text:
    NATHANIEL B. STANTON, PLAINTIFF-RESPONDENT, v. SAMUEL RUSHMORE, DEFENDANT-APPELLANT.
    Submitted January term, 1933
    Decided June 17, 1933.
    Before Brogan, Chief Justice, and Justices Trenchard and Case.
    For the plaintiff-respondent, Winfield 8. Angleman.

    For the defendant-appellant, Kmzmcm ds Kunzman (Irving Kunzman, of counsel).
   Per Curiam.

Plaintiff, a physician, sued for his services, on special employment, in testifying as a medical expert witness. Judgment was rendered for the plaintiff by the court, sitting without a jury, and the defendant appeals.

Defendant’s first contention is that the trial court erred in refusing to nonsuit plaintiff on his opening because the contract as recited in the opening was void as against public policy. As hereinafter indicated we think that the contract was not void and that the ruling of the court was proper.

The second and only other point advanced by the appellant is that the trial court erred in refusing to nonsuit the plaintiff at the close of plaintiff’s case and also erred in refusing to direct a verdict for the defendant because (1) the contract was void as against public policy and (3) plaintiff having been lawfully subpoened to testify and therefore being under a legal duty to testify, any agreement to compensate him in excess of legal witness fees was without consideration.

It appears by Dr. Stanton’s testimony that on October 14th, 1930, he called at the defendant’s house, and then saw and observed Mrs. Eushmore from a professional standpoint; that on December 10th, 1931, Mr. Eushmore came to him, asked if he remembered the incident and whether he had then observed Mrs. Eushmore; that upon receiving satisfactory response Mr. Eushmore requested the doctor to appear at a trial to be had in Chancery between Mr. Eushmore and his wife and there to testify as a physician to what he had observed; and upon the doctor’s objecting because of his hospital engagements Mr. Eushmore promised to pay for the service the same amount of money as the doctor would “get for a gall bladder or appendicitis operation.” It is a reasonable inference from the testimony that Dr. Stanton then agreed, in consideration of Mr. Eushmore’s promise, to arrange his plans accordingly, to hold himself in readiness and to testify at the trial, the date of which, so far as is disclosed, had not yet been fixed. Later, on December 22d, the doctor, being then served with a subpoena at the instance of Mr. Eushmore’s attorney, telephoned Eushmore and was forthwith called upon by the latter who reiterated and reaffirmed the earlier arrangement. Dr. Stanton further testifies that he did, in compliance with his agreement with Mr. Eushmore, appear at the Chancery trial and testify as a physician concerning what he had observed as a physician; and that a fair average of his charges for an appendicitis and gall bladder operation was $250, sometimes more, sometimes less. The jury awarded a verdict of $100.

We must assume that the jury found that Mr. Eushmore did engage the plaintiff to go into court and testify for him as a physician upon a matter of which plaintiff was professionally informed and at a fee commensurate with the plaintiff’s charges for like time spent at his surgical labors. We need not speculate upon, nor was the jury or the trial court controlled by, what the defendant could have accomplished by relying upon his legal right to compel plaintiff’s attendance by subpoena or the fact that a subpoena, accompanied by the statutory fee, was actually served. If the defendant chose, and was able, by the promise of reasonable compensation, to assure himself, well in advance of the details of plaintiff’s professional knowledge and that plaintiff would hold himself present and ready to testify as an expert at the trial, the date of which had not then been fixed, .that was his privilege. Whether he did so was a jury question. Marlborough Gaslight Co. v. Neal (Mass.), 44 N. E. Rep. 139. We find nothing in the circumstances of the case to void the contract as contrary to public policy. We think that there was, at the time the contract was made, ample consideration.

Judgment below will be affirmed, with costs.


source: Caselaw Access Project

author: Lawrence, S. C. C.

license: Public Domain

text:
    WILLIAM H. WEART, PLAINTIFF, v. FIRST NATIONAL BANK OF DUNELLEN, A NATIONAL BANKING CORPORATION, DEFENDANT.
    Decided July 14, 1933.
    Por the motion, Blanchard <& Carey.

    Opposed, Joseph J. Mutrdck.

   Lawrence, S. C. C.

This suit was instituted by plaintiff to recover of defendant bank approximately $10,000, covering alleged official fees as a notary public in protesting promissory notes, inland bills of exchange and other negotiable paper for the institution from July 1st, 1923, to January 23d, 1932, during which period plaintiff was in its employ as bookkeéper and cashier, under an annual salary. The suit is made to rest on the holding in the case of Geddis v. West Side Na tional Bank, 7 N. J. Mis. R. 245; 145 Atl. Rep. 731, later affirmed by the Court of Errors and Appeals, 106 N. J. L. 238; 148 Atl. Rep. 917. On the argument of the present motion Kip v. Peoples Bank and Trust Co., 110 N. J. L. 178; 164 Atl. Rep. 253, was also relied on. The motion is to strike the amended answer and counter-claim of defendant as partly frivolous or sham. There are fifteen separate defenses pleaded and it is not found necessary to refer to them in detail, as the trial judge will limit the issues at the trial to those matters not within the scope of the matters disposed of in either the Geddis or Kip cases in the appellate court. It will suffice to say that the pleader evidently seeks to raise questions not considered in either of the cases to which reference is made, such as the bank’s contract with plaintiff to serve for a fixed compensation and an acceptance thereof in full satisfaction, together with a waiver and gift of his fees as a notary or the remitting thereof, under such contract. The statute of limitations is also pleaded, which it is conceded cannot be stricken, as it is clearly applicable to all fees sought to be recovered beyond the six-year period before the commencement of the suit. The counter-claim covers the expense incurred by the bank in purchasing notarial records and other supplies necessary to be used and actually used by plaintiff in the performance of his official duties as a notary, for which ho himself did not pay. The theory appears to be that if plaintiff is entitled to his fees, then the defendant was under no obligation to provide him with his records and supplies, clerical assistance, notarial seal and the expense of his commission. This raises a novel question in such litigation and ought not to be disposed of on a mere motion to strike. The motion to strike the answer here under consideration will be denied without prejudice to its renewal at the trial as to those matters that are found to be within the scope of the decision in Kip v. Peoples Bank and Trust Co., supra. The denial of the motion is not to carry costs.


text:
    BETHLEHEM STEEL COMPANY, A CORPORATON, PLAINTIFF, v. UPPERCU CORPORATION, A CORPORATION, AND INGLIS M. UPPERCU, DEFENDANTS.
    Decided July 14, 1933.
    For the motion, Pitney, Hardin <& Skinner.

    Opposed, Ackerson <& Van Buskirk.

   Lawrence, S. C. C.

This suit is based on part of a series of promissory notes executed by defendant corporation to plaintiff and endorsed by defendant Uppereu. The sum sought to be recovered admittedly remains, due and unpaid. It appears that on or about June 27th, 1929, Mr. Uppereu was the controlling owner not only of defendant corporation, but of another called Universal Shock Eliminator, Incorporated. The latter got into financial difficulties and, at his instance, a meeting of its creditors was called, among them the plaintiff company, at which it was proposed by him that the property of the corporation in question should be sold, the proceeds as to claims not exceeding $1,000 prorated and distributed to such creditors, and the remainder of the claims assigned to the defendant corporation and secured by its notes, endorsed by Mr. Uppereu. An agreement to this effect was duly signed and carried out, with the result that a series of notes, payable at recurring periods, for installments of the unpaid indebtedness, were made by the Uppereu Corporation and endorsed by him. These notes appear to have been issued by the corporation after formal ratification of the composition agreement and later in part paid. The claims, including that of plaintiff, were duly assigned to the corporation, in pursuance of the agreement. The notes not paid, so far as plaintiff is concerned, are here in suit.

