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declaration. This motion was denied, and allowed to him by the jury. The verdict in then, upon the application of counsel for the favor of the husband should, therefore, be plaintiff, and against objection upon the part set aside, and a new trial allowed to him. of the defendant, the trial court permitted a juror to be withdrawn. The defendant then applied for and obtained a rule to show cause why a new trial should not be directed.

CLEARY V. WALDRON. The rule to show cause should be dischar

(Supreme Court of New Jersey. Feb. 25, ged. The withdrawal of a juror by direction

1903.) of the court produced a mistrial. There nev

UNLAWFUL DETAINER-AFFIDAVIT-JURISer having been any trial of the cause, it is

DICTION obvious that a new trial cannot be directed. 1. Where, in a landlord's proceeding for posThe original venire still remains in force,

session, his affidavit shows neither his owner

ship, nor any right of possession in him, the and parties are entitled to proceed under it.

court has no jurisdiction. Rule discharged.

Appeal from District Court of Trenton.

Action by Margaret Cleary against John J. (69 N. J. L. 226)

Waldron. From a judgment for plaintiff, de. CASWELL et al. v. NORTH JERSEY ST. fendant appeals. Reversed. RY. CO.

Argued November term, 1902, before GAR(Supreme Court of New Jersey. Feb. 25,

RISON and GARRETSON, JJ. 1903.)

Wm. J. Walsh and James J. Cahill, for apDAMAGES-INADEQUATE VERDICT.

pellant. Scott Scammell and Jno. T. Van 1. Where a verdict cannot be declared inade Cleef, for appellee. quate, plaintiff cannot have it set aside as too small, though a considerably larger sum would PER CURIAM. This is a landlord's pronot have been declared excessive. 2. A verdict of $100 to a husband for depriva

ceeding for possession, instituted by Margaret tion of his wife's society, and for expenses nec.

Clear whose affidavit bows neither her essarily incurred by him because of her injuries, ownership of the premises, nor any right or will be set aside as inadequate, the undisputed

possession in her. The district court was evidence showing he has paid or is liable to pay, considerably more than that for expenses

without jurisdiction, and its judgment must rendered necessary by her injuries.

be reversed. Action by Lorenda G. Caswell and husband against the North Jersey Street Rail

(64 N. J. E. 640) way Company. Heard on rule to show cause.

GEORGE JONAS GLASS CO. v. GLASS Verdict set aside as inadequate.

BLOWERS ASS'N OF UNITED STATES Argued November term, 1902, before GUM.

& CANADA et al. MERE. C. J., and VAN SYCKEL, FORT,

(Court of Chancery of New Jersey. March 16, and PITNEY, JJ.

1903.) Benjamin & Benjamin, for plaintiffs.

TRADE UNIONS - STRIKES - PICKETING - -INHoward MacSherry, for defendant.

TIMIDATION OF EMPLOYÉS-INJUNC

TION PENDENTE LITE. PER CURIAM. This was an action for

1. Where, on an order to show cause why an

injunction should not be granted against strikpersonal injuries received by the female

ers and the labor union, restraining picketing plaintiff. The jury rendered a verdict of and illegal interference with plaintiff's employés $500 in favor of the wife, and of $100 in fa pending suit for permanent relief, the only vor of the husband. The contention on be

showing by defendants consisted of a large

number of affidavits, written on printed blank half of the plaintiffs is that the amounts al

forms—the spaces being filled with the names of lowed by the jury in each instance are too the particular answering defendants—which consmall. So far as the amount allowed by the

sisted merely of a denial of the facts alleged in

the bill, and allegations that the strike which jury to the wife as compensation for the in

was in progress was being conducted without jury received by her is concerned, although violence or unlawful interference with complaina considerably larger sum could not have ant's business, and it did not appear that the isbeen declared to be excessive, yet, on the oth

suance of the injunction until final hearing

would result in any hardship to defendants, the er hand, the amount fixed by them cannot

injunction would be granted. be declared inadequate. The verdict in her favor, therefore, must stand. The compen

Suit by the George Jonas Glass Company sation allowed to the husband for the depri- against the Glass Blowers Association of the vation of the society of his wife, and for the

United States & Canada and others for an expenses necessarily incurred by him, by rea

injunction to restrain defendants from picketson of her injuries, is clearly inadequate.

ing and illegally interfering with plaintiff's The undisputed evidence in the case shows

employés. On order to show cause why an that he has either paid out, or is legally lia.

injunction should not be granted pendente ble to pay, for medical attendance to his

lite. Decree for complainant. wife, necessitated by her injury, and for oth Hampton & Fithian and John W. Harding, er expenses rendered necessary thereby, a for complainant. H. L. Miller and John W. sum considerably in excess of the amount Westcott, for defendants.

