author: Baches, V. C.

text:
    Kellems Products, Incorporated, complainant, v. Archibald T. Coley, Philip J. Martin and Martin & Son Products Company, Incorporated, defendants.
    [Decided May 31st, 1932.]

      Messrs. Lindabury, Steelman, Zink & Lafferty, for the complainant.

      Messrs. Oongleton, Stallman & Hoover, for the defendants.
   Baches, V. C.

The Kellems Products, Incorporated, manufactures grips used by telegraph, telephone and lighting companies to lug cables through conduits. Coley, one of the defendants, was the shop foreman of the Kellems company under a term of years, who covenanted that he would not, for five years after his term of service, engage in the business of cable grips within one hundred miles of New York City. He was discharged for unfaithfulness after one year’s service and has since incorporated Martin & Sons Products Company, Incorporated, manufacturer of cable grips, Newark. He and Martin each own one-half the capital stock. Coley attempts to justify the breach of the covenant on the ground that he was unlawfully discharged; the burden is upon him to show it, but the Kellems company undertook that task. This is the story, with some of the background: Miss Kellems, the owner of the Kellems company, sold grips for about a year before she organized the Kellems company, in March, 1928, and began manufacturing her own grips, invented by her brother. Before that Martin & Son manufactured grips for her according to the invention. When she determined to manufacture her own, Coley, who was then Martin & Son’s mechanic, agreed to go with her; he implies that she seduced him from his employer. The Kellems grip, like those of other designs, is made of wire woven on a mandrel into a circular form of wide mesh, which, when clasped to the cable secures contact by its spread produced by the pulling. One of the distinguishing features of the Kellems grip is that on the pulling end of the grip the wires of the grip are fastened into a lug with an eye to which, in operation, the pulling mechanism is attached. In fastening the wires of the grip into the lug it is required to first dip the ends of the wires into acid to remove the oily surface in order to give proper adhesion to the zinc solder with which they are soldered into the lug, otherwise, when stress is applied, the wires would pull out of the lug, seriously interrupting operation when in use. Coley had been fully instructed in the method; he was a mechanic trained in making grips, and knew the consequences of not strictly adhering to it. During the early period of 1929 trouble began to brew; Miss Kellems’,brother had invented a collapsible mandrel of which Coley claimed to be the inventor; there was strain. Coley refused to sign petty cash slips; refused to correctly report the daily output of grips; reported among the help that it was his money that was running the business; incited the help to protest against a day’s delay in the payment of their wages during Miss Kellems’ illness; and he appropriated to his own use a check for $20 paid by a customer for swivel grips ordered of the company, which he made in the factory from the company’s wire, representing that he had made them at his home. These were minor things compared with what followed, but they created tension, tended to disorder, and evinced his frame of mind, which grew less and less friendly towards his employer. That Coley, during this period, had re-established contact with his former employer, Martin, is not shown as a fact, but his conduct and what follows, indicates that he had it in mind. Promptly upon being discharged he joined Martin, formed the corporation, Martin & Son Products, Incorporated, and was given one-half the capital stock for the mandrel he claims to have invented. The invention will be spoken of later. In February, 1929, a Kellems grip, while in use by the Brooklyn Edison Company, pulling a cable through a conduit, separated; the wires of the grip pulled out of the lug, a most unusual occurrence. Miss Kellems became alarmed and suspicious and made haste to call in all shipments made since the first of January. Out of various shipments totaling three hundred and forty-six grips, ninety-seven were defective at the lug; the ends of the wires had not been dipped in acid to remove the oil to admit of proper soldering, with the result that the lug pulled off. In a shipment of twenty-four to the Brooklyn Edison, six were bad, and of a shipment of three to Cuba, all were defective in the same way and from the same cause. The higher proportion of defective grips were found in shipments to the larger customers. Miss Kellems experienced no such misfortune in her business before or since. Had it not been quickly detected and promptly remedied, Kellems grips would have been condemned in the trade, and the business ruined. Asked for an explanation, Coley professed ignorance of defective workmanship or of the cause for the commotion. If he was sincere, this is a strange coincidence: Martin reported to a Kellems purchaser in Chicago on February 15th, 1929, that he understood the Brooklyn Edison Company were having trouble with Kellems grips pulling apart, when, as a fact, the first occurrence of the kind occurred February 16th, a day later. How did he know it was to take place? At the trial he said Joe Bachwalske told him, but Joe had left the Kellems employ in November before. How could he know? Indicative also of Coley’s attitude of indifference, to put it mildly, to his employer’s welfare, is the established fact that he intentionally made a shipment of grips different from those ordered. It is unnecessary to find that improperly constructed grips in shipments with perfectly put together grips was intentional and a conspiracy to injure the reputation of Kellems grips, difficult as it is to put down the suspicion and to understand why the prescribed formula was not uniformly followed and why faulty grips were distributed among the different shipments. Coley knew the formula and disregarded it, and he was conscious that not following it would result in disaster to his employer. The enormous percentage of defective grips during the short period compared with the uniform perfection before and after, whether the result of his neglect or malice, justified the discharge.

It is held that Coley’s discharge was justified. The legality of his covenant not to engage in a similar line of business is not challenged, and it will be enforced in the language of the covenant.

Another object of the bill is to restrain Coley and his company from using the collapsible mandrel, a shop secret of the complainant. Grips were woven before on a solid mandrel, the weave being spaced by pins or screws set in the mandrel, which had to be separately removed to release the grip, to strip it from the mandrel. During the first week of the Kellems company’s operation, Miss Kellems’ brother invented a mandrel which does away with the taking out of the pins or screws, by fastening the pins or screws to strips surrounding a pipe or the like. When the weaving of the grip is finished, the pipe is withdrawn from the strips, they collapse, releasing the pins or screws through the mesh; a simple labor and time saving contrivance. Coley helped him, made suggestions, and later made a duplicate out of Kellems company material, in the shop. He claimed the invention, and a dispute arose between him and Miss Kellems. His insistence was the beginning of the end, but pending settlement of the question between him and her brother she paid him—one calls it a bonus, the other a royalty—for the use, both stipulating that the payment was without prejudice. When Coley went back to his former employer, Martin, he got one-half the capital stock of the company for the invention, and they are now using it in fabricating grips. Coley applied for a patent, so did Kellems, who filed an interference in the patent office with the result that the patent examiner found that it was Kellems’ invention and that Coley copied it. Coley claims to have invented the mandrel in December of 1927, while working for Martin before he entered the Kellems company -employ, and Coley’s wife and Martin claim to have seen the model at that time, and that it was in actual use in Martin’s shop, but there is much in the testimony to discredit their .story. Why should Coley suppress for a whole year an invention of so much economic importance to the trade in labor and time saving and of such money value to him, upon which he later profited to the extent of co-partnership in his former employer’s business? Why was he so helpful with his suggestions to Kellems when Kellems was designing the mandrel? Why did he not mention that it embodied his earlier ideas, and why did he not protest against the adoption of his ideas by Kellems? Why did he not disclose to Miss Kellems, his new employer, his new idea and seek advancement from her either in wages or an interest in the business? And why, if it was invented while in Martin’s employ, did not Martin claim the shop rights, as was his right? And if Martin saw it and observed its advantages over mandrels then in use, why his indifference towards it then and his great .anxiety for it a year later when he gave up a half interest in his old established business for its use?

Coley brought into court models of his progressive ideas .as they supposedly took shape in material form. His original working models are strangely like the finished product; they show no intermediate thought from the primary conception to the completed article, which might ordinarily be expected. His second or experimental model, supposedly constructed in the course of developing the commercial form, was made up of six strips, of a total of eight, admittedly taken from a mandrel then in use in the Martin company’s .shop, persuasive evidence that the experimental model was made afterward and was not a step in the evolution of the mandrel in dispute, and that it is a fraud. One more thing: -Coley says he had the strips made by one Walsh in December, 1927—the sliding strips are the essence of the new device. Walsh’s shop adjoins the Martin company’s shop, but Walsh was not produced. He could have convincingly established Coley’s priority. The defendants Coley and his. company will be enjoined from using the mandrel.

Present form of decree on notice.


source: Caselaw Access Project

author: Backes, V. C.

license: Public Domain

text:
    Jersey Mutual Casualty Insurance Company, a New Jersey corporation, complainant, v. Tesed Realty Company, a New Jersey corporation, defendant.
    [Decided June 6th, 1932.]

      Mr. Pearce B. Franklin, for the complainant.

      Mr. Meyer M. Semel, for the tax lien claimant.
   Backes, V. C.

At the time of the appointment of a rent receiver in this foreclosure suit, the purchaser of a recorded tax sale certificate sought to be made a party defendant to protect his right to the rent, and was denied intervention because his tax title' lien upon the mortgaged premises was superior to that of the complainant’s mortgage and could not be barred by the-foreclosure decree. He, however, registered his claim to the-Tent, and, being in duty bound to submit to the receiver’s .administration, his rights are to be protected as though he had been let into possession. His possession would have been that of a mortgagee in possession with the duty of applying the rents to the reduction of his tax title lien. He is entitled to the rent, to be applied accordingly.

The complainant purchased the premises at foreclosure sale; there is a large deficiency. The receiver will pay the net sum to the tax .certificate holder, and if the complainant will supplement the net sum by an amount sufficient to redeem the tax sale, the receiver will join him in the redemption.

