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Vinik v. Niagara Fire Insurance Co.

Decided: September 27, 1934.

ANTOLE VINIK, APPELLANT,
v.
NIAGARA FIRE INSURANCE COMPANY, RESPONDENT



On plaintiff's appeal from the Supreme Court, whose opinion is reported in 112 N.J.L. 462; 171 A. 555.

For the appellant, Joseph T. Lieblich.

For the respondent, Arthur T. Vanderbilt.

Parker

The opinion of the court was delivered by

PARKER, J. At the outset, respondent makes two technical objections to the grounds of appeal filed in this court. The first is that instead of assigning that the Supreme Court affirmed the judgment in the trial court when it should have reversed it, the grounds of appeal invoke the alleged errors in the trial court, contrary to the rule laid down in Diamond Mills Paper Co. v. Leonard Ice Co., 95 N.J.L. 540, and other cases. But we find that the grounds of appeal in this court do in fact assign that the Supreme Court erred in affirming the judgment in the trial court. True, they go on to specify the particulars in which the trial court erred, but this may be considered as mere surplusage. The review here stands or falls on the grounds alleged in the Supreme Court, and a repetition of them here has no effect one way or the other, if the general ground be stated, as in fact it is.

The second objection of respondent is that certain grounds of appeal in the Supreme Court, challenging rulings on the admission of testimony, were defective in not reproducing the answers to questions objected to, and that the attempt to correct this here by adding those answers, is futile. The Supreme Court apparently has not discussed this point, and perhaps it was not made in that court. Whether or not it was so made, we deem it without merit. The authorities

cited by respondent are Benson v. Brady, 5 N.J. Mis. R. 13, and Shedaker v. James, 107 N.J.L. 400, both cases in the Supreme Court. The first was on a rule to show cause, and the point ruled, and correctly so, was that a reason that "the trial court admitted illegal evidence" was not sufficient. The court said, obiter, "the alleged illegal testimony objected to, question and answer, should be embodied in the reason. This is the settled rule relating to the stating of a ground of appeal in a case upon appeal," citing Donnelly v. State, 26 Id. 512; State v. MacQueen, 69 Id. 476, and State v. Hendrickson, 95 Id. 10. None of those cases supports the proposition that an assignment of error on the allowance of a question must state the answer given, and we know of no case in which this court has so held. The settled practice was recognized in 1912 by the schedule of forms appended to the Practice act of that year, and which have since been continuously reprinted in the rules of the Supreme Court promulgated for the guidance of practitioners. Form 37 is a form of notice and grounds of appeal and reads in part as follows: "The following questions were admitted: 6. To the witness G.H. (Copy the questions.)" There is no indication that the answers are also to be copied. The other case cited, Shedaker v. James, goes no further than to hold that a reason for new trial, that "the court erred in permitting the plaintiff to testify concerning conversations by and between him and the decedent Isobel M. Shedaker" was not sufficiently specific. We conclude on this point, that proper practice on appeal does not require a ground of appeal attacking the allowance of a question, to reproduce the answer to that question.

We turn, then, to the points raised by the appeal.

The plaintiff was the owner of a bungalow house at the village of Stelton, New Jersey, about two miles north of New Brunswick. His mother had lived in the house, which was built about war time, but she had moved away to Philadelphia, and she was living a short distance away at the home of some neighbor. She made him a deed of the house and it was shown (over objection and exception) that it was a gift from her to him. As the jury were entitled to find, there was

little or no furniture in the house, although plaintiff put in a very substantial claim for furniture destroyed. They were also entitled to find that the house had been rented to an Italian and that one of the neighbors familiar with distillery smells had smelled continuously a very strong odor of whiskey mash and had seen something on the back porch after the fire that looked like rye. It was also in evidence that there were two fires, although the plaintiff claimed only one; that the first fire was about midnight of January 5th-6th, and that this, according to one of the firemen, was right in the centre of the house and burned a hole clean up through the roof but left the rest of the structure comparatively undamaged. Another witness said that the house had been pretty well gutted by the first fire and that it was little more than a shell. However, the important item of proof was that some twenty-nine hours afterwards, on January 7th, at five-forty o'clock in the morning, there was another alarm of fire, and when the firemen arrived they found the house aflame at all four corners and so far gone that nothing could be done to save it. It was also in proof that on the occasion of one of the alarms, the plaintiff, who was asleep in bed, had been waked up by his landlady and informed of the fire and said, "oh, go on," and went to sleep again. The jury, as has been said, returned a verdict for the defendant.

The first point made for the appellant is that the court erred in permitting certain amendments to the answer when the case was moved and over the objection of the plaintiff. The Supreme Court says as to this that while an exception was taken, no ground of objection was stated; that surprise was not alleged, counsel merely stating "I came here prepared to try the case on the issues raised," and that this was manifestly not a claim of surprise. We prefer, however, to treat plaintiff's objections on their ...


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