such right was the result of their own vol- ting up, inter alia, that the action will not untary act. lie. This part of the answer is objected to as to form, but counsel evidently wish the main point decided, so we do not stop to consider this objection. The letter of plaintiffs' counsel to Judge McLane, writter on June 8th, after the case had been argued upon the facts, and after it had been submitted to the court for its final determination, had no effect upon the question here presented.. The judgment of the court will therefore plaint as not setting up a cause of action, be affirmed. A further objection is made that defendant's motion argued before us, and which amounts to a motion to strike out the com comes too late after answer. This is with Judgment affirmed, with costs to the ap- out substance, as rule 40 provides that, if pellee. (88 N. J. Law, 518) HACKENSACK TRUST CO. v. VANDEN BERG. raised in the answering pleadings, the question may on motion be determined by the court before trial. We proceed, therefore, to the fundamental question. Our act for the recovery of damages for death by wrongful act, copied from Lord Campbell's Act, dates in this state from 1848. (Supreme Court of New Jersey. April 4, 1916.) P. L. p. 151, § 1; 2 C. S. p. 1907, § 7. It pro (Syllabus by the Court.) DEATH 30-REVIVAL OF ACTION-PERSONAL INJURIES. Section 2 of the supplement of 1855 to the abatement act (P. L. p. 340), now section 5 of the "Act concerning executors, and the administration of intestates' estates" (2 Comp. St. 1910, p. 2260), operated to create a survival of rights of action for tortious personal injury causing death, created by the Death Act of 1848 (P. L. p. 151; 2 Comp. St. 1910, p. 1907), as against the personal representatives of the deceased tort-feasor, provided suit be brought within the statutory period of 12 calendar months (since enlarged to 24 calendar months) from the death of the injured party. vides: "Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." The present suit, if Vanden Berg wero living, would, of course, fall within the de [Ed. Note. For other cases, see Death, Cent. scribed class. Dig. § 30; Dec. Dig. 30.] Action by the Hackensack Trust Company, administrator of Florence K. Dartnell, deceased, against Eva Vanden Berg, administratrix of Wynand Vanden Berg, and another. Motion to strike out complaint denied. Argued before Justice PARKER, sitting alone pursuant to the statute. Frederick S. Taggart, of Westfield, for plaintiff. Raymond P. Wortendyke, of Jersey City, for defendant Vanden Berg. months, as in this case. It may be conceded that at the time of passing the act of 1848, and until our “Executors' Act" (C. S. p. 2260, § 5), first passed in 1855 (P. L. p. 340), the remedy provided by the Death Act was one against a living person only, and did not survive against the personal representatives of a deceased tort-feasor. But seven years after the Death Act came the act of 1855, which was a long step in the path of remedial legislation. Previously acts of this class related only to property, as in the English Act of 4 Edw. III, c. 7, cited in Cooper v. Shore Electric Co., 63 N. J. Law, at page 560, 44 Atl. 633. The later act cited on the same page, 25 Edw. III, c. 5, extended the right to exed in this state in 1795. Pat. Rev. 1821, p. ecutors of executors. A similar act was pass174; Elm. p. 164. The act of 1855, however, worked a survival of rights of action for "trespasses to the person or property, real or personal, of any person or persons." The section pertinent to this case is inserted in full: PARKER, J. The question for decision is whether an action of tort may be lawfully begun for the recovery of damages under the Death Act of 1848 (P. L. p. 151; 2 C. S. P. 1907) after the death of the tort-feasor, and against his personal representatives, so long as it is within the statutory period of 24 The complaint shows that plaintiff's intestate was riding as a passenger for hire or an invited guest in an automobile owned and driven by Wynand Vanden Berg, deceased, and that by reason his or her lifetime, have committed any tres"That where any testator or intestate shall, in of his sole negligence, or of the joint neg- pass to the person or property, real or personligence of himself and the railroad company, al, of any person or persons, such person or the automobile was struck by or collided persons, his or her executors or administrators, with a train of the company, and plaintiff's the executors or administrators of such testashall have and maintain the same action against intestate was thereby killed, and Vanden tor or intestate as he, she or they might have Berg died shortly after. Whether his death had or maintained against such testator or inwas caused by the train