author: Brogan, Chief Justice.

text:
    EDWARD A. HIGGINS, PLAINTIFF-APPELLANT, v. FIRST NATIONAL BANK OF SOUTH AMBOY, DEFENDANTAPPELLEE.
    Argued October 2, 1935
    Decided February 17, 1936.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the plaintiff-appellant, David I. Stepacoff.

    For the defendant-appellee, John A. Lovely (Robert H. McCarter, of counsel).
   Brogan, Chief Justice.

The plaintiff appeals from a judgment of nonsuit awarded to the defendant.

The grounds of appeal are seven in number, the first six of which charge the trial court with error in granting the nonsuit. The seventh is related thereto although in form it does not make out a challenge to any judicial action.

The complaint alleges that the plaintiff was a depositor in the defendant bank and on June 15th, 1929, deposited $2,660.15 to his account. It further alleges that plaintiff was indebted to the bank in the sum of $300 and that the balance of $2,360.15, belonging to him, was wrongfully appropriated by the defendant to its own use. The bank answers by saying that this sum was used by it at the direction of the plaintiff to take up certain notes of John J. and Mary M. Eyan, aggregating $2,650, leaving a balance oí $10.15 which it paid to the plaintiff. To this the plaintiff replied, saying that tiie defendant fraudulently represented to him that he was liable on the Eyan notes when in fact he was not liable and, relying upon that misrepresentation, he paid these notes by check, to his damage, as stated.

At the trial, according to the plaintiff’s testimony, it appeared that certain building and loan shares owned by Mm bad matured and that the stock certificates representing these holdings had been lodged with the bank as collateral security for a loan. The president of the bank, who was also the president of the building and loan association, had the check representing the value of these shares, which was placed to the credit of the plaintiff. This official, according to the plaintiff, told him that he was liable on notes, $2,350 in amount, held by tlio bank, which were executed by John J. and Mary M. Eyan, who were relatives of the plaintiff, and he, upon this representation, thereupon signed a check in the amount of $2,650 and paid off the so-called Eyan notes upon which plaintiff says he later discovered he was not liable as endorser or otherwise. The defendant returned the Eyan notes to the plaintiff about three weeks later and ever since be has retained them in his possession.

The transaction in question happened on June 15th, 1929. This suit was started on May 23d, 1934, the plaintiff offering as explanation for the delay the fact that at the time, in 1929, he was in need of an additional loan of $3,500, which he subsequently borrowed from the defendant, and that he hesitated to assert his rights during the interval since he still had this second obligation to the defendant, fearing that the bank might call the loan or foreclose a mortgage which he gave as security therefor.

The trial court held the motion for a nonsuit at the close of the plaintiff’s case until the defense was in and at the end of the entire case granted a motion to nonsuit upon which an appropriate judgment was entered.

In support of the motion, it was urged that before the plaintiff might bring his action for this deceit, he had the duty of restoring the opposing party to the status quo existing before the event, which here would be to have returned the Ryan notes. Admittedly this had not been done. In the case before us there is- no averment of rescission and no proof that the notes were valueless. Recovery for fraud cannot be had where the party repudiates the transaction and yet retains the fruits of it.

The rule is that a party seeking a recovery of what he has paid out, on the ground of fraud, must, within a reasonable time and prior to suit, return, or tender a return of, that which he has received and then sue to recover back what he has paid on the contract. Byard v. Holmes, 33 N. J. L. 119.

It is settled that where a party seeks to be relieved from a contract on the ground that it was induced by fraud, he must, except so far as he has some legal excuse for failure, restore his adversary to the position he was in at the time of the contract and that there can be no rescission as long as he retains anything received under the contract which he might have returned and the withholding of which might be injurious to the other party. Roberts v. James, 83 N. J. L. 492; 85 Atl. Rep. 244; Doughten v. Camden Building and Loan, 41 N. J. Eq. 556; 7 Atl. Rep. 479; Erwin v. Detwiler, 75 N. J. L. 420; 67 Atl. Rep. 932. Many other authorities to the same effect might be cited.

Under these circumstances, the granting of motion for non-suit was, in our judgment, correct.

The judgment is affirmed, with costs.


source: Caselaw Access Project

author: Case, J.

license: Public Domain

text:
    JOHN D. ROTHERHAM, Jr., RELATOR, v. PHILIP WILLIAM GRECE, JUDGE OF THE SECOND DISTRICT COURT OF THE CITY OF JERSEY CITY, DEFENDANT.
    Argued October 1, 1935
    Decided February 19, 1936.

      Before Justices Case and Bodine.
    For the relator, William A. O'Brien (John Drewen, of counsel).
    For the defendant, Oarey & Lane (Robert Carey and Harry Lane, of counsel).
   The opinion of the court was delivered by

Case, J.

Philip William Grece was, in February, 1930, appointed judge of the Second District Court of the City of Jersey City for a term of five years. On August 20th, 1932, he appointed, effective as of August -22d, 1932, John D. Rotherham, Jr., to be his confidential employe or agent in that judgeship. In February, 1935, Grece was reappointed and on February 20th, 1935, was sworn to his new term. On February 25th, 1935, effective February 28th, 1935, he summarily informed Rotherham that the latter’s employment was terminated. Rotherham appeal to the civil service commission which decided that by reason of the fact that the position was in the unclassified service the commission had no jurisdiction. This is the return of a rule, sued out by Rotherham, directing the District Court judge to show cause why a peremptory or alternative writ of mandamus should not issue directing restoration of Rotherham to his job.

The legal authority to set up the employment is not questioned. It remains, however, that the only apparent statutory authority is that which specifically classifies the employment as not in the classified service; viz., chapter 176 of the Pamphlet Laws of 1930 (Cum. Supp. Comp. Stat. 1925-1930, pp. 1305 et seq., §§ 144-136 et seq.), a supplement to the Civil Service act which in paragraph 17 of section 44 (Cum. Supp. Comp. Stat. 1925-1936, p. 1324, § 144-179, 44 (17) (m), under the caption “Definition of Terms,” provides: “The following terms, when used in this act, shall have the following meanings unless the context' clearly requires otherwise * * * (17) ‘Classified service’ means, unless otherwise provided in this act, all positions in the state service, whether paid or unpaid, whether full time or part time, whether existing or hereafter created, except those which are held by: * * * (m) One clerk or secretary and one confidential employe or agent to each * * * judge * * * when the said * * * jndge * * * certifies to the civil service commission that such clerk or secretary and such additional confidential employe or agent is essential to the work of the court * * The prosecutor of the rule obviously accepts as sound the conclusion that he has no tenure under the civil service laws but now asserts that he is entitled to protection by the terms of the Veterans’ Tenure act. Pamph. L. 1907, ch. 14; 4 Comp. Stat., p. 4873, § 63; Pamph. L. 1929, ch. 29; Cum. Supp. Comp. Stat. 1925-1930, p. 1747, § 191-63.

The question of whether or not the duties actually performed by Rotherham were of a confidential nature is not to the point. It may be, as argued, that the judge, in declining to retain Rotherham, was motivated by unethical political considerations, and indeed—which is not argued—that the very setting up of the employment was attributable to those influences. To moralize thereon would help to settle no issue in the case. It is, however, important to determine whether the employment, which we shall assume is authorized by the legislative enactment, is, by the intent of the act, confidential in character. It seems inescapable that the expression “one confidential employe or agent” comprehends none other than one who shall perform confidential services. And since the services are to be confidential it is difficult to imagine their nature unless they are to fall within the field of the judge’s own activities, for which he is himself responsible and for the doing of which another who is within the confidence of the judge may be by him selected. This particularly because the services of the court clerk and of the sergeant-at-arms continue without interruption. The appointment is such, we think, as does not out-last the term of the appointing officer. Lacking earlier termination it ends with the last mentioned term. Its maximum extent synchronizes with the term oí the judge. In that sense the term, if the duration of the employe’s service may be called a term, is fixed by law and therefore was not within the protection of the Veterans’ Tenure act. The interval of a few days between the expiration of the period of the employment and the formal notification to Eotherham of the termination of his employment does not constitute a new appointment or a ratification of a continuance of the old employment. Skcladzien v. Board of Education of Bayonne, 12 N. J. Mis. R. 602; 173 Atl. Rep. 600; affirmed, 115 N. J. L. 203; 178 Atl. Rep. 793.

We think, too, that the work to which prosecutor was appointed was neither an office nor a position, and if this be so he is not entitled to a writ of mandamus. The duties are not assigned by any public law. They are not certain. There is nothing to prove that they are permanent. The statutory language—a confidential employe—suggests that the work is merely an employment. It is, we think, quite consistent with the statute that the judge or other officer who makes such an appointment may later terminate the employment as well as the service of a particular employe.

We find that the occupation is not one to which the legislature intended to give tenure. On the merits, therefore, the prosecutor is not entitled to prevail.

Also, it may well be doubted whether prosecutor, in waiting for four months after the act of which he complains before he sought the rule, is free of laches.

The writ will be denied and the rule discharged, with costs.


author: Brogan Chief Justice.

text:
    ANNA CAFFARO, PLAINTIFF-APPELLEE, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1935
    Decided February 19, 1936.

      Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the plaintiff-appellee, Philip M. Brenner (George L. Burton, of counsel).
    For the defendant-appellant, Clifford I. Voorhees.

   Brogan Chief Justice.

This is an appeal from a judgment of the Middlesex County Court of Common Pleas in favor of the plaintiff and against the Metropolitan Life Insurance Company, defendant.

The plaintiff was the beneficiary named in a policy of insurance in the amount of $2,000, issued by the defendant to her husband, Antonino Caffaro, which contained an accidental death benefit provision to the effect that the company agreed to pay to the beneficiary an additional sum of $2,000 upon “proof of the death of the insured, as the result, directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means, provided * * * that death shall not have been the result of self-destruction, * *

The company refused to pay the accidental death benefit on the ground that the deceased committed suicide.

The deceased was a baker by trade. His hours of work were at night and it was therefore customary for him to go to bed some time after twelve o’clock noon. At about noon of the day of his death he and his wife had been having a cup of coffee together in the kitchen of their home. He announced that he was going to bed shortly and, since she was to undertake some work in another part of the house, he requested her, on her way out, to lock the kitchen door because he was going to sleep in the room immediately adjoining the kitchen. Some three hours later his body was discovered in tbe kitchen, slumped over the table. His death was caused by asphyxiation, the room being filled with gas which came from the gas stove in the kitchen. The gas was still escaping from an open burner on the stove, on which was a coffee pot, and there was evidence from which a jury might infer that the coffee had boiled over, and had extinguished the gas flame, and that the deceased had met his death in that accidental fashion. There was testimony that there were coffee grounds plainly visible on the sides of the coffee pot and on the tray of the gas stove itself, in support of this inference.

At the close of the plaintiff’s case, the defense introduced testimony tending to support its affirmative defense that the death of Mr. Caffaro was a result of suicide. There was testimony also to the effect that the deceased was in a state of ill health from which, the defendant argued, a motive for suicide existed. One witness for the defense testified that a piece of rubber tubing had been attached to one of the pipes of the gas stove, while for the plaintiff there was testimony that the piece of rubber tubing was not only not connected with any pipe of the gas stove but that when the body of tbe deceased was discovered the tubing was lying on top of the stove where it had been for some days and, further, that it was impossible to connect it with one of the gas pipes unless the grating and burner of the pipe in question had been removed, which had not been done; and, further, that the tubing in question did not fit any of the pipes of the stove. In this discrepant state of the testimony, the determination of the facts was properly left to the jury.

The reasons advanced for a reversal of this judgment are, first, that the plaintiff failed to sustain the burden of proving death through external, violent and accidental means. This is not a valid ground of appeal. It does not point to any alleged erroneous judicial action. There was no motion made for nonsuit on any such ground but it was advanced as a reason for a direction of verdict so we will consider it in connection with such motion for directed verdict. The motion for directed verdict rested upon the proposition that there was no proof before the court that the deceased met his death as the result of violent, external and accidental means, as required by the terms of the policy. The proofs show that the deceased died as a result of inhalation of gas; that death, under these circumstances, results through external means, is evident. By the same token, the death was violent if it resulted by reason of an external agency and was not in the ordinary course of nature; it was a violent death in the sense that it was not a natural death. This seems to us to be too obvious for discussion. The only issue remaining is: Was the death accidental? If it was, the plaintiff has sustained the burden of proving that the decedent came to his death within the meaning of the language of the policy. Upon this issue, the proofs are in a state of discord, as is evident from what has been said above, and the fact was determined by the jury.

In discussing the motion for directed verdict, the court took the position that it was the burden of the defendant to show that death came from self-destruction. Wow this was an erroneous conception of the law of the case, but under all the circumstances we do not consider that it was harmful error. All of the evidence was in and it remained only for the court to charge the jury. The denial by the court of the motion for a directed verdict was misconceived, yet the motion for directed verdict was properly denied on other grounds, namely, that it was for the jury to say whether the decedent had come to his death by means that were external, violent and accidental. The first two grounds for reversal therefore fail.

The appellant likewise challenges the court’s charge to the jury. We are of the opinion that the charge to the jury properly laid down the pertinent legal principles for the jury’s guidance in the determination of the issues here involved, and was directly in line with the opinion of the Court of Errors and Appeals in the case of Kresse v. Metropolitan Life Insurance Co., 111 N. J. L. 474; 168 Atl. Rep. 634.

We have examined the other grounds for reversal, and finding them ineffectual to disturb the judgment, have determined that they need no discussion.

The judgment is affirmed, with costs.


author: Per Curtail

text:
    ALBERT SOUTHARD, PLAINTIFF-APPELLEE, v. CHARLES WILSON, DEFENDANT-APPELLANT, AND RUDOLF DETTMER, DEFENDANT.
    Submitted October term, 1935
    Decided February 19, 1936.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the plaintiff-appellee, Edmund A. Hayes.

    For the defendant-appellant, Couli, Sata <& Tomlinson {De Voe Tomlinson, of counsel).
   Per Curtail

The plaintiff below had a verdict from the jury and an appeal was taken from the judgment entered thereon.

The grounds stated, upon which we are asked to reverse the judgment, are directed to the refusal of the trial judge to award a nonsuit in favor of the defendant Wilson. The other three grounds challenge the admission of evidence.

The plaintiff’s injuries occurred while he was a passenger in the automobile of the defendant Wilson and the accident took place at a road intersection where an auto bus, which had been at a standstill at the right-hand side of the road, attempted to make a left-hand turn into an intersecting road. The car of the defendant Wilson came from behind and, in attempting to pass between the bus, which had started to make the left-hand turn as aforesaid, and a traffic light stanchion, which was at the middle of the intersection, the rear end of the Wilson car collided with, or was struck by, the forward end of the bus with the result that the pleasure car was smashed and the plaintiff injured.

The point made in support of motion for nonsuit was that the testimony did not disclose any negligence on the part of the defendant Wilson. No useful purpose will be served by going into the testimony in detail but, after a careful perusal of it, it is clear to us that it was a question for the jury as to whether or not the conduct of Wilson, in the operation of his car, was, under the circumstances then confronting him, that of a reasonably prudent person.

It is next urged that the court erred in the admission of evidence. We are unable to agree that this is so. The first question complained of was not answered. The objection to the second question was not timely and the objection to the third question was ineffectual because no reason for the objection was stated. Lyon v. Fabricant, 113 N. J. L. 62; 172 Atl. Rep. 567. We might add that the evidence thus introduced by the answers to the second and third questions were, in any event, not harmful to the appellant.

Defendant’s counsel asked that the answer to one of the questions in controversy be struck out, which the court declined to do, but this action on the part of the trial court is neither challenged nor argued.

The judgment is affirmed, with costs.


text:
    THE STATE OF NEW JERSEY, EX REL. FRANCES HART, RELATOR, v. HAROLD P. SCHOONMAKER, DEFENDANT.
    Argued October 1, 1935
    Decided February 19, 1936.
    Before Bbogan, Chief Justice, and Justices Lloyd and Dorges.
    For the relator, Meyer Lobsenz.

    For the defendant, John D. Masterton (Archibald Kreiger, of counsel).
   Brogan, Chief Justice.

The legal question before us arises from an information in the nature of a quo warranto to which the respondent filed a demurrer. The proceeding is under the statute (section 4 of the Quo Warranto act, 3 Comp. 8iat., p. 4212), the relator contending that she is lawfully entitled to the office of borough recorder and that the respondent usurps and unlawfully holds the same.

The information contains the following verified assertions: That the borough of Hawthorne is governed by the Walsh act (Pamph. L. 1911, ch. 221, &c.; Cum. Supp. Comp. Stat., p. 2457, §§ **136-1 et seq.); that at an election held on May 14th, 1935, three commissioners were elected for a term of four years; that the commissioners held their meeting for the organization of the new commission on May 21st, 1935, and that at said meeting a number of offices, nine in fact, were filled, among them the office of borough recorder, to ' which relator was named for a term of four years. It is further stated that a separate vote was taken on each of the appointments so made and that the meeting adjourned until the following evening at which adjourned meeting the several departments of government were allocated to the three elected commissioners; that in the interim the relator took the oath of office and duly filed a bond; that subsequent thereto the commissioner to whom had been assigned the department of public safety filed with the borough clerk an appointment of the respondent to the office of borough recorder for a term of five years, beginning January 1st, 1935. Immediately thereafter the respondent took possession of the office of recorder as well as the books, papers, &c., pertaining to said office and prevented the relator from entering therein. As stated, the respondent demurs and sets up that the relator possesses no title to the said office because (a) at the time of her appointment the term of office of borough recorder was fixed by statute and “the term of office designated in the resolution is contrary to the provisions of said statute;” (b) because the resolution in question, “which purported to appoint relator, contained diverse objects and is alleged to have been adopted by a separate vote taken on each of the objects contained therein, which action is contrary to law.” This second point is not argued and, consequently, has not been considered.

The record before us is very meager and, in substance, contains only what has been stated above. Whether the respondent was a stranger to this office prior to the resolution appointing the relator we have no way of knowing. We infer, however, that the term of the previous occupant had expired, since the governing body, as such, undertook to fill the office and the director of public safety, deeming the resolution appointing the relator to office ineffectual, later thereupon appointed the respondent to office. Nor can we be certain from the record whether the director of public safety, at the organization meeting voted for the appointment of the relator.

In support of his position, the respondent argues that the charter provisions of the municipality are not altered by the adoption of the Walsh act. This may be conceded but what charter provisions exist that are applicable do not appear nor indeed whether there is a charter. It is also asserted that the charter provisions fix the term of office of borough recorder. We have no way of telling what those provisions are.

Eeliance is placed upon the provisions of certain statutes to support the proposition that the relator’s appointment was irregular. These acts are: The Borough act (Pamph. L. 1897, oh. 161; 1 Comp. Stat., pp. 226 et seq.), as amended by chapter 141, Pamph. L. 1922; (Cum. Supp. Comp. Stat. 1911-1924, p. 168, § 24-3), which provides for a term of one year for borough recorder; another statute cited, chapter 346, Pamph. L. 1913 (Cum. Supp. Comp. Stat. 1911-1924, p. 2710, § 160-161), clearly has no application, and a third, which is chapter 260, Pamph. L. 1927 (Cum. Supp. Comp. Stat., p. 1383, § 160-207b(l), providing for a five-year term likewise is not helpful to the respondent. We construe the last act as one that is permissive in essence and as applicable to boroughs which retain the governmental structure applicable to boroughs before the advent of the Walsh act, supra. Boroughs which have not adopted the commission form of government organize on the first day of the year but in municipalities which have adopted the Walsh act the term of all officers, whether elected or appointed, save policemen and firemen, &c., cease and determine upon an election and organization of the city commissioners immediately after the adoption of the commission form of government (Cf. section 2 of Walsh act, supra). At subsequent elections, however, those holding office for a term legally fixed would not be subject to ouster at the organization of a newly elected commission. Here, we infer, as indeed we must from this attenuated record, that at the time relator was named to the office, there was no incumbent. Nor does the fact that the relator was appointed for a four-year instead of a five-year term vitiate her appointment. The act of 1927, supra, being permissive in character, her appointment for four years is valid and at the time the director of public safety appointed the respondent to office there was no vacancy.

