such district as long as he resides therein, except when required to do so by the said commissioner, because of the loss of or some defect in his registration record. Said registrant when registered as provided in this act shall be elegible to vote at any election subsequent to such registration subject to any change in his qualifications which may later disqualify him; provided, however, that if said registrant does not vote at a general election four consecutive years, his original and duplicate permanent registration and record of voting forms shall be removed to the inactive file and he shall be required to reregister before being allowed to vote at any subsequent election.”

We, therefore, conclude that the total number of legal voters in the city of Camden on the day the petition was presented were those constitutionally qualified whose names appeared upon the active registration list of the city. The petition, to have validity, must have been signed by twenty per cent, of such voters. The number of names on such list was fifty-six thousand and thirty-three. Twenty per cent, of this number would be eleven thousand two hundred and five. The number of legal voters was estimated by the city clerk at fifty-three thousand. Twenty per cent, of this number would be ten thousand six hundred.

It appears from the proof that the petition was not signed by the requisite number of voters. It clearly appears that five hundred and forty-seven persons whose names appeared upon the petition did not sign the same. The names of seventy-eight were affixed by others; one hundred and fifty-one were non-residents. There were eight hundred and fifteen duplications. It was established that two thousand four hundred and seventy-five were not registered and that one hundred and sixty-seven were not eligible for one reason or another. Three had died before the filing of the petition; one had moved away and there were two hundred and seventy-six signatures improper for other reasons. It undoubtedly appears from the record that more rather than less of the purporting signatures were invalid, and that if we should adopt, as a fact, the testimony of the city clerk that there were fifty-three thousand legal voters in the city of Camden the petition still lacked the signature of twenty per cent, of the legal voters. There cannot be a legal voter who is not a registered voter.

A supplemental petition purporting to contain the names of seven hundred and twenty-four additional legal voters, if duly filed, fails to raise the legal quota, because a large number of these signatures were improper. Scarcely two hundred were valid.

It is unnecessary to consider the question of the invalidity of the proposals because of lack of definite plan or the manner of submission to the voters.

It is perhaps significant that the petition, as presented to the city commissioners, contained no limitation as to cost. The proposal submitted to the voters limited the total expenditures to $10,000,000. The approximation and limitation of cost may have been a material variance from the petition as presented.

The city argues that the adoption of the proposal at the general election cures all defects in the preliminary proceeding. Its reliance is placed upon chapter 4, Pamph. L. 1907, p. 14. 1 Comp. Stat., p. 941, § 1279. This statute is entitled "An act to validate and confirm any election heretofore or hereafter held in any city for the acceptance of any act authorized to be submitted at such election, as well as any election held for the adoption of a proposition under any such act, and to validate and confirm all bonds, contracts or other obligations issued, authorized or made under any such act or pursuant to any such proposition.”

Suffice it to say that no bonds, contracts or other obligations had been issued. The legislative purpose obviously does not apply to a situation like the present where the challenge is to the validity of a proposal and plan before any contracts or obligations have been issued. There is nothing in the record to indicate that the prosecutor has been in laches.

It is unnecessary now to consider the other questions raised. The proceedings under review will be set aside.


author: McG-ratii, C. P. J.

text:
    Union County Court of Common Pleas.
    TREASURER OF THE CITY OF PLAINFIELD, RESPONDENT, v. AERIES PEREIRA, APPELLANT.
    Decided September 3, 1935.
    Por the respondent, William Newcorn.

    Por the appellant, J. Leroy Jordan and Schneider & Schneider.

   McG-ratii, C. P. J.

The appellant was arrested in the city of Plainfield on May 6th, 1935, charged with having in his possession an unregistered still, in violation of the laws of this state, and on this charge he was held for the action of the grand jury and was subsequently indicted. On the same facts he was also charged with having violated the twenty-third section of an ordinance of the city of Plainfield entitled, “An ordinance to regulate the sale of alcoholic beverages in the city of Plainfield,” in that the said Aeries Pereira did, on the 6th day of May, 1935, have in his possession and under his control, a still and other paraphernalia adaptable for use in connection therewith, connected and in use for the manufacture of illicit alcoholic beverages, at and on the premises known as No. 1434 Willever street, in said city, contrary to said ordinance. On this latter charge, in a summary proceeding brought by the treasurer of the city of Plainfield, under the city charter, he was found guilty of violating the ordinance, and was sentenced by the city judge to serve sixty days in the county jail as a disorderly person. The record discloses that the appellant was found in possession of a still on May 6th, 1935, in operation, with the gas burners lit and the still working and connected. The conviction recites that Pereira had in his possession and under his control a still and other paraphernalia adaptable for use in connection therewith and in use for the manufacture of illicit alcoholic beverages.

It is well settled that where the legislature has delegated to a municipality the power to regulate intoxicating liquor and the municipality in pursuance of such authority has passed a proper ordinance, the municipality may punish violations of such ordinance by virtue of its general statutory police power to pass ordinances for public peace and good order. Hershoff v. Treasurer of Beverly, 45 N. J. L. 288; Howe v. Plainfield, 37 Id. 145; Staates v. Washington, 44 Id. 605. Without violating any constitutional principle the municipality, if authorized, may inflict punishment for such violations in addition to the punishment provided by statute for the same act, notwithstanding that the legislature has made the act a misdemeanor. Howe v. Plainfield, supra; Bridgeton v. Zellers, 100 Id. 33; 124 Atl. Rep. 520; affirmed, 101 N. J. L. 206; 127 Atl. Rep. 924. Since such violations are not in their nature indictable offenses, they may be punished in summary proceedings. State v. Rodgers, 91 N. J. L. 212; 102 Atl. Rep. 433; Caruso v. Porter, 102 N. J. L. 71; 130 Atl. Rep. 805; Katz v. Eldredge, 97 N. J. L. 123 (at p. 157); explained in Katz v. Eldredge, 98 Id. 125; 117 Atl. Rep. 841, and Lutwin v. State, 97 N. J. L. 67; 117 Atl. Rep. 164; State, Klinges v. Common Pleas, 3 N. J. Mis. R. 1084.

But before there can be an ordinance regulating intoxicating liquor there must be a statute authorizing such ordinance, and the ordinance cannot be any broader than the authority which supports it. Schlachter v. Stokes, 63 N. J. L. 138; 43 Atl. Rep. 571; State, Rossell v. Garon, 50 N. J. L. 358; 13 Atl. Rep. 26; West Jersey and Seashore Railroad v. Millville, 91 N. J. L. 572; 103 Atl. Rep. 245.

In this case the city relies on the authority given by its charter to enact ordinances to protect the peace, health and morals of the city, and on the provisions of the Home Rule act of 1917, giving municipalities power to enact ordinances to prevent vice, drunkenness and immorality, to preserve public peace and good order. It is settled, however, that such statutory powers do not in themselves give any authority to regulate or prohibit the traffic in intoxicating liquor. Schlachter v. Stokes, supra; Salerno v. Passaic, 88 N. J. L. 87; 95 Atl. Rep. 1000; affirmed, 89 N. J. L. 370; 98 Atl. Rep. 1086; see, also, West Jersey and Seashore Railroad v. Millville, 91 N. J. L. (at p. 577); 103 Atl. Rep. 245. The regulation of intoxicating liquor has always been dealt with in an exceptional way. Salerno v. Passaic, supra.

The act in force at the time of the alleged violation was the Alcoholic Beverage Control act, chapter 436, Pamph. L. 1933 (N. J. Stat. Annual 1934, § 100-312), and its amendments and supplements. This is a new and general act, necessitated by the new situation created by the repeal of the prohibition amendment and obviously designed to lay down a new and general legislative policy with respect to the regulation and control of intoxicating liquor. This act, so far as its provisions stood at the time of the alleged violation, did not give the city of Plainfield any power to pass an ordinance regulating the possession of an unlicensed still or the illegal manufacture of liquor, but, on the contrary, such acts were expressly required to be punished as misdemeanors in the state courts.

Section 37 of the act, as amended by Pamph L. 1934, ch. 85 (N. J. Stat. Annual 1934, § 100-348), on which the ordinance is based, obviously gives no authority to a municipality to punish for the possession of a still or the manufacture of illicit liquor by an unlicensed person. This section was amended in 1935, to give additional power to the municipalities, but this amendment even if it applied to the facts in this case, was not in effect at the time of appellant’s alleged offense.

Moreover, if the city did have authority to pass an ordinance such as the one which the defendant is alleged to have violated, the ordinance itself does not sustain the conviction. The ordinance is an ordinance to regulate the sale of alcoholic beverages in licensed places, and no mention is made of the possession of an unlicensed still or the illegal manufacture of liquor, except that in the penalty clause it is provided among other things that any person who shall own, possess, keep or store in said city of Plainfield any implement or paraphernalia for the manufacture, sale, distribution, bottling, rectifying, blending, treating, fortifying, mixing, processing, warehousing or transportation of alcoholic beverages “in violation of this ordinance” shall be deemed and adjudged a disorderly person and punished by a fine of not less than $50 and not more than $200, or imprisonment for not less than thirty days and not more than six months, or both such fine and imprisonment, in the discretion of the court Obviously, the penalty clause cannot impose a penalty for acts which are not mentioned in the body of the ordinance and which the ordinance was not intended to regulate and does not regulate.

The conviction in this case is not supported by the statutes nor is it supported by the ordinance, and must be set aside.


author: Oaeekey, C. C. J.

text:
    Bergen County Circuit Court.
    OVERBRIDGE REALTY CORPORATION ET AL., APPELLANTS, v. CITY OF HACKENSACK, RESPONDENT.
    Decided July 11, 1935.
    For the appellants Overbridge Eealty Corporation, Christopher W. 0. Sehmnlts, Arkay Holding Corporation, 329-331 Main Street Corporation, Main Street Hackensack Corporation, Morrison, Lloyd & Morrison (by William J. Morrison, Jr.)

    For the appellant Alice Eager, Warren Dixon, Jr.

    For the appellant Anna Marie Borg, Winne & Banta (by Horace F. Banta).

    For the appellant Fox Metropolitan Playhouses, Incorporated, Atwood G. Wolf and Charles Hershenstein (by Charles Hershenstein).

    For the appellants William A. O’Brien and Hanover Bond and Mortgage Company, Hart <& Vanderwart (by Cecil Hart).

    For the respondent, Donald M. Waesche.

   Oaeekey, C. C. J.

On March 17th, 1930, the city of Hackensack adopted an ordinance (referred to as ordinance Ho. 113) providing for the extension of Berry street, from State street easterly to Biver street—a distance of two blocks—said ordinance further providing for the acquisition of nine parcels of land (described in said ordinance) necessary therefor and for the payment of the cost thereof. These lands were acquired between July 20th, 1931, and December 2d, 1931. Section 3 of said ordinance provides “that the aforesaid improvement shall be made as a local improvement and the cost thereof shall be assessed upon the property benefited thereby in the manner required by law.” An appropriation for the prosecution of said improvement was also made under said ordinance. A further appropriation was made on April 4th, 1932.

The improvement authorized by the aforesaid ordinance having been completed, three commissioners were on April 18th, 1932, named by appropriate resolution, to make a proper assessment against the real estate that may have been benefited or increased in value by such improvement.

The assessment commissioners, after first having heard all parties who presented themselves to be heard, and having also entered upon and viewed the premises in their judgment benefited by said improvement, submitted their written report of assessment, which was accompanied by a map referred to therein, showing the lands benefited by said improvement. This report was on December 19th, 1932, adopted and confirmed, without alterations, by the governing body of the city. The cost of the improvement was reported as being in the sum of $289,772.53, of which the share of the city was $67,393.94 and the balance ($222,378.59) assessed against property owners. With but one exception, all property owners affected by said assessment, feeling aggrieved by said levy, appealed to this court from the respective assessments made against their individual property. The assessments levied against the property of Agnes M. Barkman and the Oritani Field Club for the improvement aforesaid were set aside, and subsequently, on certiorari, reduced by the Supreme Court. Barkman et al. v. City of Hackensack, 114 N. J. L. 506; 177 Atl. Rep. 663.

Prior to the opening, Berry street was a public thoroughfare, running in a southerly direction, as far as State street. State street is but one block westerly from Main street, Main street being the principal business highway of the city. Berry street, as extended, begins at State street and continues at right angles with Main street and River street. River street runs parallel with Main street one block to the east. The street next to the south thereof is Camden street and the street to the north is Pacific street.

The appellants in this court in these present proceedings are the following:

(1) William A. O’Brien, as the owner of lots 3, 3A, 3B, 4A and 4B, in block 401A, was assessed the sum of $6,805.50. This property, prior to the acquisition of lands for the opening of Berry street, consisted of a track of land already having a frontage on Main street of approximately fifty-two and thirty-five one-hundredths feet by a depth of approximately one hundred and seventy-three feet. It is now fifty-five and forty-nine one-hundredths feet south from Berry street, as extended. A one-story brick building, including stores, is erected on this appellant’s land.

(2) Overbridge Realty Corporation, as the owner of lot 4 in block 401A, was assessed the sum of $14,288.01. This property has a frontage of fifty-five and forty-nine one-hundredths feet on Main street, and with the opening of Berry street, it fronts on this latter street for a distance of one hundred seventy-six and sixty-nine one-hundredths feet.

(3) Christopher W. O. Sehmults, as the owner of lot 23 in block 401, was assessed the sum of $21,663.44. The premises affected by this assessment are on the northerly side of Berry street (as opened) having a frontage on River street (previously opened) of one hundred and three feet and a frontage on Berry street aforesaid of two hundred and seven feet. This property is directly opposite that owned by the Oritani Field Club.

(4) Hanover Bond and Mortgage Companj'-, the owner of lot 6 in block 401, was assessed the sum of $11,736.03. The premises affected by this assessment are on the north side of Berry street, directly opposite the property of the Overbridge Bealty Corporation mentioned in paragraph 2 hereinabove. The land charged with this assessment ($11,736.03) is at the northwest corner of Main street and Berry street, having a frontage on Main street of forty-six feet and one hundred seventy-eight and six-tenths feet on Berry street as now opened.

(5) Arkay Holding Corporation, as the owner of lot 7 in block 401, was assessed the sum of $6,720 on a tract of land heretofore fronting on Main street a distance of sixty-four feet and having a depth of approximately one hundred and eighty-one feet. With the opening of Berry street, this property is forty-six feet distant from said street, adjoining the property owned by the Hanover Bond and Mortgage Company aforesaid.

(6) 329-331 Main Street Corporation was assessed the sum of $6,622 as the owner o'f lot 31 in block 407. This property previously fronted on Main street for a distance of sixty feet and with the opening of Berry street, it became distant from the northerly side of Berry street sixty-six and thirty-five one-lniudredths feet.

(7) Overbridge Bealty Corporation, owner of lots 32 and 33C in block 407, was assessed the sum of $32,075.73. Before the opening of Berry street, this property fronted on Main street and after the extension of Berry street, the property became the northwest corner of Berry and Main streets, fronting on Main street sixty-six and thirty-five one-hundredths feet, and on Berry street two hundred and thirty-four and eighty-eight one-hundredths feet.

(8) Alice Eager, the owner of property at the northeast corner of Berry and State streets (lots 9 and 10, block 407), was assessed the sum of $13,312.45, the land having a frontage on State street of fifty-one and sixty-five one-hundredths feet and a frontage on Berry street of one hundred and eighty-nine and twenty-five one-hundredths feet. This property adjoins that owned by Agnes M. Barkman to the north and is west of the property owned by Overbridge Realty Corporation as mentioned in paragraph 7 herein. The Barkman property is designated as lot 11 in block 407.

(9) Pox Metropolitan Playhouse, Incorporated, as the owner of an “L” shaped plot fronting on Main street a distance of thirty-two feet (lots 6A, 7A, 8A, 34B and 33A in block 407A), was assessed the sum of $39,672.41. With the opening of Berry street, this property became distant approximately eighty-three feet from the corner of Berry and Main streets. With the extension of Berry street, the northerly boundary of this land obtained a frontage on Berry street of two hundred and one and one one-hundredths feet. This property (on Main street) adjoins that owned by the Main Street Hackensack Corporation.

(10) Overbridge Realty Corporation, as the owner of lots 6, 7 and 8B in block 407A, was assessed the sum of $11,443.58. All of these lots front on State street and with the opening of Berry street lot 8B obtained a frontage on Berry street of eighty-six and eighteen one-hundredths feet becoming the southeast corner of Berry street and State street. Lot 8B fronts on State street a distance of eleven and twenty-nine one-hundredths feet, lot 7 fronts on State street fifty-six and fifty-six one-hundredths feet, having a depth of eighty-six and forty-seven one-hundredths feet and lot 6 fronts on said street a distance of fifty feet, having a depth of eighty-six and sixty-nine one-hundredths feet.

On June 20th, 1934, an order was entered by this court substituting Anna Marie Borg, as an appellant in these proceedings, in so far as the assessment against lot 7 in block 407A is concerned, it appearing that she acquired title to said lot.

(11) The Main Street Hackensack Corporation, as the owner of property located at the southwest corner of Berry street and Main street (lots 33A and 34 in block 407A), was assessed the sum of $29,197.79. These premises have a frontage on Main street of eighty-two and eighty one-hundredths feet and with the extension of Berry street obtained a frontage thereon of one hundred and eight and forty-four one-hundredths feet. This property adjoins that of the Fox Metropolitan Playhouses, Incorporated.

The assessment against the Oritani Field Club, as the owner of lot 1, block 401A, was in the sum of $23,221.65, while the assessment against the property owned by Agnes M. Barkman (lot 11, block 407) was in the sum of $3,740. These assessments were set aside by the Supreme Court on May 28th, 1934. Oritani Field Club v. City of Hackensack, 12 N. J. Mis. R. 490; 172 Atl. Rep. 805.

The appellants herein, also Oritani Field Club, Agnes M. Barkman and one Richard E. Knapp, are all of the owners of the properties assessed under the ordinance providing for the extension of Berry street and the payment of the cost of its acquisition by assessment thereof as a local improvement on the properties benefited thereby. Knapp is the only owner who did not appeal from the assessment levied for this improvement.

Hearings in these proceedings here under consideration were conducted fox a period of eleven days, testimony taken consisting of one thousand two hundred and forty-six pages and fifty-six exhibits being introduced in evidence. Twelve witnesses testified in behalf of the appellants and respondent herein. Without commenting further on the subject, it should be noted for the attention of counsel, that it is now elementary that “who is an expert on the value of land, under our decisions, must be left very much to the discretion of the trial judge; his decision is conclusive, unless clearly shown to be erroneous in matter of law.” Ross v. Commissioners Palisades Interstate Park, 90 N. J. L. 461; 101 Atl. Rep. 60. It was not necessary for counsel to conduct so lengthy an examination in the instant case in order to ascertain the qualifications of one of the real estate experts who testified in these proceedings.

