in that notice the amount of his claim against [latter sufficient moneys to pay the same, and the contractor with as much accuracy as is that, if he fails to do so, the materialman reasonably possible. That he did not state has a right, under the third section of the it with absolute accuracy is apparent from Mechanics' Lien Law, to recover such portion the foregoing recital of facts. His failure from him. The answer to this contention is to do so is not shown to have been the result that the statute makes no such provision. of mistake, nor does it appear that he made The demand referred to in it is to be of the any effort to determine accurately what the amount which the materialman claims to be amount was. In order to take advantage of due to him. The satisfaction of the owner the statute, when it appears that the amount must be as to the correctness of this demand. specified in the stop notice is in excess of He is not required to investigate as to the-corthe amount actually due, we think the burden rectness of a part thereof; nor has he any rests upon the materialman to show that the authority under the statute to retain out of excessive claim was not the result of care- the moneys due to the contractor a sum suffilessness, and that the mistake had been made cient to pay such part as he is satisfied is notwithstanding the fact that he had used justly due. every reasonable effort to ascertain with exactness the amount which he was entitled to impound in the hands of the owner. Noth- [5] It appeared in the proofs that, after ing of the kind was done by him, so far as service of the stop notice, the defendant the proofs in this case show, and for this paid to the Conrady-Stevens Company all reason he was not entitled to go to the jury moneys in his hands due under the primary on the question of the liability of the defend-contract, and took from them an indemnity ant under section 3 of the Mechanics' Lien bond to protect him against any liability to Law. [3] There is another reason why this case should not have been submitted to the jury, and that is that the owner not only is not required to pay, but is not justified in paying, the materialman the amount of his claim, unless he, the owner, is satisfied of the correctness of the demand. The defendant notified the plaintiff that he was not satisfied, and gave as a reason the fact that the ConradyStevens Company denied that they owed the sum of money specified in the stop notice. The owner, of course, cannot assert his dissatisfaction without having any just cause for its existence; but in the present case not only did the fact that the amount was in dispute between the contractor and the materialman furnish such ground, but the proofs at the trial demonstrated the soundness of the defendant's position; for, not only was there no attempt to show that the plaintiff's claim as expressed in the stop notice was valid, but, on the contrary, it was admitted that the contractor's challenge of the correctness of the plaintiff's claim was entirely justified, and that no such amount was due as was exhibited in that claim. A materialman cannot take advantage of the benefit of this section of the Mechanics' Lien Law for the purpose of holding the owner liable for the contractor's debt, after the owner has expressed dissatisfaction as to the correctness of the claim, unless he proves at the trial that the claim was, in fact, correct or as nearly correct as it was then reasonably possible to make it, and that therefore, inferentially, the dissatisfaction of the owner was without solid support. For this reason, also, the judgment should be reversed. the plaintiff; and it is insisted that by doing so he estopped himself from denying the existence of such liability. We think not. He could not absolve himself from liability to pay the plaintiff's just demand by such a course of action at that indicated; but the mere payment to the contractor of the moneys due under the contract could not operate, to create a liability in favor of the plaintiff which, until such payment was made, had no legal existence. The judgment under review will be reversed. (92 N. J. Law, 104) SCHACHTER v. HAUENSTEIN. (Supreme Court of New Jersey. Nov. 18, 1918.) MUNICIPAL CORPORATIONS 626 SUNDAY 2-ORDINANCES-VALIDITY. Since the Vice and Immorality Act (4 Comp. St. 1910, p. 5712) is general, it is not contravoned by the massage of a city ordinance referring to Sunday closing of stores selling only a certain class of goods, on the ground of discrimination, especially in view of Home Rule Act (P. L. 1917, p. 319). Harry M. Schachter was convicted of violating a Sunday ordinance, and he brings certiorari against Louis C. Hauenstein to review the conviction. Conviction sustained. Argued June term, 1918, before PARKER and MINTURN, JJ. Levitan & Levitan, of Jersey City, for prosecutor. J. Emil Walscheid, of Town of Union, for respondent. MINTURN, J. The object of this writ is to review a conviction of the prosecutor, for [4] It is argued on behalf of the plaintiff the violation of the provisions of an ordithat, if the owner is satisfied of the correct- nance of the town of Union, in Hudson counness of a part of the materialman's