author: Pee Cubiam.

text:
    STENECK TRUST COMPANY (IN LIQUIDATION), A CORPORATION OF NEW JERSEY, AND WILLIAM H. KELLY, AS COMMISSIONER OF BANKING AND INSURANCE OF THE STATE OF NEW JERSEY, ETC., PLAINTIFFS-RESPONDENTS, v. STENECK CLUB, INCORPORATED, A CORPORATION OF NEW JERSEY, DEFENDANT, AND GEORGE W. STENECK, DEFENDANT-APPELLANT.
    Submitted May 2, 1933
    Decided December 16, 1933.
    Before Beogah, Chief Justice, and Justices Teenohakd and Hehek.

      For the appellant, Merritt Lane.

    For the respondents, John Milton.

   Pee Cubiam.

Plaintiff Steneck Trust Company, in liquidation, and the commissioner of banking and insurance, brought suit against the Steneck Club, Incorporated (hereinafter referred to as Club), and appellant, George W. Steneck (hereinafter referred to as appellant), to recover on two promissory notes, one for $500 dated April 27th, 1931, and the other for $65,500 dated April 7th, 1931, each made by Club to the order of itself, payable at the Steneck Trust Company.

The notes bore the endorsement of the Club, and also the endorsement of the appellant under the words “for value received notice of demand and protest is hereby waived and I hereby guarantee the payment of the within note.”

Appellant filed an answer in which he set up (1) that he signed the notes purely for the accommodation of the trust company; (2) that at the time of the signing o£ the notes there was in the possession of the trust company individual notes of members of the club, together with shares of stock of the trust company, which notes and stock the trust company held as collateral security for the payment of these notes and agreed to hold the collateral and to reduce the notes by application of the collateral and that notes and shares of sufficient value to liquidate these notes sued on are in the possession of the trust company and that there is nothing due on the notes sued on; and (3) that the shares of stock of the trust company heretofore mentioned, had been disposed of by the trust company and the notes released without notice to the appellant and that he has been deprived of collateral to which he was entitled.

Plaintiff moved to strike the answer as “sham and frivo-' lous.” The motion was supported by the affidavit of a special assistant deputy commissioner of banking and insurance, which went to the existence of the notes, and purported to trace them back to May 26th, 1927; that ho had made numerous examinations of the assets and liabilities of the trust company and never found any notes of any individuals held as .security as collateral or otherwise, nor any note of the club, .and that none were found when the commissioner of banking .and insurance went into possession; that there was in one •of the vaults an envelope marked “915 shares—Steneck Trust Company,” and in the envelope were a number of certificates •of stock of the trust company made out to various persons with the usual power of attorney, but there were no notes •of any kind in the envelope; that the records of the trast company did not disclose any authority for the making of the .agreement to hold the notes and stock as collateral security, .alleged in the defendant’s answer; that in May, 1927, appellant was assistant secretary and assistant treasurer and a •director of the trust company, and that later he became viceyresident, and at all times was an active officer and active participant in the affairs of the trust company.

This affidavit was met by the affidavit of the appellant who .•said that: the note dated May 26th, 1927, was not the original note; that prior to the incorporation of the Club, employes of the trust company had been purchasing stock of the •trust company and obtained the money to make the purchases hy discounting their notes; that they reduced the notes by payments from time to time; that subsequently all the notes were gathered together and the Club executed a single note for the full amount “which was discounted in place of the individual notes of the employes, and those individual notes, 'together with the stock of the employes endorsed for transfer, were held in the bank’s vaults as collateral security to the payment of the original notes;” that this stock and the indi■vidual notes were kept in the vault of the trust company, 'being in the possession of the secretary and treasurer of the ■company, one Joseph Tighe; that the agreement was that ■this stock and the notes should be held as cdllateral security for the note of the Club; that after the original note of the •Club had been discounted by the trust company and carried by it for some time, the commissioner of banking and insurance requested the trust company to secure the endorsement •of the note by an officer of the trust company; that the appellant acted upon that request and personally endorsed the note of May 26th, 1927, which was a renewal of previously existing notes of the Club; that the notes sued on were renewals of the notes endorsed by him under the same condition; that the stock and notes were examined by examiners of the department of banking and insurance on several examinations; that on the day the trust company was closed the notes and stock were in a drawer of the paying-teller of the trust company where they were kept for collection from the makers of the notes; that the notes were originally in his possession, but that for the convenience of collection he left them with an officer in the trust company and they were kept locked in a drawer of the paying-teller’s desk; that they were in the bank on the day the bank closed and he did not remove them; that since the trust company was closed he had no access to its records; that under the agreement and understanding between him and the trust company, the stock and notes should be first realized upon.

Other affidavits were submitted to some of which brief reference will hereafter be made.

The court below struck out the answer as sham. In view of the affidavits we think the court was not justified in striking the answer as sham. The affidavit of the appellant purports to be based on actual knowledge. He goes into detail with respect to the agreement between himself and the bank as to the existence of the notes of individual members of the Club and the shares of stock held as collateral security by the bank for the payment of the notes endorsed by him. We think it is immaterial whether there was an express agreement between himself and the bank. He was entitled to the benefit of the collateral, if his statements were true. If his statements were true the notes and stock were either in the possession of the trust company or, without notice to him, had been disposed of, thereby depriving him of the collateral to which he was entitled.

The affidavits of officials of the trust company, who deny that the notes were there in their possession, are contradicted by the affidavits upon the part of the appellant, and indeed by one of plaintiff’s affidavits it appears that the notes were in the possession of the trust company. There is also the affidavit by a bank examiner to the effect that “at the close of business June 5th, 1926, I made a list of notes held by the Steneck Trust Company made by the employes of the company to secure -which the trust company held as side collateral shares of its own stock and shares of City Trust Company stock.”

It seems to us that the question as to what were the actual facts could only be determined upon a trial which would permit the cross-examination of the affiants and the production of records, and consequently, it seems to us to have been erroneous to strike the answer, which action we are persuaded was the result of misapprehension upon the part of the judge as to the substance and sweep of the affidavits presented.

The respondents contend that the answer was frivolous if not sham. We find ourselves unable to take that view for the reasons hereinbefore suggested.

The judgment below will be reversed and the record remitted to the Court of Common Pleas to be there proceeded with in due course. Costs to abide the final result.


source: Caselaw Access Project

license: Public Domain

text:
    NILS PARSON, PLAINTIFF-APPELLANT, v. JOHN DUGHI, DEFENDANT-RESPONDENT.
    Submitted October term, 1933
    Decided December 19, 1933.
    Before Bkogan, Chief Justice, and Justices Tkenchard and Heheb.
    Por the plaintiff-appellant, Benjamin Gordon.

    Por the defendant-respondent, Qox <& Walburg (William H. D. Cox, of counsel).
   Pee Cubiam.

This is an appeal from a judgment of nonsuit entered in favor of the defendant and against the plaintiff in the Union County Court of Common Pleas. The record before us discloses these facts and circumstances: The plaintiff, Nils Parson, visited some friends who lived in a six-family apartment house in Westfield, New Jersey. He entered the apartment of his friends by the front door, spent the evening with them until about half-past nine, when he arose to make his departure. On so doing, he went to the rear of the apartment to obtain his hat, which he had left in the kitchen, and he elected to leave these premises by the rear entrance that opened off the kitchen.

It appears from the record before us that each of the apartments in this house has a rear porch so that one might leave from any apartment, stepping onto a porch and descend a stairway to the ground. The Longs had their apartment on the ground floor. The plaintiff, on this occasion, stepped from the kitchen onto the porch, in the darkness, then proceeded to feel his way to the steps leading from the porch to the ground. He was groping for the handrail, which had been removed, the premises being under repair, and the plaintiff fell a height of six or seven feet, landed on a pile of brick evidently being used for the repairs, and sustained serious injuries. His action at law was against the owner of the premises.

Both Mr. and Mrs. Long testified that they had not been notified as to when the repairs were started by the landlord although they knew that they were under way. Mrs. Long testified that the porch rail was in its place on the morning of the day of the accident.

The trial court granted the defendant’s motion for a non-suit and this appeal is grounded solely on the point that the nonsuit should have been denied.

The plaintiff himself testified that at seven o’clock in the evening he walked in the front door of the apartment; that he remained with Mr. and Mrs. Long until about nine-thirty; that he had visited the Longs several times before and had used the rear porch as an exit on those occasions, which, however, were in the daytime; that on the night of the accident it was, as the plaintiff says, “awful dark” on the porch; that he couldn’t see where he was going; that “he could not see at all;” that as soon as he opened the kitchen door to go out on the porch it was “pitch black” and that he couldn’t see a thing; that he was trying to put his hand on the guardrail of the porch; that he might have gone out by the front entrance had he so desired; that before he actually went out on the porch he could see it was dark; that he was unable to see the other side of the porch and that he could observe this condition before he had taken even one step out on the porch, and that when he reached the porch, he put out his hand “to grab hold of the rail, and there was no rail, and at the same time I stepped right over;” that when he went out on the porch, besides being unable to see, he was not sure where the steps were; that he didn’t ask for any light and, finally, that he just walked out and fell. This recital paraphrases the plaintiff’s own testimony.

In granting defendant’s motion for a nonsuit, under these facts, we think the court was entirely justified. The plaintiff’s own evidence presented a complete picture of negligence which contributed to the injuries which he received. The facts portrayed, in our judgment admit of no dispute concerning which fair-minded people might differ. The facts admit but one conclusion, culpable contributory negligence. Cf. Dwyer v.N. Y., L. E. and W. R. Co., 47 N. J. L. 9; Freschi v. Mason, 108 Id. 272 (at p. 277); Dempsey v. White Plains Hotel Co., 110 Id. 157. We do not determine what'duty, if any, was owed the plaintiff below by the owner of the premises, that question being under our view of this case entirely immaterial.

The judgment of nonsuit is affirmed, with costs.


author: Per Curiam.

text:
    COE L. SMITH, PLAINTIFF-RESPONDENT, v. CLARENCE SMITH AND ANNA V. W. SMITH, DEFENDANTS-APPELLANTS.
    Argued May term, 1933
    Decided December 19, 1933.
    Before Brogan, Chibe Justice, and Justices Trenciiard and Heher.
    For the plaintiff-respondent, Dolan & Dolan.

    For the defendants-appellant, Raymond H. Berry.

   Per Curiam.

This appeal presents for review a judgment recovered by the plaintiff on a promissory note which was signed by Clarence Smith and Anna Y. W. Smith, his wife, on April 1st, 1909, in the sum of $3,300. The parties defendant no longer live as man and wife, the husband, Clarence Smith, is out of the state, and his wife was sued alone. The obligation is joint in character.

It appears that the husband paid the interest on this obligation up to August 8th, 1931.

The case was submitted to the jury and a judgment found in favor of the plaintiff and the defendant appeals on three grounds which will be considered in the order in which they were argued.

The first is that the court erred in refusing to grant motion made by defendant, Mrs. Smith, for a directed verdict.

The defense was that at the time the note was signed by her she was a married woman and that she received no consideration therefor and no value to her separate estate. If this could be demonstrated to be the fact she would of course have been entitled to a direction of verdict. Married Woman’s act. 3 Comp. Stat., p. 3226, § 5; Peoples National Bank v. Schepflin, 73 N. J. L. 29. The general rule is that a direction of verdict should not be granted where the minds of reasonable men might differ as to the conclusion to be formed from the facts in evidence. Here there was a disputed question of fact, the plaintiff having testified that he loaned the money to Mr. and Mrs. Smith to enable them to build a house or to pay for a house that had just been built. Therefore, the direction of verdict was properly denied.

The second ground for reversal is that the trial court erred in admitting evidence with reference to contracts and agreements made between Anna Y. W. Smith and her husband, Clarence Smith, in 1927.

This ground of appeal is not available to the defendant because of its insufficiency. The rule is that grounds of appeal should specifically point out the judicial action complained of and in case of rulings on evidence should state the name of the witness, the questions or answers objected to and rules upon by the trial court, which was not done by appellant here. Booth v. Keegan, 108 N. J. L. 538.

The third ground of appeal is that the trial court erred in charging "each payment of interest made by Clarence Smith renewed the joint obligation of Clarence Smith and Anna Y. W. Smith.”

As to this ground of appeal, it will suffice to say that the principle of law enunciated is sound and has been recognized as applicable to joint liabilities, as here, for many years. Parker v. Butterworth, 46 N. J. L. 244. The substance of the appellant’s complaint seems to be that the jury might have been misled by this part of the court’s charge, coming as it did almost at the end thereof. A reading of the whole charge, however, convinces us that this is not and could not very well have been the fact.

The judgment appealed from should be affirmed, with costs.


text:
    RAYMOND I. LYON, Jr., AND ALICE LYON, HIS WIFE, GEORGE RAPP, DOROTHY ENGLISH, AN INFANT, BY HER NEXT FRIEND, WILLIAM ENGLISH, AND WILLIAM ENGLISH, PLAINTIFFS-APPELLEES, v. MAX FABRICANT AND JOSEPH PURPIS, DEFENDANTS-APPELLANTS.
    Submitted October term, 1933
    Decided December 19, 1933.
    Before Bbogan, Chief Justice, and Justices Tbenchaed and Hehek.
    For the plaintiffs-appellees, Walter A. Beers.

    For the deiendants-appellants, Pomerehne, Laible & Kautz (Henry Pomerehne, of counsel).
   Pee Cubiam.

This is an appeal from a judgment recovered by the several plaintiffs against the defendants in an action tried at the Essex County Court of Common Pleas.

The plaintiffs were all passengers in an automobile proceeding easterly along the Lincoln highway at Fallsington, Pennsylvania. The defendant Max Fabricant was driving an automobile belonging to the defendant Joseph Purpis with Isidore Penn as a passenger. From the testimony, it appears that the state highway, in this vicinity, is a concrete road with two lanes for driving, one easterly, the other westerly, each about ten feet in width. There was a collision, the incident occurring between midnight and one o’clock in the morning on April 18th, 1932.

Prom'the testimony offered on behalf of the plaintiffs, the jury might legitimately have concluded that the car in which the plaintiffs were riding was proceeding easterly at a moderate speed and that close behind it was another automobile driven by O’Meara, who appeared as a witness in the case in behalf of the plaintiffs, and that the defendant’s car, driven by Pabricant, going in the same direction, pulled out from behind these two ears and passed the O’Meara car and the plaintiff’s car as well, at a speed of fifty-five miles an hour; that this defendant’s car, after having passed these two automobiles at a high rate of speed, continued on the left side of the road for some distance when it collided with a car driven in the opposite, or westerly direction, so that the left front wheel of the defendant’s car and the left front wheel of the oncoming car, owned by one Powell, were demolished, the Powell car crashing into the automobile in which the plaintiffs were riding, overturning it and causing injury to these plaintiffs. This was the picture disclosed by the testimony of the witnesses, and which the jury might take as the facts.

Prom the judgments entered on the verdicts found by the jury, the defendants below appeal setting up three main points.

The first ground of appeal, namely, that the trial court erred in rejecting defendants’ motion for nonsuit is predicated on the proposition, first, that there was no evidence that the defendants were guilty of negligence and, second, that the evidence did not show that the negligence was the proximate cause of the injury.

It will serve no useful purpose to set forth the evidence in the case, pointing out with particularity incidents that spell negligence on the part of the defendants below except to say that the testimony is replete with recitals that make manifest the negligent operation of the defendant’s automobile which justified the jury in finding—as apparently it did find—that the fault lay with the defendants and, further, that this negligence was the proximate cause of the injuries sustained by the plaintiffs.

Before the trial judge may enter a judgment of nonsuit on defendant’s motion where the action is predicated on defendant’s negligence, it must conclusively appear that the defendant was not negligent or that the negilgence, if it existed, did not cause the damage that is the subject of the suit. The evidence presented makes both those elements in this case questions for the jury.

The next ground of appeal charges that the trial court erred in refusing to direct a verdict against the plaintiffs below and in favor of the defendants for the same reasons discussed above plus the additional one that the plaintiffs were bound by an exhibit in the case, which exhibit consists of a complaint filed in the United States District Court for the eastern district of Pennsylvania, charging Powell, who, it will be remembered, was the driver and owner of the automobile traveling westerly, which collided first with the automobile of the defendant before crashing into plaintiffs’ car. It appears that the plaintiffs, at the trial of this cause, denied signing the affidavit attached to the complaint that was subsequently filed in the United States District Court, in which Powell was named defendant. Mr. Lyon the plaintiff and Alice Lyon, his wife, denied it. We see no merit in this contention. It should be observed that the motion for directed verdict made to the trial court was not predicated on the strength of this exhibit, namely, the verified complaint filed in the United States District Court. Under the circumstances in this case, the exhibit in question goes to the credibility of the witnesses and is for the jury to determine and is not dispositive of any phase of the case as a matter of law. It should also be noted that a prima facie case was made out for the plaintiffs by the testimony of O’Meara, who is not an interested witness in any sense.

The third ground of appeal challenges certain portions of the court’s charge. These grounds of appeal are not available to the appellants and cannot be considered here for the reason that the appellants did not avail themselves of the opportunity of properly excepting to the court’s charge. Counsel, in calling the court’s attention to his objection to the charge, merely stated, so far as the record shows, in general language that he objected to certain statements made by the trial court. He doesn’t say why nor does he point out with any particularity the error in the charge delivered by the court to the jury so that the court might have an opportunity, if it was error, to correct it. Potts v. Clarke, 20 N. J. L. 538; Oliver v. Phelps, Ibid. 180; 21 Id. 597; Klein v. Shryer, 106 Id. 432; Ciccone v. Colonial Life Insurance Co., 110 Id. 276.

The judgment under review will be affirmed, with costs.


text:
    RICHARD A. PORTER, PROSECUTOR, v. BUILDING ASSOCIATES, INCORPORATED, A CORPORATION, DEFENDANT.
    Argued May term, 1933
    Decided December 19, 1933.
    Before Brogan, Chief Justice, and Justices Trenciiard and Heher.
    For the prosecutor, Silzer A Stern.

    For the defendant, Grosso, Brundage & Anderson (Norman L. Brundage, of counsel).
   Per Curiam.

This writ of certiorari presents for review a default judgment entered in the District Court of the city of Orange in favor of the plaintiff and against the defendant.

The prosecutor of the writ was the defendant’s tenant under a lease which expired on September 30th, 1932. In the court below plaintiff sued for two months’ rent, namely, September and October, 1932. Admittedly, there was due the owner, rent for the month of September, which claim was set out in the first count of the state of demand. This item is not under consideration here.

In the second count, the owner makes claim for rent for the month of October, alleging that the tenant had served notice that the lease would not be renewed at its expiration, September 30th, 1932, but that the tenant was liable for rent, because he remained in possession of the premises “during part of the month of October, that he failed and refused to surrender the keys to the premises to the plaintiff although plaintiff requested same.”

After the suit was started, the tenant voluntarily came to the attorney for the owner and paid the amount of rent due for September, together with costs of suit, and received a receipt from the owner’s attorney acknowledging payment of $151.20, of which sum $140 was for rent due for the month of September and the remainder for costs. This receipt also set out that the plaintiff still claimed rent for the month of October, 1932, on the theory, as set out in the state of demand, that the tenant held over. The date of the payment was December 1st, 1932.

The return of the constable, who served the process, showed that the summons and state of demand was served on November 29th, 1932, and the return day of said summons, December 7th, 1932. The record shows that the case in the District Court was marked “no appearance on January 4th, 1933, and judgment entered against the defendant, on affidavit, filed in behalf of the owner, on January 6th, 1933; and execution issued on February 17th, 1933, which, as prosecutor’s attorney argues, is more than thirty days after entry of judgment. This default judgment is brought up for review by this writ.”

It will also be noted that the default judgment in question includes costs in full although the tenant had paid costs of suit in settling the owners’ claim for the September rent.

Upon learning, because of the execution, that judgment had been entered on January 6th, 1933, the tenant obtained a rule to show cause why the said default judgment should not be reopened, with the result that the court refused to disturb the judgment.

Many reasons are assigned why the default judgment should be set aside, among them being the summons and state of demand, left at the defendant’s home with an employe, was not signed by the clerk, not dated, and had no return day fixed therein.

It appears that the constable, who served the process, left the summons and state of demand with a servant in the house, advising her, as he says, to bring the matter to the attention of the defendant, when he returned home, after explaining to her what it was. He likewise says that the summons served was the original, that it was dated, signed by the clerk, and showed a return day. As a matter of fact, the prosecutor of this writ produces as an exhibit in the case a summons which does not bear the signature of the clerk, is not dated, and has no return day either in the body or on the back thereof, and testifies that this undated process was in fact served. The landlord, on the other hand, by witnesses says this is untrue, explaining the situation by saying that when the wife of the defendant below called upon the landlord’s attorney to make the payment above mentioned, she brought with her the original of the summons and state of demand and that after she had paid the September rent and costs and he gave her the receipt, which has been mentioned, he inadvertently handed her his office copy of the summons and state of demand which did not bear the clerk’s signature, was undated, and without a return day, and that he mistakenly retained the summons and demand, that is, the original, which she had brought to his office.

At the hearing, where depositions were taken under this writ, he produced and offered in evidence the original summons and demand which, he says, was the one served upon the defendant.

How whatever may have been the fact about this particular point, it is plain that the statute (Cf. District Court act, 2 Comp. Stat., p. 1966, § 45), requires that the summons, to be valid, shall specify a certain time and place for its return; it must also be dated because of the provision that the party to be charged shall have had at least five days’ notice of the time mentioned for appearance. It is just as essential, to our mind, that the party to be charged shall know definitely when a hearing or trial is to be had wherein his property rights are involved as it is that such litigant shall bo informed as to the exact nature of the claim being made by the plaintiff.

From the proofs, it is obvious that the tenant, after the visit to the attorney’s office, did not have the original summons in her possession, containing the information to which she was entitled and that is required by statute. On the other phases of this particular issue, the proofs are not so clear and convincing that the minds of reasonable persons might not honestly disagree about them and we are led to conclude, in order to insure complete justice, that the default judgment should be opened and a trial on the merits had, the costs in this matter to abide the final outcome of the suit, and this will be the order.


author: Pee Cueiam.

text:
    BLAICHER HOLDING COMPANY, APPELLANT-RESPONDENT, v. CITY OF NEWARK, RESPONDENT-APPELLANT.
    Submitted May term, 1933
    Decided December 19, 1933.
    Before Brogan, Chiee Justice, and Justices Trenchard and Heher.
    For the appellant, Frank A. Boettner (Louis A. Fast, of counsel).

      For the respondent, Lum, Tamblyn •& Colyer (Ralph E. Lum, of counsel).
   Pee Cueiam.

This appeal presents for review a judgment, of the Essex County Circuit Court, for interest on an award for lands taken by the city of Newark under the Eminent Domain act (Revision 1900), 2 Comp. Stat., p. 2181.

Briefly, the facts are that after the award was made by the commissioners in condemnation both the condemning party and the property owner appealed. The petition to condemn was filed August 10th, 1931. The commissioners filed their report, making an award on September 23d, 1931. On appeal, the verdict of the jury was returned December 1st, 1931. The amount awarded by the jury was accepted, the owner reserving the right to claim interest on the same. That question was tried by the court below, without a jury, and interest was allowed on the final award from the date of the filing of the petition in condemnation. The facts were stipulated, and it appears therefrom that two witnesses testified (on the appeal heard in the Circuit Court before the jury and their testimony was uncontroverted) that for sometime prior to the filing of the petition in condemnation the building of the owner had been occupied as a factory for the manufacture of jewelry; that the business was sold out when condemnation was threatened, and was then rented to the purchaser of the business, another manufacturing jeweler, under a month to month tenancy, and that the owners were forced to accept this month to month tenancy because of the threatened condemnation; that a few months before the petition was actually filed, the tenants exercised their right to vacate the building on thirty days' notice and did so because of the threatened condemnation, and that no revenue was derived from the building thereafter. It was also stipulated that the condemning agency, the city of Newark, did not take physical possession of the property in question until after the final award by the jury.

The court below said: “Possession was not taken. The city contends that possession is the controlling element; I think not. The deprivation of the profitable nse may occur where possession is not taken. The testimony in the case at bar establishes the fact that there was a deprivation of the owner’s possession and that because of the same the income from the property ceased. Under these circumstances the owner is entitled to interest from the date of the filing of the petition.”

In this finding we are of the opinion that the court below was in error. Obviously, the court reasoned, notwithstanding the fact that the city did not take possession of the property until after the jury has found its verdict, none the less the filing of the petition in condemnation brought about the deprivation of the profitable use of the building and that this was tantamount to taking possession. This seems to us to be clearly a non sequilur. It is admitted that the city did not take actual possession of the property. The trial court, therefore, must have been led to his conclusion by reason of the sale of the business which formerly was conducted in the premises and by the acceptance by the owner of a new tenant on a month to month basis and that thereafter this second tenant quitted the premises.

How if the first occupant of the building was under a lease, it could not have quitted the premises at will, so, manifestly, its lease, if there was one, had expired or it was a month to month tenant. The fact that it sold out its business cannot be charged to the fact that the land and premises were to be taken in condemnation. There is no direct proof of this and to conclude that it is so, without proof, is speculative and unwarranted. The proof is that the business was sold when condemnation was imminent. The new tenant likewise moved, and the reason therefor seems to us to be immaterial. Perhaps it got better quarters or cheaper rent elsewhere.

The court further said, “the testimony in the case at bar establishes the fací that there was a deprivation of the owner’s possession and that because of the same income from the property ceased.”

This finding of fact on the part of the trial court is not controlling upon us, because, as we view it, there was no competent proof to justify this conclusion. The court 'would not have been justified in receiving evidence of this character and submitting it to a jury, namely, that the first tenant had sold out his business when condemnation was apparent; that a new tenant rented the building on a month to month basis and that this new tenant moved prior to the filing of the petition in condemnation. Consequently, if such testimony, which would be necessary to justify a fact conclusion of this character, could not be received in evidence, a jury could not have found osuch to be the fact nor can the trial court sitting without a jury.

All these happenings occurred before the city of Newark had started the proceedings to condemn. Suppose the city, just prior to the filing of the petition in condemnation, had, in the exercise of sound discretion, decided not to make the improvement that required the taking of this property— would the owner have had a cause of action against the city for deprivation of the use of the building? We do not think so.

If possession of the locus in quo be taken by the condemning agency at the time of the filing of the petition, manifestly, the owner is entitled to interest from the date of the taking, but where the taking does not, as here, occur until after final judgment, it is error to allow interest on the amount of the award from the date of the filing of the petition when the property in question has been in the control of and available for use to the owner up to the time of final judgment.

The question here is a narrow one—whether the owner is entitled to interest on the award, as fixed by the final judgment after appeal, from the date of the filing of the petition, the city not having taken actual possession until after final judgment. That was the issue passed upon by the court below, and nothing more, and that is the issue here determined, and nothing more.

The judgment appealed from will therefore be reversed, with costs.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ANTHONY LOTEGANO, PLAINTIFF IN ERROR.
    Submitted May term, 1933
    Decided December 19, 1933.
    Before Bbogan, Chief Justice, and Justices Tbenchard and Heiier.
    Bor the plaintiff in error, Alexander Simpson.

    Bor the defendant in error, Douglas M. Hicks, prosecutor of the pleas (Joseph H. Edgar, assistant prosecutor).
   Pee Cubiam.

The plaintiff in error brings up for review, by writ of error, his conviction, in the Court of Oyer and Terminer of Middle-sex county, on indictment for robbery and felonious assault. Twenty-four assignments of error appear in the state of case but only five of these assignments are argued. Therefore, the assignments that are not argued will be considered as having been abandoned. State v. Snell, 96 N. J. L. 299; State v. Mohr, 2 N. J. Mis. R. 261; affirmed, 101 N. J. L. 230; State v. Heyer, 89 Id. 187.

The first assignment of error complains that the trial court addressed the defendant, Lotegano, in the presence of the jury panel in a prejudicial manner which deprived the defendant of a fair trial. We do not think so.

It appears that the defendant came into court an hour and a half later than the time that had been set for the trial; that on the previous day he had been particularly apprised of the fact that his trial would start the following morning at ten o’clock; that the court and-the entire panel on trial day waited until half past eleven or thereabouts for the defendant to put in his appearance. The defendant replied that he was “waiting for a lawyer.” The court apparently was considering punishing the defendant for contempt. The court further said to this defendant: “You have been hiding in the vicinity of this court room for some little time and have refused to present yourself in court.” That ended the matter. There was no objection made by counsel to this rebuke administered by the court, which to us seems to have been entirely merited, and these remarks are made the basis of an assignment of error.

If counsel had considered the court’s remarks to have been prejudicial at the time he would have requested that the case be laid over to another time and, further, if counsel had reasonable ground to believe that the court’s rebuke to the defendant militated against his rights he would have requested the court in its charge to have expressly instructed the jury to disregard the incident, which was not done. We do not consider the court’s statement to the defendant to have in any way prejudiced his rights and the assignment of error is not properly before us in any event since no objection was made at the time.

