text:
    DOMENICO CORSARO, PLAINTIFF-APPELLEE, v. CHARLES AMBROSE, DEFENDANT-APPELLANT.
    Submitted May 18, 1930
    Decided March 5, 1931.
    Before Justices Case, Daly and Donges.
    Eor the appellant, Sachs & Sachs.

    For the appellee, Harry M. Mendell.

   Pee Curiam.

This is an appeal from the Camden City District Court in which a judgment was entered for the plaintiff- in the sum of $258. Appeal is taken and the sole ground alleged for reversal is that the trial judge should have found that one Nicholas Eiego, who was driving the car of plaintiff at the time of the collision with defendant’s car, was the agent of the plaintiff.

The facts are that the plaintiff, Domenico Corsaro, owned the car. It was in the custody of his son, Samuel Corsaro, to whom the plaintiff had lent it, and was being driven by Fiego. The son, Samuel, and Eiego were at the time returning from a dance with some girls who were their guests in the car. The proof was conclusive that the plaintiff had no interest in the venture and that it was that of the boys’ alone. In this situation the plaintiff, Domenico Corsaro, would not be chargeable as a matter of law with the negligence of the driver, and by the same rule of law he cannot be charged with contributory negligence by reason of the acts of one who was not his agent. From the state of the case the lack of agency is clearly shown.

The trial judge found that there was negligence on the part of the defendant as well as on the part of Eiego, and held that the negligence of Eiego could not be imputed to the plaintiff.

The trial judge stated that the fact that Eiego was driving, instead of Corsaro’s son, did not raise a presumption that the car was being driven in the owner’s behalf. In this he was in error. The rule is that proof of ownership of an automobile being driven on a public highway raises a presumption of fact that such automobile is in the possession of the owner, if not personally, then through his servant. Mahan v. Walker, 97 N. J. L. 304. Such presumption “may be entirely wiped out by uneontradicted proof to the satisfaction of the court to the contrary, in which case the matter is a court and not a jury question. Citing Doran v. Thomeson, 76 N. J. L. 754.” Mahan v. Walker, supra.

The conclusion of the trial judge that there was no proof of agency was entirely justified by the testimony. The action being correct, without regard to the reasons therefor, the judgment of the District Court is affirmed, with costs.


source: Caselaw Access Project

author: Pee Cleiaji.

license: Public Domain

text:
    JOSEPH ARONICA ET AL., PLAINTIFFS-APPELLANTS, v. PIETRO GIORDANO ET AL., DEFENDANTS-RESPONDENTS.
    Submitted May 18, 1930
    Decided March 5, 1931.

      Before Justices Case, Daly and Doyges.
    Eor the appellants, STcoTkin & Cohen and Elmer Friedbauer.

    For the respondents, Wright, Yonder Burgh & McCarthy.

   Pee Cleiaji.

This appeal brings up a verdict for the defendants directed by the judge of the Bergen County Court of Common Pleas. Plaintiff Joseph Aronica, a minor about six years of age, was injured by contact with defendant’s car. The plaintiffs allege that as the infant was playing in the street, the car of the defendants, operated by one of the defendants, Charles Giordano, was set in motion from a standing position and struck and injured the infant plaintiff who, it was alleged, was in the street in such a position that the driver of the car should have seen him before starting the car. The trial judge directed the verdict on the ground that no act of negligence on the part of the driver of the car had been shown.

Our review of the testimony leads us to the conclusion that the action of the trial judge was correct and that there was no testimony from which it could be concluded that the operator of the defendants’ car was guilty of negligence. It clearly appeared that the child was not in front of the car nor in a position where he could be observed by the driver. Admittedly he was struck by the rear wheel of the vehicle.

There being no evidence of negligence on the part of the defendants, the direction of a verdict was justified and the judgment will be affirmed, with costs.


author: Pee Cubiam.

text:
    FRANK FELICE, PLAINTIFF-RESPONDENT, v. ROSE BERNSTEIN, DEFENDANT-APPELLANT.
    Submitted May 18, 1930
    Decided March 5, 1931.
    Before Justices Case, Daly and Donges.
    Eor the appellant, Green & Green.

    Eor the respondent, Benjamin Baron and Jacob Feinberg.

   Pee Cubiam.

This appeal brings up a judgment of the District Court of the city of Bayonne in favor of the plaintiff against the defendant in the sum of $500.

The suit was brought to recover damages for injuries alleged to have been sustained by the plaintiff in consequence of tripping over a metal nosing on the top step of a flight of steps leading from the floor on which plaintiff’s apartment was located to the front door of the apartment house.

There was ample evidence to show that the nosing in question was out of repair at least a month or more prior to the occurrence; that another person, a woman, had fallen over this nosing; that the matter was brought to the attention of one Rebecca Melnick, who was the agent of the owner, the defendant. Mrs. Melnick testified that she was in charge of the property for the defendant and that she was charged with the duty of collecting rents and making repairs. There was evidence that following the injury to the woman, the defendant or someone acting for her put a nail in the nosing as a temporary expedient, and that thereafter no further repairs were made.

The whole ease presented a clear question of fact for the determination of the jury upon the question of the defendant's liability as well as the plaintiff's contributory negligence. Several objections are made to the rulings of the trial judge with respect to the admission of testimony, but we are unable to discover any harmful error, and likewise in the refusal of the trial judge to charge in the language of some of the defendant's requests. The trial judge submitted the matter properly to the jury and there was no harmful error.

The judgment is affirmed, with costs.


author: Per Curiam.

text:
    JOSEPH W. AUSTIN, PETITIONER, v. MAYOR AND COMMON COUNCIL OF BOROUGH OF UNION BEACH ET AL., RESPONDENTS.
    Argued January 21, 1931
    Decided March 5, 1931.
    Before Justices Parker, Campbell and Bodine.
    Por the petitioner, KarTcus & Karims.

   Per Curiam.

This is an application for the allowance of a writ of certiorari to review an alleged assessment and levy against petitioner’s property for water service and also to review a sale of such lands for the non-payment of such imposed lien.

We think that the question of the legality of such assessment and sale is sufficiently raised to warrant the allowance of the writ, and, therefore, upon the presentation of the writ to the presiding justice of this branch of the court the allocatur will be signed.


author: Pee Cueiam.

text:
    JENNIE WARNER ET AL., PLAINTIFFS-APPELLEES, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT-APPELLANT.
    Submitted May 18, 1930
    Decided March 5, 1931.
    Before Justices Case, Daly and Donges.
    For the appellant, Henry H. Fryling.

    For the appellees, David T. Wilentz.

   Pee Cueiam.

The plaintiffs-appellees brought suit to recover damages for injuries sustained by the wife whilst a passenger in a bus of the defendant by the breaking of a glass window and the admission into her left eye of a piece of glass therefrom. The husband sued for loss of services and for expenditures for medical attention and the like to have his wife healed of such injuries.

The state of demand was in two counts, one on behalf of the wife and one on behalf of the husband. At the trial the judge found in favor of the plaintiffs in the sum of $500, which is stated in the transcript of docket entries as follows: “Judgment was rendered for plaintiff for the sum of $500 damages, and $28.60 costs of suit.-”

The first ground of appeal is that the court erroneously entered a judgment against the defendant in the sum of $500 without designating the amount awarded to each of the plaintiffs. This appears to be a meritorious objection. The count in the state of demand on behalf of the wife demanded judgment for $400 and the count on behalf of the husband demanded damages in the sum of $100, but there is no way by which the verdict of the court may be apportioned as between the plaintiffs, and the judgment as entered is erroneous and invalid. Spencer v. Haines, 73 N. J. L. 325; O’Carrol v. Stark, 85 N. J. L. 438.

It is unnecessary to consider any of the other grounds of appeal.

The judgment is reversed and the record remitted to the District Court that a new trial may be had therein.


text:
    MABEL GROVER, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. PENNSYLVANIA RAILROAD COMPANY, DEFENDANT.
    Submitted May 18, 1930
    Decided March 5, 1931.
    Before Justices Case, Daly and Doxges.
    For the rule, Applegate, Stevens, Foster ■& Beussile.

    Contra, Clarence Sackett.

   Pee Cueiam.

A rule to show cause was allowed why a verdict in favor of the plaintiff should not be set aside and a new trial granted on the ground that the verdict is contrary to the weight of the evidence as to the negligence of the defendant and as to the contributory negligence of the decedent, and because the verdict is excessive.

A verdict for $18,000 was awarded the plaintiff. The action was brought to recover damages for the alleged wrongful killing of plaintiff’s decedent as a result of a collision between defendant’s train and an automobile truck driven by decedent across the tracks of the New York and Long Branch Railroad Company, known as Fourth avenue, in Bradley Beach. The accident occurred on May 23d, 1928, at about six-thirty A. M. The train was being operated northwardly from Point Pleasant to New York. Decedent was driving a motor truck from west to east and stopped a short distance from the crossing to permit a freight train, which was operating on the southbound or most westerly track, to pass. The engine of the freight train was headed south and the train, after blocking the crossing for some three or five minutes, backed northwardly, and when the engine of the freight train had cleared the crossing by approximately one hundred feet, decedent undertook to cross. The crossing was not protected by gates or a flagman but was protected by an automatic signal or flasher which was operating before and at the time of the accident.

A single witness, Clifford Knee, testified for the plain-, tiff with respect to the occurrence. He testified that he was in his truck on the easterly side of the railroad tracks waiting for the freight train to clear the siding, and when it moved to the north he started to cross, saw the northbound train coming, backed off the tracks and allowed it to pass. He said he did not hear any bell or whistle but the flasher or signal was operating.

On behalf of the defendant, one Palaia, a dealer in fruits and vegetables, testified that he was in his truck which was standing behind that of the defendant on the west side of the tracks; that he heard the whistle blow and saw the lights flash; saw decedent start across; saw the train coming a block away; heard the whistle blow when the train was a block away; and witnessed the collision. There were the engineer, fireman, baggageman, conductor and brakeman of the train which figured in the collision, who testified that the signals were given, as did the engineman, fireman, and another member of the crew of the freight train which was standing to the north of the crossing.

