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which he would not have been required to, from which he has been removed as would do except for the unlawful act of the city; equal the difference between the respective that he performed the duties of the office to salaries of the two positions. which he was so assigned, and received from Our attention has been called to the case the city the regular compensation incident of People v. French, 91 N. Y. 265, as sustainto that office. From this it would appear ing the position taken by the appellant, but that he at all times belonged to the police in that case the application for mandamus force of the city, and that the only injury was limited to the difference between the he has suffered for which he could recover salary of a patrolman and that paid to the is the loss of compensation between the two applicant while on "sick leave." The applioffices.

cant in that case, becoming ill and unable to In McManus v. Newark, 49 N. J. Law, 175, perform his duties as patrolman, was paid 6 Atl. 882, this court held that the change only one-half the amount of compensation of a member of the police force from the due his office for part of the time, and for position of detective to patrolman was not another part only one quarter, and the only within the terms of the act restraining the question passed upon was whether the deright of removal from office, and that the partment was justified in refusing to pay full municipal authorities might lawfully trans- compensation. It was held that it was not, fer from one branch to another of the same but that payments made to a policeman service. In that case the prosecutor was act- wbile not on duty because of sickness, should ing as detective, and his complaint was that be deducted. In Fitzsimmons v. Brooklyn, he had been assigned to duty as a patrolman 102 N. Y. 536, 7 N. E. 787, 55 Am. St. Rep. without notice or bearing, but the court 835, it was held that, where the officer was held that he was still on the force, and, as discharged and pot permitted to perform any the prosecutor had not been removed, sus services in the department to which he bepended, expelled, or discharged from the longed, he was not required to account for police force, he was not within the terms money earned elsewhere. This case is not an of the protective statute, and the court said: authority for the claim that, if the prosecu. "If questions of precedence and preference tor, instead of being discharged, is deprived among the members of the police force are of a part of the compensation to which he is to be settled by hearing on evidence and ar- entitled, he would not be required to credit gument, there can be no proper subordina- the amount which had been paid to him for tion, no selection or preference for skill or services in another branch of the same de. aptitude for special service.” In Douglass v. partment to which he had been improperly Jersey City, 53 N. J. Law, 118, 20 Atl. 831, assigned. in which the opinion was written by Mr. Jus- The judgment below is affirmed. tice Scudder, who also wrote the opinion in McManus v. Newark, supra, it was held unlawful to reduce a detective who was paid

(77 N. J. L. 428) $100 to the position of patrolman at a less QUINN V. SEA ISLE CITY et al. salary without notice to him; the court say. (Supreme Court of New Jersey. Feb. 23, 1909.) ing that the case differed “from the case of McManus v. Newark, 49 N. J. Law, 175, 6


NANCES-PASSAGE OVER MAYOR'S VETO. Atl. 882, where the duties were different, Where an act required a vote of two-thirds but the compensation the same, and resem- of all the members of common council to pass bles in principle Michaelis v. Jersey City, 49 an ordinance over the mayor's veto, held that,

where the council consisted of seven members, N. J. Law, 154, 6 Atl. 881, where there were

a vote of four, one member being absent, one different duties and decreased pay.” In voting to sustain the veto, and a third refrainLeary v. Orange, 59 N. J. Law, 350, 35 Atl. ing to vote because interested in the ordinance,

was not effective to override the veto. 786, it was held that the prosecutor was im

[Ed. Note.-For other cases, see Municipal properly removed from the office of desk ser- Corporations, Cent. Dig. § 235; Dec. Dig. 3 geant and assigned to the position of patrol- 107.*] man without notice or hearing, but in that

(Syllabus by the Court.) case there was a difference in the compensation. The result of the decisions in this state

Certiorari at the prosecution of Bernard J. seems to be that it is unlawful to transfer a Quinn against the Sea Isle City and others member of a police force from one position to review an ordinance of said city. Ordito another at a lower salary without notice.

nance set aside. but it is nowhere held that the officer ceas

Argued November term, 1908, before GARes to be a member of the police force.


