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as to whether he was serving as architect on surance Company. Verdict for plaintifr. On one of the buildings mentioned in the affi. rule to show cause. Rule made absolute. davit, he had prevaricated, saying that he Argued November term, 1902, before the had only furnished a tracing for the persons CHIEF JUSTICE, and VAN SYCKEL, engaged in the work, and was not connected FORT, and PITNEY, JJ. with the job in any other way, the Board

H. A. Drake, for plaintiff. D. J. Pancoast, was justified, in the exercise of its discretion,

for defendant. in refusing to believe his sworn affidavit, and as a result in denying his application. But, as it already appears, the Board did not put VAN SYCKEL, J. This is an action of its rejection of the application upon this trover to recover the value of what is alleged ground. If it had, the facts being undis to be personal property in the Temple Theaputed, there is nothing to warrant such a ter. The defendant held a real estate mortconclusion.

gage on the theater, under the foreclosure of It has also been urged that this court can which it purchased the theater, and claims not look into the facts without first ruling certain articles for which this action is the Board to certify the facts and the ground brought as part of the real estate. The verof their action. Whether the proceedings dict was rendered for plaintiff for $8,621.05. under review emanate from a tribunal that The plaintiff claims title under a subsequent is a special statutory one in the sense of the mortgage, which was both a real estate and supplement to the certiorari act of 1895 (1 chattel mortgage. “At the sheriff's sale under Gen. St. p. 370), giving the court the power the mortgage to the defendant, the plaintiff to determine disputed questions of fact as gave notice that the property in question in well as of law, it is not necessary to de this suit was personal property, and that it termine. The question is raised by the de would not pass by the sale, but was subject fendant Board, which had certified the ex only to the lien of the said second mortgage. amination of the applicant as a part of its

There was no other notice served upon the record. And if the examination is not legally defendant, nor demand made before this achere it may be disregarded altogether, and tion of trover was instituted. The goods were then the prosecutor's right to his certificate left in the theater, which was lawfully in upon his application and affidavit is entirely possession of the defendant, who did not reclear.

move the goods, or do any act except to Another objection raised is that certiorari permit them to remain where they were when is not the proper remedy; that mandamus mortgaged to the plaintiff, and when the sale alone will lie. But the act itself provides In

was made under the chattel mortgage which the twelfth section that the person whose

is the basis of the alleged title.

The gist of the action of trover is wrong. certificate is refused shall have the right to

ful conversion by the defendant, without appeal by certiorari to this court, which is

proof of which the action will not lie. Wytherein authorized and empowered to review and correct the action of the State Board,

koff v. Stevenson, 46 N. J. Law, 326; Bigeand the latter is directed to forthwith carry

low Co. v. Heintze, 53 N. J. Law, 69, 21 Atl.

109. The defendant being lawfully in posout the judgment of the court. The result is that the action of the Board

session of the property, that possession could

not become tortious until it had refused upon is reversed, and an order will be made direct

demand made to deliver them to plaintiff, in ing the certificate to be issned to the prose

the absence of any evidence to show a recutor.

moval of the goods by the defendant, or de

struction of them. For this reason the plain(69 N. J. L. 36)

tiff was not entitled to recover. TEMPLE CO. . PENN MUT. LIFE INS. It is apparent, also, that the plaintiff reCO.

covered the value of some articles which were (Supreme Court of New Jersey. Feb. 24,

part of the real estate and passed to the de1903.)

fendant by the sale under its mortgage. In

Feder v. Van Winkle, 53 N. J. Eq. 370, 33 Atl. TROVER--DEMAND-FIXTURES.