Despite the fact that admittedly it was a foggy, misty morning with low visibility, we have a situation where the decedent stopped at a railroad crossing to permit a freight train to clear the crossing. He saw the lights continue to flash after the freight train had passed northwardly about one hundred feet and apparently assumed that the crossing lights were being operated by the freight train and that no train was approaching from the south.

Leaving the question of contributory negligence out of consideration, we conclude that the great weight of the evidence supported a finding that the statutory signals were given and that the verdict must be set aside on that ground.

The rule to show cause will be made absolute.


text:
    MICHAEL MASSING, PLAINTIFF-APPELLEE, v. BENJAMIN KORNBLUTH, DEFENDANT-APPELLANT.
    Submitted May 18, 1930
    Decided March 5, 1931.
    Before Justices Case, Daly and Donges.

      For the appellant, Morris Spritzer.

    Eor the appellee, Edmund A. Hayes.

   Pee Cubiam.

This appeal brings up a judgment of the New Brunswick District Court in favor of the plaintiff in the sum of $295.72. The state of the case shows that the plaintiff-appellee and defendant-appellant were the owners of the entire stock of a New Jersey corporation known as Massing-Kornbluth Company; that they agreed upon a dissolution of the company, each assuming an agreed apportioned share of the assets and liabilities of the corporation. In addition to certain liabilities specifically enumerated in a schedule, the agreement between the parties provided:

“It being distinctly understood and agreed that should there be any other liabilities not specifically enumerated in the schedule in the possession of Arnold B. Rosenthal, certified public accountant, that as to such amount the party of the first part and the party of the second part hereby agree to bear the same equally between them, and the same has reference to any current bills outstanding, such as telephone bills, electric light bills or any other bill not specifically enumerated in the accountant’s statement of liabilities.”

The court found on the count in question that the plaintiff is entitled to receive one-half of the sum of $465.45, or $232.74, as well as the sum of $63 on the second count, making $295.72 in all. There is no controversy as to the item of $63 on the second count. The question, therefore, is whether under the agreement stated the plaintiff-appellee was entitled to judgment against the defendant-appellant.

The items in question were as follows:

Edmund A. Hayes, for incorporating company. . . . $250.00
Leon Jacobs and Bros, for merchandise.......... 12.50
City Tax ................................... 56.00
Advertising, New Brunswick Spokesman ........ 6.00
New Jersey Bell Telephone Co.................. 12.35
Advertising, Eagles ........................... 35.00

or $371.85, which under the state of the case it appears the plaintiff-appellee established as being liabilities of the corporation. Eor this sum, under the facts stated and the finding of the District Court, plaintiff is entitled to judgment for one-half, or $185.92. The other items upon which the District Court found in favor of the plaintiff-appellee are:

Lumber to close up door....................... $5.05
W. Stenner, carpenter........................ 4.00
Joseph Randolph, window lights ................. 34.65
Rolfe Lumber Co.............................. 50.00
$93.70

The testimony was that these items were incurred by the plaintiff-appellee in making certain alterations to the property theretofore occupied by the corporation so that both plaintiff and defendant might occupy one-half, the property being owned by the plaintiff-appellee.

There are two objections to the collection of these items. First, it does not appear that the plaintiff-appellee paid these bills, so that if they were within the purview of this provision of the agreement, the plaintiff would have no right to collect for them in advance of payment by him. And secondly, these items do not come within the agreement. They were not corporation liabilities, having arisen out of an agreement between plaintiff-appellee as landlord and the defendant-appellant as tenant. There was, therefore, legal error in the allowance of these items in this case. Oppicci v. Eric Railroad Co., 93 N. J. L. 394.

Let the judgment be reversed and the record remitted for a new trial in the District Court.


author: Pee Cxjeiam.

text:
    MELVILLE S. REID ET AL., PLAINTIFFS-APPELLEES, v. MICHAEL J. TANSEY, DEFENDANT-APPELLANT.
    Submitted May 18, 1930
    Decided March 5, 1931.

      Before Justices Case, Daly and Donges.
    For the appellant, Michael J. Tansey, pro se.

    For the appellees, Fischer & Crowell and Frederick W. Hope.

   Pee Cxjeiam.

This appeal brings up a judgment of the First District Court of Newark in favor of plaintiffs for $216.80. The suit was for fence posts alleged to have been purchased by the agent of the defendant, one William A. Tansey, for the defendant.

The first point raised is that there was no competent legal proof that William A. Tansey was the agent of appellant. The obvious answer to this is that William A. Tansey testified that he ordered the fence posts by direction of defendant.

The next point is that agency may not be proved by the alleged agent’s declarations. This principle is not applicable because the agent testified himself upon the question of authority. The rule extends no further than to exclude statements to third persons of the agent’s alleged authority.

The next reason is that there was no evidence of ratification of a prior purchase of fence posts by William A. Tansey for the defendant so as to create agency on the part of William A. Tansey in a subsequent purchase. The trial court in his charge to the jury did not leave this question for the jury’s determination, and we think there was no error in the court’s comment upon this question.

The next point is that the appellant had no knowledge of the transaction for a long time afterward and that he did not obtain the benefit of the purchase because William A. Tansey removed the posts when he left the farm. This raises a question of fact and is not ground of error.

The next point is that the court committed prejudicial error and abused its discretion in declining defendant’s motion to nonsuit, when he said: “In my opinion Michael J. Tansey is responsible, therefore I deny the motion.” Obviously this statement was made upon the basis of the proofs then before the court, and which, if there had been no contradictory testimony on behalf of the defendant, would have required the court to direct a verdict for the plaintiffs.

There being no merit in any of the grounds of appeal, the judgment is affirmed, with costs.


text:
    WILLIAM E. MATHIS, PLAINTIFF, v. THE HIRSCH COMPOUND ROOFING COMPANY, DEFENDANT.
    Submitted May 18, 1930
    Decided March 5, 1931.
    Before Justices Case, Daly and Donges.
    For the rule, Ralph N. Kellam.

      Contra, William I. Garrison.

   Pee Cueiam.

This is defendant’s rule to show cause reviewing a verdict of a jury in favor of the plaintiff returned at the Atlantic Circuit. The sole question to be determined in this case is whether the defendant, owner of the truck involved in the collision, can be held on the doctrine of respondeat superior.

It is admitted that the defendant owned the truck and it is admitted that it was being operated by one of its employes at the time of the accident. Defendant asserts and produces two witnesses to testify that one Greene, vice-president and general manager of the defendant company, instructed the driver, Albright (who was injured and died from such injuries received in this collision), and Mr. Harris, superintendent of the application of roofing materials, to go to Ocean City and Atlantic City and do certain work; and Greene and Harris testified that the instructions given were that, after the work was done at a place on the boardwalk, the two servants were to return immediately to Philadelphia by way of Pleasantville, Absecon and the White Horse Pike. Admittedly this collision occurred at New Gretna, which is some eleven or twelve miles from Absecon and not on the White Horse Pike, but on the road that leads from Absecon to New York.

Plaintiff endeavors to answer this allegation of deviation on the part of the servants by saying that the New Gretna road could be used to go to Philadelphia. Admittedly, however, it was not the direct route, nor was it the one designated by the master to be pursued. The testimony of Harris is that Albright and Harris concluded for reasons of their own to go up this road and not to return by the direct and designated route from Absecon to Philadelphia.

It seems to us that this case falls squarely within the rule laid down in Olein v. Essex Sales Co., 103 N. J. L. 217; affirmed, 104 Id. 181; and Shefts v. Free, 146 Atl. Rep. 185; in which the Court of Errors and Appeals held that where there is uncontradieted proof that the driver of the vehicle had disobeyed his employer’s instructions and deviated from the business he was directed to pursue, his use of the vehicle was his own use and the relation of master and servant,was thereby terminated, and therefore a direction of a verdict for defendant was held proper. As was said in Shefts v. Free:

“From the time he reached the garage to which he was to take the commercial automobile—from that moment he was engaged in an occupation upon his own behalf entirely disconnected from that of his employer. His use of the car was at the time of the accident his own nse. The relation of master and servant was thereby terminated.”

We think, therefore, that the court should have directed a verdict. The rule to show cause will be made absolute.


author: Pee Cukiam.

text:
    SUMNA REALTY COMPANY, PLAINTIFF-APPELLANT, v. CAPITAL CHAIR COMPANY, DEFENDANT-APPELLEE.
    Submitted May 18, 1930
    Decided March 5, 1931.
    Before Justices Case, Daly and Donges.
    For the appellant, Haines & Ghanalis and Patrick J. Maloney.

    For the appellee, Goldberg & Goldberg.

   Pee Cukiam.

Suit was brought to recover a sum of money as rental under a lease between the parties hereto, the plaintiff being the landlord and the defendant the tenant. The pertinent part of the lease is contained in paragraph 10 which provides that in the event of fire which so badly damaged the property that it cannot be repaired within sixty days from the happening of such injury, that the lease shall cease, but that if the premises be repairable within sixty days the lessor shall enter and repair the same with all reasonable speed, and rent shall not accrue after said injury or while repairs are being made, but shall recommence immediately after the premises have been completed.

A fire occurred on April 11th, 1929. Plaintiff offered testimony that he requested the defendant to remove the furniture belonging to defendant in order to allow the necessary repairs. Defendant did, ;not remove the furniture, neither that damaged nor that not substantially damaged. It further appears that the plaintiff did not make any major repairs until the early part of June and that thirty-five days were required to complete the work. Defendant denies that it ever refused to remove the furniture. The court held that there was no question of fact because the repairs were not finished within the sixty days from the date of the fire; that there was no testimony that the defendant hindered or obstructed the making of the repairs; that the repairs not being made, there was no question of fact and the defendant was entitled to a verdict.

We are of opinion that the trial judge erred in holding there was no disputed question of fact for the determination of the jury. There was testimony that the defendant did not clear the floors so that the repairs might be made. The testimony is that- only thirty-five days were required to complete the repairs, therefore the lease was not terminated but only suspended. The defendant cannot avail itself of its refusal to make repairs possible. In other words, it could not make it impossible for the landlord to comply with the provisions of the lease, and then have the advantage of such failure. Chausmer v. Arons, 7 N. J. Mis. R. 612. It was for the jury to determine from the disputed evidence whether the defendant had prevented the plaintiff from making the repairs by refusing to clear the floors.