We are of opinion that if a member of a police Carrow & Kraft, for prosecutor. J. M. E. force serves in a position to which he has Hildreth, for defendants. been assigned, and accepts the compensation incident to his new position, he is, if illegally VOORHEES, J. This is a certiorari to retransferred, at least only entitled to so much view an ordinance passed by the common of the compensation incident to the office council of Sea Isle City. The municipality

is incorporated under revisions of an act en- Appeal from District Court of Hoboken. titled "An act relating to and providing for Action by Robert Syring against Ignacy the government of cities of this state contain- Zelenski. Judgment for plaintiff, and deing a population of less than twelve thousand fendant appeals. Reversed. inhabitants." Act March 21, 1899 (P. L. p. Argued November term, 1908, before 96). The ordinance was passed, sent to the REED, BERGEN, and MINTURN, JJ. mayor for his approval, who returned it with his veto thereto. Thereupon council, com

Tennant & Haight, for appellant. Clement

De R. Leonard, for appellee. posed of seven members, at its next meeting, with six members present proceeded to consider the mayor's objections and reconsider BERGEN, J. The state of the case, as the ordinance, at which four members voted settled by the trial court, shows that the to pass the ordinance over the mayor's veto, plaintiff made a contract with the wife of one member voted to sustain the mayor's defendant for the performance of the work veto, and one member refrained from voting sued for, and for which the judgment appealbecause financially interested in the railway ed from was rendered; that the plaintiff had which had an interest in the passage of the no conversation with defendant about the ordinance. The mayor declared the ordinance work except once, when the defendant said, passed over the mayor's veto. The act under while the work was being done: "My wife is which the city is incorporated provides that boss. Anything as far as the wife goes that's after a veto the council “shall proceed to re all right. You will get your money." Upon consider the same, and if on reconsideration this evidence the trial court found that the it shall pass the common council by a vote contract was made by the wife as agent of two-thirds of all the members it shall take for her husband, and that there had been effect.” The vote under review was not a a ratification of the agent's contract in his vote of two-thirds of all the members. Crick- behalf by the defendant. enberger v. Westfield, 71 N. J. Law, 467, 58 It is insisted by the appellee, the plainAtl. 1097; Stephany v. Liberty, etc., Glass tiff below, that this finding of fact cannot Co., 69 Atl. 967. Even if it were considered be reviewed. The rule is well settled that that a member refusing to vote might be in cases of this character the finding of counted as voting “Aye,” which is not conced- facts will not be reviewed if the evidence is ed, yet a person, disqualified because of inter- sufficient to sustain the finding; but in this est, could not be so counted. Traction Co. v. case we have a right to consider whether Board of Works, 56 N. J. Law, 431, 29 Atl. the statements made by the husband, the de 163; Drake v. Elizabeth, 69 N. J. Law, 190, 54 fendant, are sufficient to sustain the finding Atl. 248.

that he ratified the act of his wife, to the exThe ordinance is set aside.

tent of binding himself for its fulfillment.

There is no finding that a contract was made (77 N. J. L. 406)

by the husband as principal, and the eviSYRING v. ZELENSKI.

dence does not show ratification by him of (Supreme Court of New Jersey. Feb. 23, 1909.) the contract made by the wife; on the con1. HUSBAND AND WIFE ($ 2344*)-CONTRACTS trary it tends to show that the wife was actOF WIFE-RATIFICATION BY HUSBAND.

ing on her own responsibility, and that she Defendant's wife made a contract with the would pay. The appellee also argues that plaintiff for the performance of certain work. the state of the case was not signed within No express contract was made by the husband, but it was insisted that the contract was made the time required by law. The act regulatby the wife as agent for her husband, and that ing appeals from the district court to the he had ratified the contract of his agent, be- Supreme Court (P. L. 1902, p. 565) provides cause at one time while the work was in prog- that a party may appeal if notice be given ress he said to the plaintiff: “My wife is boss. Anything as far as the wife goes that's all right. within 10 days (that was done in this case) ; You will get your money. Held, that this that, if parties cannot agree on the state statement did not show a ratification by the of the case, the judge, on being applied to, defendant of a contract made by the wife for shall settle and sign it, after which it shall him as his agent.

(Ed. Note.-For other cases, see Husband and be transmitted by the appellant to the clerk Wife, Dec. Dig. & 2312.*]

of this court; that the case shall be agreed 2. APPEAL AND ERROR (8 938*) — DISTRICT upon or settled within 15 days unless the COURTS-SETTLING STATE OF CASE.

judge shall grant further time. In this case Where the law requires that the state of the parties were not able to agree, and apthe case shall be agreed upon or settled within 15 days, unless the judge shall grant further plied to the court to settle the case, and it time, the settling of such case by the court after does not appear that any one was responsible 15 days will, in the absence of anything appear for the delay except the court, from which ing to the contrary, be presumed to have been it is proper to infer, without any evidence or done within the further grant of time authorized by the law.

record to the contrary, that the time was [Ed. Note. For other cases, see Appeal and extended by it. The statute does not require Error, Dec. Dig. § 938.*]

that there should be an order entered extend(Syllabus by the Court.)

