(107 A.) Percy L. Aiken, of Bangor, for plaintiff. W. B. Blaisdell, of Sullivan, for defendant DEASY, J. Action brought by the wife of a man in the United States naval service against the town of Sorrento to recover (93 N. J. Law, 16) STATE v. RUNYON. "state aid" of $4 per week, provided by (Supreme Court of New Jersey. June 5, 1919.) chapter 276 of the Laws of 1917. The act provides, in substance, that the state aid, so called, shall in the first instance be paid by towns, and that the towns shall be reimbursed by the state. Section 10 of chapter 276 is as follows: "If any city, town or plantation, or the municipal officers thereof, shall neglect or refuse to comply with the provisions of this act according to its true intent and meaning, and to the satisfaction of the governor and council, such city, town or plantation, or the municipal officers thereof, as the case may be, shall forfeit and pay the sum of one hundred dollars, one half to the use of the aggrieved party and one half to the county where the cause is tried, to be recovered by an action on the case in any court proper to try the same." [1] Where a statute creates a new right, but provides no remedy for its enforcement, a remedy exists by implication. Stearns V. Railroad Co., 46 Me. 95; Rackliff v. Greenbush, 93 Me. 99, 44 Atl. 375; Ricker Classical Institute v. Mapleton, 101 Me. 553, 64 Atl. 948. [2] If, however, the statute conferring the right provides a remedy, such remedy is ordinarily exclusive. Pollock v. Eastern Railroad Co., 124 Mass. 158; Thayer v. Kitchen, 200 Mass. 382, 86 N. E. 952; Great Western Co. v. State, 181 Ind. 28, 102 N. E. 849, 103 N. E. 843; Evers v. Davis, 86 N. J. Law, 196, 90 Atl. 677; Schmidt v. Milwaukee, 149 Wis. 367, 135 N. W. 883; State v. Western & A. R. Co., 136 Ga. 619, 71 S. E. 1055; Farmers' National Bank v. Deering, 91 U. S. 29, 23 L. Ed. 196; Yates v. Jones National Bank, 206 U. S. 158, 27 Sup. Ct. 638, 51 L. Ed. 1002. [3] There is a further class of cases holding that, where statutes do not create new rights, but are merely declaratory of common-law rights, remedies provided by such statutes are cumulative, and not exclusive. Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N. E. 929, 59 Am. Rep. 113; Pollock v. Eastern Railroad Co., 124 Mass. 158; King v. Viscoloid Company, 219 Mass. 420, 106 N. E. 988, Ann. Cas. 1916D, 1170; Field v. Milwaukee, 161 Wis. 393, 154 N. W. 698; Levy v. Davis, 115 Va. 814, 80 S. E. 791. In the pending case the statute involved gives a new right, and is not merely declara 1. CRIMINAL LAW 1159(2)—Error-SUFFICIENCY OF EVIDENCE. The Supreme Court will not consider a ground of reversal which challenges the sufficiency of the evidence to sustain conviction, and it is only where the contention is that there is no evidence whatever to support the verdict that the court will examine the same. 2. CRIMINAL LAW -REFUSAL. 829(18)—INSTRUCTIONS Error to Court of Quarter Sessions, Union County. Clarence B. Runyon was convicted of assault and battery, and he brings error. Affirmed. Argued February term, 1919, before GUM- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes William R. Wilson, of Elizabeth, for plain- argued is directed at the action of the trial tiff in error. court in permitting the prosecutor of the Walter L. Hetfield, Jr., Prosecutor of the pleas, over objection, to ask the following Pleas, of Plainfield, for the State. GUMMERE, C. J. The plaintiff in error was convicted of an atrocious assault and battery committed on one Robert Alpaugh, the night ticket agent of the Central Railroad Company of New Jersey, at its office in Westfield. [1] The first ground of reversal urged be fore us is that there was not sufficient evidence to justify this conviction. It has been repeatedly held by this court that it will not consider a ground of reversal which challenges the sufficiency of the testimony. It is only where the contention is that there is no evidence whatever to support the verdict that the court will examine the testimony, and then only for the purpose of ascertaining whether such contention is well founded. [2] Next it is argued that there was error in the refusal of the court to charge a request submitted by the defendant bearing on the question of reasonable doubt. This contention is without merit. The court did not refuse to charge the request, but, on the contrary, after reading it to the jury, stated that it was a mere repetition of what had already been charged. The accuracy of this judicial statement was not challenged by the plaintiff in error, and our examination of the instruction to the jury satisfies us that it was accurate. [3] The next contention is that the court erred in the following portion of its instruction to the jury: questions of the plaintiff in error while on the witness stand: "Now, on April 29, 1908, you pleaded guilty in Hudson county, in the court of quarter sessions, of the crime of grand larceny?" "On April 29, 1908, did you plead guilty to the crime of petit larceny in the court of quarter sessions of Hudson county?" "On June 11, 1915, did you not plead guilty to two charges of burglary in the court of quarter sessions of Hudson county?" "On May 15, 1914, did you not plead guilty in the court of quarter sessions of Union county to four indictments charging you with the crime of breaking and entering with intent?" Each of these questions the defendant answered in the affirmative. As we understand the argument of counsel upon this point it is based upon the theory: First, that a conviction of crime cannot be shown against a defendant unless the nature of the