author: Donges, J.

text:
    GUY GEORGE GABRIELSON ET AL., PROSECUTORS, v. BOROUGH OF GLEN RIDGE ET AL., RESPONDENTS.
    Decided February 4, 1935.
    Before Justices Case, Bodine and Donges.
    Pol the prosecutors, Merritt Lane.

    Por the respondents, James P. Mylod and Walter G. Ellis.

   The opinion of the court was delivered by

Donges, J.

This is a zoning case and is before us on four certioraris and six rules to show cause for mandamus. The controversy involves a single question, the refusal of the municipal authorities of the borough of Glen Ridge to permit the construction and operation by relators and prosecutors, hereinafter called “the owners,” of a gasoline filling station and of a field demonstration garden upon lands owned by them on the southwesterly side of Blo'omfield avenue in the borough of Glen Ridge.

The tract of land in question has a frontage on Bloomfield avenue of two hundred and eighty-nine feet, and extends to Anthony’s brook, having a depth of approximately one hundred and forty-one feet on the northerly line and two hundred and ninety-seven feet on the southerly line. The northerly portion of the tract, referred to in the exhibits as “A,” being one hundred feet in frontage and one hundred feet in depth, is the lot upon which it is sought to erect the gasoline filling station, and the southerly portion, described in the application for the field demonstration garden, and referred to in the exhibits as “B,” has a .frontage of one hundred and seventy-nine feet on Bloomfield avenue and a depth on .its deepest line of two hundred and ninety-seven feet. On the lot “A” it is proposed to erect a building eighteen feet six inches by eighteen feet, designated in the application as “service station.” On the lot “B” it is proposed to erect a building thirty feet by twelve feet, designated in the application as “office and tool room.”

Application was first made for a permit for the service station. Plans were submitted to the building inspector, who denied a permit upon the ground that the proposed use did not conform to the zoning ordinance. Thereupon the owners appealed to the board of adjustment. After notice and public hearing, the board unanimously found that “owing to special conditions a literal enforcement of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done,” the permission should be granted to construct the gasoline station, provided the plan, suggested by the owners, for the field demonstration garden be developed in connection therewith, and it adopted a resolution containing the above finding and recommending to the mayor and council the granting of such a permit. Section 9, subsection 4, chapter 27á, laws of 1928, page 102. Thereupon, application was made for a permit for the field demonstration garden, which was denied by thf building inspector on the ground that the use did not conform to the zoning ordinance.

The board of adjustment held a further meeting and again unanimously adopted a new resolution recommending to the mayor and council that the applications be granted, and thereafter on March 13th, 1933, adopted a third resolution recommending to the mayor and council that the permits be granted for a period of ten years, upon condition: (a) that the gasoline filling station be erected in compliance “with the terms and provisions of the Glen Bidge building code, its supplements and amendments: said filling station to be erected in accordance with the layout and architectural features shown on the plans and photograph submitted to and now on file with this board;” (b) that the one-story office and equipment building to be erected upon the land to be used fol' a field demonstration garden should be erected in compliance “with the terms and provisions of the Glen Eidge building code, its supplements and amendments; said building to be erected in accordance with the layout and general architectural features shown on the plans submitted to and now on file with the board and that the owners of said land be permitted to use said buildings as an office and equipment building for a period of ten (10) years from the date on which the permit for the erection of said building is granted;” and (c) that the permit for the filling station shall not become operative unless and until the owners enter into an agreement with the borough to develop and operate the field demonstration garden for a period of at least one year and further agree that no public parking of motor vehicles be permitted within one hundred feet of Bloomfield avenue or within one hundred and fifty feet of the dividing line of the property of the owners and the residential properties fronting on Clark street.

The conditions imposed were agreeable to the owners, if the borough authorities granted the permits, but they insist that, inasmuch as they were obliged to institute legal proceedings, they are unwilling to agree to the conditions unless this court shall conclude that such limitations are reasonable and proper.

The mayor and council met on February 27th, 1933, and a public hearing was held on the first resolution submitted by the board of adjustment, but no action was taken at that meeting. The resolutions of the bo'ard of adjustment, dated March 7th, 1933, and March 13th, 1933, came before the mayor and council at a meeting on March 13th, 1933, and a further public hearing was held. A motion was made to approve the recommendation of the board of adjustment as contained in the resolution of March 13th. Three members of the council voted “Yes,” three members voted “ISTo,” and the mayor cast the deciding vote—voting “FTo.” In casting his vote the mayor announced that he did so in order “that the town of Glen Eidge should keep the traditions of old and be maintained as a residential section.”

The owners’ land is all within the corporate limits of Glen Ridge but is opposite the town of Bloomfield, the line between the two municipalities at that point being the middle line of Bloomfield avenue. The easterly line of the owners’ property is approximately two hundred and forty-four feet from the westerly line of Bloomfield. On the opposite or northerly side of Bloomfield avenue the town of Bloomfield extends for approximately one hundred and fifty feet west of the owners’ land. So that, the middle of Bloomfield avenue divides the two municipalities for a distance of approximately five hundred feet. The land on Bloomfield avenue in Bloomfield, opposite the owners’ land, is zoned for business, and that business zone extends to the west and to the east of the owners’ lands. Bloomfield avenue in Bloomfield, upon the same side of the street as the locus and within approximately two hundred and forty-four feet thereof, is zoned for business. Opposite the locus, in Bloomfield, is a gasoline station and somewhat to the east thereof are an automobile repair shop and stores. Also opposite the locus, in Bloomfield, is a property that has been used for upwards of thirty years for a saloon, which was closed at the time of the hearing because of a violation of the prohibition law, adjoining which is part of an old hotel, now an oyster and steak house, upon which is a large sign “Sea Food Tavern,” and at which beer is sold. Exhibit G-8. There are also other buildings in Bloomfield, opposite Glen Ridge frontage on Bloomfield avenue, namely, four stores and apartments. Immediately adjoining the locus to the west in Glen Ridge is the factory of the Matchless Metal Polish Company, which has been at that location for a number of years. In the same municipality and back of the dwellings on the easterly side of Clark street is another factory. There are several other business places, including another factory to the west of Parkway. About one thousand two hundred feet west of the locus are the Glen Ridge municipal buildings, at which location there are stores, garages, filling stations and offices.

There was testimony from a number of persons called by both sides, the general effect of which was that by reason of the adjacent business properties the lands of the owners could not be advantageously used for high price dwellings such as would be required on land of such value in order to make adequate return on the value thereof. We do not, however, deem this to be a controlling factor in a case of this sort. The question is whether the restriction imposed is arbitrary and unreasonable and without substantial relation to public health, safety, morals or the general welfare of the community.

The statute, adopted in pursuance of the constitutional amendment permitting zoning, is chapter 274 of the laws of 1928. Cum. Supp. Comp. Stat. 1925-1930, p. 1244.. Section 5 provides as follows:

“5. Purposes in View. Such regulations shall be made in accordance with a comprehensive plan and designed for one or more of the following purposes: To lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health, morals or the general welfare; to provide adequate light and air; to prevent the overcrowding of land or buildings; to avoid undue concentration of population. Such regulation shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.”

In Durkin Lumber Co. v. Fitzsimmons, 106 N. J. L. 183; 147 Atl. Rep. 555, it was said, in discussing State (Ignaciunas) v. Nutley, 99 N. J. L. 389; 125 Atl. Rep. 121:

“It was therein held [Chief Justice Gummere] that The legislature in its grant of power to the several municipalities of the state to regulate the use to which a property owner may put his property, even to the extent of prohibiting its use for a particular purpose, limited that power by the provision of the statute that such regulation must “be designed to promote the public health, safety and general welfare.-” If, therefore, the ordinance, in its application to the property of any particular owner, does not come within the limitation of the statute, to that extent it is without legal justification and void.5 The reasoning of the ease clearly demonstrated and the opinion concisely held that the ordinary use of property is not authorized by the general welfare clause of the statute to be prohibited because repugnant to the sentiments or desires of a particular class residing in the immediate neighborhood thereof, but only because such use is detrimental to the interests of the public at large; ‘that the restriction authorized by this provision of the statute upon the untrammeled use of property for promotion of the general welfare of the community must be such as will tend in some degree to prevent harm to the public generally or to promote the common good of the whole people of such community.’ ”

In Neclow v. Cambridge, 277 U. S. 183, it was said:

“The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals or general welfare.”

The legislature set forth the purposes to be attained by zoning ordinances. Which of the declared purposes will the contemplated uses violate?

It is not asserted that the owners’ proposed uses will unduly increase congestion in the streets. Nor can it be asserted that fire, panic or other danger will be presented. The presence of gasoline and service stations in the heart of the municipality by municipal sanction clearly evidences that such structures are not deemed extra hazardous in the respects mentioned. Nor will there be any tendency to decrease adequate light and air. Nor can it be said that the prohibition of the proposed uses will promote health, morals or the general welfare.

The statute provides that regulation of use of property shall be made with reasonable consideration to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of the land. So viewed, it seems uncontrovertible that the lands herein involved may be most appropriately used for the purposes intended, and that the limitation upon the use of this property by the ordinance will be a hardship upon its owners.

We conclude, therefore, that there is nothing in the record reasonably tending to show that the proposed uses are liable to work any injury, inconvenience or annoyance to the community or any person. The withholding of permits, under the circumstances, is arbitrary and unjustified.

The action of the mayor and council declining to approve the recommendation of the board of adjustment will be set aside, and mandamus will issue requiring the building inspector to issue suitable permits. Provident Institution for Savings v. Castles, 11 N. J. Mis. R. 773; 168 Atl. Rep. 169.


source: Caselaw Access Project

author: Brogan, Chief Justice.

license: Public Domain

text:
    IN THE MATTER OF THE CONVICTION AND JUDGMENT AGAINST HERBERT BAER FOR CONTEMPT OF COURT.
    Submitted October term, 1934
    Decided February 5, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bobine.
    Por the petitioner-appellant, Milton M. Unger.

    For the prosecution, William A. Wachenfeld, prosecutor of the pleas of Essex county (Felix Porlenza, assistant prosecutor of the pleas.
   Brogan, Chief Justice.

Herbert Baer, a deputy tax collector in the office of the director of finance of the city of Newark, New Jersey, was summarily convicted of a contempt of the Essex County Court of Quarter Sessions on May 25th, 1934. The particular offense of which he stands convicted is failure to respond to a subpoena to1 testify. He was brought before the court on a rule to show cause, allowed upon the petition of Prank B. Bozza, an attorney-at-law of New Jersey, who was defendant’s counsel in the case of State v. Washkewich, out of which the present matter arose. The unverified petition upon which the rule was allowed recites that on May 22d, 1934, at four o’clock in the afternoon, said Prank B. Bozza served upon the said Baer, personally, a subpoena commanding his presence in the Quarter Sessions Court of Essex county as a defense witness, on May 23d, at ten o’clock in the morning, paid him the requisite fee, and that Baer did not appear.

On the morning of May 25th, Baer, having learned that a bench warrant had been, on the previous day, issued for his arrest for his failure to respond to the subpoena, surrendered himself at the court house, was almost immediately placed on trial, convicted, and a thirty-day jail sentence imposed upon him.

Before the trial court, in support of the rule, Bozza testified that he personally served the subpoena and paid the intended witness a fifty-cent fee; that it was an original and not a subpoena "ticket” for the appearance of Baer for Wednesday morning, May 23d. The case of State v. Washkewich was not finished on that day but went over until Thursday. Another witness, Giebas, said that he endeavored to find Baer on Wednesday evening, pursuing his quest until after midnight, but without success, his object being to notify Baer to be sure to attend the said trial on the ensuing day.

Baer, in his own defense, admits that he called at Mr. Bozza’s office, in response to a telephone request, but denies that he was served with a subpoena, his contention being that the attorney merely requested him to appear in the morning as a witness and that he promised to attend. The court thereupon said that the issue was one of veracity between the attorney and Baer and that he chose to believe the former. Baer was adjudged guilty of contempt and sentenced as stated.

Baer petitioned the Supreme Court for a review of the law and the facts under the statute (Comp. Stat., p. 1736, §§ 138, 139), whereupon an order was signed directing the Quarter Sessions Court of Essex county to certify and send the conviction and judgment and all proceedings touching the same to the Supreme Court, leave being given the petitioner to take depositions, all of which was done. The deposition of Baer presents substantially the same evidence that he gave at the inquiry before the trial court except that it is more detailed. He says that the attorney, Bozza, told him, when he was in his office, that he was going to use him (Baer) as a “surprise” witness and cautioned him against letting the prosecutor’s office know abont it but Baer says he went, none the less, to the prosecutor’s office in an endeavor to see one of the prosecutor’s detectives, Mr. Sklarey. He didn’t succeed in finding Sklarey at the office but did succeed in talking to him on the telephone that night and was told by him to call at the prosecutor’s office Wednesday morning at nine o’clock, which he did, and the matter was discussed. He there asked Sklarey’s advice as to whether or not he had to appear as requested and was told that he was under no obligation to appear, if he had not been subpoenaed, as he said he had not been. He further says that the night before he talked with Sklarey he attended a board meeting of an association of which he was a member and discussed this matter with a fellow-member of the board, Simon S. Gittleman, his brother-in-law, who is a member of the bar of this state. Mr. Gittleman advised him that if he hadn’t been subpoenaed he was not required to appear.

Sklarey, the prosecutor’s detective, in his deposition, corroborates Baer, saying that he talked to him on May 23d; that Baer related to him what Bozza, the attorney, had said, and that he advised Baer that if Bozza had not served him with a subpoena he need not attend court. He further says that Baer told him that Bo'zza hadn’t served him with a subpoena. Einally, Mr. Gittleman, the attorney, corroborates Baer, asserting in his deposition that Baer told him that Bozza merely requested his appearance as a witness the following day; that Baer asked him whether it was neecssary to appear; that he told Baer that since a subpoena had not been served upon him he would not have to appear.

It is our duty to review the law and the facts in this case, in obedience to the mandate of the statute (supra). This is in the category of a criminal contempt proceeding since its sole purpose is to vindicate the dignity and preserve the integrity of the court. Thompson v. Pennsylvania Railroad, 48 N. J. Eq. 105, 108; 21 Atl. Rep. 182; Dodd v. Una, 40 N. J. Eq. 672, 714; 5 Atl. Rep. 155. The proceeding is one of the strictest right, and must be governed by the legal rules that obtain in the trial of criminal causes, i. e., the defendant is presumed to be innocent of the charge, the moving party has the burden of proof, and the guilt of the accused must be proved beyond a reasonable doubt. Staley v. South Jersey Realty Co., 83 N. J. Eq. 300; 90 Atl. Rep. 1042. On the question of the practice in these matters see Attorney-General, ex rel. Hudson County Quarter Sessions v. Verdon, 90 N. J. L. 494; 102 Atl. Rep. 66.

In the case before us, it is our judgment that the guilt of the defendant has not been established beyond a reasonable doubt. His testimony at the hearing de novo in no material element departs from that which he offered before the trial court. It is amply corroborated by the testimony of other credible witnesses, which support was not supplied before the trial court, clearly because he had not requested additional time to furnish it. Had he asked for a postponement to obtain such evidence, doubtless the trial court would have granted the request and the judgment below would probably have been as we, on the facts, determine it. We cannot say where the truth lies but we do determine that Baer’s guilt of the contempt charged has not been proved beyond a reasonable doubt.

The judgment is reversed.


author: Kinkead, 0. C. J.

text:
    Hudson County Orphans Court.
    IN THE MATTER OF THE ESTATE OF PHILLIPINE HAZELTINE, DECEASED.
    Decided December 13, 1934.
    For the petitioner, Horace L. Allen.

    For the respondent, Dougal Herr (John Milton, of counsel).
   Kinkead, 0. C. J.

Phillipine Hazeltine, a resident of the city of Hoboken, died on March 11th, 1932, leaving a last will and testament which was duly admitted to probate by the surrogate of the county of Hudson on April 5th, 1932. Arthur Elmore Halenbeck was named executor and trustee in the said will, and letters testamentary were duly issued to him by the said surrogate.

The personal property in the' possession and under the control of the said Halenbeck, as executor aforesaid, was assessed for taxes for the j^ear 1933 by the assessors of the city of Hoboken as of October 1st, 1932, in the amount and for the sum of $250,000. Hone of this personal property was found in any other taxing district and assessed therein, but all of it was assessed in the taxing district of the city of Hoboken, that being the taxing district wherein the deceased resided at the time of her death.

On or about January 10th, 1933, the assessors of the city of Hoboken filed with the Hudson county board of taxation their complete assessment list containing the above assessment, and the Hudson county board of taxation, shortly prior to June 1st, 1933, caused the corrected, revised and completed duplicates of the assessment rolls to be filed with the collector of taxes of the city of Hoboken, which included the above assessment against the said executor and the said estate.

On or about June 1st, 1933, the collector of taxes of the city of Hoboken mailed to Arthur Elmore Halenbeck, executor of the estate of Phillipine Hazeltine, at his purported residence, 114 Westervelt avenue, Tenafly, New Jersey, a tax bill covering the above assessment for 1933. The executor never appealed from this assessment to either the Hudson county board of taxation or the state board of tax. appeals.

On July 5th, 1933, the executor filed with the surrogate of Hudson county an accounting in which he charged himself with a total of $355,651.38 personal property, and prayed allowance for the sum of $239,374.55, being the total of the legacies and debts paid by him. Although this accounting purported to be and is described by the executor as a final accounting, it was in fact and in truth an accounting made as of January 31st, 1933.

On August 9th, 1933, a decree allowing this account as a final account, as stated, was made by the Hon. Thomas H. Brown, judge of the Hudson County Orphans Court.

One-half of the above taxes became due and payable on June 1st, 1933, and the remaining half on December 1st, 1933, but they have never been paid by the executor, nor was payment thereof provided by him. No mention, whatever, was made of the above taxes in the final account, and nothing relating to these taxes was brought to the attention of the court at the time that the decree on the final account was entered.

No inventory or appraisal was ever filed by the executor or trustee. Befunding bonds executed by the legatees under the will were not filed by the executor and trustee in the surrogate’s office in Hudson county, with the following exceptions: Young Men’s Christian Association of Hoboken, Memorial .Day Nursery of Hoboken, Christ Hospital of Jersey City, and Mrs. Ahearn, of Ridgewood.

The executor made distribution of this estate without paying the above taxes levied and assessed by the city of Hoboken, although he had knowledge of the assessment and taxes.

At the time that the assessment of $250,000 against the personal estate of the decedent was levied for the year 1933, the executor was a resident of the State of New Jersey, but prior to October 1st, 1933, he removed from New Jersey and is now residing in the State of Massachusetts.

On October 15th, 1933, he conveyed his residence property, 114 Westervelt avenue, Tenafly, New Jersey, to his father, Otto L. Halenbeck, of Montclair, by deed bearing that date and recorded on November 20th, 1933. All of the personal property held by and in possession of the executor and trustee has been removed from the State of New Jersey and is outside the jurisdiction of this court, and the executor has also sold and conveyed all of his real estate in New Jersey and removed his other property out of the State of New Jersey and outside the jurisdiction of this court.

The testatrix, under her will, provided as follows:

“11th. I hereby direct that all the bequests which I have made in this my last will and testament, shall be paid in full, free from all inheritance or estate taxes, both federal and state, and all and any other taxes, charges and expenses, and I further direct that all said taxes, charges and expenses shall be paid from out of my residuary estate.”

Under the will, the testatrix bequeathed the sum of $100,000 in trust to pay the income therefrom to Arthur Elmore Halenbeck, during his lifetime; the sum of $25,000 in trust, to pay the income to Barbara Claire Halenbeck until she attains the age of thirty years, and the sum of $25,000 in trust, to pay the income to Arthur Davis Halenbeck until he attains the age of thirty years.

The city of Hoboken has assessed this trust estate of $150,000 for the year 1934, but from that assessment, the trustee has taken an appeal in due form to the Hudson county board of taxation. He has, however, removed this trust estate from the jurisdiction of this court in the State of New Jersey, and does not now reside within -this state and cannot be found therein to be served with citation or process.

William H. Gilbert, director of revenue and finance and the collector of revenue of the city of Hoboken, filed a petition in this court on April 4th, 1934, upon which date, an order was entered by this court directing Arthur Elmore Halenbeek, the executor and trustee of the estate of Phillipine Hazeltine, deceased, to show:

(1) Why the order allowing the final account made on August 9th, 1933, should not be set aside;

(2) Why he should not be ordered to file an inventory and an appraisal;

(3) Why he should not be ordered to take refunding bonds and releases from each of the persons to whom payment was made by him of any legacy, and file the same;

(4) Why he should not be ordered to make and file a proper accounting, and make payment of all governmental impositions;

(5) Why he should not be ordered to bring all personal property belonging to the estate in his possession as executor or trustee within the county of Hudson, and the jurisdiction of this court, and deposit the same as the court may direct;

(6) Why he should not be required to give security to the ordinary of the State of New Jersey;

(7) Why he should not he ordered to file with the surrogate a power of attorney to the surrogate;

(8) Why the letters testamentary issued to him should' not be revoked, and he be removed from office as executor and an administrator cum testamento annexo appointed in his place and stead;

(9) Why he should not be removed as trustee and a new trustee be appointed;

(10) Why he should not be ordered as executor and trastee to perform all other acts relative to the estate and to the trusts.

The order to show cause contains also a provision restraining Halenbeek, as executor and trustee, from paying or transferring any part of the estate and trusts until the further order of the court.

The respondent in this case contends that the proceeding is one exclusively to aid in the collection of a tax, and that this court is without jurisdiction in the premises.

This court recognizes the principles of law enunciated by Mr. Justice Garrison, speaking for the Court of Errors and Appeals in the case of Board of Chosen Freeholders of Atlantic County v. Inhabitants of Weymouth, 68 N. J. L. 652; 54 Atl. Rep. 458, that:

(1) Taxes are in legal contemplation neither debts nor contractual obligations, but are in the stricter sense of the word exactions;

(2) Where the legislature has prescribed a special method respecting -such divestments and their devolution, such method must be pursued to the exclusion of others based upon general legal rules.

It is settled that taxes become liens upon property solely from express legislation and can be collected only in the manner provided by statute. Linn v. O’Neill, 55 N. J. L. 58; 25 Atl. Rep. 273; Booth & Bro. v. City of Bayonne, 85 N. J. Eq. 281; 98 Atl. Rep. 666; Archibald v. Maurath, 92 N. J. Eq. 357; 113 Atl. Rep. 6.

In the case sub judice, it was the duty of the executor to pay the taxes imposed against the personal estate of the decedent in the process of settlement on their preferential footing. 24 C. J. 294, § 902; 24 C. J. 109, § 550; Township of Morris v. Carey, 27 N. J. L. 377 (at p. 400); Ely, Pros., v. Collector of Holmdel Township, 39 Id. 79; Wyckoff, Pros., v. Jones, Ibid. 650; Dey v. Codman, 39 N. J. Eq. 258; Brown v. Brown, 72 Id. 667; 65 Atl. Rep. 739; Yardley v. Essex County Board of Taxation, 93 N. J. L. 290; 108 Atl. Rep. 299.

He should not have made distribution of any part of the estate until the tax and other legal charges against the decedent’s estate had been paid or provided for and his account allowed by this court. 24 C. J. 472, § 1281.

Since the executor knew of the assessment for 1933, he should have either paid this tax prior to the final accounting, or have made provision therefor in the final accounting, or have brought the matter to the court’s attention. He did not question the legality of this tax in the manner provided by statute, and in this proceeding, he cannot collaterally attack this assessment. Township of Morris v. Carey, supra. See, also, Williams v. Holden, 4 Wend. 228.

In withholding from this court information relating to this tax, and not making any mention thereof in the final accounting, the executor was guilty of fraudulent conduct. Under these circumstances, the final account was fraudulent and the decree of this court made on August 9th, 1933, allowing this account of the executor, should be set aside. Kocher’s N. J. Probate Law 657.

His failure to pay these taxes, or to appeal therefrom, was a neglect upon his part to perform his duties as executor, and he is wasting the estate of the decedent by subjecting it to statutory penalties for the non-payment of taxes. He has also been derelict in his duties in not obtaining refunding bonds from the legatees to whom he has made payment and filing these refunding bonds with the surrogate of Hudson county.

In the case of Thayer-Martin v. Underhill, 115 N. J. Eq. 526; 171 Atl. Rep. 687, it was held that the condition in the usual administrator’s bond, that the administrator will administer the decedent’s estate well and truly, according to law, includes the duty of the administrator to pay transfer inheritance tax. At page 529, Vice-Ordinary Buchanan says:

“The duty to administer assuredly is not limited solely to the payment of debts due creditors of the decedent * * *. It is deemed that the obligation to administer includes the duty to pay or discharge out of the assets of the estate all liabilities imposed by law upon those assets; and the payment of this tax is as much one of those liabilities as is the payment of funeral expenses.”

In the same category must be included the payment of the 1933 taxes in the instant case. By failing to pay these taxes, the executor has failed to administer the estate in accordance with law. The statutory limitation for the review of the assessment for these taxes against this estate has expired (Pamph. L. 1918, p. 879, § 701), and the executor has done nothing with reference to the payment of the taxes.

Under sections 149 and 150 of the Orphans Conrt act (3 Comp. Siab., pp. 3868, 3869), this court has plenary power to remove any executor, administrator or trustee who has wasted or misapplied any part of the estate committed to his custody, or who has abused the trust and confidence reposed in him, or who has removed out of this state, or does not reside therein, and shall neglect or refuse to proceed with the administration of the estate and to execute and perform the duties and trusts devolving upon him.

The respondent contends that the failure of the executor to pay the assessed taxes is no cause for his removal.

In Pfefferle v. Herr (1908, Prerogative Court), 75 N. J. Eq. 219; 71 Atl. Rep. 689; affirmed, 77 N. J. Eq. 271; 79 Atl. Rep. 1119, the removal of an executor was sought because he had allowed a tax upon the testator’s real estate to become in default, and interest and penalties were added to the amount of the taxes, and some of the real estate sold by the city of Newark.

Vice-Ordinary Walker held there was much to criticise in the executor’s conduct, but that the removal of the executor was not justified, but rather the giving of security by the executor was all that was requisite.

In Starr v. Wiley, 89 N. J. Eq. 79; 103 Atl. Rep. 865, it was held that where the funds of a trust estate are likely to be jeopardized the remedy is to require the trustee to give a bond, and the court refused to order a removal o'f the testamentary trustee.

The memorandum of counsel for the respondent further cites Carpenter v. Gray, 32 N. J. Eq. 692; Holcomb v. Coryell, 12 Id. 289; In the Matter of Flinn’s Case, 81 Id. 640, and numerous other cases in support of the respondent’s contention.

The case sub judice, however, must be differentiated from all the cases cited because of the fraudulent conduct and bad faith of the respondent.

The respondent’s brief urges that no bad faith can be charged against the executor because his refusal to pay the assessed taxes was based on the fact that the executor thinks that the assessment is discriminatory.

It was the privilege and the duty of the executor to contest the legality of the tax, if he disputed it, or if he felt the assessment was excessive, he could have appealed it.

The executor took neither of these two courses, and his conduct demonstrates that ho decided for himself, without recourse to any legal remedy open to him, that the tax should not be paid. And it is quite evident that he thereupon proceeded not only to ignore the tax, but, also, to frustrate, if possible, any effort the city of Hoboken might make to collect the same.

The executor, by withholding the true status of the estate from the court, obtained the decree allowing the final account. Counsel for the respondent cannot seriously urge that, if the executor had frankly set forth the assessment of the city of Hoboken, the court would have allowed the settlement of the final account on August 9th, 1933. It necessarily follows that the concealment of this assessment was an act of bad faith on the part of the executor and a fraud upon the court, and this violation of the trust and confidence reposed in the executor, unquestionably requires his removal, instead of merely requiring him to give security.

The court regards the sale of the executor’s residence in Tenaflv, New Jersey, to his father in October, 1933, and his removal out of this jurisdiction to the State of Massachusetts, and his taking with him the assets of the estate, as further proof of his bad faith and his determination not to pay the tax, and his intent to frustrate, if possible, any legal steps the city of Hoboken might take, in accordance with the statutory remedy to collect the same.

The derelictions of the executor come within the purview of sections 149 and 150 of the Orphans Court act, and he should therefore be removed as executor, and the letters testamentary issued to him as executor of the last will and testament of Phillipine Hazeltine, deceased, should be revoked, and an administrator with the will annexed should be appointed by this court to complete the administration of the said estate.

The court, however, does not deem it advisable to-remove Halenbeek as trustee, for as trustee, he has taken the necessary steps to question the validity of the tax on the trust estate. It is not the province of this court in this proceeding to determine whether or not the imposition of the tax on the trust property is without statutory warrant and is unconstitutional, as contended by the respondent. That question can be determined in the proper tribunal.

Since the trustee, however, is the same person who has committed acts sufficient to warrant his removal as executor, the court is constrained to find that the trustee should be required to give security to the Ordinary of the State of New Jersey, conditioned for the faithful performance of his duties as trustee under the last will and testament of the deceased, by virtue of section 140 of the Orphans Court act. 3 Comp. Stat., p. 3866. The trustee, being a non-resident, should also file with the surrogate of the county of Hudson a power of attorney, pursuant to the provisions of chapter 118 of the laws of 1930.

An order may be entered as above indicated upon proper notice.


author: Per Curiam.

text:
    FEDERAL LEATHER COMPANY, PROSECUTOR, v. CARMINE DeLUCA, RESPONDENT.
    Argued October 3, 1934
    Decided February 4, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Eor the prosecutor, Merritt Lane.

    For the respondent, John A. Jjaird.

   Per Curiam.

The only questions presented relate to matters of fact. The claim was one of occupational disease, viz., benzol poisoning. The deputy commissioner held no case proved, and dismissed the petition. On appeal, the pleas made an award for both temporary and permanent disability.

We have considered the arguments of counsel, and examined with care the evidence, the briefs, and the findings of the two lower courts. Our conclusion is that the award for temporary disability is supportable on the evidence, hut that no permanent disability is made out. The award for permanent disability will therefore be set aside: that for temporary disability will stand. No costs are awarded in this court.

The award of counsel fee and medical aid, so far as charged against the prosecutor, though assigned in the reasons, is not briefed and we think was not argued, and therefore neither has been considered.


text:
    PENNSYLVANIA-READING SEASHORE LINES, A CORPORATION, PROSECUTOR, v. THE BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY, DEFENDANT.
    Argued October term, 1934
    Decided February 4, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Por the prosecutor, Bourgeois & Coulomb.

    Por the defendant, John A. Bernhard.

   Per Curiam.

Prosecutor was denied leave to vacate a crossing at the north end of its station building at South Vineland, Cumberland county. The crossing in question led across railroad tracks and siding, the latter having been discontinued, from one station platform to another. The crossing was originally built for railroad convenience in the collection and delivery of freight.

The board of public utility commissioners denied the application because of the lack of power contained in the statute. Pamph. L. 1913, p. 91. That the statute does not contain such authorization cannot be gainsaid. It is not to be understood that the opinion in West Jersey and Seashore Railroad Co. v. Public Utility Commissioners, 8 N. J. Mis. R. 899; 152 Atl. Rep. 378, applies to a situation other than the proofs demonstrated from which it appears that there was authorized a location of two new crossings in lieu of five to be abandoned and found dangerous.

The writ will be dismissed.


author: Bobine, J.

text:
    CHARLES F. KRAEMER, PLAINTIFF-APPELLANT, v. CITY OF NEWARK, A MUNICIPAL CORPORATION,, DEFENDANT-RESPONDENT.
    Argued October term, 1934
    Decided February 4, 1935.
    Before Bbogan, Chief Justice, and Justices Pabkeb and Bobine.
    Por the plain tiff-appellant, Fast & Fast.

    Por the defendant-respondent, Frank A. Boetiner and Thomas M. Kane.

   Bobine, J.

The appellant seeks the reversal of a verdict directed in favor of the defendant. He had been, for years, the Port Newark industrial representative receiving a salary of $6,000 a year, increased to $7,500 before, however, the national emergency required a reduction. After his discharge, he sought to recover compensation for alleged extra services rendered during his period of employment.

Section 10 of the Revised Ordinances o'f Newark forbids to city officials other reward than the salaries fixed by law. The record seems to indicate that the appellant was an officer of the city, but if not, the salary paid to him was paid and received as his entire compensation. No bill was presented or claim made for extra compensation until long after his discharge. If there is no error in the judicial action under review, even if the ground stated for the direction was untenable and we make no such finding, still there can be no review. Sadler v. Young, 78 N. J. L. 594; 75 Atl. Rep. 890.

There was no harmful error in the trial court’s ruling upon the admission of evidence.

The judgment is affirmed, with costs.


author: Case, J.

text:
    JOHN KALAJIAN AND DOOTY KALAJIAN, PLAINTIFFS-RESPONDENTS, v. VICTOR CELIDONIA, INCORPORATED, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1934
    Decided February 6, 1935.
    Before Justices Lloyd, Case and Donges.
    For the plaintiffs-respondents, John W. Ochford.

    For the defendant-appellant, John B. Zabrishie.

   The opinion of the court was delivered by

Case, J.

Plaintiffs sued defendant in the District Court of the Second Judicial District of the county of Bergen for damages alleged to have been inflicted upon plaintiffs’ building by blasting operations conducted by defendant on the adjoining premises. Trial was had before the court and a jury and resulted in a verdict for plaintiffs. Defendant, appealing from the judgment entered thereon, sets up as errors, first, the refusal of the court to nonsuit and, second-—■ comprehensive of the first—the refusal of the court to direct a verdict in favor of the defendant. Defendant’s argument on the appeal is built on the assumption that the damages suffered by plaintiffs were the result of concussion and relies, so far as concerns the decisions of this state, upon Simon v. Henry, 62 N. J. L. 486; 41 Atl. Rep. 692, wherein recovery was sought for damages caused by concussion and Mr. Justice Dixon said:

“In Booth v. Rome, Watertown and Ogdensburg Railroad Co., 140 N. Y. 267, and in French v. Vix, 143 Id. 90, it was held that the temporary use of explosives in the blasting of rock, provided reasonable care be exercised, is lawful, and damage resulting from concussion thereby produced is damnum absque injuria. We find no contrary decision.”

Plaintiffs’ further contention is that defendant proved no negligence. In the instant case there is evidence that rocks were thrown by the explosions into plaintiffs’ house, passing through and breaking windows, thus doing measureable damage. Thompson v. Jannarone Contracting Co., 6 N. J. Mis. R. 320; 141 Atl. Rep. 25, held that the casting of rocks upon another’s land by blasting is a trespass and that, if unlawful in its own nature, it continues to be so, however carefully or skillfull}' it may be done. The complaint in the present action grounds, not in trespass, but in negligence, chiefly negligence in the employing of workmen and in the manner of discharging the blasts, and therefore does not quite come within the holding in Thompson v. Jannarone Contracting Co., supra, but the cited testimony is sufficient, we think, in conjunction with and in contradiction of testimony produced by the defendant as to the proper manner of doing the work and the way in which it actually was done to take the question of negligence to the jury, Whitla v. Ippolito, 102 N. J. L. 354; 131 Atl. Rep. 873.

We find no error in the questioned rulings and therefore conclude that the judgment below should be affirmed.


text:
    AMERICAN TARSO COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. ADVANCED PRODUCTS ASSOCIATION, DEFENDANT-RESPONDENT.
    Submitted October term, 1934
    Decided February 6, 1935.

      Before Justices Lloyd, Case and Donges.
    For the plaintiff-appellant, David L. Dole.

    For the defendant-respondent, Morton Isaacs.

   The opinion of the court was delivered by

Case, J.

On October 4th, 1932, plaintiff and defendant entered into a contract relating to the use by defendant of certain processes in the manufacture of felt. Paragraph 6 of the contract provided:

“Advanced [defendant] agrees to pay to Tarso [plaintiff] a royalty fee for the use of said patents and or secret processes, methods or trade secrets, of five cents (5c) per square foot, on all of the said felt manufactured in connection with the said processes. It is agreed between the parties that the amount of royalty fees for each month’s business shall be determined by the square footage of the film sheet measurement ordered by and sold to Advanced during each month’s period, the said royalty to be paid to Tarso by Advanced, thirty (30) days from date of invoice of the said film.”

There was a breach, character undefined, by the defendant, whereupon plaintiff terminated the contract. The total square footage manufactured by defendant up to that time amounted to $14, which sum admittedly was paid to plaintiff. Plaintiff sued declaring that it was entitled to a minimum payment of $500. The court, sitting without a jury, found for the defendant, and plaintiff appeals.

The specification of determination sets out.that the trial court erred (1) in refusing plaintiff’s motion to enter judgment in its favor, (2) in failing to direct a judgment in favor of the plaintiff and (3) in directing judgment to be entered for the defendant instead of directing a judgment in favor of the plaintiff. The state of case as certified to us shows that no motions were made by either side; therefore there is nothing in the record to1 support the first specification. No judgmerit was “directed,” the court simply found for the defendant; consequently the second and third specifications are no more than an assertion that judgment was given to the defendant instead of to the plaintiff, and that is not sufficient. Eckert v. Nazzaro, 109 N. J. L. 136; 160 Atl. Rep. 425. The questions submitted on appeal are not properly before us.

However, reviewing the record to ascertain whether it contains anything upon which the judgment for defendant may rest, we learn: The provisions in the contract by which plaintiff claims a $500 minimum payment are not susceptible of positive construction, but even if given plaintiff’s version would not apply unless the contract were in force for six months. The only proof before us as to the time of cancellation is that “sometime during the first six months following October 4th, 1932, the defendant breached the contract. Plaintiff thereupon terminated the contract by proper notice.” That reasonably carries the meaning that at sometime within the first six months defendant breached and plaintiff terminated the contract, and such, apparently, was the view of the trial judge. If that be so, then the plaintiff ended the contract before the minimum payment became due. By a further contractual provision defendant’s obligation upon cancellation by plaintiff was to pay only “those royalties which shall then be due.” Appellant’s brief states that the determination was on April 4th, 1935, but if that be the fact, the place for it is in the proofs. We are constrained to consider that the case as it comes to us shows otherwise. The contract was canceled by the plaintiff before it had been in force for six months, wherefore the obligation upon the defendant to make a minimum payment of $500 never arose. Defendant was obligated to pay only $14, the receipt of which is admitted by plaintiff.

Affirm.


text:
    ETHEL M. DORRANCE, GEORGE MORRIS DORRANCE, M. D., ARTHUR C. DORRANCE AND CAMDEN SAFE DEPOSIT AND TRUST COMPANY, EXECUTORS OF THE LAST WILL AND TESTAMENT OF JOHN T. DORRANCE, DECEASED, PROSECUTORS, v. J. H. THAYER-MARTIN, STATE TAX COMMISSIONER OF THE STATE OF NEW JERSEY, RESPONDENT.
    Submitted October term, 1934
    Decided February 8, 1935.
    Before Justices Teen chard, Heher and Perskie.
    For the prosecutors, John Milton (Nathan Miller and Harold Otis, of the New York bar).
    For the respondent, David T. Wilentz, attorney-general; William H. Smathers, assistant attorney-general, and Duane 27. Minará.

   Per Curiam.

The writ of certiorari, in this case, brings up for review a final decree of the New Jersey Prerogative Court, dated May 11th, 1934, affirming a transfer inheritance tax assessment, made by J. H. Thayer-Martin, state tax commissioner of the State of New Jersey, in the matter of the estate of John T. Dorranee, deceased, as made on October 10th, 1932, and amounting to $12,247,333.52.

We have carefully studied and considered the voluminous records, proofs and briefs herein submitted. The opinions of Buchanan, Vice-Ordinary, in this matter when it came up before him for determination are reported in 115 N. J. Eq. 268; 170 Atl. Rep. 601, and 116 N. J. Eq. 204; 172 Atl. Rep. 503. They disclose a very careful analysis and consideration of the proofs as well as the law applicable thereto; they are comprehensive, clear, sound and correct.

We are of the firm opinion that there has been nothing further presented to this court which would merit or justify a disturbance of the results reached by the learned vice-ordinary and with which we are in thorough accord.

Accordingly the decree brought up for review is sustained and the writ of certiorari is dismissed, with costs.


author: Beogan, Chief Justice.

text:
    LODI TRUST COMPANY, A BANKING CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DAVID A. HIMADI (ALSO KNOWN AS D. A. HIMADI), DEFENDANT-APPELLANT.
    Submitted October term, 1934
    Decided January 29, 1935.
    Before Beogan, Chief Justice, and Justices Paekee and Bodine.
    Por the plaintiff-respondent, Breslin & Breslin {John J. Breslin, Jr., of counsel).
    Por the defendant-appellant, Chandless, Weller & Selser {John B. Selser, of counsel).
   Beogan, Chief Justice.

The defendant appeals from a judgment against him, entered after the court directed a verdict for plaintiff. The suit was based upon three demand collateral notes of defendant, held by plaintiff.

The grounds of appeal are that the court erred in rejecting defendant’s motion for nonsuit and for a directed verdict; that the court erred in taking the case from the jury; that the court did not receive a verdict from the jury; thab the jury did not return any verdict. Only the first ground can be considered. As to the other grounds of appeal, no exception appears in the record challenging the action of the trial judge.

The sole point upon which the motion for nonsuit was advanced at the trial was that the suit was premature.

It appears that the plaintiff admitted the execution of the notes which were received in evidence; that the plaintiff trust company’s memorandum of this note account showing the debits and credits and amount due was received in evidence; that the bank’s memorandum of certain collateral pledged by the defendant, and at the time of the suit undisposed of, was likewise admitted in evidence, all without objection. None of these exhibits appear in the printed record. Testimony was admitted without objection as to the balance due plaintiff from defendant.

It appears that in the list of collateral pledged against these notes were certain paid up shares of building and loan stock. The association that issued these shares was making payment in redemption of same from time to time, under the present regulations governing building and loan associations.

The appellant’s point is that this suit was premature because the plaintiff had not given the defendant credit for the value of the building and loan shares still unredeemed. The notes being in default, the plaintiff, pledgee of the collateral, was under no duty to refrain from suit on the principal obligation. The general rule is that in the absence of agreement to the contrary, a creditor holding security, may, upon default, pursue his remedy, at will, by action on the principal contract or by proceeding to realize the value of the collateral. Polhemus v. Prudential Realty Co., 74 N. J. L. 570 (at p. 577); 67 Atl. Rep. 303; 49 C. J. 987, § 226; Brick v. Freehold National Banking Co., 37 N. J. L. 308.

The motion for nonsuit on the ground that the action was prematurely brought was properly denied.

The judgment is affirmed, with costs.


author: Buogan, Chief Justice.

text:
    GEORGE SNOWDEN, BY HIS NEXT FRIEND, ALEXANDER SNOWDEN, AND ALEXANDER SNOWDEN AND MINNIE SNOWDEN, PLAINTIFFS-APPELLEES, v. “BY-FI” BUILDING AND LOAN ASSOCIATION OF JERSEY CITY, DEFENDANT-APPELLANT, AND KENNETH MARKS AND ISIDORE LEVINE, DEFENDANTS.
    Argued October 2, 1934
    Decided January 29, 1935.
    Por the plaintiffs-appellees, Collins & Corbin (Edward A. Marlcley and Patrick F. McDevitt, of counsel).
    Por the defendant-appellant, Carey & Lane (Robert Carey, Harry Lane and David A. Pindar, of counsel).
   Buogan, Chief Justice.

Plaintiff below, an infant, had judgment for personal injuries and his parents likewise had judgment for their expenses and loss of the infant’s services, against the defendant.

At the time of the happening the infant lived with his parents in a house rented by them and owned by the defendant building and loan association, appellant, which association undertook to have the house renovated somewhat by painting and decorating contractors. In the course of the work a heavy radiator was disconnected and, as charged, negligently permitted “to remain in the hall in a dangerous, unstable and unguarded position.” The result was that it fell on the infant plaintiff and injured him. The principal question was whether any liability was solely that of the contractors, or whether the appellant was also chargeable because of active participation in the alleged negligent act.

The defendant appeals on the ground that its motion for nonsuit and direction of verdict should have prevailed; that the trial court erred in the admission and rejection of testimony, and that the court erred in its charge.

The reasons advanced in support of the nonsuit and direction of verdict in the defendant’s behalf are the same, namely, that there was no evidence of negligence on the part of the defendant. Other reasons are now advanced in appellant’s brief but they cannot be considered since they were not presented to the trial court.

(1) The defendant building and loan association, according to the testimony, had commissioned its secretary, Knoeller, to see that this painting contract was carried out. The witness, Knoeller, says that the removal of these radiators was included in the contract of the parties. This the painting contractors deny. The estimate of cost of the work is printed in the record and there is nothing to indicate that the disconnection and removal of the radiators was part of the work covered by the estimate. There was testimony on the part of the contractors that Knoeller directed them to disconnect the radiators, saying that “he would be responsible.” Under our cases, Knoeller was acting within the scope of his apparent authority or within the scope of the authority which the defendant permitted him to hold himself out as having from his principal, the defendant. This testimony raised a question of fact for the jury and the denial of the motion for nonsuit and directed verdict was proper. J. Wiss & Sons v. H. G. Vogel Co., 86 N. J. L. 618; American Well Works v. Royal Ind. Co., 109 Id. 104, 108.

(2) The challenged testimony, which is made the subject of a ground of appeal, all relates to the same thing, namely, the authority of Knoeller, the secretary of the building and loan association, to bind his principal, the defendant. To some of the questions, proper exception was not taken but, passing that, it is manifest that the questions which the court permitted the witnesses, Marks and Levine (painting contractors) to answer were under the circumstances, proper. They all had to do with the work to be done under the contract and upon which the estimate was silent. There was in fact no written contract at all, merely a bid for work and. since this work was given out by the witness, Knoeller, for his principal, and since further there was testimony that he exercised supervision, it was quite competent to determine his status from what he said to the contractors and the directions that he gave them, all this being within the apparent scope of his authority.

(3) The challenge to the court’s charge relates to what was said about the question of the liability of the building and loan and is premised on the argument that there was no evidence upon which the question o£ the liability of the building and loan association could go to the jury. From what has been said, it is unnecessary to discuss this except to point out again that if Knoeller was acting within the scope, or apparent scope of his authority, the question was one of fact for the jury. The refusal of the court to charge as requested was warranted because the request to charge contained premises for which there was no foundation in the testimony.

Wo find no error in the record and the judgment under review will be affirmed, with costs.


text:
    PUBLICKER COMMERCIAL ALCOHOL COMPANY, PLAINTIFF-APPELLANT, v. GEORGE N. BICK, TRADING AS ESSEX CHEMICAL COMPANY, DEFENDANT-APPELLEE.
    Submitted October term, 1934
    Decided February 13, 1935.

      Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Eor the plaintiff-appellant, Pitney, Hardin & SJdnner (William H. Osborne, Jr., of counsel).
    Eor the defendant-appellee, Past ■<& Past (Louis A. Fast, of counsel).
   The opinion of the court was delivered by

Brogan, Chief Justice.

This is plaintiff’s appeal from a judgment of the Essex County Court of Common Pleas. The trial court directed a verdict in favor of the defendant.

Briefly stated, the facts in the case are that on May 16th, 1929, the plaintiff, Publieker Commercial Alcohol Company, a manufacturer, contracted to sell to the defendant a large quantity of alcohol, the minimum three hundred thousand gallons and the maximum four hundred thousand gallons. This contract was signed on behalf of the seller, plaintiff, by one J. J. Smith and accepted by the buyer, defendant, Essex Chemical Company, by George ET. Bick.

A letter, dated May 28th, 1929, was received by the defendant from a corporation called Publieker, Incorporated, signed by the same J. J. Smith, as sales manager, enclosing duplicate copy of the contract above mentioned. The letter refers in passing to the contract for the purchase of alcohol and then goes on to say, “As further agreed, we are immediately proceeding to plan for the installation at your plant in ETewark, EL J., flve, 10,000 gallon storage tanks which are to be placed on your property * * * we will install this equipment at your expense with the understanding that (sic) at the end of two years’ time you have bought and we have delivered 500,000 gallons, the equipment reverts to your ownership.”

The tanks were erected, some alcohol shipped, and thereafter difficulty between the parties arose, the plaintiff charging that the defendant did not live up to the covenant to purchase the quantity of alcohol agreed upon and defendant, in turn, charging bad faith against the plaintiff, claiming that certain representatives of the plaintiff had undermined its business by calling upon its customers, soliciting their trade direct and offering to supply commercial alcohol to the defendant’s customers at a lower price than the defendant was paying under its contract with the plaintiff.

In the formal contract between the plaintiff and defendant, it was agreed in paragraph 11 of the covenants as follows: “Any controversy or claim arising out of or relating to this contract shall be settled by arbitration in accordance with the rules then obtaining of the American Arbitration Association and judgment upon an award rendered may be entered in the court, state or federal, having jurisdiction.”

The parties, plaintiff and defendant, went before arbitrators with their grievances. It will be noted that the plaintiff was the seller of the alcohol while it was Publicker, Incorporated, that installed the tanks. It will also be noted that the same person, J. J. Smith, executed the contract for the plaintiff and also signed the letter of Publicker, Incorporated, regarding the installation of the tanks.

As to the arbitration, the record shows that the plaintiff filed with the arbitrators a “statement of the controversy,” alleging (a) that the defendant failed to pay a balance due on alcohol that had been delivered; (b) that the defendant breached its contract as to the purchase of the minimum quantity of alcohol called for in the agreement between the parties, for which it claimed loss of profit, and (c) that the defendant neglected or refused to return or pay for metal containers or drums belonging to the plaintiff in which the alcohol had been delivered. The plaintiff therefore claimed a balance due on delivered merchandise of $7,009, together with interest: $28,692.18 for its loss of profit on the unfulfilled contract of purchase and $1,596, with interest, for the drums.

The defendant, in its answer before the board of arbitration, says that it agreed with a Mr. Newman, president of Publicker Commercial Alcohol Company, that “at the expense of the Publicker concern” the five ten thousand gallon storage tanks were to be erected on the property of the defendant; that everything was harmonious up to January, 1930, when it was learned that the plaintiff’s agents had canvassed the defendant’s trade and offered these customers of the defendant the same commodity at a lower price, as stated above. The defendant claims damages for profits lost to it, by what it charges was the plaintiff’s breach of contract.

The arbitrators, after hearing the parties and receiving their briefs, which are printed in the state of the case, filed an award in which they allowed the plaintiff, Publicker Commercial Alcohol Company, $7,009 without interest as and for its damage for the unpaid bill of the plaintiff on the alcohol that had been delivered. They disallowed the claim of the plaintiff for profits on the amount of alcohol which the defendant had covenanted to purchase, but had not taken, and allowed $378 to the plaintiff for its claim for the drums delivered to the defendant. As to the defendant, they disallowed its claim against the plaintiff for the profit that the defendant claimed to have lost because of plaintiff’s tactics, and as to the tanks, which were erected on the defendant’s land by Publicker, Incorporated, made disposition of that matter in this language: “We direct that the storage tanks installed on the premises of George N. Bick, trading as Essex Chemical Company [the defendant] shall become the property of said George N. Bick unless removed from said premises by the Publicker Commercial Alcohol Corporation within sixty days from the date of this award, and the premises restored to' a normal condition,” and concluded the award with this statement: “We, therefore Award to the Publicker Commercial Alcohol Corporation the sum of $7,378 against George N. Bick, trading as Essex Chemical Company in full settlement of the claims of either party against the other under the contract of May 16th, 1929.”

The defendant paid the damages as fixed by the arbitrators and the plaintiff received it without protest of any kind.

Manifestly the award of the three business men making up the arbitration board was a compromise, dealing out justice to the parties as they saw it accordingly as the rights and equities of the parties appeared, without being disturbed about technique or legal niceties. The defendant, according to the record before us, abided by the award, first, by promptly paying the amount fixed as damages and, again, by manifesting willingness to have the tanks removed. However, on May 4th, 1932, six days before the time limited for removing the tanks from the defendant’s property had expired, Publicker, Incorporated, assigned all its right, title and interest in the tanks to the plaintiff, Publicker Commercial Alcohol Company, which party did not remove the tanks within the time limited bnt, after the expiration of the time fixed by the determination of the arbitrators, sued for the value of the tanks.

The trial court, at the conclusion of the case, the defendant having put into evidence the testimony taken before the arbitrators (only parts of which are contained in the record before us), and the several exhibits which have been alluded to, directed a verdict for the defendant. The plaintiff appeals from the judgment entered on the ground that it was error for the court to rule that the award of the arbitrators was binding upon the parties. The other grounds of appeal, and there are seven additional, concerning admission and rejection of evidence, are without merit. The trial court committed no error in the admission or exclnsion of testimony.

The main question argued by the appellant here is that the award could not bind or affect the rights of Publicker, Incorporated, since that company was not a party to the arbitration proceedings and that the subsequent assignment of the interest of that company to the appellant transferred to it all the rights that Publicker, Incorporated, had in that property and that since the right of Publicker, Incorporated, in the property was unassailable, the plaintiff's right was equally good.

Prom the testimony, it is apparent that these two companies were, in the main, identical save for the fact that each had its own certificate of incorporation. The officers of each company were the same persons.

The defendant paid for the tanks when they were installed and reimbursed itself by deducting the amount so expended from the invoices for the alcohol which the plaintiff delivered under the contract.

At the time the award was made, the plaintiff thoroughly understood its import and received its benefits. The defendant performed according to the strict letter of the determination and the plaintiff, having accepted the benefits of the award, cannot now repudiate it in any essential that may be displeasing to it.

The only grounds upon which the award could be challenged in a court of law or equity are that the arbitrators exceeded the scope of the inquiry or misbehaved themselves or that the award or arbitration was procured by corruption or other undue means. (Arbitration and Eeferences, 1 Comp. Stat., p. 103, § 1.) These latter elements are not present in this ease. The plaintiff did not attack the award but accepted it. There was no application for rehearing or modification either to the arbitrators or to a law court.

Newman’s testimony for the plaintiff would indicate a transaction only between the parties plaintiff and defendant. The letter of May 28th, 1929 (supra), indicates that Publicker, Incorporated, was inseparably connected with plaintiff corporation even to the extent of forwarding to the defendant the. contract of purchase and sale, both of which, viz., the letter of Publicker, Incorporated, and the contract of Publicker Commercial Alcohol Company, were signed by the same person.

The award is obviously based on mutual breaches. If the defendant alone were in default it would have had to pay interest on the amount of the unpaid balance as well as have had to pay damages for its unfulfilled contract of purchase. Manifestly, the arbitrators found that the plaintiff had breached the contract on its part since the board awarded the tanks, conditionally, to the defendant. The cases cited in support of the appellant’s position are those where the board of arbitration went outside of the scope of the inquiry or assumed jurisdiction over subject-matter where it had none. We cannot say that the question of the tanks was foreign to the matters submitted to or outside the jurisdiction of the arbitrators. These parties expressly contracted in contemplation of settling disputes before arbitrators, if disputes arose. They erected their own court, so to speak, and if dissatisfied with the judgment of the tribunal of their own selection the statute on arbitration (1 Comp. Stat., p. 103, as amended by Pamph. L. 1923, ch. 134, p. 294, § 10) is conclusive as to the remedy to be invoked. It provides for the manner in which an award may be modified or corrected. Under subdivision B of paragraph 10 of that amendment (supra) we find that where the arbitrators have awarded upon a matter not submitted to them (assuming the question of the tanks was not before them), unless it is a matter affecting the merits of the decision upon the matters submitted, then the court must make an order modifying or correcting the award. The appellant not having gone to a law court to enforce a modification of the award, we may assume that the question of the tanks was a matter affecting the merits of the controversy.

The whole controversy would have been decided differently in a court of law or, to put it another way, it could not have been decided in the manner that the board of arbitrators determined it. The party plaintiff having taken the fruits of the award as far as it could, and having failed to reclaim the tanks within the time limited in the award, and having likewise failed to apply to the court, if it was dissatisfied, for an order modifying or correcting the award, is now estopped from attacking the award. When the plaintiff accepted an assignment from Publicker, Incorporated, of whatever right, title and interest Publicker, Incorporated, had in the tanks it knew full well exactly what the situation was and that the tanks had already been awarded to it on condition of its removing them, which it did not choose to do.

We find no error in the court’s direction of verdict in favor of the defendant and the judgment will therefore be affirmed, with costs.


author: IIeher, J.

text:
    THE WEST SHORE RAILROAD COMPANY AND THE NEW YORK CENTRAL RAILROAD COMPANY, LESSEE, PROSECUTORS, v. THE BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY AND THE PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANTS. THE WEST SHORE RAILROAD COMPANY AND THE NEW YORK CENTRAL RAILROAD COMPANY, LESSEE, PROSECUTORS, v. THE BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY AND THE PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY, DEFENDANTS. THE WEST SHORE RAILROAD COMPANY AND THE NEW YORK CENTRAL RAILROAD COMPANY, LESSEE, PROSECUTORS, v. THE BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY AND THE HILL BUS COMPANY, DEFENDANTS.
    Submitted May term, 1934
    Decided February 15, 1935.
    Before Justices Tbenchakd, Heheb and Peeskie.
    For the prosecutors, Wall, Haight, Carey <& Hartpence.

    For the defendant board of public utility commissioners, John A. Bernhard.

    For the defendants Public Service Co-ordinated Transport and Public Service Interstate Transportation Company, William H. Speer.

    For the defendant The Hill Bus Company, Maurice J. Cronin.

   The opinion, of the court was delivered by

IIeher, J.

These writs of certiorari bring up three separate determinations of the board of public utility commissioners, approving municipal permits granted to defendants Public Service Co-ordinated Transport, Public Service Interstate Transportation Company and The Hill Bus Company, respectively, for the operation of auto buses in intrastate business over designated routes.

Prosecutors insist that “no1 public necessity or convenience was shown to require the additional permits,” and that, in that situation, the permitee ought not to be permitted to compete with “established public carriers with bus lines that either directly or indirectly parallel the lines of the existing utilities, thereby sapping their means of subsistence and draining the region.” It is insisted that the territory to1 be served by these auto bus lines has adequate transportation facilities. The utility commission determined that the additional bus facilities in question “are necessary and proper for the public convenience and properly conserve the public interest.” Conditions deemed by the utility commission adequate to safeguard the interest of all concerned were imposed. We concur in these conclusions.

The municipal consents granted to the Public Service Co-ordinated Transport effectuates a combination and change in the routing of twelve auto buses on what is termed the “Bergen route,” between Weehawken and Hackensack, in substitution for street railway service, and permits the operation of six auto buses between Hackensack and Westwood, and the same number of buses between the West Shore Ferry and Dumont. As found by the utility commission, these facilities will unquestionably afford a more convenient and direct service from the West Shore Ferry to Dumont, Hackensack and Westwood, and the intermediate municipalities.

Those granted to the Public Service Interstate Transportation Company permit the operation of ten auto buses between Englewood and Fort Lee, New Jersey, on the Dumont-Englewood, New York City route. It is clear, as found by the utility commission, that these additional facilities -will furnish a much-needed direct service to the affected municipalities—one that will not be competitive in character. As indicated, the original route furnished an interstate service, via the George Washington bridge, across the Hudson river. The proposed additional service will be local and direct from Dumont, Bergenfield, Englewood and Englewood Cliffs to the borough of Eort Lee. This service also will not be competitive in character. It will render a necessary and convenient service to municipalities that are not otherwise directly served.

The permits held by The Hill Bus Company cover the operation of ten auto buses between and including Westwood, Englewood, Englewood Cliffs and Eort Lee, on an extension of an existing line designated as the Englewood-Englewo'od Cliffs route. Hnquestionably, these buses will furnish a service not afforded by the old facilities between Harrington Park, Haworth, Dumont and Bergenfield. It is true that the prosecutors provide transportation service between these points, but it is not of the character afforded by the additional bus facilities. The buses will provide a more convenient service for territory, including the area served by a new high school, removed from the existing rail facilities.

As pointed out in a prior adjudication, if railroads “are entitled as public utilities to protection against destructive competition, it should be a competition with a service which they have been giving.” West Jersey and Seashore Railroad Co. v. Board of Public Utility Commissioners, 8 N. J. Mis. R. 212; 149 Atl. Rep. 269; affirmed, 109 N. J. L. 260; 160 Atl. Rep. 491. The utility commission was fully justified by the evidence in concluding, in each case, that the public convenience and public interest will be advanced by the establishment of the additional bus facilities.

The writs are therefore dismissed.


author: Pee Cueiam.

text:
    JESSIE LA BELL ET AL., PLAINTIFFS-RESPONDENTS, v. MAX QUASDORF ET AL., DEFENDANTS-APPELLANTS.
    Submitted October 12, 1934
    Decided February 18, 1935.
    Before Justices Lloyd, Case and Donges.
    Por the appellants, Green <& Green.

    Por the respondent, Feder ds Rinzler.

   Pee Cueiam.

This is an appeal from a judgment of the Passaic District Court in favor of the plaintiff who was a passenger in an automobile driven by the defendant Ilse Quasdorf and owned by her father, Max Quasdorf, and was injured when this car collided with a pole.

It is urged on behalf of both defendants that the trial court should have directed a verdict in their favor because there was no proof of negligence. It is sufficient to say that the testimony of the excessive speed of the car, together with the evidence of the manner of the happening of the accident, raised a question of fact as to negligence, which question the trial court resolved in favor of the plaintiff. There being evidence to support such conclusion, this court will not disturb the judgment on that ground.

Several grounds are argued by the appellant Max Quasdorf, owner of the automobile. It seems necessary, however, to deal with but one, namely, that there should have been a nonsuit on the ground that there was no invitation by the defendant Max Quasdorf to the plaintiff to ride in the car and that the agency of the daughter for the father, assuming that any agency at all existed, did not extend to inviting a passenger to ride in the car so as to make her an invitee in her relation to the father. The testimony was that Ilse Quasdorf took the car for the purpose of paying dues on building and loan shares of her father and mother. She took with her in the car her sister and Jessie Ignoifo, who was visiting her when the trip started, and the plaintiff got into the car either at the Quasdorf home or at her own home, there being some conflict on this point. There is testimony from the Ignoffo girl that she asked Ilse whether she could take the plaintiff along and Ilse said “it was all right to take her along.” However, there is no evidence that Ilse had authority to take anyone into the car and make such person an invitee of her father.

For this reason, the motion for nonsuit should have been granted, and the judgment against Max Quasdorf is accordingly reversed, and the judgment against Ilse Quasdorf affirmed.


text:
    SAMUEL GREENBERG, PLAINTIFF-RESPONDENT, v. STEVE O’BRODSKY ET AL., DEFENDANTS-APPELLANTS.
    Submitted October 12, 1934
    Decided February 18, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellants, Alan Kraut and William F. Hanlon.

    For the respondent, Louis Hoberman.

   Pee Cueiam.

The facts in this case seem to be without substantial dispute. Plaintiff was driving an automobile northerly on Hudson Boulevard in Jersey City. At the intersection of the boulevard with Sip avenue he came to a stop because the traffic light was red against him. A bus owned by the defendant Dreyer & Heineman Bus Company and operated by the other defendant O’Brodsky, drew up along the left side of plaintiff’s car, traveling in the same direction, and stopped because of the red traffic signal. Defendant O’Brodsky left his bus and came over to the plaintiff’s car and engaged him in a wordy altercation, claiming that plaintiff had several times turned shortly ahead of the bus and cut off the bus’ progress. Plaintiff remained seated in his car with the door closed. O’Brodsky returned to his bus and thereupon the plaintiff opened the left door of his automobile intending to go to the bus and continue the argument with O’Brodsky. At this point the traffic light changed to green and the bus started with the door open, according to plaintiff’s testimony, and the bus ran into the door of plaintiff’s car and damaged the door and the left side of the body. The plaintiff also sustained some injuries from the impact.

So far as the facts of the collision go, there was a clear question of fact as to whether there was negligence in the operation of the bus so that the collision and consequential damage to the plaintiff and his automobile resulted.

This, likewise, is true of the other ground of the motions, namely that the plaintiff was guilty of contributory negligence.

The next point is the refusal of the trial judge to permit the plaintiff to be asked, on cross-examination, as to the value of the automobile after some but not all of the repairs had been made. The state of the case indicates that plaintiff testified the ear was reasonably worth $750 before the collision: and that after the collision it was reasonably worth, in its damaged condition, before repairs $500. On cross-examination the plaintiff was asked whether the car was repaired and he replied that it was in part. He enumerated the damage and was then asked as to the value of the car in its repaired condition. This was objected to on the ground that the repairs had not been completed and the objection was sustained. In the state of the proofs, the objection was well taken. Obviously the value of the -car with repairs partially made did not indicate the measure of damage to the car.

The judgment is affirmed, with costs.


text:
    IDA SHUTZ ET AL., PLAINTIFFS-RESPONDENTS, v. ISAAC MAY ET AL., DEFENDANTS-APPELLANTS.
    Submitted October 12, 1934
    Decided February 18, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellants, Joseph G. Paul.

    For the respondents, Ellis I. Taube.

   Pee Cueiam.

This appeal brings up two judgments of the First District Court of Jersey City in two suits, one brought by a wife for her damage and the other by her husband for his consequential damage, resulting from the wife’s injury, against the defendants-appellants, Isaac May and H. Stroka. The actions are for alleged negligence resulting in injury to the wife, who was admittedly an invitee in an automobile owned by May and Stroka. It appears that this car was being used at a funeral. The plaintiff wife was an attendant at the funeral and desired to enter the front seat of this automobile. She was a large woman, five feet eight inches in height, and weighing about one hundred and sixty pounds. From the testimony it appears that either her husband opened the front door of the car or the front door was open, and she attempted to enter when her head struck an object which cut her, and the blood which flowed damaged her clothing. The amount of damage is not in question.

The testimony is meagre but the plaintiff husband testified that the wife struck her head on a mirror which was placed on the inside of the car, on the front thereof, at about the middle of the windshield; that the object was about four inches long and three inches wide, and was placed at an angle so that the edge which caused the injury was about four or five inches away from the front of the car to which it was attached. As stated, it was somewhere about the middle of the front of the car. One Lipschultz testified to substantially the same things. There was no testimony that there was anything unusual in the placing of the mirror or that a mirror so placed was per se negligence because a person entering the car in the usual way would strike it.

We are not inclined to the view that the occurrence speaks negligence, and are unable to find any testimony from which it can be determined that there was anything unusual about the position of the mirror at the time of the alleged occurrence. The Traffic act requires that every automobile constructed as this one was must have a mirror so placed as to show to1 the driver the road to the rear and to the side.

The appellants also assert that the plaintiff was guilty of contributory negligence, but we do not think it necessary to pass upon this point.

In the factual situation presented, the negligence of the defendants did not appear, and they were entitled to have the motions for nonsuit or directed verdicts granted.

The judgment is reversed.


text:
    EMILY SCHWEERS AND JOHN D. SCHWEERS, PLAINTIFFS-APPELLEES, v. ELIZABETH-UNION-HILLSIDE-IRVINGTON LINE, INCORPORATED, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted January term, 1935
    Decided April 9, 1935.
    Before Beogan, Chibe Justice, and Justices Paekeb and Bodine.
    Por the plaintiffs-appellees, Francis A. Gordon.

    Por the defendant-appellant, Charles A. Rooney.

   Pee Cueiam.

This is the defendant’s appeal from a judgment entered in favor of the plaintiffs upon a jury verdict. The said plaintiffs, husband and wife, were awarded damages, the wife for personal injuries and consequent pain and suffering, and her husband, for loss of services and damage to' his automobile.

Two questions are presented on this appeal, the first, that the court was in error in overruling a question addressed to a medical witness in hypothetical form. The question was predicated on the assumption that Mrs. Schweers, the plaintiff, had been nervous before the accident in question. Now the testimony thereon plainly was that the woman was not nervous prior to the accident and the medical witness himself said that he did not get any history from her of previous nervousness nor did he inquire about it. Therefore the hypothetical question, containing as it did the hypothesis that a nervous condition had existed prior to' the accident which, from the evidence, was not the case, was properly overruled. Schnoor v. Palisades Realty Co., 112 N. J. L. 506; 172 Atl. Rep. 43.

The second ground for reversal urged is that the trial court refused to charge the first and second requests submitted by the defendant. The first request was written down as follows: “If you find that the plaintiff Emily Schweers did not sustain any actual physical injury, and that she was merely frightened, you cannot award damages to the plaintiff for such fright or for whatever the plaintiff may claim to be the results of such fright.”

