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Berko v. Public Service Co-Ordinated Transport

Decided: December 5, 1934.

BENJAMIN BERKO, PLAINTIFF-APPELLANT,
v.
PUBLIC SERVICE CO-ORDINATED TRANSPORT, A NEW JERSEY CORPORATION, AND THOMAS COMERFORD, DEFENDANTS-RESPONDENTS



On appeal from the Essex County Court of Common Pleas.

For the plaintiff-appellant, Arthur M. Karl.

For the defendants-appellees. Henry H. Fryling (William H. Speer and William F. Vosseller, of counsel).

Before Brogan, Chief Justice, and Justices Parker and Bodine.

Brogan

The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. This is the plaintiff's appeal from a judgment entered in favor of defendants on a verdict of no cause of action in the Common Pleas Court of Essex county. The suit arose out of personal injury alleged to have been suffered by the plaintiff through the negligence of the defendant, Public Service Co-ordinated Transport, a corporation, and Thomas Comerford, its bus driver. Both were named defendants.

The case was tried on March 27th, 1933, submitted to the jury in the usual manner, a verdict returned, judgment

entered in favor of Public Service Co-ordinated Transport, and no judgment entered as to the co-defendant, Comerford.

A rule to show cause was allowed as to why a new trial should not be had. The reasons advanced for a new trial were that the verdict was contrary to and against the weight of evidence; that it was the result of prejudice and mistake; that it was contrary to the instructions of the trial court; that it was inconsistent, incomplete and not dispositive of the issues presented by the pleadings; that it imported "repugnant, contradictory, irreconcilable and inconsistent findings" and was "irregular and defective and can only be cured by the trial court setting it aside and granting a new trial as to all the defendants."

The rule was argued by counsel and taken under advisement by the court.

In the meantime, and while decision on the rule to show cause was pending, defendants' counsel, without notice to counsel for plaintiff, presented a verified petition and an affidavit of the court clerk to the trial court, setting forth that the clerk of the court, through mistake, entered the verdict in this case in favor of the Public Service Co-ordinated Transport alone, when, as a matter of fact, the jury had returned a verdict of no cause for action as to both defendants, and prayed an order directing the clerk to correct the verdict in accordance with the finding as the jury had reported it.

The court received this proof and on July 20th, 1933, ordered that "the said record * * * be corrected * * * and shall include a judgment in favor of Thomas Comerford as well of no cause for action." On July 27th, ...


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