399, 51 Am. St. Rep. 628, our court of last 1. When goods are left by the owner in a building lawfully in possession of the defend

resort pronounced the rule which distinguishes ant, who did not remove, or do any act except

between chattels which become part of the to permit them to remain in the building, the realty and those which retain the character owner of the goods cannot maintain an action

of personalty to be as follows: "There must of trover without first making demand, and being met with a refusal by the defendant to de

be actual annexation, with an intention to liver.

make a permanent accession to the freehold, 2. In determining whether the goods are fix but it is not necessary that there be an intures and part of the real estate, the rule de

tention to make the annexation perpetual. clared in Feder v. Van Winkle, 33 Atl. 399, 53 N. J. Eq. 370, 51 Am. St. Rep. 628, applies.

The intention must exist to incorporate the

chattels with the real estate for the uses to (Syllabus by the Court.)

which the real estate is appropriated, and Action by the Temple Company, to the use there must be the presence of such facts and Smith, against the Penn Mutual Life In. circumstances as do not lead to, but repel,

the inference that it is intended to be a temporary annexation.” The building was erected and used as a theater, and whatever was incorporated with the building to fit it for use as a theater became part of the realty. As in the case of Feder v. Van Winkle, a number of the valuable chattels in this case, such as the range, the dynamos for lighting, the engines, the permanent seats, and other things were actually annexed to the freehold, fitted for and applied to the use to which the real estate was appropriated, all being necessary to the prosecution of a common purpose, and adapted to permanent use ag part of the structure. A heater and range are fixtures, although but slightly attached to the building, if put in by the owner of the premises with the intention of making them such. Erdman v. Moore, 58 N. J. Law, 445, 33 Atl. 958. Applying this rule to the case, the verdict was against the weight of evidence.

The rule to show cause should be made absolute.

A. Wilcox, guardian of James Robertson, minor, deceased. From an order of distri. bution, the guardian of the deceased minor, the executors, and certain other heirs appeal, Reversed.

The fifth item of the will of John Robertson, dated October 22, 1891, was expressed in these words: “Fifth. All the rest, residue and remainder of my estate, whether real or personal and wheresoever situate, I give, devise and bequeath in equal portions, share and share alike to my children Matilda Robertson, Annie Robertson, James Robertson, John Robertson, Clarence Robertson and Leonard Robertson (my daughter Mame Brickman, wife of Frederick Brickman, having been provided for during my lifetime, it is my will that she shall not have any further portion of my estate) to have and to hold to them, their heirs and assigns forever, the share or portion of any deceased child or children dying without issue under twenty one years of age to be divided equally among the survivors, and the issue of any deceased child or children to take his, her or their parents share whether said parent or parents shall have arrived at the age of twenty one years or not."

James G. Blauvelt, for appellants. Francis Scott, for respondents Matilda Miller and Annie Hawkins. Wood McKee, for respondents Mame Brickman and Sarah Robertson,

(64 N. J. E. 322)

In re WILCOX. (Prerogative Court of New Jersey. Jan. 27,

1903.) WILLS-CONSTRUCTION-BENEFICIARIES

DISTRIBUTION. 1. A testator, by his will, devised and bequeathed to six of his children, by name, all the residue of his estate, expressly excluding one child, who had been previously provided for, and also provided that the portion of any child dying under 21 years of age should be divided among the survivors. A child was born to testator afterwards, and there was no provision in the will disinheriting an after-born child. The executors of the will paid to the guardian of one of the children his share of the residuum. The ward died while under age, and without issue. The guardian, having settled his account in the Orphans' Court, was directed by that court to pay the amount remaining in his hands to seven of testator's children, including among them the child excluded by the provisions of the residuary clause, and the after-born child. The appeal from the order of distribution did not question the jurisdiction of the Orphans' Court to make the order, but only claimed that it was erroneous in including in its terms the excluded child and the after-born child. Held:

(1) That the order cannot be supported on the ground that the distributees were the heirs at law and next of kin of the deceased infant, because, by the residuary clause, the interest of the infant, who died an infant and without issue, was thereby divested, and became vested in the survivors of the children therein named.

(2) That the order was erroneous in including the child who had been excluded by the residuary disposition, on the ground that she was not, on a proper construction of that clause, one of the survivors intended by test:tor.

