text:
    FRANK B. EATON, RELATOR, v. TOWN OF MONTCLAIR AND WILLIAM H. SENIOR, BUILDING INSPECTOR OF THE TOWN OF MONTCLAIR, DEFENDANTS.
    Argued January 21, 1926
    Decided May 4, 1926
    Filed May 19, 1926.
    Zoning—Stores in Restricted Territory—Property in Question to be Taken Over by Municipality, but Condemnation Proceedings Not Yet Begun—Right to Build Turns on Decision in Ignaciunas v. Risley—Alleged That Building, as Planned, Would be a Menace to Travelers Because of Obstruction of View, it Being Regarded as an Unreasonably Dangerous Corner—To Prohibit the Use of the Property on This Ground Would Not be for the Safety of Entire Public, but Merely for Particular Users of the Highway—Relator Entitled to Have a Decision on His Application for Building Permit Decided Before Condemnation Takes Place.
    On rule to show cause why a peremptory or alternative writ of mandamus should not issue.
    Before Justices Trenchard, Katzenbach and Lloyd.
    For the relator, Howe <£ Davis (B Award L. Davis, of counsel).
    For the defendants, George Ji. Beach and Arthur H. Bissell.

   Per Curiam.

This case is before this court upon a rule to show cause why a peremptory or alternative writ of mandamus should not issue to command the town of Montclair and William H. Senior, its building inspector, to issue a permit to Frank B. Eaton, relator, for the erection of a row of four retail stores on property owned by the relator in the town of Montclair. The property upon which the relator desires to erect the stores is a tract of land located at the northeast corner of Yalley road and Brookfield road.

The case is submitted upon an agreed state of facts. From these facts it appears that on October 16th, 1925, the relator applied to the said building inspector for a permit to erect the building, and at the same time submitted plans and specifications and tendered the requisite fees. The permit was refused on the ground that to issue a permit would be in violation of the terms of the zoning ordinance of Montclair. The town of Montclair has a board of adjustment. The relator applied to the board of adjustment. The board of adjustment adjourned the hearing on the application from November 5th, 1925, to December 10th, 1925. No final decisión has ever been made. On December 8th, 1925, the board of commissioners of Montclair passed an ordinance providing for the taking of the relator’s property for plazas or public places open for public travel. The ordinance appropriated the sum of $20,000 for this purpose. The town' of. Montclair intends, it is argued, to acquire the property. The fact that an ordinance has been passed for the acquisition of the property seems to us to be no bar to the consideration of the present case, for the town of Montclair has not as yet begun condemnation proceedings.

The lot of the relator has a frontage on Valley road of seventy-one feet plus, and a depth on Brookfield road of one hundred and two feet. Valley road is a main thoroughfare. It has a trolley line on it. Brookfield road joins Valley road just a little north of the point where the Erie railroad crosses Valley road upon a bridge. The lot is located in what is known as the two-family semi-detached house zone. Upon the question as to the location of a store in a residential zone the case of Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 99 Id. 392, controls the present case.

The respondents further contend that the erection on the street line of a store building upon the relator’s premises will constitute a menace to the safety and general welfare of the people of the town of Montclair. It is argued that this corner is an unusually dangerous one; that on one side is the high bank of the railroad, and if a store be permitted to be erected on the opposite corner there will be no opportnnity for a view in either direction. It is said that this situation is a menace to the safety of the users of the highway, and for this reason it is justifiable to withhold the building permit. In other words, the respondents contend that if one owns a piece of property at the junction of two roads that, for the safety of the public, the owner should not be permitted to erect a building thereon, because the erection of such a building would tend to obscure the view of the highway other than the highway upon which one is at the time traveling. It is insisted that this is a proper exercise of the police power. If this view were adopted it would result in the owner of a tract of land, presumably worth about $20,000, being unable to derive any revenue from it, for one kind of a building would be as much of an obstruction of the view as any other. The only thing which the owner would, under such circumstances, derive from the ownership of the land, would be the privilege of paying taxes and assessments thereon. We think this is not what is intended under the statute as in the interest of the safety of the public. This prohibition relative to the use of the property would not be for the safety of the entire public. It would be merely for the safety of the particular members of the public using the highway.

It is contended in the third place by the respondents that the discretion of this court, in awarding a writ of mandamus, should be exercised in favor of the town of Montclair, by withholding the writ because of the action of the town in seeking to take the property of the relator by condemnation. We cannot see why the relator should await the convenience of the town of Montclair in proceeding with the condemnation proceedings. His taxes upon the property are running on, as also the losses which he is incurring by reason of the lack of revenue-producing improvement upon the property upon which he is desirous of building. Moreover, as his right to build upon the property is questioned, he is entitled to a decision on this question, as it may have some hearing upon the value of the property if it be condemned.

A peremptory writ of mandamus is awarded.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    EVERETT W. COX COMPANY, PROSECUTOR, v. STATE HIGHWAY COMMISSION OF STATE OF NEW JERSEY AND THE MAYOR AND ALDERMEN OF JERSEY CITY, RESPONDENTS.
    Submitted January 29, 1926
    Decided May 4, 1926

    Filed May 19, 1926.
    State Highways—Condemnation of Land—Prosecutor Owned Land Needed for State Highway—It Alleged the Land was to be Given to Jersey City in Exchange for Another Highway, and That the Power of Condemnation Did Not Include Such a Transaction—Highway Commission Has Power to Build Any Kind of Thoroughfare it Desires, Taking the Land in Question is Not Doing More Than Commission is Authorized to do—Question of Taking Land Already Devoted to Public Use Not Raised Here, Since Jersey City is Not Objecting—State Commission Has Full Power to Condemn Land for Highway Purposes.
    On writ of certiorari to the clerk of Hudson county.
    Before Justices Teenohaed and Katzenbach.
    For the prosecutor, Mark Townsend, Jr., George B. Sleigh, (Harry Lane, of counsel).
    For the respondents, Mark A. Sullivan.

    For the state highway commission, Thomas J. Brogan, corporation counsel for Jersey City.
   Pee Cueiam.

This case is before this court on a writ of certiorari directed to. the clerk of the county of Hudson. The writ was allowed to review an order appointing commissioners for the condemnation of lands located in the city of Jersey City, belonging to the Everett W. Cox Company. The condemning party is the state highway commission.

The prosecutor is in possession of a parcel of land bounded by Collard street, Hopkins avenue, Bevan street and Underwood Terrace. It is the owner of a portion of the tract and has a long-term -lease on the remainder. The prosecutor is making improvements upon the land in question involving an expenditure of $175,000. The state highway commission instituted the proceedings for the purpose of acquiring a strip of this land thirty-nine feet in width for a distance of two hundred and sixty-six and sixteen hundredths feet along Underwood place, which is the street on the southerly side of said property.

The condemnation proceeding is taken in connection with the building of the approaches to the vehicular tunnel. The commission claims that the land will be a part of the state highway’s route No. 1. Accompanying the state of the case is a map which shows with great detail the plans of the state highway commission. The approaches to the tunnel are to be surface, depressed and overhead. The overhead approach is nearest to the tunnel entrance, and will extend from Jersey avenue to Paterson avenue. There will be depressed approaches and surface approaches which at certain places will be connected by ramps. The route was settled by a resolution passed by the state highway commission. The resolution designating the route at the point where the prosecutor’s property abuts Underwood place reads as follows: “From the easterly side of Oakland avenue to the westerly side of Bevan street the right of way will be seventy [70] feet width, of which thirty-four [34] feet will be on the southerly side of the center line of location and thirty-six [36] feet will be on the northerly side. From Bevan street to Collard street the right of way will continue as above, namely, seventy [70] feet in width, but there will be required, in addition, on the northerly side through the block between Bevan and Collard streets, an additional width of forty [40] feet from a street at, approximately, the present level of Underwood place.”

Two grounds for setting aside the order are urged by the prosecutor. The first is that the state highway commission has no power to take the land of the prosecutor by condemnation, as the property to be taken is not to be used as a part of the state highway route No. 1, but is to be used as a street of the city of Jersey City. Abutting the property of the prosecutor on the south is a street known as Underwood place. A portion of Underwood place is to be taken by the state highway commission and used as a depressed thoroughfare. In the opinion of the commission traffic will demand at this point and alongside of the depressed thoroughfare a surface roadway. The prosecutor's land is to be taken for this surface roadway. The contention of the prosecutor is that the state highway commission is to make an exchange with Jersey City. The present Underwood place is to be created by the state highway commission by this proceeding and given to Jersejr City in exchange for the portion of the present Underwood place taken by the state highway commission. The difficulty with this argument, in the first place, is that it is not substantiated by facts. The state highway commission can build any kind of a thoroughfare it desires. In the present undertaking it is going to erect a viaduct, depressed thoroughfares and surf.ace thoroughfares connecting the two latter by the various methods shown on the plans. If the state highway commission is of the opinion, and it has so said by its resolution, that it is necessary between Bevan street and Collard street to have both a surface and depressed thoroughfare, this is a matter within the discretion of the commission. This court has no power to set aside the judgment of the state highway commission that ,the number and character of the thoroughfare as outlined in said resolution are necessary.

The prosecutor next argues that the testimony of Major Sloan, the state highway engineer, bears out its contention. Major Sloan's testimony is to the effect that they are taking this strip of the prosecutor’s land to replace the present Underwood place. Assuming this is so, it is not carrying out anything more than that which the state highway commission is authorized to do. What has been done by the commission is to exercise the power given it by the state. Under this point the prosecutor contends that the city of Jersey City has a right to prevent the taking of Underwood, place by the state highway commission under the doctrine that property already devoted to the public use cannot be taken for another public use without legislative authority expressly given or implied. We do notrthink it is necessary to discuss this question, because the city of Jersey City is not making any such contention, and the prosecutor is not standing in the shoes of Jersey City in this matter, assuming there is merit in the contention.

