Wegener v. Sugarman

• Decision Date: 04 October 1927
• Docket Number: No. 466.,466.
• Citation: 138 A. 699
• Parties: WEGENER v. SUGARMAN.
• Court: New Jersey Supreme Court

138 A. 699

WEGENER

v. SUGARMAN.

No. 466.

Supreme Court of New Jersey.

Oct. 4, 1927.

(Syllabus by the Court.)

Appeal from District Court of Bayonne.

Action by Stella Wegener against John Sugarman for trespass. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued May term, 1927, before PARKER, MINTURN, and CAMPBELL, JJ.

Alexander Seclow, of Bayonne, for appellant.

Feinberg & Feinberg, of Bayonne, for appellee.

PARKER, J. The suit was substantially in trespass quare clausum fregit. The state of demand alleged that plaintiff and defendant were adjoining landowners, and that defendant began the construction of a building on his land, and "while constructing said building willfully and maliciously caused the concrete, hedges, and property of the plaintiff to be broken and damaged, as a direct and proximate result of the careless and negligent manner in which said construction was being maintained and carried on." There was a dispute of fact as to the location of the property line, which we must take as settled by the jury in favor of the plaintiff on the conflicting evidence. Plaintiff had a verdict and judgment for $300.

The appeal is submitted on briefs, and a number of points are made for appellant; we have received a belated brief for appellee, which has not been considered.

The first point is that the verdict was taken, illegally as claimed, by the deputy clerk, and appellant relies on chapter 156 of P. L. 1923, p. 332, an amendment of the Supplement of 1911, P. L. p. 241, and which prescribes certain duties for the deputy clerk, not mentioning the taking of a verdict by direction of the judge and in his absence. But appellant seems to have overlooked the act of 1903 (P. L. p. 640; 2 C. S. 1910, p. 1956, § 9b), which gives the deputy clerk all the powers of the clerk in the absence of the latter and in this aspect seems in no way inconsistent with the acts of 1911 and 1923. We see no error in the reception of the verdict.

2. The next point is that there should have been a nonsuit or a directed verdict for defendant, as "there was no sufficient proof of defendant's liability." The evidence was that defendant employed a contractor with a steam shovel to do his excavating and personally supervised the work, even to the extent of laying down the line to which the con-tractor should work, and which included the plaintiffs hedge, which was consequently dug up and destroyed. This of itself would carry the case to the jury (Topf v. West Shore, etc., Co., 46 N. J. Law, 34); and there was evidence in addition of injury to the roof and concrete walk.

3. The point that there was no legal proof that the hedge was on plaintiff's land resolves itself into a mere question of weight of evidence, which is not before us on this appeal.

4. As to the point in the brief that "the evidence as to damage was improperly admitted," counsel does not indicate in the brief what evidence is challenged. Only three of the specifications on appeal touch on this point. The testimony was that the roof was so badly damaged that a new roof would be cheaper than repairing it, and the cost of such new roof was admitted. If the cost of repairing was generally competent, and our Court of Errors and Appeals has said that it is competent (Newman v. Pasternack, 135 A. 877, 50 A. L. R. 482), the fact that the roof was old and worth less than the cost of repair does not make such cost incompetent as evidence.

5. A second point on evidence was that...