Imágenes de páginas

bundles had been loaded in the car and prop-, within a reasonable period after the delivery, erly sealed, the plaintiff, under the terms of or the failure to deliver, so as to protect itthe bill of lading, assumed all the liability self from resulting loss, upon a subsequent for loss during transportation. The trial claim for damage. Manifestly the delivery court found that the defendant failed to de- of a notice of the loss, from which no other liver the goods at the Harrison station. The inference is reasonably derivable than that testimony was that, when the shipment was the loss has occurred, and giving the subreceived at the plaintiff's plant, it was check- stantial particulars as in the case sub judice, ed up by three of its employés, and the fact and which resulted in an investigation by of the absence of the fifth bundle was noted the carrier, is substantially a claim or a noby another employé upon the original deliv. tice of a claim within the reasonable conery receipt, and the receipt with that nota- struction of the bill of lading. The most retion was forwarded to defendant. There cent review of the subject is contained in was, in addition, ample testimony furnished St. Louis & I. Mt. Ry. Co. v. Starbird, 243 U. from which the trial court reasonably con- S. 592, 37 Sup. Ct. 462, 61 L. Ed. 917. There cluded that the fifth bundle was delivered to the court points out the rationale for a • the plaintiff at Charleston, in West Virginia, reasonable interpretation of the word as folbut was not placed by defendant upon its lows: ferry car at Harrison, to be run into the "Such notice puts in permanent form the eviplaintiff's premises, upon the siding main-dence of an intention to claim damages, and will tained for that purpose.

serve to call the attention of the carrier to the

condition of the freight, and enable it to make [1] There was a diversity of testimony up such investigation as the facts of the case reon that question, but the trial court, possess- quire, while there is opportunity so to do." ing the opportunity of viewing the witnesses [3] In conformity with that general view, pro and con, and with the advantage of con- the rule is generally accepted to be that a sidering the credibility of their testimony, stipulation requiring the giving of notice of found that the five bundles were not placed a claim for damages must be given a reasonupon the ferry car at the Harrison station, able construction, and a substantial comand that finding upon well-settled rules, we pliance therewith on the part of the shipper cannot disturb. It eliminates from our con- is all that is required. See annotations to sideration the legal effect of the consign- Hoye v. P. R. R., 191 N. Y. 101, 83 N. E. 586, ment, under the terms of the bill of lading, 17 L. R. A. (N. S.) 641, 14 Ann. Cas. 417; 4 as well as under the provisions of the Inter- R. O. L. 796, and cases cited ; 10 C. J. 336, state Commerce Act (Act Feb. 4, 1887, c. 104, and cases cited. 24 Stat. 379), which, under the conditions The judgment will therefore be affirmed, contended for by the defendant, it may be with costs. conceded, would relieve the defendant from responsibility, and impose the risk of trans

(91 N. J. Law, 426) portation upon the plaintiff.

KREBS v. RUBSAM et al. (2] It is insisted, finally, that the claim of loss, required by the bill of lading, to be

(Supreme Court of New Jersey. June 5, 1918.) furnished by the plaintiff, within four

(Syllabus by the Court.) months, to the defendant, after delivery, was never furnished. The testimony evinces


TO TENANT-FAILURE TO KEEP HALL LIGHTS that, in addition to the notation upon the re- BURNING-NEGLIGENCE. ceipt already referred to, there was a let- An action lies against the owner of a teneter written by plaintiff to defendant on April ment house for failure to keep the hall lights 17, 1916, citing the facts, and informing de

burning until 10 p. m., as required by section

126 of the act (4 Comp. St. 1910, pp. 5323, fendant that the fifth bundle had not been 5341), when it appears that such failure was delivered. The defendant, after investiga- ncgligent, tested by the rules of common law. tion, notified plaintiff by letter, three days 2. LANDLORD AND TENANT Cm167(4) - FAILthereafter, that they had been unable to lo


