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HARVARD LAW LIBRARY
3 2044 078 433 257
III
I
HARVARD LAW LIBRARY
Received MAr 2 1918
1
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(^ i
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NEW JERSEY LAW REPORTS.
VOLUME XC.
GUMMERE V.
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REPORTS OF CASES
▲BGUBD AND DETKRlflNED Df THE
SUPREME COURT
AND, AT LAW, IN TBI
COURT OF ERRORS AND APPEALS
OF THE
STATE OF NEW JERSEY
CHARLES E. GUMMERE, Reporter.
VOLUME V.
McwAKK, M. J.:
BONEY A SAGE.
1917
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This volume oontains the opinions delivered in the Sapreme
Court at the February and June Terms, 1917, and also the
opinions in cases at law in the Court of Errors and Appeals
at the November Term, 1916, and March Term, 1917.
iv
tAAr^ \m
VMimED BT THB
Statb Qasettb Pub. Co.,
tbbmtom, k. j.
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.NEW JERSEY REPORTS.
LAW REPORTS.
COXE'S REPORTS, 1 vol.
PENNINGTON'S REPORTS. - - - - 2 "
SOUTHARD'S " ^ - - - 2 «
HALSTEiyS •• 7 «
GREEN'S " . . . . 3 "
HARRISON'S " 4 "
SPENCER'S • 1 "
ZABRISKIE'S '• 4 "
DUtCHER'S " . . . . 5 "
VROOM'S " 66 «
GUMMERE'S " - - - - 6 «
EQUITY REPORTS.
SAXTON'S REPORTS, . - - . i vol.
GREEN'S " 3 "
HALSTEiyS •• , . - - , - 4* "
STOCKTON'S ""*- - ^" - - - 3 "
BEASLEY'S " 2 "
McCARTER'S " 2 ".
C. E. GREEN'S " 12 "
STEWART'S " - - - - • - 18 «
DICKINSON'S " - • ... 21 «
ROBBINS' " 4 "
BUCHANAN'S " 15 "
B. STOCKTON'S « 1 "
V
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Justices of the Supreme Court During the Period of
these Reports*
CHIEF JUSTICE.
Hon. WILLIAM 8. GUMMERE.
ASSOCIATE JUSTICES.
Hon. CHARLES G. GARRISON.
« FRANCIS J. SWAYZE.
" THOMAS W. TRENCHARD.
" CHARLES W. PARKER.
" JAMES J. BERGEN.
» JAMES F. MINTURn!
" SAMUEL KALISCH.
« CHARLES C. BLACK.
ATTORNEY GENERAL.
Hon. JOHN W. WESCOTT.
CLERK.
WILLIAM C. GEBHARDT, Esq.
vi
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Judges of the Court of Errors and Appeals.
Hon. EDWIN ROBERT WALKER, CnANCBLiiOB.
« WILLIAM 8. GUMMERE, Chief Justicb.
♦ CHARLES G. GARRISON,
" FRANCIS J. SWAYZE,
" THOMAS W. TRENCHARD,
'• CHARLES W. PARKER,
" JAMES J. BERGEN,
" JAMES F. MINTURN,
" SAMUEL KALISCH,
" CHARLES C. BLACK,
Associate
Juatioa
of the
Supreme Court.
Judges Specially Appointed.
Hon, JOHN J. WHITE.
" HENRY S. TERHUNE.
« ERNEST J. HEPPENHEIMER.
" ROBERT WILLIAMS.
" FRANK M. TAYLOR.
" WALTER P. GARDNER.
CLERK.
THOMAS P. MARTIN, Esq.
VII
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TABLE OF CASES REPORTED
IN THIS VOLUME
Ackerman ads. Seglie 118
Albrecht v. Pennsylvania Railroad Co 293
Allen ads. Ck>lling8 5
American Woolen Co. v. Eidwards 69, 293
Armbrecht v. Delaware, Lackawanna & Western R. R. Co 529
Atlantic City ads. Fennan 674, 675, 676, 677
Atlantic City ads. Fenton 403
Atlantic City ads. Irwin 99
Atlantic City ads. McAllister 93
Atlantic City & Suburban Gas & Fuel Co. ads. Reed 231
Atlantic Coast Electric Railway Co. v. State Board of Taxes
and Assessments 353
Attorney-General v. Verdon 494
Baldwin ads. Martin '. 241
Bauer v. West Hoboken 1
Bayhead ads. Dale 49
Bell ads. Deck 96
Belleville ads. Jerolaman 206
Belmont Land Association v. Garfield 394
Bender ads. Shaw 147
Benjamin & Johnes v. Brabban 355
Bennett Gravel Co. ads. CooIl -. 9
Bernards Township ads. Newark Homebuilders Co 361
Betts v. Massachusetts Bonding & Insurance Co 632
Beverly ads. Buohl 44
Blackmore ads. Bonfield 252
Blanda ads. Consolidated Gas & Gasoline Engine Co 135
Board of Conservation and Development ads. Society for Estab-
lishing Useful Manufactures 469'
Board of Education of Bayonne ads. Schwancrock 370
Board of Education of Jersey City ads. Frank 273
Bonfield v. Blackmore 252
Booth & Bro. v. Glasser 91
Borst ads. Jersey City '. 454
Bouquet v. Hackensack Water Co 203
Brabban ads. Benjamin & Johnes 355
Bradford v. DeLuca 434
Brandes ads. Brunhoelzl 31
ix
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TABLE OF CASES REPORTED. [90 N. J. L.
Brann & Stewart Co. ads. Hansen 444
Brant ads. Wbitcomb 245
Breidt Brewery Co. v. Weber 641
Brinsko v. Lehigh Valley Railroad Co 658
Browne v. Hagen 423
Brunettt v. Grandi.... 670
Brunhoelzl v. Brandes 4 31
Brunswick Motor Co. ads. Chrisafides 313
Buohl V. Beverly * 44
Burlington County Farmers* Exchange ads. Stuart 584
Burnett v. Superior Realty Co 660
C.
Cahill V. West Hoboken 39S
Carson v. Scully 295
Carton v. Trenton & Mercer County Traction Corporation. 311
Caruso v. Montclair 255, 312
Catholic Benevolent Legion ads. McGuire 224
Central Railroad Company of N. J. ads. Collins 593
Central Railroad Company of N. J. ads. Rounsaville 176
Chrisafides v. Brunswick Motor Co 313
' Christy v. New York Central & Hudson River R. R. Co 540
Ciesmelewski v. Domalewski 34
Clowney ads. Heilemann 87
Cohen ads. Heckman 322
CoUetto V. Hudson & Manhattan R. R. Co 315
CoUings V. Allen 5
Collins V. Central Railroad Company of N. J , 593
Collins ads. Wheaton 29
Commercial Casualty Insurance Co. ads. Cross 594
Commissioners Palisades Interstate Park ads. Ross 461
Common Pleas of Hudson ads. Safety Insulated W. & C. Co. . . . 114
Connolly Co. ads. Crossley 238
Consolidated Gas & Gasoline Engine Co. v. Blanda . . .< 135
Cook v. Bennett Gravel Co 9
Cooney v. Rushmore 665
Cramer ads. Peoples National Bank 655
Crane v. Jersey City 109
Crossley v. Connolly Co 238
Crossley ads. Kitchell 574
Cunningham ads. Ireson 690
Curtis v. Joyce 47
D.
Dale V. Baytiead 49
Daly V. Garven 512
Darville v. Freeholders of Essex 617
Deck V. Bell 96
DeOroflP v. O'Connor 317
Delaware, Lackawanna & Western Railroad Co. ads. Armbrecht. . 529
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90 N. J. L.] TABLE OF CASES EEPOBTED. xi
Delaware, Lackawanna & Western Railroad Ck>. ads. Dickinson . . 158
Delaware, Lackawanna & Western Railroad Co. ads. Fortein.... 137
Delaware, Lackawanna & Western Railroad Co. ads. Heinz..... 198
Delaware, Lackawanna & Western Railroad Co. ads. Kratz 210
Delaware, Lackawanna & Western Railroad Co. ads. Nevich .... 228
Delaware, Lackawanna & Western Railroad Co. ads. Sprotte.,.. 720
Delaware, Lackawanna & Western Railroad Co. ads. Van Hoogen-
^styn 189
I>e Luca ads. Bradford 434
Delker v. Freeholders of Atlantic 473
Department of Health of New Jersey v. Monheit, . . .'. 448
Devlin v. Jersey City 318
Dickinson v. Delaware, Lackawanna & Western Railroad Co. «... 158
Dilks ads. Jackson 2S0
Di Maria ads. State , ... 341
Domalewski ads. Cieamelewtki 34
Duff V. Prudential Insurance Co. , 046
Duffy V. Paterson 609
Dumont ads. Whitaker , 883
DuPont De Nemours Co. ▼. Spocidio 488
Durham ads. Elarle «. 819
Durkin v. Fire Commiadoners o| Newark 670
E.
^r\e V. Durham >..... 319
^berling v. Mutillod , 478
|Jckert X, West Qr^Qge ,...., '. 545
l^iaon ads. GrUlo. 6^0
Pdwards ads. American Woole^ Co.. , . , 99t 293
IGdwards ads. Marwell ..,..,...., 707
G4wards ads. Opportunity Salei; Co* t t 331
Edwards v. Pftry , , OiTO
Edwards ads. Security Trust Co. 558, 579
Edwards ads. Zabriskie 731
Eisele & King v. Raphael 219
Eisner ads. Sholes 151
RUis V. Pennsylvania Railroad Co 349
EUison ads. Raab 716
Brie Railroad Co. ads. Malone 350
Erie Railroad Co. ads. Materka 457
KHe RaUroad Co. v. Public Utility Board. 271, 672, 673
Erwin v. Traud 289
Eisex County Board of Taxation ads. Fidelity Trust Co 51
F.
Fagan ▼. Fire Commissioners of Newark 673
Fai^n ads. Stark 187
Fairriew Development Co. ▼. Fay 427
Fairview Heights Cemetery Co. ▼. Fay 427
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xii TABLE OP CASES REPORTED. [90 K J. L.
Fay ads. Fairview Development Co 427
Fay ads. Fairview Heights Cemetery Co.'. 427
Fennan v. Atlantic City 674, 675, 676, 677
Fenton v. Atlantic City 403
Ferber Construction Co. v. Hasbrouck Heights. 193
Ferguson & Son ads. Orlando 553
Fidelity Trust Co. v. Essex County Board of Taxation 51
Fire Commissioners of Newark ads. Durkin ' 670
Fire Commissioners of Newark ads. Fagan * 673
Fire Commissioners of Newark ads. Smith' 719
Fish ads State 17
Fitzgerald ads. Rose 717
Fletcher ads. State 722
Florey v. Lanning 12
Flynn v. New York, Susquehanna & Western R. R. Co 450
Fortein v. Delaware, Lackawanna & Western R. R. Co 137
Forty-Four Cigar Co. ads. Fox 483
Fox V. Forty-Four Cigar Co 483
Frank v. Board of Education of Jersey City 273
Frank ads. State 78
Freeholders of Atlantic ads. Delker ^ 473
Freeholders of Atlantic ads. (Jodfrey 517
Freeholders of Essex ads. Darville 617
Freeholders of Essex ads. Kelly 411
Freeholders of Hudson ads. Kennedy 335
Freeholders of Hudson ads. Ross 522
Freeholders of Hudson ads. Ruby 335
Freeholders of Passaic ads. Peoples Bank & Trust Co. 331
Freeman v. Van Wagenen 358
French & Son ads. Limpert Brothers 600
Fuller's Express Co. v. Public Utility Board 694
Fullerton & Co. v. Public Utility Board 677
Fusco Construction Co. ads. Title Guaranty & Surety Co 630
Q.
Gaffney v. lUingsworth 490
Garfield ads. Belmont Land Association 394
Garven ads. Daly 612
Gebhardt ads. Pennsylvania Railroad Co 36
George ads. Gromer 644
Gilbert v. Pennsylvania Railroad Co 321
Glasser ads. Booth & Bro 91
Godfrey v. Freeholders of Atlantic 517
Godstrey ads. Nell 709
Gordon v. Pennaci 392
Grandi v. Brunetti 679
Grillo V. Edison 680
Gromer v. George ; 644
Gross V. Commercial Casualty Insurance Co 594
Guarraia v. Metropolitan Life Insurance Co 682, 685
Gude Co. V. Newark Sign Co 686
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90 N. J. L.] TABLE OP CASES REPORTED. xiii
H.
Hackensack Water Co. ads. Bouquet 203
Haddon Heights v. Hunt 35
Hagen ads. Browne 423
Hamilton Township v. Mercer County Traction Co 531
Hammond v. Morrison 15
Hanson v. Brann & Stewart Co. 444
Hart ads. State 261
Hasbrouck Heights ads. Ferber Construction Co 103
Heckman v. Cohen 322
Heilemann v. Clowney ; 87
Heinz v. Delaware, Lackawanna & Western R. R. Co 108
Hendee v. Wildwood & Delaware Bay R. R. Co 325
Hendrickson ads. New York & New Jersey Water Co 537
Hoboken ads. Miller 167
Hoff V. Public Service Railway Co 386
Hoffman ads. State 338
Home Insurance Co. ads Swiller 587
Hop ads. State 300
Horay ads. McMicha,el 142
Horner v. Margate City 406
Houghton V. Jersey City 680
Huber ads. Jersey City 602
Hudson & Manhattan R. R. Co. ads. CoUetto 315
Hudson & Manhattan R. R. Co. ads. Jersey City 640
Hunt ads. Haddon Heights ' 35
I.
lUingsworth ads. Gaffney 400
Ireson v. Cunningham ' 600
Irwin V. Atlantic City 00
J.
Jackson v. Dilks 280
Jefferson ads. State 507
Jerolaman v. Belleville 206
Jersey City v. Borst 454
Jersey City ads. Crane 100
Jersey City ads. Devlin 318
Jersey City ads. Houghton 680
Jersey City v. Huber 602
Jersey City v. Hudson & Manhattan R. R. Co 640
Jersey City v. Thorpe 520
Johnson ads. State 21
Joyce ads. Curtis 47
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xiv TABLE OP CASES REPORTED. [90N. J.L.
K.
Kella Mill & Lumber Co. v. Pennsylvania Railroad Co 325
Kelly V. Freeholders of Essex 411
Kennedy v. Freeholders of Hudson 335
Keyes ads. Woodbridge 67
King ads. Splitdorf Electrical Co 421
Kitchell V. Crossley 574
Koenigsberger v. Mial 695
Koettegen v. Paterson 698
Kratz v. Delaware, Lackawanna & Western R. R. Co 210
Kruchen Co. v. Paterson 700
L.
Lanning ads. Florey , 12
I^high Valley Railroad Co. ads. Brinsko Q58
I^high Valley Railroad Co. ads. Lightcap 620
Lehigh Valley Railroad Co. ads. Martin , 258
r^high Valley Railroad Co. ads. State 340
I^high Valley RaUroad Co. ads. State 372
Leib V. Pennsylvania Railroad Co .; 326
Lightcap V. Lehigh Valley Railroad Co. 620
Limpert Brothers v. French & Son , 600
(joewenthal v. Pennsylvania Efiilroad Co.. . . ^ 327
Ung Dock Co. V. Stat^ Board of Taxeg, ^c. 701, 702, 703
Longport ads. Phillips 212
Tx>omi8 ads. State 216
Loveland v. McKeever Bros 704
Lowrie v. State Board of Dentistry 54
Mc.
McAllister v. Atlantic City 93
McCarthy v. West Hoboken 398
McGuire v. Catholic Benevolent Legion 224
McOurty V. Newark 103
l^cKeever Brothers ads. Loveland , 704
McMichael v. Horay , 142
M.
Malone v. Erie Railroad Co , 350
Margate City ads. Horner 406
Martin v. Baldwin , 241
Martin v. Lehigh Valley Railroad Co ,... 258
Martin v. Woodbridge 414
Massachusetts Bonding and Insurance Co. ads. Betts 632
Materka v. Erie Railroad Co 457
Mausoleum Builders v. State Board of Taxes, &c 163
Maxwell v. Edwards 707
Mercer County Traction Co. ads. Hamilton Township 531
Mercer County Traction Co. ads. R6wland 82
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90 N. J. L.] TABLE OF CASES REPORTED. , xv
Metropolitan Life Insurance Co. ads, Guarraia 682, 685
Meyer v. National Surety Co 126
Meyer v. Public Utility Board 694
Mial ads. Koenigsberger 605
Michael v. Minchin 603
MiUburn Township ads. Whittingham 344, 348
Miller v. Hoboken 167
Milner ads. Mpre ; 626
Minchin ads. Michael 603
!i|onetti ads. State 5^2
Monheit adS. Department of Health of New Jersey 448
Montdair ads. Caruso 255, 312
More V. Milner 626
More V. Richards .' 6.6
More V. Silver. 626
Moriarity v. Orange 328
Morrison ads. Hammond 15
Morris & Co. v. PubUc UtiUty Board 694
Musconetcong Iron Works v. Netcong 58
Mutillod ads. Eberling 478
N.
National Surety .Co. ads. Meyer 126
Nell V. Godstrey 70$)
Netcong ads. Musconetcong Iron Works 58
Nevich v. Delaware, Lackawanna and Western R. R. Co 228
Newark ads. McGurty 103
Newark ads. New. York Telephone Co 362
Newark Homebuilders Co. v. Bernards Township 361
Newark Sign Co. ads. Gude Co 686
Newbaker ads. New York, Susquehanna and Western R. R. Co. . . 713
New England Casualty Co. ads. Standard Gas Power Corp 570
New York Central and Hudson River R. R. Co. ads. Christy 540
New York and New Jersey Water Co. v. Hendrickson 537
New York, Susquehanna and Western R. R. Co. ads. Flynn 450
New York, Susquehanna and Western R. B. Co. v. Newbaker... 713
New York, Susquehanna and Western R. R. Co. v. Public Utility
Board ; 432
New York Telephone Co. v. Newark .362
Ninth Street Improvement Co. v. Ocean City 106
Nones ads. State 342
O.
Ocean City ads. Ninth Street Improvement Co 106
O'Connor ads. DeGroff 317
Old Dominion Copper Mining, &c., Co. v. State Board of Taxes, 364
Olivit Brothers v. Pennsylvania Railroad Co 328, 329, 330
Orange ads. Moriarity 328
Orlando y. Ferguson & Son 553
Opportunity Sales Co. v. Edwards 331
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xvi TABLE OF CASES REPORTED. [90 N. J. L.
P.
Pastutic County Board of Taxation ads. Peoples Bank and
Trust Co 171
Passaic Water Co. v. Public Utility Board 714
Paterson ads. Duffy 669
Paterson ads. Koettegen 698
Paterson ads. Kruchen Co 700
Paterson ads. Riverside Turn Verein Harmonie 717
Parkview Building and I^an Association v. Rose 614
Paul ads. Trout 62
Pennaci ads. Gordon 392
Pennsylvania Railroad Co. ads. Albrecht 293
Peinnsylvania Railroad Co. ads. Ellis. 349
Pennsylvania Railroad Co. v. Gebhardt 36
Pennsylvania Railroad Co. ads. Gilbert. 321
Pennsylvania Railroad Co. ads. Kells Mill and Lumber Co 325
Pennsylvania Railroad Co. ads. Leib 326
Pennsylvania Railroad Co. ads. LoewenthaL 327
Pennsylvania Railroad Co. ads. Olivit Brothers 328, 329, 330
Pennsylvania Railroad Co. ads. Spada 338
Pennsylvania Railroad Co. v. Townsend 75
Pennsylvania Railroad Co. ads. Wilczynski 178
Peoples Bank and Trust Co. v. Freeholders of Passaic. 331
Peoples Bank & Trust Co. v. Passaic County Board of Taxation, 171
Peoples National Bank v. Cramer 655
Petry ads. Edwards 670
Philadelphia & Reading Railway Co. ads. West Jersey Trust Co., 730
Phillips V. I^ngport 212
Phillipsburg Horse Car R. R. Co. ads. Shoeffler 235
Prudential Insurane Co. ads. Duff 646
PuUis ads. State 377
Public Service Railway Co. ads. Hoff 386
Public Service Railway Co. v. Public Utility Board 715
Public Utility Board ads. Erie Railroad Co 271, 672, 673
Public Utility Board ads. Fullerton & Co 677
Public Utility Board ads. Fuller's Express Co 694
Public Utility Board ads. Meyer 694
Public Utility Board ads. Morris & Co 694
Public Utility Board ads. New York, Susquehanna & Western
R. R. Co 432
Public Utility Board ads. Passaic Water Co.. . i 714
Public Utility Board ads. Public Service Railway Co 715
Public Utility Board ads. Western Union Telegraph Co 729
R.
Rnab v. Ellison .' 716
Rabinowitz v. Vulcan Insurance Co 332
Raphael ads. Eisele & King 219
Rqy Estate Corporation v. Steelman 184
Reed v. Atlantic City & Suburban Gas & Fuel Co 231
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90 X. J. L.] TABLE OF CASES BEPORTED. xvii
Riccio ads. State 25
Hichards ads. More 626
Riverside Turn Verein Harmonic v. Paterson 717
Rodgers ads. State 60
Rogers v. Warrington 653
Rose V. Fitzgerald 717
Rose ads. Parkview* Building & Loan Association 614
Ross V. Commissioners of Palisades Interstate Park 461
Robs v. Freeholders of Hudson 522
Roth &*Miller v. Temkin 39
RounsaviUe v. Central Railroad of New Jersey 176
Rowland V. Mercer County Traction Co 82
Ruby V. Freeholders of Hudson 335
Rushmore ads. Cooney ; 665
S.
Safety Insulated W. & C. Co. v. Common Pleas of Hudson 114
Schwarzrock v. Board of Education of Bayonne 370
Scully ads. Carson .' 295
Security Trust Co. v. Edwards. , 558, 579
Seglie V. Ackeiman 118
Serritella ads. State 343
Shaw V. Bender 147
Shoeffler v. Phillipsburg Horse Car R. R. Co 235
Sholes V. Eisner 151
Sickler v. Tuckahoe National Bank 3.36
Silver ods. More 626
Smith V. Fire Commissioner of Newark 719
Smith V. Smith 282
Smith ads. Smith 282
Society for Establishing Useful Manufactures v. Board of Con-
servation & Development 469
Spada V. Pennsylvania Railroad Co 338
Splitdorf Electrical Co. v. King 421
Spocidio ads. DuPout De Nemours Co 438
Sprotte V. Delaware, Lackawanna & Western R. R. Co 720
Stanford ads. State 724
Standard Gas Power Corp. v. New England Casualty Co 570
Stark V. Fagan .♦. . 187
State V. DlMaria 341
State V. Fletcher 722
State V. Fish 17
State V. Frank 78
State V. Hart 261
State V. Hoffman ... * 338
State V. Hop 390
State V. Jefferson 507
State V. Johnson 21
State V. Lehigh Valley Railroad Co 340, 372
State V. Loomis 216
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xviii TABLE OP CASES REPORTED. [90 X. J. L.
state V. Monetti 582
State V. Nones 342
State V. Pullis 377
State V. Riccio 25
State V. Rodgers 60
State V. Serritella , 343
State V. Stanford ._^ 724
State V. Vreeland T 727
State Board of Assessors ads. Suburban Investment Co '. . 727
State Board of Dentistry ads. Lowrie 54
State Board of' Taxes & Assessments ads. Atlantic Coast Electric
Railway Co 35:^
Stote Board of Taxes, &c., ads. I^ng Dock Co 701, 702, 703
State Board of Taxes, &c., ads. Mausoleum Builders 163
State Board of Taxes, Ac., ads. Old Dominion Mining, &c., Co., 364
Steelman ads. Ray Estate Corporation 1S4
Strauss ads. Van Roden 64
Stuart V. Burlington County Farmers* Exchange 584
Suburban Investment Co. v. State Board of Assessors. . ,. 727
Superior Realty Co. ads. Burnett 660
Swiller v. Home Insurance Co 587
Syms V. West .Hoboken 130
T.
Temkin ads. Roth & Miller 39
Thorpe ads. Jersey City 520
Title Guaranty & Surety Co. v. Fusco Construction Co 630
Tuwnsend ads. Pennsylvania Railroad Co 75
Traud ads. Erwin '. 289
Trenton ads. Trenton & Mercer County Traction Corp 378
Trenton & Mercer Country Traction Corp. ads. Carton. ., 311
Trenton & Mercer County Traction Corp. ads. Trenton 378
Trout V. Paul 62
Tuckahoe National Bank ads. Sickler 336
V.
Van Hoogenstyn v. Delaware, Lackawanna & Western R. R. Co., 189
Van RoHen y. Strauss 64
Van Wagenen ads. Freeman 358
Verdon ads. Attorney-General 494
Vreeland ads. State 727
Vulcan Insurance Co. ads. Rabinowitz 332
W.
Warrington . ads. Rogers 653
Weber ads. Breidt Brewery Co 641
Western Union Telegraph Co. v. Public Utility Board 729
West Hoboken ads. Bauer 1
West Hoboken ads. Cahill 398
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90 X. J. L.] TABLE OP CASES REPORTED. xix
West Hoboken ads. McCarthy 398
West Hoboken ads. Syms 130
West Jersey Trust Co. v. Philadelphia & Reading Railway Co.. . . 730
West Orange ads. Eckert 545
Wheaton v. Collins 29
Whitaker v. Dumont 383
Whitcomb v. Brant 245
Whittingham v. Millburn Township 344, 348
WilwBynski v. Pennsylvania Railroad Ccf. *. 178
Wildwood & Delaware Bay R.'R. Co. ads. Hendee 325
Woodbridge v. Keyes •. 67
Woodbridge ads. Martin 414
Z.
Zabriskie v. Edwards 731
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TABLE OF CASES CITED
IN THIS VOLUME.
Ackerman v. Nutley 70 N. J. L. 438 IGO
Ackerson v. Erie Railroad Co 31 N. J. L. 309 141
Adcock V. Oregon R. & N. Co 77 Pac. 78 200
Adler y. TurnbuU & Co 57 N. J. L. 62 393
Agricultural Insurance Co. v. Potts, 55 N. J. L. 158 543, 585
Albright v. Sussex County Lake
Commission 71 N. J. L. 309 514
Allen V. City of MillvUle 87 N. J. L. 356 ; 88 Id. 693. . 455
Alleyne's Case Dears. Cr. Cas. Res. 505 263
Alsup V. Banks 13 L. R. A. 598. 251
American Malleables Co. v. Bloom-
field 83 N. J. L. 728 574
American Woolen Co. v. Edwards, 90 N. J. L. 69 293, 331, 365
Ames V. Kirby 71 N. J. L. 442. 80
Amparo Mining Co. v. Fidelity 74 N. J. Eq. 197; 75 Id.
Trust Co 555 564
Anderson v. Camden 58 N. J. L. 515 12
V. Myers 77 N. J. L. 186 425
Arkansas Cattle Co. v. Mann 130 U. S. 69 199
Armitage v. Essex Construction
Co 87 N. J. L. 134 ; 88 Id. 640. . 279
Atlantic City v. Rollins 76 N. J. L. 254 61
Augur & Simon, &c., v. East Jersey
Water Co 88 N. J. L. 273 '681
B.
Bailey v. Cascade Timber Co 35 Wash. 295 200
V. De Crespigny L. R. 4 Q. B. 178 535
Baldwin v. Thompson 70 N. J. I.. 447 200
Barnegat Beach Association v.
Busby 44 N. J. L. 627 98
Barracliflf v. Griscom 1 N. J. L. 193 1^3
Bartow v. Erie Railroad Co 73 N. J. L. 12 586
Batchelor v. Avon-by-the-Sea 78 N. J. L. 503 214
Beagle v. Lehigh, &c.. Coal Co.. . . 82 N. J. L. 707 456
Beloit V. Morgan 7 Wall. 619 145
Belt V. I/awes 12 Q. B. D. (1884) 356 199
Benjamin v. Storr 19 E. R. C. 263 204
Bennett v. Busch 75 N. J. L. 240 712
: V. Ives , 30 Conn. 329 244
V. Van Riper 47 N. J. Eq. 503 ^36
\X1
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xxii TABLE OF CASES CITED. [90N.J.L.
Berry v. Chamberlain 53 X. J. L. 463 393
Bigelow V. Perth Amboy 25 N. J. L. 297 552
Bird V. Magowan 43 Atl. Rep. 278 233
Blake v. Domestic Mfg. Co 64 N. J. Eq. 480 279
Blue V. Everett 55 N. J. Eq. 329 287, 544
Board of Health v. Cattell 73 X. J. L. 516 56
Bocchino v. Cook 67 N. J. L. 467 244
Bonnell v. Foulke 2 Sid. 4 249
Bonynge v. Frank 89 N. J. L. 289 425
Bork V. United New Jersey Rail-
road and Canal Co 70 N. J. L. 268 6qs">
Bostwick V. WUlett 72 N. J. L. 21 587
Bourgeois v. Freeholders of At-
lantic 82 N. J. L. 82 276. 551
Bowlsby V. Speer 31 N. J. L. 351 624
Boylan v. Xewark 58 N. J. L. 133 402
Brewer v. Elizabeth 66 N. J. L. 547 214
Brewing Improvement Co. v. Board
of Assessors 65 X. J. L. 466 73, 366
Brewster v. Sussex Railroad Co.. . 40 N. J. L. 57 160
V. VaU 20 N. J. L. 56 583
Bridgeton v. Fidelity Company. . . 88 N. J. L. 645 585
V. Traction Co 62 N. J. L. 592 534
Bright V. Flatt 32 N. J. Eq. 362 84
Brine v. Hartford Insurance Co.. . 96 TJ. S. 627 286
Broadway Bank v. McElrath 13 N. J. Eq. 24 562
Brown v. Atlantic City 71 N. J. L. 81 101
V. Atlantic City 72 X. J. L. 207 101
V. Erie Railroad Co 87 X. J. L. 487 212, 460
Brown v. Xew Jersey Short Line
Railroad Co 76 N. J. L. 795. 464
Brown v. State 62 X. J. L. 666 374
V. Union 65 X. J. K 601 214
Buchanan v. Buchanan 73 X. J. Eq. 544 488
V. Tilden 18 App. Div. (X. Y.) 123. . 43
Budd V. Camden 69 X. J. L. 193 108
V. Hiler 27 X. J. L. 43 200
Bullock V. Biggs 78 X. J. L. 63 310
Burrough v. Xew Jersey Gas Co. . . 88 X. J. L. 643 466
Butterhof v. Butterhof 84 X. J. L. 285 205
Byam v. Bullard 1 Curt. 101 250
C.
Cahill v. Eastman 18 Minn. 324 622
Camdeu v. Public Service Railway
Co 82 X. J. L. 246. 534
Carew v. Rutherford 106 Mass. 1 244
Carey v. Wolff & Co 72 X. J. L. 510 543. 585
Carr v. Edwards 84 X. J. L. 667 564
V. Pennsylvania Railroad Co., 88 X. J. L. 235
293. 321. 326. 327, 329, 330. 338
Carson v. Scully 89 X. J. I^ 458 121. 295
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90 X. J. L.] TABLE OF CASES CITED. xxiii
Carter v. Executors of Denman. . . 23 N. J. L. 260 287
Caruso v. Montclair. 90 N. J. L. 355 313
Cashman v. New York, New Haven
& Hartford Railroad Co 87 N. E. Rep. 570 316
Castner v. Sliker 33 N. J. L. 507 314
Caswell V. Worth 5 E. & B. 849 250
Cavanaugh v. Essex County 58 N. J. L. 531 523
Cemetery Co. v. Newark 50 N. J. L. 66 363
Central Railroad Co. v. MacCart-
ney . . r. 68 N. J. L. 165 76
Chandler v. Monmouth Bank 9 N. J. L. 101 191
Chicago City R. Co. v. Gemmill. . . 209 111. 638 199
Ciesmelewski v. Domalewski 90 N. J. L. 34 351
City Bank of Bayonne v. O'Mara. . 88 N. J. L. 499 66, 393
City of Paterson v. Baker 51 N. J. Eq. 49 144
Civil Service Commission v. O'Neill, 85 N. J. L. 92. 425
Clark V. City of Washington 12 Wheat. 40 279
Clay V. Civil Service Commission, SS N. J. U 502; 89 Id. 194. . 426
V. Edwards 84 N. J. L. 221 447
Clayton v. Clark 55 N. J. L. 539 239
Coggs v. Bernard 2 Ld. Raym. 909 561
Cook V. Manasquan 80 N. J. L. 206 385
Cole V. Ellwood Power Co 216 Pa. St 283. 467
Collins V. T^ngan. . .-. 58 N. J. L. 6 160
Columbia Mill Co. v. National
Bank of Coyimerce 52 Minn. 224 279
Commercial Trust Co. v. Board of
Taxation 87 N. J. L. 179 174
Commonwealth v. Gouger 21 Pa. Super. Ct. 217 304
V. Horsfall 213 Mass. 232 62
Commonwealth v. Illinois Central
Railroad Co 152 Ky. 320.^ 376
Commonwealth v. Rowe 112 Ky. 482 509
Conover v. Public Service Railway
Co 80 N. J. L. 6S1 299
Conover v. Solomon 20 N. J. L. 295 583
Consolidated Oas, &c.. Co. v.
