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of Essex county $25 each for services ren with the views expressed by this court in dered as members of the board of election Bellis v. Freeholders of Atlantic County, 51 and registry for their respective election dis Atl. 781. The point, however, was not di. tricts. The contention is that this payment | rectly involved in that case. The judgment is in full for all their services connected below is affirmed, with costs. with that election, and that they are not entitled to what the appellant terms "double compensation, and that the judgment should

(69 N. J. L 189) be reversed. We find, however, that the WHITTINGHAM et al. v. HOPKINS et al. Meeker act does not touch the question of

(Supreme Court of New Jersey. Feb. 24, compensation, but that a supplement to the

1903.) general election law of 1898, approved

HIGHWAYS-ESTABLISHMENT. March 22, 1901, regulates that subject-mat

1. A slight variation in laying out a public ter. P. L. 1901, p. 258. After fixing the road, due to the erection of houses by the proscompensation of members of the boards in ecutors upon the line described iu the applicacities having a population exceeding 30,000,

tion for the road, will not lead to the nullifica

tion of the proceedings of the surveyors. the supplement enacts that in all other cities,

(Syllabus by the Court.) etc., the compensation of each member for all such services, in connection with any

Certiorari by the state, on the prosecution local or charter election, shall be for each

of Martha Whittingham and another, against registry day $3, and for the election day, in

Richard Hopkins and others, to review procluding the counting of the votes and the

ceedings in laying out a public road. Affirmdelivery of the returns and the ballot box,

ed. $7, and for all such services in connection

Argued November term, 1902, before GARwith the general election, or any special

RISON and GARRETSON, JJ. election held in and for the whole county, Chauncey G. Parker and S. M. Rollinson, "such compensation shall be

twen- for prosecutors. Blake & Howe, for defend. ty-five dollars in districts where the number ants. of registered voters is more than three hun. dred.” The city of Orange is within this GARRISON, J. The return to this writ of class. We think tbat the words of this sup certiorari brings up the proceedings of surplement clearly give to the election officers veyors in laying out a public road. It is obthe compensation provided for their services jected that the notices of application for the in connection with each election. This view appointment of surveyors and of their acting is strengthened by the fact that this supple were not set up as required by law, in that ment was passed after the enactment of the two of them were posted at railroad stations; Meeker act. It must be observed also that the claim being that railroads are private the city election is still held, only the time property, and hence are not public places. of holding it is changed by the Meeker act This claim is sound neither in its premises to the time of holding the general election. nor its conclusion, if reference be had to the

It is further urged that they should not sense in which the word "public" is used in be paid the compensation for services in these proceedings. Where- notoriety is the holding the city election, because there is object to be attained, the most public places no additional service performed by them in are those that afford the most publicity, with. connection therewith except in the counting out regard to the title of the owner of the and canvassing of the vote. But it must be property. See, also, State v. Schanck, 9 N. remembered that the officer's right to com J. Law, 107. pensation does not grow out of a contract 2. The objection that the return was not between him and the municipality by which properly signed is not supported. See the it is payable. The compensation belongs to case above cited. him not by force of any contract, but be 3. The misdating of the return is shown to cause the law attaches it to the office. be a mere clerical error. Throop on Public Officers, 443; Hoboken v. 4. The prosecutor Walton C. Whittingham Gear, 27 N. J. Law, 265. And where a had actual notice, was on the ground with salary thus attaches to an office the right to the surveyors, and objected to the road. it is not affected by a diminution of the 5. The variation of 90 feet in the terminal duties of the office, the office itself remain point of the road as laid is explained in the ing. Marquis v. City of Santa Ana, 103 Cal. return of the surveyors to be due to the act 661, 37 Pac. 650. It is further urged that of the prosecutor Walton C. Whittingham, the payment by the county collector is a sat acting either for himself or as agent for his isfaction for all services performed at the mother, the other prosecutor, in building election, and that the act so declares. But three houses on the line of the road as set the words here referred to plainly apply forth in the application. If this had been only to the sum certain fixed by the statute the sole ground upon which the application for services at the general election, and not for this writ had been rested, and the facts to the compensation allowed in connection had been disclosed, it would have been with with the charter election.

in the sound discretion of the justice of the The result we have reached is in accord Supreme Court to whom the application was

made to have withheld his allocatur. The same discretion is now open to this court in dealing with this reason. State v. Woodward, 9 N. J. Law, 21.

The prosecutors, in point of fact, created the condition that led to the variation of which tbey now complain. The variation is not material, and affects no rights that were not involved in the application for the writ. The prosecutors were not misled into acquiescence, for they did not acquiesce, but objected, and their objections have been heard. We think that the change of course necessitated by their conduct cannot be successfully urged as a reason for nullifying the return of the surveyors.

The action taken in the court below on these proceedings is affirmed.

(69 N. J. L. 31) LONGA V. STANLEY HOD ELEVATOR

CO. et al. (Supreme Court of New Jersey. Feb. 24,

1903.) INJURY TO EMPLOYÉ-LIABILITY-NEGLI

GENCE-FELLOW SERVANT. 1. A servant of Whan, while in a safe position, and free from danger, in doing his master's work, at the request of the engineer of the elevator company, which was engaged in an independent employment, over which Whan had no control, attempted to loosen the elevator, which had stuck fast, and while so doing was killed.

Held: (1) That Whan is not liable, as the accident did not happen wbile decedent was engaged in serving him.

(2) That the elevator company is not liable. If the engineer had authority to employ the decedent, they were fellow servants.

If he had no such authority, the decedent was a mere volunteer.

The danger was also obvious.
(Syllabus by the Court.)
Error to circuit court, Hudson county.

Action by Julia Longa against the Stanley Hod Elevator Company and Alexander Whan. Judgment for defendants, and plaintiff brings error. Affirmed.

Argued November term, 1902, before the CHIEF JUSTICE, and VAN SYCKEL, FORT, and PITNEY, JJ.

James F. Minturn, for plaintiff in error. Wallis, Edwards & Bumsted, for defendants in error.

cised an independent employment, and furnished its own engineer, over whom Whan exercised no control. The decedent, as the servant of Whan, was not employed to run, or to assist in running or controlling, the elevator. The engagement of the elevator company required it to deliver the hods at the level of the platform, on which the decedent was placed, which it is not denied was a secure position for doing his master's work. During the day on which the accident occurred, the elevator stuck fast at the third story, where decedent stood. The engineer of the elevator company called to Whan's servant to assist in getting the elevator free, and while he was so engaged the elevator fell, and killed him. The deceased assisted in striking the elevator with joists, then jumped on it with four or five other men, which caused it to fall suddenly. The decedent was not in that respect acting as the servant of Whan, and Whan is no more liable for the injury than if the servant, without his authority or consent, had gone across the street to another building, and been there killed by the negligence of some other contractor. Whan furnished the decedent a safe place for his work, and while he was engaged in doing his master's work he was in no peril.

The question remains whether the other defendant is liable in damages. If the engineer of the elevator company had authority to employ the decedent to assist him in loosing the elevator, then he was a fellow servant of the engineer, and the plaintiff cannot recover. If the engineer had no such authority from his employer, then the de. cedent was a mere volunteer, and the company is without liability.

It is also to be observed that the decedent was guilty of want of care for his own safety in placing himself in a position of obvious danger in the elevator. A nonsuit was properly directed by the trial court as to both defendants.

The judgment below should be affirmed.

VAN SYCKEL, J. This is a suit by the administratrix of an employé of the defendant Whan against both Whan and the Stanley Hod Elevator Company to recover damages under the death act. The servant was killed by the falling of the hod elevator. Whan was engaged in erecting a five-story brick storehouse. Whan employed the eleyator company at $10.50 per day to raise up the hods from the ground below to a platform provided by Whan on wbich the decedent's duty was to stand, and take the hods out of the elevator when they were brought up. The elevator company exer

(69 N. J. L. 55) MALBERTI V. UNITED ELECTRIC CO. (Supreme Court of New Jersey. Feb. 24,

1903.) PLEADING-DEMURRER-STRIKING DECLARA

TION. 1. Mere imperfection or lack of form in pleading are not good grounds for demurrer.