LIGENCE. cate it. The stress of the reasoning upon

Where the lights have been properly lit, but this point is placed upon the word "claim," extinguished before 10 p. m. by an independent contained in the bill of lading, as follows: agency for which the owner is not responsible, "Claims must be made in writing, to the car

and an accident occurs in consequence, the quesrier, at the point of delivery, or at the point of

tion to be answered in determining negligence of

the owner or his agent is whether the period of origin within four months after delivery,” etc.

time between the extinguishing of the light and We think the information conveyed by the the injury was such that said owner or agent plaintiff to the defendant was substantially

should in the exercise of reasonable care have

discovered the situation and relit the light. a claim within the meaning of the language

3. LANDLORD AND TENANT 169(11)-FAILquoted. The liberality of interpretation

URE TO KEEP HALL LIGHTS BURNING-QUESplaced upon that term by the federal Su TION FOR JURY. preme Court, and the courts of sister states Ordinarily, that question is for the jury; but where the question has arisen, evinces that

when the facts are undisputed, and no other in

ference can be reasonably drawn than that of the fundamental reason for the requirement absence of negligence, a verdict for defendant is is to enable the carrier to trace the goods properly directed.

Appeal from Circuit Court, Essex County. I light on the third floor as Krebs was about

Action by Wilma Krebs, administratrix of to leave) the first floor light was lit, and when Julius Krebs, deceased, against Edward F. | Krebs came from his kitchen to go down that Rubsam and others. Judgment for defend- went out. There was nothing in the defend. ants upon a directed verdict, and plaintifr ant's case more favorable to the plaintiff. It appeals. Affirmed.

appeared without contradiction that the light Argued February term, 1918, before GUM-| | had been turned out by a young son of RubMERE, O. J., and PARKER and KALISCH, | sain, who testified that he was at night school JJ.

| till 9:30, and reached home at 9:55, turning A. J. Rossbach, of Newark, for appellant.

Nowork for appellant out the light as he went upstairs, and that John A. Bernhard, of Newark, for respond

his father had forbidden him to touch the ents.

lights, but on this night he thought his father

was already home, and so he turned out the PARKER, J. This is a negligence case. | light as he went upstairs. Defendant EdThe trial judge directed a verdict for the de- ward F. Rubsam testified that no one but fendant, and this judicial action is the sole himself had any authority to turn out the ground of appeal.

lights. Mrs. Scherer, the other defendant, (1.21 Defendants were the owners and pro- also testified that she never gave any authorprietors of a house in Newark occupied by ity to the son, and that her brother, Edward three families, one on each floor, and coming Rubsam, had the entire active management within the statutory definition of a "tenement of the house. There was no claim that either house." P. L. 1904. p. 96. & 2; C. S. 5323. defendant, or Edward's wife, knew the light It was their statutory duty as such owners to was out before the accident. It was therefore keep a proper light burning in the public uncontradicted that the light was extinguishhallways near the stairs, upon every floor, ed by the unauthorized act of a third person, between sunset and 10 o'clock each evening. and consequently for this direct act defendSection 126; Kargman v. Carlo, 85 N. J. Law, ants were not responsible. 632, 635, 90 Atl. 292. The complaint alleged [3] Any claim that they were negligent a negligent failure to perform this duty, must rest on the proposition that after the and that in consequence thereof deceased fell light was turned out, they should, in the while descending the stairs on a specified eve exercise of ordinary care, have discovered ning before 10 o'clock, and sustained injuries this and relit it, not merely before 10 o'clock, from which he died. There was a dispute but before Krebs went down stairs. Schnaton the evidence as to whether he died as a terer v. Bamberger, 81 N. J. Law, 558, 79 Atl. result of the fall, but this may, for present | 324, 34 L, R, A. (N. S.) 1077, Ann. Cas. 1912D, purposes, be assumed to be a jury question. 139. Ordinarily this is a jury question, but In cases of this class where the statute is pe this case falls within the class of cases where nal in character, and the right of action is by reason of undisputed facts and an interval predicated on an alleged violation of the of time between the creation of the danger statutory duty, the action is governed by the and the accident, so short that men cannot ordinary rules of negligence cases except reasonably draw different inferences from the that the violation of the statute operates as testimony, negligence has been held as a court the basis of the defendant's liability, the de question to be nonexistent. Timlan v. Dilfendant retaining all the defenses appropri- | worth, 76 N. J. Law, 568, 71 Atl. 33; Schnatate to an action of negligence that are not terer v. Bamberger, 81 N. J. Law, 558, 79 Atl. affected by the statute. Evers v. Davis, 86 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, N. J. Law, 196, 204, 205, 90 Atl. 677. Thus 139. Assuming, therefore, that the absence of to recover in a private action for an omis- light caused the fall, and the fall caused the sion of the statutory duty, plaintiff must death, there was nothing to require the subshow that the omission was a negligent one mission to the jury of the question whether (Id.); and, indeed, this was the charge in the the defendants were negligent in not relightcomplaint. But in the case at bar there was, ing the light prior to Krebs' departure from in our opinion, no evidence to justify the the Ruder apartment. The trial court there submission of alleged negligence to the jury. | fore properly directed the verdict, and the It appeared on the testimony that deceased judgment will be affirmed. started down stairs from the top floor, occupied by a friend of his named Ruder, just

