N. J.) REILEY v. FULPER (115 A.) 663 new certificate to her or any other step or, if it were so intended, it does not by any act was requisite. In the second place, she means appear that it was so intended. There contends that, if a delivery to her of the new is no evidence whatever that the father incertificate was requisite to complete the gift, tended to make a gift, or that, if he did insuch a delivery was validly made by the de- tend to make a gift, he intended to make it positing of the certificate in the safe deposit there and then. The evidence does show, as box used jointly by herself and her father. I have said, that he intended to make at [2] I think there can be no doubt as to the some time a transfer of ownership, but it unsoundness of the second contention. If the does not show that that transfer was not to delivery of the new certificate to her was nec- be conditioned upon or in exchange for the essary to effectuate the gift, no gift was payment or performance of some consideramade, for the alleged delivery was not legal- tion by the daughter. Neither does it show If the father had not thereto- that he intended that the transfer of ownerly sufficient. fore stripped himself of dominion and con- ship, whether by gift or for consideration, trol over the subject-matter of the gift, he was to take effect immediately at that time, did not do so by putting the new certificate rather than at some future time, such as in the jointly used safe deposit box. And in Christmas or a birthday, or even his own order to constitute a legally sufficient deliv- death (if a gift was intended); or at a time ery, it was requisite that the act accomplish agreed upon (if a transfer for consideration The evidence is perfectly (at least so far as is possible in the nature of was intended). the thing given) a complete divesting of the compatible with any of these possibilities. Indeed the evidence contradicts the theory father of dominion and control over the subject-matter of the gift. Cf. Swayze v. Hunt- that the father intended that any transfer ' ington, 82 N. J. Eq. 127, 87 Atl. 106, affirmed, of ownership, whether by gift or otherwise, 83 N. J. Eq. 335, 91 Atl. 1071; Bailey v. should take place at that time. It tends to prove that he did not intend that by the exOrange Hospital, 102 Atl. 7. change of certificates a completed change of ownership should be effectuated. The proofs as to the July dividend show, of course, that both father and daughter at that time, three or four months after the issuance of the new certificate, still regarded the father as being, and the daughter as not being, the owner of the stock, and that they both acted in accordance with that regard. Neither is there any proof that at the time of the placing of the certificate in the safe deposit box it was done with the then existing intent on the part of the father that there should thereby be accomplished a completed, then present, gift to his daughter. The evidence is not clear as to the time when If the certificate was deposited in the box. we assume (and the evidence is compatible Groff's testimony does not militate against with that assumption) that it was fully signed by the company's officers and placed this conclusion, for in the first place the July in the box prior to July 10th, then the evi-dividend occurrence was apparently subsedence as to the July dividend (as to which quent to the decedent's declaration, and, in more hereafter) disproved the existence of the second place, that declaration to Groff such an intent at the time of the deposit. If was not that he had "given" the shares to it was placed there after July 10th, we have his daughter, nor that he had effectually comno evidence whatever of the particular, in-pleted an irrevocable gift to her, but that he He had "transferred" them to her a statement tent with which it was placed there. might just as well, as far as the evidence which he might well have made, in view of goes, have placed it there for his own safe- what he had done, without his having had keeping as with any intent of thereby deliv- an intent that the doing of what he had done ering it to his daughter; in fact the former should immediately and effectually complete is more probable, for if he had the latter in- a transfer of ownership to his daughter. tent, the liklihood would be that he would Furthermore, even if the declaration had tell his daughter, whereas admittedly she been that he had "given" the shares to his knew nothing of its presence there, or even that it had been signed by the company's officers, until after her father's death. daughter, and the evidence as to the July dividend were lacking, the declaration would probably be insufficient to establish a gift. Smith v. Burnet, 35 N. J. Eq. 314, at page 323. [3] Turning then to the other contention: That the delivery of the new certificate to It is unnecessary to take up the question the daughter was not requisite to the validity of the alleged gift; that the gift had of whether or not the procuring by the fabeen validly completed and effectuated