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    SAMUEL L. JONES, DEFENDANT IN CERTIORARI, v. GEORGE ELLIS, PROSECUTOR IN CERTIORARI.
    Submitted June 2, 1927
    Decided November 25, 1927.
    Attachment — Commissioner’s Order Based Upon Affidavit Alone —Practice Act Requires Proof — This Proof Means Competent Proof, Legal Evidence, Testimony That Conforms to the Fundamental Laws of Proof — Hearsay Evidence is Excluded —Writ Should be Quashed.
    On certiorari.

    Before Justices Trenchard, Kalisoh and Katzenbach.
    Eor the prosecutor, Bex A. Donnelly.

    Eor the defendant, Powell & Erickson.

   Per Curiam.

This writ seeks a review of an order of the Cumberland Common Pleas, refusing to set aside an order of a Supreme Court Commissioner awarding a writ of attachment in favor of Samuel L. Jones, defendant herein, plaintiff below, against George Ellis, prosecutor herein, defendant below, under sections 84, 85 and 86 of the Practice act. 3 Comp. Stat. 1910, p. 4070. The motion testing the commissioner’s order was made on due notice, appearance in the matter being specifically limited to a test of the legal sufficiency of the commissioner’s order, the affidavit upon which the order was issued, and for the purpose of quashing the writ issued thereon.

We are constrained to think that the Common Pleas should have granted the motion of the defendant, prosecutor herein, and for these reasons:

■ The commissioner’s order is based upon the affidavit and that alone, so far as appears. The affidavit alleges a contract between the parties hereto for the erection of a house, according to plans and specifications annexed to the contract, but neither the contract nor the specifications are annexed to the affidavit, and hence the allegations therein, namely, that there is a cause of action, that defendant made a breach in his contract and that the damages were $300 arising out of the breach of contract, are mere conclusions of the deponent and the amount of damages hearsay.

Section 85 of said Practice act requires “proof” to be made of the existence of certain facts. This “proof” means competent proof, legal evidence, testimony that conforms to the fundamental rules of proof. Under this rule hearsay evidence is excluded. This rule is entirely settled in this state, the decisions are fully collected in a decision of the Court of Errors and Appeals. See Jaudel v. Schoelzke, 95 N. J. L. 171.

Tested by this rule, the affidavit in question and the order based thereon are insufficient, and the writ of attachment must be quashed, with costs.

It is accordingly so ordered.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

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    FRANK DEL VECCHIO ET UX., PLAINTIFFS-RESPONDENTS, v. SHUBIN BUILDING COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1927
    Decided November 23, 1927.
    Sale of Real Estate — Recovery of Down Money — Verdict for Plaintiff — Five Grounds for Reversal Considered and Judgment Affirmed.
    On appeal.
    Before Gummebb, Chiee Justice, and Justices Black and Lloyd.
    Eor the appellant, Paul M. Salsburg.

    Eor the respondents, Bolte Tripician.

   Per Curiam.

This suit was brought to recover the sum of $1,500, with interest, the down money, paid under a contract dated August 8th, 1924, for the sale and conveyance of premises known as No. 317 and 319 Caspian avenue, Atlantic City, for $6,500.

The trial resulted in a verdict for the plaintiffs for $1,761.85. The defendant appeals and files five grounds of appeal.

Second, overruling the question to witness: “What was that condition?” This is not argued in the brief of the appellant.

Third, error in the charge. This consists of a copy of more than half a printed page from the charge. It is not pointed out just what is the specific error alleged to have been committed by the trial court. It deals with the question of fraud, of the assignment, agency left as a question of fact to the jury. Grounds of appeal must state the judicial action complained of with sufficient precision to apprise the court and opposing counsel of the injury complained of. O’Brien v. Staiger, 101 N. J. L. 526. Passing this, we find no error in the passage of the charge complained of.

Fourth, the court erred, in that it omitted to charge that the plaintiff must carry the burden of proof by a fair preponderance of the evidence. The defendant can take nothing by this assignment, unless there is a request to charge upon a particular point. Error is not assignable, because the trial judge may have omitted to charge upon such point. Leiferant v. Progressive Agency, 98 N. J. L. 526. This is not argued in the appellant’s brief.

Fifth, the judgment is erroneous. This is too general under the case cited and Burgess v. Noteboon, 100 N. J. L. 116.

First, as to the court’s refusal to nonsuit the plaintiff. Suffice it to say, on this point, as we read the testimony at the time the motion was made, jury questions were involved, the determination of which it was the province of the jury to solve under instructions from the court.

Finding no error in the record, the judgment of the Atlantic County Circuit Court is affirmed.


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    CHARLES W. CONNORS, PLAINTIFF-APPELLANT, v. FRANK BRIDEN, Jr., ADMINISTRATOR, ETC., DEFENDANT-RESPONDENT.
    Submitted May term, 1927 —
    Decided November 23d, 1927.
    Decedents’ Estates — Actions Against Representatives — Suit for Services Rendered Brought Within Six Months of Death— Plaintiff Nonsuited in Court Below — Statute Not Pleaded in Defendant’s Answer — Claim Had Been Presented to Defendant Who Disputed Its Payment — Held, That Answer Must State Specifically Any Defense; Besides, the Two Sections of the Act Must be Read Together and Section 71 Specifically States That the Creditor Shall Bring Suit Within Three Months From the Time of Giving Notice That Claim is Disputed — This is a Waiver of the Six Months’ Exemption From Suit.
    On appeal.
    Before Gujimeiie, Chief Justice, and Justices Black and Lloyd.
    For the appellant, Charles E. Cook.

    For the defendant, Harry 11. Cooper.

   Per Curiam.

This suit was brought by the plaintiff, as the husband of Louise J. Connors, to recover for services rendered to Frank Briden, Sr., at his request, in his lifetime, for nursing and household services, from February 25th, 1923, to August 26th, 1926, alleged to be reasonably worth $4,200.

The trial resulted in a nonsuit on the plaintiff’s opening, on the ground that the suit was brought within six months after the death of Frank Briden, Sr., in violation of the Orphans Court act. 3 Comp. Stat., p. 3832, § 65, and p. 3835, § 71.

Frank Briden, Sr., died August 25th, 1926, the suit was brought January 19th, 1927. This was not pleaded by the defendant in the answer. He denies the truth contained in the first, second, third and fifth paragraphs of the first count of the complaint. The first of these refer to the services and the fifth denies that the claim had been presented.

As to the second count in the answer, he denies the truth of the matters contained in the first, second and third paragraphs of the second count. These refer to the services, but he admits the truth of the matters contained in the fourth and fifth paragraphs of the second count. These allege that the defendant was appointed administrator of Prank Briden, Sr., and that the claim for services was duly presented to the defendant, who disputes the same. This is an admission of that fact. So, the Practice act (Pamph. L. 1912, p. 392, § 40) provides, the answer must specially state any defense, which is consistent with the truth of the material allegations of the complaint, and any defense which, if not stated, would be likely to cause surprise, or would raise issues not arising out of the complaint.

The answer did not state that the suit was prematurely brought, but even so, the two sections above cited must be read together. Section 71 provides, the creditor shall bring suit therefor within three months from the time of giving notice that the claim is disputed. The giving of the notice that the claim is disputed is a waiver of the six months exemption from suits. Cooney v. Little, 98 N. J. L. 361. The brief states the notice that the claim was rejected was received January 13th, 1927. The suit was brought January 19th, 1927.

So, we think the trial court was in error in nonsuiting the plaintiff. The judgment of the Monmouth Court of Common Pleas is therefore reversed.


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    THOMAS LOCKE, AS NEXT FRIEND AND INDIVIDUALLY, PLAINTIFFS, v. McCULLOUGH-GENTLE TRUCKING COMPANY, INCORPORATED, DEFENDANT.
    Submitted May term, 1927
    Decided November 23, 1927.
    Negligence — Injury From Automobile Collision — Verdict for Plaintiff — No Reason Apparent for a New Trial.
    On rule to show cause.
    Before Gum mere, Chief Justice, and Justices Black and Lloyd.
    Eor the plaintiffs, John J. Breslin. Jr.

    For the defendant, Edwards & Smith.

   Per Curiam.

This suit was brought to recover damages for personal injuries to Fred Locke, the infant plaintiff, and incidental damages to his father, Thomas Locke, arising out of a collision of an automobile, in which the infant plaintiff, Fred Locke, was riding, with an automobile truck owned by the defendant, on the Paterson Plank road, on September 1st, 1925.

The trial resulted in verdicts for the infant plaintiff Fred Locke for $1,000, and for the plaintiff Thomas Locke for $800.

A rule to show cause was allowed to the defendant, why a new trial should not be granted.

The defendant writes down four reasons for a new trial. We think there is no sufficient reason for disturbing the verdicts rendered by the jury.

The rule to show cause is therefore discharged.


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    JULIUS ARCHER COHN, PLAINTIFF, v. WILLIAM F. HALLORAN, DEFENDANT. MAX POLISKY AND CLARA POLISKY, PLAINTIFFS, v. WILLIAM F. HALLORAN, DEFENDANT.
    Submitted May term, 1927
    Decided November 23, 1927.
    Negligence — Injury Arising Out of Automobile Collision — Award Held Inadequate — New Trial, Confirmed to Question of Damages.
    On plaintiffs’ rule to show cause.
    Before Gummeee, Chief Justice, and Justices Black and Lloyd.
    Eor the plaintiffs, Francis A. Gordon.

    Por the defendant, Collins & Corbin.