The next point argued by the prosecutor is that the state highway commission has no power to condemn lands under the Eminent Domain act for the construction of a state highway. The argument is that the state highway commission has only the power to widen, straighten and regrade any state highway. This argument does not impress us, because among the powers given by chapter 226 of the laws of 1919 the state highway commission is given power “to do and perform whatever may be necessary or desirable to effectuate the object and purpose of the act.” It further provides that these powers are to be liberally construed. In order to effect the purpose of the act for the building of state highways the exercise of the power of eminent domain is absolutely necessary. If this were not the law then a single individual could hold up a state project. In the original act (chapter 15 of the laws of 1917) the general power to condemn was given. This act further provided that the work of the department shall be performed under the state highway commission, which shall have all power necessary therefor without recital in detail.

The order appointing commissioners to condemn the lands of the prosecutor is affirmed.


author: Pee Cubiam.

text:
    MARY J. WASSEL, RELATOR, v. HENRY J. GAUTCHEY, BUILDING INSPECTOR, ETC., ET AL., RESPONDENTS.
    Submitted May term, 1926
    Decided May 18, 1926.
    Zoning—Case Within Rule in Ignaciunas.v. Risley.
    On rule for mandamus.

    Before Justices Pabkeb, Black and Campbell.
    Eor the relator, Viviano & Kehoe.

    Por the respondents, William W. Evans.

   Pee Cubiam.

This case is before the court on a rule to show cause why a writ of mandamus should not issue to the building inspector in a zoning case, an agreed state of facts is submitted to the court, in writing, duly signed by the respective attorneys and filed. Upon reading and answering the facts we. are satisfied the cases controlled by the case of State v. Nutley, 99 N. J. L. 389; affirmed, 98 Id., 712, as being directly in point. A rule may be entered, therefore, directing a peremptory writ of mandamus to issue to the building inspector of the borough of Hawthorne, Passaic county.


author: Pee Ctjbiam.

text:
    OXFORD CONSTRUCTION COMPANY, RELATOR, v. CITY OF ORANGE AND THOMAS J. DOWLING, BUILDING AND PLUMBING INSPECTOR OF THE CITY OF ORANGE, DEFENDANTS.
    Submitted January 29, 1926
    Decided May 4, 1926
    Filed May 19, 1926.
    Zoning—Apartment-Houses in Restricted Territory — Brief of Respondent, Devoted to an Effort to Show That the Zoning Cases in This State Have Been Wrongly Decided, Should be Addressed to the Court of Errors and Appeals!—Facts in This Case Not Sufficiently Set Forth to Enable a Determination Whether the Regulations With Reference to the Height of the Building, Requirements as to Yards, etc., are Within Proper Exercise of Police Power—If They are General, Applying Throughout the City, and Reasonable, They Would be Valid—if Merely Designed to Assist in Carrying Out the Purpose of Segregating Different Classes of Buildings in Different Zones, They Would be invalid—An Alternative Writ Will be Allowed to Enable Relator to Show Additional Facts Necessary to Justify a Peremptory Writ.
    On rule to show cause why a peremptory or alternative writ of mandamus should not issue.
    Before Justices Teexi:habd and Katzexbach.
    Eor the relator, Frederic W. Schlosstein.

    Eor the defendants, William, A. Calhoun (Spaulding Frazer, of counsel).
   Pee Ctjbiam.

This is a zoning case. It is presented to this court upon a rule to show cause why a peremptory or alternative writ of mandamus should not issue to command the city of Orange and Thomas J. Dowling, its building and plumbing inspector, to issue a permit to the relator, Oxford Construction Company, for the erection of four five-story brick apartment-houses. The case is submitted on a state .of facts agreed upon by the parties. The facts agreed upon show that the relator is the owner of premises located at the northwest corner of Highland avenue and Lincoln avenue, in the city of Orange, having a frontage on Lincoln avenue of two hundred and sixty and forty-one hundredths feet, and on Highland avenue of one hundred and sixteen and fifty hundredths feet. On October 8th, 1925, the relator applied to the building and plumbing inspector of Orange for a permit to erect four five-story brick apartment-houses on the said lot in accordance with plans and specifications submitted. The inspector refused to issue the permit on the ground that it would contravene the provisions of the zoning ordinance of the city of Orange, passed May 11th, 1922. The agreed state of facts refers to schedules A and B annexed thereto, which contains the section of the ordinance pertinent to the present controversy.

The premises of the relator are located in residence A zone. In this 'zone the ordinance prohibits the erection of any building for use other than a dwelling for one family or for one housekeeping unit. An office or studio is permitted, also a municipal building, parks, public and parochial schools, churches, farms, gardens, nurseries and greenhouses, and, under certain restrictions, a private garage. Private schools, lodges, social and community centérs, recreation buildings are likewise prohibited, unless the written consent to the erection of the proposed building by the owners of eighty per cent, of the frontage of all the lots within two hundred feet of the property upon which it is proposed to build is filed.

Schedule B contains the following provision: “No part of any building shall be higher than the distance it sets back from the street line of each street on which it faces, except that along one side of a corner lot such set-back distance may be reduced by ten feet. No building shall exceed two and one-half stories in height, and the slope of the main roof or mansard shall not start above the middle of the height of the third story.” There then follows requirements as to yards, rear yards and side yards.

The relator relies upon the ease of Ignaciunas v. Risley, 98 N. J. L. 712, and Holding Corporation v. Hague, 2 N. J. Mis. R. 74, and the later cases which have followed these decisions. As to the set-back the relator relies on the case of Heller v. Village of South Orange, 3 Id. 1076. Counsel for the respondents has filed an elaborate brief in which it is argued that every .intendment is to be taken in favor of the validity of the ordinance, and that it is valid so far as it relates to the height of the building. The respondents also contend that any regulation that reasonably tends to protect the morals, health, safety and general welfare of a community is a valid exercise of the police power.

A large part of the brief is devoted to an effort to show that the zoning cases in this state, decided by the Court of Errors and Appeals, have been wrongly decided. This is not the court to which to address such an argument. It should be addressed to the Court of Errors and Appeals. The attempt to exclude apai'tment-houses from a residential zone is a question which, standing alone, has been met in the various zoning eases, and decided adversely to the contentions of the respondents. There is no basis for the refusal on this ground of the building and plumbing inspector of Orange to grant a building permit. The difficulty that we have met with in the present case is that the facts are not sufficiently set forth in the state of the case to enable us to determine whether or not the regulations in the ordinance with reference to the height of the building, requirements as to yards, rear yards and side yards, are within the proper exercise of the police power. If these provisions are general provisions applying throughout the city of Orange, then, if reasonable, they would be a valid exercise of the police power. If the provisions are merely designed to assist in carrying out the purpose of segregating different classes of buildings in different zones, then such provisions are unreasonable, discriminatory and ineffective to effectuate the purpose intended. There is no reason why an apartment-house should be limited as to height to two and one-half stories in one section of a city and be permitted to be built to a greater height in other sections of the same city. The facts stipulated in the state of the case are too meagre to enable us to pass upon this question in the present case. We will withhold the granting of a peremptory writ of mandamus, but allow the relator an alternative writ. This will enable the relator to show upon the return of the alternative writ such additional facts as will enable the court to determine whether the relator is entitled'to a peremptory writ of mandamus or the issuing of a building permit..


author: Pee Cukiam.

text:
    NORMAN W. CLARKE, PROSECUTOR, v. MORRIS L. LUBIN, DEFENDANT; NORMAN W. CLARKE, PROSECUTOR, v. BEATRICE LUBIN, BY MORRIS L. LUBIN, HER NEXT FRIEND, DEFENDANT.
    Submitted January 29, 1926
    Decided May 4, 1926
    Filed May 19, 1926.
    Evidence—Newly Discovered—District Courts—New Trials—> Record Not Sufficiently Complete to Determine Whether the Alleged Evidence was, in Fact, Newly Discovered—Application for Writ of Certiorari Not Made With Sufficient Promptness, Defendant Speculating as to the Outcome of the New Trials—Court Never Favors Suitor in Laches—Writs Denied.
    On application for writs of certiorari.

    Before Justices Tkenchakd and Katzenbach.
    Eor the prosecutor, Frank G. Turner.

    Eor the defendants, Samuel S. Ferster,

   Pee Cukiam.

This is an application for the allowance of writs of ceriiorari to review the action of the First District Court of Newark in granting a new trial to each of the plaintiffs iu the above-entitled causes. From the record submitted it appears that Beatrice Lubin, an infant, instituted by her father as next friend an action against Norman W. Clarke for negligence in driving an automobile which injured the said Beatrice Lubin. Morris L. Lubin, the father, also instituted an action against Clarke for the losses which he had sustained by reason of the injury to his daughter.

Both suits were tried before the First District Court of Newark. Judgments were rendered on September 4th, 1924, in favor of the defendant. On March 27th, 1925, the attorney for the plaintiff presented the, affidavit of one William Phillipson to the court, and made an application for the allowance of rules to show cause why new trials should not be granted upon the ground of newly-discovered evidence. The rules were allowed. They were made returnable on April 3d, 1925. On April 25th, 1925, the judgments were opened and the cases set down for trial on May 15th, 1925. The cases were retried. Judgment was rendered in favor of Beatrice Lubin for $500, and judgment was rendered in favor of Morris L. Lubin for $250. The defendant then made the application for writs of certiorari to review the orders allowing the new trial.

Counsel for the prosecutors relies upon section 17 of the District Court act, which provides that "in every case tried in any of said courts the judge may, if he sees fit, order a new trial to be had upon such terms as he shall think reasonable, and in the meantime stay proceedings provided that application for such new trial, except where the said application is based on newlv-discovered evidence, shall be made within thirty days after judgment.” This section of the act was construed in Flaherty v. Pack, 73 N. J. L. 103, by Mr. Justice Dixon, who held that, unless the application was based on newly-discovered evidence, that the court, after thirty dajrs, could not grant a new trial. We do not know that this construction of the act is questioned in the present proceeding. The District Court held that the affidavit of William Phillipson presented newly-discovered evidence. Prom reading the affidavit we have doubt as to whether or npt the testimony of Phillipson could be classed as newly-discovered eyidence. The affidavit states that Alin Tramm was with the affiant playing ball when the accident occurred, and that Tramm was a witness for the defendant. It might be inferred that Tramm had testified to facts which would show that the defendant was not responsible for the accident. The affiant says that he and Tramm Were playing ball when they heard a scream and ran to the place from which it came, and were informed that Beatrice Lubin had been run down by the automobile of Clarke as she was walking on the sidewalk, and that Tramm knew nothing of the accident, except what had been told him.

