페이지 이미지
PDF
ePub

make any paper title at all, where personal l the finding for the defendant; but it likewise

had possession of bill of sale to him. In ad facts, and state to the Jury that an acceptdition to that, it would not be necessary to ance of the view of the facts as expressed by

the court could lead to no other result but property is concerned, if there is an actual delivery, and vendor takes them into her pos left a theory upon which the defendant session; but where property is not delivered, niight be found to be liable. That view the and vendor does not take possession, it is nec jury took. While we might not have found essary, in order to protect the property from that way had we been the jury, still we can. the creditors, to pass a paper title. There is not say that the result is erroneous. The jury no record that this title bas passed; the bills may be right in their view. The law as to of sale were not recorded; and you will take the liability of a married woman was corthe testimony, and ascertain whether or not rectly stated to the jury by the court, and the title did pass to Mr. Suderly, and whether under it they have found, from the evidence, he ever had either actual or constructive pos that the contract in this case was made with session, so he could pass it to Mrs. Kulin. the defendant. But, if the possession of the goods and chat Nor can we say that the weight of evidence tels changed to vendee, title would not be is so preponderatingly against the verdict necessary.” Exception was taken, and error as to require its overthrow. If it be true that assigned. The evidence of Stubr, which was the original order for the purchase of the uncontradicted, is that a bill of sale of the coal in this case was given by the defendgoods from Frederick Kulin to Suderly, and ant-and the jury have so found-then many a bill of sale from Suderly to the plaintiff, other facts are explainable from the method were executed in bis presence for the pur of transacting the business. The order of pose of conveying the title from the husband the defendant was given by Theodore Wilto the wife, and that when they were duly lett, her husband. He was the person with executed both of said bills of sale were hand whom the plaintiff had all his negotiations ed by him to the plaintiff. The charge of and correspondence. This makes a perfectly the trial court left the jury to understand clear theory for explaining the fact that all that because the bills of sale were not ac the letters were addressed to him. They tually delivered into the hands of Suderly, were written to him as the agent of the wife. and by him delivered in person to the plain. The jury evidently accepted the plaintiff's extiff, no title passed to Suderly or to the plain-planation of the way the account came to be tiff. That was a fatal error. The delivery charged on the plaintiff's books to Theodore by Stuhr was a delivery for the parties to Willett instead of Sarah J. Willett. About the transaction.

the fact that the original order was given The judgment below should be reversed. in the name of Sarah J. Willett, and that

Theodore Willett was authorized to and did

sign it in her name, there is no fair doubt (69 N, J. L. 52)

under the evidence. This being established, FAUX v. WILLETT.•

it would not be proper to reverse a verdict (Supreme Court of New Jersey. Feb. 24, 1903.)

because subsequent letters from the plaintiff

might be said to throw doubt upon the origAPPEAL-REVIEW-CONFLICTING EVIDENCE.

inal order when the original order itself prov1. A verdict founded upon divergent facts

ed to be free from doubt. There is a the will not be set aside because the court may think that, if it had been passing upon the

ory, as we have above seen, upon which facts, it might have found otherwise.

these subsequent letters are all explainable, (Syllabus by the Court.)

consistent with the defendant's personal lia

bility. That theory the jury were told they Action by William J. Faux against Sarah

must find, or the defendant was entitled to J. Willett. Verdict for plaintiff. Rule to

their verdict. They found that theory to be show cause discharged.

the explanation of the letters. We cannot Argued November term, 1902, before the CHIEF JUSTICE and VAN SYCKEL,

say it was not justified under the proof.

This leads to the discharge of the rule to FORT, and PITNEY, JJ.

show cause. A. H. & T. Strong, for the rule. George 8. Silzer, opposed.