demand, ty. The ordinance provides that the keephe is bound to retain for the benefit of the ing open on Sunday of any store for the sale or barter of certain classes of goods enumerated in the ordinance within the town shall be unlawful, and prescribes a penalty for failure to comply with its provision. The prosecutor was convicted and fined by the recorder of the town for failure to observe the provisions of the ordinance. His contention now is that the ordinance is not constitutional, because its effect is to close some and not all stores in the town. gent in not blowing his whistle sooner than he EMPLOYERS' LIABILITY ACT ASSUMPTION Under the federal Employers' Liability Act EIGN DOCUMENTS-ITALY. Certificate of municipal officer of Italy, as to what in his opinion is shown by records of his town, is not admissible under treaty providing for admission in evidence of "official docu translations duly authenticated," unless such Italy, for proof must be by duly exemplified copy certificate is an official document by the law of of the "official documents." Action under the federal Employers' Liability Act by Francesco Santomassimo, ad ministratrix of Francesco Di Pierro, de The provisions of the ordinance are clearly aimed at the pursuing of a business or occupation on Sunday, which has been car-ments of all kinds, whether originals, copies or ried on by the proprietor during the rest of the week; the manifest purpose being to secure the first day of the week as a day of rest. The question raised here, that the ordinance is discriminatory in its operation, cannot avail the prosecutor, since the Vice and Immorality Act (4 Comp. St. 1910, P. 5712), being a general act, is in no wise contravened by the passage of the ordinance, and therefore the presumption exists that all within the prohibited class enumerated in the statute, of which this prosecutor is one, will obey the statutory Sunday law. The ordinance simply adds an additional penalty for local infringement, and this it has been held is a legal exercise of the charter police power, and is therefore constitutional. doctrine of stare decisis. Since the deter ceased, against the New York, Susquehanna & Western Railroad Company. Verdict for plaintiff. On defendant's rule to show cause. Rule made absolute. Argued February Term, 1918, before GUMMERE, C. J., and PARKER and KALISCH, JJ. George S. Hobart, of Jersey City, for the rule. Ira C. Moore, Jr., of Newark, opposed. GUMMERE, C. J. This was an action The case presents a substantial repetition brought under the federal Employers' Liaof the facts contained in Sherman v. Pater- bility Act (Act Cong. April 22, 1908, c. 149, son, 82 N. J. Law, 345, 348, 82 Atl. 889, and is 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657therefore controlled by it. That adjudication has since been followed in Schumacker v. Lit-loss sustained by the widow and children of 8665]), to recover damages for the pecuniary tle Falls Tp., 108 Atl. 113, and the case be- Francesco Di Pierro, an employé of the defore us may therefore be determined upon the fendant company, who was killed while in the performance of his duty as a trackwalkmination of the Sherman Case, the Legisla-er. The proofs showed that while the decedture has enacted what is popularly termed ent was walking upon the east-bound passenthe Home Rule Act (L. 1917, p. 319), which ger track of the defendant company, inspectconcedes to every municipality a liberal power of providing by ordinance to cover every act which in its operation and incidents may work detrimentally to the "public health, safety and prosperity of the municipality and its inhabitants," and which may be necessary "to carry into effect the powers and duties conferred and imposed by this act or any law of the state." ing the rails, a passenger train approached him from the rear, and, as it approached, blew a warning whistle; that almost im- . mediately after the whistle was blown the decedent stepped off the passenger track over onto the east-bound freight track, just in time to be struck by the engine of a freight train traveling thereon. The trial resulted in a verdict for the plaintiff, the amount awarded being $3,500. In either aspect of the situation, the ordinance in question was a legal exercise of legislative power vested in the municipality, and the conviction under it must be sus-dict of the jury, which, of course, rests upon tained. (92 N. J. Law, 10) [1] The first ground upon which we are asked to grant a new trial is that the ver a finding by it that the defendant, or its servants, were negligent, was against the clear weight of the evidence. We think that the jury was justified from the proofs submitted in finding the following facts: (1) That it was the custom in the (Supreme Court of New Jersey. Nov. 12, 1918.) 1. MASTER AND SERVANT 286(31) EM-operation of the defendant company's trains PLOYERS' LIABILITY ACT-NEGLIGENCE. to give a warning signal, consisting of sevIn action for death of railroad employé who eral short blasts of the whistle, whenever was killed by an interstate freight train while stepping out of the way of a passenger train, anybody, whether an employé or stranger, whether engineer of passenger train was negli-was seen walking on the track in apparent Pierro Michele, son of Francesco and Barricella Anna, son, born on VIII-18-901. 4. Di Pierro Vincenzo, son of said parents, born on IX17-'907. [Signed] The Mayor, Cerza V." unconsciousness of the approach of a train., of Guiseppe, wife, born on XI-5-'76. 3. Di (2) That Di Pierro was unconscious of the approach of the passenger train from his rear until the engineer of that train blew the warning signal. (3) That this signal was not given until the passenger train was so close to Di Pierro that he was compelled to act almost automatically in leaving the passenger track in time to escape the danger of being struck by the passenger train; that is to say, without having time to consider or observe whether, in attempting to avoid the danger threatening from his rear, he would reach a place of safety, or a place of equal danger. If the jury found these facts, it was then for them to determine whether the engineer of the passenger train was not guilty of negligence in failing to give the warning signal to Di Pierro soon enough to enable him to discover whether it would be dangerous to step over onto the freight track. The presumption is that the jury resolved all of these factors against the defendant company, and we cannot say that they were not justified in doing so under the evidence sub mitted to them. This certificate was received in evidence over the objection of the defendant, and its admission is attempted to be justified by the plaintiff on the theory that it is made evidential by a provision in the treaty between Italy and this country, which declares that copies of papers relative to contracts made between designated parties, and "official documents of all kinds, whether originals, copies or translations duly authenticated by the Consuls General, Consuls, Vice Consuls and consular agents, and sealed with the seal of office of the consulate, shall be received as evidence in the United States and Italy." We do not think that this certificate is an official document within the meaning of the treaty. It may be that the "population docket" referred to in the certificate comes within the scope of the treaty (although this is not shown by the proofs), and, if it does, then the proper method of proof would be by a duly exemplified copy thereof. But clearly there is nothing in a mere certificate of a municipal officer as to what in his opinion is shown by the records of his town to bring it within the scope of the treaty, unless such a certificate is made an "official document" by the law of Italy; and there is no suggestion that this is the fact, much less any attempt to prove that it is. [2] It is next argued that the rule should be made absolute for the reason that Di Pierro assumed the risk of just such an accident as that which brought about his death, and it is said that all the authorities hold this view. We do not so understand the trend of the decisions. Under the federal statute an employé does not assume a risk which arises out of the negligence of a fellow employé. If in the present case Di Pierro had received timely notice of the approach of the passenger train by the blowing of the warning signal, and had, nevertheless, been killed, his death would have been the result REINAUER v. HACKENSACK WATER CO. of a risk assumed by him, and growing out of his employment. But, as we have already said, the jury has declared that the negligence of the engineer of the passenger train was the producing cause of the death, and, consequently, the doctrine of assumption of risk has no application to the situation exhibited by the facts in the present case. It is next alleged that the verdict is excessive. We are not impressed with the argument of counsel upon this point, and content ourselves with saying we do not consider it so. [3] Lastly, it is argued that the verdict should be set aside because of the entire absence of proof of the existence of a widow or children of the decedent. The only evidence offered on behalf of the plaintiff as to the existence of such dependents was a certificate from the mayor of the town of S. Nicola Manfredi in the Kingdom of Italy, which was in the following words: "The mayor does certify that from the population docket it appears that the family of Di Pierro Francesco, son of Michael Angelo, owns nothing; that it is composed, first, Di Pierro Francesco, son of Michael Angelo, born VIII12-1875. Second, Barricella Anna, daughter For the reason last mentioned, the rule to show cause will be made absolute. (92 N. J. Law, 8) (Supreme Court of New Jersey. Nov. 12, 1918.) 1. HIGHWAYS 200-EXCAVATION BY WATER COMPANY-RESTORATION. Where water company made excavation in highway under permission from authorities, burden rested on it to restore highway to normal condition and take care of it until that restoration, by settling and filling, was permanent, and fact same duty might have rested on authorities did not affect company's primary liability to motorcycle rider. 