The court’s refusal to charge in this language was free from error. We have found no evidence in the case and the appellant points to none in its brief that the plaintiff in fact suffered no physical injury. The proof is all to the contrary.

At the time of the happening Mrs. Schweers was seated in her husband’s automobile coupe which was parked on West Grand street, in the city of Elizabeth. The bus of the defendant came from behind and struck the car on the left-hand side with force enough to smash the left-hand side door and bend the chassis, and the woman, as the jury was entitled to find under the evidence, was rendered unconscious for a short time. Her doctor testified that on examining her after the happening he found contusions on the shoulder and scalp and that she had been severely shaken up. Tinder this state of the evidence the first request to charge, as submitted, was improper and therefore rightly rejected.

The defendant’s second request to charge is as follows: “In order for the plaintiff Emily Schweers to recover for injuries she claims to have sustained, she must prove not only that the accident could have caused the condition or conditions of which she now complains, but must eliminate all other causes.”

The court declined to charge in that exact language but did say, in repetition of what he hád previously said to the jury, “the burden is absolutely upon the plaintiff claiming injuries to prove by a fair preponderance of the evidence that those injuries proximately resulted from the injuries she received in the accident for which she claims the defendant’s servant is to blame. If she is suffering now from things that could have been caused by her condition prior to the accident, then they cannot be attributed by a jury to the accident itself. The jury must believe that in all reasonable probability the injuries proximately resulted from the injuries she sustained at the time and not from other causes.”

The court’s charge was clear and comprehensive and outlined definitely to the jury the manner in which it should admeasure damages for the condition or aggravated condition of the plaintiff’s physical well-being. The language used, in our judgment, was better calculated to safeguard the defendant’s interest than the language of the request to charge because it was less technical. The court is under no duty to accept the exact words of a request to charge as prepared by counsel so long as the point in question has had adequate exposition as in this case we think the several matters had.

The judgment is affirmed, with costs.


text:
    KATHERINE HAURANCHALK, AS GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF LOUIS HAURANCHALK, DECEASED, PLAINTIFF-APPELLANT, v. WARREN & ARTHUR SMADBECK, INCORPORATED, A BODY CORPORATE, AND HERMAN LIST, DEFENDANTS-APPELLEES.
    Submitted October term, 1934
    Decided February 20, 1935.

      Before Brogan, Chibe Justice, and Justices Parker and Bodinr.
    For the plaintiff-appellant, Breslin & Breslin (John J. Breslin, Jr., of counsel).
    For the defendants-appellees, Reginald V. Spell (LeRoy Vander Burgh, of counsel).
   Per Curiam.

This is an appeal from a judgment in favor of the defendants in the Common Pleas Court of Bergen county, the jury having returned a verdict of no cause for action. The plaintiff’s decedent was struck by an automobile, owned by the corporate defendant and driven by its employe, while he was crossing a state highway known as route 4 in Englewood, New Jersey. As a result of the injuries received, he died four days later. The highway at that point is a four lane road. A car that preceded that of the defendant had turned from the outer to the inner lane of traffic to avoid colliding with the decedent and he, continuing to cross the road, was struck by the defendant’s car.

The reasons advanced for a reversal of the judgment are grounded on the court’s refusal to charge the several requests submitted by the plaintiff’s counsel. No useful purpose will be served by discussing the requests to charge in detail. Some of the requests are verbatim, excerpts from opinions of this court and of the Court of Errors and Appeals concerning cases decided prior to the enactment of legislation which, because of changed highway and traffic conditions, sets out in unmistakable language the corelative rights and obligations of pedestrians and operators of motor vehicles, thereby changing the common law rule formerly applicable to such situations..

We are of the opinion that the court was correct in rejecting the several requests to charge. To have charged the first request would have been to relieve the decedent of the duty of using ordinary prudence and caution under the circumstances. To have charged the second and third requests would have been to relieve the decedent of a duty imposed upon all pedestrians by the Traffic act {Pamph. L. 1928, art. 5, oh. 281, § 3), which provides that where traffic, at intersections, is not controlled or directed by a police officer or by a traffic signal, pedestrians shall not cross the highway other than at right angles to the curb and when crossing at any other point than a designated crosswalk shall 3Úeld the right of way to all vehicles upon the highway.

Bequests numbers 4, 5 and 10 had no applicability to the state of facts in this case. The eighth request, if charged, would place upon defendants, under such circumstances, the duty of being an insurer of the safety of others. It should also be observed that the charge of the court in different language properly dealt with this question and this likewise is true as to the plaintiff’s ninth request.

Bequest number 12 was properly rejected because premised on facts which were not in the case.

The final ground urged for reversal is based upon an exception to the court’s charge relative to the reciprocal rights and duties of the parties under the circumstances of the happening.

The exception itself is very general and does not point out any language of the court which plaintiff deemed erroneous —rather it was addressed to what the plaintiff contends the court should have said to the jury but -did not. We find no request to charge covering the point which plaintiff says the court omitted to charge. Ceccomancino v. D’Onofrio, 111 N. J. L. 499, 500; 168 Atl. Rep. 518; Hartwyk v. Shea, 114 N. J. L. 235; 116 Atl. Rep. 390. The ground of appeal filed to embrace this alleged error of the trial judge is therefore unavailing to the appellant.

In the matter of the charge to the jury, the court is under no obligation to accept from counsel the form that his charge shall take. Trial courts correctly discharge their duty by laying down, simply and clearly, the rules of the law governing the case and the question involved. It is not error for the court to reject requests to charge when the point thus brought to the court’s attention has been charged, though in different language.

The judgment is affirmed, with costs.


author: Perskie, J.

text:
    HERMAN J. SAMUELSON, TRADING AS UNITED FEED COMPANY, PLAINTIFF-RESPONDENT, v. LOUIS WEISBERG, DEFENDANT; MAX LEET, CLAIMANT-PROSECUTOR.
    Decided February 20, 1935.
    Before Justice Perskie, in chambers, pursuant to statute.
    For the respondent, Albert Kushinslcy.

    For the claimant-prosecutor, David A. Veeder.

   Perskie, J.

Plaintiff, Herman J. Samuelson, trading as United Feed Company, obtained a judgment against Louis Weisberg and issued execution on certain personalty in the possession of said Weisberg. Max Leet thereupon filed a claim of property, claiming that the said property had been sold by Weisberg to his daughter, Celia Buchberg, by a bill of sale antedating the judgment, and that Celia Buchberg had executed a chattel mortgage on said property to him (Leet). The claim was tried in the Ocean County Common Pleas Court, with a jury, and a yerdiet was directed against the claimant on the ground that the chattel mortgage was invalid, it appearing, among other things, that the mortgage was not recorded forthwith.

Counsel for the claimant contends here, as he did in the court below, that so long as there was a valid sale between Weisberg and his daughter, the form of the chattel mortgage by the daughter to the claimant is immaterial. Opposing counsel, however, maintains that it was incumbent upon the claimant to succeed upon the strength of his own title (Folwell v. Fuller, 53 N. J. L. 572), and hence if the chattel mortgage is defective the claim must fail.

The Chattel Mortgage act (1 Comp. Stat., p. 463) provides:

“Every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, having annexed thereto an affidavit or affirmation made and subscribed by the holder of .the said mortgage, his agent, or attorney, stating the consideration of said mortgage and as nearly as possible the amount due and to grow due thereon, be recorded as directed * *

It will be marked that a mortgage which do'es not comply with this section is void as to creditors of the mortgagor. Samuelson is a creditor of Weisberg, but not of the daughter, who is the mortgagor. As between the mortgagor and the mortgagee and their privies, the mortgage, without filing and without recording, is good. W. D. Cashin & Co. v. Alamac Hotel, Inc., 98 N. J. Eq. 432; 131 Atl. Rep. 117; Seacoast Finance Corp. v. Cornell, 104 N. J. L. 24; 138 Atl. Rep. 695; compare Smith v. Commercial Credit Corp., 113 N. J. Eq. 12; 165 Atl. Rep. 637, and Riedinger v. Mack Machine Company of Harrison, 117 N. J. Eq. 334; 175 Atl. Rep. 790. The defects in the chattel mortgage are, therefore, not available to Samuelson.

Counsel for Samuelson urges, however, that the unrecorded bill of sale between the debtor, Weisberg, and his daughter, Celia Buchberg, is in effect a chattel mortgage, and, he argues, that the testimony indicates that it was given as a mere security for moneys due her from her father, and, therefore, title did not pass out of Weisberg, citing Cake v. Shull, 45 N. J. Eq. 208, and Central Chemical Co. v. Virginia-Carolina Chemical Corp., 114 Id. 48; 168 Atl. Rep. 279. These cases, and others, such as Smith, v. Commercial Credit Corp., supra, and Commonwealth Finance Corp. v. Schutt, 97 N. J. L. 225; 116 Atl. Rep. 722, undoubtedly support the argument made. But the vice of the contention is that the testimony taken in the instant case does not conclusively establish that the bill of sale was intended as security only. Considering the state of the evidence, this court is of the opinion that a jury question on this point was presented.

Counsel for Samuelson urges, however, that the bill of sale delivered by Weisberg to his daughter is in reality a chattel mortgage as it was given for the security of money loaned, and as such, it is void because the terms of the Chattel Mortgage act were not fulfilled. If it were true that the testimony taken conclusively established that fact, it would necessarily follow that title never passed out of Weisberg and therefore Leet could not have acquired any interest in the personalty from Weisberg’s daughter. Whenever a transaction resolves itself into a mere security for a debt, it is a mortgage. See Karkuff v. Mutual Securities Corp., 108 N. J. Eq. 128; 148 Atl. Rep. 159; Smith v. Commercial Credit Corp., supra. But an examination of the testimony indicates that there is considerable doubt as to the exact nature of the-bill of sale and the understanding between the parties to it. When evidence is in such state, it is, of course, incumbent upon the trial judge to submit the issue to the jury. Compare Glaser v. B. V. D. Sales Corp., 112 N. J. L. 179; 170 Atl. Rep. 49. It was error to direct a verdict.

Judgment is reversed, with costs.