GREY, V. C. (orally). In this case an or of complainant, or from entering complainder was made that the defendants show ant's employment; and from intimidating or cause why an injunction should not issue ac in any manner threatening the wives and cording to the prayer of the bill of complaint. families of said employés at their homes beAccompanying that order, an ad interim stay cause of their said employment; and from was allowed, restraining certain named de conspiring in meetings, or otherwise conspirfendants “from entering or attempting to en ing together, by threats or other coercive acter complainant's premises, consisting of its tion, to induce or coerce any of the employés glass manufacturing plant at Minotola, in the of complainant to leave the service of said township of Buena Vista, county of Atlantic complainant, or to prevent any person, by and state of New Jersey; and from obstruct threats, intimidation, force, or violence, from ing or attempting to obstruct the free passage entering the service of complainant; and of any employé or employés of complainant that the said William M. Doughty be, and in going to and from complainant's premises; he hereby is, restrained from using money from in any wise threatening or using any in furtherance of the purpose of preventing coercive language or coercion whatever in or employés of the complainant from returning der to induce any employé of complainant to their work, and from paying money to not to work for complainant; and from in such employés to induce such employés to any wise interfering with, or annoying by leave their employment with complainant." acts or words, any such employé of complain. On the coming in of the order to show cause, ant, against his will, in going to and from, the defendants filed separate answers, to the or while engaged in, such employment; and number of about 100, most of them using the from entering its grounds and premises for same printed form; blank spaces being filled the purpose of interfering with, hindering, with the names of particular answering deor obstructing its business; and from com fendants. Numerous affidavits were attached pelling or inducing, or attempting to compel to these answers, in which printed forms or induce, by threats, intimidation, annoying were used; many of the defendants swearing language, or acts of force and violence any to the same precise form of words. Addiof the employés of complainant to refuse to tional separate affidavits were also submitted or fail to perform their duties as such em in opposition to the allowance of the writ. ployés; and from compelling or inducing, or Neither by these elaborate pleadings, nor attempting to compel or induce, by threats, the accompanying affidavits, nor in the arguintimidation, annoying language or acts, ments of the defendants' counsel, is it claimforce or violence, any of the employés of ed that the terms of the restraint allowed complainant to leave the service of complain- | by the above-recited ad interim stay work ant; and from preventing or attempting to any hardship or oppression upon the defendprevent any person or persons, by threats, ants. The whole burden of the pleadings, intimidation, annoying language or acts, force proof, and argument submitted by the deor violence, from entering the service of the fendants is directed to a denial of the facts complainant; and from congregating at or and circumstances set up in the complainnear the said premises of complainant, or ant's bill, and to contentions that the strike in the public highway, for the purpose of which is now admittedly being conducted unintimidating complainant's employés or pre der the direction of the defendants at the venting them from rendering their services complainant's works is carried on without to complainant, and from inducing, by the either violence, intimidation, or other unlawpayment of money, or by promises to pay ful interference with the complainant's busimoney, or coercing by threats, annoying lan

The situation is this: A restraint is guage, or acts, said employés to break their outstanding which imposes no hardship upon contracts of employment with complainant the defendants, and the legality of which is and to leave its employment; and from col not challenged, save as it is contended that lecting, either singly or in combination with in point of fact there is no occasion for its others, in and about the approaches to com exercise. At the present stage of the case, plainant's said plant, or in the public high- this question is before the court upon ex way, for the purpose of picketing or patrol- parte affidavits. The cause has been set down ling or guarding the streets, highways, gates, for a day certain on final hearing, when witand approaches to complainant's said prop nesses will be produced in open court and erty for the purpose of intimidating or coer subjected to cross-examination on the very cing any of the employés of the complainant same points which are now presented only in going to and from their work, and the by voluntary affidavits. It is indicated that said factory of the complainant; and from the case will turn almost wholly upon the congregating at or about any place at Mino credibility and weight of the testimony of wittola for the purpose of intimidating, threat nesses of whose worthiness the court has but eping, or coercing any person or persons seek little opportunity to be advised. If I pass ing employment of complainant; and from upon the credibility of this testimony as exgoing, either singly or collectively, to the hibited by the affidavits on file, I shall have homes of complainant's employés, or any of prejudged this case, and have subjected the them, for the purpose of intimidating or coer. parties to embarrassment when the same cing any or all of them to leave the employ facts shall be presented by the same wit

ness.

name.

nesses on the stand, giving their testimony | Noble, had been told that, if they applied at in open court. There will be two hearings the works of the complainant company, they and decisions on substantially the same ques- could probably get employment. They aption. The cause can be disposed of on the proached the complainant's factory by walking final hearing in a much more intelligent and along the railroad which passes by it. They conclusive manner.

were met by two or three men, apparently As the ad interim restraint is not injurious strikers, one of whom asked whether they to the defendants, but its removal may work were going to the factory to work. They degreat harm to the complainant, the present nied that they were, and proceeded towards status may remain until the final hearing the factory; several of the strikers accomgives a full opportunity to pass upon the panying them nearly to the gates. They went whole case by a single judgmente

into the factory without interference or molestation of any sort. They then left the

factory to go to the house of a Mr. Schaible. (64 N. J. E. 644)

Three or four other men went ahead of them, GEORGE JONAS GLASS CO. V. GLASS and some followed them on bicycles; no con

BLOWERS ASS’N OF UNITED STATES versation passing between them. They were & CANADA et al.

unable to find Mr. Schaible's house, and re(Court of Chancery of New Jersey. March 16,

turned to the factory without hindrance from 1903.)

any one; some of those who had accompanied

them going before and some behind them, at TRADE UNIONS-STRIKES-INTIMIDATION OF EMPLOYÉS-INJUNCTION-VIOLA

distance varying from 25 to 75 yards. At the TION-EVIDENCE.

factory they stated their inability to find 1. Defendants, who were engaged in a strike, Schaible's house, and started out again with a had been restrained from intimidating plain Mr. Dare to find it. They testify that they tiff's employés, and from congregating for the purpose of intimidating any person seeking em

were now followed, at some yards' distance, ploynient of plaintiff. In an application to pun

by a considerable number of men on bicycles ish defendants for contempt, the only evidence and afoot. When they were going across a was that two men who approached plaintiff's lot, one of these men threw an apple at them, works were asked whether they were going to work in the factory, and were accompanied by

and, Mingin says, called Mr. Dare a foul several strikers to the gates of the factory, but

Noble says, if he understood them were permitted to enter without molestation; aright, the men called foul names after all that when they came from the factory they were followed at a distance, but, on their return, en

of them. When they got to the Schaible tered the factory without molestation, but were

house, Mingin, Noble, and Dare went into thereafter followed to the house of a third per the house, while the men who followed reson, with whom some of the strikers offered to mained outside. One of the latter came to fight. The proof as to the assemblage of the

the door, and wanted to talk to Mingin and persons was uncertain. Held, that the evidence was not sufficient to justify a finding that the

Noble. Mingin went to the door, and was injunction had been violated.

asked by the man if he was going to work Application by the George Jonas Glass

at the factory. Mingin again told him that

he “didn't know as he was." Mr. Schaible Company against the Glass Blowers Association of the United States & Canada and oth

and the men then had some words, and one ers for the punishment of defendants for vio

of the latter pulled off his coat and invited lation of an injunction. Denied.

Schaible to fight. The two-Mingin and NoSee 53 Atl. 138.

ble-stayed in the house three-quarters of an

hour, and then left by a back door. Neither Hampton & Fithian and John W. Harding,

Mingin nor Noble was hired to work at the for complainant. H. L. Miller and John W.

factory, and both declared they were afraid Westcott, for defendants.

to stay. Their testimony is flatly contra

dicted by that of a large number of wit. GREY, V. C. (orally). The petition in this nesses who deny the use of any opprobrious matter asks that certain defendants may be words or threats. It is shown by the testiadjudged to be guilty of contempt because mony of Mingin and Noble themselves that of their action on September 17, 1902, in al they had been drinking when they came to leged breach of a restraining order of this Minotola, and the proof strongly indicates court made on the 7th day of July, 1902. that they were considerably under the influThe order restrains the defendants from at ence of liquor. They admit that they told tempting to prevent any person, by threats, the first man they met that they did not intimidation, annoying language or acts, force mean to apply for work at the complainant's or violence, from entering the service of the factory, and that they afterwards repeated complainant, and from congregating for the this statement at Mr. Schaible's house. There purpose of intimidating, threatening, or coer is no pretense of proof that there was in cing any person seeking employment of com fact any interference seeking to prevent the plainant, etc. An order to show cause was two men from entering the complainant's allowed, and testimony in open court was factory. They went into the factory twice taken in suppert of and in opposition to the without any attempt on the part of any one charges of the petition. The petitioner's tes to stop or molest them. The testimony as timony is that two men, named Mingin and to a showing of hostility to Mingin and Noble

can

be

is by words only, which might, of course,

(69 N. J. L. 300) be sufficient, if proven by the weight of the HICKS v. LONG BRANCH COMMISSION evidence. But the evidence given by the com

et al. plainant's own witnesses as to the words (Supreme Court of New Jersey. Feb. 21, used is neither consistent nor clear in stating

1903.) what was said, and it is flatly contradicted

CITIES-OFFICERS-INTEREST-LEGISLATIVE by numbers of witnesses who were in the

BODY-PUTTING MOTION-RESULT. party, or followers of it.

1. Where a member of a city commission act. There is but one element in the proofs

ed for a water company on two occasions, in

each of which the city was equally interestedwhich leads me to hesitate in disposing of one being advice to pay a franchise tax to the this motion, and that is on the charge that city, and the other to secure an injunction to there was a congregating of a large number prevent the pollution of the city's water supply

-he was not thereby disqualified to vote on a of men for the purpose of intimidating those resolution awarding a contract to such company. who might wish to seek employment at the 2. Where the president of a board of commiscomplainant's factory. There

no sioners refuses to put a motion duly made, any question, taking the whole case together, that

member may put it, and declare the result. at and near the complainant's factory a sys

3. On a viva voce vote in a legislative body,

the whole body is counted as the chair antem of picketing has been inaugurated. All nounces, and where the declaration that a moof the approaches to Mr. Jonas' factory are tion was carried was not challenged, and the watched by these men, who frankly say that

minutes showing that it was carried were ap

proved at the succeeding meeting, the motion they propose to persuade (as they say, peace should be considered properly carried, as against ably) anybody from taking employment in an objection subsequently made that an insufthe factory. I have not been invited to de

ficient number of votes were heard in favor of

the motion. clare that mere peaceable picketing of public roads is in itself a breach of the restraint. Certiorari, on petition of Alfred 0. Hicks, I am not prepared to say, if that question against the Long Branch Commission and were under consideration, that men may not,

Tintern Manor Water Company, to review under the law, stand in a public road and

a resolution of the commission. Writ distry in a peaceable way to persuade other peo

missed. ple not to take work in a factory. The diffi McCarter, Williamson & McCarter, for culty in such cases is that the picketing is

prosecutor. Corbin & Corbin, for defendant usually done by persons who are ignorant Tintern Manor Water Co. Thomas P. Fay, of the line where persuasion ends and intimi for defendant Long Branch Commission. dation begins; who are actuated to a considerable extent by a determination to ac FORT, J. The certiorari in this case brings complish the ultimate object-the prevention up a resolution of the Long Branch commisof employment at the factory. They are sion passed November 24, 1902. There are men who have never felt the responsibility hut few questions that need to be considered. attendant upon the exercise of power. When There is no proof to justify any allegation they know that the result which they wish to of fraud, or of a palpable abuse of discreaccomplish can be certainly attained by the

tion, in the board of commissioners, in passuse of intimidation or force, the line of per ing the resolution. In awarding contracts, suasion is very apt to become obscure and wliere there are no arbitrary statutory regulato be ignored, and conduct which ought to tions, a municipal body vested with the pow. be a simple persuasion between one man and er to make them has a large measure of disanother becomes a course of threatening or cretion. In reviewing such action, the court violence for the accomplishment of the result will only inquire into the honesty and good sought. The proof on the point of the as faith of its exercise. Two cases recently desemblage of a number of persons for the pur cided in this court contain a reference to pose of intimidating persons seeking the com like decisions on this subject: Ryan v. plainant's employment was uncertain and va Paterson, 66 N. J. Law, 533, 49 Atl. 587; . riant as to their number, and still more so Kraft v. Board of Education, 67 N. J. Law, as to their purpose. Noble and Mingin them 512, 51 Atl. 483. selves differ as to their number, and do not Upon the evidence in this case, I find the show that at any time the followers approach following facts: ed at all nearly to them-apparently not near First. That the resolution brought up was enough for them to distinguish their remarks duly passed by a viva voce vote on Novenwith any certainty. On this point, however, ber 24, 1902. the testimony comes nearer to showing a Second. That Winfield S. B. Parker, one breach of the restraint than on any other of the commissioners, was not, at the time line of the examination. I make this judg of the passage of said resolution, the attorney ment with some hesitation, but considering of the Tintern Manor Water Company, and the weight of all the testimony, I am not able that he had no interest therein. There is to say that a breach has been shown.

proof in the cause, not controverted, that The prayer of the petition that certain de Mr. Parker represented the water company fendants be held to be in contempt because during 1902 in two matters, but in both of of their conduct in the incident of September these matters it likewise appears that the 17, 1902, narrated in the petition, is refused. city was quite as much interested as the

water company. In the spring of 1902, Mr. fication of the vote by show of hands or roll Parker had insisted that the water company call. On a viva voce vote in a legislative should pay to the city its franchise tax, and body, the whole body is counted as the chair the secretary of the company told him that announces. Mr. Cushing states it this way: they did not think it was a legal tax against "In all his official acts and proceedings, therethem, but that if he would look it up, and fore, he represents and stands for the assemadvise them that it was legal, they would bly; and his will is taken for that of the pay. He did this, and gave them an opinion whole body, compendiously expressed through that they were bound, and the water com him, and by his mouth, instead of being colpany paid and the city received the tax. It lected from the individual wills of all the would be difficult to question Mr. Parker's members.” Cushing's Law & Practice of motives in that case. The other case was Legislative Assemblies, & 294. But if it be one in which the city was more vitally inter proper to go into the proof of the actual vote, ested than the water company, and under then in the case before me the proof is as quite as great an obligation to take proceed clear as it can be made that five members of ings. One Dangler was polluting the city's | the board voted for the resolution. There is water supply by maintaining objectionable but one question before me, viz., as to the conditions adjacent to it. The water com legality of the passage of this resolution to pany asked Mr. Parker to secure an injunc authorize the making of a contract. Whethtion to prevent the continuance of the nui er all that was necessary to be done to have sance. He did so. The nuisance was abat a contract executed, or whether the form of ed. It would have been equally proper for agreement in the report of the finance comthe city to have done this. There could be mittee on November 17, 1902, was approved no possible antagonism to the city's interests and authorized by the action of November under these employments. There is not a 24, 1902, to be executed, is not decided; for, semblance of proof that in any other way or as I view this case, it is not before the court. at any other time did Mr. Parker ever appear Whether there is any contract, pursuant to for the Tintern Manor Water Company. that resolution, must be tested in some other The proof is that he has not now, and never way. has had, any interest in the company. Mr. The writ is dismissed. Parker is a member of the bar in good standing and of excellent repute. No attempt was made to show that he received any improper

(69 N. J. L. 193) coinpensation in either case. Upon the pas BUDD et al. v. CITY OF CAMDEN et al. sage of the resolution in question he was

(Supreme Court of New Jersey. Feb. 25, clearly entitled to vote. This case does not

1903.) come within the rule enunciated in the case

CERTIORARI LACHES STREETS USE BY of The Traction Co. v. Board of Works, 56

TROLLEY COMPANIES-REASONABLENESS. N. J. Law, 431, 29 Atl. 163. In that case the

1. Certiorari to set aside a municipal ordimember of the board voting was clearly an nance granting rights to a trolley company six interested party at the time he gave his vote. years after its passage, prosecutor having Third. That there was sufficient appropria

known of the ordinance all the time, is too late.

2. The question whether the proposed use of tion, legally voted and unexpended, to cover

a highway by a trolley company is reasonable any sums required to meet the expenditure is for the municipality, and not for the court. authorized, if any was authorized, by the resolution.

Application for certiorari by Hiram E.

Budd and others against the city of Camden Fourth. That there was no irregularity in

and the Camden & Suburban Railway Comthe procedure in passing the resolution which should vitiate it. The president of the

pany. Denied.

Argued November term, 1902, before GARboard of commissioners of Long Branch is

RISON and GARRETSON, JJ. only the mouthpiece of the commissioners. It is his duty to put a motion duly made. If Francis D. Weaver, for applicants. E. A. he refuses, any member may put it. Any Armstrong, for defendants. other rule is destructive of legislative functions.

GARRISON, J. The prosecutor is in lach. Fifth. That the evidence is conclusive that The ordinance sought to be set aside he did refuse to put the motion on the pas was passed on September 19, 1896. The sage of the resolution here attacked.

prosecutor at that time knew of the proposed Considerable evidence has been taken, and, ordinance, for he refused to give his consent on the argument, much stress was laid, upon to the exercise of municipal discretion in the the alleged fact that only two votes were premises, and employed counsel, who, on Auheard in favor of the passage of the resolu. gust 28, 1897, filed a bill in equity. At this tion. The minutes show that it was carried, date the ordinance had stood for nearly a and these were duly ratified at the succeed year, and work had been done under it. Six ing meeting. There was no challenge by any | years had passed before the legality of the member of the announcement that the reso ordinance was directly drawn in question by lution was carried, when that statement was the present application. During all this time made by the chair, nor any demand for veri the trolley company had a right to assume

es.

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