ing the time for settling the state of the

case by the court; and in the absence of There was also testimony of the motorman anything to the contrary the presumption is tending to show that just before the accithat the proceeding was regular.

dent he saw two men running from the The judgment should be reversed.

place where the man lay. The court said: It may be conceded that, if it were clear

that the deceased was uninjured when lying (77 N. J. L. 191)

upon the ground just before the collision, it BRINK V. NORTH JERSEY ST. RY. CO. might be inferred that the wound found upet al.

on the body (fracture of the skull) must have (Supreme Court of New Jersey. Feb. 9, 1909.) been caused by the impact of the fender up1. APPEAL AND ERROR (8_1099*) — REVIEW

on his head. But it is not clear that the deSUBSEQUENT APPEALS-LAW OF THE CASE. ceased was free from this wound before the

A second verdict for the plaintiff on sub-collision. On the contrary, it is in the highstantially the same evidence as that adduced on the first trial of this cause (see 67 Atl. 705) est degree probable that his presence upon ordered set aside for the same reason.

the track was attributable to his disabled [Ed. Note. For other cases, see Appeal and condition resulting from this injury. Error, Cent. Dig. | 4376; Dec. Dig. $ 1099.*1 Eliminating volition from the conduct of the 2. APPEAL AND ERROR (8 1215*)–REMAND- deceased, what could have caused his helpPROCEEDINGS IN LOWER COUBT-INSTRUC- less condition ? The theory of the counsel TIONS.

This court having sent the case back for for plaintiff is entirely unsatisfactory. If, retrial on the ground that the weight of evi- however, the deceased had already received dence indicated a cause of the death of plain the brain injury which caused his death, the tiff's intestate wholly unconnected with any problem is solved and the cause of his unnegligence of defendant, and the evidence at the consciousness of danger is at once manifest. second trial being substantially the same, it was error to charge the jury that there was no The deceased might have received his inevidence pointing to such extraneous cause. jury from the two men who were seen by

[Ed. Note.-For other cases, see Appeal and the motorman running from the place where Error, Dec. Dig. $ 1215.*]

the man lay. A more probable theory is that (Syllabus by the Court.)

he was injured by falling while attempting Action by Margaret E. Brink against the to alight from his wagon for some purpose. North Jersey Street Railway Company and He may have become chilled and thinking others. Verdict for plaintiff. Rule to show to warm himself by walking, may have tried cause made absolute.

to step down from the wagon seat and his Argued June term, 1908, before GARRI- limbs having become cramped and stiffened SON, SWAYZE, and PARKER, JJ.

by the cold and his sustained position, he

stumbled and fell, striking his head against J. A. Kiernan, for plaintiff. Alvah A. the iron rail of the trolley track. It seems Clark, for defendants.

manifest that the injury to the deceased

may have occurred in the way suggested PARKER, J. This case has been tried and as already observed the fact of the de twice. After the first trial, a rule to show ceased's unconsciousness or helplessness because was argued before this court and made fore the impact of the car fender is expli. absolute; the opinion being delivered by Mr. cable upon the assumption that the injury Justice Reed (67 Atl. 705). That opinion did occur in some such way and is explicable gives an adequate synopsis of the testimony upon no other rational theory." As a result taken on the first trial, which does not mate of our examination of the evidence submit. rially differ from that now before us. One ted on the second trial, we come to the same more witness was sworn, but his testimony conclusion as that reached by this court upelicited no new facts of importance. Upon on the former rule to show cause, namely, the former rule this court held that the that the evidence does not fairly support a plaintiff had failed to sustain the burden of finding that deceased came to his death as proof resting upon her of showing that the a result of the impact of the car, but that, death of Mr. Brink resulted from injuries on the contrary, the weight of evidence tends inflicted by the car of the defendant. In to show that the injury causing death had discussing the evidence, the court called at- been inflicted before the car arrived, and tention to the facts that the deceased was are of opinion that the rule to show cause lying on the track where he was afterwards must be made absolute on this ground. It struck by the trolley car and apparently in is true that a second concurring verdict on a state of unconsciousness; that the car was the same state of the evidence should cause stopped after it had pushed the man about the court to hesitate before granting a third four feet; that prior to this accident the trial (Brown v. Paterson Paper Co., 69 N. J. wagon in which the deceased was shown to Law, 474, 55 Atl. 87); but this case falls have been driving was seen without a driver within the class of cases mentioned in that proceeding over the same road, Frelinghuy- decision as justifying the award of a third sen avenue, parallel with the trolley line, trial. and towards Mr. Brink's home in Elizabeth. But, aside from this, we think there was ei ror in the court's charge. It will appear Merritt Lane, for appellant. John Milton, from the portion of the opinion quoted above for appellees. that it was at least a legitimate inference from the testimony that Brink did not re

