text:
    GUISEPPE STUPPIELLO, PLAINTIFF-APPELLEE, v. AUSTIN J. WALDRON, DEFENDANT-APPELLANT.
    Argued October term, 1927
    Decided February 8, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the plaintiff-appellee, Rosinger, Mayer & Albano.

    For the defendant-appellant, Keer & Young (Ernest F. Keer, of counsel).
   Per Curiam.

The suit was brought by the plaintiff to recover a balance due for work, and the question presented involves one of practice. Two days after the return day of the summons a demand for a jury trial was entered by the defendant. The demand was filed by the clerk of the District Court and the fees required by law were paid. Upon the return day of the summons the case was marked “no appearance on behalf of the plaintiff.” After the demand for a jury was filed a stipulation was filed by the attorneys. The case was set down for trial on June 29th, 1926, and was thereafter adjourned from time to time, and, finally, was set down for trial on June 14th, 1927. On the day set for trial the attorney for the defendant requested the court to adjourn the case until July 14th, 1927, which was the day set for jury trials. This the court refused. When the case was called for trial the. attorney for the defendant objected to the trial proceeding upon the ground that he had filed a proper demand for a jury in accordance with the statute, and that, therefore the court had no jurisdiction to try the case without a jury. The court overruled this objection and ordered the plaintiff to proceed. The defendant refused to enter any defense or to cross-examine any witness, and judgment was entered for the plaintiff in the amount sued for. The question presented there obviously is one of precedure under the District Court act. That act provides (Pam.ph. L. 1921, p. 69) : “Unless a demand for a trial by jury shall be made and notice thereof given to the clerk of the court at least two days, exclusive of Sunday and legal holidays, before the time fixed for'the trial and unless the party demanding the same shall at the time of making such demand pay the costs of the venire, the demand for trial by a jury shall be deemed to be waived.” The question essentially, therefore, is whether the demand was made two days before the time fixed for trial as provided for in the statute. It is manifest in this case that the defendant had done everything which the statute required him to do for the purpose of obtaining a jury trial. The intervening acts of the parties and of the court from that time to the day set for trial did not deprive him of the right of a jury trial, which he had demanded at the time required by the statute. lie did nothing under the circumstances to waive this right, and it was the duty of the trial court under the circumstances to afford him that right whenever the case was set down for trial, unless he had done something to waive the right. It is obvious in the situation presented by the record that he had done nothing to waive his right, but throughout had insisted upon his right to trial by jury.

We think, after an examination of the cases bearing upon the subject in this court; such as Rosner v. Cohn, 81 N. J. L. 343; Consolidated Gas Co. v. Blanda, 89 Id. 104; Clayton v. Clark, 55 Id. 539; Crosley v. Connolly, 90 Id. 238; Raphael v. Lane, 56 Id. 108, that it was the clear intent of the legislature to afford to the defendant upon a proper demand and payment of the fees as required by the statute the right to a jury trial, and that this right'could not be affected except by the laches or waiver of the defendant himself, and that once that right attached it was the duty of the court to proceed with the case before a jury.

The procedure in this case evidently deprived the defendant of that legal right accorded to him by the statute, and under the circumstances the judgment should be reversed and remitted to the District Court for the purpose of affording the defendant an opportunity to try the case before a jury.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THE STATE v. GEORGE SCHMATZINETZ.
    Decided February 9, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff in error, George E. Cutley.

    For the state, John Milton, prosecutor of the pleas.
   Per Curiam.

The plaintiff in error was indicted for carnal abuse committed upon the person of one Annabelle Smith, a girl about fourteen years of age, on the 15th of August, 1926. The trial resulted in his conviction.

The first ground for reversal is that the state failed to prove the commission of the crime on the date alleged in the indictment. Assuming this to be the fact, it affords no ground for reversal, in view of the conduct of the ease by counsel for the plaintiff in error. No motion for the direction of a verdict because of this failure was made, no suggestion even that the failure to prove accurately the date was of any importance, and no request that the court should deal with this matter in the charge to the jury.

It is further argued that the conviction should be reversed because the court permitted the state to introduce evidence of the commission of similar crimes by the defendant upon the body of this girl on various other days than that specified in the indictment. The action of the court in this regard was entirely proper under our decision in the case of State v. Faulks, 97 N. J. L. 408, and the decision of. the Court of Errors and Appeals in State v. Lanto, 99 Id. 94.

The only other ground upon which we are asked to reverse is that the verdict was contrary to the weight of the evidence, the. ease coming up under the one hundred and thirty-sixth section of the Criminal Procedure act. There is nothing of merit in this point. Our examination of the proofs satisfies us that the jury was entirely justified in its finding.

The conviction under review will be affirmed.


text:
    FRANK BRUNETTO, DEFENDANT BELOW AND PROSECUTOR IN CERTIORARI, v. WILLIAM F. O’BYRNE, PLAINTIFF BELOW AND RESPONDENT IN CERTIORARI.
    Submitted November 4, 1927
    Decided February 10, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor in certiorari, Thomas Brunetto.

    For the respondent in certiorari, William A. Lord.

   Per Curiam.

This writ of certiorari brings up for review the judgment of the Orange District Court in a suit brought by the respondent in certiorari against the prosecutor in certiorari, and which resulted in a judgment after a trial by jury and verdict in favor of the plaintiff below and respondent in certiorari.

The first point is “that the summons issued in said proceedings was made returnable more than fifteen days after the date of issuance of said summons.” This was manifestly a clerical error, but we think that a conclusive answer to that point is that the defendant below appeared and asked for a jury, which was awarded. He was therefore properly deemed to have submitted himself to the jurisdiction of the court, notwithstanding his motion to quash the summons, made later by way of so-called special appearance.

The second point is “that upon the return day of the summons issued in said proceeding no day or time was set for the trial of said cause.” We think that the answer to this point is that the defendant finally went to trial without objecting to the alleged failure to enter the continuance.

The last point is to the same effect as the second point, and we think it without merit for the reason given in answer to the second point.

The judgment below will be affirmed, with costs.


text:
    JOHN SZPANOWSKI v. JOHN DUFF.
    Decided February 9, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.

      For the rule, William H. Osborne.

    Contra, Collins & Corbin.

   Per Curiam.

This suit was brought by the plaintiff to recover compensation for injuries received by him while riding his bicycle on Jaques avenue, in the city of Rahway. His bicycle came into collision with a motor car being driven by the defendant, Duff, which was traveling in the opposite direction. The plaintiff’s claim was that the collision was solely the result of the negligence of Duff. The jury considered that the proofs did not support this claim, and found a verdict in favor of the defendant.

The only contention is that this verdict was against the great weight of the testimony. According to the plaintiff’s story he was traveling along the road on his bicycle, riding about six feet behind a truck in which some of his friends were riding; that his position was at the rear of the center of the truck, and that while in that position the defendant’s car swung across the road and struck him. The defendant’s story was that the plaintiff suddenly swerved out from behind the truck when he (defendant) was so near to it that he could not avoid the accident. The jury believed the latter’s story, and our examination of the proofs satisfies us that it was entirely justified in so doing.

The rule to show cause will be discharged.


text:
    THE STATE v. PETER CHURCHILL.
    Decided February 9, 1928.

      Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff in error, Maurice J. Cronin.

    For the state, J. Vincent Barnitt, prosecutor of the pleas.
   Per Curiam.

The defendant was convicted on an indictment charging him and three others with the crime of robbery, in holding up one George Jackson and forcibly taking his watch and chain from him.

The first ground upon which we are asked to reverse the conviction is that the verdict against Churchill was against the weight of the evidence, the proofs not supporting the conclusion that he was a party to the holdup. Our examination of the proofs satisfies us that the jury was entirely justified in finding him guilty of the charge laid against him in the indictment.

The next contention is that the court erred in charging the jury as follows: “You may convict on all or each of the counts in the indictment.” The argument is that this was error, because the court failed to instruct the jury that it might acquit the plaintiff in error on any or^all of the counts. It is not suggested that the instruction was not proper so far as it went. If counsel had desired the court to speak with relation to the acquittal of the plaintiff in error on any or all of the counts, he should have requested such an instruction. This he did not do, as appears from an examination of the case.

We find nothing of merit in any other of the grounds for reversal.

The judgment under review will be affirmed.


text:
    DOMINICKA SMOLSKA, PETITIONER—PROSECUTRIX IN CERTIORARI, v. COURT OF COMMON PLEAS OF HUDSON COUNTY, JOHN W. McGOVERN, CLERK, AND M. W. KELLOGG COMPANY, RESPONDENTS—DEFENDANTS IN CERTIORARI.
    Submitted November 4, 1927
    Decided February 10, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutrix in certiorari, Raskin, Hornstein & Ruskin (Isidore Hornstein, of counsel).
    For the defendants in certiorari, Kellogg & Chance.

   Per Curiam.

This writ brings up for review a workmen’s compensation case in which the Hudson County Common Pleas sustained the workmen’s compensation bureau on appeal and dismissed the petition.

In this matter a petition for compensation dated October 23d, 1924, was filed. The date of filing does not appear.

The next step was the filing of an answer dated November 18th, 1924, which was filed November 18th, 1924.

After filing the answer on November 18th, 1924, no order of any kind was made in the cause until March 22d, 1926, .when a paper entitled order for interrogatories, without notice to the defendant, was filed.

Thereafter, on April 20th, 1926, the matter came on for hearing on respondent’s motion to dismiss the case, in the presence of attorneys for both parties, and same was dismissed for not having been moved for a period of over a year. On April 20th, 1926, an appeal from the dismissal of the petition by the workmen’s compensation bureau was taken to the Court of Common Pleas.