crime is such as to render him infamous; and, second, that the only way to prove the conviction is by the production of the judgment record, or by the admission of the defendant that such conviction has been had; his position being that a plea of guilty is not a conviction, but a step in the cause antecedent thereto, and that it is only the conviction itself which is permitted to be shown under the first section of our Evidence Act (2 Comp. St. 1910, p. 2217). Both of these questions, however, have been resolved by the Court of Errors and Appeals adversely to this theory. State v. Henson, 66 N. J. Law, p. 601, 50 Atl. 468, 616. The judgment under review will be affirmed. (93 N. J. Law, 66) HANDELMAN v. HARRIS. "The jury may consider, among other things, in ascertaining the truth, the demeanor of a witness, his manner of testifying, his appearance, mental capacity, power of observation, closeness of attention, the probability of his statements, and their inconsistencies and contradictions, and all other things that may be (Supreme Court of New Jersey. June 4, 1919.) inferred from experience, or which the jury may deem proper under the circumstances." (Syllabus by the Court.) TION SUMMARY DISPOSSESSION PROCEEDINGS JUSTICE OF PEACE-CITY Court. Under the supplement of 1903 to the Landlord & Tenant Act (P. L. 1903, p. 26; 3 Comp. St. 1910, p. 3070), as amended in 1910 (P. L. p. 233), 1913 (P. L. p. 743), and 1915 (P. L. p. 96), a justice of the peace has no jurisdiction in summary dispossession proceedings in cases where the premises are situated in a city where The objection is directed at the last clause 1. COURTS 472(6)-CONFLICTING JURISDICof this instruction. Its meaning, as it seems to us, is that the jury had a right to use their own experience in the consideration of the credit to be given to the testimony of a witness; that they might consider, not only the matters specifically mentioned, but other matters which would constitute a proper test under the circumstances of the case. So construed, it is not legally objectionable. The there is a district court. argument of counsel is based upon the prop-2. COURTS ~24, 37(1)—JURISDICTION-CONosition that this instruction permits the jury to infer from their own experience what the verdict should be, and permits them to arrive at a conclusion other than what the evidence would require them to find. The underlying proposition is not, in our opinion, justified by the language used. SENT-LOSS BY NEGLECT. Jurisdiction over the subject-matter of a suit cannot be conferred by consent, nor can the right to object to the want of it be lost by acquiescence or neglect. Certiorari by John Handelman against [4, 5] The last ground of reversal which is George Harris, to review a justice's judgment and warrant of dispossession. and proceedings set aside. Argued February term, PARKER and MINTURN, JJ. (107 A.) Judgment county in which the premises are situated; and, on filing such affidavit, the clerk or justice of the peace with whom the same is filed shall issue a summons, etc. 1919, before Edward F. Merrey, of Paterson, for prose cutor. Francis Scott, of Paterson, for defendant. Section 1, taken alone, seems to confer | jurisdiction generally on both district courts and justices of the peace, but when considered with section 2 it is plain that the jurisduction of the justices is restricted to cases where the premises lie neither within a firstin which there is a district court; for in all other cases there is only one class of officials with whom the affidavit may be filed, i. e., the clerks of district courts; and, as the summons can issue and the case proceed only on filing of the affidavit, and, when filed with the clerk, that functionary is to issue summons, it is plain that a justice who is invested with jurisdiction to issue the sumnot empowered to receive the affidavit is not PARKER, J. [1] The fundamental ques-class county nor in a city or judicial district tion is as to the jurisdiction, if any, of a justice of the peace in summary proceedings to dispossess a tenant, where the premises are in a city which has a district court. The facts are not disputed; the premises are in the city of Paterson; that city has a district court; and in this case a justice of the peace entertained the landlord's complaint, issued a summons, and took cognizance of the case to judgment and warrant of dispossession. This writ, of course, challenges his jurisdiction, and that alone; and whatever jurisdiction he had must come from the statute. It is manifest that under the act of 1903, p. 26, found in C. S. 3070, which was enacted in view of the decision in Jonas Glass Co. v. Ross, 69 N. J. Law, 157, 53 Atl. 675, a justice of the peace had no jurisdiction in such a case as this. No question is raised on that score; and the amendment of 1910 (P. L. p. 233) merely adapted the statute to the new plan of "judicial districts" in and for which district courts were established about that time. In 1913 the Legislature undertook to amend further the act of 1903 by reframing the first two sections. The amended first section, by some oversight, provided only for the case of holding over after the expiration of the term and omitted cases of default in payment of rent. P. L. pp. 743, 744. This was corrected by P. L. 1915, p. 96, and the act as finally amended is that to be considered at this time. It provides in section 1 (abstracting the language except where quoted) that any tenant, etc., of any houses, lands, or tenements and the assigns, etc., of such tenant may be removed from such premises "by any district court in the county where such premises are situated, or by any justice of the peace of the county where such premises are situated in the manner hereinafter prescribed in the following cases: "(1) Holding over after expiration of term and notice; (2) default in rent." Section 2, the first of those relating to manner of procedure, contains the provisions that "the landlord may make affidavit of the facts," and may file the same with the clerk of any district court within the limits of the county in which the premises are situated or in case the premises do not lie within a first-class county or within a city or a judicial district in which there is a district court, then with any justice of the peace of the mons or to hear the case. It follows, therefore, that the proceeding brought up in this case was coram non judice for want of jurisdiction of the subject-matter. [2] The point is made that there was an the objection to jurisdiction was therefore appearance and a defense on the merits, and waived. But waiver is not applicable in of the subject-matter. cases where the tribunal had no jurisdiction School Trustees v. Stocker, 42 N. J. Law, 115; Wheeler v. Wil21 Atl. 851; Collins v. Keller, 58 N. J. Law, son Mfg. Co. v. Carty, 53 N. J. Law, 336, Chapter 154, Laws 1916, provides a method of abating a public nuisance in a summary manner, in the Court of Chancery, involving inter alia the sale of the premises in which the disorderly house is located, regardless of the knowledge of the owner, as to the disorderly conduct of the inmates. It was necessary to prove ownership of the premises in one of the defendants, and one of the complainant's solicitors testified that he had searched the records, and found title in the alleged owner. Held, not question could not be appropriated and placed the best evidence, and that the property in in custodia legis, without proper legal proof of its ownership. Held, also, that a defendant joining in a pe For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tition of appeal, without giving notice of ap- which the case comes before us, to pass upon peal, was coram non judice. the mooted question of its constitutionality Black, White, Williams, and Gardner, JJ., or to say more than that we perceive no tesdissenting. Appeal from Court of Chancery. Bill for abatement of disorderly house, by Herbert R. Rundall against Minnie A. Hill and Edith Bellwood. Temporary injunction ordered, and defendants appeal. Reversed as to defendant Hill, and case against defendant Bellwood dismissed. timony, except essentially of a hearsay character, upon which the order against the defendant Hill is based. Mr. Endicott, Jr., alone attempted to supply the essential testimony as to ownership by submitting his views upon a search of the title, but this testimony, unsupplemented by the records upon which it was based, or properly authenticated copies of them, is of a hearsay character, and pre U. G. Styron and C. C. Shinn, both of At- sents no substantial legal basis for a judglantic City, for appellants. ment of any character, much less one that in Endicott & Endicott, of Atlantic City, for its novel operation appropriates the property respondent. MINTURN, J. Based upon the act approved March 17, 1916 (chapter 154, Laws 1916), entitled “An act declaring all buildings and places wherein or upon which acts of lewdness, assignation or prostitution are permitted to occur to be nuisances, and providing for the abatement thereof by the Court of Chancery," the complainant, a resident of Atlantic City, filed his bill, alleging inter alia the statutory delinquencies against the moral order in the premises No. 131 North Carolina avenue in that city, of which Minnie A. Hill was alleged to be owner and Edith Bellwood tenant. of a defendant and places it for a year in custodia legis, and ultimately, if the exigency should require it, sells it according to the common-law procedure on execution. Greenleaf, Ev. 99; Lomerson v. Hoffman, 24 N. J. Law, 674; 10 R. C. L. p. 905, § 57, and cases. 1 As to the defendant Hill, therefore, the order is without legal evidence to support it, and must be set aside. The case of Bellwood, the tenant, we do not regard as legally before us. While she joins in the petition of appeal with her codefendant, Hill, she gave no notice of appeal as required by the statute and rules, and her case, therefore, being coram non judice, must be dismissed. BLACK, WHITE, WILLIAMS, and GARD. NER, JJ., dissent. The learned Vice Chancellor ordered the issuance of a temporary injunction. The legal character and constitutionality of this procedure presents the subject-matter of the controversy. To comprehend this contention it is necessary to remark that the effect of the restraining order under the provisions of the act is to cause the locus in quo, regardless of the owner's knowledge of the situation, to be placed in custodia legis until the termination of the suit, and finally to be pub- (Court of Errors and Appeals of New Jersey. licly sold should the exigencies of the situation require it. The scheme of this procedure, akin entirely to the procedure peculiar to the admiralty jurisdiction, or proceedings in rem, in which the tenant in legislative contemplation occupies the status of the master of a vessel, is attacked in limine as unconstitutional, as violative of the common-law right of the own er of the locus to be tried and heard before he and his property shall be condemned, in a quasi criminal proceeding in an equity forum, which since its origin might abate a nuisance, but which was never conceded the commonlaw jurisdiction inherent in and