author: Delaney, C. P. J.

text:
    Passaic County Court of Quarter Sessions.
    IN THE MATTER OF THE APPLICATION FOR THE VACATING AND QUASHING OF A SEARCH WARRANT ISSUED AGAINST THE PREMISES, THE RESIDENCE OF AARON L. SIMON, NO. 18 TEMPLE PLACE, PASSAIC, NEW JERSEY, AND IN THE HOME OF IRWIN SIMON, AND IN THE FORMER OFFICES OF AARON L. SIMON, NO. 174 COLUMBIA AVENUE, PASSAIC, NEW JERSEY, AND THE RETURN AND PRECLUSION OF ANY AND ALL EVIDENCE SEIZED AS A RESULT OF THE SEARCH.
    Argued June 4, 1934
    Decided February 26, 1935.
    For the petitioners, Minium & Weinberger (Harry H. Weinberger, appearing personally).
    For the state, James D. Carpenter, Jr.', assistant attorney-general.
   Delaney, C. P. J.

Petitioners seek to quash the search warrant permitted in the instant proceedings, thus desiring to nullify the entire proceedings which would result in the return and preclusion of any and all papers and things seized in the search. Their basic contention is that the search was unreasonable as violating provisions in the state and federal constitutions. As supporting this belief, their numerous grounds assert that there was a lack of probable cause, that there was a failure of a particular description, that the proceedings authorized a search of more than one property and of the effects of more than one person, and, further, that a search was made of premises in possession of persons who were not mentioned in the proceedings.

The state contends the entire proceedings were regular and in conformance to the legal requirements. The opinion of this court is that proceedings were proper. The search warrant, together with the supporting affidavit of Chief Frederick Senz, of the prosecutor’s office, were in form sufficient and certain. What was done in reliance of the search warrant was a pursuit of the mandates of the directions contained in the search warrant. The question of sufficiency and certainty, which forms the basis of the actions of the proper authorities in executing the search warrant, is greatly stressed. This suggests petitioners’ objections that the proprieties were not observed and that, therefore, the proceedings are invalid. There are other objections, which will be reviewed later.

But proprieties and essentials are not identical. A suggestion of proper form is not to be understood as requiring the minuteness of detail in particular description, such as seeking a separate warrant for each person, and for each premise to be searched. The desire of proper form is to' bo understood to prescribe the minimum of sufficiency. See State v. Von Geldern, 10 N. J. Mis. R. 1045; 162 Atl. Rep. 183. In the present case, the law requires a sufficiency and certainty only to the degree that the premises and persons are subject of such identification that peace officers, who are ordered to execute the same, can follow the mandate without difficulty. In 56 Corp. Jur. 1232, it is stated that an exact, technically legal, description is not as a rule required, but that all that is required is that the description must be such that any person familiar with the locality can by inquiring identify the premises described. Also in support is United States v. Borkowski, 268 Fed. Rep. 408. Testing the present warrant and affidavit npon these principles, the form as to sufficiency and certainty of description was adequate although not containing every propriety that would make the description technical in every respect. A reading of the proceedings would apprize the peace officers just what to do, even though the law permits an inquiry in order to guide them to the place intended.

This leaves it clear that the peace officers were directed to search premises for effects of Dr. Aaron L. Simon located in the home of Aaron L. Simon, at 18 Temple Place, and in the home of Irwin Simon and in the former offices of Aaron L. Simon, 174 Columbia avenue, all in Passaic. But then comes the next objection that different persons tenant and are in possession of the premises in question, and that, in addition, premises known as No'. 176 Columbia avenue, were entered. Why are search warrants issued ? They are authorized for the purpose of seizing effects as evidence. This then suggests that the premises, rather than personages, are the important subject of consideration. Por, it is logical to assume that evidence may be in possession of an innocent person unconnected with any crime, and that what would be sought, is to search premises with a description that would apprize the peace officer as to the location. That is done here. Whether Dr. Simon still occupied them, or someone else, is not of essential consideration as the use of his name and of Irwin Simon was correlated to contain a description that would give forth the identity of the place to be searched. Assuming that the warrant was directed to 174 Columbia avenue, and did not include 176 Columbia avenue, this would not vitiate the warrant for lack of description for the warrant is directed to the “former offices of Aaron L. Simon, 174 Columbia avenue,” and the peace officer is to employ that description to' identify the former offices of Dr. Simon. There is nothing suggested that they were not his former offices. All that is asserted is a present status of possession. There is nothing to condemn the action of the peace officer; nothing is said that his inquiry did not show that all the premises searched were the former offices of Dr. Simon. Again, it is clear that the law affords and requires a particularity of description only to the extent that it serves as an identification.

Dispositive is a short statement in 56 Corp. Jur. 1232, where it is stated:

“* * * and a description will not be insufficient where the person named therein was neither the householder, nor the owner of the premises, but was a member of the owner’s family.”

It is also asserted in the same volume, that, where the place to be searched is otherwise properly described, the description or the name of the owner or occupant is not necessary provided he himself is not to be searched.

On the questions that separate search warrants are required for each premise to be searched, the law is otherwise. Gray v. Davis, 27 Conn. 447; 3 A. L. R. 1518; Boone v. Com., 206 Ky. 657, and 56 C. J. 1234.

This disposes of all the questions raised except as to the fact that no probable cause existed. There was probable cause, however, as tested under the rule of Lane v. Pennsylvania Railroad Co., 78 N. J. L. 672; 76 Atl. Rep. 1016, which is as follows:

“Probable cause” means reasonable grounds for suspicion, supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that accused is guilty of the offense charged; and, to constitute probable cause, a prosecutor need not necessarily have personal knowledge of the transaction of which he complains, but may act upon information communicated to him in the ordinary routine of business, where he honestly believes such information to be true and the information is of such character, and is communicated in such a manner that, under similar circumstances it would be acted upon by a business man of ordinary prudence. * * * The question of probable cause does not turn upon a consideration of what were the facts of the case, but upon a consideration of what were the facts as they appeared or were known by, or were believed to be, by the person making complaint; the controlling fact being not whether there was actual cause for the prosecution, but whether the person instituting it had probable cause for doing so * *

Guided by this rule, the issuance was legal and proper. Chief Senz possessed sufficient grounds for he had information that showed he, honestly, believed there existed the commission of crime or crimes in Passaic and Monmouth counties.

The motion for an order quashing the search warrant issued in the premises and the return and preclusion of any and all evidence seized as a result of the search is denied.


source: Caselaw Access Project

author: Dawes, A. M.

license: Public Domain

text:
    Benjamin G. Robinson, petitioner, v. Clara Kulton Robinson, defendant.
    [Decided July 15th, 1932.]

      Mr. Harvey T. Satterfhwaite, for the appellant.

      Mr. George A. Celia, for the respondent.
   Dawes, A. M.

This petition was filed by the husband against his wife for adultery with one Alfred Denito.

The facts are briefly this:

In the month of August, 1929, the defendant asked the petitioner for funds for a two-day vacation to her sister in New York and she went on a Thursday ostensibly to visit her sister. On the same day the defendant left on her vacation to go to her sister’s, that sister unexpectedly arrived in Trenton and upon defendant’s return from New York she was confronted with the falsity of her statement that she had visited her sister. She then stated that she stayed with a friend in that city and petitioner conferred with Aroniss, the brother-in-law, who was the husband of his wife’s sister, and on the following Monday after the Hew York trip this brother-in-law and his wife met at the petitioner’s home with the defendant and Denito. There the defendant boldly stated that she had been with the co-respondent at the Hotel Martinique in Hew York City and was in love with him and wanted to elope, and the co-respondent, Denito, also stated at that meeting that he could not live without the defendant. However, after the discussion and the good offices of Aroniss and his wife the defendant then promised her husband that she would give up Denito and “everything seemed patched up.”

The evidence, however, reveals that the defendant and co-respondent were after their promises in each other’s society taking automobile rides late at night, dining late in a restaurant, all of which actions on the part of the defendant were violative of her promise to discontinue going with Denito.

The cruz of the case, however, is largely the Hew York visit and the Martinique affair consists largely of the defendant’s admissions. On the night preceding the Hew York visit she was seen embracing the co-respondent in the hallway of her home.

At the hearing the defendant told an obviously fabricated story of taking a steamer for Portland, Maine, when she found out her sister was not at home in Hew York. The testimony of the co-respondent shed no light but rather darkness upon his conduct. He testified that he could not remember whether he was present at the conference above mentioned when the matter of his being in Hew York was under discussion. He could not remember whether Mr. Eobinson, with a revolver in his hand, threatened to shoot. When asked: “Do you say that that occurrence did not take place ?” he answered, “I do not recall.”

' The evidence of the co-respondent’s wife was that she found in the traveling bag of the co-respondent on his return from Hew York on the occasion of Mrs. Eobinson’s visit to Hew York, a cake of soap marked Hotel Martinique.

The principal testimony came from Aroniss, the brother-in-law, who testified to the admissions of the defendant made at the conference and it seems to' me that his testimony must be given credit, for if his testimony were false his wife, a sister of the defendant, was present at the conference and was present at the hearing accompanying the defendant and could have refuted the damaging testimony given by her husband. But she was not called as a witness and I can see no reason for disbelieving the Aroniss testimony.

Condonation was urged and the defendant testified that marital relations continued with the petitioner fot several months after the conference. The petitioner denies that such was the fact but it seems to me that the testimony in this case shows such a degree of intimacy between the defendant and the co-respondent continued down to the filing petition which violated the condition upon which condonation was predicated.