After adjournments the appeal came on before the Hudson Common Pleas, which found that no steps were taken on the petition before the workmen’s compensation bureau for over a year, and the order was that the petition be dismissed. This determination by the Hudson Common Pleas was made April 4th, 1927.

Then, on May 27th, 1927, this writ of certiorari was allowed to review the Common Pleas determination sustaining the workmen’s compensation bureau and dismissing the petition.

The only meritorious question involved here is whether the failure by the petitioner to take any action on the petition for a period of over a year justified the dismissal of the petition. All the arguments of the prosecutrix fail if this question is answered in the affirmative.

We think that the petition was properly dismissed because of the failure of petitioner for over a year to take any action on the petition. Ringwalt Linoleum Works v. Liquor, 89 N. J. L. 452. That case is controlling in this court. It was a case where the petition was filed under the Workmen’s Compensation act prior to the creation of the workmen’s compensation bureau. The twentieth section of the Workmen’s Compensation act then in force provided that after filing petition the judge of the Common Pleas shall fix a time and place for hearing, and required him to file his determination within thirty days after final hearing. 'It further provided that “at the time fixed for hearing, or any adjournment thereof,” the judge shall hear the witnesses and “in a summary manner decide the merits of the controversy.” It was held that the proceedings under the act are intended to be of a summary nature, and the failure of the petitioner to move the hearing during an interim of over a year warranted the defendant in concluding that the proceeding' had been abandoned. Accordingly, an order fixing a day for hearing by the Middlesex Common Pleas Court was set aside on certiorari. That was a proceeding brought by a widow for the benefit of herself and alleged dependents of her deceased husband. Manifestly, unless there is something in the change of procedure brought about by the creation of the workmen’s compensation bureau calling for a different result, the ratio decidendi of this case called for the dismissal of this proceeding, as was done by the deputy commissioner in the first instance and by the Common Pleas on appeal.

An examination of the statute creating the workmen’s compensation bureau, however, reveals nothing to alter the rule of the Ringwalt Linoleum-Liquor case. Paragraph 10, as amended by chapter 229 of the laws of 1921, provided as follows :

“10. The procedure for the determination of claims by said bureau, except as herein otherwise provided, shall be conducted in the manner provided by this act and the act to which this act is a supplement, and its supplements and amendments. The commissioner of labor, each deputy commissioner and each referee, is hereby authorized to hear and determine the matter in dispute in a summary manner, and each shall have power under the act to which this act is a supplement, to modify any award of compensation and to provide for the commutation of any such award.”

Paragraph 11, as amended by chapter 229 of the laws of 1921, provides for the prompt filing with the county clerk of a copy of the decision of the commissioner, deputy commissioner or referee.

In the case of Ringwalt Linoleum Works v. Liquor, supra, the opinion says:

“The manifest and clear intent of the act is to secure that inexpensive and expeditious determination of the controversy, which, theretofore, was claimed to be a fatal defect in existing legal procedure. The procedure followed in the case at bar obviously violates the spirit of the act. The proceedings being entirely statutory, it was incumbent upon the petitioner to present her case upon the day fixed for hearing, or to continue it by stated adjournments in regular manner upon the records of the court, either by consent of the defendant or by an application made upon notice to the other side, so that the defendant would have notice of the proceeding, and be cognizant of the status of the case. To countenance this application, after twelve months have expired since the last regular step was taken in the proceeding, is, in effect, to ignore the very purpose of this legislation, and to give to the party in laches an advantage which he could not have attained under legal procedure as it existed anterior to this enactment. Wolf v. Watson, Stillman Co., 79 N. J. L. 284. There is always, of course, the consideration to be noted in such a situation as is presented by this record, that the adverse party deeming the proceeding to have been abandoned may find it difficult, if not entirely impracticable, to procure the witnesses to the controversy, who, when the petition was filed, may be presumed to have been readily accessible.”

A comparison of the statute prescribing the present procedure with that of the statute in force when this decision was rendered shows this reasoning to be pertinent here, and, consequently, the workmen’s compensation bureau and the Hudson Common Pleas correctly decided that the failure to proceed with the present petition for over a year barred further action thereon.

The order and judgment under review will be affirmed, but without costs.


text:
    HENRY T. KAYS ET AL., PROSECUTORS, v. THE TOWN OF NEWTON, TOWN COMMITTEE OF THE TOWN OF NEWTON AND HARRY D. MASTERS, TOWN CLERK OF THE TOWN OF NEWTON, DEFENDANTS.
    Submitted November 4, 1927
    Decided February 10, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutors, Dolan & Dolan (Henry T. Kays, of counsel).
    For the defendants, Charles T. Downing.

   Per Curiam.

Apparently we have before us in this matter twenty-four writs of certiorari.

It is stipulated ccby and between the parties to the various writs of certiorari in these proceedings that the return made by the town of Newton, town committee of the town of Newton and Harry D. Masters, town clerk of the town of Newton, to any one of said writs shall constitute a return to all of said writs, and that at the argument before the New Jersey Supreme Court all of said writs shall be consolidated, and the arguing of one shall constitute the arguing for all of the same, except that where there are facts peculiar to the case of any prosecutor, special argument may be made on the same and considered as if the return had been made in the case of such prosecutor.” It is further stipulated “that a state of the case for one writ shall constitute the state of ttíe case for all writs, and the briefs filed for one writ shall constitute the briefs filed for all writs.”

The state of the case disclosed that there is thus brought up for review a certain ordinance passed by the town committee of the town of Newton, on the 16th day of August, 1927, entitled “An ordinance providing for the construction, paving, repaving, curbing, recurbing, improving and repairing the sidewalks on both sides of the following-named streets: Liberty street, Division street, Church street, Adams street, Washington street, Jefferson street, Hamilton street, Union Place from Spring street to Trinity street, Moran street from Spring street to Elm street, Halsted street from Main street to the sidewalk bordering the school ground, Madison street from Spring street-to Halsted street.”

The prosecutors of these writs are the owners of lands fronting or bordering on one or more of the streets named in the title of the ordinance, and by section one thereof were “directed to construct, pave, repave, curb, recurb, improve and repair at his or their own proper cost and expense the sidewalks on both sides of” those named streets; and by section two it was ordained that “said construction, paving, repaving, curbing, recurbing, improving and repairs of said sidewalks and curbs shall be done in accordance with the plans and specifications prepared bjr the town engineer and approved by the town committee, provided, however, that nothing herein shall be construed to affect any sidewalks or curbs on said streets now built in accordance with said plans and specifications;” and by section three it was further ordained that “the cost of said work shall be paid by the property owners fronting or bordering thereon, either in cash or in five annual installments, and if the same is paid in installments, each installment shall bear interest at the same rate as the town of Newton is obliged to pay for the, money borrowed to pay for said sidewalks.” ■

Numerous objections are urged against the validity of this ordinance. Some of them seem to be without merit; some of them seem to be of a debatable character, and one of them we believe to be plainly meritorious, and that we will refer to more particularly.

A fatal objection to the ordinance, and one which every one of • the prosecutors is entitled to take advantage of is this: While the ordinance required that such paving, repaving, curbing, recurbing, &c., “shall be done in accordance with plans and specifications prepared by the town engineer and approved by the town committee,” as a matter of fact no plans or specifications were thus prepared or approved at the time of the hearing upon or passage of the ordinance, and, indeed, there were none such until weeks after the passage of the ordinance. There was therefore nothing from which any property owner, even though he had notice or attended the hearing, could ascertain what was expected of him in the way of paving, repaving, curbing, recurbing, &c., the sidewalk in front of his property. The ordinance provided for payment therefor by the property owner, and this meant an assessment, and yet no property owner had any means of ascertaining the kind, character and extent of the paving or curbing he was required to do, until the early part of September, after the passage of the ordinance.

It is to be noticed that the ordinance required the property owners not only to pave and repave, but also to curb and recurb.

Now, we deem it to be settled law that property owners to be affected by an ordinance requiring them to pave and repave, curb and recurb sidewalks, are entitled to the hearing accorded them by the statute (Logan v. Belsford, 94 N. J. L. 505), and that notice thereof, which shall, at least, briefly describe the proposed improvement, shall be given, so that the property owner may know how he is to be affected by the improvement, to the end that he may express his views intelligently before the ordinance is adopted. Boynton Real Estate Co. v. Woodbridge Township, 94 Id. 226; 109 Atl. Rep. 514. Apparently the defendants recognized the necessity of notice and hearing, and attempted to give such notice, but concede that, with respect to some of the prosecutors, they failed to give any notice whatsoever.

But in no case, as we have indicated, was any sufficient notice and hearing given, because no plans or specifications were prepared or approved until after the passage of the ordinance. We therefore think that such ordinance is a nullity.

The defendants argue that the prosecutors were in laches in applying for their writs. To this there are two answers — • first, while it appears that the writs were granted September 20th, 1927, it does not appear when the writs were applied for, and secondly, and more conclusively no motion was made for dismissal of the writs.

The ordinance brought up will be set aside.


text:
    CHARLOTTE CARTER ET AL., PLAINTIFFS, v. HENRIETTA STEIGELMAN, DEFENDANT. MARIA MIELE, PLAINTIFF, v. HENRIETTA STEIGELMAN, DEFENDANT.
    Submited October 14, 1927
    Decided January 5, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the rule, Charles A. Mooney.

      Contra, Augustus C. Studer, Jr.

   Per Curiam.

These two actions were tried together and resulted in verdiets in favor of the defendant.

Damages were sought for personal injuries sustained hy the plaintiffs through being struck by defendant’s automobile while the plaintiffs were crossing Zabriskie street, at or near Central avenue, in Jersey City.

It is urged that these verdicts should be set aside as being against the weight of evidence.

We conclude that they are not, and the rule to show cause is therefore discharged, with costs.


author: Flannagan, J.

text:
    Court of Quarter Sessions, Essex County.
    THE STATE OF NEW JERSEY v. MARNA S. POULSON, DEFENDANT.
    For the motion, Wilbur A. Heisley.

    Opposed, Simon L. Fisch, first assistant prosecutor of the pleas.
   Flannagan, J.

This is a demurrer to an indictment and a motion to quash the same for alleged duplicity.

It is claimed by defendant that the indictment alleges that the defendant by a libelous article (alleged to have been procured by him to be published) charged a criminal offense or offenses against two judges and another and unrelated criminal offense as to a third judge, and a still different offense (malfeasance) against all three of such judges, and that the indictment thus charges the defendant with publishing three distinct libels involving three different persons and is thus duplicitous.

An examination of the indictment shows that the libelous charges are not unrelated, but are all connected with one general sweeping charge charging the existence of a vicious combination between organized vice and law enforcement officials accounting for gambling and liquor selling and other vices being rampant in the city. While the charges as to two of the-judges are more general than those as to the third, the latter being charged as more particularly connected with liquor selling, still the charges are all related to the same general allegations.

Let us, however, approach the matter from the standpoint of defendant’s contention that the charges are unrelated.

A. libel on two or more persons, though not associated, charging them with offenses different in character, but contained in a single writing, and published by a single act, constitutes but one offense. The gist of the crime of libel is that it tends to affect injuriously the peace and good order of society rather than the injury to the several individuals libeled. 37 C. J., 147, § 669; 22 Cyc. 383. Tracy v. Commissioners, 87 Ky. 578, 583, 586; State v. Hoskins, 60 Minn. 168, 169, 171; 27 L. R. A. 412, 413; State v. Hosmer, 72 Oreg. 57, 58, 69, 70; Roberts v. State, 51 Tex. Cr. Rep. 27, 28. The alleged libelous charges in the indictment are all alleged to have been contained in a single writing and to have béen procured to be published by a single act.

The practice which the defendant contends is necessary would require two or more indictments, thereby separating the several charges or references to the different judges. In other words, separating under different indictments what defendant contends are different libels, but which are now set up in the one present indictment.

If such a procedure were followed, then, after a trial on any one of the indictments, all the libels having been contained in one newspaper article and by a single act procured by defendant to be published, a plea of autrefois acquit or autrefois convict would be good as to all the other libels contained in the other indictments. State v. Cosgrove, 135 Atl. Rep. 871, 872; State v. Cooper, 13 L. Ed. 361, 371, 376; State v. Mowser, 92 Id. 474, 478, 485. Hence, if there be several libels in the article in question, and the defendant cannot be called upon to answer for his statements against the three officials by setting them forth in the same indictment, then he cannot be called upon to answer for all of them at all, but can only be called upon to answer for such allegations as constitute one libel against one official set forth in the one indictment, which may happen to be the first one tried. Our practice I am sure cannot be such as to necessitate such a result.

The defendant is not prejudiced by having all his charges placed before a jury in the same indictment, as his entire article would be admissible in evidence even if the several charges were separated into separate libels-under different, indictments, as he argues they should be. State v. Dedge, 5 N. J. Adv. R. 296; Commonwealth v. Swallow, 8 Pa. Super. 541, 607; First National Bank v. Winters, 225 N. Y. 48, 51.

I hold that the indictment alleges but one libel and but one crime on the part of defendant, even though it be conceded, for the motion, that the publication sets out different unrelated offenses, and that they were committed by different officials.

The demurrer is overruled and the motion to quash denied.


text:
    NICHOLAS PREZIASO, APPELLEE, v. UNION CITY CLEANING AND DYEING COMPANY, INCORPORATED, APPELLANT.
    Submitted October 14, 1927
    Decided January 14, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, John W. Ockford.

    For the appellee, Abram C. Safyer.

   Per Curiam.

This was an action in replevin. The owner of a coat placed it in the hands of the plaintiff for cleaning” and pressing and he sent it to the defendant for plaintiff. It was not returned, and upon demand another coat was sent to him which he declined to receive and returned.

The action in question was then brought alleging delivery of the coat to defendant, and demand for and failure to return. '

These facts were established at the trial as well as the value of the coat and a judgment was rendered in favor of the plaintiff by the trial judge sitting without a jury, for the sum of $60 for the value of the coat.

Three grounds for reversal are urged' — ■

1. Judgment for value was improper because the defendant did not recapture the property under the writ of replevin. .

2. The plaintiff was not entitled to a judgment for value because he was not the owner of the coat, but merely a bailee.

3. The defendant’s possession was lawful and ther§ was no proof of demand and refusal to return.

All of these grounds are without substance. Inasmuch as the coat was lost and not in the possession of the defendant, there could be no taking by the plaintiff under his writ, nor could there be a recaption by the defendant, and, as plaintiff demanded in his action, not only possession, but damages in event there was no restoration of possession, he was entitled to a judgment for the value of the article. Frazier v. Fredericks, 24 N. J. L. 162 (at p. 170); Pedrick v. Kuemmell, 74 Id. 379.

Plaintiff as bailee was entitled to recover the value of the coat. Central Railroad Co. v. Bayway Refining Co., 81 N. J. L. 456.

There was a demand for the return of the coat, and the only manner in which it was complied with was by returning a coat which was not the one in question.

Finding no error the judgment below is affirmed, with costs.


text:
    LIBRATO MARATEA ET AL. v. PATRICK J. DUGAN.
    Decided February 9, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Alexander Simpson.

      Contra, McDermott, Enright & Carpenter.

   Per Curiam.

This action was brought by the plaintiffs to recover compensation for injuries resulting to them from a collision between a car in which they were riding and a car being driven by the defendant. The collision occurred in the town of Kearny. The proofs showed that the car in which the plaintiffs were riding was driven by one of them, namely, John Delpone. It was traveling south on River road. As it approached the intersection of that road and the Belleville pike, which crossed it practically at right angles, the car of the defendant was also approaching the intersection, traveling eastwardly — that is, coming toward it from the plaintiffs’ right. The question submitted to the jury was whether, under the evidence in the cause, the accident resulted solely from the negligence of the defendant, or solely from the negligence of Delpone, or from the combined negligence of both. The court charged the jury that, if the accident was the result solely of negligence of the defendant, all of the plaintiffs were entitled to recover; that, if it was the result solely of the negligence of Delpone, then none of them was entitled to recover; that, if it was the result of the combined negligence of both, then those of the plaintiffs who were riding in Delpone’s car (other than Delpone himself) were entitled to recover, notwithstanding the latter’s negligence. Under these instructions the jury found a verdict for the defendant. That verdict, by necessary implication, declared that the collision was due solely to the negligence of Delpone.

The only contention before us is that the verdict is contrary to the weight of the evidence and against the charge of the court. We think not. Under normal conditions, the defendant had the right of way at the crossing if his car reached the crossing first and was traveling at a reasonable rate of speed. The jury was entitled to find from the evidence that the defendant reached the intersecting point first; that he was traveling at a normal speed at that time, and that, consequently, he had the right of way. The verdict of the jury declared that it so found, and that finding was in harmony with the charge of the court.

The rule to show cause will be discharged.


text:
    WALTER L. STECKEL ET AL., PARTNERS, AS STECKEL SAND COMPANY, v. CHARLES T. CAVANAGH.
    Argued October term, 1927
    Decided February 8, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff, William G. Gebhardt & Son.

    For the defendant, Brenner & Kresch.

   Per Curiam.

The case was tried before the court and a jury in the Warren Circuit, and a verdict was rendered for the plaintiffs for $4,708.

The plaintiffs contracted, in writing, to furnish defendant sand and gravel to be used in the construction • of the Phillipsburg-Belvidere road,'at the price of one dollar a ton for both sand and gravel.

The contract contained the following stipulation as paragraph seven:

“We [plaintiffs] knowing that our gravel weighs ninety-three pounds per cubic foot, and our sand weighs eighty-one pounds per cubic foot, agree to accept payment based on the above weights, measurement of batches to be agreed upop between us, this to avoid the time lost in weighing each truck load.”

The plaintiffs billed the material to the defendant by actual weight taken from the scale tickets. By stipulation of counsel the .only reason argued is that the verdict is contrary to the law. This, of course, is not a proper reason, and presents no basis for reversal. But three grounds are urged in support of the reason, the first being that defendant was not bound by oral modification of the contract. The court properly left to the jury the question of modification of the contract by mutual agreement or by ratification. There was evidence that defendant’s superintendent ordered the material to be billed by actual weight, the weight to be marked on slips to be signed by drivers of the trucking firm engaged by the defendant.

The contract provided for a price of one dollar per ton. Paragraph seven could be construed to give the defendant, in order to avoid delay in actual weighing, the option of considering a certain volume of the material as equivalent to a given weight. Under such construction there was no modification of the contract, but simply an election by the defendant as to the practical method to be used in arriving at the weights.

The second ground is that the superintendent had no authority to modify the contract. The evidence showed that the superindendent had charge of the entire work; that he hired and discharged help; made up payrolls; ordered repairs; hired apparatus, and that the compartments of the trucks were so filled as to contain more than a cubic yard of earth.

The third ground is that no acquiescence in the modification of the contract was shown. The defendant admitted that he knew the material was being weighed and billed according to actual weight, and with this knowledge he paid a number of the bills. He, however, testified that he immediately wrote a letter protesting the bills, and the payment of the same, and this was denied by the plaintiff. The defendant contracted with the trucking firm to pay them by actual weight. We think under this evidence that the questions presented for determination were issues of fact, and properly submitted to the jury.

The rule will therefore be discharged.


text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PLAINTIFF—DEFENDANT IN CERTIORARI, v. FRANK HIRSCH, DEFENDANT—PROSECUTOR IN CERTIORARI.
    Submitted November 4, 1927
    Decided February 8, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor in certiorari, Nathan H. Berger.

    For the defendant in certiorari, Edward L. Katzenbach, attorney-general.
   Per Curiam.

The defendant, Hirseh, was charged by the state board of medical examiners, in the Elizabeth District Court, with the violation of section 10 of the State Medical act (Pamph. L. 1921, ch. 221), the charge being that he practiced medicine and surgery without a license.

He was convicted in the District Court, and thereupon he sued out this writ of certiorari to review such conviction. We think the judgment should be affirmed.

At the trial witnesses testified that he had a sign, “Dr. Prank Hirseh,” and office hours on his door at 275 Morris avenue, Elizabeth, New Jersey; that in his office was a treating room; that he had a lot of literature there describing various diseases and recommending treatment. Witnesses say that he diagnosed, or undertook to diagnose, their troubles, and that he treated the witnesses somewhat after the manner of a chiropractor.

We do not understand that there was any pretense that he was a licensed chiropractor.

He seeks to reverse this conviction because on one or two occasions a licensed chiropractor was present. The legal effect of that fact need not now be considered, because, according to the undisputed testimony, there were occasions when he diagnosed and treated witnesses when this licensed chiropractor was not present. Considering all of the testimony, it seems quite plain that it justified the conviction of the defendant. State Board v. Giedroyc, 91 N. J. L. 61; State Board v. Jilson, 4 N. J. Mis. R. 73; State Board v. Maza, 132 Id. 88.

The judgment will be affirmed, with costs.


text:
    STATE BOARD OF MEDICAL EXAMINERS, PLAINTIFF—PROSECUTOR IN CERTIORARI, v. HENRY P. LIVESEY, DEFENDANT—RESPONDENT IN CERTIORARI.
    Submitted November 4, 1927
    Decided February 8, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the respondent in certiorari, Elmer W. Romine.

    For the prosecutor in certiorari, Grover C. Richman and Edward L. Katzenbach, attorney-general.
   Per Curiam.

The defendant in this case was charged with the practice of medicine and surgery without a license. The case was tried before the First District Court of Jersey City, and the court gave judgment for the defendant. The state board sued out this writ to review that judgment.

At the trial it appeared that the defendant was a licensed chiropractor; that his place of business was in Arlington; that he had a reception room, a treating room and an electrical machine; that he prescribed a diet for various people, who testified as witnesses, and gave them salts to take inwardly; that he gave them oxy-christine into which, according to the witnesses, but denied by him, he said that he had put some other ingredients; that he also gave the witnesses electrical treatments using an electric vibrator attached to an electric machine; that he sometimes used an electric lamp which he held close to the various parts of the body until they became very warm, and that the witnesses paid him for these treatments.

Whether or not the defendant prescribed or gave medicines was manifestly in dispute in the evidence, and the judgment, therefore, cannot be disturbed on that ground. But, beyond dispute, he did give electrical treatments for various ailments. So far as this court is concerned, we are bound to hold that in so doing he exceeded his authority under the statute. See State Board of Medical Examiners v. Lezenby, 1 N. J. Mis. R. 20, in which it was held that the giving of electrical treatments was a violation of the State Medical act, and a judgment in favor of the accused was reversed.

In the case at bar the defendant seeks to evade the effect of that decision by calling attention to the provision of the Medical act as amended by Pamph. L. 1921, p. 707, which exempts therefrom any person resident of this state “who has been continuously engaged in giving treatment by electricity herein during the past fourteen years; provided, that said person has graduated from a legally incorporated electrotherapeutic school in good standing.”

We think the answer to the contention of the accused that he is excused by virtue of the language quoted is that, as we read it there is no evidence in the case that he continuously was engaged in giving treatment by electricity in this state during the past fourteen years, and certainly none that he was such a graduate as the statute described.

The judgment will be reversed and the cause remitted for a new trial.


text:
    STATE BOARD OF MEDICAL EXAMINERS, PLAINTIFF—DEFENDANT IN CERTIORARI, v. ALSON J. WALKER, DEFENDANT—PROSECUTOR IN CERTIORARI.
    Submitted November 4, 1927
    Decided February 8, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor in certiorari, Elmer W. Romine.

    For the defendant in certiorari, Edward L. Katzenbach, attorney-general.
   Per Curiam.

The prosecutor of this writ of certiorari, Alson J. Walker, was convicted of a second offense before the District Court of Orange upon a charge of practicing medicine and surgery without a license. He obtained this writ of certiorari to review that conviction.

The prosecutor’s first point is that the District Court had no jurisdiction to hear the case. We think it had. Jurisdiction was conferred by section 10 of the Medical act as amended by chapter 221 of Pamph. L. 1921, p. 708, and the procedure outlined therein was followed precisely.

The prosecutor’s next point is that the acts committed by the defendant did not constitute a violation of the statute. We think they did. The board produced three witnesses who testified they had at various times visited the defendant’s offices at 233 Main street, Orange; that to the right of the door as they entered was the sign “Dr. Alson J. Walker;” that upstairs in the front part of the building on the door was the sign “Dr. Alson J. Walker” and office hours; that the office was divided into a waiting room and a treating room; that the witnesses told the accused of their ailments, and he diagnosed their troubles, and gave to each of them treatments of adjustments, known as chiropractic treatments; that he manipulated the spinal column with his hands.

The proofs made by the plaintiff were not disputed by the defendant. He did not testify in his own behalf. There was no evidence that the accused had any license to practice as a chiropractic. We think that the testimony referred to justified the conviction. State Board of Medical Examiners v. Geidroyc, 91 N. J. L. 61; State Board of Medical Examiners v. Maza, 4 N. J. Mis. R. 73; State Board of Medical Examiners v. Jilson, 4 Id. 77.

The next point is that the defendant was entitled to trial by jury. It is settled in this court to the contrary. State Board of Medical Examiners v. Buettel, 3 N. J. Adv. R. 1860.

The judgment will be affirmed, with costs.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. NICHOLAS CHOFFE, PLAINTIFF IN ERROR.
    Argued October term, 1927
    Decided February 8, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff in error, Ferdinand D. Masucci.

    For the defendant in error, Joseph L. Smith.

   Per Curiam.

This was an indictment against the defendant upon a charge of carnal abuse of a girl under the age of'sixteen, on the 15th of December, 1926.

The proof of the state shows that the defendant and the complaining witness Margaret Mann had kept company for some months against the wishes of Margaret’s mother, as a result of which there were a number of acts of sexual intercourse between them, culminating in a condition of pregnancy which, according to the testimony of the physicians, had advanced about four and one-half months on the 3d of March, 1927. There was evidence to indicate that the defendant had admitted his intercourse with the girl and had agreed to marry her, and had made an appointment for that purpose at two o’clock on a certain afternoon, but did not appear. There was also evidence to show that when he was arrested he said he expected to be arrested. This, however, he denied.

The defense was that he was fond of the girl and wanted to marry her after a perfectly respectful courtship until she told him that her stepfather had had illicit relations with her, and then he refused to proceed further with the marriage contract. He produced a letter at the trial from the girl, which was read to the jury, in which, as it is claimed, she practically confessed in writing. There is no copy of that letter in the record, and so, upon this hearing, we are unable to consider it, and can give it no weight upon the question of evidence. She said she had written this letter at his instance. Whether or not the letter was written voluntarily by her, or under persuasion amounting practically to duress, to shield him in case he were accused of seducing her, as she testified at the trial and as she repeated in the police court, were, of course, questions of fact for the jury. The defense, it is noticeable, did not offer the envelope in evidence, but used it on cross-examination of the- prosecuting witness. It is also noticeable that the stamp and the postmark, ordinarily upon a letter, had been torn off. The defendant also claimed that this letter was received in November, 1926, and not in the summer of that year; that he had several others of a similar tenor, but that he had destroyed them at the solicitation of the mother of the prosecuting witness, who on her bended knees requested him to do this; but that he had by some oversight put this particular letter in another pocket, so that he was able to produce it at the trial. This was denied upon the part of the prosecution, which denial also presented a question of fact for the jury.

• We have examined the question of the weight of the evidence and have concluded that its weight under the circumstances was for the jury, and that the verdict is not so clearly against the weight of the evidence as to make the inquiry a court question. The indictment is not for statutory seduction, nor is it a case of bastardy, but one for carnal abuse. The stepfather was put upon the stand and denied any such conduct as was charged against him, and it is to be noticed that he was not cross-examined. The jury had the opportunity of observing his as well as considering his testimony in connection with his presence, and this presented a question of fact for them to determine. The defendant when on the stand was asked whether on March 27th he told the prosecuting witness, who informed him that a child was coming, and asked him what he was going to do about it, “get rid of it;” and this is alleged as error upon the part of the court. We think it was perfectly legitimate cross-examination as an admission on his part of his guilt. The prosecuting witness upon cross-examination was allowed to refresh her memory by reading memoranda made several months before the trial, and the argument is that it was error to permit her to do this since the entries were not made at or near the time of the acts complained of. She evidently was uncertain in her recollection as to dates, and the privilege of allowing her to refresh her recollection under the circumstances was an act within the discretion of the court. State v. Dougherty, 86 N. J. L. 547.

On consideration of the whole case as presented by the record we have concluded that the conviction should be affirmed.


text:
    ROYAL J. MANSFIELD, PLAINTIFF, v. COUNTY OF MONMOUTH AND COMMERCIAL CASUALTY INSURANCE COMPANY, DEFENDANTS.
    Argued October term, 1927
    Decided February 8, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff and Commercial Casualty Insurance Company, Andrew J. Whinery.

    On the brief, Colley E. Williams.

    For the defendant, William S. Stevens.

    On the brief, John S. Applegate.

   Per Curiam.

The case was tried at the Bergen Circuit before the court and a jury. The jury rendered a verdict for the plaintiff in the sum of $20,000, after which this rule to show cause was granted.