2. HIGHWAYS 194-EXCAVATION BY WATER COMPANY-RESTORATION-CARE DURING PROCESS. Obligation to make permanent restoration of excavated highway being imposed on water company which excavated, it is bound to use reasonable care during restoration by subsidence and filling to see that travelers shall come to no harm; method being for its choice. 3. HIGHWAYS 200-EXCAVATION-RESPON SIBILITY FOR INJURY. Where water company, after temporarily repairing excavated highway, which was bound to subside and leave depression unless refilled, did nothing for safety of travelers after temporary repair, jury was justified in holding it responsible for injury to motorcycle rider. 4. DAMAGES 131(2)-PERSONAL INJURIESEXCESSIVE VERDICT. Damages of $2.000 held reasonable award against water company, which had created de pression in highway by excavation, in favor of [of the public authorities, the burden rested boy 13 years of age, who received compound fracture of leg thereby while riding motorcycls. Action by William Reinauer against the Hackensack Water Company. On defendant's rule to show cause why verdict for plaintiff should not be set aside. Rule discharged. upon them to see that the highway, after the work was done, was maintained in a safe and proper condition, that fact does not, we think, relieve the defendant company from responsibility. The work done by it was for its sole use and benefit. Although it was lawfully done, it was in derogation of the public right, and the burden rested upon it of restoring the highway to its normal condition, and to take care of it, so far as the Argued June term, 1918, before GUMMERE, C. J., and SWAYZE and TRENCHARD, JJ. Edwards & Smith, of Jersey City, for the public rights are concerned, until that resto rule. ration was permanent. This being so, the James A. Butler and William J. McFad- fact that the same duty rested upon the pubden, both of Jersey City, opposed. lic authorities (if such be the fact) does not affect the primary liability of the company. Brady v. Public Service Ry. Co., 80 N. J. Law, 471, 79 Atl. 287. [2, 3] The obligation to make a permanent restoration of the highway being imposed upon the defendant company, it was bound to use reasonable care, during the process of restoration, to see that persons traveling on the highway should come to no harm by reason of the defective condition caused by it. The method to be adopted to prevent injury to travelers on the highway is, of course, one to be determined by the person responsible for its defective condition, provided that the method selected shows reasonable care used for the protection of the public. As nothing was done by the defendant for the public safety after the temporary repair of the road, the jury was justified in holding it responsible for the plaintiff's injury. GUMMERE, C. J. The plaintiff, a boy 13 years of age, was riding on a two-seated motorcycle driven by another young man. They were traveling on the Hudson county boulevard at night, and, in the darkness, the motorcycle struck a depression which the driver failed to observe, with the result that the plaintiff was thrown off the cycle, his right foot was caught in the rear wheel, and the leg broken above the ankle; the fracture being a compound one. The depression in the road was due to an excavation made therein by the defendant company for the purpose of laying a water pipe under the surface of the highway at that point. The proofs justified the conclusion that, after the pipe had been laid, the defendant filled up the opening, and caused the earth to be rammed as solidly as possible, leaving this part of the surface of the highway at its [4] We are further asked to set this veroriginal level. The proofs also showed that diet aside upon the ground that the damit was impossible, in refilling a trench open- ages awarded were excessive. No good pured in a public road, to ram the earth so tight-pose will be served by an analysis of the ly that it would not thereafter sink below its original level, and that it was necessary to fill it up from time to time as subsidence took place. It also appeared that after the work of refilling nothing had been done by the defendant company with relation to the trench, nor were any means adopted by it of warning persons traveling along the highway of the existence of the subsidence. It was left to the jury to determine whether, under these conditions, the defendant company was negligent, and responsible for the injury to the plaintiff. The jury found that it was, and assessed the plaintiff's damages at $2,000. plaintiff's injuries, and of the pain and suffering produced thereby. It is enough to say that, after a full consideration of this branch of the case, the award seems to us to be a reasonable one. The rule to show cause will be discharged. (90 N. J. Eq. 70) ROGERS v. LIPPINCOTT et al. (No. 41/716.) (Court of Chancery of New Jersey. Oct. 8, 1918.) 