(3) That the order was also erroneous in ircluding the after-born child, on the ground that it must be presumed that she received her share of the testator's estate under the statute, before the executors distributed and paid over the shares of the other children.

(Syllabus by the Court.)

Appeal from Orphans' Court, Passaic County.

In the matter of the accounting of Albert

MAGIE, Ordinary. The appeal in this cause is from an order of distribution made on the 20th day of December, 1901, by the Orphans' Court of Passaic county. The order recited that the account of Albert A. Wilcox, as guardian of James Robertson, a minor, deceased, had been passed and allowed by that court, June 28, 1900, and it directed that the balance in the hands of the guardian, appearing by that account (after payment of costs and certain counsel fees), should be distributed in equal sums to the minor's half-sister Mame Brickman, his sisters Matilda Miller and Annie Hawkins, and his half brothers and sister Clarence Robertson, Leonard Robertson, John Robertson, and Sarah Robertson, one-seventh to each. The appellants are Wilcox, the guardian of the deceased ininor, James Robertson; John Robertson, Clarence Robertson, and Leonard Robertson, three infants who appeared by said Wilcox as their guardian; and James A. Graham and Emmons Fullerton, who are surviving executors of John Robertson, deceased.

The appellants have not contested the jurisdiction of the Orphans' Court to make the order of distribution in question. They only claim that the order was erroneous in includ. ing among those entitled to · distribution Mame Brickman and Sarah Robertson, who is also called Sarah J. Fullerton. The petition of appeal asserts that the fund in ques. tion should be divided between Matilda Mi.

ler, Annie Hawkins, Clarence Robertson, item in question. The construction of that Leonard Robertson, and John Robertson, one clause, in all its possible applications, is not fifth to each. The order of distribution can drawu in question; but it plainly evinces the not be sustained on the theory upon which intention of the testator that in the event of the Orphans' Court seems to have put it. the death of any child under 21 years of age, The order declares that the parties to whom leaving issue, such issue should become imdistribution is directed therein take the fund mediately vested with its parent's share, thus as heirs at law and next of kin of the intes providing for the happening of one event of tate minor. Moneys in the hands of a guard- the double contingency previously dealt with. ian of a minor at his death do not pass to It results that, on the death of James, the the heirs at law or next of kin, but to the share passed by the will of his father, and representative of the minor. As the minor the question is to whom it passed. is incapable of making a valid testamentary The sole contest raised by the appellants disposition, the representative is necessarily is to the right of Mame Brickman and Saan administrator. To him the guardian may rah J. Fullerton to any portion of the share. safely pay the funds in his hands. After ad The case discloses that Sarah J. Fullerton ministration, what remains may then be dis was a daughter of the testator, born to him tributed to those to whom the fund goes. after the execution of his will. At that time

The order cannot be supported in its en the testator had children. An examination tirety unless the interest of James Robert of the will shows that it contains no provison under the will was either not vested in sions for the disinheriting of after-born chilhim, or was, although originally vested, af dren. If there was no settlement upon such terwards divested by the admitted fact that after-born child, she became entitled to such he died before he attained the age of 21 portion of the parent's estate as she would years, and without issue. That the provi- | have been entitled to if the parent had died sions in the fifth item of the will, set forth intestate. 3 Gen. St. p. 3760, $ 19. The in the prefatory statement, when properly contribution required from deyisees and legconstrued, vested in James the share of the atees to make up the interest of such afterresidue thereby disposed, will not support the born child does not disturb the provisions order, if, by a consideration of the whole of of the will in other respects. Wilson v. those provisions, he was afterward divested Fritts, 32 N. J. Eq. 59; Van Wickle v. Van of his interest upon the happening of the con Wickle, 59 N. J. Eq. 317, 44 Atl. 877. The tingency specified. The consideration of the case does not disclose how, or to what exlanguage of the fifth item of the will leads tent, Sarah J. Fullerton, the after-born child me to the conclusion that the share allotted of John Robertson, has acquired the interest thereby to James became vested in him upon in her father's estate which devolved upon the death of the testator; but I think it her under the act. But it is clear that she equally clear that the testator intended that cannot enforce any claim upon the estate of upon the death of any of the children to the deceased infant, in the accounting by whom a share was given by that item, oc Wilcox as guardian. It must be presumed curring under tbe age of twenty-one years that the fund the executors paid to the and without issue, the share would be other guardian represented James' share of the eswise disposed of. Upon the happening of tate of his father, after the after-born child the double contingency-death without issue had been provided for under the law. They and under 21 years of age--the share was could administer and pay over no more, for thereby divested in favor of such other of the will did not operate upon any of the esthe children named in that item as fell with. tate of testator except what was left after in the description of survivors. The case is satisfying the claims of the after-born child within the well-settled doctrines of our own as heir at law and next of kin. The order cases. Nevison y. Taylor, 8 N. J. Law, 43; was clearly erroneous in including Sarah J. Van Houten's Ex'rs v. Pennington, 8 N. J. Fullerton as entitled to one portion of the Eq. 745; Crane v. Bolles, 49 N. J. Eq. 373, fund in question. 24 Atl. 237.

The further contention is that the order Nor is there any ground for the contention was erroneous in including Mame Brickman that the limitation over was restricted by the as entitled to a portion of the fund. On her contingency of death without issue under 21 part it is argued that, as she is named in years, before the death of the testator. At the fifth item of John Robertson's will, althe execution of the will, James and other of though no share is thereby given to her, the the children were infants. He was making word "survivor” used by testator to exa testamentary disposition in contemplation of press those to whom a sha re, the title to his death. It must have been within his con which became divested by the contingent templation that his infant children might not limitation, should go, includes her. But I attain the age of 21 years before he died. cannot assent to this contention. The proviThe period fixed must therefore be the at sion is designed to dispose of a share pretaining of that age, whenever that might hap viously bequeathed and devised. It cannot pen. Van Houten v. Pennington, ubi supra. be construed to relate to the property which This construction is strengthened and made testator states he had previously given to conspicuously clear by the last clause of the Mame Brickman. The provision that, under

a certain contingency, the share should go board employed four clerks and the two reg. to issue, clearly shows that the testator's istrars of voters of New Haven. During purpose was to provide for the shares that this time the plaintiffs, at the request of the are given by that item. There is no lan. board, and upon its order, furnished at their guage in the item capable of applying to restaurant meals to the members of the board the portion of testator's estate which had and to its clerks and the two registrars to been previously given to Mame Brickman, the value of $226.10. The plaintiffs presentand the testator could not, if he desired, im ed their bill to the city, and, payment being pose any condition upon the portion thus refused, this suit upon the common counts previously given. It results that the sur was brought to recover the price or value of vivors intended are those to whom the the meals so furnished. The court below: shares were thereby given, and the order rendered judgment against the city for the was erroneous in including Mame Brickman above amount, with interest, and the city apas a distributee.

peals. No attention has been paid to the question Quite a number of questions are presented whether a guardian can properly pay the by the appeal, but, in the view we have takshare thus limited over to the parties to en of the case, it will not be necessary to whom it is limited, directly, or whether the consider most of them. fund should first go to the executors of the In the discussion of this case, we shall astestator and be distributed by them. No ob sume, without deciding, that, if the members jection to a distribution by the guardian was of the board of registration had paid the bill made below, or has been made here. The here sued upon, the amount so paid could surviving executors of the testator join in have been recovered by them from the city, this appeal, which seems to indicate that under the charter, as a part of their necesthey acquiesce in such order as was made, sary expenses. except in the particulars objected to by The plaintiffs' right to sue the city is based them, and it has been deemed to justify the upon the provisions contained in section 203 consideration I have given to the matter up of the city charter (13 Sp. Laws, p. 449). on the merits.