The plaintiff in error makes the further point that the court below erred in refusing to allow the defendant to cross-examine one of the state’s witnesses regarding the money alleged to have been stolen from the bank.

This assignment of error does not, from a reading of the whole case, appear to be in fact accurate. The court did not prevent defense counsel from going into the matter. The fact is that the court observed that counsel was taking up time unnecessarily and counsel manifestly acquiesced in that suggestion. There was no objection made or exception entered on the record. The court took no judicial action upon any pending question. There was no judicial rejection or reception of evidence. Consequently, there was no error. State v. Warady, 77 N. J. L. 348; affirmed, 78 Id. 687; State v. Sweet, 81 Id. 250; State v. Lockmam, 83 Id. 168.

It is next contended, on behalf of the defendant below, that the trial court erred in limiting and interfering with the defendant in the examination of a witness.

It appears one witness testified that a shot had been fired from an automobile in which the defendant was said to have been at the time of the bank robbery. An objection was entered on the record at this juncture of affairs where the following question was asked: “I ask you again to explain to this jury why it is you cannot tell us what part of the car the man was sitting in when he fired the shot?” The court reminded counsel that the question had been answered and counsel took exception to the court’s statement.

A reading of the entire cross-examination of this witness for the state discloses that previously counsel for the defendant had examined the witness on this very point and the witness answered that he couldn’t say from what part of the car the shot had come except that it had been fired out of the side of the car, but that he didn’t know whether it was from the front or rear except that he saw the shot fired from the car.

Counsel, for a second time, asked the witness to tell from what part of the car the shot was fired and the court interposed that the witness had already answered. Counsel then desired to examine the witness as to why he couldn’t tell from what part of the car the shot had come and the witness replied again that the shot was fired out of the side of the ear but that he couldn’t say whether it was from the front or the rear part of the car. This same inquiry was again repeated and the answer was, for the third time, reiterated. Counsel then, for the fourth time in Ms cross-examination, asked the witness whether the man who fired the shot was sitting in the front or the rear of the car and the witness, for the fourth time, replied that he couldn’t say; that he didn’t take notice of the particular part of the car from which the shot had come. Thereupon counsel again asked him to explain why he couldn’t tell in what part of the ear the man was sitting when he fired the shot and the court advised counsel that the witness had answered the question and counsel noted an objection. We assume that this assignment of error is predicated upon the proposition that the court abused its discretion in shutting off cross-examination that was repetitious. We do not think it was an abuse of discretion and no authority is advanced to support it.

The fourth assignment of error states that the court abused its discretion in refusing the reasonable request of the defendant for time to produce a material witness.

This assignment of error has no merit. The witness sought was a sister of the defendant, who was the owner of the automobile alleged to have been used in the commission of the crime, in the side pocket of which the defendant’s automobile driving license was found.

Now at three-thirty p. m. on the day of the trial, defense counsel asked for an adjournment in order to procure the presence and testimony of this witness. This of course was a matter of discretion for the trial court and it was no abuse of discretion to have denied the request of counsel. Counsel knew or should have known whether or not he would require the presence of this witness. Counsel does not represent that he requested or invited the witness to attend court. Counsel knew or should have known that in all probability the presence of the automobile in the vicinity of the bank where the robbery occurred would be brought into the case by the state and since counsel neglected to make any effort to procure such witness it was no abuse of discretion to have denied the application. State v. Newman, 98 N. J. L. 294. The defendant does not claim surprise, as counsel frankly admits in his brief, but bases his argument upon the fact that he thought that the state’s attorney would take up the entire day in proving the state’s case. Counsel miscalculated and of course that circumstance could neither be charged against the state nor the trial court.

The fifth assignment charges that the court erred in its charge by saying that there was a positive identification of the defendant in connection with offense charged. An examination of the case discloses that three witnesses, Hanson, Elizabeth Mika and Knapp, in their testimony, identified with definiteness the defendant below as having been the passenger in the car. This identification was positive in its nature. It was made unqualifiedly and without any saving reservation and cross-examination failed to shake this testimony in any detail.

The trial court may, in his charge to a jury, intimate an opinion as to the weight of evidence so long as he leaves to the jury the determination of the facts and clearly instructs them that their own conclusions and inferences are to govern in the determination of those facts. State v. Warady, 77 N. J. L. 348. This the trial court did, clearly telling the jury that they were the sole judges of the facts and it was for them to draw their own inferences and make their own conclusions on those facts; and if their recollection differed from the recollection of the court it was their recollection that was to prevail in their determinations.

We find no error in the record and the judgment under review is affirmed.


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    STEPHEN WASIL, Jr., AN INFANT, BY STEPHEN WASIL, HIS NEXT FRIEND; STEPHEN WASIL AND ANNA WASIL, PLAINTIFFS-APPELLEES, v. MICHAEL GULA, DEFENDANT-APPELLANT.
    Submitted May term, 1933
    Decided December 19, 1933.

      Before Beogan, Chief Justice, and Justices Teenchae» and Hehee.
    Por the plaintiffs-appellees, Francis A. Gordon (John M.. Ma.cKenzie, of counsel).
    Por the defendant-appellant, Coult, Satz & Tomlinson (,Joseph Coult and Gerald T. Foley, of counsel).
   Pee Cueiam.

This is an appeal from a judgment of the Union County Court of Common Pleas in favor of the plaintiff and against the defendant.

A judgment was recovered for personal injuries sustained, by Stephen Wasil, Jr., an infant, for medical expenses incurred by his father and for damages sustained by his parents-for loss of his earnings.

The defendant appeals and presents to us for consideration the first and sixth of his grounds of appeal expressly abandoning the others.

The first ground for reversal charges the trial court with error in the charge to the jury as follows:

“The claim of the plaintiff is substantially that he was parked over to one side of the street and attempted to turn over to the other in order to get out of the way of this car which he says was coming up the street, and he almost got across this street and was two and a half or three feet away from the curb when he was struck.”

The infant, at the time of this accident, was riding a bicycle-on Pennington street, in Elizabeth, Hew Jersejr, which runs-from east to west. He was employed as an errand boy and had stopped to make a delivery on the northerly side of the-street and after that was done he got on his bicycle and crossed to the south side of the street which, for him, was-the proper side since his intended journey was in an easterly-direction.

The defendant’s car, according to the testimony of some witnesses, was going in the opposite direction but was also-traveling on the southerly side of the roadway. The infant, thinking that the defendant, although traveling westerly, was going to park on the southerly side of the road, attempted on his part to cross again to the northerly side of the roadway to avoid the defendant’s car and was struck by the defendant’s automobile at a point about three feet from the northerly curb. The question of the defendant’s negligence is not challenged in this appeal.

A reading of the charge of the court to the jury makes manifest the fact that the court’s recitation of the facts was not strictly accurate but it also appears, in the record before us, that after the court had finished its charge, and while the jurymen were still in the box, counsel for the defendant below excepted to that portion of the charge above quoted.

The court then said to the jury:

“Well, gentlemen, in order to charge you fully on subjects of fact I will repeat again, that the mere fact that the court makes a statement that the witness has testified to any fact does not prove the fact and you must not take it as a fact, because I say so. The court does not take anything down in shorthand but merely makes notes for its own information and you are the sole judges of facts and you must rely on your memory as to what the witnesses said and you must not take it as a fact because I happened to say that substantially a witness testified this way or that way. This must be found by you.”

It seems to us that this supplemental charge of the court sufficiently informed the jury that they alone were the judges of the facts and inferences. Appellant’s counsel was apparently content with this supplemental statement by the court because no further objection was made by him or exception taken to the charge.

The second ground for reversal is a further challenge to the court’s charge and is set out in the brief as follows:

“The court erred in charging if the written statement of Jones contains a statement of what Jones testified to and Jones denies such a statement then the written statement could be offered to dispute Jones’ denial. In other words, a contradictory statement of a witness is always evidence.”

It appears from the record that one of the plaintiff’s witnesses, Jones by name, had signed a written statement concerning the accident which apparently defendant’s counsel had in his possession. Counsel for defendant, at the trial, cross-examined the witness by reading certain excerpts from the statement and asked the witness if those statements were true. The witness answered that they were. Evidently there was no discrepancy between the oral testimony and the written statement which had been given previously, and of course the statement was not nor could it be put in evidence. We gather from the argument in the briefs, though there is nothing in the record to show exactly what transpired, that plaintiff’s counsel, in his summation, attempted perhaps to capitalize this fact. This was improper and if defendant’s counsel considered that it was serious he should have asked for a mistrial. This he did not do but requested the court to charge the jury “that there was on obligation on the part of defendant to offer the statement of the witness in evidence and the fact that such statement was not offered is not proper subject of comment by counsel in summation,” and the court so charged.

This is a correct statement of the law and is not subject to complaint, but thereupon counsel for the plaintiff below requested the court to charge and the court did charge that if the written statement of Jones “contains a statement of what Jones testified to and Jones denies such a statement then the written statement could be offered to dispute Jones’ denial. In other words, a contradictory written statement of a witness is always evidence.” Substantially this is a correct statement of law. Perhaps it is awkward in form but its doctrine is sound. A party to a suit may confront a witness with a written statement executed by the witness if his oral testimony contradicts that written statement and such statement may be received in evidence unless the witness admits the discrepancy or contradiction between his oral testimony and his previously made written statement in which event it would serve no purpose to put the written statement into evidence. Lugosch v. Public Service Railway Corp., 100 N. J. L. 48; 126 Atl. Rep. 170; Shreve v. Crosby, 72 N. J. L. 491; 63 Atl. Rep. 333.

The cases relied upon by counsel for the appellant (State v. Hummer, 72 N. J. L. 328; 62 Atl. Rep. 388; Huebner v. Erie Railroad, 68 N. J. L. 468; 53 Atl. Rep. 543), in our judgment, have no applicability and do not support his position. Appellant maintains, under this point, that the court in charging the jury, as above quoted, gave the jury the power to decide “that it might find without the aid of evidence that the statement was contradictory to the testimony of Jones and if it came to that conclusion it might well say that counsel for the defendant had deliberately withheld important evidence from its consideration as counsel for the plaintiff charges in his summation.”

