On writs of error to Essex County Court of Quarter Sessions.
For the defendant in error, William A. Wachenfeld, Prosecutor of the Pleas of Essex County, and C. William Caruso, Special Assistant Prosecutor.
For the plaintiffs in error Bentley Bootery, Inc., and Moe Fred Tenzer, Kessler & Kessler (Samuel I. Kessler, of counsel).
For the plaintiff in error Edwin J. Swanson, Child, Riker, Marsh & Shipman (Irving Riker, of counsel).
For the plaintiff in error Nathan Strauss, John J. Clancy.
Before Brogan, Chief Justice, and Justices Parker and Porter.
BROGAN, CHIEF JUSTICE. The plaintiffs in error Bentley Bootery, Inc., Moe Fred Tenzer, Nathan Strauss and Edwin J. Swanson were convicted of conspiracy to defraud the Pennsylvania Fire Insurance Company of certain moneys claimed to represent a loss sustained by Bentley Bootery, Inc., under a policy of insurance issued to it by the insurance company. The overt act, the perpetration of which is charged to the individual defendants, consisted in causing the basement premises occupied by Bentley Bootery to be flooded with water, the intention being to destroy or damage approximately 2,000 pairs of shoes covered by the insurance policy. Thereafter the corporation and Moe Tenzer, its secretary, executed a proof of loss amounting to $5,450.50 which was paid by the insurance company. One Jack Kramon, employed by Bentley Bootery as manager, was also indicted with the others mentioned. There was a severance in his case and he testified for the state. The plaintiffs in error will be referred to as defendants.
Bentley Bootery was fined $1,000 and the individuals Tenzer, Strauss and Swanson each received a prison sentence and a fine. Separate writs of error were sued out, one for Bentley Bootery and Tenzer, another for Strauss, the third for Swanson.
The defendants having caused the entire record of the proceedings had upon the trial of the cause to be returned with the writ in accordance with N.J.S.A. 2:195-16, the case is before us on assignments of error and specification of causes for reversal, seventy-five in number, which are argued under several main points.
The facts that appear from the proofs are as follows: Bentley Bootery, Inc., conducted a shoe store at 785 Broad
Street, Newark, New Jersey. Tenzer was the manager, Kramon his assistant. The following persons were employed as salesmen: Goldberg, Greenberg, Hilliard, Kessner, Perlstein and Belfus; one Johnson was the porter; Joan Cullen Safier was the cashier and her sister, Doreen Cullen, a temporary employee. The defendant Strauss was an employee of Goldsmith & Freund, insurance brokers, who sold the policy of insurance to Bentley Bootery; Swanson, an employee of the Underwriters Salvage Company of New York. The premises occupied by Bentley Bootery consisted of a store at street level and a basement, used for storage, in which were located two wash rooms. On July 12th, 1940, the cellar was flooded with water to a depth varying from one and a half to several inches. It was the contention of the state that the cellar was flooded by design of some of the parties defendant and that much of the merchandise was damaged by having water poured over it by some of the defendants or at their direction. It was also charged that the claim paid by the insurance company included damage to merchandise which had not in fact been damaged in order to defraud the insurer. It appears that on July 11th, 1940, between half past six and seven o'clock in the evening a heavy rain fell. It is also undisputed that an adjoining cellar was flooded by the storm. The rain on that evening, however, ceased at seven o'clock.
The substance of the testimony in support of the indictment is that the defendants by fraud caused the damage to the stock of shoes, that they caused obsolete stock to be damaged by water, in which such stock was intentionally placed; that merchandise on shelves, out of reach of the water, was deposited on the basement floor in the water; and that outmoded merchandise was brought from the company's nearby warehouse for the purpose of placing it in the flooded cellar, in order to collect damages from the insurer. The defendants denied that the damaged stock was obsolete but claimed it was new; denied there had been any deliberate wetting of merchandise; testified that the stock from the warehouse was for the fall trade and that for a period of several days it had been brought over to the store premises and placed in
boxes, end up, on the basement floor for sorting as to size, color and style, preparatory to placing such merchandise on sale when the summer season was over. The quantity of water in the cellar was explained by the defendants as resulting from a faucet in one of the washrooms which had negligently been left running; that the drain in the washroom basin was sluggish which caused an overflow. The state contended that the tap had been deliberately left open and that the damage caused thereby was small in comparison with that resulting from the deliberate saturation of merchandise by Tenzer, Goldberg, Greenberg, Kramon and Hilliard; that these persons had put merchandise, which had been deposited on shelves above the water, into the water to accomplish its damage or destruction as footwear. On all these matters a sharp fact issue arose.
Strauss was charged by the state with having participated in the fraud in that he assisted in preparing the claim to the insurance company with knowledge of the conduct outlined above, and Swanson, whose duty it was to salvage merchandise, was charged with knowledge of the conduct already mentioned in spite of which he removed merchandise for the account of his employer, the salvage company, in excess of that which might have been legitimately damaged. Tenzer paid him $100, which Swanson admitted receiving, saying, however, it was for co-operation in clearing away the damaged merchandise. Goldberg, Greenberg and Hilliard were not indicted so far as the record discloses. They testified for the state. Goldberg and Hilliard were each paid a sum of money five or six months after the date of the flood, the former $750, the latter $450. About that time they left the company's employ.
Turning to the brief -- (the case was not argued) -- the first point for the plaintiffs in error challenges the court's charge to the jury in which, among other things, the court said:
"The first incident that occurs to my mind at the moment is this incident in which Goldberg received $750. What your conclusions may be in regard to that incident I am not able to say, but I think it is a fair inquiry to consider in view of ...