Blanda S9 N. J. L. 104 135
Cooper Hospital v. Camden 70 N. J. L. 478. 429
Cortelyou v. Tensing 2 Cai. Cas. 200 566
Cory V. Freeholders of Somerset ... 44 N. J. L. 445 276
County V. Borax Company 68 N. J. L. 273. 90
Coykendall v. Robinson 39 N. J. L. 98 223
Crater v. Binninger. 33 N. J. L. 513 244
Creveling v. DeHart 54 N. J. L. 338 248
Croasdale v. Quarter Sessions 88 N. J. L. 50(5; 89 Id. 711. . 495
Cromwell v. Sac County 94 U. S. 351 144
Crosby v. City of East Orange. . . 84 N. J. L. 70S 465
Ci-ossley v. Connolly Co 89 N. J. I.. 55 238
V. Connolly Co 90 N. J. L. 238 136
Curley v. Mayor, &c., Jersey City. . 83 N. J. L. 760 467
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xxiv TABLE OF CASES CITED. [90 N. J. L.
Dale V. Pattison 234 U. S. 399 563
Dallas V. Newell 65 N. J. L. 172 215
Dallas V. Sea Isle City 84 N. J. L. 679 551
Danskin v. PennsylTania Railroad
Co 83 N. J. L. 522 4(30
Dederick v. Central Railroad Co.. . 74 N. J. Jm 424 ! . 545
Defiance Fruit Co. v. Fox 76 N. J. L. 482 190, 493
DeGray v. Murray 69 N. J. L. 458 480
Delaware, Lackawanna & Western
Railroad Co. v. Board of Public
Utility Commissioners 85 N. J. L. 28 37
Delaware, &c., Railroad Co. v.
Shelton 55 N. J. L. 342 2S2
Delaware, I^cka wanna & Western
R. R. Co. V. Trautwein. 52 N. J. L. 169 140
Delaware River Transportation Co.
V. Trenton 86 N. J. L. 48 ; Id. 079 45
Demars v. Koehler 62 N. J. L. 203 287
DeMateo v. Perano 80 N. J. L. 437 200
Demster v. Freeh 51 N. J. L. 501 215
Den, ex dem. Lee, v. Evaul 1 N. J. L. 286 5K3
Den V. Pond 1 N. J. L. 379 583
V. Schenck 8 N. J. L. 29 009
Dennery v. Great Atlantic & Pa-
cific Tea Co , 82 N. J. L. 517. .'. r.S7
Dennis v. Miller 68 N. J. L. 320 247
De Raismes v. De Raistnes 70 N. J. L. 15 12
Devlin v. Wilson 88 N. J. L. 180 517
Dewey v. Great I^akes Coal Co 236 Pa. St. 498 4(57
Dickinson v. Erie Railroad Co.. . . 85 N. J. L. 586 150, 712
Dixon V. Russell. .* 79 N. J. L. 490 564
Doane v. Millville Insurance Co. . . 45 N. J. Eq. 274 (>2S
Dobkin v. Dittmers 76 N. J. K 235 351
Dodd V. Una 40 N. J. Eq. 672 498
Donald v. Suckling L. R. 1 Q. B. 585 562
Donnell v. Wyckoff 49 N. J. L. 48 562
Donnelly v. Currie Hardware Co., 65 N. J. L. 388 381
Dordoni v. Hughes 83 N. J. L. 355 648
Douglass V. Freeholders of Essex. . 38 N. J. L. 214 310
Drummond*8 Executor v. Drum-
mond '. 26 N. J. Eq. 234 610
Dunham v. Bright 85 N. J. L. 391 425
Dunnewald v. Henry Steers. Inc.. . 89 N. J. L. 601 659
Durkin v. Fire Commissioners of
Newark 89 N. J. L. 468. . . .670, 674. 719
E.
Eames v. Stiles 31 N. J. L. 490 213, 493
Earle v. Consolidated Traction Co., 64 N. J. L. 573 290
V. Durham 89 N J. L. 4 317, 319
East Jersey Water Co. v. Bigelow, 60 N. J. L. 201 5S6
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90 N. J. L.] TABLE OF CASES. CITED. xxv
Easton & Amboy Railroad Co. v.
Greenwich 25 N. J. Eq. 565 85
Eaat Orange v. Hussey 70 N. J. L. 244 CO, 190
Eberling v. MutiUod 90 N. J. L. 478 706
Eggert V. McHoae 80 N. J. L. 101 393
Elizabeth v. Meeker 45 N. J. L. 157 214
Elvins V. Delaware, &c., Tel. Co.. . 63 N. J. L. 243 4&4
Emanuel v. McNeU 87 N. J. L. 499 302
Erie Railroad Co. v. Board of Pub-
lic Utility Commissioners 89 N. J. K 57 434. 672, 673
Erie Railroad Co. v. Paterson 72 N. J. L. 83 363
Erie Railroad Co. v. Public Util-
ity Board 87 N. J. L. 438 271
Erie Railroad Co. v. Wanague
Lumber Co 75 N. J. L. 878 78
Erie Railroad Co. v. Welsh 242 U. S. 303 ; 530
— V. Winfield. ... 88 N. J. L. 619; 244 U. S.
170 451, 659, 713, 73()
Erwin v. Jersey City 60 N. J. L. 141 523
Ex parte Barker 7 Cow. 143 264
Fisk 113 U. S. 713 504
Exton V. Central Railroad Co 62 N. J. L. 7; 63 Id. 356. . .
140, 3SK
Fagan v. Cadmus 46 N. J. L. 441 ; 47 Id. 549. . 287
Fairfield v. County of Gallatin. ... 100 U. S. 47 369
Faist V. Hoboken 72 N. J. L. 361 412
Feeney v. Bardsley 66 N. J. L. 239 106
Fennen v. Atlantic City 88 N. J. I^ 435
674, 675, 676, 077
Ferguson v. Central Railroad Co., 71 N. J. L. 647 141
Femetti v. West Jersey, &c., Rail-
road Co •. 87 N. J. L. 268 460
Ferretti v. Atlantic City 70 N. J. L. 489 101
Fifth Ward Savings Bank v. E^rst
National Bank 48 N. J. I^ 513 278
Fitzgerald v. Salentine 10 Met. 436 89
Flanigan v. Guggenheim Smelting
Co 63 N. J. L. 647 202, 700
Fletcher v. Rylands L. R. 1 Ex. 265 621
Florence Mining Co. v. Brown. ... 124 U. S. 385 628
Fonsler v. Atlantic City 70 N. J. L. 125 101
Fort V. Common Pleas 89 N. J. L. 144 98
Foster v. United States 101 C. C. A. 485 233
Fowle V. Freeman 9 Ves. 351 aS2
Frank et al. v. Herold 64 N. J. Eq. 371 499
Fredericks v. Board of Health. . . . 82 N. J. L. 200. 523
Freeholders of Sussex v. Strader. . 18 N. J. L. 108 019
Freeman v. United States 217 U. S. 539 57
French v. Robb 67 N. J. L. 260 654
Friedman v. North Hudson County
Railway Co 65 N. J. T.. 298 282
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xxvi TABLE OF CASES CITED. [90 N. J. L.
Fritte V. Kuhle 51 N. J. L. 191 12
Fry V. Miles , 71 N. J. L. 293 250
Funck V. Smith 46 N. J. L. 484 504
Gallagher v. McBride 66 N. J. L. 360 548
Gannon v. Hargadon 10 Allen 106 623
Gardner v. Inhabitants of Brook-
line 127 Mass. 358 467
Gerisch v. Herold 82 N. J. L. 605 197
Ghegan v. Young 23 Pa. St. 18 247
Gibson v. Snow Hardware Co 94 Ala. 346 278
Gillespie v. J. W. Ferguson Co 78 N. J. L. 470 146
Godfrey v. Freeholders of AUantic, 89 N. J. L. 511 517
Gorham v. Gross 125 Mass. 232 022
Gould V. Oliver 4 B. N. C. 134 250
Grant v. Grant 84 N. J. Eq. 81 156
V. Wood 21 N. J. L. 292 76
Gratz V. Wilson 6 N. J. L. 419 583
Gray v. Bridge 11 Pick. 188 493
Gregory v. New York, Lake Erie
& Western Railroad Co -. 40 N. J. Eq. 38. 565
Green v. City of Cape May 41 N. J. L. 45. 277
Greenfield v. Gary 70 N. J. L. 613 34, 351
Griffin v. Griffin 18 N. J. Eq. 104 286
Groves v. Cox 40 N. J. L. 40 6i0
Guarraia v. Metropolitan I-ife Ins.
Co 90 N. J. L. 682 685
Gulick V. rx)der 13 N. J. L. 68 287, 544
H.
Hackettstown v. Swackhammer ... 37 N. J. L. 191 550
Hadley v. Freeholders of Passaic. . 73 N. J. L. 19T 467
Haight V. Love 39 N. J. L. 14 425
riallock V. Insurance Company. . . 26 N. J. L. 268; 27 Id. 645. . 589
Halsey v. Lehigh Valley Railroad
Co 45 X. J. L. 26 542
Hamilton Twp. v. Mercer County
Traction Co 88 N. J. L. 485 531
Handford v. Duchastel 87 N. J. L. 205 493
Ilannon v. Boston Railroad Co.. . . 65 N. E. Rep. 809 310
Hansen v. DeVita 76 N. J. L. 330 475
Hardin v. Morgan 70 N. J. L. 484 ; 71 Id. 342. .
73, 366
Harmon v. Board of Pharmacy. . . 67 N. J. L. 117 449
Harrington's Sons Co. v. Jersey
nty 78 N. J. Ix 610 412
Harris v. Atlantic City 73 N. J. L. 251 101
Hartshorn v. Cleveland 52 N. J. L. 473 ; 54 Id. 391 . . 287
Haslack v. Mayers 26 N. J. I^ 284 250
Hasselbusch v. Mohmking 76 N. J. L. 691 287
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90 N. J. L.] TABLE OF CASES CITED. xxvii
Hatfield v. Central Railroad Co.. . 33 N. J. L. 251 IGO
Haulenbeck v. Cronkright 23 N. J. Eq. 407 ; 25 Id. 513, 465
HeUer v. Duff 62 N. J. L. 101 18
Hendee v. Wildwood & Delaware
Bay R. R. Co 80 N. J. L. 32 325
Hendrickson v. Public Service Rail-
way Co 87 N. J. L. 366 667
Herbert v. Atlantic City 87 N. J. L. 98 112
Herbert v. Mechanics Building &
Loan Association 17 N. J. L. 497 563
Herr v. Board of Education 82 N. J. L. 610 84
Hershenstein v. Hahn 77 N. J. L. 39 393
Hetxel V. Wasson Piston Ring Co., 89 N. J. L. 205 640
Heyder y. Excelsior Building and
Loan Association 42 N. J. Eq. 408 616
Hill Dredging Co. v. Ventnor aty, 77 N. J. Eq. 467 551
Hinds ▼. Henry 36 N. J. L. 328 360
Hoboken v. Gear 27 N. J. L. 265 523
Hoboken Land and Improvement
Co. V. Mayor, &c., of Hoboken. . 36 N. J. L. 540 a54
riohenstatt v. Bridgeton 62 N. J. L. 169 72, 40»
Holmes v. Pennsylvania Railroad
Co 74 N. J. I^ 469 460
Hooper v. Accidental Death Insur-
ance Co 5 Hulst. & N. 546 599
Hopewell v. Flemington 69 N. J. L. 597 108
Hopper V. Edwards 88 N. J. L. 471 564
Horandt v. Central Railroad Co. . . 81 N. J. L. 488 460
Horner v. Lawrence 37 N. J. K 46 244
Houman v. Schulster 60 N. J. L. 132 98
Howe V. T»(orthern Railroad Co.. . . 78 N. J. L. 683 460
Howe V. Treasurer of Plainfield. . 37 N. J. L. 145 61
Huebner v. Erie Railroad Co.. . .', . 69 N. J. L. 327 543
Hulley V. Moosbrugger 88 N. J. L. 161 230, 453
Hunt V. Gardner 39 N. J. L. 530 247
I.
Illinois Central Railroad Co. v.
Peery 242 U. S. 292 530
IngersoU v. English 66 N. J. K 463 487
Ingraham v.* Weidler 139 Cal. 588 200
In re Ames* Estate 141 N. Y. Supp. 793 561
Barre Water Co 62 Vt. 29 132
Cheeseman 49 N. J. L. 115 497
Commissioners of Trenton. . 17 N. J. L. J. 23 418
Penfold's Estate 216 N. Y. 171 569
Verdon 89 N. J. L. 16 494
Walsh's Estate 80 N. J. Eq. 565 145
In the matter of Whiting 150 N. Y. 27 567
Island Heights and Seaside Park
Bridge Co. v. Bfooks and Brooks, 88 X. J. li. 613 310
Izer V. State 77 Md. 110 583
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xxviii TABLE OF CASES CITED. [90 N. J. L.
Jackson v. State 49 N. J. L. 252 374
V. Traction Co 59 N. J. L. 25 200
Jacobson v. Hayday 83 N. J. L. 537 654
Jaqui V. Benjamin 80 N. J. L. 10 286
Jennings v. Rundall 8 Term Rep. 335 33
Jersey City v. Harrison 71 N. J. L. 69 ; 72 Id. 185. . 279
V. MontviUe 84 N. J. L. 43; 85 Id. 372. . 72
Jersey City v. North Jersey Street
RaUway Co 72 N. J. L. 383 693
Jersey City Supply Co. v. Jersey
City 71 N. J. L. 631 275
Jessup V. Bamford Brothers Co. . . 66 N. J. L. 641 623
Johannes v. Phoenix Insurance Co.
of Brooklyn 66 Wis. 50 129
Jobanson ▼. Atlantic City Railroad
Co 73 N. J. L. 767 655
Johnson v. Shields. 25 N. J. L. 116 149
V. State 59 N. J. L. 535 514
V. Van Horn 45 N. J. L. 136 409
Jones V. Mount HoUy Water Co.. . 87 N. J. L. 106 543
V. Rushmore 67 N. J. L. 157 247
Kargman v. Carlo 85 N. J. L. 632 313
Kearns v. Edwards 28 Atl. Rep. 723 120
Keeney v. Delaware, Lackawanna
& Western RaUroatf Co 87 N. J. L. 505 713
Kehoe v. Rutherford 74 N. J. L. 659 208
V. Rutherford 56 N. J. L. 23 577
Kells Mill and Lumber Co. v.
Pennsylvania Railroad Co 89 N. J. L. 490 325
Kelly V. Arbuckle 78 N. J. L. 94 526
Key V. Paul *. . 61 N. J. L. 133 190
King V. Archbishop of York Willes Rep. 533 262
V. Atlantic City Gas Co. . . . 70 N. J. L. 679 543
V. Hodgson et al 1 Leach Cr. Cas. 6 263
King V. The Inhabitants of Pres-
ton Rep. Temp. Hardw. 249 262
Kinney, Admr., v. Central Railroad
Co 34 N. J. L. 273 349
Kirby v. Garrison 21 N. J. L. 179 157
Klemm v. Newark 61 N. J. L. 112 551
Klitch V. Betts 89 N. J. L. 348 633, 662
Kloepping v. Stellmacher 36 N. J. L. 176 90
Knight V. Cape May Sand Co 83 N. J. L. 597 493
Koettegen v. Paterson 90 N. J. L. 698 669
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90 X. J. L.J TABLE OF CASES CITED. xxix
Laing v. United New Jersey Rail-
road, &c., Co 54 N. J. L. 576 465
T^Ddry v. New Orleans Shipwright
Co 112 La, 515 200
Une V. Otis 68 N. J. L. 656 515
r^iragay v. East Jersey Pipe Co. . 77 N. J. L. 516 182
Lamed v. MacCarthy 85 N. J. L. 589 480, 706
I^wrence v. Union Insurance Co. . 80 N. J. L. 133 574
I^wson V. Carson 50 N. J. Eq. 370 616
Leeds v. Altreuter 84 N. J. L. 722 99
Lehigh, &c.. Co. v. Stevens Co 63 N. J. Eq. 107 628
Lewis V. Pennsylvania Railroad
Co. 76 N. J. L. 220 159
Lightcap V. Lehigh Valley Rail-
road 87 N. J. L. 64 624
Inndley et al. v. Keim et al 54 N. J. Eq. 418 361
Livermore v. Board of Freeholders
of Camden 31 N. J. L. 507 133
Lloyd V. Hough 1 How. 153 249
liomerson v. Johnston 47 N. J. Eq. 312 170
liOng Dock Co. v. State Board of
Assessors 89 N. J. L. 108
466, 701, 702, 703
Ix^uisville & Nashville, &c., Rail-
road Co. V. Motley 219 U. S. 467 535
Louisville & Nashville Railroad Co.
V. Parker 242 U. S. 13 452, 530
I^see V. Buchanan 51 N. Y. 476. 622
Loweree v. Newark 38 N. J. L. 151 215
Luther v. Clay 39 L. R. A. (Ga.) 95 543
Mc. •
McCormack v. Williams 88 N. J. L. 170 713
McCoy V. Milbury ' 87 N. J. L. 697 578
McCracken v. Richardson 46 N. J. L. 50 90
McCrea v. Yule 68 N. J. L. 465 563
McCurdy v. McCurdy 197 Mass. 248 569
McGovern v. Board of Works 57 N. J. L. 580 413
McLaughlin v. Cross 68 N. J. L. 599 602
Mclx^an v. Erie RaUroad Co 69 N. J. L. 57; 70 Id. 337. . 460
McMichael v. Barefoot 85 N. J. Eq. 139 143
M.
Mabon v. Halstead 39 N. J. L. 640 96
Mackinson v. Conlon 55 N. J. L. 564 197
MacLear v. Newark 77 N. J. L. 712 551
Maguth V. Freeholders of Passaic, 72 N. J. L. 226 619
Manahan v. Watts 64 N. J. L. 464 516
Manda v. City of East Orange 82 N. J. L. 686 467
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XXX TABLE OF CASES CITED. [90 X. J. L.
Manda v. Delaware, Lackawanna
& Western Railroad Co 80 N. J. I.. 327 4G4
Mart)le v. Ross 124 Mass. 44 481
Marshall v. Wellwood 38 N. J. I^ 339 G22
Materka v. Erie Railroad Co 88 N. J. L. 372 458
Matthews ▼. Delaware, T^cka-
wanna & Western Railroad Co. . 56 N. J. L. 34 GSl
Mausoleum Builders v. State
Board 88 X. J. L. 592 ; t)0 Id. 163 . .
163. 420
Maxwell v. Edwards 89 N. J. L. 446 5S0, 707
May V. West Jersey, &c., Railroad
Co 62 N. J. L. 67 200
Mechanics* Building & Loan Asso-
ciation V. Conover 14 N. J. F^q. 219 563
Meehan v. Excise Commissioners. . 73 N. J. U 382 304
aleeker v. Spaulsbury 66 N. J. L. 60 247
Mehrhof v. Delaware, Lackawanna
& Western Railroad Co 51 N. J. L. 56 204
Meisel v. Merchants National
Bank 85 N. J. U 253 563
Melick ▼. Metropolitan life Insur-
ance Co 84 N. J. L. 437 ; 85 Id. 727. . 647
Meliski v. Sloan 47 N. J. L. 82 154
Memphis, &c., Railroad Co. v. Com-
missioners 112 V. S. 609 164
Mercantile Bank v. Tennessee 161 U. S. 161 164
Metzger v. Huntington 139 Ind. 501 278
Meyer v. State 41 N. J. L. 6 62
Miller v. Delaware Transportation
Co 85 N. J. L. 700 313
Miller v. Morristown 47 N. J. Eq. 62 ; 48 Id. 645 . . 207
Minneapolis & St. Jjouis Railroad
Co. V. Winters 242 U. S. 353 530
Mitchell V. Erie Railroad Co 70 N. J. L. 181 . . . .- 493
Monmouth Park Association v.
Wallis Iron Works 55 N. J. L. 132 195
Moore v. Camden, &c.. Railway
Co 73 N. J. L. 599 655
Moran v. Jersey City 58 N. J. U 653 213
Mores v. Conham Owen 123 : 561
Morgan v. I>ouisiana 93 U. S. 217 164
Moriarity v. Orange 89 X. J. L. 385 328
Morrell v. Preiskel 74 Atl. Rep. 994 466
Morris v. Joyce 63 N. J. Eq. 549 279
V. Quick 45 X. J. L. 308 602
Morris and Essex Railroad Co. v.
Central RaUroad Co 31 N. J. L. 205 86
Morwitz V. Atlantic aty 73 N. J. L. 254 101
Mount Pleasant Cemetery v. New-
ark 89 N. J. L. 255 430
Moses V. Macferlan 2 Burr. 1005 249
Mundy v. Fountain 76 N. J. L. 701 471
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90N.J.L.] TABLE OF CASES CITED. xxxi
Murphy v. Cane 82 N. J. L. 557 278
Mutual Benefit life Ins. Co. v.
Rowand 26 N. J. Eq. 389 ; 27 Id.
e(>4 90
Mygatt V. Coe 63 N. J. L. 510 89
N
National Docks Co. v. United Com-
panies 53 N. J. L. 217 84
National Papeterie Co. v. Kinsey. . 54 N. J. L. 29 601
National Railway Co. v. E. & A.
Railroad Co 36 N. J. L. 181 84
Neilson v. Russell 76 N. J. L. 27 ; Id. 655. .12, 564
Nevich v. Delaware, &c., Railroad
Co 90 N. J. 1.. 228 453
Newark v. Clinton 49 N. J. L. 370 ^3
V. Kazinski 86 N. J. L. 59 521, 671
V. Lyons 53 N. J. L. 632 402
Newark v. New Jersey Asphalt
Co &3 N. J. L. 458 197
Newark v. North Jersey Street
Railway Co 73 N. J. L. 265 534
New Brunswick v. McCann i . 74 N. J. L. 171 671
NeweU v. Clark 46 N. J. L. 363 200
New Jersey v. Anderson 203 U. S. 483 294. 369
New Jersey Car Spring Co. v. Jer-
sey aty 64 N. J. L. 544 275
New Jersey Flax Cotton Wool Co.
V. MiUs 26 N. J. L. 60..... 200
New Jersey Zinc Co. v. I^high
Zinc Co 59 N. J. I.. 189 464
Newman v. Fowler 37 N. J. L. 89 681
Newmann v. Hoboken 82 N. J. L. 275 699
New York Bay Railroad Co. v.
Newark 82 N. J. L. 591 363
New York Central Railroad Co. v.
Carr 238 U. S. 260 452, 530
New York and New Jersey Water
Co. V. Hendrickson.- 88 N. J. L. 595 365. 537
New York, Susquehanna & West-
ern Railroad Co. v. Paterson. . . 86 N. J. L. 101 551
Nichols V. Marshland. 2 Ex. D. 1 622
Norfolk, &c., Railway Co. v. Davis, 58 W. Va. 620 467
Northern Pacific Railway Co. v.
Meese 239 U. S. 614 369
Noxon V. Remington 61 Atl. Rep. 963 199
O.
Ocean Castle v. Smith 58 N. J. L. 545 227
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xxxii TABIiE OF CASES CITED. [90 X. J. L.
P.
Packard v. Bergen Neck Railway
Co 54 N. J. L. 553 468
Paddock v. Hudson Tax Board. . . 82 N. J. I^ 360 402
Parisen v. New York, &c., Railroad
Co 65 N. J. L. 413 287
Park I^nd Corporation v. Mayor,
&c., of Baltimore 98 Atl. Rep. 157 400
Paterson v. Madden 54 N. J. Eq. 714 GOO
Paterson and Passaic Gas Co. v.
Board of Assessors 09 N. J. L. 116 354
Patterson v. Close 84 N. J. L. 319 32()
Payne v. Hall 82 N. J. L. 362 : 247
Penn Coal Co. v. Sanderson 113 Pa. St. 126 023
Pennsylvania, New Jersey and New
York Railroad Co. v. Schwarz. . 75 N. J. L. 801 400
Pennsylvania Railroad Co. v. Herr-
mann 89 N. J. L. 582 37
Pennsylvania Railroad Co. v. Root, 53 N. J. L. 253 405
v. Titus, 156 App. Div. 830 78
Pennsylvania T. & T. R. R. Co. v.
Hendrickson 87 N. J. L. 239 59
People V. Corning 2 N. Y. 9 268
V. Darragh l26 N. Y. Supp. 522 02
People V. Globe Mutual Insurance
Co 91 N. Y. 174 628
People V. Holbrook 13 Johns. 90 264
People V. Rochester Railway &
Light Co 195 N. Y. 102 375
People V. Sturtevant 9 N. Y. 263 504
-; V. Vermilyea 7 Cow. 108 204
Peoples Bank v. Mitchell 73 N. Y. 400 250
Peoples Bank & Tru.st Co. v. Pas-
saic County Board of Taxation. 90 N. J. L. 171 332
Perry v. I^vy 87 N. J, L. 670 209, 725
Pettinger v. Alpena Cedar Co 175 Mich. 162 279
Poillon V. Rutherford 58 N. J. T.. 113 409
Picard v. East Tennessee, &c..
Railroad Co 130 U. S. 637 160
Pipe Line Cases 234 U. S. 548 539
Piver V. Pennsylvania Railroad Co.. 76 N. J. L. 713 282
Pleasantville v. Atlantic City
Traction Co 75 N. J. I.i 279 5.34
Pool V. Brown 89 N. J. L. 314 290
Potter V. Board of I*ublic Utility
Commissioners 89 N. J. L. 157 434
Powe V. State 48 N. J. I^ 34 217, 391
Powers V. Hotel Bond Co 89 Conn. 143 4."i<»
Public Service Gas Co. v. Board of
Public Utility Commissioners. . . 84 N. J. L. 463; 87 N. J. L.
.181: Id. 597 272
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90 X. J. L.] TABLE OF CASES CITED. xxxiii
Public Service Railway Co. v. Pub-
lic XJtiHty Board 88 N. J. L. 24 715
Purdy V. People 4 Hill 384 299
R.
Raab v. Ellison 89 N. J. L. 416 71(5
Rabinowitz v. Hawthorne 89 N. J. I^. 308 291, 5SG
Rafferty v. Bank of Jersey City. . 33 N. J. L. 368 200
V. Erie RaUroad Co 66 N. J. L. 444 200
Rahway Savings Institution v.
Rahway 53 N. J. L. 48 47u,
Ranson v. Black 54 N. J. L. 446 ,. . . 514
Raphael v. Lane 56 N. J. L. 108 240
Re Pigott 11 Cox. Cr. Cas. 311 267
Reading, &c.. Railroad Co. v.
Balthaser 119 Pa. St. 472; 126 Id. 1. . 467
Reed v. Camden 53 N., J. L. 322 257
V. Saslaflf 78 N. J. L. 158 101
Reeves v. Ferguson 31 N. J. L. 107 5S3
Reg. V. Bernard • 1 F. & F. Cr. Cas. 240 264
Regina v. Chadwick 11 Q. B. 205 26S
Regina v. Great Western laundry
Co 13 Man. 66 376
Regina v. Houston 2 Craw. & Dix. 191 268
^ V. Mills 10 CI. & F. 534 2(]S
Reiman v. Wilkinson, Gaddis & Co., 88 N. J. U 383 393
Rex V. Wilkes 4 Burr. 2527 267
Ridgeway v. Wharton 6 H. L. Cas. 238 381
Riley v. (*amden, &c., Railway Co., 70 N. J. U 289 466
V. Trenton 51 N. J. L. 498 61
Robertson v. Wilcox 36 Conn. 426 563
Robinson v. Hulick: 67 N. J. L. 496 410
Rosedale Cemetery Co. v. Linden. . 73 N. J. U 421 429
Rosentaum v. Credit System Co.. . 61 N. J. L. 543 629
Rosencrans v. Eatontown 80 N. J. L. 227 690
Rounsaville v. Central Railroad
Co 87 N. J. L. 371 176
Rounsaville v. Central Railroad
Co 90 N. J. L. 176 451, 659
Ruane v. Erie RaUroad Co 83 N. J. L. 423 594
Ruby V. Freeholders of Hudson. . . 88 N. J. L. 481 335
Runyon v. Central Railroad Co. . . . 25 N. J. L. 556 352
Russell V. Mechanics Realty Co.. . 8g N. J. L. 532 393
Rutherford v. Hudson River Trac-
tion Co 73 N. J. L. 227 534
Rutkowsky v. Bozza 77 N. J. L. 724 12
Ryan v. Flanagan, Administratrix, 38 N. J. L. 161 185
V. Remmey 57 N. J. L. 474 579
Ryerson v. Bathgate 67 N. J. L. 337 254
V. Morris Canal Co 71 N. J. L. asi 340
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xxxiv TABLE OF CASES CITED. [90 X. J. L.
8.
Safford v. Barber 74 N. J. Eq. 352 565
St. Louis, &c., Railway Co. v. Car-
ton Real Estate Cx) 204 Mo. 565 467
St. Vincent's Church v. Borough of
Madison 86 N. J. L. 567 156
Salter v. Burk 83 N. J. L. 152 14
Saunders v. Smith Realty Co 84 N. J. L. 276 254, 662
Schenck v. Strong 4 N. J. L. 87 33
Sehnatterer v. Bamberger & Co 81 N. J. L. 558 594
Scrieber v.* Public Service Railway
Co 89 N. J. L. 183 488
Seastream v. New Jersey Exhibi-
tion Co 72 N. J. Eq. 377 495
Seattle. &c., Railroad Co. v. Roeder, 30 Wash. 244 467
Security Trust Co. v. Edwards. . . 89 N. J. L. 396 558
Seddel v. Wills 20 N. J. L. 223 611
Senflf V. Edwards 85 N. J. L. 67 5S1
Sewell V. Burdick 54 L. J. Q. B. 156 562
Sexton V. Newark District Tele-
graph Co 84 N. J. L. 85 230
Seymour v. Goodwin 68 N. J. Eq. 189 185
Shanks v. Delaware, Lackawanna
& Western Railroad Co 239 U. S. 556 452, 530
Share v. Anderson 7 Serg. & R. 43 287
Shill Rolling Chair Co. v. Atlantic
City 87 N. J. L. 399 698
Siciliano v. Neptune Township 83 N. J. L. 158 699
Simpson v. Jersey City Contracting
Co ia5 N. Y. 19^ 566
Sir Henry Vane's Case 1 T^v. 68 262
SkUlman v. Baker 18 N. J. L. 134 157
Slaughter House Cases 16 Wall. 36 109
Small V. Housman 208 N. Y. 115 278
Smelting Company v. Commission-
ers of Inland Revenue 65 L. J. Q. B. 513; 66 Id.