The judgment is reversed and a new trial granted.


author: Pee Cueiaii.

text:
    WALTER S. COOMBS, ASSIGNEE, PLAINTIFF-APPELLANT, v. ERNEST MUTZBERG ET AL., DEFENDANTS-RESPONDENTS.
    Sxibmilted May 18, 1930
    Decided March 5, 1931.
    Before Justices Case, Daly and Donges.
    For the appellant, Saul M. Mann.

    For the respondents, John W. Griggs, II, and John L. Griggs.

   Pee Cueiaii.

This appeal brings up the propriety of a judgment entered in the First District Court of Paterson in favor of the defendants. The judgment is attacked upon several grounds: 1. That the judgment is contrary to the weight of the evidence. 2. That the court having entered a judgment of voluntary nonsuit, thereafter without notice to the plaintiff could not change the judgment to one in favor of the defendants.

The state of the case agreed upon for this appeal reads as follows:

“Westervelt V. Coombs, plaintiff’s assignor, a plumber, entered into a contract with the defendants, wherein, for twelve hundred seventy-two dollars and seventeen cents ($1,272.17) he contracted to do certain plumbing work in defendants’ mill, installing a steam heating plant.

“At the trial of the cause, Westervelt V. Coombs, plaintiff’s assignor, testified that the amount of his contract plus extra work and labor totalled twelve hundred seventy-two dollars and seventeen cents ($1,272.17), upon which the defendants were entitled to credits totalling eight hundred and twelve dollars ($812), leaving a balance of four hundred sixty dollars and seventeen cents ($460.17).

“The defendant, Reinhold Mutzberg, disputed this balance, admitting a balance of a few hundred dollars, but denying the excess.

“The plaintiff and his witnesses testified that all work was done in accordance with the understanding between plaintiff’s assignor and defendants, and that all was done in a good and workmanlike manner.

“Defendants and their witnesses testified that the work was not done in a good and workmanlike manner and that the steam heating plant was not functioning, due to the failure of plaintiff’s assignor to install return pipes of correct and adequate size, and due to the fact that the sections-in the boiler were not hooked up properly, so that proper-heat could not be obtained.

“Plaintiff and his witnesses testified that any failure of the heating plant to function was due to the fact that old sections were in use in the furnace; that plaintiff had warned defendants to replace the old sections, but that defendants-were willing to take a chance on continuing the old sections in use.

“The defendants further testified that water flowed out of the boiler, that the radiators filled up with water, and that insufficient heat was obtained. On behalf of the defendants,. Benjamin A. Christner, a plumber, was produced to testify that the work of the plaintiff’s assignor was improperly done; that the plaintiff’s assignor was to pipe with coil all three sides, which was not done, only two and one-half sides being piped.

“The said Benjamin A. Christner, a plumber, was the-only witness produced by the defendants, with the exception. of the defendant Reinhold Mutzberg, and he was the only witness interrogated on the cost of finishing the job and perfecting the defects left by plaintiff’s assignor. He testified that it might take a day and it might take longer, but. that he could not say how long it would take to remedy said defects, nor could he say how much it would cost to finish the job and correct the imperfections.

“Plaintiff and his assignor testified that one of the defendants, Ernest Mutzberg, promised to pay the entire balance and did not raise any dispute. This was not denied, since the defendant, Ernest Mutzberg, did not appear at the trial.

“The court, at this point, after hearing the evidence, entered a judgment for the defendants, conditioned upon the plaintiff’s returning and perfecting the work. Before the entry of judgment on the record, counsel for the plaintiff moved for a voluntary nonsuit, which motion was granted by the court, and an entry made on the record of the case accordingly. Five days after the entry of nonsuit upon the docket, the court, without notice to the attorney of the plaintiff, at the request of the attorney for the defendants, which request was not made on the open court, changed the record, the clerk striking out the entry of voluntary nonsuit and making an entry of judgment for the defendants.

“Exception to the entry of judgment was made before the court, who refused to vacate the last entry of judgment for the defendants, whereupon this appeal was taken.”

We deem it unnecessary to determine the questions relating to the merits because we think the conduct of the court in granting the motion for a voluntary nonsuit was dispositive of the case, and that thereafter the judge could not recall the matter and enter a judgment for the defendant. The docket entries of the District Court as printed in the state of the case shows that the voluntary nonsuit was granted before judgment for defendant was ordered to be entered. It appears from the stipulation in the state of the case that the court waited five days after the entry of the nonsuit, and then without notice to the plaintiff and without any motion in open court, the record was changed. We think this was error and that for this reason the judgment must be set aside.

The judgment is reversed and the record remitted to the District Court for a new trial.


author: Unger, S. C. C.

text:
    Essex County Court of Quarter Sessions.
    STATE OF NEW JERSEY, PLAINTIFF, v. HARRY COOPER, DEFENDANT.
    Eor the motion, George B. Sommer.

   Unger, S. C. C.

A motion has been made on behalf of the defendant to quash the search warrant issued on December 15th, 1930, directing a search of premises at No. 10. Main street, in the city of Orange, New Jersey. The warrant was executed on December 16th, 1930, and intoxicating liquor was seized.

Several grounds have been urged in support of the motion. The principal contention of the defendant is that there was no probable cause for its issue on December 15th, 1930, because of the lapse of twenty-five days from November 10th, 1930, the date set forth in the affidavit submitted to procure the warrant, of the alleged purchase of liquor at the premises by the complaining witness.

The statute under which the warrant was issued (Pamph. L. 1922, ch. 255) was modeled after the Federal Espionage act and its language is substantially similar to that of the Federal act. The construction of the latter by federal courts is therefore of prime importance. It was said in United States v. McKay (District Court, D. Nevada), 2 F. (2d) 257:

“There can be no hard or fast rule fixed by courts to satisfy every such situation, under all circumstances. Each case must depend upon its own facts. The person or persons who are charged with having whiskey in their possession, the quantity of liquor, and the place where it is kept, may all be taken into account, as well as the alleged sale and lapse of time.”

This decision sustained the warrant under consideration and was followed in United States v. Callahan (District Court, M. D. Pa.), 17F (2d) 937, with the same result. In the first of these cases, twelve days elapsed between the alleged sale of intoxicating liquor and the making of the affidavit to procure the warrant. In the second, a period of thirteen days elapsed between the making of the affidavit and the issuance of the warrant. In Hawker v. Queck (C. C. A., 3d Circuit), 1F (2d) 77, a warrant was sustained which was issued twenty-one days after the alleged purchase of intoxicating liquor in a hotel. The Supreme Court denied a petition for a writ of certiorari. 266 U. S. 621.

The premises in the instant case were described as a rear room behind a front room containing a cigar case, the rear room being fitted with a bar and back bar. The affidavit recites the purchase of two glasses of beer and two glasses of whiskey, the latter served from a pint bottle taken from under the front bar. It is further alleged that a number of men were at the bar drinking what appeared to be beer and whiskey. The affidavit also recites that the front door is kept locked and that there is an electric button on the outside.

I am constrained to hold under the circumstances that the lapse of twenty-five days was not unreasonable and did not prevent the existence of probable cause for the issuance of the warrant at the time when it was issued.

It is also urged that the warrant is defective because it was improperly entitled and directed. This contention was made in State v. Virgilio, 7 N. J. Mis. R. 721, in connection with a warrant similarly entitled, and was found to be without merit.

It is further contended that the warrant does not designate a definite person to execute the same, but on the contrary designates a class of persons, which is defective. It is directed to the persons mentioned in section 6 of the statute under which it was issued. Section 19 of the same act provides that the magistrate, upon the showing of probable cause, must issue a search warrant to any officer, &c. Section 20 provides that the warrant may in all cases be served by any of the officers mentioned therein. The warrant in question adequately complies with these provisions.

It is further asserted that the warrant does not describe the person and does not particularly describe the property and the place to be searched. On the contrary, it clearly appears that all of these are described with that degree of care and particularity, which the consensus of judicial opinion requires. Steele v. United States, 261 U. S. 498.

It is next alleged that the warrant does not state the particular grounds of probable cause for its issue. It recites that the Supreme Court commissioner finds that there is probable cause for its issue and that the statute has been violated. This is a sufficient compliance with the act. Hawker v. Quede, supra.

The contention made that there was no probable cause for its issue, is without merit. The affidavit of the complaining witness was adequate in this respect.

The motion is denied.


author: Ackurson, J.

text:
    Hudson County Circuit Court.
    SIMON O’SHAUGHNESSY, PLAINTIFF, v. BAYONNE NEWS COMPANY, A CORPORATION OF NEW JERSEY, AND HERMAN HOOFMAN, DEFENDANTS.
    Eor the plaintiff, Bennett A. Bobbins {Charles W. Broadhurst, of counsel).
    Eor the defendants, Stein, McGlynn & Hannoch.

   Ackurson, J.

This action is brought to recover damages resulting from the alleged negligent operation of an automobile.

The complaint alleges that plaintiff by the express invitation of defendants became and was a passenger in the automobile truck owned by the defendant Bayonne News Company, and operated by its agent, the defendant Herman Hoof-man, and that defendants—•

“So negligently, carelessly and recklessly operated the same that the plaintiff while lawfully alighting from said automobile truck at or near the intersection of said G-rove street with Eighth street, in said city of Jersey City, was caused to be thrown therefrom and under the wheels of said automobile, and as a result thereof sustained serious injuries. The negligence of the defendants consisted in this:

“(a) Said automobile truck was being driven and operated by an incompetent driver.

“(b) The operator of said automobile truck failed to make any observation as to the position of the plaintiff while lawfully alighting from said automobile, and started said automobile before plaintiff had completely alighted therefrom.

“(c) The operator of said automobile truck failed and neglected to give plaintiff any -warning of his intention to start said automobile while plaintiff was still alighting therefrom.”

The plaintiff now moves to amend his complaint in advance of trial by adding a new paragraph reading as follows:

“The operator of said automobile truck negligently and carelessly and without warning started the same after the plaintiff had alighted therefrom and while the plaintiff was in the act of crossing said Grove street, a public highway, in front of said truck.”