PARKER, J. The facts in this case are for ceive the fatal injury from the impact of the most part similar to those in the three the car fender, but in some other way, el applications for mandamus of Leonard, ther through the assault of the two men Coughlin, and Maxwell v. Fagen (N. J. Sup.) who were seen running away or by having 69 Atl. 980. The present appellant, instead fallen from his wagon and struck his head of applying for a mandamus on the city on the rail. It is plain, therefore, that this clerk to sign a pay warrant, brought suit was a proper question to submit to the jury. against the city in a district court. The first An examination of the judge's charge on the item of his claim was awarded to him by second trial, however, shows that no such the court below, and is not now in quesquestion was submitted, but that on the con- tion. He appeals from the judgment against trary it was excluded. On this branch of him as to the second item of $216.64. the case the judge charged as follows: "You Appellant on December 7, 1906, was a pomust be satisfied by a preponderance of evi- lice sergeant in Jersey City. On that date dence that the plaintiff has made out a case; the board of police commissioners by order that the injury from which this man evi. assigned him as captain to the Second predently died was caused by a blow struck by cinct, stipulating in the order that the dethe fender of the car. There is no evidence tail was temporary and determinable at whatever in the case to show that the man pleasure of the board, and that during the had been in any altercation with any one, detail the "said officers” should "be paid the or that he had fallen from his wagon, and salary of the position held before." Apthere is nothing in the case to show at all pellant entered on the duties of captain unhow he received the blow which caused his der this order and performed them until death unless it was from the impact of the July 1, 1907, when he was promoted to the fender of this car." As we read this por- rank of captain. It is stipulated that his tion of the charge, which is all that we find detail was to take the place of a captain susbearing on this aspect of the case, the jury pended under charges, and that no one rewere instructed that, while it was the duty ceived captain's pay in place of the suspendof the plaintiff to satisfy them by a prepon- ed officer from February 28 to July 1, 1907. derance of evidence that the blow of the car on November 22, 1907, the police board caused the injury, there was no evidence in passed a resolution, approved afterwards by the case from which they were entitled to the mayor, awarding to appellant $216.64, infer that the injury occurred in any other the difference between a sergeant's and a way. Such an instruction entirely disre- captain's pay from February 28th to July 1, garded the view expressed by this court in 1907, part of the time he had served as actsetting aside the former verdict, as quoted ing captain. The city clerk refused to in part above, and was in our opinion clear. draw a warrant for this sum though there ly erroneous.

were funds to meet it, and the appellant For this reason, also, the rule to show brought suit as stated. We fail to see any cause must be made absolute,

substantial difference between the circumstances in this case and those in Leonard v.

Fagen, supra, or anything to take the case (77 N. J. L. 375)

out of the general rule that a municipal ofMcDEVITT v. MAYOR, ETC., OF JERSEY ficer having a fixed salary is not entitled to CITY.

extra compensation for an increase of his (Supreme Court of New Jersey. Feb. 23, 1909.) official duties in the absence of a statute or MUNICIPAL CORPORATIONS (8 186*)–POLICE contract providing for such increase. There OFFICERS-COMPENSATION.

was no such contract. The order assigning The assignment of a police officer to the appellant to duty as captain gave specific duties of a higher rank does not entitle him to the pay of that rank, nor, in the absence of a notice that no extra pay was contemplated. legal contract or an enabling statute, to any It is claimed that this reservation was withextra pay for the increased responsibility and out authority of the board; but, even if it be duties of such assignment. [Ed. Note. For other cases, see Municipal

disregarded, there is nothing to show the Corporations, Dec. Dig. $ 156.*]

contrary and the burden of proving such (Syllabus by the Court.)

contract was on'appellant. In Crane v. Sho

enthal (N. J. Sup.) 69 Atl. 972, there was Appeal from District Court of Jersey City. an express understanding for increased pay

Action by Charles McDevitt against the by virtue of which a city engineer was inMayor and Aldermen of Jersey City. Judg. duced to undertake duties for which otherment for defendants, and plaintiff appeals. wise outside engineers would have been paid. Affirmed.

