Long v. Daly

144 A. 920, 105 N.J.L. 492, 1929 N.J. LEXIS 252

• Court: Supreme Court of New Jersey
• Decided: February 4, 1929
• Status: Published

Opinion

Pee Curiam.

Of the nine points noticed in the per curiam of the Supreme Court, only two are made here; and they are the first two mentioned by the court below.

As to the clause in the charge which reads in part: "Being in violation of * * * of the Manual of Eules,” &c., we are content to rest substantially on the reasoning of the Supreme Court, which plainly was of the opinion that the clause in question should properly be disregarded as surplusage. The case of Kelly v. Bishop, 119 Atl. Rep. 6, decided in the Supreme Court by the late Mr. Justice Bergen sitting alone, is not controlling on us even if in point, which on the face of the report is by no means clear; and in any event the views of the learned justice on that branch of the case were essentially obiter, as the participation of a commissioner who had not heard the testimony was quite enough to work a reversal.

The other point argued here is that “no signed complaint is shown to have been filed in the office of the municipal officer or board * * * as required by statute.”

As to this it is sufficient to say that we find a regularly signed and sworn complaint contained in the return to the writ of certiorari over the hand of the director and seal of the city. The return is of course conclusive of the relevant matters therein contained. Prall v. Waldron, 2 N. J. L. 83, 135; Pinkney v. Ayres, 21 Id. 694; Paterson, &c., Railroad Co. v. Ackerman, 24 Id. 535; Gory v. Jackson, 76 Id. 387.

We find no error, and the judgment of the Supreme Court is accordingly affirmed.

For affirmance — Trehchaed, Parker, Kalisch, Katzehbach, Lloyd, White, Yah Buskirk, Kays, Hetbield, Dear, JJ. 10.

For reversal — Kone.