2. A declaration will be stricken out, on notice uuder section 132 of the practice act (2 Gen. St. p. 2555), as being so defective or so framed as to prejudice, embarrass, or delay a fair trial of the action, although a demurrer would not be sustained against it.

(Syllabus by the Court.)

Action by Felice Malberti against the United Electric Company of New Jersey. Demurrer to declaration overruled. Mere imperfections or lack of form in the pleading are not good grounds for demurrer.

Argued November term, 1902, before the CHIEF JUSTICE, and VAN SYCKEL, FORT, and PITNEY, JJ.

McEwan & McEwan, for plaintiff. Bedle, Edwards & Lawrence, for defendant.

FORT, J. This is a demurrer to a declaration. The declaration contains two counts. Both the counts are inartistically drawn. They can truly be styled imperfect, and lacking in form. It is probable that, if the demurrer were not a general one, but was to the second count only, it would have been sustained. But mere imperfection or lack of form in pleading are not now good grounds for demurrer. 2 Gen. St. p. 2557, § 139. It is quite difficult to grasp the pleader's method of statement, or his ground of liability on the part of the defendant company, but the court, after much reflection, is unable to say that the first count in the declaration does not allege a duty to the plaintiff, as one of the public, which the defendant has failed to perform, and which failure has resulted in injury to the plaintiff through no fault of his own, It is quite evident that this declaration would be stricken out upon notice under section 132 of the practice act (2 Gen. St. p. 2555), as being so defective or so framed as to prejudice, embarrass, or delay a fair trial of the action. This is the better practice, as was suggested in Minduci v. Philadelphia & Reading R. R. Co. (N. J. Sup.) 53 Atl. 229.

The demurrer in this case is overruled, with costs, but without prejudice to the right of the defendant to move to strike out the declaration,

was not possessed of goods and chattels sufficient to satisfy the amount due, as required by section 72 of the justice's court act (Gen. St. p. 1879). The question for decision is whether this requirement was dispensed with by the later act of April 4, 1892 (2 Gen. St. p. 1898). This question was noticed, but not decided, in Barr v. Fleming, 61 N. J. Law, 431, 39 Atl. 915, Id., 62 N. J. Law, 449, 45 Atl. 1090, and in Brink v. Blazer, 62 N. J. Law, 175, 40 Atl. 623. In Grimshaw v. Carroll, 62 N. J. Law, 730, 42 Atl. 733, a question closely related was presented to the Court of Errors, and that court decided that in docketing judgments of the district court the affidavit referred to was still essential, the fourth and fifth sections of the district court act of March 27, 1882 (1 Gen. St. p. 1260), not having abrogated that provision of the seventy-seventh section of the district court act of March 9, 1877 (1 Gen. St. p. 1228). In reaching this conclusion, however, the Court of Errors laid chief stress upon the declaration in the act of March 27, 1882, respecting the precise force and effect of its provisions, by which it clearly expressed a purpose to substitute those provisions for only two of the preliminaries required by the prio law, but left the third preliminary, the affidavit as to the debtor's property, unrepealed. The act of April 4, 1892, does not contain so narrow a definition of its scope, but, on the contrary, by its opening declaration as to what only shall be necessary in docketing justices' courts' judgments, evinces an intent to make compliance with its provisions sufficient in all cases to which its terms are applicable. Under this view of the force of that law, the affidavit referred to is not required. This renders it unnecessary to consider whether the supplement of March 22, 1901 (P. L. p. 365), validated previous docketings which were then void.

The docketed judgment, and also the execution, are affirmed, with costs.