peculiar to the King's Bench in England, and its constitutional successor in this state. Flanigan v. Guggenheim Co., 63 N. J. Law, 647, 44 Atl. 762. While the statute in question is exceptional and unique in its scheme of jurisdiction and procedure, and fruitful of provisions lending scope to generous forensic debate, we do not find it necessary, in view of the manner in (93 N. J. Law, 250) SIMPSON v. NEW JERSEY STONE & TILE CO. May 15, 1919.) MASTER AND SERVANT 385(18) WORK- Where an employé's arm is so seriously fractured that it creates a total disability, which will be permanent unless the arm be amputated. award under the Workmen's Compensation Act (Laws 1911, p. 134, as amended by Laws 1913, P. 309) is not limited to that for the loss of an arm, since a "total and permanent disability" may exist without loss or injury to any specific member. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Totally and Permanently Disabled.] The Chancellor and Williams and Taylor, JJ., dissenting. Appeal from Supreme Court. Proceedings under the Workmen's Compensation Act by William Simpson, opposed by the New Jersey Stone & Tile Company, employer. Judgment for petitioner, and employer appeals. Affirmed. (107 A.) On appeal from the Supreme Court in [strictive covenant, when they were two-thirds which the following per curiam was filed: "This is a workman's compensation case, and the main point raised relates to the finding by the trial court of total and permanent disability. "The original injury was a very bad fracture of the arm, which was compound, and became infected and discharged pus for a long period. Amputation was seriously considered, but the arm was saved. There was, however, a poor recovery, and the patient had several abscesses, and at the time of the hearing was suffering, as the court found, with a severe neuritis caused perhaps by minor nerves being involved with the callous of the fracture, which, in the opinion of his physician, made him totally unfit for work, and there was evidence to support the finding that this condition would continue indefinitely unless the arm were amputated. "Prosecutor's claim is that the award cannot exceed that authorized for the loss of an arm, but to this we do not agree. Cases are readily conceivable in which total and permanent disability exists without the loss of or injury to any specific member. If the physical conditions in the present case as the court found them to exist at the time of the hearing created a total disability which was permanent unless the arm were amputated (and we think the evidence justified a finding of such a condition), the case of Feldman v. Braunstein, 87 N. J. Law, 20, 93 Atl. 679, controls. Petitioner is not required to undergo a serious operation such as amputation of the arm at the shoulder. The court therefore properly dealt with the condition as actually existent. "Another point is made: That the order permits review within one year, whereas the act says review may be had after one year. This looks like a mere slip of the pen. The conclusions of the judge properly follow the statute, but the judgment does not. If necessary, the case may be remanded for correction of the judgment, which is merely an amendment to conform to the statute and the court's conclu sions. In other respects the award is af firmed." completed, but made no protest and instituted fully completed, his delay bars his right to a no proceedings until after the work had been mandatory injunction to compel the removal of the improvements. This is one of the covenants uniformly contained in the Chelsea Beach Company conveyances, which covenants have heretofore been before this court for enforcement in repeated cases. Various reported cases touching this specific covenant are reviewed by Chancellor Walker in Pearson v. Stafford, 88 N. J. Eq. 385, 102 Atl. 836. Complainant's building is on Chelsea avenue; defendant's building is on an adjacent lot oceanward thereof. Both residences were located so that the fronts of their main bodies were 20 feet from the street line, and both had open roof-covered porches extending within the restricted space. This was in accordance with what appears to have been the uniform practice in that locality. Defendant has since inclosed his porch with glass and finished its interior in a manner to practically make it a living room of the dwelling. It is that act of which com Clarence L. Cole, of Atlantic City, for ap- plainant now complains. pellant. Defendant contends that the covenant here William E. Holmwood, of Newark, for re- in question has been violated to such an spondent. extent in that vicinity that it can be no longer enforced; that complainant has, with others, violated the covenant by extending the eaves of his main building over the restricted space; that all open porches extending over the restricted space, including complainant's porch, are violative of the covenant; that at least one porch near complainant's dwelling is inclosed; that many porches in the vicinity are constructed with storerooms below the porch floors and in other respects violative of the covenant; also, that complainant is barred equitable relief by his delay in bringing this suit. I think it unnecessary to give considera INJUNCTION 113-RESTRICTION ON BUILD- tion to any of the defenses save that last ING-LACHES. Where an adjoining owner observed the construction of improvements in violation of a re named, since it seems apparent that the delay of complainant in informing defendant of his objections to the work and his delay For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |