For the prosecutor, Walter D. Van Riper, Attorney-General (Joseph A. Murphy, Assistant Attorney-General, of counsel).
For the respondent, David T. Wilentz (Arthur J. Sills, of counsel).
Before Justices Bodine, Perskie and Wachenfeld.
The opinion of the court was delivered by
PERSKIE, J. The question for decision is whether the respondent illegally engaged in the practice of medicine.
Prosecutor, State Board of Medical Examiners of New Jersey, caused a duly verified complaint to be filed in the Second Judicial District Court of the County of Middlesex charging that respondent, Joseph M. Grossman, practiced medicine (R.S. 45:9-18) during the months of November and December of 1944, in the City of Perth Amboy, New Jersey, without first having obtained a license (R.S. 45:9-22, as amended by Pamph. L. 1939, ch. 115, p. 419, § 29).
A warrant was issued. That warrant states the provisions of the law which respondent allegedly violated as required by R.S. 45:9-22. These provisions are the same as those set down in the complaint.
The trial judge heard the cause in a summary manner, without a jury. R.S. 45:9-23. He determined that respondent did not practice medicine and dismissed the complaint accordingly. Prosecutor was allowed a writ of certiorari.
The applicable law is settled. When the trial judge sits in a case tried, as this was, in a summary manner, without a jury, he determines the facts in accordance with his appraisal of the evidence. Cf. Bound Brook Stove Works v. Ellis, 98 N.J.L. 523 (and cases collated at p. 524); 122 A. 690. We do not weigh the evidence. Our concern is whether
there is legal evidence to support the fact finding of the court below. Bound Brook Stove Works v. Ellis, supra; State Board of Medical Examiners v. Citarella, 113 N.J.L. 210, 213, 214; 174 A. 24; State Board of Medical Examiners v. Coleman, 132 N.J.L. 64, 66; 38 A.2d 689. It is only when there is no proof to support the fact determination as made, or when the determination is made erroneously as a matter of law, that such determination is remediable on appeal. R.S. 2:32-204. Cf. Huels v. General Electric Co., 134 N.J.L. 165 (and cases collated at p. 169); 46 A.2d 654.
We think that the court below fell into reversible error, as a matter of law, in determining that respondent had not illegally engaged, as charged, in the practice of medicine. In reaching this result we have totally disregarded all contradicted proofs and have ...