137 567
Smith V. Corbett 59 N. J. L. 5S4 98
V. Hunt 32 R. I. 326 247
V. Newark 33 N. J. Eq. 545 216
V. Telephone Co 64 N. J. Eq. 770 585
V. Wahl 88 N. J. L. 623 287
Smith & Bennett v. State 41 N. J. L. 370 .343
Southern Pacific Co. v. Industrial
Accident Commission 161 Pac. Rep. 1139 452
Southern Pacific Co. v. Industrial
Accident Commission 161 Pac. Rep. 1142 452
Sparkman v. Gove 44 N. J. L. 252 287
Spencer v. Morris 67 N. J. L. 500 393
Standard Amusement Co. v.
Champion 76 N. J. L. 771 586
Stark V. Pagan 80 N. J. L. 29 187
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90 X. J. L.] TABLE OF CASES CITED. xxxv
V. Lincoln 2 Pick. 267 250
Starr v. Camden, &c., Railroad
Co 24 N. J. L. 5d2 654
State V. Anderson 40 N. J. L. 224 61
V. Arthur 70 N. J. L. 425 464
V. Blake 35 N. J. L. 208 ; 36 Id. 442. . 102
V. Bovino 89 N. J. L. 586 218
V. CaUahan 77 N. J. L. 685 82
V. Calvin 22 N. J. L. 207 22
V. Campbell 82 Conn. 671 62
V. Codington 80 N. J. L. 496; 82 Id. 728. . 378
V. Davis 72 N. J. L. 345 ; 73 Id. 680. . 304
V. Di Maria 88 N. J. K 416 341
V. Erie Railroad Co 83 N. J. L. 231 ; 84 Id. 661 . . 373
V. Guild 10 N. J. L. 175 265
V. Hart 88 N. J. L. 48 261
V. Heyer 89 N. J. L. 187. . . .139, 145, 150
V. Howard 32 Vt. 380 217
V. Hummer • 73 N. J. L. 714 314
V. Jefferson 88 N. J. L. 447 507
. V. Kelly 84 N. J. L. 1 391
V. Kroll 87 N. J. L. 330 343
State V. Lehigh Valley Railroad
Co 89 X. J. L. 48 ; 90 Id. 340,
340, 373
State V. Loomis 89 N. J. L. 8 210
V. Lovell 88 N. J. L. 353 343
V. McCarthy 76 N. J. L. 295 377
V. MandeviUe 89 N. J. L. 228 217
V. Meyer 65 N. J. L. 233 269
State V. Morris and Essex Railroad '
Co 23 N. J. I'.. 360 373
State V. Murphy 27 N. J. L. 112 217
V. Nones 88 N. J. L. 460 342
State V. Passaic County Agricul-
tural Society 54 N. J. L. 260 373
State V. Pisaniello 88 N. J. L. 262 370
V. Rachman 68 N. J. L. 120 339
V. Randall 53 N. J. L. 485 61
V. Randolph 25 N. J. L. 427 59
V. ReUly 88 N. J. L. 104 583
V. Rickey 10 N. J. U 83 378
V. Schutte 87 N. J. L. 15 ; 88 Id. 396. . 62
■ V. Serritella 89 N. J. L. 127 343
V. Shupe 88 N. J. L. 610 145, 521
V. Tapack 78 N. J. L. 208 594
V. Thomas 65 N. J. L. 598 375
V. Turner 72 N. J. L. 404 378
State V. United New Jersey Rail-
road & Canal Co 76 N. J. L. 72 74
State V. Vreeland 89 N. J. L. 423 727
V. Webber 77 N. J. L. 580 391
V. Wilson 80 N. J. L. 467 26
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xxxvi TABLE OF CASES CITED. [90 N. J. L.
State, Baxter v. Jersey City 36 N. J. K 188 106
State, Evans v. Jersey City 35 N. J. L. 381 106
State, Miller v. Love 37 N. J. L. 261 3(52
State, Morris Railroad Co. v. Com-
missioners 37 N. J. L. 228 102
State, Morris & Essex Railroad v.
Jersey City 36 N. J. L. 56 363
State, Noe v. West Hoboken 37 Atl. Rep. 439 108
State, Zabriskie v. Hudson City. . 20 N. J. L. 115 108
State Board of Assessors v. Morris
and Essex Railroad Co 49 N. J. L. 193 164
State Mutual Building and Loan
Association v. Williams 78 N. J. L. 720 220
Steffens v. Earle 40 N. J. L. 128 643
Stephen v. Camden and Philadel-
phia Soap Co 75 N. J. L. 648 578
Stevens v. Paterson and Newark
Railroad Co 34 N. J. L. 532 204
Stokes V. Hardy 71 N. J. U 540 15.->
Stout V. Hopping 6 N. J. L. 125 5^3
Strauss v. American Talcum Co. . . (53 N. J. L. 613 278
Stuhr v. Curran 44 N. J. I^ 181 523
Styles V. Long Company (57 N. J. L. 413 ; 70 Id. 301,
129. 574
Sullivan v. Browning 67 N. J. Eq. 391 624
V. McOsker 83 N. J. L. 16 ; 84 Id. 380. . 526
Summerside Bank v. Ramsey 55 N. J. L. 383 286
Summit v. larusso 87 N. J. L. 403 671
Sutherland v. Jersey City 61 N. J. L. 436 402
Sypherd v. Myers 80 N. J. L. 321 205
T.
Tappam v. Ixyng Branch Commis-
sion 59 N. J. L. 371 551
Taylor Provision Co. v. Adams Ex-
press Co 72 K. J. L. 220 403
Teller v. Boyle 132 Pa. St. 56 24^
Tenement House Board v. Oruber, 79 N. J. tl. 257 56
Terrone v. Harrison 87 N. J. L. 541 10
Thompson v. Board of Education, 57 N. J. L. 628 371
^ V. Burdsall 4 X. J. L. 173 11
Thompson v. Pennsylvania Rail-
road Co 51 N. J. L. 42 466
Thorp V. Tveibrecht 56 N. J. Eq. 490 48.S
The Odessa A. C. (1915) 52 ; 1 A. C.
(1916) 145 5(52
Tilford V. Dickinson 79 N. J. T>. 302 ; 81 Id. 576. . 568
Tilton V. Common Pleas of Ocean. 87 N. J. L. 47 98
Tilton V. Pennsylvania Railroad «
Co 86 N. J. L. 709 712
Timlan v. Dilworth 76 N. J. L. 568 664
Titus V. Pennsylvania Railroad Co.. 87 N. J. L. 157 .*. 151
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90N.J.L.] TABLE OF CASES CITED. xxxvii
Tompkins v. Schomp 45 N. J. L. 488 504
ToDsellito V. New York Central
and Hudson River Railroad Co., 87 N. J. L. 651 713
Townsend v. Atlantic City 72 N. J. L. 474 549
Township of Bernards v» Allen ... 61 N. J. L. 228 71
Traphagen v. West Hoboken 39 N. J. L. 232 397
Trenton v. Shaw .49 N. J. L. 638 477
Trenton Pass. Railway Co. v.
Cooper 60 N. J. L. 219 209
Tri-State Tel., &c., Co. v. CosgrifiP, 19 N. D. 771 467
Tukey v. Foster 158 Iowa 311 286
V. Reinholdt 130 N. W. Rep. 727 286
Turner v. Wells 64 N. J. L. 269 196
U.
rflfert V. Vogt 65 N. J. L. 377 523
Van Buskirk v. Board of Educa-
tion • 78 N. J. L. 650 195
Vandegrift v. Meihle 66 N. J. L. 92 583
Van Horn v. Freeholders of Mercer, 83 N. J. L. 239 402
.Van Ness v. New York, &c., Tel.
Co 78 N. J. L. 511 466
Van Ness v. North Jersey Street
Railway Co 77 N. J. L. 551 587
Xau Noort Case 85 Atl. Rep. 813 122
Vishuey v. Empire Steel & Iron
Co 87 N. J. L. 481 555
Vogel V. riper 89 N. Y. Supp. 431 24S
W.
Waible v. West Jersey. &c.. Rail-
road Co 87 N. J. L. 573 460
Wakeman v. Paulmier. Executor. . 39 N. J. L. 340 1^5
W^all V. Hinds 4 Gray 256 543
Walnut V. Newton 82 N. J. L. 290 90
Ward V. Hauck 87 N. J. L. 198 130
Walsh V. Board of Education of
Newark 73 N. J. I^ 643. .' 464
Warner v. Fourth National Bank, 115 N. Y. 251 566
Water Commissioners of Jersey
City V. Brown 32 N. J. L. 501 381
Watt V. Watt L. R. App. Cas. (1905) 115, 199
Weidman Silk Dyeing Co. v. East
Jersey Water Co.. 91 Atl. Rep. 338 680
Weiss V. Central Railroad Co 76 N. J. I^ 348 460
Welch V. Hubschmitt 61 N. J. L. 57 197
Wentink v. Freeholders of Passaic, 66 N. J. L. 65 279, 551
West V. Asbury Park 89 N. J. L. 402 101
Westfall V. Dunning 50 N. J. L. 459 39.T
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xxxviii TABLE OP CASES CITED. [90 N. J. L.
West Shore Railroad v. Wenner. . 75 N. J. L. 494 250
West V. State 22 N. J. L. 212 265
Wharton v. Stoutenburgh 35 N. J. Eq. 266 382
White V. Koehler 70 N. J. L. 526 ^ . ,. . 3aS
White V. Neptune City 56 N. J. L. 222 56
White V. New York, Susquehanna
& Western Railway Co 68 N. J. L. 123 244
Whitmore v. Brown 65 Atl. Rep. 516 204
Whittingham v. Township of Mill-
burn 90 N. J. L. 344 348
Wilbur V. Trenton Passenger Rail-
way Co 57 N, J. L. 212 534
Wilson V. New Bedford 108 Mass. 261 622
V. Borden 68 N. J. L. 627 577
V. Gaines 108 U. S. 417 , 164
Williamson v. Chamberlain 10 N. J. Eq. 373 607
Wolcott V. Mount 36 N. J. L. 262 584
Wolf Company v. Fhilton Realty
Co 83 N. J. L. 344 351
Wright V. Carter 27 N. J. L. 76 655
Y.
Yetter v. Gloucester Ferry Co 76 N. J. L. 249 140
Young V. Traveller Insurance Co., 13 Atl. Rep. 896 598
V. Young 45 N. J. L. 197 156
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CASES DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW JERSEY.
FEBRUARY TERM, 1917.
FREDERICK E. BAUER, PROSECUTOR, v. TOWN OF WEST
HOBOKEN ET AL., RESPONDENTS.
Argued November 10, 191G— Decided March 5, 1917.
1. The statute of 1911, entitled "An act to authorize any incor-
porated town in this state to purchase fire engines, or other fire
apparatus, equipment and appliances, for protection against fire,
- and to provide a method for raising money for the payment
thereof," as amended Marc\i 28th, 1912 (Pamph. L., p. So^),
was not intended to curtail the powers conferred by the General
Town act (Pamph, L. 1895, p. 218) with reference to that sub-
ject, but was intended to enlarge such powers, by permitting the
. issue of bonds where the purchase of fire apparatus was reason-
ably necessary, but other pressing expenditures made it inad-
visable to provide the moneys necessary for the purchase out of
the annual tax levies.
2. Where a bid for a municipal contract is open to the world for
conipetition, and everyone has an equal chance of success in
obtaining the award, the fact that the successful bidder has no
competition cannot operate to deprive the municipality of its
right to award the contract.
3. The fact that one particular bidder is able to comply with the
specifications for municipab work at less expense than other con-
cerns affords no ground for refusing to the municipality the right
to obtain the best material or work that skill and ingenuity can
produce.
Vol. xo. 1
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T'^'^i^.?^^^^
g XEW JEH8EY 8UPKEME COURT.
Bauer V. West Hoboken. OON.J.L,
On certiorari.
Before Gummekk, Chief Justice, and Justices Tkench-
ARD and Black.
For the prosecutor, Frederick K. Hopkins,
Eor the respondents, John J, Fallon and Edwin F. Smith,
The opinion of the court was delivered by
GrUMMERE, Chief JUSTICE. The Certiorari in this case
brings up for review an ordinance of the town council of
West Hoboken, adopted August 23d, 1916, providing for the
purchase of certain fire apparatus, and proceedings subse-
quent thereto and in execution thereof. The amount pro-
posed to be expended under the ordinance was limited therein
to $17,800, and the payment was to he made out of the taxes
assessed and collected for the year 1916.
The principal attack upon the ordinance is that it is ultra
vires the town council, l>ecauso in violation of an act ap-
proved April loth, 1911, and entitled "An act to authorize
any incorporated town in this state to purchase fire engines,
or other fire apparatus, equipment and appliances for pro-
tection against fire, and to provide a method for raising
money for the payment thereof,'^ as amended March 28th,
1912. Pamiph. L., p. 358. This act provides for the pur-
chase of fire engines and other apparatus at a cost not to
exceed $15,000, and the issuing of bonds in that amount to
raise the money necessary tx5 pay the purchase price.
In determining the scope of this statute it is to be borne
in mind that the power to purchase fire apparatus by the
governing bodies of incorporated towns was not originally
conferred by it, but by "An act providing for the formation,
establishment and government of towns," approved March
7th, 1895 (Pamph. L., p. 218), the forty-seventh section of
which authorizes such municipal body "to provide for, estab-
lish, regulate and control a fire department, and to establish
rules for the government thereof, and to provide engines and
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FEBRUAEY TERM, 1917.
90 N, J. L. Bauer v. West Hoboken.
other fire apparatus, and the care and repair" thereof. Sec-
tion h2 of the act authorizes the town council to pass ordi-
nances appropriating and providing for raising by taxation,
moneys for certain specified purposes, among which is "the
maintenance of the fire department." The town 'of West
Hoboken was formed and established under'this general law,
and upon its establishment had full power and authority to
pass ordinances for the purposes enacted in the sections just
quoted. The statute of 1911, as amended in 1912, was not
intended to curtail the powers conferred by the general Town
act, but to enlarge them; to permit these municipalities, in
cases where the purchase of fire apparatus was reasonably
necessary, but other pressing expenditures made it inadvisable
to provide the moneys necessary for the purchase thereof out
of the annual tax levy, to issue bonds, within the amount
limited by the statute, for the raising of money to make such
purchase. The two statutes are to be construed together, and
each one to be given full force and effect, unless a legislative
intent is clearly exhibited in the later act to repeal the pro-
visions of the earlier one. No such intent is exhibited in the
statute of 1911. The provision of section 5 thereof, that all
acts and parts of acts conflicting or inconsistent therewith
"be and the same are hereby repealed," does not do so, be-
cause, as we have already pointed out, the two statutes do
not conflict with, nor are they inconsistent with each other.
The next ground of attack upon the proceedings under
review is that' the contract entered into pursuant to the ordi-
nance was invalid, because it waB not awarded to the lowest
bidder. The return to the writ shows that the contract was
duly advertised in accordance with law, with proper specifi-
cations, and that the advertisement produced but one bid,
that of the American La France Fire Engine Company, the
party to whom the contract was awarded. The idea of the
prosecutor seems to be that where municipal advertisements
calling for bids for the furnishing of supplies to the munici-
pality only produce a response from one bidder, it is illegal
to award the contract. But we think there is no foundation
for such a contention. Where the bid is open to the 'world
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NEW JERSEY SUPREME COURT.
Bauer v. West Hoboken. 90 2V. J. L.
for competition, every one having ail equal chance of success
in obtaining the award, the fact that the successful bidder
has no competitors cannot operate to ^deprive the mimici-
pality of its right to purchase. The legislature requires that
where there are several bidders the award shall be to the
lowest responsible one ; but it does not prohibit the city from
entering into a contract with the lowest bidder, when he is
the only on^ who has responded to the advertisement. And
the reason for this is quite plain, for to put such a limitation
upon the power of the municipality might frequently operate
to prevent it from promptly obtaining supplies which were
presently necessary for the purpose of properly carrying on
municipal affairs.
One other ground is set up for the nullifying of the pro-
ceeding under review, namely, that the specifications for the
fire apparatus were so drawn as to absolutely prohibit com-
petition, for the reason that they described characteristics
which were present in the product of the American La France
Fire Engine Company, but were absent from the output of
any other concern manufacturing fire apparatus. The proof
in the case, however, shows that all manufacturers of fire
apparatus could readily construct the machines described in
the specifications if they saw fit to do so. It may be that
the American La France Fire Engine Company is able to
construct them at a less expense than other concerns; but,
conceding this to be true, it affords no ground for refusing
to the town of West Hoboken the right to obtain the very
best fire apparatus that skill and ingenuity can produce.
The proceedings under review will be affirmed.
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FEBRUARY TERM, 1917.
90 y, J: L. Collings V. Allen.
ROBERT Z. COLLINGS, TRUSTEE, RESPONDENT, v. WAL-
TER ALLEN, APPELLANT.
Submitted November 24, 1916— Decided March 5, 1917.
A Bubscription to the stock of a proposed corporation, to be organ-
ized under a specified name and for certain designated purposes,
imposes no obligation upon the subscriber to take stock in a
company afterward organized by the same promoters under the
same corporate name, but for radically different purposes.
On appeal from the JBurlington Circuit Court.
Before Gummere, Chief Justice, and Justices Trench-
ABD and Black.
For the appellant, Martin V, Bergen and V. Claude
Palmer.
For the respondent, Joseph Beck Tyler.
The opinion of the court was delivered by
GuMMERE, Chief Justice. This action was brought by
Collings, the trustee of "The Ottomobile Company,^' a cor-
poration of New Jersey, adjudicated a bankrupt by the
United States District Court, upon a stock subscription
signed by the defendant, of which the ^ following is a copy:
"Subscription to preferred stock of the Ottomobile Company,
par value $100 per share. September 25th, 1911. I hereby
subscribe to four shares of the par value of $100 per share
of the six per cent, preferred stock of the Ottomobile Com-
pany, a corporation to be organized under the laws of the
State of New Jersey with an authorized capital of $250,000,
six per cent, preferred, and $250,000 common stock, one share
of common stock to be given as a bonus with each two shares
of preferred. The purpose of the organization is to acquire
the automobile interests of the Otto Gas Engine Works of
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6 XEW JERSEY SUPREME COURT.
CoUings V. Allen. 90 N, J, L.
Philadelphia, and the entire assets and good will of the Otto
Motor Car Sales Company of Philadelphia. I agree to pay
for such stock as follows/' and then follows the dates and
amounts of the payments.
The case was tried befoj^e the court without a jury, and re-
sulted in a finding in favor of the plaintiff for the par value
bf four shares of the preferred stock, and two shares of the
common stock of the bankrupt corporation, with interest
upon the same from the 4ate when, according to the finding
of the court, the defendant was obligated to take the stock.
From the judgment entered on this finding the defendant
appeals.
The company of which the plaintiff is the representative
was organized under the corporation laws of this state in
January, 1912. The principal purposes of its incorporation,
as set forth in the certificate filed by it, were to manufacture
automobiles, automobile and motor car accessori^ and sup-
plies of every class and description, including any and all
parts of vehicles of all kinds, or any other goods pertaining
to the automobile business, or otherwise, which the corpora-
tion may determine to manufacture. To buy, sell and deal
in automobiles, automobile and motor car accessories and sup-
plies of every class and description as manufacturejrs, agents,
jobbers, wholesale or retail, on commission or consignment
or otherwise, including any and all parts of vehicles of all
kinds, or any other goods pertaining to the automobile busi-
ness, or otherwise, in which the corporation may determine
to deal. To carry on the business of mechanical engineers,
and dealera in and manufacturers of plants, motors, engines,
and other machinery. To buy, sell, manufacture and deal
in machinery, implements, rolling stock and hardware of all
kinds. To build, construct and repair railroads, water, gas
and electric works, tunnels, bridges, viaducts, canals, hotels,
wharves, piers, or any like work of internal improvement,
public use or utility. To manufacture, purchase, or other-
wise acquire goods, merchandise and personal property of
every class, and to hold, own, mortgage, sell or otherwise
dispose of, trade, deal in and deal with the same. To borrow
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FEBRUARY TERM, 1917.
DO N, J. L. Collings v. Allen.
or raise money without lin^it as to amount by the issue of, or
upon, warrants, bonds, debentures and other negotiable or
transferable instruments, or otherwise.
Other purposes are also specified in the certificate of incor-
poration; we do not find it necessary, however, to recite
them. It is enough to say that the purposes for which the
bankrupt corporation was organized are not only far differ-
ent from, and far more comprehensive, than those for which
the proposed company referred to in the defendant's sub-
scription contract was to be organized, but that they do not
any of them necessarily embrace either of the two purposes
expressed in that contract, namely, the acquisition of the
automobile interests of the Otto Gas Engine Works of Phila-
delphia, and the entire assets and good will of the Otto Motor
Car Sales Company of Philadelphia.
The case was decided below, and is argued here on behalf
of the respondent, upon the theory that the appellant by
signing the subscription contract became a quasi stockholder
in the proposed company, and that having stood by without
protest and permitted the organizers of the now l>ankrupt
corporation to incorporate it for purposes entirely different
from those which were originally proposed, he is deemed to
hav(^ acquiesced in the change, and to be bound by their acts.
But, clearly, the position of the appellant was not that of a
quasi stockholder acquiescing in the proposal of his fellow
stockholders to divert his and their moneys to purposes other
than those to which they were agreed to be appropriated at
the time he signed the subscription. His contract, and that
of his fellow subscribers, was to take specified shares in a
Xew Jersey corporation to be thereafter organized, having
a specified name, a specified amount of capital stock, and to
be created for the purpose of carrying into effect certain
specified objects. The name of the intended corporation was,
of course, of secondary importance. That it should be or-
ganized under the -laws of the State of New Jersey, and so
be clothed with all the powers, and receive all the protection
afforded by those laws, was of primary importance. So, too,
was the amount of the capital stock. But even more im-
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8 NEW JERSEY" SUPREME COURT.
Collings V. Allen. 90 N. J. L.
portant was the purpose to which the moneys of the gentle-
men who signed these subscription certificates was to be de-
voted. They became subscribers upon the express condition
that their money should be used for the specific purposes set
out in the contract signed by them, and for such ancillary,
purposes as were necessary or reasonable. They never agreed
to embark their money in any such schemes as are exhibited
by the certificate of incorporation of the company of which
'the plaintiff is the trustee, and, consequently, had no inter-
est in the formation of a company to exploit those schemes.
Their acquiescence or non-acquiescence in the organization of
such a corporation was entirely immaterial, so far as the
power of the promoters to create it for the purposes specified
in its certificate of incorporation was concerned; and their
protest against such action would have been entirely unavail-
ing; for the intended promoters were at perfect liberty to
embark their own capital, and the capital of anyone else who
desired to join them in floating any scheme which they saw
fit to inaugurate, without the let or hindrance of persons
who had no interest therein. So, too, they had a right to
adopt the name which was proposed for the corporation in-
tended to be organized for the purposes expressed in the sub-
scription contract which the appellant signed; for no right
to that name had vested in him and his fellow subscribers,
and could not do so until the corporation in which they had
expected to invest their money had actually been formecL
The obligation of the defendant and his fellow subserfbers
is expressed within the four comers of the instrument which
is the foundation of the present suit. The fact that the pro-
moters of the intended corporation saw fit to abandon the
original purposes thereof, and organize a company the pur-
poses of which were radically different in every respect, could
not alter the fundamental contract of Mr. Allen and his
associates, and impose upon them an obligation to invest
their moneys in the new scheme. We conclude, therefore,
that the judgment under review must be reversed.
u
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FEBKUARY TERM, 1917.
QON.J.L, Cook V. Bennett Gravel Co.
PERRINE B. COOK, RESPONDENT, v. BENNETT GRAVEL
COMPANY, APPELLANT.
Submitted December 7, 191^— Decided March 5, 1917.
Under a proper construction of the Timber act (Comp. Stat., p. 5396),
a plaintiff in an action for a violation of the provisions of that
act is limited in his recovery to the actual loss sustained by him
if the wrongful acts complained of have been committed by the
defendant under an honest belief that he was cutting timber upon
his own property, and the question of whether or not defendant
has such belief is a question for the determination of the jury.
On appeal from the Monmouth Circuit Court.
Before Gummere, Chief Justice, and Justices Trench-
ARD fjnd Black.
For the appellant, Durand, Ivins & Carton.
For the respondent, Charles F. Dittmar.
The opinion of the court was delivered by
GuMMERE, Chief Justice. The appeal in this case brings
up for review a judgment recovered by the plaintiff, Mr.
Cook, in an action brought under an act entitled "An act to
prevent the unlawful waste and destruction of timber in
this state" (Comp. Stat,, p. 5396), the complaint being that
the defendant had unlawfully ' cut down one hundred and
seventy-three trees growing upon the plaintiff's land, and the
claim being that under the statute referred to the plaintiff
was entitled to recover from the defendant a penalty of $8
for each tree so unlawfully cut down. The defence inter-
posed was that the trees which were the subject-matter of
the litigation were growing, not upon the property of the
])laintiff, but upon that in the ownership of the defendant,
and a large amount of testimony was taken on both sides for
the purpose of settling the location of the dividing line be-
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10 NEW JERSEY SUPREME COURT.
Cook V. Bennett Gravel Co. 00 N. J, L,
tween their respective properties. The trial court instructed
the jury that if they should find the trees which had been
cut down by the defendant were growing upon the plaintiffs
side of the line, then, under, the Timber act, he was entitled
to recover the penalty prescribed therein, without regard to
the amount of damage actually sustained by him through the
wrongful act of the defendant.
The only question raised by the present appeal is whether
the instruction just recited was sound in law. On behalf
of the plaintiff it is contended that it is immaterial in the
determination of a right of recovery under the statute,
whether the defendant acted in good faith and in an honest
belief that it was cutting timber upon its own property, or
whether it was guilty of a willful and intentional trespass;
while on the other hand, it is argued on behalf of the de-
fendant that where the acts complained of are done in the
honest belief by the defendant that he is cutting timber on
his own property, the plaintiff's right of recovery is limited
to the actual loss sustained by him from the cutting of the
timber.
It goes without saying that the soundness of the one con-
tention or the other depends upon the true construction of
the Timber act. The history of that statute is set out in the
opinion of the Court of Errors and Appeals in the case of
Terrone v. Harrison, 87 N. J. L, 541. It was originally
enacted in 1820. Penn. Lani^s 700. Its first section pro-
vides that if any person shall cut down, carry away or de-
stroy any tree, sapling or pole, standing or lying on any land
within this state to which said person has not any right and
title, without leave first had and obtained of the owner or
owners of said land, the person so offending shall forfeit and
pay for each tree, &c., so cut down, carried away or destroyed,
the sum of $8. The second section of the statute made the
same offence criminal, and punishable by a fine or imprison-
ment, but contained a proviso that a person who had been
subjected to a prosecution for the penalty provided in the
first section, should not be subject to conviction and punish-
ment criminally. The third section provided that if any
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FEBRUARY TERM, 1917. 11
90 N. J. L. Cook T. Bennett Gravel Co.
person should saw up any log, or receive or buy any tre*,
sapling, log or timber so unlawfully taken and carried away,
knowing the same to have been so unlawfully taken and
carried away, he should be deemed guilty of a misdemeanor
and punished by fine or imprisonment. In 1874 the second
and third sections of this act were transferred to the Crimes
act, but, as was held in Terrone v. Harrison, supra, such
transfer did not operate to repeal section 1 of the act, but
left it in full force and effect. The matter for solution, then,
is whether the legislature in 1820 intended that the penal-
ties of the statute tiien enacted should be visited upon a per-
son who, in good faith, should cut down trees standing upon
lands of another, believing that they were upon his own
property.
It is to be observed that the same act which by section 1
subjects the perpetrator to a penalty, subjects him by the
second section to a criminal prosecution. It is hardly to be
supposed that the legislature intended to make criminal an
act done in perfect good faith, and under a claim of right
fully believed in ; and yet such a purpose must be attributed
to the lawmaking body if the first section of the statute sub-
jects the unintentional offender to a penalty; for if the ele-
ment of intent is absent from the first section, it must also
be absent from the second.
Moreover, the statute of 1820, although an original enact-
ment, was largely taken from the act of June 13th, 1783.
Pat, L,, p. 49. The first section of the earlier act is adopted
almost verbatim in the act of 1820, the only difference being
that the penalty prescribed is three pounds for each tree, &c.,
instead of $8. In 1818, Mr. Justice Southard, speaking for
this court in Thompson v. Burdsall, 4 N. J, L, 173, declared
that this statute only imposed a penalty where the party had
no justification for his trespass, and not where he relied
upon his title to protect him; and the soundness of this
declaration is made manifest by section 2 of the act of 1783,
which declared "that if any person or persons shall saw any
log or logs so stolen, knowing them to be such, they and
every person so offending shall on conviction," &c., &c. The
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12 NEW JERSEY SUPREME COURT.
Florey v. Lanning. 90 N, J. L.
use of the words italicized makes it plain that it was the in-
tention of the legislature in enacting section 1 to deal with
persons who, without any shadow of right, or belief in its
existence, tortiously cut down and removed standing tim-
ber upon lands not belonging to them.
The first section of the act of 1783 having been embodied
in the enactment of 1820, the legislature which passed the
later act is to be presumed to have adopted the earlier one
with the meaning which had already been ascribed to it by
judicial construction. Fritts v. KvJile, 51 N, J, L. 191, 199 ;
Anderson v. Camden, 58 Id, 515, 519; Dt Raismes v, De
Raismes, 70 Id. 15, 18; NeUson v. RmseJl, 76 Id, 27, 32;
Rutkowshy v. Bozza, 77 Id, 724, 725. -^
In the present case it should have been left to the jury to
determine whether the wrongful acts complained of were
committed by the defendant under an honest belief that it
was cutting timber upon its own property, coupled with an
instruction that if they should so find the plaintiff's damages
should be limited to the actual loss sustained by him through
the wrongful act of the defendant.
The judgment under review will be reversed.
HARVEY U. FLOREY, RELATOR, v. LEWIS M. LANNING,
RESPONDENT.
Argued June 6, 191G— Decided March 5, 1917.
1. An appointment to the office of any borough, to fiU a vacancy
in such office, caused by death, disability, resignation or any other
cause, if made for a longer term than until noon of the first day
of January following the next annual election, is in violation of
section 1 of the amendment of 1904 of the Borough act {Comp,
^tat., p. 230), and therefore nugatory.
2. One who complains that the incumbent of an office holds the
office illegally, can only succeed in a quo warranto proceeding
to oust the incumbent, by showing that he himself has a legal
title thereto.
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FEBRUARY TERM, 1917. 13
90 N. J. L, Florey v. Lanning.
On qtio warranto. Demurrer to plea.
Before Gummebb, Chief Justice, and Justices Teenoh-
ARD and Black.
For the demurrant, Oscar Jeffery,
For the respondent, Svtifh & Brady.
The opinion of the court was delivered by
Gummere, Chief Justice. The information in this case
was filed for the purpose of having it judicially determined
whether the relator or the respondent was entitled to the
office of member of common council of the borough of Wash-
ington. The material facts are not in dispute. One Isaac
J. Shields, a member of the common council, died in Feb-
ruary, 1915. Shortly afterward, and on the 2d day of
March of that year, the relator Florey, was appointed by
the mayor of the borough to succeed the decedent for the
unexpired term, and- his appointment was confirmed by the
borough council. Mr. Shields had been elected for a term
which expired on the 1st day of January, 1917. Pursuant
to his appointment the relator entered upon the office, and
continued in the discharge of the duties thereof until the
1st day of January, 1916. On that day a new mayor, one
Harry Christine, having been elected at the preceding Xo-
vember election, assumed that the vacancy created by the
death of Mr. Shields still persisted, and thereupon appointed
the respondent to fill that vacancy, this appointment also
being for the unexpired term of Mr. Shields, and likewise
affirmed by the council. In pursuance of this latter appoint-
ment the respondent ousted the relator, and continued in the
occupation of the office up to and at the time of the filing of
the present information. The question argued was which, if
either, of these litigants is legally entitled to the office.
By section 1 of the amendment of 1904 to the Borough act
(Comp. Stat, p. 230), it is provided that whenever the office
of councilman of any borough in the state shall become va-
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U NEW JERSEY SUPBEME COUBT.
B'lorey v. JLanning. 90 N, J, L.
cant by reason of death, disability, resignation or any other
causCj it shall be lawful to fill such vacancy by appointment,
and the person so appointed shall hold office until noon of
the first day of January following the next annual election,
and until his successor shall have qualified; and that the
mayor shall, with the advice and consent of the majority of
the remaining members of the council, appoint the council-
man to fill such vacancy as above provided for. It is ap-
parent from a reading of this statutory provision that the
mayor of Washington upon the death of Mr. Shields could
only appoint to fill the vacancy for a period which should
come to an end normally on the first day of January then
next. This being so, his attempt to fill the office for the un-
expired term of Mr. Shields, that is, for a year longer than
the statute authorized him to fill it for, was in direct vio-
lation of section 1 of the amendment to the Borough act re-
ferred to, and, consequently, was entirely nugator}^ under the
decision of this court in Salter v. Burk, 83 N. J. L. 152. The
fact that the present relator, Mr. Florey, entered into the
office of councilman under this invalid. appointment, and as-
sumed to perform its duties, and to receive its emoluments,
is immaterial in determining the question now under consid-
eration. It may be conceded that as to the public, and third
parties, he was a de fcwio officer; but even so he could not
persist in retaining possession of the ofiice to which he had
no legal title, against the protest of the municipality itself.
As against it, there was in fact a vacancy, unless the incum-
bent was an officer de jure. Admitting that the relator was
ousted from the office by a gentleman who had no more right
to it than himself, that fact does not entitle him to a judg-
ment against the respondent, for one who complains of the
illegality of an incumbent's title to an office can only succeed
in a quo warranto proceeding by showing that he himself has
a legal title thereto. This being so, we are not presently con-
cerned with the validity of the respondent's title, for whether
it be good or bad cannot result in entitling the relator to the
judgment which he seeks.
The respondent is entitled to judgment on the demurrer.
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FEBRUARY TERM, 1917. 15
90 N, J, L. Hammond v. Morrison.
MYRA HAMMOND, ADMINISTRATRIX, PI^INTIFF, v.
JAMES L. MORRISON, DEFENDANT.
Argued November 9, 1916— Decided March 5, 1917.
Where defendant, while driving an automobile on a public highway,
ran into plaintiff's decedent because he was unable to see de-
cedent, owing to his temporary blindness caused by the deflection
of light shining on his windshield, and there being no conten-
tion that acts of the decedent contributed to his injury, a ver-
dict of the jury, on the trial for damages, resulting in the exon-
eration of the defendant, cannot be justified, and is set aside.
On plaintiff^s rule to show cause.
Before GuMMERte, Chief Justice, and Justices Trench-
ARD and Black.
For the rule^ Leonard J. Tynan,
Contra, William I, Lewis,
The opinion of the court was delivered by
GuMMERE, Chief Justice. This action was brought to
recover damages growing out of the death of Edwin J. Ham-
mond, resulting from injuries received by being struck by
the defendant's automobile. The accident occurred near
midnight of February 19th, 1915, at the crossing of Broads
way in the city of Paterson with the tracks of the New York,
Susquehanna and Western Railroad Company. The decedent
was a conductor in the employ of the Public Service Cor-
poration, and at the time of the accident had gone to the rear
of his car for the purpose of adjusting the trolley, which
had jumped the wire at or about the railway crossing; and,
while engaged in this work, was run into by the defendant's
" automobile, and crushed between it and the rear of the trol-
ley car. The verdipt of the jury on the trial of the cause
resulted in the exoneration of the defendant.
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16 XEW JERSEY SUPREME COURT.
Hammond v. Morrison. 90 N, J. L.
This verdict cannot be justified. The only issue in tlie
case was whether or not decedent's death was the result of
the negligence of the defendant, the question of contributory
negligence not having been presented by the pleadings. The
defendant did not deny that the decedent came to his death
• in the way above stated, but attempted to excuse himself
upon the ground that just before the collision the street lights
which he had passed were reflected into his eyes by the wind-
shield of his car, so that he was unable to see in front of him,
and that this temporary blindness was the cause of the col-
lision. His own story demonstrates his lack of care. No
man is entitled to operate an automobile through a public
street blindfolded. When his vision is temporarily destroyed
in the way which the defendant indicated, it is his duty to
stop his car, and so adjust his windshield as to prevent its
interfering with his ability to see in front of him. The de-
fendant, instead of doing this, took the chance of finding the
way clear, and ran blindly into the trolley car behind which
the decedent was standing. Having seen fit to do this, he
cannot escape responsibility if his reckless conduct results
in injury to a fellow being.
We have examined the other reasons set up by the plaintiff
in support of her contention that this rule should be made
absolute, but find them without merit The testimony al-
leged to be incompetent (and which probably was) was not
objected to by her, but, on the contrary, went into the case
with her consent. The overruling of testimony offered on
Ijehalf of the plaintiff was submitted to without objection.
The refusal to charge the requests which were submitted by
her was not objected to, nor was there any objection made
to the charge by the court of the request submitted by the
defendant.
■ The rule to show cause will be made absolute.
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FEBKUAKY TEEM, 1917. 17
VO N. J, fj. State v. Fish.
THE STATE, DEFENDANT IN ERROR, v. HARWOOD FISU,
PI^INTIFF IN ERROR.
Submitted July 6, 1916— Decided March 5th, 1917.
1. Printed words circuhited, (Charging a member of the grand jury
with malfeasance of the gravest character in his office, if untrue,
are libelous.
2. In a trial of an indictment for libel, it is not permissible to in-
troduce testimony in support of the truth of matters contained
ill the alleged libelous article but which are not referred to in the
indictment or made a ground of charge against the defendant,
since, even if it be conceded that the charges at which it is
directed be true, it can afford no justification for the untruth-
ful statement which is made the subject of the indictment,
3. A witness who has been examined befo«e the grand jury is under
no legal obligation to refrain from stating what was said to or
by him while there.
4. A person who circulates a paper containing an untruthful and
libelous statement is subject to punishment under indictment, no
matter what his motives are or what induces his action.
5. An erroneous statement of law by the prosecutor of the pleas in
arguing before the jury cannot be made a ground for reversal
under section 136 of the Criminal Procedure act, where no appli-
cation is made to the court to deal with the statement.
On error to the Union Quarter Sessions.
Before Gummere, Chief Justice, and Justices Trench-
ARD and Black.
For the plaintiff in error, Codding & Oliver.
For the state, Alfred A, Stein, prosecutor of the pleas.
The opinion of the court was delivered hy
Gummere, Chief Justice. The defendant was convicted
of the crime of libel. The case made against him was that
he had circulated a printed article among certain of the
voters of his county in which he stated the following of one
William E. Johnson, who had been a member of the Union
Vol. xc. 2
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18 NEW JERSEY SUPEEME COURT.
State V. Fi^. 90 N. J. L.
county grand jury: "As a member of the grand jury he
succeeded in protecting the biggest swindler to my mind
tlii\t ever struck the county, and although I understand an
indictment was voted against his friend, for some unex-
plained reason it was never lianded in."
The first ground upon which we are asked to reverse the
conviction is that the indictment did not charge a crime,
because the words set out in it are not libelous. This point
is almost too tenuous for discussion. The words cited charge
a member of the grand jury, the holder of a public office of
gi-eat importance, with malfeasance in his office of the
gravest character. That such a charge, if untrue, is plainly
libelous was decided by this court in Heller v. Duff, G2 N.
J. L. 101. X
The next contention is that it was error for the trial court
to allow the deputy clerk to read from the record in the
clerk's office the names of the members of tlie grand jury for
the May term, 1911, for the purpose of showing that John-
son was a member of that body. This reading was objected
to upon the ground that it was immaterial who were the
members of the grand jury, except, perhaps, as to William
E. Johnsion. This objection having been made, the court
ruled that the reading w^as only evidential for the purpose
of ascertaining Mr. Johnson's membership. This ruling
wiped out the ground of objection, and, consequently, the
defendant can take nothing by this contention. We may
add that we are unable to see how any harm could have come
to the defendant from the reading of this grand jur}' list,
evcuv^n the absence of the ruling just referred to.
Next it is urged that the court committed error in ex-
cluding testimony offered in support of the truth of other
matters contained in tlie alleged libelous article, but which
were not referred to in the indictment, or made a ground
of charge against the defendant. We think this testimony
was properly excluded, for, if it be conceded that the charges
at which it was directed were true in fact, that could not
nilord any justification for the untruthful statement which
is made the subject of the indictment.
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FEBRUARY TERM, 1917. 19
90 N, J, L. State v. Fish.
Next it is contended that it was erroneous to refuse to per-
mit the defendant to prove matters whieh had occurred in
the grand jury room during the investigation of the charges
made against the person who was designated by the defend-
ant as "the biggest swindler that ever struck the county.''
The offer was to show that facts had been communicated to
him by one McDevitt, who had been a witness before the
grand jury, that justified him in writing and circulating the
libelous article. This testimony was overruled upon the
ground that it had a tendency to violate the secrecy of the
grand jury room. We do not think this ground of exclu-
sion is sound. A witness who has been examined before a
grand jury is under no legal obligation to refrain from stat-
ing what was said to and by him while there. The obligation
of secrecy rests only upon members of that body, and those
associated with them in the administration of justice. But
we consider the ruling proper, for the reason that the funda-
mental question was not what caused the defendant -to pub-
lish this untruthful charge against Mr. Johnson, but
whether it was in fact untruthful. No matter what his mo-
tives were, no matter what induced his action, if, in fact,
he did circulate the paper, and it contained a libelous and
untruthful charge, he is subject to punishment under the
indictment.
The next objection is that the court erred in refusing to
direct a verdict for the defendant. It is hardly necessary
to discuss this. The circular was libelous if the fact stated
therein was untrue. The proof of its publication was
plenary, nf the jury believed the testimony. Whether the
charge contained in the circular was true or not was for the
jury.
Next it is argued that the court in its charge failed to
appreciate the true principle of the law of libel; but as no
specific errors are pointed out, we find nothing of substance
to deal with in attempting to dispose of this phase of the
case.
Another ground of reversal is predicated upon the follow-
ing situation: The prosecutor of the pleas argued before
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XEW JERSEY SUPREME COURT.
State V. Fish.
90 iV. J. L.
the jury that the defendant might be held guilty under the
indictment if the jury should conclude that he had sent out
tlie circular, and found no other fact against him. This
was, of course, an erroneous statement of the law, but the
liarmfulness of it was probably neutralized by the charge of
the court. But even if its injurious effect was not eradicated,
it cannot be now appealed to as a justification for a reversal
of the conviction. It is not properly presentable on any
assignment of error, for no application was made to the
court to deal with the statement; much less was there any
exception to any ruling of the court upon the matter. It
cannot be considered imder section 13^ of the Criminal Pro-
cedure act, because it does not come within any of the
grounds specified in that section as a justification for a re-
versal. By that statutory provision the court of review is
only permitted to reverse where the plaintiff in error on the
trial below suffered manifest wrong or injury, either in the
admission or rejection of testimony, or in the charge of the
court, or in the denial of any matter by tKe court which
was a matter of discretion.
Next it is argued that the statement just referred to was
concurred in by the court by its oral declaration in the pres-
ence of the jury, and that there should be a reversal for this
reason. But no exception was signed and sealed to the state-
ment of the court, and so the present contention does not
afford a basis for an assignment of error; and it cannot be
considered under the one hundred and thirty-sixth section,
for the reason that it does not come within the scope thereof.
Lastly it is contended that the proofs showed that John-
son, the libeled party, was a candidate for office, and that,
therefore, the defendant was entitled to circulate libelous
articles with relation to his character, provided he acted in
good faith, believing them to be true. No authority is cited
for any such contention, and it is manifestly without sup-
port in law.
On the whole case we think there should be an affirmance.
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• ryfi^
FEBRUAEY TERM, 1917. 21
90 N, J. L. State v. Johnson.
THE STATE, DEFENDANT IN ERROR, v. ELWOOD JOHNSON,
PLAINTIFF IN ERROR.
Submitted December 12, 1916— Decided March 5, 1917.
The receipt of money which has been unlawfully or fraudulently ob-
tained from another person, the receiver thereof knowing it to
have been so obtained, is within the purview of section 166 of the
Crimes act, as amended by Pamph, L, 1906, p. 431, relating to
the receiving of stolen goods. ' '
On error to the Monmouth Quarter Sessions
Before Gltmmbre, Chief Justice, and Justices Trexch-
ARD and Black.
For the plaintiff in error, Hoisted II, Wadnright.
For the state, Charles F. Sexton, prosecutor of tlie pleas.
The opinion of the court was delivered by
GuMMEKE, Chief Justice. The plaintiff in error was
convicted upon an indictment which, as amended by leave
of the trial court, charged that on the 17th day of July, in
the year 1914, he, the said Elwood Johnson, did receive and
have from one Charles Harvey, $2,547.54 of the moneys,
, goods and chattels and other valuable things of one Agnes
Crosbie before then feloniously, unlawfully and fraudu-/
lently obtained, taken and converted by said Han^ey, he, the
said Elwood Johnson, then and there well knowing said
moneys to have been so obtained, taken and converted by
said Harvey.
The indictment was intended to charge a violation of sec-
tion 166 of the Crimes act, as amended May 14th, 1906
{Pamph, L,, p. 431) ; and the first ground upon which we
are asked to set aside the conviction is that the offence set
out in the indictment is not within the purview of the sec-
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22 NEW JERSEY SUPREME COURT.-
State V. Johnson. 90 N, J, L.
tion referred to. The language of the act is, "Any person
who shall receive or buy any goods or chattels or chose in
action, or other valuable thing whatsoever, that shall have
been stolen from any other person, or taken from him by
robbery, or otherwise unlawfully or fraudulently obtained,
taken or converted * * * knowing the same to have been
stolen or taken by robbery, or so obtained, taken or converted,
&c., shall be guilty of a misdemeanor." The present conten-
tion is that the legislature did not intend to include money in
the descriptive words, "any goods or chattels, or chose in
action, or other valuable thing whatsoever," used in the
statute ; and the case of State v. Calvin, 22 N. J. L. 207, is
appealed to as decisive upon this point. In that case the
defendant was indicted for and convicted of receiving a large
number of bank bills amounting in value to $4,000 of the
property, goods and chattels of Drew, Robinson & Company,
well knowing said bank bills were taken by robbery, &c. The
indictment was founded upon the seventy-second section of
the Crimes act of 1846, which provided that "If any per-
son or persons shall receive or buy any goods or chattels that
shall be stolen or taken by robbery from any other person,
knowing the same to have been so stolen or taken by rob-
bery, &c., he shall be. deemed guilty of a high misdemeanor."
It was held by the Supreme Court, that bank notes are not
"goods or chattels," within the meaning of the statute, and
that, therefore, the receiver of stolen bank notes could not
be indicted thereunder. The case was decided in 1849, and
some two years afterward, on February 26th, 1852, the fol-
lowing act was passed by the legislature: "If any person
or persons shall receive or buy any bank bill or note, bill of
exchange, order, draft, check, bond, or promissory note for
the payment of money, that shall be stolen or taken by rob-
bery from any other person or persons, or corporation, know-
ing the same to have been so stolen or taken by robbery, he
shall be deemed guilty of a high misdemeanor." Nix. Dig.
(4:th ed.) 210. It may be reasonably presumed that this
later act was passed for the purpose of meeting the dif-
ficulty found to exist in the act of 1846 as construed in State
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FEBRUARY TERM, 1917. 23
90 N. J. L, State v. Johnson.
V. Calvin, but whether this was its primary purpose or not,
it certainly did meet that difficulty. These two provisions
remained upon the statute books as independent enactments
until the revision of our Crimes act in 1874, and they were
then merged in section 147 of that act {Revision of N, J,,
p. 253), which declares that "If any person or persons shall
receive or buy any goods or chattels, .or chose in action, or
valuable thing whatsoever, that shall be stolen from any
other person, or taken by robbery from him, knowing the
same to have been stolen or taken by robbery, &c., he shall
\)o deemed guilty of a high misdemeanor.^^ That the pur-
pose of the revisers was to merge these two statutes in the
section just cited is manifest from the use of the words "or
chose in action, or valuable thing whatsoever" (the latter
clause being all embracing), and the disappearance from the
statute book, except as found in this section, of the act of
February 26th, 1852. The revision of 1898 retained that
of 1874 without change {Pwm^ph. L, 1898, p. 839, § 166),
and the amendment of 1906 merely enlarges the scope of the
statute by embracing property not stolen or taken by rob-
bery, but otherwise unlawfully or fraudulently obtained,
taken or converted.
We conclude, therefore, that the receipt of money which
has been unlawfully or fraudulently obtained from another
])erson, the receiver thereof knowing it to have been so ob-
tained,, is within the purview of the statute upon which the
present indictment is founded.
It is next contended on behalf of the plaintiff in error
tliat if it be considered that money is a valuable thing,
within the meaning of the statute, the indictment is never-
theless defective, because it fails to show the kind of money ;
the argument being that the indictment should not only
state the amount received by the defendant, but should ,
specify that it was good and lawful money of the United
States. But the answer to this contention is that by section
50 of our Criminal Procedure act {Comp, Stat., p. 1836),
it is provided "In every indictment in which it shall be
necessary to make any averment as to any money or any note
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24: XEW JP]ESEY SUPEEME COUET.
State V. Johnson. 90 N. J, L.
of the United States of America, or of any national or state
bank, or any other biuik, or any postal currency, it shall be
sufficient to describe such money, or currency, or note, sim-
ply as money."
It is next contended that there was no legal evidence be-
fore the court that the money of Agnes Crosbie had been
unlawfully and fraudulently obtained by Charles Harvey,
or that the defendant, when he received it, knew that it had
been so oljtained and converted. The assertion that there
Kas no evidence of Harvey's misconduct is based upon the
thet)ry that this could only be proved by the production of
the record of his conviction of that offence. But why coun-
sel thinks this" to be the case he does not make plain to us
by his argument, and, manifestly, it is without substance.
As to Jolnison's knowledge of the misappropriation of these
moneys by Harvey we find in the record sent up ample evi-
dence to justify the Jury in resolving that factor against him.
Lastly it is argued that the court erred in failing to in-
struct the jury that unless the circumstances of the case
were such as to satisfy a man of ordinary intelligence and
caution that these moneys had lx?en embezzled by Harvey,
the defendant should be acquitted. It is enough to say, in
disposing of this contention, that no request to so charge
was submitted to the trial court, and that no exception was
taken to the instruction to the jury as delivered. Other
errors were assigned by the defendant, but as they have not
been referred to cither in the brief or in the oral argument
submitttMl in his behalf, we have considered them as having
been al)andoned, and consequently have not examined them.
On the whole case we conclude there should be an
affirmance.
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FEBRUARY TERM, 1917. 25
90 N, J, L. State v. Riccio.
TUE STATE, DEFENDANT IN ERROR, v. MICHAEL RICCIO,
PLAINTIFF IN ERROR.
Submitted December 12, 1916— Decided March 5, 1017.
1. Where the proofs show that the defendant merely aided and
abetted an abortion, without actually participating in the use of
the instruments for effecting it, he may be convicted upon an in-
dictment charging him with being a principal in the production
of an abortion, all concerned in such a misdemeanor being liable
as principals.
2. Where a defendant was indicted for assault and battery, as well
as for abortion, upon the same female, testimony as to an alleged
rape committed upon the female was clearly competent in proving
the former offence. *
3. Where the court erroneously charged the jury as to the duty to
convict the defendant, if the jury found by the weight of the
evidence that he did the thing named in the statute under which
he was indicted, and subsequently corrected the charge, so that
the jury were, in substance, told that they could only convict in
case the weight of the evidence was so preponderating as to sat-
isfy them upon that point beyond a reasonable doubt, the initial
error in the charge was thereby cured.
On error to the Hudson Quarter Sessions.
Before Gummere, Chief Justice, and Justices Trexch-
ARD and Black.
For the plaintiff in error, Horace L, Allen.
For the state, Robert S. Hudspeth, prosecutor of the pleas,
and Ocorge T. Vickers, assistant prosecutor.
The opinion of the court was delivered by
Gummere, Chief Justice. The defendant was convicted
upon an indictment charging him with causing an abortion
upon one Bella Marano by the administration of drugs, and
the use of instruments. The indictment also contained a
count charging him with an assault and battery upon the
Marano woman.
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26 XEW JERSEY SUPREME COURT.
State V. Riccio. 90 N, J. L.
The first ground upon which we are asked to set aside this
conviction is that the indictment charged him with being a
principal in the production of the abortion, whereas the
proofs showed that he merely aided and abetted therein.
But it has already been decided by the Court of Errors and
Appeals that these facts do not render a conviction illegal,
in the case of State v. Wilson, 80 N. J. L, 467. There the
indictment charged the defendant with the use of instru-
ments to procure a miscarriage; the question was whether
under this indictment, he could be convicted if he did not
actually participate in the use of the instruments, either by
being present, aiding and assisting, or by being in a position
where he could give direction as to the use of the instru-
ments. The court held that in a case of misdemeanor, where
all are liable as principals, the defendant may be convicted
under an indictment charging him with the actual commis-
sion of the criminal act, although he was not personally pres-
ent, and would in a case of a common law felony be liable
only as an accessory; the reason being, as the court states,
that such an indictment charges the defendant according to
the legal effect of the offence, and, therefore, the defendant
is, in legal effect, guilty of using the instrument for the
criminal purpose.
Next it is contended that the state, over objection, was per-
mitted to introduce in evidence, the details of an alleged
rape committed by the plaintiff in error on the said Bella
Marano three months before the abortion, thus introducing
evidence of an entirely independent crime. The testimony
objected to was the statement of the witness that on the
occasion of her first intercourse with the defendant, he took
her upstairs in a room in his house where there was a mat-
tress and two chairs and said to her, "If you don't do as I
tell you I will shoot you," and at the same time took a big
revolver out of his back pocket, and then threw her down
and lifted up her clothes. The ground of the objection was
that the state had no right to show the details of this occur-
rence, except as they showed a motive for the crime charged
in the indictment, and that showing that 'Tie brandished a
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FEBEUARY TERM, 1917. 27
90 N, J, L, State v. Riccio.
weapon, is going outside of the indictment." The court
thereupon said, "I will strike out this last part as not being
competent to this issue, that is^ that he threatened her with
some weapon.'^ We think that the action of the court was
sufficient to meet the objection as specified by the defend-
ant's counsel, even upon the assumption that the testimoi^y
was incompetent. The contrary, however, is the fact, for
the indictment not only charges abortion, but, as has already
^been stated, the crime of assault and battery, and the tes-
timony was, of course, competent in proving this latter
oifencc.
Xaxt it is complained that it was reversible error for the
court to instruct the jury that the indictment charged the
defendant with aiding and abetting in bringing about an
abortion upon the Marano woman. Jf an indictment which
charges a person with being a principal in the bringing about
of an abortion upon the body of a pregnant woman is sus-
tained by proof that such person aided and abetted in bring-
ing about that result, it is not unreasonable to hold that
such an indictment, by implication, embraces in its charge
such aiding and abetting. But assuming that it does not,
and that the trial court erred in the statement complained
of, manifestly no harm could have come to the defendant in
instructing the jury that the indictment charged him with
being guilty of an offence which the proofs showed him to
have committed, and which justified his conviction on thje
indictment upon which he was being tried.
N'ext it is contended that the court erred in the following
instruction to the jury: "It is for you to say whether this
defendant did the thing named in the statute. Did he aid
and abet by any means whatsoever with the intent of bring-
ing about an abortion on this young woman. If he did, and
you find it by the weight of the evidence in this case, your
clear duty is to bring in a verdict of guilty.'^ First, it is
contended that the language used, "Did he aid and abet by
any means whatsoever," gave the jury to understand that
even if the defendant had been entirely innocent of any in-
tention to bring about a violation of law, they might never-
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28 NEW JERSEY SUPEEME COUET.
State V. Riccio. 90 N, J. L.
theless find him guilty. It is enough to say that a reading
of the whole charge satisfies us that it would have been im-
possible for the jury to have received any such idea from the
language complained of. Nor do we think that the excerpt
which is made the subject of the present objection, standing
alone, conveys any such impression. As to the latter part
of the instruction, that if the jury found by the weight of
the evidence that he did so aid and abet, it was their duty
to bring in a \^rdict of guilty, the attention of the court was
immediately called to this slip, and it added the following to
the instruction: "Of course, you will keep in mind what I
said first — if you find he did this thing by the weight of the
evidence, beyond a reasonable doubt, you should find him
guilty. I have already emphasized to you he is entitled to
the benefit of all reasonable doubt." Although the language
used for the purpose of eradicating the erroneous instruction
from the minds of the jury is not of the happiest, still we
think it made it perfectly clear to the jury that they would
not be justified in finding that the defendant did aid and
abet in the bringing about of the abortion, unless the weight
of the evidence was so preponderating as to satisfy them
upon this point beyond a reasonable doubt.
Lastly, it is contended that the court, having admitted in
evidence the illegal testimony with relation to the threats
made by the defendant as to the use of a revolver upon the
occasion of his sexiiial intercourse with the Marano woman,
it was under a legal duty to charge the jury to dismiss that
matter wholly from their minds, or in some proper manner
to impress upon them that this illegal testimony was not evi-
dential in the case. It is enough to say in disposing of this
ground of reversal — first, that no request for such an in-
struction was submitted on behalf of the defendant; and,
second, that the testimony stricken out was in fact com-
petent in support of the count in the indictment charging
the defendant with the crime of assault and battery.
On the whole ease we conclude there should be an
affirmance.
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FEBRUARY TERM, 1917. 20
90 N, J. L, Wheaton v. Collins.
- EDGAR T. WHEATON, RESPONDENT, v. JOHN COLLINS,
APPELLANT.
Submitted July 6, 1916— Decided March 5, 1917.
When a party enters into possession of premises which he has con-
tracted to purchase, which contract he afterwards successfully
repudiates on the ground that the title is unmarketable, and con-
tinues to occupy the premises after tender and refusal » of the
deed, he is liable to the owner for the fair rental value of the
premises during the period of occupation.
On appeal from the Union Circuit Court.
Before Gummere, Chief Justice, and Justices Teench-
ARD and Black.
For the appellant, John W. Bishop, Jr., and Kinsley
Twining,
For the respondent, McCarier £ English,
The opinion of the court was delivered by
GuMKERE, Chief Justice. The plaintiff in this case
brought suit to recover reasonable compensation for the use
and occupation by the defendant of certain property belong-
ing to the plaintiff in the town of Cranford. The trial re-
sulted in a verdict in his favor, and from the judgment
entered thereon the defendant appeals.
The situation disclosed by the proofs in the case was as
follows: Wheaton was the owner of two houses and lots in
Cranford, and entered into a contract with the defendant,
Collins, for the sale thereof to him, the deed to be delivered
on the 1st of April, 1911. The contract was entered into
in September, 1910, and shortly thereafter — at least some
time prior to the first of the following April — the defendant
entered into possession of the premises. When April 1st
arrived, plaintiff tendered a deed for the property to the
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30 NEW JERSEY SUPEEME COURT.
Wheaton v. Collins. 90 N. J. L.
defendant, whereupon the latter refused to accept the de-
Yivery, upon the ground that the title was not marketable.
He, however, continued in possession of the property. Tire
plaintiff then filed a bill in equity against hira to enforce
the performance of the contract, but, as the proofs in the
equity case disclosed that the plaintiff could not give a mar-
ketable title, the bill was dismissed. During all of this
time the defendant remained in possession of the plaintiff's
property. The present suit was then brought to recover from
him the fair rental value of the premises during the period
of occupation.
The first contention made before us is that the plaintiff
was not entitled to recover under the pleadings in the pres-
ent suit for the use and occupation of his property, unless
the relation of landlord and tenant existed between the par-
ties, and that no such relationship was disclosed. We do not
find it necessary to determine the soundness of the proposi-
tion thus advanced. The real merits of the case were tried
out, and the plaintiff was manifestly entitled to compensa-
tion for the deprivation of the use of his property. It was
to meet just such a case as this that the legislature passed
section 27 of the new Practice act of 1912, which provides
that **no judgment shall be reversed * * * for error as to
matter of pleading or procedure, unless after examination of
the whole case it shall appear that the error injuriously
affected the substantial rights of a party." Pamph. L. 1912,
;;. 377.
Next it is argued that the plaintiff was not entitled to re-
cover compensation for the occupation of the premises by
the defendant up to the time of the making of the decree
by the Court of Chancery in the specific performance suit,
because during that period the defendant was in possession
as an equitable vendee under the contract of sale. It may
be that if the equity suit had resulted in a decree for specific
performance, the defendant's occupation up to that time
might ])e considered as not being tortious, the extent of his
obligation to the plaintiff being to pay the purchase price
with interest from the date when the deed was agreed to be
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FEBRUARY TERM, 1917. 31
90 N, J. L. Brunhoelzl v. Brandes.
delivered. But whether this be the legal situation, or not,
under the circumstances suggested, we have no doubt that
it does not lie in the mouth of the defendant to assert in
one breath that he is in possession under a valid contract of
sale, and therefore not liable to make compensation for his
occupation of the premises, and in the next breath assert
successfully that he is under no obligation to perform the
contract, and is entitled to and does repudiate it.
The judgment under review will be aflBrmed.
CHARLES BRUNHOELZL, RESPONDENT, v. JOHN
BRANDES, APPELLANT.
Submitted December 15, 1916— Decided March 7, 1917.
The owner of an automobile lent it to an infant, by whose un-
skillful driving the car was injured. Heldy that an action in tort
against the infant wUl not lie.
The liability of infants for their torts and their immunity from
liability for their contracts cancel each other in so far as the
gravamen of the tort and the breach of the contract have a com-
mon basis of fact, the rule being that an infant cannot be held
liable for a tort that would in effect be the enforcement of his
liability on his contract.
On appeal.
This was an action in tort brought to recover damages for
injury to the plaintiff's automobile, resulting from the un-
skillful manner in which it was driven by the defendant,
who was an infant.
The amended state of demand set forth that the plaintiff
at the request of the defendant lent to the latter an auto-
mobile for use on the evening of June 29th, 1916, and
that on that same evening the defendant reported to plaint-
iff that the automobile had upset and was damaged. There
was no testimony by the plaintiff as to the cause of the acci-
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32 NEW JEESEY SUPEEME COUBT.
Brunhoelzl v. Brandes. 90 N. J, L.
dent, which by the testimony of the defendant and those who
were in the car with him, while possibly attributable to poor
judgment or lack of caution, was not occasioned by reck-
lessness, wantonness or gross negligence. At the close of
the evidence the defendant's attorney moved for a direction
upon the ground that tlie defendant was an infant, and that
the testimony showed merely a breach of his contract of bail-
ment, which motion was denied.
Before Justices Gaiirisox, Parker and Bergen.
For the appellant, Michael Dunn,
For the respondent, Ijync}i& Bamiii.
The opinion of the court was delivered by
Garrison, J. The appellant's motion for judgment
should have been granted. The general liability of infants
for their torts does not take from them their special im-
munity from liability for their contracts; each rests upon
a policy of the law. When these two policies come into con-
flict they cancel each other to the extent that they deal with
the same subject-matter. If this cancellation be complete,
so that all that is claimed as the foundation of the infant's
tort is covered by the breach of his contract, nothing remains
upon which to found an action of tort independently of the
contract. The practical test, therefore, would seem to be not
whether the tort arose out of or was connected with the in-
fant's contract, but whether the infant can be held liable
for such tort without in effect enforcing his liability on his
contract.
In the present case the promise of the infant as bailee
was that he would exercise reasonable care in driving the
borrowed car. If injury came to the car because of the fail-
ure of the bailee to exercise such care, he cannot be held lia-
ble therefor in tort without being in effect held liable for a
breach of his promise. Tlie facts that constitute the breach
of such promise cancel all of ,the facts that constitute the
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FEBRUARY TERM, 1917. 33
90 N.J, L. Brunhoelzl v. Brandes.
alleged tort, leaving nothing over and above the breach of
the contract upon which to found an action. This result,
which harmonizes tlie two policies of the law, cannot be
frustrated by allowing a plaintiff to elect to sue in tort
rather than in contract, as he might do in the case of an
adult where no similar policy was involved.