I therefore find the defendant guilty and that the defense of condonation has not been sustained. Denito, the corespondent, made himself a party defendant in these proceedings and he should be held responsible for the costs and expenses of these proceedings under the case of Duke v. Duke, 70 N. J. Eq. 135, 149; 62 Atl. Rep. 466, and 72 N. J. Eq. 155; 73 Atl. Rep. 837.

I shall advise a decree in accordance with these findings.


author: Perskie, J.

text:
    HERMAN J. SAMUELSON, TRADING AS UNITED FEED COMPANY, PLAINTIFF-RESPONDENT, v. BENNETTE GOLDBERG, DEFENDANT; MORRIS ROSENBERG, CLAIMANT-PROSECUTOR.
    Decided February 20, 1935.
    Before Justice Perskie, in chambers, pursuant to statute.
    For the respondent, Albert Kuchinslcy.

    For the prosecutor, David A. Veeder.

   Perskie, J.

Bennette Goldberg, a poultry farmer, on February 20th, 1934, sold and delivered to Morris Rosenberg a cow and calf. Shortly thereafter, Goldberg sold and delivered to Ro'senberg all his chickens and eight brooder houses. Ho effort was made to comply with the Bulk Sales act. Herman J. Samuelson, trading as United Feed Company, by virtue of a judgment, obtained against Goldberg on March 9th, 1934, levied on the cow, calf and brooder houses then in Rosenberg’s possession. On the trial of a claim of property by prosecutor the trial judge directed the jury to return a verdict in favor of the respondent on the sole ground that the sales came within the provisions of our Bulk Sales act. The writ of certiorari seeks to review the propriety of that ruling.

The only question, therefore, involved is whether the Bulk Sales act applies to the sales herein mentioned.

Perhaps it would not be out of place to restate the history of the legislation. It appears to be as follows: Pamph. L. 1907, ch. 237, p. 570; amended by Pamph. L. 1914, ch. 37, p. 59; Pamph. L. 1915 ch. 208, p. 377. The acts of 1907 and 1914 were specifically repealed by Pamph. L. 1930, ch. 37, pp. 148, 149. The act of 1915 was amended by Pamph. L. 1930, ch. 206, p. 966, and Pamph. L. 1932, ch. 225, p. 501. The last stated amendment is as follows:

“1. Section one of the act to which this act is amendatory be and the same is hereby amended to read as follows:

“1. The sale in bulk of the whole or a large part of the stock or merchandise and fixtures or merchandise or fixtures, or goods and chattels, otherwise than in the ordinary course of trade, and in the regular and usual prosecution of the seller’s business or occupation, shall be voidable as against the creditors of the seller, unless the purchaser shall, in good faith and for the purpose of giving the notice herein required make inquiry of the seller * *

Counsel for prosecutor points out, and correctly so, that this wording is identical with the original act passed in 1915, except that the word “voidable” has been substituted for the word “void.” The amendment of said section 1, chapter 206, {Pamph L. 1930, p. 966), in so far as the above quoted portion is concerned, is identical with the act of 1915. The purpose of the 1930 amendment was to further require the purchaser to search for personal taxes. That requirement has no bearing on the present controversy. The purpose of the 1932 amendment was (1) to change the word “void” to “voidable;” (2) to require the seller to furnish a list in writing “verified under oath by the seller to be a true and complete list;” and (3) to require all taxes that may be due on the goods about to be sold to be paid prior to the transfer of title.

An examination of the authorities leads to the conclusion that the sales in question are not subject to the terms of the statute.

In Van Genderen v. Arrow Bus Lines, Inc., 107 N. J. Eq. 217; 151 Atl. Rep. 605, the Court of Errors and Appeals, by Chief Justice Gummere, in deciding that the sale of a fleet of buses by a bus company did not come within the terms of the Bulk Sales act, said: “* * * that the class of vendors embraced in the statutory provisions are those whose business is the sale of stock or merchandise to intending customers who consort to the place where such stock or merchandise is kept for sale to such persons. The prohibition of the statute, as we see it, is directed solely at the bulk sale of this stock or merchandise by a person carrying on such business, and includes the sale of the fixtures used by such person in the carrying on of that business.”

The Supreme Court, in Viera v. Marques, 8 N. J. Mis. R. 796; 151 Atl. Rep. 597; affirmed, 108 N. J. L. 420, refers to the sale of the stock and merchandise of a retail business.

In Gitt v. Hoke, 301 Pa. 31; 151 Atl. Rep. 585, the Pennsylvania Supreme Court, in construing a statute substantially similar to the New Jersey statute, determined that “the words ‘goods, wares and merchandise5 include commodities handled by merchants or dealers in the course of trade; not the unsold products of a manufacturer or a farmer’s produce,” and the fixtures intended are evidently those which belong .to the business; like trade fixtures, and not to the building.

The same court, in Northrop v. P. W. Finn Const. Co., 103 Atl. Rep. 544, held that the Pennsylvania Bulk Sales act was not applicable “as the property * * * consisted of horses, carts, hoisting machines, &c., such as constitute a builder’s equipment, were neither merchandise or fixtures within the meaning of the act.” See, also, Broad Street National Bank of Philadelphia v. Lit Brothers, 306 Pa. 85; 158 Atl. Rep. 866, which held that the Bulk Sales act does not apply to' the sale by a manufacturer of his own product, and that the weight of authority in other jurisdictions seem to be in accord. (Compare, however, a contrary construction of our statute by the Supreme Court of Errors of Connecticut, in Kranke v. American Fabrics Co., 151 Id. 312— machinery used in the manufacture of goods at wholesale). This case, however, was decided prior to the Court of Errors and Appeals case of Van Genderen v. Arrow Bus Lines, Inc., supra. See, also, 2 Williston on Sales (2d ed.) 1616, § 643, to the effect that as a general rule the Bulk Sales acts do not apply to manufacturers or persons not ordinarily engaged in trade.

In Gaspee Cab, Inc., v. McGovern, 153 Atl. Rep. 870, the Supreme Court of Bhode Island followed our decision in Van Genderen v. Arrow Bus Lines, Inc., supra, and held that the sale of taxicabs did not come within the meaning of the Rhode Island Bulk Sales act.

In Schwartz v. King Really, &c., Co., 93 N. J. L. 111; 107 Atl. Rep. 154, this court declared that “because the act is drastic in its provisions, and restrictive of the free alienation of property, it should be strictly construed and not be extended to a transaction, which does not come clearly within its terms.”

Bearing in mind that the act is in derogation of the common law right to purchase and sell property and that it is highly penal, it must be strictly construed and cannot, and should not, be extended beyond its plain language. Schwartz v. King Realty, &c., Co., supra; Gitt v. Hoke, supra.

Thus, in the language of our Court of Errors and Appeals in Van Genderen v. Arrow Bus Lines, Inc., supra, a poultry fanner, as here, is not an owner or one who sells in parcels in the regular and usual prosecution of his business. His business is not the sale of stock or merchandise to intending customers who resort, as is the ease with the usual tradesman, to the place where such stock or merchandise is kept for sale to such prospective purchaser or customers. The act is clearly intended to be confined and limited to the merchant or tradesman and not to the farmer.

The judgment of the court below is reversed, with costs.


author: Pee Cueiam.

text:
    LOTZ BROTHERS DAIRY, INCORPORATED, PLAINTIFF-RESPONDENT, v. WERNER & COMPANY, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted October 25, 1934
    Decided March 5, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Fmrilcel & Fmrilcel.

    For the respondent, no appearance.
   Pee Cueiam.

This is defendant’s appeal from a judgment of the Small Claims Division of the Clifton District Court. The suit was to recover the purchase price, $42, of certain valves ordered of defendant by plaintiff for use in its milk bottling plant. The contention was, and it is supported by evidence, that the valves did not match the sample furnished and did not fit properly; so that they could not be used. The defendant counter-claimed for $27 for work done on valves alleged to have been ordered to replace some of those furnished on the original order.

The first point is that a motion to strike out the state of demand should have been granted. The motion was on the ground that, since plaintiff was in effect setting up a rescission, it was incumbent upon it to plead a return of the goods or a tender thereof. The trial judge held that pleadings in small claims causes are informal and denied the motion, allowing an exception. We think that this was in the discretion of the court, as an amendment would have been, and that there was no error prejudicial to defendant since the meritorious question was tried out.

The exception to the denial of the motion to strike is the only one contained in the record, and there is no other point properly before us except possibly the contention that there was no evidence at all to support the judgment. After the denial of the motion the parties proceeded to introduce evidence. The trial court said at one point, “there is only a dispute as to the fitness,” and this seems to have been acquiesced in by the parties and their attorneys. There was evidence that the valves did not match the sample and were unsuitable for use in the dairy of the plaintiff. Upon this evidence the court was justified in finding for the plaintiff.

The judgment is affirmed, with costs.


author: Per Curiam.

text:
    JACK H. REMINGTON, PLAINTIFF-RESPONDENT, v. LAUTER COMPANY, DEFENDANT-APPELLANT.
    Submitted October 12, 1934
    Decided March 5, 1935.
    Before Justices Lloyd, Cash and Donges.
    For the appellant, Israel B. Greene.

    Por the respondent, Past & Fast.

   Per Curiam.

This is an appeal from a judgment of the District Court of the Second Judicial District of Essex county.

The facts are that one Ro'bson was an employe of the defendant-appellant, Lauter Company, and in 192?, being indebted to the defendant, he and his wife, Matilda Robson, agreed to turn over to defendant all their property. Among these properties was one in the city of Newark, 22 North Twelfth - street, title to which stood in the name of Mrs. Robson.