There are two difficulties to the acceptance of the prosecutors’ contentions with which we are confronted. The first is that the judge of the District Court has found as a fact that the statement of Phillipson with reference to the accident was newly-discovered evidence. This is the finding of fact. The second difficulty is that the testimony taken at the first trials is not made a part of the record, so we are unable to tell whether the statement of Phillipson is newly-discovered evidence, as we have not before us for comparison the testimony taken at the first trials.

We are also of the opinion that the application for the writs was not made with sufficient promptness. The defendant waited until the second trials to make the application. He speculated as to the outcome of the new trials. Upon losing he made the present application. This court never favors a suitor in laches. The writs will be denied.


author: Peb Curiam.

text:
    NICK VAN DER WEIDE ET AL., PROSECUTORS, v. THE BOARD OF PUBLIC WORKS OF PATERSON ET AL., RESPONDENTS.
    Submitted January 30, 1926
    Decided May 28, 1926.
    Taxes and Assessments—Assessment of Benefits for New Pavement—Notice of Hearing on Ordinance Duly Given, in Response to Which Owners of More Than Two-thirds of Lands Affected Filed Objections—Without Further Notice the Governing Body Proceeded to Declare the Improvement a Public Necessity—This is Held to Have Been Wrong—The Notice to Pass the Ordinance was Not Sufficient—The Interested Parties Were Entitled to be Heard on Latter Question— The Remedy was Not on Appeal to the Circuit Court—That Court is Empowered to Pass Upon the Fact of Public Necessity, but the Jurisdictional Right of the Board Should be Determined Upon Certiorari.
    On certiorari.

    Before Justices Trenchard, Katzenbach and Lloyd.
    Eor the prosecutors, Edward. E. Merrey.

    Eor the respondents, Randal B. Lewis.

   Peb Curiam.

The writ issued in this case brings before us an ordinance of the board of public works of Paterson providing for the improvement of certain streets in Paterson by the construction of a penetration pavement, and, providing further, that the cost of the improvement should be assessed against the property benefited to the extent of the benefits received. Notice of a hearing was given to the interested landowners, in response to which notice owners of more than two-thirds of the lands to be affected filed objections to the proposed improvement. Without further notice the hoard proceeded to declare the improvement a public necessity.

In this position of affairs, and before any further steps were taken under the ordinance, the present writ was allowed.

By stipulation between the parties it was agreed to waive all reasons except only “those applicable to the passage of the resolution above stated that the work was a public necessity.”

The act of 1917 (Home Rule act), chapter 152, section 10 of article 20, provides that—

“No local improvement shall be undertaken by a municipality where objections thereto in writing are filed by the owners of two-thirds in value of the lands proposed to be assessed for benefits accruing from such improvement. Such objection shall be filed with the clerk of the governing body before the final passage of the ordinance providing for such improvement. The question as to whether the necessary two-thirds have joined in such objections shall be determined by the governing body, which shall use for that purpose the last preceding valuation for the purpose of taxation; pro-* vided, however, that if the governing body shall determine that such local improvement is a public necessity, .then such municipality may undertake such local improvement notwithstanding such objection.”

The act further provides for an appeal of the determination of public necessity to the judge of the Circuit Court of the county in which the particular municipality may be located.

The complaint of the prosecutors is that the determination of the board of the question of public necessity of the improvement was made without notice to the property owners affected by the proposed paving, and we think the complaint is well founded.

It is clear 'that upon the determination of this question of public necessity would depend the obligation of the owners to pay for the improvement to the extent of the benefits received, for by the terms of the act, if decided affirmatively, the improvement becomes a local one, notwithstanding the protest of two-thirds of the land ownership. Of the purpose to determine this question no notice was ever given. The only notice was of an intention to pass the ordinance as a local improvement and assess for benefits accordingly. Upon this phase of the ordinance becoming nugatory by reason of the protest, it was open to the board to abandon the whole scheme, to pursue it as a public improvement, or to re-constitute the improvement as a local one by determining it to be a public necessity. It chose the last-named course, but in doing so we think it was of necessity acting judicially upon a matter vitally affecting the rights of the prosecutors, and could only do so by affording them a day on w'hich they could be heard.

The original notice of the passage of the ordinance gave no hint oE the subsequent action respecting public necessity, and hence no opportunity to be heard on the last-named question. This they were entitled to. Mead v. Passaic, 2 N. J. Mis. R. 953.

That the question of public necessity is a fundamental one on which the parties interested were entitled to be heard we think cannot be doubted, and it existed anterior to the determination of the fact of public necessity. The claim made in the respondents’ brief that the remedy in the present case is by appeal to the Circuit Court, is therefore without substance. That court is clothed with power to pass in review upon the action of the board in deciding the fact of public necessity, but it is without power to pass upon the jurisdictional right of the board to decide the question. Certiorari was therefore the appropriate remedy. On this phase of the case Mead v. Passaic, supra, is also in point.

The ordinance will be set aside, with costs.


author: Per Curiam.

text:
    HARRY KATZ ET UX., RELATORS, v. FRANK I. ACKERMAN, SUPERVISOR OF BUREAU OF BUILDINGS, PASSAIC, ET AL., DEFENDANTS.
    Submitted February term, 1926
    Decided May 25, 1926.
    Zoning—Refusal of Permit Based' Solely on Ground That Proposed Buifding is Within a Zoning District—Peremptory Writ Should Issue.
    On. rule for mandamus.

    Before Justices Parker, Black and Campbell.
    Eor the relators, Irving L. WerJcsman.

    Eor the defendants, Frederick S. Ranzenhofer.

   Per Curiam.

This case comes before the court on a rule to show cause why an alternative or peremptory, writ of mandamus should not issue to the defendants directing a building permit to issue to build a two-family dwelling-house at No. 117 Meade avenue, Passaic, New Jersey. An agreed state of facts is submitted in writing duly signed by the respective attorneys and filed, from which it appears the refusal to issue such permit is based solely on the ground that the territory in which the building proposed to be erected' is' within a zoning district.

After considering the facts, we think a peremptory writ of mandamus should issue directing a building permit to be issued in accordance with the facts, and such will be the order of the court.


author: Newman, J.

text:
    Passaic County Circuit Court.
    HARRY L. SHORTER, EXECUTOR, ETC., AND HARRY L. SHORTER AND CARRIE SHORTER, HIS WIFE, PLAINTIFFS, v. HARRY KRIGSTEIN AND BENJAMIN SINGER, DEFENDANTS.
    Decided May 25, 1926.
    Ejectment—Ascertainment of True Line Resolved by Jury Upon Second Trial in Favor of Plaintiff, and Will Not be Set Aside —Court Properly Took From the Jury Question of Adverse » Possession, Defendant Disclaiming Any Intention of Claiming Title Thereby—Verdict Not Against Weight of Evidence.
    On defendants’ rule to show cause.
    Eor the plaintiffs, Edward A. Marhley and David A. Newton, of Collins & Corbin.

    Eor the defendants, J. W. & E. A. De Toe.

   Newman, J.

The first question which the court submitted to the jury was the ascertainment of the true line according to the deeds. This question the jury solved in favor of the plaintiffs, and I cannot see that its finding in that respect is against the weight of the evidence. This was the second trial of that issue upon practically the same evidence with the same result, and under those circumstances trial courts are cautious about setting aside a second verdict. Brown v. Paterson Paper Co., 69 N. J. L. 474.

The next question which was submitted to the jury was whether there had been a practical location of the line by prior owners and an acquiescence by the respective' owners as to such location. The evidence on that score was not extremely specific, and the jury resolved that question against the defendants.

The court took from the jury the question of the consideration of adverse possession, and, it seems to me, properly so. Both the defendants and also their predecessor in title disclaimed any intention of claiming any property not embraced within the description contained in the deed, and disclaimed any intention of claiming title by adverse possession. This prevents a recovery on that ground. Folkman v. Myers, 86 N. J. L. 29.

Binding no error in the trial, and that the verdict is not against the weight of the evidence, the rule is discharged, with costs.


author: Pee Cuktam.

text:
    FRED J. REINHARDT, PLAINTIFF, v. G. W. TISDALE, INCORPORATED, A CORPORATION, AND JOSEPH A. BELLOTT, DEFENDANTS.
    Decided June 5, 1926.
    Negligence—Motor Vehicle Accident—Plaintiff was Struck by Car in Hands of Employe" of Defendant Company Who was Lawfully in Possession and Operating Car of Defendant Bellott, Taking Car to His Employer’s Garage for Repairs— Direction of Verdict in Favor of Defendant Bellott, and Verdict of Jury Against Defendant Company—Driver was Clearly in Service of the Defendant Company, and Court’s Refusal to Direct Verdict in Its Favor Sustained—Verdict Under Circumstances Not Excessive.
    On defendants’ rule to show cause.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Charles 8. Gray (Edward A. Markley, of counsel).

      Contra, Wall, Haight, Carey & Hartpence (Albert F. Conway and Charles C. Keutgen, of the New York bar, of counsel).
   Pee Cuktam.

The defendants obtained a rule to show cause, at the Essex Circuit of this court, why a verdict obtained by the plaintiff against the defendant corporation for $6,000 should not be set aside and a new trial ordered. The plaintiff’s action was against the defendant corporation and John A. Bellott. The court directed a verdict in favor of the defendant Bellott. The plaintiff used both to recover damages for injuries sustained by him arising out of the following circumstances: The plaintiff was in the employ of the Eleto Company on September 27th, 1925, and on that day operated for his employer a light automobile delivery wagon, which the plaintiff brought to a stop in front of 759 Clifton avenue, in the city of Newark, for the purpose Of making a delivery of a package. He reached into the body of the automobile to get the package, which he took and held in his left hand, and with his right holding on to the hand rail of the seat as he stood on the running board preparing to alight, his automobile was struck in the rear by the defendants’ car with such force as to throw the plaintiff from the car upon the asphalt pavement, with the result that his left hip was broken.

The day was dry and clear. There was no claim made at the trial, nor is it urged before us that the fact which caused the rear-end collision and the resultant injury to the plaintiff was not a negligent one on part of the operator of the offending car. The disputed question was, and is, whether the operator of the car was in the employ of either of the defendants at the time. At the close of the case counsel of the defendant Joseph Bellott moved for a direction of a verdict on his behalf “on the ground that his car was not operated at the time of the accident by his agent or servant.” The trial judge granted the motion. Counsel of the defendant corporation likewise made a motion on the same ground in behalf of the corporation. This motion was denied. Hence, the rule to show cause prosecuted by ft.

On this branch of the case the question presented for determination is whether there was any evidence from which the jury was warranted to find that the operator of the car át the time of the commission of the negligent act was in the employ of the defendant company. The facts are these: The operator of the ear was one Kerwin, who was in the employ of the defendant company. The owner of the car was Joseph A. Bellott, a physician, who at the time was the owner of two automobiles and was a customer of the defendant corporation. The defendant was the sales agent for Hupmobile ears in the city of Newark. Kerwin was the secretary and service manager of the defendant. The car in question was bought by Dr. Bellott from the defendant, and from time to time had the defendant make needed repairs to it. There had been a course of dealing between the parties during which time the doctor bought several automobiles from the corporation. On the morning of the accident Dr. Bellott called at the sales room of the company for the purpose of leaving the car there for the day to be repaired, and on being informed by Mr. Kerwin that the repairs could be done so he could have the ear back on the same day, the doctor told Kerwin that he had a Buick car which was at 190 Clifton avenue, and thereupon suggested to the former that he drive him in the Hupmobile to the place designated so that he could get and use his Buick ear in which to make his round of professional calls while the Hupmobile was undergoing repairs, and then he could return with the Hupmobile to the garage of the defendant corporation so that the repairs could be proceeded with. There was also proof that on previous occasions the defendant corporation furnished a man to drive Dr. Bellott where he wanted to go when he was leaving a car to be repaired. Accordingly, Kerwin undertook to drive the doctor to No. 190 Clifton avenue, where Dr. Bellott got out and left the Hupmobile, giving Kerwin directions as to the route to follow in returning to the garage of the defendant company, and Kerwin driving off alone, and had gone only a little distance when he collided with the Eleto Company’s automobile delivery wagon, as above detailed.

It is clear to us that the trial judge could not have properly directed a verdict for the defendant. In view of the undisputed facts that Kerwin was in the service of the defendant company, and in charge of its business, and was, at the time of the collision, on his master’s business, for its benefit, namely, taking the doctor’s automobile to his master’s garage for the purpose of having repairs made by his master for one of its customers, it seems incomprehensible to us on what sound legal theory the ease could have been properly taken from the jury, or how the jury could have found otherwise than a verdict for the plaintiff.

We find no merit in the reasons presented for a new trial based on alleged errors in the judge’s charge, and his refusal to charge defendants’ first, second, third, fourth, fifth, sixth and seventh requests to charge.

The trial judge charged: “If he was acting [referring to Kerwin] within the scope of his employment, and was the employe of O. W. Tisdale, Incorporated, and was executing the orders of his company and doing its work, actually engaged in serving it and he was negligent, the company is responsible.” He was clearly doing the company’s work and actually engaged in serving it when on his way with the automobile to its garage for the purpose of repairs. •

Lastly, it is urged that the verdict is excessive. The jury awarded the plaintiff $6,000. The plaintiff was in his sixty-first year at the time of his injury. His left hip was broken. He was in the hospital for treatment from September 27th, 1923, till December 1st, 1923, a little over two months. He returned to work on April 28th, 1924=, about seven months after the accident. He was earning $33 a week as driver and delivery man. -His loss of wages was about $1,000. His injuries'were very painful. His leg was shortened about an inch. We cannot say, under the circumstances, that the verdict is excessive.

Rule discharged, with costs.


author: Peb Cueiam.

text:
    ANDREW SOPKO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF EDWARD K. SOPKO, DECEASED, PLAINTIFF-RESPONDENT, v. RALPH NORRIS, FRANK NORRIS AND RICHARD WARD, DEFENDANTS-APPELLANTS; DORY BROWER, PLAINTIFF-RESPONDENT.
    Decided June 3, 1926.
    On appeal from the Hudson County Common Pleas Court.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    For the appellants, Lazarus, Brenner & Viclcers.

    For the respondents, Alexander B. DeSevo (Alexander Simpson, of counsel).
   Peb Cueiam.

The record in each case brought here on appeal shows that the court made an order that the verdict rendered by the jury he molded to meet the intentions of the jury. There were two verdicts recorded and from each order an appeal has been taken. No judgment, so far as the record discloses, has been entered on either of the verdicts. Hntil judgment is entered no appeal lies. The result is that each appeal must be dismissed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOHN MARTIN, PLAINTIFF IN ERROR.
    Submitted January 29, 1926
    Decided June 5, 1926.
    Crimes—Carnal Abuse—No Reason for Court to Direct a Verdict Because Prosecutrix Refused to Answer Some Questions— She was Only Ten Years Old, and Questions were Trivial— Girl’s Testimony was Not Uncorroborated—it was Corroborated in a Most Striking Way by Other Testimony as to the Presence in Defendant’s Room and Location of a Cross and Crucifix as Described by the Girl.
    On error to the Hudson County Court of Quarter Sessions.
    Before Justices Trenchard and Katzenbach.
    For the plaintiff in error, William Kavanagh.

    For the defendant in error, John Milton, prosecutor of the pleas.
   Per Curiam.

Defendant below, John Martin, was convicted in the Hudson County Court of Quarter Sessions of the crime of carnal abuse of a ten-year-old girl, and has sued out this writ of error.

He says that the verdict is against the weight of the evidence. We think it is not. An examination of the testimony of the girl and of the physician, when considered in connection with the denial of the defendant and the testimony of witnesses called by him, shows a proper case for the consideration of the jury, and their verdict cannot be said to be against the weight of the evidence.

We think that the court properly refused to direct a verdict of acquittal on the ground that the prosecutrix refused to answer certain questions. The girl was only ten years of age. She probably refused or failed to answer through fright. The unanswered questions were, for the most part, of a trivial nature. We see nothing in this phase of the case which we think would justify a reversal.

We think that there is no merit in the point that a verdict of not guilty should have been directed, because the testimony of the girl was uncorroborated. As a matter of fact the testimony of the girl was corroborated, and in a most striking and persuasive way, by other testimony as to the presence in the defendant’s room and location of the cross or crucifix as first described by the little girl.

We think that there is no merit in the point that the court erred in refusing to direct a verdict of acquittal at the conclusion of the defendant’s case on the grounds that the allegations of the indictment were not sustained by the evidence. We think, as we have already indicated, that the allegations were sustained by the evidence.

The judgment below will be affirmed, with costs.


text:
    MARCUS ROBBINS v. FARMERS’ MUTUAL FIRE INSURANCE ASSOCIATION.
    Decided June 9, 1926.
    - Insurance—Fire—Mutual Assessment—Contract Provided for Payment of Assessments Within Thirty Days After Notice, and Policy Stated That no Officer, Agent or Other Representative Had Power to Waive Any Provision—Due Notice of Assessment was Given fay Mail—Defendant Contended That Local Agent and Secretary Had Agreed to Waive Immediate Payment—Policy was Duly Voided Under Rules— Loss Occurred—Conditions Which are to be Performed After Loss Has Occurred May be Waived by an Officer or Agent, but Such Power Does Not Exist in Relation to Conditions and Provisions in the Policy Which Relate to the Formation and Continuance of Contract of Insurance and are Essential to the Building Force of Contract While it is Running.
    On defendant’s rule to show cause.

      Before Gummeee, Chiee Justice, and Justices Katas oh and Campbell.
    Eor the rule, Elmer King.

    Contra, Joseph T. Lieblich.

   Pee Cueiam.

This is an action brought to recover a fire loss on a policy of insurance issued November 13th, 1922, by the Farmers’ Mutual Fire Insurance Association to Michael Sosnowski (the assignor of the plaintiff), expiring by limitation of time on November 13th, 1925. The defendant is a mutual company. The fire losses against which it issues its policies are met by assessments on the notes of the policy holders given at the time the policies are issued. The present policy is in form the standard required-by our statute. Among its provisions are the following: (1) When there shall be claims against the company for losses, the board of directors may order the secretary to levy an assessment on the promissory notes held by the company for such a percentage as will pay said claims and the cost of assessment and collection; a notice of the amount of each assessment mailed to each member shall be deemed to have been duly and legally served upon him. In case any member shall neglect or refuse to pay his assessment * * * within thirty days from the date of the notice thereof, his policy shall immediately thereafter become null and void. (2) This policy is made and accepted subject to the foregoing stipulations and provisions, * * * and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy, except,” &c.

Fire losses having occurred during the year 1923, an assessment was levied to pay such losses, and a notice of such assessment was issued on October 1st, 1923, to the various policy holders. The fact was undisputed that a copy of this notice was mailed to Sosnowski on October 11th, 1923. It contained a statement of the amount of the assessment upon his premium note, and concluded as follows: “In default of payment within thirty days from the date of this notice, your policy will be mill and void.” Sosnowski on the witness-stand denied that he had received the notice mailed to him, but testified that on the 12th of November, 1923, between eight and nine o’clock in the morning, he went to the office of' the local agent of the company, in Hackettstown, a Mr. Wade, and made the following statement to him: “Mr. Wade, my time has come to pay the assessment,” and I asked him, “I am a little short of money. What can we do? I cannot pay it right now.” He further testified that Mr. Wade thereupon called up the secretary of the company on the telephone, and, as a result of that conversation, informed him (Sosnowski) that, if he would pay the assessments before any other assessment was due, it would be all right.

The fire, which is the basis of the present litigation, occurred on December 13th, 1923; but prior to that time the defendant had notified the insured that his policy had become null and void for failure to pay the assessment referred to in the notice mailed on October 11th. In this situation the defendant moved for the direction of a verdict on the ground that its liability on the policy had ceased to exist prior to the occurrence of the fire. This motion was refused, the court considering that there were two questions to be determined by the jury—first, whether the notice of the assessment had been actually received by the insured, and second, if it had, whether the enforcement of the forfeiture clause had not been waived by the combined action of the secretary of the company and the local agent, Wade. We think there was error in this view. By the acceptance of the policy, Sosnowski agreed that a notice of the amount of the assessment mailed to him should be deemed to have been duly and legally served upon him. By the very terms of this provision the mailing of the notice, which was undisputed, was legal service. We cannot concur in the view of the court that the promised extension of time by the secretary and the local agent, if proved, was a waiver of the forfeiture clause. While it is settled that conditions in the policy which are to be performed after a loss has occurred may be waived by an officer or agent of the company, it is equally well settled, we think, that no such power exists with relation to the conditions and provisions in the policy which relate to the formation and continuance of the contract of insurance, and are essential to the binding force of the contract while it is running. Carson v. Jersey City Insurance Co., 43 N. J. L. 300; Dimick v. Metropolitan Insurance Co., 69 Id. 398.

For the reasons above indicated, we conclude that the motion to direct a verdict should have been granted.

The rule to show cause will be made absolute.


author: Pee Curiam.

text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW. JERSEY, PLAINTIFF-RESPONDENT, v. BOWMAN F. JONES, PROSECUTOR.
    Submitted January 30, 1926
    Decided June 7, 1926.
    Medicine and Surgery—Practice Without Authority—Act Which Allows Arrest, Prosecution, Fine, Imprisonment on Information and Belief in Allowing a Warrant to Issue for Arrest Upon Hearsay Evidence, Probably Not Unconstitutional, but it is Sufficient in This Case to Say That no Reason Filed in This Case Challenges the Constitutionality, nor was the Question Raised in the Court Below—Trial Without Jury Constitutional—Several Offenses Were Not Included in One Complaint—Practicing Medicine Without Authority, While a Continuing Offense, is a Single Offense.
    On certiorari, &c.
    Before Justices Trenchard and Katzenbach.
    For the prosecutor, Henry J. Stanfield and William V. Azzoli.

    For the respondent, Edward L. Katzenbach, attorney-general, and Grover G. Richmond, second assistant attorney-general.
   Pee Curiam.

Jones was convicted in the First District Court of Newark upon a charge of practicing medicine and surgery without a license contrary to the provisions of section 10, chapter 221 of Famph. L. 1921. This writ brings up for review that conviction.

The position of the prosecutor is thus stated in his brief:

“The prosecutor has filed his reasons, and contends, first, that the act and amendments thereto, under which he was prosecuted and found guilty, is unconstitutional, in that it permits the prosecutor to be arrested, prosecuted, fined and imprisoned and his property confiscated without due process of law on information and belief, in allowing a warrant to issue for the arrest upon hearsay evidence, and that he is deided his right by jury trial and his constitutional rights thereby abridged. Secondly, that the"warrant charges and accuses the prosecutor with the commission of a number of offenses in one complaint, thereby compelling the prosecutor to answer a series of charges and accusations in one complaint. Thirdly, that the complaint charges the prosecutor with an offense of which he was formerly tried and for which he is again placed on trial with other offenses, subjecting the prosecutor to a second jeopardy for the same offense.”

With respect to the first contention, that the act and amendments thereto “is unconstitutional, in that it permits the prosecutor to be arrested, prosecuted, fined and imprisoned and Ms property confiscated without due process of law on information and belief in allowing a warrant to issue for the arrest upon hearsay evidence ” we are inclined to think that is not so. But we think it is a sufficient answer to say that no reason filed in this court challenges the constitutionality of the statute upon the ground that it permits of an arrest “on information and belief in allowing a warrant to issue for the arrest upon hearsay evidence,” nor was such question raised in the court below.

With respect to the prosecutor’s contention that the statute is unconstitutional because it provides for trial without a jury, it is a sufficient answer to say that in this court we have held the act to be constitutional as against this objection. State Board of Medical Examiners v. Buettel, 131 Atl. Rep. 89.

With respect to the contention that the “warrant” or complaint charges several offenses in one complaint, we think that an examination thereof discloses that it is not so. We think that it charges the offense of practicing medicine and surgery contrary to the provisions of section 10 of the act during a specified period of time, and that, while a continuing offense was a single offense, nevertheless, and it was for a singe offense of violating the act forbidding the practice of medicine without a license, that the defendant was convicted.

With respect to the contentiofi that the complaint charges the prosecutor with an offense of which he was once formerly tried, for which he is again placed on trial, thereby subjecting the prosecutor to a second jeopardy, we think that a careful reading of the complaint shows that contention to be without merit. It discloses that the former offense charged in the complaint relates to another and different period of time from that charged in the complaint as a second offense, and the. proof at the trial related to and showed conclusively the commission of such second offense as distinguished from the former offense.

We remark that the evidence before the trial judge fully supports the conviction.

The judgment of conviction will be affirmed, with costs.


text:
    ABRAHAM PORTNOFF ET AL., RELATORS, v. FREDERICK BIGELOW, BUILDING SUPERINTENDENT, ETC., ET AL., RESPONDENTS.
    Argued May 4, 1926
    Decided June —, 1926.
    Zoning—Public Garage in Midst of a Continuous Block of Closely Built Dwelling-Houses—Prosecutor Has Failed to Show Sufficient Ground for Writ of Mandamus—Zoning Ordinance, Like Other Ordinances, May be Reasonable in Some Aspects and Unreasonable in Others—Presumption is That it is Reasonable, and Burden of Proving Otherwise is on Prosecutor— Court Unable to Perceive Anything Unreasonable in Forbidding Large Public Garages so Located.
    On rule to show cause for a mandamus.

    Before Justices Parker, Black and Campbell.
    Por the relators, Harry A. AugenblicJc.

    Por the respondents, Jerome T. Cong letón and Charles M. Myers.

   Pee Curiam.

The relators, owners of land in Newark on the west side of Belmont avenue, about one hundred- and fifty feet south of Alpine street, desire to build thereon a public garage to accommodate fifty cars, and in front of it some stores to be rented for business. With the exception of two stores on the Alpine street corner, and a row of individual private garages in the interior of the block, said block is exclusively residential and entirely built up, as also is the entire block east of Belmont avenue and directly opposite. Permit was refused on the ground that the lots in question and surrounding territory are zoned for residence purposes, and relators, conceiving such restriction to be unwarranted in law, apply for a writ of mandamus.

We think they have failed to show sufficient ground for such a writ. Mandamus is not awarded except where the legal obligation to perform the act is clear. Nicholson, &c., Co. v. Newark, 35 N. J. L. 396; Secaucus v. Kiesewetter, 83 Id. 227; Connolly v. Smith, 86 Id. 466; Uszkay v. Dill, 92 Id. 327; Browne v. Lee, 98 Id. 1. Relators’ claim is, and must be, that the provisions of the zoning ordinance, so far as the same affect the property in question, are an unreasonable exercise of the police power. A zoning ordinance, like other ordinances, may be reasonable in some aspects and unreasonable in others. The presumption is that it is reasonable, and the burden of proving it otherwise is on the prosecutor. Neumann v. Hoboken, 82 Id. 275, 278, and eases cited; Hench v. East Orange, 2 N. J. Mis. R. 510. In the latter case this court refused a mandamus to permit the erection of sixteen individual garages. We think the present case still stronger as a basis for similar refusal, as we are quite unable to perceive anything unreasonable about forbidding a large public garage in the midst of a continuous block of closely built dwelling-houses.

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


text:
    HARRISON R. VAN DUYNE, INCORPORATED, RELATOR, v. WILLIAM H. SENIOR, BUILDING INSPECTOR, AND THE TOWN OF MONTCLAIR, NEW JERSEY, RESPONDENTS.
    Argued May 5, 1926
    Decided June 7, 1926.
    Building Ordinances—Apartment-Houses Restricted to Three . Living Stories and to Fireproof Construction—Case Presented is in Class Justifying an Alternative Writ.
    Before Justices Black and Campbell.
    Eor the relator, William Hamilton Osborne.

    Eor the respondents, George B. Beach and Albert G. Wall.

   Per Curiam.

This matter is before the court on a rule to show cause why a peremptory or alternative writ of mandamus should not issue to compel the building inspector of Montclair to issue a permit for the erection of an apartment-honse on property known as the Mountain House site.

The building as designed will be of fireproof construction, and contemplates the housing of thirty-four families. The main building will be eight stories in height with a tower extending two stories higher.

Application for the permit was made December 2d, 1925, and the permit refused December 21st, 1925, upon the ground that the plans did not comply with chapter 16, section 1 of “An ordinance to supplement an ordinance entitled ‘An ordinance to regulate and control the inspection, construction, alteration and repair of buildings in the town of Montclair,’ ” adopted December 27th, 1921, which supplemental ordinance was adopted June 10th, 1924.

This section of the ordinance referred to provides that every building to be used as an apartment-house designed to house more than six families shall not exceed three living stories in height and shall he fireproof construction.

We feel that it is not necessary for us to pass upon the questions raised under this rule to show cause further than to say that the case presented is such as canses us to conclude that an alternative writ of mandamus he awarded and may issue upon a proper rule being entered.


author: Kooher, Advisory Master.

text:
    Essex County Orphans Court.
    In the matter of the estate of Catherine McDonald, deceased.
    [Decided May 24th, 1926.]
    Wills—Accounting—Executor Prays Allowance for a Bill for Services Rendered During Testator’s Life—Testatrix Lived With Executor and was Looked Upon as a “Second Mother” —She Promised to “Pay Him Well” for His Services, &c.— Case Comes Within Rule In Dlsbrow v. Durand, Where Services Rendered in the Family are Considered Reciprocal —Claim Not Allowed.
    On exceptions to account.

      Mr. William A. Lori, for the accountant.

      Mr. Walter G. Ellis, for the exceptant.
   Kooher, Advisory Master.

Catherine McDonald died a resident of East Orange on February 11th, 1924, leaving a last will and testament in which Frank E. McGuirk was named as executor. On March 1st, 1924, the will was admitted to probate. The executor having failed to make an accounting, a petition on behalf of .the residuary legatee was filed, which resulted in the filing of his account.

