
    STATE BOARD OF MEDICAL EXAMINERS, PROSECUTOR, v. EDWARD A. BAKER, DEFENDANT.
    Submitted October 30, 1931
    Decided May 16, 1932.
    Before Justices Tkenchakd and Donges.
    For the prosecutor, William A. Stevens, attorney-general, and Robert Peacock, assistant attorney-general.
    For the defendant, Lionel Isaacs and Herbert P. July (of the Few York bar).
   Pee Cueiam.

This writ of certiorari seeks a review of a judgment of the District Court of the city of Elizabeth, adjudging the defendant not guilty of a violation of the act regulating the practice of chiropody.

The defendant is not licensed as a chiropodist. The testimony of the several witnesses for the state board was that he examined their feet by feeling “around those bones in the feet;” took impressions of their feet; and, in each instance, recommended arch supports, and made such supports for them. The charge was $15 in each case. The defendant testified in substance as did the prosecutor’s witnesses. On behalf of the prosecutor, an expert witness was permitted to testify that the things admittedly done by the respondent constituted the practice of chiropody. We are not called upon to pass upon the competency of the testimony of this expert. The pertinent part of it was admitted without objection.

The situation thus presented is one where it appeared from the uncontradicted testimony of the factual witnesses and the admitted expert testimony that the respondent had practiced chiropody. There being no conflict in the testimony before the trial judge, we are of opinion that he was not at liberty to disregard the evidence and substitute his own opinion, unsupported by evidence, in place thereof. A verdict must be considered in view of the situation presented to the trial court. A verdict erroneous on the theory and proofs presented to the trial court cannot be sustained. First Caldwell Oil Co. v. Hunt, 100 N. J. L. 308; 127 Atl. Rep. 209; Flammer v. Morelli, 100 N. J. L. 314; 126 Atl. Rep. 307.

The judgment under review will be reversed, and a venire de novo awarded Costs will abide the outcome of the proceeding.  