(92 N. J. Law, 165) before 10 o'clock, and that as he was de

CASTELBAUM y. WOLFSON. scending the stairs from the second to the Court of Errors and Appeals of New Jersey. ground floor the gaslight on the ground floor

June 17, 1918.) newel was out; but on the other hand it ap

1. APPEAL AND ERROR Om1051(3)–HARMLESS peared by plaintiff's own witness, Ruder, ERROR-EVIDENCE. that the light in question had been lit that If it was error to admit a transcript of the evening until deceased actually started or

pleadings of another case in evidence, it was

harmless, where it was a verred in the complaint was ready to start down the stairs. Ruder

and admitted in the answer that a certain judgtestified that when he turned up his own ment was entered in such case.

2. CHATTEL MORTGAGES 226ASSUMPTION shown by this transcript; but it was proved OF MORTGAGE-LIABILITY.

| by the testimony of the plaintiff without obAssumption, by grantee of business, of a chattel mortgage upon the property conveyed,

hjection, as was its payment in full by him. is an agreement to assume and pay interest as [2] It is next argued that by the provision well as principal notwithstanding that the of assumption the defendant only became amount of the principal alone is recited in the bound to pay the ori

bound to pay the principal of the mortgage, assumption clause. 3. EVIDENCE 384 - VABYING TERMS 01

and not the interest accrued and to accrue WRITTEN CONTRACT.

thereon. But this is not the extent of his le Where a written agreement is complete on gal obligation. The assumption by the granits face, oral testimony will not be permitted, tee of a mortgage existing upon the premises either to contradict it or to supply terms with respect to which the writing is silent.

conveyed is an agreement to assume and pay 4. APPEAL AND ERROR 362(1) - MATTERS

that mortgage, both principal and interest, REVIEWABLE-RECORD.

notwithstanding the fact that the amount of On appeal, a contention not supported by the principal is recited in the assumption any ground of appeal will not be considered.

clause. The cases so holding are numerous, White, J., dissenting.

and no authority to the contrary is referred Appeal from Supreme Court.

to by counsel for the appellant. Suit by David Wolfson against Jacob Cas- ' [3] It is further contended that the court telbaum, Judgment for plaintiff, and defend erred in excluding a conversation between ant appeals. Affirmed.

the parties, had at the time of the execution Thomas Brown, of Perth Amboy, for ap

of the agreement, as to what part of the inpellant. Isidor Kalisch, of Newark, for ap

terest, if any, should be assumed and paid by

the defendant. We think this testimony was pellee,

properly excluded. The written contract is GUMMERE, C. J. The material facts in

| plain, and was an agreement on the part of the present case are thus stated in the brief

the defendant to pay both the principal and of counsel for the appellant:

the interest of the mortgage. Testimony of"The suit is founded on an agreement wherein

fered for the purpose of proving a conversathe respondent, the party of the first part, tion had at the time of the execution and deagreed with the appellant, the party of the sec- livery of the agreement, which controverted ond part, to convey a certain saloon business in the writing itself, is not admissible in the abthe city of Perth Amboy, together with the stock of liquors and cigars. The sale was made