The answer of defendant corporation sets up that the notes were without consideration and ultra vires. Motion is now made to strike this answer as sham. The supporting affidavits do not materially differ, either on the part of the plaintiff or defendant, as to the history of the transaction, but serve to clearly disclose the intimate relation of the defendants and Universal Shock Eliminator, Incorporated, and the mutual interest involved. That the answer should be striken seems apparent. The principles of law applicable are indicated in Jesselsohn v. Boorstein, 111 N. J. Eq. 310; 162 Atl. Rep. 254, and in Merchants Refrigerating Co. v. Fenchel Realty Co., 9 N. J. Mis. R. 971; 156 Atl. Rep. 275, and cases cited. The conclusion is that the motion should be granted. A rule may be submitted áccordingly.


author: Per Curiam.

text:
    C. VAN HOWLING & SONS, INCORPORATED, PLAINTIFF-RESPONDENT, v. JOHN KIETRYS ET UX., DEFENDANTS-APPELLANTS.
    Submitted January 27, 1933
    Decided July 15, 1933.
    Before Justices Bodine and Donges.
    For the appellants, Louis V. Hinchliffe.

    For the respondent, Meyer Lolsenz.

   Per Curiam.

This is an appeal from a judgment of the Passaic County Circuit Court wherein Judge Maekay denied a motion to strike the complaint and release a mechanics’ lien and struck the appellants’ answer.

It appears that appellants owned two lots in Paterson which they agreed to sell to one Loomis and wife. Loomis contracted with plaintiff to move a building to the land. Plaintiff was not paid for its work and it filed a lien against the land. Loomis and wife were unable to go through with the purchase of the lots and to pay for the moving. Judgment special against the lands of appellants was entered under section 12 of the Mechanics’ Lien act which allows a lien on lands to which buildings are moved for the cost of the moving.

Section 12 does not provide for any written consent of the owner where the removal is done by another. Appellants contend that this section must be read together with section 7, which provides that in the case of the erection of buildings by someone other than the owner, the lands cannot be charged in the absence of written consent of the owner. They further contend that if this is not so, the section (12) is unconstitutional because it deprives them of their property without due process of law.

The appellants are not in a position to raise the question of lack of consent, because John Kietrys signed the following receipt upon the agreement to sell the lots:

“I, John Kietrys, agree to sell my lands 121-123 Prank-ling street to Mr. Loomis for $1,950 and give him permission to move his house on these lots.”

This is sufficient to subject the lots to the operation of the Mechanics’ Lien law.

Cases cited to the effect that an agreement of sale of lands is not such a written consent as is contemplated by the act are not pertinent, because the language above quoted is a specific consent that the work be done on the lands.

The judgment is affirmed.


text:
    ERNEST MEYER, PLAINTIFF-RESPONDENT, v. WILLOW LAND COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted January term, 1933
    Decided June 17, 1933.
    Before Bbogan, Chief Justice, and Justices Tkenchakd and Case.
    For the plaintiff-respondent, Charles DeFazio, Jr.

    For the defendant-appellant, Edward Griffin.

   Per Curiam.

This is an appeal by the defendant from a judgment rendered by the Hoboken District Court in favor of the plaintiff.

Defendant was engaged in making extensive alterations and repairs to its five-story tenement house building, and plaintiff was an independent contractor engaged to rebuild the roof and to install an incinerator. While the work was in progress plaintiff, in walking from the kitchen to the hallway, was injured by stepping on a nail that was amongst some rubbish, boards and plaster on the floor. The liability charged in the state of demand against the defendant was negligence in failing to exercise reasonable care to keep the premises in a proper condition, as a result of which plaintiff was injured by stepping upon a rusty nail protruding from an unfastened piece of wood.

It is contended by the appellant that the trial court erred in denying defendant’s motion for a nonsuit urged upon the ground that the plaintiff was an independent contractor who had assumed the risk; and that the court further erred in denying defendant’s motion for a direction of verdict, in support of which it was submitted, amongst other reasons, that the defendant had not been shown to be guilty of negligence.

The proofs show that in the work of altering and repairing the building it was necessary that large quantities of old materials, boards, plaster and the like should be torn out. With the ripping out of the old work it was inevitable that there should be loose nails and boards containing nails. The workmen engaged by the various independent contractors throughout the undertaking and down to the time of plaintiff’s injuries were continuously tearing down the old materials as they advanced with the new work, and two or three workmen employed by the defendant for the specific purpose were constantly engaged in removing these old materials from the premises. It is not demonstrated or claimed that it was practicable to keep the floors free of such materials. It was testified by the plaintiff: “Q. You told your counsel that he [viz., the defendant] had a couple of men cleaning but you never saw it clean? A. He couldn’t keep it clean.” The condition was known to the plaintiff who had been working on the premises for three weeks. The general condition was described by one of plaintiff’s witnesses as follows: “Kubbish in the halls which had accumulated from the carpenters, plasterers and other mechanics having cause to rip out different parts of the old work, throw it on the floor, and the laborers would clean it up. In order to clean it up they would push it from room to room to the hall, and of course they would clean from the hall out.” Ho better or more nearly standard method of removing the debris was proved. We come to the conclusion that not only was the presence upon the floor of such materials as that which caused plaintiff’s injury incident to the work but that plaintiff as an independent contractor, having knowledge of the conditions, assumed the risk therefrom; and, further, that defendant was not proved to have been negligent in the performance of any duty owing to the plaintiff. The denial of defendant’s motions was error.

Judgment below is reversed that a venire de novo may issue; costs to abide the event.


text:
    JOSEPH FEMIA, PLAINTIFF-RESPONDENT, v. CITY OF BAYONNE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT. JOSEPH FEMIA, PLAINTIFF-RESPONDENT, v. CITY OF BAYONNE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Argued January 17, 1933
    Decided June 29, 1933.
    Before Brogan, Chief Justice, and Justices Trenchard and Case.
    Dor the appellant, Daniel J. Murray (Daniel J. Murray, of counsel).
    Dor the respondent, Hyman Brodsky.

   Per Curiam.

These appeals bring up for review two judgments rendered in the Hoboken District Court by the judge, sitting without a jury, on October 6th, 1932, in favor of Joseph Demia and against the city of Bayonne. The two cases were tried together by consent of the attorneys and by stipulation were argued here together.

The record discloses that the plaintiff instituted these two suits against the city of Bayonne to recover money alleged to be due Mm on an agreement for the use and hire of his truck in working on a park improvement in the city of Bayonne. In case Ho. 59526, designated as case Ho. 2 in the state of the case, the plaintiff alleges an agreement with the city of Bayonne for the nse and hire of his truck for a period of twenty-nine days at $15 per day from September 12th, 1931, to October 16th, 1931. He claims he is entitled to the sum of $435 (the total of the sums of $165 and $270) for the use of his truck for that period. In case No. 59525, designated as case No. 1 in the state of the case, the plaintiff claims he is entitled to the sum of $333 for the use and hire of his truck by the city of Bayonne for a period commencing October 25th, 1931, and ending December 18th, 1931, after certain credits are given to the defendant.

Prom the judgment rendered in each of these cases the defendant appeals.

Apparently the only ground argued by the appellant is that the court below was without jurisdiction to render such judgments because, as stated in its brief: “The plaintiff had one basic cause of action and split it up to avoid the $500 jurisdictional limitations of the District Court.”

We think this contention is without merit.

The testimony of the plaintiff tended to show that his truck was employed by the city of Bayonne for the period and time mentioned in ease No. 59526. There appears to be no dispute as to this. He then put in two claims against the city of Bayonne for the sums which he is now demanding in that suit. Both of these claims were approved and ordered paid by the city of Bayonne. He then testified that he was informed by the superintendent in charge that he was laid off and that he believed he was finished with the work. He testified as follows: "Q. Who laid you off? A. There was a notice posted on the office in the park at Twenty-seventh street, stating that all the employes were laid off, and I was included. Q. Your truck didn’t work for that particular week? A. It didn’t, from that day. Q. You simply looked at the notice on the board? A. No; the superintendent told me. §..Who was he? A. Patrick Sheridan.”

He then testified that on October 26th, 1931, after a lapse of a period of ten days, his truck was again hired by the city of Bayonne for the period and times mentioned in ease No. 59525, and that he received certain payments which left a balance of $333- There appears to be no dispute as to the amount claimed here. This money was requested to he paid by separate claims which were approved and ordered paid by the city of Bayonne.