The claim is that under these provisions the For the reasons above given, the order city is made liable to third persons, in cases must be reversed.

like the present, for the necessary expenses of the members of the board. We think this

claim is untenable. (75 Conn. 545)

The town and city governments of New HEUBLEIN BROS. & 00. v. CITY OF NEW Haven were practically consolidated under HAVEN.

an act approved June 2, 1897 (12 Sp. Laws, (Supreme Court of Errors of Connecticut. p. 1108). By section 12 of that act it was March 4, 1903.)

provided that the powers and duties of the

five selectmen of the town of New Haven CITIES-BOARD OF REGISTRATION-CONTRACTS FOR MEALS-VALIDITY.

should, after a certain date, “be limited to 1. The charter of New Haven, $ 209 (13 Sp. those powers vested in and those duties imLaws, p. 449), provides that the selectmen shall posed upon them by the Constitution and receive 50 cents an hour for time spent in the

laws of the state in relation to the admission discharge of their duties, and that their necessary expenses and compensation shall be paid by

of persons to the privileges of electors in said the city. Held, that a contract by the selectinen, town, and to the erasure from the registry as the board of registration, with the keeper of a list of the names of those who have forfeited restaurant, for meals for the members of the board and its employés while it is in session, is

the privileges of electors." It further pronot binding on the city; the duty imposed on the

vided as follows: "Each of said selectmen city by the statute being one toward the select shall receive fifty cents per hour for the time men, and not toward a third party with whom

actually spent in the discharge of said duties, they have incurred a debt as a part of their ex

and their necessary expenses, and their compenses.

pensation and expenses shall be paid by the Appeal from City Court of New Haven; | city.” The provisions of this act, having James Bishop, Judge.

been accepted by the electors, were incorAction by Heublein Bros. and Co. against porated in the city charter as revised in 1899, the city of New Haven to recover for meals

and the two provisions above quoted appear furnished members of the board of registra

in section 209 of said revised charter (13 Sp. tion on the order of the board. From a judg. Laws, p. 449). It is under the language last ment for plaintiffs, defendant appeals. Re

above quoted that the plaintiffs' right to sue versed.

the city is based. We think it gives no such Leonard M. Daggett, for appellant. E. P. right. Section 209 is mainly concerned with Arvine, for appellees.

the duties and compensation of the select

men, and not at all with the board of regisTORRANCE, C. J. In the fall of 1900 the tration, as a board. It provides that each board of registration of New Haven held a selectman shall “receive" a certain fixed comten-days session for the admission of electors. pensation and his “necessary expenses," and The board consisted of five selectmen and that both compensation and expenses shall be the town clerk. To assist in this work, the paid by the city, although the selectmen are

penses” of each shall be paid by the city to 54. In an action for wrongful death, "defendant

officers of the town. It clearly provides that were no vacant seats, a passenger rode on the the "compensation" to each selectman shall outside running board, and as the car went upon

a curve his head was thrown back so that it be paid to him by the city, and just as clear

struck a trolley pole dangerously near the track. ly, we think, does it provide that the "ex Held, shown. him, and not to a third party. We think the

made a claim of law "that, on the facts proven,

no judgment could be rendered against defendant word "expenses," as here used, means some for greater than nominal damages.' Held, that thing due from the city to the selectman for the claim meant that there was not sufficient evmoney paid him, or debt incurred by bim, idence bearing on the quantum of damages to necessarily in the performance of his duty.

warrant an award of the full statutory amount.

5. As a general rule, in an action for death The duty imposed upon the city by the pro there should be more evidence as to the quanvision in question is a duty towards the se tum of damages than the mere fact that the inlectmen alone, and not a duty towards a

jured party died at a certain age, to warrant an third party with whom they may have in award of full statutory damages.