   Per Curiam.

These suits were brought to recover damages for personal injuries and damages to an automobile arising out of an automobile collision on June 25th, 1926. They were tried together. The trial resulted in verdicts for the plaintiffs, as follows: Julius Archer Cohn, six cents; Max Polisky, $662.35; Clara Polisky, his wife, $250. A rule to show cause why a new trial should not be granted upon the question of damages only, was allowed the plaintiffs, on the ground that the damages awarded by the jury are insufficient and inadequate.

Our reading of the briefs and the transcript of the evidence taken at the trial lead us to the conclusion that the damages awarded by the-jury to the plaintiffs are inadequate.

The rule is therefore made absolute as to damages only, and the new trial will be confined to the 'question of damages.


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    SUSIE BROWN, PETITIONER-RESPONDENT, v. PATERSON CENTRAL MARKET ASSOCIATION, RESPONDENT-PROSECUTOR.
    Submitted May 13, 1927
    Decided November 11, 1927.
    Workmen’s Compensation — Alleged Employe was Engaged in Gathering Refuse in a Market — Used His Own Truck — He was Injured While at Work and Died From the Injury— Employer Alleged He was an Independent Contractor — Evidence Showed That He was Under the Direct Instructions of the Owners of the Market, That They Directed His Actions — There was No Contract Which by Its Terms Made Him an Independent Contractor — The Fact That He Supplied His Own Truck Did Not Make Him so — Award Affirmed.
    On writ of certiorari.

    Before Justices Teenchabd, Kalisch and Katzenbach.
    Eor the prosecutor, James J. Farley.

    Eor the respondent, John O. Benson.

   Per Curiam.

This ease is presented on a writ of certiorari. The writ is directed to the judge of the Court of Common Pleas in and for the county of Passaic. The writ brings up a judgment affirming an award in a workmen’s compensation case. The respondent, Susie Brown, applied to the workmen’s compensation bureau for an award against the Paterson Central Market Association, a corporation, for the death of her husband. Frederick Brown, in the year 1921, was hired by the market association, through its president and general manager, Mr. Terwiliger, to gather up the refuse of the market and cart it to the garbage plant at Paterson, in which city the property of the market association was located. Brown used a truck for this purpose. The truck belonged to him. On September 5th, 1925, while engaged in gathering up in the market the refuse, he stepped oil a nail. Iodine was applied to the wound. The deceased left for his home where his wife bathed his foot. He went to the Barnert Hospital in Paterson for treatment. He returned to his home. Later he was removed to the hospital. Blood poisoning had set in. He died as a result of this injury on September 17th, 1925. The president and general manager of the market association was notified on September 11th, 1925, of the accident.

The deceased left a widow, the petitioner, and two minor children, one four years of age and the other one year old. Brown had received $35 per week. The market association made payments of this sum each week after the accident to the widow until October 24th, 1925. Later, the application was made to the workmen’s compensation bureau. An award was made which was affirmed by the Passaic County Court of Common Pleas on December 11th, 1926. There is no question that the injury was received as stated, so that if Brown was an employe of the market association he died from an injury arising out of and in the course of his employment.

The defense of the market association is that Brown was an independent ■ contractor. This defense is not, in our opinion, sustained by the evidence. The testimony shows that Brown was hired by Terwiliger some four years before the accident. Terwiliger showed Brown what to do and gave him instructions from time to time to the time of his injury respecting the work of removal of the refuse. He was given a minimum wage the first year. This was increased during the four years to $35 per week. He was paid weekly. His name appeared on the weekly payroll which was made out and delivered to the treasurer. From about July 1st, 1925, to the date of the accident he was earning $35 per week. Terwiliger testified that if Brown had not performed his work he was subject to immediate discharge. His employment was for an indefinite period of time. He devoted his entire time to the work he was directed to do. There was no contract, oral or written, which made him by its terms an independent contractor. No contract price for the work was ever agreed upon between the parties. The relationship was clearly that of employer and employe. The fact that Brown used, in the removal of the refuse a truck did not make him an independent contractor. It frequently happens that under the terms of an employment an employe pays his expenses or uses something belonging to him, as an automobile or conveyance, for the performance of his work.

In Lewis v. National Cash Register Co., 84 N. J. L. 598, one Kaler was engaged by defendant as a sales agent, under a contract providing that he should devote his entire time to the business of the company, should conform to its rules, and might employ other salesmen to assist him, with the consent of the company, and should receive a fixed percentage on sales. It was held that such agent is a servant of the company and not an independent contractor though the contractor required him to pay his own expenses.

Similar cases could be cited, but we think it unnecessary to do so. The evidence contained in the record is ample to sustain the finding of the said Court of Common Pleas that the relationship between the prosecutor and the deceased was that of master and servant.

The judgment of the Court of Common Pleas in and for the county of Passaic is affirmed, with costs.


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    JAMES F. CUNLIFFE, BY JAMES CUNLIFFE, HIS NEXT FRIEND, PETITIONER-RESPONDENT, v. DESLAURIERS COLUMN MOULD COMPANY, RESPONDENT-PROSECUTOR.
    Submitted May 13, 1927
    Decided November 11, 1927.
    Workmen’s Compensation — Injury Resulting in Blindness — Employe Receiving an Injury in 1923 and Again in 1924 — Commissioner Allowed an Amendment to Petition, Since Physicians Could Not Say Which Accident was the Direct Cause of the Blindness — Employer Had a Different Insurance Carrier in 1924 From the One in 1923 and That the Carrier of the Former Year was Accordingly Precluded From Defending —Held, That Employe Need Look Only to the Employer, His Case Should Not be Prejudiced by a Change In Carriers— In This Case There is a Specific Time, but in the Alternative, it is One of Two Dates — The Statute Is Remedial and Must be Liberally Construed.
    On writ of certiorari.

    Before Justices Tbehchard, Kalisch and Katzenbach.
    Eor the prosecutor, Edwards & Smith.

    For the respondent, Erwin & Erwin.

   Per Curiam.

This case is before us on a writ of certiorari directed to the Court of Common Pleas in and for the county of Hudson. The writ .brings up the record of proceedings instituted by James Frederick Cunliffe against Deslauriers Column Mould Company, a corporation, to recover compensation under the Employers’ Liability act. Cunliffe was an employe of the company. He was operating a grinding machine. In grinding a piece of steel a particle of the steel passed into his eye. It became necessary to remove the eye. The workmen’s compensation bureau granted Cunliffe compensation, medical expenses and a counsel fee. The company appealed the award to the Court of Common Pleas of Hudson county. The award was affirmed. The case is now before us under the writ of certiorari.

There is no question but what the accident arose out of and in the course of the employment. The only contention of the prosecutor is that the commissioner of the compensation bureau erred in permitting the petition of Cunliffe to be amended during the hearing. In the original petition it was stated that the accident occurred on February 29th, 1924. The determination of the workmen’s compensation bureau fixed this as the date of the accident. It appeared, however, that there was a prior accident of the same nature on July 2d, 1923. The commissioner allowed an amendment of the petition so as to make it read that the accident took place either on July 2d, 1923, or in the alternative on February 29th, 1924. It is the propriety of this amendment that is the sole point in controversy. Notice of the injury of July 2d, 1923, was given to the company. The reason for the amendment was that the doctors produced could not say as to which piece of steel was the cause of the eye’s destruction, the one entering the eye on July 2d, 1923, or the one entering the eye on February 29th, 1924.

The argument of the prosecutor is that if the accident occurred on July 2d, 1923, the prosecutor would have to be reimbursed by the Maryland Insurance Company. If the accident took place on February 29th, 1924, then the Independent Indemnity Company would have to reimburse the prosecutor for the amount of the judgment under an insurance policy held in that company by the prosecutor. The argument of the prosecutor is that the defense was undertaken by its insurer on February 29th, 1924, and that a change of the date of the accident did not permit the other insurer (Maryland Insurance Company) to appear and cross-examine the witnesses produced at the hearing.

It seems to us that the answer to this proposition is that the employe has only to look to the employer for compensation. His case ought not be prejudiced by a change of insurance companies. The present case is not like that of Smith v. International High Speed Steel Co., 98 N. J. L. 574, or Liondale Bleach Works v. Riker, 85 N. J. L. 427, relied on by the prosecutor. In those cases no specific time could be alleged or fixed'as to when the accident occurred. In the present ease a specific time is fixed but the specific time is in the alternative. It is one of two dates.

The statute is remedial. It is liberally construed. The power of amendment is one that is frequently exercised by a court. It seems to us the allowance of the amendment was discretionary. It could not be said that under the circumstances presented where there was a conflict of medical testimony as to which accident had caused the loss of the eye that there had been an abuse of discretion by the commissioner in allowing the amendment. Not to have allowed it might result in the defeat of a meritorious claim.

- The judgment of the Court of Common Pleas of the county of Hudson is affirmed, with costs.


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    WILLIAM DEFFUR, JOSEPH DEFFUR AND PETER DEFFUR, PARTNERS, TRADING AS DEFFUR BROTHERS, PLAINTIFFS-RESPONDENTS, v. MICHAEL J. TANSEY, DEFENDANT-APPELLANT.
    Submitted May term, 1927
    Decided November 25, 1927.
    Contracts — Action for Balance Due for the Construction of Houses — Verdict for Plaintiff for a Little More Than Half of Claim — There was a Counter-claim for Delay in Completion — No Error Found in Any of the Charges of the Court and Judgment Affirmed.
    On appeal from Essex Circuit Court.
    Before Gummeee, Chief Justice, and Justices Black and Lloyd.
    Eor the appellant, Kraemer & Siegler.

