text:
    STATE OF NEW JERSEY v. SYLVIA TROSLA AND GAETANNO MANNO.
    Decided July 26, 1926.
    Crimes—Kidnapping—Kidnapping May be by Force or Under the Statute, it May be by Persuasion or Enticement—No Error Found in Court’s Comments on the Evidence—Objections to Testimony Not Made at Time it was Offered, and Testimony was Not Made Basis of Assignment of Error or Specified as Ground for Reversal—No Error Found in Admission of Evidence—Verdict Not Against Weight of Evidence.
    On error to the Essex Quarter Sessions.
    Before Gummere, Chibe Justice, and Justices Kalisch and Campbell. -
    Por the plaintiff in error, Edward Dillon.

    Por the state, John 0. Bigelow, prosecutor of the pleas.
   Per Curiam.

The defendants were indicted for, and convicted of the crime of, kidnapping one 'Vilma Gialanella, a girl thirteen years of age, and carrying her out of the State of New Jersey into the State of New York. The indictment was based upon chapiter 55 of the laws of 1907, which declares that: "Any person who shall kidnap or steal or forcibly take away any man, woman or child and send or carry such man, woman or child to any other point within this state, or any state, or shall force, pursue or entice any child within the age of fourteen years to leave his father, mother or guardian, and secrete or conceal the said child, shall be guilty of a misdemeanor.”

The first ground upon which we are asked to set aside this conviction is that the proofs do not support the charge in the indictment in this respect; that the indictment charged defendants with kidnapping and stealing this young girl, whereas, the proofs show they enticed her away, and the argument is that the kidnapping of a person implies the use of force. This point, however, was not raised at the trial. There was no motion to direct a verdict upon this ground, hot was there any motion in arrest of judgment. The matter, therefore, is not properly before us for our determination. For the satisfaction of counsel, however, it may be stated that we have given the point consideration and find it to be without merit. Kidnapping of a child under the age of fourteen years may be by force, or, under the statute, by persuasion or enticement.

Other grounds of reversal are directed at alleged erroneous instructions by the trial court in its charge to the jury. But the criticism of the portions of the charge specified by counsel are directed at comments on the evidence made by the court and suggestions growing out of the testimony. It has been repeatedly held that a trial judge is entirely justified in such a course.

Other grounds of reversal are directed at the introduction of testimony by the prosecutor. It is enough to say, in disposing of this point, that much of the testimony referred to in his brief by counsel was not objected to when it was offered, and that, as to the rest, it has not been made the basis of an assignment of error, or specified as a ground of reversal.

It is further argued that the conviction should be reversed because the court permitted a statement to be made by the prosecutor that the defendant Manno had admitted that he had been convicted of crime, although no such admission had been made by him. Of course, the trial court was not responsible for the making of this statement, and no judicial action was requested to be taken by reason of its having been made. Consequently, no judicial error was committed.

Next, it is said that the court erred in permitting the jury to consider evidence that the defendant Manno was guilty of crime. There was no such evidence in the case, and nothing was said by the court in its charge relating to such conviction.

Lastly, it is said that the verdict of the jury is against the •weight of the evidence. Our examination of the proofs satisfies us that this contention is without merit.

The judgment under review will be affirmed.


source: Caselaw Access Project

author: Pee Cukiam.

license: Public Domain

text:
    JOSEPH CONTRAS, RELATOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY ET AL., DEFENDANTS.
    Submitted January 29, 1926
    Decided May 4, 1926
    Filed July 23, 1926.
    Zoning—Garage in Residence District—Facts Not Fully Disclosed —A Peremptory Writ Under Max v. Saul Should be Denied, but an Alternative Writ May be Allowed to Enable a Fuller State of Facts to be Brought Before This Court.
    On rule to show cause.
    Before Justices Tbenci-tabd and Katzenbach.
    Eor the relator, John Milton.

    Eor the defendants, Thomas J. Brogan (Charles Hershenstein, of counsel).
   Pee Cukiam.

This is a proceeding in mandamus. It is before this court upon a rule to show cause why the respondents should not issue to-the relator a permit for the erection of a one-story fireproof public garage upon premises owned by the relator in the city of Jersey City. Under the rule, depositions were taken. These depositions show that the relator owns three lots, Nos. 62, 64 and 66, St. Pauls avenue in the city of Jersey City. Upon 64 there is at present erected a frame shed used as a combination garage and stable for the storage of trucks and the shelter of horses which the relator uses in a general moving business. On August 3d, 1925, the relator made application for the erection of a one-story fireproof public garage upon the three lots. The lots have a frontage of seventy-five feet on St. Pauls avenue and a depth of one hundred feet. The proposed garage would cover the entire plot of land. The proofs show that it was intended to accommodate sixty-five cars. There would be stored upon the premises gasoline, oil and other accessories incidental to its nse as a public garage.

The depositions further show that in the neighborhood in which the proposed garage is to be located there are numerous apartment-houses. On one side the proposed garage would adjoin a nine-family house. On the other side it would be within six or seven feet of a three-family dwelling-house. In the immediate neighborhood there are some eighty-six families housed in apartments.

The superintendent of buildings, the zoning commission of Jersey City and the board of commissioners each refused to issue to the relator a building permit. They based their refusal upon a zoning ordinance of the city of Jersey City which, under the provisions, the second section thereof makes the district in which the relator’s lots are located a residential district, and prohibits the erection of a public garage, and a private garage, any part of which shall be nearer than ten feet to any public building used for living purposes.

From the depositions taken it would appear that in the vicinity of the relator’s lots there are buildings devoted to commercial purposes. A large number of the apartment buildings within the vicinity of the relator’s lots are of frame construction. The respondents not only contend that the permit was refused properly upon the ground that the section had been zoned as a residential section, but upon the further ground that in the interest of public safety a public garage located in the immediate proximity of apartment-houses of the construction which exists in this section should be prohibited.

nThe same ordinance was before this court for consideration in.the case of Max v. Saul, 3 N. J. Mis. R. 265. In this case’ ar writ of mandamus was denied because the court considered that the prohibition in question relative to the building of ' a garage was within the ■ police power of. the city in conserving the health, safety and general welfare of the community. The relator relies upon the cases of Reimer v. Dallas, 3 N. J. Adv. R. 1302, and Williams v. Gage, 3 N. J. Mis. R. 1099.; Neither of these cases deal with the ordinance relied upon in the present case. The facts in these cases also distinguish them from the present case.

■ We have therefore reached the eoncluáion that a peremptory writ of mandamus should, under the authority of Max v. Saul, supra, be denied. But as the facts relative to the pres,ent application have not been as fully disclosed in the depositions as we think they should be,' we have decided to grant to the relator an alternative writ of mandamus so that upon a fuller state of facts his application may be, if he so desires, brought again before this court.


author: Pee Curiam.

text:
    THE STATE v. MICHAEL CORTESE.
    Decided August 2, 1926.
    Crimes—Blackmail—Threatening Letters—Plaintiff in Error and Two Others Convicted Upon Circumstantial Evidence—There was Evidence Sufficient to Make a Question for the Jury— Admission in Evidence of a Revolver Recovered From House of Plaintiff in Error Without a Search Warrant Not Error— Testimony Relating to a Conversation at Which One of the Defendants, but Not the Plaintiff in Error, was Present Not Improper, Since no Objection was Made on Behalf of the Plaintiff in Error Only—Other Grounds Considered aqd Overruled.
    On error to the Essex Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the plaintiff in error, Harold Simandl.

    For the state, John 0. Bigelow, prosecutor of the pleas.
   Pee Curiam.

The plaintiff in error and two others were indicted upon a charge of sending to one Father D’Aquilla a letter demanding from him the sum of $10,000, and containing a threat to maim, wound and kill him if he did not comply with the demand. The trial of the indictment resulted in the conviction of all three. Córtese alone seeks a review thereof.

The first ground of reversal urged upon us is that the trial court erred in refusing to direct a verdict in favor of the plaintiff. The theory upon which his counsel bases this contention is that, as there was no direct evidence of Ms client’s complicity in the sending of the letter, the conviction is without a legal basis upon which to rest. This theory clearly is unsound. It is elementary law that a conviction based exclusively upon circumstantial evidence, which is of such a character as to satisfy the mind of the jurors, beyoud a reasonable doubt, of the defendant's guilt, is valid, although there was no direct evidence thereof. There was circumstantial evidence in the present case sufficient to make the question of the guilt ox innocence of Córtese one for the determination of the jury, and the trial court, therefore, properly refused to direct a verdict upon the ground indicated.

Next, it is argued that a reversal should be had because the trial court assumed in its charge to the jury that there was no direct evidence of Cortese's guilt, and that the state depended wholly upon circumstantial evidence, and that, as a result of this assumption, the court erroneously charged the jury that they might convict solely upon such circumstantial evidence. Accepting as true the statement that the court inferentially told the jury that there was no direct evidence of the guilt of the plaintiff in error (which, as we have stated, was the basis upon which counsel rested his motion to direct a verdict of acquittal), although there was such evidence in fact, the misstatement of the court was a benefit rather than an injury to the plaintiff in error, for it took away from the jury the consideration of what might have been a determinating factor in reaching a conclusion as to the latter's guilt.

It is further argued as a ground for reversal that the court improperly admitted in evidence a revolver belonging to the plaintiff in error, taken by the police from his house without a search warrant having been issued therefor. The ground of the objection to the admission of the revolver was that its taking was an illegal and unconstitutional invasion of the rights of the defendant, and that, therefore, it could not be used as a factor in determining the question of his guilt or innocence. This contention, however, is contrary tq the doctrine of State v. MacQueen, 69 N. J. L. 528, where we declared that papers of a defendant unlawfully secured, even by means of an unjustifiable search or seizure, are, nevertheless, admissible in evidence against him, if material to the issue then being tried.

