Cleary v. City of Camden, 15.

• Decision Date: 26 January 1938
• Docket Number: No. 15.,15.
• Parties: CLEARY v. CITY OF CAMDEN et al.
• Court: New Jersey Supreme Court

196 A. 455

119 N.J.L. 387

CLEARY

v. CITY OF CAMDEN et al.

No. 15.

Court of Errors and Appeals of New Jersey.

Jan. 26, 1938.

Appeal from Supreme Court.

Action by Catharine E Cleary, administratrix ad prosequendum and general administratrix of the estate of John J. Cleary, deceased, against the City of Camden, the South Jersey Port District, trading as Camden Marine Terminals, and another to recover for the death of the deceased. A judgment for plaintiff against defendant district was affirmed by the Supreme Court, 118 N. J.L. 215, 192 A. 29, and defendant district appeals.

Affirmed.

T. Harry Rowland and D. Trueman Stackhouse, both of Camden, for appellant. Walter S. Keown and George D. Rothermel, both of Camden, for respondent.

DONGES, Justice.

The judgment under review will be affirmed for the reasons expressed in the opinion of Mr. Justice Perskie, for the Supreme Court. 118 N.J.L. 215, 192 A. 29.

In so doing we are not approving the statement in that opinion with respect to the effect of assigned reasons for a new trial upon the reservation of exceptions in the rule to show cause why a new trial should not be granted. In that rule to show cause three reasons were assigned for a new trial. They were: (a) The verdict was contrary to the weight of the evidence; (b) the verdict was excessive; (c) the verdict was the result of sympathy, passion, or prejudice on the part of the jury. On appeal to the Supreme Court appellant argued and alleged error in the refusal of the trial court to nonsuit upon motion of appellant, and in the refusal of the trial court to direct a verdict for the defendant-appellant, and also argued errors in the charge of the court.

In the situation presented by the record herein, the last ground is the only one available to appellant.

In Cleaves v. Yeskel, 104 N.J.L. 497, 141 A. 814, 815, this court, speaking by the late Chancellor Walker, said: "This court in Goekel v. Erie Railroad Co., 100 N.J.L. 279, 126 A. 446, held that, where a party obtains a rule to show cause why a verdict should not be set aside and a new trial granted, reserving exceptions, and afterwards files reasons upon which the motion for a new trial is rested, included in which are the reserved exceptions (and errors in the record, not pertinent here), and, after hearing, the trial court discharges the rule, error could not thereafter be made a ground for review in an appellate court, as all reasons in support of the rule are, as an effect of the order discharging it, res judicata, and also held in Margolies v. Goldberg, 101 N.J. Eq. 75, 127 A. 271, on appeal from judgments entered after defendant's rule to show cause had been discharged, the appellate court will not consider and decide any question which was assigned as ground for setting the verdict aside on the rule to show cause, such questions being res judicata, whether argued or not, and although not decided in terms on the rule to show cause. This is but a statement of a familiar rule with reference to judgment res judicata, and that is that parties and those in privity with them are precluded, not only as to every matter offered to sustain or defeat a demand, but as to any other admissible matter which might have been offered for that purpose. City of...