The plaintiff’s contention that there were two separate employments at two separate times, since a period of ten days had intervened between the first and second employment, and that each separate employment was the basis of the respective suits, is further supported by the fact that when the plaintiff first began to work for the city of Bayonne on September 12th, 1931, he received a red card, Ho. 115, and when he began to work the second time, namely, on October 26th, 1931, he received a blue card, Ho. 518. His testimony in this respect is as follows:

“Q. How, when you started to work there, did you receive a card — one of these cards? A. I did. Q. Which one; do you know — the first one? A. Humber 115 red.”

And on page 36, lines 37 to 40, and on page 37, lines 1 to 3: “Q. Then you went to work again on October 26th? A. That’s right. Q. Did you receive another card from the man in charge of the park? A. Yes, I did. Q. Which card? A. 1 believe it was this here one. Q. Blue card number 518 ? A. That’s right.”

On the part of the defendant there is no evidence to contradict this testimony of the plaintiff and of course the trial court was justified in accepting the plaintiff’s testimony in this respect. The question was one of fact for the trial judge under Branagan v. Hilton, 10 N. J. Mis. R. 729, and the value of the evidence was for the trial judge, who was fully justified in finding that there had been two separate employments.

The only other contention of the defendant is that “plaintiff failed to establish any indebtedness to him from the city of Bayonne in either or both eases.” This contention, while stated, is not argued as it seems to us. But however that may be, we think the question, under the evidence, was a jury question, and under familiar rules we cannot disturb the judgments.

Both judgments will be affirmed, with costs.


text:
    PARK LANE REALTY COMPANY, PLAINTIFF-RESPONDENT, v. HARRY S. DAVEGA, DEFENDANT-PROSECUTOR.
    Argued January term, 1933
    Decided June 29, 1933.
    Before Justices Parker, Lloyd and Heher.
    Eor the prosecutor, Herbert L. Hanschlca.

    For the respondent, Walter J. Freund.

   Per Curiam.

The record presents the curious melange of an ordinary attachment suit begun by filing an affidavit of non-residence and indebtedness under the attachment act, and continued and supplemented by a commissioner’s order for attachment under the Practice act of 1903, followed by the filing of a complaint as contemplated by the latter act, but out of time, and without filing a bond or obtaining an order fixing the amount thereof. All this Judge Porter in the Circuit Court held irregular on a motion to quash the writ, except that the original affidavit and the writ itself pointed to the beginning of an action under the Attachment act, in view of which he held that the affidavit was sufficient and the writ properly issued thereon. In this and to that extent we agree with him.

Judging from his letter to counsel in deciding the motion, he seems to have held further that even if tested by the complaint, the action was for an amount either liquidated or capable of liquidation by calculation, and therefore a proper basis for an attachment under the act of 1901. Comp. Stat., p. 1932. Here we do not agree. The complaint is very long, but it is enough to say that it counts on a written contract for the purchase of real estate from the attaching plaintiff, that Davega and three others guaranteed in writing to the extent of $12,500 each that certain improvements would be made and certain moneys expended thereon, $40,000 in all; that the improvements had not been completed nor paid for, and that plaintiff “has been and will be put to considerable expense in changing and altering such improvements as were begun and in making and completing the improvements * * * to comply with the * * * said agreement” and concludes to the same effect, that plaintiff has been and will be obliged to expend large sums of money in making the improvements to conform with the agreement.

This, as we see it, is a claim against a guarantor for unliquidated damages pure and simple. Those damages, if and when proved, may amount to more than the guaranty of $12,500 per capita, or may amount to much less; but clearly they are incapable of ascertainment without proof at a trial of what must be done and the cost thereof. If such facts had been set up in the affidavit for attachment, a writ under the act of 1901 would have been improper.

It is suggested in the brief that this point was not stated in the notice of motion before Judge Porter as a ground for quashing the writ, but a reading of his letter to counsel and of his order refusing to quash, makes it clear that it was argued before him, and that entitles prosecutor to raise it here.

The question remains whether the complaint is to be considered as a statement by the plaintiff in attachment of the legal basis of its claim, and the character thereof, binding on said plaintiff. It was evidently so considered by Judge Porter, and what was used by him should be available here, as we have just said. Indeed, the plaintiff does not suggest that the facts are other than as stated in that complaint. We are clear that it counts solely on a claim for unliquidated damages against a guarantor for default of his principal, limited perhaps by the amount of the guaranty, but still unliquidated. Hence, it was error to refuse to quash the writ. The order will therefore be set aside, the writ quashed, and the proceedings had thereunder set aside. Hisor v. Van Diver, 83 N. J. L. 433, 441; 85 Atl. Rep. 441.


text:
    JOHN E. MILLER, PLAINTIFF-RESPONDENT, v. EVERGREEN CEMETERY COMPANY, DEFENDANT-APPELLANT.
    Submitted January 30, 1933
    Decided June 29, 1933.
    Before Brogan, Chief Justice, and Justices Trenchard and Case.
    Bor the appellant, J. Edward Fagen (T. Phillips Brown, of counsel).
    Bor the respondent, no appearance.
   Per Curiam.

This is the appeal of the defendant below from a judgment in favor of the plaintiff, entered by the trial judge of the District Court of the city of Camden, sitting without a jury, in an action brought to recover for injury to plaintiff’s automobile in leaving the defendant’s premises.

The evidence in support of the plaintiff was this: The defendant maintained and has maintained for many years a large cemetery. Plaintiff’s wife was the owner of a family burial lot therein wherein several of her family were buried. The plaintiff for many years had made frequent trips to the cemetery with his wife in his automobile, in accordance with the custom, to decorate the graves in their family plot. On these trips he used the driveway maintained by the defendant, running through the body of the cemetery. There were two iron gates at the entrance of the driveway. Between the time of plaintiff’s last visit and the day of the accident, the defendant Cemetery Company had paved the entrance, and midway between the iron gates had erected a concrete projection eight inches high to which the gates could be fastened when closed, over which the plaintiff’s car must pass by reason of the narrow entrance. Beyond the pavement and forming the driveway leading into the cemetery there was a dirt road in which ruts had been formed. On the day in question the gates, as usual, were open, and plaintiff drove in without accident, but when leaving the cemetery the bottom of his car came in contact with this projection, by reason of the grade created by the ruts hard by the pavement, and his car was damaged.

The only reason argued by defendant for reversal of the plaintiff’s judgment is (we quote from its brief) : “Appellee [plaintiff] was a trespasser, or at most a mere licensee, and that appellant would only be guilty for willful or wanton negligence.”

In support of that reason the defendant argues that the evidence did not justify the inference, upon the part of the trial judge sitting without a jury, that the plaintiff was there by invitation.

We think that the question whether, under the evidence, the plaintiff was there by invitation of the defendant, was a jury question.

Our leading case upon this topic is Phillips v. Library Co., 55 N. J. L. 307; 27 Atl. Rep. 478. There, Mr. Justice Depue, speaking for the Court of Errors and Appeals, observed: “It is impracticable to lay down any precise rule, in set terms, which shall embrace all the cases within and exclude all the cases without the range of an owner’s liability for such injuries. The utmost that can be done is to state in general terms the controlling principle that the liability of an owner or occupier for the condition of his premises arises where the plaintiff was induced to make the use of the premises, in the course of which he sustained the injury sued for, by express invitation or by invitation to be implied from acts and conduct of the defendants.” He then adds this significant language, which has been frequently quoted with approval: “The gist of the liability consists in the fact that the person injured did not act merely on motives of his own, to which no act or sign of the owner or occupier contributed, but that he entered the premises because he was led by the acts or conduct of the owner or occupier to believe that the premises were intended to be used in the manner in which he used them, and that such use was not only acquiesced in, but was in accordance with the intention or design for which the way or place was adapted and prepared or allowed to be used.”

We believe that the application of that rule thus stated, to the evidence in the present case, justifies the inference drawn by the trial judge, sitting without a jury, that the plaintiff was using defendant’s premises with the implied invitation of the defendant.