The next ground for reversal argued is that testimony relating to a conversation had between a witness of the state and Eizzo, who was one of the defendants, was improperly admitted, as it was not held in the presence of the plaintiff in error, and that its admission was harmful error so far as he was concerned. Proof of the conversation was competent so far as the defendant Eizzo was concerned. Not having been had in the presence of Córtese, it was not competent as against him. But the objection to the admission of the testimony was that it was incompetent as to all of the defendants, and the objection itself, being unsound, was, therefore, properly overruled. If counsel for the plaintiff in error had desired to protect his client against the effect of this testimony, he should have requested the court to instruct the jury that, although it was evidential as against Eizzo, it was not evidential as against his client.

The next ground urged for a reversal is that the trial court improperly refused to strike out certain questions that had been asked by the prosecutor of the pleas, and the answers thereto. The questions were asked and the answers were given before a recess was taken by the court. No application was made to strike them out until after the court reconvened. In this situation the refusal of the court was proper, and this objection is without merit.

The next ground for reversal is that the court erroneously overruled an objection made by counsel for the plaintiff in error to a question put by the prosecutor of the pleas after it had been answered. The question was put by the prosecutor'on cross-examination to a witness called by the defense, and was as follows: “Do you know that your wife carried messages to the jail, when she visited there, from Córtese to Eizzo?” The objection, not being made until after the question was answered, presumably came too late. If, however, we assume that there was not sufficient time elapsing between the asking of the question and the giving of the answer to interpose an objection, the refusal to sustain the objection was plainly harmless, the answer to it being “no,

The only other grounds upon which we are asked to reverse the conviction under review are directed at alleged errors in the court’s charge to the jury. It is not necessary to set them out in detail. We are content with the statement that we have examined and considered the excerpts from the charge, which are made the subject of these latter grounds fox reversal, and find no harmful error in any one of them.

The judgment under review will be affirmed.


author: Ingersoll, Y. C.

text:
    Strathmere Lumber Company et al., complainants, v. City of Sea Isle City; William Davis, contractor, et al., defendants.
    [Determined August 6th, 1926.]
    Mechanics’ Lien—Judgment and Levy on Contractor’s Property — Certain Lien Claims Filed Prior to a Levy on a Judgment Against Contractor’s Property, Other Lien Claims Duly Perfected Afterward—Held, That the Liens Perfected After Levy Follow the Levy in the Distribution of the Fund.
    On bill, &c. On final hearing.

      Mr. Charles K. Landis, Jr., for the complainants and judgment creditor.

      Mr. James M. B. Hildreth, for the defendant Sea Isle City.

      Mr. George B. Greis, for the defendants Steelman et al., mechanics’ lien claimants.

      Messrs. Carr & Carroll, for the defendant United States Fidelity and Guaranty Company, bondsman.
   Ingersoll, Y. C.

This case is to he determined upon a stipulation of facts made by the parties as follows:

“1. A certain written contract known as contract 509, dated April 19th, 1922, was duly made between the city of Sea Isle City, a municipal corporation in the county of Cape May and State of New Jersey, and William Davis, contractor, for building and constructing a timber pile jetty on the ocean front at Matilda street, in said city of Sea Isle City, as shown on plans and specifications attached to said contract, for the sum of $2,750, said contract being awarded to said William Davis by said city of Sea Isle City by resolution on or about May 3d, 1922.

“2. There is due and payable to said contractor from said city of Sea Isle City an unpaid balance on said contract of $1,435, with interest.

“3. Two hundred and sixteen dollars and thirty-eight cents, with interest from February 3d, 1923, be paid said Strathmere Lumber Company, the full amount of its claim filed for materials furnished to the said contractor and actually used in the execution and completion of said contract.

“4. The complainant South Jersey Furniture Corporation obtained judgment entered March 14th, 1923, in the New Jersey supreme court against William Davis for $1,954.07, damages and costs, and by virtue of an execution duly issued thereon, the sheriff of said county of Cape May, on March 20th, 1923, seized and levied upon any and all money due 'or to become due to said William Davis from said city of Sea Isle City by said contract 509, or otherwise, by presenting said execution to said city of Sea Isle City and demanding said moneys according to law. The sum of $1,060.65, surplus moneys in chancery of New Jersey, docket 52, page 469, in a suit by Hafleigh & Compaq, complainant, to foreclose mortgage against William Davis et ah, defendants, were paid on or about April 25th, 1924, to the sheriff of the county of Mercer by the clerk of said court of chancery, said sheriff having levied upon said surplus moneys by virtue of an alias execution issued November 2d, 1923, upon said judgment for $1,954.07 hereinabove mentioned. The amount due April 25th, 1924, on said judgment, with interest, the fees of said sheriff of Mercer county, and costs of said alias execution and levy thereunder were $2,108.26, said payment ■of $1,060.65, leaving the balance now due on said judgment :of $1,047.61, with interest from April 25th, 1924, the fees of said sheriff of the county of Cape May and costs of said execution and levy thereunder by said sheriff of the county of Cape May.

“5. The claims of the above-named defendants, Elijah B. Steelman, Richard Hiles, James Lloyd, Emil Ketnir (or Kitner), Alvin Thompson, John B. Thompson, John L. Buzby and John Bramell, and of the above-named complainant, Michael A. Luongo Company, were filed in manner and form and within such time after the completion or acceptance of the work performed under said contract, as required and according to the Municipal Mechanics’ Lien law (Revision of 1918) ; but said claims were not filed until after the levy mentioned in paragraph 4 had been made on the funds by the sheriff of the county of Cape May.

“6. It is the intention of this agreement that all issues may be determined upon the single question of law whether the funds should be first applied to the payment of the claims mentioned in paragraph 5 or to the levy made by the sheriff of the county of Cape May mentioned in paragraph 4, subject to the payment in full of the claim of Strathmere Lumber Company mentioned in paragraph 3, which claim, in either case, is to be paid first, it being understood that if it be determined that said funds should be first applied to the payment of said levy, then any balance of said funds which may remain after the payment in full of said levy shall be paid to the said claims; and if it be determined that said funds shall first be applied to the payment of said claims, then any balance of said funds which may remain after the payment in full of said claims shall be paid to the said le\y * *

The only question for determination as stated in paragraph 6 is: Do the claims filed by the defendants after the levy made by the sheriff take priority thereto?

Vice-Chancellor Leaming, in Mack Mfg. Co. v. Citizens Coust. Co., So N. J. Eq. 331, said: “The statute mider which complainant claims a lien expressly provides that the lien shall attach from the time it is filed, and our courts have repeatedly held that this provision, unlike the provisions of the Mechanics’ Lien act which relates the lien to a prior date, is destructive of the idea of an inchoate lien prior to that time. This has been held in the following cases in this court and in our court of errors and appeals: Garretson v. Clark and Harris v. Garretson, 51 Atl. Rep. 414; Somers Brick Co. v. Souder, 70 N. J. Eq. 388, 394; S. C. on appeal, 71 N. J. Eq. 759, 762; Cope v. Walton Co., 77 N. J. Eq. 512, 517; Board of Education v. Tait, 80 N. J. Eq. 94, 96; Agnew Co. v. Paterson Board of Education, 83 N. J. Eq. 49, 66; S. C. on appeal, Ibid. 336, 339.

■ “The views stated by Vice-Chancellor Stevenson in Agnew Co. v. Paterson Board of Education, supra, touching the effect of a federal bankruptcy receivership, are, in my judgment, equally applicable to a receivership under our Corporation act.”

“Levy on personal property is seizure of the judgment debtor’s right at the time of delivery of the execution to the sheriff.” Schneider v. Schmidt, 82 N. J. Eq. 81.

The levy being prior to the filing of the claims, ‘the judgment creditor’s right to the fund became attached prior to .the right of the defendants by reason of the filing of their claims.

A decree will be advised in accordance with these views.


author: Per Curiam.

text:
    MANNING E. ROWITZ v. FIREMEN’S FUND INSURANCE COMPANY.
    Decided July 26, 1926.
    Insurance—Fire'—Automobile—Proof of Loss Established'—Defendant on Rule to Show Cause Reserved Exceptions Taken, Leaving Only Alleged Excessiveness of Verdict—Held, Verdict Justified by the Proofs.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Edwin F. Smith and Raymond Dawson.

    Contra, Hobart & Minará.

   Per Curiam.

This action was brought by the plaintiff to recover on a policy of insurance issued by the defendant company to protect the plaintiff’s automobile against damage from fire. The proofs showed clearly that the automobile was destroyed by this company. Notwithstanding this fact, the defendant refused to pay the insurance, and the present suit was thereupon brought, resulting in a verdict in favor of the plaintiff.

The rule to show cause is limited. It provides “that the exceptions taken by the defendant at the trial be reserved.” This eliminates from the matters argued in the briefs the questions of the propriety of the refusal to nonsuit and the propriety of the refusal to direct a verdict for the defendant, and also the question whether it was error for the court to direct k verdict for the plaintiff for such sum as the jury should find would compensate him for the loss, leaving as the only question to he considered by us the alleged excessiveness of the verdict. Our examination of the testimony bearing upon this point satisfies us that the amount of the jury’s award was justified by the proofs.

The rule to show cause will be discharged.


text:
    MABEL F. KUNHARDT, AS EXECUTOR OF THE LAST WILL AND TESTAMENT OF HENRY R. KUNHARDT, DECEASED, PROSECUTOR, v. NEWTON A. K. BUGBEE, COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, RESPONDENT.
    Submitted January 29, 1926
    Decided May 4, 1926
    Filed July 23, 1926.
    Taxes and Assessments—Inheritance Tax—Transfers in Contemplation of Death—Transfer Made on Same Day That Will was Made, and Nine Days Before Death—Burden of Proof Upon Those Who Assert That Transfer Within Two Years of Death was Not Made in Contemplation Thereof—Prosecutors Contend That They Have Met the Burden of Proof— Facts Considered at Length and Held, That the Burden Has Not Been Sustained.
    On reargument.
    Before Justices .Teenc-i-iard and Katzbnbach.
    For the prosecutor, Corra N. Williams (Robert L. Redrfield, of counsel).
    For the respondent, Edward L. Kalzenbach.

   Pee Curiam.

This case was submitted at the May term, 1935, and was decided in an opinion filed October 30th, 1935, and reported unofficially in 3 N. J. Mis. R. 1107. Subsequently, a petition for a reargument was filed. A reargument was granted for the reason that the opinion incorrectly- stated a date. This was the date upon which the decedent, Henry F. Kunhardt, had the first attack of angina pectoris from which ailment he subsequently died. In the opinion filed, the date of the first attack was given as October 5th, 1933. It should have been stated that the first attack occurred on October 19th, 1923. T'his error placed the execution of the deed of trust after the first attack of angina pectoris. Both attacks of angina pectoris occurred after the execution of the deed of trust. The deed of trust was executed on October 16th, 1923. The first attack of angina pectoris occurred on October 19th, 1923. The second and fatal attack took place on October 22d, .1923. The deed" of trust was therefore executed three days before the first attack and nine days before the death of Mr. Kunhardt.

The deduction made in the opinion based on the execution of the deed subsequent to the first attack was unwarranted. The case was resubmitted at the January term, 1926. We have re-examined the case. The facts, with the exception of the date mentioned, are correctly stated in the former opinion so they will not be restated. Our re-examination of the case has resulted in reaching the same conclusion we formerly reached, namely, that the tax imposed by the state should be affirmed.

In the former opinion attention was called to the amendment of the act taxing the transfer of estates made by chapter 174 of the laws of 1922. This amendment provides that: “Every transfer by deed, grant, bargain, sale or gift, made within two years prior to the death of the grantor, vendor or donor, of a material part of his estate, or in the nature of a final disposition or distribution thereof, and without an adequate valuable consideration, shall, in the absence of proof to the contrary, be deemed to have been made in contemplation of death within the meaning of this section.” This provision places the burden of proving that the act of transfer made by Mr. Kunhardt and comprising property in this state valued at $437,799.02 out of a total net estate of $450,673.66, nine days before his death, was not made by him in contemplation of death. Have the prosecutors met the burden east upon them by this provision of the statute? They contend they have. They first call the court’s attention to that portion of the affidavit of Mrs. Kunhardt which states that the execution of the deed of trust, as well as the execution of a similar deed by Mrs. Kunhardt, had been determined upon two years prior to the actual execution of Mr. Kunhardt’s deed, but a family dissension had caused the postponement of the execution of the deed'. This, may have been Mrs. Kunhardt’s understanding of the delay. Mr. Kunhardt may, however, had other reasons for the delay than the one he gave to Mrs. Kunhardt for postponing the execution of the deed. We do not think the presumption of the statute can be overcome by a statement fr.om an interested party that an act had been determined upon two years prior to its actual execution. ■.

It is secondly contended that the purpose of the deed of trust was the proper investment of a large fund and not a final disposition of Mr. Kunhardt’s estate. This contention is met by an inspection and comparison of the deed of trust and the will of Mr. Kunhardt, both executed on October 16th, 1923. The deed of trust, as pointed out in the former opinion, provided for a life estate in the property mentioned (.which was the bulk of Mr. Kunhardt’s estate) to Mrs. Kunhardt, then a division into three parts of the principal (one part for each child) and payment of income of a third to each of the three children. Each child was given the power of appointment of his share. The deed also provides with great care as to the disposition of the property in the event of any child failing to exercise the power of appointment or dying prior to Mrs. Kunhardt. The will is a short document appointing executors, giving them power to sell real property and leaving all to Mrs. Kunhardt. The deed of trust, evidences the grantor’s best thought as to the disposition of the bulk of his estate and is in the nature of a final disposition thereof.

The next argument advanced is that the deed was suggested by counsel for the purpose mentioned and not by Mr. Kunhardt. It was, however, executed by the decedent who adopted the suggestion of his counsel. The fact that the suggestion of the deed came from counsel is not of itself sufficient to overcome the presumption placed upon the prosecutors that it was made in contemplation of death.

It is next insisted that Mrs. Kunhardt made at the same time a similar deed for her property for the same purpose and that the contemplation of each must have been the same. This does not necessarily follow. The motive which prompted Mr. Kunhardt to execute his deed may have been entirely different from the motive which 'actuated Mrs. Kunhardt to execute the deed for her property. The prosecutor further argues that when Mr. Kunhardt died he was contemplating spending the winter in Nassau, West Indies, and had engaged rooms there; that he was planning a trip around the world in 1935, and had just made five year leases for a country place and an apartment in New York City, and that these acts indicate that he was not contemplating death. The answer to this argument is set forth in the former opinion. We do not think it necessary to repeat it, but call attention to the statement of Mr. Knnhardt’s physician, Dr. Hutton, that for two or three years immediately prior to his death Mr. Kunhardt had consulted him about his health, and that he was of the opinion that Mr. Kunhardt had arterie sclerosis, commonly known as hardening of the arteries, with involvement of the coronary artery, which is a slowly progressive disease. Dr. Hutton said that at no time he informed Mr. Kunhardt. of the serious nature of his ailment. Persons usually, however, know their condition when so afflicted. They do not have to be told as a rule their condition or what will be the outcome thereof. We think Mr. Kunhardt understood his condition. The things he did, including the execution of the deed of trust, indicate this. Eor the purpose of disarming the members of their families persons frequently indulge in the discussion and preparation for travel. The prosecutors ask us to infer an absence of the contemplation of death from such preparation on the part of Mr. Kunhardt. This we are not inclined to do. To reach the true workings of the human mind is always difficult. It was perhaps largely for this reason that the amendment of the law contained in chapter 17? of the laws of 1923 was passed by which the presumption, under the conditions mentioned in the act which exist in the instant case, is created that the instrument was made in contemplation of death.

The petition for reargument calls our attention to certain New York cases which have dealt with this question and in which it has been held that the presumption created by a similar provision in the New York law has been rebutted by the circumstances set forth in the cases cited. We have examined these cases and while in some of them many of the facts are similar to the ones existing in the present case, yet other facts differentiate them. We find as a fact that the presumption created by the statute has not been overcome. The tax assessed is affirmed.


author: Katzenbaoh, J.

text:
    SAMUEL B. DOBBS. PLAINTIFF, v. COLEMAN LUMBER COMPANY, INCORPORATED, DEFENDANT.
    Decided August 6, 1926.
    Negotiable Instruments—Promissory Notes—A Series of Twenty-four Notes Were Given in Part Consideration of a Business Turned Over to a Corporation—Many of the Notes Were Paid—Payment Refused on the One in Issue as Having Been Issued Without Consideration and for Usurious Intent— Payee of Notes Sold Them for Less Than Face Value—Held, That There was Nothing to Show That the Consideration was Not Equal in Value to the Notes; That There was no Evidence of Usury Between Parties to This Suit—Corporation Agreed to Pay Full Amount to Holders—Defense Held Either Sham or Frivolous.
    On motion to strike out answer of the defendant and to enter summary judgment for the plaintiff.
    For the motion, Leivis Starr.

      Contra, French & Richards (M. C. Rhone, of the Pennsylvania bar).
   The opinion of the court was delivered by

Katzenbaoh, J.

The plaintiff instituted suit against the Coleman Lumber Company, Ine., upon a promissory note, of which the following is a copy:

xx

“2,500.- Camden, N. J., January 17, 1924.

xx

Nineteen months after date we promise to pay to the order of John Coleman

The sum of $2,500 and 00 cts. Dollars

at West Branch National Bank, Williamsport, Pa.,

Value received.

Coleman Lumber Co., Inc.,

John Coleman, President.

No. Due.

Endorsement:

Presentation, protest & Notice thereof & notice dishonor hereby waived.

John Coleman

John O. Wilson

W. R. Binns

S. B. Dobbs.”

The complaint alleges that the plaintiff sues for the amount of the note which was endorsed and delivered to him for value prior to the maturity thereof; that the note was not paid on August 17th, 1925, when it fell due, was protested and notice given to the defendant; that the defendant still owes said note which has not been paid. The answer denies the truth of the matters set forth in the complaint and sets up ten separate defenses. These defenses all center about the circumstances under which the note was given and will be considered together. The plaintiff moves to strike out the answer and to enter judgment summarily.

From the affidavits submitted it appears that John Coleman, of Williamsport, Pennsylvania, conducted a mill and lumber business in Clinton county, Pennsylvania, with his son and a grandson; that in connection with said business he owned considerable machinery, lumber and other personal property, useful and used in the conduct of said business. Coleman was acquainted with one John 0. Wilson, and appears, in December, 1923, to have approached Wilson for the purpose of obtaining $40,000. Coleman, with the knowledge of Wilson and also with the knowledge of the plaintiff and one W. R. Binns, caused to be incorporated in the State of New Jersey a corporation known as the Coleman Lumber Company, Inc. The company, on January 17th, 1925, held a meeting of its incorporators. At this meeting Coleman offered to sell the lumber business and property used in connection therewith to the corporation, and to receive in part payment the sum of $60,000, to be paid by the issue to him of the promissory notes of the corporation. The notes were to be twenty-four in number. Each was to be for the sum of $2,500, and all were to be dated January 17th, 1925. One note was to mature each month. Sixteen of said notes were to draw interest. Eight were to draw no interest. The notes of the earliest maturity were to be the ones to draw interest. The offer of Coleman, in addition to the notes, provided that he should receive one thousand four hundred shares of the capital stock of said company of no par value, and that the corporation was to assume a balance of $7,500 due the city of Philadelphia under an agreement mentioned in the offer.

■ At the meeting the stockholders passed a resolution reciting that the property was necessary for the business of the company, and directing the board of directors to purchase the same upon the terms mentioned. The purchase was carried out. The notes were issued and with the stock of the company were delivered to Coleman. Coleman made a bill of sale to the company for the property purchased. The corporation has operated the business. The notes were paid by the company as they matured,, until its refusal to pay the note upon which this action is brought. Coleman, when he received the notes, endorsed the same and delivered them to John O. Wilson, W. R-. Binns- and Samuel B. Dobbs. It is claimed that $40,000 was paid to Coleman for the $60,000 of notes.