In and by his said account the executor prayed allowance for the sum of $2,432 claimed by him as due to him “for work and labor performed and services rendered to testatrix.” To this item an exception was taken by the residuary legatee.

Catherine McDonald had been married in Ireland many years ago, but came to this country unaccompanied by her husband. While living in Ireland, Mrs. McDonald became acquainted with the McGuirks, who formerly resided there, and when she came to this country she went to their home to live, residing with them as a member of their family. Prom time to time she went out to service as a domestic, hut always came back to the McGuirk household as her home. During the portion of the time she was employed as a domestic during daytime only, returning to the McGuirk home to sleep. During the last years of her life one of the McGuirk hoys came home to reside, and, by reason of lack of room in the McGuirk household, testatrix rented a room, where she lived, constantly visiting the McGuirks, however.

The executor, Prank E. McGuirk, testified that the service rendered by him covered a period of over twenty-five years; that he arrived at that sum by computing the sum for “a certain length oí time” on the basis of $5 a week. He testified that he thought $5 a week was very little, and the minimum sum to which he was entitled. He further testified that at no time did he ever make any request for payment from Mrs. McDonald; that the services performed by him were reading to her, taking her back and forth to New York, and supplying her with newspapers after he entered into the newspaper business. Pie says that Mrs. McDonald “lived in my house from the time I was a baby in the cradle. I never had any reason to keep any account for taxicab services, gifts to her of papers served to her, and had no reason to render any account. It was services performed at her request for which she told me I would be well paid.” Later on he stated that the amount due him was computed at the rate of $8 a month. The accountant further testified, in response to the question, “She was a sort of second mother to you, I suppose?” A. “Just about the same. I was her little hoy, as she called it.” He further testified, “I couldn’t consider her much different Ihan I could my mother, except she was anxious for me to do these things, and was always willing to have; me compensated for them.”

Charles J. Zeglor, who testified on behalf of the accountant, says that he is a teller in the Orange Savings Bank, whore Mrs. McDonald had an account; that ho was well acquainted with testatrix, and, in a measure, was made a confidant by her; that on numerous occasions she consulted him as to the advisability of “attaching the name of her boy, as she called him, to her bank account, meaning Prank E. McGuirk, the accountant; that these conversations occurred on numerous occasions;,, that he advised her to do so, and that her answer was she would do it.’* Asked if testatrix gave any reason why she wished to take this step, her reply was that “Mr. McGuirk was so good to her, always talking of him as her boy.”

• Mary A. Wheeler, a sister of accountant, testified that her brother looked after testatrix and that “he did a whole lot for her; he wrote and he would read for her, or run errands for her; take her papers. When she got old, here of late years, he used to take her food -and visit her down in East OraTnge, and bring her everything she wanted.” She further testified that testatrix lived in her home. “We had her there, just a second mother.” She further testified as follows: “I have heard her say that at her death he would be paid.” Q. “Did she say how he was to be paid at her death?’* A. “She .always would have, I think, a little money tucked away. ‘When I die my boy will get it, he will be well paid.* **

The picture presented by the testimony in this case is that of a testatrix, a friend of many years* standing, coming into the McGuirk family before the accountant was born, helping to rear him and the rest of the children, regarding them as her own and being regarded by them, as testified to by the accountant himself, as a second mother. There is nothing in the testimony showing any agreement by Mrs. McDonald to pay for the services of accountant,, which consisted, from boyhood up, in doing those things which he would naturally do for his own mother, without expectation of charging therefor, and it is evident that testatrix must be regarded, for the purpose of this proceedings, as though she were the mother of the accountant.

The case which would seem to control the matter under consideration is Disbrow v. Durand, 54 N. J. Law 343, 345, where Chancellor McGill, speaking for the court of errors and appeals, used the following language:

“Ordinarily, where services are rendered and voluntarily accepted, the law will imply a promise upon the part of the recipient to pay for them; but where the services are rendered by members of a family, living as one household, to each other, there will be no such implication from the mere rendition and acceptance of the services. In order to recover for the services, the plaintiff must affirmatively show either that an express contract for the remuneration existed, or that the circumstances under which the services were rendered were such as exhibit a reasonable and proper expectation that there would be compensation. The reason of this exception to the ordinary rule is, that the household family relationship is presumed to abound in reciprocal acts of kindness and good-will, which tend to the mutual comfort and convenience of the members of the family and are gratuitously performed; and where that relationship appears, the ordinary implication of a promise to pay for services does not arise because the presumption, which supports such implication, is nullified by the presumption that between members of a household services are gratuitously rendered. The proof of the services, and as well of the family relation, leaves the case in equipoise, from which the plaintiff must remove it, or fail.”

The services performed by McGuirk were merely services rendered to one whom he himself states he regarded as his second mother. This being so, the burden is upon accountant to prove an express contract with the testatrix that he should be remunerated for his services. This he has failed to do. .

It may have been that testatrix had the intention to compensate him for those services. In her will she devised to him certain lands in Caldwell. McGuirk says that he purchased those lands from her by paying her $2 a week. The evidence on this score is so confusing that little reliance can be placed upon it. The fact is that she conveyed these premises to him during her lifetime.

If it be contended that the rule laid down by Chancellor McGill in Disbrow v. Durand, supra, must be limited to blood relatives only, the answer is found in the same ease, where it was held that the family relation contemplated in this exception to the ordinary rule is not limited by propinquity of kindred. Where there is a household relation, it will embrace, not only remote kindred, but also those who stand in the place of kindred.

Attention has been called to the case of In re James Mullin, recently decided in this court, wherein an executrix was allowed, in part, for services rendered her mother during the lifetime of the testator. That case, however, was decided upon the authority of DeCamp v. Wilson, 31 N. J. Eq. 656, where the rule is laid down that where a daughter rendered to an old and helpless mother services which, if' not rendered by her, must have been obtained from a stranger, for compensation, a presumption will arise that she was to be paid for such service. In the Mullin Case accountant unquestionably rendered to decedent indispensable service for a certain period of time, service which, if not rendered by accountant, necessity would have required to have been performed by others, and it was- for this reason, and this reason alone, that compensation was allowed in- that case.

In the case under consideration the nature and character of the service performed, as well as the family relation, leaves the case in equipoise, from which the accountant must remove it or fail.

The only testimony in the nature of an agreement on the part of testatrix to pay McGuirk for his services are loose phrases, such as he would be compensated after death of testator, and the like. There is nothing even approaching a semblance of a contract, and it is well settled that services rendered on a mere expectation of a legacy is not a good cause of action. Stone v. Todd, 49 N. J. Law 274.

Eor the above reasons, I will advise' a decree allowing the exception.


author: Bunyon. J.

text:
    Warren County Common Pleas Court.
    HARLAN FISH, PLAINTIFF, v. KARL STOLL, DEFENDANT.
    Decided May 28, 1926.
    Negligence—Injuries Sustained Through the Handling of a Loaded Revolver—New Trial Asked on Ground of Newly-Discovered Evidence—A New Trial Will Not be Granted When the Existence of the Alleged New Evidence Could Have Been Ascertained by Exercise of Reasonable Diligence Before Trial—The Alleged Evidence, Also, Only Tends to Discredit Plaintiff’s Witnesses and is Not of a Convincing Character—Verdict Not Against Weight of Evidence—Rule Discharged.
    On action at law. On defendant’s rulo to show cause.
    For the rule, John II. Dahlke and Harry Adams (of the New York bar).

      Contra, Egbert Rosecrans.

   The opinion of the court was delivered by

Bunyon. J.

This was an action brought to recover for injuries sustained through the negligence of defendant in handling a loaded firearm. The answer was a general denial. The trial resulted in a verdict by a jury in favor of the plaintiff. Upon allowance of this rule leave was granted to take testimony of newly-discovered evidence.

The principal contention .is that a new trial should be granted because of the so-called newly-discovered evidence. A new trial will not be granted upon evidence alleged to be newly discovered, the existence of which could have been ascertained by exercise of reasonable diligence before trial. Christie v. Petrullo, 3 N. J. Adv. R. 1012, 1015; Hoban v. Sandford & Stillman Co., 64 N. J. L. 426, 437.

There has been no attempt to show in the present case that this evidence was not available at the time of trial, or that it could not have been readily discovered before trial by the use. of due diligence. On the contrary, a reading of it justifies the conclusion that the opposite is the fact.

This evidence now presented is open to another criticism in that it only tends to discredit plaintiff’s witnesses, and a new trial will not be granted for such. Den v. Geiger, 9 N. J. L. 225, 239; In re Roberson, 95 N. J. Eq. 672, 675.

Furthermore, it is not of such a convincing character that its admission upon another trial would probably change the result.

It is also contended that the verdict is against the weight of evidence. But the argument falls far short of being convincing that the verdict was the result of mistake, passion or prejudice. Queen v. Jennings, 93 N. J. L. 353, 358.

Lastly, it is argued that the evidence is insufficient to justify the verdict. That the witnesses for the defense outnumbered those of the plaintiff does not in itself establish the weight or insufficiency of the evidence. State v. Karpowitz, 98 N. J. L. 546, 549.

The remaining reasons assigned not having been argued, they are considered abandoned.

The rule to show cause will be discharged.


author: Kochee, Advlsoky Mastee.

text:
    Essex County Orphans Court.
    In the matter of the estate of Solomon B. Beidelman, deceased.
    Funeral Benefits—Accounting—Decedent Left “Benefits” in a Secret Society Which Were Paid to Widow and by Her Made a Part of His Estate—She Now Prays Its Return Under the Plea That She Did Not Know it was Her Own—■ Such Funds Follow the Contract With the Society—In This Case it Provided Payment to Widow, and if None, Then to other Kinsman—Question Turned on the Meaning of “Funeral Benefits”—Is it Synonymous With Funeral Expenses or Does it Mean a Beneficial Return to the Beneficiary?—Held, That the Contention of the Widow Should Prevail.
    On exceptions to account.

      Mr. Charles A. Woodruff, for the exceptant.

