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Zona v. Erie Railroad Co.

93 N. J. L.

1057. This decision is controlling and requires a reversal of the judgment of our Supreme Court, which is ordered accordingly.

For affirmance-None.

For reversal-THE CHANCELLOR, CHIEF JUSTICE, SWAYZE, TRENCHARD, BERGEN, BLACK, HEPPENHEIMER, WILLIAMS, TAYLOR, JJ. 9.

CHARLES ZONA, RESPONDENT, v. ERIE RAILROAD COMPANY, APPELLANT.

Submitted July 7, 1919-Decided November 17, 1919.

On appeal from the Supreme Court.

For the respondent, Peter J. McGinnis.

For the appellant, George S. Hobart and Edward A. Markley.

PER CURIAM.

The judgment is affirmed, for the reasons stated in the opinion in Oppicci v. Erie Railroad Co., just decided.

For affirmance-THE CHANCELLOR, CHIEF JUSTICE, SWAYZE, TRENCHARD, PARKER, MINTURN, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON, JJ. 12.

For reversal-None.

INDEX.

ABUTTING LANDOWNERS.

Defendant built and maintained an

awarded as to damages alone.
Philbrick v. Mundy,

43

embankment and wall along a 3. Whether a jury is ordered by

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the court to inspect or examine
premises as an aid in ascertain-
ing the truth of any matter in
dispute between the parties to
an action under the Evidence act
(Comp. Stat., p. 2229, § 30), or
to view any place to enable the
jury better to understand the
evidence given in the cause under
the Jury act (Comp. Stat., p.
2976, §§ 31, 35), the judgment
rendered by the jury should,
nevertheless, be reversed if le-
gally unsupportable in and by
the record under review, as the
questions presented to an appel-
late court should be decided upon
what appears in the record
brought up from the court below,
notwithstanding a view was had
by the jury which tried the
cause. Garland v. Furst Store,
127

4. That this court in reviewing
judgments of courts of law has
no power to pass upon the
weight of evidence has long been
definitely settled; and all judg-
ments under review are to be
sustained, so far as factual ques-
tions are concerned, if there be
any competent evidence to sup-
port them. Koch v. Costello,

367

165. The Court of Errors and Ap-

peals has no power to review or
determine the weight of evidence,
or consider whether the amount
of the verdict is excessive.
Smith V. Brunswick Laundry
Co.,
436

2. Where on appeal from the Cir-
cuit Court a judgment is wrong
in respect to the inclusion of in-
terest, and is right in all other
respects, the judgment will be
affirmed if the plaintiff will
waive the interest; otherwise, it 6. The only proper ground of ap-
will be reversed and a new trial]

peal in the Court of Errors and

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ATTORNEY AND CLIENT.
1. Communications between attor-
ney and client are protected
from disclosure only at the in-
stance of the client. State v.
Snook,
29

1. A claim for damages for failure
to deliver goods in pursuance of
an executory contract of sale is
a claim for unliquidated dam-
ages, and such a claim is not one
for which an attachment will is-
sue. Parker v. Anthony-Ham- 2. A communication, made by a
mond Chemical Works,

11

2. Attachment will not lie for un-
liquidated damages claimed by
reason of defendants supplying
goods of a quality inferior to
that agreed upon. Sher V.
Church,
73

3. Proceedings in attachment being
statutory and out of the course
of the common law, must be
strictly construed, and where the

client to an attorney, concerning
the drafting of a will for the
client, is a privileged communi-
cation which continues after the
death of the client, and the privi-
lege is not waived by the fact
that the attorney was one of the
subscribing witnesses to the will.
Anderson v. Searles,
227

AUTO BUSSES.

affidavit alleged that defendant 1. A policy of accident insurance

was a non-resident and ab-
sconded from his "debtors," and
it appears that the defendant
was, and for years past had
been, a resident of the county
and engaged in business therein
so that service of ordinary pro-|
cess might at any time have been
served upon him, or a member.
of his family, the writ will be
quashed. Little v. Long, 99

4. On a judgment in attachment in
the District Court, where there
is no appearance by the defend-
ant, the execution is strictly

was filed with the municipality.
by a jitney driver, as a condition
precedent to the granting of his
license by the city. Thereafter.
his bus collided with the plaint-
iff's automobile, from which ac-
cident plaintiff suffered personal
injuries for which in a suit in-
stituted against the bus owner
she recovered damages. She
then brought this suit against
the insurer upon the policy of
insurance. Held (1) that the
act entitled "An act concerning
auto busses, commonly called jit-
neys, and their operation in

Banks and Trust Companies.

cities" (Pamph. L. 1916, p.
283), was not unconstitutional,
in that its title by the use of the
word "operation" fairly compre-
hended the subject-matter of jit-
ney insurance, as indemnity and
protection to the traveling pub-
lic, for whose benefit the policy|
was issued and filed. (2) That
since the insurance policy ex-
pressly provided for the pay-
ment of such indemnity to an in-
jured third party, the omissions
of the insured to comply with
certain details thereof, in case of
accident, such as notice of the
accident, &c., could not affect
the right of the injured party to
recover upon the same for dam-
ages, adjudicated in a suit at
law between the insured and the
injured third party, as a basis
for the suit upon the policy to
recover the amount so adjudi-
cated. Gillard v. Manufacturers
Ins. Co.,

215

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1. Where the signatures of named
payees of checks issued by a
loan association upon supposi-
titious applications for loans)
gotten up by its treasurer, pay-

Bonds.

vidual endorsement below those
that were forged and either drew
in cash from, or had the amount
of the checks passed to his own
credit in his individual account
in the bank, which transactions
extended over a period of four
years and upwards and included
thirty-two checks in all, and the
fraud could have been discovered
by the loan association in the
earliest stages of its perpetration
by an examination of its bank
pass-books and the vouchers re-
turned therewith, which included
the forged checks, by any one or
more of its officers, other than
the treasurer, the loan associa-
tion was negligent in not dis-
covering the fraud, and is there-
fore estopped from recovering
from the bank the sum it paid
out on the checks so fraudulently
endorsed. Pannonia Bldg. &
Loan Ass'n v. West Side Trust
Co.,
377

2. The acceptance of the balanced
pass-books with the forged
vouchers returned by the bank
to the loan association without
protest or objection as to the
forgeries, constituted, in the cir-
cumstances present, an account
stated between the parties. Ib.

3. The holding by the Supreme
Court in Pratt v. Union Na-
tional Bank, 79 N. J. L. 117,
that a bank having paid a check
(with forged endorsement) can-
not charge the amount against
its depositor unless it shows a
right to do so on the doctrine of
estoppel or because of some neg-
ligence chargeable to the deposi-
tor, approved.
Ib.

4. Does Pamph. L. 1908, p. 428.
relating to forged checks apply
to forged endorsements on
checks: Quære.
Ib.

BONDS.

able at bank, were forged by the When a bond given in pursuance
treasurer, who wrote his indi- of a statute is not in accordance

Brokers.

therewith, but is not the pro-|
duct of coercion or duress, is not
prohibited by statute nor con-
trary to public policy, is founded

Cases Affirmed.

From the Supreme Court. (Af-
firmed as to Amelia Spierling).
167

v. Mildred J. Brown, Respond-
ent. From the Supreme Court,
91 N. J. L. 481,
171

upon good and sufficient con- 4. Susannah B. Trapp, Appellant,
sideration and intended to sub-
serve a good and lawful pur-
pose, it is good as a voluntary
bond; and recovery had thereon,
if supported by competent evi-5. Levenson Wrecking Co., Re-

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6. The State of New Jersey. De-
fendant in Error, v. Gennaro
Palmieri, alias Napolitano,
Plaintiff in Error. From the
the Middlesex County Court of
Oyer and Terminer,

1. The duty which an agent under-
takes, the obligation he assumes
as a condition of his right to de-
mand commissions is to bring
the buyer and seller to an agree-
ment. The agent, to earn com-
missions on the sale of property, 7. The State of New Jersey, De-

must be the efficient or procur-
ing cause of the sale. Queen v.
Jennings,

353

2. In this case, the evidence ex-
amined and held, whether the
plaintiff was discharged in good
faith, or whether he was the effi-
cient or procuring cause of the
sale, were questions of fact prop-
erly submitted by the trial court

195

fendant in Error, v. Frank La-
vieri and Michael DePalma,
Plaintiffs in Error. From the
Middlesex County Court of Oyer
and Terminer,

201

S. The State of New Jersey, De-
fendant in Error, v. Francis
Gregory. Plaintiff in Error.
From the Supreme Court, 205

to be determined by the jury. 9. Helen E. Autrim. Respondent,

CARRIERS.

See NEGLIGENCE, 1, 2.

CASES AFFIRMED.

Ib.

1. Mary E. Maitland, Respondent.,
v. Board of Police Commission-

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ers of the City of Garfield, Ap- 11. Marietta Rathbun, Administra-
pellant. From the Supreme
Court.
150

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