Mrs. Robson had on October 24th, 192?, authorized the plaintiff, Remington, to procure a purchaser for this property. Plaintiff had procured Goldberg & Galler as buyers and an agreement of sale was executed. Mrs. Robson agreed in writing to pay plaintiff a commission. Before the transfer of title under the agreement took place, a deed to defendant’s nominee was executed under the circumstances above mentioned.

The present suit is by the plaintiff to collect from the Lauter Company the commission which Mrs. Robson agreed to pay him for procuring the purchaser.

There was testimony that at the time Mrs. Robson signed the deed to defendant’s nominee she mentioned the commission, and Puerstman, attorney for Lauter Company, told her it would be taken care of. There was also testimony that at the settlement which took place when Lauter Company passed the title to Goldberg & Galler, the subject was again brought up and Puerstman again agreed that the commission should be paid out of the proceeds of the sale, when Goldberg & Galler refused to go1 through with the purchase unless plaintiff’s commissions were paid. The proceeds of this sale, some $3,000, were taken by Lauter Company and applied against Robson’s debt to it.

There was a trial of this case before the District Court in April, 1929, and judgment for defendant was given on the ground that the alleged promise of Puerstman was the promise to pay the debt of another and void because not in -writing. The Supreme Court reversed (8 N. J. Mis. R. 257; 149 Atl. Rep. 764), holding that it was an independent promise in consideration of Goldberg & Galler immediately going through with the purchase after they had threatened to withdraw because Remington was not to be paid. The Supreme Court pointed out that the authority of Fuerstman to bind the Lauter Company was not questioned in that proceeding.

There was then a remittitur and a reference to a referee who found for the plaintiff and judgment was entered on his report. This judgment was opened and a new trial was had before the District Court resulting in the judgment under review.

The sole question brought up by this appeal, not heretofore determined by this court, is the authority of Fuerstman to bind the defendant in the manner alleged.

There seems to' be no evidence of express agency, but there was testimony from which there might be found an implied agency or a holding out of Fuerstman as having authority to do all things necessary to consummate this transaction. He and he alone, the record indicates, acted for Lauter Company in attempting to get restitution from the Robsons. He certainly had complete charge of the transactions leading to the acquisition of this particular property. Mrs. Robson dealt solely with him. He arranged to have title taken in an employe in his office. When the settlement took place, he alone appeared for the Lauter Company and handled the transaction for it. He produced a deed to the purchasers, he took the money and turned it over to defendant. The defendant kept the money and has apparently accepted and ratified everything he did, except his authority to make this agreement which, the proofs show, was necessary in order to get the money for Lauter Company out of the pending sale.

Tn this state of the proofs, there was sufficient evidence to support the finding of the court below that Fuerstman had authority to bind the defendant.

The other points do not have sufficient merit to warrant detailed discussion.

The judgment is affirmed, with costs.


author: Lloyd, J.

text:
    BENFREY DRESS COMPANY, INCORPORATED, RESPONDENT, v. IRVING GALE, INCORPORATED, APPELLANT.
    Submitted October term, 1934
    Decided March 9, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Harold Simandl.

    For the respondent, Morris J. Oppenheim.

   Lloyd, J.

This action was in two counts to recover the price of goods sold; one based on a book account; the other for goods sold and delivered. The judge found for the plaintiff, and defendant appeals.

The grounds of the appeal are that the first count should not have been amended; that the book account was not admissible in evidence; that a nonsuit or direction should have been granted; that the court erred in permitting plaintiff, at a time after the trial concluded, to prove its corporate existence and reopening the case for the purpose; and that there was no proof of authority in defendant’s president to purchase the goods to' be delivered elsewhere than at the defendant’s place of business.

The first count in the state of demand and the book account were objected to in that the specified goods were not set forth. The court permitted the count to be amended and admitted the book. The book of account would seem to have been properly admitted. The objection that it failed to set out the merchandise sold is not well founded. The charges as annexed to the return and marked P-1 are to the contrary. They specify the articles as frocks and dresses, the dates and the prices.

The court properly permitted the amendment of the statement of demand, and the reopening of the case to permit proof of plaintiff’s incorporation.

There was proof that the president of defendant company had authority to order the goods delivered elsewhere than at defendant’s business place in Newark. The book account is prima facie evidence of sale, charge and proper delivery. In addition other orders for similar delivery had been given by the president and approved by the corporation, and the bills for the goods so ordered paid by it.

The judgment is affirmed, with costs.


text:
    ELSIE M. GLEN, RESPONDENT, v. NATHAN MARCUS, MAX MARCUS, WILLIAM MARCUS, INDIVIDUALLY AND DOING BUSINESS AS THE CITY HALL BAKERY AND LUNCH ROOM, APPELLANTS.
    Argued October 2, 1934
    Decided March 9, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellants, Nathan Baker.

    For the respondents, Bauer & Banker.

   Lloyd, J.

The action was based on a book account, and a sheet of paper containing dates, the word “merchandise” and certain figures of values, and purporting to be the “book account” was admitted in evidence over objection and exception. There was judgment for the plaintiff and the defendant appeals. Among the grounds urged for reversal are that this account was improperly received in evidence.

We think this contention is well founded. One Green wald, a salesman of the plaintiff firm, testified that he was familiar with transactions of the defendants and that the goods and merchandise sued for were ordered by the defendants. He produced what is called a book account on a sheet of paper as above described. The integrity of the sheet was not established nor was it sufficient 'in character to be received as a book of original entries. Whether it was part of a larger volume of sheets; whether the entries were original; when and by whom the entries were made; whether the book represented the daily transactions in the plaintiff’s business, does not appear. The entry of the word “merchandise” was meaningless as defining the articles sold. The sheet, therefore, exhibited none of the essentials of a book of original entry, and in its charges gave the defendant no information as to the identity of the things priced and for which they were called upon to pay.

While there was proof otherwise as to the sale and delivery o'f certain goods as specified in the state of demand, receipt of these goods was denied by the defendants, and the book account may well have established as it did, if adequate for the purpose, a presumption of sale and delivery, and might have influenced the decision in favor of the plaintiff.

The judgment is reversed, and a retrial directed.


text:
    UNION LOAN ASSOCIATION, PLAINTIFF-RESPONDENT, v. GILBERT C. WOODIE, DAVID GIBSON AND WILHELMINA WOODIE, DEFENDANTS-APPELLANTS.
    Submitted October term, 1934
    Decided March 9, 1935.

      Before Justices Lloyd, Case and Donges.
    Bor the appellants, Lord & Lord.

    Bor the respondent,
   Lloyd, J.

The Union Loan Association is a small loan company incorporated under chapter 49 of the laws of 1914. Section 3 of that act provides that “no corporation or association so licensed shall transact or solicit business under any other name or at any other office or place of business than that named in the license.” Section 6 provides that any violation of any of the provisions of the act shall be a misdemeanor and that “every loan in connection with which such violation shall have occurred shall be absolutely null and void, and the borrower shall be entitled to recover from the lender any or all sums paid or returned on account of or in connection with such loan.”

The appellants were the defendants in an action on a note in the amount of $300 dated March 10th, 1926, given by Gilbert C. "Woodie and endorsed by David Gibson and Wilhelmina Woodie. Woodie had paid on the note the sum of $500 on account of the principal and interest of the original note. In addition to certain defenses a counter-claim for these payments was filed based upon violation of the act in that, among other things, the respondent had made the loan under the name of the Union Loan Company, rather than under the name of Union Loan Association which was its corporate title.

The judge hearing the case first found in favor of the defendant on the counter-claim, holding that the statute had been violated and gave judgment against the plaintiff for $500. Subsequently this judgment was opened and a new judgment entered in favor of the plaintiff below for the balance otherwise due on the note in the sum of $36. Brom this judgment the defendants appeal.

When the case was called for trial it developed that not only had the note been issued to the plaintiff trading under the name of the Union Loan Company, but that the present action was begun under that name, whereupon the parties stipulated that the proper party plaintiff was “Union Loan Association” and the judge declined to give effect to the violation in the issuance of the loan because of this stipulation of the parties.

We think that the use of the word “company” in the corporate title of the respondent was a clear violation of section 3 of the act. It was an integral part of the title used and not merely descriptive of the corporation. It took the place of the word “association” which was a part of the title, and for this violation the statute accords to the borrower the right to recover the payments made. The amendment allowed in the suit brought upon the stipulation of counsel is without bearing on the validity or invalidity of the loan itself or of the initial violation of the statute.

It is a harsh rule, but clearly intended to be such. The abuses growing up under this class of loans no doubt operated to induce the passage of this stringent legislation, and the purpose of the act is obviously to hold loan companies incorporated under the act to the strictest accountability, and decisions of the courts have given sanction to an interpretation which accords with this purpose. Consolidated Plan of New Jersey v. Shanholtz et al., 7 N. J. Mis. R. 876; 147 Atl. Rep. 401; affirmed, 107 N. J. L. 517; 153 Atl. Rep. 906.

It is impossible in the light of the specific ban of section 3 of the act to disregard the misuse of the word “company” in the title of the respondent. Our conclusion in this phase of the case makes it unnecessary to consider other grounds urged for reversal.

The judgment is reversed, with direction that judgment be entered in the court below in accordance with the views expressed in this opinion.


text:
    NICHOLAS DiFURIA, APPELLANT, v. HARRY ARNOUL, RESPONDENT.
    Argued October 2, 1934
    Decided March 9, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Herbert A. Kuvin.

    For the respondent, McCarter é English.

   Lloyd, J.

The appeal in this case is from the dismissal by the judge of the East Orange District Court of a rule td show cause why the lien of Perry Belfatto, an attorney-at-law, for professional services, costs and disbursements in a cause should not be appropriately enforced. The rule to show cause was based on Belfatto’s petition that the court adjudge and determine how much he was entitled to receive for services rendered and expenses incurred, what lien he was entitled to, and that his lien be appropriately enforced in accordance with the Attorneys’ Lien act.

No answer seems to have been filed to the petition, but on the return day of the rule the parties appeared, an insurance company apparently interested in the outcome, appearing specially. At the inception of the hearing counsel representing Mr. Belfatto stated that it was an application for the framing of an issue under the Attorneys’ Lien act, and started to state the facts. Counsel for the defendant objected and stated that the parties were there on the return of the rule to show cause and the facts must be proved, to which the court replied, “all right, you can produce somebody and swear him.” Then follow twenty-eight pages of typewritten testimony in which Belfatto assumed the laboring oar and told the story of how he had been employed, how he was dissatisfied with his client’s conduct, and how he had refused to proceed further with the case. Against this testimony was that of the other parties to the rule indicating that Belfatto had abandoned the ease and refused to proceed further with it. At the conclusion of the hearing both sides rested, Mr. Congleton for the plaintiff saying, “that is our case.”

Then followed this colloquy:

The court—“Both sides rest.” Mr. Kuvin—“With the exception that I would like to produce that record to attack his credibility.” The court—“No, no.” Mr. Kuvin—“Then I rest.” The court—“Do you want to submit?” Mr. Kuvin —“I am willing to submit.” The court—“Submit in toto f’ Mr. Kuvin—“Submit in toto with the exhibits.”

There is no appeal on the ground that the finding of the court on the testimony was erroneous or that the evidence did not fully justify its finding, but that as one of procedure, there should have been a framing of the issue, and that the trial on the merits should take place at a later date, either with or without a jury as the parties might require.

It seems to us that the appeal is without merit. The proceeding by petition was in accordance with the ruling of the Court of Errors and Appeals in Artale v. Columbia Insurance Co., 109 N. J. L. 463; 162 Atl. Rep. 585, and it is important to remember the prayers of the petition in the case, which were that the court would determine the amount due petitioner, what lien he was entitled to and that the lien be appropriately enforced. To this petition normally an answer would be filed, but the court proceeded upon the prayer of the petition itself and issued a rule to show cause. Appellant accepted this method of procedure, caused his rule to be served, and on the return day of the rule offered his proofs in extenso in support of his claim, counsel for the plaintiff meeting the issue with proofs to the contrary. We think this was a waiver of an answer as well as the framing of an issue, which in an earlier stage had been requested.

Colloquy at the conclusion of the case establishes clearly that the parties were trying the question on its merits and not merely offering testimony to settle the question of pleading or practice. After the ease was closed the court said: “Considering the testimony in this case and the exhibits, the court feels that Mr. Belfatto has not sustained his right to an attorney’s lien; that by his own actions he led the parties to believe that he was no longer in the case. Therefore, the rule to show cause will be dismissed.” Mr. Kuvin— “Excepted to ruling in that respect.”

There is nothing here to indicate that counsel was dissatisfied with the procedure or that the case was not properly before the court in its entirety, but simply that the court’s ruling on the merits was excepted to, and as already said this point is neither presented in the specifications nor argued in the brief.

The order dismissing the rule is affirmed.


text:
    ALEXANDER KOSICK, BY HIS NEXT FRIEND, ANNA KOSICK, AND ANNA KOSICK, INDIVIDUALLY, APPELLANTS, v. STANDARD PROPERTIES, INCORPORATED, RESPONDENT.
    Submitted October term, 1934
    Decided March 9, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellants, Aaron Heiler.

    For the respondent, Abraham I. Feltman.

   Lloyd, J.

The appeal is from a judgment in the District Court entered on a finding of no cause for action.

The case was based upon a stipulation of facts from which it appeared that a janitor employed by the defendant whose duty it was to remove snow from a yard in the rear of a property of the defendant had directed his son to' remove snow that had accumulated therein. Another person agreed to assist the son. While so acting the former in handling the shovel with which he was working, struck the plaintiff in the face, inflicting the injuries for which the action was brought. The plaintiff appeals and contends that there should have been a finding the other way.

The judgment must be affirmed for two reasons.

Hirst—Because no alleged error is properly brought before us by the specification of determinations in the trial court. The legal error must be specified in the grounds of appeal. The mere assertion that there was error in giving judgment to one party rather than to the other is not sufficient. Eckert v. Nazzaro, 109 N. J. L. 136; 160 Atl. Rep. 425.

Second—Because the question presented for determination was, in its phases most favorable to the plaintiff, one of fact for the judge sitting without a jury.

The selection of one’s servants is the right of the master and the delegation of authority to select another or substitute must be either expressly or impliedly conferred on the servant. Direct authority of course is clear. Implied authority may be less clear. The latter may be inferred when the work to be done is so far beyond the power of the servant as to indicate the necessity for assistance. The very nature and extent of the work may compel such reasonable conclusion. Such implication is sought here, but we think it is not availing. The stipulation simply is that there was direction by the father, the janitor, to his son to remove the snow in the backyard. Even assuming the right in the father to so direct, there was nothing to suggest that such removal was beyond the power of the son or that assistance would reasonably be required to perform the work.

The appeal is from a finding of a judge sitting as the trier of facts, and to reverse the case it would be necessary to hold that the judge was compelled by the stipulation to find that the son had implied authority to engage the services of the man who did the injury. There is nothing in the proofs to require such finding.

The authorities bearing on this subject are to be found collated in 39 C. J. 1271, 1272, where numerous cases are cited. At section 1459 it is said that “where there is neither express nor implied authority given a servant to employ another to perform or to assist him in the performance of his work, or a subsequent ratification by his employer of such employment, the relation of master and servant between the employer and one so employed by his servant does not exist, and he is not liable for the negligent acts of the latter under the doctrine of respondeat superiorIn a leading case there cited it is said, “the doctrine frespondeat superior] is at best somewhat severe, and if a man is to bo held liable for the action of his servants he certainly should have exclusive right to determine who they shall be.” This reasoning commends itself to us as sound both in logic and in law, and unless authority to employ assistance can be clearly inferred from the proofs such authority do'es not exist. It was not error, even if properly before us, that the judge found for the defendant in the case.

The judgment is affirmed, with costs.


author: Pee Ctjeiam.

text:
    SURPHENE MATRISS, PLAINTIFF-RESPONDENT, v. CITY SERVICE TRANSIT COMPANY, DEFENDANT-APPELLANT, AND MERRIT BOTTUM, DEFENDANT.
    Submitted October term, 1934
    Decided March 9, 1935.

      Before Justices Lloyd, Case and Donges.
    For the appellant, Sol Hoberman.

    For the respondent, John J. Breslin.

    For the defendant Merritt Bottum, Irving L. Werlcsman.

   Pee Ctjeiam.

In the present appeal the defendant urges that there should be a reversal of the judgment against it on the ground that there was no proof of negligence in the operation of its bus.

From the proofs it could be found that the plaintiff, driving his automobile, was compelled through no fault of his own, to rest his car momentarily in a position crosswise of the highway, and while standing in this position his car was run into by the defendant’s bus. There was proof that the plaintiff’s automobile thus placed was in sight of the driver of the bus for a distance of at least one hundred feet; that there was space between the automobile and the edge of the highway sufficient for the bus to pass, and that the bus was proceeding at a speed of from eight to nine miles an hour. -If the bus proceeding at such speed had been held under proper control, it is quite clear that the collision which took place could have been avoided by the exercise of reasonable care.

The motions for a nonsuit and direction of a verdict in favor of the defendant were therefore properly denied.

The refusal of the trial judge to strike out the testimony as to the rental by the plaintiff of a substituted car pending the repair of his damaged automobile (testimony to which no objection was made) was proper.

The judgment is affirmed, with costs.


author: Pee Cttbtam.

text:
    ANTONIO LUPPINO, PLAINTIFF-RESPONDENT, v. FIREMEN’S INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Submitted October 12, 1934
    Decided March 9, 1935.
    Before Justices Lloyd and Donges.
    For the appellant, Lum, Tamblyn & Fairlie.

    For the respondent, Nathan A. Rubin.

   Pee Cttbtam.

This is an appeal from a judgment of the District Court of the Second Judicial District of Essex county. The suit was upon a policy of insurance issued by the defendant covering loss or damage by fire to furniture of the plaintiff located in premises at 172 Walnut street, Newark. The District Court judge, sitting without a jury, found for the plaintiff in the sum of $455.

The first ground argued by the appellant is that it was error to refuse to direct a verdict in its favor. The fire occurred on August 30th, 1932. The policy, in standard form, contained the usual provision that “if fire occur the insured * * * within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company signed and sworn to by said insured, stating * * * the cash value of each item and the amount of loss thereon, * *

Under date of September 2d, 1932, the defendant sent plaintiff the following letter:

“You are hereby notified that if you desire to make claim under policy numbers 7171581 and 7191195 of the Firemen’s Insurance Company, the said company demands strict compliance with each of all the terms and conditions of its said policy numbers 7171581 and 7191195 including the filing of sworn statement of claim as provided.

“Your attention is hereby particularly directed to lines 67 to 95 of the printed conditions of the said policy contracts and this will be your notice that this company waives none of the provisions of the said policy and reserves all of its rights.”

Pro'ofs of loss were not filed until January 11th, 1933, and the instant suit was started on August 28th, 1933.

Chapter 340 of the laws of 1911 provides as follows:

“1. The failure of any person insured against loss or damage by fire in any insurance company doing business by or under the authority of the department of banking and insurance of this state to furnish proofs of loss shall not be or considered a waiver of any rights accruing under the policy of insurance, and shall not debar the person so holding insurance from a recovery under said policy or the collection of such sum as should properly be paid under said policy, unless after said loss sixty days’ notice, in writing, that said company desires said proofs of loss be furnished the person so insured.

“2. The provisions of the foregoing section shall not be varied, altered, contradicted or affected by any agreement or contract, but shall remain in full force and effect, any and all provisions in any contract of insurance or other agreement to' the contrary notwithstanding.”

The contention of the appellant is that the letter above quoted was an effective notice and the failure of the plaintiff to file a proof of loss within sixty days thereafter worked a forfeiture of the policy.

Forfeitures are not favored by the courts. Contracts of insurance under which it is sought to create forfeitures will be construed most strongly against the insurer and will never be extended beyond the strict words of the policy. Snyder v. Dwelling House Insurance Co., 59 N. J. L. 544; 37 Atl. Rep. 1022; Johnson v. Grand Lodge A. O. U. W., 81 N. J. L. 511; 79 Atl. Rep. 333.

The letter demanding compliance with the policy was written September 2d, 1932, and was received by plaintiff on September 10th, 1932, as witnessed by the return receipt. It did not demand proof of loss within sixty days from the date of notice, but merely referred to the policy which provided for proof within sixty days of the fire. It did not make reference to the statute nor did it demand a notice according to the terms of the statute.

We conclude that it did not give the plaintiff the notice he was entitled to under the statute and that the defendant must be held to a strict compliance with the statute in order to' take advantage of the provision of the policy. It was in legal contemplation no notice at all, and was void and of no effect. ISIor can it be said that the fact that the plaintiff did file a proof of loss was a waiver of any defect in the notice. It might just as well be said that the acceptance by defendant of the proof of loss was a waiver of any claim that it was filed late.

The motion to direct a verdict was, therefore, properly denied.

As to the other point, that there was no evidence to support a finding of $455 damage, it is sufficient to say that the plaintiff testified to a loss in that amount and there was no proof to contradict it.

The judgment is affirmed, with costs.


text:
    SANTE FUNARI, PETITIONER-DEFENDANT, v. STANDARD SANITARY MANUFACTURING COMPANY, DEFENDANT-PROSECUTOR.
    Submitted October 25, 1934
    Decided March 9, 1935.
    Before Jnstices Lloyd, Case and Donges.
    Bor the prosecutor, Wall, Haight, Carey & Hartpence.

    Bor the defendant, Donald B. Bryant.

   Pee Cueiam.

This is a writ of certiorari to review a judgment of the Mercer County Court of Common Pleas in a compensation case. Petitioner was injured by an accident arising out of and in the course of his employment by defendant on October 27th, 1931. He suffered a strain of the lower region of the back while lifting a heavy mould. An arthritic condition also exists which is said to have been aggravated by the accident.

A petition for compensation was filed and a hearing held resulting in an award for petitioner against defendant of twenty per cent, of total permanent disability. This amount was paid. In 1933 a petition was filed claiming an increase in disability and the proceedings under this petition are those brought up for review.

The defendant sought to show that the petitioner had suffered two injuries prior to the one in 1931, one in 1926 and the other in 1929, while in the employ of Thomas Maddocks Sons Company, the predecessor of defendant in the operation of the factory where petitioner was employed, and that his present condition is attributable to these older accidents rather than to the one in 1931. Both the lower tribunals found against defendant on this question as a matter of fact, and this finding has support in the evidence.

It is urged that there was no increase of disability. As stated, the award in 1932 was for twenty per cent. The present award is for sixty-five per cent. Doctors for petitioner testified to a disability of eighty per cent, and from eighty-five per cent, to ninety per cent. One physician for prosecutor admitted a disability of fifty per cent, and another forty per cent. The evidence supports a finding of sixty-five per cent, and this finding, therefore, should not be disturbed.

The other points urged need no detailed discussion. It is argued that “payment in error is not estoppel to deny accident while in employ of pro'secutor.” Here prosecutor cites cases to the effect that payments in compromise of disputed claims are no bar to a denial of liability when a petition is filed and a formal award is sought, but in the instant case there was a trial and an award from which no appeal was taken, which is a quite different situation.

It is stated that the present proceedings amo'unt to a retrial of old issues on another basis, but this is not the situation. It was a simple claim for an increase of disability.

Complaint is made of the allowance of medical expenses but no authority is cited for the position taken.

Prosecutor suggests that the petition for rehearing was not filed in time, but this point was not raised in the trial court. In fact, not only did prosecutor fail to object to the reopening of the case, but it also asked for a rehearing, seeking to have the scope of the rehearing widened for the purpose of showing the injuries were due to the earlier accidents.

The writ is discharged, with costs.


text:
    MICHAEL ASCHBERGER, TRADING AS CLIFTON MARBLE WORKS, RESPONDENT, v. GAETANO DI MENNA, APPELLANT.
    Submitted October 2, 1934
    Decided March 9, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Gaetano M. Belfatto.

    For the respondent, Elmer Friedbauer.

   Lloyd, J.

Plaintiff below recovered a judgment against one Gaetano M. Belfatto in the District Court. An appeal was taken by Belfatto to the Supreme Court and there affirmed. In order to take this appeal and to stay execution the defendant gave bond conditioned for the payment of the judgment, interest and costs if the judgment in the District Court were affirmed. The judgment was affirmed and a remittitur filed in the District Court remitting the cause to that tribunal, whereupon execution against the principal having failed, the present action was brought against the suretj*- on the bond.

The defenses filed were that the state of demand did not disclose a cause of action; that there had been an appeal of the principal cause from the Supreme Court to the Court of Errors and Appeals and a bond filed in that proceeding. The case was called for trial and the proofs disclosed the judgment, its affirmance, the issuance of an execution without result and the present action.

The defendant moved for a judgment in his favor. No grounds for this motion were presented and it was denied. Mr. Belfatto was called as a witness and testified that he had appealed the case to the Court of Errors and Appeals and mailed an appeal bond to the clerk of the Supreme Court where it was filed on February 23d, 1933; that he went to Trenton and found that the notice of the grounds of appeal and the appeal bond had been filed with the clerk of that court. He asked permission of the court to offer that bond in evidence. On cross-examination he said he did not file any paper at all in the Court of Errors and Appeals but added that the state of the ease was ready in his office, but he had never filed it. Mr. Belfatto then asked that the court direct a verdict for the defendant in his own language, giving reasons as follows: “Because as I understand the law when a remittitur is removed from the Supreme Court to the District Court where the action was originally brought, the jurisdiction of the Court of Errors and Appeals is lost. I could not appeal before the Court of Errors and Appeals after April 28th, when the request was made of the Supreme Court to return the remittitur to this court. Therefore, I lost the appeal. My rights on appeal were lost by reason of such procedure.”

There was judgment for the plaintiff. The defendant appeals, specifying as causes for reversal error in the denial of his motion for direction, because the bond entered in the appeal to the Court of Errors and Appeals discharged his obligation on the present bond, denial of his motions, and various other grounds not brought to the attention of the court below or not adequately stating a ground of appeal in compliance with the rules of the court.

On the foregoing statement of the facts there is but one question before this court and that is whether the court below should have granted the motions for nonsuit and direction on the grounds stated. It is quite obvious that these grounds were insufficient to arrest the progress of the trial.

The judgment is affirmed.


text:
    JAMES MEADE, Jr., BY HIS NEXT FRIEND, JAMES MEADE, Sr., AND JAMES MEADE, Sr., INDIVIDUALLY, RESPONDENTS, v. PURITY BAKERIES CORPORATION, DEFENDANT, AND JOSEPH DECKMAN, APPELLANT.
    Submitted October term, 1934
    Decided March 9, 1935.
    Before Justices Lloyd, Case and Dowses.
    For the appellant, William K. Flanagan (George L. Sachs, of counsel).
    For the respondents, Harry Weltcheh.

   Per Curiam.

The appeal is by the defendant from a judgment in favor of the plaintiff, a boy siz years of age when the accident out of which the action grew, occurred. From the evidence adduced it appeared that while defendant’s truck was parked in front of a store in Elizabeth, plaintiff, with another lad younger than himself, sat down on a step in the rear of the truck. Deckman, the driver, came out of the store and started his truck. He had gone but a short distance when the boys fell off and the plaintiff was injured.

While the driver of the truck denied that he saw the children there was ample evidence to the contrary, and the question presented is whether the starting of the truck under these circumstances and the consequent jolting of the children from it was such conduct as to create a right to action for the injuries sustained.

While the boj^s were trespassers on the truck, and the defendant owed them only an obligation to refrain from willful wrong, we think there was evidence that this standard of duty under the circumstances was not observed. The boy was below the age of legal responsibility and equally perhaps unable to protect himself from injury if the truck were put in motion. This of course was obvious to the driver of the truck, and if, knowing of the presence of the boys on the step (as the judge sitting without a jury might properly find), he started the truck, it was open to the court to infer that such action constituted such disregard of their safety as to constitute legal willfulness. Iaconto v. D’Angelo, 104 N. J. L. 506; 142 Atl. Rep. 46.

The judgment in favor of the plaintiff was therefore free from legal error, and it is affirmed, with costs.


text:
    WEEHAWKEN REALTY COMPANY, APPELLANT, v. JACOB I. HASS AND LEWIS HASS, TRADING UNDER THE FIRM NAME AND STYLE OF HASS BROTHERS, RESPONDENT.
    Argued October 2, 1934
    Decided March 9, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Ncáhan J. LiUcmer (George J. Kaplan, of counsel).
    For the respondent, I. Joseph Siein.

   Lloyd, J.

Judgment of nonsuit was rendered on the state of demand which was in two' counts; one for services in obtaining a reduction oí assessments; the other in general terms for services rendered.

The first count is claimed to be bad because setting forth a contingent contract which is against public policy. We think this is so. The policy which forbids contingent contracts for services before bodies such as boards of assessors, is declared in Hazelton v. Scheckles, 202 U. S. 71; 50 L. Ed. 939, and is based not alone on necessary wrong in the contract, but on the tendency to corrupt. A contingent fee is a temptation to the use of all available means to success, and this both legitimate and otherwise. The policy has been applied especially to' inducing legislation, but is not less applicable to such services where addressed to bodies having power to grant both claims and favors. See Noonan v. Gilbert, 28 Fed. Rep. (2d ed.) 775.

The case must go back, however, on the second count. While that count may represent the same services as those sued for in the first, it does not so appear. The judgment below could only be sustained if the second count fails to state a cause of action, and this we think is not the fact.

The judgment is reversed.


author: Leyden, C. P. J.

text:
    Bergen County Court of Common Pleas.
    SAM PERAINO, BY HIS NEXT FRIEND, STEVEN PERAINO, AND STEVEN PERAINO, INDIVIDUALLY, PLAINTIFFS, v. MARIE DeMAYO, DEFENDANT.
    Decided March 5, 1935.
    For the petitioner, Minium <& Weinberger (by Mr. Joseph J. Weinberger).

    For the respondents, McDermott, Enright <& Carpenter.

   Leyden, C. P. J.

The petition seeks the determination and enforcement of the alleged lien of Aaron L. Simon as attorney of record in the above entitled cause. The facts are as follows:

Sam Peraino (presumably an infant) while crossing the intersection of Pacific and Pay streets in the city of Garfield, this county, on the 15th day of March, 1933, was struck by an automobile owned and driven by Marie DeMayo. His leg was fractured and he was otherwise injured. He was taken to Beth Israel Hospital and placed under the care of Dr. Philip H. Simon. The following morning the father of the boy, Steven Peraino, was approached by one John Radcliffe and it was suggested that Aaron L. Simon be employed to prosecute in the courts of our state the claim for the injuries sustained. Simon’s printed form of accident statement and retainer agreement was submitted by Radcliffe for signature. This paper was not signed, but on the 22d day of March, 1933, after further efforts by Radcliffe and others, a similar printed accident statement and retainer agreement was signed by Steven Peraino and witnessed by Charles Schwartz and Moe Simon. It is as follows:

“Passaic, F. J., Mar. 22, 1933.

In consideration of services rendered or to be rendered in the foregoing matter between Sam Peraino, Plaintiff, and DeMayo, Defendant, I, Stephen Peraino agree to pay Dr. Aaron L. Simon 40 per cent, out of any monies realized in settlement of or from judgment obtained in said matter and I hereby assign said per cent, to them together with costs.” (Then interlined in ink) : “Medical costs to be paid by plaintiff. All legal costs to be paid by lawyer.”

Witness:

Chables Schwaktz

Moe Simon.”

An action for negligence, alleging the injury to the boy on the 15th day of March, 1933, was instituted in this court. The summons was tested March 24th, 1933.

The file does not contain a petition for, or order appointing Steven Peraino as the next friend of Sam Peraino for the purpose of the action.

The answer in behalf of the defendant was filed April 22d, 1933, by DeTurck & West, attorneys, to which a reply was filed by Simon on the same day. A demand for a bill of particulars was made by DeTurck & West, acknowledged by Simon on the 20th day of April, 1933, and filed in the county clerk’s office two days later. The file does not disclose compliance with this demand by plaintiffs. The case was duly noticed and placed upon the calendar of the Bergen County Court of Common Pleas for trial. Defendant made an offer of settlement in the sum of $2,000 which was submitted by Simon to Peraino and rejected.

While this action was pending and undetermined Aaron L-. Simon was indicted, tried and convicted in the courts of the county of Passaic for a criminal offense. He was sentenced to a term in state’s prison. On January 17th, 1934, his license to practice law was suspended. Thereupon the father, Steven Peraino, became anxious about the pending cause of action. He asked for his papers and was refused, except upon condition that he make a payment of $1,000 to Simon. He consulted Mr. John J. Breslin, Jr., prosecutor of Bergen county, in an effort to recover possession of the file. At Mr. Breslin’s request Simon’s office produced the file. Mr. Breslin offered it to Peraino but he refused it, saying he had no further need for attorneys. He thereupon, as he says, consulted Mr. West of the firm of DeTurck & West, whom he described as a friend.

Hext we find Mm in the offices of the insurance carrier and shortly thereafter another suit was instituted in the Bergen County Circuit Court by Sam, by Steven Peraino as next friend, for the same cause of action against DeMayo. Mr. Bernard Hein, a lawyer in the office of DeTurck & West, appeared as attorney of record for the plaintiff. DeTurck & West appeared for the defense. On the 21st day of May, 1934, a friendly judgment was entered in the Circuit Court action in the sum of $1,750. This was done despite the fact that the Common Pleas action was still pending and undetermined. Upon learning of the entry of this judgment Simon filed the petition seeking to determine and enforce his lien as an attorney. It is admitted that petitioner, under the retainer agreement, conducted private investigations, secured statements from various witnesses, prepared for trial and expended the following sums: To Dr. Joseph L. Diaz, $50; Dr. A. P. Dowd, $50: Beth Israel Hospital of Passaic, $315.50.

Pursuant to' said petition a rule was'granted on the 17th day of December, 1934, requiring Marie DeMayo, the General Accident Insurance Company (her insurance carrier), Steven Peraino individually and as guardian for Sam Peraino, and Mary Peraino and Peter Zenkert (sureties on the guardian's bond), to show cause before the court why the attorney's lien of Aaron L. Simon should not be determined and enforced in accordance with the retainer agreement, and why either or all of them should not be directed forthwith to pay to the said Aaron L. Simon the sum so found to be due.

Agreeably to the practice outlined by Mr. Justice Parker in Artale v. Columbia Insurance Co., 109 N. J. L. 463; 162 Atl. Rep. 585, respondents DeMayo and the General Accident Insurance Company filed answer to the petition. Therein the execution of the retainer agreement is admitted and its performance by Simon denied. The answer further denies the petitioner's right to a lien (1) because the retainer agreement is illegal and unenforceable; (2) there was no valid consideration therefor, and (3) there is no legal basis for a claim for medical expenses under the Attorney’s Lien act.

At the hearing both sides stipulated that the issues of fact, if any, be tried by the court without a jury. However, the facts were undisputed. Counsel for DeMayo entered appearance in behalf of all the respondents.

The only testimony offered was that of Steven Peraino, called as a witness by petitioner. Prom it I conclude that his visit to the offices of the insurance carrier and the subsequent settlement by friendly judgment of the claim for damages were deliberate moves upon his part to defeat Simon's alleged claim under the agreement. However, it is true that the insurance carrier did not consider the settlement requests of Peraino until after the suspension of the license of petitioner. Likewise the friendly judgment was entered with the firm belief that Simon had no enforceable claim.

In passing, it might not be amiss to point out that the retainer agreement in question, if legal, was not binding upon the infant plaintiff. If valid, it bound only the father in his individual capacity. It has already been indicated that there was no appointment in this court of the father as next friend- or guardian ad litem of the boy for the purpose of prosecuting suit, and likewise it will be observed that the plaintiff in the Circuit Court action was the boy by his father as next friend—no individual claim by the father for his consequential damages being made. But assuming the appointment of the father as next friend, or his appointment as general guardian of the boy by a court of competent jurisdiction, he was without power to bind his infant child, because a guardian has no power to bind either the person or estate of his ward by contract. He may be authorized by a court of competent jurisdiction to make a contract for his ward, but in such case he does not exercise a power belonging to his office as guardian, but an extraordinary power granted to him for a special purpose. Reading v. Wilson, 38 N. J. Eq. 446; 28 C. J. 1165. What a guardian cannot do directly he cannot do indirectly, and therefore his contract cannot give rise to a lien on the ward’s property. Los Angeles County v. Winans, 13 Cal. A. 234; 109 Pac. Rep. 640.

Since an infant cannot bring suit'and appear in his own name, the court appoints a competent person so to do. As was pointed out by Mr. Justice Scudder in Newman v. Shipman, 15 N. J. L. J. 83, “the usual practice is, in the first instance, to make application and have an order of the court that the guardian ad litem employ proper counsel to be approved by the court, whose expenses necessarily incurred and compensation shall be paid out of the fund belonging to the infant, under the control of the court.” It is in the discretion of the court when the order for compensation shall be made and the amount thereof, but the right to such compensation does not rest upon the agreement o£ the guardian and the attorney, for as is pointed out in the last mentioned case “the giving of compensation for services to attorneys and counsel who act in aid of officers appointed by the court for the protection of infants and other disqualified suitors, does not rest on the agreement of such officers, who are not able to bind their wards or their estate, but upon the order of the court making the appointment.” The practice thus outlined was not followed in the instant ease but no point of it is made by respondents.

Even if this were not so, I am o'f the opinion that the retainer agreement in question is void and unenforceable as it contravenes the public policy of the state. This is the first point raised by the respondents.

It is undisputed that agents of Simon solicited the father to engage Simon to prosecute the cause of action and as a result of their efforts the retainer agreement was executed. When Eadcliffe approached Peraino requesting the retaining of Simon, he had in his possession Simon’s printed form of accident statement and retainer agreement. He was clothed with the apparent authority to negotiate such contracts. Simon was bound by his acts. Baurheen v. Fidelity and Deposit Company of Maryland, 114 N. J. L. 99; 176 Atl. Rep. 137.

The practice of soliciting negligence cases, commonly called “ambulance chasing,” seems to' be increasing among those few members of the profession who lack the necessary character and fitness for the office of attorney and who look upon the practice of law, in the language of the day, as a business “racket” with a large pecuniary return. Ambulance chasing is condemned by the twenty-eighth Canon of professional ethics and is abhored by reputable members of the bar. Obviously it brings the entire profession into disrepute. In so far as the public is concerned it has, as is said in the case of Hightower v. Detroit Edison Co., 261 Mich. 1; 247 N. W. Rep. 97; 86 A. L. R. 509, “developed recognized evils, the major of which are (1) fomenting litigation with resultant burdens on the courts and public purpose; (2) subornation of perjury; (3) mulcting of innocent persons by judgments, upon manufactured causes of action and perjured testimony, and by settlements to buy peace; and (4) defrauding of injured persons having proper causes of action, but ignorant of legal rights and court procedure, by means of contracts which retain exhorbitant percentages of recovery and illegal charges for court costs and expenses and by settlements made for quick return of fees and against the just rights of the injured persons.”

Our legislature recognized the evil and sought to eliminate it by enacting chapter 96 (Pamph. L. 1923, p. 201), amended by chapter 85 (Pamph. L. 1930, p. 320), providing as follows: “Any person or persons who shall, for pecuniary gain, solicit any person or corporation to engage, employ or retain either himself, any lawyer or other person, to manage, adjust or prosecute any claim, cause of action or action at law, against any person or corporation, for damages for negligence, shall be deemed and adjudged to be a disorderly person, pursuant to the provisions of the act to which this is a supplement, and shall be punished pursuant to the provisions of the act to which the within act is a supplement.”

By so making the solicitation of legal business for pecuniary gain in negligence cases offensive and subjecting the wrongdoer to the penalties prescribed therein, the legislature intended, for the public good, to discourage and prevent as far as possible the practice of “ambulance chasing,” and as Mr. Justice Parker pointed out in Arotsky v. Kropnitzky, 98 N. J. L. 344; 120 Atl. Rep. 921; affirmed, 101 N. J. L. 203; 127 Atl. Rep. 923: “If the court should undertake to enforce contracts made in such violation they would be aiding therein and encouraging the very mischief the act was passed to prevent.”

Although this statute does not expressly declare agreements founded upon its disregard to be void, the inescapable and necessary implication is that they are void and unenforceable because they are founded upon a prohibited and penalized act.

The rule of law applicable is stated in Sharp v. Teese, 9 N. J. L. 352 (at p. 354) : “The attempt to contravene the policy of a public statute is illegal. ISTor is it necessary to render it so that the statute should contain an express prohibition against such attempt. It always contains an implied prohibition; and to such attempt the principles of the common law are invariably and deadly hostile, not always by an interference between tbe parties themselves, or by enabling the one to recall from the other, where in pari-delicto, what may have been obtained; but by at all times refusing the aid of the law to' carry into effect or enforce any contract which may be the result of such intended contravention.” See, also, Smith v. Applegate, 23 N. J. L. 352 (at p. 356); State v. Jersey City, 34 Id. 390 (at p. 397); Arotsky v. Kropnitsky, supra; Lewis v. Collins, 1 N. J. Mis. R. 392. The rule is the same in equity. See Cessna v. Adams, 93 N. J. Eq. 276.

The retainer agreement resulted from an unlawful and prohibited act by Simon. He cannot obtain relief here, for the court will not lend its aid to one who founds his cause of action upon an illegal act. Morris v. Muller, 113 N. J. L. 46; 172 Atl. Rep. 63.

Taking this view it becomes unnecessary to discuss the other points raised by respondents. The petition for the determination and enforcement of the lien will be dismissed, with costs.


author: Perretti, D. C. J.

text:
    Passaic District Court.
    GEORGE POST, PLAINTIFF, v. MAYNARD LLOYD, DEFENDANT.
    Decided February 23, 1935.
    For the plaintiff, Ward & McGinnis.

    Por the defendant, Mortimer L. Mahler.

   Perretti, D. C. J.

This action is brought to recover damages for the conversion of a Buick automobile.

The undisputed facts are as follows:

The plaintiff was the owner of a Buick automobile which he occasionally loaned to his brother, Eichard, for the latter’s own pleasure and business; the defendant furnished gasoline and oil at the request of Eichard Post for the car in question and two1 other automobiles occasionally driven by the said Eichard Post; as a result of the purchase a garage bill of $24 came into existence; several communications brought both George and Eichard Post to the defendant in an effort to adjust the obligation, at which time the plaintiff advised the defendant that he was the owner of the car, that he never ordered the gas and oil, that he never consented to its purchase by his brother, that he did not authorize his brother to make the purchase and that he did not intend to pay.

The defendant, nevertheless, relying upon the act which gives him a lien, seized the automobile.

The act which gives rise to a garage keeper’s lien is section 1 of the act entitled “An act for the better protection of garage keepers and automobile repairmen” (Pamph. L. 1925, p. 96), reads as follows:

“All persons or corporations engaged in the business of keeping a garage or place for the storage, maintenance, keeping or repair of motor vehicles and in connection therewith stores, maintains, keeps or repairs any motor vehicle or furnishes gasoline, accessories or other supplies therefor at the request or with the consent of the owner or his representative, whether such owner be a conditional vendee or a mortgagor remaining in possession or otherwise, has a lien upon such motor vehicle or any part thereof for the sum due for such storing, maintaining, keeping or repairing of such motor vehicle or for furnishing gasoline,- accessories or other supplies therefor, and may without process of law detain such motor vehicle at any time it is lawfully in his possession until such sum is paid; provided, however, that such lien shall no! be superior to, nor affect, any lien, title or any interest of any person or corporation held by virtue of a prior conditional sale or of a prior chattel mortgage properly recorded.”

The arrangement between the Post brothers was unquestionably a bailment for the benefit of the bailee. ISTo advantage came to the plaintiff that would give rise to any inference that the bailee could pledge the plaintiff’s credit; nor was the nature of the bailment such as to imply the responsibility of the bailor for the payment of the debt.

In 6 C. J. 1113 we find: “While the authorities are comparatively few in number, the general rule appears to' be settled, that in the absence of a statute or express contract, a bailor is responsible for extraordinary repairs, which enure to his benefit, and which were not caused through the fault or neglect of the bailee, and the bailee must bear the expense of repairs, which are ordinary and individual to the use of the thing bailed.”

Again in 6 C. J. 1147, ¶ 106: “The bailor, as the general owner of the property, may assert his title as against third parties, and may also sue for recovery of damages for any injury by third parties to his reversionary interest.”

An outstanding case on bailments in this state is the case of New York, Lake Erie and Western Railroad Co. v. The New Jersey Electric Railway Co., 60 N. J. L. 338; 38 Atl. Rep. 828, and there is found in syllabus 2 and 3 the following:

“One who has a fixed reversionary interest in personal property has the right to sue one who is not in possession thereof for such an injury by him thereto as will depreciate its value when it comes to his hands.

“A bailor, when he makes a bailment for hire—locotio rei —parts with the possession to the chattel to the bailee, but if any permanent injury be done to the chattel by a third party during the continuance of the bailment, he may maintain an action against such third party, whether an action might or might not be maintained against such party by the bailee for trOver, trespass or replevin to control the immediate possession.”

In the case of Auto Security Co. v. Stewart, reported in 103 N. J. L. 1; 135 Atl. Rep. 92, after citing with approval Stern v. Ward, 94 N. J. L. 279; 109 Atl. Rep. 566, Chief Justice Gummere, speaking for the court, said:

“The defendant further argues that, even if he did not have a lien for storage under the statute, as construed in Stern v. Ward, supra, still, he was entitled to a lien for hauling the car to his garage. We consider this claim without merit. The statute does not give to a garage keeper a lien upon a ear for the expense incurred by him in hauling it to his garage, unless that be considered a mere incident to the storing of it; and not then, as we have already stated unless the work of hauling is done at the request or with the consent of the owner or his representative.”

Counsel for the defendant urging that the garage keeper is entitled to a lien, cites Keshen v. Olson, 10 N. J. Mis. R. 1301; 163 Atl. Rep. 280. This case has no bearing upon the issue except to point out that the act should be strictly construed. In that case Judge LaCorte, of the First District Court of Union county, says:

“The legislative intent of the act in question as a whole is to give to the garage keepers a special remedy, which may be pursued immediately and without delay, cost, or resort to the courts and nothing can be read into the statute, which is not already there in definite terms.”

Applying what seems to be the necessary effects of the cases applicable I have concluded that the defendant had no lien under the act.

The testimony of both sides as to the damages were quite at variance; but considering all of it I find that the amount of damage to the plaintiff is one hundred and twenty-five ($125) dollars.

Judgment will therefore be entered in favor of the plaintiff, and against the defendant, for that sum and costs.


text:
    Passaic District Court.
    WILLIAM M. SULLIVAN, PLAINTIFF, v. ALLWOOD LUMBER COMPANY, A CORPORATION, DEFENDANT.
    Decided February 23, 1935.
    Por the plaintiff, Sullivan <& Sullivan.

    Por the defendant, Walter X. Trumbull.

   Perretti, D. C. J.