    Eor the respondents, M. Francis Keating.

   Per Curiam.

This was an action for a balance claimed to be due for the construction of houses at Irvington. The defendant was the owner of ground on Sixteenth avenue, on which he wanted to have constructed two six-family houses, and he entered into a contract with the plaintiffs for their erection. The contract called for the completion of one on October 1st and the other on October 15th. The case went to the jury under instructions which in part consisted of affirmance of certain requests submitted by the plaintiffs. There was a verdict for the plaintiffs for $1,800, being a little more than one-half of their claim. From the consequent judgment the defendant appeals, assigning as grounds for reversal that the trial judge erred in charging certain requests submitted by the plaintiffs.

The defense in the case consisted of a counter-claim for delay in completion, and for certain defects in performance of the contract.

The requests which were charged are as follows:

7. “An owner may waive the time for performance or extend it. Such waiver or extension may be express or implied. If you find that notwithstanding that the contraed work was not done within the contract, and you also find that the defendant made a payment on account of the final payment called for by the architect’s certificate on the house involved in plaintiffs’ claim, which payment was made after the issuance of such certificate, you may find that the defendant waived performance within the contract time.”

8. “If you find that there was an extension of time to perform, such extension fixing no time to perform, such extension was for a reasonable time.”

16. “If you find that the alleged loss of rentals, claimed by defendant, may have been due to causes other than the acts or omissions of plaintiffs, in that case, such alleged loss of rentals is speculative, remote, and not proximately due to plaintiffs’ alleged breach of contract, and defendant is not entitled to recover therefor.”

17. “If you find that the completion of the buildings was delayed through the failure of Mr. Tansey to make timely payments according to the contract, then he cannot now complain of such delay, and recover damages therefor.”

We fail to see whether there was error in any of these instructions. The first one required submission to the jury of the question of waiver based on the fact that the defendant made a payment on account of the final payment called for by the architect’s certificate. Such payment constituted some evidence from which the jury could infer waiver of completion within the period fixed by the contract. The remaining requests were sound and need no discussion.

The judgment is affirmed.


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    THEODORE E. WILSON, PROSECUTOR, v. THE BOROUGH OF SEA GIRT, NEW JERSEY, AND FRED W. COLLIER, RECORDER OF THE SAID BOROUGH OF SEA GIRT, NEW JERSEY, RESPONDENTS.
    Argued May 3, 1927
    Decided November 11, 1927.
    Certiorari — Municipalities—Ordinances—Certiorari to Determine Validity of an Ordinance Requiring a License as a Condition Precedent to the Carrying on of a Certain Business, is Valid —Record Shows No Conviction for Violation — Held, Validity of an Ordinance Affecting the General Public Cannot be Challenged by Certiorari Unless the Prosecutor Shows Some Injury Peculiar to Himself.
    On application for a writ of certiorari. .

    Before Justices Trenchard and Katzenbach. •
    Eor the prosecutor, Halsted H. Wainright.

    Eor the respondents, Durand, Ivins & Carton.

   Per Curiam.

This is an application for a writ of certiorari. The record as presented to us contains a copy of a summons commanding Theodore ,E. Wilson to appear before the recorder of the borough of Sea Girt, on March 14th, 1927, at ten a. m., in the Municipal Building court room, in an action instituted upon the complaint of John B. Cornelius for the violation of section 1 of an ordinance of the borough of Sea Girt. The ordinance referred to is an ordinance fixing license fees for mercantile and other businesses. A copy of the complaint follows. It alleges that from March 16th, 1926, and during the remainder of the year of 1926, Theodore E. Wilson conducted the business of contractor, jobber and builder, furnishing labor and material within the limits of the borough of Sea Girt, &c., without having first obtained a license therefor, in violation of section 1 of the ordinance. The complaint then sets forth the entire section 1. Under paragraph 6 of subdivison C, there appears the following: “Contractors, jobbers and builders, furnishing labor and materials, a license fee each of $50.” The complaint was sworn to before the recorder. This concludes the record.

The writ is sought for the purpose of testing the validity of the ordinance, the prosecutor contending that under the statute the borough has no power to impose a license fee upon one engaged in his business, and the ordinance is faulty in that it does not declare that the license fees sought to be imposed are for the purpose of revenue.

The record shows no conviction of the prosecutor. The case of Unger v. Fanwood, 69 N. J. L. 548, holds that the validity of an ordinance affecting the general public cannot be challenged by certiorari unless the prosecutor shows some injury peculiar to himself. Mr. Justice Van Syckel, who wrote the opinion in this case, said: “It is the established rule that a right of action does not exist in favor of one who is only damnified as one of the public in common with his fellow-citizens.”

In Hamblet v. Asbury Park, 61 N. J. L. 502, Mr. Justice Garrison, in delivering the opinion of this court, said : “A conviction alone can furnish evidence that the ordinance affects the prosecutor.”

In Powell v. Cape May, 5 N. J. Mis. R. 113, it was held that where there was no judgment in a prosecution for violating a city ordinance prohibiting peddling of farm produce without a license there was nothing for review in the record and the certiorari to review the conviction would be dismissed.

Eor those reasons we have reached the conclusion that the writ should be denied, with costs. In the statement of points of the prosecutor annexed to the record appears the words “upon the argument of the rule to show cause issued in this matter the prosecutor will rely upon the following points.” No rule to show cause is contained in the record. If a rule was allowed the same will be discharged with costs to the respondents.


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    OLGA ZECCA, PROSECUTOR, v. DUNCAN C. SMITH, RECORDER OF THE BOROUGH OF ROCKAWAY, RESPONDENT.
    Submitted May 13, 1927
    Decided November 11, 1927.
    Disorderly Persons — Ordinances—Convictions—Alleged Disorderly Acts Appear to Have Been Committed in the Private House of Complainant — To Come Within the Provisions of the Ordinance the Offense Must Have Been Committed in a Street or Public Place — Record Discloses the Commission of No Such Offense — Conviction Set Aside.
    On writ of certiorari.

    Before Justices Tbenchaed, Kalisoh and Katzenbach.
    Eor the prosecutor, Edward A. Walsh.

    For the respondent, King & Vogt.

   Per Curiam.

This case is before this court on a writ of certiorari. The writ brings up the record of the conviction of the prosecutor, Olga Zecca, as a disorderly person. The complaint against Olga Zecca was made by Ida Peluso. It states that Ida Peluso is informed and verily believes that on the 14th day of September, 1926, in the borough of Eockaway, one Olga Zecca, of said borough, was a disorderly person within the meaning and intent of the borough- ordinance concerning drunk and disorderly persons in that the said Olga Zecea caused a disturbance in the home of the said Ida Peluso and did use obscene language, curse and swear. Upon presentation of the complaint to the borough recorder, a warrant was issued for Olga Zecea. She was apprehended, tried and convicted of violating section 2 of the borough drunk and disorderly persons ordinance in that she did cause a disturbance in the home of Ida Peluso and did use obscene language, curse and swear. She was fined $10 and directed to pay the same and costs. A bond was given by the prosecutor and the writ of certiorari, allowed to review the conviction.

It appears from the state of the case that Mrs. Zecea visited Mrs. Peluso. Beside the two women there were present on this occasion Steve Speronne and Joseph Shimens. The testimony of Mrs. Peluso and Shimens was to the effect that Mrs. Zecea called Mrs. Peluso a whore and a bum, and applied to her other unseemly epithets. Speronne testified that Mrs. Peluso told Mrs. Zecea to get off of her property. This command was somewhat interlarded with oaths. There was a fight in which each called the' other names not necessary to mention. Mrs. Zecea denied that she had used the language attributed to her. This constituted the evidence.

There are ten reasons assigned for reversal of the conviction. It seems unnecessary to consider all of these reasons. The record of the conviction does not show a violation of any ordinance or statute. Section 2 of the ordinance of the borough of Rockaway referred to prescribes that any person or persons who shall in any street or place in the borough of Rockaway make use of obscene language, curse and swear, &c., shall be subject to a fine of $10, &e.

The alleged disturbance and exchange of: compliments admittedly occurred in the home of Mrs. Peluso. It was not in a public street or place. The language, &c., must have been used, in order to come within the provisions of the ordinance, in a street or place, that is, a public place. In the case of Anderson v. City of Camden, 52 N. J. L. 289, it was held that a complaint that a person applied to another a profane epithet at the latter’s residence does not charge a violation of an ordinance of Camden city providing for the conviction of all persons who shall make, aid, countenance or assist in making any improper noise, riot, disturbance or breach of the peace on the streets or highways, or elsewhere within the city. The complaint was faulty as it stated that the disturbance occurred in the home of Mrs. Peluso. It was insufficient and failed to charge a violation of the ordinance.

The record of the conviction does not state a conviction of any offense under the ordinance. This is necessary. Salter v. Bayonne, 59 N. J. L. 128. This case held that the record of the conviction must show on its face every necessary ingredient of the offense. It must set out the offense with which the offender is charged, the names of the witnesses, and sufficient of the evidence to show that the offense was committed, upon what evidence the conviction was had, and upon what evidence the judgment was imposed. This the conviction in the present case fails to do. It does not set out with sufficient particularity the offense. No witnesses are named. No evidence is recited to show that the offense was committed.

The conviction is set aside,' with costs.