This, in somewhat more extended form, was the ratio
decidendi of a very early case in this state. Scliench v.
Strong, 4 N, J. L. 87. •■
The facts in that case were that the plaintiff had let the
defendants have his riding chair (whatever that may be), to
go a certain journey, in consideration of which they agreed
to employ it for no different journey and to- use it with
moderation and care, notwithstanding which they did go
a different journey and did carelessly and improperly break
the- chair in different parts. If being admitted that the de-
fendants were infants, it was held that the plaintiff should
have been nonsuited. The opinion delivered by Chief Jus-
tice Kirkpatrick goes much further than it is necessary for
us to go in the present case, in which there was no de-
parture from the stipulated use of the car, whereas in the
decided case a different journey was taken. Without ex-
pressing any opinion upon this point, we consider the case
an authority, as to the soundness of which upon the ques-
tion involved we have no doubt.
In the earlier English case of Jennim^s v. Rundall (8
Term Reports, p, 335), Lord Kenyon, C. J., and the other
judges of the King^s Bench laid down the rule that we are
applying to the present case, an excellent statement of which,
with ample citations, will be found in 14 Jf^. C. L. 261.
The judgment of the Paterson District Court is reversed,
and, upon the facts stipulated in the agreed state of the case,
judgment of no cause of action is ordered to be entered.
Vol. xc. 3
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U NEW JEKSEY SUPREME COURT.
Ciesmelewski v. DomalewskL • 90 N. J, L,
MARCEL CIESMELEWSKI, APPELLANT, v. SYLVESTER
DOMALEWSKI, RESPONDENT.
Submitted December 15, lOlG—Decided March 7, 1917.
Upon a trial before the District Court without a jury, it was not error
to deny the plaintiff's recjuest for a voluntary nonsuit made after
the coiHl had announced that judgment was given for the
defendant.
On appeal.
Before Justices Gariiison^ Parker and Bergen.
For the appellant, Eugene R, Eayne and Anthony Boiti,
For the respondent, James E. Pyle.
t The opinion of tlie court was delivered by
GarrisoNj J. This was an action for slander tried before
the District Court without a jury. Judgment was rendered
for the defendant. Upon this appeal the plaintiff contends
that it was error to admit the testimony of one Krzysicki.
Why the testimony of this witness was inadmissible is not
stated in tlie brief or suggested by the two cases cited. The
wdtness was called by the appellant and his cross-examina-
tion as to his relation to the parties and his interest in the
case was entirely proper.
The other point argued is that plaintiff was not permitted
to take a voluntary nonsuit after the court had announced
that a judgment would be entered for the defendant
There was no error in this ruling. Section 160 of the
Practice act, which denies to a plaintiff the right to submit
to a voluntary nonsuit after the jury have gone from tlie
bar to consider their verdict, applies to the District Court.
Greenfield v. Vary, 70 N. J. L. 613.
Where the court, sitting as a jury, has pronounced its
judgment, the trial has progressed to a stage at which under
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FEBRUARY TERM, 1917. 35
90 N, J, L, Haddon Heights v. Hunt.
this statute a voluntary nonsuit is not a matter of right In
such a ease by analogy the verdict has not only been consid-
ered, it has been rendered.
The judgment of the First District Court of Jersey City
is affirmed.
BOROUGH OF HADDON HEIGHTS, DEFENDANT, v. SAMUEL
P. HUNT, PROSECUTOR.
Submitted April 20, 1917— Decided April 23, 1917.
An ordinance, imposing an occupation tax, that provides for ex-
emptions that have no rational connection with such occupation,
is invalid.
On certiorari.
Before Garrison, J.
For the prosecutor, Cyrus D. Marter.
For the defendant, Jess & Rogers,
Garrison, J. The ordinance is infirm, whether the occu-
pation tax be a police or a revenue measure, for the reason
that there is no rational connection between the occupation
that is taxed and the conditions that exempt from such tax.
Hesidence in the borough is admittedly not enough, and
having a regular place of business is on the same footing,
in the absence of a requirement that the business conducted
at such place shall bear some relation to the wares so peddled.
To exempt a peddler of produce because he had a music
store or a photograph gallery would be arbitrary in the
extreme. Whether or not such suggested requirement would
meet this defect is not up for decision.
The payment of real estate taxes on a residence or place
of business aifords no basis for exemption from an occupa-
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36 NEW JERSEY SUPEEME COUET.
7
Peiifia. R. R. Co. v. Gebhardt. 90 N, J. L,
tion tax; the two imposts are entirely unrelated. A non-
resident might own and pay taxes on all the real estate in
the borough and still be required to pay this occupation tax.
The grounds of exemption being thus arbitrary and illu-
sory, the ordinance fails to support the conviction, which is
set aside, with costs.
PENNSYLVANIA RAILROAD COMPANY, APPELLANT, v.
WILLIAM C. GEBHARDT, RESPONDENT.
Submitted December 15, 1916— Decided February 8, 1917.
The provision of the General Railroad law (3 Comp, Stat, p. 1910,
§ 40), requiring that the clerk of the Supreme Court be carried
free of charge, is unconstitutional as to any railroad company
that is under ,no contract obligation to perform that duty.
On appeal.
Before Ju.stices Garrison, Parker and Bergen.
For the appellant, Vredenbnrgh, Wall & Carey,
For the respondent, Josiah Stryher and John W. Wescott,
attorney-general.
The opinion of the court was delivered by
Garrison, J. This appeal presents the question of the
constitutionality of the statutory provision that the clerk
of the Supreme Court shall pass free of charge over all rail-
roads operating within this state. Pwmph. L. 1914^ p. 358.
In the court below the constitutionality of this provision
was assumed and judgment rendered for the defendant, the
action having been brought by the railroad company for
fares, which, but for such statutory provision, had been
earned by the plaintiff.
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FEBRUARY TERM, 1917. 37
90 N. J. L, Pemia. R. R. Co. v. Gebhardt.
From the judgment thus rendered^ the railroad company
has appealed upon the ground that the statutory provision in
question is unconstitutional.
In its essential features the case thus presented is indis-
tinguishable from that of the secretary to the governor re-
cently passed upon by the Court of Errors and Appeals siiA
nomine Pennsi/lvania Radlroad Co, v. Herrmann, 89 N, J.
L, 582. In that case, as in this, the obligation to carry
the public official in question free of charge rested upon no
contract between the railroad company and the state, con-
tained either in the charter of such company or in the char-
ter of any of its constituent companies, or in any general
legislation under which any of such companies had been in-
corporated or under which they had received substantial
accessions to their corporate powers. In the absence of any
such contract obligation, it was held that a statutory require-
ment similar to the one now under review was an uncon-
stitutional taking of the property of the stockholders of the
railroad company that was not justified under the police
power of the state or the reserved right of the legislature.
The sole point of difference that is relied upon to distin-
guish that case from the one before us, is that in the decided
ease the legislative provision for free carriage was enacted
in 1907, whereas, in the present case, such provision was
enacted in 1873. It is not contended that this difference in
dates gives rise to any contract right, on the contrary the
earlier provision is sought to be sustained solely as a valid
exercise of the police power; to which end an excerpt from
the opinion of this court in the case of Deiwmare, Ldckar-
wanna and Western Railroad Co. v. Board of Public Utilities
Commissioners, 85 N, J. L, 28, is quoted and relied upon.
The language thus quoted, as was pointed out by the Court
of Errors and Appeals in the Herrmann case, occurred in the
discussion of a side issue of purely speculative interest that
did not enter into the decision of the case. For this reason
the soundness of the views suggested in this connection was
not considered in the appellate court.
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38 NEW JERSEY SUPREME COURT.
Pen^na. R, R. Co. v. Gebhardt. 90 N. J. L.
Now, however, when they are put forward by counsel as
the basis for the decision of the case in hand, the views thus
relied upon have been considered not for the purpose of de-
termining their historical value in accounting for the prob-
able motives that actuated earlier l^slation, but for the
purpose of determining their constitutional value in sup-
porting such legislation as a valid exercise of the police
power. Regarded in this latter aspect, we find nothing in
the view urged by counsel, no matter from what source de-
rived, that constitutionally justifies the imposition upon the
stockholders of railroad companies of the financial burden
of furnishing free transportation to state oflScials.
In so far as such a view apparently receives support from
the language of our earlier opinion, such language was un-
forti^nate and calls for definitive treatment, since its un-
toward results have not been effectually counteracted merely
by pointing out the ohiter character in w^hich such language
was employed.
In this connection we may add that no theory of the police
power that has been suggested, or brought to our attention,
justifies in our judgment the imposition of the statutory
requireralent under consideration by any general legislation,
early or late, that does not in legal effect give rise to a con-
tract obligation upon the part of the railroad company to
perform the duty imposed upon it. The present case, there-
fore, is not distinguishable from that of Pennsylvania Rail-
road Co. V. Herrmann, and hence upon the authority of that
ease the judgment of the District Court in the present case
is reversed, and judgment given in favor of the appellant
for the sum due it by the stipulation of the parties in the
court below. •
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FEBRUARY TERM, 1917. . 39
90 N. J. L. Roth & MiUer v. Temkin.
ROTH & MILLER, A CORPORATION, RESPONDENT, v. HY-
MAN TEMKIN AND SAMUEL LEVY, APPELLANTS.
Submitted December 15, 1916— Decided April 5, 1917.
A broker who procures a loan of money for his principal under the
express contract of the latter to pay him a greater compensation
than that allowed by section 5 of the Usury act, may, notwith-
standing such void contract, recover the reasonable value of his
services, not exceeding the statutory rate.
On appeal.
Plaintiflf corporation, engaged in the real estate, insurance
and mortgagee loan brokerage business, entered into a written
contract with defendant Hyman Temkin, engaging plaint-
iff to procure a mortgage loan of $18,000 upon property of
defendants on Bavine street, Jersey City, in said contract
mentioned, for procuring which and the expense of search,
said defendant Temkin agreed to pay plaintiff the sum of
$550 and give it the busineess of placing the insurance upon
said property, which business, it, plaintiff, conducted for
profit. The expenses of search and other expenditures for
procuring such loan were about $160, thus leaving the
plaintiff $390 as brokerage for procuring said loan. The
plaintiff in pursuance of said contract, negotiated for, and
procured a loan of $18,000, $^,000 of which was payable in
installments, for a period of two and one-half years. The
defendants, Temkin and Levy, accepted the mortgage loan
of $18,000 encumbering their property on Ravine avenue,
Jersey City.
The defendant Levy was a partner of defendant Temkin,
and the owner of the mortgaged premises, and while he took
no personal part in the negotiations for this loan — :his part-
ner Temkin acting in the matter — ^both defendants accepted
the loan and Levy signed the bond and mortgage securing it.
A previous action was brought by this plaintiff against
these defendants, upon the said written contract, in which
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40 NEW JERSEY SUPREME COURT.
Roth & MiUer. v. Temkin. 90 N, J, L,
the court found that the said contract was- usurious and
entered into in violation of section 5 of the Usury act in that
the plaintiff was by the te^ms of said agreement, to receive
in value as brokerage for procuring said loan, more than fifty
eentis on $100 for a year, in which action, for said cause, the
court nonsuited the plaintiff. The record of said action was
offered and received in evidence in this case. No other agree-
ment was made between the parties than therein set forth.
This action is for the recovery of the reasonable value of the
services rendered by plaintiff under said contract, and the
court found that the sum of $217.50 is the reasonable value
of such services, and rendered judgment for plaintiff against
both defendants for said sum, with costs, to which ruling
of the court defendants prAyed and were allowed an
exception.
The defendant Levy requested the court to find that he
was not a party to said contract, nor did he take part in the
active negotiations of the same, which finding the court
made.
The defendant Levy furtlier requested the court to find
that the inere fact that Temkin was his partner at tliis time,
and partner in the ownership of said real estate would not
authorize Temkin to bind him by the contract or agreement
in suit, and that judgment should be rendered in favor of
defendant Levy against the plaintiff, which finding the
court refused to make, and to which ruling of the court de-
fendant prayed and was allowed an exception.
Defendants further requested the court to find that no
recovery could be had in this case for the reasonable value
of plaintiff's services, because there was an express agree-
ment between the parties embracing the same subject-matter,
which finding the court refused to make, to which ruling
of the court defendants prayed and were allowed an
exception. '
The defendants requested the court to find that because
the contract between the parties was usurious and in viola-
tion of section 5 of the Usury act, the plaintiff could not
recover in this action, which finding the court refused to
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FEBRUARY TERM, 1917. 41
90 N. J, L. Roth & Miller v. Temkin.
make, and held that plaintiff was entitled to recover in this
action, to which ruling the defendants prayed, and were
allowed an exception.
Section 5 of the Usury act (4 Comp. Stat., p, 5706), reads
as follows:
"That every solicitor, scrivener, broker, or driver of bar-
gains, who shall directly or indirectly, take or receive more
than the rate or value of fifty cents for brokerage, or solicit-
ing or procuring the loan or forbearance of one hundred dol-
lars for a year, and so in proportion for a greater or less
sum, or for a longer or shortef time, or above twenty-five
cents for drawing, making or renewing the bond or bill for
such loan or forbearance, or for any counterbond or bill con-
cerning the same, shall, for every such offence, forfeit six-
teen dollars, to be recovered by action of debt, with costs,
by any person who shall sue for the same; the one moiety
to the prosecutor, and the other to the state."
Before Justices Gaerison, Parker and Bergen.
For the appellants. Gross <6 Gross.
For the respondent, Frederick C. Henn.
The opinion of the court was delivered by
Garrison, J. The appellant Temkin, having had the
benefit of the services rendered by the respondent at his re-
quest, seeks to avoid paying the reasonable value thereof, be-
cause he had expressly promised to pay therefor a larger sum
than that permitted by section 5 of the Usury act.
This penalization of the respondent finds no justification in
the language of the statute or in its policy, which is di-
rected not against the borrowing of money or the rendi-
tion of services in connection therewith, but, on the contrary,
recognizes the legality of such services by fixing the maxi-
mum compensation that may lawfully be received therefor.
The penalty for the violation of this provision is not a
forfeiture, as in the historic Usurj' act, but a specific penalty
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43 NEW JERSEY SUPBEME COTJBT.
Roth & Miller v. Temkin. 90 N. J. L.
to be recovered in a qtti tarn action. The contract is un-
lawful in the sense that it is in law non-existent and, hence,
unenforceable, but such illegality does not relate to the ser-
vices themselves so as to render them immoral, or incapable
of being made a basis of recovery independently of the void
express contract. It is this feature that distinguishes usury
statutes from contracts that call for the doing of that which
is immoral or reprobated on grounds of public policy, in
which case the courts are closed to the parties in pursuance
of a judicial policy that thi^s purposely penalizes the par-
ticipants in such immoral and illicit transactions ; but where
the sole illegality in a contract, otherwise lawful and moral,
is that it calls for a compensation that is not allowed by.
statute, the courts have no judicial policy other than that of
seeing that the statute is observed and that such penalties or
forfeitures as the legislature hai provided are enforced. The
statute contains a prohibition and a penalty, each of which
in an appropriate action the courts will enforce; the statute
contains no forfeiture and presents no occasion for the con-
struction of one by judicial policy.
This was the view taken of a similar statute by the appel-
late division of the Supreme Court of New York in a case
that arose out of a written agreement to pay a stipulated
sum for certain services looking to the setting aside of the
will of Samuel J. Tilden, in connection with which the
plaintiff claimed that he had procured for the defendant a
loan of $30,000.
The agreement being in evidence and the Usury act being
substantially similar to ours, a motion to nonsuit was made
at the trial upon the grounds urged in the present case. In
denying this motion the trial court said : "I decide that the
plaintiff cannot maiatain an action upon that paper; but, in-
asmuch as it is the right of this plaintiff to recover against
this defendant for services which he has rendered at his
request, he may go to the jury upon that theory and recover
what the jury shall say his services were worth, provided the
jury will find that the defendant employed him to render
services."
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FEBRUARY TERM, 1917. 43 »
90 N, J. L, Roth & MUler v. Temkin.
Upon appeal, Justice Cullen said: "There is no pro-
vision in the statute rendering a contract or agreement to
pay a greater compensation than that prescribed wholly void.
One who renders services as a broker under an agreement to
pay a higher compensation is entitled to receive pay for his
services, but he cannot recover any more than the statutory
compensation. As the statute merely prescribes a rate of
compensation, but does not defeat the action, it was not
necessary for the defendant to plead the statute; no re-
covery could be had against the defendant for the alleged
breach of his written agreement, we do not see why the plaint-
iff was not entitled (if the jury found the facts in his favor)
to recover for the services at the statutory rate." Btichanen
V. Tilden, 18 App, Dh\ {N, Y.) 123.
The view thus illustrated seems to us to be both in theory
and in practice preferable to the opposite view which makes
a gratuity of services rendered to one who expected to pay
for them merely because he agreed to pay for them more
than the plaintiff was legally entitled to receive. This is
both harsh and illogical. The rendition and acceptance of
the services gave a complete right of action, subject to the
statutory limitation as to the amount to be recovered, which
cannot be exceeded by the making of an express agreement
on which an action could not be maintained. Such a con-
tract being void leaves the right of action that was entirely
independent of such contract unaffected by anything in the
statute which expressly provides a penalty that is utterly in-
consistent with the forfeiture of all right of recovery upon
a perfectly valid right of action.
Finding nothing in the statute that forfeits the plaintiff's
right to recover for his services within the statutory rate,
and no judicial policy that requires or would justify the im-
position of such a penalty, it remains only to mention the
other contention of the appellant, viz., that the plaintiff can-
not recover upon a quantum meruit ^ because he has an ex-
press contract. The plaintiff has no express contract, the
statute settles that, and it is also res adjndicata and the law
of the case as between these parties.
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44 NEW JERSEY SUPBEME COURT.
L
Buohl V. Beverly. I PO 'S. J, L,
We are not saying that the earlier ease was properly de-
cided, that question is not before ns. It was decided m favor
of the defendant, and, hence, he cannot now say that an
express contract that was non-existent when an action was
based upon it, is existent when an action is not based upon
it. The appellee had a right of recovery against the appel-
lant Temkin, upon the testimony set forth in the state of
the case, but there was no testimony to support a judgment
against the appellant Levy. The mere fact that Levy was
a partner of Temkin and that he joined in the execution
of the mortgage is not enough, the transaction was not part-
nership business, and the fact that a broker was employed
or was necessary, does not appear by the state of the case to
have been even known to Levy. There was, therefore, no
basis for the raising of an implied contract between Levy
and the plaintiff. The judgment of the Second District
Court of Jersey City is affirmed as to the appellant Temkin
and reversed as to the appelant Levy.
CHARLES A. BUOHL, PROSECUTOR, v. BOARD OF COMMIS-
SIONERS OF THE CITY OF BEVERLY, RESPONDENT.
Submitted December 13, 1916— Decided February 27, 1917.
1. The legislature did not intend by the provisions for the initiative
in the Walsh act {Pamph. L, 1911, p. 462) to make it possible
to change fundamentally the scheme of government with power
concentrated in the commissioners therein provided for, and
again scatter the powers among different boards.
2. The act to establish an excise department (Pamph. L. 1901, p.
239; Comp, Stat, p. 2918) is superseded by the Walsh act
(Pamph. L. 1911, p. 462) in cities which adopt the latter.
On application for mandarmis:
Before Justices Swayze, Minturn and Kalisch.
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FEBRUAEY TERM, 1917. 45
90 N. J, L. Buohl V. Beverly.
For the application, Stackhouse & Kramer.
For the respondents, Ernest Watts and John 8. Homer.
The opinion of the court was delivered by
SwAYZE, J. This is an application for a mandamus to
compel the authorities of Beverly to call an election to pass
on a proposed ordinance creating a board of excise commis-
sioners for that city. The proposed ordinance was initiated
by petition under the Walsh act. Pamfh. L. 1911, ;;. 462.
The authority to create an excise commission exists, if it
exists at all, under the act of 1901. Pamph. L., p. 239;
Camp. Stat,, p. 2918. The important question is whether
that act has been superseded in cities adopting the Walsh act.
By the amendment of 1914, it was enacted that municipal-
ities which had adopted the act were a distinct class and
should not be subject to any laws of this state except laws
applicable to all municipalities other than counties and
school districts. Pamph, L, 1914^ p. 253. If this legislation
were valid, it would be entirely clear that Beverly would
not be subject to the act of 1901. . But it has been settled
that cities under the Walsh act do not for this purpose con-
stitute a valid class under the constitution. Delaware River
Transportation Co. v. Trenton, 86 N, J. L. 48; affirmed. Id.
679.
There can be no doubt that the object of the Walsh act was
to concentrate . all the powers of the municipality in the
commissioners provided for by that act. The language of
section 4 is explicit. The question now presented is whether
the power is so extensive that the commissioners may them-
selves abdicate a portion of their power in favor of an excise
commission authorized by another and earlier act applicable
to all cities and towns except cities of the first class; or
rather the question is whether the commissioners can be thus
compelled to abdicate the power given them by the Walsh
act by means of a vote on a measure initiated against the will
of the commissioners.
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46 NEW JEESEY SUPREME COURT.
Buohl V. Beverly. 90 N. J. L.
The language of section 8 of ttie Walsh act as amended in
1914 by what is called the Hennessy act, is broad enough to
authorise such a fundamental change; but we think the same
reason that led to the condemnation of section 1 of the Hen-
nessy act requires the condemnation of section 2. We know
no reason why cities governed by the Walsh act should have
these extensive powers of what is called home rule, that is
not applicable to cities governed under other acts; and un-
less there is some such reason, the classification according to
well-settled principles is illusory. Wfe think the proposed
ordinance cannot be justified under the act of 1914.
The next question is whether it can be justified under the
act of 1911 (Walsh act) as amended in 1913. The creation
of an excise board by city ordinance is certainly one of the
powers possessed by the governing body of the city prior to
the act of 1911. It therefore passed to the commissioners,
if we look only at the language of section 4. That language,
however, must be construed in the light of the intention of
the legislature as evinced by the general scheme of the act.
Looking at it in that light, we think the legislature could
not have meant to put it in the power of fifteen per cent,
of the voters to compel the commissioners to submit to the
voters an ordinance which would divide the powers of gov-
ernment which the act showed a clear purpose to concen-
trate. If the commissioners can thus be shorn of their power
over the sale of intoxicating liquors, they can be shorn of
many other powers, in fact of all powers they may have been
authorized to exercise by ordinance. For instance, the com-
missioners of the city of Jersey City, which has adopted the
Walsh act, might by ordinance, initiated by fifteen per cent,
of the voters, and adopted perhaps by a bare majority on a
very light vote, be forced to give over again to a board of
street and water commissioners or a board of finance the
very powers that were taken away by the adoption of the
Walsh act With the policy of ordinances initiated by a
small per cent, of the voters we have at present no concern.
All we now hold is that the legislature did not intend by
the provisions for the initiative in the Walsh act to make it
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FEBRUARY TERM, 1917. 47
90 N. J. L. Curtis v. Joyce.
possible to change fundamentally the scheme of government
with power concentrated in the commissioners therein pro-
vided for, and again scatter the powers among different
boards.
The application is therefore denied, with costs.
G. HOWARD CURTIS, RESPONDENT, v. CHARLES E. JOYCE,
PROSECUTOR.
Argued November 9, 191^— Decided February 21, 1917.
1. A conviction setting forth that the defendant operated an auto-
mobile on High or Main street in the town of Mount Holly,
township of Northampton, &c., while under the influence of in-
toxicating liquor, sufficiently shows a violation of the act of 1913
without finding that High or Main street was a public street
2. A defendant who desires to object to the jurisdiction of a magis-
trate on the ground of bias, should do so before the trial or
argument.
Before Justices Swayze, Minturn and Kalisch.
For the prosecutor, James Mercer Davis.
For the complainant, defendant in certiorari, V. Claude
Palmer.
The opinion x)f the court was delivered by
Swayze, J. Before dealing with the questions raised in
this case, we think it advisable to call attention to the method
of entitling the cause. It is entitled Charles E. Joyce v.
The Judge of the Court of Common Pleas of Burlington
County. All that the judge had to do with the case was to
hear it on review of the proceedings had before the recorder.
While the writ is directed to him, he is no party to the cause
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48 NEW JERSEY SUPREME COURT.
Curtis V. Joyce. 90 N, J, L.
and should not be so treated. The case should be entitled
under rule 15 as it was l^fore the recorder, 6. Howard
Curtis V, Charles E. Joyce.
No reasons are printed, but as the complainant, defend-
ant in certiorari, makes no objection^ we deal with the rea-
sons set forth in the prosecutor's brief.
The proceeding is under the supplement of 1913 to the
Disorderly Persons act. The complaint charges that Joyce
operated and drove an afitomobile on the "highway of the
street of Mount Holly known as High or Main street while
under the influence of intoxicating liquors." He was con-
victed of having operated an automobile on High or Main
street in the town of Mount Holly, township of Northamp-
ton, county of Burlington, in the State of New Jersey, while
under the influence of intoxicating liquor. We think this is
enough to show that the offence was committed upon the
public street or highway. The complaint charges that it
was on the highway of (evidently a misprint for "or") the
street known as High or Main street, and although the con-
viction does not use the word highway, we think there is a
presumption that the High or Main street of a town is a
public street.
As to the alleged bias of the recorder, we agree with the
judge of the Common Pleas that the prosecutor should have
challenged before the case was heard, as provided by section
225 of the Practice act. Comp. Stat, p. 4122. Although
this is a section of the Practice act., it enacts a rule which
should govern in all courts. It would be intolerable to allow
a litigant to speculate on the result of a case, and raise a
question of jurisdiction only after the decision. If the pros-
ecutor did not know the alleged bias at the time, it may be
his misfortune, but it is a misfortune arising out of a want
of knowledge that it was his duty to acquire if he wanted
to profit by it.
We think the conviction is sufficient in form. This dis-
poses of the reasons argued. The eighth reason, if we may
judge from the respondent's brief, raises the question that
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FEBRUARY TERM, 1917. 49
90 N, J. L, Dale v. Bayhead.
the prosecutor was deprived of his constitutional right to a
trial by ju^}^ This question is similar to that discussed in
the Rodgers case just decided, and it would be interesting
to consider whether the same rule would apply to a case
where tlie only proof was that the defendant drove an auto-
mobile on a public street while he was under the influence
of intoxicating liquor. We are precluded from dealing with
this question as the prosecutor has abandoned his eighth
reason.
The judgment must be affirmed, with costs. .
AMY SLADE DALE, PROSECUTOR, v. BOROUGH OF BAY-
HEAD, RESPONDENT.
Argued November 10, 1916 — Decided February 27, 1917.
By virtue o^ the act of 1916 (Pamph, L„ p. 525), an ordinance for
the issue of municipal bonds is conclusively presumed to have
been duly and regularly passed and to comply with the pro-
visions of the statutes; and its validity cannot be questioned
except in a suit, action or proceeding commenced prior to the
expiration of the twenty days after the first pubUcation of the
statement required by the act. Held^ in an action commenced
after the expiration of the twenty days, that the conclusive pre-
sumption applies to a case where the municipality had lawful
authority to make the improvement at the time proposed for the
issue of the bonds although not at the time of the first publi-
cation of the ordinance and that the validity of the ordinance
could not be questioned.
On certiorari.
Before Justices Swayze, Mixturn and Kaliscii.
For the prosecutor, Charles E. Scrihner.
For the defendant, Clarence II. Murphy,
ToL. xc. 4
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r>0 NEW JERSEY SUPREME COURT.
Dale y. Bayhead. ' 90 N. J. L.
The opiaion of the court was delivered by
SwAYZE, J. The question is the validity of an ordinance
providing for the issue of bonds for the construction of a
sewer system. The ordinance for the bonds was passed by
the council July 17th, 1916. It was published Jvdy 2lst.
The statement published therewith as required by statute
gave notice that the bonds would hQ issued and delivered
after August 18th; but would not be issued if protest was
filed under section 9, chapter 252 of the laws of 1916, un-
less a proposition for the issuance was adopted at an election
under that section. There was no protest. Thereupon, by
virtue of section 2, paragraph 3 of the act of 1916 {Pamph.
L., p, 525), the ordinance was conclusively presumed to have
been duly and regularly passed and to comply with the pro-
visions of that or any other act. It is said, however, that
this conclusive presumption is not applicable to a case where
the borough is not lawfully authorized to issue bonds. We
do not doubt that proposition. The answer is that it is not
applicable; in this case, on the day fixed for the issue of
bonds, August 18th, the borough had tho authority; by vir-
tue of an election held 'August Ist, pursuant to section 90
of tlxe Borough act. Camp. Stat., p. 273. It is urged that
the ordinance for the issue of the bonds wa.s passed before
that election and that the borough had no authority to con-
struct sewers at the time the ordinance was passed and the
statement published. This fact, however, shows only a fail-
ure in the proceedings for the bond issue, and in the absence
of the protest provided for by the act we are compelled to
the conclusive presumption that the ordinance was duly and
regularly passed and complied with the statutes; by express
statutory provision the validity of the ordinance cannot be
questioned, since no action or proceeding was commenced
l)rior to the expiration of the twenty days. Cases decided
})rior to the act of 1916 are not applicable. The writ is
dismissed, with costs.
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FEBRUARY TERM, 1917. ' 51 '
90 N. J, L. Fidelity TrUst Co. v. Essex Bd. of Taxation.
FIDELITY TRUST COMPANY, EXECUTOR OF THOMAS L.
CARROW, PROSECUTOR, v. ESSEX COUNTY BOARD OF
TAXATION ET AL., RESPONDENTS.
Submitted December 15, lOlG—Decided February 27, 1917.
1. A taxpayer, on May 20tb, owned household goods, jewelry, prom-
issory notes, and deposits in bank, and was assessed for person-
alty at the value of the household goods only ; the county board
of taxation subsequently assessed the jewelry, promissory notes
and deposits in bank as omitted property. Beld^ that this was
correct, and that the county board was not bound to take the
proceedings required in the case of undervalued property.
2. Where it is discovered after the owner's death that personal
property has been omitted from taxation, it is a sufficient com-
pliance with the statute to give notice of the assessment of the
omitted property to the executor, who is then the owner.
.3. Where an owner dies after May 20th, and property omitted is
subsequently assessed, it should be assessed in the name of the
owner on May 20th, not in the name of his executor.
On certiorari.
Before Justices Swayze, Mixturn and Kaliscii.
For the prosecutor, Louis Hood.
For the defendants, Harry Kalisch,
The opinion of the court was delivered by
Swayze, J. This case is in narrow compass. Thomas L.
Carrow was assessed in 1915 for personal property valued
at $200. He died August 3d, 1915. On December 13th the
county board of taxation made an assessment against his
executor for personal property, $50,900, as omitted property.
Notice was at once given to the Fidelity Trust Company, the
executor, which stated that they would be heard by the
county board on December 18th. They were heard by coun-
sel on that day, and the assessment was affirmed. It is not
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:>2 NEW JERSEY SUPBEME COUBT.
Fidelity Trust Co. v. Essex Bd. of Taxation. 90 N. J. L,
questioned that Carrow on May 20th had that amount of
assessable property. It was apparently made up of the fol-
lowing items taken from the inventory of his estate : House-:
hold furnituce, $200; jewelry, $232; note of Waring, $100;
note of Mager, $6,500; loan to Waring, $2,000; deposit in
savings department of Fidelity Trust Company, $5,433; de-
posit in banking department of Fidelity Trust Company,
$36,468. The first point made is that the case is one of un-
dervaluation of property assessed, and not an assessment of
property omitted by the assessor. On this premise the prose-
cutor argues that the county board could not act of their
own motion, but must have a ^v^itten complaint of the col-
lector, a taxpayer, or the governing body of the taxing dis-
trict, as required by section 28 of the Tax act. Comp, Stdt.,
p. olOT. The question is one of fact We must assume in
accordance with the ordinary presumption that the assessor
acted honestly. If so, he evidently assessed only the house-
hold goods at 224 Broad street, which were later inventoried
at the exact amount of the assessment. No doubt this was
hwause the household goods were the only personal property
visible and, with the exception of the jewelry, the only tan-
gible personal property. We think the assessor assessed the
household goods only and omitted to assess the jewelry, notes,
loans and bank deposits. The board was right, therefore, in
following the procedure prescribed for omitted property. We
attribute no weight to the stipulation that the taxing au-
thorities of the city of Newark assessed all the personal
property of which Thomas L. Carrow was possessed on May
20th; 1915, in the sum of $200 in bulk. The most this can
mean, in view of the facts revealed by the inventory is that
they assessed all the personal property so far as they knew,
the most that anyone could do.
h is also argued that notice of the addition to the assess-
ment was not given to the owner as required by section 28.