The plaintiff is a physician. Some time in January, 1934, one MacDavitt was injured in the course of his employment with the defendant. Mr. Pranke, president of the defendant company, directed MacDavitt to go see the plaintiff. Mr. Pranke, then called the plaintiff on the telephone, and in his testimony said :

“I told 'him I was sending him down and I also told him that I carried insurance in the Lumbermen’s Mutual Casualty Company, and he took care of him from then on; I asked him to take care of the case because I was sending him there, but outside of that I can’t say exactly what I said to him.”

The physician continued to treat the injured and the patient developed a very serious infection of the hand. During the course of treatment the plaintiff communicated with the Newark office of the Lumbermen’s Mutual Casualty Company, and discussed the ease with the claims’ manager. He concluded his services and submitted a bill of $539. The suit was brought on a book account alleging that the defendant corporation was liable for the payment of the same, the plaintiff having waived the excess over the court’s jurisdiction.

The defendant corporation resists payment and contends: (1) There was no intent to enter into a contract on the part of the defendant corporation; (2) if there was an agreement, it was a promise to pay the debt of another and, therefore, barred under our statute of frauds; (3) the case should have been instituted under the Workmen’s Compensation act.

Regarding defendant’s first contention it is to be conceded that there is no testimony on the part of either the plaintiff or the defendant that a specific and definite agreement was made on the part of the one to render the medical services and on the part of the other to pay for the same. The plaintiff relies, mainly, upon the statement made by Mr. Franke and as given above. It is to that statement that reference is to be had. There is no doubt in my mind that when Mr. Franke called the plaintiff, he did so with the specific purpose in mind of engaging him to render medical services to MacDavitt. It is likewise certain that he did not intend that MacDavitt was to pay for those services. His reference to his insurance carrier was more to give assurance to the plaintiff that his bill would be paid rather than to negative any intent to bind the defendant company. Ho other conclusions can be reached from the facts than that the defendant company intended to engage the services of the plaintiff and to pay therefor. In this respect I find that there arose a contract between the plaintiff and the defendant.

As to point 2 the plaintiff relies upon the case of Moore v. Derees, 97 N. J. L. 378; 117 Atl. Rep. 480. That case is cited in Tyrrell v. Standard Underground Cable Co., 10 N. J. Mis. R. 807; 160 Atl. Rep. 763, wherein the court said:

“1 do not agree with such contention [that the agreement should have been in writing] because in that case the services were rendered by the physician to the employe, at the request of the employe; but, in this case, the evidence is that the physician acted at the request of the defendant corporation through its superintendent, who was the manager in charge of the plant at the time of the accident, and, as such, would have a right to bind the company.”

In the present case it is undisputed that Mr. Franke, president of the defendant corporation, directed MacDavitt to the plaintiff and then called him on the telephone. There is no dispute that he could not bind the defendant corporation, and accordingly I conclude that the second contention of the defendant is unfounded and without merit.

As to point 3, it seems well settled by the law in this state that the compensation statute is binding only upon the parties to the statutory contract and that they, and they alone are entitled to its benefits and are bound by its terms. The plaintiff in this case is not a party to said contract, therefore not bound by said act. Dias v. New Jersey Manufacturers’ Co., 4 N. J. Mis. R. 102; 132 Atl. Rep. 101; Rosecrans v. Robert Reiner, Inc., 4 N. J. Mis. R. 769; Tyrrell v. Standard Underground Cable Co., 10 N. J. Mis. R. 807; 160 Atl. Rep. 763.

There will be a judgment for the plaintiff in the sum of five hundred ($500) dollars, together with costs.


text:
    HOLD-MEREDITH COMPANY, A BODY CORPORATE, PROSECUTOR, v. REGINALD PARNELL, TAX RECEIVER AND DIRECTOR OF THE DEPARTMENT OF REVENUE AND FINANCE OF THE CITY OF NEWARK, DEFENDANT.
    Decided February 15, 1935.
    Before Justices Trenchard, TTetter and Perskie.
    Por the prosecutor, Harry Kaplan.

    Por the defendant, Frank A. Boettner.

   Per Curiam.

We have reached the conclusion that the prosecutor is not, in the circumstances here presented, entitled to a certiorari, and the application will therefore be denied.


author: Villani, P. C. J.

text:
    Third Criminal Court of Newark.
    THE CITY OF NEWARK, A MUNICIPAL CORPORATION, PLAINTIFF, v. SAMUEL LIPPMEN, DEFENDANT.
    Decided March 7, 1935.
    For the complainant, Frank A. Boettner (Walter P. Reilly, of counsel).
    For the defendant, Louis Weiss.

   Villani, P. C. J.

Complainant charged defendant with a violation of section (6) subsection (0) of the zoning ordinance of the city o’f Newark. The violation alleged was that defendant used premises No. 344 Grove street, Newark, as a stone yard when such use was not permitted by the zoning ordinance. The facts are admitted to wit: Defendant has a display of finished grave stones set up on the vacant lot at this number with a sign that his place of business is at No. 158 Broome street, Newark, New Jersey. No selling or work is done at the Grove street address, it being merely an open air show room. No building of any sort is erected on the lands. Directly across the street from the defendant is the Holy Sepulchre Cemetery. There are other monument works in the same block, one being but one door away from the defendant at No. 338 Grove street.

A preliminary objection is raised that the complaint cannot be sustained as it alleges a violation of section (6) subsection (0) whereas the section of the zoning ordinance that applies is section (7) subsection (0). However fatal that might be, a dismissal on this ground could not settle the fundamental question, and therefore this decision will not be based thereon.

Defendant contends that the amendment to the constitution permitting zoning legislation (Comp. Stat. 1925, art. 4, p. 4, § 6) speaks only of “buildings and structures.” He further contends that the enabling act passed under the authority of that amendment (Pamph. L. 1928, ch. 274, p. 696; Comp. Stat. 1925, p. 1244, § *136-4200 J, &c.) likewise only refers to “buildings and structures.” (See section 3.) He argues therefore, that the zoning ordinance is ultra vires and invalid in so far as it provides for zoning regulations affecting “premises” separate and apart from “buildings and structures” placed on said premises. There can be no doubt that section 7 of the Newark zoning ordinance as well as the other sections of said ordinance purports to control vacant land as well as buildings.

“Section 7: Use Regulations Controlling Second Business Districts.

“In a Second Business District no building or premises shall be used, and no building shall be erected to be used for any of the following specified trades, industries or uses:

“(0) Stone Yard or monument works.”

The word “premises” has been defined as “the land with appurtenances.” Zinc Co. v. Franlinile Co., 13 N. J. Eq. 322, 331.

It would seem, therefore, and I am inclined to agree with the view, that the zoning ordinance of Newark in so far as it attempts to control the use of land separate and apart from the “buildings and structures” thereon is invalid, as there is no statutory authority for such municipal action. This view is supported by Federal Advertisement v. Recorder of Fairlawn, 8 N. J. Mis. R. 619; 151 Atl. Rep. 285; Kosich v. Township Committee of Dover, 112 N. J. L. 281; 170 Atl. Rep. 248; Federal Shipbuilding Co. v. Bayonne, 102 N. J. Eq. 475; 141 Atl. Rep. 455; affirmed, 104 N. J. Eq. 196; 144 Atl. Rep. 918.

Particularly pertinent is the language used in the last cited case.

“A municipal corporation, being a creature of the state, possesses only such power as the state confers upon it. Breninger v. Belvidere, 44 N. J. L. 350; State, Terhune v. City of Passaic, 41 Id. 90, 93. And in construing a grant of power to a municipality any fair reasonable doubt concerning the existence of the power is denied. Meday v. Rutherford, 65 Id. 645, 648.”

It is unnecessary, however, to base this decision on this point, and reference thereto was only made because counsel argued it and the matter seems of sufficient general interest, that attention be called to it.

I am of the opinion that the defendant is not guilty of a violation of the zoning ordinance as charged because he does not conduct a “stone yard or monument works” on the premises. Merely using the premises as an open air show room for grave stones without doing any work or selling there (which is admitted by the city), is not conducting a stone yard.

Dictionary definitions of “stone yard” are dispositive of this question: “A stone yard is a yard in which stone cutting is carried on.” Punk and Wagnall’s Mew Standard Dictionary.

“A stone yard is a yard in which stones are cut, shaped, broken or the like.” Webster’s Mew International (2d ed.).

Even one of the definitions given in the brief filed on behalf of the city defines:

“Yard—A space often enclosed, within which any work is carried on.” Winston Simplified Dictionary.

It seems apparent therefore that a proper interpretation of the word “stone yard” as used in the ordinance is that it is a place where some work is carried on. Admittedly, defendant carries on no work on the premises in question. Mo argument is made by complainant that defendant is conducting a “monument works,” because obviously he is not.

Although the question may be open to some doubt, this does not aid complainant as the rule is that in the summary proceedings on a penal ordinance nothing is presumed or intended in favor of the validity of the complaint or conviction. Owens v. City of Camden, 6 N. J. Mis. R. 279; 141 Atl. Rep. 24; Haviland v. Egan, 11 N. J. Mis. R. 79; 168 Atl. Rep. 171; McKenna v. City of Paterson, 11 N. J. Mis. R. 945; 109 Atl. Rep. 287. It would be improper, therefore, to strain the meaning of the clear language of the ordinance to sustain a conviction.

In view of the fact that the immediate neighborhood surrounding defendant’s premises is taken up by a cemetery and trades connected therewith it can hardly be maintained that defendant’s use of his premises is detrimental to the health, safety, morals, or even sensibilities of his neighbors. The general police power of the municipality cannot therefore be invoked.

The complaint must therefore be dismissed.