sence of fraud. No principle is more firmly subject to the following conditions: 'Subject to imbedded in our law than that which declares a mortgage of $950 (really $900) now held by that in the absence of fraud or illegality, the Peter Breidt Brewery, which the said party

| where a written agreement is complete on its of the second part agrees to assume in addition to the consideration above named.' The re

face, oral testimony will not be permitted eispondent, who is the party of the first part to ther to contradict it, or to supply terms with this agreement, was sued by the Peter Breidt respect to which the writing is silent. In Brewery, and was obliged to pay interest and

such a case the writing must be accepted as a costs on the chattel mortgage referred to in the foregoing provision of the agreement, and there

full expression of the agreement of the par. upon the respondent brought this action in the ties. Supreme Court to recover from the appellant We are asked to reverse the judgment unthe moneys which he claimed to have paid, and

der review upon the further ground that the the costs and expenses, above the principal sum of the chattel mortgage."

trial court erred in refusing to nonsuit the The plaintiff had a verdict for the full

plaintiff at the close of his case. This motion amount of his claim, and judgment was en

was based upon the theory that the proof tered thereon against the defendant.

showed there had been an accord and satis[1] The first ground of appeal is directed

| faction between the parties, the effect of at a ruling of the trial court admitting in evi which was to release the defendant from any dence, and permitting to be read to the jury, further obligation with relation to the subjecta transcript of the pleadings in the suit of matter of the present suit. A recital of the the Peter Breidt Brewery against the plain- evidence upon which the defendant based his tiff; the contention being that the only proptheory will serve no good purpose; it is sufer proof upon that point was a certified copy ficient to say that we have carefully examinof the judgment itself. It is not necessary ed it, and find nothing in it to support his for us to consider the soundness of the legal contention. The motion to nonsuit was propproposition thus submitted, for the recovery erly refused. of this judgment by the brewing company [4] The appellant further contends that against the plaintiff was not a matter in con- the judgment is erroneous in its amount, betroversy between the parties. It was averred cause the respondent was improperly perby the plaintiff in his complaint, and was ad- mitted to recover not only the interest on the mitted by the defendant in his answer, and it Breidt Brewery Company mortgage, but also is probably for this reason that counsel for the costs which he incurred in the Breidt litithe appellant in his brief states the recovery gation. As this contention, however, is unof this judgment as a fact. It is, of course, supported by any ground of appeal, it has not true that the amount of the judgment is not received consideration at our hands.

Other grounds of reversal are specified in, intestate as to the Insurance Times, and that the appellant's reasons for appeal; but, as St. George Kempson made a valid assignment they were none of them argued by counsel, of all his interest in the Insurance Times. we have treated them as having been aban. We think the Court of Chancery reached a doned.

right conclusion, and the decree of the Court The judgment under review will be af- of Chancery should he

of Chancery should be affirmed. The reason firmed.

on which this conclusion is based, in brief, is

this: The will of Peter Tertius Kempson WHITE, J., dissenting.

consists of six paragraphs or items, number

ed first, second, third, sixth, seventh, and (89 N. J. Eq. 206)

ninth; the first five being single paragraphs, KEMPSON v. KEMPSON et al. (No. 52.)

making specific bequests. The ninth para

graph is composed of eight distinct sections, (Court of Errors and Appeals of New Jersey. I although not numbered. The first four refer June 17, 1918.)

to the disposition of the residuary estate by (Syllabus by the Court.)

the following clause:

"All the rest, residue and remainder of my WILLS Om 865(1) - CONSTRUCTION - PARTIAL

estate, both real and personal, not hereinbefore INTESTACY.

disposed of, or hereinafter specified, to have and The will of Peter Tertius Kempson consists

to hold the same, in trust," etc. of six paragraphs or items, numbered first, second, third, sixth, seventh, and ninth. After dis The last four relate specifically to the Inposing of the residuary estate, this clause ap

surance Times and the conduct of the busipears: “From all the provisions of the preceding clauses I except my interest in the Insur

ness connected therewith. Then follows this ance Times newspaper, its good will," etc. Held, clause: that Peter Tertius Kempson died intestate as to | “From all the provisions of the preceding lis interest in "the Insurance Times."

clauses, I except my interest in the Insurance Appeal from Court of Chancery.

Times newspaper, its good will, etc." Suit by John Fraser Kempson against

From these clauses, read in connection with Grover C. Kempson and others. From a the entire will, we think the conclusion is irdecree for complainant (102 Atl. 673), defend

resistible that the testator's intention, as ants appeal. Affirmed.

gathered from within the four corners of the Smith, Mabon & Herr, of Hoboken, for ap

will, to use a picturesque phrase in the law

of wills, was to exclude the Insurance Times pellants. Charles 0. Truex, of Montclair,

from the residuary clause; that Peter Terand Mark Townsend, Jr., of Jersey City, for

tius Kempson died intestate as to his interCharles M. Van Cleve. John K. English, of

est in the Insurance Times. Failing to make Elizabeth, for administrator of Julia H.

subsequent provisions for its ultimate disKempson.

posal, that the will must furnish the basis

for construction is elemental. It can make BLACK, J. A bill in this case was filed in

no difference whether the testator through the Court of Chancery for the construction

ignorance or inadvertence fails to dispose of of certain items of the will of Peter Tertius

all his estate. The courts cannot supply the Kempson, who died September 25, 1890. The

omission. The province of the courts is to property affected is the estate or interest in

construe, not to make, wills. Tyndale v. Mccertain personal property, consisting of a

Laughlin, 84 N. J. Eq. 657, 95 Atl. 119. newspaper called the Insurance Times. The

The decree of the Court of Chancery is contest is over the one-third interest in the

affirmed. Insurance Times. The appellant's brother St. George Kempson, a son and legatee under the will of Peter Tertius Kempson, on

(89 N. J, Eq. 138) the 30th day of December, 1893, assigned his

DOLAN V. UNIVERSAL FIRE BRICK CO. one-third interest in the Insurance Times to

(No. 45/33.) his stepmother, Julia H. Kempson, and James A. Van Cleve. He died August 12, 1907, leav

(Court of Chancery of New Jersey. June 12, ing a will in which he bequeathed his prop

1918.) erty to his wife and children. The question,

(Syllabus by the Court.) therefore is whether the assignment made by

1. CORPORATIONS 684 – INSOLVENT FORSt. George Kempson on the 30th day of De

EIGN CORPORATION - APPOINTMENT OF REcember, 1893, is legal. That in turn depends CEIVER. upon the question whether Peter Tertius The court may, under the provisions of Kempson died intestate as to this item of the se

el sections 65 and 66 of an act concerning corpora

tions (2 Comp. St. 1910, p. 1640), appoint a Insurance Times, because, if he did, then St.

receiver of a foreign corporation found to be inGeorge Kempson had legal power to make solvent notwithstanding the fact that no receiver the assignment of December 30, 1893.

had been appointed in the jurisdiction of the The assignees and their heirs, the respond

domicile of the corporation and that there are no 2. CASE DISTINGUISHED,

proceedings there pending against it, and the ents, have a legal title. The Court of Chan- I procedure is substantially the same as if the corcery held that Peter Tertius Kempson died 'poration were domestic.

| common pleas of Mercer county to Harry CoMcDermott v. Woodhouse, 87 N.J.Eq.617, 101

hen to keep an inn and tavern in the townAtl. 375, distinguished upon the grounds indicated in Atwater v. Baskerville, 104 Atl. 310. 647.

ship of Ewing pursuant to an application

therefor under the inu and tavern act of 1846 Application by Patrick J. Dolan for the

(C. S. p. 2890). We are of the opinion that appointment of a receiver for the Universal

the court was without authority to grant the Fire Brick Company. Application granted.

license, and that it must be set aside. Michael J. Tansey, of Newark, for com (1) On its face the application was suffiplainant, Clifford L. Newman and Edgar M. cient and made out a prima facie case of Tilt, both of Paterson, for defendant. i authority in the court of common pleas to

grant it. But that prima facie case was opLANE, V. C. [1, 2] This is an application to

en to question before that court, and it was appoint a receiver of a foreign corporation un

challenged by the prosecutor of this writ upder the provisions of the sixty-fifth and sixty

on the ground, among others, stated in the sixth sections of the Corporation Act, 2 Comp.