Since no other question is presented, we conclude that the judgment must be affirmed, with costs.


text:
    GEORGE G. SMITH, PROSECUTOR, v. BOROUGH OF COLLINGSWOOD ET AL., DEFENDANTS.
    Submitted January 27, 1933
    Decided June 29, 1933.
    Before Justices Pabkee, Lloyd and Heheb.
    Por the prosecutor, Samuel P. Orlando.

    Por the defendants, John A. Perm.

   Per Curiam.

This is an application for a writ of certiorari to bring np for review the proceedings relating to the conviction of the prosecutor on charges of misconduct as a police officer and his dismissal from the force. The case is submitted on briefs and both briefs contain an identical clause reading as follows: “It is agreeable to counsel for both prosecutor and respondent that this matter may be heard and decided upon the state of the case submitted, as though a writ had been allowed, in order that this court may render judgment accordingly.” Notwithstanding this stipulation, however, we deem it inadvisable to do more than decide the rule to show cause, partly because there is no record of the trial and conviction before us, and partly for reasons that will appear in the course of this memorandum. Quoting the language of the brief for prosecutor:

“The reasons advanced by the prosecutor in support of the rule and for the purpose of having it made absolute are that the charges were not examined into upon reasonable notice, and that a fair trial upon the charges was therefore not had, and that the prosecutor did not have a reasonable opportunity to make his defense, as required by the statute in such cases made and provided.”

It was intimated in the moving affidavits that no charges were served upon the prosecutor; but this point is not now pressed. What was served upon him was a written notice dated October 18th, 1932, and reading as follows:

“Exhibit P-3

To George G. Smith:

You are hereby summoned to appear at a hearing to be held in the Borough Hall, 2d floor of the Fire House, Collings Ave., below Haddon Ave., Friday the twenty-first day of October, 1932, at 7:45 p. m., at which time and place you shall be prepared to answer charges made against you of misconduct and conduct unbecoming an officer in that you did take four tires from an automobile owned by George Muschell while the same was stored in MeOlung’s garage on Bettlewood Avenue, Collingswood, N. J., without the permission or consent of the owner against the peace and good order of the State and in violation of your oath as a Police Officer.

Joseph H. Van Meter, Mayor.

October 18, 1932.”

This notice seems to be specific in stating the charges made and, as we have just said, it is not now urged that it was insufficient as a notification to the prosecutor that he was to be tried and on what charges that trial was to be had.

The entire argument seems to be directed to the proposition that the trial was forced on with unreasonable speed and without giving the prosecutor a reasonable opportunity to obtain the evidence needed for his defense. Prosecutor consulted his present counsel on October 19th, at which time he did not have in hand the notice that appears above. Counsel immediately write Mayor Van Meter saying that no charges had been served and asking for a copy and a week’s time in which to prepare. That same afternoon, however, the prosecutor gave counsel the notice that was served upon him. The trial was set down for the evening of October 21st at seven forty-five p. M., and counsel made every effort to obtain the presence of Mr. Muschell (or Mischell) who, as he found, lived near Norristown, Pennsylvania, had no telephone and could not be reached by telegraph. He was unable to procure his attendance; the trial proceeded on the evening of the twenty-first, counsel appeared that night, presented no evidence on behalf of his client, asked for a continuance, which was denied, and the mayor, acting as commissioner of public safety, found the prosecutor guilty and dismissed him.

If there were anything in this ease to indicate that prosecutor Smith had a meritorious defense to the charge of taking four tires off of Mr. Muschell’s automobile, which sounds very much like a case of grand larceny, it might well be held by this court that justice had not been done to him in refusing to allow a reasonable time to prepare and present that defense ; but there is not one word in the case to show that there was any defense. We have the deposition of Mr. Orlando, the counsel, as to being consulted by Smith and endeavoring to obtain the adjournment and to get into touch with Muschell ; but he does not say that he ever did get into touch with Mr. Muschell, or, if he did, that Mr. Muschell said anything which would make in favor of Smith’s defense. There is no affidavit of Mr. Muschell and no intimation that any attempt was made to get one. Even Smith himself in his deposition states merely what he did with regard to consulting counsel and attempting to secure witnesses. He said he was present at the hearing with one witness but that no defense to the case was put in at that time. In fine, there is nothing in the depositions before us to indicate the nature of the defense that was intended to be put in if the proper witnesses had been available or, indeed, that there was any defense at all.

The application is in effect an application to open a judgment on the ground of surprise and merits. Conceding for present purposes that the element of surprise is made out, there is absolutely nothing to show merits.

The rule to show cause will be discharged.


author: Per Curiam:

text:
    JOSEPH PARETTI, AN INFANT, ETC., PLAINTIFF-RESPONDENT, v. FRANK M. MITCHELL, RECEIVER, ET AL., DEFENDANTS-APPELLANTS.
    Submitted October 28, 1932
    Decided June 29, 1933.
    Before Justices Bodine and Donges.

      Fox the appellants, Autenrieth, Gannon & Wortendyhe.

    For the respondent, Ziegener & Brenner.

   Per Curiam:

This is an appeal from a judgment of the Hudson County Court of Common Pleas, entered upon the verdict of a jury in favor of the infant plaintiff against the defendants after a trial before Judge O’Regan.

The only grounds of appeal are to the effect that it was error to refuse to nonsuit or direct a verdict for defendants. The motions were upon the grounds that there was no proof of defendants’ negligence and that the infant plaintiff was guilty of contributory negligence.

The facts are that Joseph Paretti, eleven years of age, was coasting on January 26th, 1929, on Seeaucus road, in Jersey City, near a point where that road intersects Tonnele avenue. He was going westerly. An automobile owned by the defendant F. M. Mitchell Motor Company, for which appears a receiver, and driven by the defendant Murt McConville, was proceeding northerly on Tonnele avenue. At the intersection the infant plaintiff was struck by the car and injured.

There was testimony that the defendants’ car was being driven thirty-five miles an hour; that the road was icy; that the car was not under such control that it could be quickly stopped in view of driving conditions. The driver had a view of Seeaucus road and could have observed the boy coming, if he had looked. There was ample evidence of the negligent driving of defendants’ car to take the case to the jury on that question.

The boy was lying on his stomach on the sled. He testified that he had a clear view of Tonnele avenue in the direction from which the car was coming. He said he looked for vehicles on that street and saw none; and that he could stop if any vehicles were on Tonnele avenue. The first thing he knew about a ear was when he was underneath it.

Another boy, Frank Miller, was on his sled about twenty-five feet in the rear of Joseph Paretti. He was sitting up He said the defendants’ car was four hundred feet from Secaucus road when the plaintiff was fifty feet from Tonnele avenue. He saw defendant’s car and steered his sled into a large stone in order to stop before reaching the intersection.

We think the state of the proofs presented questions of fact as to the negligence of the defendant and as to the contributory negligence of the plaintiff. Mellen v. Public Service Interstate Transportation Co., 110 N. J. L. 557; 166 Atl. Rep. 216.

The judgment is affirmed, with costs.


text:
    ERNEST L. BANKS, ETHEL M. BANKS, ROBERT C. WILSON, Jr., AND EDNA S. WILSON, PLAINTIFFS, v. JAMES H. BOLTON, DEFENDANT.
    Decided July 5, 1933.
    Tor the motion, Whiting & Moore.

    Opposed, Frederick A. Pope.

   Lawrence, S. C. C.