The reasons for the rule were that there was a denial of a motion for nonsuit, to which the defendants deemed they were entitled, and also that they were entitled to a direction of a verdict, and also that the verdict was against the weight of the evidence.

The plaintiff entered into a contract with the defendant the county of Monmouth for the construction of a bridge at a cost of $62,500, in conformity with certain plans and specifications on file, which were made part of the contract. The contractor encountered difficulties from the start, owing to subsurface conditions, and refused to proceed with the work without- extra compensation. The county declared that the contract was thereby abandoned and contracted with another company to complete the work.

The .plaintiff brought action for $45,900 for a breach of the contract, upon the theory that 'certain alleged representations, both express and implied, contained in the plans and specifications, and in the engineer’s report accompanying the same, were in the nature of warranties and were false, to the damage of the plaintiff.

The defendant brought into the suit the contractor’s bondsman, the Commercial Casualty Company, and counterclaimed for some $18,000, being the cost of the completion of the work over the contract price.

The matter was referred to Supreme Court Commissioner Andrew Van Blarcom, as referee appointed by the court to make a just and true report after taking an account between the parties as to what judgment should be entered. The referee came to the conclusion, after an examination of the facts and the general situation, that the county was entitled to recover $11,035, and judgment was entered therefor against the plaintiff and the defendant the Commercial Casualty Insurance Company, with interest. Under a reservation made at the time of entering the order of reference, the defendant, upon the filing of the referee’s report, made a demand for a jury trial, which trial resulted in the present record, as a result of which the jury found for the plaintiff for $20,000.

Accompanying the plans and specifications sent to all bidders was the boring report of the assistant county engineer, which stated that about twenty feet below the stream level a very hard stratum of sand and clay or marl was encountered and continued therein for a depth of thirty-nine feet below stream level; as a matter of fact boiling sand or quicksand was found at that depth. .Plaintiff contends that this report, purporting to show conditions found to exist as a result of two borings and reports, was in the nature of a warranty. The discovery of the sand caused some delay, whereupon the parties modified the contract by a supplemental agreement providing for piling below plane thirteen, twenty feet. The contractor in attempting to drive piles met obstructions by reason of submerged masses of old concrete. The plans showed at one place a submerged wall and mudsill. The contractor contends that, inasmuch as this submerged wall was indicated, it was tantamount to a representation or warranty that no other subsurface obstructions would be encountered, and that this alone was the sole obstruction.

The plaintiff also contended that the law implies a warranty, where plans and specifications provide for concrete abutments to be constructed to a certain depth, that the earth at that depth will support that abutment.

The Circuit Court judge discussed the question of warranty at some length before the jury.

It was also contended that the supplemental contract was tantamount to a novation between the parties. We are not impressed with the idea of a novation in this situation. The contract was not entirely new and complete revision of the existing contract, but rather in the nature of a supplement to an existing contract which was changed only in those particulars described in the supplement, which was entered into only for the purpose of modifying the existing contract, so far as to relieve the contractor from the obligation connected with the obstructions which he had met.

We have examined the charge of the trial judge in regard to the subject of warranty, and can find no legal objection thereto.

We have also considered the evidence in all its bearings upon the question of the liability of the defendant under the evidence in the case, and while the subject is entirely a debatable one from almost every angle, we are not prepared to say that the verdict of the jury must be considered as against the weight of the evidence, and we have therefore concluded that the rule should be discharged.


text:
    IVY M. DIEMER, ADMINISTRATRIX, v. HARVEY W. D. SHEPARD.
    Argued October term, 1927
    Decided February 2, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the rule, Frank G. Turner.

      Contra, Alfred A. Stein.

   Per Curiam.

The action was tried before the court and a jury in the Morris Circuit, and resulted in a verdict for the plaintiff for $12,000.

The facts are these: The plaintiff’s intestate, a taxi driver, was proceeding on a Sunday morning in an easterly direction on the right-hand side of Madison avenue, in Madison, on a down grade. The defendant was driving on the same road on his right side in a westerly direction and made a turn to the left in order to enter a church driveway, when the plaintiff’s taxicab, which was only eight or ten feet distant, struck the plaintiff’s car in the rear and while the rear part was extended over the highway, injuring the plaintiff’s intestate, from which injuries he died within a short time thereafter, this suit being brought to recover damages by the administratrix widow for the death.

It is to be observed that in taking this rule counsel for the defendant reserved his exceptions, but instead of confining himself to the argument of the rule before us he has argued almost entirely all of the exceptions reserved, and this court, in pursuance of that argument and procedure, has considered every exception discussed, and now incidentally determines the same as though not reserved by the rule.

It is contended, in the first place, that the verdict was excessive. We do not so consider it. The deceased was twenty-one 3rears of age and left a wife of the same age and a child four months old, all in good health, surviving him. The verdict was for $12,000, and under the situation as alleged in this case and proved upon the trial, we do not consider the verdict excessive.

It is contended also that the verdict is against the general weight of the evidence. The relative negligence as to the parties was of such a character as to make it a controverted question, and in such a status the rule is well settled that the questions of negligence and contributory negligence are properly resolvable by a jury. Therefore, we find no support for the contention.

It is also contended that the effect which the jury might give to the testimony concerning the amount of compensation insurance which the plaintiff would receive from a casualty insurance company was irrelevant and immaterial and should not have been referred to by the court in its charge. If it were irrelevant and immaterial no harm or injury was done to this defendant; but we have examined the direction of the court in that respect and find that it is legally unobjectionable, and, if anything, was favorable to the defendant’s side of the case.

Exception was also taken to the direction of the court regarding the annuity tables, and also as to the estimate which was requested from one of the witnesses as to the probability of the joint lives of husband and wife and child under the Carlisle tables. It is to be observed that the defendant in this instance did not insist upon an answer and entered no exception, which appears upon the record. When the witness in answer to a question estimated that it would take him about two hours to calculate the probabilities of the joint lives, evidently counsel did not desire to proceed further in the matter, and nothing further was said or done. We think, in any event, that this procedure was unobjectionable, and that the matter was in the discretion of the court as to whether or not any length of time should be allowed to the expert for the purpose of estimating the probability of the duration of the joint lives. Dickerson v. Mutual Grocery Co., 124 Atl. Rep. 785. It is also to be observed that the witness subsequently gave the information that was desired, so that no harm was done in that respect.

Exclusion of the question on cross-examination by the defendant under the ninth and tenth reasons was correct, since the inquiry involved was entirely immaterial, and had no relevancy to the situation presented by the pleadings in this case.

The eleventh and twelfth reasons are subject to the same criticism.

The thirteenth reason deals with the overruling of a question put by the defendant’s counsel to an occupant of the defendant’s car at the time of the accident. The overruling of this question might be considered erroneous were it not for the fact that shortly thereafter the same witness said that he was not in a position to see or describe what the driver of the car had done, but that he did notice a slight skid of the car. We think that -this testimony was' therefore practically included and not excluded.

There was an exception entered to the refusal of the court to direct a verdict for the defendant on the grounds that we have already substantially adverted to. We think that all of these questions as to the absence of negligence, contributory negligence, the existence of a condition producing an inevitable accident, were questions for the jury and were all reserved in the exceptions; but, as we have said, we have considered them here and do not find that they are legally supportable.

The sixteenth exception deals with the remarks of the court concerning the compensation allowed. We have already considered that in another connection, and we have concluded that the remarks of the eom’t in this instance, “that damages should be assessed by the jury without regard to what might be allowed under the Compensation act,” were legally correct.

The seventeenth and eighteenth reasons deal with that part of the charge in which reference is made to the fact that Deimer was on the proper side of the road. We consider that a correct statement of fact, but, in any event, the court could not take it from the jury.

The next reason also deals with the charge of the court in referring to the turn made by the defendant, in calling the attention of the jury to the fact that if he was negligent in that respect, under the circumstances, the defendant would be liable; whether or not he turned under circumstances which would involve, ordinarily, extreme caution on his part, or whether he did it negligently by reason of the fact that he did not take into consideration that there was a car approaching. These were questions for the jury and properly submitted to them. In this respect there was no error in the charge.

The court also charged (and to this exception is taken) that negligence might be inferred from the fact of the violation of the Traffic act by the defendant. Under the facts of this case we think this direction of the court was legally correct.

The court also charged (and to this exception was taken) in this language: "And here the suggestion is made that because he did not turn he not only violated the Traffic act but he committed an act of negligence.” ' Of course, when the court was referring to the matter in this light he had in mind all the circumstances of the case and the situation of the parties, and he was simply calling the attention of the jury to the defendant’s act in turning at the time he did and under the circumstances, arid leaving it to the jury to say whether or not under such circumstances the defendant was guilty of negligence. We see nothing legally objectionable in that.

On an examination of the whole case and the reasons and exceptions, we have come to the conclusion that the rule should be discharged.


text:
    FRANK A. MILLER, PLAINTIFF-APPELLEE, v. THEODORE C. GROSSMAN AND CHARLES WEISERT, DEFENDANTS-APPELLANTS.
    Argued October term, 1927
    Decided February 8, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff-appellee, Barison & Barison (Morris E. Barison, on the brief).
    For the defendants-appellants, McCarthy & McTague (Joseph W. Henry, on the brief).
   Per Curiam.

The plaintiff sustained damages by reason of a collision between his automobile and an automobile bus owned by Theodore Grossman and operated by the other defendant Charles Weisert. The bus was proceeding in a northerly direction on Hudson County Boulevard, when it struck the left front wheel of the plaintiff’s automobile, which had proceeded a little more than half way across Bergen avenue at its intersection with Van Nostrand avenue, in Jersey City. The result of the collision was that the plaintiff’s automobile was turned around and damaged. The defendant’s bus proceeded for more than twenty-live feet after it struck the plaintiff’s automobile before it was brought to a stop.

The case was tried before the Second District Court of Jersey City and resulted in a judgment for the plaintiff for $157.50, from which judgment this appeal has been taken.

We have observed nothing in this appeal excepting a discussion of fact involved as to the negligence of the owner of the bus and the contributory negligence of the plaintiff.

Our consideration of the facts in the case, as presented by the record, leads us to the conclusion that there was ample testimony upon which the finding of the District Court could be based, and where there is reasonable basis for the finding of the court upon the facts involved this court will not disturb the result.

The judgment, therefore, will be affirmed.


text:
    FRANK KOMSA, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Argued October term, 1927
    Decided February 8, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff-appellee, Hart & Vanderwart.

    For the defendant-appellant, Henry H. Fryling.

   Per Curiam.

The case was tried before the District Court and a jury, and a verdict was rendered in favor of the plaintiff for the sum of $200.

The action was brought to recover damages to the plaintiff’s automobile as the result of a collision between the automobile and one of the trolley cars of the defendant company at Pleasant avenue and Oak avenue, in the borough of May-wood, Bergen county, on August 15th, 1926. The plaintiff was driving a covered Eord truck in an easterly direction on Pleasant avenue on the south roadway parallel with the trolley tracks which ran east and west alongside of Pleasant avenue on a private right of way. When the plaintiff reached Oak avenue he turned his automobile to the north to cross the trolley tracks, and in that act collided with the front right step of a trolley car which was proceeding in an easterly direction.

Prom that verdict the appeal is taken on the ground of the failure of the court to nonsuit and the failure of the court to direct a verdict in favor of the defendant at the close of the case.

The accident happened about eight-thirty o’clock in the evening, when the day was growing dusk. There was testimony that the car was going very fast and did not have a bright headlight on it, while the plaintiff’s lights were lit The cars of both parties were, apparently, running parallel with each other for a block. The plaintiff says that when he turned north he stopped and looked both ways and saw people the second block away as though waiting for a car at Palmer avenue. He started across the track and was lifted in the air and upset while in the act of crossing. He did not see the trolley car until after his automobile had been struck, and he did not know that there was a trolley car anywhere in the neighborhood.

The witnesses for the plaintiff gave no testimony regarding the actual facts of the coEision and the manner of its happening.

The operator of the trolley car stated that his car was moving at a moderate rate of speed, and when he reached Oak avenue the plaintiff’s automobile struck the side of his car at the front right step. He did not see the automobile until it struck the side of his car. The accident happened at night, and the arc light and the headlight of his trolley car were lighted. He sounded his gong and blew his whistle when he was approaching Oak avenue.

A passenger upon the same car stated that it was moving at a moderate rate of speed and that the operator had given warning of the approach to Oak avenue by blowing his whistle.

It is apparent to us that, from the plaintiff’s own testimony, he was negligent in his attempt to cross the track under the circumstances. If he had looked for an approaching trolley ear he undoubtedly would have seen this car apapproaching, but he attempted to cross Oak avenue at the junction of Pleasant avenue apparently without any effort to observe the approach of a trolley car. If he had looked he could have seen it approaching, and he testifies that he did not see the trolley car until after the collision. A situation of that kind is inconsistent with due care upon his part or with proper observation resulting from due care. The inference is satisfactory to the court that the collision occurred because he did not make proper observation as to his immediate surroundings, and if he had made such observation the accident would have been obviated.

We, conclude, therefore, that the verdict of the jury is without any substantial weight of evidence to support it, but that, on the contrary, the verdict is against the entire weight of the evidence, and for that reason the judgment appealed from must be reversed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. EDWARD B. TWARDUS, JOSEPH HACK AND DAVID POLLIKOPFF, PLAINTIFFS IN ERROR.
    Argued October term, 1927
    Decided February 8, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the plaintiffs in error, J. Victor D’Aloia (John O. Bigelow, of counsel).
    For the defendant in error, Joseph L. Smith.

   Per Curiam.

The plaintiff in error Edward B. Twardus, a practicing attorney in the city of Newark, was convicted upon an indictment which contained two counts, the first charging a conspiracy to burn the building at 2L-26 Mechanic street, Newark, with attempt to prejudice the insurance companies. This count the state subsequently abandoned.

The second count charged the defendant Twardus with conspiring with Joseph Hack and David Pollikopff to burn the said building. The defendants Hack and Pollikopff pleaded non vult, but Twardus went to trial and was convicted. Twardus was practically the owner of the premises in question in the name of the Eeal Estate Exchange, Incorporated, of which company he was the owner of two-thirds of the outstanding capital; the other third was owned by Herbert I. Segal. 'The property was purchased for $188,000, and $19,500 was paid in cash; $168,500 was paid by assuming two mortgages. Upon the property was a four-story building of brick and timber construction.

Twardus planned to convert the building into a modern office building for architects, lawyers, surveyors and other professions. It was insured in the sum of $8,500, but was practically vacant from the time he purchased it until the time of the fire on December 16th, 1926, at one-thirty o’clock in the morning.

The defendant Twardus did not have sufficient cash to pay the taxes which accrued in December, 1926, nor did he have sufficient money to pay the current expenses of managing the propertjL He gave a check for the first payment of $9,822.08, which was returned by the bank for insufficient funds. This check he subsequently made good, but was never able to meet the current expenses on the property, which was nearly always vacant, without rent or income, and he was finally unable to meet the interest and installments due on the mortgages.

It was in evidence that the fire was of incendiary origin and existed in ten separate places on the premises. It was also proved that Hack and Pollikopff set fire to the building, and to support the averments in the indictment the state called thirty witnesses. There was ample proof adduced to show that Twardus was one of the conspirators to set fire to the building, in addition to the admissions by Hack and Pollikopff, his eo-eonspirators. They bought the five-gallon cans which contained the gasoline in two stores, and they had the cans filled with gasoline. The car which carried the gasoline cans was identified by its number and was found in the rear of the house in which Hack resided. Both Hack and Pollikopff testified that after placing the cans in the building they went to the apartment of two ladies on Broad street, that they left this apartment about midnight, set fire to the building on Mechanic street, and then returned to the apartment. In this they were corroborated by the two ladies.

In its main essentials this testimony was denied by the defendant Twardus so far as it affected him in his relations with the conspirators.

Hack confessed that Twardus employed him to burn the building, and that he and Twardus frequently went out together in the automobile of Twardus; that Twardus gave the key of the building to Hack and reminded him that the only way he could get money was to burn down the building. Twardus gave him $25 to buy gasoline and to hire a car for the purpose of carrying the gasoline to the Mechanic street house. Hack afterwards met Pollikopff and asked Pollikopff to help him to set fire to the building. These two conspirators, Hack and Pollikopff, spread the gasoline on the second and third floors of the building and set it on fire at half-past one in the morning of December 16th, 1926. On that day Hack called up Twardus on the telephone and asked him how everything was, and Twardus said that everything was O. K., and the following day Hack told Twardus that he wanted to leave town, and wanted money. Twardus gave him $6. The following day Hack again met Twardus and asked for more money to leave town. Twardus gave him $20 more and drove him to the Lehigh Valley railroad station, and informed him when leaving that if he wanted more money to call him up and more money would be sent to him.

Hack and Pollikopif thereafter went to Bethlehem, Pennsylvania, where demand was made again upon Twardus for more money, which was sent by Twardus to Hack in the form of a Western Union money order addressed to Jack Dawson, Bethlehem, Pennsylvania, the name which Hack subsequently used. Thereafter the pair went to Stroudsburg, Pennsylvania, and again telephoned Twardus for money, which was again forwarded by Western Union money order.

Thereafter Hack and Pollikopif returned to Newark, and on several occasions met Twardus, who informed Hack that things looked pretty tough, but gave the two additional money.

Testimony of this character, with which the case is replete, need not be adduced in detail. It must suffice to say that our examination of this testimony for the state, as well as the denial of the esame by Twardus, satisfies us that the trial court did not err in its charge to the jury, since these questions were all relevant to support the contention of the state that a conspiracy had been entered into between the defendants Twardus and Hack and- Pollikopif for the 'purpose of burning the building as charged in the second count of the indictment. The question, therefore, became essentially one of fact for the jury to determine.

The other defendants, Hack and Pollikopif, were boys, one twenty-two years of age and the other twenty, and the jury were warranted in inferring from the testimony that they were completely under the control and domination of Twardus, and that his was the guiding hand in the creation and execution of the conspiracy. The proof upon that question was ample and clear, if the jury believed it, in the light of all the testimony and the presence of the co-conspirators as well as the other witnesses for the state.

We observe nothing in the case that would lead us to the conclusion that the verdict of the jury was, as is argued, against the weight of the testimony. We find it to be consistent with the testimony if the jury believed the witnesses and the state’s proof.

The question of motive on the part of Twardus was entirely one for the jury under the evidence. The credit which should be given to the two co-conspirators, as well as to the plaintiff in error, Twardus, in view of their testimony and their records, was also a question for the jury.

The charge of the trial court as to the uncorroborated testimony of an accomplice and the effect the jury should give to the same was legally proper, and, if anything, was favorable to the plaintiff in error, and the jury were sufficiently cautioned by the court regarding the reliability of the testimony of Hack and Pollikopff as co-conspirators.

The telegraphed money orders were properly admitted, as well as the testimony of Mr. Osborne, the handwriting expert. The same may be said of the proof of the telephone calls from the co-conspirators in Bethlehem and Stroudsburg.

We have examined the rulings of the court on the questions of the admission of testimony and the rejection thereof, as well as the court’s refusal to postpone the case to another day for the purpose of giving the defendant an opportunity to produce experts to contradict the expert of the state, Mr. Osborne, and we find no error therein.

We have examined the charge of the court in its entirety, and we find that the legal exceptions directed thereto are without substance, and, on the whole, we find the charge of the court eminently fair to the defendant and in nowise prejudicial to his claim of innocence. »

The conclusion we have reached is that there was sufficient testimony in the case to justify the conviction, if the jury under all the circumstances, as well as the independent testimony supplied by the state, believed the state’s case and did not credit the defendant. This was evidently the basis of the jury’s verdict for conviction, and we see no reason for disturbing that result.

The judgment of conviction will therefore be affirmed.


text:
    VINCENT VITALE, BY NEXT FRIEND, v. QUALITY LAUNDRY COMPANY, INCORPORATED. FRANK VITALE v. QUALITY LAUNDRY COMPANY, INCORPORATED.
    Submitted October 14, 1927
    Decided January 14, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, Carl S. Kuebler.

    For the appellees, Alberico O. Ciccarelli.

   Per Curiam.

These causes were tried together before the judge of the District Court without a jury, and resulted in findings and judgments in favor of the plaintiffs below.

Prank Yitale was in the coal business and his horse-driven truck was standing at the curb of a public street while the coal with which the truck was loaded was being by him shoveled into receptacles which his son, Yincent, was carrying and discharging into a bin in an adjacent building.

The defendant’s truck by its driver, had been brought to a position directly in the rear of Yitale’s truck and stopped and left standing. Some ten or fifteen minutes thereafter another employe of the defendant, a boy of fourteen years of age, came to the standing truck to obtain some cord to tie some bundles, and he says he accidentally stepped upon the starter of defendant’s truck, which was set in motion and proceeded forward and collided with the coal truck, damaging the truck and injuring both Prank Vitale and his son, Vincent, the plaintiffs below.

The sole ground for reversal is error in refusing to direct a verdict upon the ground that there was no evidence that the defendant’s automobile was being operated by its authorized agent or servant.

It appears to us that the grounds of negligence relied upon below are misunderstood by the appellant.

Such grounds appear to be that it was negligent for the driver of defendant’s truck to have left it in such condition that its motor could have been readily started and the truck proceed forward, and secondly, that the boy, concededly a servant of defendant, and acting within the scope of his employment when he went to the truck for cord, was negligent when he stepped upon the starter and set the motor in motion.

There was testimony upon both of the points permitting the trial judge to find negligence attributable to the defendant, and, therefore, his findings of fact are not open to review, and the judgments below are affirmed, with costs.


text:
    EUSTACE EGGIE ET AL., TRADING AS EUSTACE AND DEMOTTE EGGIE, v. WILLIAM M. DENOF.
    Submitted October 14, 1927
    Decided February 6, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the rule, Robert J. Tait Paul.

    Contra, Knight & Orlando.

   Per Curiam.

Plaintiffs sold defendant a second-hand Jordan car. As a part of the consideration for this car a 1918 model Cadillac car was taken by plaintiffs at an agreed value of $700.

The balance of the consideration was financed through an automobile finance company.

Defendant having defaulted in his payments the Jordan ear was sold at public sale for $300, and this suit was brought by plaintiffs to recover the difference between either $1,000 or $1,102 and the sale price of $300.

The defendant answered and counter-claimed alleging that the Jordan car was not in accordance with the warranties of sale, and that he had rescinded his contract and was not indebted to the plaintiffs thereon, and, under the counter-claim, sought to recover the value of his Cadillac car turned in as part payment for the Jordan car.

The jury found against the plaintiffs and in favor of the defendant upon the original cause of action, and also found against the plaintiffs and in favor of the defendant upon his counter-claim in the sum of $350.

Plaintiffs then obtained the present rule to show cause why this verdict should not be set aside.

The reasons argued go in two directions; that the verdict is against the weight of the evidence and against the charge of the court.

We conclude that there was ample evidence to support the verdict against the plaintiffs upon their original cause of action against the defendant, and the verdict in that direction should not be disturbed.

The trial court charged that there was an utter absence of any evidence other than the trade in value of the Cadillac car upon which the jury could find the value thereof in the event that it found in favor of the defendant on his counter-claim, and, therefore, the jury could do no more than return a ver-, diet in his favor for nominal damages.

This instruction under the evidence in this case was erroneous. Teets v. Hahn, 49 Court of Errors and Appeals, October term, 1927.

Nevertheless, the verdict being against the law of the case as determined by the trial judge, it cannot be sustained. Queen v. Jennings, 93 N. J. L. 353, cases therein cited.

The rule will therefore be discharged as to the verdict against the plaintiffs upon their action against the defendant, and be made absolute Avith respect to the verdict in favor of the defendant upon his counter-claim and a venire de novo awarded for a retrial as to the value of the Cadillac car under the issue raised by the counter-claim of the defendant.


text:
    BETHSHEVA SOLOTAROFF ET AL., TRADING AS ELIZABETH GLASS AND SHADE COMPANY, CLAIMANTS-APPELLEES, v. JAMES CANDALUPA ET AL., OWNERS; VITO CAPONE, BUILDER; ANTONIO VIVIANO, MORTGAGEE, APPELLANTS.
    Submitted October 14, 1927
    Decided January 14, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the appellants, Eugene A. Liotta.

    For the appellees, John F. Ryan.

   Per Curiam.

This is a lien claim action, and judgment is for the claimant.

The first ground for reversal is that the trial court erred in refusing to dismiss the lien claim on the ground that the complaint shows that the work was done and materials furnished September 1st, 1926, and the claim was not filed until January 17th, 1927, more than four months thereafter.

The lien claim is not brought up with the state of the ease and we are therefore not informed what it shows.

The complaint avers that the work was performed and the materials furnished on or about September 1st, 1926. The proofs show the last work was done and materials furnished November 28th, 1926. This would bring the filing of the lien claim and the commencement of the action within the time fixed by statute.

The next ground is error in refusing to dismiss upon the ground that a proper bill of particulars is not attached to the lien claim or the complaint.

But such bill of particulars was not required because the work and materials were furnished by a contract at a stated price for work and materials therein specified. Comp. Stat., p. 3304, § 16.

Finding no error the judgment below is affirmed, with costs.


text:
    CLARENCE A. BAHR, PLAINTIFF, v. O—W COMPANY, DEFENDANT.
    Submitted October term, 1927
    Decided February 14, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Collins & Corbin.

    For the defendant, Kellogg & Chance.

   Per Curiam.

Plaintiff obtained a verdict and defendant has a rule for new trial. Two reasons are advanced for making the rule absolute.

1. That the court erred in refusing defendant’s motion for a nonsuit.

2. That the verdict is against the weight of the evidence.

The proofs in the case make it clear that a nonsuit could not have been granted, and the same proofs we think forbid that we should disturb the verdict for the second reason.

The case grew out of a collision between two automobile trucks, the action being to recover damages for injuries to the truck of the plaintiff. To the collision there were but two witnesses, the plaintiff who was driving his own truck and the defendant’s chauffeur.

The testimony of the former, if believed by the jury, established that he was proceeding south on Chancellor avenue in Newark, and that, crossing Stnyvesant avenue (forty feet wide), which intersects Chancellor avenue at right angles, his truck was struck on the right rear wheel by the truck of the defendant; that when he reached the near corner of the two streets he looked in both directions but saw no vehicles approaching; that he proceeded across the intersection at a speed of eleven miles an hour, and that when he had entered the intersection a distance of fifteen feet he observed defendant’s truck coming rapidly from his right, but still one hundred feet away; that the collision occurred when the hood of his truck was at the southern crosswalk of Stuyvesant avenue. The account given by defendant’s chauffeur, while in many respects at variance with the foregoing, served only to present a question of fact for the jury’s determination.

The árgument of the defendant that its truck had the right of way under the statute, and hence, that a nonsuit should have been granted, is of no avail under the facts as the jury may well have found them. As then existing (Pamph. L. 1915, § 4, subdiv. 1, p. 289, since couched in different language, Pamph. L. 1927, p. 460) the statute obliged the driver of a vehicle entering or crossing a street intersection to accord the right of way to one approaching from his right, but this is not to be construed as conferring on the latter a license to violate other provisions of the traffic laws and thereby acquire superior rights. If, when the plaintiff’s truck was already fifteen feet within the intersection of the streets the defendant’s truck was approaching at a distance of one hundred feet from such intersection, it is obvious that the truck could only reach the crossing by a flagrant violation of the speed law as established for the cities of the state.

The nonsuit was properly refused and the verdict is not against the weight of the evidence.

The rule is therefore discharged.


text:
    ANDREW KALINOWSKY, PLAINTIFF, v. LOUIS KAPLOWITZ AND BENJAMIN KAPLOWITZ, PARTNERS, ETC., AS JERSEY TIRE COMPANY, DEFENDANTS.
    Submitted October 14, 1927
    Decided January 5, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the rule, Wight, Wight & Golenbock.

      Contra, David T. Wilentz.

   Per Curiam.

Plaintiff has a verdict for $2,500 for personal injuries. The rule before us is limited 'to the amount of the verdict, which is said to be excessive under the evidence.

We find this to be so.

Plaintiff did not produce any of the three physicians who attended him.

The evidence of injury and disability came from the plaintiff himself and a physician who examined but did not treat him.

The principal complaint appears to be a restricted use of the joint of the right shoulder.

This plaintiff’s physician witness said was “due to some injury or some other cause.”

The only other medical testimony was that of a physician called bjr the defendants, who testified to finding two scars on plaintiff’s forehead, and, although there was a complaint of pain in the right shoulder, he had good function of the shoulder, and he could not determine any cause for the pain.

The verdict was therefore not warranted by the proofs, and the rule to show cause is made absolute and a venire de novo is ordered to the end that a new trial may be had upon the question of damages only.


text:
    LOUIS PRETTO v. GABRIELE GIORDANO.
    Submitted October 14, 1927
    Decided January 14, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the rule, Joseph R. Megill.

      Contra, Quinn, Parsons & Doremus.

   Per Curiam.

This is an action for false arrest and malicious prosecution upon the charge of perjury, and at the trial at Circuit plaintiff obtained a verdict of $2,500.

Seven reasons are assigned for setting aside the verdict — ■

1. That it is contrary to the weight of evidence.

2. That it is contrary to law.

3. That it is contrary to the charge of the court.

4. That it is excessive.

5. That it is contrary to the evidence.

6. At the close of the case the great weight of the evidence was in favor of the defendant and a verdict in his favor, as requested, should have been directed.

7. Because remarks of the trial judge were prejudicial to the defendant.

We have examined the case in all of these directions and have concluded that a setting aside of the verdict is not warranted.

The rule to show cause is therefore discharged, with costs.


text:
    PUBLIC SERVICE RAILWAY COMPANY, PROSECUTOR, v. THE TOWN OF KEARNEY, IN THE COUNTY OF HUDSON, RESPONDENT.
    Argued January 18, 1928
    Decided February 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Frank Bergen, William, H. Speer and Wendell J. Wright.

    For the respondent, John H. Cooper.

   Per Curiam.

The prosecutor and its predecessors having for a number of years operated a street railway over portions of Midland avenue and Elm street, in Kearney, suspended such operation some time in 1926 and by agreement with the governing body of that municipality removed the poles and overhead electrical construction, reserving the right of replacing same and resuming operation of its railway at any time in the future that it should so determine.

Subsequent to suspending the operation of such street railway the governing body of Kearney proceeded to repave Midland avenue and Elm street for the space therein occupied by the tracks of prosecutor and for a distance of eighteen inches outside of the outer rails of such tracks and through its board of assessors proceeded to assess a portion, of this cost against the prosecutor. The assessment for Midland avenue being $13,627.87 and that for Elm street $4,491.45. No other assessments were levied; the balance of the cost in each case being placed upon the town at large.

These assessments were reported to the town council by the board of assessors and confirmed.

Under the two writs, bringing these assessments before us for review, we are asked to vacate and set them aside, and this we must do because the prosecutor has no lands subject to assessment for benefits but possesses a mere right of use of the highways in question for the operation of its street railway, under legislative sanction. There was no benefit accruing to the prosecutor as a result of such repaving.

Furthermore, the legislature has by chapter 129 (Pamph. L. 1927, p. 243) fixed the obligation of street railway and traction companies in respect to matters of this character and thereby has established a method to he pursued in respect thereto.

The assessments under review are set aside and vacated, with costs.


text:
    CHRISTINE STEULER, PLAINTIFF, v. HENRY R. HANSEN, DEFENDANT.
    Submitted October term, 1927
    Decided February 14, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Perkins & Drewen.

    For the defendant, Levenson, Comen & Levenson.

   Per Curiam.

This is defendant’s rule for a new trial, and the reasons urged for making the rule absolute are that the verdict was against the weight of the evidence, and in any event that it was excessive in amount. The action was to recover for services rendered by plaintiff to defendant.

The parties are sister and brother. Plaintiff had lived with her mother in a house belonging to the defendant. The mother died in January, 1916, and the defendant, who had recently separated from his wife, went to live with the sister in this house. The plaintiff’s proofs are that he was in poor health and required much care and attention and that he arranged with the sister to keep house for him, take care of him, nurse him, mend his clothes and do his laundry. At the end of the first year he gave her $500 and promised her that amount so long as she continued to do for him. A like payment was made in January, 1919, and $100 in March, 1920. The relation continued until April, 1926, when, as a result of a quarrel, they separated.

The defendant denied the employment of the plaintiff, though admitting the services, and contends that the evidence did not justify a finding in her favor in view of the burden the law imposes on one so closely related to prove an express contract to pay. There is no doubt that the plaintiff was obliged to prove an express agreement (Disbrow v. Durand, 54 N. J. L. 343), but we think this burden was fairly met.

While the plaintiff and defendant were the sole witnesses, the evidence of the plaintiff was corroborated by the payments made and other circumstances. The jury had the opportunity to see the'witnesses and to appraise their testimony and we are not disposed to disturb its finding as at variance with the proofs. The amount of the award accords with the evidence and its not excessive.

We therefore conclude that the rule for new trial should be discharged.


text:
    ROSE LEVINE. PLAINTIFF-RESPONDENT, v. JACOB ACKENBOUT, DEFENDANT, AND ABRAM MALAYFSKY, DEFENDANT-APPELLANT.
    Submitted October term, 1927
    Decided February 14, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the respondent, Feinberg & Feinberg.

    For the appellant, Hobart & Minard.

   Per Curiam.

This is an action to recover damages for personal injuries to the plaintiff received in a collision between two automobiles, one driven by the defendant Malayfsky, and the other by the defendant Ackenbout,'the plaintiff being at the time an occupant of Malayfsky’s car. There was a verdict against both defendants and Malayfsky appeals. The grounds of appeal are that the court erred in refusing to charge the following requests for instruction:

“2. Unless you find that the defendant Malayfsky was guilty of negligence in the manner charged in the complaint, you must find for the defendant Abram Malayfsky.

“é. Unless you find that the defendant Abram Malayfsky invited Mrs. Levine to ride with him, your verdict must be for the defendant Abram Malayfsky.

“5. If you find that the defendant Malayfsky did not invite Mrs. Levine the plaintiff to ride with him, but that she asked him to take her for a ride or to let her ride with him, then I charge you your verdict must be for the defendant Abram Malayfsky.”

One of the issues in the case was the relation which the plaintiff bore to the defendant Malayfsky, in whose ear she was riding, it being contended by the former that she was an invitee and by the defendant that she was a licensee only. The requests were therefore pertinent, but we think they were substantially charged in the general instructions given by the learned judge to the jury. In the charge negligence generally was clearly and accurately defined, and with like clarity the jury was told that the negligence defined applied to Malayfsky provided he had invited the plaintiff to go riding with him, but that if she invited herself the defendant only owed a duty not to wantonly or willfully injure her, and of which wanton or willful conduct he could see no evidence. This we think must have been understood by the jury as making the defendant’s liability depend upon a finding that the plaintiff was riding at Malayfsky’s invitation and that she was injured as a result of his negligence.

Appellant has not shown that his substantial rights were injuriously affected by the denial of the instructions prayed (Practice Act 1912, page, 382, section 27), and the judgment will be -affirmed.


text:
    JAMES A. MacEVOY AND WILLIAM REGAN, PROSECUTORS, v. BOROUGH OF BERGENFIELD, RESPONDENT.
    Submitted November 4, 1927
    Decided February 16, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.

      For the prosecutors, Clarence Mabie.

    For the respondent, James S. De Turck.

   Per Curiam.

This writ brings before the court for review of certain assessment made by the commissioners of assessment of the borough of Bergenfield for the improvement of the shoulders of Washington avenue in the. borough in conjunction with the county improvements of the center of that highway, all as more particularly set forth in an ordinance designated ordinance No. 257 of the borought of Bergenfield.

The prosecutors have assigned twenty reasons for setting aside the assessment in question, but, according to their brief, have abandoned a majority of them. Eurthermore, there are no facts in the state of the case to support reasons numbered 1, 2, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17 and 18, neither are these reasons argued in the brief of the prosecutors.

“On certiorari, the Supreme Court will not ordinarily reviewr matters not referred to in the arguments or briefs of counsel.” Sharp v. Sweeney, 65 Atl. Rep. 859.

The questions raised by reasons numbered 11, 12, 14, 15 and 17 could only have been raised by an appeal from the assessment in question and cannot be thus raised by a writ of certiorari.

“When an attack is made upon an assessment on the ground that it is unfair, the Home Eule act of 1917 provides a remedy by appeal to the Court of Common Pleas. A dissatisfied owner must use this method before resorting to a writ of certiorari.” Graham v. Ocean City, 98 N. J. L. 426.

The Home Eule act has been amended, since the decision in Graham v. Ocean City, so as to require an appeal to betaken to the Circuit, but otherwise remains unchanged. Pamph. L. 1925, ch. 71.

But we think that the prosecutors’ writ should be dismissed because of laches.

It may be possible that in passing the ordinance in question or in entering into contracts with the county of Bergen, the borough of Bergenfield did not strictly comply with the .statutes relating to joint improvements, but nevertheless the writ should be dismissed because the prosecutors failed to .attack the proceedings until after the improvement was completed and the assessment made. The ordinance was finally passed on April 28th, 1925; the prosecutors were notified of the passage of the ordinance on May 2d, 1925; the contracts were entered into with the county of Bergen in the month of April, 1925, and in the month of February, 1926; the improvement was completed on August 31st, 1926; notice ■of the hearing before the assessment commission was given ■on September 24th, 1926; the meeting of the assessment ■commissioners was held on October 4th, 1926, and was attended by both prosecutors, at which time they made no objection to the proceedings of the borough council preliminary to the making of the improvement. Both prosecutors also ■attended the hearing before the mayor and council at the time the assessment was confirmed and their only objection then was as to the unfairness of the assessment; this writ or certiorari was not obtained until January 12th, 1927.

The courts in New Jersey have repeatedly held that conduct of this sort on the part of objecting property owners precludes them from securing relief by certiorari. Thus, in a late case it was held that:

“Where public improvement work is allowed to proceed to completion without an assessable owner taking any steps to secure a review of the proceedings authorizing said work resulting in the expenditure of large sums of public money, the court will refuse to disturb the proceedings, although they are irregular.” Quinlan v. Cross, 3 N. J. Mis. R. 781.

The writ will be dismissed, with costs.