If by ^^owner'^ the statute means owner on May 20th, the
prosecutor is right, since that owner was dead. This is not
th(^ ])ropcr construction since it is unreasonable, and would
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FEBRUARY TERM, 1917. 53
90 \. J. L. Fidelity Trust Co. v. Essex Bd. of Taxation.
require not merely an impossibility but an absurdity. We
assume that the legislature meant what it said in section 2
of 'the Tax act that all personal property within the juris-
diction of the state not expressly exempted should be sub-
ject to annual taxation at^its true value. This can only be
accomplished in a case where omitted property is discovered
after the owner's death by giving notice to his executor or
administrator. The executor or administrator is then the
owner, and there is no other owner to whom notice can be
given.
It was erroneous to assess in the name of the executor,
which had no title on May 20th. This error, however, does'
not release the property from taxation. The court is re-
quired to make a proper levy, imposition or assessment in
all cases in which there may lawfully be an assessment,
imposition or levy. Gomp, Stat, p. 5124, § 39. We see no
difficulty caused by the provision of section 5 of the Tax act
(Conip, Stat,, p, 5085), that persons assessed for personal
property shall be personally liable for the taxes thereon.
This can only mean that persons liable to taxation for per-
sonal property on May 20th shall be personally liable for
the tax ; this personal liability exists at their death, and like
any other personal liabilit}' then existing is to be satisfied
out of their estate.
There is no dispute about the amount and we will make
the assessment against Thomas L. Carrow at the valuation
and rate already fixed, and the total amount of the tax will
be the same.
Although we find a defect in the assessment as made be-
low, the substantial victory is with the defendants, and the
prosecutor will not be allowed any costs.
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54 NEW JERSEY SUPREME COURT.
I^wrie V. State Board of Dentistry. 90 N, J. L.
NICHOLAS LOWRIE, PROSECUTOR, v. STATE BOARD OF
REGISTRATION AND EXAMINATION IN DENTISTRY,
RESPONDENT. •
Argued November 8, 1916— Decided February 21, 1917.
1. Proceedings under the act of 1915 (Pamph. I/., p. 261) for illegal
practice of dentistry are essentially a civil suit, subject to the
procedure of the court in which they are brought. The defendant
is entitled to jury trial if demanded.
2. In a complaint under the act of 1915 (Pamph, L., p. 261) for
illegal practice of dentistry, it is enough to charge illegal prac-
tice in the language of the statute without setting forth specific
instances, to aver that the illegal practice was during a named
month without specifying the days, and that it was at defend-
ant's office in a named city without further specifying the place.
3. The legislature may authorize imprisonment for non-payment of
penalties imposed for offences that involve injury to the public.
On certiorari.
Before Justices Swayze, Mixturn and Kalisch.
For the proB.ecutor, Harry H, Weinberger,
For the defendant, Josiah Strijker and John W. Wescott,
attorney-general.
The opinion of the court was delivered by
8\VAYZE, J. The prosecutor was convicted by the Passaic
District Court under the act of 1915 (Pamph. L., p, 261)
of practicing dentistry without a license. Of the numerous
reasons for reversal we deal only with those which the coun-
sel for the prosecutor deemed worthy of argument in his
brief.
1. As to the argument that the District Court lost ju-
risdiction because a trial by jury was demanded and refused,
it is enough to say that the record fails to show any demand
for jury trial. If we look back of the brief, we find that the
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FEBRUARY TERM, 1917. 55
00 X. J. L. llowrie v. State Board of Dentistry.
thirteenth reason makes a broader claim and avers that the
statute itself is unconstiltutional because it fails to provide
for a trial by jury. It is true that the act contains no ex-
press provision to that effect, but the absence of an express
provision is not conclusive against the right to trial by jury.
The right depends upon the procedure required by the
statute, and that in turn depends on whether proceedings
under the Practice of Dentistry act of 1915 are summary
proceedings before the judge sitting as a magistrate, or are
essentially an ordinary civil action subject to the. procedure
of the District Court, if brought in that court, or the pro-
cedure of the Common Pleas, if brought there. sThere is
hmguage in the statute which indicates that the legishituro
intended that the proceeding should be a summary one sim-
ilar to summary proceedings before a magistrate without a
jury. The fourteenth section provides for a hearing in a
'"summary manner," and the sixteenth section sets forth a
form of "conviction." These words are proper only to a
summary proceeding. The authorization of a warrant as
the process to bring the defendant into court affords no argu-
ment, since a warrant may be used in a civil action as well
as in a summary proceeding, and this very statute authorizes
as well a summons, which is more applicable to civil suits.
There are other expressions, however, which clearly show an
intention that the proceedings should be in the nature of a
civil suit. The very fact^^ that the courts to which jurisdic-
tion is given are courts that, except for this and a similar
statute as to the practice of medicine, deal only with civil
suits, and that it is the "court" and not the judge as a mag-
istrate who is to hear testimony and give judgment, are per-
suasive that the legislature had in mind an ordinary civil
suit. Other expressions in the fourteenth section are con-
clusive. The proceeding is one between two parties, the
board of registration and examination in dentistry, "a.<
plaintiff/' and the defendant. The word plaintiff is quite
inappropriate to summary proceedings. Provision is made
for hearing '^without the filing of any pleadings,'' Xo such
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56 NEW JERSEY SUPEEME COURT.
rx)wrie V. State Board of Dentistrj'. 90 N, J, L,
provision would have been necessary or would have been
thought of in any but an ordinary civil suit, where but for
the statute, pleadings would have been required. Unless we
are to assume that the legislature did not use legal terms in
their well-established legal sense, we must assume that if
they had meant the proceedings to be summary, they would
have used the word complaint and not the word pleadings.
If we look further than the mere language of the statute at
its substance^ we find that not only js the proceeding in effect
a suit inter paries, but the judgment, if against the defend-
ant, is for the plaintiff — the dentistry board — for its own
l>enefit. Moreover, section 17 enacts that the costs shall be
the samo as costs taxed in actions in said courts, and that if
the judgment is in a District Court, it may be docketed in
the same manner as other judgments in that court. The fact
that imprisonment is authorized in case of failure to pay the
judgment, does not affect our conclusion, since that point
was involved and decided in cases under similar statutes.
White V. Neptune City, 56 N. J. L. 222 ; Bowrd of Health
V. CattclU 73 Id. 516; Tenement House Board v. Oruber,
70 Id, 257. The present case is, if possible, clearer than
those, especially since the legislature must be presumed to
have known of those decisions when it passed the act of 1915
and modeled it on the statutes there construed. We con-
clude, therefore, that the defendant would have been entitled
to trial by a jury if he had made tlie demand required by
the District Court act, and his present objection to the con-
stitutionality of the act of 1915 fails. But as the record fails
to show an application for a jury, no error appears in this
respect.
2. It is argued that the complaint is defective because not
definite and specific as to the time when, place where, and
j)erson upon whom, the defendant practiced dentistry. We
think that when, as in this case, the offence is charged in
the language of the statute, it is not necessarj^ to set forth
in the complaint each specific instance that may be relied on
as evidence of the practice. No reason is suggested why the
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FEBRUARY TERM, 1917. 57
90 N, J. L. Jx>wrie v. State Board of Dentistry.
ordinary rule sustaining that method of pleading statutory
offences is inapplicable. As to the allegation of time, we
think that in the case of a continuous offence like the pres-
ent, it is enough to charge, as is here done, that the defend-
ant practiced dentistry during the month of January, 1916.
As to the allegation of place, we are unable to see any force
in the argument that an allegation that the defendant prac-
ticed dentistry at his oflSce in the city of Passaic is not suffi-
ciently definite.
3. It is argued that the act of 1915 is unconstitutional
because it authorizes the court to commit a defendant to the
county jail for failure to pay the amount of the judgmenj^
rendered against him. As far as we know the only consti-
tutional provision limiting the power of the legislature in
this respect is that forbidding imprisonment for debt. That
provision, however, does not apply to penalties for offences
that involve injury to the public even though the statute
gives the penalties to a private individual. It was so de-
cided by the United States Supreme Court in a case involv-
ing the construction of the act for the government of the
Philippine islands. Freeman v. Umted States, 217 U. S,
539. The report of this case in 19 Ann. Cos. 755 has a valu-
able note collecting the authorities. We cannot doubt that
it is within the power of the legislature to make the prac-
tice of dentistry without license an offence against the pub-
lic, since they may well think it involves public injury, and
to punish it by fine or penalty, and to authorize imprison-
ment for non-payment of the penalty. The practice to that
effect in other cases has been long continued.
The judgment must be affirmed, with costs.
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58 NEW JERSEY SUPBEME COURT.
Musconetcong Iron Works v. Netcong. 90 N, J. L.
MUSCONETCONG IRON WORKS, PROSECUTOR, v. BOR-
OUGH OF NETCONG, RESPONDENT.
Submitted December 7, 1916— Decided February 2i; 1917.
1. Under aection 39 of the Tax act {Comp, Stat, p. 5124), an
assessment for taxation cannot be set aside for irregularity or
defect in form or illegality in assessing, laying or levying the tax,
if. in fact, the person so assessed is liable to taxation in respect
of the purpose for which the tax is levied.
2. An assessment of taxes cannot be set aside on certiorari on the
ground that the aggregate amount of money levied or assessed
in any taxing district for taxes is greater than called for by the
law or resolution granting it. Comp. Stat., pp. 5121, 5122.
On certiorari.
Before Justices Swayze, Minturx and Kalisch.
For the prosecutor, Edward K, Mills.
For the respondents, Charles A. Rathbun.
The opinion of the court was delivered by
SwAYZE, J. The prosecutor was assessed for $100,000
personalty. The assessment was made by the borough col-
lector on the orders of the borough council as* of property
omitted by the assessor. The fact that there was taxable
l^ersonal property of that amount consisting of pig iron is
not disputed. It is said the notice given by the collector
was not in compliance with the statute because the collector
did not give notice of the meeting of the county board of
taxation, sitting on appeal. Such notice as was given is
said not to have been received until December 20ih. This
can hardly be called adequate notice, but no harm was done
since the prosecutor not only appealed to the county board
but succeeded in its appeal. Thereupon, the borough ap-
pealed to the state board, and after a hearing, in which both
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FEBRUARY TERM, 1917. 59
90 N, J. L, Musconetcon^ Iron Works v. Netcong. «
sides were represented by counsel, the judgment of the
county board was reversed. Then the taxpayer sued out this
certiorari and the whole matter has been submitted to us
by briefs in behalf of both parties. Under section 39 of the
Tax act, we are forbidden to set aside the tax for irregularity
or defect in form or illegality in assessing, laying or levying
the tax, if in fact the prosecutor is liable to taxation in re-
spect of the purpose for which the tax is levied. Such is
the present case. This disposes of most of the objections.
It is urged, however, that $100,000 is so large an addition
to the ratables of Xetcong that some correction should be
made by way of lowering the rate of taxation to atone for
the great increase in ratables. State v. Randolph, 25 N, J.
L, 427, is relied on. The argument overlooks the changes in
the Tax act since 1856. Section 38 (Com p. Stat., pp.
5121, 5122) enacts that no assessment of taxes shall be set
aside on certiorari because the aggregate amount of money
levied or assessed in any taxing district for taxes is greater
than called for by the law or resolutions granting the same.
That is exactly the present case. The rate is the legally au-
thorized rate; the aggregate amount is greater than called
for because of the addition of this omitted property. No
injustice results, as Justice Parker pointed out in Pennsyl-
vania T. & T. R. R. Co. v. Hendriclcsoii, 87 N. J. L. 239.
It is also said that the prosecutor was not allowed to
deduct its debts. If this deduction would otherwise be al-
lowable, it is not allowable under the act of 1914. Pamph.
L., p. 353.
The assessment made by the state board is aflBrmed, with
costs.
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60 NEW JERSEY SUPEEME COURT.
State V. Rodgers. 90 X. J. L.
THE STATE OF NEW JERSEY, RESPONDENT, v. PETER J.
RODGERS, PROSECUTOR.
Argued November 8, 191^— Decided February 21, 1917.
1. The legislature cannot deprive a man of his right to be indicted
by a grand jury in case a charge of a crime at common law is
made against him by enacting that his conduct shall make him
a disorderly person punishable in a summary manner under the
Disorderly Persons act.
2. The question whether the offence with which a man is charged
is a crime at common law, cannot be made to depend on a mere
matter of nomenclature. It depends on the real case presented.
3. One who, when *'good and drunk," drives a large automobile on
a public street of a city, and through the front window of a
saloon, breaking the glass and framework of the window, and
driving the front of his car to the front of the bar, is guilty of
a public nuisance at common law.
On certiorari.
Before Justices Swayze, Minturn and Kalisch.
For the prosecutor^ WiUiam A. Sumner.
For the defendant, Josiah StryJcer.
The opinion of the court- was delivered by
SwAYZE, J. This case should not be entitled Rodgers v.
Recorder of Paterson. The writ is directed to the recorder as
custodian of the record only. The case should be entitled,
under rule 15, as it was before the recorder, ^*State of Xew
Jersey v. Peter J. Rodgers."
Peter J. Rodgers was convicted by the recorder of being a
disorderly person under chapter 67 of the laws of 1913.
Pampli. L., p. 103. The act provides that any person who
operates an automobile, motor, or any other vehicle over any
public street or highway while under the influence of intoxi-
cating liquors shall upon conviction be punished by an im-
prisonment of not less than thirty days and not more than six
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FEBRUARY TERM, 1917. 61
90 y. J, L, state v. Rodgers.
months. The act is one of an increasing class of acts wliereby
the legislature seeks to punish offences by summary proceed-
ings, evidently with a design of avoiding trial by jury. That
this can be accomplished in a certain class of cases is settled.
Howe V. Treasurer of Plainfield, 37 A^. J. L. 145 ; RUf>y v.
Trenton, 51 Id. 498. That it cannot be accomplished in
another class of cases is also settled. State v. An^emon, 40
Id. 224; Atlantic City v. Bollim, 76 Id. 254. Tlie recog-
nized line of distinction is between offences indictable at
common law and offences created by statute. In the present
case, the statute is applicable to cases of both classes. One
who operates an automobile or motor vehicle while under the
influence of intoxicating liquor is almost sure to be guilty of
a public nuisance, although it is conceivable that tlie vehicle
might be of so low a power and weight and operated at so slow
a speed that it could not be properly found to l)e a nuisance.
On the other hand, one who operates (to use the word of the
statute) an ox-cart while under the influence of intoxicating
liquors would be within the words of the statute, but could
hardly be called , guilty of a public nuisance. Since the stat-
ute applies to offences that may not be a crime at common
law, as well as offences that may be, we must look to the facts
of the case to determine whether the present proceeding is an
attempt to convict Rodgers of a crime without an indictment
by a grand jury as required by the constitution or whether it
is an attempt to convict him merely of disorderly conduct
which may properly be done by summary proceedings before a
magistrate. This question is not to be determined by the
mere language of the statute. The legislature cannot, for in-
stance, deprive a man of the constitutional safeguard when
he is charged with larceny by authorizing his prosecution and
imprisonment under the Disorderly act for a statutory con-
version or a statutory stealing. State v. Randall, 53 Id. 485.
The question of a man's constitutional rights cannot be made
to depend on a mere matter of nomenclature. We must look
at the real case that is presented.
The proof in this case is that the defendant drove his auto-
mobile through the front window of a saloon, breaking the
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62 NEW JEBSEY SUPREME COURT.
Trout V. Paul. 90 N. J. L.
glass and the wooden framework of the window, and drove the
front part of the car to the front end of the bar in the saloon ;
that he was driving his car, which was a large automobile,
that he seemed to be quite excited and was "good and drunk."
We think this shows a case of public nuisance indictable at
common law. A large automobile capable of doing what this
one did, is an engine of such power that when driven on the
public street by an intoxicated man, endangers life and limb
of the public in general and is well within the definition of a
public nuisance. The driver may be liable to conviction as
well for manslaughter. State v. Campbell, 82 Conn, 671;
ir Anno. Cos. 236; People v. Darragh, 126 N, F. Supp. 522;
or for reckless driving, Commontrealth v. Horsfall, 213 Masfi.
232; 100 N. E, Rep. 362; Anno, Cos, 1914, A, 682; or
for assault and battery, State v. Schutte, 87 N. J L. 15;
affirmed, 88 Id, 396. Such conduct is quite as much a nui-
sance as the habitual sale of intoxicating liquor, as in State
V, Anderson, cited above, and habitual Sunday sales, as in
Meyer v. State, 41 Id. 6. Wliere the oflPence to the public is
so serious the legislature could not have intended to minimize
it to mere disorderly conduct, and the attempt to so treat it
deprives the defendant of his constitutional rights.
The judgment must be reversed.
EMILY TROUT, PROSECUTOR, v. WILLIAM C. PAUL,
RESPONDENT.
Submitted December 7, 1916— Decided February 21, 1917.
The Orphans' Court has no jurisdiction to make an order for dis-
covery of assets, upon the petition of an executor of a non-
resident decedent, when letters testamentary have not been issued
out of such court.
On certiorari to the Middlesex Orphans' Court,
Before Justices Swayze^ Mintuen and Kalisch.
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FEBRUARY T^RM, 1917. 63
90 N, J, L. Trout v. Paul.
For the prosecutor, Thomas Broum.
For the defendant, James 8. Wight
The opinion of the court was delivered by
SwAYZE, J. William C. Paul is executor of Nettie Ray
Paul, who died a resident of Pennsylvania. Letters testa-
mentary were issued in Philadelphia, and an exemplified copy
of the will and letters testamentary were filed with the regis-
ter of the Prerogative Court. The executor thereupon peti-
tioned the Middlesex Orphans' Court for an order requiring
Emily Trout to appear and make discovery as to her possession
or knowledge of the whereabouts or existence of any personal
property of the decedent, and to produce the books, papers,
securities and other personal property belonging to the estate.
The petiti9n also prayed that Trout be personally examined
on the matter. The petitioner alleges^ as the act of 1909 re-
quires, his belief that Trout has in her possession property of
the decedent. An order was made in accordance with the pe-
tition, and is brought here for review by certiorari. If the
Orphans' Court had jurisdiction, certiorari is not the proper
remedy. Const., art, 6, § 4, If 3. Since the Orphans' Court is a
statutory court, the question must be solved by looking at the
powers conferred by the statute. The only statute relied on
or applicable is that of 1909. Com/?. Stat., p. 3866, pi. 139a.
This gives jurisdiction only when the application is made to
the Orphans' Court of the county in which letters testamen-
tary or of administration were issued. Xo letters are averred
or shown to have been issued in Middlesex county, and the
Orphans' Court of that county had no jurisdiction. The filing
of an exemplified copy of the will and letters testamentary
with the register of the Prerogative Court is of no importance
in the present case. The most that could accomplish would
be to authorize the foreign executor to prosecute in courts of
New Jersey having jurisdiction of the subject-matter; it
cannot confer jurisdiction where none exists.
The order must be set aside, with costs.
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CA NEW JERSEY SUPREME COURT.
Van Roden v. Strauss. 90 N, J. L.
JAMES VAN R©DEN, FOR THE EAST RUTHERFORD FIRE-
MEN'S RELIEF ASSOCIATION, RESPONDENT, v. MIL-
TON D. STRAUSS, PROSECUTOR.
Submitted December 7, 1916— Decided February 21, 1917.
The act of 1885, requiring the payment of a percentage on premiums
received by foreign fire insurance companies for the benefit of
firemen's relief associations, does not authorize the Court of
Common Pleas to impose the penalty or forfeiture therein pro-
vided for, or to enter a judgment for damages by summary
proceedings.
On certiorari.
Before Justices Swayze^ Mixture and Kalisch.
For the prosecutor, August C. Sireitwolf.
For the respondent, Campbell d- I)eTurcl\
The opinion of the court was delivered by
SwaYze, J. This is an extraordinary proceeding. Van
Roden, as treasurer of the East Rutherford Firemen's Relief
Association, petitioned the judge of the Bergen Pleas, under
the act of 1885, to facilitate the collection from fire insurance
companies of other states and from agents and brokers of
certain premiums for the benevolent funds of duly incorpo-
rated firemen's relief associations. The petition charged in
the alternative that Strauss had "failed, neglected or refused"
to make a return to the petitioner of insurance placed by
liim in an English company; and had "failed, neglected or re-
fused" to pay petitioner the two per cent. on. each hundred
dollars of premiums; and had in several other wa>^ not speci-
fied "failed, neglected and refused" to comply with the pro-
visions of the act; that by reason thereof the East Rutlierford
Firemen's Relief Association had been injured and damaged.
The petitioner prayed an order requiring Strauss to produce
in court all his books of account of business transacted bv him
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FEBRUARY TERM, 1917^ 65
90 y. J. L. Van Roden v. Strauss.
as agent or broker for insurance against fire upon property
located in East Rutherford, in foreign insurance companies;
and requiring him to make discovery as to all of his transac-
tions as such agent or broker by the production of his prop-
erty, effects, books, papers, documents, &c., or by examina-
tion of such persons or other witnesses as might have knowl-
edge thereof; and take (evidently meaning that the court
should take) such other proceedings by order or decree for tlie
production of such books, records, or witnesses, and for the
forfeiture and payment to the petitioner for the use of the re-
lief association of such penalty as Strauss might be subject
to or liable for, as to the judge might seem reasonable or just
or tlie nature of the case might require.
Tpon this petition the judge ordered Strauss to appeiu* per-
sonally and produce for examination all his books of account
of business transacted by him as agent or broker for insurance
on property in East Rutherford, in foreign insurance com-
panies, and to make discovery as to all of his transactions as
such agent or broker by the production of his property, effects,
bocks, papers, documents, &c., which relate to such transac-
tions, or by the examination of such persons or other witnesses
as might have knowledge tliereof, and to abide the judgment
and decree of the court in the premises.
After a hearing before the judge, an order was made which
recited that Strauss had failed, neglected or refused (still in
the alternative) to file with A^'an Roden a return of premiums;
that Van Roden, as treasurer, was entitled to receive said re-
port, and that the relief association was injured by the failure,
neglect or refusal of Strauss to file the report; after these
recitals it was ordered that Strauss forfeit and pay to Van
Roden, as treasurer, $500, and that a judgiuent for said
amount be entered in favor of Vjm Roden, treasurer, against
Strauss. Judgment was tiien entered for $500 daituujcfi. The
prosecutor seeks by certiorari to reverse this judgment be-
cause, among other reasons, it was arbitrary, unjust and un-
lawful.
It is suggested that certiorari is not the proper remedy,
but, obviously, this proceeding was not according to the course
Vol. xr. 5
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GG XEW JERSEY SUPREME COURT.
Van Roden v. Strauss. . 90 N, J. L,
of tlie common law; it was more like a summary proceeding.
Clearly, certiorari is the proper remedy. East Orange v. Hu^-
sey, 70 N. J. L. 244. The question ha.'< been recently dealt
with by this court with ample citation of authority. City
Bank of Bayonn^ v. O'Mara, 88 Id. 499. Since the proceed-
ing is not according to the course of the common law, the only
question is whether it is authorized by statute. The only
statute is the act of 1885, above referred to, and tlie only
provision therein that gives jurisdiction to the Common Pleas
is in section 3. Comp. Stat., p. 244G, pi. 459. The only au-
thority conferred by that section is to compel the agent or
broker to produce his books of account for examination by
the court. It gives no power to compel tlie agent or broker to
make discovery by the production of property, effects, papers
and documents, or by the examination of the agent or otiier
witnesses, or to adjudge a forfeiture, impose a penalty, or
enter a judgment for damages. Section J provides for a for-
feiture to the treasurer of the relief association of $500 for
each offence, but confers no power on the Common Pleas to
ascertain the facts except as to a false return of business
done ; much less does it confer j)Ower to impose the forfeiture
and to enter a judgment for damages. We need go no further,
but it may be well to add that the order served upon Strauss,
itself did not suggest to him that the court would undertake
such arbitrary and unlawful action. Xo one reading the
order and knowing the statute would suppose that it was
meant to enter a personal judgment with.out pleadings, with-
out an issue joined, and without a trial by jury; and a judg-
ment for damages without evidence as to the amount.
It is unnecesear}' to discuss the very interesting and im-
portant question as to the right of the legislature to impose a
tax for the benefit of a private corporation like the firemen's
relief association.
Since the Common Pleas exceeded ii» jurisdiction, tlie
judgment must be reversed. The prosecutor is entitled to
costs.
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FEBRUARY TERM, 1917. 07
90 N, J, L. Woodbridge v. Keyes.
TOWNSHIP OF WOODBRIDGE, PROSECUTOR, v. ANDREW
KEYES, RESPONDENT.
Argued February 20, 1917— Decided April 7, 1917.
'Section 27 of the Township act (Comp, Stat., p, 5582) enacts that at
the annual election at which appropriations for township purposes
are voted upon, a majority of all votes cast shall be required to de-
termine the amount of money to be raised for such purposes. At
an election held for that purpose, votes were cast for two diflferent
amounts for each specified object, and neither amount, taken by
itself, had either a majority of the voters who voted at the
election, or a majority of the votes cast on the question of
appropriations. Held, that the method of determining which
sum was adopted, is to add all the affirmative and negative votes
on both propositions to find the total vote, and, as no sum re-
ceived a majority, if only the affirmative votes for each propo-
sition are considered, yet, as it is clear that all who voted for
the larger sum voted for the smaller sum and something more,
the two affirmative votes should be added together and counted
for the smaller sum.
On rule for mandamus.
Before Justices Swayze^ Mixturx and Kaliscti.
For the rule, J. II. Thayer Martin.
Contra, John A. Coan.
The -opinion of the court was delivered hv
SwAYtZE, J. This is a rule for a mandamus to compel the
township clerk to set up a statement certifying that certain
amounts were appropriated for specified objects of expendi-
ture at the annual election. The difficulty arises from the
fact that votes were cast for two different amounts for each
specified object, and neither amount, taken by itself, had the
votes of a majority of the voters who participated in the elec-
tion, or a majority of the votes cast on the question of appro-
priation. The votes for an appropriation for police illustrate
the point. Five hundred and seventy-five votes were cast for
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08 .NEW JERSEY SUPREME COURT.
Woodbridge v. Keyes. 90 N. J, L.
an appropriation of $6,000, and one hundred and twenty
against it. Three hundred and sixty-three votes were cast for
an appropriation of $8,500, and two hundred and eighty-six
against it. Over one thousand four hundred votes in all were
vast at the election. The applicant seeks to compel the clerk
to certify that the $8,500 appropriation carried.
The Township act (Comp. Stat, p. 5582, § 27) enacts
that a majority of all votes cast shall be required to determine
.an amount of money to be Voted, granted or raised. Section
58 of the Election law of 1911 (Pamph. L., p, 317) enacts
that whenever any question or proposition is submitted, if the
voter shall make an X mark opposite the word "yes," it shall
he counted as a vote in favor of the proposition ; if he marks
opposite the word "no,'^ it shall be counted as a vote against
the proposition; and in case no mark shall be made after
either word, it shall not be counted as a vote either for or
against such proposition. From this provision the relator asks
us to draw the conclusion that the votes of those who did not
vote on the larger sum cannot be counted for or against it;
and as the larger sum- had more votes for than against, it is
said to have carried. The difficulty with the argument is that
it proves too much ; for it proves also that the smaller appro-
priation carried. In fact the argument is stronger for the
smaller sum, since in each case, except the appropriation for
the poor, there were more affirmative votes for the smaller
than for the larger sums, and in the case of the appropriation
for the poor there was a tie. We think this proposed s^ilution
of the difficulty is out of the question.
If we look at the facts as disclosed by the returns, we think
the total vote cast on appropriations may fairly be ascer-
tained by adding all the affirmative and negative votes on
both propositions. It is true that some of the negative votes,
on one proposition may have been affirmative on the alterna-
tive proposition and may thus be counted twice in ascertain-
ing the total. Fortunately, this chance of error is not enougli
to tlirow doubt on the result in the present case. Taking this
total a< our basis, no appropriation received a majority of all
votes cast if only the affirmative votes for the particular
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FEBRUARY TERM, 1917. 69
!)0 y. J. L. American Woolen Co. v. Edwards, Comptroller.
amount are considered; but that would be too narrow afid
nitcbanieal a view. When we consider the intent of the
voters, it is clear that all who voted in the affirmative, whether
on the smaller or larger sums, voted for some appropriation ;
those who voted for the larger sum voted for the smaller sum
and something more; those who voted for the smaller sum
voted for that and no more. We do no violence to the intent
of the voters by adding the two affirmative votes and count-
ing the total for the smaller sums. We would do violence to
the intent of the voters by taking another course. Adding the
affirmative votes, we find a majority of the votes cast were in
favor of or were content with the smaller sum. At any rate
it is clear that a majority was not in favor of the larger
amount; and that is all we need now decide. The mandamus
must be denied.
AMERICAN WOOLEN COMPANY v. EDWARD I. EDWARDS,
COMPTROLLER, AND THOMAS F. MARTIN, SECRETARY.
Argued July 15, 1916— Decided July 27, 1916.
1. Under the supplement to the act concerning corporations, ap-
proved March 23d, 1900 (Pamph. L., p. 316 ; Comp, 8tat., p. 1620,
§ 31a), no corporation organized under the laws of this state can
be dissolved until all taxes levied upon or assessed against the
corporation by the state shall^ave been paid. The connection
of the words "levied" and "assessed," by the conjunctive "or."
indicate that two different acts were meant, therefore, taxes levied,
although not yet assessed, must be paid before the corporation can
be dissolved.
2. The annual corporation license fee or corporation tax cannot be
said to be assessed until the state board has ascertained the
amount of the tax and certified it to the comptroller, pursuant to
Comp. 8iat., p. 5291, pi. 505.
3. Where words used in a statute have been interpreted by the Su-
preme Court of the state more than two years before the passage
of the act, the words so used must be assumed to. have been used
with the judicial definition in mind.
4. The corporation license fee, or franchise tax, provided for in
Comp. Btat., p. 5288, pL 504, is called by the legislature an an-
nual license fee, which suggests a payment in advance. Under
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70 NEW JERSEY SUPREME COURT.
American Woolen Co. v. Edwards, Comptroller. 90 N, J. L.
the statute, the levy is completed and the year for which the tax
is paid begins on the first Tuesday in May, that being the date
fixed for the return by the corporation to the state board, which
latter body has merely to calculate the amount of the tax
based upon such return, except where the corporation neglects or
refuses to make a return.
5. Upon the dissolution of a corporation, the secretary of state is
not required to issue a certificate of dissolution ' unless the cer-
tificate of the comptroller that the state taxes have been paid has
been filed with him, pursuant to the provisions of the act of
1900 (Comp. Stat, p. 1020, § 31a).
On mandamus, return and plea thereto.
Before Justice Swayze, sitting for the court hy consent of
counsel.
For the relator;, Lindabnnj, Depue & Faulks.
^For the comptroller and the secretary of state, John W.
Wescott, attorney-general.
SwAYZE^ J. I am somewhat embarrassed by the form of
the issues arising on the plea, but inasmuch as the case was
argued by counsel on the substantial merits, and it was stipu-
lated that the facts be tried before me without a jury, I dis-
regard the various issues raised by the nlea. The real issue
is whether all taxes levied upon or assessed against the relator
by the State of New Jersey ifi accordance with the Coipora-
tion Tax act of 1884 were fully paid. I find that they were
not. I base this finding upon my constniction of the act to be
hereafter stated. Before I deal with the main question, I
may premise that T attribute no. force to the ' action of the
secretary of the board at the time the relator demanded the
certificate of the comptroller, nor to the action of the mem-
bers of the state board or to the board itself thereafter. Un-
less the refusal of the comptroller to issue the certificate was
justified by the situation at the very instant of the demand
by the relator, I think it cannot be justified by what hap-
pened thereafter
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FEBRUARY TERM, 1917. 71
90 \. J. L. American Woolen Co. v. Edwards, Comptroller.