Experts, properly qualified, testified as to the benefits received bv the respective properties from the improvement aforesaid—the experts in behalf of the city endeavoring to justify tlie amount which the assessment commissioners imposed, the experts in behalf of the appellants submitting figures which in their opinion indicate the estimated value of the benefits received. The estimated value of the benefits as given by the experts in behalf of the appellants are less than that offered in behalf of the city.

One of the witnesses for the respondent estimated the value of the benefit through speculative conjecture—“increase of value through assemblage,” “all rights and expectations to get,” “possibility of utilizing the rear portion to its highest usefulness,” “Arkay to acquire lot 7,” &e. Such estimate predicated on speculative conjecture is unsound. Mere speculative benefits are not, in reality, benefits. The benefit is determined by the increase in value for the present use of the property. Kellogg v. Elizabeth, 40 N. J. L. 274, 276; Barkman v. Hackensack, 114 N. J. Law 506; 177 Atl. Rep. 663.

In disposing of the subject-matter of these appeals, this court has been aided by the several briefs submitted by counsel for the respective appellants, as well as by the brief submitted in behalf of the respondent city, through its counsel. The attention of the court has also been directed to the recent decision of the Supreme Court affecting property similarly situated. Barkman v. City of Hackensack; Oritani Field Club v. City of Hackensack, 114 N. J. L. 506; 177 Atl. Rep. 663.

From a very careful examination of all of the testimony and evidence properly admissible and submitted in the case at bar, this court is of the opinion that the assessments imposed upon the properties of the respective appellants are greatly in excess of the peculiar benefit derived from the opening and extension of Berry street. An assessment is imposed for an improvement specially beneficial to the individual property assessed and can only be justified when proportioned to such benefits. Any cost beyond that measure must be imposed on the public at large. General benefits are not assessable. The special benefit which legalizes an assessment must be a present benefit immediately accruing and represents the difference between the market value of the lands before the improvement and the market value of the lands immediately alter the improvement. Where the assess, ment levied is fair and just, having due regard to the value of the lands and real estate benefited and proportioned to the benefit peculiar to the property assessed, such an assessment when imposed, should not be disturbed.

Improvement assessments tire invalid when not imposed for and within the limits of special benefits derived from the improvement. State (Reynolds) v. Paterson, 48 N. J. L. 435; 5 Atl. Rep. 896. In order to sustain an assessment, it must affirmatively appear that the assessment is not in excess of the peculiar benefit, advantage or increase in value which the land received by reason of such improvement. Becker v. Garwood, 96 N. J. L. 327; 115 Atl. Rep. 334. The benefits must be immediately accruing, tested by the influence of the improvement on the present market value of the properties. State (New Jersey R. and T. Co.) v. Elizabeth, 37 N. J. L. 330; State (Kellogg) v. Elizabeth, 40 Id. 274; State (Morris) v. Bayonne, 53 Id. 299; In re Raymond Plaza, &c., 12 N. J. Mis. R. 303; 171 Atl. Rep. 538. ' Benefits arising from improvements which depend upon contingencies and future action of public authorities should not lie considered in estimating the assessment. It follows, therefore, that property of the appellants could be charged with a fair and just assessment only to the extent that it was benefited by the extension or opening of the new street. The assessments heretofore imposed (supra) upon the individual properties of the respective appellants was neither fair nor just and the charge made against said properties was in excess of their proportionate increase in value. The lands in question did not receive the "peculiar benefit or advantage” in the sums imposed as assessments thereon. These several assessments must be accordingly reduced to a sum representing the difference between the market value of the lands before the opening of Berry street and the market value of said respective lands immediately after said improvement.

(1) The property of William A O’Brien, a one-story brick building with stores, was assessed $6,805.50. The appellant contends that this property not being adjacent to the new street, derived no benefit from the acquisition of lands for the opening of Berry street, or from the actual improvement thereof. Witnesses called by this appellant testify that there was no increase in value due to the new street. The witnesses in behalf of the respondent claim a benefit in the sum imposed as an assessment as above. While corner lots and the land bordering the opened street are necessarily increased in value, it must also affect the value of the contiguous property within the immediate vicinity of the opened highway. While this property already had a frontage on Main street, it derived some benefit from the opening of Berry street. That benefit, so derived, was not in the sum of $6,805.50. The assessment against this property will be reduced-—the new assessment being fixed at $1,500.

(2) The property of the Overbridge Realty Corporation (vacant plot) designated as lot 4 in block 401A is on the southeast corner of Berry and Main streets and obtained “corner influence” through the opening of Berry street. Because of this benefit so received, the property, in the opinion of this court, increased in value and accordingly the assessment against this property will be awarded in the sum of $6,000 and the assessment heretofore imposed reduced to this sum.

(3) The property of Christopher W. O. Schmults is located on the northwest corner of Berry street and River street, being directly opposite the Oritani property, which is on the southeast corner of said streets aforementioned. With the opening of Berry street, this property became a corner, and by reason thereof its value was enhanced, for that the land became more desirable to purchasers and created a convenience which the owner did not otherwise have. The estimated value as assessed does, however, greatly exceed the benefit special and peculiar to this property. The assessment against this property will be allowed in the sum of $12,500.

(4) The Hanover Bond and Mortgage Company property, with the opening of Berry street became corner property, although it previously fronted on the principal thoroughfare known as Main street. Witnesses called by this appellant concede that this property was benefited by the acquisition oí the land and extension of Berry street aforesaid, but differ as to the amount thereof. This court is of the opinion that an assessment against this property in the sum of $4,500 will be both fair and just, and this assessment is accordingly decreased to said amount.

(5) The property of Arkay Holding Corporation is located on Main street and like the O’Brien property, it benefited from the extension of Berry street by reason of it being contiguous to the Hanover property bordering on the opened street. The Arkay property is but forty-six feet from the northwest corner of Berry street, while the O’Brien property is fifty-five and forty-nine one-hundredths from the southeast corner of said street. The assessment against the Arkay property will be awarded in the sum of $1,600.

(6) 329-331 Main Street Corporation premises: This property was always on the leading highway of the city (Main street) and with the opening of Berry street, it received the benefit of proximity to the northwest corner of Berry and Main streets only. The estimated value of this property, as given by the experts called in behalf of this appellant, is the same before and after the opening of the new street—in their opinion no benefit or increase in value whatsoever. "With this conclusion, this court cannot concur. An assessment in the sum of $1,200 will be imposed as a charge against this property. The assessment is accordingly fixed in this amount ($3,200).

(7) Overbridge Bealty Corporation, lots 32 and 33C in block 407: The benefit to this property from the improvement forming the subject-matter of this appeal, is frontage on Berry street—it already had a frontage to the extent of sixty-six and thirty-five one-hundredths feet on Main street. All witnesses are in accord that this property has been benefited by the improvement aforesaid, but they do not agree as to the amount. The estimated value of benefits range from $9,951 to $33,545.92. This latter amount is grossly excessive; the lower figure, inadequate. A fair and just charge is $15,000. The previous assessment will be accordingly reduced to this award.

(8) The property of Alice Eager, which has had an assessment imposed upon it in the sum of $13,312.45, has not, in the opinion of this court, increased in value to that extent. Assessment against this property will be awarded in the sum of $6,000.

(9) The Eox Metropolitan Playhouses, Incorporated, property differs in use, shape and location from the other properties in these proceedings. The theatre building occupies the entire plot purchased by it, the entrance being on Main street, approximately eighty-three feet from the southwest corner of Berry and Main streets. The Eox company entered into an agreement on November 2d, 1929, to purchase a plot of ground for the erection of a theatre at an agreed purchase price. After making this contract the Fox company was induced to substitute a similar plot adjacent to this original site beause Berry street as contemplated would have bisected the rear rectangular portion of the plot agreed to be conveyed. Accordingly an amended contract was entered into on February 17th, 1930, by which the present Fox plot, having practically similar dimensions, and with frontage on Berry street, was substituted for the original plot. The northerly boundary of this substituted plot was located upon the building line of the southerly side of Berry street as would be opened, thus making the extension of Berry street possible without bisecting the Fox company site. The substituted plot was purchased for the identical amount provided in the original contract. The substituted plot was described as land fronting on Berry street.

As hereinabove indicated, this property—prior to the opening of Berry street—already had a frontage on Main street. With the opening of Berry street, it received added frontage on Berry street, which it utilizes as an exit for its patrons. In case of fire, there might be an easier access to the theatre bj1, reason of Berry street. The wall of this theatre, on the south side of Berry street, is what is termed a large blank wall, with fire escapes and doors.

The witnesses called by the appellant admit that this property has been benefited through the opening of Berry street, but their estimated value of benefits so received is not in an amount proportionate to the benefit peculiar to this property. The figures submitted by.the witnesses for the respondent are excessive.

This court concludes that the benefits peculiar and special do not exceed $15,000 and for this amount an assessment will be awarded. The assessment will be corrected accordingly.

(10) Overbridge Eealty Corporation, lots 6, 7 and 8B, in block 407A: This property is on the' southeast corner of Berry and State streets. It already had a frontage on State street. With the opening of Berry street, this property received substantial benefits, in that it received this added frontage and readier access to the main highway (Main street) of the city. These benefits so received, are also applicable to the Eager property, which is on the northwest corner of State and Berry streets.

The assessment against this property will be reduced to $6,500 (sixty-five hundred dollars).

(11) The Main Street Hackensack Corporation property, on the southwest corner of Berry and Main streets, received a benefit by the added frontage on the newly opened Berry street. It already fronted on Main street prior to this improvement. This property became a corner and as such increased in value.

The assessment against this property will be awarded in the sum of $13,500.


text:
    JOHN ZYK, PLAINTIFF-APPELLEE, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 17, 1935
    Decided September 20, 1935.
    Before Justices Trenchard, Hehee and Peeskie.
    Por the appellant, Perkins, Drewen •& Nugent (Randolph Perkins and John Drewen, of counsel).
    Por the appellee, Morris Edelstein (Morris Perlman, of counsel).
   Pee Curiam.

The plaintiff below sued on a group disability insurance policy issued by the defendant to the employes of the Martin Dennis Company, of which plaintiff claimed to be one, under the terms of which policy he was entitled to an indemnity of $25 per week for thirteen consecutive weeks if, after being employed by the company for eleven years, he contracted sickness and was “thereby wholly and continuously disabled and prevented from performing any and every duty pertaining to his occupation or employment.”

His state of demand claimed that while so employed, “on or about December 1st, 1933,” he became sick, causing him to become physically incapacitated, and claimed such weekly indemnity for “thirteen consecutive weeks from the date of his illness.”

The judge, sitting without a jury, apparently found for the plaintiff, and the defendant appealed; but no copy of the judgment rendered, such as is essential to a review by appeal, is presented with the state of the case. We have nothing in this respect except the proceedings at the trial taken by the stenographer and those show this and only this: “Judgment reserved awaiting submission of briefs. Judgment in favor of plaintiff for amount of $325, together with costs amounting to $20.85 under date of April 16th, 1935.”

Now the rule is that an appeal will be dismissed when a certified copy of transcript of judgment record is not brought up with the state of the ease. Esler v. Camden and S. Railway Co., 71 N. J. L. 180; 58 Atl. Rep. 113; Katzin v. Jenny, 74 N. J. L. 131; 65 Atl. Rep. 192; Smith Co. v. Oathout, 75 N. J. L. 438; Calhoon v. Buhre, Ihid. 439; 67 Atl. Rep. 1023; Maccia v. Stanzionne, 84 N. J. L. 509; 87 Atl. Rep. 75; Calvin v. Ostrander Fire Brick Co., 84 N. J. L. 530; 87 Atl. Rep. 84.

It would seem, therefore, that the appeal must be dismissed, and such will be the order.

We remark, however, that in the examination of the case we have had occasion to look at the points made by the appellant which is desired considered, and this we have done without reference to the question whether such points were properly grounded and assigned. Thejr are: (1) That the trial judge erroneously held, without any competent evidence to support its finding, that the plaintiff while in the employ of Martin Dennis Company, was wholly and continuously prevented from performing any and every duty pertaining to his occupation, by reason of sickness. But there being no finding of facts by the trial judge, and no judgment before us, it is impossible for us to say, even after an examination of the evidence, that the judge erred in such holding. (2) We have looked at the several points made respecting the admission and exclusion of evidence and incline to think that there was no harmful error. (3) We have looked at the point that the trial court erroneously denied defendant’s motion at the end of the whole case for the direction of a verdict in its favor, the argument now being, apparently (although no ground for the motion was stated when it was made) that plaintiff was not wholly and continuously disabled, it being contended that the plaintiff performed his entire duties up until December 22d, 1933, but did no work thereafter because another person had taken his place, and that he did not require nor have the services of a physician until January 12th, 1934. But we incline to think that the evidence pro and con respecting such matters of fact was in such state that it is impossible for us to say that the .judge erred in denying the motion.