The contention of the corporation, the defendant, is that the notes were issued without consideration, and the note sued upon represents usurious interest. The gist of each of the separate defenses is that for these reasons, namely, lack of consideration and usury, the plaintiff is debarred from recovery upon the note. Assuming that the motive of Coleman was to obtain $40,000 and that the scheme of the transfer of his property to the corporation formed to acquire it was to enable the corporation to issue $60,000 of notes which Coleman sold for $40,000, and that the plaintiff was cognizant of the plan and participated therein, it does not follow that the notes so given by the corporation were either issued without consideration or are usurious. The consideration for the notes was the property which Coleman transferred to the corporation. There is nothing to show that this property was not worth the amount paid for it by the corporation. The presumption is that the properly was worth the amount paid for it. The corporation received the property. It issued its notes to Coleman. There was no agreement that the notes were to bear a usurious rate of interest. In fact, the note sued on hears no interest. There is no evidence of usury as between the parties to this suit. It is therefore not necessary to consider the construction of chapter 144 of the laws of 1902 (Pamph. L. 1902, p. 459), which relates to the pleading of usury to an obligation issued by a corporation. If Coleman desired to sell the notes for less than their face value, this was a matter for his decision. If he did so, this relieves the maker from no portion of the liability it assumed when it issued and delivered the notes to Coleman. The corporation agreed to pay the full amount thereof to the holders in due course. The corporation has not repudiated its agreement or attempted to rescind it. It has title to the property transferred, operates the business and has paid the prior notes as they matured. It cannot claim the benefit of any right which Coleman might have arising from the alleged agreement with Wilson, Binns and the plaintiff, assuming that Coleman has any right.

The note sued on was purchased by the Collingswood National Bank. After default in the payment thereof the plain-: tiff took up the note and then instituted this action.

It is contended that the plaintiff is not a holder in due course. It is my opinion that he is. The motion made should prevail. Each defense set up in the answer is either sham or frivolous. The answer with the defenses set up therein will be struck out. Summary judgment may be entered for the amount of the note, with interest from maturity* and costs.


author: BAtzenbach; J.

text:
    VICTORIA FINANCE CORPORATION, PLAINTIFF, v. COLEMAN LUMBER COMPANY, INCORPORATED, DEFENDANT.
    Decided August 6, 1926.
    On motion to strike out answer of the defendant and to enter summary judgment for the plaintiff.
    Por the motion, Lewis Starr.

      Contra, French & Richards (M. 0. 'Rhone, of the Pennsylvania bar).
   The opinion of the court was delivered by

BAtzenbach; J.

The same questions are involved in the above ease as in the case of Samuel B. Dobbs v. Coleman Lumber Co., Inc. For the reasons given in the opinion filed in the latter case the answer and defenses set up therein in the above case will be struck out and summary judgment entered for the plaintiff for the amount of the note sued upon, with interest from maturity, and costs.


text:
    HENRY BENTE, PROSECUTOR, v. NEWTON A. K. BUGBEE, COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, DEFENDANT. MARGARETHA BENTE, PROSECUTOR, v. NEWTON A. K. BUGBEE, COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, DEFENDANT.
    Argued May 6, 1925
    Decided August 6, 1925.
    Wills—Inheritance Tax—Testator Entered Into a Contract With Plaintiffs to Leave a Certain Sum to Them in His Will in Consideration of a Home During the Remainder of His Life —Upon His Death the Bequests Were Found to Have Been Crossed Out of the Will—Judgment on the Contract was Awarded Plaintiffs—State Thereupon Assessed an Inheritance Tax Which is Here Contested on the Ground That the Act Does Not Contemplate Taxation of Judgments—Held, That Judgment was Not on Contract to Recover for Services Rendered, but for the Fulfillment of the Contract to Leave the Stipulated Sum in the Will, That Such Sum Would Include the Payment of the Tax by the Beneficiary.
    On writs of certiorari.

    Before Justices Trenchabd, Katzenbach and Lloyd.
    For the prosecutors, J. Emil Walscheid.

    For the defendant, Edward L. Eatzenbach and Harry B. Coulomb.

   Per Curiam.

The writs of certiorari in the above cases were allowed to review the action of the comptroller of the treasury of the State of New Jersey in imposing a transfer inheritance tax upon the amount of two judgments recovered by Henry Bente and Margaretha Bente against the Trust Company of New Jersey, executor of the last will and testament of Charles Steinberg. It was stipulated, as each case presents the same question, that the record in the ease of Henry Bente should be presented to the court, and the decision reached in this case should control the disposition of the Margaretha Bente case.

The question presented is unique and interesting. Charles Steinberg, the decedent, was a man possessed of considerable means. He had been a cigar salesman and had retired from business. He desired a home. He entered into an agreement with Henry Bente and Margaretha Bente, husband and wife, who live in Hoboken, by which they agreed to furnish a home for him for the remainder of his life, provided he would leave to each of them in his will the sum of $15,000. In accordance with this agreement, Mr. Steinberg, on November 15th, 1920, executed his will, in which he left to Henry Bente $15,000 and his' personal effects, and to Margaretha Bente the sum of $15,000. He then took up Iris residence with Mr. and Mrs. Bente. They decided to move into a larger house. Mr. Steinberg temporarily took a room in the house of a Miss Pustkuehen. This arrangement appears to have been entered into by mutual consent. Mr. Steinberg did not again take up his residence with the Bentes. This was in part due to an illness which commenced in August, 1922, and in part due to the fact that he was waiting for cooler weather and the completion of the apartment of the Bentes. The new apartment was on the third floor. There was no elevator service. This was another reason for not resuming his residence with the Bentes. On November 1st, 1922, Mr. Steinberg became worse. He was taken to a hospital on that day and died on the following day. When his will was opened it was discovered that there was a line drawn through the bequests to Henry Bente and Margaretha Bente. In the bequest to Margaretha Bente the whole clause was eliminated. In the bequest to Henry Bente only the $15,000 item was eliminated. The clause bequeathing his personal effects to Henry Bente was not erased. Mr. and Mrs. Bente then each presented a claim to the executor of the Steinberg estate for the sum of $15,000. Notice was given to each of them that the claim was contested. Suits were instituted by Mr. and Mrs. Bente in the Hudson County Circuit Court. Each recovered a judgment of $15,000 against the executor of Mr. Steinberg’s will. The comptroller of the treasury then assessed a transfer inheritance tax upon the sums represented by the judgments.

Counsel for the prosecutors contends that these judgments cannot, under the provisions of the Inheritance Tax act, be taxed. The argument advanced is that the act enumerates in its title the methods for the transfer of property to which the scope of the act is'limited; that these methods are eight in number and are the transfers of property by (1) devise, (2) bequest, (3) descent, (4) distribution, (5) gift, (6) deed, (7) grant, (8) bargain and sale; that a judgment at law is not a transfer of property and does not fall within any of the classifications above set forth, and, therefore, the act cannot be made to apply to a judgment at law. It is further insisted that the body of the act contains further limitations upon its scope, which prevents the proposed tax falling within the purview of the body of the act.

The prosecutors present as their first point that the comptroller was without jurisdiction to impose a tax because the tax levied against judgments recovered to obtain debts due and owing by the estate of the decedent which is not a transfer of property within the meaning of the act. The argument of the prosecutors is plausible and ingenious, but overlooks, we think, one important element, namely, that the agreement between the Bentes and Steinberg contained the provision that the bequests were to be embodied in the will of Steinberg, and had they remained in the will the amounts bequeathed would have been subject to the inheritance tax. The effect of the judgments, it seems to us, was merely to restore the status as it would have been had the erasures of the bequests set forth in the will not been made. The judgments could not have been obtained for the sums mentioned had it not been for the agreement by which the amount the Bentes were to receive was to be bequeathed to the Bentes ior the services they were to render to Steinberg. The agreement was not to pay to each $15,000 at the death of Mr. Steinberg, but to leave to each a bequest for that amount. The reasonable value of the services rendered were doubtless below the amounts which were recovered in the acts at law. This rcovery was possible because of the form which the contract took. _The judgments were the medium by which it was possible to carry into effect the terms of the agreement between Steinberg and the Bentes. The contract, if carried out, in its original form would have resulted in a tax against the bequests. It seems illogical that the mere change of the vehicle by which the contract is consummated should exempt the Bentes. from the payment of a tax which they would have had to pay if Steinberg had not made the erasures in his will. The effect of the judgments was not to set aside the will, but to convert those who would receive, by reason of the erasures, the bequests originally intended for the Bentes into trustees for the Bentes to the extent of such bequests. We do not see how the Bentes are entitled to receive more as a result of what occurred than they would have received as legatees under the will if the contract as originally made had been executed by leaving in the will the bequests originally made. The rights of the Bentes could arise no higher than those which they obtained under the agreement as made. If the argument advanced in behalf of the prosecutors is accepted the Bentes would obtain an advantage, namely, exemption from the imposition of the tax, which they would not have obtained had the agreement been carried out as planned and intended by the parties. It is conceded that if no erasures in the will had been made the legacies would be subject to the tax. The obtaining of judgments was a method of procedure to establish the contents of the will as originally drafted. The effect of the judgments was to restore the original provisions of the will. Under the will the bequests were taxable. We think they are taxable in the manner proposed by the state and fall within the provisions of the title and body of the act as property transferred by bequest.

The prosecutors also contend that the tax is levied upon a service rendered by the prosecutors and for that reason is untaxable. In other words, it is not a succession tax. The theory of a succession tax is payment to the state for the privilege of exercising the right of testamentary disposition, &c. The prosecutors advance the argument that the consideration paid by the Bentes, namely, the board and lodging to be furnished Steinberg, takes their cases out of the class of taxable cases and places them in the same position as where, for example securities have been transferred to a woman under a prenuptial marriage settlement. Cases to. this effect are cited upon the brief presented for the prosecutors. This argument, we think, overlooks a very essential feature of the contract made in the eases under consideration. The element overlooked is that while the Bentes were to furnish during the lifetime of Steinberg a home for him, payment was to be in the form of bequests to be made in his will. Payment was contingent upon the death of Steinberg. This provision takes the agreement out of the ordinary class of agreements for services rendered which, if reduced to a judgment, would be exempt from taxation. If the plaintiffs in the actions instituted had not been able to introduce in evidence the will with its erasures showing the contract to make bequests, in consideration of the services to be rendered by them, the judgments for $15,000 each would not have been obtainable. If the prosecutors had sought relief in equity by asking to have the cancellations made in the will expunged and the bequests in the will as originally drafted restored, it could not be gainsaid that the bequests would not be subject to the tax. The adoption of another route (the judgments) to enforce the carrying out of the agreement, cannot, in our opinion, close the door to the state exercising the right of taxation, which it concededly would have had had Mr. Steinberg not attempted to erase the testamentary provision made to carry out the contract with the prosecutor.

We have not commented upon the numerous cases cited in the briefs, as all present a state of facts differing in some measure from the facts of the cases under consideration. The principles involved in the cases cited we feel we have applied to the instant case.

The taxes assessed by the comptroller are affirmed, with costs;


author: Lloyd, J.

text:
    THE STATE OF NEW JERSEY EX REL. WALTER W. REID, Jr., ET AL., RELATORS, v. BOROUGH OF DEAL, A MUNICIPAL CORPORATION; THE BOARD OF COMMISSIONERS OF THE BOROUGH OF DEAL ET AL., DEFENDANTS.
    Decided August 7, 1926.
    Municipalities—Licenses—Hotel—Ordinances Required Consent of Owners—Consent was Executed by R. as Owner—It Appears That R. is Owner With K. as Tenant in Common— R. Claims That He is Partner With K., Who is in Europe, and Has His Permission to .Sign Consent—Held, Claim is Unsound—The Partnership at Best Cannot Extend to the Ownership of Individual Property—Ordinance Required Written Consent of Owner or Owners, the Consent of K. is Necessary.
    On rule for mandamus.

    Before Justices Katzenbach and Lloyd.
    For the relators, Walter Kremer.

    For the defendants, William, A. Stevens and William L. Edwards.

   The opinion of the court was delivered by

Lloyd, J.

On a rule to show cause why a writ of mandamus should not issue to compel the defendants to issue to the relators a license to operate a hotel in the borough of Deal; depositions (authorized by the rule) have been taken, and from these it appears that the relators are the owners of a dwelling containing seventeen rooms at the comer of Roosevelt and Ocean avenues, in the borough, which they desire to operate as a hotel; that the borough has adopted an ordinance setting forth the conditions on which a license for such purpose will issue. Among the provisions of this ordinance is one reading as follows:

“Section 5. Such application [for license] must be accompanied by the written consent of the owner of the premises for which application for license is made, consenting to the granting of the license.”

On June 3d, 1926, Walter W. Reid, Jr., in an application for license to operate a hotel, set forth a consent in this language :

“I, Walter Reid, J'r., owner of the premises above mentioned do hereby consent to the granting of the license requested. [Signed] Walter Reid, Jr.”

From the depositions taken it further appears that Reid is owner of the property with William C. Krueger as tenant in common, and that Krueger’s written consent to the application was never given.

It was contended, however, that this defect was cured by the testimony of Reid, to the effect that Krueger and himself were really partners in the proposed hotel business, and that Krueger, having sailed for Europe, had left him, the witness, in full control of the property with authority to give his (Krueger’s) consent. This, we think, was insufficient. The ordinance, the validity of which is not questioned, exacted the written consent of the owner or owners, not an uncertain verbal consent given through a third person.

It was also contended that, by virtue of the partnership in the proposed hotel business, Reid had legal authority to bind his co-partner in giving the required consent. The contention is, obviously, unsound. The premises were not partnership property but the property of the individual owners. By no stretch of the power possessed by an individual member of a partnership to bind it and its members can it be extended to control of the private assets of such members. Besides, in the application there was no suggestion of a partnership, and the consent given did not purport to be the act of Krueger, but that of Eeid alone; Tie certified that he was the owner of the property (not an ingenuous statement at best), and Tie consented to the granting of the license.

Under the circumstances it, at least, cannot be said that the right to the writ is clear, and the rule to show cause must therefore be discharged.


author: Katzenbach, J.

text:
    PATRICK J. O’CONNELL, PROSECUTOR, v. CITY OF BAYONNE, AND ROBERT J. TALBOT, W. HOMER AXFORD, HARRY HOSFORD, BERT DALY AND PATRICK J. O’CONNELL, THE BOARD OF COMMISSIONERS OF BAYONNE, AND WILLIAM E. PRICE, DEFENDANTS.
    Decided August 6, 1926.
    Municipalities—Officers—Members of Fire Department—Question of Legality of Appointment—Was the Appointing Officer de Jure Commissioner of Public Safety?—This Question Now Pending in Court of Errors and Appeals—In Granting Writ of Certiorari it is Only Necessary to Present an Arguable Question—Writ is Allowed.
    On rule to show cause why a writ of certiorari should not be granted.
    For the motion, Patrick J. O’Connell.

    Contra, James Benny.

   The opinion of the court was delivered by

Katzenbach, J.

On July 30th, 1926, Patrick J. O’Conmell, a taxpayer of the city of Bayonne, made application to me for the allowance of a writ of certiorari to review the appointment of William E. Price to the position of hoseman in the fire department of the city of Bayonne. The appointment was made by Commissioner Daly, of the city of Bayonne, acting as director of the department of public safety. The appointment of Price was confirmed by the board of commissioners of the city of Bayonne. Three commissioners voted for confirmation. Two voted against confirming the appointment.

This appointment, together with others made at the same time to the police and fire departments of the city of Bayonne, raises again a question which is pending in onr courts. This question is whether Commissioner Daly is the de jure commissioner of the department of public safety of the city of Bayonne. In 1923 there was an election for commissioners in the city of Bayonne. On May 8th, 1923, five commissioners were elected for terms of four years. On May 15th, 1923, Patrick J. O’Connell was appointed and designated by the board of commissioners director of the department of public safety. Commissioner O’Connell performed the duties of this office until October 7th, 1924, when a resolution was introduced and passed by the board of commissioners, which designated Commissioner Daly as director of the department of public safety in the place of Commissioner O’Connell. There were other changes made at the same time in the assignments of the commissioners.

The legality of certain resolutions subsequently passed by the board of commissioners, which deprived the mayor and ■ Commissioner O’Connell of certain powers, were reviewed before the Supreme Court in the case of State v. Oliver. It was in this case held that the action of the commissioners in so acting was illegal. The resolutions were set aside. This ease is now pending before the Court of Errors and Appeals. In the opinion in the Oliver case, written in the Supreme Court, it was stated that where a commissioner was once appointed and assigned to a department that he could not subsequently, by a vote of a majority of the commissioners, be deprived of the powers which had been granted to him by his original appointment. This statement was dictum. After the decision in the Oliver case was handed down a writ of certiorari was granted to review the action of depriving Commissioner O’Connell, on October 7th, 1934, of his office as directer of the department of public safety.

On July 30th, 1936, when the application was made in the present case, a rule to show cause was allowed, returnable-on August 6th. This rule only applies to the proceedings taken with reference to the appointment of William E, Price as a hoseman in the fire department of the city of Bayonne. The prosecutor contends that Commissioner Daly had no power to make this appointment, because he is not the de jure commissioner of the department of public safety of the city of Bayonne. In granting a writ of certiorari it is only necessary that the applicant should present an arguable question. In my opinion an arguable question is presented by the prosecutor in the present case. The prosecutor is entitled to have the appointment of Price reviewed upon the ground that Commissioner Daly had no authority to make the same. I will therefore allow a writ of certiorari to review the action taken with reference to the appointment of William E. Pr.ice.

At the time of the appointment of Price it appears that there were some seventy-seven men appointed by Commissioner Daly, purporting to act as director of public safety, to positions in the police and fire departments. The prosecutor, upon the return of 'the rule 'to show cause in the present case, requests that writs of certiorari be granted to review these seventy-seven appointments. The prosecutor further asks that the writs be allowed in these seventy-seven cases with a stay, which will prevent the payment of salaries to these newly-appointed members of the fire and police departments, who have already commenced the discharge of their duties. This I am unwilling to do. No notice of such an application has been given to the city or to the persons who would be affected by the allowance of these writs. They are entitled to notice. The allowance of a writ of cer iiorwri is also discretionary. The legal question involved can be determined by the writ, which I allow in the Price case. The practical question aá to the wisdom or necessity of the appointments is a question which this court has no power to determine. This is the avowed purpose of the application for the seventy-seven writs.


text:
    BEATRICE GOLDSTEIN, PLAINTIFF-RESPONDENT, v. HARRY GOLDSTEIN, DEFENDANT-APPELLANT.
    Decided August 10, 1926.
    Negligence—Motor Vehicle—Daughter, of Age, Living at Home, Earning Wages, Brings Suit Against Her Father for Negligence in Running Automobile—Emancipation at Majority Does Not Result Ipso Facto—It Is a Question of Fact and Properly Submitted to Jury—Judgment for Plaintiff Sustained.
    On appeal from a judgment of the Essex County Common Pleas.
    Before Gummere, Chief Justice, and Justices Kalisch. and Campbell.
    Eor the appellant, Edwin F. Smith and Raymond Dawson.

    Eor the respondent, S. Sidney Silver.

   Per Curiam.

Respondent, an unmarried daughter of appellant, living in his household, twenty-three years of age, working and earning wages, brought suit against her father and recovered the judgment appealed from for damages for personal injuries received while riding in an automobile operated by her father, as is alleged, in a negligent manner.

There are two grounds of appeal, namety, error in the refusal to nonsuit and error in refusal to direct a verdict in favor of appellant. Both are based upon the ground that respondent had not been emancipated and, therefore, could 'not have her action against her father.

This is a question of fact, ordinarily. Arrival at the age of twenty-one years does not, ipso facto, result in emancipation. Arrival at majority is prima facie, but not necessarily emancipation. Brown v. Ramsay, 29 N. J. L. 117; Berla v. Miesel, 52 Atl. Rep. 999; 29 Cyc. 1673.

In the present case the facts were such as to make the question one to be determined by the jury. There was, therefore, no error in refusing to nonsuit or direct a verdict.

The judgment below is affirmed, with costs.


text:
    PATRICK J. MORAN, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Decided August 10, 1926.
    Negligence—Motor Vehicle Accident—Motor Struck Bridge Abutment—Judgment Against Weight of Evidence.
    On rule for new trial.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    ' For the rule, Joseph Cotilt.

      Contra, John P. Kirkpatrick.

   Per Curiam.

On December 13th, 1923, plaintiff was injured by the automobile, which he was driving, coming in contact with the abutment of a bridge on a road leading to Bound Brook. TIis contention was that the highway was in bad condition and that, therefore, he drove over to the left side and sometimes upon the tracks of the defendant company, and that the striking of the abutment, resulting in his injuries, was caused by the use of a powerful headlight on a car of the defendant, which blinded him. He has a verdict which we are asked to set aside as being against the weight of evidence. We find that it is against the weight of the evidence, and the rule to show cause will, therefore, be made absolute.


text:
    STATE OF NEW JERSEY, DEFENDANT-IN-ERROR, v. PASQUALE De GRESCENZO, PLAINTIFF-IN-ERROR.
    Decided August 10, 1926.
    Crimes—Arson—Judgment Against Weight of Evidence.
    On error to the Morris County Quarter Sessions.
    Before Gummeke, Chiet? Justice, and Justices Kausch and Campbell.
    Por the plaintiff in error, Charles A. Bathbun.

    Por the defendant in error, Albert II. Holland.

   Per Curiam.

This writ removes for review a judgment of conviction for arson and brings np the whole trial proceedings under section 136 of the Criminal Procedure act. There is only one cause for reversal that needs our attention, and that is that the verdict upon which the judgment is founded is not supported by the weight of the evidence. As our examination of "the proofs brings us to this conclusion, the judgment below must be reversed.


author: .Pee Curiam.

text:
    JAY RUSSELL, PLAINTIFF, v. EVA M. SMITH AND LEE A. MERVEY, Jr., DEFENDANTS.
    Decided August 10, 1926.
    Negligence—Motor Vehicle Accident—Verdict Against Weight of Evidence as to One Defendant.
    On rule for new trial.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Alexander Simpson.

      Contra, Edward A. Mwrlcley and Charles S. Cray.

   .Pee Curiam.

The plaintiff accompanied' the defendant Lee A. Mervey, Jr., by his request, upon an automobile ride and was injured. The car belonged to the defendant Eva M. Smith, the mother of Mervey.

The verdict was against the plaintiff and in favor of the defendants.

There is only one reason that we need to consider and that is that the verdict is against the weight of the evidence.

This we find to be not so as to the defendant Eva M. Smith, and the rule will be discharged as to her, but we do find to the contrary as to the defendant Lee A. Mervey, Jr., and the rule will be made absolute as to him.


author: Pek Cuiíiam.

text:
    STATE OF NEW JERSEY, DEFENDANT-IN-ERROR, v. BIAGIO FANO AND LUIGI CALVANO, PLAINTIFFS-IN-ERROR.
    Decided August 10, 1926.
    Crimes—Arson—Verdict Against Weight of Evidence.
    On writ of error to the Essex County Quarter Sessions.
    Before Gummebe, Chief Justice, and Justices Kaliscti and Campbell.
    For the plaintiff in error, Isidor Kalisch.

    lor the defendant in error, John 0. Bigelow.

   Pek Cuiíiam.

The plaintiifs in error were tried and convicted upon both of two counts of an indictment charging them with arson. The matter is before us not only upon a strict writ of error, but under section 136 of the Criminal Procedure act. There are numerous assignments of error and specifications of causes for reversal, but it is necessary for us to consider one only, and that is that the verdict upon which the judgment below is based is not supported by the weight of the evidence because that is the conclusion that we have reached after a consideration of the proofs.

The judgment below will therefore be reversed.


author: Pee Cueiam.

text:
    PATRICK HOAR, ADMINISTRATOR AD PROSEQUENDUM OF JOHN HOAR, DECEASED, PLAINTIFF, v. PUBLIC SERVICE ELECTRIC COMPANY, DEFENDANT.
    Decided August 10, 1926.
    Negligence—Verdict Excessive.
    On rule for new trial.
    Before G-ummeee, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, Joseph Coult.

      Contra, Ward & McGinnis.

   Pee Cueiam.

Plaintiff has a verdict for $5,500.

The deceased was a boy slightly under seventeen years of age, of limited education, physically strong, but indolent and unambitious.

The only ground urged is that the verdict is excessive. We think it is, and unless plaintiff will consent to a reduction to the sum of $4,000 the rule to show cause will be made absolute.


text:
    ROBERT W. THOMPSON, PLAINTIFF, v. HANS A. HESSE, DEFENDANT.
    Decided August 10, 1926.
    On rule for new trial.
    Before Gummere, Chiee Justice, and Justices Kalis oh and Campbell.
    Eor the rule, David M. Sterner.

      Contra, Carl S. Kuébler.

   Per Curiam.

Our examination and consideration of the proofs in this matter brings us to the conclusion that the verdict is not against the weight of the evidence, and the rule to show cause will, therefore, be discharged.


author:
Harry J. Goas, .
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANTONIO MUNEZ, PETITIONER, v. ARMOUR FERTILIZER WORKS, RESPONDENT.
   Eormal petition for compensation having been filed herein, and the matter having been duly noticed for trial before me, at Newark, New Jersey, on the 4th day of August, 1926, the attorney for the petitioner having failed to appear to move this case for trial, it further appearing that the attorney for the petitioner did, on July 2d, 1926, at Perth Amboy, New Jersey, fail to appear and move this case for trial, and it further appearing that on both of the above dates the claimant failed to appear, it is ordered that the petition herein be dismissed because of the non-appearance and failure to prosecute on the part of the petitioner herein.

Harry J. Goas, .

Deputy Commissioner.


author: Pee Cubiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT-IN-ERROR, v. HELEN DUVEL, ALIAS HELEN BUGAL, ALIAS HATTIE HAGER, PLAINTIFF-IN-ERROR.
    Decided August 10, 1926.
    Crimes—Larceny—Instructions to Jury After Retirement—Confession Properly Admitted—After Retirement the Jury Communicated a Written Set of Questions for Further Instructions—The Judge Having Left, Directing the Clerk to Receive the Verdict, the Clerk Communicated the Questions to the Judge on the Phone, Received His Reply and Communicated it to the Jury—Held, Reversible Error, Though the Instructions Were Legally Correct and Correctly Transmitted.
    On error to the Essex County Quarter Sessions.
    Before Gum mere, Chief Justice, and Justices Kalisch and Campbell.
    For the plaintiff in error, Frank B. Colton.

    For the defendant in error, John 0. Bigelow.

   Pee Cubiam.

The writ of error brings to us for review a judgment of conviction for larceny (shop lifting) entered upon verdict at the Essex Quarter Sessions.

There are only two questions presented. One is that the trial court erred in admitting an alleged confession of the plaintiff in error. We think this is not so, because there was testimony warranting the court in admitting it as competent and such court action will not be disturbed where there is any testimony supporting such ruling.

The other ground urged is, that after the jury had retired to consider its verdict the trial judge left the court room and the court house after first having directed the clerk to take the verdict; subsequently, • a communication in 'writing was received by the clerk from the jury, as follows:

1. Kindly explain what constitutes larceny.

2. Was it necessary for the defendant to have carried the goods off the premises of Hahne & Company to have committed the offense?

The clerk communicated with the trial judge by telephone and was directed by him to answer the inquiry in accordance with answers given to the questions by the judge to the clerk over the telephone, the clerk taking down the answers in writing and by direction of the judge delivering this writing to the jury.

This, with the further statement that the instructions dictated by. the judge, were correctly taken down by the clerk and given to the jury, and that such answers were a correct statement of the law, will be found in a memorandum filed by the trial judge upon a subsequent motion for a new trial.

We think that this procedure was so irregular and so likely to be prejudicial to a defendant, and so charged with possibilities of harm and abuse as to require a reversal.

All the authorities seem to require and insist upon judicial acts of this character being done and. performed in open court. State v. Doty, 32 N. J. L. 403; Davis v. Township of Delaware, 41 Id. 55; Folkner v. Hopkins, 2 N. J. Adv. R. 1857; State v. Simon, 3 N. J. Adv. R. 522.

There is one ease in this court to which our attention has been directed, Cutler v. Ellis, 1 N. J. Mis. R. 228. This was a civil action, and the court found that although the action was “informal and irregular,” yet “that ought not to result in setting aside the verdict, when, as appears clearly, the lawful rights of the plaintiffs were not prejudiced thereby.”

That the instructions given may have been proper and legally correct, and that they were correctly transmitted by the clerk to the jury, is beside the question, although it is urged that the defendant below suffered no harm. That is impossible for us to say. It may or may not be so. For instance, while the instructions brought forth by the questions may have been correctly given, yet the request therefor, if made in open court, may have called for requests upon the part of the defendant below, for further instructions, suggested or provoked by the questions propounded by the jury and the instructions given in obedience to> the request, and where the action of the trial court was, as here, the defendant below had no such opportunity.

For this reason, therefore, the judgment below is reversed.


text:
    ALFRED FAGGIONI, BY LOUIS FAGGIONI, HIS NEXT FRIEND, AND LOUIS FAGGIONI, INDIVIDUALLY, PLAINTIFFS, v. ALEXANDER WEISS, DEFENDANT.
    Decided August 10, 1926.
    Negligence—Motor Vehicle Accident—Injury to Growing Boy— Four Trials—Last One Resulted in Verdict Here Appealed From on Ground, First, That it was Against Weight of Evidence; Second, Contrary to Credible Testimony; Third, Error in Refusal to Charge as Requested—Rule Discharged.
    On rule for new trial.
    Before Gum mere, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, James D. Carpenter, Jr.

      Contra, Thomas Brown.

   Per Curiam.

Alfred Faggioni, a lad of about eleven years, of age, was injured while riding in an automobile of the defendant upon the Perth Amboy bridge. The injuries were caused by a collision between the car in which he was riding and that of one Schenck, and such injuries resulted in'the necessity of amputating one leg above the knee.

The verdict in favor of the hoy is $10,000, and that in favor of the father is $1,000.

Suit was first brought against Schenek alone, and upon the trial thereof a juror was withdrawn and a mistrial directed so that Weiss might be joined as a defendant.

The result of the next trial was verdicts against Weiss only, in- favor of the boy for $15,000 and the father for $3,000. Upon a rule to show cause it was urged that the verdicts should be set aside, because they were against the weight of the evidence, contrary to the testimony of the plaintiff as to the manner of the happening and against the weight of the whole evidence; that the verdict in favor of Schenck should be set aside because not justified by the proofs and because the verdicts were excessive. The Supreme Court discharged the rule. Upon appeal, upon exceptions reserved under the rule to show cause, the Court of Errors and Appeals reversed the judgment for errors in the charge of the trial court.

The cause then again came on for trial, and the plaintiffs again obtained verdicts; the boy for $1,000 and the father for $500. Upon a plaintiff’s rule these verdicts were set aside as being inadequate.

The fourth trial resulted in the verdicts before mentioned, and toward which the present rule is directed.

The reasons urged why these verdicts should be set aside are—•

1. That they are contrary to the weight of the evidence.

2. They are contrary to the credible testimony.

3. Because the trial judge erred in refusing to charge defendant’s twelfth request to charge.

The request to which this third reason is directed was— “(12) If the jury finds from the evidence that the plaintiff has changed his testimony in material respect on this trial from what it was on one or more preceding trials concerning the same accident, you may infer from that circumstance that this case is not an honest one, and if you so find, jrour verdict should be no. cause of action.”

This request was not proper.. There was testimony aside from that, of the plaintiff which the jury might have found to be true, and so finding would warrant their verdicts. Aside from this we find that the trial court charged properly and fully upon this point.

We find that the verdicts are not against the weight of the evidence and should, therefore, not be disturbed for reasons one and two.

The rule to show cause will therefore be discharged.


author: Peb Cukiam.

text:
    CONA JACKSON, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF LARNIE JACKSON, DECEASED, PLAINTIFF-RESPONDENT, v. JOHN J. GEIGER ET AL., TRADING AS JOHN S. GEIGER & SONS, AND JOSEPH COSIELLO, DEFENDANTS-APPELLANTS.
    Decided August 10, 1926.
    Negligence—Death of Bicycle Rider in Collision With Motor Truck—Testimony of Witness Taken De Bene Esse—Objections of Respondent Sustained by the Court—Appellant Contends That This Ruling is Erroneous Because No Objections Had Been Lodged Against Such Questions and Answers at the Time the Depositions Were Taken—Held, That Objections Made to the Competency of the Witness and to the Relevancy of the Testimony, if Made When the Depositions are Offered at the Trial, are Timely and That They Need Not to Have Been Made at the Time of Taking the Depositions—Objections to the Procedure of Taking and to the Form of the Document Must be Made Before Trial, as Well as Objections to the Manner of the Interrogatories.
    On appeal from a judgment of the Essex Circuit.
    Before Gpmmerb, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellants, Jacob Schneider.

    Pot the respondent, Israel B. Greene.

   Peb Cukiam.

The respondent has a judgment for $10,000 for damages for the death of her- intestate. This is the result of a retrial of the cause. The result of the first trial was á judgment of nonsuit directed upon the ground of the contributory negligence of the decedent. This was reversed by the Court of Errors and Appeals. 2 N. J. Adv. R. 1653.

The appellant Cosiello was driving a motor truck of the defendants, John S. Geiger & Sons, in a southerly direction on Lincoln Park,' Newark, and in so doing crossed Clinton avenue and proceeded in an easterly direction on Lincoln Park until he reached Pennsylvania avenue. The distance between Clinton and Pennsylvania avenues being one hundred and fifty feet. Ten or fifteen feet east of the intersection of Clinton avenue and Lincoln Park, Larnie Jackson, respondent’s intestate, and his companion, Hall, both of whom were riding bicycles, allowed the truck to pass them, and when it was five feet ahead they followed and overtook it. Hall riding to the left of the truck and Jackson to the right. When the truck reached the middle of the block between Clinton and Pennsylvania avenues, about seventy-five feet from the latter avenue, Hall, at the left, was at the front end of the body of the truck and Jackson was on the right side, about the middle of the truck. When about ten feet from Pennsylvania avenue, Jackson had brought himself about at the cab of the truck. At Pennsylvania avenue the truck turned to the right into that highway, 'and Jackson endeavored to turn with it but was unsuccessful, the front wheel of the truck coming in contact with his bicycle, throwing him and causing injuries from which he died.

There was proof that the truck was traveling fast, and also that it was proceeding at a moderate rate of speed. The contention of the appellants was that Hall and Jackson were racing with each other and the truck, and that Jackson, by his own negligent acts, placed himself in a position of obvious danger, did not exercise reasonable care for his own safet}r, and that his acts were the proximate contributory causes of the happening resulting in his injuries and death.

There are eleven grounds of appeals.

Numbers 3, 9, 10 and 11 are not argued.

The remaining grounds are grouped under three points.

Point one, grounds 1, 2, 3 and 4.

Point two, ground 5.

Point three, grounds 6 and 7; these were abandoned at the oral argument.

Point one. The testimony of Michael J. Doherty was, by consent, taken de bene esse, in Michigan. At the trial these depositions were offered and certain questions and answers being objected to by counsel for respondent, the objections were sustained by the trial court. The contention of appellants is that such rulings by the trial court were erroneous because no objections had been lodged against such questions and answers at the time the depositions were taken.

These depositions were taken pursuant to section 57 of the Evidence act (2 Comp, Stat., p. 2237), which, inter alia, provides, “* * * either party may file the transcript of such testimony with the clerk of the court in which such action is pending, and thereupon either party may use the testimony so taken on the trial of said action in the same manner and with the same force and effect as if said testimony had been taken under a commission duly issued by the court on application therefor made as hereinbefore provided to take de bene esse the testimony of such party or witness.”

Section 52 of the same act (2 Comp. Stat., p. 2236) provides : “Any deposition or examination taken under this act shall be subject to be excluded or overruled, wholly or in part, according to the opinion of the court, upon any objection taken to the competency of the witness, the materiality or competency of the evidence given, or the regularity of the questions put, but shall not be excluded for any irregularity or informality in taking or returning the same, if the court in which the same is offered is satisfied that the testimony of the witness has been fairly and truly taken and returned; and if such deposition or examination shall be admitted in evidence by the court, no exception shall be taken to the admission thereof on the ground of any irregularity or informality in taking or returning the same.”

We think the statute contemplates that objections made to the competency of the witness and relevancy of the testimony, if made to the trial court when the depositions are offered in the trial of the cause, are timely, and such objections need not have been made at the time of taking the depositions.

“Objections to the procedure of taking and the form of the document must be made before trial; also objections to the manner of the interrogatories, for example, as improperly leading the deponent, or to the manner of the answers, as being insufficient or irresponsive. On the other hand, objections to the materiality or relevancy of the particular facts need not be made until the trial.” 1 Wigm. 55, § 18. To the same effect is 18 Corp. Jur., tit. “Depositions ” p. 754, § 381, and p. 687, § 208.

There was no error, therefore, in the action and rulings of the trial judge in this respect.

Upon the • question as to whether the questions and answers objected to were properly excluded, we find that they were because they were expressions of opinion or conclusions of the witness, and, therefore, there was no error in that direction.

The remaining grounds are argued under point two, and are directed at the refusal of the trial judge to direct a verdict in favor of appellants upon the ground of contributory negligence. ■

We are unable to find that the state of the proofs is materially different from what it was at the first trial, and we conclude that now, as then, it was a matter of facts and circumstances requiring submission to the jury.

The judgment below is therefore affirmed.


author: Peb Cublam.

text:
    THE STATE, DEFENDANT IN ERROR, v. ANNIE KUDELKA. PLAINTIFF IN ERROR.
    Decided August 10, 1926.
    Crimes—Manslaughter—Illegal Practice of Midwifery—Verdict Not Against Weight of Evidence—Not Error to Admit Evidence of Other Offenses—Evidence That Defendant Did Not Have License to Practice Midwifery Introduced for Purpose of Showing Defendant’s Degree of Skill, and, Therefore, Not Prejudicial as Showing Violation of Another Statute—Judgment Below Affirmed.
    On error to the Morris County Quarter Sessions.
    Before Gummerb, Chief Justice, and Justices Kalis on and Campbell.
    For the plaintiff in error, Ulmer W. Romine.

    For the defendant in error, Albert II. Holland.

   Peb Cublam.

This is a writ of error bringing up a judgment of conviction under an indictment for manslaughter. The entire record and proceedings at the trial are brought up under section 136 of the Criminal Procedure act.

The proofs -show that plaintiff in error delivered Veronica Teczkowski of a child on December 9th, 1924, and that she had attended her at the birth of other children at prior times; that on December 9th the husband called upon the plaintiff in error to attend his wife; that she reluctantly did so; that she was in a temper, nervous and excited over a condition of her daughter, or, as she herself says, that she did not desire to render the service because she had a sore foot and was unable to go. That a taxicab was secured and plaintiff in error was conveyed to the Teczkowski home where Mrs. Teczkowski was, by plaintiff in error, delivered of a child, but with such wanton negligence that the death of Mrs. Taczkowski resulted therefrom on December 13th, 1924.