We have no way of knowing what plaintiff’s counsel charged in his summation since it is not in the record, but if the argument of counsel is at all to be considered the vice that he complains of in the charge, namely, that it permitted the jury to speculate, that the statement was contradictory to the testimony, would be helpful to the defendant and harmful to the plaintiff since Jones frankly admitted that the statement was his, and this certainly cannot now be complained of by the appellant as harmful error. This part of the court’s charge, which seems to us to have been superfluous and unnecessary, was not, in our judgment, harmful to the defendant’s interests. The written statement in question apparently was not contradictory; it was not put in evidence and in view of the court’s whole charge on this matter we do not see how it can reasonably be said that the jury was misled to the prejudice of the defendant.

This disposes of the appellant’s both points and the judgment under review should be affirmed, with costs.


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    EDWARD E. PETER, PLAINTIFF-APPELLANT, v. FREDERICK W. PETER, DEFENDANT.
    Argued May term, 1933
    Decided December 19, 1933.
    Before Brogan, Chief Justice, and Justices Trencharh and Heher.
    Por the plaintiff-appellant, Thomas D. Begley (Aaron V. Dawes, of counsel).
    Por the petitioner Burlington City Loan and Trust Company, in liquidation, Palmer & Powell.

   Per Curiam.

This is an appeal from a judgment of the Burlington County Court of Common Pleas setting aside a judgment confessed in said court by Prederick W. Peter in favor of Edward E. Peter, his brother, on the petition of the Burlington City Loan and- Trust Company by William H. Kelly, the commissioner of banking and insurance of the State of Kew Jersey.

The facts are that the petitioner, the commissioner of banking and insurance, took over, and is engaged in liquidating, the said Burlington City Loan and Trust Company; that it recovered judgment against Prederick W. Peter on his promissory note dated December 10th, 1931, in the sum of $10,000; that on August 5th, after the commencement of suit by the bank against Prederick W. Peter, he, the alleged ■debtor, made and executed his bond with warrant of attorney to enter judgment in favor of his brother, Edward, in the .sum of $15,283.44; judgment was entered in favor of Edward E. Peter on said bond, who made the required affidavit that the said sum was due and owing and that the judgment was not entered with any fraudulent intent or for the purpose of protecting the property of the debtor from his other creditors, and execution was immediately issued.

Now the petitioner claims that the said judgment was entered for the purpose of preventing the bank from recovering the amount of its debt, by causing a prior judgment to be entered, so that the property of the debtor would be sold before any action could be taken under the bank’s judgment and prayed that the judgment in favor of the debtor’s brother, Edward E. Peter, be canceled of record as having been entered to serve a fraudulent purpose in violation of the statute. A rule to show cause was allowed and the court, after hearing the testimony, concluded “that the bond with warrant to confess was given with fraudulent intent and purpose to protect the property” of the debtor from his other creditors.

Edward E. Peter appeals from this judgment which set aside the judgment in his favor, and urges four grounds for reversal; that the judgment of the court was erroneous because the evidence was insufficient to support the judgment; that the petition should have been dismissed at the end of the petitioner’s case or at the end of the whole case; that the appellant here should have been given judgment in his favor by the court below.

We deem it necessary to briefly review the testimony which, to us, seems to be in essence, factual, the issue being: Did the debtor give his brother the bond and warrant of attorney with the fraudulent purpose of protecting the debtor’s property from his other creditors ?

Frederick W. Peter, unquestionably, was in a bad state financially. He had been a director of the bank and the bank held his note without the security of endorsement or any collateral. Immediately prior to its due date, in March, 1932, 'his brother, Edward, paid off $500 on account of the obligation and the note was extended to May 1st, 1932. Effort was made to settle the bank’s claim on a twenty-five per cent, basis and later on a fifty per cent, basis which offers were-rejected by the bank. The debtor owed money to others and. gave to the Mechanics National Bank of Burlington, to which he was indebted, a second mortgage on some property that he owned, as collateral, doubtless to prevent suit. It was-after the Burlington City Loan and Trust Company had begun its suit that he gave his brother, Edward, the bond and warrant of attorney. It is not disputed but that he owed his brother, Edward, this money and that by far the major part of this particular debt was incurred prior to his obligation to the Burlington City Loan and Trust Company. His-bond to his brother, Edward, in the amount of $15,283.44, was payable one day after date. Edward E. Peter admits-that he knew nothing at the time about the bond being made in his favor until it had been done, but whether he knew it or not and whether he realized or not that his brother, Frederick, was deliberately preferring him is immaterial. The-fact that Edward paid off $500 on account of his brother’s-indebtedness to the bank and that he negotiated with the bank endeavoring to effect the settlement of his brother’s-indebtedness is likewise immaterial. This conduct on his-part is not strained but, on the contrary, is natural, considering the parties were brothers.

It is manifest that Frederick was insolvent during this-period and that the judgment in favor of his brother rendered him hopelessly insolvent. That, too, is immaterial. Every obligation paid off by anyone renders one less solvent than before he pai$ it. He was within his rights in preferring one creditor to another. Counsel for the bank, in his brief, does-not point to a single incident in the record that spells fraud on the part of either Frederick or Edward Peter.

This conveyance made, or bond given, by Frederick to his brother was to discharge, in whole or in part, an antecedent debt and even though Edward knew that his brother, Frederick, was thereby defeating other creditors, this preference will not be vitiated so long as Edward did not participate by reserving the debtor’s property in favor of the debtor. There is no evidence whatever to connect Edward E. Peter with any such plan. See Atlantic Refining Co. v. Stokes, 77 N. J. Eq. 119: 75 Atl. Rep. 445; affirmed, 78 N. J. Eq. 301; 81 Atl. Rep. 1132.

The rule is well stated in 20 Cyc. 472:

“The reasons that have been assigned for the distinction between one who purchases for a present consideration and ■one who purchased in satisfaction of a pre-existing debt are sound and unassailable. The former is in every sense a volunteer. He has nothing at stake—no self-interests to serve. He may, with perfect safety, keep out of the transaction. Having no motive of interest prompting him to enter it, if yet he does it, knowing the fraudulent purpose of the grantor, the law, very properly, says that he enters it for the purpose of aiding that fraudulent purpose. Hot so with him who takes the property in satisfaction of a pre-existing indebtedness. He has an interest to serve. He can keep out of the transaction only ■at the risk of losing his claim. The law throws upon him no duty of protecting other creditors. He has the same right to accept a voluntary preference that he has to obtain a preference by superior diligence. He may know the fraudulent purpose of the grantor, but the law sees that he has a purpose of his own to serve, and if he goes no further than is necessary to serve that purpose, the law will not charge him Tvith fraud by reason of such knowledge.” Also Eschmann v. Lord, 92 N. J. Eq. 382; 112 Atl. Rep. 488; 27 C. J. § 388.

It is not contended that the amount of the judgment in favor of Edward E. Peter is in excess of the amount due him. 'The mere assertion by the petitioner below of fraud is not .sufficient to taint this transaction and while dealings of this character between near relatives or close friends are, in the nature of things, to be regarded with suspicion, yet suspicions without proof do not constitute fraud nor can fraud be inferred, without facts in evidence to justify that conclusion. Taylor v. Wands, 55 N. J. Eq. 491; 37 Atl. Rep. 315. Whatever facts were proved in the court below, while they may have excited suspicion, they fell short, in our judgment, of establishing the claim of the petitioner, that the transaction was accomplished for the benefit of Frederick instead of for the benefit of the creditor whom he preferred.

The judgment appealed from is therefore reversed, but without costs.


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    MINNIE APFELBAUM AND ALICE LAWSON, ADMINISTRATRICES OF THE ESTATE OF JOHN P. JOHNSON, PLAINTIFFS-APPELLEES, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May term, 1933
    Decided December 19, 1933.
    Before Beogan, Chief Justice, and Justices Teenohaed and Hehee.
    For the plaintiffs-appellees, Jacob Mellinger {Ralph Giordano, of counsel).
    For the defendant-appellant, Perkins, Drewen & Nugent.

   Pee Cueiam.

This is an appeal from a judgment recovered in the Essex County Circuit Court by the plaintiffs below against the defendant, The Prudential Insurance Company of America, a corporation. The following are the material facts: The

appellant, insurance company, insured the life of John P. Johnson, on two policies of insurance totaling $715. Each policy contained a provision that the insurer, upon receipt of due proof of the death of the insured, during the continuance of the policy, would pay the amount of the insurance to the executors or administrators of the insured.

On November 24th, 1931, it was ordered, adjudged and decreed by the surrogate of Hudson county that the said Johnson is presumed to be dead (he having been absent from the state and not heard from for over seven years successively), and thereafter the said surrogate granted letters of administration to the plaintiffs, who are the daughters of the said Johnson. It appears that the defendant company was made party to this proceeding, having for its object the declaring of the said John P. Johnson to be dead, and appeared before the surrogate by counsel and also had received notice that the letters of administration had been granted. It further appears that the said defendant, on its application, obtained from the surrogate, on June 8th, 1932, an order to show cause why the said decree adjudging the said Johnson to be presumably dead should not be opened and set aside and declared void; and it further appears that on September 21st, 1932, the said order to show cause why the original decree should be revoked, was discharged, and it was ordered that the decree of November 24th, 1931, “stand in full force and effect” for the reason that no testimony was produced by the insurance company to cause the surrogate to revoke his said original decree.

The plaintiffs demanded payment of the amount of the insurance specified in the policies, which was refused by the insurance company, and suit was brought by the plaintiffs and judgment recovered as aforesaid.