The appeal will be dismissed.


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    JULIUS J. NEWMARK, PROSECUTOR, v. THE CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, AND THE STATE HIGHWAY COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Argued May 9, 1935
    Decided September 21, 1935.
    Before Justices Parker, Case and Bodine.
    Por the prosecutor, Harry V. Osborne and Ervin 8. Fulop.

    Por the defendants, Pierre P. Garven and Benjamin 0. Van Tine.

   Per Curiam.

The matter comes up on two writs designated in the papers as the “original” writ and the “supplemental” writ. The first writ calls for two orders made by the civil service commission, one on November 14th, 1933, and the other made on December 19th, 1933. The second brings up an order made June 19th, 1934, which validated the withholding, as on a penalty, from the prosecutor of his salary during a part of the period following his wrongful discharge and preceding his reinstatement; and it is now conceded that the question there involved has been determined favorably to the prosecutor by the holding in Walklet v. Civil Service, 114 N. J. L. 582; 177 Atl. Rep. 894.

The essence of the November 14th, 1933, order is contained in the last two paragraphs thereof, which read as follows (the appellant therein referred to being the prosecutor, Julius J. Newmark) :

“Tt is the conclusion of the civil service commission that the appellant is clearly entitled, under the law, to the same or a comparable position in the state highway department under whatever title it may be called, carrying a compensation similar or comparable to the compensation received at the time of the termination of his services less the same percentage deductions that have been applied to other employes receiving the same or comparable salaries in the department, therefore,

It is hereby ordered, that the said Julius J. Newmark be reinstated to the same or a comparable position in the state highway department, under whatever title it may be called, carrying a compensation similar to the compensation received by him at the time of the termination of his services, less the same percentage deductions that have been applied to other employes, effective October 1st, 1933.”

The position previously held by prosecutor was that of “supervising right of way engineer” with a base salary of $5,100 per year. That position the highway commission abolished. It created a new arrangement of the work, taking certain engineering duties out of the office and putting in additional supervision of titles and appointed at the head thereof two men, who had never been in the department and who were not in the. classified civil service, one with a base salary of $5,555.55 and the other with a base salary of $4,500. Prosecutor appealed to the civil service commission and obtained the order of November 14th. The highway commission thereafter gave prosecutor the position which ho now holds, at a base salary of $4,000. Prosecutor again went to the civil service commission which thereupon made the order of December 19th, finding:

“It is the conclusion of the commission that the action of the highway department in offering Mr. Newmark the position of engineer in the real estate division, at $4,000 per annum, constitutes substantial compliance with the commission’s findings under date of 11-14-33, and that if Mr. New-mark desires to continue in the employ of the state highway department, he should report immediately for duty.”

Prosecutor does not attack the order of November 14th. He brings it up for the purpose of establishing that the later order, finding' factually a compliance therewith, is in error. The November order stands, in so far as it goes, as the law of the case. The question left to us is whether the position which the highway commission ultimately gave to prosecutor is the same, or a comparable, position as that which he held at the timé of his removal, and whether the new position carries a compensation similar to his former compensation.

As things originally were the position held by prosecutor was the key position in making contacts with owners of the lands necessary for rights of way and in fixing prices which the state, without recourse to condemnation, would pay. Prosecutor had the university degree of civil engineer and was licensed as a civil engineer, as a highway and municipal engineer and land surveyor, and as a real estate broker. Shortly after the state undertook its modern road-building system he was, on August 16th, 1917, appointed chief of survey party. By either changes in title or promotions upon civil service examination he became, successively, assistant civil engineer, assistant division engineer, survey engineer, resident engineer, office engineer and supervising right of way engineer. Prom a salary of $125 per month at his first employment he was advanced from time to time until, in 1929, he was receiving $425 per month, the compensation which, less the ten per centum statutory deduction, he was receiving on August 1st, 1933, when his services were terminated. These changes in position, title and salary, with civil service commission approval, all appear upon the records of that commission.

Did the highway commission comply with the order of November 14th, 3933, and restore prosecutor to his position of supervising right of way engineer, or give him a comparable position with similar compensation? We think not.

In the reorganization prosecutor was detached from his former duties and the two men above mentioned were appointed. The work which remained to the new appointees was essentially of a tjrpe which prosecutor had performed, for which the civil service commission had found him competent and from which it had refused to remove him. Prom being the head of the division of appraisals and negotiations, better known as the right of way division, with a force averaging eighteen draftsmen and engineers, prosecutor was transferred to the task, without assistance, of drafting maps for purposes of maintaining a record of the accomplished work, a duty formerly performed by draftsmen under his direction, and a desk for his new work was set up in the file room of the department.

Obviously prosecutor’s present position is not the same as that which he previously held, and we find that it is not a comparable position. Also, clearly, an annual salary of $4,000 is not similar to one of $5,300. The civil service commission erred in finding that the highway commission had substantially complied with the earlier order.

The orders of December 19th, 1933, and of June 19th, 1934, will be set aside.


text:
    EDWARD KELLY, PLAINTIFF-APPELLEE, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY, A BODY CORPORATE, DEFENDANT-APPELLANT.
    Submitted January term, 1935
    Decided September 30, 1935.

      Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the defendant-appellant, William F. Hanlon.

    .For the plaintiff-appellee, Theodore H. Parsons.

   Per Curiam.

This action brought under the Federal Employers’ Liability act resulted in a judgment for $18,500. The plaintiff was a bridge carpenter. It was admitted that he was engaged in interstate commerce at the time of the injury. The accident occurred near the defendant’s Atlantic Highlands freight station, which adjoins the so-called Stone Church Branch freight track. Beyond this is the main tracks and several sidings. The train involved was a regular passenger train slightly late, running on the main track at about twenty miles an hour in an easterly direction towards Atlantic Highlands. One hundred and thirty feet east of the freight station is Highland avenue, a public crossing. The passenger station is four hundred and twenty-three feet east of the freight station. A whistling board is one thousand three hundred and twenty-four feet west of Highland avenue. The accident occurred May 27th, 1932, at about nine o’clock in the morning (standard time).