(69 N. J. L. 124)

CURTIS v. STOUT. (Supreme Court of New Jersey. Feb. 24,

1903.) JUDGMENTS-DOCKETING. 1. The act of April 4, 1892, concerning the docketing of judgments rendered in the courts for the trial of small causes (2 Gen. St. p. 1898), authorizes the docketing of such judgments without an affidavit of belief that the debtor is not possessed of goods and chattels to satisfy the amount due. (Syllabus by the Court.)

Certiorari to court of common pleas, Monmouth county.

Action by Henry A. Curtis against Wesley B. Stout. Judgment for plaintiff, and de fendant brings certiorari. Affirmed.

Argued November term, 1902, before HENDRICKSON and DIXON, JJ.

Parker & Pearce, for plaintiff. Wesley B. Stout, pro se.

(69 N. J. L 129) LOEWENTHAL V. WAGNER. (Supreme Court of New Jersey. Feb. 24,

1903.)

BAIL-DISCHARGE. 1. Under the peculiar circumstances of this case, the bail to the sheriff should be discharged, and money deposited with the sheriff as additional security should be returned to the bail, without formal surrender of the defendant.

(Syllabus by the Court.)

Action by Annie Loewenthal against Emil Wagner. Rule for discharge of bail made absolute.

Argued November term, 1902, before HENDRICKSON and DIXON, JJ.

James F. Minturn, for defendant. Weller & Lichtenstein, for plaintiff.

DIXON, J. This writ brings up a docketed judgment entered in the office of the clerk of the Monmouth pleas on September 25, 1899, and the execution thereon issued. The docketing is attacked because there was not iled an affidavit of belief that the debtor

DIXON, J. Since the decision in this cause appearing in 52 Atl. 298, the sheriff has been permitted to amend his return on the capias,

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so that it now reads: "I took the body of the of the purpose of the appeal tax court of Baldefendant named in this writ and released timore City to change or alter an assessment him on bail. The name of the bail is Joseph

had been given, as required by Laws 1900, p.

603, c. 347, but the taxpayer alleges, ou appeal, Stein. As additional security to the bail that he can show such want of notice, the cause bond, I required said Stein to deposit with will, under Code Pub. Gen. Laws, art. 5, § 36, me the sum of one thousand dollars."

be remanded for proceedings. On the petition of the bail, Joseph Stein, a On motion for reargument. Former decree rule has been allowed requiring the plaintiff of affirmance rescinded, and cause remanded and the sheriff to show cause why the ball without affirmance or reversal, under Code should not be allowed to surrender the de Pub. Gen. Laws, art. 5, § 36. fendant, or should not be discharged, and For former opinion, see 52 Atl. 937. have the deposit of $1,000 returned to him, without physical surrender of the defendant. PEARCE, J. A motion has been filed in

The material circumstances are: That in this cause for reargument, or, failing in this, July, 1901, within 30 days after the defend that the decree passed herein may be modi. ant was returned in custody, the plaintiff fied, and that, in lieu of the affirmance of filed her declaration, to which no plea has the decree passed by the court below, the been filed; that when the sheriff made re cause may be remanded, under section 36, turn that the defendant was in custody the art. 5, of the Code of Public General Laws, defendant had been actually released on the to the end that the appellant may have leave security set out in the return as now amend. to amend his bill of complaint by averring ed; that in September, 1901, the defendant therein that the appeal tax court of Balti. was again arrested on a capias issued at the more City did not give him any notice of its suit of the same plaintiff for a different

purpose to change or alter his assessment cause of action, and was detained in custody upon "Ashburton" for the year 1901, under under that writ until February 27, 1902, i the provisions of section 164a of the charter when he was sent to the state prison for a of Baltimore City. Laws 1900, p. 603, c. 347. term of three years upon a conviction for We have carefully considered this motion attempting to break jail, and is still in pris and the brief filed in support thereof, and on.

we remain of the opinion that the bill canThese circumstances show that the plain not properly be regarded as denying that tiff lost nothing by the failure of the defend

the required notice of the purpose of the apant and the bail below to put in and perfect peal tax court to increase this assessment special bail. Her declaration baving been was given to the appellant, and in the present regularly filed according to the return then state of the record we should be compelled appearing upon the capias (Practice Act, & to adhere to the decree of affirmance hereto103), she could have entered judgment fore passed. We stated in the opinion hereagainst the defendant at the expiration of tofore filed in this case that, if the failure to 60 days after the return. Before the time give such notice had been alleged in the bill, came for entering such judgment the de the demurrer must have been overruled, and fendant was in the actual custody of the the injunction granted. It is now alleged in sheriff at her own suit, and a ca. sa. upon the brief filed in support of the motion for such a judgment, lodged with the sheriff, moditication of the decree that no such notice would have afforded her all the redress to was in fact given, and that proof thereof which she was legally entitled. The conse can be made. If this be true, we think it quences of her failure to exercise her rights equitable that an opportunity should be afin the suit cannot be charged on the defend forded to establish the fact; since, under an ant or his bail, and the fact that the defend amended bill averring this fact, and sustainant cannot now be taken in execution is due ed by proper proof, the appellant would be to no fault of the bail.

entitled to relief. Paine v. France, 26 Md. We think the case warrants the exercise of 46; Johnson and Wife v. Robertson, 31 Md. the equitable power of the court for the re 491. lief of bail, and that a formal surrender We shall, therefore, as authorized by secthrough habeas corpus should not be re tion 36 of article 5 of the Code of Public quired.

! General Laws, rescind the decree of affirmThe rule for the discharge of the bail and ance heretofore passed, and shall, without the return of the deposit should be made ab affirming or reversing the decree of the solute, but without costs.

court below, order the cause to be remanded, to the end that the bill may be amended as

indicated, and that such further proceedings (95 Md. 419)

may be bad, and such testimony be taken, GITTINGS V. MAYOR, ETC., OF CITY OF as shall be necessary for determining the BALTIMORE.

cause upon its merits in accordance with this (Court of Appeals of Maryland. Oct. 31, 1902.)

opinion. As this course is due to appellant's

failure to make the averment, now to be APPEAL-REMAND FOR FURTHER PROCEEDINGS.

allowed by amendment, it is only proper he 1. Where a bill for relief against an alteration

should bear the costs up to this stage of the in an assessment does not allege that do notice

cause.

(Court of Appeals of Maryland. Feb. 11, 1903.) Bill by John A. Tompkins and others, as

Decree of affirmance heretofore passed re in the corporation, and thereafter purchased scinded, and cause remanded, under section several of the breweries, which they turned

over to the corporation, in consideration of the 36 of article 5 of Code, without affirming or

corporation's issuance to them of stock and reversing the decree of circuit court No. 2 bonds largely in excess of the amount authorof Baltimore City, for further proceedings in ized by the basis originally contemplated. Held, conformity with this opinion; appellant to

that defendants, in purchasing such brewery

plants and selling them to the corporation, were pay the costs above and below.

not acting in a fiduciary capacity; and hence a
receiver of the corporation was not entitled to
maintain a bill to compel them to account for

such stock and bonds.
(96 Md. 560)
TOMPKINS et al. v. SPERRY, JUNES &

Appeal from Circuit Court No. 2 of Balti-
CO. et al.

more City; J. Upshur Dennis, Judge.