by the ther of the new certificate in the daughter's issuance of the new certificate by the corpo- name would have constituted, without more, ration. Here again we are met by a failure a legally sufficient delivery if the requisite Assuming intent had been present, for it is clear from of proof of the requisite intent. for the sake of the argument that the ex- what has already been said that no valid change of the old certificates for the new one gift was made under the proofs in the case. made out to the daughter would be legally Complainant is therefore the owner of the sufficient as a means for effectuating the gift, stock, and entitled to the dividends subse quent to testator's death, which have been withheld by the water company pending this determination. A decree will be advised in accordance with the views expressed, but without costs. 6 N. J. Law, 312) ROONEY et al. v. SILETTI. (Supreme Court of New Jersey. Dec. 16, 1921.) 1. Landlord and tenant 169 (11) Landlord's negligence in failing to keep a stair free from ice was for the jury. In a suit by a tenant against the landlord for injury from falling on an outside stairway leading to the cellar, the question of whether the landlord used reasonable care in keeping the stairway free from ice and in a safe and usable condition was one for the jury. 2 Landlord and tenant 168(1)-Tenant held to have assumed risk of injury from fall on stairway. In a suit by a tenant against a landlord for injuries from falling on a stairway covered with ice and snow, where the tenant observed the condition of the stairway before entering it and knew the danger she would incur, she assumed the risk of injury, and, this having been shown on her own evidence, a nonsuit should have been granted. observed by her before she ndertook their descent, and she very frank1y admitted in her testimony on the stand that she knew it was dangerous to attempt to go down them, but that, as she had a present need for the coal, she was compelled to take the chance. This was the condition of the proofs when the plaintiff rested. A motion to nonsuit was thereupon made, based upon two grounds: First, that the proofs did not show that the defendant was derelict in the duty she owed to her tenants by reason of her failure to have the cellar stairs cleaned; and, second, that the female plaintiff was barred from a recovery because she assumed the risk of accident which might happen to her through the use of the stairway. The motion was refused; the trial resulted in a verdict for the plaintiffs, and the defendant appeals, the principal ground upon which she bases her right to reversal being the refusal of the motion to nonsuit. [1] We concur in the view of the trial court that, on the facts submitted, it was for the jury to determine whether the defendant was guilty of a neglect of the duty which she owed to her tenants (including the plaintiffs) to use reasonable care to keep this stairway in a safe and usable condition, under the rule laid down in Gillvon v. Reilly, 50 N. J. Law, 26, 11 Atl. 481, and reiterated in Siggins v. McGill, 72 N. J. Law, 263, 62 Atl. 411, 3 L. R. A. (N. S.) 316, 111 Am. Appeal from Court of Common Pleas, Hud- St. Rep. 666, and McCracken v. Meyers, 75 son County. Action by Minnie Rooney and another against Rose Siletti. From judgment for plaintiffs, the defendant appeals. Reversed and remanded. Argued June term, 1921, before GUMMERE, C. J., and PARKER and KALISCH, JJ. Leon Abbett, of Hoboken, for appellant. Mark A. Sullivan, of Jersey City, for respondents. N. J. Law, 935, 68 Atl. 805, 16 L. R. A. (N. S.) 290. A nonsuit, therefore, could not have been properly ordered upon the first ground urged in support of the motion. [2] But assuming the negligence of the landlord, still no right of recovery against her was established, for Mrs. Rooney, having full knowledge of the danger which she would incur in attempting to go down these stairs, assumed the risk of an accident which might result from their use. This is the doctrine declared by this court in the case of Vorrath v. Burke, 63 N. J. Law, 188, 42 Atl. 838, GUMMERE, C. J. This action was brought where the circumstances were quite similar by a husband and wife to recover compensa- to those in the case now before us. There tion for injuries received by the wife through the plaintiff attempted to go down a cellar falling down the cellar steps of a building in stairway, the top of which was covered by which they occupied an apartment rented a door. This door had attached to it a from the defendant. The cellar of the build- counterbalancing weight so as to make its ing was subject to the common use of the occupants thereof, under their respective leases, for the purpose of storing coal. The only means of access which the tenants had to the cellar was an outside stairway, the top of which was in an alley adjacent to the building. raising and lowering easy, but the weight had become detached from the door. The plaintiff was fully aware of these facts, but nevertheless attempted to go down the stairs, holding the door up while she did so. Her strength was not equal to the burden she put upon it, the door fell, and she was inThe proofs show that on the occasion in jured. It was considered that, as she was question Mrs. Rooney had occasion to go into fully aware of the condition of the doorthe cellar for the purpose of getting coal. that is, that the weight was detached from There had been a snowstorm some little time it-and, notwithstanding, attempted to go before, and the stairs were covered with down the stairs, she deliberately assumed frozen snow and ice. This condition was what risk there was in descending, and that (115 A.) consequently there could be no recovery | the suspension of a sentence and the proagainst the landlord. This case is cited with nouncement of a sentence are in legal effect approval by the Court of Errors and Appeals in Saunders v. Smith Realty Co., 84 N. J. Law, 276, 86 Atl. 404. The refusal of the motion to nonsuit on the ground of assumption of risk by the female plaintiff was in disregard of these decisions. The judgment appealed from, therefore, must be reversed, and the case sent back to the common pleas to be retried. (96 N. J. Law, 318) STATE v. BONGIORNO et al. (Supreme Court of New Jersey. Dec. 16, 1921.) Criminal law 1023 (9)-Suspended sentence not final judgment, from which writ of error will lie. The suspension of a sentence is not a final judgment, and a writ of error will not lie to review a conviction in such case until sentence is actually pronounced. one and the same thing. But the matter is not an open one in this court. In the case of State v. Addy, 43 N. J. Law, 113, 39 Am. Rep. 547, it is declared that the practice of suspending sentence in criminal cases has long been in vogue in this state, and it is intimated that where such a course has been pursued it is in the power of the court at any time, upon motion of either party, to bring the case forward and pass any lawful order or judgment thereon. Later the question came before the court again in State v. Brewer, 59 Atl. 31, and we held that the suspension of a sentence was not a final determina tion of the case and that a writ of error would not lie to review a conviction in such a case until the sentence was actually pronounced. These cases we consider controlling upon us. A very full and interesting discussion of the whole matter will be found in the case of State v. Osborne, 79 N. J. Eq. 430, 82 Atl. 424, in an opinion delivered by Garrison, V. C., upon a hearing had upon a writ of habeas Error to Court of Quarter Sessions, Pas- corpus. He thus expresses his conclusion: saic County. Joseph Bongiorno and others were convicted of assault, and they bring error. Writ of error dismissed. Argued June term, 1921, before GUMMERE, C. J., and PARKER and KALISCH, JJ. "In the state of New Jersey, if a defendant has pleaded nolo contendere, or guilty, or has been convicted upon trial, the court has the power, if the defendant does not object thereto, and therefore is assumed to assent thereto, to refrain from pronouncing a judgment or sentence, and may, at a subsequent time, hale the defendant before it, and impose the punishment in the same manner that it would have day when the case was first ripe for sentence." The writ of error will be dismissed. Harry H. Weinberger, of Passaic, for been justified in pronouncing it upon the very plaintiffs in error. J. Willard De Yoe, of Patterson, for the State. (96 N. J. Law, 489) VOLPE v. HAMMERSLEY MFG. CO. GUMMERE, C. J. The indictment in this case charges the plaintiffs in error with an assault with intent to commit a rape upon one Olive Boyd. The trial resulted in a verdict of guilty against each of them, and the (Court of Errors and Appeals of New Jersey. court thereupon suspended sentence. The Nov. 14, 1921.) present writ issued out to test the validity of I. Master and servant 95-Minor misrepresenting age not estopped to recover damages for injuries. the conviction. The prosecutor of the pleas contends that the writ is prematurely issued; that in a criminal case the sentence of the court is the final judgment; and that until it is pronounced there can be no review on error. On the other hand, counsel for plaintiffs in error insists that the suspension of a sentence is a final determination of the case, and that by such action the court, in the absence of an enabling statute, has exhausted its power with relation to the case after the expiration of the term at which the cause was tried; this being the rule of the common law with relation to the pronouncing of sentence. State v. Gray, 37 N. J. Law, 372. If the question presented was one of first impression, we should hesitate to hold that A minor under 16 injured while illegally employed on cylinder press in a manufacturing plant was not estopped to claim that he was under the statutory age and limited to the remedy under the Workmen's Compensation Act by his fraud in representing that he was rowed from a friend purporting to show his over 16 and exhibiting as his own papers bor age. 2. Master and servant 204(2), 228 (2)— Minor