In Evans v. Trenton, 24 N. J. Law, 764, the Argued November term, 1908, before GAR- extra duties were held altogether outside the RISON, PARKER, and VOORHEES, JJ. scope of the office. In the present case the

•For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

appellant was merely performing the duties of L. Williams as defendant. The jurat of of the next higher rank, as is done constant- | the affidavit is signed by one who appended ly in the army, for example, and for which to his name the title "M. C. C. of N. J.," and only since 1898 the pay of the superior rank it is claimed that the court will not take juhas been allowed by statute. Act April 26, dical notice that this means a master in 1898, c. 191, 30 Stat. 364; Act May 26, 1900, chancery. This question, however, we find c. 586, 31 Stat. 211. The resolution of No- unnecessary to discuss. vember 22, 1907, was not a contract, for the Shortly after the issue of the district court services had been performed long before. attachment, another attachment was begun

Nor was there any authority in law for the in the Passaic circuit court against Louis resolution of November 22d. If it be re- Williams, who is said to be the same person garded as a gratuity, it was clearly beyond as the L. Williams made defendant in the the power of the board. If we look at it as first suit. The prosecutor was appointed aua salary for a new officer, viz., acting cap- ditor in the circuit court suit and promptly tain, we are met by the absence of any pro- intervened in the district court attachment, vision of law for either the creation or pay of asking that the district court should quash such office. Whatever the duties performed its writ of attachment on the ground that the by appellant he remained a sergeant until defendant's name was not properly stated in his promotion on July 1st. Leonard v. Fag. the affidavit and writ. The court not only en, ubi suprą. Nor was it an increase in the refused to quash the attachment, but made salary of sergeant. Appellant claims that it an order, on motion of the plaintiff's attorwas not, and we agree with him. If it were ney, that the affidavit, writ, and all other so claimed, then as we construe the acts of papers filed in the cause be amended by in1889 (P. L. p. 402) and 1905 (P. L. p. 132) serting the name Louis Williams, instead of adopted by Jersey City, especially the lat. L. Williams, and denying the auditor's moter, an increase in pay in sergeants should tion on the ground that the defects urged in apply to all sergeants, and not merely to one said motion were properly amendable, and who had been singled out for such increase the circumstances of the case were shown to

The judgment of the district court respect- be such that the court in its discretion should ing the claim of $216.64 was correct, and order the amendment to be made. It is this will be affirmed, with costs.

action of the district court that is attacked by the present writ.

The status of an auditor in an attachment (77 N. J. L. 377)

out of a superior court to attack the validi. MCGREW, Auditor, v. STEINER et al. ty of an attachment in a district court may (Supreme Court of New Jersey. Feb. 23, 1909.) well be questioned. By the statute the cir

cuit court attacbment is a supersedeas to a ATTACHMENT (88 101, 122*) — AFFIDAVIT AMENDMENT-ERROR IN NAME.

district court attachment, and the sheriff An affidavit on which an attachment is to takes possession as against the district court be based must, in the absence of statutory pro- constable or sergeant at arms. District vision to the contrary, state the Christian name of the defendant debtor, an initial being insutti- Court Act June 14, 1898 (P. L. P. 587, § 77). cient; and, if the initial only be given in such By the same statute the district court ataffidavit, it cannot afterwards be amended. tachment retains its priority, and the plain- [Ed. Note.--For other cases, see Attachment, tiff's claim, if adjudged valid, is settled by Cent. Dig. 88 258, 332; Dec. Dig. 88 101, 122.*] the circuit court auditor as a prior claim. (Syllabus by the Court.)

We find nothing in the attachment act reCertiorari to District Court of Passaic.

quiring or authorizing an auditor to attack Certiorari by Benjamin E. McGrew, Au- other attachments for illegality, but his staditor, against Herman Steiner and L. Wil- tus for that purpose is not brought into quesliams to the district court. Reversed.

tion here. He did as a matter of fact, interArgued November term, 1908, before GAR

vene in the district court and petitioned that RISON, PARKER, and VOORHEES, JJ.

the writ and proceedings be quashed. He

was heard in that court. If his application George P. Rust, for prosecutor. James A. had been simply denied, and the case were Sullivan, for defendants.

before us in that form, his status as an in

tervener would be open to examination; but PARKER, J. This writ brings up certain the district court did not content itself with proceedings in attachment had before the denying his application, but went further district court of the city of Passaic, in which and undertook, as against him, to amend the the defendant Steiner was plaintiff and the affidavit and writ and other proceedings, and defendant Williams defendant. The attidavit it is these amendments that he now attacks for attachment in the district court alleged by certiorari. We think that he has a status that “L. Williams" was indebted to the for that purpose. Coming now to the merits plaintiff, and that the said L. Williams ab- of the case, we fail to see by what authority sconded from his creditors. The writ of at the district court undertook to amend the tachment as issued gave merely the name l affidavit and the writ, and especially the

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