The judgment of ouster is awarded the relator, with costs.


author: Per Curiam.

text:
    SEYMOUR STEINBERG ET AL., PLAINTIFFS-APPELLANTS, v. CHARLES I. SILK, DEFENDANT-RESPONDENT.
    Submitted October 11, 1935
    Decided February 20, 1936.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the appellants, David I. Stepacoff.

    For the respondent, Collins & Corbin, Edward A. Marhley and Howard F. McIntyre.

   Per Curiam.

This is an appeal from a judgment of nonsuit entered in the Middlesex Common Pleas on direction of Judge Lyon. The suit was for injuries sustained by the infant plaintiff, a boy of high school age, when he tripped and fell on the sidewalk in front of defendant’s premises in Perth Amboy. The sidewalk was constructed of flagstones and it was testified that they were at different and irregular levels so that there were elevations of varying height between the stones. There was no testimony as to when the sidewalk was constructed but it was proved that it had been in existence for over twenty years and had been in its present condition for a long period of time.

The complaint alleged the construction and maintenance of a nuisance, and the plaintiffs sought to prove a case within the rule of Braelow v. Klein, 100 N. J. L. 156; 125 Atl. Rep. 103.

Two points, in substance, are argued. One deals with the exclusion of evidence and the other with the granting of the nonsuit.

With respect to the exclusion of evidence, the grounds of appeal complain of five questions which were overruled and one answer which was stricken, all of which occurred in the examination of Steve Eenda, a mason who qualified as an expert witness. No exception was taken to the striking of the answer, nor to the exclusion of four of the questions. The sole question to which an exception was taken was "Q. Mr. Eenda, what did you find upon the examination of that sidewalk?” However, we deem this ruling harmless because this witness was later recalled and permitted to describe at length the condition of the sidewalk as he found it. There is, therefore, no error in the rulings on evidence.

The principal point deals with the nonsuit. The evidence available to the plaintiffs was that the boy fell on this sidewalk where the flags were uneven; that the sidewalk had been there over twenty years and in its present condition for a large part of that time. The expert testified that the usual method of laying such a sidewalk was to place under the flagstones a layer of gravel or ashes; that he had dug under the stones at the place of the accident and found no such layer for foundation; that for this reason, in his opinion, the sidewalk had been improperly constructed in the first place. However, it is in the evidence that this expert is only twenty-six years of age, and he frankly admitted that he had no knowledge of the approved method of laying flagstone sidewalks twenty or more years ago.

In this posture of the case, we are of the opinion that the plaintiffs had failed to present a prima facie case of negligence which the defendant was called upon to answer, that the rule of Braelow v. Klein, supra, is not applicable, and that the nonsuit was properly directed.

The judgment is affirmed.


author: Lloyd, J.

text:
    JANE SOLOMON AND SAMUEL SOLOMON, PLAINTIFFS-APPELLANTS, v. THE ALPS KANDY SHOPPE, INCORPORATED, DEFENDANT-RESPONDENT.
    Submitted October 11, 1935
    Decided February 13, 1936.
    Before Bbogan, Ci-iiee Justice, and Justices Lloyd and Donges.
    For the appellants, McCarthy \& McTague and Theodore D. Parsons (James A. McTague, Jr., of counsel).
    For the respondent, Durand, Ivins <cé Carton.

   Lloyd, J.

The plaintiff Jane Solomon was injured by falling over the platform of a weighing scale which in her complaint she alleged to have been negligently placed in the path of exit as she left the restaurant of the defendant. A verdict was directed for the defendant on the ground that there was a variance between the complaint and the proofs, and from the consequent judgment the plaintiff appeals.

The variance claimed was that a weighing scale, having a base of fifteen inches square and a registering face a few inches wide four or five feet above, and supported by a narrow upright, was in a recess at the end of the defendant’s soda counter and not in the path of plaintiff’s leaving the restaurant. The plaintiff’s proofs did establish, however, that as the plaintiff was leaving the store she stepped into this recess between the end of the soda fountain counter and the front wall of the store to obtain a toothpick, as she had been in the habit of doing on previous occasions, and that she stumbled over the base of the scale which she had not observed. No objection was made to this proof, but at the end of plaintiff’s evidence a motion for nonsuit was made and denied. Later the motion for direction was sustained. While on the motion for direction a number of grounds were given, namely, the absence of defendant’s negligence, the negligence of the plaintiff, and the variance in the proofs, the judge ruled on the variance alone.

The defendant contends that the judgment should be sustained on the ground set forth as the reason stated by the judge, and also on the further grounds that there was no negligence on the part of the defendant and that there -was negligence on the part of the plaintiff. It is to be noted that when the motion for direction was made the plaintiff asked leave to amend her complaint (the point of variance was then made for the first time, not having been raised at all on the motion for nonsuit) and this application was denied by the trial judge.

Tt is clear that the judgment cannot be sustained on the ground of variance, even though a variance existed, which is doubtful, the obstacle being in a passageway incidentally available on the plaintiff’s way out. The evidence to establish tlie plaintiff’s case was, however, given without objection, and the case appears to have been elaborately tried by the parties for the major part of twro days without objection. The practice of our courts in such case has been to permit an amendment to conform to the proofs, and if necessary to sustain the judgment, to permit an amendment in the reviewing court. Zick v. Smith, 95 N. J. L. 388 ; 112 Atl. Rep. 846; affirmed, 97 N. J. L. 351; 116 Atl. Rep. 927.

The error, however, is not available to the plaintiff if other points urged on the motion were sufficient to justify the ruling.

As to the defendant’s negligence, the facts as proved showed that the restaurant was composed of a lunch counter at which food was served to persons sitting on fixed stools. At the end of the counter and between that and the front wall of the store there was a recess thirty-six inches wide and extending back to the side wall of the store, mailing an L of the counter on which was the container holding the toothpicks. As already stated these toothpicks had been there upon previous occasions for the use of patrons. The scale had not always been there. Indeed there was testimony that the last time the plaintiff visited the restaurant it was not there. An invitation could be implied for patrons to avail themselves of the toothpicks as they were leaving, and if this be so, there was a duty to provide a reasonably safe place in which to exercise this privilege. From the evidence this duty, a jury might find, had not been complied with.

As to contributory negligence, we think this was also for the jury. The duty to observe the danger is not so clear that we can say that as matter of law the plaintiff was guilty of contributory negligence in stepping into the recess without observing the danger. The top of the scale which did not obstruct her passage, would of course be clearly observable, but the base would be at her feet where she might assume that the way was clear. On no one of the grounds urged can the judgment be sustained.

The judgment is reversed, and a venire de novo awarded.


text:
    ESSEX INVESTMENT COMPANY, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE CITY OF NEWARK, DEFENDANT.
    Submitted January 21, 1936
    Decided March 2, 1936.
    Before Justices Parker, Case and Bodine.
    For the prosecutor, William F. Nies.

    For the defendant, Jules F. Tepper.

   Per Curiam.

This is a zoning case. Prosecutor seeks to establish a gasoline and automobile service station at the westerly corner of Bergen street and Sheerer avenue, in Newark. The premises lie in the district called in the zoning ordinance the second business district, wherein the desired use is prohibited. The zoning enforcement officer refused a permit; the board of adjustment on appeal reversed this and recommended a permit, limited to eight years; the board of city commissioners after a hearing and a rehearing, disapproved the recommendation of the board of adjustment, and refused a permit, under authority of the statute. Pamph. L. 1928, ch. 274, § 9; Cum. Supp. Comp. Stab. 1925-1930, § *136-4200J(9). That refusal is challenged under this writ.

The usual constitutional reasons are argued, deprivation of property, due process of law, equal protection of the laws, &c. They have been considered in this, as in many previous cases. The jurisdiction to restrict the use is now too well settled under our. constitutional amendment and act of 1928 to require discussion. The determinative question seems to be, did the city commission act unfairly, arbitrarily, and without affording a proper hearing? We are clear that they did not. There were two separate hearings, at which the commission heard all that the prosecutor undertook to present. It appears satisfactorily that within three blocks on Bergen street there are two other fully equipped gas stations, and three garages where gasoline and oil are sold. Some months previpusly this, prosecutor and a competing concern applied and were refused. The commission held, and we think properly, that the existing facilities were ample, and that additions to them would depreciate property values—a feature specifically covered by the statute. Gabrielson v. Glen Ridge, 13 N. J. Mis. 142; 176 Atl. Rep. 676. The burden of showing its action unreasonable is on the prosecutor, and we do not think this has been shown.

The writ will be dismissed, with costs.


text:
    ARTHUR T. McMICHAEL, PROSECUTOR, v. CITY OF SOUTH AMBOY, DEFENDANT.
    Submitted January 31, 1936
    Decided March 5, 1936.
    Before Justices Pakkeb, Case and Bodine.
    For the prosecutor, John P. McGuire.

    For the defendant, W. Holt Apgar.

   Per Curiam.

The attack is upon an ordinance of the city of South Amboy, finally approved April 30th, 1935, abolishing the office of city engineer on the stated ground of economy. The prosecutor held that office, and challenges the ordinance on several grounds, particularly that it was not enacted in good faith. We find it unnecessary to go into the general merits, as we consider that the prosecutor has been guilty of inexcusable laches. The ordinance passed first reading on April 16th.

