text:
    MAXIM MOTOR COMPANY, RELATOR, v. BOROUGH OF PALISADES PARK ET AL., RESPONDENTS.
    Decided February 19, 1929.
    Eor the relator, Wright, Vander Burgh & McCarthy, by LeRoy Vander Burgh.

    Eor the respondents, Pitney, Hardin & Skinner, by B. 0. Stanley, Jr.

    Before Mr. Justice Parker, sitting alone under the statute.
   The rule to show cause was not handed to me with the depositions but, as I recollect it, in a general way was aimed at requiring the borough to enter into a contract with the relators for the purchase of a fire engine for the sum of $12,500, pursuant to an alleged resolution claimed-to have been passed in July, 1928, and approved by the mayor as required by the statute.

For the respondents it is urged, in the first place, that the resolution never was approved by the mayor but, on the contrary, was vetoed by him, and this is one of the issues in the ease. Then it is further urged for the relators that, even assuming that the mayor did veto the resolution, the council voted to override that veto; and the validity of such alleged action is attacked by the respondents, first, on the ground that the motion to override the veto was adjourned several times and finally dropped out of sight so that it died a natural death; and, secondly, on the ground that oven if continued by proper adjournments, the vote to override the veto was a vote of three to two in the council, and that the situation required a vote of a majority of the whole council, namely, four votes, which were never cast. While this is not dispositive of the case, I may say at this time that I consider the case of Lombardo v. Borough of Lodi, 7 N. J. Mis. R. 72, as controlling on me at this time.

The really important question in the case is whether the resolution ever legally became effective. The minutes of July 2d, 1928, show the alleged resolution there entered in full; and bearing the signature of the mayor, admittedly his, and the attestation of the borough clerk. But, to my mind, this is fully explained away by the proven facts that the original resolution as offered was on a separate piece of paper, as is usual in such cases; that it was handed to the mayor by the borough clerk on the last day of the five days allowed by law, namely, July 7th; and that under date of July 12th the mayor returned it without his signature, and with a somewhat lengthy communication declining to approve it. This veto message from the mayor is spread in full upon the minutes of July 16th. The original paper on which the resolution was written was offered in evidence and shows no signature either of the mayor or of the borough clerk; and the signature of the mayor to the copy of the resolution as entered on the minutes is fully explained by the testimony of the borough clerk, which there is no reason to doubt, and which shows that the copy itself was not written into the minutes at all until sometime in August, a month or so after the meeting, and that sometime after September 4th, there was a sort of roundup of the action of the preceding two months, the mayor sat down and signed everything which seemed to require his signature, including the copy of the resolution as then appearing in the minutes of July 2d and which, by some oversight, he signed, although he had previously vetoed that very resolution, and the minutes plainly show it. I think it needs very little argument to show that a resolution of this kind for the appropriation of- money and which goes through very much the same procedure as an ordinance is normally a document complete in itself, written out before its introduction or at the time of its introduction, not in the minutes but alone, and that the paper, like a legislative bill or an ordinance, after favorable action by the legislative body, goes to the executive for his approval or disapproval. This is the plain implication of such cases as State v. Newark, 25 N. J. L. 399 (at p. 406); Boonton v. Logan, 86 Id. 486; Padavano v. Fagan, 66 Id. 167; Outwater v. Carlstadt, 66 Id. 510 (at p. 514). I do not undertake to say that the resolution may not be written in the minute book in the first instance and be handled in that form for presentation to the mayor and action by him; but I do undertake to say that where, as in this case, the original resolution was written in the normal way on a sheet of paper, transferred to the mayor and, as shown by the minutes, returned by him without his approval, the signature of the mayor on or after the 4th of September to the copy entered in the minute book has no legislative value. It therefore follows that no such resolution as relied on by the relators was ever lawfully enacted in the first instance.

The question remains as to whether the resolution was passed over the mayor’s veto. On this point, a very cursory examination of the minutes shows that after its disapproval on July 16th, there was considerable talk back and forth in the council about the matter, that there may have been one or two adjournments, in fact, there was a definite adjournment on August 13th until August 20th, at which latter meeting action on the matter was indefinitely postponed. There were later adjournments, and there was discussion of the question whether a fire truck made by another concern would not be better, and finally it was taken up and at the meeting of December 17th, after one councilman had resigned, the council undertook to pass it over the veto by a vote of three to two. I think this action was futile. The veto was dated July the 12th, was read at the meeting of the 16th, and it was ordered that the letter be spread on the minutes and be given full consideration at a meeting to be held on August 6th. According to the testimony of the borough clerk, the meeting of August 6th was held and no action whatever was taken on the veto. Now, section 27 of the Borough act provides that, in case the mayor returns an ordinance or resolution with his objections in writing, “the council shall at their next meeting cause the objections to be entered at length on their minutes and proceed to reconsider the same, and if two-thirds of the councilmen shall at said meeting, or at any subsequent meeting to which they shall postpone its reconsideration, vote to pass the same over said veto, it shall take effect.” In my judgment, the council lost jurisdiction by failing to take some further action by way of adjournment at the meeting of August the 6th.

But if 1 were doubtful on these points, still a writ of mandamuus should not be awarded. It appears that there is at least doubt as to the status of this resolution; and it further appears that very recently the borough has undertaken to make a definite contract with a rival concern which calls for the purchase of a fire truck and the expenditure of $13,000 for the same. It is suggested that this contract is invalid; but that question is not before me at this time and cannot be considered here; all that I can consider is the testimony that there is in existence a written paper purporting to be the contract of the borough with a rival concern, and which should, for all I know, be perfectly valid. As was said in McCormick v. New Brunswick, 89 N. J. L. 117, cited by counsel on the argument, mandamus will not ordinarily be awarded when such award will create disorder or confusion or injuriously affect the rights of third persons. This case was taken to the Court of Errors and Appeals and remained on the calendar of that court for many years, but was never argued, and counsel for the relator therein has recently died. It stands as authoritative for present purposes and, I may ■say, has more than once been favorably cited.

I conclude that the rule to show cause should be discharged, but without costs.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    JAMES E. DESMOND ET AL., PROSECUTORS, v. THE CITY COUNCIL OF THE CITY OF ELIZABETH ET AL., DEFENDANTS.
    Argued October term, 1928
    Decided January 19, 1929.
    Before Justices Mintubn, Black and Campbell.
    Eor the prosecutors, James C. Connolly.

    Eor the defendants, Edward Nugent.

   Pee Cueiam.

A rule to show cause was allowed in this case, why a writ of certiorari should not be allowed to review the legality of an ordinance of the city council authorizing the issuance of $50,000 playground bonds of the city of Elizabeth, adopted June 5th, 1928, and all resolutions and proceedings relating thereto; providing for the erection and construction by the city council of the city of a natatorium in the city and to he paid for from the fund created from the sale of said bonds.

Our examination of the testimony sent up with the rule and a reading of the full and satisfactory briefs submitted lead us to the conclusion that the points urged by the prosecutors are not tenable. The rule to show cause should be discharged. The rule is therefore discharged.


author: Per Curiam.

text:
    ADAM WILLHART, PLAINTIFF, v. MORTIMER FORT, DEFENDANT.
    Decided February 21, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the rule, George L. Record.

    Contra, John ~W. Palmer.

   Per Curiam.

This is an automobile accident case. The plaintiff was traveling south through Washington street, Newark, on his way -to Elizabeth, at about ten o’clock in the evening of June loth, 1926. It was a rainy night. He testified that when he reached Clinton avenue he observed approaching from his left another car, going west on that avenue, and which was then about five hundred feet away from the intersection; that when he got about half-way across Clinton avenue he was run into by that car, which was owned by the defendant and was being driven by him. The defense was that the accident was the result of the negligence of the plaintiff and not of the defendant.

The trial resulted in a verdict in favor of the plaintiff, the jury awarding him $4,500. The defendant thereupon applied for and received a rule to show cause why the verdict should not be set aside, upon the ground that it was against the weight of the evidence upon the question of negligence, and that it was excessive.

The only question argued before us is the alleged excessiveness of the verdict. The plaintiff was the proprietor of an automobile garage. His testimony was that for a period of three weeks after the accident he was unable to do any work at all; that after the expiration of this period he was and still is unable to do any of the heavy work which his business requires; that, for this reason, he was compelled to lose a good many customers, causing a large falling off of his business and of the earnings resulting therefrom. Dr. Brothers, who was a member of the medical staff of St. Barnabas Hospital, in the city of Newark, testifies that, from his personal examination of the plaintiff, including an inspection of X-ray plates, he found that the plaintiff had a dislocation fracture at the outer end of the right collar-bone, which destroyed to some extent the muscular power which would naturally be in his right hand; in other words, that it partly destroyed his grip; that there was an injury to the left elbow, which caused a slipping of the tendons underneath; that there was some injury to the left tibia, and that there was also soreness of the left ribs and muscles and of parts of the abdomen directly thereunder. He further testified that these injuries, in his opinion, were permanent. The jury evidently accepted the doctor’s testimony as an accurate description of thé injuries received by the plaintiff as the result of this collision. This they had a right to do, and, having done so, we cannot say that the verdict, which was awarded as compensation for those injuries and which approximately amounted to $4,000 (the excess being compensation for damage done to the plaintiff’s car and his doctor’s bill), is excessive.'

The rule to show cause will be discharged.


author: Peb Cukiam.

text:
    MARTHA LAMBERT, BY NEXT FRIEND, AND LOUIS LAMBERT, PLAINTIFFS-RESPONDENTS, v. TRENTON AND MERCER TRACTION CORPORATION, DEFENDANT-APPELLANT.
    Argued January 18, 1929
    Decided February 28, 1929.
    Before Justices Mintuex, Black and Campbell.
    For the appellant, Edward L. Katzenbach.

    For the respondents, Martin P. Devlin. •

   Peb Cukiam.