The plaintiff testified that having finished work at the piers the foreman of the carpenter gang, in which He was working, told him to procure a fiat push ear and load the tools and some coal and take such articles to the work cars located some distance beyond the freight station on the spur track. The loaded car was pushed from the Atlantic Highlands pier down the tracks to a point about one hundred. and' fifty feet past the freight station on the spun, where further progress was blocked by an oil car. Beyond and west of the oil car stood a number of other cars and the work cars. The gang took their tools and equipment and carried them to the work cars. Plaintiff started to procure a wheelbarrow to move the coal, and while crossing the main tracks at the freight station to procure the wheelbarrow, was struck by a train. He testified to making observation before attempting to cross and to seeing nothing and hearing neither bell nor whistle. There was corroboration as to the failure of the train engineer to give the customary warning for a crossing. The engine crew, however, testified that the whistle and bell were rung at the appropriate time, as required by rule and signal boards. Riding in the cab was a road foreman, who saw the plaintiff walk down the track and turn to cross in front of the oncoming train. Observing this, he sounded an alarm whistle which the plaintiff ignored. He then immediately applied the emergency brakes.

The plaintiff rested his right of recovery upon proof of a local custom to give warning signals while the train was proceeding “through the yard.” Although the railroad business is not usually conducted by the blowing of whistles and ringing of bells, when there is no reason to expect that persons will be passing over main tracks (Aerkfetz v. Humphreys, 145 U. S. 418), still the evidence as to the local yard custom, though not very convincing, we think made the question of negligence one for the jury.

The failure to nonsuit or direct a verdict was not error. Where proofs are conflicting, a jury question is presented. There was testimony that a bell was usually rung in addition to the crossing bell while trains were going through the Atlantic Highlands 3rard, and that at the time of the accident no such warnings were given. The proofs were such that the jury could find the existence of such a custom and a breach of a duty arising therefrom the proximate cause of plaintiff’s injuries.

The court’s charge, as we read it in its entirety, properly presented to the jury the issues raised by the pleadings and proofs. It made it perfectly clear that the finding of negligence must be limited to the situation existing at the time and place of the injury. It could not be understood as permitting a recovery except for the negligence complained of, if the jury should find it supported by the weight of credible testimony.

The judgment, therefore, will be affirmed.


author: Bodine, J.

text:
    JOSEPHINE M. SCHWEINLER, EXECUTRIX OF THE WILL OF CHARLES SCHWEINLER, DECEASED, PROSECUTRIX, v. J. H. THAYER-MARTIN, STATE TAX COMMISSIONER, DEFENDANT. IN THE MATTER OF THE TRANSFER INHERITANCE TAX IN THE ESTATE OF CHARLES SCHWEINLER, DECEASED.
    Argued May 10, 1935
    Decided September 30, 1935.
    Before Justices Parker, Case and Bodine.
    Por the prosecutrix, Merritt Lane.

    Por the defendants, David T. Wilentz and William A. Moore.

   Bodine, J.

The writ brings up a decree of the Prerogative Court affirming a transfer inheritance tax assessed against the estate of Charles Schweinler in the sum of $155,148.64. The controversy hinges upon the proper construction of the phrase “in contemplation of death” as used in the Inheritance Tax law (Pamph. L. 1909, ch. 228; 4 Comp. Stat., p. 5301, as amended; Cum. Supp. Comp. Stat. 1930, p. 1829, § 208-531), and the application of that language to the facts of the case. The statute lays a tax upon transfer made in contemplation of the death of the grantor.

The tax was assessed against certain gi fts made inter vivos, as made in contemplation of and intended to take effect at death. The Prerogative Court on appeal found that the transfer was not intended to take effect in possession and enjoyment at the death of the donor, but was made in contemplation of death and was therefore taxable.

The pertinent facts appearing in the record and in the able opinion of Vice-Ordinary Buchanan are as follows: “The gift in question was made when the donor was almost seventy-three years of age, and he lived only one year thereafter. The gift was made to his wife and his four children (the natural recipients of his estate at his death) in equal shares; it consisted of practically the entire outstanding stock in the corporation bearing his name, organized and built up by him, and which (until his gift) had been solely owned by him for some twenty years. It amounted in the aggregate to over $3,000,000, and constituted (as a practical matter) his entire estate. His remaining assets were equalled by his debts. At his death, a year later, his estate was insolvent; his assets being about $300,000 and his debts and funeral expenses over $325,000 as found by the commissioner—$416,000 as claimed by appellant. A year and a half before the gift, he had made his will,-by which he left his entire estate to his wife, or in the event of her prior decease, equally among the children. It does not appear that he had made any will prior to that time. January 1st, 1925 (five months before the making of the will) he transferred from himself to the corporation over $1,000,000 in securities, which were in nowise needed by the corporation. (It is true that corresponding indebtedness on the books of the corporation, from himself to the corporation was credited with this amount, but this indebtedness was merely nominal. Eemembering that he was the sole owner of the company, it is obvious that the withdrawals thus carried on the books as debts were substantially dividends—earnings which he had withdrawn and used for himself.) Following the gift, although he retained only one share of stock, he continued as president of the company; continued to draw his previous salary of $30,000 a year; continued to draw at will from the company’s fund for his own private purposes, just as before. (His withdrawals for the twelve months preceding his death totaled over $137,000.) He continued to attend at the company’s place of business every day; There was no difference’ in his control and management of the business- after the gift of the stock from what it was before. He negotiated and determined large transactions without consulting anyone else.”

It also appears that decedent suffered for some years past from arterio sclerosis. He was the dominating person in the corporation before and after the transfer. While apparently out of control he remained in active charge thereof. He obviously made the transfer conscious of his impending demise and to' evade the payment by his estate of transfer taxes. Although he exercised control he deprived himself of the means so to do without resort to law, if he should be opposed. He gave the natural objects of his bounty control of practically his entire property, hoping that they would not have to pay transfer taxes, as he knew they would be obliged to do if the transfer occurred by reason of his death. Such a transfer was clearly made in contemplation of death and was taxable.