The principles governing this ruling are stated with elaboration by Vice-Chancellor Berry in Merchants’ and Traders’ Realty Co. v. Stern, 101 N. J. Eq. 629; 138 Atl. Rep. 697. The decree was affirmed (102 N. J. Eq. 290) on the single point, that the certificate holder had not taken possession as against the receiver in possession, a point not questioned by the vice-chancellor and which it is felt cannot be equitably raised here.


author: Per Curiam.

text:
    PEARL GOLDMINTZ, AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ABE GOLDMINTZ, DECEASED, APPELLANT, v. PERTH AMBOY BEEF COMPANY, A CORPORATION, RESPONDENT.
    Argued January 20, 1932
    Decided May 17, 1932.
    Before Gummere, Chiee Justice, and Justices Parker and Case.
    Por the appellant, Bussell Fleming and Frederick F. Richardson.

    Por the respondent, John Murray May (Edwards, Smith & Dawson; Raymond Dawson, of counsel).
   Per Curiam.

The suit was brought to recover damages under the Death act. The trial resulted in a nonsuit of the plaintiff, and from the judgment entered thereon the plaintiff appeals. There was no witness to the accident and no one is able to say how it occurred.

The main facts, stated in the light most favorable to the plaintiff, are as follows: The defendant, Perth Amboy Beef Company, was the owner and occupant of a beef house and cold storage market in the city of Perth Amboy. The defendant leased its adjoining premises to certain hucksters for the sale of fruit and vegetables. Amongst these lessees was Max Goldberg, employer of the decedent. Goldberg was given the privilege of overnight storage of some of his vegetables in the refrigerating room of the defendant company situated on the second floor of the beef house. There was an elevator in the premises that operated between the cellar, the first floor and the second floor. The elevator was operated by a hand rope. No one other than employes of the defendant was authorized to operate the elevator. The elevator shaft was dark but was protected by a folding gate which was controlled by hand. About seven-thirty of the morning of June 28th, 1930, Goldberg ordered the decedent Goldmintz to get a crate of onions that had been placed, the night before, in the refrigerating room. Goldmintz thereupon entered the beef house and was not seen again until nine-thirty that night when his dead body was found at the bottom of the elevator shaft. At the last mentioned time the, elevator platform was level with the first floor of the premises, and the folding gate at that place was open. It is manifest, however, that if Goldmintz fell from either the first floor or the second floor, the elevator could not have been in that position at the time of the fall. Eigor mortis had fully developed when the body was found, indicating that death had occurred at least seven or eight hours before. The skull was fractured and this injury was apparently the cause of death.

No fault is to be found with most of the points raised on appeal by the appellant. The obligation of the owner of lands with respect to an invitee and with respect to a licensee appears to be correctly stated. It may fairly be presumed that death was accidental, and possibly it may be presumd that Goldmintz died as the result of a fall through the elevator shaft. But with these presumptions and with the law as thus stated, liability is nevertheless not fastened upon the defendant. Mere theories and inferences do not authorize a verdict in a case of this nature unless they are the only conclusions that can reasonably be drawn from the facts proven. Negligence is a fact which must be shown. It will not be presumed. McCombe v. Public Service Railway Co., 95 N. J. L. 187; 112 Atl. Rep. 255. Where the elevator was when Goldmintz fell, what he was doing when he fell, how he fell, can only he guessed; and a guess is not sufficient to hold the defendant to liability. The decedent is not shown to have met his death from the violation of any obligation owed to him by the defendant.

The nonsuit was properly granted. Judgment below will be affirmed.


text:
    ROWLAND W. HOLLOWAY ET AL., PROSECUTORS, v. BOARD OF COMMISSIONERS OF THE BOROUGH OF HADDONFIELD, DEFENDANT.
    Submitted May 15, 1931
    Decided May 16, 1932.
    Before Justices Teenchaed and Donges.
    Tor the prosecutors, Louis B. LeLuc and Ralph W. IFescott.

    Tor the defendant, Patríele H. Harding.

   Per Curiam.

This case is before this court on four rules to show cause why writs of certiorari should not issue to review the action of the governing body of the borough of Haddonfield in appointing four certain individuals as paid firemen of said borough for a period of three months from May 21st, 1930, which act, it is alleged, amounted to an improper dismissal of the prosecutors from said positions. There is a stipulation in the record to the effect that the parties desire to have the case treated as if writs had issued and to have the matter determined upon the merits. It would seem that this stipulation disposes of defendant’s contention that certiorari is not the proper remedy.

The facts appear to be as follows: The borough of Iladdonfield has no regularly constituted paid fire department. There is a volunteer company whose apparatus is housed in the Borough Hall. In 1925, without authority of ordinance or resolution, certain members of the volunteer company were temporarily employed as paid firemen on full time. On October 25th, 1926, a resolution was passed by the commissioners providing for the employment of four firemen from November 1st, 1926, to December 28th, 1926. The chief of the volunteer company was to be chief of the paid firemen and the other three were to be selected by vote of the members of the volunteer company. This was the method always used thereafter in selecting the paid personnel, in which changes were made from time to time, and it was because of their failure of re-election that prosecutors were not reappointed in May of 1930. The explanation of the employment of firemen for limited and irregular periods of time is that certain periods were considered danger times. On November 30th, 1926, a resolution was passed providing that the period of time during which the paid firemen should be employed was to be fixed by the commissioners and providing for the addition of two more men on January 1st, 1927. On April 5th, 1927, a resolution was passed decreeing that the danger period be extended from April 1st, 1927, to May 15th, 1927, and on May 10th, 1927, it was by resolution, further extended to June 10th, 1927. On June 14th, 1927, the commissioners being of opinion that the danger was over, the men were dismissed. Three of the four prosecutors were members at that time, and neither they nor the other firemen made any protest at the dismissal at the end of the danger period.

On December 6th, 1927, a resolution was passed providing for the employment of six men for a period of five months commencing December 1st, 1927. Three of the prosecutors were appointed under this ordinance. On May 15th, 1928, a resolution was passed providing for the employment of six men for one year, the three prosecutors among them. On May 21st, 1929, they were by resolution appointed for another year. On February 18th, 1930, a resolution was passed adding the fourth prosecutor, H. Holloway, to the fire department. Ho term of office is mentioned, but it seems to be conceded that his position is the same as that of the others. On May 20th, 1930, the commissioners adopted a resolution employing firemen for the ensuing year and the names of the four prosecutors were not among them due to the fact that they had been defeated in the election in the voluntary company. They thereupon sued out the present rules in an attempt to test the validity of their alleged removal from their positions.

1. All four prosecutors are exempt firemen and claim immunity from dismissal under chapter 212 of the laws of 1911. The pertinent part of that act provides:

"1. Ho person now holding a position or office under the government of this state, or the government of any county, city, town, township or other municipality of this state, or who may hereafter be appointed to any such positions, whose term of office is. not now fixed by law, * * * • holding an exemption certificate * * * shall be removed from such position or office except for good cause shown .after a fair and impartial hearing.”

It is first argued that the terms of the positions were not fixed, by law at the time the statute was passed in 1911. We do not think that this interpretation has ever been placed on this act. In Turtur v. Turley, 103 N. J. L. 526; 138 Atl. Rep. 209, the office of license inspector of Elizabeth was held to have been fixed by law and to be outside the provisions of the above act. There the respondent was appointed for three years on January 1st, 1923, and when another was appointed on January 1st, 1926, he attempted to remain in office as an. exempt fireman. The Chief Justice, speaking for the Supreme Court, held that the term of office was fixed by law within the meaning of the above act, and judgment of ouster was given.

It is next contended that the term of office has never been fixed by law. But we think this is not so. Prosecutors cannot go back beyond their re-employment in December, 1927, to establish their rights because they had submitted to the dismissal for a period of six months immediately prior thereto. Each resolution thereafter appointing them and others contained a limitation on the duration of their occupancy of the position. The power of a municipality to fix the term of an office “by law” by ordinance or appropriate action was upheld in McGrath v. Bayonne, 85 N. J. L. 188; 89 Atl. Rep. 48. In Turtur v. Turley, supra, the limitation on the term of office was placed simultaneously with the appointment of Turley. The same thing was done in the instant case and the time during which the prosecutors were to hold the positions to which they were appointed was fixed by law during all the time they held them since December, 1927. The act of 1911 does not, therefore, apply.

2. Prosecutor Day is a world war veteran and claims the benefit of the Veterans’ act. The wording of that act is the same as the Exempt Firemen’s act and what has been said above applies here.

3. It is claimed that the provisions of the Municipalities act of 1917 (Pamph. L., ch. 152, art. 17, p. 362), respecting fire departments, apply to the instant situation. However, it is clear that this was not a regularly constituted lire department within the meaning of that act. Ho fire department was created by ordinance. The men hired were on duty only fourteen hours a day. They were not selected in the way that members of regularly constituted fire departments are selected, that is by examination, &c. They were elected by the votes of their fellow volunteers. It appears from the record that in Haddonfield the volunteer company was still in existence and all that was done was that the borough augmented the protection afforded by the volunteers by keeping a few men on duty all day and paid them for it. We do not think that the present situation is covered by the act in question.

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


text:
    EVA GASH ET AL., PLAINTIFFS, v. PEER KHAN, DEFENDANT.
    Submitted January 29, 1932
    Decided May 17, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Por the plaintiffs, Joseph Goult and Gerald T. Foley.

    Por the defendant, Harry E. Walburg.

   Per Curiam.

The only reason filed in this cause is that the verdict was contrary to the weight of'evidence; but in our opinion that reason is well founded. The four plaintiffs, members of a family party, alighted at the railroad station in Lakewood and entered the taxicab of the defendant for the purpose of being driven to their hotel. While they were on the way the taxicab, which was moving in a westerly direction and driven by the defendant, came into collision with another taxicab which came in from the right on a side street and was going south. The defendant’s taxicab seems to have struck the other taxicab on the left rear mudguard and the four plaintiffs were considerably shaken up and bruised. The defendant did not appear and counsel who tried the case on the part of the defendant had no evidence to present except that of an investigator who testified that he had made diligent search to find the defendant and had been unable to do so. As a result, it went to the jury on the uncontradicted' testimony offered on behalf of the plaintiffs, both as to the circumstances leading up to the collision and the amount of injuries sustained by the various plaintiffs; and the jury returned a verdict for the defendant.