The motion to amend is resisted by the defendants upon the ground that the proposed amendment would be substituting a new cause of action after the statute of limitations had run.

The accident happened on February 25th, 1928, and the two-year statutory period of limitation ran against the plaintiff’s cause of action on February 25th, 1930, more than eleven months prior to this application to amend.

As was said by the late Mr. Justice Katzenbach, in the case of Wilson v. Dairymen’s League Co-operative Assn., 105 N. J. L. 190:

“In the early days of our jurisprudence, many actions were brought to a summary conclusion by reason of mistakes as to form. These decisions resulted frequently in miscarriages of justice. The only meritorious result of dismissing suitors on technicalities was to create a bar adept in the science of pleading. For many years the trend has property been in the other direction. The aim of courts and legislatures is to abolish technicalities and enable suitors to have the merits of their controversies fully tried.”

It may be that under sections 23 and 24 of the supplement to our Practice act of 1912 (Pamph. L. 1912, p. 381), which confers upon the court the power to permit “before or at the trial the statement of a new or different cause of action in the complaint or counter-claim,” that this proposed amendment may be made whether it states a different ground for the action or not. Giardini v. McAdoo, 93 N. J. L. 138, at bottom of page 148. But it is unnecessary, as I conceive it, to rest the determination of this motion upon any such consideration, for I do not consider that the proposed amendment substantially changes the plaintiff’s claim.

It is quite generally held that if the identity of the transaction forming the cause of action originally declared upon is adhered to, an amendment is not ordinarily regarded as substantially changing the plaintiff’s claim or as stating a new or substantially different cause of action. So an amendment will not as a rule be held to state a new cause of action if the facts alleged show substantially the same wrong with respect to the same transaction, or if it is the same matter more fully or differently laid, or, if the gist of the action or the subject of controversy remains the same; and this is true although the form of liability asserted, or the alleged incidents of the transaction may be different. Technical rules will not be applied in determining whether the cause of actions stated in the original and amended pleadings are identical,, since in a strict sense almost any amendment may be said to change the original cause of action. 49 C. J. 510, 511.

In a tort action an amendment may vary the statement of the original complaint as to the manner in which the plaintiff was injured, or as to the manner of the defendants’ breach of duty, without necessarily setting up a new cause of action. 49 C. J. 316, § 679 (see cases cited in foot notes); Swank v. Pennsylvania Railroad, 94 N. J. L. 552; Duffy v. McKenna, 82 Id. 62; Giardini v. McAdoo, supra; Miller v. West Jersey, &c., Railroad Co., 76 Id. 282; Seaboard Air Line v. Renn, 241 U. S. 290; Texas and Pacific Railway v. Cox, 145 Id. 593; Missouri, Kansis and Texas Railway Co. v. Wulf, 226 Id. 570; Hermecken v. Seaboard, 239 Id. 353; Ingwerson v. Chicago, &c., Railroad Co., 150 Mo. 374; 130 S. W. Rep. 411.

In the case sub judice the injury charged in the original complaint was alleged to have arisen out of the negligent operation of defendants’ automobile. The place where the plaintiff was injured is not the gist of the cause of action. Whether he was injured while alighting from the automobile or while passing in front of it, are mere incidents of the wrong done; the subject of the controversy remains the same and the gravamen of the complaint, the real wrong done, was the negligent operation of the automobile. It makes no difference to the cause of action that in the first instance the plaintiff may have been an invitee in the car, and in the second a pedestrian in the street. The duty required of the defendants, and the degree of care exacted in each instance was the same, and in either event there could be no cause of action, unless the car was improperly operated by the owner’s agent.

The defendants rely upon the case of Doran v. Thomsen, 79 N. J. L. 99, as a precedent for the denial of this motion. In that case, however, the charge of negligence, as stated in the original declaration, was made to depend upon the allegation that the automobile was carelessly operated by the defendant’s daughter as his agent. The gist of the action was the negligence of a servant imputed to his master, and not the direct negligence of the master himself. As it was proposed to amend the declaration, the negligence counted on was of the father himself in supplying his inexperienced daughter with a dangerous machine, and its gist was the negligence of the father himself. Here there was an effort to change the gist of the action or the subject of the controversy, giving rise to a different cause of action. In the case sub juiice, however, the proposed amendment would not change the gist of the action or subject of controversy which is the negligent operation of the defendants’ automobile by his servant or agent. The proposed amendment would merely change the position of the plaintiff at the time he claims to have been injured by the negligent starting of the automobile.

Eor the reasons already indicated the plaintiff’s motion to amend his complaint in the manner proposed will be granted.


author: Goijdberger, J.

text:
    District Court or Perth Amboy.
    LENA FRIEDMAN, PLAINTIFF, v. JOSEPH FELLER, DEFENDANT.
    Eor the plaintiff, David Mandel.

    For the defendant, Daniel Feller.

   Goijdberger, J.

This motion is before me on an objection by the defendant to the jurisdiction of this court on the ground that his residence is in the city of New Brunswick, wherein a District Court is now established.

The facts out of which the ease arises is as follows: Plaintiff, a resident of Highland Park, a suburb of New Brunswick, instituted suit to recover moneys due on a lease on premises located in the city of New Brunswick. Defendant claims that suit should have been instituted in the New Brunswick District Court because of his residence therein, and that it is optional with him to submit to the jurisdiction of this District Court, and gives as his authority various cases: Funck v. Smith, 46 N. J. L. 484, and also Fraley v. Feather, 46 Id. 249.

The defendant has evidently overlooked the fact that these decisions refer to the District Courts as they existed prior to the Revision of 1898. Prior thereto District Courts were limited to the jurisdiction of the city in which they were lqcated. Subsequent thereto the District Court act was amended so that the territorial jurisdiction became co-extensive within the limits of the county wherein the city is situated in which such District Court is established. Pamph. L. 1908, p. 76. District Court act 1898, section 29.

The legislature by an act (Pamph. L. 1920, p. 176, as amended. Pamph. L. 1922, p. 209) did, however, restrict the jurisdiction of the District Court in landlord and tenant proceedings, where the recovery of premises was desired, &c., but this action, however, is not of such a nature—it is simply one for the recovery of money, and for money only, and therefore the act does not apply.

It is contended by the plaintiff that an appearance was entered by the defendant, and that therefore this motion comes too late. The records of the court are not very clear as to that. But be that as it may. The motion for nonsuit is denied for the reason that this court has jurisdiction, except as already stated.


text:
    William A. Stevens, attorney-general of the State of New Jersey, complainant, v. James J. Wallace, James J. Wallace, trading as Wallace & Company, Alfred Leonard, George Clayton and Gordon F. Allen, defendants.

      Messrs. Plaloff, Saperstein & Plato ff, for the claimants.

      Mr. Richard 0. Plumer, assistant attorney-general, for the complainant.
   The Eeceiveb.

These proceedings arise under the New Jersey Securities act. Pamph. L. 1927, ch. 79, as amended and supplemented in 1930. The bill of complaint was filed by the attorney-general against the above-named defendants on October 10th, 1929, and simultaneously therewith an order to show cause was issued and served, containing the usual injunctions and restraints as to assets, &c.

On June 18th, 1930, a final decree was entered in the cause adjudging all the defendants to be guilty of violating the provisions of said act, in that “they and each of them, jointly and severally, used and employed concealment, suppression, deception, misrepresentation and false pretenses in connection with, the issuance, sale, offer for sale, promotion, &c., within this state, of securities and particularly of the capital stock of New Mexico Copper and Manganese Corporation.”

On this same day, I was appointed receiver of all the defendants with all the powers conferred by the New Jersey Securities act.

Subsequently, I came into possession of a cash fund amounting to approximately $57,000. The usual order limiting creditors was entered and advertised pursuant to the terms thereof, in some sixty odd newspapers throughout the United States.

In due time, the claimant, Hudson Dispatch, Incorporated, filed with me its proof of claim alleging an indebtedness of $1,298.75 due from the defendant James J. Wallace, trading as Wallace & Company.

The proof of claim, in regular form, sets forth that the said sum is owing for some printing work performed for and on behalf of the said James J. Wallace trading as Wallace & Company, at his special instance and request, and at the agreed price. The claimant not only prays the allowance of its claim, but declares itself to be entitled to a preference over all other creditors, and that it has a prior lien on the fund in my hands because, on May 6th, 1930, it caused to be issued a writ of attachment out of the Hudson, County Circuit Court against the defendant Wallace & Company for the recovery of the amount alleged to be due and pursuant to which, the sheriff levied upon the bank account of the said Wallace & Company, which has since been turned over to me, as receiver. The attachment suit is still pending.

At the outset, it must be noted that the matter sub judice does not involve the usual questions which arise in connection with the ordinary type of receivership administration. Indeed, this ease happens to be the first and only receivership of individual defendants ever instituted in our courts since the New Jersey Securities act was but recently enacted into law. The duties and powers of ordinary receiverships, having to do with bankrupt or insolvent persons, firms and corporations or even with solvent corporations (as distinguished from solvent or insolvent natural persons) decreed to be guilty of the fraudulent, illegal and prohibited practices defined by said Securities act, are uniformly to take into possession all the assets of the defendants, convert them into cash, and then, under the direction of the court, distribute the entire fund, pro rala, among all creditors who file their claims, with due regard, of course, to the legal priorities of the various classes of creditors as established by law.

In the present instance, however, all of the defendants are individuals, and the language of the act (section 6a of the supplement—P. L. 1.930 ch. SI) unquestionably limits the powers, duties and even the jurisdiction of receivers appointed by the court in cases where the defendants are natural persons and not corporations. This section provides:

“Whenever the court of chancery shall issue any injunction * * * against a person, partnership, &c., * * * it may appoint a receiver with power to sue for, collect, receive and take into his possession all the goods and chattels, rights and credits, moneys and effects * * * and property of every description, derived by means of any practice declared to be illegal and prohibited by the act to which this act is a supplement, including also all property with which such property has been mingled, if such property cannot be identified in kind, because of such commingling * * * and hold and dispose of the proceeds thereof, under the direction of the court of chancery, for the equal benefit of all who establish an interest therein by reason of the use and employment by the defendant of any practices herein declared to be illegal and prohibited * *

The receiver being limited to such assets as were illegally derived, it is quite manifest that what the legislature had in mind was to provide some measure of relief and redress in favor of only those who had been cheated by the fraudulent sale of "fake” securities.