In their case the plaintiffs proved that these procedings were held before the surrogate and that the defendant had notice thereof and appeared in said proceedings; that the surrogate allowed the decree as aforesaid and also letters of administration. Some testimony was submitted by the defendant none of which rebutted the presumption of the death ■of Johnson. The court submitted the case to the jury and the plaintiffs were awarded judgment for the amount of the policies.

The appellant writes down nine grounds for reversal, some -of which are not argued and must be treated by us as being abandoned.

The first point presented in the appellant’s brief recites that no judgment can be sustained on the issues raised by the ■complaint. This point is not included in the grounds of appeal filed by the defendant and, consequently, is not now available to it.

The second and third points may be considered together and are that it was incumbent upon the plaintiffs to prove the death of Johnson as a condition precedent to recovery and that no proof of death was ever filed with the company, in accordance with the requirement of the policies. It is, .however, clear from the state of the case that the defendant, insurance company, appeared before the surrogate on the pro■ceedings initiated by plaintiffs to have Johnson declared .legally dead; that notice of the granting of letters of administration was had and that the insurance company notified the plaintiffs that it would not pay the policies; and that from the defendant’s own exhibit, it is clear that the defendant knew of the situation under consideration because on the margin of the application for these insurance policies, which remained in the possession of the defendant, there is stamped the word “disappearance.” Such proofs of presumption of death as existed were obviously brought to the attention of the company and when the insurance company notified the plaintiff that it would not pay the amount of the insurance specified in the policies, this action, on its part, relieved the plaintiffs of the further requirements called for by the policies. Cheshansky v. Merchants Fire Insurance Co., 102 N. J. L. 414; 131 Atl. Rep. 910; Radwanski v. Scottish Union, &c., Co., 100 N. J. L. 192; 126 Atl. Rep. 657; Evans v. Farmers Reliance Insurance Co., 110 N. J. L. 159; 164 Atl. Rep. 258.

It is also clear that any and all contracts, such as this was, .are subject to the law of the sovereignty and our statute provides as follows (Cf. Death, 2 Comp. Stat., p. 1904—Rev. 1877, page 294—as amended Pamph. L. 1895, p. 751) :

“That any person, whether a resident of this state or not who shall remain beyond the sea, or absent himself or herself from this state, or from the place of his or her last known residence, or conceal himself or herself in this state or in the place of his or her last known residence, for seven years successively, shall be presumed to be dead, in any case wherein his or her death shall come in question, unless proof be made that he or she were alive within that time; * *

It is not argued that the proceedings before the surrogate were irregular or that the jurisdictional facts and statutory requirements were not proven to the satisfaction of that official so that he was impelled to decree the presumptive death of Johnson. Furthermore, the defendant submitted no proof to offset this presumption of death and we are of the opinion that since the decree of the surrogate was not challenged by any legal proof, the case was properly one for the determination of the jury.

It is next urged, under the appellant’s fourth point, that it was error to admit in evidence in this case the letters of administration which were granted by the surrogate. We do not think so. These letters were corroborative of the adjudication of presumptive death of Johnson since the surrogate must adjudicate the fact of the death of the person in question as a preliminary to the granting of letters of administration. “An order directing the issue of such letters therefore contained by necessary implication (when not expressly stated) an adjudication of the fact of the death of the alleged decedent.” Moyna v. Prudential Life Insurance Co., 96 N. J. Eq. 293 (at p. 296); 125 Atl. Rep. 99.

Tinder the fifth point made by the appellant, it is contended that it was error for the trial court to admit into evidence an order to show cause made by the surrogate having for its purpose the revocation of the decree of Johnson’s death. Wow this petition, upon which the order to show cause was granted, was the defendant’s petition and tended to show that after the decree of death, so called, the defendant below made an attack upon these proceedings and that the surrogate, aeting in a judicial capacity, received the petition and allowed the order to show cause why his decree should not be revoked. Obviously, no proof was presented on the return of the show cause order that challenged the surrogate’s previous determination since that official reaffirmed it. Certainly this admission of this evidence was not error. After all, this evidence was official in character and had to do with the step in the cause preliminary to the instant suit. The objection was that the evidence was immaterial. We think that it was material.

The final point made by the appellant is that the court erroneously excluded evidence by an actuary of Johnson’s life expectancy. Evidence is admissible when it is relevant, material or competent. The mortality tables were offered to show that Johnson had a certain expectancy of life which had not yet expired. We do not see how these tables can be said to be material, relevant or competent testimony to show that Johnson was still alive. After all, the real issue is whether Johnson were alive or not and in the absence of legal proof that he was alive, the legal presumption set up by the statute governs.

A young man of twenty-one, in sound health, has a long expectancy of life, yet he may die the following day from disease or accident. These mortality tables are solely for the purpose of helping a jury to determine the length of years that a person would live providing he is not taken off by accident or disease, and it is for the, purpose of enabling such fact finding body to form some estimate of how long a person in good health, who is not taken off in an untimely way, might be expected to live.

We find no substance in the points argued for reversal and the judgment is affirmed, with costs.


author: Peb Curiam.

text:
    KATHERINE GRAUSS AND LOUIS GRAUSS, PLAINTIFFS-RESPONDENTS, v. ABRAHAM ALPERT, DEFENDANT-APPELLANT.
    Submitted May term, 1933
    Decided December 19, 1933.
    Before Brogan, Chief Justice, and Justices Trenchabd and Heheb.
    Eor the plaintiff s-respondents, Schneider & Schneider {Jacob Schneider, of counsel).
    Eor the defendant-appellant, Eolmwood é Creighton {William E. Eolmwood, of counsel).
   Peb Curiam.

The instant appeal presents for review a judgment recovered in the Essex County Circuit Court by the plaintiffs and against the defendant. The facts are that on February 14th, 1931, the plaintiff Mrs. Grauss was crossing Springfield avenue in the city of Newark, at or near the intersection of Eighteenth street, when she was struck by the taxicab of the defendant, then driven and operated by him, as a result of which she received serious injuries.

There are two grounds of appeal urged for a reversal, (a) that the trial judge erred in denying motion for nonsuit; (b) that it was error to deny a motion for a directed verdict.

As to defendant’s motion for nonsuit, it is the well settled rule that in passing upon this character of motion all of the facts that appear in the plaintiff’s case must be considered by the court in the light most favorable to the plaintiff as well as every legitimate inference that may properly be drawn therefrom.

Wow, the plaintiff says that she made observations before crossing this roadway; that she looked to the right, which was the direction from which the defendant’s car came, before starting to cross, and that during the progress of her crossing she made another observation to the left and saw nothing until the moment before this “cream and blue” colored taxicab was upon her; that she was struck by it, hurled through the air up to or against an automobile that was parked on the northerly side of the said roadway.

From the testimony of the plaintiff herself, and other witnesses, then the jury could reasonably have arrived at the following facts and inferences: That plaintiff was struck by the defendant’s taxicab and thrown against the mudguard of a parked car on the right since, coincident with the happening, it appeared that the defendant’s taxicab passed the parked cars; that the defendant’s car proceeded after the happening a distance of from fifty to sixty feet to half a block before it stopped; that one witness went after the defendant, hailed him and thereupon he returned to the scene of the accident; that the defendant’s car was the only automobile passing at the moment and in the immediate vicinity; that the impact was heard by several witnesses who were more distant from the immediate scene than the defendant; that the sound of no horn was heard by any witness; that the defendant’s car was going “fast,” as one witness puts it, or “very fast,” as another witness puts it.

blow, if the testimony of the plaintiff was believed, the jury would be justified in concluding that she used that degree of care which a reasonably prudent person would exercise in crossing this highway, and if that be so, the question of her alleged contributory negligence would have to be determined by the jury. Again, under these facts and inferences, it became a fact question as to whether the negligence of the defendant, if he was negligent, was the proximate cause of the injury and, finally, from the testimony elicited, it is obvious that whether or not the defendant was actually negligent became a fact question.

On a motion for nonsuit, since these proofs must be considered in the light most favorable to the plaintiff, it is obvious that the court properly denied motion for nonsuit. Hammersma v. Smith, 110 N. J. L. 523; 165 Atl. Rep. 555.

As to the motion for a directed verdict, the grounds urged for granting of nonsuit were again relied upon and the further ground urged that it appeared from the testimony of the defendant that he hadn’t run down the plaintiff. The defendant below, in his own behalf, stated that it was not his automobile that struck the plaintiff. We think this, too, presented a fact issue for the jury. Mistretta v. Docterman, 109 N. J. L. 498; 162 Atl. Rep. 658

An examination of the record discloses that the defendant’s story is in conflict with the testimony of the plaintiff’s witnesses. This presents the very situation where the function of the jury operates—to determine where the truth lies. He said that as he approached the intersection of Eighteenth street he slowed up; that there were cars in front of him and that he saw a crowd gather, because of this accident, and he was then hailed and stopped. Plaintiff’s witnesses, it will be remembered, testified that he was stopped in the middle of the block west of where the accident occurred. These discrepant views of course present a fact situation where the minds of reasonable persons might differ. This is the test as to when a motion for directed verdict should be granted and where the minds of reasonable men would differ, as here, obviously the determination of that fact issue is one for the jury.

It should also be observed that the appellant’s brief does not argue the question as to lack of negligence on the part of the defendant, perhaps for the excellent reason that if the jury believed the plaintiff’s witnesses there was plenary evidence of negligence on the part of the defendant. Podolsky v. Sautter, 102 N. J. L. 598; 133 Atl. Rep. 199.

The judgment is affirmed, with costs.


text:
    FRANKLIN COMMERCIAL DISCOUNT COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HENRY J. GOODMAN, DEFENDANT-APPELLANT.
    Submitted May term, 1933
    Decided December 19, 1933.
    Before Brogan, Chief Justice, and Justices Trbnchard and Heher.
    Por the plaintiff-respondent, Aaron A. Melniher.

    Por the defendant-appellant, Platoff, Saperstein & Platoff (David Saperstein, of counsel).
   Per Curiam.

A judgment was recovered by the plaintiff below (a corporation engaged in the business of discounting eommerical paper) against the defendant in the Hudson County Court of Common Pleas.

One Moses Redler offered to the plaintiff an option to purchase certain negotiable paper in the amount of $1,000. This application or offer, dated April 27th, 1928, was submitted to the plaintiff and contained the information that the commercial paper was to be signed by Redler Realty Associates, Incorporated, as maker, with Moses Redler as payee and consisted of two notes, each in the sum of $500, dated April 28th, 1928.

This formal application for credit or option to purchase, as it is called, was received in evidence, on the back of which appear the following typewritten words:

“I hereby guarantee this account.
H. J. Goodman.”

Mr. Goodman was the defendant in the cause and admitted that he signed this guaranty agreement. No objection was made to the reception as evidence of this application for credit or option to purchase. The two $500 notes were also received in evidence to which strenuous objection was made by the defendant upon the ground that there was a variance between these notes which the plaintiff discounted and the application for credit or option to purchase, which contained the defendant’s guaranty agreement.

Both plaintiff and defendant produced additional proofs and the court submitted the case to the jury which returned a verdict for the full amount, and interest, in favor of the plaintiff and against the defendant.

The defendant-appellant has filed six grounds of appeal, seeking a reversal of this judgment, which are argued under three headings. (1) That the trial court erroneously admitted into evidence the promissory notes in question.

The substance of this point is briefly this: That the option to purchase the negotiable paper in question recited that the maker of the note was to be the Bedler Realty Associates, Incorporated, and the payee of the note was to be Moses Bedler, while in the notes which were discounted by the plaintiff, it appears that although the maker was the Bedler Realty Associates, Incorporated, the payee was “ourselves.” The notes were each endorsed by the maker in blank so that there is some variance in the form of the commercial paper, as discounted, as against the form described in the printed option to purchase such commercial paper. This was the basis of the defendant’s objection, or to use his own language, that the notes “as executed do not conform to the description contained in the offer.” The court, however, in our judgment, properly admitted these notes for the reason that there was testimony, at that posture of the case, that the notes were attached to the printed option when defendant signed the guaranty and were comprehended by the language of the guaranty, namely, “I hereby guarantee this account.” While it is true that contracts of guaranty must be construed striclissimi juris (Lyon & Co. v. Plum, 75 N. J. L. 883; 60 Atl. Rep. 209; Max v. Schlenger, 109 N. J. L. 298; 162 Atl. Rep. 638), yet if these notes were attached to the option at the time the guaranty was signed by the ■ defendant, manifestly they were part of the account guaranteed.

The second ground of reversal claims the trial court committed error in refusing to nonsuit the plaintiff. We do not think so. At that posture of affairs each and every fact that may be elicited from the testimony of the plaintiff’s witnesses and- every -legitimate inference that may be drawn therefrom must, in passing upon motions of this character, be construed. by the trial court in the ■ light most favorable to the plaintiff. Hammersma v. Smith, 110 N. J. L. 523; 165 Atl. Rep. 555; Consolidated Traction Co. v. Reeves, 58 N. J. L. 573; 34 Atl. Rep. 128; Podolsky v. Sautter, 102 N. J. L. 598; 133 Atl. Rep. 199. And when the trial court considered, as it must have, that the guaranty was signed by the defendant, that it purported to guarantee “this account” that the notes in question, regardless of the alleged variance, were attached to the option- so as- to make them part thereof, certainly it would have been error to nonsuit.

The third ground for reversal challenges the court’s charge to the jury in several particulars. Eegardless of whether the charge in the particulars complained of was or was not erroneous, the appellant did not take proper exception thereto and, consequently, this ground-for reversal cannot be considered here. Counsel, at the end of-the charge, stated that he objected to the charge in three. particulars and stated fragmentary portions of the charge that contained, what he claims.to have been error. The trial court is entitled to much more than this. Counsel must take exception to the part or parts of the'charge complained of and point out with particularity the reason for the objection and must indicate the fault of the charge. Counsel did not follow this procedure.' This has been the rule for many, many years and the reason for it is obvious. If the charge is challenged at its conclusion and the vice in it indicated, the court would then have an opportunitj' to change his mind and correct the charge, if it was erroneous, and if he refuses and it be erroneous, then the language of the charge, together with the exception pointing out the part complained of and the reason for the exception, makes for a proper ground of appeal and not otherwise. Oliver v. Phelps, 20 N. J. L. 180; affirmed, 21 Id. 597; Potts v. Clarke, 20 Id. 538; Klein v. Shryer, 106 Id. 432; 150 Atl. Rep. 321.

This disposes of the points argued on appeal.

The judgment is affirmed, with costs.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ISADORE LIEBOWITZ AND ARNOLD NASTA, PLAINTIFFS IN ERROR.
    Submitted May term, 1933
    Decided December 19, 1933.
    Before Bhogan, Chief Justice, and Justices Tkenchakd and IIeheb.
    For the plaintiffs in error, Edmund A. Hayes.

    For the defendant in error, Douglas M. Hicks, prosecutor of the pleas (Joseph H. Edgar, assistant prosecutor).
   Pee Cueiam.

The plaintiffs in error were convicted on an indictment charging conspiracy. The alleged conspiracy consisted in defrauding Henry Leeds of the sum of approximately $7,000. Leeds was in the barrel business and the state contends that the evidence tended to show that one Zank and one Dietz, together with these defendants, concocted a plan whereby Zank called upon Leeds in an endeavor to sell him certain used whiskey barrels. As part of this pre-arranged plan, Dietz (alias Marks), one of the alleged conspirators, next called upon Leeds saying that he was interested in buying used whiskey barrels. Leeds told Dietz that he didn’t have such barrel on hand but he knew where he could get them and thereupon got in touch with Zank, saying that he had a possible customer whom he desired might look at the barrels that Zank had to offer and if they were satisfactory he, Leeds, would buy them for resale.

The following day Zank brought over a sample barrel and a little later Dietz appeared at Leeds place of business, examined the barrel and said, “this is the kind he wanted,” and ordered sixty-five of the barrels. The 'result was that Leeds gave an order to Zank to deliver the barrels which Zank agreed to do the following morning, with the understanding that he was to be paid cash for them. To this Leeds agreed, saying that he yrould pay cash, since he was going to receive cash for the barrels. ■

Zank and the defendant Hasta came in with the barrels in the morning and before they were taken from the truck, Dietz also appeared, telling Leeds to have the barrels taken from the truck, pay for the merchandise, and that his truck would be along a little later to pick up the barrels. The result was that Leeds gave $150 in cash to Hasta, who drove the truck, cashed a check for $7,000 at his bank, and turned over this money to Hasta, as agreed.

It should also be mentioned that Dietz paid Leeds $500 deposit at the time, but that the truck that he promised to send in to take up the merchandise never came, nor has Dietz been seen since.

The sixty-five barrels purchased by Leeds for $7,150 were presumably barrels that had been used for the storage of whiskey and, obviously, were bought for the sum of $110 each. The resale price agreed to be paid to Leeds was $140 for each barrel.

Zank, Dietz, Liebowitz and Hasta were indicted for the conspiracy. Dietz has not been apprehended and, consequently, could not be tried. Zank turned state’s evidence. The defendant Liebowitz, alleged to be the one who concocted this scheme, is the brother of the complaining witness who changed his name from Henry Liebowitz to Henry Leeds.

This ill-gotten gain was divided among these indicted persons—the truckman receiving perhaps $200, the defendant Liebowitz $600, Dietz and Zank dividing the remainder of the amount received from Leeds between them.

Zank testified, in great detail, that he talked with the defendant Liebowitz in September, 1929, and that Liebowitz broached the plan above outlined, telling him to go down and see his brother, Henry Leeds, explain the proposed deal about whiskey barrels, and that “he would fall for it;” that he, Zank, had been convicted of a similar crime before and that Liebowitz knew of this and that at the time of his visit to Liebowitz the other defendant Dietz (alias Marks), accompanied him.

The plaintiffs in error set our fourteen assignments of error seeking a reversal of the conviction of Hasta and Liebowitz on this indictment.

The first and third reasons are argued together and are to the effect that the court permitted the state’s witness, Leeds, to testify to conversations held with Zank and with Dietz. The challenge to the testimony, so admitted, is that it was hearsay. Clearly it was not hearsay and does not come within the authorities cited by the plaintiffs in error.

Further argument is made under this point that the testimony concerning this conversation was admitted in evidence before the conspiracy itself was proved. This argument has no substance whatever. It is addressed to the order of proof which always rests in the sound discretion of the court. State v. Dougherty, 86 N. J. L. 525 (at p. 535); 93 Atl. Rep. 98.

Under the second assignment of error, it is argued that the trial court should not have received in evidence a carbon copy of the receipt which was given to Dietz by Leeds, purporting to show the payment of $500 on account, but, that the original of this receipt should have been offered or, failing to produce it, an explanation should have been given, and under the third assignment of error, it is argued that certain answers, which we consider responsive, should have been stricken from the record. These matters complained of, we do not consider harmful to the defendant.

Under the fourth point argued, which comprehends the sixth, seventh and eighth assignments of error, the action of the trial court, in receiving certain testimony over objections, is challenged.

Counsel for the plaintifEs in error, in his cross-examination of the state’s witness, Leeds, asked him when he had changed his name. The witness answered and the cross-examination continued along lines having to do with his direct testimony submitted in support of the state’s case. The cross-examination being finished, the state’s attorney, on redirect examination, asked the following question:

“Q. Why did you change your name?”

This was objected to as immaterial but the court received the testimony, allowing an exception.

