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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 reversalTHE CHANCELLOR, CHIEF JUSTICE, SWAYZE, TRENCHARD, BERGEN, BLACK, HEPPENHEIMER, WILLIAMS, TAYLOR, JJ. 9.

CHARLES ZONA, RESPONDENT, v. ERIE RAILROAD COM

PANY, 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 affirmanceTHE CHANCELLOR, CHIEF JUSTICE. SWAYZE, TRENCHARD, PARKER, MIXTURN, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON, JJ. 12.

For reversal - None.

INDEX.

ABUTTING LANDOWNERS. awarded as to damages alone.

Philbrick v. Mundy,

43
Defendant built and maintained an

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

which the court to inspect or examine
plaintiff's property abuts, premises as an aid in ascertain-
thereby interfering with her use ing the truth of any matter in
of the highway and making in- dispute between the parties to
gress and egress to her premises an action under the Evidence act
more difficult. Held, under the (Comp. Stat., p. 2229, 8 30), or
facts of this case, that plaintiff to view any place to enable the
was entitled to actual, but not jury better to understand the
punitive, damages. Dickenson evidence given in the cause under
v. Del., Lack. & W. R. R. Co., the Jury act (Comp. Stat., p.

245 2976, 88 31, 35), the judgment

rendered by the jury should,
See also MUNICIPAL CORPORA- nevertheless, be reversed if le-

TIONS (ASSESSMENTS, gally unsupportable in and by
&c.), 1, 2.

the record under review, as the
NEGLIGENCE, 8.

questions presented to an appel-
late court should be decided upon

what appears in the record
ALIMONY.

brought up from the court below,

notwithstanding a view was had
See HUSBAND AND WIFE, 1. by the jury which tried the

Garland v. Furst Store,

127
APPEAL AND ERROR.

4. That this court in reviewing
1. An appellate court will not con- judgments of courts of law has
sider a ground of reversal which

power to pass upon the
challenges the sufficiency of the weight of evidence has long been
testimony. It is only where the definitely settled; and all judg-
contention is that there is no ments under review are to be
evidence whatever to support the

sustained, so far as factual ques-
verdict that the court will ex- tions are concerned, if there be
amine the testimony, and then any competent evidence to sup-
only for the purpose of ascer- port them. Koch v. Costello,
taining whether such contention

367
is well founded. State V. Run-
yon,

16 5. The Court of Errors and Ap-

peals has no power to review or
2. Where on appeal from the Cir- determine the weight of evidence,

cuit Court a judgment is wrong or consider whether the amount
in respect to the inclusion of in- of the verdict is excessive.
terest, and is right in all other Smith V. Brunswick Laundry
respects, the judgment will be Co.,

436
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

cause.

no

Attachment.

Auto Busses.

Co.,

Appeals from a judgment of the limited to the property attached.
Supreme Court, when that tri- Blessing v. Blackburn Varnish
bunal sat as a court of review,

321
is, that that court erred in giv-
ing judgment for the successful, 5. A judgment in attachment in
instead of the unsuccessful, the District Court, where there
party, or that it erred for one or is no appearance by the defend-
more of the grounds of appeal ant, may not be docketed in the
filed in that court and brought Court of Common Pleas or Su-
up with the record. Baer v. Le-

preme Court.

Ib.

.
high & Hudson Ry. Co., 446

6. The general rule that service of
See also JUSTICES' COURTS, 1, 2, process procured by fraud is in-
3.

valid, extends to the issue and
NEGLIGENCE, 4.

execution of writs of attach-
PRACTICE, 1, 4, 7, 8, 9, ment. Delaney Co. v. Freed-
10.
man Co.,

456

ATTACHMENT.

ATTORNEY AND CLIENT.

sue.

11

1. A claim for damages for failure

1. Communications between attor-
to deliver goods in pursuance of

ney and client are protected
an executory contract of sale is

from disclosure only at the in-
a claim for unliquidated dam-

stance of the client. State v.
ages, and such a claim is not one

Snook,

29
for which an attachment will is-

Parker v. Anthony-Ham-2. A communication, made by a
mond Chemical Works,

client to an attorney, concerning

the drafting of a will for the
2. Attachment will not lie for un-

client, is a privileged communi-
liquidated damages claimed by

cation which continues after the
reason of defendants supplying

death of the client, and the privi-
goods of a quality inferior to

lege is not waived by the fact
that agreed upon.

Sher

that the attorney was one of the
Church,

73

subscribing witnesses to the will.
Anderson v. Searles,

227
3. Proceedings in attachment being

statutory and out of the course
of the common law, must be

AUTO BUSSES.
strictly construed, and where the
affidavit alleged that defendant 1. A policy of accident insurance

non-resident and ab- was filed with the municipality,
sconded from his "debtors," and by a jitney driver, as a condition
it appears that the defendant

precedent to the granting of his
was, and for years past had license by the city. Thereafter,
been, a resident of the county his bus collided with the plaint-
and engaged in business therein iff's automobile, from which ac-
so that service of ordinary pro- cident plaintiff suffered personal
cess might at any time have been injuries for which in a suit in-
served upon him, or a memberi stituted against the bus owner
of his family, the writ will be she recovered damages. She
quashed. Little v. Long,

then brought this suit against

the insurer upon the policy of
4. On a judgment in attachment in insurance. Held-(1) that the

the District Court. where there act entitled “An act concerning
is no appearance by the defend- auto busses, commonly called jit-
ant. the execution is strictly neys, and their operation in

was

a

99

Banks and Trust Companies.