seems immaterial. testate, and shall have the like remedy and process for the damages recovered in such action The administratrix of Vanden Berg's estate as are now had and allowed in other actions was made a defendant, and answered, set-against executors or administrators." Section 2. The word "trespass" was early construed to mean "tort," and our courts have declared that the act is remedial and should be construed liberally. Tichenor v. Hayes, 41 N. J. Law, 193, 32 Am. Rep. 186. In these aspects it is certainly broad enough to include a right of action in favor of executors or administrators for an injury causing death, and for which the deceased, if living, could have sued. It is true that under section 2 of the Death Act the recovery is for the benefit of the widow and next of kin, and is confined to the pecuniary injury sustained by them; but this is merely a limitation on the amount recoverable and a direction as to its ultimate disposition. It will be presumed that the Legislature, in enacting these broad provisions of the act of 1855, had in mind the act of 1848 and the right of action thereby created, and the equity of providing that such cause of action should not abate or be defeated by the death of the tort-feasor is apparent. We conclude, therefore, that the act of 1855 operated to create a survival of rights of action for personal injury causing death, as against the personal representatives of a deceased tortfeasor, provided suit be brought within the statutory period, which is now 24 calendar months after the death of the injured party. A further point is urged to defeat the present suit, that no claim against the Vanden Berg estate was presented within the time specified in the order limiting creditors. This, however, is made by the pleadings an issue of fact, and, as the fact cannot normally be settled until the trial, we are not now called upon to deal with the legal aspects of the matter. The motion to strike out the complaint is denied; the costs to abide the event of the suit. (88 N. J. Law, 499) CITY BANK OF BAYONNE v. O'MARA et al. (Supreme Court of New Jersey. March 6, 1916.) (Syllabus by the Court.) claim of property the defendant and claimant testify to ownership by the latter of goods in sented which should be submitted to the jury. possession of the former, a dispute of fact is pre [Ed. Note.-For other cases, see Execution, Cent. Dig. 576; Dec. Dig. 196.] Appeal from Court of Common Pleas, Hudson County. Action by the City Bank of Bayonne against John H. O'Mara, wherein Mary Hocke claimed the property involved. Verdict for claimant, and plaintiff appeals. Verdict set aside. Argued November term, 1915, before PARKER, MINTURN, and KALISCH, JJ. Aaron A. Melniker, of Jersey City, for appellant. Roe, Runyon & Autenrieth, of Jersey City, for respondent. PARKER, J. The judicial proceeding sought to be reviewed on this appeal is the award of certain chattels to respondent Mary Hocke, on the trial of a statutory claim of property in the common pleas. We are not aware of any statute or judicial decision in this state sanctioning appeal (corresponding to the common-law writ of error) as a legal method of reviewing this purely statutory proceeding. In Levinson v. Godfrey, 79 N. J. Law, 212, 74 Atl. 278, an appeal from the determination of a claim of property in the district court was considered sub silentio, and no doubt the point raised escaped the attention of the court because It is not raised in not raised by counsel. the case at bar; and, while in view of this fact and of the manifest merit of the appeal we have concluded to overlook the lapse in practice and deal with the case as if brought here on certiorari, we think it important not to pass it over in silence. The point is material, for, if certiorari be the only proper method of review, it follows that frivolous and nonmeritorious attempts to remove the record, which appeal as a matter of right would facilitate, will be cut off by the timely refusal of an allocatur in certiorari. [1] Taking up the question itself, it is fundamental that certiorari is the only proper 1. EXECUTION 202 - STATUTORY CLAIM-method of review of a special statutory proREVIEW OF PROCEEDINGS. Certiorari is the only proper method of review of the proceedings under a statutory claim of property levied on in execution, and an appeal bringing up such proceedings is liable to be dismissed by the court of its own motion. [Ed. Note.-For other cases, see Execution, Cent. Dig. § 583; Dec. Dig.202.] 