The following is the answer given by the witness:

“A. About ten or twelve years ago, a number of people came to me and told me the trouble they got into through my brother, Isadore Liebowitz [one of the defendants here]-—■ a number of them who had cashed his checks and never got the cash. They didn’t prosecute him on account' of him being my brother. ' I told people that there is nothing I can do, the best thing is for them to come to me before they give him any cash, and not afterwards. They let it go for awhile, and later on they came to'me, one fellow with a card that time, showing that he assumed the name of the American Barrel, while my own was American Cooperage, and went among the trade trying to mislead them that it was my name, because Ms name was Liebowitz and my name was Liebowitz, and he wouM take American Barrel because I had a company that I worked, that I can be proud of, so I thought the best thing for me to do after talking to Mm about all that—I could never do anything with Mm, he wouldn’t listen to me— so I changed my name to Leeds * * *.”

Counsel for defendants asked for a mistrial, which was denied and an exception was taken. The vice in this testimony, received by the trial court, is threefold. It was incompetent because it was clearly hearsay; it was immaterial and it was irrelevant, having no place whatever in the state’s case against these defendants and, in our judgment, constituted harmful and prejudicial error. Entirely aside from its being hearsay in character and its immateriality, the testimony thus presented to the jury contained serious allegations concerning the character of one of the defendants which, however true they may have been, yet had nothing whatever to do with the indictment upon which this defendant was being tried, and contained matters which he was not called upon to answer at this trial. This kind of testimony is objectionable and the fact that it is, is so widely recognized and firmly established in our jurisprudence that it requires no citation of authorities to support its rejection. The reason for the rule is admirably set forth in Bullock v. State, 65 N. J. L. 557; 47 Atl. Rep. 62, and the authorities cited therein.

The next assignment of error concerns only the case made out by the state against the defendant Hasta. On this point it is sufficient to say that there is no evidence in the testimony of Henry Leeds that would justify convicting Hasta of the crime of conspiracy. Zank, one of those indicted for this conspiracy, who testified for the state, said on his direct testimony that Hasta had no knowledge of "this transaction.” On cross-examination, this witness twice testified that he didn’t tell Hasta anything about this plan to defraud Leeds, the complaining witness. Furthermore, Hasta offered himself as a witness, answered questions put to him responsively and denied any complicity whatever in this fraudulent scheme. It is our judgment that there was no evidence adduced to justify submitting this case to a jury as far as the guilt of Nasta was concerned.

We conclude, therefore, that the trial judge should have granted the motion on behalf of Nasta for a directed verdict or should, on his own motion, have directed the jury to acquit him.

The other assignments of error present nothing upon which, we believe, we should make any comment.

The judgment of conviction as to both defendants should be reversed and the record remitted for a new trial.


text:
    JACK MASS, BY CARL MASS, HIS NEXT FRIEND, AND CARL MASS, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. FIDELITY UNION TITLE AND MORTGAGE GUARANTY COMPANY, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
    Argued May term, 1933
    Decided December 21, 1933.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For the plaintiffs-respondents, Joseph Steiner.

    For the defendant-appellant, Heine <& Laird (John A. Laird, of counsel).
   Per Curiam.

This. appeal presents for review a judgment obtained by the plaintiff against the defendant in the Essex County Court of Common Pleas. It is unnecessary to advert to the facts.

The appellant, in his brief, as his first ground for reversal, urges that the court erred in his charge to the jury.

The record discloses that at the end of the court’s charge appellant’s counsel objected to the charge but assigned no reason whatever for his exception. The court is entitled to be apprised of the reason for the objection to the charge in order that if it be well founded he may correct the mistake. This was not done on behalf of the defendant below and this ground of appeal is not available to the appellant here. Cf. Oliver v. Phelps, 20 N. J. L. 180; affirmed, 21 Id. 597; Potts v. Clarke, 20 Id. 538; Belperche v. Erie Railroad, 111 Id. 81; 166 Atl. Rep. 463.

The second reason assigned for reversal urges that the court erred in failing to charge the first and fourth requests to charge submitted to the trial court by the defendant.

The court, it is true, did not adopt the language of the requests to charge as submitted but did cover the legal propositions involved therein and, under our cases, this is adequate since the requests had already been charged in substance and effect. Daggett v. North Jersey Street Railway Co., 75 N. J. L. 630; 68 Atl. Rep. 179; Nichols v. Grunstein, 105 N. J. L. 363; 144 Atl. Rep. 593.

The judgment will be affirmed, with costs.


text:
    ELIZABETH SYLVESTER AND ANTHONY SYLVESTER, PLAINTIFFS-RESPONDENTS, v. HOWARD A. PATE, DEFENDANT, AND MARTIN BERGOFFEN, DEFENDANT-APPELLANT.
    Argued May 2, 1933
    Decided December 21, 1933.

      Before Brogan, Chief Justice, and Justices Trencitard and Heher.
    For the' appellant, Samuel H. Nelson (Thomas L. Par-sonnet, of counsel).
    For the respondent, Heine <é Laird (John A. Laird, of counsel).
   Per Curiam.

There was a judgment against the defendants in this action, instituted to recover damages alleged to have been sustained as the result of the negligence of defendants in the operation of their respective motor vehicles. Plaintiff Elizabeth Sylvester, was a passenger in a taxicab owned and driven by defendant Bergoffen, who alone appeals.

Appellant assigns three grounds of appeal, viz.: (1) that there was error in the denial of his motion for a nonsuit; (2) that there was an erroneous ruling on evidence, and (3) that the trial judge was in error in permitting plaintiff’s attorney, upon summation, over the objection of appellant, to state that the “co-defendant, Pate, is a non-resident and that the issue of process against him would more readily compel his attendance than would service of a subpoana upon him without the jurisdiction.” Appellant presses the third ground only. The first two are abandoned.

It is urged that the quoted statement, made by plaintiff’s counsel in the presentation of the case .to the jury, was prejudicial to appellant. We are unable to see how appellant could have been harmed by the statement complained of. But, in any event, appellant cannot criticise the ruling made. The transcript shows, in respect of this ruling, only that “counsel for the defendant Bergoffen objects to this statement of Mr. Laird.” Where statements deemed by counsel to be prejudicial are made by court or counsel during the course of a trial, the proper practice is to request the court to instruct the jury to disregard such statements, and if the court refuses to so instruct, and counsel believes such refusal to bo error, then to except to such rulings. McCusker v. B. & N. Transportation Co., 106 N. J. L. 167; 148 Atl. Rep. 896. This was not done in the instant case, and there was no ruling of which appellant can complain.

Judgment affirmed, with costs.


author: Pee Curiam.-

text:
    MATTALENA CASAVALO, PLAINTIFF-RESPONDENT, v. SALVATORE D’AURIA AND COLUMBINA D’AURIA, DEFENDANTS-APPELLANTS.
    Submitted May term, 1933
    Decided December 21, 1933.
    Before Brogan, Chief Justice, and Justices Tbenchaed and Heher.
    Eor the appellant, Coull, Satz & Tomlinson (John J. Francis and Joseph Coulb, of counsel).
    Eor the respondent, Harold Simandl.

   Pee Curiam.-

This is an action to recover damages claimed to have been sustained by reason of the negligent performance of an undertaking to make repairs to a portion of a building owned by defendant Salvatore D’Auria, and possessed by a tenant. There was a nonsuit in favor of his co-defendant, Columbina D’Auria. From the judgment entered upon a verdict in favor of plaintiff, Salvatore, appeals.

There were two grounds of appeal, viz.: (1) the trial court erred in permitting plaintiff to amend her complaint, by adding thereto a new cause of action after the statute of limitations had tolled the cause of action, and (2) there was error in the denial of appellant’s motions for a nonsuit and a direction of a verdict, predicated upon the alleged failure of plaintiff to prove negligence on the part of appellant which was the proximate cause of her injuries.

The first ground only need be considered. The gravamen of the original complaint was the breach of the landlord’s alleged duty to maintain the stoop in a proper and safe condition. The complaint charged that appellant “negligently and contrary to their duty in the premises failed to maintain the said stairway in a proper, safe condition, and failed to have any railing on said stairway to protect the users from falling from said stairs into the cellar areaway directly alongside of said 'stairway, and also failed to properly light the said stairway, so that the said stairway or stoop was not safe for the use of persons lawfully using the same.” The gist of the amended complaint was negligence in the making of repairs to the porch. This complaint charged that “defendants having undertaken and having attempted to make the necessary repairs to the stairway or stoop leading to said store, did so in a negligent and careless manner, so that the said stairway or stoop was not safe for the use of persons lawfully using the same.” This amendment was concededly allowed after the expiration of the period fixed by the statute of limitations for the institution of action.

This case seems to fall within the rationale of the decision of our court of the last resort (in affirming for the reasons expressed in the opinion below), in O’Shaughnessy v. Bayonne News Co., 9 N. J. Mis. R. 345; 154 Atl. Rep. 13; affirmed, 109 N. J. L. 271; 160 Atl. Rep. 696, holding that “an amendment will not as a rule be held to state a new cause of action if the facts alleged show substantially the same wrong with respect to the same transaction, or if it is the same matter more fully or differently laid, or, if the gist of the action or the subject of controversy remains the same; and this is true although the form of liability asserted, or the alleged incidents of the transaction may be different.” The charge in the amended complaint is not subtsantially the same wrong with respect to the same transaction as that stated in the original complaint. It is not the same matter more fully and differently laid, but it is rather a different matter—a different cause of liability. Nor can it be said that the gist of the action or the subject of the controversy is the same. Bouvier’s Law Dictionary defines “gist” as “the essential ground or object of the action in point of law, without which there would be no cause of action; the cause for which an action will lie; the ground or foundation of a suit, without which it would not be maintainable; the essential ground or object of the suit without which there is no cause of action.”

In the instant case, the gravaman of the original complaint was the breach of an alleged duty to maintain the stairway in a reasonably safe condition, while the gist of the cause of action pleaded in the amended complaint is the negligent performance of an assumed duty to make repairs. It therefore follows that there was error in permitting respondent to amend the complaint in the manner indicated.

Judgment reversed.