Pucci v. Weinstein, A--238

• Decision Date: 14 June 1950
• Docket Number: No. A--238,A--238
• Citation: 8 N.J.Super. 247,73 A.2d 843
• Parties: PUCCI v. WEINSTEIN et al.
• Court: New Jersey Superior Court — Appellate Division

Page 247

8 N.J.Super. 247

73 A.2d 843

PUCCI v. WEINSTEIN et al.

No. A--238.

Superior Court of New Jersey

Appellate Division.

Argued May 29, 1950.

Decided June 14, 1950.

John T. Mooney, Newark, argued the cause for the plaintiff-respondent (Hein & Smith, Hackensack, attorneys).

Albert S. Gross, Hackensack, attorney for and of counsel with defendants-appellants, argued the cause.

Before Judges McGEEHAN, COLIE and EASTWOOD.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

Defendants, Matthew Weinstein and Matthew G. Loibl, appeal from a judgment entered against them by the Bergen County Court, Law Division, following the jury's verdict, for the sum of $1,875, representing plaintiff's brokerage commission for the sale of the liquor business of the defendant, Matthew Weinstein to the defendant, Matthew G. Loibl.

Defendants assert four grounds of appeal, viz.: (1) the court erred in denying defendants' motions for judgment of dismissal; (2) the court erred in admitting into evidence proof of plaintiff's activities with strangers to the transaction; (3) 'The court erred in its charge that the burden of proving that the plaintiff was not the efficient and procuring cause of the sale was on the defendants'; and (4) that the verdict is against the weight of the evidence. The third ground of appeal is the only one that necessitates discussion.

While the court correctly charged the jury on the question of burden of proof, the defendants assert that it erred in making an inconsistent statement of the law, which was prejudicial to the defendants, viz.: '* * * On the other hand, when the defendant comes into court and says that someone else brought about this sale other than Mr. Pucci, he must sustain that contention by the preponderance of evidence in his favor. That is the duty of the plaintiff and the defendant as well.' Defendants contend that this erroneous statement of the law by the court had the effect of shifting the burden of proof from plaintiff to defendants. Defendants fail to support their argument with any citations.

The cardinal principles to determine whether a court's charge contains reversible error are: its meaning is to be ascertained from a consideration of the charge as a whole and not from isolated portions thereof severed from their context, and the charge must present the law fairly and clearly, so that the jury cannot reasonably be thought to have been misled thereby. Kauderer v. McAllister Coal Co., 132 N.J.L. 410, 40 A.2d 624 (E. & A. 1945); 53 Am.Juris., p. 618, Sec. 842. The acid test is, was the jury misled to the injury of the defendants? Kauderer v. McAllister Coal Co., supra.

In determining whether the challenged excerpt of the court's charge is reversible error, plaintiff contends that it cannot be severed from the rest of the charge, but that the charge must be considered in its entirety; and that so read, it correctly informed the jury of the applicable principle of law in question. It is true that the court charged the correct rule of law both prior and subsequent to the erroneous statement. However, the trial judge failed to withdraw or modify the erroneous portion. An opportunity to do so was provided at the conclusion of the court's charge, when the jury was directed to retire 'momentarily in order to give counsel an opportunity to talk to the Court about this charge.' Thereafter, defendants called the court's attention to the fact that it had charged 'that the defendants must prove by a...