The motive for the transfer appearing from all the facts and circumstances proved the ruling was proper. United States v. Wells, 283 U. S. 102. The mere circumstance that the decedent at the time he made the transfer appeared to be a well man to some of his friends cannot overcome the fact that by reason of his age and state of health he must have known that he was close to his end and chose this method of transferring his estate to evade, if possible, taxes imposed upon a transfer by death.

The conclusion of the vice-ordinary being abundantly supported by the proofs we have examined, it is unnecessary to review matters unnecessary to a decision of the case.

The writ will be dismissed, with costs.


text:
    FRANK MURSKY, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ALFRED MURSKY, DECEASED, PLAINTIFF-APPELLEE, v. MORTON S. BRODY, DEFENDANT-APPELLANT.
    Argued May 9, 1935
    Decided August 19, 1935.
    Before Brogan, Cujee Justice, and Justices Lt.oyd and Donges.
    For the plaintiff-appellee, George L. Burton.

    For the defendant-appellant, Green & Green (Harry Green, of counsel).
   Per Curiam.

This appeal is from a judgment in a death action recovered in the Middlesex County Court of Common Pleas. The plaintiff’s intestate, a young man, age twenty-two, accompanied by Walter Mendoker, eighteen years of age, was walking along the state highway route 28, between Oldbridge and South Biver, New Jersey, at one o’clock in the morning following Labor Day in 1934, when the defendant’s automobile struck and killed him. The testimony shows that the roadway was not illuminated; that weather conditions were unfavorable, there being a certain amount of fog and light rain. The boys were walking on the right side of the roadway, in the same direction as the traffic on that side of the highway. Mendoker, the companion of the deceased, testified that he was on the decedent’s right, walking partly on the dirt and partly on the tar shoulder of the road, while the deceased was walking on the concrete at the right-hand side. In that area the highway is a three-lane road, each ten or eleven feet in width.

The appellant charges that the court erred in denying defendant’s motion for nonsuit, on the ground that there was no evidence of negligence on the part of the defendant, and, further, that it was error to deny the motion for nonsuit on the ground that the intestate was guilty of contributory negligence as a matter of law.

In passing upon motions for nonsuit, the facts in the case, under our decisions, must be considered in the light most favorable to the plaintiff, together with all the legitimate inferences that the plaintiff’s testimony will support. Under that testimony, the jury was privileged to find that there was good visibility for a distance of one hundred and fifty to two hundred feet; that the defendant’s car was being driven at a speed of between forty and fifty miles an hour; that no warning was given of the approach of the automobile by sounding a horn; that there were no other automobiles upon the highway at that time in this area; that the highway was ample in width and nothing prevented the defendant from observing the deceased in time to avoid striking him. We think that the motion for nonsuit, therefore, on the ground that the operation of the automobile by the defendant was free from negligence, was a question for the jury and not for the court.

The other ground upon which nonsuit was urged was based on the proposition that the decedent, as a matter of law, was guilty of contributory negligence, which was the proximate cause of his death. This question, under somewhat similar circumstances, was decided adversely to the appellant in the case of Kovacs v. Ford, 108 N. J. L. 379; 158 Atl. Rep. 473, and Klein v. Frank, 109 N. J. L. 221; 160 Atl. Rep. 411, and lately in the case of Hamilton, Administratrix, &c., v. Althouse, 115 N. J. L. 248; 178 Atl. Rep. 792. (See, also, the earlier case of Baker v. Fogg & Hires Co., 95 N. J. L. 230, 232; 112 Atl. Rep. 406.

It is true that where there are no sidewalks, pedestrians are prohibited from walking on the right-hand side of the roadway, but are enjoined to walk on the left side facing approaching vehicular traffic. Pamph. L. 1930, ch. 230; Cum. Supp. Comp. Stat. 1930, p. 1541, § 179-715R(503). The violation of the statute, however, is not per se negligence, nor is it necessarily a contributing cause of the happening. Baker v. Fogg & Hires Co., supra; see, also, Belperche v. Erie Railroad, 111 N. J. L. 81; 166 Atl. Rep. 463. The failure on the part of the decedent to obey the statutory provision is, under our cases, a circumstance from which negligence majr be inferred, but nevertheless, the authorities just mentioned hold that whether or not such conduct on the part of the plaintiff is such negligence as contributed proximately to the harm complained of, is a matter for the jury’s determination rather than the court’s. This being so, the motion for the nonsuit urged on the ground of the contributory negligence of the; decedent was properly denied.

The evidence of the defendant was that accompanying him in the car were his two children, his wife, and two relatives, man and wife; that at the time of the happening the weather was bad, there being rain and much fog; that the visibility was poor; that he was, to use his own language, “hugging the white line,” meaning the line on his left; that his lights were on and that he didn’t see the boys walking at the side of the road, that he stopped his car within a car length; that he couldn’t see more than fifty feet ahead and that he could not see the entire lane in which his automobile was traveling. Contrasting this state of testimony with the testimony mentioned above, and the added testimony adduced for the plaintiff, that the impact threw the body of the decedent thirty-five feet through the air; that the force of the impact was sufficient to lift the plaintiff’s intestate “out of his shoes,” which flew through the air, and that the defendant’s car after the collision, proceeded a distance of eighty-seven feet from the place where the decedent’s body lay, or a distance of over one hundred and twenty feet from the place of the collision, it is manifest that these issues as to negligence were properly left for the jury and that the motion for a directed verdict for the defendant was properly denied. .

. The next ground for reversal charges that the court erred in permitting the witness, Edwin Snediker, to testify as- an expert actuary and as to the life expectancy of the deceased from life expectancy tables. Erom the testimony, it is clear that appellant objected to the testimony on the-ground that the witness was produced as an expert. It -is clear that the witness was not called as an expert, as the trial court pointed out, but rather, was he called to produce a recognized table showing the expectancy of life of .a man of twenty-two years.

The appellant further argues that the court erred in permitting the witnesses, Latschar and Montrey, to answer a question as to what was the distance between the spot where the body of the deceased lay and the place where the defendant’s car was stopped. It is noted that the objection of appellant’s counsel was merely to the form of the question, not to its materiality or relevancy. As to the question directed to Latschar, it should be noted that there is no ground given for the objection. Counsel did not object on the ground that the question was either immaterial, irrelevant and incompetent. Consequently, it is not a good ground for appeal.

The judgment will be affirmed.