We are unable to see how this verdict can properly be supported. It will be observed that the suit is by passengers in a taxicab against the driver of that very taxicab in which they were riding. Consequently, if the accident happened because of his negligence alone or if it happened because of the concurring negligence of the defendant and the driver of the other taxicab, the plaintiffs are clearly entitled to recover. The only theory on which they would not be entitled to recover is that the accident happened because of the sole negligence of the driver of the other taxicab which was coming from the right of that in which the plaintiffs were riding and, under normal conditions, had the statutory right of way. The testimony shows that this other taxicab had all but cleared the plaintiffs’ car as it was struck on the left rear mudguard.

The only explanation suggested for the verdict is that the testimony on the part of the plaintiffs was so exaggerated in respect to the severity of the injuries respectively sustained by them as to be incredible and that therefore the jury must have concluded that their entire testimony was not to be relied on. It is to be noted, however, that the testimony on the question of damages, especially that relating to the cost of medical attendance, was very badly shaken on cross-examination, whereas the testimony with respect to the circumstances surrounding the accident was practically unchallenged. The tendency to exaggerate the amount of damage is so common in accident cases as to be frequently discounted by juries who find for the plaintiff, and properly discounted.

As to the particular case in hand, we do not feel that the jury were at all justified in disregarding the uneontradicted testimony about the accident itself merely because the damages were even obviously padded.

The rule to show cause will be made absolute.


text:
    JOHN HARRINGTON, BY NEXT FRIEND, RESPONDENT, v. TACO GREIDANUS, APPELLANT.
    Submitted January 29, 1932
    Decided May 17, 1932.
    Before Gummere, Chibe Justice, and Justices Parker and Case.
    For the appellant, Edward L. Davis.

    For the respondent, Anard W. Litimann.

   Per Curiam.

The appeal in this case was dismissed (157 Atl. Rep. 384; 9 N. J. Mis. R. 1340), but was reinstated and is now before us on the merits.

There are six grounds of appeal but only the first and second point to any judicial ruling. The others are therefore disregarded.

Grounds 1 and 2 are that the court erred in refusing to nonsuit and erred in refusing to direct a verdict for the defendant. The crucial question involved is whether the infant plaintiff was in the place where he was injured by invitation. If not, the defendant owed him no duty of care and, consequently, questions of negligence are not involved. There is no suggestion of willful injury.

The plaintiff at the time of the accident was a little boy of five years of age and was, as the jury might find, crossing a passageway or lane running substantially at right angles to Centre street in East Orange; and the defendant was driving his car westerly through the lane for the purpose of reaching the street. The local situation is about as follows: The house in which plaintiff lived is situate on the east side of Centre street. Back of this house and occupying a tract of some two acres or so in the middle of the block was a group of individual garages owned by the defendant and rented out by him to various tenants for the accommodation of their automobiles. From this inside lot the lane in question ran westerly and south of the plaintiff’s house and immediately abutting the house lot. The land over which this lane or passageway ran and on which the garages stood, was owned by the defendant, and also a small irregular shaped piece of land to the south of the lane called the grass plot. We gather from the testimony that the north side of the lane was about two feet from the plaintiff’s house. The evidence tends to show that the plaintiff, and other children of the neighborhood, were accustomed to play on this so-called grass plot but there is nothing to show that it was by any invitation of the defendant. Indeed, he claimed in his testimony that they were forbidden to do so, but it was open to the jury to say that they were allowed to play there without substantial protest. At the time of the accident, the defendant was coming out with his car through the passageway, which is only some twenty feet wide or so, when the little boy came out either from the grass plot or from the side towards the house and was struck in the passageway.

The rule, of course, is well settled that even as to children of tender years on the land of another, either as trespassers or mere licensees, there is no duty of care. This is the rule laid down in our line of turntable cases, as for example, Turess v. New York, Susquehanna and Western Railroad Co., 61 N. J. L. 314; 40 Atl. Rep. 614, and Delaware, &c., Railroad v. Reich, 61 N. J. L. 635; 40 Atl. Rep. 682. In Kaproli v. Central Railroad Co. of New Jersey, 105 N. J. L. 225; 142 Atl. Rep. 343, the evidence indicated that children were accustomed to play upon the railroad right of way which was not particularly dangerous except with regard to passing trains; and a nonsuit as against a child injured by one of these trains was affirmed by the Court of Errors and Appeals. As we have said, there is nothing in the evidence to justify the inference that the children were invited to play on the grass plot or that the infant plaintiff was invited to .cross the lane on his way thence or thither; and consequently, the case appears to be within the rule of the authorities just cited.

There is nothing in the evidence to indicate that the lane in question either was a public highway or was held out as such. The evidence is uncontradicted that the lane was the property of the defendant and that the lane itself was used simply and solely for the purpose of access to the rented garages in the rear also owned by him. Hence it was essentially a private way, used only by the defendant himself and the tenants.of his garages. Consequently, the situation was much the same as that in Scatuorchio v. New York, Susquehanna and Western Railroad Co., 10 N. J. Mis. R. 528.

W.e conclude that it was error to refuse, a nonsuit or direction, and the judgment will therefore be reversed to the end •that a venire de novo issue.


text:
    HARRY KOHLREITER ET AL., PROSECUTORS, v. WILLIAM B. MACKAY, JUDGE, ET AL., DEFENDANTS.
    Argued January 19, 1932
    Decided May 18, 1932.
    Before Justices Trenchard and Donges.
    : For the prosecutors, Louis A. Cowley and Joseph J. Weinberger.

    For the defendants, John C. Barbour.

   Per Curiam.

This writ of certiorari brings up for review the order made 'by Circuit Court Judge Mackay confirming assessments for benefits made under certain ordinances and resolutions of the city of Clifton providing for the reconstruction of Lake-view avenue, including the change of location of trolley tracks, the acquisition of two pieces of land, and the laying of sidewalks. The work was done under ordinances and resolutions adopted by the city council in the months of September, October and December, 1928. The work was provided with, so that so much of the improvement as was done by the city was completed on July 1st, 1929, and that part of the work to be done by the county of Passaic was completed August 7th, 1929, and formally accepted on August 14th, 1929. Thereafter, the assessments for benefits were made against property benefited, and on July 15th, 1930, such assessments were confirmed by the city council. Appeals from such assessments wore taken to the Passaic County Circuit Court and were heard by the Circuit Court judge on November 6th and 7th, 1930. On January 7th, 1931, such assessments were confirmed. Thereupon, this writ was allowed to review the action of the Circuit Court.

In so far as the prosecutors seek to attack the ordinances and resolutions providing for the work, assuming that the reasons filed are sufficient for the purpose, they are clearly in laches, and under a long line of cases in this court, will not now be permitted to raise those objections which, if diligently and successfully pressed, would have stopped the work and saved the expense. McKevitt v. Hoboken, 45 N. J. L. 482; Durrell v. Woodbury, 74 Id. 206; 65 Atl. Rep. 198; Pico v. North Arlington, 7 N. J. Mis. R. 22; 143 Atl. Rep. 861.

Further, in the stipulation of facts submitted in lieu of the testimony taken, it is stated: “That the prosecutors admit that the ordinances were legally passed and the assessments legally and properly levied and all proceedings were legal and regular, except as may appear from this stipulation.” Nothing appears in the stipulation which suggests impropriety in the adoption of the resolutions or ordinances.

The other reasons for reversal appear to deal with the fairness of the assessments. The reasons are vague and uncertain, but under reasons 1, 4, 5, 8, 10, 12, 13 and 14 it is argued under the general heading: “A fraud was committed on the taxpayers,” that the failure to require the street railway company to pay for the relocation of its trolley tracks was a fraud on the taxpayers. However, the legislature has defined the duty of the street railway company by chapter 129 (Pamph. L. 1927, p. 243), and the duties imposed by that act supersede those imposed by ordinance. Bayonne v. Public Service Co-ordinated Transport, 106 N. J. L. 302; 148 Atl. Rep. 611.

Under reasons Nos. 2, 3, 6, 7 and 9, it is argued' that the assessments were composed of unjust and unfair items. Reason Ho. 2 reads: “The assessment under ordinance 785 was composed of unfair and unjust items.” Ho. 3 reads: “The assessment under ordinance 793 was composed of unfair and unjust items.” 6. “Because compound interest was charged in violation of law.” 7. “Because items were added to the alleged cost of the improvements which were not expended in accordance with, law and were just made arbitrarily.” 9. “Because interest was illegally compounded and added, covering a period not prescribed by law.” Each of these reasons fails to point out the item, the amount or the time alleged to have been improperly considered.

We have, however, considered the points argued and conclude that they are without merit. The acquisition of the land was provided for in an ordinance, and the Home Rule act authorizes such action.

The municipality did not include interest beyond the rea-N sonable cost of financing the improvement and this was proper. Kohler v. Guttenberg, 38 N. J. L. 419; Davis v. Newark, 54 Id. 144; 23 Atl. Rep. 276; Chamber of Commerce v. Essex County, 96 N. J. L. 238; 114 Atl. Rep. 426.

The last point is that the inclusion of the item of $547.52 for sidewalks is illegal. Ordinance 785 provided for such sidewalks and authority for such action is found in the Home Rule act. Hoboken v. Babbitt, 2 N. J. Mis. R. 505; affirmed, 101 N. J. L. 403, et seq.; 128 Atl. Rep. 266.