      Messrs. Child, Young & Howe, for the accountant.
   Kochee, Advlsoky Mastee.

Solomon B. Beidelman, who died on February 17th, 1923, was, at the time of his death, a member of Anthony Wayne Council, No. 159, Junior Order United American Mechanics, Newark, New Jersey. Under the by-laws of said order and council there became payable at decedent’s death the snm of $1,000. Shortly after the death of decedent the Junior Order above mentioned gave to Mrs. Ida Lillian Beidelman, the widow of deceased, a cheek payable to her order for the sum of $1,000 due from said order upon the death of the member, Solomon B. Beidelman, and at the suggestion of her co-executor the widow endorsed said check and caused the same to be deposited in the bank account of the estate and there mingled with the funds of the estate.

In the account of her eo-exeeutor of the estate now before the court, accountant charges himself, among other things, with the $1,000 in question as a part of the assets of the estate, and an exception is taken to such accounting on the ground that it was the property of the widow, and that at the time of endorsing said check to the credit of the estate she had no knowledge or information as to whether said funds rightfully belonged to her self or to the estate.

The question to be solved, therefore, is who was entitled to the fund of $1,000 paid by the Junior Order upon the death of its member, Solomon B. Beidelman.

It is settled that the constitution and by-laws of an order of this character constitute the contract entered into between the member and the order. Radiant Temple, &c., v. William R. Piper, 62 N. J. Eq. 565. Copies of the constitution and by-laws of the Junior Order, which were stipulated to be true copies, were placed in evidence, and it is from the examination of these documents that the person entitled to the ownership of the funds in question must be determined.

Section 4 of the constitution provides that—

“Twelve months after initiation of a member owing less than thirteen weeks’ dues, in the event of his death, such sum as shall be named in the by-laws of each council as funeral benefits [which amount shall not be less than $100] shall be paid to the widow [provided that a certificate has not been granted the member as named in sections 6 and 7 of this chapter], .

Then follow provisions for the payment of said sum: If there be no widow it is paid to the children of the deceased; if no child or children, then the sum is to be paid to the parent or parents; if no parent or parents, then to the brothers and sisters; ■ “if there are no" relatives as above named the funeral benefits revert to thé council.”

The real issue raised is the construction of the term “funeral benefits.” On behalf of accountant it is insisted that these words should be construed to mean funeral expenses. In other words, that the fund in question was provided by the Junior Order for paying the funeral expenses of deceased. On the other hand, on the part of the ex-ceptant, it is contended that the proper construction to be placed upon the term “funeral benefits” is that it is thereby intended to designate a beneficial return to the beneficiary, and that it is entirely distinctive from that of funeral expenses.

Erom the section of the constitution above quoted it would appear that the contention of exceptant should prevail. It will be noticed that that section provides for payment to the widow, if there be one, and if not, among various other blood relatives of the deceased, and concludes with the words "if there are no relatives as above named, the funeral benefits revert to the council,” and that there is no suggestion that the council shall appropriate that sum, or any other sum, towards the funeral expenses of deceased. It is further to be noted that this section specifically names the beneficiaries who shall receive the funds.

Recurring to the section of the constitution just quoted, it will be recalled that it alludes to a certificate granted the member in sections 6 and 7 of that chapter. Section 6 provides as follows:

“Section 0. A member may change his beneficiary by making application to the board of managers through Ms council for permission to do so, provided, however, that said beneficiary must be related to said member by blood * *

It is perfectly apparent that this section permits a member to change his beneficiary at will, and is persuasive of an intent that the benefits due upon the death of the deceased member may be paid to any certain designated beneficiary.

Section 7 of the constitution is as follows:

“Section 7. A member wishing his council to see that he is properly buried may apply to the hoard of managers for a certificate directing the council to take charge of his remains and bury the same as per his instructions in said certificate and pay the balance to his beneficiary as named in section 4 of this chapter. If there are no such beneficiaries the balance will then revert to the council. All applications must be made on the blanks provided by the state council. Attached to same must be a full statement from the member as to the reason for making said application signed by the member. After an investigation by the board of managers, if they are satisfied, they may grant the request * *

Construing sections 4 and 7 of the constitution together, it would appear that if there were no relations, and the funeral benefits revert to the council pursuant to the provisions of section 4, and if the member had not applied to the board of managers for a certificate directing the council to take charge of his remains and bury the same as per his instructions, the council would be under no obligation to use the fund in question for burial purposes. This would seem to negative the idea that the primary purpose underlying the payment of the fund in question was to provide a fund with which to pay the expenses of the funeral of the deceased, but it was rather the purpose of the council in adopting the constitution to provide a fund in the nature of insurance for the benefit of the person named as beneficiary either in the constitution itself or designated by the member under section 6 of that instrument. The word “beneficiary” is constantly used in this instrument, and the whole scheme would seem to indicate a beneficial payment and not the matter of burial expense.

There appears to be no reported case directly in point. The case of Carpenter v. Alert Council, reported in 26 N. J. L. 373, comes nearest in point. In that case the by-laws provided that the payment shall be made to the widow or near relative of the deceased. There was no widow, and the court construed the meaning of “near relative” to be next of kin, and excluded the administrator or executor of deceased from any claim upon the funeral benefit. It was held, however, that the mere fact that the administrator paid the funeral expenses out of the estate was an irrelevant circumstance; the direction of the constitution and bjr-laws as to payment being explicit inust be obeyed.

The result is that the widow is entitled to the fund in question and that the exception should be sustained, and a decree to that effect will be advised.


author:
Chables E. Cobbix,
      Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    ANNA LYOLD, PETITIONER, v. CAMPBELL SOUP COMPANY, RESPONDENT.
    Injury to Arm—Petitioner Failed to Show That the Injury Which Resulted in Death Resulted From the Employment.
    On determination and dismissal.
    Eor the petitioner, Joseph B. Tyler.

    Eor the respondent, Richard, W. Baker.

   A formal petition having been filed in the above matter asking for compensation, under the terms of the Compensation law of this state, and an answer having been duly filed, the same came on before me for a formal hearing in Camden, on December 3d, 1925, the petitioner being represented by Attorney Joseph B. Tyler and the respondent by Attorney Bichard W. ’Baker.

The petitioner, Mrs. Anna Lloyd, testified in her own behalf, and Dr. Arts was also called to testify for her, and Dr. Buzby was called by the petitioner to testify as to the injury from which the deceased was suffering on September 25th, 1924, and also to give the history of the case as given to him by the deceased. On behalf of the respondent, Drs. Summerill, Lewis, Brennan, Buzby and German were called to testify.

The petitioner alleged that her husband, Edwin Lloyd, received an accident arising out of and in the course of his employment, on September 22d, 1924. She further alleged that the injury suffered by the deceased to his elbow developed into bursitis of the elbow, for which he was treated by Dr. Buzby at the respondent’s plant on September 25th. Later, Edwin Lloyd died at the Cooper Hospital, on October 24th, 1924, from a condition, diagnosed as carcinoma of the head of the pancreas. It is alleged by the petitioner that the death was brought on and hastened by the alleged injury by accident on September 22d.

The respondent showed that the deceased was in poor condition, dating back to April, May and June, 1924, at which time he was suffering from jaundice and a malignant condition. The respondent further went on to show that there was no evidence of any injury sustained by accident while the deceased was working for the respondent, and then produced doctors to trace the medical condition of the deceased from the date of the alleged accident until the time of the death to show that the condition of the elbow was consistently improving "and had almost healed at the time the .deceased was admitted to the hospital on October 22d. The respondent further showed that the death was due to a. malignant condition and could not have been caused by the alleged accident, and then further went on to show, by Dr. Buzby and Dr. German, that the weakness and loss of blood because of the bursa was merely a temporary condition, and that the deceased had recovered from this condition before the malignant condition became worse and caused the death of the deceased.

After carefully going over the evidence in this case, I find that'the petitioner has failed to sustain the burden of proving that the deceased suffered an injury by accident arising out of and in the course of the employment. There was no evidence that the alleged injury arose out of or in the course of the employment, and the only thing that there was that indicated that there was an injury by accident was the history of the 'case given by the deceased to Dr. Buzby on September 25th. This history was merely evidential as to treatment by Dr. Buzby, and was not evidential as to whether or not an injury occurred by accident. Therefore, I find, not only that the petitioner failed to show that the alleged injury arose out of and in the course of the employment, but has also failed to show an injury by accident.

I further find, as a matter of fact, that the evidence does not sustain the burden of proving that the death was in any way caused or aggravated by the alleged injury by accident. Both Dr. Buzby and Dr. German testified that the bursitis had greatly improved, and the deceased was better about two weeks after the alleged injury. Their testimony showed that any temporary weakness sustained by the deceased because of loss of blood due to the bursa had been overcome by the improvement of the deceased, and that the general condition was better until the malignant condition, which was not caused by the alleged accident, and which was the direct cause of the death of Mr. Lloyd, set in more violently and rapidly caused the deceased to grow worse. Even Dr. Arts, testifying for the petitioner, stated that when he last saw the deceased early in May, he did not expect him to last as long as a year because of the malignant condition. Accordingly, I cannot find that the evidence discloses any hastening of death because of the bursa by any aggravation of a preexisting condition.

I, therefore, find that the petition in this case should be dismissed, and the same is hereby dismissed without costs to either party.

Chables E. Cobbix,

Deputy Commissioner.


author:
Harry J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CHARLES METRAU, PETITIONER, v. INTERSTATE MILK AND CREAM COMPANY, RESPONDENT.
    On determination and rule for judgment.
    Eor the petitioner, David Roshein.

    Eor the respondent. Travelers Insurance Company.

   The deputy commissioner was asked to approve this compromise and enter an award on the same.

I, therefore, find and determine that the petitioner is entitled to temporary compensation for seventeen weeks from the date of said accident, January 1st, 1926, the full amount of which has been paid, and compensation for permanent disability for sixty-two and one-half weeks at the rate of $17.00 per week, being twelve and one-half per cent, of total permanent disability, twenty-five weeks of which has already been paid, the balance to be paid at the rate of $17.00 per week.