6. In an action for wrongful death, the evicurred a debt as part of their necessary ex dence tended to show that deceased was a man penses. This being so, there is no privity of average size, and in good condition mentally between the city and the plaintiffs with ref

and physically, and that he lived for some minerence to the indebtedness sought to be re

utes after the accident, and suffered some pain;

and a claim of law was that, on the facts, no covered in this action. Neither the select judgment could be rendered for greater than men, nor the board of registration, nor any

nominal damages. Held, that it was not error to member of it, by dealing with the plaintiffs

award the full statutory damages; it appearing

that there was little or no contest as to the quanas set out upon the record, could bind the

tum of damages, and the attention of the court city to the plaintiffs for the payment of that not having been called to the matter, save by a indebtedness; nor does the city charter any

somewhat ambiguous claim of law. where impose upon the city any duty to Appeal from Superior Court, New Haven wards the plaintiffs as to this indebtedness.

County; John M. Thayer, Judge. For these reasons, we think the record

Action by John Hesse, as administrator of shows that the plaintiffs have no cause of ac the estate of Joseph J. Meyer, deceased, tion against the city. In this view of the

against the Meriden, Southington & Comcase, it is unnecessary to consider the other

pounce Tramway Company. Judgment for errors assigned.

plaintiff for substantial damages, and deThere is error. The judgment below is

fendant appeals. Affirmed. set aside, and the cause remanded, to be proceeded with according to law. The other

Marcus H. Holcomb, for appellant. Jacob Judges concurred.

P. Goodhart and Robert O. Stoddard, for appellee.

(75 Conn. 571)
HESSE V. MERIDEN, S. & C. TRAMWAY

CO.
(Supreme Court of Errors of Connecticut.

March 4, 1903.)
STREET RAILROADS–NEGLIGENCE-INJURY TO

PASSENGER-CONTRIBUTORY NEGLIGENCE
EVIDENCE – SUFFICIENCY - ADMISSIBILITY
-DAMAGES-STATUTORY ALLOWANCE.
1. In an action for wrongful death of one kill-
ed by being struck by a trolley pole while rid-
ing on the running board of an open car, defend-
ant claiming that before deceased was struck he
had ridden for some distance, and was chargea-
ble with knowledge of the proximity of the pole
that struck him, it was proper to show that the
poles passed prior to the accident were placed at
a safe distance.

2. A street car being crowded so that there were no seats, a passenger rode on the running board; and as the car, running at a speed of 15 miles an hour, went upon a curve, he was jolted so that his head was thrown outward, and was struck by a trolley pole, inflicting injuries from which he died. The pole leaned toward the outside of the curve. Its distance from the body of the car, at the level of the floor thereof, was 25 inches, and at the height of the head of deceased, as he stood on the running board, 21 inches; and the running board was 812 inches wide, and the distance between its outside edge and the pole was 1412 inches. Held, that the facts justified a conclusion that defendant was negligent in permitting a passenger to ride on the board while running at such speed past the point in question, with the pole so situated.

3. A street car being so crowded that there

TORRANCE, C. J. Joseph J. Meyer, the plaintiff's intestate, while riding upon the footboard of one of the trolley cars of the defendant, came in contact with a trolley pole, and was so injured thereby that he died within a short time thereafter. In the suit brought to recover damages for said injury, the defendant suffered a default, and the case was heard in damages. The trial court rendered judgment in favor of the plaintiff for $5,000, and the defendant appealed.

The errors assigned relate to the action of the trial court (1) in refusing to amend the finding as requested; (2) in admitting certain evidence; (3) in holding that the defendant was guilty of negligence, and that the deceased was not guilty of contributory neg. ligence; (4) in overruling certain claims of law; (5) in rendering judgment, upon the evidence in the case, for full damages. These claimed errors will be considered substantially in the order stated.

Upon a careful review of the evidence certified up, in connection with the defendant's claims to have the finding corrected, we are of opinion that the court did not err in refusing to do so. Most of the matters which the court below has refused to expunge from or add to the finding are matters about which there was some conflicting evidence, or are dependent upon the credit which the court

3. See Carriers, vol. 9, Cent. Dig. $ 1379.

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