The order of the Passaic County Circuit Court under review is affirmed, with costs.


author: Pee Curiam.

text:
    STATE OF NEW JERSEY, GEORGE S. HOBART, ASSISTANT ATTORNEY-GENERAL, PROSECUTOR, v. THE COURT OF THE FIRST CRIMINAL JUDICIAL DISTRICT OF THE COUNTY OF BERGEN, DEFENDANT.
    Submitted May 15, 1931
    Decided May 18, 1932.
    Before Justices Trenchaed and Donges.
    Por the prosecutor, George 8. Hobart.

    Por the defendant, Oliandless, Welter •& Selser.

   Pee Curiam.

This writ of certiorari brings up for review an order of Judge Charles J. McCarthy, judge of the Pirst Criminal Judicial District Court for the county of Bergen, dated March 31st, 1931, directing the return to one Bobert Hart of all property seized by virtue of a search warrant issued by said judge, and ordering that the use of any evidence so taken be suppressed in any criminal' proceeding against Hart.

Several grounds are urged for reversal. It will be necessary to consider only some of them.

The warrant in the instant case was directed against one “Bob” Hart. Upon the hearing, Hart testified that the portion of the premises from which the liquor was taken was not under his control, but was occupied by a Mrs. Allen, and that all of the property seized was the property of Mrs. Allen. His testimony on this point was as follows:

“Q. And you were there the day that the men took away the list of whiskey and wine and applejack, as in this inventory? A. The same day as the raid. Q. A copy of which you have ?. • A. That belonged to Mrs. Allen. They got that in her apartment. Q. They got that in her apartment? A. They got it in her apartment. Q. Nothing downstairs at all? A. Not downstairs at all, not in my part.”

The balance of the testimony was upon the question of probable cause for the issuance of the search warrant.

Section 27 of the act.of 1922 {Pamph. L. 1922, p. 615), provides that, if upon the return of any search warrant it appears that thé'property taken'is not'the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, “the magistrate must cause the property to be returned to the person from whom it was taken.” As above set out, the only testimony upon this point is that of the defendant Hart, who _ testified no property was taken from him and that the property taken was not his property. The only power to make an order is found in sections 26 and 27 of the act referred to. It follows, therefore, that the magistrate was without authority to order the return to one from whom it was not taken.

Nor do we find any authority for that part of the order suppressing “all evidence seized, taken or obtained by virtue of said illegal search and seizure.” The proceeding in the court below is purely statutory and the power of the court is limited to the action authorized by the statute. This action is an order for the return of the property seized “to the person from whom it was taken.”

It has been repeatedly decided in this state that in a criminal case an article unlawfully procured by an unjustifiable search and seizure is admissible in evidence if evidential per se. State v. Gillette, 103 N. J. L. 523; 138 Atl. Rep. 381; State v. Haines, 103 N. J. L. 534; 138 Atl. Rep. 203; State v. Lyons, 99 N. J. L. 30; 122 Atl. Rep. 758.

The order under review is set aside, with costs.


text:
    STATE OF NEW JERSEY, GEORGE S. HOBART, ASSISTANT ATTORNEY-GENERAL, PROSECUTOR, v. THE COURT OF THE FIRST CRIMINAL JUDICIAL DISTRICT OF THE COUNTY OF BERGEN, DEFENDANT.
    Submitted May 15, 1931
    Decided May 18, 1932.
    Before Justices Trenchard and Donges.
    Bor the prosecutor, George 8. Hobart.

    Bor the defendant, Ohandless, Weller & Selser.

   Per Curiam.

This writ of certiorari brings up for review an order made by Judge Charles J. McCarthy, judge of the Birst Criminal District Court of the county of Bergen, directing the return of certain barrels of alleged wine seized under a search warrant issued by Judge J. Wallace Leyden, acting judge of said court, and the suppression of the use of said wine as evidence.

The statute under which this proceeding was taken in the court below provides in effect that if it appear upon the hearing that the property taken is not the same as that described in the warrant or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause the property to be returned to the person from whom it was taken; but if it appears that the property is the same as described in the warrant and that there is probable cause for believing the existence of the grounds on which the warrant was issued, then the magistrate shall order the property retained in the custody of the person seizing it. Pamph. L. 1932, p. 615, §§ 26, 27.

The statute would seem to limit the inquiry to these two questions, namely, a lack of identity of the articles seized and those directed to be seized, and that there is lack of probable cause for believing the existence of the grounds on which the warrant was issued. In the instant case, the inventory filed and returned as part of the record shows that there was seized at the time of the search, in addition to the wine, alcohol and whiskey. The warrant directed the seizure of “applejack and other intoxicating liquor.” Such description covers wine, if intoxicating, as well as whiskey, alcohol or “applejack.” The return of the alcohol and whiskey was not ordered, so that it seems beyond dispute that there was probable cause for believing the grounds on which the warrant was issued. No proofs were offered by the claimant to controvert the sworn statement on which the warrant was issued, that there was a sale of intoxicating liquor by the claimant to the affiant and that the claimant had other intoxicating liquor in his possession for sale. We conclude, therefore, that there was identity of the property seized and of that directed to be seized and that it does not appear that there was lack of probable cause to believe the existence of the grounds on which the warrant was issud.

Further, as we said in State v. Court of the First Criminal Judicial District of the county of Bergen, arising on motion of Robert Hart (10 N. J. Mis. R. 715), there is no power in the respondent to order the suppression of evidence. The statute does not authorize it and our courts have uniformly held that evidence, however procured, is admissible if otherwise evidential. State v. Lyons, 99 N. J. L. 301; 122 Atl. Rep. 758; State v. Gillette, 103 N. J. L. 523; 138 Atl. Rep. 523; State v. Haines, 103 N. J. L. 534; 138 Atl. Rep. 203.

We do not deem it necessary to discuss the other questions raised.

We conclude that the order under review must be set aside, with costs.


author: Berry, Y. C.

text:
    Township of Long Beach, complainant, v. Daniel B. Frazier Company, a corporation of the State of New Jersey, defendant.
    [Decided May 17th, 1932.]

      Mr. Howard Ewart, for the complainant.

      Mr. Joseph H. Carr, for the defendant.
   Berry, Y. C.

The motion is addressed to such portions of the answer as set up as a defense to the bill the invalidity of the tax, the tax sale proceedings, and the tax sale itself, pursuant to the provisions of section 2 of chapter 202 (P. L. 1925 p. 480), which reads as follows:

“The filing of such answer shall stay the proceedings in the court of chancery for the period of four months from the date of such filing, and if a writ of certiorari be allowed to review the legality of such tax or other municipal lien, or the legality of the proceedings to sell, or the legality of such sale, such proceedings shall be stayed until such writ shall have been discharged. Should such defendant fail to obtain such writ of certiorari for the purpose or purposes above mentioned within four months of the filing of such answer, the court shall strike out such part of the answer as denies the validity of the 'tax, or the legality of the proceedings to sell, or the legality of the sale, and shall proceed as if no such defense had been interposed.”

The answer was filed on November 2d, 1931. On January 15th, 1932, Mr. Justice Bodine, of the supreme court, allowed a writ of certiorari ex parte, and afterwards, on February 15th, 1932, upon notice and after argument on the merits, signed an order vacating the allocatur. From this order the defendant has appealed to the court of errors and appeals.

In B. H. K. Realty Co. v. Scarlet, 105 N. J. Eq. 707; 149 Atl. Rep. 543, the 1925 act was held to be procedural only and an answer setting up the invalidity of a tax sale proceeding was struck out because a writ of certiorari to review such proceedings had not been obtained within the prescribed four months’ period. It is urged by counsel for complainant that the present motion is controlled by that decision, while on the other hand counsel for the defendant contends the decision is inapplicable here because the defendant in the instant case had in fact obtained a writ within the four months’ period and that the later vacation of the allocatur by the same justice who allowed the writ does not bring the case within the statute. But upon the entry of the vacating order the matter stood as though no writ had ever been allowed. The four months’ period expired on March 2d, 1932, and no' writ v, as in force at that time. The fallacy of the defendant’s argument is apparent when we consider what would have been the effect if, within the prescribed period, a writ had been obtained and run the gamut of all proceedings to final dismissal. Could it be contended that the original allowance of the writ would, act as a continuous stay of the foreclosure suit? I think not.

The appeal to the court of errors and appeals from the order vacating the allocatur does not operate as a stay of the foreclosure proceeding here. Handwerk v. Guttenberg, 92 N. J. Law 181; 105 Atl. Rep. 226. And further, complainant contends that the order vacating the allocatur is not appealable, it being an order of a single justice of the supreme court and not of the court itself, citing Key v. Paul, 61 N. J. Law 133; 38 Atl. Rep. 823; Tweddell v. Village of South Orange, 95 N. J. Law 327; 112 Atl. Rep. 511; and also, the allowance of a writ of certiorari not being a matter of right but resting in the sound discretion of the justice, no appeal lies, citing Loomis v. City of Union City, 6 N. J. Mis. R. 330; 141 Atl. Rep. 170; Simmons v. Mayor, &c., of Wenonah, 6 N. J. Mis. R. 902; 143 Atl. Rep. 73; Nelson v. Town of Kearny, 4 N. J. Mis. R. 157; 132 Atl. Rep. 299; Brown v. City of Atlantic City, 5 N. J. Mis. R. 397; 136 Atl. Rep. 608; Bowne v. Logan, 43 N. J. Law 421.