* * $ * * * *

Harry J. Goas,

Deputy Commissioner.


text:
    JESSIE CATTERALL, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. OTIS ELEVATOR COMPANY, DEFENDANT.
    Decided June 10, 1926.
    Negligence—Death of Workman Employed on an Elevator Shaft —Workman was Employe of Subcontractor—Engaged in Installing Elevator Doors—Defendant, a Subcontractor Engaged in Installing Elevators—Defendant in Charge of the Elevators Which Could Not be Moved Except Upon Order of Their Foreman—Elevator was Moved, Resulting in Employe’s Death—It was for the Jury to Say Whether Defendant’s Foreman Knew or Might Have Known That the Shaft was to be Used on That Day, and if so, Whether Defendant Company Used Reasonable Care Commensurate With the Danger1—Held, That Plaintiff’s Verdict was Not Against Weight of Evidence nor Contrary to Charge of the Court.
    Oil defendant’s rule to show cause.
    Before Gummeee, Chief Justice, and Justices Kaliscir and Campbell.
    For the rule, Waller L. Glenney (Fdwin F. Smith, of counsel).

      Contra, J. Raymond Tiffany.

   Pee Cubiam.

A verdict was rendered in the Hudson Circuit in favor of the plaintiff and against the defendant for $22,500. Defendant was allowed a rule to show cause why the verdict should not he set aside and a new trial granted.

Of the four reasons assigned for a new trial under the rule to show cause only two of them are relied on and argued in the brief of defendant’s counsel. 1. That the verdict of the jury was contrary to the weight of the evidence. 2. That the verdict of the jury was contrary to the charge of the court.

The plaintiff brought her action under 'the Death act against the defendant company to recover the pecuniary loss sustained by her, in the death of her husband, alleged to have been caused by the negligence of the defendant company’s servants. The facts are these: In June, 1923,''Macy & Company was causing to be erected a new addition of many floors to its store at Thirty-fourth street, in the city of New York. The general contractor was Eidlitz & Company. There were several subcontractors, among whom was the Otis Elevator Company, the, defendant. .

The latter had charge of installing the elevators and escalators in the building. Norman Seaton & Company, another subcontractor, had charge of the installation of doors and tracks leading into the elevator shafts at the several floors of the building. At the time of the accident, in which the plaintiff’s decedent lost his life, there was a battery of seven elevators designated as numbers 21 to 27, inclusive, in the course of construction. The deceased was in the employ of the Norman Seaton Company, and one of the duties of his employment was to hang elevator doors and to do track work in the various shafts in the above-mentioned seven elevators, all of which were under the control of the defendant company. The only shaft in temporary operation at the time of the happening of the accident was number twenty-two, the elevator having an operator in the employ of the defendant to run it: No work was permitted to be done in any of the elevator shafts without first having obtained permission from the defendant company. The practice was for the foreman to apply for permission to the general superintendent or Ijis representative of the general contractor, who in turn would obtain permission of the representative of the defendant company. Its representative was James Coward. ¡There is testimony to the effect that such permission was given. The character of the work to be done was of such a nature as to expose the employe to great hazard of life and' limb, unless the person in control of the elevator shafts had notice that work was contemplated to be done in such shafts. This was clearly so where the car was kept stationary on an upper floor and the work was done in the shaft on one of the lower floors. There were three switches which controlled the operation of the car in shaft twenty-one where the accident happened. The baby switch which was contained in the car itself operated by the person running it. A control switch in the “Pent House” on the roof level, and an emergency switch in the pit. It was not disputed that if the switches in the “Pent House” and in the'pit were properly set the car in shaft No. 21, with which the mischief was done, could not have been stirred. This circumstance is an important feature in the case, since it was clearly established by the testimony that these switches were under the control of the defendant company.

Now, there was testimony of the foreman of the Norman Seaton & Company, under whose orders the decedent was working, on the day of the accident, that he, the foreman, was instructed to see to it that shaft No. 21 was clear for his men to go to work, and that he complied with the instructions, both in the morning before eight o’clock and in the afternoon at twelve-thirty. There was also proof that the elevator in shaft No. 21 had been used for several days before the accident to hoist materials, but when this was done notice was given to the workmen. The witness Augusteen testified that he worked with the deceased and that they were directed by the foreman to do work in shaft 21; that he had worked within fifteen feet of the shaft and that it had not been running all day; that the witness and deceased had received orders from the foreman to go into the shaft'at about three o’clock in the afternoon; that before erecting a scaffold therein for the purpose of doing the work required both he and the deceased looked up the shaft and saw the elevator at the ninth or eleventh floor; that the work to be done by them in the shaft was on the fifth floor; that he went to the ninth or eleventh floor and placed a sign on the gate in front of the elevator 21, which sign consisted of a board eighteen inches long by six to eight inches wide and on it he wrote with blue crayon "working below” in letters of an inch or an inch and a half in size.

Mr. Coward, who was the representative of the defendant company, testified that he was in charge of its elevators; that he was in charge of the operation of them and who would operate them; that elevator 21 was not turned over to Marc Eidlitz & Company, the general contractor. He was asked: “Was elevator 21 under your * * * when I say your I mean the Otis Elevator Company’s * * * absolute control on June 4th, 1923?” “A. Yes, sir.” “Q. Did you taire any precaution to so control that elevator or so leave it that when your men were not working in it no other .person could go upon it and use it?” “A. No, sir.”

The situation in the shaft at the time the deceased and his companion started to construct the scaffold was that the elevator in shaft No. 21 was at rest several floors above the fifth floor on which they were preparing to work. The loops of the cable extended below the fifth floor. The scaffold consisted of two planks and were two by twelve. It was while standing on these planks, at work, when the accident happened. As has been already observed a notice was placed on the gate leading to the elevator, on the upper floor, containing the warning "working below.”

According to the testimony of the witness, Augusteen, he and the deceased had been working in the shaft about thirty minutes when they both perceived the loops of the cable moving upwards, and almost momentarily there came a crash, a loop of the cable catching one end of the planks and tilted them, thereby causing the deceased to be precipitated to the bottom of the shaft and to his death. The witness saved himself by catching hold of the' hood on the fifth floor into which he swung himself. Mr.‘Coward, the representative of the defendant, testified that he rode down on the elevator from the twelfth floor to the third, where he got out, and that one Sampson operated the elevator, who, though he had been an employe of the defendant company, he was not such at the time, but was an employe of the Eidlitz company; that the witness told Sampson he had no right to run the elevator, and ihe witness gave as his reason for saying so that the elevators had not been turned over to the Eidlitz company. Whether Sampson was in the employ of the Eidlitz company or in the employ of the defendant company, under the evidence in the cause, was a factual question. We think there was proof of circumstances which tended to establish that whoever operated elevator 21, at or before the accident, could only property have done so by permission of the defendant company’s representative, Mr. Coward. Coward expressly states that elevator 21 had not been turned over to the Eidlitz company, and therefore no one was authorized to run it wiihout his permission. According to his testimony, he himself used it shortly before the happening of the accident. Sampson operated it for him.

As elevator 21 was in the possession of the defendant company and under its control and management, by its representative, Mr. Coward, the jury was warranted to infer that he consented that Sampson should operate the car. There was no proof that anyone else was carried on that car, on that day, other than Mr. Coward. It is further to be observed that according to Coward’s testimony it was three o’clock in the afternoon when he made the trip. He left the car when it reached the third floor. The accident happened at three-thirty. The car was seen by the men who went to' work in the shaft a few minutes after three o’clock, standing motionless, at the ninth floor. As a matter of precaution Augusteon went up to the ninth floor and placed the sign of warning on the gate in front of the elevator. Sampson was not a witness. There was also proof that if the defendant company was not using the shaft, the employes of the other subcontractors would have men working there; that men were working on the shaft all the time. That Mr. Coward was aware of the situation which existed in shaft 21 cannot he successfully controverted. He made no pretence that the defendant company had the use of the shaft on that day, for if it had the other workmen occupied about the shaft could not have used it. If the defendant company was using the shaft on that day the single instance of its use in evidence is the carrying of Mr. Coward from one of the upper floors to the third floor. Moreover,, according to the testimony, elevator No. 22 was running and in charge of an employe of the Eidlitz company. It was for the jury to say whether, under the testimony and circumstances in the case, Mr. Coward knew, or might have known, that the shaft 21 was to be used by the. Seaton workmen on June 4th, 1923, and of the peril threatening the laborers working in the shaft unless the shaft was kept free from the movement of the elevator, and if so, whether the defendant company exercised that degree of reasonable care commensurate with the degree of danger to be reasonably anticipated from leaving the elevator in a condition to be used or operated while the workmen were at work in the shaft. The elevator being under the exclusive control of the defendant company, the law cast ujion it a duty to use reasonable care to guard against the elevator being operated or used while the workmen were in the shaft.

A fair reading of the testimony leads us to the conclusion that the verdict of the jury was not against the weight of the evidence nor contrary to the change of the court.

The rule to show cause is discharged, with costs.


text:
    ADDOLORATA GIACOBBE, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Submitted May 14, 1926
    Decided June 7, 1926
    Filed June 10, 1926.
    Zoning—Two-Family Houses in Restricted Territory—Case Follows Ignaciunas v. Nutley.
    On demurrer to alternative writ of mandamus.

    Before Justices Parker, Black and Campbell.
    Por tlie relator, Ferdinand D. Masucci.

    Por the respondents, Walter O. Filis.

   Per Curiam.

The relator applied to the building inspector of the city of East Orange for a permit to erect three two-family dwellings on premises known as 69, 73, 73 and 75 Leslie street, and such permit was refused upon the ground that the erection of such buildings in such locality would be in violation of the zoning ordinance of the city; the lands of relator lying in the small-volume residence district,-created by such ordinance, restricting the use thereof to one-family dwellings.

Thereupon relator applied for and was allowed by this court an alternative writ of mandamus, to the return made to which the relator has demurred.

We find nothing in the proceedings before us taking the matter out of the rule established in State, ex rel. Ignaciunas v. Nutley, 99 N. J. L. 389, and the line of cases following it.

Eelator is entitled to judgment upon the demurrer and a peremptory writ of mandamus.