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Benesh v. Wolf

New Jersey Supreme Court


Decided: January 10, 1935.

MICHAEL WILLIAM BENESH, PROSECUTOR-RESPONDENT,
v.
WALTER A. WOLF, RECORDER, ETC., AND THE TOWNSHIP OF LODI, NEW JERSEY, DEFENDANTS-APPELLANTS

On appeal from the Supreme Court.

For the appellants, John E. Selser.

For the respondents, John H. Yauch.

Campbell

[114 NJL Page 127]

The opinion of the court was delivered by

CAMPBELL, CHANCELLOR. This is an appeal from a judgment of the Supreme Court reversing a judgment of the recorder of the township of Lodi, in Bergen county.

The complaint before the recorder was:

"* * * that Michael Wm. Benesh * * * on the fifth day of December, 1933 * * * did * * * solicit and canvass orders for laundry work from and did peddle to one John Keever and others * * * in violation of * * * an ordinance * * * entitled, 'An ordinance to regulate and license all canvassers, peddlers, itinerant venders of merchandise, junk dealers, solicitors, hucksters, etc., within the Township of Lodi and to provide penalties for the violation thereof' approved April 7, 1933."

[114 NJL Page 128]

The facts established were that Benesh was an employe of the Mutual Laundry Company, having its plant and conducting its business in West New York, Hudson county, and as such he was operating an auto delivery truck and came into the township of Lodi for the purpose of collecting soiled linen, &c., convey it to the laundry in West New York for cleaning, subsequently to be returned to the various owners.

John Keever was a regular customer, and, on the day in question, Benesh, as was his custom, stopped at the Keever home, to take such articles as required laundering.

He was found guilty, as charged, by the recorder and sentenced "to pay a fine of $25 and $2.50 costs or ten days in jail."

This judgment was removed to the Supreme Court for review by certiorari and the matter was heard by a single justice as provided by statute, who concluded that the conviction and judgment were not proper and warranted.

A judgment was entered setting aside the complaint, conviction, judgment and all proceedings in connection therewith. This was upon the authority of Lynch v. Long Branch, 111 N.J.L. 148.

The judgment of the Supreme Court is brought to this court for review.

We conclude that there was no error therein.

Under the facts and circumstances of this case the ordinance is not broad and comprehensive enough to reach the admitted activities of the respondent, Benesh, and if it was then the holdings of Lynch v. Long Branch, supra, which we approve and adopt, control.

The judgment under review is affirmed, with costs.

For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, PARKER, LLOYD, CASE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR. WELLS, JJ. 13.

For reversal -- None.

19350110


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