text:
    JACOB C. REISS v. BAMBERGER & COMPANY.
    Argued October term, 1924
    Decided January 27, 1925.
    Negligence — Motor Vehicle Collision — Defense Denied Negligence, Alleging Negligence on Part of Plaintiff — Court Erred in Charging Counsel to Limit Address to Question of Damages — Negligence, Contributory Negligence and Amount of Damages All Questions for Jury.
    Before Justices Teen chard, Mintüen and Lloyd.
    For the plaintiff-appellee, Rilcer & Riher.

    For the defendant-appellant, Jacob V. Schneider.

   Per Curiam.

This is an appeal from the First District Court of Newark, where the plaintiff had a judgment entered upon the verdict of a jury, in a suit for damages to his automobile by a truck, owned and operated by the defendant.

The plaintiff’s automobile was being driven north on High street, in the city of Newark, and defendant’s truck easterly on Bleecker street, and the accident occurred at the southeast corner of the intersection. Plaintiff’s case was that as he approached the crossing he stopped; that he saw defendant’s truck rapidly approaching; that defendant’s truck skidded on the icy road; that plaintiff suddenly started his car to get out of the way, and the rear of defendant’s truck swung around, and in the endeavor to avoid it the plaintiff struck the curb with his machine and was damaged.

Defendant’s case presented a denial of negligence, by alleging that plaintiff’s car was going at about twenty miles an hour; that defendant’s car skidded when plaintiff’s car was about forty feet from him; that plaintiff had given no signal, and that defendant had given a signal.

Manifestly, this presentation of fact raised a jury question, both upon the questions of negligence and contributory negligence. The trial court, therefore, erred in directing counsel to limit his address only to the question of damages, and by directing a verdict in favor of the plaintiff upon the question of defendant’s liability.

The questions of negligence of the defendant, the alleged contributory negligence of plaintiff, as well as the question of resulting damages, were questions for the jury. Daly v. Case, 88 N. J. L. 295.

The judgment will be reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MARY BRIGHTMAN v. JOHN DAVIES.
    Argued October term, 1924
    Decided January 27, 1925.
    Slander — Charge of Unchastlty — Charge Made In Husband’s Presence and Presumption is That He Heard It — Allegation Charge Did Not Constitute an Indictable Offense Because of the Statute of Limitations Unsound.
    Before Justices Trenchard, Minturn and Lloyd.

      For the plaintiff-appellee, Thomas P. Fay.

    Por the defendant-appellant, William L. Edwards.

   Per Curiam.

This appeal lies from a judgment for $250, rendered in an action for slander, in the District Court of Monmouth. The slander was spoken to the plaintiff, in her husband’s presence, while in the defendant’s hotel, which the plaintiff had entered in order to induce her husband to return home. The alleged slanderous words were as follows: “Get out of here, I have looked yon up, and in your younger days, and during your young life, you were no good, and T can prove it.”

It is first contended that there was no publication, it not being proved that the husband heard the slander. The evidence showed that the slander was uttered in the husband’s presence, from which the judge, sitting as a jury, could reasonably infer that the husband heard it.

Tt is next contended that the words were not slanderous per se, because they did not charge an indictable offense, as the qualifying words, “in your younger' daj^s, and in your young life,” made it impossible to find an indictment under the statute of limitations. The legal rule is otherwise, viz.: fiThe fact that the prosecution for the crime charged is barred by the statute of limitations does not destroy the actionable quality of the words.” 36 Oorp. Jur. 1196, § 106, and cases.

The next contention is that the omission to prove damage was fatal error. “The law presumes damage when the words are actionable per se * * * and the rule applies as well when the words become actionable per se, when taken in connection. with surrounding facts and circumstances, as when they were aótionable per se, without any inducement.” 25 Gyc. 491, ancl cases. "" ' ' • ■

The next objection is that it was error to admit evidence showing that defendant had been selling whiskey to plaintiff’s husband, and that plaintiff had requested defendant to discontinue such sales. To this it must suffice to say that in ascertaining the meaning of the words constituting an alleged charge of unchastity, it is proper to consider the facts ancl circumstances under which they were spoken, and, in the light of this rule, it is held to be admissible to show the attitude of defendant’s mind towards the plaintiff, in considering whether or not the slander was, in fact, uttered, and the circumstances under which it was uttered. 17 R. G. L. 284, and cases; 36 G. J. 1135, and cases.

Therefore, the sense in which the words were uttered and understood is for the jury, who may properly find that the words, are slanderous per se, as imputing a want of chastity in the plaintiff. 17 R. O. L. 425, and cases.

The judgment will be affirmed.


author: Per Curta ai.

text:
    THOMAS J. McGEARY, PLAINTIFF-APPELLANT, v. RANDOLPH A. HYDE, DEFENDANT-APPELLEE.
    Argued October term, 1924
    -Decided January 27, 1925.
    Rent — Evidence Showed Tenant Held From Month to Month, Though Denied by Tenant — Three Months’ Notice of Removal Not Given — Judgment for Three Months’ Rent.
    Before Justices Teen chard, Mintiorn and Lloyd.
    For the plaintiff-appellee, Joseph F. 8. Fitzpatrick.

    For the defendant-appellant, Gibarles II. Bur Lis.

   Per Curta ai.

Tills is defendant’s appeal from a judgment in the,Second District Court of Jersey City, in favor of plaintiff, entered by the judge sitting without a jury, in an action to recover rent for July, August and September, 1923, for an apartment owned by plaintiff and occupied by defendant at a monthly rental of $180.

It appears that plaintiff purchased the property in 1921, and at that time defendant occupied one of the apartments under a written lease from a former owner, which expired December 31st, 1921, and in January, 1922, plaintiff and defendant entered into a written lease for a period of six months.

The trial judge found, a.s appears, by the state of the case; that thereafter, on June 30th, 1922, defendant, by oral agreement with plaintiff, became a monthly tenant at a rental of $180 a month, and continued as such until July 2d, 1923.

On May 18th, 1923, defendant wrote plaintiff a letter, in which he stated that he intended to vacate on June 30th, Í923. He did not .vacate, however, until July 2d, 1923. Plaintiff was unsuccessful in renting the apartment until October 1st. This suit was brought to recover for the rent due for July, August and September. The trial judge found for the plaintiff. The appellant contends that this was erroneous, in that there was no monthly tenancy subsisting at the time upon which a rental could be predicated, but the trial judge found that there was, and it must be assumed that there was evidence to support the finding, the evidence not being before ns. Being a monthly tenancy, it required three months’ notice in writing, of the intention to terminate the tenancy upon one of the dates upon which rent is payable. Pamph. L. 1923, p. 145, ch. 72. A notice to quit at any other period sooner or later than the termination of the tenancy will not avail. Steffens v. Earl, 40 N. J. L. 128; Waters v. Williamson, 59 Id. 337; Finkelstein v. Herson, 55 Id. 217.

The only other point urged for reversal is that the judgment of the court was excessive, in that it included rent for tire month of September, but we think if the plaintiff was entitled to recover at all, he was entitled to recover for the three months in suit.

The judgment will be affirmed.


text:
    SUPERIOR METAL PRODUCTS COMPANY v. STANDARD AUTO SUPPLY COMPANY, INCORPORATED.
    Argued October term, 1924
    Decided January 27, 1925.
    Contracts — Counter-claim—Judgment for Defendant on Counterclaim for Amount in Excess! of Claim — Contention That There Should Have Been Two Judgments, Unsound and Against the Statute — The Written Order for Goods Not a Completed Contract, But Preliminary Thereto.
    Before Justices Trenchard, Minturn and Lloyd.
    Eor the plaintiff-appellant, S. Sidney Silver and J. Tracy IT orton.

    Eor the defendant-appellee, Samuel Dreslcin.

   Per Curiam.

This was an action in the Eirst District Court of Newark, brought to recover $240, the balance on a $340 bill for automobile wheels sold to defendant. The defendant counterclaimed for breach of an agreement not to compete with defendant, in the sale of such goods, alleging an offer to return the goods, and claiming as damages $271, the value of the goods remaining unsold. Judgment was rendered in favor of the defendant on the counter-claim for $31.

It is contended that there should have been two judgments, one for the plaintiff and one for the defendant. The statute, however, provides that in cases of recoupment, when the defendant’s damages exceed the plaintiff’s demand, judgment shall be given the defendant for such excess. Pamph. L. 1898, p. 575, § 64.

It is also contended that the order for the goods constituted the written contract of the parties, and that parole evidence was inadmissible to add to its terms. But it is manifest that the order was not a completed contract, but only evidence of an act required by the contract, and as a preliminary thereto.

It is argued that there was no evidence of damage, and, also, that the plaintiff cannot rescind the contract and recover damages. The letters in evidence show a rescission by mutual consent.

If the defense was founded on a breach of plaintiff’s agreement, it would be necessary to prove damage, which would be a Joss of profits. The court allowed damages on the theory of rescission of the contract, upon which theory the defendant would be entitled to recover back money advanced in payment of the goods after returning or offering to return them, and that sum was the amount allowed on the counter-claim, resulting in the legal situation that the title of the unsold goods is in the plaintiff, the defendant holding them as bailee.

The result is that the judgment is affirmed.


author: Pee Cukiam.

text:
    PETER GREINER, PROSECUTOR, v. THE TOWNSHIP OF WOODBRIDGE, IN THE COUNTY OF MIDDLESEX, ET AL., DEFENDANTS.
    Argued on brief submitted December 2, 1924
    Decided January 29, 1925.
    Land — Dedication for Park Purposes — Fact of Dedication Disputed — Testimony Ordered to be Taken.
    On application for writ of certiorari.

    Before Justices Kalis oh, Black and Campbell.
    .For the application, Bernard W. Vogel and Ephraim Cutter.

    For the defendants, J. II. Thayer Martin.

   Pee Cukiam.

The affidavits presented on behalf of the prosecutor disclose facts which are disputed by defendants, and which facts involve the determination of the * * * the question whether there was a dedication, as claimed by the prosecutor, for jiark purposes, and an acceptance by the township. Testimony must be taken in regard thereto. The writ is allowed with leave to take depositions.


author: Pur’ Curiam.

text:
    PRECISION PRODUCTS CORPORATION, PLAINTIFF-APPELLEE, v. BERNARD MILLER, DEFENDANT-APPELLANT.
    Argued October 7, 1924
    Decided January 30, 1925.
    Contracts — Recovery on “Check” — Action Styled “in Tort”— Also Brought by Treasurer of Corporation for Whose Benefit Check Was Given — Opportunity to Amend State of Demand in Respect to Plaintiff, and Judgment Thereupon Given for Amount of “Note” — Reversal and Proper Trial Ordered,
    On appeal from the District Court.
    Before Justices Trenciiard, Minturn and Lloyd.
    For the appellant, Christopher P. Connolly.