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    JOHN SCHLENKER, Jr., BY NEXT ERIEND, ET AL., v. ABRAM L. SUSSMAN.
    Decided December 1, 1927.
    Negligence — Boy Run Down by an Automobile — Injuries Serious —Award of $100 to Father, and Like Amount to Boy, Held Inadequate.
    On plaintiffs’ rule to show cause.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.

      For the rule, Francis A. Gordon.

      Contra, Samuel D. Williams.

   Per Curiam.

This action was brought by a boy, sixteen years old and his father, to recover compensation for injuries received by the son in being run down by the auto car of the defendant while he was crossing Jersey street, in the city of Elizabeth, on the evening of November 3d, 1925, and for losses and expenses incurred by the father as the result of the injuries to his son. The jury rendered a verdict in favor of the boy, assessing his damages at $100, and awarded the father a like amount. The contention made before us is that these awards are manifestly inadequate.

The proofs showed that the boy has suffered a transverse fracture of the left tibia, a little above the ankle, and some abrasions on the knee; that he suffered much pain as the result of these injuries; that he was in the hospital between three and four weeks, and was not able to return to school for over three months. The evidence also disclosed that the expenses incurred by the father as the result of the boy’s injuries amounted to $84, and that he was deprived of the earnings of the boy for work done by the latter after school hours, and averaging $6 a week, for nearly six months.

The gross inadequacy of the awards by the jury, in view of the facts recited, is clear.

The rule to show cause will be "made absolute, and the new trial will be limited to the matter of damages only.


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    GLADYS SULLIVAN, BY NEXT FRIEND, AND JOHN T. SULLIVAN, v. BRADLEY BEACH BATHING COMPANY.
    Decided December 1, 1927.
    Negligence — Injury to Young Girl in a Bath House — Verdict for Father and Against Girl — Both Sides Ask for New Trial— Rule Allowed in Each Case.
    On plaintiffs’ rule to show cause. On defendant’s rule to show cause.
    Before Gummeee, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, Theodore D. Parsons.

    For the defendant, John S. Ap-plegate & Son.

   Per Curiam.

This suit was brought by Gladys Sullivan, a young girl, to recover compensation for personal injuries received by her through a fall in the bathhouse of the defendant company, and also by her father to recover expenses incurred by him by reason of his daughter’s fall. The trial resulted in a verdict in favor of the father for $1,050, and against the daughter and in favor of the defendant company as to her claim. The defendant seeks to have a verdict set aside so far as it awarded damages to the father and the plaintiffs seek to have it set aside so far as it denied compensation to the daughter.

In view of the fact that both the plaintiffs and defendant concur in the view that the verdict as a whole is erroneous, and because it is manifestly self-contradictory, the rules to show cause will each of them be made absolute.


text:
    FREDERICK McGILLVRAY, PROSECUTOR, v. THE COMMON COUNCIL OF THE CITY OF LINDEN ET AL., RESPONDENTS.
    Argued May 3, 1927
    Decided November 11, 1927.
    Municipalities — Officers — Tenure — Street Commissioner Appointed for a Definite Term — Removal by Council Through Repeal of Ordinance Creating Office — Repealing Ordinance Recited the Lack of Need of Such an Office, but Immediately Appointed an “Inspector of Streets” — Commissioner was an Exempt Fireman — Held, That the Passage of the Repealing Ordinance was Political and Unlawful, and That the Prosecutor is Protected in His Office by Chapter 212 of the Act of 1911 Relating to Exempt Firemen.
    On writ of certiorari.

    Before Justices Trenchard and KAtzenbach.
    For the prosecutor, James B. Furber and Samuel Koestler.

    For the respondents, WMUemore & McLean.

   Per Curiam.

This case is before us on a writ of certiorari. The writ brings up an ordinance passed by the common council of the city of Linden on February 21st, 1927. On March 4th, 1926, the city of Linden had adopted an ordinance creating a street department and a street commissioner. The prosecutor of the writ, Frederick McGillvray, was appointed to the office of street commissioner for a definite term to expire December 31st, 1928. The November election in 1926 resulted in a political change in the city of Linden. Up to the November, 1926, election a Eepublican faction known as the McGillvray faction was in control. After the November, 1926, election a Eepublican faction known as the Winans faction became dominant.

The ordinance of February 21st, 1927, repealed the ordinance creating the office of street commissioner. The repealing ordinance recites that the office of street commissioner is not a necessary office required for the economical and efficient operation of the city, of Linden, and that the payment of salary to the street commissioner is a needless expense. After the passage of the repealing ordinance one John Mesler, by resolution, was appointed inspector in the engineer’s department at a salary of $200 per month. He was put into control over the streets.

The prosecutor contends that what was done was a mere subterfuge to get him out of his office as street commissioner. He insists in the first place that he is an exempt fireman and is protected under chapter 212 of the laws of 1911. The third section of this act provides that it shall not be lawful for any common council to abolish any position or office held by any exempt fireman for the purpose of terminating his service.

The testimony contained in the record convinces us that politics was the motive for the passage of the ordinance of February 21st, 1927. It was aimed at the prosecutor. There is no office in a city more necessary in these days of dense traffic than the office of street commissioner. The office of street commissioner was not, in our opinion, abolished for the reasons given in the flowery recitals contained in the preamble of the ordinance. The ordinance was enacted to deprive the leader of the losing faction of the office which he held. The one appointed under the title of inspector in the engineering department performed substantially the same work and received almost the same salary. It was the same office. The title was merely changed. A change of raiment does not change the man. A change in the title of an office-does not of itself create a new office. The law cannot be evaded by the method pursued in the present case.

There are numerous cases in this state which condemn the practice followed in the case under consideration. Carroll v. Bayonne, 3 N. J. Mis. R. 308, is in point. We find as a fact that the action of the city counsel in passing the repealing ordinance was political and unlawful, and that the prosecutor is protected by section 3 of chapter 212 of the laws of 1911 as an exempt fireman. The repealing ordinance passed February 21st, 1927, is set aside with costs to the prosecutor.


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    HARRY R. YOUNG, TO THE USE OF HARRY R. YOUNG AND MORRIS W. KATZEN, PARTNERS, TRADING AS HARRY R. YOUNG AND MORRIS W. KATZEN, PLAINTIFF-RESPONDENT, v. JAMES R. CRUMBIE, DEFENDANT-APPELLANT.
    Argued May 5, 1927
    Decided November 25, 1927.
    Sale of Real Estate — Agent’s Commissions — Agent Entered Into Contract for a Limited Time to Sell Property — On Day of Expiration of Limit Agent’s Partner Produced a Purchaser —Owner Refused to Deal Through Partner on Ground That He Did Not Know Him in Transaction — Verdict Directed in Court Below for the Plaintiffs — Held, Error, That a Broker Authorized to Sell Property is Ordinarily Without Authority to Delegate His Powers to Another.
    On appeal from the Atlantic County Circuit Court.
    Before Guam bee, Chief Justice, and Justices Black and Lloyd.
    For the appellant, Louis A. Repello.

    For the respondent, Ulysses G. Styron.

   Per Curiam.

Plaintiff obtained a judgment in the Atlantic Circuit Court for commissions claimed to have been earned under a written employment, the pertinent part of which reads:

“Dear Mr. Young:

Upon representation by you that you have a party interested in the purchase of my Boardwalk property in Atlantic City, I will agree to give you a thirty-day option from this date to secure a purchaser for this property on the following terms and conditions:

I hereby agree to allow you a commission of three per cent, as allowed by the real estate board of Atlantic City, this commission to be paid only if sale is completed as provided above, and to be paid only at final settlement.”

The contract was dated February 15th, 1926.

Whether Young had a party interested at the time does not appear, but shortly after making the agreement he called on Crumbie and told him he had a purchaser, but this came to nothing and Young went to Cuba, leaving the matter in the hands of Morris Katzen, his partner. On the last day of the agreement Katzen took Louis Satinov to Crumbie as a purchaser, and the latter made formal tender of performance under its terms. This Crumbie refused, declaring that he did not know Katzen. The action was then brought by Young to the use of himself and Katzen, trading as partners, and on the trial a verdict was directed by the court in favor of the plaintiff for $15,000. To this ruling an exception was taken by the defendant.

Among the grounds of appeal is one that the contract was presonal to Young and that Crumbie was not obliged to deal with Katzen. We think the direction of a verdict was error. A broker or agent authorized to sell property or to procure a purchaser is ordinarly without authority to delegate his powers to another. 2 Corp. Jur. 686, and cases cited. There is nothing in the ease to indicate that it is an exception to the rule.

The judgment is reversed.


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    MADELINE DECKER ET AL., RESPONDENTS, v. ISADORE MILLER ET AL., APPELLANTS.
    Negligence — Injury to Tenant Through an Accident Resulting From Another Tenant Using a Common Trapdoor — Proofs Disclose No Evidence That Trapdoor was Out of Repair or Defective, or was Improperly Balanced, as Alleged in Complaint — Whether Location of Ladder Reaching to Trapdoor was Enough to Legally Constitute Negligence Not Necessary to Determine, Since Proofs, Failing to Support the Complaint, the Motion for a Nonsuit or Direction of Verdict Should Have Been Granted.
    Submitted May term, 1927
    Decided November 25, 1927.
    On appeal from the Hudson County Circuit Court.
    Before Gummebe, Chief Justice, and Justices Black and Lloyd.
    Eor the appellants, Collins & Corbin.

    Eor the respondents, Brenner & ICresch.

   Per Curiam.

The defendants appeal from a judgment against them in the Hudson Circuit Court. The action was one lor damages for injuries occasioned by the fall of part of a trapdoor on the hand of the plaintiff Mrs. Decker.

Defendants below were the owners and plaintiffs below were the tenants of a two-story tenement house in Bayonne containing two families on each floor. Plaintiffs occupied one of the second story apartments, and on the roof over the hall adjoining their apartment there was a trapdoor or scuttle to which all tenants had access in ease of emergency. On May 16th, 1925, while Mrs Decker was standing in the hall, her co-tenant on the same floor went to the roof to locate a fire. To do so he had to raise the trapdoor. As he raised the trapdoor he lost control of it and it fell on the skylight, breaking the glass, and the broken parts fell on Mrs. Decker’s hand, cutting it.

The court submitted the case to the jury on the grounds of negligent construction and failure to comply with the Tenement House act, and the jury returned verdicts for the plaintiffs.

The grounds of appeal are that the court improperly refused to grant a nonsuit or to direct a verdict for the defendant, and that a portion of the charge was erroneous.

The complaint alleges that the trapdoor was permitted to become out of repair and in a dangerous condition, and to this was later added an amendment averring that it was not properly balanced so as to be easily opened.

Examination of the proofs fails to exhibit any evidence that the trapdoor itself was out of-repair or defective, or that it was not properly balanced. But it is urged by the respondent that the ladder leading to the roof was not erected at an angle of sixty degrees as required by the Tenement House act of 1904 (page 107, amended in 1905, page 170); that on the contrary, it was nearly perpendicular and that in consequence one attempting to reach the roof would be required to devote a part of his strength to maintaining his balance on the ladder to the detriment of his physical ability to raise the trapdoor. Without determining the legal sufficiency of this factor to constitute negligence or passing on its casual relation to the accident, it is sufficient to say that the case presented no issue based thereon; the complaint is directed wholly to the trapdoor itself and its fittings, and not to any fault in the location or placing of the ladder. On this ground the motion for nonsuit or for a direction should have been granted.

The judgment is reversed.


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    JOHN EGGIE AND JOSEPH T. EGGIE, FORMERLY PARTNERS, TRADING AS EGGIE BROTHERS, PLAINTIFFS-PROSECUTORS, v. JOSEPH L. MONEY, DEFENDANT-RESPONDENT.
    Submitted May term, 1927
    Decided November 25, 1927.
    Contracts — Purchase of Truck Under Lease Agreement — Default in Payment of Serial Notes and Seizure of Truck — Suit for Amount Due and Counter-claim for Damages for Illegal Seizure — Question Turned on Whether Proper Notice Had Been Given Defendant — Verdict for Defendant, Awarding $300 on Counter-claim — On Rule to Show Cause, Held That Verdict Will Not be Disturbed as to Proof of Notice, but Award Must be Reduced, the Proofs Showing Damages of Nine Dollars Only.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    Eor the rule, Robert J. Tait Paul.

      Contra, A. Moulton McNutl.

   Per Curiam.

The defendant purchased from the plaintiff under a lease agreement' a White dump truck for the sum of $4,100. He made an initial payment and gave serial notes for the balance. The first and second notes were not paid at maturity, and the plaintiff seized the truck and instituted suit for the amounts due on the notes that had matured, for a balance still due on the initial payment and for a small item for materials furnished.

The defendant filed an answer alleging that the plaintiff had unlawfully seized the truck and that in consequence the consideration for the notes had failed, and also filed a counter-claim for damages for the taking of the truck. There was no doubt of the default by the defendant in making the payments due under his agreement. The agreement, however, provided that “upon default of any installments of rental, the lessee shall, on demand of the lessor, forthwith deliver the machine to the lessor; and should the lessee fail or refuse to deliver the machine aforesaid, the lessor shall have the right without notice or demand to terminate the lease and take possession of the machine."

The right of the plaintiff to take possession of the machine turnéd upon whether demand in accordance with the agreement had ever been made. There was a verdict in favor of the defendant in the sum of $300 on his counter-claim, and a rule was allowed to the plaintiff to show cause why a new trial should not be granted.

The reasons urged for a new trial are that the verdict was against the weight of the evidence on the question as to whether a demand had been made, and that there was. no evidence upon which the verdict in favor of the defendant in the sum of $300 could be sustained.

The verdict will not be disturbed in so far as the question of a demand is involved. While one of the plaintiffs testified that the defendant was notified that the plaintiff must have either the truck or the payment, this was hardly an unequivocal demand for the truck, and even if it'were sufficient it is denied by the defendant.

As to the counter-claim we find no evidence justifying the award made to the defendant by the jury. When the truck was seized it contained a load of cinders which was valued at $9. There was no other proof of damage to the defendant by the unlawful seizure of the truck. The result we reach is that the verdict cannot be sustained beyond the value of the cinders. If the defendant will accept a reduction of the amount of the verdict to $9, the rule will be discharged; otherwise it will be made absolute.


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    ANDREW ZAVADA ET AL., RELATORS, v. ST. JOHN THE BAPTIST SLOVAK ROMAN CATHOLIC SICK AID SOCIETY AND MICHAEL BEDNARCIK, DEFENDANTS.
    Submitted May 13, 1927
    Decided November 11, 1927.
    Corporations — Membership—Fraternal and Religious Benefit Societies — Relators Had Been Expelled for Failure to Abide by the By-laws — Relators Appeared Not Interested in the Society Beyond the Recovery of Their Money Contributions —Held, That When One Joins a Society He Agrees to Observe the By-laws, That Relators Had Failed to do This,, That Proceedings for Their Expulsion Proceeded in Due Course, and That No Reason Is Seen Why They Should Not Abide by the Result Their Actions Brought Upon Themselves.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Tkbnchaed, Kaltsch and Katzenbaoh.
    Por the relators, Feder & Binzler.

    For the defendants, Weinberger & Weinberger.

   Per Curiam.

This case is presented in the form of a rule to show cause why a writ of mandamus should not be issued out of this court to reinstate the relators, Andrew Zavada and sixty-one others, as members of a society known as St. John the Baptist Slovak Koman Catholic Sick Aid Society. The present litigation has been preceded by other suits between the same parties, growing out of the expulsion of the relators from the said society. On February 14th, 1926, the relators were expelled from the society because of their failure to comply with paragraph 1 of article 6 of the by-laws of the society, which obliged every member to attend each year the divine service held on the anniversary of the patron, St. John the Baptist, and with paragraph 8 of article 6, which required' every Greek or Roman Catholic member- to confess and participate in Holy Communion every year at Easter, administered by a Greek or Roman Catholic priest, who belongs to the Roman Catholic Diocese, to be evidenced by a confession card. The fine for violation of paragraph 1 of article 6 was one dollar, and of paragraph 8 of article 6 was $5.

There are two classes of relators, one composed of fifty-eight members, and one composed of three members. The only distinction, which is immaterial, is that the three members attended confession but did not produce confession cards.

It appears from the testimony that the trouble arose because of the relators’ regard for a priest of the Roman Catholic faith who had been excommunicated, and after his excommunication had established a church in which many of the relators became parishioners. The evidence is clear and convincing that either-or both of the provisions of the by-laws mentioned were broken by the relators; that fines were imposed; that the fines were not paid, and the members were legally expelled. What the relators want is to obtain part of the money which they have paid into the treasury of the society. This is freely admitted by those of the relators who testified. Their testimony is to the effect that they do not care what becomes of the society; that they did not want to have anything to do with the members of it, and all that they want is to get the money they paid into the society.

When a member joins a society he agrees to observe the by-laws of the society. This the relators failed to do. The proceedings for their expulsion proceeded in due course. We see no reason why they should not abide by the result which their own actions brought upon them.

The rule to show cause is discharged, with costs.


author: Backes, V. C.

text:
    Margaret A. Rielly, complainant, v. P. Rielly & Son, a corporation, defendant.
    [Decided December 6th, 1927.]
    A receiver's duty is to exercise ordinary care and prudence and to deal as faithfully with the assets as he would with his own. More than that is not demanded by law.
    On exceptions to receiver’s account.

      Mr. Israel B. Green, for the exceptant.

      Messrs. McCarter & English, for the receiver.
   Backes, V. C.

P. Rielly & Son, a corporation, voluntarily dissolved, and thereafter the Fidelity-Union Trust Company was appointed receiver. To the receiver’s final account stockholders and creditors filed exceptions.

The company, and its owners before its incorporation, were engaged in the leather manufacturing business in Newark for many years, and prospered. It carried on too long after the leather business declined, with the usual result. Its plant, which was large, was perhaps as old as its business and as decayed. Shortly after the receiver was appointed there came a pronounced slump in the market for factories, especially leather factories; there was no market. The receiver sold the personalty, collected the debts and held on to the plant awaiting a demand for that class of property. A revival began in 1923 and the plant was sold at public auction, with the court’s approval. The plant had been appraised at $174,-500. In the interval a part had been sold for $6,250. The remainder brought $60,600. There was a mortgage on the property for $45,000.

By one of the exceptions it is sought to charge the receiver with $107,650, the difference between the appraisal and the sum realized, and by another exception to charge it with $74,437.34, expended by the receiver in upkeep, for interest on the mortgage, taxes, insurance premiums, &c., during the three years and eight months which elapsed between the receiver’s appointment and the consummation of the sale. The complaint now is that the receiver’s duty was to sell the real estate, reasonably forthwith; and corollarily, that the outlay for maintenance during the delay was wasteful. But there was no market for or opportunity to dispose of it. Prominent real estate dealers in Newark had the property in hand but to no avail, and to have offered it for sale at public auction would have been abortive. That there was ,no market is established, and it is not understood that it is questioned. That being so, the exceptants argue, in effect, that the receiver should have got rid of the plant, abandon it if necessary, to save the cost of upkeep. In retrospection and result, the contention is plausible, but not in the then prospective, during the receiver’s administration. The sum of the appraisal alone would forbid a hasty sale or an abandonment. However, had either course been taken, as it now is insisted it should have been, the cry would be that the property had been sacrificed, and with emphasis, if it had again come into its own. Though there was at no time an imminent prospect of sale, the receiver was justifiably hopeful that eventually it would come to pass, and profitably, and, in the dilemma, the only reasonable method of protecting the estate was pursued, and, although it resulted in disappointment, the receiver is to be commended, not condemned. It could not let go, and in holding on it necessarily had to make the expenditures. A receiver’s duty is to exercise ordinary care and prudence and to deal as faithfully with the assets as he would with his own. More than that is not demanded by law. The same misfortunes, under similar perplexing coreumstances, are not infrequent in attempting to conserve individual holdings. Only recently a large leather concern in Newark was declared insolvent by this court in which the owner-stockholders had the same experience as the receiver, and lost their private fortunes in a futile effort to save their plant.

Another exception seeks in the alternative, to charge the receiver with some fifteen hundred dollars, a constitutent sum of the items embraced in the last mentioned exception, paid for interest penalties and costs on accrued and current taxes, imposed because they were not paid timely. It is claimed that the receiver was in funds sufficient to pay the taxes and avoid the fines. An analysis of the account would indicate that the receiver had sufficient cash at times to meet the charges, but it also appears that there were, constantly, other and more pressing demands, pending and impending, for interest, insurance, watchman and upkeep, and that it would have been imprudent not to have provided for them, even at the expense of the fines. The hazard of a receivership insolvency was lessened by this course.

By another exception, also in the alternative, the receiver is sought to be charged with $13,876.73, also a constituent part of the exception just referred to, spent for taxes, interest on mortgage and upkeep between July 10th, 1923, the date of the sale of the plant, and July 24th, 1924, the time it was consummated. The sale was confirmed by the court August 6th, 1923. The receiver had sold the property free and clear of all encumbrances. The purchaser applied to the EidelityUnion Trust Company for a title policy of insurance, and, the title being searched, imperfections were discovered, among others, that the city of Newark had an old paper street easement, by map dedication, over a part of the property. All the objections to the title, and they were numerous, were removed by December 21st, except as to the potential street, and it was so reported to the purchaser on that day. He refused to take subject to that cloud. Thereupon, early in January, the receiver petitioned the city for a vacation. The city counsel took under advisement the question as to whether there should be a vacation or a release and surrender, depending upon whether the dedication had, in fact, been completed by acceptance or was merely inchohate, and, apparently, being unable to determine the exact status, eventually advised both courses, and promptly thereupon two petitions, one for vacation, the other for a release, were filed in May and on June 17th the city commission passed the ordinance .effective the following July 19th, 1924. The complaint is that the receiver was remiss in its duty in not informing itself of the defect in the title before it made the sale, and, further, was dilatory, after discovering the encumbrance, in having it removed. The latter ground finds no support in the proofs. Immediately upon the purchaser refusing to take, counsel took the necessarjr steps. Up until that time there was no assurance that the purchaser would not take title subject to the outstanding interest, nor that a title company would not insure without a reservation as to the blemish. When the city commission finally concluded to act, it proceeded with the customary regularity. That the city authorities failed or refused to be hastened into the surrender of a public right or interest cannot in fairness be charged to the receiver. There was no delay on the receiver’s part thereafter in bringing the sale to a completion. The thing, however, more earnestly pressed is that the receiver should have searched the title aforehand and cleared it of all objection before offering it for sale. That would have been advisable, as we now view the consequences, but the omission was not a failure of duty. The property had been in the possession of the Riellys for upwards of forty years, and it was not unreasonable for the receiver to assume that the ownership was in the corporation subject to the known mortgage and tax' lien encumbrances. It was free and clear of these, and such that the property was intended to be offered for sale, and that they should be liquidated out of the proceeds. The dedication had been by a map filed in 1836, laying out the surrounding property long before the Rielleys acquired ownership and the city’s right, if it has any, was obscure and a recovery remote. In such circumstances it would have been decidedly unusual, to say the least, for the receiver to wipe the title spotless. Ordinary care and precaution would not prompt it and the exactions of a title company, which never takes a chance, that every blemish be removed before it issued a title policy, is not a test of ordinary prudence. The receiver could well reason that the title and possession of the Rielleys having been undisturbed for nearly a half a century the purchaser would be content. The measure of duty which the exceptants invoke is extraordinary, to which the receiver is not called upon to respond. It is also pointed out that in the proceeding leading to the auction sale there was a misdescription of the lands, but this was cured by order and caused no delay in perfecting the title.

The last exception to be considered is to charge the receiver with the loss by fire of a barrel or two of inflammable acid. The exceptants say the value was $618.40; the receiver, $141.10. It was uninsured by the company and the receiver’s failure to insure is the ground of the charge. The company carried heavy and full insurance covering all its property. Amongst others it had a thousand dollars “yard” insurance. The acid was not in the yard proper but was kept across the street in a shack. Whether the company regarded the acid as covered by the yard insurance, or that the premium on such risk was so high as to not warrant insurance is not clear. The receiver took over all the property, insured, as it was, assuming, as it would seem, that it was within the yard insurance, but neither is that clear. A receiver, of course, is obliged to keep property insured against fire, and failure brings personal responsibility, but if the company in its carefulness for full insurance purposely refrained from insuring the item or rested in the belief that it was covered by the yard insurance, it is difficult to see how the receiver can be charged with neglect if he followed the owner’s policy or was, as the owner was, of the belief as to the coverage. It is stated that the annual premium for insurance of this character of property was about twenty-five per cent., and possibly that deterred the company from effecting insurance, and instead removed the hazard across the way from the plant. The receiver might have been adversely criticized if it had made such an outlay.

The exceptions are overruled.

The receiver will be allowed $5,000; counsel fees will be allowed upon notice and proof of the services rendered.


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    LEONARD GRIMDITCH, PLAINTIFF-RESPONDENT, v. THOMAS OLLSON, DEFENDANT-PROSECUTOR.
    Submitted May term, 1927
    Decided November 25, 1927.
    Negligence — Injury From Motor Vehicle Collision — Car Driven by Friend of Son of Owner — Son Had Authority to Use Car —Some Proof That Defendant Had Given Permission to Driver — Held, That Presumption Arising Out of Ownership was Not so Completely Overcome as to Make the Case One for the Court Rather Than the Jury — No Error Found in Admission of Evidence, Nor Can the Verdict be Said to be Excessive.
    On rule to show cause.
    Before Gummeee, Chibe Justice, and Justices Black and Lloyd.
    Eor the rule, T. Harry Rowland (C. Richard Allen, of counsel).

      Contra, Henry M. Evans and Joseph H. Carr.

   Per Curiam.

This is the defendant’s rule for a new trial. The plaintiff was injured in a collision between a Eord car, driven by himself, and an Oakland car, driven by one Peterson, who, it was claimed, was the agent of the defendant. The accident, as found by the jury, was due to the negligence of Peterson. Both cars were pleasure cars, though that of the defendant was sometimes used for business purposes. The accident happened about eight o’clock on the night of April 26th, 1925. The plaintiff was severely injured and recovered a verdict of $7,500.

The first reason urged for making absolute the rule is that the court should have controlled the case, and directed a verdict in favor of the defendant. We think the court could not, under the evidence, have so treated the case. The proofs were that the car was used generally for the pleasure of the defendant and his family, frequently being driven by his son, Anton Ollson, who had the right to use it; that on the night in question the son had taken the car out, having with him Peterson and three girls. Peterson drove the car. In addition to the presumption arising from ownership, that the car was under the control and operation of the defendant, through himself or his agent, there was proof that the defendant had given Peterson permission to drive the car. This we think made a case for the jury, notwithstanding defendant’s denial that the car was either used by his permis-' sion or that Peterson had been given authority to drive.

The defendant’s counsel urge upon us as controlling the case of Doran v. Thomsen, 76 N. J. L. 754, where the daughter was driving a car belonging to the father, and the plaintiff relies on the case of Missell v. Hayes, 86 Id. 348, where the son was driving the car of the father for the enjoyment of the latter’s family. Without going-into the bearing of these cases on the present situation, it is sufficient to say that in the case before us the presumptions arising from ownership, as above indicated, were not so completely overthrown as to make the disposition of the case one for the court rather than for the jury.

We have examined the ruling of the court on the admission of evidence, next complained of, and find no error therein. Nor do we think the last reason, that the verdict was excessive, will justify making the rule absolute. The plaintiff’s injuries were serious. There was a fractured kneecap. It became infected and finally an operation was required. He was in the hospital sixtv-one days, and there was proof of much pain, resulting directly from the injuries and also from the manipulation necessary to effect the proper use of the limb. He was unable to work for a period of five months, and at the time of trial, two years after the accident, the knee was still weak and painful. It was less flexible, and its use seriously affected. There was a money loss in wages and expenses of treatment aggregating over $1,000.

The rule for a new trial is discharged.


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    NELSON VAN DINE, PROSECUTOR, v. THE MAYOR AND COUNCIL OF THE BOROUGH OF SUSSEX, IN THE COUNTY OF SUSSEX, RESPONDENTS.
    Submitted May 13, 1927
    Decided November 11, 1927.
    Municipalities — Ordinances—Certiorari—Ordinance was Adopted at a Meeting Attended by Four of the Six Members and the Mayor — Three of the Four Members Voted for Ordinance, One Against — Mayor Then Voted, Giving Majority — Prosecutor Contends That Mayor May Vote Only in Case of Tie as Provided in Borough Act — Respondents Contend This is Superseded by Provisions of Home Rule Act — Held, Such Situation Ordinarily Would Present Debatable Question Entitling Prosecutor to Writ, but That in This Case Prosecutor Has Only Presented Court with Copy of Affidavit on Which He Moved for Rule to Show Cause — Ex Parte Affidavits May be Used to Obtain Rule but Not Competent to Support Facts Necessary to Support an Application.
    On rule to show cause why a writ of certiorari should not issue.
    Before Justices Trenchard, Kaeisch and Katzenbacb:.
    Eor the prosecutor, Marshal Hunt.

    For the respondents, Hugh C. Baldwin and Henry T. Kays.

   Per Curiam.

This case is before us on a rule to show cause why a writ of certiorari should not be issued, to review an ordinance amending an ordinance providing for the curbing of Hamburg avenue, in the borough of Sussex, in the county of Sussex. The prosecutor is a citizen and property owner of the borough. Oh October 20th, 1926, an ordinance was passed by the borough for the curbing of Hamburg avenue and for the issue of temporary improvement notes in the sum of $8,000. The cost of the curbing under this ordinance was to be ultimately paid for by assessments upon the property benefited. The ordinance amending the original ordinance provided that the borough of Sussex should pay for the cost of the curbing.

The prosecutor contends that the amending ordinance was not properly legally passed. There were four of six members of the borough council present when the amending ordinance was passed. Three voted to pass the ordinance. One member voted against it. The mayor then voted in favor of the adoption of the ordinance. The prosecutor contends that the mayor is only entitled to vote in case of a tie. Paragraph 2 of the Borough act (1 Comp. Stat., p. 228) provides that the mayor and councilmen of every borough shall constitute the council thereof, all meetings shall be presided over by the mayor, except as otherwise provided, but he shall not vote except to give the casting vote in ease of a tie.

The respondents contend that the Borough act is superseded by the Home Rule act (Pamph. L. 1917, p. 345) and the amendments thereof as contained in Pamph. L. 1918, p. 478; Pamph. L. 1925, p. 392, and Pamph. L. 1926, p. 378, which provides for the procedure by all municipalities or the governing bodies thereof relative to the adoption of ordinances. This situation we would ordinarily hold presented a debatable contention which would entitle the prosecutor to the allowance of a writ of certiorari. We are, however, in the present case, confronted by another question. The prosecutor has only presented this court with a copy of the affidavit on which he moved for the rule to show cause. No affidavits have been taken under the rules. It has long been the settled practice, and the law, that ex parte affidavits may be used for the purpose of obtaining a rule to show cause, but are not competent to prove the facts necessary to support an application. Baldwin v. Flagg, 43 N. J. L. 495. We have not, therefore, the facts presented in the manner required by the practice. For this reason the rule to show cause is discharged.


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    CITY OF PATERSON, PROSECUTOR, v. JAMES BAKER ET AL., CONSTITUTING THE STATE BOARD OF TAXES AND ASSESSMENT ET AL., RESPONDENTS.
    Submitted May 13, 1927
    Decided November 11, 1927.
    Taxes and Assessments — Assessment by City — Appeal to County Board, Who Sustained Taxpayer — City’s Appeal to State Board — State Board Affirmed County Board, Discarding Testimony Apparently Competent — Affirmance Set Aside and Case Remanded to State Board for Rehearing.
    On writ of certiorari.

    Before Justices Tren chard, Kalisch: and Katzexbach.
    Eor the prosecutor, Benjamin J. Spitz.

    For the respondents, Suroslcy & Suroslcy.

   Per Curiam.

This case is before this court on a writ of certiorari. The. writ brings up the record of the proceedings before the state board of taxes and assessment with reference to an appeal by the city of Paterson from the valuation of property known as 197 Market street, made by the Passaic county board of taxation. In October, 1925, for the purposes of taxation for the year 1926, the assessors of Paterson valued the property at $44,500. On appeal by the owners to the county board of taxation this valuation was reduced to $35,640. The city then appealed to the state board, asking that the valuation of the property be fixed at $44,500 as assessed by the assessors of the city. The appeal was heard on November 5th, 1926, at the court house in Paterson.

The city produced the following witnesses: Francis Boyle, an assessor, who had assessed the property at -$44,500. The property fronts twenty-seven feet on Market street and has a depth of one hundred and thirty-five feet. The assessor estimated the value per front foot at $1,500. This would make the assessment $40,500 for the land. The city also offered the testimony of Frank W. Furrey, a real estate dealer, lie valued the property at $2,000 a front foot. Sorren Hansen, another real estate dealer, valued the property at $2,000 a front foot. John F. Lee, another real estate dealer of thirty-seven years’ experience, valued the property at $2,000 a front foot. Jacob Silverman, a realtor, valued the property at $2,000 a front foot.

Upon the completion of this testimony counsel for the property owner moved for the dismissal of the city’s appeal on the ground that the action of the county board of taxation established a prima facie case so far as the property owner is concerned; that it was incumbent upon the city authorities to prove what was a fair sales value of the property at private sale; that they, had not asked any of the experts had the proper foundation on which to base their opinions.

The state board then dismissed the appeal and affirmed the assessment of the county board. This, in effect, was to discard all the testimony offered by the city which we think was competent. We are of the opinion that the state board erred in its action.

The assessment affirmed by the state board is set aside and the case remanded to the state board for a rehearing.


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    FRED DAY, BY LILLIAN DAY, HIS NEXT FRIEND, AND LILLIAN DAY, PLAINTIFFS, v. LOUIS C. BEYER, DEFENDANT.
    Submitted May term, 1927
    Decided November 25, 1927.
    Negligence — Automobile Collision With Motorcycle — Defendant was Turning into a Street on His Left, Upon Which There was a Line of Traffic — Defendant, Under Circumstances, was Obliged to Use Great Care and Seek an Opportune Time— This the Jury Found He Did Not do — Photographs Offered Properly Rejected.

      On rule to show cause.
    Before Gummeee, Chief Justice, and Justices Black and Lloyd.
    Eor the rule, John W. McQeehan, Jr.

      Contra, Charles Rosenthal.

   Per Curiam.

This is defendant’s rule for a new trial based on two reasons —(1) that the verdict was against the weight of the evidence and (2) that the court improperly refused to admit in evidence two photographs offered by the defendant.

We think neither ground sufficient to justify disturbing the verdict. The action grew out of a collision between a motorcycle, on which the plaintiff was riding, and an automobile of the defendant. The evidence showed that the plaintiff was proceeding on his motorcycle west on South Orange avenue, in South Orange, and the defendant proceeding east with his automobile on the same street. As they neared Wyoming avenue, which intersects but does not cross South Orange avenue, defendant attempted to turn north to his left into Wyoming avenue in face of the motorcycle, passing from behind another car preceding him for the purpose. Plaintiff then attempted to turn to his own right to avoid the collision. Under such circumstances it was quite competent for the jury to find in his favor. If the defendant intended to cross a line of traffic to get into Wyoming avenue he was obliged to use great care and seek an opportune time. This, as the jury found, he did not do.

The photographs were also properly rejected. The accident was on September 28th, and the photographs were apparently taken late in the fall, when foliage would be gone. The photographer was not called and there was no identification of conditions. At most, their admission would be in the discretion of the trial judge, and in any event it is not apparent that their rejection did the defendant any harm..

The rule is discharged.


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    CLAIR SKINNER BECK, PLAINTIFF-RESPONDENT, v. ESSEX SALES COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Argued May 6, 1927
    Decided November 25, 1927.
    Negligence — Case Involves Same Legal Question Presented in Two Previous Cases — Directed Verdicts in Other Cases for Defendant Sustained — Judgment for Plaintiff in This Case Cannot be Sustained.
    On rule to show cause.
    Before Guam ebb, Chief Justice, and Justices Black and Lloyd.
    For the appellant, McCarter & English.

    For the respondent, Pitney, Hardin & Skinner.

   Per Curiam.

This is the defendant’s rule for a new trial. The case involves the same legal question that was presented in two other eases arising out of the same facts and circumstances. It was brought to recover damages for injuries received in a collision between an automobile in which the plaintiff was riding and a motorcycle which it was alleged was being operated by defendant’s servant. The trial court submitted to the jury the question of the relation of master and servant, and the jury rendered a verdict for the plaintiff. In the trial of the two cases mentioned above verdicts were directed for the defendant on the same proofs as to liability, and this ruling was affirmed in this court (133 Atl. Rep. 821), and again in the Court of Errors and Appeals as Nos. 82 and 83 of the May term, 1927.

The judgment before us cannot therefore be sustained.

It is due to the trial judge to state that at the time the present case was tried he did not have the benefit of the decisions in other cases as they had not then been announced.

The judgment is reversed.


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    HELEN A. HOLCH ET AL., PLAINTIFFS, v. HUGO KOHN, DEFENDANT.
    Submitted May term, 1927
    Decided November 23, 1927.
    Negligence — Injury to Passenger of a Jitney Bus in Collision With Another Car — Verdict for Plaintiff Against Defendant Driver of the Other Car Sustained.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    Eor the plaintiffs, Francis A. Gordon.

    Eor the defendant, Hugo Kohn and Samuel D. Williams.

   Per Curiam.

This suit was brought to recover damages for personal injuries to Helen A. Holeh and incidental damages to her husband, Yictor J. Holeh. The facts out of which the injuries grew were, the plaintiff Helen A. Holeh, on February 1st, 1926, was an occupant and passenger in a jitney bus operated by the Elizabeth-Linden-Rahway Line, Inc., on St. George avenue, in the city of Linden. The defendant Hugo Kohn was driving an automobile in a westerly direction and the defendant Joseph Tompkins was the owner and driver of an automobile truck in a northerly drection. The automobile of Hugo Kohn collided with the jitney bus in which the plaintiff Helen H. Holeh was riding, causing the injuries sued for. Negligence was charged against both defendants.

The trial resulted in verdicts for the plaintiff Helen A. Holeh for $5,000 and for the plaintiff Yictor J. Holeh for $500 against the defendant Hugo Kohn and in favor of the defendant Joseph Tompkins.

The defendant obtained a rule to show cause why a verdict should not be set aside upon the question of damages only, as being excessive. Our reading of the testimony leads us to the conclusion that we cannot say the damages awarded by the jury are excessive.

The rule to show cause is therefore discharged.


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    MICHAEL A. EMMA, RELATOR, v. LOGGIA FASCI ITALICI, No. 16, ORDER SONS OF ITALY IN AMERICA ET AL., DEFENDANTS.
    Argued May 3, 1927
    Decided November 11, 1927.
    Corporations — Fraternal Societies — Membership of Relator Canceled Because He was a Member of Another Society and the By-laws Prevented Membership in the Two Societies by the Same Person at the Same Time — Held, That Statements Set up in Affidavit are Sufficient to Entitle Applicant to an Alternative Writ of Mandamus.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Trenchard and Katzenbach.
    Eor the relator, Charles C. Gij/oniello.

   Per Curiam.

This is an application for a writ of mandamus. An affidavit of Michael A. Emma, the applicant, sets forth the formation of a fraternal organization known as “Order Sons of Italy in America” that subordinate lodges of this organization were formed; that in November, 1912, he became a member of Loggia C. B. Conte Di Cavour, No. 40, Order Sons of Italy, and entitled to full privileges therein; that in the month of September, 1916, he was one of the founders of Loggia Cesare Battisti “802 Sons of Italy”; that in the month of December, 1917, the two lodges mentioned with a large number of other lodges of the “Order Sons of Italy” were united into an order with the “Order Sons of Italy in America” under the latter name; that in the month of April, 1918, he was admitted as a member in the “Pondo Unico Mortuario,” which is a mortuary fund administered by a separate division of the order last mentioned; that in the month of October, 1922, the said “Loggia Cesare Battisti, No. 803, Sons of Italy in America,” was merged with four other lodges into a lodge known as “Loggia Pasci Italiei, No. 16, Order Sons of Italy in America”; that he was a member in good standing of the first mentioned lodge and was taken in as a member in good standing in the last mentioned lodge; that on March 29th, 1920, he was admitted as a member in good standing into the “Loggia Savoia, No. 102, Independent Order Sons of Italy”; that this lodge had the same objects as the other lodges mentioned; that on February 24th, 1925, he received a letter from the “Loggia Pasci Italiei, No. 16, Order Sons of Italy in America,” in which he was requested to resign from the said lodge because he was a member in good standing in the Independent Order Sons of Italy, and because the by-laws of Order Sons of Italy in America prohibited a person from belonging to the two orders at one time; that on February 27th, 1925, and on April 14th, 1925, he forwarded to the said Loggia Pasci Italiei, No. 16, Order Sons of Italy in America, moneys to be credited to his account; that these moneys were retained until July 16th, 1925, when they were returned with the statement that he had been' canceled from the list of members and that the “Grand Lodge Sons of Italy in America had issued new laws and edicts that any persons holding membership in any order or associataion akin and particularly to the Independent Order Sons of Italy must resign;” that he refused to resign from the Independent Order Sons of Italy and was therefore canceled from the books of Loggia Pasci Italiei, No. 16; that the rules and regulations referred to are unjust and invalid; that his dues should be accepted, and that he should be reinstated with all his rights and privileges in the Loggia Fasei Italici, No. 16, Order Sons of Italy in America, and the said mortuary fund.

We think the facts set forth in this affidavit are sufficient to entitle the applicant to an alternative writ of mandamus. An alternative writ is allowed.


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    CITY OF PATERSON, PROSECUTOR, v. JAMES BAKER ET AL., CONSTITUTING THE STATE BOARD OF TAXES AND ASSESSMENT ET AL., RESPONDENTS.
    Submitted May 13, 1927
    Decided November 11, 1927.
    Taxes and Assessment — Property Assessed by Local Assessors— Appeal to County Board, Where Assessment was Reduced— Appeal by Municipality to State Board — City Presented Evidence of Value to Sustain Original Assessment — State Board Ignored This Evidence and Affirmed County Board’s Assessment — Held, Error of State Board, the Testimony Should be Considered — Assessment Set Aside and Case Remanded to State Board for Rehearing.
    On writ of certiorari.

    Before Justices Tbbxcjtard, Kamscii anc! FCatzenbaoh.
    For the prosecutor, Benjamin J. Spitz.

    For the respondents, David G. Smith.

   Per Curiam.

This case is presented to this court on a writ of certiorari obtained by the city of Paterson to review the action of the state board of taxes and assessment with reference to the valuation for assessment purposes of property in the city of Paterson known as Nos. 183 and 185 Market street. In October, 1925, the assessors of the city of Paterson assessed the property for assessment for taxation for the year 1926 at the valuation of $112,000 for the land, and $35,000 for the improvements. The owners appealed to the Passaic county board of taxation. The county board reduced the assessment to $90,000 on the land and $25,000 on the buildings. The city of Paterson then took an appeal to the state board of taxes and assessment.

The city contended that the true value of the property was $112,000 for the land and $35,000 for the improvements as originally assessed by the city assessors. The record discloses that the state board sat at the court house in Paterson on November 5th, 1926, for the determination of this appeal. The city assumed the burden of proving the value of the property. It first called as a witness Francis Boyle, an assessor of the city of Paterson. He testified as to the amount of the assessment for the year 1926 fixed by the city assessors. Upon cross-examination by counsel for the owners he stated that the property had been assessed at $2,000 a front foot and that this assessment was based on the valuation of surrounding property. He further testified that he arrived at this valuation by reason of sales on the block in which the property was located. He testified with reference to other sales of which he had knowledge and which were factors in his determination that $2,000 a front foot was the proper assessment to make upon the property in question.

The city then called Frank W. Furrey, who had been in the real estate business for thirty-two years. He testified that he knew the values of properties in the neighborhood of the property in question. He gave an opinion that the value of the land was, for a corner lot, $3,000 per front foot, and for an inside lot, $2,500 per front foot. On cross-examination he testified that his opinion was formed by what had been paid for other property in the block, especially a tract of land on Market and Union streets purchased by the Second National Bank, with which he was connected. He also referred to a sale by one Salsberg of property in the locality.

The city then called as its next witness John F. Lee, who had been in the real estate business for thirty-seven years. He testified that the corner property at Market and Church streets was worth $3,000 a front foot and the inside lot $2,500 a front foot. He based his opinion on the price that property in the immediate vicinity had been sold for.

Mr. Lee was followed by a witness named Sorren P. Hansen, who had been in the real estate business in Paterson for twenty years. He testified to a value of $3,000 for the corner lot and $2,500 for the inside lot. A new hotel has been built in Paterson upon a tract costing less per front foot than the tract under consideration, but the property which is the subject-matter of this proceeding is nearer to the city hall, which is the conceded center of the city, than the hotel property. The witness was of the opinion that the property in question was more valuable than the hotel property.

Jacob Silverman, a real estate dealer of twenty years’ experience also testified for the city. He gave the same valuation as the preceding witnesses and based his valuation upon sales which had been made in the vicinity.

After this evidence had been put in by the city, counsel for the land owners moved to dismiss the city’s petition on the ground that there was nothing before the board “to indicate the value of this particular piece of property, and how the same was based.” This motion was granted. The state board ignored all the testimony offered by the city. No testimony as to the value was put in by the land owners. The amount fixed by the county board of taxation was accepted as the value of the property by the state board of taxes and assessment, and the assessment of the county board of taxation was affirmed.

We are of the opinion that the state board erred in granting the motion made by counsel for the owners. The appeal to the state board was a hearing de novo. There was mo presumption which was evidential that the valuation fixed by the county board of taxation was the true value of the property. The testimony offered by the witnesses for the city was competent. It should have been considered. It was not. There was no evidence that the property had been examined by the members of the board. They did not testify. The valuation was fixed by the state board without any evidence to support it. This was error.

While this court has the power to consider evidence and fix a valuation we think it should not be done in this case, as this would foreclose the owners from presenting their testimony as to value. They should not be made to suffer by reason of the action of the state board. The situation is like that of entering improperly a nonsuit. A reversal of the judgment of nonsuit leads to a new trial. In the present proceeding there should be a rehearing of the case before the state board. The judgment of this court is that the assessment fixed by the order of the state board will be set aside and the case remanded to the state board for a rehearing.