Volume 98 — New Jersey Law Reports

<p>On appeal from the Passaic County Circuit Court.</p>

<p>On appeal from the Hudson County Circuit Court.</p>

<p>On rule to show canso.</p>

<p>On certiorari to the Warren Common Pleas.</p>

<p>1. At common law. where matter of defence had arisen after plea filed or issued joined it had to be pleaded in bar or abatement, as the case may be, jmis darrein continuance. While the Practice act of 1912 (Pamph. L., p. 377) has radically changed the forms of pleading, it has not divested them of their common law design and substance, and any matter arising after answer or issue joined must be set forth in a supplemental answer.</p> <p>2. After an issue has been tried out upon the merits of the case, in a court of competent jurisdiction and a verdict rendered in favor of the plaintiff and the judgment entered upon the verdict upon appeal is affirmed, a rehearing will not be granted in order to permit the defeated litigant to set up as an additional ground for a reversal of the judgment that the court below in the progress of the cause lost jurisdiction of it, where it appears that no such question was raised at the trial or alleged as one of the causes for reversal in the grounds of appeal, or in the argument before the appellafe tribunal. To sanction such practice would be to defeat the orderly administration of the law and the ends of justice.</p>

<p>1. Defendants, a firm of undertakers, hired an automobile, with a driver, to go from Plainfield to attend a funeral in Brooklyn. One of the defendants rode on the front seat with the driver, but gave no directions and exercised no control over the machine, except to state to the driver their destination. While the automobile was crossing an intersecting street in New York City, it struck and injured the plaintiff. Held, that as the defendants neither hired, directed nor controlled the driver, nor exercised any power, authority or supervision over him, but left to him the exclusive management, direction and control of the vehicle, the relationship of master and servant did not exist, especially in the absence of any testimony to show that the driver consented, expressly or impliedly, to the transfer of his services, pro hae vice, to the defendants.</p> <p>2. The theory of master and servant, like that of principal and agent, is based upon the legal conception of representation in a chosen and accepted line of service, by which the employe becomes for that particular duty the alter ego of the master.</p>

<p>1. Defendant sold a quantity of iron to the plaintiff, and in the written contract of sale agreed that the iron could be removed at any time that suited the plaintiff. Hold, that the time of removal was unlimited, and that plaintiff was not obliged to remove the iron until notified so to do by the defendant.</p> <p>2. Defendant sold a quantity of iron to the plaintiff, under a written contract in which he agreed that the iron could remain in his storage yard indefinitely. After about fourteen months, defendant. without any reasonable notice to the plaintiff, sold the iron. Held, that the defendant, during the period the iron was stored, occupied the position of a bailee, and as such; could not terminate the bailment without reasonable notice, much less sell the iron without authority from his bailor.</p>

<p>On mandamus. On demurrer to the return made to an alternative writ.</p>

<p>1. Chapter 206 of the laws of 1918 (Pamph. Jj., p. 752), which gives to the county supervisors in counties of the first class, supervision of all subordinate county officers and employes, and the right to suspend or remove them from office, after a hearing', for violation or neglect of duty, is not in conflict with the right of the civil service commission to investigate and hear appeals in cases where an employe has been removed from a position or office within the Civil Service act.</p> <p>2. Section 24 of the Civil Service act, as amended (chapter -236 of the laws of 1917, Pamph. L., p. 797), vests the civil service commission with full power to hear appeals by employes holding positions or places designated by the act, who have been discharged, removed, &c., to make an independent investigation, to hold an independent hearing and determine the merits on testimony taken before the commission. These provisions preclude the idea that the commission should act upon testimony given in the proceeding from which the appeal is taken.</p>

<p>On motion to qnash information.</p>

<p>On appeal from tlie Supreme Court.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 96 N. J. L. 341.</p>

<p>Oil appeal from the Supreme Court, whose opinion is reported in 96 N. J. L. 345.</p>