(106 A.) ESTLER v. DELAWARE, L. & W. R. CO. [1919.) Appeal from Court of Chancery. Bill (No. 41.) (Court of Errors and Appeals of by Jesse W. Fenton to enjoin William S. Crook New Jersey. Feb. 6, 1919.) Appeal from Su- and others from letting a store to a grocery compreme Court. Action by George A. Estler pany. From a decree dismissing the bill, plainagainst the Delaware, Lackawanna & Western tiff appeals. Affirmed. Samuel Roessler, of Railroad Company. From a judgment of the Newark, for appellant. Codington & Blatz, of Supreme Court, reversing a judgment in his Plainfield, for respondents. favor, plaintiff appeals. Affirmed. Elmer W. Romine, of Morristown, for appellant. Frederic B. Scott, of New York City, for respond ent. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Parker in the Supreme Court. 103 Atl. 989. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Stevens. 102 Atl. 834. GLOBE TICKET CO. v. INTERNATIONAL TICKET CO. et al. (No. 22.) (Court of Errors and Appeals of New Jersey. March 7, 1919.) Appeal from Court of Chancery. Suit EVANS et al. v. CITY OF PATERSON. by the Globe Ticket Company against the Inter(Court of Errors and Appeals of New Jersey. national Ticket Company and others. From a Feb. 6, 1919.) Appeal from Supreme Court. decree of the Court of Chancery, advising a disCertiorari by John W. Evans and others to remissal of the bill, the plaintiff appeals. Afview assessments levied by the City of Pater-firmed. J. Edward Ashmead, of Newark (Frank son for the improvement of an avenue and the Smith, of Philadelphia, Pa., on the brief), for proceedings on which the assessments were appellant. Eugene W. Leake, of Jersey City, based. Assessments were set aside by the Sufor respondents. preme Court, and the City appeals. Judgment of the Supreme Court affirmed. Francis Scott, of Paterson, for appellant. John O. Atl. 92. Benson and John F. Evans, both of Paterson, for respondents. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Black in the Supreme Court. 102 Atl. 904. PER CURIAM. The decree is affirmed, for the reasons given by Vice Chancellor Lane. 104 HYATT ROLLER BEARING CO. v. PENNSYLVANIA R. CO. (No. 60.) (Court of ErTors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Supreme Court. Action by the Hyatt Roller Bearing Company against the Pennsylvania Railroad Company. From a judgment, affirming a judgment for plaintiff, defendant appeals. Affirmed. Vredenburgh, Wall & Carey, of Jersey City, for appellant. Day, Day, Smith & Slingerland, of Newark, for respond FAIRVIEW DEVELOPMENT CO. v. FAY. (Court of Errors and Appeals of New Jersey. Jan. 31, 1918.) Appeal from Supreme Court. Writs of certiorari by the Fairview Develop-ent. ment Company against Thomas Fay, Collector, removing assessments and taxes by the borough of Fairview. Taxes were affirmed, and the Development Company appeals. Affirmed. Weller & Lichtenstein, of Hoboken, for appellant. Edwards & Smith, of Jersey City, for respondent. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Minturn in the Supreme Court. 104 Atl. 82. INTERNATIONAL RADIO TELEGRAPH PER CURIAM. The judgment under review herein should be affirmed, for the reasons ex-CO. v. MARCONI WIRELESS TELEGRAPH pressed in the opinion delivered by Mr. Justice Minturn in the Supreme Court. 90 N. J. Law, 427, 101 Atl. 405. FAIRVIEW HEIGHTS CEMETERY CO. v. FAY. (Court of Errors and Appeals of New Jersey. Jan. 31, 1918.) Appeal from Supreme Court. Writ of certiorari by the Fairview Heights Cemetery Company against Thomas Fay, Collector, removing assessments and taxes by the Borough of Fairview. From a judgment affirming the tax, prosecutor appeals. Affirmed. Weller & Lichtenstein, of Hoboken, for appellant. Edwards & Smith, of Jersey City, for respondent. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Minturn in the Supreme Court. 90 N. J. Law, 427, 101 Atl. 405. CO. OF AMERICA. (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Court of Chancery. Suit by the International Radio Telegraph Company against the Marconi Wireless Telegraph Company of America. From a decree of the Court of Chancery, advising decree for complainant, defendant appeals. Affirmed. Griggs & Harding, of Paterson, for appellant. Lindabury, Depue & Faulks, of Newark, for respondent. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Lane. 104 Atl. 378. MCCARTY v. BOULEVARD COM'RS OF HUDSON COUNTY et al. (two cases). (Nos. 66, 67.) (Court of Errors and Appeals of New Jersey. March 31, 1919.) Appeal from Supreme Court. Certiorari by Edward L. McCarty to review the legality of two resolutions of the Boulevard Commission of the County of Hudson and others, awarding two contracts for the repair and construction of two sections | Mayor and Aldermen of Jersey City. From a of the Hudson Boulevard in Jersey City. From decree for the City, prosecutor appeals. Rejudgments of the Supreme Court, affirming such versed. Gilbert Collins, of Jersey City, for apmunicipal action, the prosecutor appeals. Af-pellant. John Milton, of Jersey City, for refirmed. Collins & Corbin, of Jersey City, for appellant. John J. Fallon, of Hoboken, and J. Emil Walscheid, of Town of Union, for respond ents. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Black in the Supreme Court. 106 Atl. 219. spondent. PER CURIAM. This appeal involves the same fundamental question decided at the present term in case No. 61, Mayor and Aldermen of Jersey City v. Hennessey, 106 Atl. 405, and for the reasons stated in the opinion filed in that case the judgment herein, on review, is reversed, with costs. McELIGOT & CHENOWETH CO. et al. v. TOWN OF NUTLEY IN ESSEX COUNTY. (No. 89.) (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Circuit Court, Essex County. Action by the McEligot & Chenoweth Company and another against the Town of Nutley in the County of Essex. On case certified to the Supreme Court, questions were answered, plaintiffs appeal. Judgment affirmed. Reed & Reynolds, of Newark, for appellants. J. Harry Hull, of Nutley, for respondent. PER CURIAM. The judgment under review should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Kalisch in the Supreme Court. 104 Atl. 648. MINTURN and WHITE, JJ., dissent. MCMAHON v. RIDER, County Collector, et al. (No. 87.) (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Supreme Court. Mandamus by John J. McMahon against Frederick Rider, County Collector, and others. Demurrer to return to alternative writ overruled by the Supreme Court, and judgment entered for defendants, and plaintiff appeals. Affirmed. J. Emil Walscheid, of Town of Union, for appellant. John J. Denning, for respondents. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Chief Justice Gummere in the Supreme Court. 104 Atl. 289. MAYOR AND ALDERMEN OF JERSEY CITY v. JERSEY CITY WATER SUPPLY CO. (No. 21.) (Court of Errors and Appeals of New Jersey. May 15, 1919.) Appeal from Court of Chancery. Application by the Mayor and Aldermen of Jersey City to file bill of review against the Jersey City Water Supply Company. From a decree denying the application, complainant appeals. Affirmed. John Bentley, of Jersey City, for appellant. Humphreys & Sumner, of Paterson, for respondent. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Stevens. 105 Atl. 494. MAYOR AND ALDERMEN OF JERSEY CITY V. ROTHBERG. (No. 63.) (Court of Errors and Appeals of New Jersey. March 3, 1919.) Appeal from Supreme Court. Pro MOTLEY v. DARLING et al. (No. 48.) (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Court of Chancery. Bill for discovery by Richard A. Motley against Henry I. Darling and others. Decree advised, and plaintiff appeals. Affirmed. Joseph Anderson, Sr., of Jersey City, for appellant. Charles E. Simpson, of Jersey City, for respondents. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Lewis. 88 N. J. Eq. 437, 102 Atl. 853. OCEAN GROVE CAMPMEETING ASS'N v. BOROUGH OF BRADLEY BEACH. (No. 58.) (Court of Errors and Appeals of New Jersey. May 15, 1919.) Appeal from Supreme Court. Action by the Ocean Grove Campmeeting Association against the Borough of Bradley Beach. A judgment for defendant was reversed on plaintiff's appeal by the Supreme Court, and defendant appeals. Affirmed. Ward Kremer, of Asbury Park, for appellant. Patterson & Rhome, of Asbury Park, for respondent. herein should be affirmed, for the reasons exPER CURIAM. The judgment under review pressed in the opinion delivered by Chief Justice Gummere in the Supreme Court. 103 Atl. 812. PFEIFFER v. CROSSLEY. (No. 47.) (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Supreme Court. Suit by Maria A. Pfeiffer against James E. Crossley. Case certified from the circuit court, which court was advised to enter judgment for plaintiff, and defendant appeals. Affirmed. Abner Kalisch, of Newark, for appellant. Louis J. Beers, of Newark, for appellee. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Parker in the Supreme Court. 103 Atl. 1000. (106 A.) sey City, for appellant. Walter J. Larrabee, of New York City, and Fred W. Van Blarcom and William B. Gourley, both of Paterson, for respondents. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Griffin. 104 Atl. 141. STATE v. AGNESI. (Court of Errors and Appeals of New Jersey. March 3, 1919.) Error to Supreme Court. Salvatore Agnesi was convicted of crime. The conviction was affirmed by the Supreme Court, and he brings error. Affirmed. Ward & McGinnis, of Paterson, for plaintiff in error. Michael Dunn, of Paterson, for the State. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Swayze in the Supreme Court. 104 Atl. 299. WEST SHORE R. CO. v. STATE BOARD OF TAXES & ASSESSMENT et al. (Nos. 56-59, 62, 74, 105.) (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Supreme Court. Certiorari by the West Shore Railroad Company, by the United New Jersey Railroad & Canal Company, by the Central Railroad Company of New Jersey, by the Hudson and Manhattan Railroad Company, by the Raritan River Railroad Company, by the Lehigh Valley Railroad Company and others, and by the Erie Railroad Company to review the proceedings of the State Board of Taxes and Assessment and others. Tax in part set aside, and in other respects affirmed, and prosecutors appeal. Affirmed. Collins & Corbin, of Jersey City, for appellants. John W. Wescott, Atty. Gen., for respondents. PER CURIAM. The judgments under review in the above-stated cases should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Minturn in the Supreme Court. 104 Atl. 335. BROWNE v. KING et al. (Supreme Court of New Jersey. Feb. 21, 1917.) Proceeding in mandamus by J. Alexander Browne against Edwin C. King and others. Application denied. Appeal dismissed 102 Atl. 383. Ward & McGinnis, of Paterson, for petitioner. William I. Lewis, of Paterson, for defendants. PER CURIAM. Dr. Browne claims to be health officer of Paterson. Dr. Clay is in possession of the office. Previous litigation has been inconclusive as to the right to the office. The Supreme Court, on a certiorari by Dr. Clay, reviewed action of the civil service commission adverse to him, and dismissed the writ, upon the ground that Dr. Browne was entitled to the office. 88 N. J. Law, 502, 96 Atl. 363. The Court of Errors and Appeals affirmed the judgment, but not on the merits; it held that certiorari to the civil service commission was not the proper way to raise the question. 89 N. J. Law, 194, 98 Atl. 312. We are now asked for a mandamus on the board of finance of Paterson to compel the payment of the salary to Dr. Browne. This would be proper, if the title to the office were settled. The relator thinks it is settled, as far as this court is concerned, by our prior decision. But after the expression of the view of the Court of Errors and Appeals the opinion of this court ceased to be important, except as an expression of the opinion of a learned judge. It was held that the court was without jurisdiction. What we are now asked to do is to determine the title to a public office in a proceeding by mandamus substantially against the city, to which the incumbent is not made a party. Obviously, that cannot be done. But, even if Dr. Clay could properly be made a party to a mandamus, he could not be concluded. He is entitled to be heard before a jury on a quo warranto Leeds v. Atlantic City, 52 N. J. Law, 332, 19 Atl. 780, 8 L. R. A. 697, is relied on. But the point of that case was that the relator had never been out of office, and that the court had upon certiorari annulled the only thing which challenged the relator's right. If Dr. Browne had secured the setting aside of the proceedings appointing Dr. Clay, he would perhaps be in the position of Leeds. But, as the case stands, he is not entitled to the salary, unless he is entitled to the office; the title to the office is necessarily in question, and can only be determined on a quo warranto. Let the application be denied, with costs. KOPPER et al. v. BERNHARDT. (Supreme Court of New Jersey. March 7, 1917.) Appeal from District Court of Perth Amboy. Action by Herman Kopper and another, partners trading as Kopper & Klein, against John F. Bernhardt. Judgment for plaintiffs, and defendant appeals. Affirmed. Judgment affirmed 103 Atl. 186. Theodore Strong, of New Brunswick, for appellant. Thomas Brown, of Perth Amboy, for respondents. PER CURIAM. This action for damages grew out of a rear-end collision between an automobile truck of the defendant and a horse and wagon of the plaintiff. The district court, sitting without a jury, gave judgment for the plaintiff, from which the defendant appealed. The questions argued by the appellant were raised in the court below by motions or requests to find. The first contention is that the driver of appellee's team was negligent in not having such a light as is required by the statute. The judgment rendered by the court was in legal effect a finding against this contention, and there was testimony to support such a finding. The next contention is that the defendant was not negligent. There was a clear conflict of testimony upon this question, and the decision by the court below is therefore not subject to review. The same observation