But no inequity to the defendant is perceived in striking the portions of the answer to which the motion is directed. Prior to the enactment of the act of 1925 the time within which a writ of certiorari to review any assessment tax, proceedings of sale or the sale itself was limited to eighteen months from the sale. P. L. 1915 ch. 323 p. 580. By chapter 21, P. L. 1925 p. 77, this limitation was made inapplicable where proceedings were taken after a tax sale, by the purchaser or holder of the certificate of tax sale, under any statute of this state, to procure a deed or perfect the tax title; and by chapter 202, P. L. 1925, an additional period of four months was allowed the property owner to test the validity of the tax proceedings. This was a period of grace; but it cannot be extended ad infinitum, and especially here as the validity of the tax obligation seems to have been admitted by the defendant prior to the institution of these proceedings. (See opinion of Mr. Justice Bodine in Daniel B. Frazier Co. v. Township of Long Beach, S. C.; 10 N. J. Mis. R. 747.) I do not find it necessary to consider or determine other points raised in the brief of counsel for defendant. The ■portions of the answer to which the motion is addressed will bé stricken.

The cause will be set down for final hearing at an early ■day,' or, if it seems more expedient, a reference to a master may be'had.

The same motion is addressed to the answers filed in three other suits of the same title, being Docket Nos. 86-302; .86-303, -and 86-306. This decision is .dispositive of those motions also. ■,

The defendant has applied for leave to file counter-claims in each ease, the object of which is to set aside and cancel of record the tax sale certificates as a cloud on defendant’s title. This application is based upon the same facts alleged in the portions of the respective answers stricken. It being too late to interpose these alleged facts in defense to the foreclosure proceedings, they cannot afford sufficient basis for a. counterclaim and the application is denied.


author: Pee Ctjeiam.

text:
    STATE OF NEW JERSEY, GEORGE S. HOBART, ASSISTANT ATTORNEY-GENERAL, PROSECUTOR, v. THE COURT OF THE FIRST CRIMINAL JUDICIAL DISTRICT OF THE COUNTY OF BERGEN, DEFENDANT.
    Submitted May 15, 1931
    Decided May 18, 1932.
    Before Justices Teenchaed and Donges.
    Bor the prosecutor, George 8. Hobart.

    Bor the defendant, Ohandless, Weller & Selser.

   Pee Ctjeiam.

This writ of certiorari brings up for review an order of the Birst Criminal Judicial District Court of Bergen county suppressing as evidence and directing the return of certain liquors seized under a search warrant. The search warrant was issued on January 30th, 1931, by an acting judge of said court and charged that on December 22d, 1931 (sic 1930), John Doe did sell liquor to one Sparks on the premises described. Motion was made by one Enoch Carlson to suppress the evidence and return the property under sections 26 and 27 of the Prohibition Enforcement act (Pamph. L. 1922, p. 615), and also under the constitutional provision respecting unreasonable search and seizure. The judge sitting in said court granted the motion on the ground that there was no reasonable cause for believing the existence of the grounds on which the warrant was issued, and directed the return of the property to Carlson and that its use as evidence against Carlson be suppressed. The deputy attorney-general prosecutes this writ.

The first point argued for reversal is that the judge who-made the order was without authority to do so. It appears that Charles J. McCarthy was judge of the First Criminal Judicial District Court for the county of Bergen; that he requested in writing one J. Wallace Leyden, judge of the Second Criminal Judicial District Court for the county of Bergen, to act for him on the 30th day of January, 1931, and that said Leyden did so act; that said acting judge-issued the search warrant in this case, under which certain property was seized; that Judge McCarthy requested one Dominick Marconi to sit in said court for said McCarthy on February 5th, 1931, as acting judge of said First Criminal Court; that notice being given of a motion to suppress the evidence and return the property taken under the warrant issued by Judge Leyden, Judge Marconi proceeded to hear said matter and made the order under review. Judge Marconi is judge of the Traffic Court of the county of Bergen.

We are of opinion that Judge Marconi was without authority to hear and dispose of the matter and that the order made by him must be set aside.

By chapter 204 (Pamph. L. 1926, p. 337), criminal judicial districts in counties of this state are created and criminal courts established therein. By section 11 it is provided that it “shall be lawful for the judge of any such criminal court within any other criminal judicial district, and any duly qualified recorder, justice of the peace, . or judge of any criminal court without the county at the request of the judge of such court may sit in the place and stead of such judge-of said court and the said magistrate or justice of the peace-sitting shall have the same power and authority as the judge-of the said court.”

The Bergen County Traffic Court was created by chapter-71 of the laws of 1930, page 300. The jurisdiction of that court is limited to the trial of persons charged with violations of laws, ordinances and regulations affecting the use-of motor vehicles or regulating traffic, and also of alleged disorderly persons where the acts complained of occur upon the highway. Such violations do not constitute crimes. Huff v. Goddard Coal and Supply Co., 106 N. J. L. 19; 148 Atl. Rep. 175. The magistrate presiding in such traffic court has all the authority of a committing judge or magistrate as provided in the Crimes act. The act further provides that any attorney-at-law resident in the county or the clerk of said •court, when requested by the magistrate, may sit in the place of the magistrate and execute all of the powers of said magistrate. It is apparent that such traffic court is not a court of •criminal jurisdiction but one that is expressly limited to the trial of cases involving violations of traffic regulations and of disorders upon the highway. The power to commit or hold to bail does not create a criminal court. A criminal court is one where criminal cases are tried and determined, and not one where civil cases are tried or one where persons charged with criminal offenses are held for action by proper authority. It follows that the magistrate of a traffic court is not the judge of a criminal court within the meaning of section 11 of the act of 1926.

The prosecutor urges that the hearing provided in sections 26 and 27 of the act of 1922 must be held by the same magistrate who issued the warrant and cites State v. Lowenthal, 2 N. J. Mis. R. 18; 140 Atl. Rep. 586. In view of our conclusions upon the first point raised, we do not deem it necessary to pass upon this or the other questions raised.

The order will be set aside, with costs.


text:
    STATE OF NEW JERSEY, GEORGE S. HOBART, ASSISTANT ATTORNEY-GENERAL, PROSECUTOR, v. THE COURT OF THE FIRST CRIMINAL JUDICIAL DISTRICT OF THE COUNTY OF BERGEN, DEFENDANT.
    Submitted May 15, 1931
    Decided May 18, 1932.

      Before Justices Trenchard and Donges.
    Bor the prosecutor, George 8. Hobart.

    Bor the defendant, Ghandless, Weller ■& Selser.

   Per Curiam.

This writ of certiorari brings up for review an order of Judge McCarthy, judge of the court of the Birst Criminal Judicial District of the county of Bergen, directing the return of certain liquors seized under a search warrant issued by one J. Wallace Leyden, acting judge of said court, and ordering the suppression of all evidence obtained in said search, and the use thereof in any proceeding against the defendant below, Herman Becker.

We do not deem it necessary to pass upon the question of the authority of Judge McCarthy to hear the matter upon the return of the warrant issued by Judge Leyden.

Sections 26 and 27 of the act under which these proceedings are taken (Pamph. L. 1922, p. 615) provides that testimony must be taken if the ground on which the warrant was issued is controverted, and if it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause the property to be returned to the person from whom it was taken; but if it appears that the property taken is the same as that described in the warrant, and that there is. probable cause for believing the existence of the grounds-on which the warrant was issued, then the magistrate shall order the same to be retained in the custody of the person-, seizing it.

The owner, Becker, gave notice of a motion for the return-of the property and to suppress the evidence.

Our examination of the record satisfies us that the testimony before the court below established that the property described in the warrant is the same as that taken, with the exception of a journal book, the taking of which was not authorized by the warrant, and that it was established that there was probable cause for believing the existence of the grounds on which the warrant was issued.

Further, we conclude that there is no authority for that portion of the order directing suppression of the evidence and the use of any evidence obtained under the search warrant. Our courts have uniformly held to the contrary. See State v. Lyons, 99 N. J. L. 301; 122 Atl. Rep. 758; State v. Gillette, 103 N. J. L. 523; 138 Atl. Rep. 523; State v. Haines, 103 N. J. L. 534; 138 Atl. Rep. 203.

We conclude that so much of the order under review as directs the return of the journal book is affirmed, and that the balance of the order is set aside, without costs to either party.


text:
    MORRIS N. COHEN, RESPONDENT, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, APPELLANT.
    Submitted October term, 1930
    Decided May 18, 1932.
    Before Justices Case and Donges.
    For the respondent, Turner •& Stalter.

    For the appellant, Frederic B. Scott.

   Per Curiam.

This appeal brings up a judgment in favor of the plaintiff in the sum of $250. The suit was brought to recover for personal injuries sustained by the plaintiff while he was a passenger on a ferry boat of the defendant. The plaintiff boarded a ferry boat of the defendant in Hoboken to go to the Twenty-third street'slip in New York City. The boat was manned by a captain-pilot, two deck hands and the engine crew. When the boat reached a point about one hundred and fifty yards from the New York slip the engine failed and the boat began to drift. The tide was going out and the boat was being carried towards the bay and also towards the New York shore. Distress signals were blown. A tug of the New York Central line came to the rescue and threw a line to the bow of the boat but was unable to control it because of the combined weight of the ferry boat and the strong outgoing tide. By that time, however, two of the defendant’s tugboats were standing by, and both ferry boat deck hands busied themselves in fastening a hawser from one of those boats. While the defendant’s employes were thus engaged at the stern of the ferry boat a steam lighter named “the Kangaroo” approached the bow and, with a call to “grab and make fast,” threw a line. The plaintiff, without the request of any of defendant’s employes and apparently without their knowledge, attempted to catch the hawser and wind it about a stanchion. In so doing he received the injury sued upon.

The defendant took exception to, and now relies upon as one of the specifications of error, the following portion of the court’s charge to the jury:

“The charge in this case from the evidence is that the negligence consisted of apparently not having a sufficient crew to handle the emergency which arose * * *. Should you find from the evidence that there was negligence in that regard, then I say to you again notwithstanding the fact that you so find, you must determine from the evidence whether their negligence in that regard—in other words, in not having a sufficient crew—was the proximate cause of the injury which the plaintiff sustained.”