There are two grounds of appeal presented and argued—•

1. That the trial court erred in refusing to nonsuit, and

2. That the trial court erred in refusing to direct a verdict in favor of the defendant below.

We are of the opinion that there was no error in either ruling of the trial court.

At the time the motion for nonsuit was made the proofs seem to have been that a trolley ear of the appellant, operated by its motorman Patrick McHugh, on March 18th, 1922, was proceeding along North Clinton avenue toward the city of Trenton; that the car stopped at Olden avenue and then proceeded on its way and shortly after came to a sudden stop; the child, Martha Lambert, was found under the righthand forward end of the car; as the car was brought to a stop the motorman is said to have exclaimed, “Oh, my God, what have I done!” The girl had evidently accompanied her brother upon an errand that took them to the farther or left side of North Clinton avenue as measured by the direction in which the trolley car was proceeding. A passenger on the car testified that she saw the boy as he left, or just after he left, the curb on the lefthand side, running toward the right-hand side of the street. There was no testimony in the plaintiff-respondent’s case respecting the child. Martha, except that she was found under the car when it was suddenly stopped. Her left arm was so injured that it was necessary to amputate it at the shoulder.

Upon the defendant’s case the motorman testified that he saw the girl about ten or twelve feet ahead of his car, running toward his car, and saw her just as she was entering on the outbound track—that being the track to his left—that immediately upon seeing the child he threw his power into reverse and applied the emergency brake.

The situation thus developed presents two well-settled principles, so firmly settled that neither requires any citation of authorities.

The first is that if a motion to nonsuit is refused, and the testimony at such time presents no proofs upon which the plaintiff is entitled to recover, and such facts so lacking are subsequent^ supplied, such refusal to nonsuit is not reversible error.

The second is that in a case of this character if there are facts and circumstances from which negligence may be drawn and inferred and upon which the conclusions to be drawn by reasonable persons may differ, then a case is presented for a jury to pass upon and not the trial judge.

Here such a situation exists, we think. At least two factual questions are presented—first, in the exercise of reasonable care, should the motorman, under the. circumstances, have observed the child, Martha, bfore she reached the position in which he says he first saw her, and if so, then by the exercise of reasonable care, could he have brought his car under such control or stopped it so that she would not have been injured; and, second, assuming that, by the exercise of reasonable care, be would not have observed the child before he says he did, then under the circumstances did he use such reasonable care as should have been used to avoid injuring her?

Whether or not the proofs are of such weight, and so convincing as would warrant the findings as reflected by the verdicts is beside the question. The sole question is: At the time the proofs were closed was there any evidence upon the question of negligence to go to the jury? Unquestionably there was, and that being so any error in refusing to nonsuit was cured and it was not error to submit the cause to the jury, as was done.

The judgments under review are therefore affirmed, with costs.


author: Pee Cubiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HARRY RUSSAKOW, PLAINTIFF IN ERROR.
    Argued January term, 1929
    Decided March 5, 1929.
    Before Justices Pariceb, Minturn and Campbell.
    Eor the plaintiff in error, Palmer £ Powell.

    For the state, George M. Hillman.

   Pee Cubiam.

The Burlington county grand jury indicted the defendant under two indictments, one for unlawful possesssion of utensils to be used in the manufacture of liquor, and another for unlawfully transporting and unlawfully possessing liquor.

The record shows that on May 12th, 1927, the defendant was arraigned and entered a plea of not guilty to both counts. May 25th, 1927, the record 'shows “the prisoner, on being placed at the bar and being charged, retracts his former plea of not guilty entered heretofore, and entered a plea of non vult thereto; thereupon the court continued the case to June 2d, 1927, and ordered indictments for possession of utensils, &c., nolle prossed.”

June 9th, 1927, the record states, “on motion of the prosecutor of the pleas, the court ordered the records of this indictment amended, thereby placing said indictment in full force and effect, and continued the case. On the same day the court ordered the plea of non vult withdrawn, and the former plea of not guilty entered, and on that state of the record on June 28th, 1927, the defendant was tried and convicted on both indictments and was fined $500 on each.

On May 25th the defendant’s counsel endeavored to obtain a concession for entering a plea of non vult; the prosecutor states that in the ensuing discussion he offered to withdraw the count as to possession of liquor in one indictment only, as the limit of the state’s concession. The memorandum taken by the court at the time 'shows that the defendant pleaded to both indictments, and was tried upon that theory.

The case is here on a strict writ of error. The defendant excepted to proceeding to trial on the indictment claimed to have been nolle prossed, and to the court charging the jury on that indictment.

The defendant states in his brief that the question at issue is the right of- the court to reinstate an indictment, which had been nolle prossed.

We think there is no doubt as to the right of the court to correct an error in its records, and to proceed with the trial upon the record thus corrected. Fraley v. Feather, 46 N. J. L. 429; 17 Am. & Eng. Encycl. 813, &c.

The judgment of conviction will therefore be affirmed.


author: Dungan, J.

text:
    Essex County Circuit Court.
    NORMAN SLOAN AND MARTIN ROSE, PLAINTIFFS, v. GEORGE E. POOR AND COLUMBIA CASUALTY COMPANY, A CORPORATION, DEFENDANTS.
    Eor the plaintiffs, E. A. & IP. A. Schilling.

    Eor the defendants, Fleming & Handford.

   Dungan, J.

The facts as they appeared in the argument are that George E. Poor, one of the defendants, was a tenant of Norman Sloan, one of the plaintiffs. Sloan through Martin Eose, his bailiff, the other plaintiff distrained certain furniture of Poor for $210 being for three months arrears of rent due on April 1st, 1927. Poor thereupon instituted an action in replevin and gave a bond to the sheriff with Columbia Casualty Company as surety in the sum of $2,000 conditioned for the return of the furniture, should a return thereof be awarded. Poor was nonsuited and the bond assigned by the sheriff to the plaintiffs and this action brought by the plaintiffs to recover upon the replevin bond. The defendant George E. Poor was not found by the sheriff and summons and complaint were served only upon the Columbia Casualty Company. An affidavit of merits being required and no such affidavit of merits being filed a rule for final judgment was filed in the Essex County Circuit Court on October 25th, 1928, for the-amount of-the bond, $2,000 and costs. On this judgment a writ of execution was issued. Motion is now made on behalf of the Columbia Casualty Company to stay said execution and to vacate the judgment final and to enter an interlocutory judgment, and that a jury from the general panel be drawn to assess the damages of the plaintiffs.

It will be observed from the above statement of facts that the original debt due from Poor to Sloan was $210, while it is insisted on behalf of the plaintiff Sloan that he is entitled to enforce against the defendant Columbia Casualty Company his judgment for $2,000; a situation so manifestly unjust that it can hardly be expected that the court will permit him to collect $2,000 for a debt of $210.

The situation in this case is different from one in which the plaintiff, in the event of a judgment in his favor, would have been entitled to the permanent possession of the goods. The right of possession of the plaintiff here would, at best, have been only a qualified one. His right to their possession was only for the purpose of realizing from them the amount of the debt due to him for rent. If, upon service of the writ requiring their return, they had been delivered to him, he could not have retained them but would have been obliged to sell them to realize the sum of $210, the rent due with interest and costs, &c. In place of the goods he has the bond, and I can see no reason why he is entitled to recover from the surety any more than he could have recovered if the goods had been returned to him.

The order of the court therefore is that the final judgment be vacated, that interlocutory judgment for the penalty of the bond be entered, or, if already entered be permmitted to stand, and that a jury be drawn from the general panel to assess the damages of the plaintiffs in accordance with law and the practice of this court.


author: Smith, J.

text:
    Essex County Circuit Court.
    SAMUEL COHEN & SON, A CORPORATION, CLAIMANT, PLAINTIFF, v. TUDOR APARTMENTS, INCORPORATED, A CORPORATION, ET AL., DEFENDANTS.
    For the plaintiff, Feder & Einzler.

    For the defendant Fidelity Union Title and Mortgage Guaranty Company, Hood, Laferty & Campbell.

   Smith, J.

This application is made to amend the lien claim by adding Fidelity Union Title and Mortgage Guaranty Company, mortgagee, as a party thereto. In the suit instituted that company is made a defendant as mortgagee, and its lien by way of mortgage is sought to be held subject and subsequent to the lien claimant’s claim.

If I felt it necessary in order to sustain the plaintiff’s case against the 'mortgagee that it should be made a party to the lien claim, I would grant this motion, even though there is some question as to the right to do so under the decision of American Brick Co. v. Drinkhouse, 59 N. J. L. 462, because it would at least give an opportunity to have the question passed upon by the upper court, but from a reading of section 16 of the Mechanics’ Lien act, it does not seem necessary to make the mortgagee a party to the lien claim. It is sufficient that summons issued against it and it be made a party to the suit on the lien claim as required by section 23 of the act.

On this ground, therefore, the motion will be denied.


author: Porter, J.

text:
    Passaic County Circuit Court.
    ABRAHAM APPEL, CLAIMANT, PLAINTIFF, v. PETER FLEUCHAUS, OWNER AND BUILDER, ET AL., DEFENDANTS.
    For the plaintiff, Feder & Rinzler.

    For the defendants, Samuel Rosenfeld.

   Porter, J.

This is a suit on mechanics’ lien and was referred to Louis A. Cowley, referee, by order dated December 1st, 1937. The master reported under date of January 35th, 1938, and his report duly confirmed by order of February 6th, 1938. Thereafter an application was made to set aside the judgment so entered on the ground that the defendant had not had notice of the hearing before the referee and had not appeared -at hearing, and order was entered, dated April 3d, 1938, that the matter be opened so that the defendant could appear before the master and submit proofs and testimony and to cross-examine witnesses of the plaintiff.

Further hearing was had and report of the referee was filed, dated October 17th, 1938, which is now sought to be confirmed by the plaintiff, to which objection is made by the defendant on various grounds.

First, it is contended that no notice was given by the plaintiff of the filing of the r'eport. There was a notice of some sort served and a hearing had and exceptions filed. I think that notice was sufficient to comply with the terms of the rule.

Second, that the referee had no jurisdiction because he failed to take an oath to faithfully and fairly hear and examine the cause, and so forth. The defendant cannot now be heard to complain in this regard, because he submitted himself to the jurisdiction and participated in the hearing, nor was the question raised when the matter was before the court after the first referee’s report. Not having participated in that, the matter should then have been raised if the defendant wished relief on that ground.

The other grounds raised, three, four, five and six, are without merit. Three and four relate to questions of fact, which are solely within the province of the referee and not of the court.

Five and six relate to the referee’s permitting the plaintiff to examine witnesses in the absence of the defendant or his counsel and refusing to later permit such witnesses to be recalled. Those matters were within the discretion of the referee and they do not justify the withholding of confirmation of the report. Especially is this true when it is realized from the proofs that there were extensive hearings and a number of witnesses examined, and that the master had ample opportunity, because of the various hearings held, to hear all of the testimony and to correctly arrive at the facts in controversy.

An order will be made confirming the report.


text:
    Passaic County Circuit Court.
    ABRAHAM APPEL, CLAIMANT, PLAINTIFF, v. PETER FLEUCHAUS, OWNER AND BUILDER, ET AL., DEFENDANTS.
    For the plaintiff, Feder & Rinzler.

    For the defendants, Samuel Rosenfeld.

   Porter, J.

This is an application on behalf of the defendant for a jury trial.

The action is on a mechanics’ lien. It was duly referred by the court to a referee to take testimony and report. Report was made and confirmed, and then on application by defendant the matter was opened so that the defendant might, submit certain proof before the referee. Further hearings were had and a new report by the referee madef to which objections were made by defendant and brief filed and arguments heard thereon.

On November 28th, 1928, an opinion was filed by this court confirming the report and reviewing the facts and findings.

The defendant now, at this late day, applies for a trial by jury. The .original order of reference was dated December 1st, 1927. No reservation of a jury trial was made by either party at that time. Under date of June 9th, 1928, such a reservation was filed on behalf of the plaintiff, and on December 3d, 1928, after the court’s decision above mentioned, a reservation on behalf of the defendant was filed. Clearly both said reservations were out of time.

It also appears that in two orders of the court prepared on behalf of the defendant, a reservation is attempted to be made for a trial by jury for the defendant. The first order is dated March 5th, 1928, and the second April 3d, 1928.

They were an order to show cause and an order opening the judgment, so that the defendant might present some testimony before the referee, and were given for no other purpose. The clause in such orders, reserving the right to trial by jury, were not noticed by the court, nor was its attention called to same, and they were quite evidently put in by the attorney for the defendant in an attempt to cure his omission to file reservations in time. The orders can obviously have no such effect. It is to be noted that both orders bear dates after the report of the referee adverse to the claims of the defendants.

But the defendant does not rely on those orders but rather on his assertion that he orally objected to the court to the reference when same was first applied for, and did at that time orally reserve his right to trial by jury. There having been no record or minute to that effect, the application is that such a minute should now be made nunc pro tunc. Authority for this proposition is cited as Harrington v. United States Express Co., 87 N. J. L. 154.

That case is not in point, because there it appeared that through inadvertence the minutes of the court omitted reference to a reservation which had been made. In the case at bar, assuming that counsel is accurate in his recollection that an oral reservation was made by him, still there was an utter neglect on his part to see that a minute was made of it and not an omission through inadvertence. Most of the many arguments of counsel in this matter were made to the court in chambers, without the presence of the clerk and not in open court. Thus making all the more necessary care on the part of counsel to orderly and accurate practice. It seems to the court that no reservation of a trial by jury, either orally or in writing, was filed or mentioned, until after the referee’s report was filed in favor of the plaintiff. The court has no recollection of any oral reservation, and had such been made, would doubtless have instructed counsel to file same in writing, according to the statute and practice.

Counsel has exhausted every means to secure relief for the defendant, and when all else fails, advances, for the first time, the argument of an oral reservation made over a year previously. It seems a trifle late to do so, and is asking much to expect an amendment to the court’s minutes on an attorney’s recollection of an oral statement made so long a period before.

The application is denied.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    WILLIAM WILLIAMS, PETITIONER, v. YELLOW TAXI CAB COMPANY, RESPONDENT.
   A claim petition having been regularly filed in the above-entitled cause wherein it is alleged that petitioner is suffering from an increased disability, and it appearing from the inspection of the records that the petitioner claims to have suffered an accident consisting of the inhalation of carbon monoxide gas from the exhaust of an automobile motor, and it further appearing that this claim was disputed by the respondent and that it was further disputed whether or not the petitioner was suffering from any condition as a result of the alleged accident, and that it was the opinion of a number of physicians that the heart condition from which the petitioner suffered, could not he the result of carbon monoxide poisoning, and it further appearing that said claim had been previously adjusted according to the terms o£ a certain compromise agreement, wherein petitioner was to receive and did receive twelve and one-half per cent, of total disability plus an allowance for medical expenses and counsel fee.

It is ordered that the said petition seeking compensation for increased disability be and the same hereby is dismissed on the ground that the said compromise agreement was fully and fairly entered into and constitutes a final adjudication of the claim of said petitioner.

Harry J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ROBERT WHEELER, PETITIONER, v. WOLCOTT HOLDING COMPANY, RESPONDENT.
    Eor the petitioner, Samuel Greenstone.

    Eor the respondent, Harley, Cox & JValburg.

   2. Whereas, it appears from the testimony that the petitioner was in the employ of the respondent on the 24th day of March, 1927, working as a mason’s assistant receiving wages at the rate of $49.50 a week; and

3. Whereas, on the 24th day of March, 1927, the petitioner was struck upon the forehead by a small chip of brick, small enough to go through a hole in the man’s pocket, which fell a distance of a few feet, lacerating the petitioner’s forehead and causing it to bleed freely, the said accident arising out of and in the course of the petitioner’s employment; and

4. Whereas, the petitioner was immediately taken to Dr. Maurice Avidan for treatment and was treated by the said doctor until the 18th day of April, at which time the said doctor discharged the petitioner as cured; said Dr. Avidan testifying at the time of trial that during the course of his treatment to the said petitioner he noticed no symptoms of syphilis present; and

5. Whereas, the petitioner advised Dr. Avidan at the time of being discharged, according to the doctor’s testimony, that he was cured of all injuries, which he had received; and

6. Whereas, according to the testimony of William Kuhl of the New Amsterdam Casualty Company, the insurance carrier for the respondent, the petitioner represented to him on May 9th, 1927, that he was entirely cured of any injuries which he might have received at the time of the accident, and the petitioner being present at an informal hearing before the workmen’s compensation bureau on the 9th day of May, 1927, at which time his case was closed out in his presence by Referee Wegner upon the ground that the petitioner had fully recovered; and

7. Whereas, it appears by a test made on February 15th, 1928, that at that time the petitioner was suffering from syphilis, which had reached the state which is known as a three-plus stage and which had begun to effect his central nervous system, and it being the petitioner’s theory that the syphilis effecting the central nervous system antedated the accident above referred to, and was in a dormant stage at the time that the accident occurred and was aggravated by the accident which he suffered; and

8. Whereas, it appears from the testimony of Dr. Avidan that in the opinion of that doctor the injuries which the petitioner received were not severe enough to aggravate the petitioner’s condition, assuming that he had syphilis effecting his central nervous system, which was in a latent condition, prior to the 24th day of March, 1927, and Dr. Dowd testified for the petitioner that if the petitioner had had syphilis prior to March 24th, 1927, he would have had certain definite symptoms, none of which the petitioner testified to upon the stand; and whereas, it also appears from the testimony of Dr. Dowd, Dr. Ilurff, Dr. Avidan, and Dr. Kessler that syphilis is of a progressive nature with periods of remission, and that the disease of syphilis could have progressed to the extent found in the petitioner’s condition at the time of his examination by Dr. Dowd in November, 1927, without being aggravated by any trauma.

Now, therefore, it is ordered that the petition filed by the petitioner in this case be dismissed and that judgment be entered in favor of the respondent.

Hakky J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HENRY C. GRIMM, PETITIONER, v. RAY ILIFF, DEFENDANT.
    For the petitioner, Nathan Rabinowitz.

    For the respondent, Edward I. Groll.

   It appears that the petitioner was employed as a carpenter by defendant, at Peqnannock, Morris county, and that either in,April or May, 1927—the petitioner in his petition under oath gave the date of the accident as on May 27th, 1927, but in his testimony an amendment was had fixing the date as April 27th, 1927—while so employed fell from a scaffold approximately twelve feet high, by being struck by some shingles, which the wind blew, thereby causing him to lose his balance. The testimony was that he fell on his feet. This is established by two witnesses who were working with him, and his own testimony. It appears beyond question that he kept at his work, and worked for several days thereafter until the job was finished. In his testimony, he said that he had been in perfect health theretofore. He named, in the petition, Dr. Lang as having attended him—that was the only physician named in the petition; cross-examination disclosed that he had been under treatment for ailments by a Dr. Wiggins of Dover, and by a Dr. Nattress of Hoboken, the last named having treated him twenty times. It was also disclosed that Dr. Lang, Dr. Wiggins and Dr. Nattress were all chiropractors—this also on cross-examination. In addition, he seems to have consulted on May 10th, 1927, Dr. Hutchinson, of Pompton. Just before action was instituted, he was examined by Dr. McGuiness, of Paterson, and the latter was the only professional witness produced. The petitioner claimed loss of function of left hand and left foot, and permanent injuries. It developed on cross-examination that he had put up some screens in Pompton Lakes for ten days; that he had been maintenance man on Military Park Building, Newark, from May 23d to July 2d, 192?; that he had received $800 on a building contract in Pequannock, which he unconvincingly claimed was with a partner who had done all of the work, and that he drove his Ford car until January, 1928. An abundance of testimony from his own lips entirely disproved his recitals of incapacity, and showed that he had worked at his trade at all times when seasonal activities were present. His manner on the witness stand equally showed that he tried to bolster up a highly doubtful case. For instance, when he became stirred up, he gesticulated with his arms, although he had protested they were incapable of functioning. Throughout the case, it was manifest that he was not in good faith, and that the present action was oppressive and for revenge for having been ignored, although he had for nine months made no single gesture to establish in any form that he had a claim, the interval from April, 192?, until January l?th, when his claim was sworn to, having elapsed without a move to establish his pretended rights, or even to call attention to his injuries, if any.

I am constrained, therefore, to decide that petitioner is not suffering as claimed, and that there must be a verdict for respondent.

SjS ifc % íjí ❖ iji

Hakky J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JENNIE SABIE, PETITIONER, v. GILBY WIRE COMPANY, RESPONDENT.
    Eor the petitioner, Charles Becker.

    Eor the respondent, Clarence B. Tippett.

   The petitioner gave testimony of an alleged accident sustained on March 31st, 1927, while employed as operator at the plant, alleging that while cutting a piece of wire, she was struck in her left eye by two small pieces of wire. ■ She reported the next day to her employer; was sent to Dr. Dias, an eye specialist, and was examined and treated by him for a period of about one week; later examined by Dr. Hughes on May 12th, 1927; later by Dr. Sherman; and then went to her own eye doctor who examined and treated her for a few days during July.

Dr. Hirschberg, her physician, also testified.

The respondent produced testimony of Dr. Dias and Dr. Hughes. Their testimony was absolutely negative of disability,. temporary or of any permanent nature. Reference to the examination by Dr. Sherman, which was made at the instance of the bureau, was produced, whose examination was also negative of any disability.

Without referring in further detail to the evidence presented on either side, I am induced to the finding that the evidence is clearly convincing to the effect that this claimant has not suffered a compensable injury. The evidence of eye specialists as to conditions immediately following the alleged trauma to the left eye, discloses no disabling injuries or results attributable to an injury. The confirmatory finding by Dr. Sherman, an eminent eye specialist who examined her at the instance of the bureau in July, is also convincing. I find no competent basis or proof upon which to predicate an award of compensation for the alleged injury.

sis & % ❖ ❖ #

Habby J. Ooas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY GARAS, PETITIONER, v. UNITED LEAD WORKS, A CORPORATION, RESPONDENT.
    For the petitioner, David T. Wileniz, through James F. Patten.

    For the respondent, John E. Toolan.

   1 do find and determine as follows:

% # ijí ^

First. That James Garas, now deceased, was on December 11th, 1926, in the employ of the respondent, Dnited Lead Works, employed as a laborer and engaged in coopering barrels and loading said barrels for shipment on railroad cars, which said employment was subject to section 2, chapter 95, laws of 1911, commonly known as the Workmen’s Compensation act, and the supplements and amendments thereto.

Second. That the said James Garas quit work on December 11th, 1926, alleging that he was sick. Dr. Isidore Siegel was called in attendance and treated the said James Garas for heart and kidney trouble. The deceased remained under the care of Dr. Siegel from December 11th, 1926, until April 26th, 1927, on which date he died. The death certificate indicates that the cause of death was chronic interstitial nephritis Claim is now made and at the hearing Dr. Siegel testified that the said James Garas died of lead poisoning and that the heart trouble and kidney trouble from which the said James Garas was suffering was induced and caused by lead poisoning. Dr. William E. Ramsay, a physician called by the respondent, testified that he had attended the deceased on a number of occasions prior to his death, and on one occasion about a month prior to his death; that the deceased was suffering from a chronic heart and kidney condition that could in no wise be attributable to lead poisoning, and in fact the deceased had not and never had been afflicted With lead poisoning. Respondent offered in evidence a number of prescriptions given by Dr. Siegel in treating the deceased as well as a written certificate signed by Dr. Siegel dated March 17th, 1927, in which Dr. Siegel over his own signature said that the deceased was suffering from kidney trouble “associated with a weak heart.” There is no mention in this certificate of lead poisoning. Dr. Siegel on the witness stand admitted that none of the prescriptions offered in evidence and which covered the entire course of the last illness of the decedent were ever for lead poisoning. Dr. Siegel in fact testified that he never treated the deceased for lead poisoning. Practically all of the testimony offered by witnesses, both for the petitioner and respondent, indicated that the deceased rarely, if ever, came in contact with lead and that there was little opportunity for him to become afflicted with lead poisoning.

Third. In view of all the proofs, it is impossible for the court to finally determine either that the deceased was ever exposed to lead in sufficient quantities to become afflicted with lead poisoning, or that the deceased had lead poisoning or that lead poisoning was the cause, either directly or remotely, of the death of the said James Garas. The clear preponderance of the evidence in all these respects was that the petitioner entirely failed to carry the burden of proof and establish that the deceased was either suffering or died from lead poisoning within the contemplation or meaning of section 2, chapter 95, of the laws of 1911, and the various supplements and amendments thereto, known as the Workmen’s Compensation act.

*******

Harry J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK LUKRIDGE, PETITIONER, v. FREDERICK SNARE CORPORATION, RESPONDENT.
    For the petitioner, John B. Graf.

    For the respondent, Carl S. Kuebler, of McDermott, Enright & Carpenter.

   A petition was filed by Frank Lukridge in which he alleged that he was employed by the respondent, Frederick Snare Corporation, as a laborer, and that on or about August 13th, 1937, he sustained an injury in an accident arising out of and in the course of his employment with the respondent, which occurred in the following manner as described in the petition: “Eight hand injured when petitioner was disconnecting air gun and air gun fell on hand.” As a result of this accident he claims to have sustained a permanent injury to his hand.

It is admitted by the respondent, that at the time of the accident Frank Lukridge was employed by it as a laborer receiving wages of $49.50 per week, but that he did not sustain any injury from any accident arising out of or in the course of his employment with the respondent on that date.

The petitioner testified that on August 13th, 1937, at about four-fifteen o’clock, while preparing to stop work for the day, he was disconnecting the hose from the air gun which he was using to break up the concrete when the gun slipped off his knee and struck the back-of his hand. He did not notify anyone of its happening. No fellow-employes were produced to describe what happened at that time, or'was the failure to produce any such fellow-employes accounted for. Some other witnesses were produced who knew the petitioner and claimed to have been around looking for a position, and who saw the handkerchief draped around the petitioner’s hand and testified that he complained of his hand being bruised. Apparently nothing was said about his hand being cut. He did not report this alleged accident until about September 39th. His mother went for his pay but she did not report an accident. He claims that the injury was so slight that.he. did not deem it necessary to report it. The other witnesses produced by the petitioner claimed that they took up a collection on the job; that these collections are very seldom taken up and are usually taken up when the men are not entitled to compensation. The petitioner in a signed statement stated that he stopped at a saloon for drinks on his way home and poured some whisky on his hand. He now denies this but said that he had some whisky late that night. He claims that the statement, which was taken by Mr. Nugent of the United States Fidelity and Guaranty Company, is not true, and that at the time he signed it he asked Mr. Nugent to make certain changes in it. I have heard the testimony of Mr. Nugent on this question and do not believe that Mr. Nugent was asked to change the statement, but that, as offered in evidence, it is in the form in which the statement was made by Mr. Lukridge. It is admitted by both sides that the petitioner was arrested about midnight on August 12th, 1927, upon charges made by his wife; that the police officer took him to the hospital and had his hand treated. No adequate explanation of this quarrel is given. Mr. Lukridge testified that they quarreled because his wife did not give him proper medical attention. I do not believe this could have been the cause of the quarrel. If he was injured at his place of employment and the injury was so slight that he deemed it unnecessary to report it to his employer, I cannot see why he would quarrel with his wife because she did not give him medical attention or why medical attention was necessary. Mr. Lukridge could not give any detail of the quarrel, except that they had some words.

The hospital records were offered in evidence so far as they related to the history of the case. The petitioner was treated at the hospital for sometime after the alleged accident. A few days after the alleged occurrence, he stated to Dr. Feldman and Dr. Gleason that he sustained an injury while in a fight with another inebriate. The testimony of Dr. Feldman was introduced to this effect. Dr. Gleason was ill at the time of the hearing but the hospital records showing that the petitioner told him the same were received in evidence.

Miss Pickett, employed by the Jersey City Hospital and in charge of the records, was sworn by the respondent and testified that the petitioner came to her after he was discharged from the hospital and wanted her to change the hospital records, which she refused to do. He himself admits that he did this. The petitioner gave as his reason, that he did not want his wife to know he was going to get any compensation as he did not want her to have it. I feel that the most likely story is the one which he gave immediately after his admittance to the hospital.

After a careful examination and study of the testimony and briefs submitted in this case, I find that the petitioner has failed to sustain the burden of proving that he suffered an accident arising out of and in the course of his employment and that his present disability is the result of such an accident. The question involved in this case is entirely one of fact, and his stories are co conflicting that I am unable to believe the facts as alleged by him. I am especialy impressed with the fact that he failed to report the alleged accident until about a month and a, half after it occurred. I believe the story which he told at the hospital; that his injury was sustained in a fight is truthful and the explanation of his injury. It does not sound reasonable to me that he would tell such a story to the hospital, if it was true that he has sustained an accident arising out of and in the course of his employment. He was intelligent enough to know that he had a compensation case if he did sustain an injury while employed by the respondent.

* * s|: $ ■ * * *

Charles E. Corbin,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELIAS MILLS, PETITIONER, v. INTERNATIONAL MOTOR COMPANY, RESPONDENT.
   A petition having been filed under the Workmen’s Compensation act of 1911 as amended, and having come on the calendar for trial in the presence of the petitioner’s attorney and the respondent and its attorney, and testimony having been taken wherein it appeared to the court that the petitioner alleged to have received a hernia on October 1st, 1927, while sweeping up the floor and moving some castings about the floor. That he complained to the foreman of a pain in his groin and the foreman took him home in his car. That the same night the petitioner called a doctor who took him to the hospital and operated on him the following morning for a femoral hernia.

That the physician for the respondent testified that he examined this petitioner on June 14th, 1927, and that he had a right inguinal hernia. That the petitioner had complained of a pain in his groin as a result of an accident he had on February 11th, 1927, while lifting a crate weighing about five hundred pounds and two men dropped their end of it, leaving him and another man holding the balance. That he lacerated the third and fourth fingers of the right hand.

That at the time of the examination by the respondent’s physician on June 14th, 1927, he prepared a report on Form C and filed a copy with the State of New Jersey, which was offered in evidence, showing that the petitioner had a small mass in the right inguinal region and that he had a right inguinal hernia.

That the petitioner denies any knowledge of having had a hernia prior to October 1st, 1927, but the significant point is that the mass which was there on June 14th, 1927, is not there now, and whether or not it was inguinal or femoral, he did have a hernia prior to October 1st, 1927.

That the Compensation act of New Jersey is strict in the requirements as to a hernia, and I find, as a fact, that the petitioner did have a hernia prior to October 1st, 1927, and having had a hernia, that he could not sustain a hernia on October 1st, 1927, to bring him within the contemplation of the hernia section of the act.

That the petitioner did say that he felt a mass in the hernial region which he could move back and forth and that he does not feel it now.

That the petitioner did not wear a truss nor have an operation for the hernia he had on June 14th, 1927, and the testimony of the petitioner was that the only cure for a hernia was an operation.

It is therefore ordered that the petition be, and same is hereby" dismissed on the ground that the petitioner had a hernia prior to October 1st, 1927, and, therefore, the hernia which he alleged to have sustained on October 1st, 1927, is not compensable.

John J. Stahl,

Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    BENJAMIN F. PARKER, PETITIONER, v. H. & W COMPANY, RESPONDENT.
    Eor the petitioner, Elizabeth Blume.

    Eor the respondent, John A. Jjaird, of Seine, Bradner & Laird.

   1. On or about February 18th, 1927, the petitioner was in the employ of the respondent company.

2. That on or about said date, petitioner alleges that he met with an accident consisting of an electrical shock from an elevator which he was operating, which shock was so severe in character as to burn his hands to the bone and to incapacitate him from work from the time of the said accident down to the present date. I find the testimony of the petitioner to be incredible beyond belief as to his conduct directly after this accident, he testifying, for example, that with a burn of this severe character which took place according to his testimony, sometime about noon, he nevertheless remained at work until his regular quitting time late in the afternoon, and that he had no medical attention during that period of time other than the application of some medicine which he claimed to have had with him in the elevator. Mr. O’Brien, manager of the respondent, and Dr. Mohrbaeher, both testified that they called upon the petitioner at his home some few days after he was reported ill and that no complaint was made to either of them of any accident or of any injury or burn to the petitioner’s hand, but testified to the contrary that the petitioner was found to be ill and suffering from some species of influenza, and that he was treated for this condition by Dr. Mohrbaeher, who made a number of visits to him. I am impressed with the truthfulness of these witnesses, whose testimoney in part is corroborated by the petitioner to the effect that the medicine which he received from Dr. Mohrbaeher was a prescripion for internal use.

3. I find as a fact that the petitioner did not meet with any accident while in the course of his employment of this respondent, and therefore order that the said petition be and the same hereby is dismissed.

4. I am advised that the respondent, through its insurance carrier, is willing as a matter of charity to advance and pay to the pettioner the sum of $250, and this, of course, has my approval, but is in nowise concerned with the actual dismissal of this claim petition.

Haeey J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PETER VAN DER HEYDEN, PETITIONER, v. JACOB BREENS.
    Por the petitioner, Nathan Rabinowitz.

    Por the respondent, Rabenold & Scribner.

   4. That on the 27th day of August, 1927, while petitioner was employed as a baker, and while the petitioner was engaged in taking lemon-cream from a receptacle for the purpose of placing same on cake on a stand, petitioner bumped his head on the left side, as a result of which perpes zoster developed in a few days in the opthalmic region. Petitioner called attention to his employer to the accident at six o’clock in the morning, and about the time that pétitioner was to quit his work for the day. Petitioner went home then and his wife, who was a registered nurse, gave him first aid treatment and continued to treat petitioner by applying salves, powder and boric acid, and applying hot compresses all during this time. Petitioner continued to work but under difficulty, complaining of pain in the frontal region. On February 5th, 1927, Dr. Denton, licensed physician of the city of Paterson, New Jersey, was called to the home of the petitioner and prescribed for petitioner, and from that time on the petitioner was under the care and treatment of his wife. On January 16th, 1928, the petitioner was examined and treated by Dr. Denig, of New York City, who gave petitioner a white iodine salve. The petitioner continued to use the prescription given by Dr. Denig for some-lime and then returned to the office of Dr. Denig on January 25th, 1928. Dr. Denig informed petitioner to renew the prescription for the time being and continue to use the prescription until the petitioner would fee] better. Petitioner then went to Dr. -Hennion of Paterson, New Jersey, for further treatment, and was then obliged to go to Dr. Hans Wassing, a neurologist connected with the Barnert Hospital of the city of Paterson, New Jersey, and was under his treatment from February 10th, 1928, to April 10th, 1928. Petitioner testified that he was under treatment by his wife and physicians aforementioned, and continued the treatment until April 10th, 1928. Petitioner called Dr. Hans Wassing, who testified that in his opinion the trauma sustained by petitioner on August 27th, 1927, was the producing cause of herpes zoster, stating that in his opinion that injury to the tri-facial nerve of the brain could produce herpes zoster. Dr. Wassing was supported in this by a statement of Dr. Peter Denton, who was the first attending physician of the petitioner. The respondent offered in evidence medical statements from Dr. Hennion and Dr. Denig, in which they stated that the petitioner was suffering from herpes zoster. The certificates submitted in evidence without objection did not in any way indicate that herpes zoster could not be produced through trauma. The respondent, Jacob Breens, was called, who admitted that he received notice of the accident and that he had called at the petitioner’s home and found him ill and covered with salve over the frontal region. Despondent further offered in evidence a statement from Dr. Hennion that petitioner was suffering from sixteen and one-half per cent, loss of vision. Dr. Wassing testified that in his opinion it was a twenty per cent, loss of vision.

5. From the proofs submitted, I find that on the 27th day of August, 1927, petitioner sustained personal injuries as a result of said accident; that the said accident arose out of and in the course of petitioner’s employment.

6. The respondent had actual knowledge of the occurrence of the said injuries and that as a result of said accident, the injuries have caused a temporary disability, which lasted from August 27th, 1927, until April 10th, 1928, and that he has a disability permanent in quality and partial in character, which is as follows: twenty per cent, permanent disability of the left eye.

7. That the petitioner incurred expenses for medical services in the sum of $43.35, which amount represents the reasonable value of such services, of which $25 is allowed for medical testimony of Dr. Wassing.

8. I find, therefore, that the petitioner is entitled to compensation for a period of fifty and four-sevenths weeks at the rate of $17 per week.

9. The legal adviser of the petitioner is entitled to compensation in addition to his costs allowed by law in the sum of $200 to be paid in the following manner, that is to say, $150 by the respondent and $50 by the petitioner.

10. Costs will be allowed the petitioner.

^ ^

Harry J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    TONY KOHAWORSKY, PETITIONER, v. CLIFTON PAPER MILLS, RESPONDENT.
    Eor the petitioner, Louis C. Friedman.

    Eor the respondent, Richard W. Balcer.

   The petitioner testified in his own behalf and likewise called to testify Dr. Wassing who treated him about twelve times beginning with January 18th, 1928. On behalf of the respondent, Dr. Schultz, who on October 5th, 1927, made an examination on behalf of the compensation bureau, and Dr. Russell were called, to testify.

The petitioner alleged that he received an injury by accident arising out of and in the course of his employment with the respondent on August 9th, 1927, and I find that he has sustained the burden of proving the accident as alleged. It was admitted, however, that the payroll records show that the petitioner returned to work six days after the accident and continued to work for a period of six weeks, at the end of which time he was discharged on September 30th, 1927. When this is taken into conjunction with the fact that Dr. Schultz, who examined the petitioner for ,the compensation bureau, found on October 5th that at that time he had no permanent disability, and that the man gave a history of losing only one week’s time from work, I fail to find that the petitioner sustained the burden of proving that he suffered either temporary or permanent disability as a result of the alleged accident.

Accordingly, I hereby find and determine that though the petitioner suffered an injury by accident arising out of and in the course of his employment with the respondent on August 9th, 1927, he lost less than a week’s time from his work, and upon resuming work continued to work for six weeks before he was discharged. I therefore find that he is not entitled to either temporary or permanent disability and accordingly order that the case be dismissed, without costs to either party.

IIaeey J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    DOROTHY MADDOX, PETITIONER, v. NEW YORK TELEPHONE COMPANY (NEW JERSEY BELL TELEPHONE COMPANY, SUCCESSOR), RESPONDENT.
   I do find and determine as follows:

1. That the petitioner was, on the 14th day of December, 1926, in the employ of the respondent in the capacity of a switchboard operator, at its Bloomfield office, and had been employed in that capacity for about eighteen months.

2. That at the time of the injury hereinafter mentioned petitioner.received as wages, in said employment,, the sum of $18 per week.

3. That on December 14tli, 1926, between' seven-thirty and eight p. m. petitioner, while in the course of her employment and engaged in operating the switchboard, struck her right elbow against the shelf or table of the switchboard. Her right shoulder snapped, the shoulder blade or scapula fell out or protruded immediately, her neck became swollen and she experienced pain in and loss of function of her right arm and shoulder. She was immediately sent home. On the following morning she was treated by Dr. Wolfe, her family physician. He treated her for several months and had great difficulty in keeping the scapula in place. After about six months of unsuccessful treatment, petitioner was operated upon by Dr. Nicola. The operation disclosed that the muscles of the seapula were severed and shortened. Dr. Nicola sewed in the scapula with several muscles which he had removed from the petitioner’s right thigh. She was at the hospital for three and a half weeks, and was incapacitated thereafter until on or about November 16th, 1927. She now has a thirty per cent, permanent disability in the function of her right arm and shoulder.

The respondent alleged that the petitioner’s condition was due to a recurrence of an old injury. It appears that in 1922 petitioner dislocated her shoulder by striking her elbow against the desk; but Dr. Wolfe who treated her for that injury testified that she was healed after several week’s treatment and this is corroborated by the testimony of petitioner and her parents. It is satisfactorily established that the petitioner was free from any physical ailment when she was employed by the respondent eighteen months before the occurrence of the accident and that she thus continued until the happening of the injury complained of. Dr. Holden, the respondent’s witness, testified that he examined the petitioner in January, 1927, and did not find any evidence of congenital weakness in the shoulder or any weakness due to paralysis.

The respondent also sought to charge the injury to a fall which the petitioner sustained on December 12th, 1926. It is true that the petitioner fell on the ice on December 12th, striking her elbow, but it is established that she sustained no injury therefrom. All the physicians agree that if the injury was due to the fall, it would have manifested itself immediately and would have been accompanied with pain, swelling and loss of function. None of these symptoms appeared, and the petitioner attended to her household tasks on December 12th and 13th and operated the switchboard on the 14th without any discomfort.

There is a conflict in the medical testimony as to just what may have caused petitioner’s injury. Dr. Wolfe and Dr. Nicola testified that the blow to the elbow was the probable cause of the injury. Dr. Holden admitted that a violent blow might cause the injury, but he was inclined to believe that it was more likely to have been caused by the stretching and straining incident to operating the switchboard when reaching for high connections. The fact remains that the petitioner did sustain the injury, and I do not find it necessary to decide this medical issue. The preponderance of the medical testimony conclusively shows-that the injury to the scapula was caused by the accident, injuring and severing the muscles supporting the scapula, and causing a permanent injury to the shoulder of thirty per cent., and causing an equal loss of function to petitioner’s right arm. A sear about five to six inches in length still marks the incision made in the operation.

4. That the respondent herein had knowledge of said accident and had proper notice of the same.

5. I further find that the action arose out of and in the course of petitioner’s employment, and that the petitioner is now suffering from said, injury and that she is entitled to receive compensation for sixty weeks at the rate of $12 per week, or a total of $720, for permanent disability; and that she is also entitled to receive for temporary disability from December 14th, 1926, to November 16th, 1927, the sum of $576 (at the rate of $12 per week). The respondent having paid petitioner two weeks full pay and four weeks half pay, amounting to $54, the amount for temporary disability is therefore fixed at $522. Petitioner is also entitled to receive $608.50 for medical expenses and the costs of this proceeding.

* % * # # #

Harry J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    IDA WIENER, PETITIONER, v. WATSON CAB COMPANY, RESPONDENT.

      Eor the petitioner, John W. McGeehan, Jr., by George F. Corrigan, Jr.

    Eor the respondent, Charles Becker.

   1. The petitioners are the mother and father of the deceased, Harry Wiener, their son, who was on the 12th day of June, 1927, in the employment of the respondent, Watson Cab Company.

2. On the aforesaid date the deceased met with an accident which caused his death, arising out of and in the course of the employment; that intoxication was not the proximate cause, nor was the injury self-inflicted.

3. The respondent herein had knowledge of the said accident and death within the time prescribed in paragraph 15 of the said act.

4. The deceased met with the accident which caused his death while driving a taxicab owned by the above-named respondent.

5. The father, Samuel Wiener, testified that he did very little work on account of his age and sickness and he earned on the average from $10 to $12 a week, but the records from his employer, I. Cooper & Son, showed that Samuel Wiener, father of the deceased, was earning $20 to $22 and sometimes $30 a week, which was more than the deceased son earned, and on several occasions the father, Samuel Wiener, earned almost twice as much as the deceased son earned, and it was thereby stipulated and agreed between counsel representing the petitioner and the respondent that the father’s earnings would be on the basis of $20 a week.

6. Samuel Wiener further testified, which was corroborated by the testimony of his wife, Ida Wiener, that their daughter, who was single at the time, was contributing toward the support of the home the sum of $6 a week and one of the sons, William, who was single and living with them at the time, also contributed the sum of $6 a week for the support of the family. The father of the deceased testified that his son was giving to the support of the family the sum of $30 to $40 a week, but he did not know if that was wages or where it came from, bixt the records and payroll of the respondent produced bjr the president of the Watson Cab Company showed that the deceased was only earning $14.50 for the approximated six weeks he was in their employment, and it was thereby agreed by and between the counsel representing the petitioners and respondent that the average weekly wage by the deceased was $14.50 &■ week.

Ida Wiener, one of the dependents, testified and corroborated the previous testimony of her husband,- Samuel Wiener, therefore I find that the deceased’s brother,- William, paid $6 a week, Lillian, the sister, paid $6 a week, and the father, Samuel Wiener, contributed $20 a week, plus the $14.50 a week the deceased paid, making a total of $46.50 which were the earnings of the five members of the family.

Therefore, I find that the total sum of $9.30 be the sum allotted per -person for the five members of the family, and I also find and determine from the testimony before me that Samuel Wiener, father, is not. a total or a partial dependent for the reason as stated above. I determine that the mother, who is a partial dependent, should be paid by the respondent the sum of $1.82 a week for three hundred weeks? or a total sum of $546, for total dependency and support, and the amount accrued up to the date of signing of the determination shall be-.paid in lump sum and the balance of money weekly.

I also find from the testimony that there was no temporary whatsoever for the reason that the deceased was killed instantly. I also order that the sum of $150 be paid for funeral expenses by the respondent and $125 for all of the expenses, counsel fee, medical expenses and other disbursements which the petitioners or their representatives may have expended in preparing this case. The stenographic fee of $10 shall be paid by the 'respondent.

* * * * * # *

Harry J. Coas,

Deputy Commissioner.


text:
    ABRAHAM BRANDT, PLAINTIFF, v. LOUIS TARTAR, DEFENDANT.
    Submitted October 13, 1928
    Decided March 11, 1929.
    Before Justices Treitohard, Kalisch and Lloyd.
    Eor the rule, Charles M. Atkinson.

      Contra, Raymond L. Siris and D. Trueman Stackhouse.

   Per Curiam.

On this rule to show cause the defendant challenges the sufficiency of the affidavit to support the judgment entered upon a bond and warrant of attorney. No depositions were taken in support of his motion. Consequently the court has for its consideration only such statements as appear on the face of the records of the proceedings.

The first point is that the affidavit is insufficient because taken before a notary public. While it is true that section 12 of the act concerning bonds and warrants (Comp. Stat., p. 219) provides that the affidavit required by the act may be made before certain designated officers, yet this provision is plainly amplified by the act relative to oaths and affidavits as amended by Pamph. L. 1916, p. 90, which provides that—■

“All oaths, affirmations and affidavits required to be made or taken by any statute of this state, or necessary or proper to be made, taken or used in any court of this state, or for any lawful purpose whatever, may be made and taken by and before * * * any notary public.”

It is thus plain that an affidavit upon which a judgment by confession is based being necessary or proper to be made, taken or used in the court in which said judgment is to be entered, may be taken before a notary public.

We do not think that the judgment should be set aside as excessive as urged in the second point. It is quite apparent that the difference of $88 between the amount of the judgment as entered and the amount of the bond was arrived at by calculating the interest from the date of the sale, June 8th, 1928, to the entry: of the judgment, August 15th, 1928. We think that since the amount of the bond was liquidated at $8,000 on June 8th, 1928, the date of the sale, the plaintiff would be entitled to interest from this date.

An attack is also made upon the judgment on the ground that “there is a variance between the purpose for which the bond was given and the obligation as set out by the affidavit of the plaintiff.” Since this is a specific statement of the ground upon which relief against the judgment is sought, we assume that the argument under this head in defendant’s brief is directed particularly to this contention.

The question to be decided is whether the affidavit of the plaintiff sets forth a sufficient cause of action which may be the subject of a judgment by confession. The bond provides that the defendant guarantees to the plaintiff that he (the plaintiff) will realize from the foreclosure sale of certain premises at least $8,000. This is the bond to which reference is made in the affidavit and upon which the judgment is founded, and the affidavit specifically sets forth that $8,000 was not realized to the plaintiff from the foreclosure sale of the premises specifically referred to in the bond, and that, in fact, nothing was realized therefrom for the plaintiff. The affidavit concludes with the statement that “on the said date of June 8th, 1928, there was due to deponent the full amount of $8,000 by virtue of said bond executed to deponent by said defendant upon which said deponent has received nothing.” It is, therefore, plainly apparent that this statement is equivalent to an assertion that nothing was received from the $20,000 mortgage transaction.'

The rule to show cause will be discharged, with costs.


text:
    BALBACH SMELTING AND REFINING COMPANY, NEWARK, NEW JERSEY, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT, RESPONDENT.
    Argued February 6, 1929
    Decided March 11, 1929.
    Before Justices Tbenohabd, Kalisch and Lloyd.
    Eor the prosecutor, Ralph 0. Willguss.

    Eor the respondent, William A. Stevens, attorney-general.
   Pee Cueiam.

We have examined with care the affidavit and exhibits used on this application, as well as the briefs of counsel submitted in connection therewith.

To us, it seems quite apparent that this application for a writ of certiorari must be denied under our decided cases. Alton Machine Co. v. State Board of Assessors, 69 Atl. Rep. 451; Phonograph Co. v. Board of Assessors, 54 N. J. L. 430; Burlington Distilling Co. v. State Board of Taxes and Assessment, 86 Id. 92; Edison Phonograph Co. v. Assessors, 57 Id. 520. See, also, Standard Underground Cable Co. v. Attorney-General, 46 N. J. Eq. 270, and American Glucose Co. v. New Jersey, 43 Id. 280.

The application for the writ will be denied accordingly.


text:
    LINDEN AVENUE IMPROVEMENT COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DANNENHOWER MOTOR COMPANY, DEFENDANT-APPELLANT.
    Submitted October term, 1928
    Decided March 11, 1929.
    Before Justices Teenchaed, Kalisch and Lloyd.
    For the appellant, Carl Kisselman.

    For the respondent, Philip Wendkos.

   Pee Cueiam.

The defendant appeals from a judgment rendered against it in the Camden District Court. The case was by the landlord of premises 1028 Haddon avenue, Collingswood, to hold the defendant liable on a lease of plaintiff’s property made to one Coffey. The lease was made April 28th, 1927, for eight months at $50 per month. The rent was paid to June 1st, 1927, but not thereafter, and the suit was to recover from the defendant the balance of the rent for the term. One Cuthbert, vice-president of the plaintiff company, testified that after the execution of the lease he visited Daniel Dannenhower, the president of the defendant company, and that Dannenhower had said that he was “going to take over the lease for defendant and that the same was' satisfactory to him.” That later the words “Branch of Dannenhower Motor Company, Camden, N. J.,” were lettered on the window of the premises. Also that two months’ rental which had been paid were paid by Coffey with the cheeks of the defendant company drawn to the order of the plaintiff.

The District Court, in this situation, rendered judgment for the plaintiff for the remaining six months, namely, $300, with interest. We think this was unwarranted. The evidence fails to disclose a legal undertaking by the defendant company to assume the obligation of the lease or liability for use and occupation. As to the first it was incumbent on the plaintiff to show not only that the president of the defendant company had actually contracted to assume the lease (which may be doubtful from the state of facts agreed upon) but that he had authority from his corporation to do so. Economy Auto Supply Co. v. Fidelity Union Trust Co., Inc., No. 27, May term, 1928 (not yet reported). This it failed to do.

Nor was there liability for use and occupation. The name of the company was not proved to have been put on the window by any authority of the defendant, nor was it proved that the defendant ever occupied the premises. On the contrary it clearly appeared from the testimony of the defendant’s witnesses that the lettering on the window was placed there without its knowledge or consent by Coffey, the lessee. Under these circumstances the evidence failed to establish either an assumption of the lease by the defendant or a use and occupation under the lease which would afford the plaintiff a right of recovery.

The judgment is reversed.


author: Pee Curiam.

text:
    BLACK AND WHITE OPERATING COMPANY, INCORPORATED, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, v. EMIL GROSBART, DEFENDANT-APPELLANT.
    Submitted October term, 1928
    Decided March 11, 1929.

      Before Justices Trenchard, Kalisch and Lloyd.
    Eor the appellant, Harry Levin.

    For the respondent, George F. Seymour, Jr.

   Pee Curiam.

The Black and White Operating Company, Incorporated, obtained a judgment against Eva Fay for taxicab hire. The money was paid to the defendant, but the plaintiff claimed never accounted for to it. The present action was brought to recover the moneys so paid. There was a judgment for the plaintiff and the defendant appeals, contending that a motion for nonsuit was improperly denied and that the court erred in its charge to the jury.

Our examination of the case satisfies us that the nonsuit could not properly have been granted. The defendant is a constable and the account was placed in his hands for collection. He issued an attachment out of the District Court, and after the issuance of summons the money was paid by Mrs. Fay under protest. Defendant then turned the money over to Harry Levin, an attorney occupying the same office as the defendant, who in turn sent his check to the plaintiff for $12.50, retaining $50 as his fee. This the plaintiff refused to receive and decided to recognize the payment by the defendant to Levin, and the present action resulted.

The case was tried before the court and a jury and there was contradictory evidence as to the employment of Levin. This raised a question of fact which the jury alone could determine.

The general exception taken to the charge cannot be considered as it brings nothing before us and we cannot, therefore, consider the numerous errors alleged to exist in the instructions given to the jury.

The judgment is affirmed.


author: Pee Cukiam.

text:
    JAMES FERRANDO, PLAINTIFF-APPELLANT, v. CONTINENTAL PAPER COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Submitted October term, 1928
    Decided March 11, 1929.
    Before Justices Teenchakd, Kalisch and Lloyd.
    For the appellant, Kimmel & Kimrnel.

    For the respondent, George 0. Felter, Jr.

   Pee Cukiam.

This is an appeal by the plaintiff from a judgment in favor of the defendant in the Second District Court of Bergen county. The plaintiff’s claim was to recover $183.42, with interest from June 18th, 1921, being a balance which the plaintiff at that time paid to the Erie Railroad Company representing freight and storage charges on certain waste paper shipped to the defendant. The claim was based on the following facts:

On October 19th, 1916, the defendant purchased from the plaintiff two cars of waste paper to be shipped to it at Bogota, in this state. This paper was immediately forwarded, but on arrival one of the cars was rejected by the defendant, and the railroad stored the paper at Undercliff. As a result of this the freight and storage charges were made.

In 1919 the present plaintiff brought suit against the defendant to recover damages for breach of the contract caused by the rejection of the paper, and on January 13th, 1920, obtained a verdict and judgment. This judgment was satisfied. In 1921 the railroad insisted upon the payment of the balance due it for the freight and storage charges, and after being threatened with suit, the plaintiff paid the amount on June 18th, 1921. Pour years later the present action was started to- recover this amount from the defendant. The trial judge entered judgment for the defendant, holding that the action was barred by the statute of limitations and also that the case was res ad judicata, and we think properly. E. O. Painter Co. v. Kiltone Co., 6 N. J. Adv. R. 1548.

The plaintiff’s rights, whatever they were as against the defendant, existed by virtue of, and arose out of, the sale in 1916. The action in the Hudson Circuit Court established the plaintiff’s right to recover under that contract. When he sued for its breach he was obliged to bring in all of the elements of damage that arose out of the breach of contract by the defendants. At that time if the present claim against the plaintiff and for which he is now suing was a liability arising out of the refusal of the defendant to take the carload of paper, it was a liability recoverable at that time. He was therefore obliged to include in his first action all of the damages to which he was entitled. If the law were otherwise, litigation of this sort would become intolerable. The same principle applies respecting the statute of limitations. Plaintiff was obliged to bring his action for all of his damages within six years of the breach of contract.

The judgment is affirmed.


text:
    HELEN COHEN, PLAINTIFF, v. PUBLIC SERVICE TRANSPORTATION COMPANY, A CORPORATION, AND JOHN THORNTON, DEFENDANTS.
    Submitted October term, 1928
    Decided March 11, 1929.
    Before Justices Trenchard, Kaliscii and Lloyd.
    For the rule, Weinberger & Weinberger.

    Contra, Henry H. Fryling and Carl T. Fr eg gens.

   Per Curiam.

This is plaintiff’s rule for new trial in an action to recover damages for injuries received by the plaintiff, a pedestrian, who, while attempting to cross Lexington avenue, in Passaic, came into collision with a bus of the Public Service Transportation Company.

The reasons urged for making the rule absolute are six in number, four of which pertain to rulings by the trial judge on evidence and a portion of the charge, and the remaining two that the verdict was against the weight of the evidence and the result of mistake, passion, prejudice or partiality. In three of these leading questions propounded by the plaintiff’s counsel in the direct examination were overruled by the court. The questions objected to were clearly leading and were properly excluded. The fourth point presents the refusal of the court to strike out an answer to a question put to a witness for the defendant on cross-examination. The answer was substantially a characterization by the witness of testimony already given by her and from it the defendant suffered no harm.

The instruction complained of in the charge to the jury was not objectionable. Obviously if, as the instruction required, the driver of the bus was in the exercise of reasonable care he could not be charged with negligence in failing to anticipate that a pedestrian would- come from in front of another bus in the path of the bus he was driving. If he was proceeding with reasonable care nothing more was required of him. Cairns v. Fox, 118 Atl. Rep. 453.

The final contention that the verdict was so clearly against the weight of the evidence as to require a new trial is without merit.- There was a sharp conflict in the testimony as to liability, and in finding against the plaintiff the jury had ample justification.

The rule is discharged.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JULIUS GREGORY, PLAINTIFF IN ERROR.
    Submitted October 13, 1928
    Decided March 7, 1929.
    Before Justices Tkenchabd, Kalisch and Lloyd.
    Eor the plaintiff in error, Robert Newton Crane..

    Eor the defendant in error, Abe J. David, prosecutor of the pleas, and Walter C. Tenney, assistant prosecutor of the pleas.
   Pee Cueiam.

The plaintiff in error was convicted of manslaughter in the Union County Quarter Sessions Court, and after sentence, he sued out this writ of error.

At the trial the testimony of witnesses for the state tended to show that the defendant drove his automobile, in which the decedent was sitting with him, through South avenue in the city of Plainfield at five p. m. on March 14th, 1928: that he was going very fast, some witnesses saying fifty miles an hour and others that he was going thirty miles an hour faster than other cars going in the same direction; that as he approached the corner of Berckman street, an intersecting street, and applied the brake, the car swerved, upset and rolled over twice, causing the death of the other occupant of the car who was hurled out against a fire plug.

Plaintiff in error argues that the trial judge erred in refusing to direct a verdict of acquittal at the close of the state’s case, upon the ground that there was no evidence of gross negligence. But we think that the question whether or not death resulted from gross negligence was properly submitted to the jury.

It is next argued that the judgment should be reversed because the trial judge overruled a question put by defendant’s counsel to a witness produced by him as follows: “Do you know what his (defendant’s) reputation is in the city of Plain-field for being a careful automobile driver?” Certainly in the circumstances the exclusion of that question was not prejudicial to the defendant, for the court recognized the right of the defendant to prove his reputation as a peaceable, orderly and law-abiding citizen and permitted him to do so. Questions as to defendant’s reputation as a peaceable, orderly and law-abiding citizen were twice put to the witness by defendant’s counsel and were twice answered that it was “very good,” and this we think in effect was a sufficient answer to the excluded question.

It is next argued that the court below erred in refusing to direct a verdict of acquittal at the close of the entire case, for the reason indicated in the like motion at the end of the state’s case. We think it quite plain that the motion was properly denied.

Lastly, it is argued that the verdict is against the weight of the evidence. To this it is a sufficient answer to say that the contention is without merit in our opinion.

The judgment will be affirmed.


text:
    MADLYN COSTELLO, RESPONDENT, v. HUDSON AND MANHATTAN RAILROAD COMPANY, APPELLANT.
    Submitted October term, 1928
    Decided March 11, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellant, Collins & Gorlin.

    For the respondent, McCarthy & McTague.

   Per Curiam.

The defendant appeals from a judgment rendered against it in the Second District Court of Jersey City. The action was to recover damages for injuries received by the plaintiff in a fall on the steps of the defendant company’s station at Journal Square, in that city. There was a motion for nonsuit at the end of the plaintiff’s ease; the motion was denied and an exception noted.

The proofs in the case were that the plaintiff was proceeding down the stairs when her heel caught in the metal-edge of a concrete step and she fell down several steps and was injured.

The allegation of negligence was that the step was worn down in the centre of the concrete and the metal strip worn smooth, and the evidence supported this charge.

Smoothness of the step alone, however, is not negligence (Walker v. F. & W. Grand Stores, 5 N. J. Mis. R. 541; affirmed, 6 N. J. Adv. R. 529), and where, as here, there was no proof that the metal edge had by reason of such worn condition of the centre of the concrete, become raised above the concrete where the two joined, there was nothing on which negligence in maintenance of the step could be predicated. The refusal of the nonsuit was therefore error.

We think also the court misled the jury in its charge by limiting the case to the defendant’s negligence after having charged that the plaintiff’s negligence was likewise involved.

The judgment is reversed.


author: Pee Ctjeiam.

text:
    GERTRUDE GRUBER, RESPONDENT, v. EUGENE MERCY, APPELLANT.
    Submitted October term, 1928
    Decided March 11, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellant, Frank G. Turner.

    For the respondent, Edward Fenias.

   Pee Ctjeiam.

This was an action by Gertrule Gruber, plaintiff, to recover damages from the defendant, her employer, for injuries received while she was riding in the defendant’s car at his invitation. There was a verdict for the plaintiff and the defendant appeals.

The defendant’s sole contention in-the case, as stated in appellant’s brief, is that the accident is governed by the Workmen’s Compensation law, and that recovery could only be had thereunder. The court below held to the contrary.

The plaintiff was going to work. She had been employed by the defendant but four days and without, prior arrangement of any kind, or without any understanding arising out of the terms of her employment, the latter invited her and her companion, a man named Potoker, to get in his car, saying “he would take them down.” In the course of the trip an accident happened and plaintiff was injured. The act of the employer was simply one of courtesy wholly disconnected from the relation of master and servant.

The learned trial judge rightly held that the injury did not “arise out of and in the course of” the plaintiff’s employment.

The judgment is affirmed.


author: Pee Cubiaji.

text:
    ANDREW KALINOWSKY, PLAINTIFF, v. LOUIS KAPLOWITZ AND BENJAMIN KAPLOWITZ, PARTNERS, TRADING UNDER THE NAME OF JERSEY TIRE COMPANY, DEFENDANTS.
    Decided March 18, 1929.

      Before Justices Tbencjetaed, Kalisch and Lloyd.
    Eor the rule, Henry Golenboch.

      Contra, David T. Wileniz.

   Pee Cubiaji.

There was a verdict at the Middlesex Circuit in favor of the plaintiff and against the defendants for $5,000. The plaintiff brought his action against the defendants to recover compensation for injuries sustained by him as a result of the accident.

The case came on for trial January 20th, 1927, and resulted in a verdict of $2,500 in favor of the plaintiff against the defendants. Upon a rule to show cause to this court, the verdict was set aside on the ground that the damages were excessive, and a venire de novo was ordered to the end that a new trial be had on the question of damages only.

A new trial was had on the 24th day of April, 1928, which trial- resulted in a verdict of $5,000. This verdict is now before the court on a rule to show cause why it should not lie set aside.

Eor the defendants it is argued that the verdict is excessive. The position taken by counsel of defendant is that this court having set aside the verdict of $2,500 as excessive, •ergo, a verdict for $5,000 must be palpably excessive.

Eeferring to the opinion filed by this court on the first rule to show cause, it appears that it was induced to set the verdict aside because plaintiff did not produce any of the three physicians who attended him, and there was a paucity of testimony as to the character of the injuries he received, and as to their permanency.

In the instant case, the plaintiff produced the physician who attended him on the day he was injured, and who testified that the plaintiff was brought into the former’s office in a semi-conscious condition, and that he had a lacerated wound of the forehead, over the left eye; that he had two lacerated wounds and also had a slight laceration under the left lower jaw, and had contusions of the right shoulder, arm and side; that he sewed up the lacerated wounds over the forehead and sent him to the hospital; that he did not see the plaintiff again until about two weeks before the second trial and found he had two jagged scars over the left eye, and a linear scar or line under the angle of the lower jaw, and that both scars were quite prominent and were permanent. He further testified that he examined the right shoulder of the plaintiff and found “a marked restriction of the right shoulder of its motions, abduction and external and internal rotation of the shoulder, to get your arm in back of your neck. ■ The motion was entirely restricted except about thirty per cent, movement outward of the shoulder joint.”

There was also testimony of an X-ray specialist, Dr. Klein, who testified that as a result of his examination of the plaintiff, while the latter was at the hospital, and after having examined him several times, that at the initial examination there was a limitation of motion in the right shoulder, and that upon examination made since then, he found that the limitation had increased. The first X-ray was taken on the day the plaintiff was injured, and the rest of the examinations taken at different times since then.

We gather from a fair reading of the testimony that it tends to establish that the plaintiff is suffering from permanent injuries which did not satisfactorily appear at the first trial, but do so now.

The plaintiff was about forty-nine years old at the time of the accident, is a painter by trade, and, therefore, his ability to earn money in the exercise of his vocation, by reason of his injuries, has been considerably impaired.

The rule to show cause is discharged, with costs.


author: Newman, S. C. C.

text:
    Passaic County Circuit Court.
    MERLE M. GEDDIS, PLAINTIFF, v. WESTSIDE NATIONAL BANK OF WEST PATERSON, NEW JERSEY, DEFENDANT.
    Eor the plaintiff, Hart & Vanderwart.

    For the defendant, David S. Herman.

   Newman, S. C. C.

This is a motion to strike out an answer. The complaint alleges that plaintiff was employed by defendant, that while he was so employed he was a notary public of New Jersey and entitled to receive certain fees as such notary for the protesting, which was connected with that office. That these fees were collected by defendant and kept by it. He is no longer in the defendant’s employ. The suit was brought by him to recover these fees.

Defendant answers, and admits these facts, but says that in consideration of the employment of plaintiff, pursuant to an agreement entered into between plaintiff and defendant, these fees all became the property of the defendant and were placed to its credit.

Plaintiff now moves to strike out the answer on the ground that it sets up no defense to the action.

Counsel for plaintiff alleges that the assignment of the fees by plaintiff to defendant was void as against public policy.

Both counsel agree- that a notary public is a public officer. The assignment of future earnings of a public officer in this state is declared void as against public policy. Schwenk v. Wyckoff, 46 N. J. Eq. 560. Counsel for plaintiff also cites cases to the same effect in other jurisdictions. But, inasmuch as this case is by our Court of Errors and Appeals, it is sufficient and controlling. One of the leading cases on this subject, cited by Justice Reed in the above case, is Bliss v. Lawrence, 58 N. Y. 442, a decision by the Court of Appeals of the State of New York.

Counsel for defendant apparently agrees that such assignment is against public policy, but argues that by the acceptance of his salary without objection and permitting the crediting of the fees to the defendant, plaintiff is now es-topped from repudiating the agreement and from claiming that these notary fees now belong to him. The case of Love v. Jersey City, 40 N. J. L. 456, cited by counsel for defendant is not in point.

In that case, Love was employed by the city at a fixed salary, which was reduced during the term for which he had been elected. The court held (1) the ordinance fixing the terms and salaries of municipal officers was not in the nature of a contract with such officer; (2) the legislature might authorize the reduction of the salary of the collector appointed for three years, during the continuance of such term; (3) if Love continued in office, receiving monthly payments during the term, he thereby waived all objections to such reduction. The case did not involve the question of public policy.

Counsel for defendant argues that, conceding the invalidity of the bargain, because against public. policjr, the plaintiff is estopped from alleging it at this time, because he has never objected to the arrangement, and, without objection, permitted the bank to collect these fees and appropriate them to its own use. This contention seems to be supported by the cases of DeBoest v. Gambell, 58 Pac. Rep. 72, and Second National Bank v. Ferguson, 114 Ky. 516. Both, of these cases recognize the doctrine that the agreement was void as against public policy, but both hold that by the acceptance of his pay without objection, he is estopped from setting it up at a later date.

In this proposition I cannot acquiesce. To permit one to retain the fees of a public officer, while the law demands that he, as such officer, perform the services, is one of the grounds which leads the courts to declare such an arrangement against public policy. It seems to me that if the agreement was against public policy, no acquiescence in such arrangement, by plaintiff, could operate to render plaintiff unable to claim the invalidity thereof.

There seems to be no doubt that, except where the agreement was void as against public policy, the plaintiff could waive any irregularities, but if the contract was void ab initio, how could any conduct on the part of the plaintiff operate to make it valid, and thus frustrate the policy of the law in declaring it void on the ground that it was against public policy? The public interest lies at the bottom of the whole matter and the conduct of a party could not frustrate the public interest.

The answer will therefore be struck out, with costs.