remonstrance, that in fact the applicant "was Statutes of N. J. p. 1640. The jurisdiction

not well provided with house room, stabling of the court is questioned upon the authority

and provender.” To authorize the court to of McDermott v. Woodhouse, 87 N. J. Eq. 617, grant the license, it was essential, among oth101 Atl. 375. I considered that case in At

er things, that the applicant should be "well water v. Baskerville, 104 Atl. 310, 647, not yet

provided with house room, stabling and provofficially reported, and came to the conclusion

ender" (C. S. p. 2890, par. 2), and to be well that it is not an authority for the proposition

provided with stabling and provender must that this court may not under the sixty-fifth

have "stabling and provender of hay and and sixty-sixth sections of the statute appoint

grain for four horses more than his own a receiver of a foreign corporation. This court

stock.” Paragraph 16. Accordingly, the may, where a foreign corporation is shown to

court proceeded to inquire by evidence whethbe insolvent, appoint a receiver notwith

er the facts existed without which its austanding the fact that no receiver has been

thority to grant the license would fail, and appointed in the domicile of the corporation

concluded to grant the license. and there are no proceedings there pending

Of course, the jurisdiction of the court over against it, and the procedure is substantial

such an investigation of facts is indisputable, ly the same as if the corporation had been

and if its conclusions of fact thereon were domestic,

legally warranted by the proofs adduced be

fore it, those conclusions could not be revers(91 N. J. LAW, 409) LANNING v. COHEN et al.

ed on certiorari. This being so, the sole

province of the Supreme Court on these mat(Supreme Court of New Jersey. June 7, 1918.)

ters of fact is to examine the evidence offered (Syllabus by the Court.)

in the court of common pleas, and decide 1. INNKEEPERS OM 4-LICENSE STABLING. whether on that evidence the court could law

To authorize the court of common pleas to fully determine that it had authority to grant grant a license for an inn and tavern in a town. the license. Dufford y. Nolan, 46 N. J. Law, ship, it is essential, among other things, that the applicant should be well provided with stabling

87; Houman v. Schulster, 60 N. J. Law, 132, rovender of hay and grain for four horses | 36 Atl. 776. Upon a careful examination of more than his own stock.

the evidence in the present case we think it 2. INNKEEPERS LICENSE-REVOCATION.

could not. On certiorari, the grant of a license to keep an inn and tavern in a township will be revers

[2] The house for which the applicant ed when it appears that the conclusion of the sought a license is in the township of Ewing, court on the disputed question of fact as to only 200 feet from the Trenton city line, in whether the applicant was well provided with

a manufacturing center. The whole lot on stabling and provender was without competent evidence to support it.

which it stands is only 32 by 86 feet. The

building itself is 30 by 65 feet, leaving a back Certiorari to Court of Common Pleas, Mer

yard 21 by 32 feet. There is no stable or cer County.

other accommodations for horses and wagons. Certiorari by Wallace Lanning against

On the first floor is the barroom, on the secHarry Cohen and others to review the grant

ond floor are four bedrooms and a bath, on ing of an innkeeper's license by the court of

the third floor are two rooms, without beds, common pleas of Mercer county. Grant of

used as storerooms. The applicant, his wife, license set aside.

and two children, one ten years old and one Argued February term, 1918, before

five, live in the place. It is less than a mile SWAYZE, TRENCHARD, and MINTURN, JJ.

from the center of Trenton, where are locatWicoff & Lanning, of Trenton, for prosecu- ed all of Trenton's principal hotels, and is tor. John H. Kafes and John A. Montgom- about 400 feet from the Johnson trolley line, ery, both of Trenton, for respondent Cohen. / running to the center of Trenton every 45

minutes, and about 1,400 feet from the Prince TRENCHARD, J. This writ brings up for ton avenue trolley, running to the center of review the grant of a license by the court of Trenton on a 5 to 8 minute schedule. It is


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