Bonds.

cities" (Pamph. L. 1916, p.

vidual endorsement below those
283), was not unconstitutional, that were forged and either drew
in that its title by the use of the in cash from, or had the amount
word “operation" fairly compre- of the checks passed to his own
hended the subject-matter of jit- credit in his individual account
ney insurance, as indemnity and in the bank, which transactions
protection to the traveling pub- extended over a period of four
lic, for whose benefit the policy years and upwards and included
was issued and filed. (2) That thirty-two checks in all, and the
since the insurance policy ex- fraud could have been discovered
pressly provided for the pay- by the loan association in the
ment of such indemnity to an in- earliest stages of its perpetration
jured third party, the omissions by an examination of its bank
of the insured to comply with pass-books and the vouchers re-
certain details thereof, in case of turned therewith, which included
accident, such as notice of the the forged checks, by any one or
accident, &c., could not affect more of its officers, other than
the right of the injured party to the treasurer, the loan associa-
recover upon the same for dam- tion was negligent in not dis-
ages, adjudicated in a suit at covering the fraud, and is there-
law between the insured and the fore estopped from recovering
injured third party, as a basis

from the bank the sum it paid
for the suit upon the policy to out on the checks so fraudulently
recover the amount so adjudi- endorsed. Pannonia Bldg. &
cated. Gillard v. Janufacturers

Loan Ass'n v. West Side Trust
Ins. Co.,

215
Co.,

377
2. Under the provisions of the act 2. The acceptance of the balanced
entitled “An act concerning auto

pass-books with the forged
busses, commonly called jitneys.

vouchers returned by the bank
and their operation in cities"

to the loan association without
(Pamph. L. 1916, p. 283), one

protest or objection as to the
who suffers loss from an injury

forgeries, constituted, in the cir-
to his automobile, resulting from

cumstances present, an account
collision with a jitney bus, can-

stated between the parties. Ib.
not recover such loss from the
indemnifying insurance

3. The holding by the Supreme

Court in Pratt v. Union Na-
pany, upon an accident policy,
filed with the municipality, for

tional Bank, 79 N. J. L. 117,
the reason that the loss recover-

that a bank having paid a check
able under the statute is limited

(with forged endorsement) can-
to such as results to a third

not charge the amount against
party from bodily injury or

its depositor unless it shows a
death. Gillard v. Janufacturers

right to do so on the doctrine of
Ins. Co.,

estoppel or because of some neg-
220

ligence chargeable to the deposi-
tor, approved.

Ib.

com-

to

BANKS AND TRUST COM-

4. Does Pamph. L. 1908, p. 428,
PANIES.

relating to forged checks apply

forged endorsements on
1. Where the signatures of named checks : Quare.

16.
payees of checks issued by a
loan association upon supposi-
titious applications for loans

BONDS.
gotten up by its treasurer, pay-
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.

Cases Affirmed.

therewith, but is not the pro- From the Supreme Court. (Af-
duct of coercion or duress, is not firmed as to Amelia Spierling),
prohibited by statute nor con-

167
trary to public policy, is founded
upon good and sufficient con-4. Susannah B. Trapp, Appellant,
sideration and intended to sub- V. Mildred J. Brown, Respond-
serve a good and lawful pur- ent.

From the Supreme Court,
pose, it is good as a voluntary 91 N. J. L. 481,

171
bond; and recovery had thereon,
if supported by competent evi-15. Levenson Wrecking Co., Re-
dence, will be upheld. Koch v. spondent, v. Gatti-McQuade Co.,
Costello,

367

Appellant. From the Hudson

County Circuit Court, 184
BROKERS.

6. The State of New Jersey, De-
1. The duty which an agent under-

fendant in Error, v. Gennaro
takes, the obligation he assumes Palmieri, alias Napolitano,
as a condition of his right to de-

Plaintiff in Error. From the
mand commissions is to bring the Middlesex County Court of
the buyer and seller to an agree-

Oyer and Terminer,

195
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-

fendant in Error, v. Frank La-
ing cause of the sale. Queen v.

vieri and Michael DePalma,
Jennings,

353 Plaintiffs in Error. From the

Middlesex County Court of Oyer
2. In this case, the evidence ex- and Terminer,

201
amined and held, whether the
plaintiff was discharged in good 8. The State of New Jersey, De-
faith, or whether he was the effi- fendant in Error, v. Francis
cient or procuring cause of the

Gregory. Plaintiff in Error.
sale, were questions of fact prop-

From the Supreme Court,

205
erly submitted by the trial court
to be determined by the jury. 9. Helen E. Autrim. Respondent,

V. Telegraphers' Benevolent As-

sociation, &c., Appellant. From
CARRIERS.
the Supreme Court,

213

Ib.

See NEGLIGENCE, 1, 2. 10. Grace Gillard, Respondent. v.

Manufacturers Insurance Com-

pany of Philadelphia, Pennsyl.
CASES AFFIRMED.

vania, Appellant. From the Su-

preme Court, 92 N. J. L. 141,
1. Mary E. Maitland, Respondent,

215
1". Board of Police Commission-
ers of the City of Garfield, Ap- 11. Marietta Rathbun, Administra-
pellant. From the Supreme

trix of the Estate of Frank
Court.

150

Rathbun, Deceased. Respondent,

13. Bruno Brancatella. Appellant.
2. Mahlon W. Newton. Respond-

From the Hudson County Cir-
ent, v. Globe Indemnity Co., Ap-

cuit Court,

222
pellant. From the Supreme
Court,

152 12. Joseph Snuffin, Administrator,

&c., Respondent, v. William C.
3. Charles A. Fischer. Executor, McAdoo, Director General of

&c., Respondent, v. William F. Railroads. From the Supreme
Spierling and Amelia Spierling. Court,

231

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