Indeed, section 7 of this same supplement provides:

“In any proceedings instituted by the attorney-general in the court of chancery for the purpose of carrying into effect the provisions of the act, the said court of chancery shall be and hereby is empowered to make all such orders or decrees as may be necssary * * * to restore or distribute to persons in interest any moneys or property, real or personal, which have been acquired by such person, partnership * * * by means of any practice declared to be illegal and prohibited by the act * *

No attempt is made by the statute, in cases where the defendant is a natural person, to place in the custody of the court through the appointment of a receiver all of the defendants’ property, including their general assets. On the contrary, all that is given to the receiver to administer in cases arising under this paragraph or section of the statute is that portion of the defendants’ property and effects which’ have been derived by the violation of the act. A separate and distinct section of the statute, 6b, is devoted to defining the procedure in cases where the defendant is a corporation, and it is therein provided that “the receiver thus appointed shall settle the estate and distribute the assets and have all the powers and may exercise all the duties conferred upon receivers by the provisions of an act entitled “An act concerning corporations” (Revision of 1896), approved, &c., &c.

It may be said, therefore, that this is a special receivership. As such special receiver of the individual defendants’ special property, I have no jurisdiction or dominion over the general estates of the defendants, and it therefore follows as a logical sequence that I am not to be concerned with their general creditors.

The claim of the Hudson Dispatch, Incorporated, for printing, clearly seems to be based upon a debt which arose ex contractu. No provision is made in the act for their relief. The only class of creditors contemplated by the Securities act are those which arise and are declared to be ex delicto.

All creditors whose claims arise ex contractu still have an adequate remedy at law. These may, notwithstanding the statute, institute suit against the respective debtor-defendants and it may well be that after the entry of judgment and issuance of execution, such debts can be satisfied out of the defendants’ general and personal estates and individual assets over which I have or can acquire neither jurisdiction nor control.

It is insisted, however, that because the claimant acted diligently and caused a writ of attachment to bo issued against the Wallace money some weeks before the actual appointment of the receiver, a lien has resulted in its favor paramount to the rights of other creditors. Aside from the provisions of section 86d of the General Corporation act, which provide that the title and right of a receiver appointed under that act shall be held for the purpose of avoiding liens and preferences, to relate back to the time of the filing of the bill, there are other considerations which make this contention of the claimant untenable. The actual and practical operation of the Securities act is still in an evolutionary stage.

Some seven months prior to the issuance of the attachment writ, this court intervened and virtually took control of all the Wallace & Company assets by the issuance of its restraining order and injunction. The particular fund levied upon by the writ was, therefore, already in custodia legis. A similar question was passed upon by this court in the case of Hammer v. Israel, 89 N. J. Eq. 481; 106 Atl. Rep. 125. In that case, Vice-Chancellor Lane was dealing with the right of a judgment creditor to claim a priority as against partnership assets, and he well says: “I do not think that the court shoidd tolerate a scramble for priority after it has taken control of the assets with a view to ultimate distribution, but before it can be said that the assets are irrevocably within its control * * The court adding: “Creditors, however, will be permitted to make levies so that in case of discontinuance, their legal rights will be protected.” The learned vice-chancellor thereupon declared the lien of the judgment to be a charge upon the assets, but only up to the time of the entry of a decree and appointment of a receiver, whereupon the lien was to be discharged.

So in the matter sub judice, had the attorney-general, as complainant, been unable to establish, after a hearing, any violations of the law, or had the suit under the Securities act been discontinued, this lien by attachment could, of course, have been protected. But not so after the entry of the final decree herein and my appointment as receiver. See, also, Doane v. Millville Mutual Insurance Co., 45 N. J. Eq. 274, and its construction by our court of errors and appeals at the bottom of the opinion in the case of Squire v. Princeton Lighting Co., 72 N. J. Eq. 883.

I have therefore concluded to disallow the claim of the Hudson Dispatch, Incorporated, as well .as all other claims filed with me except those which fall squarely within the purview of the statute, and to bar from participation in the fund in my hands all claims based upon such indebtedness as rent, promissory notes and negotiable paper (except such checks as may have been issued under threat of prosecution for fraud), salaries, unpaid balances on account of automobile purchases, printing, legal fees, &c.

Counsel desiring to take exceptions from this finding may -do so upon the coming in of my final report and accounting. 'They will be duly notified of the filing thereof in accordance with the usual practice.


text:
    HARRY ROSENBERG v. IRENE REISMAN.
    Decided March 14, 1931.
    Before Gummere, Cttiee Justice, and Justices Trenchaed and Lloyd.
    For the appellant, William, Charlton.

    For the respondent, Louis M. Mallín.

   Per Curiam.

The present suit was brought by the plaintiff, Eosenberg, to recover commissions which he claimed to be due him under a written contract entered into between him and the defendant, Irene Eeisman. The contract authorized the plaintiff to secure a building and loan mortgage for the defendant upon a tract of land in Atlantic City in the amount of $50,000 within a period of thirty days from the date of the agreement, and provided that, in consideration of the securing of said mortgage, the defendant would pay to the plaintiff the sum of $1,500 in cash at the time of the mortgage settlement, and, further, that in the event of her refusal to execute the mortgage after the contract had been performed by the plaintiff and the loan secured by him, she would pay him the said sum of $1,500 for his services. The plaintiff’s cause of action was based upon the averment that he had performed his part of this contract by obtaining the loan, and that, after having done so, the defendant refused to pay him the consideration agreed upon between them.

The defense set up in the answer was that Mrs. Eeissman’s daughter, Bella, had charge of all her business transactions; that the contract upon which the present suit is based was handed to Bella by one Schlesinger, who she supposed represented the plaintiff; that her daughter brought it to her, and that she assumed that it was all right, the daughter having assured her that this was so, and, consequently, signed it without reading it; that she never agreed, prior to the signing of the contract, that she would pay any compensation for obtaining the mortgage unless the loan that it was intended to secure was actually accepted by her and the money paid to her, and that, on the contrary, it was agreed between her and Schlesinger that no commission or compensation should be paid by her in case she concluded not to accept the loan; and that she signed the contract which is the subject-matter of the suit on the faith of the representation made by Schlesinger that it contained such a provision.

A motion was made to strike out the answer upon the ground that it was sham, without legal merit, and filed only for the purpose of delay. The matter came on to be heard on affidavits submitted by the respective parties and testimony of the defendant taken by the plaintiff. The defendant’s daughter was her principal witness. She testified that her mother was having trouble with relation to the extension of the time of payment of a $60,000 mortgage upon her property, which was nearly due; that she went to the Chelsea Deposit and Trust Company for the purpose of making a deposit, and that while there Schlesinger, who was a note teller in the bank, asked her why she was looking so downcast; that she told him that her mother needed a mortgage on her property for $50,000, and that she, the daughter, was trying to get that mortgage, with the idea of having the then existing mortgagee, who held the $60,000 mortgage, take $50,000 on account of the principal thereof and accept a second mortgage of $10,000 to secure the balance; that then Schlesinger said to her that he- thought he could secure a mortgage of that amount for her mother, and that some days later he came to the mother’s house and handed this contract to her, the daughter, to be executed by the mother; that she then told Schlesinger that, from negotiations that she was having with the holder of the first mortgage, she did not know whether they would need the mortgage specified in the contract or not, and that, if it was not needed, her mother would not pay any commission, to which Schlesinger replied that all that was taken care of in the paper which he handed her. This witness further testified that, in view of this, she did not read the contract, but took it to her mother and told her to sign it; that her mother did not read it either, but signed it and gave it back to her, and that she then handed it to Schlesinger, assuming that he was the other party to the contract; that some time later the first mortgagee extended the time for the payment of his mortgage, and that she then told Schlesinger that they would not need the $50,000 loan.

At the conclusion of the hearing on the motion to strike out the answer the trial court made an order directing it to be stricken out as sham and ordering the entry of summary judgment in favor of the plaintiff. It is from this order that the defendant has appealed.

Wo consider that there was legal error in this judicial action. If the facts stated in the affidavit of Bella Eeisman are true, her mother was induced to sign this contract by reason of the fraudulent representation of Schlesinger, who, as it appeared to them, was acting in his own behalf in submitting the contract for execution, but who was apparently then acting as the undisclosed representative of the plaintiff, Eosenberg; and, as the signing of that contract by the defendant was procured by the fraud practiced by Schlesinger upon her, if the daughter’s testimony is to be believed, then the defendant was under no obligation to pay the commission, and fraud which tends to invalidate a written instrument may be proved by parol testimony. Margolis v. Pinnas, 124 Atl. Rep. 529; 99 N. J. L. 515. Whether the story testifiled to by Bella Eeisman was true or not presented a question of fact, to be determined by a jury, and not a question of law, to be decided by the court.

Eor the reason indicated, the judgment under review will be reversed.


text:
    ARTHUR L. KUGEL, RESPONDENT, v. CHARLES M. RIEDELL, APPELLANT.
    Submitted May term, 1930
    Decided March 24, 1931.
    Eor the appellant, Harrison & Boche.

    Eor the respondent, Milton M. Unger.

   Pee Cueiam.

This is the defendant’s appeal from a judgment rendered against him in the Circuit Court of Essex county and it is contended that there should have been a nonsuit in the trial court and that erroneous instructions were given to the jury.

The motion for nonsuit was rested on the ground that the ease as proved by the plaintiff presented a different cause of action from that averred in the complaint and that there was not sufficient evidence of a contract between the parties.

The complaint alleged an agreement that the stock, which seems to have been increasing in value, should, in consideration of the continuance of a loan, be held by the defendant until a time agreeable to both parties, when it should be sold and the proceeds divided equally between them; that the defendant, disregarding the agreement and without adequate consideration, transferred the stock to his wife who subsequently sold it at a greatly advanced price.