(69 N. J. L. 111) FORT, J. There were but two grounds

UNITED NEW JERSEY R. & CANAL CO.

et al. v. GUMMERE, County Clerk, et al. upon which it was seriously contended that there should be a new trial in this case. (Supreme Court of New Jersey. Feb. 24, They were (1) because the verdict was

1903.) against the charge of the court and (2) be CERTIORARI-REVIEW OF ASSESSMENT. cause it was against the weight of the evi 1. A certiorari should not be allowed to set dence.

aside an assessment levied under the public

road act of March 22, 1895 (Gen, St. p. 2902) S The charge of the court certainly did give

14, merely because of defects in the commisto the defendant every intendment and impli sioners' report of assessments, unless the cer. cation which the jury might gather from the tiorari is applied for within 30 days after the

confirmation of the assessment TL See Appeal and Error, vol. 3. Cent. Dig. $ 3922. (Syllabus by the Courti

Certiorari by the United New Jersey Rail circuit court under section 13 of the act in road & Canal Company and the Pennsylvania question, and ought now to be disregarded Railroad Company against Barker Gummere, as a cause for reversing the assessment unJr., and others, to review an assessment. der the act of March 23d, 1881 (Gen. St. p. Writ dismissed.

3404). Argued November term, 1902, before HEN The writ should be dismissed, with costs. DRICKSON and DIXON, JJ. Alan H. Strong, for prosecutors. J. Lef

(69 N. J. L. 94) ferts Conard, Aaron V. Dawes, and Linton

LOWRY V. TIVY. Satterthwait, for defendants.

(Supreme Court of New Jersey. Feb. 24, 1903.)

ACTION ON NOTE-EVIDENCE-TRANSACTIONS DIXON, J. This certiorari brings under

WITH DECEASED PARTNER. review an assessment for the improvement of

1. In an action founded upon a promissory

note, in which a surviving partner and the pera public road in Mercer county under the act

sonal representative of a deceased partner are of March 22, 1895 (Gen. St. p. 2902). The as joined as parties defendant severally liable, pursessment was confirmed by the circuit court suant to section 29 of the practice act (Gen. St. of the county on April 3, 1902, and certiora p. 2537), if the several issues are tried together

without objection, the plaintiff may give testiri was allowed October 22, 1902.

mony concerning transactions with and stateThe fourteenth section of the act above

ments by the deceased partner, so far as relementioned enacts that no certiorari shall be vant to show the liability of the partnership allowed to review any of the proceedings,

firm upou the note, notwithstanding section 4

of the revised evidence act (Laws 1900, p. 363). nor in any way to effect any assessment, aft

(Syllabus by the Court.) er the lapse of 30 days from the making of the order of the court confirming such assess

Error to Circuit Court, Hudson County. ment. The prosecutors rely on a single rea

Action by Hannah Lowry against Peter son both to escape from this limitation and

Tivy and others. Judginent for defendants,

and plaintiff brings error. Reversed. to overthrow the assessment, namely, that the commissioners failed to report that their

Argued November term, 1902, before GUMassessment on the several parcels of land

MERE, C. J., and VAN SYCKEL, FORT, had been made in proportion to, and not in

and PITNEY, JJ. excess of, the benefits received from the im Leon Abbett, for plaintiff in error. Wilprovement. Such a distribution being nec liam S. Stuhr, for defendant in error. essary to a constitutional assessment, the prosecutors insist that under our decisions PITNEY, J. This action was brought to the statutory limitation cannot be enforced, recover moneys alleged to have been loaned and they refer in support to Meredith v. by the plaintiff to the firm of Tivy & Perth Amboy, 63 N. J. Law, 520, 44 Atl. 971, Schmidt, composed of Peter Tivy and Auand cases there cited. But these cases do gust J. Schmidt, as partners, and alleged to not sustain thr position of the prosecutors. have been secured by two promissory notes Their purport is that, where a statute under made by Schmidt individually, payable to which the assessment is levied is unconstitu the order of the plaintiff, and indorsed with tional (Traphagen v. West Hoboken, 39 N. the firm name of Tivy & Schmidt, signed in J. Law, 232; Id., 40 N. J. Law, 193; Kirk the handwriting of Schmidt. Schmidt bavpatrick v. Commissioners, 42 N. J. Law, ing deceased, the plaintiff joined as parties 510), or where the tribunal confirming the defendant the administrator of the deceased assessment is without jurisdiction of the partner and Peter Tivy as surviving partmatter-for example, if it has failed to give ner. The declaration contains the common the required notice (Pardee v. Perth Amboy, money counts, and to it are annexed copies 57 N. J. Law, 106, 29 Atl. 587), or where the of the promissory notes, which are referred circumstances are such that no assessment to in the declaration, and thereby made a can constitutionally be made (Benedictine part of it, as permitted by section 123 of the Sisters v. Elizabeth, 50 N. J. Law, 347, 13 practice act (Gen. St. p. 2554). The pleader Atl. 5; Meredith v. Perth Amboy, 63 N. J. relied upon section 29 of the practice act Law, 520, 44 Atl. 971), there the statutory (Gen. St. p. 2537), entitling the holder of a limitation will not bar. None of these promissory note, instead of bringing sepa: grounds, nor any akin to them, appears in rate actions against the parties separately the present case. The statute provides for a liable, to include them in one action. No constitutional assessment, the lands of the question is raised as to the applicability of prosecutors are subject to assessment, and the that section in a case like the present, for circuit court caused due notice of the time notice of misjoinder was not given in the and place for hearing objections to be given. manner prescribed by section 38 of the pracThe sole ground of complaint is the defect in tice act (Gen. St. p. 2538). Therefore the the report of the commissioners. Such a plaintiff was entitled to proceed to trial and complaint is precluded by the statutory bar. recover judgment against either or both of Benedictine Sisters v. Elizabeth, 50 N. J. the defendants, according as her proofs warLaw, 347, 13 Atl. 5. The defect could cer ranted. Patterson v. Loughridge, 42 N. J. tainly have been remedied by order of the Law, 21; Elliot v. Bodine, 59 N. J. Law,

567, 36 Atl. 1038; Bank of Toronto v. Mfrs. trial Judge with respect to admission of evi. & Meri:hants' Fire Assn, 63 N. J. Law, 5, dence would have been manifestly correct. 42 Atl. 761, at page 13, 63 N. J. Law and But as against the defendant Tivy, who was page 764, 42 Atl.

sued individually, and not in a representaThe defendants severed in their pleadings, tive capacity, the plaintiff was entitled to but the several issues were brought on to give testimony as to transactions between trial together, without objection. The plain- her and the deceased partner relating to the tiff proved the making and delivery of the partnership business. And, as the trial was promissory notes by Schmidt, and proved permitted to proceed upon the combined isthat the indorsements were in his handwrit sues raised by the pleas of the several deing, and that a partnership existed at that fendants, whatever was admissible in evitime between Schmidt and Tivy. The notes dence against one defendant was proper eviwere thereupon admitted in evidence. They dence to be admitted in the cause. If either were made long before the enactment of the defendant had a right to limit the force and recent general act relating to negotiable in- effect of any testimony, this might have been struments (Laws 1902, p. 583), and so the done by proper instructions to the jury. The present case raises no question of the effect total exclusion of the evidence offered was of section 17 of that act, which prescribes erroneous, and the error obviously prevented that, where the language of the instrument the plaintiff from completing her proofs as is ambiguous, certain rules of construction against the defendant Tivy. shall apply, and, among others, that, where The judgment under review should be rea signature is so placed upon the instrument persed, and a venire de novo awarded. that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser. Therefore,

(69 N. J. L. 97) since the notes in question were the indi CORKHILL et ux. v. CAMDEN & S. RY. CO. vidual notes of Schmidt, payable to the order (Supreme Court of New Jersey. Feb. 24, 1903.) of the plaintiff, and indorsed in the firmi

STREET RAILROADS-INJURY TO PASSENGERname of Tivy & Schmidt, the indorsement

NEGLIGENCE OF MOTORMAN. in and of itself alone does not import any

1. The motormau of an electric street railway contract on the part of the firm. But ex

car started his car at moderate speed to cross

an intersecting steam railroad consisting of trinsic evidence is admissible to show what

three tracks, after his conductor had gone forwas the contract of the parties. Chaddock ward upon the crossing and had used proper v. Van Ness, 35 N. J. Law, 517, 10 Am. Rep.

care to ascertain that no railroad train was to

be expected. While thus proceeding over the 256; Haydon v. Weldon, 43 N. J. Law, 128,

crossing at moderate speed, the motorman be39 Am. Rep. 551; Johnson v. Ramsey, 43 N. came suddenly aware of a railroad train roundJ. Law, 279, 39 Am. Rep. 580, at page 282; ing a curve near by, and coming toward his Building Society v. Leeds, 50 N. J. Law, 399,

car at a high rate of speed, without timely warn

ing by bell or whistle. A collision seemed im18 Atl. 82, 5 L. R. A. 353; Middleton v. Grif

minent, and was in fact narrowly averted. The fith, 57 N. J. Law, 442, 31 Atl. 405, 51 Am. motorman, on seeing the danger, instantly apSt. Rep. 617, at page 448, 57 N. J. Law, and plied all power, and increased the speed of his page 407, 31 Atl.

car to the utmost, in order to escape the colli

sion. It was claimed that in the lurch of the The plaintiff was sworn as a witness, and street car thereby occasioned a passenger was was asked concerning certain transactions thrown to the floor of the car and injured. alleged to have taken place between her and

Held, that a verdict attributing negligence to the Schmidt at the time of the making of these

motormau on these facts cannot be supported.

(Syllabus by the Court.) notes. She was also asked whether she had loaned moneys to the firm of Tivy & Schmidt

Action by Adam Corkhill and wife against at the time the notes were given.

the Camden & Suburban Railway Company These

and the Pennsylvania Railroad Company. questions were objected to by counsel for the defendants on the ground that under the

Verdict against defendant Camden & Suburrevised evidence act (Laws 1900, p. 363, 8

ban Railway Company. Rule to show cause

made absolute. was excluded from testifying to any transaction with or statement by the deceased,

MERE, C. J., and VAN SYCKEL, FORT, Schmidt. The objection was sustained by

and PITNEY, JJ. the trial court. At the close of the case the Howard Carrow, for plaintiffs. Joseph H. court directed verdict in favor of the plain. Gaskill, for defendant. tiff against Schmidt's administrator, and granted a nonsuit in favor of the defendant PITNEY, J. This action was brought Peter Tivy on the ground of want of evi against the present defendant and the Penndence against the firm. At the instance of sylvania Railroad Company to recover damthe plaintiff, exceptions were sealed to the ages for personal injuries alleged to have rulings just referred to, and she now brings been sustained by Mrs. Corkhill while a pasthis writ of error seeking to reverse the judg senger upon a street car of the Camden & ment of nonsuit.

Suburban Railway Company at the crossing If the administrator of Schmidt had been of that railway over the tracks of the Pennthe sole party defendant, the rulings of the sylvania Railroad Company. Upon the trial

a nonsuit was ordered with respect to the with the imminent danger of a collision, latter company. This ruling is not complain. his act evidenced complete presence of mind ed of. The plaintiffs recovered verdicts as and the exercise of the highest degree of against the present defendant, and a new tri care. If, on being confronted with such a al is asked because those verdicts are against danger, he had failed to make extraordinary the weight of the evidence.

efforts to increase his speed, there would, With respect to the liability of the Camden perhaps, have been ground to charge him & Suburban Railway Company, the questions with negligence, and the only excuse would raised are, first, was there negligence on the have been that in the sudden peril he lost his part of the motorman or conductor in at presence of mind. If he had presence of tempting to cross the tracks of the steam mind (as he manifestly bad) it was his plain railway; secondly, was there negligence on duty to instantly apply the utmost power the part of the motorman in suddenly in possible, in order to carry his passengers creasing the speed of the car while upon the across without loss of life. Even though that crossing; and, thirdly, did such negligence, might necessarily result in some danger of if any, result in a physical injury to Mrs. bruising, or even of more serious personal inCorkhill.

jury to the passengers, such injury was far Taking the evidence most strongly in favor preferable to the loss of life of one or more of the plaintiffs, it shows: That wbile Mrs. of the passengers, which would undoubtedCorkhill was seated in an electric street rail ly have resulted from a collision with the way car operated by the employés of the locomotive. present defendant the car came to the cross The cases that have beld street railway ing of the steam railroad (which consisted of companies liable for injuries to passengers three tracks) at Tirelfth and Federal streets, caused by the lurch of a car have gone upon in the city of Camden. That it stopped be the ground that there was a sudden increase fore entering upon the crossing. That the of speed under circumstances that evinced a gates were at this time down. The conduc disregard of the safety of the passengers. tor of the electric car went forward to the Consolidated Traction Co. v. Thalheimer, 59 center of the crossing, and looked for trains X. J. Law, 474, 37 Atl. 132; Scott v. Bergen upon the steam railway. He saw no train Co. Traction Co., 63 N. J. Law, 407, 43 Atl. save a freight train, which was standing on 1060. See, also, May v. North Hudson Co. one of the tracks near by. The railroad Railway Co., 49 N. J. Law, 415, 9 Atl. 688; flagman told the conductor to cross, as the Haile v. Clayton & Hoff Co., 61 N. J. Law, train was going to stand there. Then the 197, 38 Atl. 805; Burr v. Pennsylvania R. R. gates were raised. The conductor beckoned Co., 64 N. J. Law, 30, 44 Atl. 845; Paynter v. to the motorman to come ahead, and he Bridgeton Traction Co., 67 N. J. Law, 619, did so. Thereupon the electric car started 52 Atl. 367. over the crossing at a moderate speed. In the present case the trial judge properWhile it was passing over, a train unexpect- | ly charged the jury, in effect, that, unless edly approached on the railroad, rounding a there was negligence on the part of the concurve, and, so far as the evidence shows, it ductor in allowing the car to cross without gave no signal by bell or whistle. The evi

exercising proper vigilance, or negligence on dence shows that a collision appeared immi. the part of the motorman in managing the nent. The flagman upon the railroad waved car as it crossed the railroad, the plaintiff a red flag in front of the locomotive in order could not recover. The finding of the jury to avert a collision, and the train was finally that there was such negligence was contrary stopped within 50 feet of the electric car. to the great weight of the evidence. It is The situation was so critical that every pas therefore unnecessary to deal with the quessenger in the car was alarmed, and stood up, tion whether Mrs. Corkhill's paralysis did not and looked out of the windows; and the result, according to the great weight of the motorman, seeing the danger, instantly ap evidence, from mere fright, as insisted by plied all power, in order to carry his car the defendant, rather than from her being across as quickly as possible. Mrs. Cork thrown to the floor of the car, as claimed by hill's story is that by the sudden lurch caus the plaintiff s. ed by the increased speed of the electric car The rule to show cause will be made, absoshe was throwu to the floor, and the infer lute. ence sought to be drawn from this is that the fall caused tbe paralysis from which she has

(69 N. J. L. 126) since suffered. The case is devoid of evidence to show

HAWKINS, Fish and Game Warden, v.

AMERICAN COPPER EXTRACany want of care in either conductor or mo

TION CO. torman in attempting the crossing; on the contrary, there is affirmative evidence to (Supreme Court of New Jersey. Feb. 24,

1903.) show that the conductor took every reasonable precaution, and that neither he nor the

CONSTITUTIONAL LAW-TITLE OF ACT. motorman had any warning that a train was

1. Section 17 of "An act to provide a uniform

procedure for the enforcement of all laws recoming. As to the conduct of the motorman

lating to fish, game and birds, and for the rein turning on ful! power when confronted covery of penalties for violations thereof," ap

proved March 29, 1897 (P. L. p. 109), is unconstitutional, because its object is not expressed in the title of the act. (Syllabus by the Court.) Certiorari to Justice of the Peace. Action by the state, by Charles M. Hawk. ins, fish and game warden, informer, against the American Copper Extraction Company. Judgment for plaintiff, and defendant brings certiorari. Reversed.

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

P. H. Gilhooly, for prosecutor. Francis Scott, for defendant.

reasonable application therefor, because of his refusal to prepay the costs of the jury. A judgment obtained before the justice after such refusal is invalid for want of jurisdiction.

(Syllabus by the Court.)
Certiorari to Justice of the Peace.

Action by Rowland H. Mackenzie aga inst Edward L. Gilbert. Judgment for plaintiff, and defendant brings certiorari. Reversed.

Argued November term, 1902, before DIX. ON and HENDRICKSON, JJ.

Warren Dixon, for plaintiff.

DIXON, J. The offense complained of in the court below was a violation of section 22 of "An act for the protection of certain kinds of birds, game and fish, to regulate their method of capture and provide open and close seasons' for such capture and possession," approved March 22, 1901 (P. L. p. 261). This section Imposes a penalty of $100 for each offense. The twenty-ninth section enacts that the provisions of the act shall be enforced in accordance with the provisions of the act of March 29, 1897, the title of which is given at the head of this opinion. The seventeenth section of the act of 1897 declares that in all cases where a person shall be convicted a second time double the penalties prescribed shall be imposed upon such second conviction. On the present complaint a penalty of $200 was imposed in accordance with this section 17, and the present certiorariis brougbt to reverse that judgment.

We think section 17 is rendered inoperative by article 4, § 7, par, 4, of the Constitution, because its object is not expressed in the title of the act. The title relates wholly to procedure, and gives no intimation of a purpose to impose or increase penalties. The recent decision of this court in George Jonas Glass Co. v. Ross, 53 Atļ. 675, is based on a similar distinction. Section 29 of the act of 1901 does not aid the plaintiff below, for that section merely directs how the provisions of the act of 1901 shall be enforced, and that act authorizes only the penalty of $100. We incline also to think that the clause in the act of 1901 directing that the penalty for each offense shall be $100, making no distinction between the first and subsequent offenses, is inconsistent with, and therefore overrides, the earlier provision that a double penalty should be imposed for each offense after the first.

The judgment should be reversed, with costs.

HENDRICKSON, J. This writ brings up for review a judgment in the court for the trial of sinall causes in the county of Bergen. The only ground alleged for reversal is that the defendant was refused a trial by jury, although the same was duly demanded at the trial. The transcript shows that on the first adjourned day “the parties appeared. Defendant demanded a jury, and refused to pay for the same, whereupon the court refused to call a jury. Defendant then move ed to dismiss the case. The court refused, and proceeded to trial." There is no provision in the act under which justices' courts are established making the prepayment of the costs of a jury a prerequisite to the right of trial by jury guarantied in our Constitution. It was decided by this court in the case of Clayton v. Clark, 55 N. J. Law, 539, 26 Atl. 795, that in an action brought in the district court, when the matter in dispute is above the sum of $200, a demand for a jury made by the defendant at the proper time deprives the court of jurisdiction to try the cause otherwise than by jury. It was further held that such a demand gives the defendant the right to a trial by jury without prepayment of costs, or to have the action against him dismissed. The early cases show tbat this court has ever carefully guarded the right to trial by jury, even in the smallcause courts. Carey V. Forsyth, 3 N. J. Law, 432; Morelander v. Hays et al., 2 N. J. Law, 161; Daniels v. Scott, 12 N. J. Law, 27. The principles enunciated in Clayton v. Clark, ubi supra, should, we think, have application to justices' courts, the jurisdiction of which has been enlarged to the sum of $200.

The result is that for the error complained of the judgment below will be reversed, with costs.

(69 N. J. L. 184)

MACKENZIE v. GILBERT. (Supreme Court of New Jersey. Feb. 24,

1903.) JUSTICE COURT-TRIAL BY JURY-JUDGMENT.

1. The right to a trial by jury cannot be denied to a defendant in justice's court who makes

(69 N. J. L. 165) PEASE V. PATERSON & STATE LINE

TRACTION CO. (Supreme Court of New Jersey. Feb. 24,

1903.)
HIGHWAY-DEDICATION-ACCEPTANCE-

CONDEMNATION. 1. A street or avenue laid out by an owner upon his land, and by him dedicated to the public use, in the absence of its acceptance by the public is not a street or highway within the

11. See Dedication, vol. 15, Cent, Dig. I

« 이전계속 »