2. EXECUTION 196-STATUTORY CLAIM-DIRECTION OF VERDICT-EXECUTION. ceeding, especially where, as in this case, no statutory review is provided. Even where an appeal is provided by statute, certiorari lies to the determination of the appellate tribunal. Examples of this are cases of bastardy (Dunn v. Overseer, 32 N. J. Law, 275; Ruff v. Kebler, 62 N. J. Law, 186, 40 Atl. 626), nonsupport (Decker v. McLorinan, 42 N. J. Law, 413; O'Shaughnessy v. Same, 43 N. J. Law, 410; McLorinan v. Ryno, 49 N. J. Law, 603, 10 Atl. 189), and summary convictions reviewed by the common pleas judge (Newark v. Kazinski, 86 N. J. Law, 59, 90 Atl. 1016). The test is whether the proceeding is stat8. EXECUTION 196-CLAIM CASE-OWNERSHIP QUESTION FOR JURY. utory and not according to the course of the Possession of chattels is presumptive evi- common law. Elder v. Medical Society, 35 N. dence of ownership; and, if on the trial of a J. Law, 200, and cases cited; Curtis v. Semble, that on the trial of such statutory claim the judge or other officer judicially presiding has power to direct a verdict in a prop er case. [Ed. Note.-For other cases, see Execution, Cent. Dig. § 576; Dec. Dig. 196.] Steever, 36 N. J. Law, 305, 306; Hisor v. Vandiver, 82 N. J. Law, 304, 82 Atl. 526. With respect to this statutory claim of property, certiorari has been the uniform method of review from an early era in our jurisprudence. Examples of such cases are Baird v. Johnson, 14 N. J. Law, 120 (1833); Obart v. Letson, 17 N. J. Law, 78, 34 Am. Dec. 182 (1839); Berry v. Chamberlain, 53 N. J. Law, 463, 23 Atl. 115; Folwell v. Fuller, 53 N. J. Law, 572, 22 Atl. 345; Kaufhold v. Roth, 74 N. J. Law, 61, 64 Atl. 1057; Gridley v. Decker, 79 N. J. Law, 360, 75 Atl. 452. Indeed, in Berry v. Chamberlain, supra, a leading case, Chief Justice Beasley lays stress throughout on the purely statutory character of the proceeding (see pages 464, 468, of 53 N. J. Law, 23 Atl. 115), and that resort to it is optional with both parties, and on page 466 of 53 N. J. Law, on page 116 of 23 Atl., remarks that as an incident "the entire affair, so far as the law is concerned, is under the supervision of this court through its prerogative writ of certiorari." And in a recent per curiam citing the Berry Case, the Court of Errors and Appeals has just said that certiorari is the only appropriate remedy in a case of this kind. Reiman v. Wilkinson Gaddis & Co., 96 Atl. 52. in dispute. Defendant O'Mara was in possession of the property, consisting of household furniture and similar articles, and using them for his family in one part of a two family house where he lived. Mary Hocke, the claimant, was his sister. She and he both testified generally that, she had supplied him with the chattels in question, not as a sale or gift, but as a loan; that occasionally she took some back, but seldom; that she was well off and her brother poor, and she was glad to help him, and so on. Such testimony the execution creditor naturally could not very well find evidence to rebut or discredit, unless there was some chance admission of the parties to the contrary. Opposed to it were the presumption of ownership arising from possession by defendant (16 Cyc. 1074; 32 Cyc. 677, 678; Magee v. Scott, 9 Cush. [Mass.] 148, 55, Am. Dec. 49); the inherent improbability of the loan theory as applied to all the articles claimed, especially in view of the interest of the defendant in blocking the levy, and of his sister in helping him; and several flaws in the testimony from which the inferences of gift instead of loan as to some of the articles, and of purchase by defendant as to others were deducible. It was recently held by the Court of Errors and Appeals, in McCormack v. Williams, 95 Atl. 978, that the presumption of consideration arising from the The case of Trimmer v. Bonnell, 65 N. J. Law, 66, 46 Atl. 768, is relied on as authorizing appeal in this class of cases, but is manifest-possession by the payee of promissory notes ly not on the point, as that case related to a suit according to the course of the common law, and not to a statutory proceeding. We have dealt with this matter of practice somewhat fully as an intimation to counsel that appeals in cases that should be brought up by certiorari are liable to be dismissed by the court of its own motion, as in Trimmer v. Bonnell, 65 N. J. Law, 66, 46 Atl. 768, and Corbett v. Young Men's Christian Ass'n of Madison, 79 N. J. Law, 126, 74 Atl. 297. [2] It has been remarked that the merit of the appeal has moved the court to consider it without a dismissal for the faulty practice. The trial was held with a jury and before one of the judges of the common pleas, pursuant to sections 32 and 33 of the Executions Act (2 C. S. 1910, p. 2255). At the conclusion of the evidence the judge directed a verdict for the claimant, and this is attacked on the ground that there was a question of fact for the jury. Whether on such a trial the judge has power to direct in a proper case is not argued. In Levinson v. Godfrey, 79 N. J. Law, 212, 74 Atl. 278, already cited, it seems to have been assumed; in Folwell v. Fuller, 53 N. J. Law, 572, 22 Atl. 345, a verdict was directed, but returned contrary to the direction. While the point is not necessary to the decision of this case, we incline to think that the right to direct exists as in other judicial proceedings when a jury is empaneled. [3] The direction in the present case, however, was erroneous, as the title was fairly was not conclusively rebutted by evidence otherwise uncontradicted, tending to show lack of consideration. A similar rule is applicable here. For these reasons, the direction of a verdict will be set aside. penalty for operating or conducting amusements | tion for the violation of the ordinance in on Sunday. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1313; Dec. Dig. 592(3).] William Fennan, after conviction of violations of city ordinance, brings certiorari. Judgments affirmed. The writs in these cases bring up for review five convictions of the prosecutor be fore the recorder of the city of Atlantic City for the violation of an ordinance of Atlantic City entitled, "An ordinance for the suppression of vice and immorality." The writs also bring up for review the ordinance itself. The question. (2) The ordinance is invalid because it exempts from its operation moving picture shows and musical concerts. (3) The city of Atlantic City has no power under its charter to increase the statutory penalty for operating or conducting amusements on Sunday. (4) The operation of the amusements in question by the prosecutor is not a violation of the ordinance. Argued November term, 1915, before GARRISON, TRENCHARD, and BLACK, JJ. Bourgeois & Coulomb, of Atlantic City, for The violations of the ordinance upon which prosecutor. Theodore W. Schimpf, of Atlanthe convictions were had consisted of operat-tic City, for defendants. ing certain amusements on Sunday. prosecutor was fined $200 on each of the convictions, with an alternative penalty that, if the fines were not paid, he should be imprisoned for 30 days upon one of the convictions, and for a day each upon the other convictions, which terms of imprisonment were to run consecutively. GARRISON, J. (after stating the facts as above). [1] The first reason for reversal is that there should have been only one conviction. The argument in support of this reason is based upon the assumption that the ordinance forbids the desecration of the Sabbath by the doing of any or all of the enuThe facts, briefly, are as follows: The merated things, in which case, as the de prosecutor is the manager of the Atlantic cisions hold, the ordinance is as much vioAmusement Company, which operates an lated by any one of the acts mentioned as it amusement pier in Atlantic City known as would be by them all. The present ordinance the Steeplechase Pier. On this pier there is, however, not of that sort, but, on the are a number of amusements, all of which contrary, prohibits Sunday dancing, Sunare operated by the Atlantic Amusement day ninepins, etc., each specifically and acCompany under the management of the prose-cording to the same qualifications. It is as if cutor. A fee of 25 cents is charged for ad- a man should keep open two saloons for Sunmission to the pier, and none of the amuse day selling, for which, of course, there could ments can be used by any person who has be two convictions. not paid the 25 cents admission. The of- [2] The second reason is because the ordifenses for which the prosecutor was convict-nance excepts musical concerts and moving ed took place on the same day, namely, the picture shows. This exception occurs in the 26th day of July, 1915; the evidence being amendment to the ordinance approved May obtained by two policemen who purchased admission tickets and paid 25 cents each for the same. There are a number of amusement devices on the pier to the use and enjoyment of which every one who has paid an admission fee is entitled without the payment of any extra fee excepting the shooting gallery, the Johnson family (which is a species of hit the baby game), the Ferris wheel, and the merrygo-round, for the use of which an extra fee is charged. The prosecutor was convicted of operating the four above-named devices, and also of operating a device known as the "Razzle Dazzle," for the enjoyment of which no extra fee was charged. The prosecutor assigns 19 reasons why the convictions and ordinances should be set aside. These reasons may be briefly summarized as follows: 14, 1915. Hence, if such amendment is bad because of the exception, the original ordinance is in force and covers the convictions. It is unnecessary therefore to stop to inquire why a city ordinance would be invalid if it did not re-enact the vice and immorality statute in toto. The effect of the exception does not alter the statutory situation. With the effect of licensing Sunday shows, considered in Singer v. Criminal Court of Newark, 79 N. J. Law, 386, 75 Atl. 433, we have no present concern. [3] Third. The penalty provided by the ordinance is within the power conferred by Pamp. Laws 1902, p. 289, § 14 et seq. Atlantic City v. France, 75 N. J. Law, 910, 70 Atl. 163, 18 L. R. A. (N. S.) 156. Fourth. The operation of the amusements in question was a violation of the ordinance. No other reason is argued. The convictions brought up by the writ are (1) There should have been only one convic affirmed. 3. CARRIERS 104. DELAY-EVIDENCE. A jury may infer without further proof that eight days is an unreasonable time for the transportation of goods by rail a distance of less than 100 miles. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 439-447, 459-461; Dec. Dig. 104.] Appeal from Court of Common Pleas, Warren County. Action by John F. Engemann against the Delaware, Lackawanna & Western Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed. Argued November term, 1915, before the CHIEF JUSTICE and SWAYZE and BERGEN, JJ. Frederic B. Scott, of New York City, for appellant. John H. Dahlke, of Belvidere, for appellee. SWAYZE, J. [1] This was an action for damages caused by failure to deliver promptly a carload of onions. It was brought by the consignor. Both consignor and consignee testified that the goods were to be delivered to the consignee at Brooklyn, the point of destination. But there was evidence that the contract was for a delivery at Alphano, the point of shipment, and that the consignees were to pay the freight. This presented an issue which should have been submitted to the jury. Sale of Goods Act (C. S. 4652, § 19, rule 5). Williston on Sales, § 280. The trial judge seems to have thought that the title did not pass as between vendor and vendee until the carrier ceased to be liable as such, and that the case was controlled by Burr v. Adams Express Co., 71 N. J. Law, 263, 58 Atl. 609. This was error, and, if the defendants had excepted to the ruling or requested that the question of fact be submitted to the jury, there would have been ground for reversal. But the defendant relied, and now relies, upon a request to direct a verdict. The trial judge was not required to do We this; to do so would have been error. cannot therefore reverse on the first ground alleged. [2, 3] The second ground is that there was no proof of such delay as would make the carrier liable. The argument is that proof of the time taken for a shipment by the Pennsylvania Railroad is no evidence of the time that ought to be taken by the Lackawanna Railroad. With this we cannot agree. It is surely some evidence and we think that a jury would be justified in finding even without evidence that eight days was an unreasonable time to transport goods by rail a distance of less than one hundred miles. We find no legal error that requires re 106 1. EXECUTORS AND ADMINISTRATORS ASSIGNMENT OF MORTGAGE-APPLICATION OF PROCEEDS. Where an executor assigned a mortgage to himself individually and then individually assigned it to a bank, the president of which was one of the mortgagors, as security for money which he represented he was borrowing to pay legacies, the bank was not obliged to see to the application of the money loaned, any more than the president would have been had he paid it in cash, and the substituted executor is not entitled to recover possession of the mortgage from the bank after the original executor had misappropriated the proceeds. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 433; Dec. Dig. 106.] 2. EXECUTORS AND ADMINISTRATORS POWERS-ASSIGNMENT OF MORTGAGE. 171— If the assignment of the mortgage by the still held it as executor, and as such could asexecutor to himself individually was void, he sign it to any one advancing money for the better administration of the estate. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 649, 650; Dec. Dig. 171.] Suit by Edwin B. Goodell, as substituted administrator, against G. Rowland Munroe and others to obtain possession of a mortgage. Bill dismissed. Edwin B. Goodell, of Montclair, pro se. Wolber & Blake, of Newark, for defendants. STEVENS, V. C. Andrew S. Taylor was the surviving executor of the estate of Anna A. Burnet. He was removed by the orphans' court because he was unfaithful to his trust, and the complainant was appointed in his stead. I have to some extent described the situation in an opinion just filed in the case of Goodell v. Taylor, 97 Atl. 569, and I need only now say that the estate of Miss Burnet was quite large, that it consisted chiefly of personal property, and that she gave legacies to a large number of legatees. |