Immediately after its final passage on April 30th, prosecutor indeed consulted counsel, who advised non-action for the time being. After nearly two months, prosecutor discharged his original counsel and employed other counsel, who finally obtained a rule to show cause which bears no date, as printed, but which was served on July 24th. This was the first step in any court procedure. On July 23d the council had passed an ordinance for certain public work according to plans, &c.,

of another named engineer. The argument now is, as we read the brief, that this new ordinance was the first overt act since prosecutor was ousted, and that he acted with great promptitude in moving on the following day. But we fail to see why any act could be more overt than an ordinance abolishing his office. That was the time for him to attack, and not until after he had waited several months until the council inaugurated an important new work under the supervision of another engineer. In view of his inaction they might well conclude that he had accepted the situation created on April 30th. The case is within the spirit of Jacoby v. Carteret, 12 N. J. Mis. R. 199, 202; 170 Atl. Rep. 613, and Porskievies v. Borough of Atlantic Highlands, 13 N. J. Mis. R. 586; 180 Atl. Rep. 236; 13 N. J. Mis. R. 747; 181 Atl. Rep. 144.

The writ will be dismissed, with costs.


author: Yillani, Police Court Judge.

text:
    Third Criminal Court of the City of Newark.
    CITY OF NEWARK, WILLARD A. REED, SUPERINTENDENT, COMPLAINANT, v. ABE LAFER, TRADING AS LAFER DISTRIBUTING COMPANY, DEFENDANT.
    Decided March 12, 1936.
    For the complainant, Sidney Simandl.

    For the defendant, Martin Klughaupt.

   Yillani, Police Court Judge.

The defendant is charged by the complainant with haying violated section 360 of the ordinance of the city of Newark, in that “defendant on the 13th day of August, 1935, did sell to one, Nick Szkolas, certain barrels containing a commodity known as lager beer, as and for fifteen and one-half (15%) gallons of said lager beer, when in truth and in fact the true measure thereof contained in said barrel was thirteen and one-half (13%) gallons.”

The defendant contends that section 360 of the ordinance of the city of Newark is invalid as contrary to section 7, article X of the Home Rule act (Pamph. L. 1917, p. 347, § 7, art. X; Cum. Supp. Comp. Stat. 1911-1924, p. 2105, § *136-1007, 7) in that the ordinance fixes a minimum penalty of $25 thereby depriving the magistrate of any discretion in fixing the penalty. I think such contention is well taken.

The pertinent part of section 360 which defendant challenges is as follows: “Any person * * * that * * * sells * * * less than the quantity represented of any commodity * * * shall for the first offense be liable to a penalty of not less than twenty-five dollars ($25.00) or more than fifty dollars ($50.00) * *

Section 7, act X, of the Home Enle act (supra,), provides: “The governing body of every municipality may prescribe' a penalty * * * for violation of any ordinance * * * either by imprisonment in the county jail or in any place provided by the municipality * * *, not exceeding ninety days, or a fine not exceeding two hundred ($200.00) dollars or both.”

The statute clearly on its face deprives the municipality of the power of fixing a minimum penalty.

The cases of Massinger v. Millville, 63 N. J. L. 123; 43 Atl. Rep. 443; La Forgia v. City of Hoboken et al., 160 Id. 502, and Friedman v. Maines, 8 N. J. Mis. R. 703; 151 Atl. Rep. 472, hold that the taking away of the magistrate’s discretion in lessening the fine is in violation of the Home Eule act, section 7, act X, supra.

“It will be seen that the ordinance should only have fixed the maximum of fine as provided by the statute leaving to the magistrate the exercise of the discretion imposed by statute. Instead, the council of the city exercised this discretion in the ordinance without * * * reference to the

circumstances of the violation and deprived the magistrate of any consideration of whether his discretion should be exercised in the dealing with the offender to inflict a lesser fine.” Massinger v. Millville, supra.

Tor this reason the ordinance is invalid and the complaint must be dismissed.

Therefore it is not necessary to consider the other points raised.


author: Porter, C. C. J.

text:
    EASTERN ACCEPTANCE CORPORATION, A CORPORATION, PLAINTIFF, v. FREEMAN A. GODFREY, AS SOLE SURVIVING PARTNER OF THE CO-PARTNERSHIP OR FIRM DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF GODFREY-KEELER COMPANY, DEFENDANT.
    Decided March 3, 1936.
    For the plaintiff, Arthur T. Vanderbilt.

    For the defendant, Landau & Mehler.

   Porter, C. C. J.

The motion before me, as a Supreme Court commissioner, is to strike part of the answer and the counter-claims.

The complaint alleges:

(1) That the plaintiff is a New Jersey corporation with its principal office in Newark.

(2) That the defendant, Freeman A. Godfrey, was a partner of William Keeler doing business as Godfrey-Keeler Company, and that since the death of Keeler, October loth, 1933, he became sole surviving partner of said firm.

(3) That on various dates the plaintiff purchased from the defendant certain therein described unmatured promissory notes made payable to the defendant, which notes were duly endorsed by the defendant and his said partner and which are still owned by the plaintiff.

(4) That said notes upon maturity were duly presented for payment and payment refused, notice of which was given the defendant firm.

(5) That on October 28th, 1931, a written contract was entered into between plaintiff and defendant firm, wherein the plaintiff agreed to buy and the defendant firm to sell certain promissory notes, which notes the defendant firm warranted would be paid, notice of demand and protest being waived by defendant firm; that all of the notes in suit were purchased under the terms of said contract.

(6) That certain attorney’s fees and expenses have been and will be incurred in the collection of said notes.

Recovery is sought for the amount due.

The answer admits certain of the allegations and says:

(1) That certain of the notes were paid.

(2) That certain of the notes were delivered to the plaintiff by the defendant without consideration.

(3) That the transactions were not the purchase and sale of the notes, but the discount of same; that such was an illegal transaction because the defendant was not authorized to discount notes, not having the powers of a bank.

(4) That the discounts took place in the State of New York contrary to the laws of that state and therefore are void.

(5) That the transactions were void and unenforceable under the laws of New York because usurious.

The counter-claims are based upon allegations that the plaintiff retained for itself part of the proceeds of the discount of the notes, some of which have been paid to the plaintiff by the makers. None of said retained moneys have been paid to the defendant.

Rrom the pleadings, affidavits, and briefs before me, it appears that the transactions between the parties were the quite general ones between a finance company, so-called, and a merchant whereby, in effect, the plaintiff, the finance company, furnished funds to the customers of the merchant, the defendant. The practice was for the defendant to sell goods under conditional sales agreements and to accept notes of the customers for part of the consideration made payable to them and to endorse same over to the plaintiff with an assignment of the sales agreements as security. The plaintiff would then pay over to the defendant the amount of the notes, less a portion which was retained by it as further security.

At the inception of this arrangement a written contract was entered into between the parties to the suit, which contract sets forth the conditions under which business was to be transacted between them. This contract is dated October 28th, 1931. It is apparent that this contract was entered into in good faith by both parties, that considerable business was transacted under it, and it may be assumed, nothing to the contrary being shown, that its terms and conditions were complied with for a time, at least, until this controversy arose.

The defendant repudiates the contract, arguing that it is an illegal one and has therefore no binding effect, but agrees in his brief that it evidences, however, the intention of the parties. That is true. Considering the question of where the transactions took place and whether the laws of this state or of New York are to govern and considering the proofs before me, together with the contract, which specifically provides in clause G that the laws of New Jersey shall govern as to “validity, enforcement, interpretation, construction, effect and in all other respects,” I am of the opinion that the laws of this state apply. No question of fact is presented on that point. Nor do I find any question of fact raised on the matter of consideration.

That brings me to the main question which is raised; that the notes were not purchased as alleged but were in fact discounts. On the proper answer to this question hinges the solution of the case.

A review of the many cases cited in both briefs, together with the facts before me. lead me to the conclusion that the notes were purchased and that the parties clearly so intended by their said contract and by their conduct. General Motors Acceptance Corp. v. Midwest Chevrolet Co., 66 Fed. Rep. (2d) 1; Meserole Securities Co. v. Cosman, 234 N. Y. Supp. 264; Brittin v. Freeman, 17 N. J. L. 191.

The plaintiff did not, in my opinion, engage in the banking business under the facts in this ease. Not only were the notes not discounted but also it did not come within the statutory definitions of a banker by reason of its retention, under the circumstances, of a portion of the moneys involved.

Construing section 6 of our Banking act (1 Cum. Supp. Comp. Stat. 1911-1924, p. 118, § 17-6), together with section 3 of our General Corporation act (2 Comp. Stat., p. 1600), it seems clear that the legislative intent was to define a bank as one conducting the business of banking, by not only the discounting of bills, notes, &c., but by receiving deposits. There can be no bank if there are no deposits. That is its primary and one of its most important and necessary functions. Its deposits, rather than its capital, furnish its life blood and enable it to function as a bank. In the instant case the moneys retained are not deposits nor do they serve the same purpose as deposits as in the usual banking business. Here it is the capital furnished by the stockholders of the plaintiff corporation which is used in the business, not deposits. This is so, even though these retained moneys may be used in the business. The primary purpose of retaining same is as security and not to build up a fund for further transactions even though incidentally the moneys may be so used. The mere fact that the plaintiff holds itself out on its printed stationery as being “bankers,” which is the fact, while inconsistent with its denial here, does not under all the facts constitute it a banker within the legal meaning of that term.

But quite aside from these views, it is not disputed, as before stated, that there was a contract entered into and under which the parties hereto operated. The defendant received the benefits thereof. The transactions were not void even though it may be said they were unauthorized by plaintiff’s charter and so an ultra vires act. The doctrine of estoppel applies and the defendant may not be heard in defense on the ground of the illegality of the transaction. Earle v. American Sugar Refining Co., 74 N. J. Eq. 751; 71 Atl. Rep. 391; Treacy v. Vigersky, 10 N. J. Mis. R. 410; 159 Atl. Rep. 312; Campbell v. Perth Amboy Ship Building, &c., Co., 70 N. J. Eq. 40; 62 Atl. Rep. 319; Fritz v. Palmer, 132 U. S. 282; Camden A. Railroad Co. v. Mays Landing, &c., Railroad Co., 48 N. J. L. 530; 7 Atl. Rep. 273.

These views lead to the conclusion that the defenses mentioned and the counter-claims are without legal merit and must be struck.


author: Morrison, D. C. J.

text:
    District Court of New Brunswick.
    EBENEZER BAPTIST CHURCH, PLAINTIFF, v. JOHN BARBER, DEFENDANT.
    Decided February 29th, 1936.
    Dor the plaintiff, Meyer A. Reubin.

    Dor the defendant, Oliver Randolph.

   Morrison, D. C. J.

This is an action for a dispossess brought under subdivision 2 of section 107 of the District Court act (2 Comp. Stat., p. 1988), brought by the Ebenezer Baptist Church, a religious society incorporated under the laws of this state through its treasurer, Barton Tatum, against one John Barber to recover possession of the parish house occupied as tenant by John Barber, by reason of his failure to pay upon demand, the monthly rental of $20 on the 1st of Debruary, 1936, for the month of Debruary to the said Barton Tatum. The following are the facts:

It appears that the said John Barber entered into possession of the parish house in the year of 1929 pursuant to an agreement between the then existing officers of the said church and the said John Barber, at a monthly rental of $25 per month, payable in advance on the first day of each month. It seems that the said John Barber has been in possession under the said agreement up to the time this action was brought, and for sometime prior to the institution of this suit had been paying his rent to one Earl McCargo, who, it seems, was treasurer of the said church until an election on January 6th, 1936. On January 6th, 1936, the regular annual church election was held, resulting in the election of new sets of officers who were elected for a term of one year. Earl McCargo, it seems, was not re-elected as treasurer, but Barton Tatum succeeded to this office.

Since the election of January 6th, 1936, the newly elected officers have been in complete physical possession of the church premises. The rules, customs and by-laws governing the said church seems to have been observed by the officers now in possession, and no evidence has been presented to show otherwise. Necessary supplies such as fuel and so forth were purchased by the present officers and paid for by the treasurer from a cheeking account in the name of the church in the National Bank of New Jersey, New Brunswick, New Jersey. Church books are being kept by the church clerk and routine details connected with the administration such as correspondence, minutes and so forth, are similarly handled. Obligations incurred in behalf of the church have been paid and church business appears to be conducted in an orderly and businesslike manner. Church services have been conducted regularly each Sunday by duly ordained ministers, and fees for the same have been paid. Rev. M. Benjamin Gaines was chosen by the officers and members as permanent church pastor, and church functions and services have been held under his direction and supervision. Rev. Gaines’ salary has likewise been paid for by the present officers.

On January 17th, 1936, the newly elected officers authorized a committee to notify John Barber to pay all future rents on the parish house to Barton Tatum, treasurer. This notice was duly served and on February 1st, 1936, when the monthly rent became due, upon demand, Mr. Barber refused to pay his rent to the said treasurer. Thereafter, at the meeting of the officers a resolution was adopted authorizing the said Barton Tatum to institute this action in behalf of the said church.

At the trial of the said cause, motion was made to admit certain individuals as party-defendants in the said cause, contention being made that these were the proper officers of the .church and have an interest in the subject-matter of this suit. This motion was denied for reasons which will hereafter be discussed.

Mr. Barber at the trial produced a receipt showing payment of $20 for rent on the parish house for the month of February, which receipt was signed by Earl McCargo, who has, as hereinbefore stated, been the treasurer prior to the election of January 6th, 1936. Mr. Barber testified that he paid this rent after notice to him by the present officers, and justified this payment by saying that he did not recognize the present officers as the proper officers, of the said church, nor did he recognize Barton Tatum as the church treasurer, and refused to pay him any rent. He admitted that the premises in question was let to him by the governing board of the church in the year of 1929.

Counsel for the defendant first contends that his motion to admit others as party-defendants should have prevailed. I have examined the District Court act pertaining to landlords and tenants and have been unable to find any authority therefor. This question has been raised in the case of Brahn v. Jersey City Forge Co., 38 N. J. L. 74, and Judge Van Syckel for the Supreme Court, stated on page 80:

“The act makes no provision for admitting other parties to defend and there is nothing in the statute which, by implication, would seem to justify such a practice.”

See, also, State (McMahon, Prosecutor) v. O’Brien, 58 N. J. L. 548; 33 Atl. Rep. 848.

Obviously, admitting in this case other parties to defend, whose claim to office conflicted with the present officers, by whose authority this suit has been instituted, would result in this court’s determining the right to an office. This cannot be done by this court. The courts of this state have repeatedly held that the only method by which the right to an office can be judicially determined in this state is by proceedings in the nature of a quo warranto and this is true not only with relation to state and municipal offices but also those of religious as well as secular. Tonkin v. Kenworthy, 112 N. J. L. 274; 170 Alt. Rep. 233; Smith v. Trustees of Bethel African Methodist Episcopal Church of Jersey City, 89 N. J. L. 397; 99 Alt. Rep. 102; Schilstra et al. v. Van Den Heuval et al., 82 N. J. Eq. 155; 90 Atl. Rep. 1056. Since no direct adjudication of the title to the disputed offices has been made by the proper tribunal, the same cannot be inquired into collaterally. Rhinesmith y. Goodfellow, 111 N. J. L. 604; 169 Atl. Rep. 279; Weitz v. Preston, 113 N. J. L. 271; 174 Atl. Rep. 429.

Having determined that title to the offices of the church cannot be inquired into collaterally, it becomes necessary to decide to whom the defendant, John Barber, is obligated to pay his rent. Although no evidence has been presented impugning the title of the present officers of the church, their present authority can, in law, be supported, at least, as de facto officers of the Ebenezer Baptist Church. Mr. Justice Parker, in the case of Walsh et al. v. Thompson, 87 N. J. L. 49; 93 Atl. Rep. 857, said:

“A similar rule prevails with regard to collateral attack on the status of a de facto officer, such as the relator. His acts as such de facto officer are valid as to the public and third persons. Citing Mitchell v. Tolan, 33 N. J. L. 195. His title need be no more than colorable. Citing State v. Zeller, 83 N. J. L. 666; 85 Atl. Rep. 237.

“So long as a person actually occupying and exercising the office as part of an actually operating government of the township under color of title presents the claim on behalf of the township, the county clerk is fully protected in making the payment and the courts will take care of its proper application. In such case his duty is plain, and that is to pay over the money to the officer shown to be exercising the functions of the office under color of right. The public interest demands that the duties of the office be performed, and that the machinery of government be not stopped because of any dispute as to who is to operate it.”

To the same effect is an opinion by the Court of Errors and Appeals rendered by Judge Van Syckel:

“If the officers elected are ineligible or are elected irregularly or illegally but they are allowed by the proprietors of the corporation to take control of its property and to exercise their functions and powers, they become officers de facto, and as such may act for and bind the corporation. An officer de facto is one who has the reputation of being the officer he assumes to be and yet is not a good officer in point of law. From a very early time it has been held that the acts of de facto officers are binding upon the corporation until they are lawfully ousted so far as their acts create rights in favor of third persons.” Kuser el al. v. Wright, 52 N. J. Eq. 825; 31 Atl. Rep. 397.

Although the above cases referred to did not deal with the offices of a religious society, yet the same principle has been invoked in an early ease involving a dispute to title of office of a church. This case holds:

“That where persons are officers de facto they are in colore officii; and their acts will be valid until they are lawfully ousted; and more especially as they respect third persons their acts are binding on the corporation.” Doremus v. Dutch Reformed Church, 3 N. J. Eq. 332.

This ease was cited by the court in the case of Stockton (Attorney-General) v. American Tobacco Co., 55 N. J. Eq. 352; 36 Atl. Rep. 971. The court there refused to examine the legality of the election of the officers who had filed an answer, holding them clearly de facto officers, and the same case was again cited by the Court of Errors and Appeals in Kuser v. Wright, supra, wherein the same rule was enunciated and applied, the' court saying: “This rule has never been departed from in this state.”

The facts in the case at bar are clearly within the rationale of'the cases referred to. The present officers under which the treasurer Barton Tatum brings this action have been in peaceable possession and control of the church property and affairs since their election. They occupy their office under a color of right, viz., the election of January 6th, 1936, and therefore within the purview of the above enumerated cases, the ruling of which, established their status, at least as de facto, until their alleged incumbency is directly adjudicated by the proper tribunal.

Our next consideration is whether the present officers have the authority to act in behalf of the church in the collection of rents from the defendant. Mr. Justice Parker cites a number of cases relating to the powers and functions of de facto officers in the opinion of Walsh v. Thompson, supra:

“Such an officer is entitled to recover the lawful compensation for the office, citing Erwin v. City of Jersey City, 60 N. J. L. 141; 37 Atl. Rep. 732. Brinkerhoff v. Jersey City, 64 N. J. L. 225; 46 Atl. Rep. 170. A de facto treasurer is entitled to taxes received by the tax collector, citing Trescott v. Moan, 50 Me. 347. * * * A de facto school board may recover school funds (School Commissioners v. School Commissioners, 77 Md. 283; 26 Atl. Rep. 115); in Harvey v. Philbrick, 49 N. J. L. 374; 8 Atl. Rep. 122, a de facto borough commission ordered payment of a claim and its disbursing officer refused to pay it on the ground that the commission was not de jure, but this court ordered mandamus saying that as the commission was a de facto body, the treasurer had no option and that his duty was to pay.”

The collection of rents by the officers of the church for the parish house belonging to the said church is a proper exercise of the functions of the said offices. John Barber has no option and his duty was to pay his rent to the officer designated to collect the same. His position is peculiarly analogous to the facts in the case of Walsh v. Thompson, supra, the court on page 858 deciding:

“In this case the money demanded belongs to the township. The county clerk is commanded by the statute to pay to the person entitled to the legal custody of the funds of the township. It is no part of the clerk’s duty to decide who, in the last analysis, is that pei’son; only the court, on a quo warranto, can do that.”

Ergo, it is not the tenant’s dutjr to decide a dispute as to the authority to act for the plaintiff, it is his duty to pay his rent to the persons actually occupying and exercising the offices of the church under color of title.

Defendant contends that his attornment to Earl McCargo precludes the present action. However, he does not deny a relationship of landlord and tenant between him and the Ebenezer Baptist Church. He does deny the authority of the present officers to act in behalf of the church in the collecting of rents from him. Having come to the conclusion that the present officers had the authority of collecting rents from him, it follows that his attornment, despite due notice from the present officers to one other than to whom he was directed to pay, was to a stranger and within the enactment of section 26, of the Landlord and Tenant act (3 Comp. Stat., p. 3076), and rendered thereby null and void.

Defendant in his brief raises the question as -to the sufficiency of the affidavit of Barton Tatum, as agent for the Ebenezer Baptist Church. The affidavit alleges that the deponent (Barton Tatum) let the premises to the defendant, whereby the proof at the trial disclosed that the premises in question was let by the governing board of the said church in the year of 1929. Obviously, since the affidavit was made by Barton Tatum in a representative capacity, it might be construed that the allegation was meant to describe the letting by the principal for which Mr. Tatum was acting. However, it is not necessary to decide this point since the defendant made no motion to the jurisdiction of this court based upon the insufficiency of the said affidavit either before or during the trial of this cause. He does so now for the first time in the brief submitted in his behalf.

Defendant, by appearance in court, pleading and examination of witnesses, waived his right to object to the jurisdiction of this court based upon the alleged insufficiency. Palmer v. Sanders, 51 N. J. L. 408; 17 Atl. Rep. 1084; Fowler v. Rowe, 25 N. J. L. 549, (see p. 553); Moreland v.Steen, 89 Id. 383; 99 Atl. Rep. 135.

It is apt to quote from the case of Newing v. State (Stilwell), 67 N. J. L. 96; 50 Atl. Rep. 493, wherein the court said on page 494:

“The record before us shows that the defendant appeared and contested the case, yet it does not show that objection was made because of the alleged insufficiency of the description of the premises. It is quite evident that the defendant knew what premises were intended by the affidavit.”

Likewise in this case, defendant appeared and contested the action and admitted on the stand that the premises had been rented to him by the Ebenezer Baptist Church.

At no time has he denied a relationship of landlord and tenant between him and the plaintiff.

Let judgment of possession be entered.


author: Grosman, A. M.

text:
    Ethel Richards, complainant, v. Charles R. Richards, defendant.
    [Decided March 19th, 1936.]

      Mr. Arthur L. Hurst, for the petitioner.

      Mr. John J. Flaherty, Jr., for the respondent and cross-petitioner.
   Grosman, A. M.

This matter is before the court on the application of the complainant to forfeit a ne exeat bond in the sum of thirty-five hundred dollars ($3,500), given by the defendant, Charles R. Richards, deceased, as principal, and John J. Flaherty, Jr., as surety; as well as on the cross-application of the surety to vacate said bond and exonerate him thereon because of the death of said Charles R. Richards. The complainant concedes the death of said principal, but urges a forfeiture of the bond because his death was self inflicted, the principal having committed suicide.

Complainant in the first instance initiated a suit in this court against the defendant for separate maintenance by suing out a writ of ne exeat under which the defendant entered into a bond conditioned as provided by rule 216 of this court, namely:

“That he shall cause his appearance to be entered in said suit and continue such appearance by a solicitor of this Court, residing in this State; and shall at' all times render himself amenable to the orders and processes of this Court pending the suit, and to such other processes as shall be issued to compel the performance for the final decree therein, when so required by order of this Court.”

The respondent, John J. Flaherty, Jr., became surety thereon and deposited the sum of thirty-five hundred dollars ($3,500) in cash, with the sheriff of Atlantic county to secure the performance of his obligation. The bond was executed the 24th day of November, 1933, and thereafter, until his death on July 25th, 1935, the defendant lived up to all his obligations thereunder. The issue here presented is whether the suicidal death of the principal warrants a forfeiture of said ne exeat bond, or a cancellation thereof, and the exoneration of the surety.

The proposition is without precedent in this state, so far as I have been able to ascertain. This is all the more remarkable because of the antiquity of this writ. Long before the establishment of the American colonies, the English courts made common use of this process, it then being designated as the “writ of ne exeat regno ” while under our practice it is known as the “writ of ne exeat repúblicaIn an anonymous English case reported in 1 Atk. 521, it was held that “the writ of ne exeat regno was originally confined to state affairs, but is now very properly used in civil eases.” Perhaps the very antiquity of this writ and its thorough entrenchment in our equity jurisprudence-is responsible for the dearth of judicial decisions in this state pertaining to the obligations of parties to bonds given thereunder.

In the case of Penny v. Penny, 88 N. J. Eq. 160; 102 Atl. Rep. 257, Backes, V. C., held that:

“Bonds conditioned to obey writs of ne exeat are in the nature of equitable bail, and the obligations of sureties are substantially the same as bail at common law.”

This being so, we must have recourse to the decisions of our law courts for enlightenment upon the issue here presented. As far back as 1791 we find that the New Jersey Supreme Court, in the case of Armstrong v. Davis, Bail of Carson, 1 N. J. L. 130, per curiam, directed entry of an exonerature on a bail piece, upon the ground that the principal was dead.

In 1841 the supreme court, in the case of the State v. McNeal, Crane & Huntsman, 18 N. J. Law 333, directed the exoneration of sureties on a bail bond, after the same had been forfeited, because of the principal’s death, holding that:

“This court may, by virtue of the incidental powers appertaining to its constitution and jurisdiction, grant relief to bail, on petition, when not restrained by public justice, where the default of the principal was occasioned by sickness or death.”

To the same effect is the case of State v. Traphagen, 45 N. J. Law 134, where once again after the recognizance was forfeited, the court decree the exoneration of the sureties because of the death of the principal, Mr. Justice Scudder, speaking for the supreme court (at p. 186), holds:

“* * * the effort of the surety to secure the appearance, and thereby further the purpose of the law, was frustrated by the act of God. This should excuse the bail and stop this action against him. Where the performance of the condition of the recognizance is rendered impossible by the act of God. by the law, the obligee, or the conusee, a default is excused. Where the bail could not reasonably anticipate and prevent the default, and with proper diligence find and surrender his principal, after default, before death intervened to prevent it, a proper case is made for this court to relieve the surety, on petition.”

It will be observed that in the cases of State v. Traphagen, supra, and State v. McNeal et al., supra, the court, upon proof of the principal’s death, directed the entry of an exonerature on the bail piece after “the bail had become fixed by the default of the principal, before his death.” This commendable zealousness on the part of our law courts to grant relief to bail where the defaut results from causes beyond the control of the surety, meets with ready approval on the part of this court, which from time immemorial has held “forfeitures to be abhorrent.”

The gravamen of the complainant’s argument for forfeiture is that the principal’s death in the instant case was self induced; that by having taken his own life, he, by his own act, made compliance with the conditions of his bond impossible. This reasoning, while intriguing, cannot be countenanced.

With one or two exceptions, which are immaterial to the issues here presented, death terminates the marital relationship and all obligations arising therefrom with the utmost finality. A forfeiture of a bond of this type cannot be predicated upon its occurrence, no matter how the demise of the principal may have been brought about, “death wipes the slate clean.”

The application to forfeit the ne exeat bond will be denied. The application of the surety to vacate the bond and for the entry of an exonerature thereon will be granted, and the sheriff of Atlantic county will be directed to return the money deposited by the surety to him. Submit an order, on notice.


author: Heher, J.

text:
    IN THE MATTER OF LEO S. LOWENKOPF, AN ATTORNEY AND COUNSELOR-AT-LAW.
    Submitted January term, 1935
    Decided March 13, 1936.
    Before Justices Hbher and Perskie.
    Por the rule, Douglas M. Hides.

    Contra, Edmund A. Hay os.

   The opinion of the court was delivered by

Heher, J.

We are in accord with the conclusion of the board of bar examiners that respondent, Leo S. Lowenkopf, has been guilty of unprofessional conduct. He embezzled the sum of $500 entrusted to his care by a client; and, in failing to perform a promise to pay over to a building and loan association, to whom the client was indebted, the sum of $88.31, to be credited on account of the indebtedness arising from the embezzlement, he put his client in default with the association, and thereby caused him substantial loss.

It remains to consider the disciplinary action to be visited upon respondent. The board recommends that he be suspended as an attorney and counselor-at-law for a period of one year, and until the further order of the court.

Respondent has reimbursed his client for slightly more than one-half of the embezzled moneys, and pleads that a lack of financial means has made it impossible to fully discharge the obligation thus arising. There is a suggestion in the proofs, however, that this is not the fact. Respondent for several years has been deputy clerk of the county of Middlesex, but the income from this office does not appear. If, notwithstanding his ability to remedy the wrong thus perpetrated, he has persistently refused so to do, his offense is of the deeper dye; and he thereby evinces traits of character that call for more drastic action. He makes evident a willful purpose to retain the fruits of his wrongdoing. But a suspension until the court shall order his reinstatement will suffice for the present. If an application to lift the suspension be interposed after the expiration of a year, further inquiry may then be had to determine whether respondent possesses the character requisite for the practice of law.

Let the report of the board of bar examiners be confirmed, and the respondent be suspended as an attorney and counselor-at-law for a period of one year, and until the further order of this court.


author: Parker, J.

text:
    MAX FIELDS, PROSECUTOR, v. VINCENT C. DUFFY, RECORDER OF THE CITY OF PATERSON, RESPONDENT.
    Decided March 17, 1936.
    Before Justices Parker, Case and Bodine.
    For the motion, Charles F. Lynch.

    Contra, Peter Cohn.

   The opinion of the court was delivered by

Parker, J.

In this case a conviction before the recorder of Paterson was set aside “with costs.” Fields v. Duffy, 115 N. J. L. 319; 180 Atl. Rep. 225. Motion is made to modify the rale for judgment by striking out the provision awarding costs to the prosecutor.

It is elementary that costs are in general a creature of statute. Certain apparent exceptions will be considered in a moment. Applying the rule, we find that under the Certiorari act, costs may be awarded to either party. Pamph. L. 1903, p. 343, § 10; Comp. Stat., p. 405; Pamph. L. 1911, p. 756. For the motion it is argued that the case is controlled otherwise by the act of 1927, chapter 320 (Pamph. L., p. 733), “respecting the Recorder’s Court in certain cities of the second class in this state.” Paragraph (h) of section 16 of that act reads: “No costs in any case shall be assessed against the recorder.” It seems to cover the present situation, and if binding on this court, must be followed. We think that it is binding. Certain other paragraphs, undertaking to control our jurisdiction and procedure in certiorari may be of at least doubtful validity, but they are not before us, and no opinion is expressed in regard to them; but we cannot say that paragraph (h) is in that class.

Tt is argued for the successful prosecutor that apart from our Certiorari act, this court has the common law power to award costs in certiorari cases; and several early decisions are cited. To us they do not seem to support this claim. In Randolph v. Bayles, 2 N. J. L. 52, costs of a capias satisfaciendum, in aid of writ of restitution were refused, the court saying “the act gives no costs upon reversals of judgment in cases of certiorari.” In Hann v. McCormick, 4 Id. *109, Chief Justice Kirkpatrick questioned the accuracy of the report of Randolph v. Bayles, but reiterates the phrase quoted. The act referred to was section 46, of the act for the trial of small causes, 1798. Pat. 313; Bloomfield 40 (at p. 68). The pertinency of these two eases is that this court expressly recognized the controlling force of a statute. In Montgomery v. Bruere, 11 Id. 168. a prosecutor in certiorari was subjected to costs on quashing the writ, the court remarking that there were many precedents. But this was the case of an unsuccessful prosecutor, not of a successful one. So in Allen v. Shurts, 17 Id. 188. costs were allowed to a successful defendant in certiorari. Chief Justice Hornblower sketched the history of the practice, and remarked that in Jewell v. Arwine, 1 Id. 38, “the court decided that on reversal of judgment in certiorari no costs can be awarded—secus [otherwise] on affirmance.” On page 190 at the end of the opinion, the court remarked that “courts of common law have long-exercised an equitable power in matter of costs.” But on the point now raised, this was clearly obiter, and the reported precedents are the other way. Later, however, the same Chief Justice, in Stiers v. Executors of Stiers, 20 Id. 52, refused costs to a successful prosecutor in certiorari, even as against the opposing party; and invoked the rule that “costs, co nomine, were certainly given by statute * * *.”

We think that what the legislature gave by section 10 of the Certiorari act, it can take away, in whole or in part; and the latter it has done.

Moreover, reasons of public policy would militate against costs being imposed in this class of cases upon a recorder or other judicial officer. He was acting as an inferior court, not as a party to the complaint and the judgment. To subject him, because of judicial error, to an amercement would be in our view something quite unprecedented.

The judgment will be amended by striking out the clause as to costs. Ho costs will be awarded on this motion.


text:
    CITY OF HOBOKEN, PROSECUTOR, v. STATE BOARD OF TAX APPEALS, AND HOBOKEN LAND AND IMPROVEMENT COMPANY, DEFENDANTS.
    Submitted January 31, 1936
    Decided March 17, 1936.

      Before Justices Parker, Case and Bodine.
    For the motion, David T. Wilentz, attorney-general (Duane H. Minard, of counsel).
    For the city of Hoboken, Horace L. Allen and Otmar J. Pellet.

   Per Curiam.

The writ in this cause, allowed September 18th, 1935, calls on the state board of tax appeals for the tax valuations of certain lands in Hoboken of the respondent Hoboken Land and Improvement Company, the appeals of said valuations, the proceedings and judgment of said board, &c. The formal return was made in due course; but at the time of allowing the writ, the Chief Justice, who allowed it, also made a rule that either party have leave to take depositions to be used in the argument of the cause. Acting under said rule, the prosecutor served subpoenas ad testificandum on members of the board, in the usual general form, to appear before a named commissioner of this court at a stated time and place, and testify in this cause. The present motion submitted on briefs at the present term, is to quash these subpoenas; on six specified grounds.

It would seem, judging from an ex parte affidavit of Charles V. Webb, printed in the ease, that a similar motion was made before the Chief Justice on December 12th last. Hothing appears touching his action thereon, if any; but as the writ had been returned two months previously, it may be assumed that he refused as a single justice to act in the matter.

The first ground stated is that “the rule to take depositions was improvidently entered.” But the attack is limited by the notice, and that challenges, not the rule, but the subpoenas.

The second ground is that “said rule is ineffective to require members of the state board of tax appeals to testify in response to said subpoenas.”

But it is quite conceivable that members of the board would be competent and necessary witnesses to matters relevant to the case, but not embodied in a formal return, and indeed, in contradiction thereof. This is common practice in the case of local boards, as for example, in Lehigh Talley Railroad Co. v. Jersey City, 81 N. J. L. 290, 295; 80 Atl. Rep. 228, and very recently in Oritani Field Club v. Hackensack, 12 N. J. Mis. R. 490; 172 Atl. Rep. 805, where depositions were taken to show that a false map had been returned. In Bayonne v. State Board of Tax Appeals, 13 N. J. Mis. R. 334; 178 Atl. Rep. 177, we said, and by no means for the first time, that the board was privileged to use its own knowledge and judgment, as in Long Dock Co. v. State Board of Assessors, 86 N. J. L. 592; 92 Atl. Rep. 439, where it was further held that members of the board could be examined as witnesses as to that knowledge. It is conceded that in a number of cases cited in the brief for this motion, evidence aliunde the record was proper; but it is said that this record is on its face complete, and in such case the rule should not apply. But on the face of things, the board discredited the evidence of expert witnesses and fell back upon “common sense and knowledge of the subject” as aiding in a decision. It would seem that the Long Dock case is clearly applicable.

These considerations are dispositive, not only of ground 2, but of ground 4, that testimony of members of the board would be irrelevant and immaterial; of No. 5, that the return is conclusive; and of No. 6, that no valid reason for the examination appears. As to No. 3, that the subpoenas were improvidently and illegally issued, if the city is entitled to examine members of the board, it is naturally entitled to subpoena them.

The motion to quash the subpoenas is denied, but without costs, the board being a state agency.


text:
    WILLIAM BOYCE, PETITIONER, v. HUDSON COUNTY MOSQUITO COMMISSION, PROSECUTOR.
    Submitted January 31, 1936
    Decided March 17, 1936.
    Before Justices Parker, Case and Bodine.
    For the prosecutor, Mark Townsend, Jr.

    For the petitioner, Joseph M. Alsofrom.

   Per Curiam.

This is a workmen’s compensation case. There is little doubt that at some time before midnight on August 10th, 1934, the petitioner sustained a fracture, apparently complete, of both tibia and fibula of the right leg. He was in the employ of the prosecutor commission at the time, and had been working during the day at various places in the county as helper on a truck from which oil was distributed and spread in cellars and other places likely to breed mosquitoes. Working hours ended at about five o’clock. His claim was that while coming up from a cellar with a can of oil and a "gun” (sprayer) he slipped and sustained the injury above described. The defense was that he had sustained no such injury while at work or at any time or place connected with his work. The deputy commissioner made an award in his favor, which the Pleas affirmed in a short memorandum containing no discussion of the evidence. This we have examined with care, and though not unmindful of the principle that the concurring view of the two lower courts on the facts should not be lightly disturbed, we feel that the testimony cannot reasonably support the conclusion that this double fracture, for which an award of forty per cent, loss of the right foot was made, occurred in the course of the petitioner’s employment, but it must have occurred after he stopped work for the day. He testified that while “coming up out of the cellar he slipped and whacked his shin, then went to the bottom of the cellar and turned over on his ankle;” that he thought it was a minor injury. That he walked across the street to the truck and told the driver he had “whacked his leg.” He got into the truck; and testified that he did nothing more that day. The truck driver, however, testified that Boyce made no complaint; that after that particular cellar Boyce oiled about fourteen others, carrying a five-gallon can of oil and a pump both ways, the can not being always full; that they returned to the garage shortly after five, and loaded up the cans, &c., for the next day, and Boyce lifted them into the truck; all without any complaint. Boyce on cross admitted that he was able to walk to the truck and get into it; that after reaching the garage and before arriving at home he was on his feet perhaps one and one-half or two hours, having pain “off and on” but he could stay on his feet. He testified that after arriving at the garage he went upstairs and saw Mr. McCarter, the chief inspector, and told him he whacked his leg in a cellar. That later he walked downstairs, got into McCarter’s car unaided, went to Mr. McCarter’s house and had some drinks over there, “sort of limbered the thing up a bit” and stayed till about nine-forty-five p. m., then went to a “place” (saloon apparently), drank there, and about eleven-fifteen took a cab home. No physician was called until about noon the next day, when Dr. Bussell discovered the fracture and ordered Boyce to the hospital. X-rays were taken, and they clearly disclose the fractures.

Mack, a witness for Boyce, said that while waiting outside McCarter’s office Boyce told him of a pain in the leg; that he was with Boyce the rest of the evening and nothing unusual occurred; that he noticed nothing unnatural in his walk, but paid no particular attention; and left him between ten-thirty and eleven p. m.

Boyce’s wife testified that he came home about eleven-ten and complained of his leg, but went to bed and Dr. Bussell was called the next day.

Dr. Bussell, sworn, said Boyce had a “terrific deformity of the right leg;” that he asked him how it happened, and was told that he “was wrestling with a fellow down town last night, and fell off a stoop and hurt his leg.” (This is denied by Boyce and his wife.) That both fractures were complete. The medical evidence was substantially uniform that they were disabling and would prevent walking.

McCarter testified that Boyce did not report any accident to him at the garage; that he was at McCarter’s house till about nine p. M., when they went to Tomlinson’s place, where Boyce was on his feet all the time; that he was “dancing and jigging” with two others, and without any indication of pain.

"We have no difficulty in concluding, on the uncontradicted testimony about the severity of the fracture, and as to what Boyce admittedly did thereafter by way of walking and climbing stairs, that he could not have sustained such a fracture while at work. That with it a man could walk across the street, board a truck, climb fourteen steps to McCarter’s office and down again, and sit in with a drinking party, all without any indication of severe pain, seems against all reason. We are clear that the evidence was far from sustaining the award, and therefore it must be set aside, and judgment entered for the prosecutor, with costs.


author: Lawrence, C. C. J.

text:
    THE CITY MORTGAGE COMPANY, A BODY CORPORATE, PLAINTIFF, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, A BODY CORPORATE, DEFENDANT.
    Decided November 9, 1935.
    For the plaintiff, T. Raymond Bazley and Harold McDermott.

    For the defendant, Charles H. Stewart.

   Lawrence, C. C. J.

This is a suit on an “errors and omissions” fire insurance policy issued to plaintiff by defendant on December 19th, 1930. It was submitted to the court without a jury, by consent, at the Monmouth Circuit. The occasion for the action involves the total destruction by fire, on April 9th, 1931, of a dwelling house, situate on a lot of land at Long Branch, in which property plaintiff had a mortgage interest of $4,500. The meritorious question is whether the evidence supports plaintiff’s claim under the terms of defendant’s policy. The defense is that through the neglect of plaintiff specific insurance on the dwelling in question to the amount of its mortgage interest had become invalid and remained in that situation at the time of the fire. Hence no recovery could be had on it. (See Bess Holding Co. et al. v. Importers and Exporters Insurance Company of New York, 12 N. J. Mis. R. 119; 169 Atl. Rep. 536.

The pertinent provisions of the policy in suit are as follows:

“$250,000 on the insured’s mortgage interest, subject to the terms, conditions and/or limitations of this contract, in buildings located within the limits of the State of New Jersey, covering loss to insured’s mortgage interest caused by fire or lightning damages to building property as above described, in which the insured has subsisting mortgage interest, when and only when the insured’s interest in said building property is not covered by specific fire and lightning insurance, because of errors and/or omissions in effecting such insurance, which result in (a) no specific insurance on said property, and/or (b) such specific insurance on said property being invalid. * * *

“2. Insured agrees to make every reasonable effort to secure and maintain valid specific fire and lightning insurance on each and all property covered hereby payable to the insured as mortgagee and in amounts not less than its mortgage loans thereon. * * *

“8. This insurance shall not be invalidated by any act or neglect of a mortgagor or owner of individual properties covered hereunder, nor by any foreclosure or other proceeding or notice of sale relating to said property, nor by any change in title or ownership of the property, nor by occupation of the premises for purposes more hazardous than are permitted by the individual fire and/or lightning policies covering building property in which the insured has a mortgage interest; provided, that in case the mortgagor or owner shall neglect to pay any premium due under specific policies covering the properties in which the mortgagee has interest, the mortgagee or trustee shall, on demand, pay the same.

“9. This is excess insurance and shall not be treated as contributing insurance with specific insurance.”

Factually the circumstances giving rise to the suit are: On May 31st, 1927, one Walter Tarasovis was the owner of the dwelling house and the lot on which it stood. He executed a mortgage on the property to the plaintiff mortgage company for $4,500. On June 17th, 1927, he caused the building to bo insured in the Importers and Exporters Insurance Company of New York (through its local agent) for $5,000, for a period of three years. A standard New Jersey mortgagee clause was attached in favor of the mortgage company as its interest might appear, containing among other provisions a stipulation that the mortgagee would inform the insurance company of any foreclosure proceeding or change of ownership of the property which should come to its knowledge. Tarasovis sold the property thereafter to Milicent Lawrence, of which change of ownership the insurance company had no notice, with the result that on June 17th, 1930, the company, through its local agent, sent the mortgage company a renewal policy for a like term of three years, reciting Tarasovis as owner, with the usual standard form of mortgagee rider attached covering plaintiff’s mortgage interest, and likewise containing the provision that any foreclosure proceeding or change of ownership which should come to its knowledge should be reported by it to the insurance company.

On March 12th, 1930, plaintiff began foreclosure proceedings on its mortgage. They were carried through to final decree and execution, and, on July 25th, 1930, having purchased it at the sale, the sheriff conveyed the property covered to plaintiff. On July 30th, 1930, it conveyed it to a subsidiary known as the Bess Holding Company, which in turn, on the same date, executed a bond and mortgage to plaintiff in the sum of $4,500, the amount of its earlier mortgage. /These transactions were not reported by plaintiff to the insurance company, nor did it otherwise receive notice thereof, its policy remaining in its original form without alteration or notation of change of ownership or mortgage security. Because of its provisions, including that in the independent mortgagee clause attached, the failure of either the owner or the mortgagee to report the change of ownership and the execution of the new bond and mortgage invalidated the policy.

■ On December 19th, 1930, the defendant insurance company issued to plaintiff its “errors and omissions” policy, provisions of which have been heretofore stated. This was excess insurance and not contributing with specific insurance on the individual properties in which plaintiff had subsisting mortgage interests. As indicated, at the time this policy was issued the specific policy of the Importers and Exporters Insurance Company had been invalidated; that is to say, while not canceled, because notice of the violation as to change of ownership of the property did not come to the insurance company until after a fire had destroyed the dwelling, the specific policy had become invalid several months before, by reason of the failure of plaintiff to inform the company of the foreclosure proceeding, the sale and change of ownership and the subsequent execution of a new bond and mortgage.

On April 9th, 1931, the dwelling house, which, with the land was then owned by Bess Holding Company, was completely destroyed by fire. The insuring company (Importers and Exporters Eire Insurance Company) refused to pay either the owner on the loss or plaintiff as mortgagee, because its policy had been invalidated. They instituted suit and were denied recovery for that reason. Ho appeal was taken and the judgment of no cause still stands. The evidence at the trial was that although plaintiff had had possession of the specific fire insurance policy in question and was charged with knowledge of its provisions, and the terms of the mortgagee clause in particular, it had done nothing whatever to either inform the insuring company of the change of ownership or to have a proper notation made on the policy as required. The result was that at the time of the fire it still carried the name of Tarasovis as owner and plaintiff as mortgagee and in that relation, that is to say, as the policy had originally been issued Tarasovis at the time was mortgagor and plaintiff mortgagee. When it expired it was renewed in like form. Plaintiff received it as it also had the original, but at no time made the slightest effort to have any change in ownership noted on either of the policies or the alteration in form of its mortgage interest. (See case cited above.)

Plaintiff now seeks to recover of defendant on its “errors and omissions” policy, alleging that the building at the time of the fire was not covered by valid specific insurance. The defense is that plaintiff is not entitled to recover because it violated the term of its policy whereby it agreed to make every reasonable effort to secure and maintain valid specific insurance on the dwelling, which, as disclosed by the evidence, it did not do. It failed to cause the original or renewal policies of the specific insurance to be examined, remained inactive in that respect, and therefore did nothing whatever to secure and maintain valid specific insurance on the property involved. While it was argued in its behalf that this was an error or omission on its part, which it did not discover until after the fire, it is to be observed that mere passive inaction resulting in a failure to perform a duty is not an error or omission such as is contemplated by the term of the policy in suit. State v. Vanderbilt, 33 N. J. L. 38. By the same token, it cannot be fairly said, as also argued, that the institution of the suit on the renewal policy of specific insurance was or is evidence of “every reasonable effort” to secure and maintain valid specific insurance. Evidence of what plaintiff did or did not do prior to the institution of that suit controls.

In the construction of an insurance policy the entire policy in all its parts must be considered, so that each clause shall have effect. Smith v. Fidelity and Deposit Co., 98 N. J. L. 534; 120 Atl. Rep. 322, and cases cited. Although it is the settled rule that policies of insurance will be liberally construed in favor of the assured so as to uphold the contract (Snyder v. Dwelling House Insurance Co., 59 N. J. L. 544; 37 Atl. Rep. 1022), and, in the event of an ambiguity in the terms, a meaning should be given which is most favorable to the assured (Smith v. Fidelity and Deposit Co., supra); still the law will not make a better contract for the parties than they themselves have seen fit to enter into, or alter it for the benefit of one party and to the detriment of the other; so that where a party by his own contract creates a duty or charge upon himself, he is hound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. He that agrees to do an act should do it, unless absolutely impossible. He should provide against contingencies in his contract. The law will not insert, for the benefit of one of the parties, by construction, an exception which the parties have not, either by design or neglect, inserted in their engagement. School Trustees v. Bennett, 27 N. J. L. 513; Kupfersmith v. Dela ware Insurance Co., 84 Id. 271; 86 Atl. Rep. 399. While paragraph 8 of the policy of defendant provides that the insurance should not be invalidated by any act or neglect of a mortgagor or owner of individual properties covered, nor by any foreclosure or other proceedings or notice of sale relating thereto, nor by any change in title or ownership of the property, this does not operate to the benefit of plaintiff who, in paragraph 2, agreed to make every reasonable effort to secure and maintain valid specific fire insurance on each and all property covered payable to it as mortgagee and in an amount not less than its mortgage loans thereon. Since it did not do so, it cannot recover in the present suit.

Judgment may be entered in favor of defendant and against plaintiff of no cause.