applies to the contention that the damages were excessive. The last contention is that the court did not make a specific finding as to each request presented by the appellant. The judgment was the court's answer, and the benefit that arises from the making of the request is the right it gives to review the court's action upon points that are subject to review upon appeal. Finding no error as to any matter of law, the judgment of the Perth Amboy district court is affirmed. STATE v. HENDRICK. (Supreme Court of been a preliminary hearing of the matter beNew Jersey. April 2, 1917.) Appeal from fore a justice of the peace, and the defendant Court of Special Sessions, Atlantic County. now complains of the ruling of the trial court Charles Hendrick was convicted of fraudulent with relation to testimony submitted at that conversion of goods as consignee, and he ap-hearing. The matter arose in this way: One peals. Cause remanded to the Special Sessions for proper sentence. Writ of error dismissed 103 Atl. 179. Charles Hendrick, pro se. Charles S. Moore, of Atlantic City, Prosecutor of the Pleas, and William Elmer Brown, Jr., of Atlantic City, Asst. Prosecutor of the Pleas, for the State. of the witnesses produced by the state, a salesman in Marx's employ, testified that the articles above specified were to be delivered to the defendant C. O. D., and that the messenger boy who carried them to the defendant was instructed to so deliver them. On his cross-examination the salesman was asked the follow not?" ing question: "You testified at a hearing in ness. If the de It is next contended that it was error to ad PER CURIAM. The return to the writ of error as printed in the state of the case contains no copy of the allegation upon which the defendant was tried. Both parties, however, admit that the charge laid in it was a violation of section 184 of the Crimes Act. (2 Comp. St. 1910, p. 1799). That section provides that "any consignee, factor, bailee, agent or serv. ant, entrusted with the care or sale of any personal property, or entrusted with the collection or care of any moneys, who shall fraudulently take or convert the same, or the proceeds of the sale of the same, or any part thereof, to his own use * * shall be guilty of a misdemeanor." The trial in the special sessions resulted in the conviction of the defendant, and he now appeals. The case made by the state was that the defendant went to the store of one Meyer Marx, on the Boardvalk, in Atlantic City, and, after trying on two pairs of shoes, ordered one of the pairs to be sent to his office. Pursuant to this instruction, a boy in the employ of Marx carried these shoes to the defendant's office; and, upon his arrival there, the latter sent the boy back to the store to bring the other pair of shoes, which he had tried on, and three pairs of hose. These articles the boy brought back in due course. The contention on the part of the state was that when the defendant originally ordered one pair of these shoes to be sent to his office, and also when he sent the boy back for the other pair of shoes and the three pairs of hose, he had no intention of paying for any of the articles, and that, on the contrary, his purpose was, in case they should be 3 pair delivered to him, to fraudulently convert them to his own use, and that he carried this purpose into execution. The state called witnesses in support of its contention. The defendant submitted no evidence to controvert that produced on the part of the state. His claim in the trial court, and before us, was and is that the goods were delivered to him by the employé of Marx on approval, that the title thereto passed to him by the delivery, and that, consequently, there could not have been a wrongful appropriation of them. The trouble with the contention of the defendant is that the character of the delivery, whether on approval or not, was entirely immaterial, if his preconceived purpose was not to pay for them, but, on the contrary, to fraudulently convert them to his own use if they should once be put in his possession. Whether such flagitious intent existed or not was a fact to be determined by the trial court. That fact was found against the defendant, and there was ample evidence to support the finding. The contention of the defendant, therefore, that the conviction against him must be reversed, because the title of the property passed to him by delivery, cannot prevail. It appears that, before the trial, there had "September 11, 1915. "Dr. Hendrick, 395 Boardwalk. 1 pair gla. kid................................................................................... "C. O. D." .........$ 7 50 7.00 1.00 $15 50 On the back of the paper, at the suggestion of the defendant, the messenger boy wrote the following: "Rec'd from Marx's Footwear Shop 2 pair shoes, 3 pair hose, on approval"-and this was signed by the defendant. The argument in support of the inadmissibility of this paper is that only what was written upon the back thereof was evidential, and that this writing showed that the goods were delivered on approval and not C. O. D. Assuming for the moment that the character of the delivery was material, we think the document was competent for the purpose of showing that the messenger boy had no authority to represent Mr. Marx in changing the character of the delivery. The paper showed that his authority was to deliver C. O. D., and the boy's agency was expressly limited by the writing. In changing the character of the delivery at the defendant's suggestion, the boy overstepped the limits of his agency, and his act did not bind Marx. But the paper, we think, even if it was legally objectionable as a piece of evidence, had no rele (106 A.) vancy with relation to the matter in issue, and of $15.50 to Meyer Marx, the complaining witits admission could not have harmed the de-ness. That restitution be made one week from fendant. As we have already pointed out, the question involved was whether or not the defendant, in ordering these goods, had no intention to pay for them, but purposed, in the event of their being delivered to him, to fraudulently convert them to his own use. And if this was the scheme of the defendant it is quite immaterial, as we have already indicated, what the character of the delivery to him was. It is further contended that the trial court erred in refusing to permit the defendant to show that, about a year prior to the transaction under consideration, Marx had sold him a pair of shoes, which, as he represented, were made to the defendant's order, but which, in fact, were taken out of stock, and were worth considerably less than a "made to order" pair would have been. It is difficult to understand on what theory the defendant considered this testimony relevant. If he had been defrauded in the transaction, as he claims to have been, he would hardly have been justified in breaking into the store of Marx and robbing the till of sufficient to compensate him for the loss which he had sustained, and it seems to us equally plain that he could not recompense himself by fraudulently obtaining possession of property belonging to Marx and appropriating it to his own use. It is lastly contended that the sentence pronounced by the court was without legal justification. It was as follows: "The court doth order and adjudge that Charles Hendrick be committed to the care and custody of the probation officer for a period of three years, and that he report weekly and pay said probation officer the sum of one dollar a week during that period, and, as a further condition, that said Charles Hendrick make restitution in the sum to-day, or you will be brought into court and a jail sentence will be imposed." We think this sentence was one beyond the power of the court to impose. The threat that, unless restitution should be made within a week from the day of pronouncing sentence, the defendant would be brought into court and a jail sentence imposed upon him, does not trouble us, for it is no part of the sentence, and unless and until the threat was carried out it did not affect the defendant. The trouble with the sentence is with the command to make restitution to the complaining witness. The criminal courts of the state are not to be used as collection agencies for debts due or for damages sustained. The method to be pursued by Mr. Marx for the recovery of his claim against the defendant is by an action in one of our civil tribunals. As the condition cited is an integral part of the sentence, it cannot be expunged therefrom as surplusage. The result, therefore, is that the conviction must be set aside. But this will not necessitate a retrial of the case. Section 144 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1867) provides that "whenever a final judgment in any criminal case shall be reversed upon a writ of error, on account of error in the sentence, the court in which such reversal was had may render such judgment therein as should have been rendered, or may remand the case for that purpose to the court before which the conviction was had." We incline to think that more exact justice will be done in the present case by sending it back to the trial court, in order that sentence may be there pronounced, than if we attempted to fix the penalty ourselves. The case will therefore be remanded for that purpose to the special sessions of Atlantic county. END OF CASES IN VOL. 106 |