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receivers of the Maryland Brewing Company, CORPORATIONS-SUBSCRIPTIONS_PAYMENT IN PROPERTY - PROMOTERS CHARACTER OF against Sperry, Jones & Co. and others. ACTS – LIABILITIES – ACCOUNTING IN FIDU From a decree dismissing the bill, plaintiffs CIARY CAPACITY. 1. Where, pending the organization of a cor

appeal. Affirmed. poration to consolidate several breweries, the

Argued before McSHERRY, C. J., and promoter entered into an agreement with one FOWLER, BRISCOE, BOYD, PAGE, brewer for the purchase of his brewery on be

PEARCE, SCHMUCKER, and JONES, JJ. half of the corporation, and the contract was not to be binding unless certain enumerated John Prentiss Poe and Williams, Thomas brewers and individuals become part of the & Williams, for appellants. D. •K. Este consolidated company, and because of the failure of such brewers and individuals to join the

Fisher, Bernard Carter, Gans & Haman, consolidation the agreement was never carried Fielder C. Slingluff, and m Vallis Blackinto effect, the fact that thereafter such pro- | istone, for appellees. moter purchased the brewery individually, under no agreement that it was to be assigned to the corporation, or any statement that it was

SCHMUCKER, J. This is an appeal from made for its account or on its behalf, does not a decree of circuit court No 2 of Baltimore create a fiduciary relation between the cor City, sustaining the appellees' demurrer to, poration and such promoter, so as to render such promoter liable for a breach of faith in connec

and dismissing a bill filed by, the appellants, tion with such purchase.

as receivers of the Maryland Brewing Com2. Where promoters of a consolidated corpo pany of Baltimore City, hereinafter called ration purchased the properties to be consoli

the “Company." The purpose of the suit dated in their own names, with a view to capitalizing their combined value by turning them

is to procure an account of certain bonds and into the company for payment of their stock the proceeds thereof, which the bill alleges and bonds, and there was nothing in the con the appellees Sperry & Jones, while occutracts of purchase showing that such purchases pying a fiduciary relation to the company were made in a fiduciary capacity, there was nothing in the facts to render such promoters

and being in control of its corporate organiliable to the consolidated corporation in such zation, caused to be overissued by it to themfiduciary capacity.

selves, and which they and their coappellees, 3. Where, at the time defendauts were pro

who acted with full knowledge of the facts. moting a corporation to consolidate several breweries in a certain city, they purchased such sold and disposed of for their own use and breweries, and thereafter turned them over to advantage. The allegations of the bill in the corporation in payment for its stock and large part relate to the stock of the company, bonds, they were not liable to subsequent stockholders of the consolidated corporation in a

which is charged to have been overissued at fiduciary capacity, when in fact, at the time, the same time and in the same manner as they owned or controlled all of the stock then the bonds, but there is no prayer in the bill issued by such consolidated corporation; and that some of the shares did not stand in their

for an account of the stock or its proceeds, names, but in the names of their employés or

although there is a prayer for general relief. agents, was immaterial as affecting the real The bill of complaint alleges that the comownership of the property.

pany was incorporated under the general laws 4. Where promoters of a corporation, organized for the purpose of consolidating the brew

of this state by articles of incorporation filed eries of a city, owned all of its stock prior to

on February 7, 1898, and amended on Dethe consummation of the purchase of the brew- cember 22, 1898, with a capital of 32,250 eries, their act in subscribing for the remainder

shares of preferred and 32,250 shares of comof the stock, authorized to be issued by an amendment to the corporation's articles, and

mon stock, and that it subsequently authorpaying for such subscription by a transfer to ized an issue of $7,500,000 of bonds; that the the company of the brewing properties previous incorporators and directors named in the cerly purchased by them, was not invalid. 5. Where all the stockholders of a corpora

tificate of incorporation, and also the stocktion were present or represented at a meeting,

holders who participated in the organization any defect in the prior notice of the meeting of the company, consisted of the appellees was waived.

Sperry & Jones, and persons who were un6. Defendants organized a corporation for the

der their control, and were in fact their purpose of consolidating all the breweries in the city of Baltimore, on a basis of $20 capital agents, and were not independent subscribstock for each barrel of output. Prior to the ers, and by that means the said two appellees execution of the contract with the owners of remained in absolute control of the company the breweries, defendants owned all the stock

from its organization down to and including § 6. See Corporations, vol. 12, Cent. Dig. $742. February 28, 1899; that, pending the or

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