This is a motion to strike the answer filed in this cause on the ground that it is sham. The factual situation, as disclosed by the complaint and affidavits, appears to be that on November 11th, 1932, plaintiffs Ethel M. Hance and Edna B. Wilson were riding in an automobile owned and operated by defendant. It became involved in an accident, said to have been due to the careless driving of defendant, and the two women were injured. They and their husbands retained counsel and suit was about to be brought when the respective attorneys for the parties entered into an agreement for settlement whereby defendant was to pay Mr. and Mrs. Banks $2,500 and Mrs. Wilson and her husband a like sum in consideration of their refraining from bringing a suit for compensation. This agreement is admitted in defendant’s answer, but it is set up that plaintiffs breached it by bringing the present suit, whereupon the answer proceeds to deny the negligence charged, alleging that the women plaintiffs were mere licensees in defendant’s car at the time of the accident and that there was no willful negligence on his part. This answer is apparently misconceived, in that it is made to rest on a denial of negligence upon the theory that the complaint is based on such negligence, whereas in fact it is made to set forth a breach of the agreement to settle and a recovery of the amount of the settlement is thereby sought. It is not laid on the original cause of action for negligence, which is referred to only as recital leading to the agreement to settle, and the answer, therefore, does not appear germane, excepting as to its admission that the agreement in question was made, and a denial of paragraph nine of the complaint that a reasonable time has elapsed for the payment of the amount agreed upon in settlement of the original claim and that a cause of action has arisen to recover' it. It' does not appear, however, that the time for payment was stipulated by the attorneys and the complaint accordingly rests on the. rule of reasonable time. The facts and circumstances as to defendant’s ability to pay and when are not set forth in the affidavits, although the statement is made in his own that following the agreement to settle he made an effort to raise the money, but could not. What is a reasonable time may be a question of law or one of fact, depending on the conditions, circumstances and facts in a given case. Here it would seem that the affidavits do not disclose sufficient information to justify the court in regarding the question of reasonable time as of law rather than of fact. Since it is therefore regarded as a question of fact, it follows that the motion to strike the answer will have to be denied, costs to abide the result of the suit.


author: Laweence, C. C. J.

text:
    SAMUEL GOTTLIEB, PLAINTIFF, v. FRANK UZZOLINO AND WILLIAM PRAKAPAS, DEFENDANTS.
    Decided July 5, 1933.
    For the rule, McDermott «£ Finegold.

    Opposed, Quinn, Parsons •& Doremus.

   Laweence, C. C. J.

This was an accident case involving injuries to the plaintiff, who was riding as a passenger in the taxi of defendant TJzzolino, when it came into collision with the automobile of the defendant Prakapas. The jury returned a verdict in favor of plaintiff for $4,283. Under the rule taken out by Uzzolino, it was argued that the jury erred in failing to find the plaintiff guilty of contributory negligence, and that the damages awarded were excessive. It was urged that the evidence disclosed that plaintiff although aware of the excessive speed of the Uzzolino ear for a considerable distance away from the scene of the accident did nothing to warn the driver that he must reduce the speed, but allowed it to be maintained to the place where the collision occurred. The question of plaintiff’s contributory negligence was left by the court in the charge to the jury and it was evidently found that plaintiff was not properly to be so charged. In so finding, it is not perceived that it was' erroneous under the evidence. Just what plaintiff could have done in the circumstances is not made clear by counsel for defendant. Plaintiff was a passenger in Uzzolino’s car and had no authority or control over the driver, and it did not necessarily follow that the speed at which the car was being driven was such as to convey to plaintiff the idea that Uzzolino would fail to observe the approach of the Prakapas ear at the place of the accident; such failure, it would seem, was the proximate cause of the collision. There is no suggestion that plaintiff either observed the approach of the colliding car at a time when by warning Uzzolino the accident would have been avoided, or that his failure to do so was a contributing factor. The fact, therefore, that plaintiff failed to exercise any control over Uzzolino or suggest to him that he should reduce the speed of his ear did not apparently appeal to the jury as of such factual importance as to justify finding plaintiff guilty of contributory negligence. The idea that a passenger is under a duty in such circumstances does not find any general support in the appellate courts. In any event, the question was left to the jury and in finding adversely to defendant both on the issue of defendant’s negligence and the claimed contributory negligence of plaintiff it cannot be said that the result was contrary to the weight of the evidence.

It was also argued that the amount awarded plaintiff was excessive.

While the extent of the injuries received by plaintiff in the accident was sharply questioned at the trial, the jury could have found that they were of some severity and that his medical and hospital expenses were as claimed. It was not so clear, however, that his loss of earnings was as great as asserted. The proofs in this respect were inadequate and unsatisfactory and without substantial corroboration. He was a baker by trade and apparently carried on a delivery business, claimed by him to produce a sizable annual gross revenue, but there was evidence tending to indicate that it was not as successful as claimed, while that relating to his real profits was tenuous to an appreciable degree. If plaintiff, in the circumstances, consents to accept $3,683, the rule to show cause will be discharged, otherwise it will be made absolute as to damages only.


author: Ackerson, C. C. J.

text:
    THE TRUST COMPANY OF NEW JERSEY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. LEILA H. BREAM, DEFENDANT.
    Decided July 1, 1933.
    For the plaintiff, Erwin '& Davidson. .

    For the defendant, Joseph L. Smith.

   Ackerson, C. C. J.

The above entitled action is submitted to me as a Circuit Court judge for trial without a jury upon an agreed state of facts.

From the stipulated facts it appears that the plaintiff is seeking by this action to recover from the defendant, Liela H. Bream, personally, upon a promissory note for $800; signed “Estate of Edwin S. Bream, Leila H. Bream, executrix,” as maker, of which note the following is a copy:

“$800 Jersey City, N. J., November 14, 1929

Three months after date I promise to pay to the order of Frank Hayes, eight hundred dollars.

Payable at The Trust Company of New Jersey,

Claremont Branch.

Value received with interest, Estate of Edwin S. Bream, due February 14th.

Leila H. Bream,

Executrix.

It is endorsed by Frank Hayes and Frank B. Hayes.”

It further appears that “said note was executed and delivered in consideration of the payment of a note also for $800, made by Edwin S. Bream, during his lifetime, to the order of Frank Hayes,” and endorsed by the same endorsers which note was then past due.

The note in suit was duly protested and notice thereof duly mailed to the maker as executrix and to each of the endorsers.

It is further stipulated that both the note executed and delivered by the said Edwin S. Bream during his lifetime and the present note so executed and delivered by the defendant as executrix were made for the accommodation of the endorsers thereon, but that the plaintiff herein, The Trust Company of New Jersey, was a bona, fide'holder thereof for value.

It further appears that the contention of the plaintiff is that the defendant, notwithstanding the fact that she executed and delivered said note as the executrix of the estate of Edwin S. Bream, was without authority as such to do so and is, therefore, personally liable for the payment of the note. The defendant on the other hand contends that said note was made and delivered by her as executrix of the estate of Edwin S. Bream and, therefore, her liability is limited to her capacity as said executrix and not personally.

It has been laid down as a basic rule in this state that an administrator or executor has no inherent authority to bind the decedent’s estate by any negotiable instrument; he can only bind himself personally, even if he adds to his own name the designation of his office. Hellier v. Lord, 55 N. J. L. 367; 26 Atl. Rep. 986.

“As to trustees, guardians, executors and administrators, and other persons acting en autre droit, they are generally held personally liable on promissory notes, because they have no authority to bind ex directo the persons for whom, or for whose benefit, or for whose estate, they act, and hence, to give any validity to the note, they must be deemed personally bound as makers.” Taylor v. Davis, 110 U. S. 330 (at p. 337); Story Prom. N., § 63; Austin v. Munro, 47 N. Y. 367; McLaughin, v. Winner, 63 Wis. 120; 23 N. W. Rep. 402; Story Ag., §§ 280, 286.

This rule is of broad and universal application in all cases where the transaction originated with the administrator or executor, and not with the deceased, and the other party to the contract furnished the whole consideration therefor, at the request of such administrator or executor. 24 C. J. 69, § 489; 11 R. C. L. 166, § 177; Ryan v. Hebert (R. I.), 124 Atl. Rep. 657.

The rule so far as it applies to the personal liability of the representative is not so broadly applied, however, in all jurisdictions where a negotiable instrument is given in behalf of an estate by the executor or administrator in renewal of one executed by the decedent in his lifetime.