The first ground urged for reversal is that the judgment below is based upon a verdict that is not supported by the weight of the evidence. We do not find this to be so.

The next ground is that it was ei*ror to admit evidence of other offenses.

■Plaintiff in error did not have a license, as required by statute, to practice midwifery, and the.contention is that this evidence was error and harmful.

But the evidence in question was not introduced for the purpose of showing violations of the statute by the plaintiff • in error, birt simply for the purpose of showing that she had experience and skill in that profession. In that respect there was no error in admitting it.

The next ground urged is the refusal to charge defendant’s requests numbers 4, 5, 6, 7, 8, 10, 12 and 17.

Our examination of the charge of the court brings us to the conclusion that all the matters covered by these requests were correctly and sufficiently charged.

The final matter urged is that the court erred in refusing to direct a mistrial upon the ground that the plaintiff in error was prejudiced by the prosecutor in his opening for the state, referring to her as “otherwise as Ooolack.”

Aside from the question that this matter is ■ not properly before us there is no merit in the point attempted to be raised because it cannot be said that plaintiff in error was harmed or prejudiced thereby because in her own examination she admitted that her name formerly was Coolack, and that she was known by that name, although her present husband’s name was Nudelka.

Finding no error in the record or proceedings upon any of the assignments or specifications argued and urged before us, the judgment below is affirmed.


author:
Harry J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    EDWARD PLUNKETT AND BRIDGET PLUNKETT, DEPENDENTS OF JOHN T. PLUNKETT, DECEASED, PETITIONERS, v. CITY OF NEWARK, RESPONDENT.
    Employe Killed In Course of His Employment—Evidence Taken to Show Nature of Dependence of Parents.
    On determination and finding of facts.
    For the petitioners, William Herder Smith.

    For the respondent, Charles M. Myers.

   2. It was admitted by counsel that John T. Plunkett, deceased, was killed in an accident arising out of and in the course of his employment on December 12th, 1924, while he was acting in the capacity of a police officer of the city of Newark, and that he earned a salary of $2,000 per year. The only question involved was the amount of compensation due for dependency on the part of the petitioners Edward Plunkett and Bridget Plunkett, the father and mother, respectively, of John T. Plunkett, deceased.

3. The petitioners testified that each and every pay check received by John T. Plunkett, deceased, from the city of Newark, was turned over to Bridget Plunkett for the benefit of Bridget Plunkett, the mother, and Edward Plunkett, the father, and that out of each check the most that the deceased received would be up to $5 a week, and during the course of a year the mother and father, the petitioners in this case, would provide for his uniform and civilian clothes.

4. From the testimony adduced at the trial, and from the circumstances from which a fair inference could be drawn, I am of the opinion that Edward Plunkett, the father of the deceased, and Bridget Plunkett, the mother of the deceased, were partially dependent upon the earnings of John T. Plunkett, deceased. I further find that both petitioners jointly are entitled to receive compensation at the rate of $10 per week for a period of three hundred weeks, and this paid in the following manner: Eifty-three weeks at $10 per week to be paid in bulk, this representing the number of weeks already due, and the balance of two hundred and forty-seven weeks to be paid in weekly installments of $10 per week; and the petitioners are entitled to $150 for funeral expenses incurred, this amount to be paid on the signing of this determination.

• sfc ❖ * ❖

Harry J. Goas,

Deputy Commissioner.


author:
Charles E. Corbin,
      Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    MARY KOSCIUKEWICZ, PETITIONER, v. JOHNS-MANVILLE COMPANY, RESPONDENT.
    Employe Died From Some Acute Intestinal Trouble—No Evidence That it was the Result of His Employment.
    Por the petitioner, James V. Burke.

    Por the respondent, Clarence E. Case.

   The petitioner having filed her claim for compensation from the respondent on the death of her husband, Waclaw Kosciekewicz, and the respondent having filed its answer, and the matter coming on to be heard in due folm at the court house, Somerville, New Jersey, at ten o’clock in the forenoon, December 1st, 1925, and the petitioner being represented by James V. Burke, Esquire, and the respondent being represented by Clarence E. Case, Esquire, and the petitioner having presented her evidence;

And it appearing that said Waclaw Kosciukewicz was, on the 3d day of September, 1925, and theretofore in the employ of the respondent, Johns-Manville, Incorporated, being then engaged in work in a certain trench on the premises of the respondent company at its plant at Manville, Somerset county, New Jersey; that on the 2d day of September the decedent come to work complaining of feeling ill; that on the 3d day of September, having eaten a quantity of green apples and drunk cold water thereon, the weather being warm summer weather, the decedent became markedly ill and was removed to his home, vomiting on the way home a matter that resembled green apples; that, after arriving home, the decedent lapsed into unconsciousness, and died the following day; and there being no satisfactory evidence that the death was due to an accident arising out of and in the course of the employment, or that the death was due to other than natural causes independent of employment,

It is, on this 23d day of December, 1925, determined that the death of the said Waclaw Kosciukewicz was not caused by an accident arising out of and in the course of his employment, and was not due to any fact that would bring it within the purview of the laws of the State of New Jersey visiting liability therefor upon the respondent herein, and it is ordered that the said petition be and the same is hereby dismissed.

Charles E. Corbin,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HARRIET CUMMISKEY, PETITIONER, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, RESPONDENT.
    Petitioner’s Decedent Injured and Treated at Hospital—After Returning Home Pneumonia Developed, Resulting in Death —Petitioner’s Physician Could Not Definitely Give the Cause of the Pneumonia—Burden of Proof is on Petitioner.
    On petition for compensation. Finding of facts, determination and order of dismissal.
    For the petitioner, Melosh, Morten & Melosh (by Henry J. Melosh).
    For the respondent, James 0. Boyd.

   ❖ * * * * * *

From the evidence submitted by the petitioner, it appears that Michael J. Cummiskey was the husband of the petitioner; that he was employed by the respondent and met with an accident arising out of' and in the course of his employment on the 6th day of October, 1924; that the injury sustained by the petitioner was a bruised right testicle; that he remained at home a few days and was then taken to the hospital and the testicle removed. He returned from the hospital on or about November 26th, 1924, and the day following his return from the hospital his family physician found him to be suffering from pneumonia. Petitioner’s decedent then returned to the hospital on November 28th, 1924, and died in the hospital as a result of pneumonia on cr about November 30th, 1924.

The doctor for the petitioner testified he could not definitely say what caused the pneumonia.

The doctors for the respondent testified that the pneumonia had no connection with the accident.

Under the Workmen’s Compensation act the burden is cn the petitioner to prove her case.

Erom the facts submitted it is clearly evident the peiitioner failed to sustain the burden of proof as required by the act, and the ease should, therefore, be dismissed.

Charles E. Corbin,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WAVER RAY, PETITIONER, v. WARNER SUGAR REFINING COMPANY, RESPONDENT.
    On determination and dismissal.
    For the petitioner, Samuel C. Steinhardt.

    For the respondent, Richard W. Baker.

   This case come up for hearing on the motion of the respondent to dismiss the case for lack of jurisdiction.

The facts being admitted that the petitioner suffered an injury while on board the lighter “Alexander Lee,” on navigable waters, I find that the workmen’s compensation bureau of New Jersey is without jurisdiction, as this is a matter that comes under admiralty jurisdiction.

Accordingly, the motion of the respondent is granted and the case dismissed without cost to either party.

Charles E. Corbin,

Deputy Commissioner.


author:
Haeey J.' Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANCESO LINDDO, PETITIONER, v. AMERICAN SMELTING AND REFINING COMPANY, RESPONDENT.
    Injury to Eye—Treated and Compensated—Complainant Also Alleged at Same Time, Injury to Chest was not Treated for it, and Did Not Report it Either to Defendant or to Doctor— Testimony Not Sufficiently Definite to Sustain Judgment.
    Eor the petitioner, Jacob S. Karhus.

    Eor the respondent, John E. Toolan.

   :j<

The petitioner herein, on January 27th, 1926, was employed by the respondent, and while so employed and in the course of his said employment, and arising out of his said employment petitioner received and sustained injury by being struck by a bar or bars projecting from a car being operated over a narrow-gauge railway, and as a result of being so struck sustained a laceration about three-fourths of an inch long under the left eve, requiring several sutures and a contusion or scraping of the skin, extending from a point in the neck below the right ear along the right side of the face. Petitioner himself testified that he was squeezed between the car and a pillar or some other firm object and also sustained an injury to his chest from which he claimed he was suffering from the date of the injury up to about the date of the hearing. No claim was made for permanent injury, but only for temporary disability from January 27th, 1926, to April 9th, 1926. No medical testimony was offered to support or sustain petitioner’s claim of the nature or extent of his injury. It appeared from the petitioner’s own testimony, and also from the testimony of the respondent’s witnesses, that petitioner returned to work on February 11th, 1926, and worked continuously from said date to' March 23d, 1926. Dr. Eamsay, for the respondent, testified that the petitioner complained of no injuries other than the laceration and contusion above mentioned, and that the petitioner never men-, tioned to him on the several occasions when Dr. Eamsay attended the petitioner that there was any injury to his chest as now claimed by the petitioner. Dr. Eamsay reported the petitioner as being sufficiently recovered to return to work on Eebrukry 4th, 1926. Petitioner himself testified that he never disclosed, either to Dr. Eamsay or any other person in authority in the plant of the respondent company, that he sustained any injury to his chest. It was admitted that petitioner has already been paid compensation in the amount of sixteen dollars and seventy-one cents ($16.71).

The petitioner did not support or sustain the burden of proof. There was no medical testimony whatsoever to sustain petitioner’s claim that his temporary disability extended from January 27th, 1926, to April 9th, 1926. In fact, the petitioner’s testimonj1, was not sufficiently definite to permit of any finding by this court of the nature and extent of his disability or to justify a finding that he was disabled beyond the period for which he has already been compensated. % % # * ❖ * ❖

Haeey J.' Goas,

Deputy Commissioner.