Tlie real question in the case is whether the tax was levied
or assessed at the time the relator made its demand on the
comptroller for a certificate that the taxes were paid. .The
statute to be construed is the act of 1900. Pamph. 7/., p.
316; Comp, Stat, p. 1620, pi. 31a. It enacts that no corpo-
ration shall be dissolved by its stockholders until all taxes
levied upon or assessed against such corporation shall have
•l)een fully paid. Two situations were contemplated hy the
legislature, one where taxes had been levied, and another
where they had actually been assessed. I think it clear that
these taxes cannot be said to be assessed until the state board
has acted, ascertained the amount and certified it to the comp-
troller, pursuant to section 5 of the act. Comp. Stat., p. 5291,
pi. 505. I have with some hesitation reached Ihe conelupion
that the taxq^ inay, within the contemplation of the legislature
at the time of the act of 1900, be said to have been levied
before the assessment. The use of both wordjj. "levied" and
"assessed," connected by the conjunction or indieate:^ that
two different acts were meant ; otherwise, the word "asj^esstHr'
alone would have sufficed. Although levied and assessed are
not always used in our statutes with nice distinction as to the
difference of meaning, and the conjunction or might con-
ceivably be used to connect synonymous words, I think that
construction is not permissible in the. present case. A little
more than two years before the act of l900 was passed, the
Court of Errors and Appeals, in tbe very important case of
Tomiship of Bernard.^ v. Allen, 61 X. J. L. 228, 238, had
sharply drawn attention to the distinction between tiie levy
and the assessment of taxes, and had said that the levy was
a legislative function, the assessment i^iere machinery to
effectuate the legislative plirpose. We must assume that
thereafter the words were used in our statutes with this ju-
dicial definition in view. It is notable that the statutes cited
in the relator's brief all antedate the decision in Township of
Bernards r. Allen. The latest, that of 1897 (Cortip. Sfaf., p.
5293, pi. 510), itself seems to make a distinction between the
levy and assessment and originally required the appeal to be
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72 XEW JERSEY SUPREME COURT.
American Woolen Cor. v. Edwards, Comptroller, 90 N. J. L.
made within three months from the latter only, a limitation
now extended to four montlis. Pamph. L. 1916, p, 25.
These considerations, however, are fai* from conclusive,
since it may well be contended that there is no levy until the
amount is ascertained (HoJwnstatt v. Bridgeton, 62 N. J. L.
169), and the real question for solution is when the levy may
be said to be completed. In determining this question, the
important consideration is that the payment required of the
corporation is called by the legislature an annual license fee.
Comp. Stat., p. 5288, pi 504. The word "annual" points to a
year, and following the analogy of the act relative to statutes
(Comp. Stat., p. 4973, pi. 10), perhaps a calendar year.
Calling it a license fee suggests a payment in advance, since
a government which seeks to derive a revenue from license
fees, naturally makes the pa^onent of this fee a condition pre-
cedent. The statute does not, however, require payment in
advance at the beginning of the year, but only in June after
the ascertainment of the amount. By analogy to the rule as
to property taxes, this would indicate that the liability to
pa\Tnent depends on the situation at the time the amount is
certified to the comptroller. Jersey City v. Montville, 84 X.
J. L. 43 ; a:flirmed, 85 Jd. 372. The argument ib a strong one,
and I should be inclined to accede to it, but for the fact that
I cannot believe that the legislature meant to leave open the
door for a corporation to do business for five montlis of the
calendai* year without liability to the license tax — y(ti that
would be the result since there is no provision for apportion-
ment. Tlie' legislature by enacting the act of 1900 evinced a
design to save tlie state against possible loss of these license
foes or taxes that might arise from dissolution during the
year. I ought not to adopt a construction that would often
thwart that intent.
I have said that the word "annual," in connection with
these license fees by analogy with the statutory construction
of the word "year," perhaps points to a cgilendar year. Other
considerations lead me to think that is not the proper con-
struction. When the act was originally passed no date was
fixed as that on wliicli the capital stock was to form the basis
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FEBEUARY TERM, 1917. 73
90 S\ J. L. American Woolen Co. v. Edwards, Comptroller.
of the tax. This court held that the date must be that on
which' the statute took effect— April 18th. We said that the
18th day of April in each year marks the beginning of the
yearly period for which the fee or tax is charged, and the day
on which the amount of the capital stock must be taken to
form the basis of computation. Brewing Improvemeni Co. v.
Board of Assessors, 65 N. J. L. 466. Subsequently, the omis-
sion in the original act was supplied, and the 1st day of Jan-
uary preceding was fixed as the time when the amount of the
capital stock should be ascertained; and the first Tuesday
of May fixed as the time for the annual return. Pamph. L,
1901, p. 31; Pamph, L, 1906, p. 3l'; Comp, Stat, p. 5295,
pi 519. The act of 1901 (the amendment of 1906 is unim-
portant for the present purpose) came before the court in
Hardin v. Moi'gan, Comptroller, 70 N. J. L, 484 j affirmed,
71 Id, 342, and it was held that the first Tuesday of May took
the place of April 18th. I incline, therefore, to hold that the
year for which the license fee is paid begins with the first
Tuesday in May. On that day it is in most cases easy to as-
certain by a mere arithmetical calculation the amount of the
license fee or franchise tax, at the rate fixed by the legislature,
and I see no difficulty in holding that the levy is made as of
that date. The statute does not contemplate anything more
tlian a mere calculation by the state board except in cases
wliore the corporation neglects or refuses to make a return.
Section 3 of the act (Comp. St<it., p. 5287, pi 503) authorizes
the board to fix the amount only in that case. Section 5
(Comp. Stat., p. 5291, pi 505) makes a distinction between
cases where the company makes a return and cases where the
board ascertains the facts. It requires the board to certify
and report to the comptroller a statement of the basis of the
annual license fee or franchise tax (1) as returned by each
company or (2) ascertained by the board. There seems to be
no provision for a review by the board where the company
has made a return. Probably, the penalty of perjury as pro-
vided by section 3 was considered sufficient to secure an honest
return.
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74 XEW JERSEY SUPREME COURT.
American Woolen Co. v. Edwards, Comptroller. 90 X. J. L.
There is an obvious advantage in adopting trie first Tues-
day of May as the beginning of the year for which the li-
cense fee is paid. It reduces to a single month the time
between the date of the re^m and the date when the tax be-
comes payable, and assimilates the tax year in the case of
miscellaneous corporations to the iox year in the case of other
corporations under section 2 (Comp. Stat., p. 5287, pi. 502),
and in a sense to the time of assessment of general 'property
taxes. The obvious advantage would be of no weight if clear
language to the eontrar}' were used in the statute; but when
we are seeking for the legislative meaning, it has weight.
It was urged that the decision in State v. United New Jer-
spy Railroad and Canal Co., 76 N. J. L. 72, supports the re-
lator. But the construction of the word "imposed," in that
case, depended upon the peculiar facts of the case and the
certainty that the legislature meant the payment of taxes by
the railroad company to be continuous. The reasoning was
similar to the reasoning adopted in this opinion.
There must be judgment for the defendant.
As the case may be taken to the Court of En-ors and Ap
peals, I ought to call attention to two clerical errors. The
writ refers to section 152 of the Corporation act of 1896.
There is no such section. The reference should be to the act
of 1900, which is printed in the compiled statutes as plaeitnm
31a of the Corporation act. I imagine the error may have
arisen from using one of the compilations of the Corporation
act where arbitrary numbers are given to sections taken from
different acts. In the return the secretary of state justifies
under chapter 254 of the laws of 1893. This was repealed by
the Corporation act of 1896. These errors should be amended.
'Wliether counsel will think it desirable to amend the plea so
as to present a single issue is a question for them to determine.
If I had reached the conclusion that the merits were with
the relator, I should have had difficulty in seeing how a
mandamus could go against the secretary of state. He was
not required to issue a certificate of dissolution unless the
certificate of the comptroller was filed with him.
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FKBKUAKY TEBM, 1917. 75
90 N, J, L, Penna. R. R. Co. v. Townsend.
PENNSYLVANIA RAILROAD COMPANY, APPELLANT, v.
WILLIAM A. TOWNSEND, RESPONDENT.
Sabmitted December 7, 1916— Decided March 27, 1917.
1. Prima faoie^ the consignor of freight who contracts wi]th the
carrier for its shipment, is liable to pay the charges of trans-
portation, and the mere fact that the charges are left unpaid by
the consignor and are to be collected itom the consignee at des-
tination, does not discharge the consignor from liability to the
carrier.
2. The term "consignee" when used in a bill of lading means the
person named in the bill as the ijerson to whom delivery of the
goods is to be made.
3. The mere existence of the relation of carrier and consignee is
not enough to establish a liability of the latter to pay freight
charges. There must be an agreement by the consignee, express
or implied, in order to create such a liability. '
4. If the assignee of a bill of lading accepts and remQves goods at
their destination without paying the charges, with knowledge
that the carrier is giving up for his benefit a lien thereon for a
stated amount that would be cogent evidence from which to
imply an agreement on his part to pay the known amount of
the freight charges.
5. The mere acceptance and removal of goods at their destination
by the assignee of a bill of lading, and the payment by him
of the freight bill as made out by the carrier, without knowl-
edge by the assignee that' the same was an undercharge, does
not create any further liability on the part of such assignee.
even though, by mistake of the carrier, the bill as rendered did
not include thie entire charge.
On appeal from the Burlington Common Pleas Court.
Before Gummere, Chief Justice, and Justices Tnpx-
CHABD and Black.
For the appellant, Oaskill & OaskUh
For the respondent, George M. Hillman.
The opinion of the court was delivered by
Trenchard^ J. The Bangor and Aroostook Railroad Com-
pany, a common carrier of freight, accepted at Presque Isle
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76 NEW JERSEY SUPEEME COURT.
Penna. R. R.-Co. v. Townsend. 00 N, J, L,
station, Maine, a shipment of potatoes from T. M. Hoyt,
"consigned to the order of T. M. Hoyt, Columbus, X. J.
Notify Wm. A. Townsend," as appears from the bill of
lading.
That company and the New York, New Haven and Hart-
ford Railroad Company and the Pennsylvania Railroad Com-
pany transported the potatoes to Columbus, New Jersey, and
the Pennsylvania Railroad Company there delivered them to
William M. Townsend upon his payment to the company of
freight charges of $101.45.
This suit was brought by the Pennsylvania Railroad Com-
pany against Townsend to recover the sum of $40, the com-
plaint averring that the freight charges were incorrectly cal-
culated by the plaintiflp at $101.45, and that the true amount
thereof was $141.45.
At the trial the judge nonsuited the plaintiff.
We are of the opinion that the nonsuit was right.
Prima fdde, the consignor of freight who contracts with
the carrier for its shipment is liable to pay the charges of
transportation, and the mere fact that the charges are left
unpaid by the consignor, and are to be collected from the con-
signee at destination, does not discharge the consignor from
liability to the carrier. Ceniral Railroad Co. v. MacCartney,
68 N. J. L. 165 ; Grant v. Wooden Id. 292.
In the present case, the plaintiff company has not seen fit
to sue- the consignor, but rather has sued the defendant upon
the theory, apparently, that he was the consignee, and seeks to
hold him as such under the provision of the bill of lading
upon which the freight in question was shipped that ^^\\\q
owner or consignee shall pay the freight."
But the defendant, Townsend, was not the "consignee."
The term "consignee" means the person named in the bill as
the person to whom delivery of the goods is to be made.
Fampli. L. 1913, p. 261. By the bill in question* the goods
were "consigned to the order of T. M. Hoyt."
Moreover, the mere existence of the relation of carrier and
consignee is not enough to establish a liability of the latter
to pay freight charges. There must be an agreement iy the
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FEBRUARY TERM, 1017.
90 N. J. L, Penna. R. R. Co. v. Townsend.
consignee, express or implied, in order to create such a lia-
bility. Central Railroad Co. v. MacCartney, supra.
The plaintiff company seemingly recognized these rules,
and, accordingly, in its complaint, expressly charged that the
defendant, Townsend, agreed to pay the freight charges.
But at the trial no testimony was offered tending to show
any such contract or undertaking. Tlie plaintiff produced
but one witness who testified only concerning freight rates.
The only other proof in the case was tl)e bill of lading en-
dorsed "Smith & Hoyt" and '-W. A. Townsend," and the ad-
mission of the defendant, Townsend, that the plaintiff com-
pany delivered the shipment to liim upon his payment of the
freight charges demanded amounting to $101.45.
There was no evidence showing by whom the endorsement
"Smith & Hoyt" was made, nor anything showing any con-
nection* between "Smith & Hoyt" and "T. M. Hoyt," the
consignee.
In this state of the proof the plaintiff company asserted,
and now asserts, that "the only question which could arise
was. What is the lawful rate ?" We think not.
We have pointed out that the consignee was T. M. Hoyt,
an9 that the bill of lading was not endorsed or assigned by
him. But if we were to assume that the bill of lading was
regularh' assigned to Townsend, the defendant, that assump-
tion w^ould not help the plaintiff. There is no proof, apart
from the bill of lading, as to the relation existing between the
consignor and Townsend, the defendant, nor as to the relation
of Townsend to the goods, nor that he knew the correct
amoimt of the freight charges, nor that he had even made any
Agreement respecting the same. We have only the bare fact
tWat a statement of the freight charges prepared by the plaint-
iff was delivered to Townsend, who paid the bill and took
the goods.
Xo doubt, if Townsend, as assignee of the bill of lading,
had accepted and removed the goods without paying the
charges, with knowledge that the carrier was giving up for his
benefit a lien upon the goods for a stated amount — that
would be cogent evidence from which to imply an agreement
on his part to pay the known amount of the freight charges.
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78 NEW JERSEY SUPREME COURT.
State V. Frank. 90 N. J. L,
But tlie mere acceptance and removal of goods by the as-
signee of a bill of lading, upon payment of the freight bill as
made out by the carrier, without knowledge by the assignee
that the same was an undercharge, does not create any
further liability on his part, even though, by mistake of the
carrier, the bill as rendered did not include the entire charge.
Central EaUroad Co, v. MacCartney, supra; Erie Railroad
Co, V. Wana^ue f/iimber Co., 75 .Y. J. L. 878; Pennsyh^ania
Railroad Co, v. Titu^, 156 App. Div. 830; 142 N, Y,
Supp, 43.
The reason is that the consignee's liability for freight
charges depends not upon any duty resting upon him as con-
signee, but upon agreement or undertaking by him, and that
his acceptance of the goods bound him to pay only the rate
specified in the freight bill delivered to him at the time the
goods were accepted — and the liability of the assign^ of the
bill of lading is no greater.
The judgment of the court below will be affirmed, with
costs.
STATE OF NEW JE^RSEY, DEFENDANT IN ERROR, v.
ROBERT FRANK, ALIAS "BOBBIE," PLAINTIFF IN
ERROR.
Submitted December 7, 1916— Decided March 27, 1917.
1. On a prosecution for keeping a disorderly house, evidence of acts
and conduct upon the part of the defendant tending to show
that he was occupying the house and using it as his own, and
exercising the same control over it that men usually have over
their own houses, is sufficient to authorize the jury to find that
he kept the house.
2. On a prosecution for keeping a disorderly house, evidence that
the defendant exhibited at his house a chart showing horses'
names, where running, and the odds that he laid against them ;
that his patrons there present delivered to him the money which
they bet, together with slips recording their names, the horses'
names, and the odds; and that when his patrons won the de-
fendant paid the winnings, is sufficient to justify the jury in
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FEBRUARY TERM, 1917. 79
90 N. J. L. State v. Frank.
finding that betting upon horse racing was carried on, even
though there was no more 'definite proof that the races had been
actually run.
3. On a prosecution for keeping a disorderly house, testimony given
by detectives in the employ of the state that bets on horse races
were made by them, and by others in their presence, with the
defendant at his house, was competent evidence, its weight and
credibility being for the jury to determine.
4. Although certain selitences in a charge, taken alone, need some
amplification to render them accurate, yet if such amplification,
be given in the context, so that the jury cannot be misled, there
is no error justifying reversal.
5. On a prosecution for keeping a disorderly house, the state asked
a witness, "Do you know where this defendant's place is?"
Against the defendant's objecfion, the judge directed the witness
to answer "yes or no." The witness answered "Yes." Then
without any further objection the state asked "Where?" and the
witness answered "800 Park avenue, Hoboken," and gave testi-
mony as to the presence, acts and conduct of the defendant there
(no part of which defendant denied), from which the jury could
and did find that the defendant kept the house. Held^ that even
if the question objected to was improper, it could not have
prejudiced the defendant in maintaining his defence upon the
merits, and so should not result in a reversal.
C. Upon trial of an indictment, where the defendant fails to tes-
tify in his own behalf to deny inculpatory facts, which if false
he must know to be so, it is proper for the trial judge to call
attention to his failure to testify.
On writ of error to the Hudson Quarter Sessions.
Before Gummere, Chief Justice, and Justices Tren-
CHARD and Black.
For the plaintiff in error, Harlan Besson.
For the defendant in error, Robert S, Hudspeth, prosecutor
of the pleas, and George T. Viclcers, assistant prosecutor of
the pleas.
The opinion of the court was delivered by
Trexchard, J. The plaintiff in error was convicted in the
Hudson Quarter Sessions on an indictment charging him with
maintaining a disorderly house.
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80 XEW JERSEY SUPREME COURT.
State V. Frank. 90 N, J, L.
The indictment charged, among other disorderly acts
within the defendant's house, *^tting, eiaking and wagering
certain large sums of money on the competitive running or
racing of horses," and at the trial the testimony was mainly
directed to proving that charge.
We have considered even' assignment of error argued by
the defendant and find none requiring reversah
The defendant contends that a verdict should have been
directed in his favor.
This contention is based, first, upon tlie assertion that
there was no evidence that the defendant kepi the place in
question.
"We think there was evidence tending to show that fact.
Several witnesses testified to acts and conduct upon the part
of the defendant tending to sliow that lie was occupying the
house, and using it as his own, and exenising the same con-
trol over it that men usually have over tlieir own houses —
and that was sufficient to autliorize the jury to find that he
kept the house.
The argument in favor of a directed verdict is also based
upon the proposition that there was no proof that any bets
were there made upon horse races.
We think this also is not well founded. There was evi-
dence that the defendant exhibited a chart containing the
names of the horses, where running, and the odds which he
laid against them; that his patrons there present delivered to
him the money which they bet, together with slips recording
their names, the horses' names and the odds; that when his
patrons won the defendant paid the winnings. Such evidence
tended to support the charge of the indictment that the illegal
practice of betting upon the racing of horses was carried on,
even though there was no more definite proof that tlio races
had been actually run. Am4*s v. Kirhy, 71 X. J, L, 442.
It is further contended that there could be no conviction
because the only evidence supporting it was given by detec-
tives in the employ of the state, who testified that bets on
horse races were made by them, and by others in their
presence, with the defendant at his house.
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FEBRUAKY TERM, 1917. 81
90 A\ J. L. State v. Frank.
But we think such evidence entirely competent, its weight
and credibility, of course, being for the jury to determine.
There is no merit in the contention that the trial judge
"incorrectly instructed the jury as to the meaning of the
crime ^disorderly house' and the quantum of proof required
to convict the defendant of being the keeper thereof."
In support of this complaint the defendant lays hold of
certain sentences of the charge and says that therein the judge
did not point out that it was necessar^^ in order to convict
that the jury must find that the defendant knowingly and
habitually permitted men to assemble there and bet on horse
races. But that is no ground for reversal when we consider
other parts of the charge. Both before and after the s^en-
tenees referred to, the judge repeatedly instructed the jury,
in effect, that to convict it was essential to find that the de-
fendant knowiiigly and habitually permitted men to a^'^mble
in his place for the purpose of betting money on the racing of
horses. The rule is, that although certain seutences in a
charge, takpn alone, need some amplification to render them
accurate, yet if such amplification be given in the context,
so that the jury cannot be misled, there is no error justifying
reversal.
It is next said i;hat the trial judge erred in allowing the
prosecutor of the pleas to ask a witness called by him this
question : "Do you know where this defendant's place is ?"
The defendant objected upon the ground that "it has not been
established that it was this defendant's place; it includes
an assumption that he owned and conducted some place."
The judge directed the witness to answor "yes or no." The
witness answered "yes." Then, without any further objection,
the prosecutor asked "Where?" and the witness answered "800
T*ark avenue, Hoboken," and in answer to further questions
gave testimony as to the presence, acts and conduct of the
defendant there (no part of wliich the defendant denied) from
which the jury could, and did, find that the defen(hmt kept
and controlled the place. Our conclusion is, that even if the
question objected to was improper (which we do not decide),
it could not have prejudiced the defendant in maintaining
Vol. xc. G
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8*^ XEW JERSEY SUPREME COURT.
Rowland v. Mercer Co. Traction Co. 90 N. J, L.
liis defence upon the merits, and so should not result in a
reversal.
It is argued that the judge erred in calling attention to the
defendant's failure to testify. Not so. Numferous witnesses
testified that the defendant was present in the house where
the gamhling was carried on; that he had charge of the
gambling instrumentalities, and personally took the money,
kept the records and paid the winnings to his patrons. ThcFe
were inculpatory facts which, if false, ho knew to be so, and
his failure to testify in his own behalf in denial of them,
rendered it proper for the trial judge to call attention to his
failure to testify. Stale v. Callahmi, 77 N. J. L. 685.
The judgment below will be aifirmed.
ALEXANDER C. ROWLAND ET AL., TRUSTEES, ETC..
PROSECUTORS, v. MERCER COUNTY TRACTION COM
PANY, DEFENDANT.
ArjTued November 10, 1916— Decided February 20, 1917.
1. In a proceeding for the taking of lands under the Eminent Do-
main act, the omission as parties of owners of land in whose
favor an easement of way exists across the land to be taken,
will not entitle the general owner to have the order for appoint-
ment of commissioners set aside.
2. Under the Street Railway act of ISaS {Comp, Siat, p. 5021),
the necessity for the taking of lands exists when it appears that
they are required for a route lawfully filed, and otherwise com-
plying with the statute.
3. The fact that the taking is ip pursuance of a general project,
involving with the creation of new highways in a municipality
the removal of a railroad terminal and trolley terminal, so as to
connect detached sections of a university campus, does not de-
prive the improvement of its public character.
4. The change of a trolley terminus to a new site, and its con-
nection with the existing line at a convenient point, involves the
building of a new line in a sense covered by sections 6 and IB
of the Street Railway act of 1893.
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FEBRUARY TERM, 1917. 83
90 N, J. L. Rowland v. Mercer Co. Traction Co.
On certiorari.
Before Justices Garrison, Parker and Bergen.
For the prosecutors, Julian C. Harrison.
For the defendant, Edward M. Hunt.
The opinion of the court was delivered by
Parker, J. The attack is upon an order of a justice of this
court appointing commissioners under the Eminent Domain
act (Comp. Stat., p. 2181; Pamph. L. 1900, p. 79) to value
certain lands in Princeton, of which prosecutors hold the fee
as trustees under the will of Andrew L. Rowland, deceased.
The traction company desires to acquire the lands in question
for use as a terminal in lieu of its present terminal which ad-
joins the tracks of the Pennsylvania Railroad Company some
three*hundred feet to the eastward.
The first point made by prosecutors u that the petition is
on its face insufficient, in that it fails to state the names and
residences of all the persons contemplated by the statute as
parties to the proceeding. Section 2 says it "shall set forth
the names of the owner and occupant, if any there be, and of
the persons appearing of record to have any interest in said
property." The petition names certain persons as being "the
owners and occupants of and the persons interested in t-aid
land and premises." We are unable to see that the difference
is more than formal. But if we are in error, then the petition
goes further, substantially, than the act requires, for persons
appearing of record to have an interest may in fact have none,
whereas the petition purports to include all having an interest
whether the same appear of record or not. This is curable by
amendment, if necessary, under section 17, and plainly should
not vitiate the proceedings.
But it is further claimed that in fact the petition omits the
owners of easements of way over a portion of the premises,
and that for this reason the order should be set aside. We do
not think the fact appears very clearly by the proofs taken,
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8i NEW JERSF.Y SUPREME COURT.
Rowland v. Mercer Co. Traction Co. 90 N, J, L.
but, assuming it established, the objection is not one which
affects the prosecutors adversely; for, on the face of the pro-
ceedings, the land is taken as an unincumbered fee, and if
this be paid for, as it must be, and if the easement holders are
entitled to a share of the award and insist on being paid that
share, this will not deprive prosecutors of anything to which
tliey themselves are entitled. See Bright v. Plait, 32 X. J. Eq.
362. The fact that such easement holders are not now brought
in, and in the present state of the record have no opportunity
to produce evidence as to the total value of the property,
wliich is all that is now in question {Herr v. Board of Educa-
tion, 82 iV. J, L. 610), is nothing of which prosecutors can
legally complain. Indeed, the easement holders might bring
their action after the award and irrespective of it : in which
case prosecutors would receive the award undiminished by
their claim for a share of it. The company simply proceeds
at its peril as to omitted claimants. National Railway J^o. v.
E, <Jt A. Rmlroad Co., 36 Id. 181. The petitioner might
have asked tliat the award be made subject to the easements,
as is often done in similar proceedings when a restricted use
is contemplated. National DocTcs Co. v. United Comimmes,
53 Id. 217, 222, and cases cited. That it has elected to take
the rights of prosecutors as a fee unincumbered by easements
cannot injure prosecutors. And, if need be, as we have already
said, the petition and proceedings can be amended to bring in
these omitted parties, and no doubt would be so amended on
their application, as they are manifestly entitled to be heard
on the gross valuation. But their omission constitutes no
• valid ground to set aside the proceedings at the instance of the
general owners.
The next point is that no public necessity exists for the
taking of these lands. The general ^^necessity*' for the taking
of lands required for the route of a street railway company
incorporated under the act of 1893 {Comp. Stat., p. 5021)
lias been determined by the legislature, which has, in effect,
paid that the public necessity exists whenever the land in ques-
tion is necessary for the construction of any railway built
under tlie provisions of the act, either as an extension of the
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FEBRUARY TERM, 1917. 85
iW X. J, L. Rowland v. Mercer Co. Traction Co.
lino of an existing railway or a new line not exceeding sixty
fegt in width * * * or as may be required for the locating
and constructing all necessar}' works, &o. Section 13. The
land desired nowhere exceeds the statutory width ; and, as it
is not denied tliat the company is lawfully organized with the
powers conferred by the statute, it follows^ that if it be build-
ing either- an extension or a new line, and the land is necess&ry
for its construction, the legislative policy is satisfied. No
bounds appear to have been set by the legislature to the loca-
tion of such new line or extension, except the requirement
that the survey and location shall be filed in a designated
public oflBce, and the permission of the municipality shall have
been obtained. Granted the legality of the survey and loca-
tion now under consideration, the necessity of the land to
permit construction follows, as of course.
Assuming, however, that the public ^^necessity" of the con-
struction of this new terminus in lieu of the present one, is a
matter of judicial consideration, as in Easton and Artiboy
Railroad v. Oreenmch, 25 N. J. Eq. 565, and that we are to
determine this question on the evidence, we proceed to ex-
amine it, with the reservation that the phrase "public neces-
sity," if used ai all, must be considered a*? equivalent to "pub-
lic benefit" or "public use." Passing to the facts, we find
that by co-operation of the authorities of Princeton Univer-
sity, a great seat of learning which is the principal feature of
Princeton; of the municipal government; of the Pennsylva-
nia Railroad Company, whose local terminal property ad-
joins the present terminal of defendant : and of the defend-
ant company, a general revision of the municipal plan of
streets and highways in this section of the town is projected,
with the object of connecting the extensive and unbroken col-
lege campus, lying east of the present railroad terminal, and
which is one of the chief attractions of the university', with
the ample grounds of the graduate college, another part of the
same university, on the west. At the same time several new
streets are to be opened to public use ; the new arrangement
will remove the railroad and trolley terminal from unnecessary
proximity to one of the principal dormitories of the university.
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86 XEW JERSEY SUPREME COURT.
Rowland v. Mercer Co. Traction Co. 90 N, J. L.
facilitate direct communication between the graduate school
and college campus without crossing railroad tracks and beau-
tify a part of the town which heretofore lias been more or less
unsightly. All this, as appears by the evidence, has been made
financially possible by liberal gifts from generous benefactors
of the university who no doubt were largely prompted by
consideration of its welfare, but whose liberality plainly enures
in great measure to the public good. lender the circum-
stances, we think it would be quite unreasonable to hold that
the change of terminal of defendant, which is an essential part
of the scheme, is not a public benefit. On the contrary, we are
satisfied that such benefit will necessarily result.
Prosecutors next argue that the proposed change of termi-
nus is not within the letter of the statute. The act, by sec-
tion 6, gives power to "build any new line of railway," and,
by section 6, to take land necessary therefor. The length of
such *^new line,'^ either maximum or minimum, is not speci-
^ fied, nor whether it is to be a main line, branch or a spur.
We think it plain that this change of the terminal by aban-
donment of some one thousand two hundred feet of original
line and location of about eight hundred feet of line in
another place, involves the building of a new Kne in a sense
covered by the statute. See Morris and Essex Railroad Co, v.
Central Railroad Co., 31 N. J. L. 205.
The fourth point, alleging violation of the constitutional
rights of prosecutors, rests either on assumptions of fact con-
trary to our findings, as outlined above ; or on the proposition
that the taking is, in effect, that of the benefactors of the col-
lege and hot that of the street railway company. It is, no
doubt, true that the proposed change of terminal was sug-
gested by those benefactors; but if it is a legitimate public
improvement, as we have held that it is, the fact that it is
undertaken at the suggestion of parties moved by other con-
siderations will not destroy its public character nor deprive it
of the statutory support.
The writ of certiorari will be dismissed, with costs.
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FEBRUARY TERM, 1017. 87
90 y. J, L. Heilemann v. Clowney.
HENRY H. HEILEMANN, PLAINTIFF, v.' HANNAH M.
CLOWNEY, DEFENDANT.
Argued November 10, 191^— Decided February 20, 1917.
1. A return that a summons was served by leaving it at defendant's
"residence" is insufficient.
2. A summons is not lawfully served by slipping a copy thereof
under the locked entrance door of a building leading into a hall,
which is used to communicate both with a business establish-
ment and a stairway to defendant's suite of apartments, shut off
by it« own entrance door.
3. Whether ^uch summons could be lawfully served by delivery to
defendant's son, living with her in said apartment and about
to enter the building from the street, qucBre,
4. The abolition of a return day in the summons brought about by
the Practice act of 1912, and the requirement that summons
shall be served "forthwith" {Pamph. L. 11)12, p. 4G8), have done
away with the practice of enlarging the return day in cases
when prompt service cannot be made or defective service has
been made; but have not deprived plaintiffs of tlie right to have
lawful service made on defendants on the same principles that
led to an extension of the return day under the former practice.
On rule to show cause wliy ?ervice of summons should not
be set aside and cross-motion to permit issue and service of
new summons.
Before Justices Garrisox, Parkkr ai?d Bergex.
For the plaintiff, Qannson & Voorh{'P^.
For the defendant, Clarence L, Cole (Lee F. Washingtoih
on the brief).
The opinion of the court was delivered bv
Parker, J. The requirement of the statute of 1903 was
that a copy of the summons "shall be served on the defend-
ant in person at least two days before its return or left at his
usual place of abode at least six days before its return." Prae-
iice act 1903, § 52; Gomp. Stat,, p. 4067. By an amendment
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88 XEW JERSEY SUPREME COURT.