In some jurisdictions a distinction is drawn in regard to the personal liabilty of an executor or administrator on contracts made in behalf of the estate. The normal rule is applied to cases where the executor or administrator had assets of the estate in his hands which he might have appropriated to the fulfillment of his obligation, and to cases where the other party, as consideration for the obligation of the executor or administrator, parted with something more than a mere nominal, technical consideration. But in such jurisdictions the rule is not applied where the executor or administrator had no assets with which to reimburse himself, and the other party had no good reason to suppose that he had or would have such assets, and has not been misled, and has parted with nothing but a nominal or technical consideration on the faith of the administrator’s promise. Apparently on this theory it has been held that while an executor giving his note as such in settlement of a claim against his testator without consideration is prima facie personally liable for the whole amount thereof, yet as against the payee he may show a deficiency of assets of the estate and be relieved pro tanto. And so it has been held that if, in an action against an executor personally on a promissory note made by him for a debt of his testator, where the defendant shows an insufficiency of assets to pay the debt, the plaintiff cannot recover unless he can show that there was other sufficient consideration for the promise. But that if there was any other consideration for the promise than a sufficiency of assets, then the executor may be held personally liable for the debt. 11 R. C. L. 168, § 178; 1 Dan. Neg. Inst. (6th ed. — 1913),. 352, § 263.

Furthermore, in jurisdictions where the giving of a new note for a prior indebtedness and the surrendering up of the-old note which represented the prior indebtedness, is considered an absolute payment, it is held that when the executor or administrator gives his note for the debt of his testator or intestate, whose note is surrendered up to the executor or administrator, it constitutes an absolute payment of the debt, and, hence, is a sufficient consideration for the new note. This is looked upon as a novation. But this is not the law in those states where, in such a transaction, the giving of the new note would not constitute absolute payment. 11 R. C. L. 170, § 181; Germania Bank v. Michaud, 62 Minn. 459; 65 N. W. Rep. 70; 30 L. R. A. 286.

In the case sub judice, however, the defendant would be personally liable under any one of the foregoing rules. If we apply the broad rule, first aforementioned, that on all contracts made by an executor or administrator in discharge of his duty as such, he is liable personally, and his liability does not depend upon the fact that he has assets in his hands sufficient to discharge his duty so incurred, then, of course, under the stipulated facts in the case sub judice, the defendant is personally liable on the note in question.

On the other hand if liability is to be limited by the assets of the estate in the hands of the executrix, and the giving of the note makes the representative primp, facie personally liable (11 R. C. L. 168, §§ 178, 180), then there is nothing whatever in the stipulated facts in this ease to show that the defendant is without assets of the estate which she represents with which to pay the note in question, and the prima facie ease against her in this respect, has not been overcome.

So far as the question of consideration is concerned, it is to be first noticed that under section 24 of the Negotiable Instruments act (3 Comp. Stat. p. 3738), consideration is presumed until there is some evidence to the contrary, and absence of consideration would not be a defense as against a holder in due course, which the plaintiff appears to be by the expressed terms of the stipulated facts. 3 Comp. Slot., p. 3738, § 28.

So far as a consideration arising out of a novation is concerned, it may he said that in this state it is undoubtedly the rule that if a creditor accepts from his debtor the note of a third person for the prexisting debt, the original debtor is not to be discharged when such discharge was not intended by the parties, and under such circumstances there would not be a payment of the original note. American Brick Co. v. Drinkhouse, 59 N. J. L. 462; Caldwell v. Fitfield, 24 Id. 150; Shipmann v. Cook, 16 N. J. Eq. 251. This rule is not helpful to the present defendant because in the stipulated facts it is stated “that the said note was executed and delivered in consideration of the payment of a note also for $800, made by Edwin S. Bream, during his lifetime, to the order of,” &c., “and which was then past due.”

It thus appears that there was a complete novation, inasmuch as the present note was given in “payment” of the earlier note made by the defendant’s testator. If it was thus given in “payment,” the original debt was discharged, and this would be a sufficient consideration for holding the defendant personally liable upon the present note. 11 R. C. L. 170, § 181; Germania Bank v. Michaud, supra.

So far as the personal liability of an executor or administrator is concerned, the weight of authority is to the effect that it is immaterial how clearly the intention to bind the estate may be expressed. The contracts of executors or administrators cannot be regarded in any sense the contracts of the decedent. 11 R. C. L. 166, § 177. As was said by Chief Justice Beasley in the case of Hellier v. Lord, supra, “if he signed himself A. B. executor (or administrator) of C. D. or A. B. as executor of C. D., the representative terms will be rejected as surplusage.” KTor does the fact that the defendant in the case sub judice signed the note “Estate of Edwin S. Bream, Leila H. Bream, executrix,” change the effect of the rule. In the case of Ryan v. Hebert, supra, the note was signed “Estate of Eelix Hebert, Frank Hebert, Administrator”, and still the representative was held personally liable. In the last cited case the note was not given in renewal of a note of the decedent, but in payment of an article purchased by the representative for the estate, but, of course, this would have no effect upon any question arising from the manner in which the note was signed. See, also, Germania Bank v. Michaud, supra. While the administrator was not held liable in the latter case, nevertheless, the note was signed practically in the same manner as in the case sub judice, and it was held that such a manner of signing would not have absolved the administrator from personal liability, if the other elements of liability had been established.

It should also be noted that section 20 of the Negotiable Instruments act (3 Comp. Stat., p. 3737), has a bearing upon the solution of this question. It provides as follows:

“Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liabilty.”

The words “if he was duly authorized” seem to carry the implication that if unauthorized the representative is not merely liable for breach of a non-negotiable warranty of authority, but is personally liable on the instrument itself. 2 Williston Cont. 2121, § 1144. In the case of Ryan v. Hebert, supra, which dealt with the same provision in the Rhode Island statute, the court said:

“The undoubted effect of this section is to render one signing for or on behalf of a principal or in a representative capacity personally liable on the instrument, if he acts without authority.”

See, also, Slover Neg. Inst. (2d ed.) 31; Austin Nichols & Co. v. Gross, 98 Conn. 782; 120 Atl. Rep. 596.

Defendant further contends that according to the stipulated facts the. note upon which this action is brought, as well as the one of which it is a renewal, were made for the accommodation of the endorsers thereon and that, therefore, the defendant is not liable.

This contention, however, overlooks the further stipulation that the present plaintiff was at all times a “bona fide holder for value.”

In the case of Clark v. Barthold, 87 N. J. L. 255; 93 Atl. Rep. 699, the court said:

“It was further insisted that the notes were accommodation papers. Conceding the contention that the defendant signed as an accommodation maker, that fact would not invalidate the notes in the hands of a bona fide holder for value, as plaintiff was shown to be.”

See, also, Polhemus v. Prudential Realty Corp., 74 N. J. L. 570; 67 Atl. Rep. 303; Gerli v. National Milk Supply Co., 78 N. J. L. 1; 73 Atl. Rep. 252; 3 Comp. Stat., p. 3738, § 29. It thus appears that the defendant’s aforesaid contention is without merit.

In accordance with the foregoing observations I, therefore, find in favor of the plaintiff and against the defendant for the sum of $800, principal, and interest thereon from November 14th, 1929, amounting to $173.59, making a total of $973.59.


text:
    PATRICK McLOUGHLIN, RESPONDENT, v. HUDSON MORTGAGE COMPANY, APPELLANT.
    Submitted May 12, 1933
    Decided July 20, 1933.
    Before Justices Parker, Lloyd and Perskie.

      For the appellant, Oox & Walburg.

    For the respondent, Anthony B. Finelli.

   Per Curiam.

The suit is by a husband, tenant of a house owned and Tented to him by the defendant, for loss of consortium and pecuniary expense resulting from injuries sustained by his wife because of the alleged defective and dangerous condition of the back stoop, which caused the wife to fall and break her wrist. The state of demand was entitled “in tort” but set up an agreement by the landlord based upon complaint by the tenant to make repairs, which agreement was not performed, whereby the wife was injured. At the trial defendant insisted that the action was in contract, but the court held otherwise. The evidence for plaintiff tended to show a letting from month to month, and in February a complaint by plaintiff and a promise by the landlord to repair. The accident occurred in April. The trial was with a jury. The defendant rested at the conclusion of the plaintiff’s case, and moved for a directed verdict, which was refused, and the court instructed the jury that plaintiff was entitled to recover, and left to them only the assessment of the damages, allowing an exception to this ruling.

It seems unnecessary to decide whether the action is in contract or in tort, for in either event there was error calling for a reversal. On the contract theory, assuming the consequential damages to the husband constituted a breach of' a valid contract to repair — a point on which we do not pass — such damages were not within the contemplation of the parties. Williams v. Fenster, 103 N. J. L. 566. On the theory of negligence arising out of a breach of promise to repair, the case plainly exhibits a situation in which a jury might properly say that the wife, as she herself testified, had full knowledge of the defective condition, and was guilty of contributory negligence in using the step as she did. As to assumption of risk, the case does not show whether the back stoop was the only means of access to the back yard to hang out clothes, as the wife was about to do when she met with the accident. The point is material on assumption of risk. Rush v. Commercial Realty Co., 7 N. J. Mis. R. 337; 145 Atl. Rep. 476. Contributory negligence is another matter and should have been submitted to the jury. Hasse v. Gietz, 108 N. J. L. 252, 254; 157 Atl. Rep. 121; Gillespie v. Plotka, 9 N. J. Mis. R. 1230, 1234; 157 Atl. Rep. 175. This question was removed by the direction from the consideration of the jury, and such direction was error, for which the judgment must be reversed and the ease remanded for a new trial.


author: Jayne, C. C. J.

text:
    Atlantic County Circuit Court.
    ISAAC L. CRANMER, PLAINTIFF, v. CLARENCE L. COLE, Sr., EXECUTOR OF THE ESTATE OF THOMAS S. CRANE, DECEASED, DEFENDANT.
    Decided June 19, 1933.
    For the motion, William M. Clevenger.

      Contra, Cole <& Cole.

   Jayne, C. C. J.

A brief chronological narrative of the events pertinent to the determination of this motion will disclose the factual situation out of which the debated questions of law arise. On August 1st, 1911, the testator, Thomas S. Crane, executed and delivered to the plaintiff a bond and mortgage to secure the payment of the sum of $3,500 three years from date of this instrument. Thomas S. Crane died on November 4th, 1930, leaving a last will and testament in which he nominated the defendant as executor and trustee. The will was duly admitted to probate by the surrogate of the county of Atlantic, and the defendant duly qualified as executor and thereupon assumed the administration of the estate of the deceased. The amount.due upon this bond and mortgage remained unpaid at the death of the testator. On Eovember 22d, 1930, the usual order to limit creditors was made by the surrogate of the county of Atlantic and on May 2d, 1931, a decree, barring creditors of the deceased was duly entered. The plaintiff failed and neglected to present to the executor within the time limited for the presentation of claims and demands against the estate, any duly verified claim and demand for the amount due upon the testator’s bond.

On June 28th, 1932, the plaintiff instituted a suit in Chancery to foreclose the mortgage, resulting in the entry of a final decree in this cause on September 6th, 1932, and the ultimate sale of the mortgaged premises for the sum of $100 on November 3d, 1932. Applying the proceeds of the sale, less the necessary deductions, to the amount due upon the bond, there was found to be a deficiency of $3,890.53. On September 14th, 1932, a decree was entered by the Orphans Court of the county of Atlantic declaring the testator’s estate insolvent. After the sale of the mortgaged premises pursuant to the foreclosure decree and the determination of the deficiency on the bond, the plaintiff presented to the defendant executor a claim against the estate for such deficiency, and on February 27th, 1933, the defendant as executor notified the plaintiff that his claim was disputed, whereupon on April 7th, 1933, this action was instituted by the plaintiff. The complaint filed in this action in behalf of the plaintiff alleges all of the foregoing facts with the additional averments that the defendant, after the death of the testator, promised to pay the principal and interest due upon the bond and mortgage, and that after the death of the testator, the defendant paid to the plaintiff interest upon the bond and morgage up to and including February 11th, 1932, and thereafter informed the plaintiff that there were insufficient funds in his hands with which to pay the amount due upon the bond and mortgage and that the plaintiff should accordingly foreclose the mortgage.

To this complaint the defendant has filed an answer in which all the allegations of the complaint are admitted save those relating to the alleged promise of the defendant to pay the amount due upon the bond and mortgage and to his alleged instruction to the plaintiff to foreclose the mortgage, which latter allegations of the complaint are denied by the defendant. Additionally, the answer contains the averment that the debt for which the plaintiff sues accrued long prior to the death of the testator; was due and payable at the time of the testator’s death; that the plaintiff failed and neglected to present to the executor any claim or demand against the estate for such debt, and that the plaintiff is-barred in the prosecution of this action by the decree barring-creditors of the estate of May 2d, 1931.

The present motion in behalf of the plaintiff is to strikeout the answer of the defendant as frivolous.

Primarily, it is contended in behalf of the plaintiff that the decree barring creditors in the circumstances of this caséis not effectual against the claim of the plaintiff because his claim came into existence after the decree was entered. It is contended that the plaintiff was not a creditor of the estate at the time the proceedings to bar creditors were taken. His argument is predicated upon the assumption that the plaintiff' had no claim against the testator’s estate until the existence-of a deficiency on the bond had been established and that such deficiency was not definitely ascertained until after the sale of the mortgaged premises in the foreclosure suit. To fortify this contention, counsel for the plaintiff cites the following authorities: Terhune v. White, 34 N. J. Eq. 98; Field v. Thistle, 58 Id. 339; 43 Atl. Rep. 1012; Wakeman v. Paulmier, Ex’r, 39 N. J. L. 340.

The cases so cited are not in point. They may be regarded as authority for the proposition that a decree barring creditors does not extend to persons whose claims were not in existence, or, at most, were merely contingent at the time the proceedings to bar creditors were in progress and resulted in a decree. An examination of the opinions in the two cases first cited will disclose that in each case, the testator had acquired in his lifetime by purchase the real estate subject to a pre-existingmortgage which, by the terms of the conveyance to him, he assumed and agreed to pay. In such a situation, it is held that before the foreclosure of the mortgage, the claim against the estate of the decedent, based upon his assumption of the-mortgage, is contingent, and consequently cannot be proved as a debt against the testator’s estate until the mortgage is foreclosed and a deficiency on the bond occurs. In the case last cited, the court was concerned with the recovery of money loaned by a creditor to the executor. In the case sub judice, the testator was the obligor who executed and delivered the bond to the plaintiff. Where the decedent was the obligor of the bond which he executed and delivered in his lifetime, together with an accompanying mortgage, the owner of the bond and mortgage, after the death of the obligor, may file a claim for the amount due upon the bond with the representative of the decedent’s estate before the foreclosure of the mortgage. Smith v. Crater, 43 N. J. Eq. 636; Weatherby v. Sparks, 43 Atl. Rep. 683; Voorhees Case, 57 N. J. Eq. 291; Smith v. Smith, 79 Id. 310. The holder of such a bond and mortgage of the decedent is a creditor who, at least, has a claim and demand against the decedent’s estate comprehended by the pertinent provision of the Orphans Court act. 3 Comp. Stat., p. 3834.

The contention of counsel for the plaintiff upon this motion is further expanded to embrace the argument that even though it is concluded that the plaintiff should have presented his claim to the defendant, and notwithstanding the fact that the rule to limit creditors was made absolute, yet the decree barring creditors should not be an effectual barrier against the plaintiff’s right to recover in this action because of the conduct of the defendant as executor in paying interest which had accrued upon this obligation of the decedent. Counsel therefore in this court seeks to invoke the doctrine of estoppel to restrain the plaintiff in the circumstances from availing himself of the failure of the plaintiff to file his claim. There is no suggestion in the affidavits of any intentional deception practiced upon the plaintiff by the defendant. At most, it is represented that the action of the defendant as executor and trustee in making the payment of interest so soothed and tranquilized the plaintiff as to cause him to be and remain somnolent and unconscious of his duty to file his claim. In Lewis v. Champion, 40 N. J. Eq. 59, it will be observed that proof of statements made by executors to a creditor that his claim was all right and that they would pay it as soon as they had sufficient available money on hand, failed to constitute adequate justification for a court of conscience to excuse the neglect of the creditor to' file' his claim.