It is said, and we think truly, that this was a direction that the jury might, the other conditions being met, find from the evidence that the defendant was guilty of negligence in that it had not manned the boat with a sufficient crew. The crew was precisely as it had been for the preceding nine years. It was, at the time of plaintiff’s accident, engaged in the act that saved the boat from danger. Neither the Kangaroo nor the plaintiff, notwithstanding good intentions, seems to have contributed anything toward the rescue. No one, except the plaintiff as a result of his own act, was injured. We think that the absence of a member of the crew from the immediate scene of plaintiff’s mishap was not evidence that the boat was undermanned. There was no other evidence to support that imputation. We think, therefore, that the charge was erroneous.

Judgment below will be reversed. Costs will abide the final determination.


author: Peb Cueiam.

text:
    JOSEPH M. BRANEGAN, PROSECUTOR, v. SAMUEL HILTON.
    Decided May 20, 1932.
    Before Justices Pabkeb, Campbell and Lloyd.
    For the prosecutor, Frank W. Hastings, Jr.

   Peb Cueiam.

The prosecutor wishes to bring up for review the record of two judgments in the District Court of Trenton, in causes wherein Samuel Hilton was plaintiff and prosecutor was defendant. The point made is that the court was without jurisdiction because there was only one claim, amounting to $700, which was illegally split into two claims, one of $500 and one of $200, so as not to exceed the statutory jurisdiction of the court.

In order to ascertain whether this point has a basis of facts, we called for a transcript of the testimony in the District Court, which had been taken stenographically, and that transcript was furnished and has been examined. A reading of it shows clearly that the $500 claim was for appraisal of certain real estate and testimony as expert witness before commissioners in a condemnation proceeding 'in March; and the $200 claim was for testifying as expert on an appeal to the Circuit Court in June. Hilton swore that the two matters were separate employments although both related to the same property; that the first covered the trial before the commissioners only and that he thought he had finished until asked later to testify on appeal which was not contemplated in the original employment. He did indeed send in a bill for $700 but he said that was really a “bill rendered” and that separate bills had previously been sent. The value of the evidence was for the trial judge, who was fully justified in finding that there had been two separate employments.

The application will therefore be denied. Counsel may have the papers on application to the sergeant-at-arms.


author: Pee Cueiam.

text:
    ESSEX TROOP, A CORPORATION, PROSECUTOR, v. STATE TAX COMMISSIONER, STATE BOARD OF TAX APPEALS AND THE TOWN OF WEST ORANGE, DEFENDANTS.
    Argued October 6, 1931
    Decided May 23, 1932.

      Before Justices Tbenchabd and Donges.
    For the prosecutor, Pitney, Hardin & Skinner (Edward O. Stanley, Jr., of counsel).
    For the defendants, Grosso, Brundage & Anderson (Norman L. Brundage, of counsel).
   Pee Cueiam.

The question presented by the return to this writ of certiorari is whether the lands of the prosecutor, Essex Troop, which is a private corporation organized under “An act to incorporate associations not for pecuniary profit,” is exempt from taxation by virtue of section 203, subdivision 3 of the Tax act of 1918 as amended by chapter 338 of laws of 1927, page 790.

The question seems to come down to one of statutory construction. The town of West Orange imposed a tax for the year 1929 and a tax for the year 1930, of course upon the theory that the prosecutor was not exempt, because the property is not “owned and used for military purposes by any organization under the jurisdiction of this state, or of the ’United States” wdthin the meaning of the Tax act. Such action, imposing such taxes, was affirmed by the state board -of taxes and assessment.

Of course, the statute must be strictly construed and cannot be permitted to extend in scope beyond what the terms of the concession clearly require. Mausoleum Builders of New Jersey v. The State Board of Taxes, 88 N. J. L. 592; 96 Atl. Rep. 494; affirmed, 90 N. J. L. 163; 100 Atl. Rep. 236.

It is admitted by the stipulation of facts that the property in question is owned by the Essex Troop, and was and is exclusively used for military purposes by the 102d Cavalry Regiment, New Jersey National Guard; that the Essex Troop does not use the property in any way whatever; that in 1928 it leased the property to the United States Government for use as a rifle range for a period of five years.

Therefore, the question arises, is the property owned by an organization under the jurisdiction of this state or the-United States. West Orange contends that it is not. West Orange claims that the clause “any organization under the jurisdiction of this state or of the United States,” means a military organization under the military jurisdiction of this-state or of the United States, and that the Essex Troop,, being a private corporation, organized under the act not for pecuniary profit, is not such an organization as is contemplated by the statute; and we think that is so.

It seems apparent that the statute contemplates that the organization owning and using land for military purposes shall be such an organization as shall be under the military jurisdiction of this state, or of the federal government—an organization that is recognized and authorized by the laws of the respective governments—and an organization created by law and subject to the control of the duly constituted authorities.

That a corporation organized under the laws of this state or of the United States does not come within the purview of the statute seems clear. Of course any corporation organized under the laws of this state is in a sense under the jurisdiction of this state, as is every individual living within the territorial limits of the state. But it seems to us that it could not be well argued that a private corporation organized under the General Corporation act and owning land in this state could gain exemption merely by permitting a military organization of the National Guard or of the .United States to use the property, even though all income derived from the property above the expense of its maintenance were exclusively used for military purposes. The mere statement of siich a construction of the statute seems sufficient to demonstrate its unsoundness. If a-.corporation organized under the General Corporation act could not thus gain exemption, what reason is there for exempting the property of a corporation organized for non-pecuniary profit, such as the prosecutor? We see none. Obviously, therefore, to obtain exemption, the land must be owned by some sort of organization other than a mere •corporate organization; and, inasmuch as the statute prescribes that the land must be used for military purposes by .an organization under the jurisdiction of this state, and owned by such an organization, there can be no doubt that such an ■organization owning the land must be military in character.

JSTow, Essex Troop, the prosecutor herein, legally considered, is neither a military organization, nor is it an organization under the military jurisdiction of this state, or of the United States. It is rather a corporation, incorporated under the act to incorporate associations not for pecuniary profit.

The judgment of the state board of taxes and assessment will be affirmed, with costs.


author: Ackekson, S. C. C.

text:
    BENE CLOTT, PLAINTIFF, v. ARNOLD JORDAN AND PHILIP JAWITZ, DEFENDANTS.
    Decided October 19, 1929.
    Eor the plaintiff, Hiram Elfenbein.

    For the defendants, Hichmann & Seiden.

   Ackekson, S. C. C.

The complaint herein alleges that plaintiff and his wife agreed by a writing dated August 27th, 1926, to convey certain real estate to the defendants for $38,500, which sum according to the copy of the contract attached to the complaint, the defendants agreed to “pay and satisfy or cause to be paid and satisfied” as follows: “On execution of agreement * * * $500. On delivery of deed $4,000. By * * * taking the property subject to a first mortgage due not earlier than September 1st, 1931; * * * $22,000. By * * * taking the property subject to a second mortgage due not earlier than September 1st, 1928. * * * $12,000.”

It is further alleged that said premises were conveyed to the defendant Arnold Jordan alone, by deed dated November 1st, 1926, the other defendant, Philip Jawitz, consenting thereto. That at the time of closing title the defendants “kept back and retained a sum out of said purchase money, sufficient to pay the said two mortgages, viz., the sum of $34,000, and thereupon the said Arnold Jordan and Philip Jawitz did agree that out of the said portion of the purchase money so retained by them, they would pay the principal and interest of the two mortgages aforesaid, in accordance with the terms thereof, and thereupon the aggregate amount of the said two mortgages, viz., $34,000, was deducted from the consideration or purchase money to be paid to the plaintiff herein. That by reason of the retention of said sum, “they agreed and became bound in law to pay the said two mortgages, and to apply said moneys toward the payment of the same, and to indemnify and save harmless the said plaintiff against the payment of said mortgage debts.”

The complaint further alleges in substance, that defendants failed to apply so much of the retained purchase price as was necessary to pay said mortgages, with the result that the $12,000 mortgage was foreclosed and the premises sold resulting in a deficiency which the plaintiff as the mortgagor bound on said mortgage, was obliged to pay, and, thérefore, plaintiff seeks reimbursement from the defendants.

The matter now comes before me upon a motion by the defendant Arnold Jordan, to strike out this complaint upon the following grounds:

“1. The allegations contained in the complaint show no facts whereby the defendant Arnold Jordan is legally liable to the plaintiff for the damages claimed in the complaint.

“2. That the Supreme Court of the State of New Jersey has no jurisdiction to try any issue that might be raised by reason of the facts alleged in the complaint.

“3. That the complaint is frivolous.”

Neither side has produced affidavits in support or resistance of said motion, except that the defendant Jordan has produced a verified copy of the deed by which he acquired title to the premises in question from the plaintiff, which discloses that the consideration therefor is stated in said deed as “one [$1.00] dollar and other good and valuable considerations,” and the only reference therein to the mortgage in question follows immediately after the description of the premises, and reads as follows:

“Subject to a second mortgage in the sum of $12,000 held by Florence E. Gorman.”

The first and third grounds of objection to the complaint both attack the legal sufficiency of the complaint and may be considered together.

The defendant insists that there is nothing in the deed for said premises nor in the contract of sale showing an agreement to indemnify the plaintiff against the consequences of a deficiency arising from the sale of the mortgaged premises and hence the defendant is not liable to the plaintiff.

It is apparent, therefore, that the controlling question in the case is whether the appellant by his deed or, agreement, or either or both of them, assumed the obligation of protecting the defendant, his vendor, against any liability on account of the mortgages on the property.

In the first place the defendant contends that we must look to the language of the deed alone to determine this question, because, as he claims, the contract of sale was completely merged in the deed which merely states that the conveyance-is made subject to the mortgage encumbrances without any express assumption clause contained therein. It is well settled, however, that an engagement to assume a mortgage debt is a collateral and independent covenant or contract and is not merged into the deed, and may exist separate from and independently of the deed and may in fact rest entirely in parol and even in the face of a covenant against encumbrances contained in the deed. Bolles v. Beach, 22 N. J. L. 680; Wilson v. King, 23 N. J. Eq. 150, 152; Holland Reformed School Society v. DeLazier, 84 N. J. Eq. 442; 93 Atl. Rep. 199; 50 A. L. R. 1220; 27 C. J. 225, § 215.

Eegardless of the question of merger, however, the case of Boíles v. Beach, supra, is authority for the proposition that the grantor of a deed is not estopped by the usual acknowledgment therein, that the purchase-money has been paid, from inquiring into the consideration and its receipt, where the intention in regard to the estate is not disputed, nor the operation of the conveyance, as such, sought to be changed. The clause is regarded as formal merety, and open for explanation even by parol. And especially is this so when the consideration for the deed is not completely expressed or is ambiguous. The deed in question here cannot he said to be either complete or unambiguous, for, instead of naming the actual consideration which the parties had .agreed upon, it states that the grant was made in consideration of the “sum of one ($1.00)' dollar and other good and valuable considerations.” Manifestly that expression is too general to disclose the details of the consideration, and, in an action which is essentially to recover a part of the consideration, recourse must be had to some source, other than the deed, to ascertain what it was, and since the deed was executed in attempted compliance with an antecedent contract in which these parties had presumably agreed upon the consideration, we would naturally look to it for the information. To do that would not be to contradict the deed or anything contained in it, but to make certain and definite that which it leaves uncertain and indefinite. That distinction is clearly exemplified in the case of Rosenthal v. Heft (Md.), 142 Atl. Rep. 598, which is very much in point. Before examining the contract of sale attached to the complaint, lowever, we must have in mind that the decisions of our courts and the weight of authority elsewhere support the proposition that the mere purchase of property subject to an existing mortgage does not create a personal obligation on the part of the purchaser to indemnify the vendor against the mortgage debt. Tichenor v. Dodd, 4 N. J. Eq. 454; Chilton v. Brooks, 72 Md. 554; 20 Atl. Rep. 125.

But such an obligation does not have to be express. It may be implied, and by the decided weight of authority in the absence of any express agreement to the contrary, such an obligation will be implied where a given price is to be paid for land which includes a mortgage debt, so that the mortgage debt is withheld from the purchase-money under such circumstances as will fairly and reasonably indicate that the vendee intended to assume the payment of the mortgage, or protect the vendor against the payment thereof. In such a situation, the purchaser is under an obligation to indemnify the vendor against the mortgage debt. Heid v. Vreeland, 30 N. J. Eq. 591; Tichenor v. Dodd, supra; Freedman v. Zuckerman, 145 Atl. Rep. 541; 41 C. J. 724; L. R. A. 1917-C, p. 594.

The rule is very vigorously expressed in the case of Heid v. Vreeland, supra, where the court said:

“There can be no doubt at this day that where the purchaser of land encumbered by a mortgage, agrees to pay a particular sum as purchase-money, and, on the execution of the contract of purchase, the amount of the mortgage is deducted from the consideration, and the land conveyed subject to the mortgage, the purchaser is bound to pay the mortgage debt, whether he agreed to do so by express words or not.

“This obligation results necessarily from the very nature of the transaction. Having accepted the land subject to the mortgage, and kept back enough of the vendor’s money to pay the mortgage debt, it is only common honesty that he should be required either to pay the mortgage or stand primarily liable for it.”

In the case sub judice the deed from the plaintiff to the defendant purported to convey the property “subject to a second mortgage in the sum of $12,000 held by Trances E. Gannon,” and standing alone, that language would mean that the vendee took only the equity of redemption, and assumed no personal liability with respect to the mortgages.

■ But the same deed recites that the consideration for it is “one ($1.00) dollar, and other good and valuable considerations,” and, when the contract is examined, it is found that the “other good and valuable considerations” was the purchase price of $38,500, which the purchasers were to “pay and satisfy or cause to be paid and satisfied” as follows: $500 on the execution of the agreement, $4,000 in cash on the delivery of the deed, and the balance “by the party of the second part taking the property subject to a first mortgage due not earlier than Sept. 1, 1931 * * * $22,000. By the parties of the second part taking the property subject to a second mortgage due not earlier than Sept. 1, 1928 * * * $12,000.”

Under this contract of sale the defendants agreed to pay $38,500 for the property, and that sum was to be “paid and satisfied” to the plaintiff. Instead of paying that sum in cash, the defendants elected to deduct from it the sum due on account of the two mortgages, and to pay in cash only $4,500. When they elected to deduct the amount due on the mortgages from the purchase price, they must have deducted it to pay the mortgages, for otherwise, instead of deducting it from the purchase price, they would have bought the equity of redemption for the difference between the amount due on the mortgages, and the stated purchase price, and this difference would have been stated in the contract as the consideration, but in the absence of any evidence qualifying the language of the contract and the deed, we cannot assume that the vendor intended and that the purchasers understood that they were to retain out of the purchase price the amount due on the mortgages, without any obligation on their part to pay the mortgages so as to exonerate the vendor from any liability on account thereof. A more reasonable assumption is that by that arrangement the defendants as vendees undertook, as a part of the purchase price, to indemnify the plaintiff against the payment of the mortgage debt. Such was the reasoning in the case of Rosenthal v„ Heft, supra, which seems to be identical with the case sub judice, and, therefore, directly in point. The defendants could not in any event be called upon to pay on account of the mortgages more for the property than the $38,500 stipulated in the agreement, but the plaintiff according to the defendants’ contention, if they are required to pay any deficit due on the mortgages, will be compelled to deduct from the price which defendants’ had agreed to pay him the amount of such deficit. Or, stated in another way, the defendants’ contention is that, while they cannot be required to pay more than the purchase price on account of the mortgages, the plaintiff can be required to take less. With this contention I cannot agree, for it would be obviously unfair and unjust.

Furthermore it is difficult to understand how the plaintiff here could be said to have been "paid and satisfied” in the sum of $38,500 as the consideration for his conveyance, if the defendants are merely to take the property subject to the mortgages thereon for the greater part of that sum without any liability on their part to either pay the mortgages or at least indemnify the plaintiff against the payment thereof.

The mortgage money, in view of the language used in the contract of sale, became a part of the consideration for the conveyance, and unless the defendants are required to indemnify the plaintiff for the money he has spent in satisfying the deficiency resulting from the foreclosure sale of the mortgaged premises, this part of the consideration for the conveyance thereof has failed, and the plaintiff has had to give up a part of the cash payment which was given him on account of the purchase price of $38,500 which the contract of sale stated was to be paid or satisfied to him.

I have, therefore, reached the conclusion that the complaint sets forth a good cause of action.

The only question, therefore, remaining for consideration is whether this cause of action is properly brought in a court of law, or whether it should have been brought in a court of equity. This question is raised by the defendants’ second ground for striking out the complaint, and while defendant .has not argued the question in his brief, and it may, therefore, be said to have been abandoned, nevertheless since the jurisdiction of this court is involved, I shall consider it.

In this connection it is to be noted that most of the cases in Hew Jersey dealing with the assumption of mortgage debts, are those where the mortgagee has attempted to collect from a grantee, and not where the vendor has sought to impress an implied promise upon the vendee, from the latter’s having withheld from the purchase price the amount due upon mortgage encumbrances.

If it be true that where the amount of the mortgage debt has been deducted or retained by the purchaser out of the agreed purchase price of the premises, there is an implied engagement to protect the vendor against the mortgage debt as already discussed, then there would seem to be no good reason why a vendor under such circumstances should not bring his suit against the vendee in a court of law, which has always recognized the principle of implied contracts. Let us imagine a case where a vendee had agreed to pay $10,000 for property covered by a $5,000 mortgage, and at the time of settlement, the vendee had paid this $10,000 to the vendor who in turn handed back $5,000 to the vendee with which to pay the encumbrance. Can it be doubted for a moment that upon the vendee’s failure to pay the mortgage, and the vendor being called upon to do so, that the vendor could bring a suit at law to recover the amount he thus paid on account of the mortgage ? It seems to me that there can be no such doubt. If this is so, then in what respect would it be different from the case where in the settlement a vendee had merely paid to the vendor, out of the total agreed purchase price, the value of his equity, and had retained the amount of the mortgage. Of course, the case would be entirely different if the purchase price merely represented the value of the equity of redemption, and the consideration did not include the mortgage debt.

My attention has been called to the closing paragraph in the case of Tichenor v. Dodd, supra, which was. a suit in equity by. a grantor against his grantee to recover an.amount-which the grantor had been obliged to pay on account of a mortgage given by him while he was the owner of the premises, the amount of which had been deducted from the full purchase price at the time of the conveyance. The court, after concluding that the complaint did set forth a good cause of action, concluded as follows:

“His remedy may possibly be by suit at law, as the counsel for the defendant contends; but it is at least doubtful whether he could sustain an action at law, even if he could prove all the facts admitted by the answer. He is therefore properly before this court, and entitled to the relief sought.”

It is to be noted that the court did not hold that, there was not a good cause of action at law, but merely held that there was enough doubt respecting the jurisdiction, as to justify a Court of Chancery in granting the relief prayed for.

The defendant also relies upon the case of Loudenslager v. Woodbury Heights Land Company. This case was brought at law by a vendor against his vendee and the complaint charged an express assumption of the payment of a mortgage debt by the vendee, but the deed attached to the complaint from which it was alleged that the express assumption agreement arose, did not show any express agreement on the part of the vendee to pay the mortgage debt. In the course of the opinion the court said:

“The declaration now demurred to counts upon a contract to assume the mortgage and to pay it. It appearing from the deed that there was no such contract, the declaration is faulty. Whether the action could be maintained if the declaration is so amended as to count upon a contract to pay the consideration in the deed, cannot now be considered.”

In the case sub judice as already noted, the complaint is not based upon an express assumption of the payment of the mortgages in question, but is based upon an implied engagement to pay the mortgages in question arising out of the alleged fact that the defendant had agreed to pay the full value of the premises, including the amounts of the mortgages to the plaintiff, but that in the settlement the amount due upon the mortgages was deducted from the purchase price, hence giving rise to an implied contract to apply the moneys on the mortgages. This would seem to be equivalent to alleging “a contract to pay the consideration in the deed,” as mentioned in the case last above cited. And whether a complaint thus framed would be good in law, the case last cited does not attempt to decide.

Where by the terms of sale the mortgage money is to be taken as a part of the consideration, equity may protect the vendor by imposing upon the “conscience” of the purchaser an obligation to indemnify the vendor against the mortgage debt, as in the case of Tichenor v. Dodd, supra. But a court of law can accomplish the same end through the medium of an implied contract of indemnity.

The breach of an express promise to indemnify a vendor against the payment of a mortgage debt would undoubtedly be cognizable in a court of law. If that is true, how can it be maintained that an implied promise stands upon a different basis.

The case of Rosenthal v. Heft, supra, was an action in assumpsit in a court of-law. Twitchell v. Mears, 8 Biss 211; 24 Fed. Cas. 14286 is also authority for the proposition that such an action may be maintained in a court of law.

. It follows from what has been said that the defendants’ motion must be denied and an order may be presented in accordance with the conclusion thus reached.


author: Bodinb, J.

text:
    PHILIP J. GAVIO, PROSECUTOR, v. THE BOROUGH OF LAVALLETTE, IN THE COUNTY OF OCEAN, ET AL., DEFENDANTS.
    Argued April 4, 1932
    Decided April 13, 1932.

      For the prosecutor, Walter Carson.

    For the respondents, Leon E. Beussille, Jr.

   Bodinb, J.

On April 15th, 1931, a writ of certiorari was allowed to review the action of Carl B. Wynkoop, mayor of the borough of Lavallette, at a meeting of the borough council held on January 6th, 1931, in announcing and declaring that a vacancy existed in the office of Philip J. Gavio as a borough councilman and in designating and appointing Walter B. Law temporarily to fill said vacancy, and of the action of Walter B. Law in purporting to qualify and serve, as a borough councilman in the place and stead of Philip J. Gavio, and of the action of Gordon Homer, as borough clerk of the said borough, in recording said actions and matters in the minutes of the borough council.

A second writ was allowed January 26th, 1932, to review the validity of a resolution of the borough council of the borough of Lavallette alleged to haye been adopted at a meeting held October 25th, 1931, wherein the office of Philip J. Gavio, as a councilman, was alleged to be vacant; and of the action of the mayor in appointing Elmer E. Pettit on November 30th, 1931, to fill the unexpired term of Gavio as councilman; and of the action of the borough council in confirming such appointment at a meeting held on November 13th, 1931.

The two actions were consolidated and came on for hearing before a single justice pursuant to the statute and on an agreed state of facts. The parties agreed that they desired the judgment of the court upon the substantive questions and points involved. Question of pleading, practice and similar matters were expressly waived. So the court will not consider the form of remedy.

It appears that Philip J. Gavio was duly elected a borough councilman for a term of three years at the November, 1929, election. He duly qualified and entered on the performance of his duties. Carl B. Wynkoop was elected to the mayor’s office in November, 1930, and entered upon his duties January 1st, 1931, for a term of two years. At the borough organization meeting held January 1st, 1931, certain borough offices were filled and certain offices were not filled, the nominees failing of election by the vote of Councilmen Gavio and Jacobson. Councilman Austin was absent. Lavallette appears to have six councilmen. At the adjourned meeting held January 6th, 1931, Councilman Gavio was absent and the mayor’s nominees failed of election by the vote of Councilmen Austin and Jacobson. Thereupon the mayor appointed'Walter B. Law councilman, because of the vacancy existing by reason of the temporary absence of Mr. Gavio. After the oath was administered, Mr. Law entered upon the discharge of the duties of councilman and at an election subsequently held the mayor’s nominees rvere elected to various offices.

Gavio attended several meetings of the council between January 6th, 1931, and May 22d, 1931, and acted as councilman. Strangely enough only when Gavio was absent did Law act.

On August 17th, 1931, the mayor wrote to Gavio as follows: “Out of seventeen meetings so far in 1931 you have been absent eleven times. In view of the fact that you have not been present for the last four regular meetings I am beginning to wonder if you have decided to discontinue, altogether, the duties for which you were elected. It is very important that all members of council attend the meetings, in order to properly conduct the business of the borough. I would, therefore, ask that you kindly advise me, at your earliest convenience, as to your future intentions in this matter.”

Gavio replied as follows: “It is beyond my province at the present time to answer your query relative to my intentions. It is for the court to determine my legal status as councilman of the borough. Until such time as that becomes obtainable.”

At the October 30th, 1931, meeting no quorum was present. The mayor then appointed Charles Nagle to fill Councilman Jacobson’s place. Nagel was then sworn in and a meeting was held at which a resolution was adopted declaring a vacaney in Gavio’s office, because of his failure to attend meetings. At a subsequent meeting, the mayor appointed Elmer E. Pettit to fill the unexpired term of Gavio, and the council later confirmed the appointment, Jacobson, who also had had an alter ego, not voting.

The office of borough councilman is an elective office representative of the duly qualified voters of the borough. Like any other representative of the people he receives his office by tlieir votes cast according to law. Can he be deprived of his office by reason of temporary absence? 1 think not, unless representative government does not exist or a statute expressly provides for the designation of alternates in the office of borough councilmen to be chosen by the mayor whenever temporary absences exist. I have been referred to no such enactment. The statutes do contain provision for the temporary filling of offices and positions held by administrative officers but such statutes cannot be construed so as to provide a means to deprive the people of a given locality of the right to be represented in a borough council, a legislative assembly, by the representatives of their choice; nor to vest an administrative officer like a mayor with the power to select councilmen to his own liking merely because the duly chosen representative of the people, because of illness or otherwise, is temporarily absent.

Paragraph 19, article XXXVII, of the Home Rule act (Pamph. L., 1917, ch. 152, p. 460, as amended by Pamph. L. 1920, ch. 319 (at p. 573), provides as follows: “Wherever duties are imposed by law upon any officer or employee of a municipality, and no person is now by law authorized to perform such duties when such officer or employe is temporarily absent, disabled or disqualified, it shall be lawful for the officer or board having the authority to fill any vacancy in any such office to designate some person to act in lieu and place of any such officer or employe during his temporary absence, disability or disqualifications; in case the officer or employe so temporarily absent, disabled or disqualified is one who was elected by the voters of the municipality, in municipalities governed by a board of commissioners, the person to act in his place and stead shall be designated by the board of commissioners, and in all other municipalities by the mayor or other chief executive officer of the municipality. The acts of any person so designated shall in all cases be legal and binding as if done and performed by the officer or employe for whom such designated person is acting.”

THe general purpose of the above act is evident. It does not authorize either the creation or filling of vacancies; nor does it authorize appointments to office. It covers only the special situation in which an “officer or employe” of a municipality is “temporarily absent, disabled or disqualified” under such circumstances the proper authority may “designate some person to act in lieu and place of any such officer or employe during his temporary absence, disability or disqualification.” The absent or disabled officer or employe continues to hold his office or position, but the designated person acts for him; and the acts of the person so designated are, in the words of the statute, “legal and binding as if done and performed by the officer or employe for whom such designated person is acting.”

A councilman performs a legislative function; he represents the people. His duty is to vote upon the various motions, resolution and ordinances presented to the governing body as he, in the exercise of his best' judgment, thinks fit. Such an obligation cannot be performed by another.

Further, since the term “officer” in the act is joined with the term “employe,” it is apparent that the only officers contemplated are those whose duties are analagous to the duties of employes, that is, duties of an administrative nature, that can be performed by a substitute. Even though the phrase applies to an “officer or employe” elected by “the voters of a municipality” the meaning includes no more than administrative officers such as tax collectors, assessors and road supervisors, and the like.

Section 42 of the General Borough act, as amended (1 Comp. Stat., p. 230), provides that whenever the office of borough councilman shall become vacant “by reason of death, disability, resignation, or any other cause,” the mayor shall have the power to fill such vacancy by appointment, with the advice and consent of a majority of the remaining members of the council. But the statute does not support the action taken in this case. The act, by its terms, operates only when a vacancy exists. It does not authorize the mayor to create a vacancy by declaring one. There being no vacancy in the prosecutor’s office on January 6th, 1931, the mayor had no power of appointment under the provisions of the Borough act. Nor did the members of the council give their “advice and consent” to Mr. Law’s designation. They did, however, confirm the appointment of Mr. Pettit.

This statute does not permit the council to declare a vacancy. The words “by reason of death, disability, resignation, or any other cause” must be construed together and mean death, disability, resignation, or other similar cause. They cannot include mere absence; otherwise, the chosen representatives of the people could be deprived of office without any cause other than their mere inability to be present. It is unthinkable that a representative in Congress could be deprived of his office by reason of his mere absence, or that the people of a given location could be deprived of their right to be represented by an officer of their choice by his mere absence. It is equally unthinkable that the legislature intended to deprive the borough councilmen of their privilege on such ground or to so divest the people of the borough of representative government.

The actions under review will be set aside.