There was ample proof of the facts set forth in the complaint and from them we think there can be no doubt that the transfer was a tortious invasion of the plaintiff’s rights. The stock belonged to him. The defendant held’ it as security only, with an added agreement that with the plaintiffs acquiescence he might sell it. This was the limit of his powers. When, instead of retaining it according to the trust imposed, he transferred it to his wife without plaintiffs consent it was not only a violation of the agreement, but an unlawful conversion of the plaintiffs property, and the learned trial judge was right in so holding. The motion for nonsuit was therefore properly denied.

The criticisms of the charge to the jury, with a single exception, are predicated on the correctness of the defendant’s contentions on the motion for nonsuit. As we disagree with these contentions, we conclude that the grounds of appeal respecting these portions of the charge are not well founded.

It is also said that the court incorrectly instructed the jury as to the date of conversion and as to the price per share which the jury might award to the plaintiff. The first is of no material consequence, and as to the damages (assuming the charge to have been adequately excepted to, which is doubtful), the rule laid down was in accord with the decision of the Court of Errors and Appeals in the case of Dimock v. National Bank, 55 N. J. L. 296.

It appears, however, from the record and from the proofs that the verdict includes an incorrect and excessive amount of interest to the extent of $1,224, and this the respondent concedes may be corrected by this court. The judgment which was for $17,212.50 will therefore be reduced to $15,-988.50, and for this amount it is affirmed.


author: Mountain, J.

text:
    Essex County Circuit Court.
    IN THE MATTER OF THE APPLICATION OF THE CALIFORNIA LIMA BEAN GROWERS ASSOCIATION FOR AN ORDER DIRECTING SAMUEL MANKOWITZ, TRADING AS HOUSE OF MANKOWITZ, TO PROCEED TO ARBITRATION.
    Eor the petitioner, Furst Furst.

    For the respondent, William Greenfield.

   Mountain, J.

The petitioner in this case seeks an order of this court directing the respondent to proceed with an alleged arbitration agreement.

The petitioner urges that a broker by the name of John B. Stratton, associated with M. W. Houck & Brother, of New York City, at the request of Samuel Mankowitz, trading as House of Mankowitz, took an order for one hundred bags choice E/c lima beans for the account of California Lima Bean Browers Association, subject to confirmation by it. The latter was received and a bought and sold note was sent to the seller, as well as to the purchaser of the beans. This bought and sold note is as follows:

“M. W. Houck & Bro., brokers, 100 Hudson street, New York, Sept. 25, 1930. Sold to House of Mankowitz, 656 Ogden street, Newark, N. J., for account of Calif. Lima Bean Growers Assn., Oxnard, Calif., 100 bags choice E/c lima beans.

“No. C-804. Terms: Eeg. Calif. Lima Bean Cont. Shipping instructions: October l-15th/30. Pack: 1930. Price: $9.30. Delivery f. o. b. steamers clock, Calif.

“Bought and Sold Notes executed by E. Date 9/26.

“All disputes arising hereunder shall be arbitrated before the Dried Fruit Assn, of N. Y. Seller guarantees goods to conform to National Pure Food Law. This memorandum shall be subordinate to more formal contract when and if such contract is executed. In the absence of such contract this memo represents the contract of the parties.”

The note was not signed by the broker. The purchaser refused to execute the contract which followed the note, and declined to take delivery, alleging that he had made no contract with the broker.

1. It is insisted that the failure of the broker to sign this note is fatal. The statute is satisfied if the terms of the contract are in writing, and the names of the contracting parties appear, provided the broker had the authority to act. Weyl, Zuckerman & Co. v. Schnell, 96 N. J. L. 558; Woodworth v. Champlin, 23 N. J. L. J. 143. Thus a duly authorized broker may fill out a memorandum of the sale and if it contains the names of the buy-er and seller, a description of the goods and the terms of the bargain, the case is brought within the statute.

2. The respondent, by his affidavit, alleges that it never retained the services of the broker. There can be no arbitration if the contract of submission is denied by one of the parties. Arbitrators derive their authority from the agreement. It would be anomalous to say that they have the power in a case like this to first decide if they are arbitrators before they proceed with an investigation of the matters supposedly submitted to them. There must be submission before arbitration.

3. Authority given an agent to buy beans does not give him authority to make a contract to submit to arbitration. Of course, it might be shown that there were previous dealings between the parties and.that these dealings were in accordance with known usages in the trade. The habit of dealing between the parties might be admitted as evidence of an extension of the ordinary reach of the authority. Story Ag., § 98. The Arbitration act (Pamph. L. 1923, p. 291), provides that the judge hearing such application must be satisfied before it is granted that the making of the agreement or the failure to comply therewith is not in issue. If the making of the agreement or the default be in issue an order shall be made directing a summary trial thereof.

4. It has been urged that the court had no power under the Arbitration act to direct that matters in difference be submitted to an arbitrator or arbitrators residing in a foreign state. There can be no question but what the court has jurisdiction to do this if the parties have so agreed because the act reads that the judge “upon being satisfied that the making of the agreement or such failure to comply therewith is not in issue, shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.”

5. In view of the fact that Samuel Mankowitz denies having dealt with John B. Stratton as his broker, that issue as well as the extent of the broker’s authority, if any there was, should be determined by a summary trial as provided in section 3 of the Arbitration act. Pamph. L. 1923, p. 291.


author: Holland, J.

text:
    Morris County Common Pleas.
    JAMES THOMAS, PETITIONER-APPELLEE, v. LIONDALE BLEACH, DYE AND PRINT WORKS, RESPONDENT-APPELLANT.
    Eor the petitioner-appellee, John C. Grimshaw (Turner & Stoiler, on the brief).
    Eor the respondent-appellant, Kellogg & Chance (Edwin O’Brien, on the brief).
   Holland, J.

On May 29th, 1925, the petitioner, James Thomas, while in the employ of the respondent, fell off a moving elevator and hurtled down the elevator shaft. As stated in the brief of the respondent-appellant “an agreement of compensation, settling the matter by an award of twenty-five per cent, of total permanent disability was entered into between the petitioner, through his attorney, and the respondent through its attorney, under date of September 20th, 1926, which agreement was duly approved by the; deputy commissioner.” The order of the New Jersey department of labor, workmen’s compensation bureau, called “determination and rule for judgment,” recites “the deputy commissioner was asked to approve this compromise and enter an award on the same.”

A petition for increased disability was filed in April, 1929, within the one-year period prescribed by section 5, as amended by Pamph. L. 1921, p. 731, and the bureau awarded an increased compensation of sixty-six and two-thirds per cent. An appeal is taken from this ruling.

Counsel for the respondent-appellant contends that a “judgment” was entered, and therefore that the petition for increased disability was not filed within time, and relies upon the ruling in the case of Herbert v. Newark Hardware and Plumbing Supply Co., 8 N. J. Adv. R. 487, in which the Supreme Court (Mr. Justice Parker writing the illuminating opinion) held:

“The payment of the previous judgment was not such a ‘last payment of compensation’ in the intendment of the statute as would support an application to ‘review ,the award’ within a year after such payment of the judgment;” but the sort of judgment there referred to is one “of a contested claim, litigated and reduced to judgment,” the point being “that a case solemnly adjudicated should not be reopened for the purpose of allowing a party to make a.new and distinct case.” And I find that the petition was properly filed, within time. Herbert v. Newark Hardware, supra; Harris v. International Motor Co., filed in New Jersey Supreme Court on January 21st, 1931.

In the case at bar, the disability of the petitioner was not solemnly adjudicated; it was compromised and agreed upon by both parties as a twenty-five per cent- permanent disability, and an order of the workmen’s compensation bureau on such compromise and agreement was entered by consent. The actual reason for arriving at the agreement and compromise, that is, whether it was liability, defects as to jurisdiction, assumption of liability or extent of injury is not stated anywhere in the record of the first petition.

Eespondent-appellanLcoutends that the extent of permanent injury on the first petition was fifty per cent, and now argues that that was the matter in difference compromised for twenty-five per cent, and consequently if petitioner is entitled to anything at all for increased disability, he is entitled only to the excess of fifty per cent., notwithstanding that the compromise award provided only a twenty-five per cent, permanent disability. I do not find this contention to be a good one.

In Lusczy v. Seaboard By-Products Co., 101 N. J. L. 174, the Court of Errors and Appeals held:

“In case the agreement is only for part of the compensation which ought to be paid, and the employer lives up to his agreement and pays the compensation therein provided, a claim for any additional compensation must be filed within one year after the last payment was made.”

I find that as a result of the accident, the petitioner is to-day permanently disabled to the extent of sixty-six and two-thirds per cent.; that he has already received twenty-five per cent, and is now entitled to recover the balance of forty-one and two-thirds per cent.

The judgment below is affirmed, with costs.


author: Goldberger, J.

text:
    District Court of Perth Amboy.
    PERTH AMBOY TRUST COMPANY, A CORPORATION, PLAINTIFF, v. THE MODERN SCHOOL ASSOCIATION OF NORTH AMERICA, MAX GOLDSMITH AND JONAH GOLDSMITH, DEFENDANTS.
    For the plaintiff, Harry 8. Medineis.

    For the defendant Modern School Association of North America, Fred Dahmer.

   Goldberger, J.

This is an action upon a promissory note, brought by the endorsee against the maker, Modern School Association of North America, and Max Goldsmith and Jonah Goldsmith as endorsers. The endorsers do not defend.

On the back of said note appear the following words “accepted in full pajunent for balance due as per contract dated June 18th, 1930.” It is therefore contended that the said note is non-negotiable, and that the plaintiff takes the same subject to all equities. Counsel refers to case of International Finance Corp. v. Galvert Drug Co., 124 Atl. Rep. 891, as confirming his contention, with which opinion, however, I do not agree. In that case the words “as per Relio contract for amount and date shown hereon” followed the words “accepted for payment.” In that case the acceptance stated a condition upon which payment was to be made. In other words, using plain language, the acceptor practically said “I will agree to make this payment in accordance with the terms and conditions set forth in the Relio contract.”

The memorandum on the back of the note in question was intended by the maker (who I presume wrote the same) to merely identify the transaction in connection with which the note was given. In other words, the payee said to the maker: “I accept your note of $175 in full for balance due as per contract dated June 18th, 1930.”