Additionally, it is urged-in behalf of the plaintiff that the defendant, by notifying the plaintiff that his belated claim was disputed, has waived his right to assert the decree barring creditors as a defense. As was said by the then Mr. Justice Magie in Everitt v. Williams, 45 N. J. L. 140, “I cannot perceive how a notice that a claim is disputed and will be contested can be deemed a waiver of the very ground of dispute and contest.”

Moreover, it is intimated that the plaintiff has a right in this action to obtain a lien against the lands of the deceased. A creditor, by obtaining a judgment against the executor, acquires no lien upon the real estate of which the testator died seized. 3 Comp. Stat., p. 2995.

The conclusion is that the answer cannot he said to be legally insufficient, and accordingly the motion to strike out the answer as frivolous is denied.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    ALFRED MESSINA, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF CONCETTA MESSINA, DECEASED, PLAINTIFF, v. GIOVANNI PETROLI, DEFENDANT.
    Decided July 20, 1933.
    For the plaintiff, Michael D. Mmello (Edward A. Markley, of counsel).
    For the defendant, Louis J. Messano.

   Brown, C. C. J.

The defendant moves to set aside an order of a Supreme Court commissioner awarding a writ of attachment on the ground that the affidavit upon which the order was issued does not allege facts which would warrant the issuance of a writ. The affidavit upon which the writ was issued alleges that Alfred Messina and Concetta Messina his wife, on the 1st day of June, 1933, resided on the same floor and in the same building in the city of Jersey City in which the defendant lived. The affidavit contains the specific charge that:

“While my wife was in the kitchen cooking supper, the above mentioned Giovanni Petroli did attack my wife and with a gun, shot her a number of times from which shots she instantly died. * * * I went to my wife’s rescue and the said Giovanni Petroli turned the gun on me, but the bullet did not hit me. * * * The said Giovanni Petroli is now detained in the Hudson County jail under a charge of murdering my wife. * * * My wife left no children surviving her, she died intestate. I have been appointed administrator ad prosequendum and also general administrator of my wife’s estate.”

Upon this affidavit the Supreme Court commissioner did adjudge and decide that “Alfred Messina, administrator ad prosequendum of the estate of Coneetta Messina, deceased, * * * has a cause of action which arose in this state against Giovanni Petroli for outrageous battery caused by the said Giovanni Petroli upon the deceased.”

The writ of attachment is directed against the goods and chattels, &c., of Giovanni Petroli, “to answer Alfred Messina, administrator ad prosequendum of Coneetta Messina, deceased, in an action in tort to the damage of Alfred Messina, administrator as above.”

The defendant in his brief contends that the affidavit upon which the commissioner issued the order does not contain sufficient facts to establish the charge of outrageous battery within the meaning of the Practice act of 1903, providing for the issuance of writs of attachment in such eases. It is clearly established in the decisions of our state that an outrageous battery has a legislative meaning, and the act or acts complained of must be of a character akin to'mayhem and must be malicious. Haglich v. Ceverlere, 105 N. J. L. 521; 146 Atl. Rep. 591; Keegan v. Carhart et al., 106 N. J. L. 841; 147 Atl. Rep. 841. The court cannot conceive of an act performed by the defendant that would be more malicious than established by the affidavit in this case. The results of the assault were certainly akin to mayhem as the decedent was not only rendered less able to defend herself, which is usually considered the test of mayhem at common law, but her life was immediately destroyed by the defendant thereby extinguishing all possibilty of defense. The court finds that “an outrageous battery” was committed by the defendant uppn the decedent Coneetta Messina within the meaning of the statute. The defendant also contends in his brief that the right to a writ of attachment did not survive to the personal representatives of Concetta Messina. The act of March 15th, 1855 (Comp. Stat. 1910, p. 2260, § 4), provides:

“Actions by executors or administrators for trespass — -That executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser or trespassers, and recover their damages in like manner as their testator or intestate would have had if he or she was living.”

The Death act of March 3d, 1848 (Comp. Stat. 1910, p. 1907, § 7), provides:

“That whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.”

This act was amended by Pamph. L. 1917, p. 531 (Cum. Supp. Comp. Stat. 1911-1924, p. 928, § 55-10), in which amendment it was provided that:

“Every action, proceeding or claim brought, instituted or made under and by virtue of the remedy given by the act to which this is a supplement shall be brought, instituted or made in the name of an administrator ad prosequendum of the decedent whose death gives rise to the claim under the act to which this act is a supplement; except where such deceased dies testate, and his or her will is probated, the executor or executors therein named, who qualify, shall bring, institute or make such action, proceeding or claim. The amount recovered in every such action shall be for the exclusive benefit of the widow, surviving husband and next of kin of such deceased person, and shall be distributed to such widow, surviving husband and next of kin in proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death to the wife, surviving husband, and next of kin of such deceased person.”

It will be seen that the 1855 act gives to the executor or administrator of an estate an action for any trespass done to the person or property of their testator or intestate. The Death act of 1848 gives a right of recovery where death ensues by the wrongful act, neglect or fault of another. Soden v. Trenton, &c., Traction Co., 101 N. J. L. 393; 127 Atl. Rep. 558; Alston v. Hankey, 108 N. J. L. 226; 156 Atl. Rep. 915. The amendment to the Death act (Pamph. L. 1917, p. 531, directs that every action brought to recover damages under the Death act shall be instituted or made in the name of an administrator ad prosequendum of the decedent. An administrator ad prosequendum under Pamph. A. 1917 p. 531, has a limited power of administration. The letters granted to an administrator ad prosequendum can only empower him to bring an action as such administrator for damages on account of the death of his decedent. He is without authority to accept payment in settlement thereof or satisfaction for any judgment obtained. The legislature not only gives a cause of action on account of death due to the negilgent or wrongful act of another but vests the right to force the same in the name of an administrator ad prosequendum. Sahos v. Byers, 109 N. J. L. 302; 162 Atl. Rep. 580. The proper parties plaintiff in a suit for damages on account of injuries that results jn death is further indicated in the case of Ryan v. Public Service Railway Co., 103 N. J. L. 145. There were two causes of action in that case, one by Ryan as general administrator' who sued to recover damages for pain and suffering, loss of earnings, medical and other expenses incurred in attempting to effect a cure; and, as administrator ad prosequendum, sued to recover the damage to the next of kin of the decedent by reason of her death. The court held in that case (at p. 147) :

“Our conclusion is that pain and suffering are items for which recovery may be had, and that the right to an action therefor is clearly given to executors and administrators under section 4 of the Executors and Administrators act. Rev. 2 Comp. Stat., p. 2260.

“It is urged that in Soden v. Trenton, &c., Traction Co., 101 N. J. L. 393; 127 Atl. Rep. 558, this court limited the right of recovery under section 4 of the Executors and Administrators act, supra, to the 'expense of care, nursing, medical attendance, hospital and other proper charges incident to an injury, as well as the loss of earnings in the lifetime of the deceased.’ * * * But this is not so. In the matter then before us, the only elements of damage sought to be recovered were those just quoted from the opinion of Mr. Justice Lloyd, and the element of pain and suffering not being before us, was not considered.”

Applying the authorities cited it will be seen that a general administrator, if one were appointed for the estate of Concetta Messina, would under the Executors and Administractors act of 1848 (Comp. Stat. 1910, p. 2260, § 4), have the right to bring an action against the defendant for pain and suffering and the other losses recoverable as in the case of Ryan v. Public Service, supra, if there were any such damages. It may be that the instant death of Concetta Messina resulting from the assault would reduce the amount of recovery. In any event an action for an outrageous battery committed on the decedent to recover for pain and suffering; money losses and punitive damages should be brought in the name of the general administrator and not by an administrator with limited powers as the plaintiff in this case.

The Supreme Court commissioner in the instant case decided that the plaintiff as administrator ad prosequendum had a right of action against the defendant for the outrageous battery complained of. No such right of action is given in law. The commissioner further ordered that the writ of attachment do issue, “to answer Alfred Messina, administrator ad prosequendum of Concetta Messina, deceased, in an action in tort to the damage of Alfred Messina, administrator as above.”

This order was made without warrant or authority in law. Tor the reasons stated the motion to set aside the writ of attachment in this case will be granted and an order may be entered accordingly.