1. WILLS 138(8) POWER OF SALE RIGHTS OF BENEFICIARY ELECTION TO Beneficiary under will directing sale of closure suit, whereby the interests of the other property, who was not made party to a forebeneficiaries were extinguished, and who is therefore only person interested in exercise of power of sale, has a right to defeat that power by electing to take the land. [1] It also appeared in the case that this excavation was made by the defendant under permission granted to it by the public authorities having charge of this highway; and the first ground upon which we are asked to set aside the verdict is that, after the company once restored the highway to its normal condition, it was charged with no further responsibility, and that the duty of taking care of any subsidence which Where beneficiary under will directing sale should afterward occur rested solely upon closure suit, whereby the interests of the other of property, who was not made party to a forethe public authorities. Assuming that, be- beneficiaries were extinguished, elects to take cause this work was done with the consent | his interest in the land in lieu of specie under BENEFICIARY UNDER 2. PARTITION 21-RIGHT THERETO-TEN- will in question, except that of the complain- Doyle v. Blake, Thus, as a tendefendant Mary maintain the bill [3] Moreover, it appears by the allegations of the bill that the defendants executed mortgages upon their several interests in the land. This was an election on their part to reconvert the personalty into real estate. Gest v. Flock, 2 N. J. Eq. 108; Maddock v. Progressive Inv. Co., 79 N. J. Eq. 139, 84 Atl. 575. William A. Rogers, the complainant's grandfather, died seised of the land sought to be partitioned, leaving surviving a widow and five children. By his will he gave his property, real and personal, to his widow during widowhood, and empowered his executors, after the death of his wife, to sell his real estate and divide the proceeds among his children "that may be living at that time, or to the lawful issue of any that may have died leaving such issue." The widow died leaving surviving her the defendants, Mary Rogers Lippincott and Thomas I. Rogers, children, and the complainant, a son of a deceased child, the only surviving heirs at law of the testator. During the lifetime of the widow a mortgage made by the testator, covering the premises, was foreclosed in this court, and the property sold to one Dechert, who forthwith conveyed it to the defendant Mary Rogers Lippincott. The complainant, who was then an infant, was, for some unexplained reason, not made a party to the suit, although all the other heirs and beneficiaries were joined. The executors have not exercised the power of sale, and the complainant, who is now of age, has elected to take his undivided third interest in the land in lieu of specie under the bequest in the will, and to enforce his election has filed this bill for a partition. The defendant Mary Rogers Lippincott moves to dismiss the bill on the grounds that the complainant "has 2. no interest in the lands disclosed in said bill that is capable of being partitioned; his interest, if any, being only in the proceeds of said land when sold according to the terms of the will of William A. Rogers." Bayard Stockton, of Trenton, for the mo tion. The motion is denied, with costs. (89 N. J. Eq. 566) SMITH v. BALCH. (No. 31.) (Court of Errors and Appeals of New Jersey. Νον. 18, 1918.) (Syllabus by the Court.) 1. FRAUDS, STATUTE OF 46-PAROL CONTRACT NOT TO BE PERFORMED WITHIN A YEAR-INTENT OF PARTIES. In order for paragraph 5 of the Statute of Frauds (2 Comp. St. 1910, p. 2612) to apply, it must appear that the parties intended when they made a parol contract that it should not be performed within a year. If this does not expressly or clearly appear and the contract is one which, taking in consideration its subject-matstatute does not apply, although in fact a longer ter, may be performed within that period, the time was actually taken in performance. (Additional Syllabus by Editorial Staff.) INTEREST 46(3)-ACCRUAL OF RIGHT DEMAND-NECESSITY. Where defendant verbally agreed to pay complainant a bonus of $50 for each house built by complainant and purchased a house for comand took title in his own name and gave mortplainant and applied bonuses on purchase price gage to vendor for balance, his failure to apply future bonuses to reduce the principal of mortgage, as agreed, entitled complainant to interest on each bonus from time when earned, William J. Backes, of Trenton, opposed. without demand. 3. TRUSTS ~92(%1⁄2)—CONSTRUCTIVE TRUSTS— CONSTRUCTION OF AGREEMENT. Such arrangement gave rise to a constructive trust in favor of complainant, to which statute of frauds by express terms is inapplicable. 4. LIMITATION OF ACTIONS 102(8)-CONSTRUCTIVE TRUST. BACKES, V. C. [1, 2] The argument in support of the motion is that the complainant cannot defeat the power of sale by electing to take the land unless all of the beneficiaries join in the election. Condict v. Condict, 73 N. J. Eq. 301, 75 Atl. 815. The principle that land equitably converted into personal property cannot be reconverted into realty by the owners of the fee entitled to the personalty, unless by unanimous consent, is of no assistance to the defendant, because the interests of the beneficiaries under the C. Balch. From a decree of the Court of Under such arrangement, defendant was bound to his constructive trust to apply bonuses as earned, so that statute of limitations did not apply. Appeal from Court of Chancery. Bill by Frederick L. Smith against Edward For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |