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Freschi v. Mason

Decided: October 19, 1931.

SYLVESTER FRESCHI, RESPONDENT,
v.
ABRAHAM B. MASON, APPELLANT



On defendant's appeal from the Supreme Court.

For the appellant, Russell E. Watson.

For the respondent, Burlew & Currie.

Parker

The opinion of the court was delivered by

PARKER, J. This cause was reviewed in the Supreme Court on a rule to show cause, although the per curiam opinion of that court, filed May 1st, 1930, does not seem to have been published in the unofficial reports or elsewhere. The general facts relating to the origin of the case and the result at the trial are correctly stated in the introductory portion of the Supreme Court per curiam, which reads as follows:

"The plaintiff at the time of the injury that gave rise to this suit, was a regular employe of the Metallurgical and

Chemical Company, Incorporated, at its plant in Matawan. That company contracted with the Fuller Construction Company to build an additional building of steel frame construction, sheathed and roofed with corrugated iron, and connecting with the existing building. The frame was up, and work on the roof was in progress. At the same time, plaintiff was engaged under the direction of his foreman, in laying the concrete foundation of a piece of machinery under, or nearly under a part of the incomplete roof where workmen of the defendant Mason were at work; and with matters in that situation plaintiff was struck on the head by a heavy metal object which he claimed had been negligently allowed to fall from the roof by some workman of the defendant. Said defendant was a subcontractor of the Fuller Construction Company, for the roofing of the new building. Plaintiff brought suit against defendant, and after two trials resulting in a disagreement of the jury, and a third in which a juror was withdrawn to permit an amendment of the complaint, the jury on a fourth presentation of the evidence returned a verdict in his favor of $20,000."

There is a rigid rule of practice, which was crystallized into a statute, that the granting of a rule to show cause shall be a waiver of the bill of exceptions except on points expressly reserved in said rule. Practice act of 1903, section 213. This section was repealed in 1912 (Pamph. L., pp. 383, 384, ยง 34) but was revived in the present Rule 129 of the Supreme Court which reads: "Granting to a party a rule to show cause why a new trial shall not be granted shall be a bar against him to taking or prosecuting an appeal, except on points expressly reserved in said rule." See Haden v. Bamford Bros., 74 N.J.L. 847.

This familiar principle is here stated, because the only exceptions reserved in the rule to show cause were the following: (1) To the refusal to nonsuit; (2) to the refusal to direct a verdict for the defendant; (3) to the charge of the court. Consequently the point made here, that the court erred in permitting the reading of certain depositions over the objection

of the defendant, is unavailable to the appellant, as is also the further point that the court refused certain request to charge.

There is another rule of appellate practice, which is that a party holding a rule to show cause and arguing alleged errors of law thereunder, will not be permitted to renew his argument to such points on appeal. And for this reason also the claim that the trial court erred in admitting the said depositions and in refusing the requests to charge, are ...


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