The mere fact that a note refers to some transaction or that it was given in payment of some chattels, does not make the note non-negotiable, and will not allow the maker to set up equities as against bona fide endorsers for value. Brannan’s Negotiable Instrument Law (4th ed.Q 43, &c.; Continental Guaranty Corp. v. People’s Bus Line, 117 Atl. Rep. 275.

In determining whether or not a reference in a note to an extraneous writing renders a note non-negotiable, the court is, of course, confined to its examination of the note itself, and cannot look to the provision of the extraneous writing for assistance. It is the negotiability of the note which is being determined, and not the extraneous writing. Waterbury-Wallace Co. v. Ivey, 99 N. Y. Mis. R. 260; 163 N. Y. Supp. 719.

In the last said case the court held that the words “as per contract of November 12th, 1915,” as found in the note, did not make the note non-negotiable.

In 3 R. C. L. 883, f 69, it is said:

“It may be stated as the general rule that whenever a bill of exchange or promissory note contains a reference to some extrinsic contract in such a way as to make it subject to the terms of that contract as distinguished from a reference importing merely that the extrinsic agreement was the origin of the transaction, or constitutes the consideration of the bill or note, the negotiability of the paper is destroyed.”

But the same work at section 112, page 918, holds that:

“The negotiability of a note is not affected by a reference which is simply a recital of the consideration fir; which the paper was given, or a statement of the origin of the transaction, or by a statement that it is given in accordance with the terms of a contract of even date between the same parties.”

An unqualified order or promise is unconditional as within the meaning of the Negotiable Instrument law of this state, though coupled with * * * a statement of the transaction which gives rise to the instrument. 3 Comp. Stat., p. 3735.

Having held, as I do, that the note in question is a negotiable one, it is not necessary for me to decide whether or not the defendant Max Goldsmith complied with the agreement referred to in the contract, although I am of the opinion that the Modern School Association has not proven its allegations of default on the part of the said Maz Goldsmith.

Judgment for the plaintiff.


text:
    District Court of Perth Amboy.
    ROSE RICHARDSON, PLAINTIFF, v. STEVE SCIGNLINSKY, DEFENDANT.
    For the plaintiff, Alfred D. Antonio.

    For the defendant, Joseph F. Deegan.

   Goldberger, J.

This matter comes before me on an application to restore to the list the aforesaid cause, same having heretofore been marked “not moved.”

Objection is made that section 148 A of the District Court act (chapter 107, laws of 1930) prevents such action. The records in the case show that this matter had been marked “not moved” and restored to the list approximately eight times since 1926, at which time the suit was instituted. The last time was December 1st, when an order appears to have been made by the late Judge C. 0. Hommann, and at the same time substituted the First National Bank of Perth Am-boy, executor of the estate of Steve Scignlinsky, said defendant having died more than one year prior thereto. It is contended by the defendant that the said section of the District Court act is retrospective, and that the order heretofore made by the late judge was illegal, and that the case having been marked “not moved” and permitted to lie dormant for more than two years prior to the passage of the District Court amendment, could not now, nor could it be restored to the list, and that a new suit must be instituted.

The statute in part reads as follows:

“148 A. Any District Court in which a suit or proceeding is instituted by virtue of this act may at the request of either plaintiff or defendant * * * order said cause Mot moved/ in which ease either party may bring said cause to trial by directing the clerk of said court to put said cause on the list for a certain day, which said day shall be within two years from the day upon which said cause was marked Mot moved’ and not thereafter.”

It is a general rule in the interpretation of statutes that they should not be allowed a retrospective operation when this is not required by express command or by necessary and unavoidable implication. Chew Heong v. United States, 112 U. S. 536; White v. Hunt, 1 Halst. 415; McGovern v. Connell, 43 N. J. L. 106; Public Service v. Board of Public Commissioners, 88 Id. 603.

However, the legislature is competent to give a statute a retrospective effect, except as prohibited by the constitution, from passing ex post facto laws or laws impairing the obligation of contracts; or unless vested rights of property would be effected. Some laws are necessarily retrospective, such as laws for confirming official acts, amending charters, correcting assessments, relating to remedies. People v. Supervisors, 43 N. Y. 130; Lane v. Nelson, 79 P. L. 407; Sturgis v. Carter, 114 U. S. 511; Vreeland v. Bramhall, 39 N. J. L. 1; In re estate of Cascio, N. J. L. J. 334, 338; St. Michael’s Church v. Doris, 74 Atl. Rep. 491.

In my opinion the expression in this statute “* * * in which suit or proceeding is instituted” must be regarded as meaning “in which any suit or proceeding is hereafter instituted.” The construction contended for by the defendant and which embraces pre-existing actions, rests upon the words “in which any suit is instituted.” All the other phrases clearly apply to the future onty; and as was said in McGovern v. Connell, “the most that can be said in favor of this construction is that the language used is indefinite as to time.” If it may mean “when any suit has been instituted” it may at least be plainly understood to mean “when any suit shall be instituted.” Eor such language in a statute there is a long-established rule of interpretation.

Whether an action once marked “not moved” and restored to the list can again be marked “not moved” and restored to the list is a question' not now presented.

The case will be restored to the list.


author: Backes, V. C.

text:
    Newark Morning Ledger Company, a corporation, complainant, v. Suburban Newsdealers' Association of the Oranges, &c., et al., defendants.
    [Decided March 30th, 1931.]

      Mr. Merritt Lane, for the complainant.

      Mr. Saul Tischler, for the defendants.
   Backes, V. C.

The Suburban Newsdealers' Association of the Oranges is •composed of small shop keepers in that region who sell newspapers including the Newark Morning Ledger. That paper recently raised the price from $2.10 to $2.25 per hundred which is retailed by the dealer at three cents per copy. The members of the association refuse to handle the paper unless the price is restored and the Ledger refuses, and in this impasse the Ledger charges the association and its members with boycotting the paper. It is the right of the newsdealers to combine and to refuse to handle the paper except upon their terms as it is the privilege of the Ledger to refuse to sell except at its price. The refusal in either circumstance has a lawful purpose and the courts cannot intervene. It is a case of the survival of the fittest.

It is charged also that the dealers' association has by threats intimidated non-members not to handle the paper. If this were established it would be enjoined. They have not the right to coercively persuade others to- join them, though others may freely do so sympathetically if not unlawfully weaned. The proof is that the struggle is confined to the members. There is no proof of intimidation.

The Ledger has asked its readers not to patronize dealers who refuse to handle the paper. By that yardstick may be measured the corresponding right of the dealers to enlist the friendly aid of non-members in the lawful warfare which promises but harm to both sides.

Injunction dissolved.


author: Parker, J.

text:
    RICHARD DORISON, PLAINTIFF, v. IRVING SHULTZ AND BESSIE SHULTZ, HIS WIFE, MORRIS SCHULTZ AND CLARA SCHULTZ, HIS WIFE, AND SAUL NEMSER, DEFENDANTS.
    Decided March 26, 1931.
    Before Justice Parker at Chambers.
    Eor the plaintiff, Pierson, Schroeder •& Brand.

    Eor the defendants, Saul Nemser.

   Parker, J.

The suit is for a deficiency over a sale in foreclosure. The complaint sets up a bond and mortgage made by the defendants to the plaintiff, default in the payment of the bond, the institution and completion of a suit to foreclose, sale by the sheriff within the statutory period before beginning of the suit, which sale was to the plaintiff who bid $100 for the first tract and $100 for the second tract, leaving a deficiency of some sixteen thousand odd dollars. The answer admits the making of the bond and mortgage and pleads ignorance of the other matters set up in the complaint. However, it is perfectly clear from the affidavits of the defendants themselves that they knew all about the progress of the foreclosure and that they, or some of them, attended at the sale. Consequently there is no question of fact so far as the allegations of the complaint are concerned. It is set up by way of special defense in the first place, that the complaint does not state the cause of action; and secondly, that it does not allege any breach of the bond, or default, or plead the condition of the bond. The complaint does all of these things and I see nothing wrong about it as a legal pleading. Probably these attacks were directed at the original complaint which was withdrawn and an amended complaint substituted. However, this may be the complaint as now before me is good.

As to matters of fact, the answer sets up that on the day of sale it was agreed between the parties that the defendants should not bid at the sale and that the plaintiff should be allowed to buy in at a nominal bid, and that in consideration thereof the plaintiff would not sue for deficiency; that accordingly, the defendants refrained from bidding and the plaintiff did buy in at a nominal bid, and consequently is now estopped from bringing this present action. The affidavits show that none of the defendants was prepared to bid at the sale, but that they had gone to see a man named Max Goren, a real estate operator, whose affidavit is before me and who says that he agreed to help the defendants by bidding at the sale, as he had examined the property and concluded that it was good value for $17,000, so that he was prepared to take it over for that price, or if defendants could finance the matter later on, he was ready to give them the benefit of his purchase; that accordingly he went to the sale with the two Shultz defendants and had a talk with the plaintiff and plaintiff’s attorney, got a statement of the amount due on the decree, and that the plaintiff said that he wanted the property and that no one need fear a deficiency suit because it would open the foreclosure, which he did not wish to do. I need not go further into the details of the matter. So far as relates to the sufficiency of the affidavits for the defendants, they raise questions of fact which if valid in law would clearly take the case to a jury and prevent an award of summary judgment at this time.

The case, therefore, comes down to the question whether the fact that plaintiff agreed, in consideration of Goren refraining from bidding, not to sue for a deficienc}*, made a legal contract or estoppel. Goren, while interested on his own account, was brought in by defendants, and I hold for present purposes that any lawful agreement with him by plaintiff relating to the sale and bidding enured to the benefit of defendants.

The question is then whether there was any lawful agreement; and this I answer in the negative. The law does not tolerate any influence likely to prevent competition at a sale such as this, particularly an agreement to stifle bidding. 35 C. J. 39, 40; National Bank v. Sprague, 20 N. J. Eq. 159. And where the transaction has been carried through pursuant to an unlawful agreement, the law will not aid either party as against the other but will leave both where it finds them. Gregory ads. Wilson, 36 N. J. L. 314.

Hence the agreement, if there was one, was unenforceable by either party 'against the other, and the fact that one party performed it gives no right of action or defense against the other party. As to estoppel, I cannot see that it features in the ease. The claim is that the defendants’ friend was induced to forego his right to bid by an agreement not to press for deficiency. That was a contract, and an illegal one.

I conclude that the answer should be struck out and summary judgment entered. The statute gives defendants all the relief to which they are entitlde by opening the foreclosure and preserving the right to redeem until six months after final judgment herein. Comp. Stat., pp. 3420, 3423; Pamph. L. 1915, p. 339.


text:
    JOSEPH BERMAN, PROSECUTOR, v. MIKE LEVENSTEIN ET AL., RESPONDENTS.
    Submitted February term, 1931
    Decided March 26, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutor, Paul Rittenberg.

    For the defendants, Frank G. Turner.

   Per Curiam.

This is a workmen’s compensation case and the question is solely one of fact. The main issue is whether on the 7th day of September, 1924, while the petitioner was working in a slaughter house belonging to one of the defendants and under the employment of another defendant, the brother of the first, he was injured while preparing a calf to be slaughtered, by the calf breaking away and treading upon the petitioner’s right foot. This alleged injury, according to the testimony of a physician called for the petitioner and who treated him in the hospital, stirred up a latent disease known as Buerger’s disease, which affects the blood vessels, and resulted later in gangrene, which required the amputation of petitioner’s leg below the knee several months later.

The defense was, in substance, that no such accident occurred ; that the petitioner had been suffering for years with a diseased foot which had been frozen sometime before, and that about six weeks after the alleged- accident’ he stumbled ■over an obstruction in the sidewalk in Paterson at night because it was not properly lighted, and that this was the occurrence that stirred up the latent disease.

There were two hearings before Deputy Commissioner Goas. Erom his determination, it appears that there were several sessions in 1925, as the result of which he awarded judgment in favor of the respondents—first, because petitioner had failed “to establish by a preponderance of the evidence that the alleged injury claimed by him grew out of an accident arising out of and in the course of his employment,” and also that no notice was given by the petitioner to the respondents of the alleged accident, and that the said alleged accident did not occur. Petitioner asked that the judgment be opened for rehearing and this was done. The finding ■of the commissioner recites that the judgment had been opened to give the petitioner every available opportunity of establishing by a preponderance of the evidence that he was injured in an accident arising out of and in the course of his employment, and again concluded that the petitioner was not injured as alleged, and also that no such notice was given, and that the amputation of the leg was not caused as a result of any accident arising out of and in the course of his employment. Accordingly, on July 29th, 1927, judgment was entered once more in favor of respondents and against the petitioner. The latter appealed to the Passaic Court of Common Pleas, which affirmed the judgment of the commissioner, and the matter is now before us on certiorari.

The deputy commissioner is entitled to a great deal of ■credit for the patience displayed by him in listening to the enormous mass of testimony, relevant and irrelevant, amounting in all to six hundred and thirty-seven pages, which has been sent up with the state of the case and which we have duly examined. As already stated, the main issue was whether any such accident occurred; the petitioner and his witnesses asserting it on the one hand, and the defendants and their witnesses denying it on the other. The petitioner produced, in the course of the testimony, a number of alleged eye-witnesses who, according to the claim of the defendants, were not present at the time at all; and this was one of the subordinate issues in the ease. Although the petitioner claimed to have cried out at the time of the alleged injury and to have told his employer on the spot about it, and to have received first aid treatment at the time, all this was vigorously denied. Corroborative of the denial was the testimony of two reputable physicians to whom the petitioner went for treatment, the first, immediately after the date of the alleged accident, and the second, about a month later, both of whom testified that they found a diseased condition of the leg and inquired how it could have come about and petitioner told them that he had frozen his foot some years previously in the old country, and that he said nothing whatever about any accident at the slaughter house. Several witnesses for the defendants also testified at the second hearing that they had been approached by the petitioner, or some one for him, and requested to testify to having been present at the time, although they had not been, and that they had refused so to-' testify. A large portion of the testimony was devoted to lengthy cross-examination of petitioner’s witnesses with a view of impeaching their credibility bjr conviction of crime, &c., with more or less success.

Apart from what we understand to be the rule applicable to this class of cases that when two independent and distinct tribunals, such as the labor bureau and the Court of Common Pleas, have examined the facts and heard the testimony, a conclusion reached by both of them should not be lightly disturbed by this court (Mountain Ice Co. v. Durkin, 144 Atl. Rep. 6; affirmed, 147 Atl. Rep. 451), our examination of the evidence leads us independently to the same conclusion as that reached by the subordinate tribunals; in particular that there was a manifest failure to prove by satisfactory evidence either that the accident occurred or that notice thereof was given in due course.

The judgment brought up will accordingly be affirmed, with costs.


author: Elbrebge, J.

text:
    Camden County Circuit Court.
    HOWARD G. TOONE, PLAINTIFF, v. HELEN SKORUPSKI, DEFENDANT.
    Eor the plaintiff, Clifford A. Baldwin.

    For the defendant, William S. Darnell.

   Elbrebge, J.

The plaintiff, Howard G. Toone, filed his state of demand in the District Court of the city of Camden to recover upon the first count the sum of $150, alleged to be due on a certain promissory note therein set out, and to recover upon the second count the sum of $22.50, attorney’s collection fee of fifteen per cent, in accordance with the provisions of the said note.

To that state of demand the defendant filed her answer and then set up a counter-claim against the plaintiff in the sum of $609 alleged to be due her as damages by reason of the fact that the plaintiff had wrongfully caused her discharge from her place of employment. The counter-claim being for an amount in excess of the statutory jurisdiction of the District Court, the defendant now presents her petition to have the cause removed from the District Court to the Circuit Court of Camden county, under the provisions of chapter 152 (Pamph. L. 1928), which provides as follows:

“Whenever in any answer to any action brought in any District Court now or hereafter created under the provisions of the act to which this is a supplement, the defendant shall file any set-off, counter-claim, discount or recoupment for amount claimed in such set-off, counter-claim, discount or recoupment shall exceed the sum or value limited for the jurisdiction of said court, such action shall, upon application on behalf of the defendant * * * upon order of the court, be transferred with the record thereof and all papers filed in the cause for hearing and determination, to the Circuit Court of the county in which such District Court is situate •1= * * providing same shall not be transferred unless the judge of the Circuit Gourt * * * make an order that he finds that there is reasonable cause to believe that the set-off, counter-claim or other defensive action is founded on fact and that there is reasonable chance for success upon the trial of the same by the party who files said set-off, counter-claim or other defensive action.”

Removal of the cause is opposed by counsel for the plaintiff, who contends that the counter-claim is not for liquidated damages, and hence the prayer of the petitioner ought not to be granted, to which counsel for the defendant replies that (1) the counter-claim is for liquidated damages, and (2) even though it is not, the prayer of the petitionér ought to be granted because the act of 1928 does not require that a set-off or counter-claim be for liquidated damages in order to entitle the cause to be removed, but that this limitation upon the right of removal from the District Court to the Circuit Court applies to a recoupment only.

These contentions will be discussed and disposed of in reverse order.

It is to be noted that no authority is cited by counsel to support his interpretation of the act of 1928, and while it is true that the law makes distinctions between a set-off, a counter-claim, and a recoupment, there appears to be no-logic in the view that such a distinction was intended to be made respecting the portion of the statute in question. The evident intent of the act was to require a reasonable degree of certainty respecting the amount of the defendant’s damages, whether those damages be alleged by way of set-off, counter-claim or recoupment, before he should be entitled to the removal of his case from the District Court. The case-of Tigler v. Fabrics Furnishing Corp., 8 N. J. Mis. R. 303, while not a binding authority on the question, as the point under discussion was not there raised, is nevertheless interesting in the fact that a counter-claim was there involved and the case turned upon the question of whether the damages alleged were liquidated or unliquidated. It is the judgment of the court that the act of 1928 requires that the damages be liquidated, regardless of the nature of the claim, before the defendant is entitled to his order of removal

That brings us to the second question, as to whether or not the damages in this case are liquidated or unliquidated. Mr. Justice Dixon, in the case of Heckscher v. Trotter, 48 N. J. L. 419, says: “The general rule adopted by all courts is consistent and uniform that where the cause of action arises on a debt or a money demand, or where it sounds in damages but the damages are capable of being ascertained with certainty by mere arithmetical computation, the damages are liquidated,” but “where the cause of action consists merely in a right to recover some damages but those damages are general, indefinite and undetermined or incapable of being reduced by calculation to a proper degree of certainty without the intervention of a jury” the damages are unliquidated

It is apparent to the court that the damages sought to be recovered in this ease fall within the latter class. Generally speaking, liquidated damages are such as have been agreed upon by the parties in a contract into which they have entered, or at least they must be “capable of being ascertained with certainty by mere arithmetical computation.” It is true that wages at a fixed sum per week for a fixed number of weeks may be ascertained by arithmetical computation, but that computation presupposes a contract fixing such wages and establishing the length of time of the hiring. No such contract is alleged.

Paragraph 1 of the counter-claim merely alleges the employment of the plaintiff by one Robert C. Taylor at the price of $43.50 per week. Paragraph 2 alleges refusal to pay the note and the offer of the return of the coat for which the note was given. Paragraph 3 alleges that the plaintiff wrongfully caused the discharge of the defendant, whereby she lost the sum of $43.50 for fourteen weeks, or a total of $609.

There is, it will be noted, no allegation that there was any contract of hiring whereby the continuance of the employment was in any sense assured. The total of fourteen weeks for which recovery is sought is purely arbitrary. It represents a period from the date of the discharge until the beginning of the suit. Had the suit begun earlier or later, the claim would have been for a smaller or larger amount, as the case might be. A mere employment raises no presumption of a contract for a definite period of time. Employment generally continues at the pleasure of the employer. The amount of damage suffered by reason of a wrongful discharge where no contract of employment for a specific time at a specific wage is alleged is a question “incapable of being reduced by calculation to a proper degree of certainty without the intervention of a jury,” and hence such damages are unliquidated.

The view of the court being that a counter-claim must be for liquidated damages to entitle the defendant to have his cause removed to the Circuit Court, and that the counterclaim here present in this case is for unliquidated damages, the prayer of the petition will be denied