illegally employed not chargeable with contributory negligence or assumption of risk. A minor under 16 injured while illegally employed on a cylinder press in a manufacturing plant cannot be guilty of contributory negligence nor assume the risks of the work. 3. Master and servant 286(2)-Negligence | the papers were his and that he was over 16 in hiring minor held question of fact. An employer was not as a matter of law absolved from a charge of negligence in hiring a minor under 16 years of age because the minor produced a certificate of age which he had borrowed from a friend, as it was a question of fact whether a reasonably prudent man would have accepted such certificate without inquiry as to identity of the person producing it with the person therein named. 4. Appeal and error 1094 (1)-Refusal to nonsuit or direct verdict not proper ground for appeal after judgment of Supreme Court. The refusal to nonsuit or the refusal to direct a verdict is not a proper ground of appeal in the Court of Errors and Appeal after judgment in the Supreme Court. years of age, hired him; and the proofs showed that, except for the deceit practiced, the plaintiff would not have been taken into the employ of the defendant company. [1] One of the contentions upon which the defendant rests its right to have the verdict set aside is that the plaintiff is estopped by his fraud from claiming that he was under the statutory age, and that therefore his only remedy (if he has one) is that provided by the Workmen's Compensation Act (Laws 1911, p. 134, amended by Laws 1913, p. 309); but this contention has been settled adversely to the defendant by the cases of Feir v. Weil, 92 N. J. Law, 610, 106 Atl. 402, and Leskow v. Liondale Bleach, etc., Works, 93 N. J. Law, 4, 107 Atl. 275. [2] It is further contended that the verdict is against the weight of the evidence, for the 5. Master and servant 95-Illegally employreason that the proofs disclose almost coned minor accepting payments under Compen-clusively that the plaintiff was guilty of consation Act not estopped to sue. The acceptance by a minor under 16, injured while illegally employed in a manufacturing plant on machinery, of sums of money which may have been the amount that would have been due under the Workmen's Compensation Act, does not estop him from suing on his common-law right of action, as the doctrine of estoppel cannot be so applied as to enable the parties to override the legislative policy. 6. Infants62-Payment to infant recoverable when obtained by false pretenses. If a minor injured while illegally employed and accepting from time to time money which may have been the amount that would have been due under the Workmen's Compensation Act obtained such money under false pretenses, the employer can recover it in a proper action. Appeal from Supreme Court. Action by John Volpe, by Joseph Volpe, as next friend, against the Hammersley Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed. tributory negligence; but this contention also is in the face of the decisions just referred to. The Legislature has by inference declared that children who are too young to be put at work in factories, upon machines like that upon which plaintiff was working, cannot be guilty of contributory negligence, nor can they be held to have assumed the risks of the work. Lastly it is urged that the verdict is excessive, and a careful consideration of the testimony leads us to the conclusion that this claim is justified. If the plaintiff will consent to reduce the verdict to $10,000, he may enter judgment for that amount; otherwise the rule to show cause will be made absolute. Clarence B. Tippett, of Jersey City, for appellant. Robert H. Doherty, of Jersey City, for respondent [3] Most of the questions presented by the case are sufficiently dealt with in the opinion. It seems desirable to add a few words in The following is the per curiam opinion of view of the arguments presented in this the Supreme Court: The plaintiff, a minor under 16 years of age, was a employé of the defendant company at its paper manufacturing plant in Garfield. While engaged at work on a large cylinder press on the evening of December 4, 1918, at about half past 8, the paper which was passing through the cylinders broke, and in attempting to stop the press his arm was caught in the flywheel and crushed. The present suit was brought to recover damages for the injury thus sustained, and the trial resulted in a verdict in his favor for $15,000. court. Counsel thinks that the defendant is absolved as a matter of law from the charge of negligence in employing plaintiff because the plaintiff produced a proper certificate of age. This argument assumes that the defendant was justified in accepting the certificate itself as conclusive proof without any inquiry as to the identity of the plaintiff with the person named in the certificate. If the same argument were made to exculpate a paying teller of a bank for cashing a check without any further proof than the mere The plaintiff, in order to secure employment name of the identity of the payee with the at the defendant's plant, had represented him- person presenting the check, the fallacy of self to be over 16 years of age and submitted the argument would be obvious. If less care to the defendant's agent certain papers show is required in employing children below the ing that he was over that age. He represented the papers to be his own, but they, in fact, be- prohibited age in a factory, it must be belonged to a friend, from whom he had borrow-cause reasonably prudent men accept the cered them for the purpose of exhibiting them to tificate of age without identification; but the defendant company's employing agent. that is a question of fact to be decided by That agent, believing the plaintiff's story that the jury. (115 A.) [4] No request or exception raises a question, the only grounds of appeal are the refusal to nonsuit and the refusal to direct a verdict. Even those are not the proper grounds in this court after the judgment of the Supreme Court. [5] We are unable to agree with the suggestion that the acceptance of sums of money from time to time (which may have been the amount that would have been due under the Workmen's Compensation Act, if that had been applicable) estops the plaintiff from collecting damages on his common-law right of action. The doctrine of estoppel, if otherwise applicable, ought not to be so applied as to make it possible for the parties to override the legislative policy. Feir v. Weil, 92 N. J. Law, 610, 106 Atl. 402. [6] If the plaintiff has obtained money under false pretenses, the defendant can recover it in a proper action. The judgment of the Supreme Court in this case is affirmed, with costs. For affirmance: THE CHANCELLOR, THE CHIEF JUSTICE, Justices SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, and BLACK, Judges WHITE, HEPPENHEIMER, WILLIAMS, GARDNER, ACKERSON, and VAN BUSKIRK. For reversal: None. (96 N. J. Law, 314) SPROUL v. LLOYD. (No. 32.) 1. Attorney and client 108-Mortgagee ac- A mortgagee, who instructed his attorney bid them in at a greater sum, accepted the sheriff's deed and paid the purchase price by permitting the amount of the bid to be credited as a satisfaction pro tanto of the foreclosure decree, cannot recover from the attorney the difference between the bid originally authorized and the amount of a judgment for the deficiency which he could otherwise have recovered against the mortgagor, in the absence of proof that the latter could pay such judgment; it being impossible for the jury to say whether the loss sustained by plaintiff was more than merely nominal. Action by Charles S. Sproul against John P. Lloyd. Verdict for plaintiff. Defendant's rule to show cause made absolute. Argued June term, 1921, before GUMMERE, C. J., and PARKER and KALISCH, JJ. Edmund Wilson, of Red Bank, for the rule. Thomas P. Fay, of Long Branch, opposed. . GUMMERE, C. J. The plaintiff by this action sought to recover from the defendant compensation for the pecuniary damage suffered by him through the failure of the defendant to obey certain instructions given to him as attorney. The trial resulted in a verdict in favor of the plaintiff, and the question for present determination is whether that verdict can be justified under the facts. The proofs showed that the defendant was employed by the plaintiff as his solicitor for the purpose of foreclosing a mortgage upon property located at Long Branch. The foreclosure was prosecuted to final decree, and the amount adjudged to be due thereon was $4,665.50. A writ of fieri facias was issued on the decree, and the property was advertised for sale by the sheriff. The plaintiff was unable to attend this sale, and instructed the defendant, as his attorney, to bid upon the property in his name, fixing the limit beyond which the attorney was forbidden to go at $2,500. When the mortgaged premises were put up for sale one of the defendants in the foreclosure suit bid $4,400, and the property was thereupon struck off to him. He, however, was unable to pay the required deposit, and for this reason the sheriff refused to recognize the validity of the bid. The defendant, after some conversation with the bidder, and with his consent, suggested to the sheriff that he should accept $4,000 as the plaintiff's bid, and strike the property off to the latter at that sum. This the sheriff did, and afterwards executed and tendered to the plaintiff a deed for the property, the consideration for which was stated to be $4,000. The plaintiff accepted the deed, A mortgagee, who instructed his attoney and subsequently sold the property for $2,to bid in the mortgaged premises at not to 400. He then brought this suit, claiming exceed a certain sum, but, when the attorney that by reason of the violation of his orders to bid not to exceed a certain sum latter would otherwise have been liable. 2. Attorney and client 129 (4)-Mortgagee cannot recover from attorney bidding in property for more than authorized sum difference between latter amount and judgment for deficiency, in absence of proof of mortgagor's ability to pay. |