    For the appellee, William J. McFadden.

   Pur’ Curiam.

This was an action briught by “George L. Hall, Treasurer,” plaintiff, to recover $500 on a check, made’by the defendant and payable to the order of “George L. Hall, Treasurer.” The action was styled “in tort.” The defendant, on the return day in the District Court, moved to strike out the complaint on the ground of misjoinder and non-joinder o£ the parties, and on the further ground that the plaintiff sued as agent, not as principal. This motion was overruled.

Thereafter, on June 26th, 192J, the cause came on for trial. Hall testified that he was treasurer of the Precision Products Corporation, and that the check was given to him in discharge of a contract obligation of the defendant to the Precision Products Corporation.

Thereupon, the defendant moved to nonsuit on the ground, first, that the action was' brought in tort, and should have been on contract: secondly, that the plaintiff in the action, George L. Hall, treasurer, had no authority to sue for or on behalf of the Precision Products Corporation, which motion was denied. The defendant then “asked the court for a finding and judgment” in his favor. The agreed case then says that “after argument, the court continued the case until August 5th, 1924, and allowed counsel for defendant two weeks in which to file and serve on plaintiff’s attorney a brief of authorities.” The agreed case continues: “Thereupon, on June 2711b, 1924, the court made the following order in the said cause: ‘The state of demand is to be amended to make the Precision Products Corporation plaintiff. Judgment then to be entered against defendant for the amount of the note/ ” This, it is asserted, and the presumption is, was done in the absence of the defendant.

We think there should be a reversal and a proper trial, at which appropriate motions for appropriate amendments of process and pleadings may bo made and dealt with in the presence of the defendant.

The judgment will be' reversed and a venire de novo awarded.


author: Per (T'RiAir.

text:
    STEVE SZEMAN, JOHN KOLLAR AND STEPHEN KEREKES, RELATORS, v. CAPITOL THEATRE, INCORPORATED, THEODORE HARRIS, SAMUEL E. HARRIS AND MARTIN D. HARRIS, DEFENDANTS.
    Decided January 30, 1925.
    Corporations — Examination of Books of Account by Shareholders — Application Resiisted on Ground That One of the Relators is Not a Shareholder, That None Have Demanded an Examination, and That Application is Made for Purpose of Harming Defendants and Aiding a Competitor — None of These Claims Substantiated.
    On rule to show cause why a peremptory writ of mandamus should not issue. ■
    Before Justicés Kaliscii, Black and Campbell.

      For the relators, Gross & Gross.

    For the defendants, Weinberger & Weinberger (Harry II. Weinberger and Merritt Lane, of counsel).
   Per (T'RiAir.

This matter comes before us on a rule to show cause allowed by Mr. Justice Minturn. From the affidavits presented and testimony taken under the rule it appears that the Ckpitol Theatre, Inc., was incorporated on the 20th clay of February, 1920, in this state, with an authorized capital stock of $500,000; that from the time of its incorporation it has been under the management of Theodore Harris, Samuel E. Harris and Martin D. Harris, who are brothers, and they constitute the hoard of directors. Theodore Harris is the president of the corporation, Samuel E. Harris its treasurer and secretary and Martin D. Harris, its vice-president; that the relator Szeman owns ten shares of the stock issued to him on December 20th, 1920; that he has been informed by Samuel E. Harris, the secretary and treasurer of the company, that it was doing a very large business and was earning considerable money; that no dividends have ever been declared upon the stock; -that John Hollar, one of the relators, owns live shares and that Stephen Kerekes owns fifty shares of the stock; that a large portion of the stock has been disposed of to credulous and ignorant members of the Slovak, Polish and Italian people and that the Harris brothers are purchasing the stock from such holders below its par value and are practically appropriating the profits of the business to their own exclusive benefit; that demand has been made of the Harris brothers by each of the relators that they render an accounting of. tlie business of the corporation so that its financial situation may he ascertained, hut this was refused and that each of the relators has demanded that lie he permitted, through the aid and assistance of a disinterested accountant, to examine the hooks of the corporation for the purpose, which requests have been denied them.

The application is resisted npoii three grounds — (1) That one of the relators is not a stockholder; (2) that none of the relators have demanded or authorized a demand for an inspection of the corporation books and records; (3) that the application is not made in good faith, but rather for the purpose of harming the defendants and aiding a competitor.

We think .that none of the claims made is substantiated. The relators are entitled to an examination of the books under section 33 of the General Corporation act. 2- Comp, Skat., p. 1620. We think there is sufficient proof of a demand made and a refusal to comply therewith. Nor can we say from the testimony and stipulation of facts between counsel of the respective parties that the application is not made in good faith.

The stockholder may employ an expert accountant not connected with the corporation to assist him in making an inspection of the books and records of the corporation.

A peremptory writ of mandamus is ordered.


author: Pee Cueiaai.

text:
    LOUIS POMERANTZ, PLAINTIFF-APPELLANT, v. JOHN WARNER, DEFENDANT-RESPONDENT.
    Submitted December 6, 1924
    Decided January 30, 1925.
    Sales — Conditional—'Motor Vehicle — Payments to be Made at Baltimore — Payments Actually Made at Office of,Vendor at Newark, One of Which was by Inadvertance Sent to Wrong Address — Motor Vehicle Seized for Non-Payment — Vendor Not Agent of Loan Company — Plaintiff’s Duty to Make Payments According to Contract.
    On appeal from the District Court of East Orange.
    Before Justices Trenchard, Minturn and Lloyd.
    Eor the appellant, Biker & Biker.

      Eor the appellee, Ilarry Green.

   Pee Cueiaai.

This is plaintiffs, appeal from a judgment in favor of the defendant rendered by the District Court of East Orange sitting without a jury.

Plaintiff liad purchased a Port! motor truck from the New Jersey Auto Company at the price of $750.68, paying on account $250.68. This left a balance of $500 due on the purchase price. The same day he signed a conditional .sale agreement with the New Jersey Auto Company, giving at the same time an installment note payable in monthly installments. The agreement and note were; assigned to the Commercial Credit Company of Baltimore. Payments appear to have been kept up on the note until June, 1923. The payment for this month and for the month of July were made by the plaintiff to the New Jersey Auto Company, hut were not forwarded by that company to the Commercial Credit Company of Baltimore by reason of same being inadvertently sent to- the Commercial Credit Corporation of New York (a separate and distinct company), and, consequently, did not reach the Commercial Credit Company of Baltimore until September 18th, and October 5th, 1923, for the June and July installments, respectively.

Tt; further appeared from the testimony of the plaintiff that, while the note was payable according to its terms at the office of the Commercial Credit Company of Baltimore, the New Jersey Auto Company had been in the habit of accepting payments from its various customers and forwarding same to. the Commercial Credit Company of Baltimore in approximately fifty per cent, of, its sales, financed by the credit company.

The seizure of the truck was made by Warner*, the defendant, as agent of the Commercial Credit Company of Baltimore, on August 22d, 1923, and was retained by him until September 8th, 1923. This suit was brought by the plaintiff) the purchaser, against Warner, alleging an unlawful seizure of the truck.

The case turns upon the relation of the New Jersey Auto Company to the Commercial Credit Company of Baltimore. The note being payable at the office of the latter, the burden was cast upon the plaintiff to show payment in accordance with the terms of the conditional sale agreement. Failing in this, Warner, as the agent of the credit company, was legally justified in seizing the truck. There is no direct proof that the automobile company was authorized to receive payments, but simply the testimony of one Case, the assistant treasurer of the automobile company, to- the-effect that his company had been in the habit of receiving payments in about fifty per cent, of its sales and forwarding them to the credit company of Baltimore. Against this is the direct testimony of an officer of the credit company that the New Jersey Auto Company had no authority to receive moneys on behalf of the credit company. The testimony of Case, it seems to us, produces presumptively an agency in the automobile company for the plaintiff. In the absence of' authority from the credit company, it was- incumbent on the plaintiff to see that the payments reached their proper destination in accordance with the terms of the contract. When, in addition to this, it appears by direct testimony induced by the defendant that the automobile company was 'without authority to receive these checks, the trial judge was justified in holding that the payments were not made to the credit company, and that, therefore, the taking of the truck by its agent was a lawful procedure, and the plaintiff was without redress for any loss he may have sustained by the detaining of his car from August 2d to September 8th, 1923.

The judgment will be affirmed, with costs.


text:
    WILLIAM P. COHEN, TRADING, ETC., AS SEASHORE EXPRESS COMPANY, PLAINTIFF-APPELLEE, v. JOSEPH T. O’BRIEN, DEFENDANT-APPELLANT.
    Submitted December 6, 1924
    Decided January 30, 1925.
    Negligence — Motor Vehicle Collision1 — Alleged Contributory Negligence, and Want of Negligence of Defendant — Judgment for Plaintiff Sustained.
    On appeal from the First District Court of the city of Newark.
    Before Justices Tren chard, Mtnturn and Lloyd.
    For the appellant, Frank G. Turner.

    For the appellee, Collins & Corbin.

   Per Curiam.

This is defendant’s appeal from a judgment for $500 for the plaintiff in the First District Court of the city of Newark, rendered by the judge, sitting without a jury.

The plaintiff was driving his truck along the roadway in the freight yard of the Central railroad, Newark, and as he was making a turn, defendant’s truck collided with him and damaged plaintiff’s truck.

According to plaintiff’s testimony, he Was driving in second gear, at eight miles an hour, on the right-hand side of the roadway; that on his right was a line of freight cars shutting off his view to the right; that as he approached the westerly end of the cars, around which he intended to pass to the right, he sounded his horn; that when about half way around the turn he first saw the defendant’s truck about five feet away, moving in a southerly direction at the rate of twenty to twenty-five miles an hour; that plaintiff was well over on the right-hand side of the road, and was unable to get out of the way; that he stopped his machine, and was standing still at the time of the collision; that the left wheel of defendant’s truck collided with the front of plaintiff’s machine. •

The first point made is that the judge should have found for the defendant upon the ground (1) that there' was no evidence of the negligence of the defendant, and (2) that contributory negligence of the plaintiff was conclusively shown. It is sufficient to say that both questions were jury questions, -and the decision thereof by the,.trial judge will not be disturbed.

• The next point is that the judge erred in awarding $500 damages. We think not. The testimony permitted of -the inference that such sum represented the difference in value of plaintiff’s truck immediately before and immediately after the accident. 1

Lastly, it is argued that the trial judge had no jurisdiction to hear the case without a jury, because a demand for a jury had' been made before the trial.' 'We think there is no merit in this argument — -first, because the defendant went to trial without any objection, and, secondly, because such action is not specified as a cause for reversal.

The judgment will- be affirmed, with costs.


author: Pee Cujriam.

text:
    JAMES SHARKEY, AN INFANT, WHO SUES BY MICHAEL SHARKEY, HIS NEXT FRIEND, ET AL., PLAINTIFFS, v. HERMAN BROTHERS, INC., A CORPORATION, DEFENDANT.
    Submitted November 6, 1924
    Decided February 2, 1925.
    Negligence — 'Highway Accident — Collision Between Bicycle and Motor Truck — Infant Rider of Bicycle Not Shown to Have Contributed to Accident — The Twenty-two Points for Reversal Largely Frivolous.
    On' defendant’s appeal from- the Hudson Common Pleas. ■

      Before Gummeehs, Cheep Jusiíice, and Justices Pabkee and Katzenbach.
    For the plaintiffs, Richard Doherty.

    For the defendant, Frank G. Turner.

   Pee Cujriam.

This is a highway accident case. The plaintiff, a hoy of twelve, and an older companion named Fisher, took a bicycle belonging to the plaintiff’s brother-in-law and went out riding on the Hudson Boulevard with it. Fisher was in the saddle operating the pedals and the infant plaintiff sat on tiie top liar between the saddle and the handle bars, facing the left. The plaintiff and Fisher on the bicycle went southward on the boulevard for a short distance, and then turned around and started north again, traveling close to the curb. The defendant’s truck came up behind them, and, as they reached the comer of Twenty-third street, Bayonne, the truck undertook to turn easterly into1 Twenty-third street and came into collision with the bicycle about at the comer. These are the circumstances as claimed for the plaintiff. There was evidence to support them, and,-as the jury found for the plaintiff, we have to assume that they adopted substantially this view of the facts.

The appellant makes and argues twenty-two. points, many of: which, we regret to say, seem to ns frivolous and unworthy of serious presentation. The first is that there was error in refusing to nonsuit on the ground that no negligence on the defendant’s servant was shown. This was. clearly a jury question.

Secondly, that there should have been a nonsuit for -contributory negligence. The plaintiff was a boy of twelve, and, normally, any negligence of his would be a jury question.

The third and fourth challenge the refusal to direct a verdict on similar grounds, and are disposed of by what has been said.

The fifth is that it was error to admit evidence with respect to the high standing of the infant plaintiff in his school. This is something which is done every day, is generally considered to be correct practice, and relevant to the issue of damages, and is supported by the eases. Werpupp v. North Jersey Street Railway Co., 27 N. J. L. J. 172; May v. West Jersey-Railroad, Co., 62 N. J. L. 67, and other cases.

Sixth, that it was error to allow the injured leg of the plaintiff to be shown to the jury. Another everyday occurrence.'

Seventh, refusal to declare a mistrial after this had been done. It was entirely within the court’s discretion to permit this.

The eighth and ninth challenge the admission of certain questions over defendant’s objection. There was no exception to the ruling in either case.

Tenth, the overruling of a question as to “what thejr did then.” This was answered a moment later, and the error, if any, was therefore harmless.

Eleventh, refusal of the eleventh request to charge. As we read the case, there was no evidence oar which to’ base the request.'

Twelfth, refusal to charge that a boy sitting on the frame and not using the pedals did not come under that class of persons who ride in vehicles and have no control, and so are not chargeable with the acts of the driver. This was properly refused. Under the circumstances of the case it was not a court question.

Point thirteen, refusal to charge that if the plaintiff was hitching onto the defendant’s truck at the time of the accident, plaintiff cannot recover. This was charged two or three times by the court.

Fourteenth, the court properly refused to charge that it was contributory negligence as a court question to ride sideways on a bicycle. The charge with respect to the duty of an operator of an automobile to avoid accidents, and the court’s definition of negligence, were not, under the circumstances, erroneous in any way.

As to the charge on damages, there is no exception proper iv taken so as to bring the matter before ns. As to mental agitation or disorder, the court properly allowed the jury to consider that in connection with physical injury. Consolidated Traction Co. v. Lambertson, 60 N. J. L. 457. Counsel says it was not claimed in the complaint. But the complaint speaks of pain of body and anguish of mind, which seems to cover it very adequately.

'File charge about including in the damages expenses inch dental to an attempt to cure or lessen the amount of the injury was not erroneous, as such expenses might very well occur after the infant had reached full age. The objection to the expenses of the father because his wife paid the expenses with his money seems rather frivolous.

The twenty-first point is that a bicycle is not a vehicle, but our statute says that it is.

Finally, the charge on imputed negligence was not erroneous, because the question of control on the part of the infant plaintiff of the bicycle and bis participation in the operation was left fo the jury. All that the court says is that if he had no authority over the operator of the bicycle, and was not negligent himself, and the relation of master and servant or of principal and agent or mutual responsibility in a common enterprise did not exist, then the negligence of the operator cannot lie imputed to the plaintiff. This, we think, was correct.

The judgment is affirmed.


text:
    JOSEPHINE BUCHMAN AND JOSEPH M. BUCHMAN, PLAINTIFFS-RESPONDENTS, v. CHARLES A. REYNOLDS, DEFENDANT-PROSECUTOR.
    Submitted November 6, 1924
    Decided February 2, 1925.
    Negligence — Motor Vehicle Collision — Injury to Invited Passenger in Car of Employer, There by Order of Owner, and Driven by Owner's Servant — Allegations of Negligence of Driver, Also of a Conspiracy to Mulct Defendant — No Justification for Assuming That Jury Found Against Weight of Evidence — Award Reduced.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiffs, Joseph E. Oarr.

    Por the defendant, Marshall E. Diverty.

   Per Curiam.

The plaintiff was an invited passenger in a closed automobile owned by the defendant and driven by the defendant’s servant, Oliver Poote. Plaintiff was employed as a sort of a day nurse for the two grandchildren of defendant’s wife, and was directed by her to take the two children in the car to Camden, and to meet their mother at the station. While going west in Camden, on Cooper street, and while crossing Seventh street, the right hind wheel of the closed car engaged the left front wheel of a Chevrolet car, driven by a Miss Winner, who had- only recently been licensed to drive, and was out with her sister and two or more woman friends. The collision carried away the front wheel of the Chevrolet and injured the hind wheel of the car in which the plaintiff was riding, and plaintiff and the children were considerably shaken up. Plaintiff was in the hospital, and her expenses there were paid by the defendant. She was discharged as cured, and afterwards sued defendant for damages on account of the alleged negligence of the driver, and recovered a verdict of $5,000, her husband joining per quod,- and obtaining a verdict of $100 oil his own account. The reasons available on this rule are, the refusal of the court to nonsuit because of alleged contributory negligence of plaintiff; because the verdict is contrary to the weight of evidence, and because the damages are excessive.

As to the matter of contributory negligence, it hardly, merits discussion, because the plaintiff was a,.passenger in a closed car, under orders, and was not in a position to control the driver in any way. The suggestion seems to be that because, as she alleges, the driver drove very fast through Camden, she ought to have protested and endeavored to make him-reduce his speed. At the very best, it would be a question for a jury as to her contributory negligence in that regard, and it would have been undoubted error to have directed a nonsuit.

Next, that the verdict was against the weight of evidence. The case was tried and is argued here for the rule on a theory that there was a sort of a conspiracy to mulct the defendant in this matter; that both the plaintiff and a bystander named Kuteher and the various occupants of the Chevrolet ear had some sort of an understanding with regard to their testimony. We are unable to roach the conclusion that any such combination existed. It is alleged that the witness Kuteher was, in effect, suborned to commit perjury. Kuteher was engaged as a helper in a laundry business, and worked with a laundry wagon, which had drawn up on the right or northerly curb of Cooper street, facing eastward against the traffic, and which the defendant’s driver had to avoid by veering out from the right-hand side of the street. Oliver, the driver, claimed that the laundry wagon crossed the intersection of Seventh and Cooper streets from southwest to northeast, and that he had to make a wide swerve to avoid it, and shifted into second speed at the time. This is in contradiction to the evidence of Mrs. Buchman, the plaintiff, who said he was going very fast, and to the testimonjr of the occupants of the Winner car, who- all agreed that they saw him coming down the street, but that he was so far away that it seemed quite safe to cross in front of him. The ease is certainly not one in which a court is entitled to say that the jury disregarded their duty and found a verdict against the evidence. “

Lastfy, with respect to the damages: We have examined the evidence with care, and are satisfied that the verdict was excessive, and that the plaintiff, while she sustained considerable injury, over-estimated the extent of it. On this phase of the case, we consider that $3,000 would be an amply sufficient verdict for the plaintiff Mrs. Buchman, and if this plaintiff will consent to remit the excess of $3,000, the rule to show cause will be discharged; otherwise, it will be made absolute. The verdict in favor of the husband was trifling; and, of course, will not be disturbed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOHN LEVY, PLAINTIFF IN ERROR.
    Submitted November 6, 1924
    Decided February 2, 1925.
    Crijnes — Sale of Liquor — Evidence—Court Will Not Reverse on Ground That Evidence Did Not Show Guilt Beyond Reasonable Doubt — Nothing to Show Verdict Was Against Weight of Evidence.
    On writ of error to the Essex Quarter Sessions.
    Before Gumiiere, Chief Justice, and Justices Parker and Katzknbacii.
    For the plaintiff in error, Kraemer & Siegler.

    For the defendant in error, John O. Bigelow.

   Per Curiam.

The defendant was indicted for illegal sale of liquor and for illegal possession of liquor. There was a general verdict of guilty.

The first point made is that the verdict was against the weight of evidence. This point seems to he argued ou the theory that the court ought to reverse if it finds that the evidence does not show the defendant guilty beyond a reasonable doubt. But this is not the rule. Stale v. Fischer, 117 Atl. Rep. 519; 118 Id. 927. The state produced testimony to show that the defendant sold whiskey and the defendant produced testimony to show that he did not. There was a clear jury question in the case, and there was nothing at all in the evidence to lead us to the view that the verdict, was against the weight of evidence.

The only other point is that the charge is erroneous. The only cause for reversal filed in this regard is that “the charge of the court to the jury is erroneous.” This specified nothing, and is, of course, futile. Were it legally sufficient, the attack on the charge must fail because all that is alleged is that the charge omits certain matters with respect to which there were no requests.

It is suggested that there is nothing in the verdict to indicate on what count the conviction rests. The answer to this is that a general verdict applies to all the counts.

The judgment is affirmed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. EDWARD MORGAN, PLAINTIFF IN ERROR.
    Submitted November 6, 1924
    Decided February 2, 1925.
    Crimes — Rape—Girl Not Called by State, But Testified for Defense, That Defendant was Not Guilty — Reason, Perhaps, for Not Calling by State was Medical Report That Girl was of “Mental Age” of About Eight Years — Doctor’s Report Based on Examination Made by Others — Error to Admit It, and New Trial Ordered.
    On writ of error to the Morris Quarter Sessions,
    Before Gummere, Chief Justice, and Justices Pariier and Katzenbach.
    For the plaintiff in érror, Elmer W. Rom,me.

    For the defendant in error, James II. Bolitho.

   Per Curiam.

The defendant was convicted of rape upon his stepdaughter, and brings this writ of error. We conclude that the judgment must be reversed, and find it unnecessary to deal with more than one point urged for reversal. The girl herself was not a witness for the state; in fact, she was called for the defense, and testified, in substance, that the defendant was not guilty. The testimony for the state was largely that of a man named John McCurdy, who was a lodger in the defendant’s house, and who claimed to have seen and heard things that indicated the defendant’s guilt.

The prosecutor, perhaps to explain or excuse the failure of the state to call the girl herself, produced as an expert witness, Doctor Marcus A. Curry, who stated that he had made a report to the prosecutor of the “mental age” of the girl. Before he gave the contents of this report, he was cross-examined, and it appeared that he did not personally examine her at any time; that he based his testimony, or that he was going to base his testimony, on the report that was ‘made to him in writing of an examination made by other persons. Over objection, he stated what he considered to be the mental age of the girl, based on this report. This, of course, was clearly erroneous. The report had not been made by Doctor Curry, and, therefore, there was no right of cross-examination- given to the defendant through his counsel to determine the accuracy of the statements made in the report. Apparently, the report itself was not offered in evidence, whether competent or otherwise. The effect of Doctor Curry’s answer was that he found the girl to have a mental age of eight years and eight months, and this testimony was used before the jury in the argument as tending to explain why the girl had not been called as a witness to testify against the defendant. It was therefore prejudicial error to the defendant, especially as it was made the subject of comment by the judge in his charge. This obvious error makes it unnecessary to deal with any of the other questions presented.'


text:
    ROBERT KOPLOW, PLAINTIFF-APPELLANT, v. JOHN HICZWA, DEFENDANT-RESPONDENT. JACOB SCHOMER, PLAINTIFF-APPELLANT, v. JOHN HICZWA, DEFENDANT-RESPONDENT.
    Submitted November 6, 1924
    Decided February 2, 1925.
    Negligence — Motor Vehicle Collision — Taxicab Driver and Passenger Injured by Jitney — Judgment for Defendant Jitney Driver — Evidence Examined and New Trial Ordered in Both Cases on Ground Verdict was Clearly Against Weight of Evidence.
    Oil the plaintiffs’ rule to show cause.
    Before Gummeee, Chief Justice, and Justices Park.uk and Katzenbaoh.
    Eor the plaintiffs-appellants, Weinberger & Weinberger.

    Pot the defendant-respondent, Alexander M. McLeod.

   Per Curiam.

These two cases arise out of a collision between an automobile sedan taxicab driven by the plaintiff Koplow and containing as his passenger for pay the plaintiff Schomer, with an auto-bus driven by the defendant, Hiczwa., in the city of Passaic, at eleven-ten p. m., on an August night. " The moon was shining, the streets were dry, and there was an electric light on the corner. The jury found a verdict for the defendant, and the court allowed the plaintiff this rule to show cause. There were three reasons assigned, but they all substantially amount to this: That the verdict was against the weight of evidence. Koplow, the owner and driver of the sedan taxicab, picker! up Schomer several blocks away as a passenger and was headed north on Myrtle avenue on his way to Paterson, ire was crossing Monroe street and claims to have passed the centre line of that street when the defendant in his jitnejr bus, which was empty, caught the left rear of the sedan and threw it over against a telegraph pole on the northeast corner of the street, and then went on down Monroe street a distance variously estimated at from sixty feet to half a block. It will be observed that the plaintiff was coming from the defendant's right. Among the plaintiffs' witnesses were several men standing on the northwest comer of the street intersection, and a policeman on the east side of Myrtle avenue south of Monroe. The defendant' was the only witness to the collision on his side of the case. The plaintiffs’ evidence tended to show that the sedan, at moderate speed, was practically across Monroe street when it was struck, and the indications in the testimony are that the bus was on the left side of the road and had no lights. Of course, there is contradiction on these points, but the witnesses testified as above. The defendant claimed that the plaintiff Koplow was driving very fast and tried to cut across in front of him. The court told the jury that there was nothing in the case to show any contributory negligence of Schomer, the passenger, and yet the jury found for the defendant in liis suit, as well as in that of Koplow.

We have read the evidence with care, and think that it plainly shows negligence on the part of Hiczwa. If so, it is plain that there should be a new trial as to Schoaner, who was not chargeable with contributory negligence under the charge of the court. We think also that there is little or nothing in the< testimony to indicate that Koplow was guilty of contributory negligence, while the evidence of the defendant’s negligence is to us quite persuasive.

The rule will be made absolute in both cases.


author: Portes, J.

text:
    Essex Common- Pleas.
    In the matter of the application of Frank Walaska, for discharge under the Insolvent Debtors act.
    [Decided January 19th, 1925.]
    insolvent Debtors — Debtor Had Transferred Property to Wife in Satisfaction of Debt, Months Before Right of Action in Pending Case Accrued — Denial of Petition for Discharge Asked For Because Notice of Application for Discharge Had Been Served .on Counsel at His Office Instead of at His Residence as Provided in the Statute, Because a True List of Creditors Had Not Been Filed, Because Spelling of Name was Incorrect, Because Original Bill of Sale was Not Attached, and Because Petitioner Had Left Prison Limits on Two or More Occasions — Reasons Examined and All Dismissed.

      Mr. Ferdinand D. Masucci, for the applicant.

      Mr. Arthur O. Mullen, for Mike Dougelo, judgment creditor.
   Portes, J.

This is an application for discharge by Prank Walaska, under the provisions of the Insolvent Debtors act. It appears that be was arrested upon a cajiias ad satisfaciendum at the suit of Mike Dougelo, who had obtained a judgment against him in the New Jersey supreme court; that he was released upon giving bond as required by statute. Upon the hearing it was shown that the applicant was without funds or property as set forth in his inventory. He is living with his wife and family in Newark, where his wife is conducting a saloon business. The applicant, before his marriage, conducted a saloon in Hoboken. At the time of his marriage, about a year ago, he as greatly in debt. Upon his marriage his wife-took over the saloon business, paid debts or assumed them. At that time applicant conveyed to his wife, by bill of sale, his automobile, to satisfy a previously contracted debt between them.

These transactions all took place several months before the right of action of Mike Dougelo against the applicant arose. Later on the petitioner, with his family, i*emoved to Newark.

The petitioner is employed as a laborer in a garage, and claims he has no interest in the saloon business conducted by his wife.. The evidence clearly shows that the prisoner is entitled to his discharge under the statiite on the merits of the case.

The attorney for the judgment creditors moves for the denial' of the petition on several grounds which will be taken up and passed upon in order.

First. Because notice of the application „was not served at the residence of the attorney for the plaintiff, in whose suit he was imprisoned as required by section 7 of the statirte.

It appears that the attorneys for the said plaintiff were the firm of Armstrong & Mullen, whose offices are at 586 Newark avenue, Jersey City. The seventh section of the act provides that notice shall “be served or left at the usual place of residence of the attorney of the plaintiff,” &c.

The act does not say what the service shall be where the plaintiff was represented by a firm of attorneys. In these days some law firms consist of many attorneys, living in various places. It does not • seem that the intent of the statute was that each one should be served with notice at their respective residences. The intent of the statute, it seems to me, was that notice of the application be served on the attorney, the place of service not being of vital concern. In the case at bar the notice was served on the firm of attorneys who represented the plaintiff at their law office in Jersey City, and duly acknowledged by them. In Weeks v. Buderus, 39 N. J. Law 448, creditors who received no notice consisted of a firm of three individuals whose place of business was in New York. It was shown that one of the firm resided in Newark. The debtor thought all of them resided in New York. The court said, “there is nothing to show that his failure to notify the plaintiffs was in bad faith or with sinister purpose.”

The discharge was granted.

Furthermore, Mr. Mullen, of said firm, appeared at the hearing and participated thereon. Assuming that the service of the notice ivas not in compliance with the statute, and, therefore, void, this defect was cured by this appearance.

Second. The application should be denied because a true list of all of his creditors was not filed and notices not given to those not listed. The only creditor listed in the petition is that of Mike Dougelo. It appeared at the hearing, from the testimony of the petitioner, that he owed his brother, Peter Walaska, $50, and his employer, Charles Kasaitis, $25 for money borrowed. It did 'not appear whether this money ivas borrowed before or after the petition was filed. It did not appear that failure to list these creditors was intentional or for any fraudulent purpose. Neither of these creditors appeared at the hearing. Failure to list these creditors under the circumstances will not bar a discharge. Jay v. Slack, 4 N. J. Law 78; Berry v. Arthur, 13 N. J. Law 308; Hogan v. Hulton, 20 N. J. Law 82.

Third. The application should he denied because the spelling of the petitioner’s name in the papers is incorrect. It is spelled in the papers Walaska. On the bill of sale of the automobile, aforesaid, it is spelled Walowski. The petitioner spelled or wrote it, at the hearing, Walanski. He was sued by Dougelo as Walaska. The petitioner is a foreigner, and not an educated man. It is doubtful if lie knows bow to correctly spell liis name. However, there is no question of his identity, he is the debtor, and the misspelling of his name is not sufficient reason to bar his discharge. The case of In re Blanchard, 15 N. J. Law 478, is cited in support of this motion. That case contains diclum that the court erred in refusing a discharge because the petition left off the word “junior” to Ms name. It may be inferred that there was another of the same name with whom he may have become confused. Such is not the case here, and where there can be no doubt of the identity of the debtor, the reasoning in the Blanchard Case does not apply.

Fourth. The application should be denied because his sale of the automobile is void, because the original bill of sale was not attached to the bill of sale he gave his wife, and the automobile was not listed in his inventory. The sale of the automobile was made months before the right of action of Dougelo accrued. Whether the legal title to the automobile passed or not he had no ownership in it which his creditors can attach, and he properly omitted it from his inventory.

Fifth. The application should be denied because the petitioner has left the prison limits.. It appears from the testimony of the petitioner that he did, on two or three occasions, go to Jersey City and Elizabeth, both places outside of the county of Essex. No evidence was given as to what the prison limits are. The thirty-first section of the statute requires the court to designate the prison limits, and to record with the county clerk a map showing such boundaries.

As -a matter of 'fact, I find that no such map or description of prison limits is on file in the clerk’s office. It is probably so many years ago that such a map was filed that it .has been mislaid or overlooked.

.But, assuming that the jail limits had been properly designated and filed, it does not seem to me that the fact of petitioner having, on these few occasions, departed out of the county, should bar his discharge. He did not do so for the purpose of escape. In Howard v. Blackford, 3 N. J. Law 345, the court said that the act was made for the benefit of the prisoners, and should be construed liberally in their favor. In that case the debtor had left the prison limits, but the bond was not forfeited.

•Eor the reasons given, the motions to dismiss are denied.

In the case of Stagg v. Auslin, 18 N. J. Law 86, the court summed-up the object of the statute in these words:

“The great object designed by the legislature is to secure to the debtor and his creditors a fair hearing’ upon the merits of the case, and to enable the court to determine whether the former has acted fairly or concealed any part of his. property, or made fraudulent conveyances, for these are the general grounds upon which the court has power to refuse his discharge upon hearing.”

There has been a substantial compliance with the provisions of the statute in the case at bar, no. fraud has been shown, and the petitioner is entitled to his discharge. An order of discharge may be entered.


author: Buchanan, V. C.

text:
    Mabel C. Kelly, petitioner, a Frank Kelly, defendant.
    [Decided February 5th, 1925.]
    Divorca — Desertion—Uncontested—Exceptions to Master’s Report of Insufficiency of Evidence — Conflict in Petitioner’s Testimony, Leaving Doubt Regarding Motive for the Leaving — Adverse Report Sustained.
    On exceptions to master’s report.

      Mr. Marshall Miller, for tlie exceptant.
   Buchanan, V. C.

Petitioner’s suit is for divorce on tlie ground of desertion, and was not defended by the husband. The master reports adversely to the granting of the decree, stating that it is not sufficiently proven that tlie desertion or separation was obstinate. To this tlie petitioner excepts.

The evidence is ample that the husband left the matrimonial domicile in January, 1921, and did not- return, though the wife kept up the heme there for six months thereafter. There is no testimony but the wife’s, however, as to the actual cause or reason for his leaving, or the circumstances immediately preceding and attending that occurrence.

She testified twice before the master- — in March. 1924, and again in June, 1924. On the first occasion she said that the reason the husband left was because she insisted on his going to the doctor to prove that he- was not afflicted with venereal disease. She testified to circumstances indicating that he was infected venereally, and that she suspected it, and accused him of it, and he neither admitted or denied it; that she finally told him that if he wouldn’t go to the doctor with her she would know it was true and wouldn’t live with him, whereupon he got angry and said, “No; damn you, I’ll get out,” and left her (how soon thereafter does not appear).

The only attempt at corroboration of this is the statement by petitioner’s brother that defendant told him, about two weeks before the leaving, that he had a venereal disease.

On the occasion of her second deposition before the master she said: “The reason he left me was, I think, because he got to going out with other women, and I could notice the change in him toward me;” and she further said “the night before my husband left me it was raining' and he was going to leave me then. I coaxed him not to go and he stajnd until morning,” and that in the morning he packed up, took his clothes, said he was going to leave her, and did leave her.

There is on 'the face of these two depositions some inconsistencjr, which, however, on consideration, might be deemed more apparent than real. We may assume that the two are susceptible of satisfactory reconciliation, and it may further be assumed for the sake of argument, that, except for the further discrepancy in her testimony, hereinafter referred to-, there might be .found sufficient corroboration of her testimony, generally, to render it unnecessary that there be specific corroboration of her testimony on this particular point.

It further appears, however, that according to her testimony she met her husband about three times after he left her, these meetings being within three months thereafter, and on the streets of Easton, Pennsylvania. In March, 1924, she testified that on these occasions her husband stopped her on the street and asked her if she was going 'to1 take him back and she replied that she would when he proved to her he was cured. When she testified in June, 1924, she said her husband tried to a,void her on the occasions of these meetings; that she crossed the street to make him talk to her ; that she asked him when he was coming back, and that on the last occasion (in April, 1921) he replied that he was never coming back, “that he liked that life better and would not live with me.”

The discrepancy, indeed the actual contradiction between these two stories, is obvious and serious. It might very well he that either story, alone (if believed hv the court to be true, and adequately corroborated), would be sufficient to entitle petitioner to a decree. But it is impossible, of course, that both stories by the wife can be true; nor is it possible to believe that both stories, could have been told by the wife in complete good faith. No* trick played by her memory could account for her saying at one time that he had sought the street interviews, and at another time she had sought them while be bad tried to avoid them.

The result is that confidence in her testimony is destroyed; doubt is at once cast, upon her story of the inception of the separation and of her efforts or desire to have her husband return. Proof of the obstinacy of the alleged desertion therefore must be sought in other evidence; and there is no such sufficient, evidence in the case.

Some slight evidence that the separation was against the wife’s will may be spelled out of the mother’s testimony that the wife was downhearted and. crying the day a,Per the husband left, and that the wife kept up the home for six months, hut, after all, neither of these facts is any real proof that the. wife did not cause, or participate in, or consent to the husband’s leaving, or in the. continuance of the separation. Neither- of the two facts is incompatible with the possibility, for instance, that the husband’s leaving might have been caused by a quarrel over some unreasonable demand or ad ion on her part, that she told him to get out, and, though after-wards sorry for the resultant situation, was yet unwilling to ask or permit him to return unless he yielded to her.

rPhe testimony of the witnesses Susan Styer and Jeremiah TTalley at best tend to prove only that the desertion was willful on the part of the husband, not that it was obstinate, against the wife’s will or consent.

The master correctly found that there was insufficient proof that the alleged desertion was. obstinate, and the exceptions must be overruled.


author: Pee Curiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOSEPH RIVOSI, PLAINTIFF IN ERROR.
    Submitted November 6, 1924
    Decided February 9, 1925.
    Crimes — Sale of Intoxicants — Motion to Quash on Ground That Indictment Failed to Indicate Whether Defendant was Accused Under the Beverage or the Non-beverage Act — Held, That Accusation Under the Former Act was Plain — Error Not Shown in Denying Motion to Controvert the Ground Upon Which Warrant was Issued at That Time.
    On error to the Court of Quarter Sessions of the county of Monmouth.
    Before Justices Trenchard, Minturn and Lloyd.
    Eor the plaintiff in error, Lester C. Ijeonard and Howard S. Iligginson.

    Eor the defendant in error, Charles F. Sexton, prosecutor of the pleas.
   Pee Curiam.

This is a writ of error to Monmouth Quarter Sessions. Defendant was indicted for the unlawful sale of intoxicating liquors, was tried and convicted on all counts. Before trial a motion to quash was made and denied, and such action is assigned as error.

The question is whether the indictment informs the defendant of the nature and cause of the accusation. We think it does. It charges the sale of liquors “intoxicating and fit for beverage purposes.” It is said by the defendant that he was unable to tell .by that indictment whether he was accused under the Beverage act (Pamph. L. 1922, p. 615), or the Non-beverage act. Pamph. L. 1922, p. 420. We think he was plainly accused under the former, and not by the latter act.

The Beverage act prohibits the sale of intoxicating liquors “which are fit for use for beverage purposes,” and section 3 thereof says that the words “fit for use for beverage purposes” shall be construed to mean any liquor which is “suilable for a drink, or is adapted, or intended by the manufacturer thereof or dealer therein to be used as a drink.” It therefore seems clear that this indictment is sufficient, and, hence, the motion to quash was properly denied.

At the trial after the motion to quash was denied, counsel for the defendant said, “I move to controvert the grounds upon which the warrant was issued.” The trial judge said, in reply, “This is not the proper time to controvert the grounds upon which the warrants were issued, and I, therefore, deny your motion.” Objection was taken to this, and such action is urged as a cause for reversal. It is sufficient to say that we think no error is shown in respect to that action of the trial.

The judgment below will he affirmed.


author: Pek Cubiam.

text:
    HUDSON COUNTY STORE FIXTURE MANUFACTURING COMPANY, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT, v. BORIS GUTMANN, DEFENDANT-APPELLEE.
    Submitted November 6. 1924
    Decided February 9, 1925.
    Contracts — Meeting of Minds — A Written Contract, Signed After Partial Reading by Both Parties, but Understood by One to be an Agreement for Sale of Goods, but Who, After His Signature Had Been Witnessed, Learned That it was Only a Conditional Sale, and Who Then Immediately Proceeded to Destroy Both Copies, Held, not to be a Meeting of Minds, There Having Been No Complete Delivery of Agreement.
    Oil appeal from the Eirst District Court of Jersey City.

      Before Justices Trencjtabd, Miytuby and Lloyd.
    For the appellant, Roihsiein <ff llurwiiz and Qarl Weiiz.

    For the appellee, Pesin ■& Pesin.

   Pek Cubiam.

This is an appeal from a judgment for the defendant in the First District Court of Jersey City, rendered by the judge, sitting without a jury.

The state of the case settled by the judge sets forth that the suit was for damages for defendant’s alleged breach of a contract in writing whereby plaintiff undertook to manufacture and set up for the defendant certain store fixtures. After preliminary negotiations the proposed contract was reduced to typewriting upon a printed form used by the plaintiff in its business, two copies being prepared. The defendant was intelligent, and had ample opportunity to inspect the contract, but, apparently, only read over the typewritten portions. When the contract had been thus written out, the parties went to the office of a notary public to get him to witness the contract. Each party signed the contract and -the notary affixed his signature as witness to each of the copies, and delivered one to each of the parties, remarking to the plaintiff that it was on a new form.

The defendant then asked what was meant by a new form, to which the notary replied that it was a conditional bill of sale. Defendant thereupon immediately said that was not his agreement; that he was to pay $500 a month, and title to the property was to be his, and not retained in the seller. Defendant thereupon asked for plaintiff’s copy of the contract, and upon receiving it, tore both copies into pieces, stating that he was ready to take the fixtures and pay for them as he had agreed, but no such contract was ever tendered him by the plaintiff.

The judge regarded the evidence as not disclosing that the contract had been finally closed, even after the parties had affixed their signatures, and held that the minds of the parties had not met and that they were still in the stage of negotiations, and he gave judgment for the defendant.

in that inference we cannot say that the judge was wrong. We think the evidence susceptible of the conclusion that the defendant was still endeavoring to ascertain the effect of the paper before there had been any complete delivery of it.

It appears that after the plaintiff had rested, and as the defendant was about to proceed with his evidence, the plaintiff objected to any defense on the ground that defendant had failed to serve within due time specifications of defenses pursuant to plaintiff’s demand before trial. The judge held that since specifications had been filed with the clerk more than a month prior to the trial, and since it was not alleged that plaintiff was unfamiliar with the defense or would be prejudiced by proceeding, he would permit the defendant to make his defense, and that he did, and we think properly.

Complaint is made of the action of the judge in allowing the defendant to relate the details of his oral negotiations with the plaintiff concerning the making of the contract prior to signing. This was objected to by the plaintiff upon the ground that the contract spoke for itself, and that prior conversations were merged into the written agreement, and were inadmissible.

We think this objection not well taken. Tlie real question was whether or not the minds of the parties met and resulted in a contract, and upon that topic we think this evidence was admissible.

'Phe judgment will be affirmed, with costs.


text:
    SAMUEL A. SIMON AND JOSEPH A. FITZPATRICK, PLAINTIFFS, v. ADAM GARBER, DEFENDANT.
    Submitted October 27, 1924
    Decided February 6, 1925.
    Sale of Real Estate — Agents' Commissions — Agents' Claim That They Brought Together Buyer and Seller Overlooks the Fact That They Assented to the Terms of the Agreement of Sale, Drawn in Their Presence, in Which Their Commissions Were Made Contingent Upon Delivery of Deed, at Most They Could Only Have the Question Whether This Assent Modified the Sales Agreement Submitted to Jury, Which was Done.
    On plaintiffs5,rule to show cause.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiffs, Btomler, Stamler c& Eoestler.

    For the defendant, Abe J. David.

   Per Curiam.

This case is before us oh a plaintiffs5 rule to show' cause. The rule as originally granted reserved the exceptions taken at the trial, but these reservations have been waived. The entire ease is therefore before us for review. The suit was instituted by Samuel A. -Simon and Joseph E. Fitzpatrick against Adam Garber, to recover the sum of $3,500 for commissions for the sale of property in the city of Elizabeth, located at 51-53 Broad street, and known as the Capitol Theatre building. The evidence shows that Simon was a tenant of the building, and that Garber, the owner, gave to Simon, who was a real estate agent of limited experience, an exclusive authorization for thirty days to sell the property. This .authorization was dated April 29th, 1922, and fixed the rate of commissions at two and one-half per cent., but mentioned no terms with reference to the sale. Simon assigned a one-half interest in the authorization to Fitzpatrick. Simon and Fitzpatrick induced a man by the name of Scharf to enter into ail agreement to buy the property for $140,000. The agreement provided for the payment of the consideration by the delivery of three mortgages upon the property for $40,000, $24,500 and $1,100, respectiArely, and $59,500 in cash. Scharf testified at the trial that he entered into the agreement because of the promises of Simon and Fitzpatrick, that they would obtain for him a first mortgage of $100,000 oil the property and a second mortgage of $25,000, so that he would only have to pay $15,000 in cash. When it came to the making and signing of the agreement between Scharf and Garber, Simon and Fitzpatrick, according to the testimony of witnesses, were present. Garber was willing to sell the property for $140,000 upon the terms arranged, but insisted that there be inserted in the agreement the following provision: "And the said party of the first part hereby agrees to pay to Samuel A. Simon and Joseph E. Fitzpatrick, together, a commission of two and one-half per cent, on the pinchase price aforesaid, said commission to be paid in consideration of services rendered in consummating this sale; said commission to be paid upon delivery of deed.” There was testimony that Simon and Fitzpatrick agreed to this provision. The sale was never consummated because Scharf was unable to pay the purchase price. He excused his default by saying he relied upon the promises made to him by Simon and Fitpatrick that they would procure for him mortgage loans upon the property to the amount of $125,000, which they were unable to do.

The answer of Garber sets up as defenses — first, that the plaintiff's did not get for the property the best price obtainable : second, that the plaintiffs made misrepresentations to Scharf. with reference to the amount by way of mortgages which they could obtain for him upon the property, and that by reason of their failure, Scharf refused to consummate the sale, and third, that the original agreement of April 29th, 1922, was modified or rescinded by the covenant in the agreement of sale and purchase between Garber and Scharf with reference to the payment of commissions, and under said modified agreement the commissions were not payable as no deed for the property was delivered to the purchaser.

The trial court submitted the ease to the jury, which returned a verdict in favor of the defendant of no cause of action. The plaintiffs now insist that they were entitled, as a matter of law, to commissions, as they brought together the owner and purchaser. This contention overlooks the fact that there was evidence that the agreement for the sale of the property was drawn in the presence of the plaintiffs, and that they assented to the provisions placed in the agreement by which their commissions were made contingent upon the delivery of the deed. The most that the plaintiffs could expect in this aspect of the testimony was to have this question submitted to the jury upon the theory that they had not consented to the modification expressed in the sales agreement of the agreement relative to commissions dated April 29th, 1922. This the trial court did. The plaintiffs also insist that the trial judge erroneously charged the' jury. They contend that the trial judge charged that inasmuch as the authorization of April 29th, 192.2, contained no terms that terms might be fixed in the agreement, and that while this might be true as between Garber, the seller, and Scharf, the purchaser, yet the court, in its charge, extended this doctrine so as to give the impression that Garber had the right to fix the terms upon which he would pay the plaintiffs’ commissions without the plaintiffs assenting thereto. The brief for the plaintiffs refers to and prints the parts of the charge which the plaintiffs contend created in the minds of the jury this impression. Our reading of the entire charge does not sustain this contention. We think the trial judge put the question fairly to the jury as to whether or not the agreement of April 29th, 1922, had been modified in respect to the payment of commissions with the consent of the plaintiffs by the provisions inserted in the agreement of sale. This question could not have been, more forcibly expressed, it seems to us, than in the following language of the charge: “Were Fitzpatrick and Simon parties to this agreement of sale, so far as the payment of commissions were concerned ? There is evidence upon the part of the defendant that all of this agreement was read; Fitzpatrick and Simon were present at the time of the execution of this agreement. If their minds met, if they had knowledge of that particular provision of this contract, and their minds met in agreement with Garber on that, as to the time when the commissions were to be paid, then they are not entitled to a cent under his suit.”

The plaintiffs further contend that the court improperly refused to charge the following request: “If the owner and the customer found hy the broker agree upon terms, the broker’s right to a commission cannot he defeated, hy the owner, relieving the purchaser from carrying out his contract of purchase.” While this, as an abstract proposition of law, is correct, yet it was not applicable to the facts in the case, and, therefore, it was proper for the trial judge to refuse to charge it.

The ijule is discharged.


author: Bur, Curiam.

text:
    ALEXANDER O. ZAMBORY v. LOUIS CSIPO.
    Argued October term, 1924
    Decided February 9, 1925.
    Libel — Charges Found Actionable Per Se — Malice Showm — Verdict of $10,000, Considering Wealth of Defendant and Extent of Injury, Not Excessive.
    On rule to show cause to the Middlesex Circuit.
    Before Justices Trrnphakd, Mtktürn and Lloyd.
    For the rule, Stephen F. Somogyi.

      Contra, David J. Wilentz.

   Bur, Curiam.

This is defendant’s rule to show cause why a verdict for $10,000 in favor of the plaintiff should not be set aside on the ground that it is excessive and against the great weight of the evidence.

The action was for libel. The defendant was a Hugarian banker. The plaintiff had been in his employ at one time and left, and thereafter established himself as a publisher of a newspaper, and while thus, engaged published in the form of circulars, which he had procured to be printed, matter which was coneededly libelous per se. In this circular’ he not only accused the plaintiff of .various kinds of crime, but also charged him with being a stool pigeon of the emigration officers, engaged for the purpose of putting in jail members of his own race. The defendant testified that he believed the charges to be true. He also stated that when he made the charges he knew not whether they were true or false.

The only basis for the charge, consisted in the f^et that, about twelve years before the publication, the plaintiff had been convicted of the'forgery of a check in New York, and had served his time for that offense. Apart from that, the charges against him were shown to have been groundless.

We think tire charges were, for the most part, actionable per se, and, consequentty, imported malice. Aside from the implication, malice ivas generally shown by numerous witnesses; so, therefore, we conclude that the verdict is not against the weight of the evidence.

The question rénfains whether the verdict of $10,000 is excessive. We think, under the circumstances, that it is. not. In such ease the wealth of the defendant, is a. proper matter for consideration by the jury. Flaacke v. Stratford, 72 N. J. L. 488; 17 R. C. L. 440.

He admitted that he was Worth about $60,000, and is reputed to be worth from $100,000 to $200,000. He was a very influential man in the community and amongst the Hungarian people, who were patrons of the plaintiff’s newspaper, and upon whom the plaintiff depended as a means of livlihood. The effect of the libel upon the plaintiff was shown to liave been very detrimental. His friends and countrymen avoided him. The publication caused him trouble in his home, and caused him to lose caste in the community, where he had been held in high esteem by Ms countrymen, and there is considerable evidence that ho suffered mental agony.

The rule will be discharged.


author: Per Curtam.

text:
    HENRY M. BRIGHAM ET AL., APPELLANTS, v. HERRICK F. KIDDER, EXECUTOR, ETC., RESPONDENT.
    Argued October term, 1924
    Decided February 9, 1925.
    Stare Decisis — Case Previously Before Court of Errors and Appeals, Which Had Reversed Judgment Below and Declared There Should Have Been a “Direction the Other Way if Moved For” — Defendant’s Motion to Strike Out Complaint, in View of Court of Errors Decision, Correct.
    “Before J ustices Trexchard, Mixturx and Lloyd.
    For tile appellant, Hooker I, Coggeshall.

    For the respondent,!!®^, Haight, Oarey & Ha/rtpence.

   Per Curtam.

This is an appeal from a judgment rendered by Judge Dungan, to whom the cause had been referred, striking out a complaint upon the ground that it disclosed no cause of action.

The action was brought against the defendant as the executor of the estate of Camillas G. Kidder, on a lease entered into between the plaintiff and Mr. Kidder, for certain rooms in nil office building in New York City. The case was tried originally before the court and jury, and the judge directed a verdict for the plaintiff. On appeal the Court of Errors and Appeals reversed the judgment, declaring that it was not only wrong, but that “in fact there should have been a direction the other way if moved for/’

Upon the return of the case for retrial, defendant moved to strike out the complaint, which, motion was granted, and that action is the subject-matter of this appeal. We think that, in view of the language of the Court of Errors and Appeals, the .action of the trial judge Avas correct. The conclusion is that, under'the lease, the defendant's estate ivas not liable. The case is one practically of stare decisis.

We do not think that the complaint as it stands, which alleges liability upon the lease, would have justified a recovery upon any theory suggested in the briefs of counsel for the appellant.

The judgment will therefore he affirmed.


text:
    DENNIS J. GALBRAITH, PLAINTIFF, v. THE BOARD OF EDUCATION OF THE TOWNSHIP OF WOODBRIDGE, IN THE COUNTY OF MIDDLESEX, A MUNICIPAL CORPORATION, AND OTHERS, IN THE ALTERNATIVE, DEFENDANTS.
    Submitted November 6, 1924
    Decided February 10, 1925.
    Venue — Charge of — Defendant and Large Number of Witnesses Reside in Middlesex — Plaintiff Resides at Plainfield — Case Should be Tried in Middlesex.
    On application for change of venue.
    Before Justices Trexthard, Mtnturn and Lloyd.
    For the plaintiff, Codington & Blaiz.

    For the defendant, J. II. Thayer Martin.

   Per Curiam.

On the 26th of September, 1924-, Mr. Justice Kalisch granted to the defendant in this case a rule to show cause why an order should not be made changing the venue of the above cause to the county of Middlesex.

From affidavits it would appear that the suit is brought to recover for alleged extra, work in the construction of a school building at Fords, in the township of Woodbridge, in the county of Middlesex, and also to recover damages alleged to have been sustained by delay chargeable to- the defendant. To this, claim the defendant answered setting up a denial, and also a counter-claim for damages and a claim of a subcontractor of the plaintiff. The defendant and its witnesses reside and have their offices, in Middlesex county. It further appears that it will be necessary to- call as witnesses a large number of persons within the jurisdiction of Middlesex county as well as to produce the minutes, of the board and other records of the school district. It further appears that the plaintiff resides in the city of Plainfield. The plaintiff’s affidavit sets up that the means of transportation to- Elizabeth and to New Brunswick are not greatly different, but does not deny the facts above recited.

We think, under all the circumstances, the case is. one that should be tried in the county of Middlesex. Keeley v. Belmar, 97 N. J. L. 98.

The rule is made absolute.


text:
    JOSEPH NEWTON ET AL., PLAINTIFFS-APPELLEES, v. ARTHUR H. MIDDLETON, DEFENDANT-APPELLANT.
    Argued October term, 1924
    Decided February 9, 1925.
    Conveyances — Execution of Deed Cannot Effect Liability of Vendor for Fraud on the Theory That Previous Representations are Merged in Deed or Prevent Proof of Misrepresentations by Oral or Extrinsic Evidence.
    On appeal from the. Third Judicial District of Morris county. .

      Before Justices Teenchaed, Miuturst and Lloyd.
    Por the appellant, Albert H. Holland.

    For the appellees, King cG Yogi.

   Pee Curiam.

This action was. tried in the District Court of Monmouth county, the jury returning- a verdict of $353. for the plaintiff. The plaintiff purchased from the defendant a lot and dwelling by contract and deed. After title passed-the plaintiff brought this action alleging fraudulent misrepresentations concerning the water supply, and claiming as damages the cost of a new well which he was obliged to construct.

The- main contention is that the parol evidence rule was violated. Evidence was admitted of oral representations made by the defendant to the plaintiff, and to plaintiff’s agent before the contract was signed, as. well as conversations with the defendant after the contract was signed and the deed delivered. The rule is well settled, that “the execution of the deed cannot affect the liability of. the vendor for his fraud on any theory that the previous representations are merged in the deed, nor prevent proof of the misrepresentations bjr oral or extrinsic evidence.” 27 R. C. L. 366, § 66, and cases cited. The evidence of false representations, after the signing of the contract, ivas relevant, as rendering more probable the testimony as to similar representations made prior to the execution of the instrument. .

In an analogous case the Court of Errors and Appeals held it reversible error to refuse to admit similar evidence of conversations, both before- and after the execution of the contract. Batura v. McBride, 77 N. J. L. 779.

The judgment will be affirmed.


text:
    ANNA HAEUSSLER AND LOUIS HAEUSSLER, PLAINTIFFS, v. CONSOLIDATED STONE AND SAND COMPANY, A CORPORATION; AND IN THE ALTERNATIVE, GREAT NOTCH CORPORATION AND FRANKLIN CONTRACTING COMPANY, CORPORATIONS, DEFENDANTS.
    Argued October 7 and 8, 1924
    Decided February 6, 1925.
    Negligence — Injury to Another Through Being Struck by Stone Flying From a Blast — Injury Occurred While Plaintiff was Sitting Under Tree, Having Been Walking on the Highway— Contributory Negligence Not Established — Excessive Damages Not Sustained.
    On defendants’ rule to show cause.
    Before Gumaiere, Chief Justice, and Justices Parker and Katzekbach.
    For the plaintiffs, Ward & McGinnis and Isadore Babinowiiz (Peter J. McGinnis, of counsel.)
    For the defendants, Kellogg & Chance.

   Per Curiam.

This ease is before us on a defendant’s rule to show cause. The action was instituted by Anna Haeussler and Louis Haeussler, her husband, against the Consolidated Stone and Sand Company, Great Kotch Corporation and Franklin Contracting Company to recover damages sustained by an injury to Anna Haeussler by being struck by a stone thrown by a blast from a quarry. After the drawing of the jury the suit was discontinued against the Great Hotch Corporation and the Franklin Contracting Company, ar.d proceeded against the Consolidated Sand and Stone Company as the sole defendant. The case was submitted to the jury, which returned a verdict of $11,000 in favor of Anna Haeussler and $1,000 in favor of Louis Haeussler. The evideuce adduced at the trial shows. that oil August 3d, 1923, Anna Haeussler, with her son and a friend, left her home. They walked upon the public highway. Mrs. Haeussler seated herself under a dead tree. While seated there a blast from a quarry threw a stone about six inches in diameter against the hand of Mrs. Haeussler, injuring it in such a way as to cause her to> lose about eighty per cent, of its use. There was evidence that the stone came from the defendant’s quarry. The plaintiffs claimed negligence in the blasting. This the defendant denied, and alleged contributory negligence on the part of Mrs. Haeussler in going to, and remaining at, a place where a reasonable prudent person should have known that there was liability to injury.

The point most strenuously insisted upon at the argument and in the brief submitted for the defendant is that the' trial judge erroneously charged the jury, in that he assumed as proven certain facts which should have been left for the determination of the jury. Emphasis is laid upon the statement that the trial judge said that Anna Haeussler was seated under a tree at the time she was hit by the stone. This contention seems to- us to- be without merit. The trial judge told the jury that if he undertook to- quote any testimony, and his quotation did not coincide with the recollection of the jury, that they must rely upon their recollection of the evidence in the case. .The jury were therefore not deprived of passing upon the questions, of fact involved in the controversy.

The next point made by the defendant is that the trial judge admitted illegal evidence. Under this head it is first argued that the trial judge should not have allowed a witness by the name of William Shaw, testifying for the plaintiff, to answer the following question: “Now, don’t yon know of any number of occasions a blast from your quarry has thrown rock and stone in that field between his house and the roadway where that tree was?” Shaw was an expert witness. This question was asked upon- cross-examination. It seems to us proper as testing the knowledge of the witness upon the subject upon which he was testifying as an expert. But assuming tlie question to he improper, the answer which was “I do not,” was harmless to the defendant.

The next point argued relates to a question asked Arthur Johnson, a witness, for the defendant, upon cross-examination. The question was: “Assuming that the plaintiff was in the position underneath the tree indicated on the map, in the neighborhood of the lane of which you testified you had knowledge, and assuming that she was injured by a. stone that was thrown from a blast from the Consolidated quarry, to what would you attribute that?” The answer to this question, if it lie assumed that the question was improper, was harmless to the defendant, as the witness testified that he did not know what would throw Ihe stone that distance.

The next point argued deals with an objection to the following question: “I see. That would be equally true, would it not, if as a reáult of a blast in the Consolidated quarry property a stone were thrown from the place where the blast occurred to the place where the plaintiff was sitting under the tree on the Clove road at the spot indicated on the map as A.” The objection to the question is that it was too inclefinate as to the size, shape and dimensions of the stone mentioned in the question. This question was asked on cross-examination of Arthur Johnson, an expert witness. The dimensions of the stone had been given. We think the jury had in mind no other stone than that which was said to have struck Mrs. Ilaeussler when the question was asked, so1 that the omission to embody the dimension of the stone in the question resulted in no harm to the defendant.

The defendant questions, the propriety of a question asked Sia.nley Moyers, an expert witness, called by the plaintiff on rebuttal. The question was: “A mud cap such as was put off by you on the 3d of August, 1923, at the place indicated on these different pictures, P-9, P-10 and P-11, indicated in the Great Notch quarry at the places marked by you on the picture as M: could any stone, by any possibility, have come from that blast — I mean in the direction of the tree we have mentioned here?” The objection to the question is that it permitted air expert to- give an opinion upon a matter which was not the subject of an expert opinion, and thereby invaded the province of the jury. We think the information sought to be elicited by this question was a proper subject for an expert opinion. It is akin to- the line of testimony considered and approved in the case of Alcott v. Public Service Corporation, 78 N. J. L. 482.

The defendant next argues that the trial judge erroneously refused to strike out illegal evidence:, in that he refused to strike out the answer, “There was only one blast made.” The answer, it is true, was not responsive to the question. To permit the answer to stand, however,’ did the defendant no harm, as tire same witness had previously testified that there- was but one blast.

Counsel for the defendant next argue that the verdict is against the weight of the evidence. It seems to- us that, not only is the verdict not against the- weight of the evidence, but fully sustains the verdict.

The final ground urged for a new trial is that the damages are excessive. • It has already been stated that the plaintiff’s right hand was practically rendered useless by the accident. Eighty per cent, of its use was lost. The plaintiff also sustained other injuries. She had been working steadity as a weaver, earning $17.50 a week. The accident made it impossible for her to continue this employment during the remainder of her life. The defendant goes into a long computation that the verdict, if compounded for the probable extent of the plaintiff’s life, would he more than the wages which Mrs. TIaeussler could earn during this period, assuming that she was employed every working day at the wages which she had been receiving.

We know of no- rule that justifies such a method of determining whether damages awarded are excessive. A plaintiff is under no obligation to- invest and compound the interest received upon the money obtained as the result of a. suit for damages for personal injuries. It is lo- be. expected that the money, in whole or in part, will he used for the care and support of the person injured. The defendant overlooks the pain and suffering which Mrs. Haeussler must have had and for which she was entitled to be compensated. A shriveled hand and wrist is a mortification, especially to a young woman such as Mrs. Haeussler was, She is entitled to compensation for the mortification. Such an injury also deprives one of much of the enjoyment of life. For this deprivation a person is entitled to damages.

We do not consider the verdict excessive as to Mrs. Haeussler. Neither do we consider1 the verdict of $1,000 awarded to Mr. Haeussler excessive. While his proven expenses do not amount to this sum, there are other elements which enter into such a verdict which makes the amount awarded to Mr. Haeussler seem moderate.

The rule to show cause is discharged, with costs.


text:
    JACOB P. JUPIN, PLAINTIFF, v. GEORGE JUPIN, DEFENDANT.
    Argued November 6, 1924
    Decided January —, 1925.
    Capias ad Satisfaciendum — Bail—Scire Faciasi — Defendant Rendered Himself to Sheriff Within Time Limit — This is Not Compliance With Statute, Surrender was Not Made to Court, was Without Notice to Plaintiff, and There was No Commitment — Writ in Hands of Sheriff Necessary Four Days^ and Surrender to Sheriff Ineffective to Invalidate Proceedings on the Scire Facias Against the Bail.
    Oil rule to show cause.
    Before Justices Tju<:ncjiAnn, Minturn and Lloyd.
    For the rule, AlbeH C. Abbott and Ulysses G. Styron.

      Contra, Charles P. Brewer and Clarence L. Cole.

   Per Curiam.

This case comes before the court on a rule to show cause why a judgment, entered May 3d, 1924, upon an order of the Supreme Court, at bar against Michael Jupin and Eobert Hansel, bail for the defendant, George Jupin, and all proceedings thereunder should not be set aside and vacated. The suit was originally an action for seduction against George Jupin by Jacob E. Jupin, who stood in the relation of loco parentis to Sarah E. Poster. The "defendant was taken into custody on a capias, and released on bail entered by the defendants herein. At the trial, in • the Atlantic Circuit, a verdict was rendered by a jury in favor of the plaintiff in the sum of $1,500. ’ On this verdict, judgment was entered January 23d, 1924. On January 25th, 1924, a capias ad satisfaciendum was issued and placed in the hands of the sheriff on January 28th, 1924. On February 1st, 1924, the writ was returned by the sheriff non est inventus. On February 5th, 1924, a scire facias against the bail was issued, and on February 7th, 1924, the same was served personally. The scire facias was returnable on the third Tuesday of February, 1924. No response was made by the defendants to- this writ, and on May 3d, 1924, a rule for judgment and execution was made absolute by part 3 of the Supreme Court. On this rule, judgment was entered against the bail May 8th, 1924. Execution was then issued, and the property advertised for sale. In this situation two rules were taken, one now before the court, signed by Mr. Justice Kalisch and dated July 23d, 1924, and an earlier one dated July 2d, 1924, granted by Mr. Justice Campbell. The latter was discharged by Mr. Justice Campbell on July 17th, 1924, and we are only concerned with the one signed by Mr. Justice Kalisch.

Without determining the conclusiveness- of the order of Mr. Justice Campbell, discharging the rule taken before him, we have decided that the present rule is without merit. The grounds upon which the court is now asked to set aside the judgment against the bail are—

First. The capias ad satisfaciendum was not left in tlie office of the sheriff the four last days before its return, in conformity to the practice, therefore, the bail was not fixed.

Second. The bail could not be affected save after a capias ad satisfaciendum, properly returned non est inventus, therefore the plaintiff could not lawfully proceed against the bail upon their recognizance.

Third. The defendant rendered himself into the custody (if the sheriff or was rendered according to the condition of the recognizance within the time limited therefor; therefore, there was no forfeiture, and the proceedings on scire facias were premature.

The answer to the first complaint is that it is not true in fact. Idle record shows, according to the chronology already recited, that the writ was in the sheriff’s hands for the necessary period of four days-and, in fact, was not returned until the fifth day.

The second ground of complaint being rested on the criticism of the first was disposed of by what has been said above.

As to the third ground of complaint, it seems to us equally without substance. By the seventy-seventh section of the act of .1903, page 558, the defendant may, on notice to- the plaintiff, either before or after1 judgment, surrender himself or be surrendered in discharge of bail to the court in which the action was brought, or to a judge, with the proviso, however, that such surrender be made within twenty days after the scire facias against the bail or of the process in an action on the recognizance of bail and not after, unless for good cause further time be granted by the court or judge. Section ?'8 provides that the court or a judge before whom the surrender is made shall make an entry or minute of such surrender and commitment; and, thereupon, the defendant shall be committed to the custody of the sheriff.

On the 16th of February, 1924, the defendants surrendered Jupin to the sheriff of Atlantic county, whereupon, on the same day lie was released by the sheriff, upon giving bond, to take advantage of the insolvent laws before the Court of Common Pleas. This was not in compliance with the statute in any respect. It was a surrender or a render to the sheriff, and not to the court; it was done without notice to the plaintiff ; no minute was made in the court by the court, nor was there any commitment of the defendant to the custody of the sheriff as required by the statute. The act clearly implies that before a surrender shall be effective, notice must be given of an intention to surrender to the plaintiff in the action, and that -it must be made to the court itself and not to any other officer; certainly not to the sheriff of the county who has nothing to do with the case until the commitment is made to him by the court or a judge.

We think the evidence in the case establishes that the capias ad satisfaciendum was in the hands of the sheriff on January 28th, 1924, and-that the return thereof, sworn and subscribed to on the 1st dajr of February, 1924, establishes that the writ was in the hands of the sheriff for the necessary four daj^s; that the attempted surrender of the defendant by his bail was ineffective to invalidate the proceedings on the scire facias against the bail.

The rule to set aside the judgment is discharged.


author: Pee (Ykiaw.

text:
    JOHN W. OCKFORD, PLAINTIFF-APPELLANT, v. CATHERINE S. STEINMEYER, DEFENDANT-APPELLEE.
    Submitted November 6, 1924
    Decided February 10, 1925.
    Contracts — Employment—Judge Sitting Without Jury Admitted Improper Evidence Relating to Time of Employment1 — Time Material — Judgment Reversed.
    On appeal from the District Court.
    Before Justices Teenchard, Minturn and Lloyd.

      For the appellant, Wall, Haight, Carey & Hartpence.

    Por the appellee, William Van Busicirle.

   Pee (Ykiaw.

This is an appeal from a judgment of the District Court of the fourth judicial district of Bergen county. The case below was one by John W. Oekford, as plaintiff, to recover from Catherine S. Steinmeyer, the defendant, damages alleged to have been sustained by reason of her alleged failure to carry out a contract of nursing which the plaintiff in his state of demand alleges to be to commence on or about June 11th, 1923, and to continue thereafter until her services were no longer needed or until discontinued by mutual agreement. The defendant denied making the agreement as claimed by the plaintiff, but testified according to the findings of fact by the trial judge, that the- contract was for a period of two weeks or longer if defendant found it convenient to stay and counter-claimed for her compensation as nurse, aud° the judge, sitting without a jury, gave a judgment in her favor and denied the plaintiff’s claim.

Among the witnesses called by the defendant was a Mrs. Ulileman, who testified, over objection and exception by plaintiffs, attorney, to a conversation with Mrs. Oekford, the plaintiff’s wife, in which the latter said that the defendant, Mrs. Steinmeyer, had been employed for two- weeks. There is nothing in the record to show that Mrs. Oekford in anywise represented the plaintiff, or that she was authorized to .speak for him. This evidence was clearly inadmissible. The question of the term of defendant’s employment became a material one in the trial of the case, and it was necessary to determine what this contract was in order to properly pass upon the question as to whether it had been breached by the defendant. The case being heard, by the judge without a jury, if it had appeared that no. credence- was' given to this-testimony it would be possible to disregard it. Unfortunately, this was not the fact. The state of the case was settled by the court, and in it the judge says that his decision was not controlled by tbe statements alone of this witness. There can be no other conclusion than that the judge did, in part, at least, rely upon them. This he had no right to do. In the absence of proof of authority in the wife to speak for her husband, her statements to Mrs. Uhleman were incompetent and irrelevant, and should have been excluded, and, if not excluded, affimatively appear to> have been disre^ garded by the judge.

The judgment will be reversed.