IleilemaDn v. Clowney. 90 N. J. L.
of 1912 {Pnmpli, L., p, 168), no doubt, in view of the Prac-
tice act of that year, and the rules and forms accompanying
the same, wherein return days are eliminated from writs of
summons, the words ^^at least two (or six) days before its re-
turn" are struck out, and the clause reads : ^*A copy whereof
shall be served on the defendant in person, or left at his usual
place of abode. Said service shall be made forthwith after the
process is delivered to the sheriff or other oflBcer for service."
No personal service was made and the question is whctlier
there was valid substituted service.
The points made by defendant are these :
1. That the return fails to state that st^rvice was made "at"
the defendant's "usual place of abode."
2. That such service was not in fact made.
3. That return was not made within legal time.
The testimony shows that at the time of the attempted ser-
vice defendant lived at 167 St. James Place, Atlantic City,
in a building which has a business front on the elevated board-
walk, and an entrance door opening on an inclined ramp
leading from the street level of St. James Place to the board-
walk. The basement of the building, on tHe street level, was
used as a workshop and storeroom by a rolling chair concern ;
the main floor, opening on the boardw^alk and the ramp, as
the place of business of the same concern ; and the floor above,
reached by the doorway on St. James Place through a hall
connecting with the rolling chair office ^nd up a stairway
separate from the rolling chair office, as the living apartments
of the defendant and her family. No one else lived in the
building. The evidence satisfies us that this apartment was
her "usual place of abode" in the contemplation of the statute.
She had no other place of abode, although at this period much
of her time was spent at a local hospital in attendance on a
sick son. At the time when the sheriff^s deputy appeared with
the summons, there was no one in the living apartments, and
the side door on St. James Place was locked. Another son of
defendant, named Frank Clowney, who had just finished
bathing in the ocean, was returning to the apartment in his
wet bathing clothes when the sheriff^s oflScer, learning his
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FEBRUARY TERM, 1917. 89
90 A". J. L. Heilemann v. Clowney.
identity, asked for his mother and was told she was not at
home. The ofBcer tried to hand Clowney the papers outside
the building, but he refused them, and the officer put the
papers under the side door opening on the ramp. Clowney,
according to his testimony, tried to enter by that door after
tlie officer had gone, and found it locked. Xo one answering
the bell, he obtained access through the basement and thence
to the hall and so upstairs. Later on he picked up the paper
and gave it to his mother's attorney without showing it to
her.
The return was not made until over a month after the at-
tempted service, and several days after the depositions were
taken under this rule. It reads as follows :
*^Duly served \vathin summons and complaint August 21st,
1916, on the defendant, Hannah M. Clowney, at 167 St.
James Place, Atlantic City, New Jersey, the defendant lock-
ing herself in the house, and refused to receive the writ, and
the son, who is above the age of fourteen, also refusing to
receive the writ, I placed a copy under the door, in the pres-
ence of the said son ; the place service was made was the resi-
dence of the defendant at the time service was made."
It is quite clear that the return is defective in failing to
state that service was made at defendant's usual place of
abode. Mygait v. Coe. 63 N, J. L. 510.
Assuming that the return may be amended to conform to
the facts, the question whether service was actually made
'%t" defendant's "usual place of abode" presents more diffi-
culty. The point mainly urged is that the word "at" is not
satisfied by placing the writ under the locked entrance door
of a hallway leading either to a business establishment on the
one hand, or, on the other, to a stairway in turn leading to
defendant's apartment which had its own door, also locked.
If the building had contained several apartments, occupied
by several faihilies, and the writ had been slipped under the
front door of a common hallway, it could not be claimed that
eflfective service was made; nor in all probability if it were
handed to an attendant at the general entrance. Fitzgerald
V. Salentine, 10 Met. 436. In the case at bar, the writ might
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90 NEW JERSEY SUPREME COURT.
Heilemann v. Clowney. 90 N, J. L,
well have been picked up by some employe of the rolling chair
concern using that doorway, and never have reached its desti-
nation at all. We think the point is well taken.
In so ruling, we do not wish to be understood as sanctioning
the practice of slipping a writ under a door, or tossing it into
an open window, or otherwise physically "leaving*^ it at de-
fendant's usual place of abode without delivering it to some
person thereat. While not deciding the point, we know of no
case in which such practice has been recognized in the absence
of a statute permitting the affixing of the writ to the front
door, or the like. The universal practice in this state has
l)oen to deliver it on the premises to some member of defend-
ant's family who is 57// ;wm. This is the express requirement
of the Justice Court act and District Court act. Comp. Stat.,
p. 1966, § 45; Comp. Stat,, p. 2985, § 10.
.These considerations make it unnecessary to dispose of the
question whether the return was made in time; but they do
not lead to a quashing of the writ. The statute of limitations
has run, and where a plaintiff in good faith has begun an
action within time, and has failed to bring defendant into
court because of mistake or default by the oflBcer charged by
law with the duty of serving the summons^ the court ?hould
save the right of action if it can be done without working
manifest injustice. Two methods are open — (1) to order a
new summons to issue under section 53 of the Practice act
of 1903, whicli may be done even after the limitation has ex-
pired {Mut. Ben. Life Tm. Co. v. Bowand, 26 N. J. Eq. 389;
reversed on another point, 27 Id. 604) ; or to direct new
service of the original summons under a practice analogous io
enlarging the return day. Kloepping v. Stellmacher, 36 N. J.
L. 176; McCrnd'en v. Richardson, 46 M. 50; County v.
Borate Company, 68 Id. 273, 275; Walnnt v. Newton, 82 Id.
290, 293.
The abolition of a formal return day, an important func-
tion of which was to fix the time when declaration must be
filed so as to require defendant to plead in a specified time
thereafter, and the substitution of provisions that the com-
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FEBKUAEY TERM, 1917. 91
90 N. J, L, ' Booth & Bro. v. Glasser.
plaint shall be annexed to the summons and that defendant
answer within twenty days after service on him of complaint
and summons^ and the new requirement that the sheriff shall
serve those papers "forthwith," or within a reasonable time
after their receipt, were never intended to abrogate the prin-
ciple imderlying the practice of extending the return day, that
plaintiff should not lose his action begun in good season, by
delay or error of the sheriff in getting the defendant into
court. So, that while the necessity of extending the return
day is eliminated, there is no reason why proper service of the
original summons should not now be made, and the papei*
taken from the files for that purpose, or a new summons issued
under section 53 of the Practice act. Either method is law-
ful, but the former seems to us the preferable one.
The motion to quash will be denied, but without costs, and
a rule may be entered for a new summons or reservice of the
old summons.
ALFRED W. BOOTH & BRO. (A CORPORATION), APPEL
LANT, V. j\C0B GLASSER AND SAUL HARRIS,
BUILDERS AND OWNERS, AND HARRIET LAZARUS,
MORTGAGEE, RESPONDENTS.
Submitted December 7, 1916— Decided February 16, 1U17.
In an action brought in a District Court to enforce a mechanics'
lien claim, it is not necessary that a return day be tiamed in
the summons. The amendment of the act relating to the en-
forcement of mechanics' lien claims {Pamph. L, 1912, p. 470)
provides the required form to be used in District as well as
Circuit courts in cases brought under that act, and it was error
for a District Court to dismiss such a suit for want of a return
day in the summons.
On appeal from the Bayonne District Court.
Before Justices Garrison^ Parker and Bergen.
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92 NEW JERSEY. SUPREME COURT.
Booth & Bro. v. Glasser. -90 N. J. L.
For the appellant, Randolph Perkins.
For the respondents, Lazarus & Brenner.
The opinion of the court was delivered by
Bergen, J. The appellant filed a mechanics' lien claim in
the office of the clerk of the county of Hudson and brought it?
suit to enforce it in the District Court of the city of Bayonne.
The defendant moved to dismiss the action for two reasons
— first, ''that the return day does not appear on the summons
served;" second, "more than fifteen days has intervened be-
tween the date of the summons and the return day." The
trial court granted the motion and entered a judgment dis-
missing the suit from which the plaintiff has appealed to this
court. iThe question to be determined is whether section 23
of ^^An act to secure to mechanics and others payment for
their labor and materials in erecting any building (Revision
of 1898)," as amended in 1912 (Pamph. />., p. 470), author-
izes a summons witbout naming a return day in actions
brought in a District Court for the enforcement of a debt for
which a lien is given for labor or materials furnished in erect-
ing a building. This statute enacts, among other things, that
"when the suit is brought in a District Court the practice
shall be as nearly as possible the same as now provided, or
may be hereafter provided, by Jaw, in District Courts in
actions on contract." The act further provides that all suits
shall be commenced by summons similar in form to that set
out in the statute, which in express terms provides a fotm
for use either in the Circuit or District Court, "as the case
may be," and differs from the form required in actions on
contract in the District Court, in that no return day is
required, but defendant is to answer within twenty days
after service of the summons with complaint annexed. Th*^
defendant argues that the amendment was not intended to
change the District Court act, which provides that a sum-
mons "shall specify a certain time not less than five nor
more than Ififteen days from the date of such process." This
contention is clearlv unsound in law.
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FEBRUARY TERM, 1917. 93
90 y, J, L, McAllister v. Atlantic City.
The only statute which confers on District Courts jurisdic-
tion to entertain a suit to enforce a mechanics' lien, is that
to ])e found in section 23 above mentioned, and that section,
while declaring that the practice in District Courts in such
cases shall be as nearly as possible the ^me as that provided
for actions on contract in that court, further enacts that the
summons shall be in form that is expressly set out in the act,
and where a statute confers jurisdiction, and at the same time
prescribes the form of summons to be used in enforcing claims
under that jurisdiction, the entire act must be accepted as to
the manner in which such jurisdiction shall be exercised.
The ordinary action on contract diifers from a suit to enforce
a statutory lien, and the legislature in conferring jurisdiction
has the right to prescribe the method in which it shall be ex-
ercised, and it has done so in this case. The summons used
in this case conformed to the express terms of the statute
conferring jurisdiction, and it was error to dismiss the suit
for the reasons upon which such judgment was based.
The judgment appealed from will be reversed.
RICHARD MCALLISTER ET AL., RELATORS, v. ATIANTIC
CITY, RESPONDENT.
Argued November 9, 1916— Decided March 7, 1917.
1. A city is not required to purchase or condemn land for park
purposes under Pamph, L. 1894, p. 146, and a writ of mandamuH
win not be aUowed when it appears that the cost of purchase or
condemnation wiU require a bond issue beyond the legal limit.
2. A writ of mandamus will not issue to enforce a contractual obli-
gation. In such case a private party has a remedy by an action
for damages.
3. Objection to the legal suflSciency of a plea to an alternative writ
of mandamus should be presented by demurrer and not by motion
to strike out The Practice act of 1912 does not apply to plead-
ings resting on a prerogative writ.
On demurrer to plea to alternative writ of rnundawiL^.
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94 XEW JERSEY SUPREME COURT.
McAUister v. AUantic City. 90 N. J. L.
Before Justices Garrison, Pakker and Bergen.
For the relators, Clqrence L. Cole,
For the respondent, Harry Wootton and Gilbert Collins.
The opinion of the court was delivered by
Bergex, J. The relators hold an alternative writ of man-
damus enjoining respondent to procure the title to all the land
within the limit of a public park upon which a pier, known as
Heinz Pier, is located, by condemnation, or otherwise, and to
cause so much of the pier as is within the limits of the park
to be wholly removed therefrom. The writ recites that in
1907 relators were the owners of a strip of land eighty feet
wide, adjoining Rhode Island avenue, and extending south-
erly at that width to the exterior line established by the ri-
parian conmiissioners ; that April 8th, 1907, they conveyed to
Atlantic City all their interest in said land, beginning in the
interior line of the public park of the city and running south-
erly to the said exterior line; that, as authorized by statute,
the respondent, by ordinance adopted October 9th, 1899, did
establish the inland line of a park along the ocean front ; that
the aforesaid conveyance granted the interest conveyed, for
and only for, use as a public park, except that the city might
maintain along the interior line an elevated public boardwalk :
that the grantee covenanted that the lands granted and dedi-
cated to public use should forever be and remain open, so that
the view oceanward from the elevated public walk should be
free, open and unobstructed, and that no use should be made
of the land inconsistent with its use as a public park; that
when the deed was delivered there existed a pier known as
Heinz Pier, connected with the boardwalk and extending into
the ocean about five hundred feet on which are two enclosed
pavilions, one within and the other without the park limits,
but neither on the land granted to the city by the relators,
but that about one hundred feet of the pier crosses a corner of
said land ; that the city is the owner of all the land within the
park limits except the Heinz, and three other like piers, and
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FEBRUAEY TERM, 1917. 95
90 N. J. L. McAllister v. Atlantic City.
what is called the Lindley tract, and that relators have re-
quested respondent to acquire and remove so much of the
Heinz Pier as is within the limits of the park, which request
has not been complied with.
The city filed a plea, setting up that tlie determination of
the question of the necessity of procuring title to land for a
park is vested in the city and not subject to mandmtius; that
the statute fixes no time for acquiring the land; that when
relators conveyed, that portion of the structure they now seek
to remove was on the land ; that relators have, since giving
the deed consented to the continuance of the platform, and
have collected rent for the use of it by the pier company ;
that in 1885 the city authorized the construction of the pier
and it was in existence when relators conveyed, subject to an
agreement dedicating a strip sixty feet wide for the board-
walk; that the boardwalk was moved oeeanward, owing to
accretions, which required the destruction of three hundred
feet of the pier, and the city agreed with the pier company
that it would not interfere with so much of the pier as was
within the park limits unless all other piers within the limits
of the park were acquired by condemnation ; that the city is
not financially able to take over all the piers, as it would re-
quire a bond issue beyond legal limit, and that to condemn
so much as is within relators' conveyance would not accom-
plish the purpose relators seek. To this plea relators demur
and argue that the presence of the pier within the boundaries
of the park is an obsti*uction in violation of the terms of the
deed. This may be granted and yet the question remains
whether the city can be required by mandamus to condemn
land for park purposes, because it has acquired a part, or be-
cause of a covenant in a deed for some of the land. We do
not think it can be.
In the first place, the law (Pamph. L. 1894, /;. 146) doe?
not require the city to acquire, it has tlie legal right, but is
not compellable, and mandamtis will only issue when the city
refuses to perform an express legal duty, and there is in this
case no such duty imposed.
I
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96 NEW JERSEY SUPREME COURT.
Deck V. Bell. 90 N, J. L.
In the second place, the deed does not aid the relators, for
the writ is never rested on a contractual obligation, in such
cases the private party has Jiis action for damages. Mabon v.
Ilalstead, 39 N, J, L. 640. Again, it will never compel what
cannot lawfully be done, and in tliis plea it appears that the
city has no funds to pay any award and cannot raise it by a
bond issue, as it would require a sum in excess of legal limit.
A notice to strike out the plea was given, as well as de-
murrer thereto, and the question was raised as to which was
proper; we are of opinion that this being a proceeding resting
on a prerogative writ,. the Practice act of 1912 does not apply,
and that the objection should be raised by demurrer and not
by motion to strike out.
The demurrer will be overruled.
HOWARD S. DECK, PROSECUTOR, v. GASTON BELL ET AL.,
RESPONDENTS.
Argued February 3. 1917 — Decided February S, 1917.
Where a petition for a license to keep an inn and tavern was in the
usual form, excepting a provision attached thereto reciting that
the locus in quo is "a picnic or recreation ground of more than
one acre," and there was evidence before the Court of Common
Pleas from which that court might properly conclude that the
locus in quo was of such character, the license so granted, al-
though in the usual form for the keeping of an inn and tavern,
is, in fact, a license for "a picnic or recreation ground com-
prising at least one acre" under the exceptions mentioned in
chapter 280 of the laws of 1913 (Pamph. L., p. 574), which is
intended to limit the granting of licenses for inns and taverns
according to a basis of five hundred of population to one inn or
tavern.
On writ of certiorari to vacate a license to keep an inn
and tavern in the township of Wayne, in the county of
Pa?:saic.
Before Justice Minturn.
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FEBRUARY TERM, 1917. 97
90 N, J. L, Deck v. Bell.
For the motion, William Gourley,
Contra, G, Rowland Munroe,
]^riNTCRX, J. A writ of certiorari was granted to review
the proceedings of the Passaic Common Pleas, granting a
license to keep an inn and tavern to Gaston Bell, in the
township of Wayne, in the connty of Passaic. The petition
for the license was in the nsual fonn, e3^3ept a provision
attached thereto reciting that the locus in quo is "a picnic
or recreation ground of more than one acre.^'
This addendum was intended to bring the applicant within
the provisions of chapter 280 of the laws of 1913 (Pamph. L.,
p. 574), which is intended to limit the granting of licenses
for innj> and taverns according to a basis of five hundred of
population to one inn or tavern, excef)ting in certain specified
instances among which is "a picnic . or recreation ground
comprising at least one acre.^'
No question is made as to the character of the applicant,
or of the place, the sole contention of the remonstrance being
that the township at present is sufficiently supplied with
inns and taverns, and that while the application is in effect
for a license to keep a picnic or recreation place, under the
exception contained in the act of 1913, the license granted
by the Common Pleas was specifically for the keeping of an
inn or tavern, and was therefore invalid.
The act is obviously a prohibitor}' act within defined limi-
tations. Its plain intent was to restrict the granting of li-
censes to a basis of population in all municipalities, except
in certain specified instances, among which is the picnic or
recreation ground of at least one acre.
It will be observed that the act provides generically for
the granting of a license for an inn and tavern, and for
nothing else. "No license to keep an inn or tavern" is the
mandatory language, limiting the granting of licenses to a
status ba?ed upon population. "But," the act continues,
"this proliibition shall not apply to any premises," and then
Vol. xc. 7
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98 NEAV JEKSEY SUPREME COURT.
Deck V. Bell. 90 N. J, L.
follows a statement of the exempted classes, hiter alia, the
one in question.
It may well be, as counsel for the remonstrants contends,
that the license should be issued to one of the excepted
classes, eo nomine. Such a procedure would certainly be
consistent with the actual status presented, for instance, in
the excepted class of a club or an association, which have
never been accorded the designation of an inn or tavern.
But tlie act seems to retain the common law generic desig-
nation for all licenses issued under its provisions, and
therefore the validity of the license cannot be successfully
challenged upon that ground.
It need only be added that support for this construction
of the act is contained in the views expressed by Mr. Jus-
tice Kalisch, for this court, in Fort v. Common PUas, 89
N.J,L,UA.
This act received its initial construction in this court, in
Tiltony. Common Pleas of Ocean, 87 N. J. L, 47; 92 AtL
Rep. 87, and it was there held that the advertising require-
ment of the act, based upon the population provision, was
discretionary with the Court of Common Pleas, and that
an order made thereunder was not reviewable here.
This construction is consistent \Vith the views entertained
by this court in the earlier cases, under the prior inn and
tavern legislation. Thus in Bamegat Beach Association v.
Bushj/, 14 X. J. L. ()37, it was held that where the Common
Pleas has jurisdiction to grant licenses, under the act concern-
ing inns and taverns, this court wnll not on certiorari review
such discretion, in granting or refusing licenses, or look into
the facts upon which the discretion is exercised. To the same
effect is Smith v. Corbett, 59 Id. 584, and Ilouman v.
Schnlsicr, GO Id. 132.
In the case sub jndice, there was evidence from which the
Common Pleas might properly conclude that the locus in
qiw contained a picnic or recreation ground of an acre in
extent, so as to bring it within the contemplation of the
legislative exception. Upon this hearing it must be assumed,
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FEBRUARY TERM, 1917. 99
90 N. J, L, Irwin v. Atlantic City.
under the adjudications referred to, that the trial court so
found.
It is urged that the act of 1899, chapter 77, is in pari
materia with the act of 1913, and must be considered in
defining the term "park^^ and ^^recreation grounds,^' as used
in the latter act. The act of 1899 consists of a distinct title
in nowise related to the subject of inns and taverns, with
which the legislation sub jttdice is intended to deal. It ap-
plies entirely to corporations "managing parks, picnic and
pleasure grounds,'^ and apparently segregates such localities
for licensing purposes when managed by a corporation from
the common law category of an inn and tavern, as defined
by law and utilized in practice by the individual, under the
modem requirements and modifications of the ordinary ex-
isting excise legislation as derived from the common law,
and the earlier statutory regulations of the subject. Leeds
V. AUreuter, 84 N, J. L. 722.
These conclusions lead to a dismissal of the writ, but with-
out costs.
WILLIAM H. IRWIN, PROSECUTOR, v. CITY OF ATLANTIC
CITY, RESPONDENT.
Submitted December 7, 1916— Decided March 22, 1917.
1. The act of 1916 (Patnph. L., p. 283), requiring the owner of
jitney busses to comply with certain legislative regulations, and
to pay a specified tax into the treasury of the city in which they
are operated, imposes a state-wide policy of regulation upon all
subordinate governing bodies, in the use and regulation of such
a method of transportation, but it contains nothing in its pro-
visions to indicate that it was the legislative purpose to repeal
the powers of regulation theretofore conceded to municipalities
by their respective charters.
2. In the absence of an express intent to repeal, or of a legislative
intent to deal de novo with the entire subject, evinced by the
existence of inconginious enactments, demonstrating ew neces-
sitate the legislative purpose to supersede existing legislation by
the later law, a repeal by implication is not favored.
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100 NEW JERSEY SUPREME COURT.
Irwin V. Atlantic City. 90 N, J. L,
On certiorari removing for review an ordinance of Atlantic
City.
Before Justices Swayze, Mixturn and Kalisch.
For the prosecutor, Theodore W, Schimpf,
For the respondent, Harry WooUon.
The opinion of the court was delivered by
MiXTURN, J. The facts agreed upon are as follows:
1. That Atlantic City is a municipal corporation.
2. That Atlantic City is governed under the provisions of
an act entitled "An act for the government of cities.'^ Pamph.
L. 1902, p. 284.
3. That the city of Atlantic City is now governed by what
is commonly known as the Commission Government act of
1911, and the several supplements and amendments thereto.
4. That the distance covered in the ordinance passed May
24th, 1916, approved September 2d, 1916, is as follows:
"From Maine to Albany avenue, two and six-tenths miles;
from Albany to Jackson avenue, seven-tenths of a mile;
from Caspian avenue to the Boardwalk, nine-tenths of a
mile; that the distance covered by the trolley company of
Atlantic City from the Inlet to Jackson avenue is three and
seven-tenths miles; from Jackson avenue to Savannah ave-
nue, one and nine-tenths miles; that the single fare charged
by the railroad company from the Inlet to Savannah avenue
is five cents."
5. That Atlantic City is laid out with reference to its
streets in the manner following: Abutting the ocean is a
boardwalk, and running parallel with said boardwalk are
the following main streets : Pacific avenue, Atlantic avenue,
Arctic avenue, Baltic avenue and Mediterranean avenue.
That Atlantic avenue is the main business street of Atlantic
City, and on the said street are two sets of tracks which are
used by the Atlantic City and Shore Railroad Company, in
the operation of trolley cars on Atlantic avenue, for the
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FEBRUARY TERM, 1917. 101
90 N. J. L, Irwin v. Atiantlc City.
carr}dng of passengers; that Atlantic avenue is intersected
by many cross streets from the Inlet to Jackson avenue;
that said Atlantic avenue is intersected, among other streets,
by Virginia avenue. South Carolina avenue and Florida
av«nue, on which streets are laid tracks on which trolley
cars are operated, for the carrying of passengers, and is also
intersected by Gteorgia avenue and Mississippi avenue, on
which there are tracks which are used, chiefly in summer
time, for the incoming and outgoing excursion trains, pro-
pelled by steam.
6. That the prosecutor is a resident of the city, and at
the time of the granting of the writ- was the owner and
operator of a jitney bus, for hire, over the streets of the city.
The charter of the city (Pmuph. L, 1902, p. 284) em-
powered the council to regulate the use of the city streets.
The act of 1916, page 283, requires the owner of an auto
or jitney bus to comply with certain legislative regulations,
and to pay a specified tax to the city treasury. This act has
been held to be constitutional by this court. West v. Asbury
Park, 89 N. J, L. 402.
On August 24th, 1916, the city adopted an ordinance pro-
viding additional regulations for the use and operation of
such conveyances, and provided penalties for the violation
of these regulations. The validity of this ordinance is the
question controverted here; the insistence in effect being
that the legislature by the act of 1916, having dealt with
the subject-matter, and regulated it, from the viewpoint of
state policy, it is ultra vires for the municipality to add other
and further regulations in the interest and well-being of
local government. The power of the city to regulate the
use of its streets and generally to legislate, under its charter
provisions, for the purposes in question here, anterior to the
passage of the act of 1916, has been definitely settled by
the adjudications. Fonsler v. Atlantic City, 70 N, J. L.
125; Ferretti v. Atlantic City, Id. 489; Brown v. Atlwiilic
City, 71 Id, 81; Reed v. Sasla;ff, 78 Id. 158; Brown v. At-
lantic City, 72 Id. 207; Harris v. Atlantic City, 73 Id, 251;
Morwitz V. Atlantic City, Id, 254.
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102 nt:w jersey supreme court.
Irwin V. Atlantic City. 90 N. J, L,
These cases and others not necessary to cite, determined
not only the legal right of the city to so legislate, but also
emphasized the reasonableness of the provisions of the ordi-
nances passed in pursuance of this general power.
The act of 1916, page 283, imposed a state-wide policy*x)f
regulation upon all subordinate governing bodies, in the use
and regulation of this method of transportation, but it
contains nothing in its provisions to indicate that it waa the
legislative purpose to repeal the powers of regulation there-
tofore conceded to municipalities by their respective charters.
The requirements contained in the act of 1916 were mani-
festly superadded to the exercise of such powers, as the
municipalities may legally exercise, for the best interests
of reasonable local self government, in the management,
control and regulation of municipal highways, and the
safety and protection of the inhabitants thereon.
In the absence of an express intent to repeal, or of a legis-
lative intent to deal de novo with the entire subject, evinced
by the existence of incongruous enactments, demonstrating
ex necessitate the legislative purpose to supersede existing
legislation by the later law, a repeal by implication will not
be favored. State, Morris Railroad Co,, v. Commissioners,
37 N, J. L. 228 ; State v. Blake, 35 Id. 208 ; S, C, 36 Id.
442.
It was competent for the commissioners to impose reason-
able conditions upon the exercise of the right conferred, if
deemed expedient in the public interest.
Our consideration of the remaining reasons, presented by
the prosecutor, leads us to conclude that they are without
substance. The ordinance will be aflBrmed.
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FEBRUARY TERM, 1917. 103
90 y. ./. L, McGurty v. Newark.
MARY McGURTY, PROSECUTOR, v. MAYOR AND COUNCIL
OF THE CITY OF NEWARK ET AL., RESPONDENTS.
Ar^ed November 8, 1916— Decided March 28, 1917.
1. Where the justice and legfality of the claim of the widow of a
policeman, against a board of police commissioners, for a pension,
have been established subsequent to an adverse rulinjj; on her
claim, but which ruling? was made without giving her an oppor-
tunity to be heard, and the result of which she was in ignorance
except for having learned of it some time thereafter in the news-
papers, and it appearing that, after learning of such adverse ac-
tion, she had made endeavors to have the matter reheard, the de-
fendant cannot invoke the equitable doctrine of estoppel or laches,
based upon its manifest improper deprivation of the right of the
prosecutrix to an existing legal claim, which, but for the initial
error in procedure, would have been terminated in her favor.
2. Laches under any circumstances is a relative term and is invoked
upon equitable considerations to prevent injustice by unsettling
rights which have accrued during an interval of apparent re-
pose, due to a claimant*s inexcusable inaction.
Before Justices Swayze, Minturn and Kalisch.
For the prosecutor, Chandler W, Riker.
For the defendants, Harry Kalisch.
The opinion of the court was delivered by
MiNTURN, J. The writ of certiorari removes a resolution
of the Newark board of police commissioners, refusing to
pay to the prosecutrix the amount claimed to be due to her
as a pension consequent upon the death of hor husband, a
former policeman of the city of Newark. An application is
also made upon a rule to show cau?e for a poroniptory
mandamus upon the board of trustees of the Xewark police
pension fund, in the event of the determination of the cer-
tiorari csL&e in her favor, requiring the payment to the prose-
cutrix or relator of the amount due to her in accordance with
a subsequent resolution of the police commissioners. The
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104 XEW JEKSEY SUPREME COUliT.
McGurty v. Newark. 90 X. J, L.
facts are undisputed, and are presented in a stipulation of
counsel forming part of the record.
The deceased police oflBcer, John McGurty, had served for
seventeen years upon the police force, and at the time of his
death was in good standing upon the force and as a member
of the police pensiorf fund.
Shortly after his death, the prosecutrix applied to the
police commissioners of the city of Newark for a pension,
and that body, without notice of any hearing to her, reported
adversely to her claim, having first referred the matter to
tlie police surgeon, who, without hearing the prosecutrix,
reported adversely upon her claim.
The knowledge which the prosecutrix obtained of this
action of the board, and its medical ofl&cer, was derived from
a chance reading of the trustees' action in a Newark news-
paper, and for nearly one year she remained without official
notice of the disposition of her claim. The formal disallow-
ance of the claim was not made until July 26th, 1916. In
the meantime, she and her counsel were actively engaged in
negotiating with the board of trustees of the police i>ension
fund for the payment of the claim.
On December 28th, 1^14, an application was made through
the mediation of a charitably disposed citizen, in her behalf,
to the board of police commissioners to re-open her applica-
tion, and on April 26th, 1915, the application was granted
and she thereafter presented her case, supported by the tes-
timony of various witnesses, medical and otherwise, with
the result that on December 15th, 1915, she .was granted by
resolution a pension of $650 per year. The trustees of the
police pension fund refused to honor the resolution, upon
the ground, inter alia, that the prior resolution of the board
of police commissioners was a final disposition of the claim.
That alleged legal barrier she seeks herewith to remove, by
this writ of certiorari, as a precedent condition to her claim
for a writ of man-damns.
The main contention, however, is doubtless presented in
the brief of counsel for the defendant, and is bascnl upon the
fact that during the interim between the first action of the
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FEBRUARY TERM, 1917. 105
90 y. J, L. McGurty v. Newark.
board of police commissioners in 1912, rejecting the claim,
and their final action allowing it, the personnel of the sub-
scribers to or members of the police pension fund had been
increased by the addition of one hundred and forty-eight
members of the police force, whose fiscal rights as partici-
pants in the pension fund it is alleged would be inequitably
and unreasonably damnified at this juncture by the allowance
of this claim.
This contention would have a semblance of authority to
support it afi a claim of laches, upon the mere statement of
the main facts, if severed from and unrelated to what the
record presents, as the exact status of the prosecutrix. The
record shows that the prosecutrix m ops consilii, vested with
a property right in the fund in question, was deprived of
that right without an opportunity to be heard or to present
her case, and remained in ignorance of the situation until
by chance she was informed of it through the public prints.
That her right to participate in the fund was thus adjudi-
cated against here without any notice to her of the fact. That
the interim between the casual unofficial notice she received
from a newspaper, and the granting of the writ of certiorari,
was occupied in great part by her and her friends in an
effort to have her case reopened, and an opportunity offered
to her to present her case as she might have done in the first
instance. That, as a result of this opportunity, an adjudi-
cation was had and her claim was allowed. The justice of
her claim was thereby vindicated, and what should have been
accorded to her in the first instance in the way of regular
municipal procedure, was by this belated action for the first
time manifested by' official resolution.
The justice and legality' of the claim having been thus
conceded, the defendant is not now in a position to invoke
the equitable doctrine of estoppel or laches, based upon its
manifest improper deprivation of the right of the prosecu-
trix to an existing legal claim, which, but for the initial
error in procedure, would, we must assume, in the light of
the present status, have terminated in lier favor. Ladies
under any circumstances, like negligence, is a relative term,
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106 XEW JERSEY SUPREME COURT.
Ninth Street Imp. Co. v. Ocean City. 90 X. J, L.
and is invoked upon equitable considerations to prevent in-
justice, by unsettling rights which have accrued during an
interval of apparent repose, due to a claimant's inexcusable
inaction. 2 Bouv, 1820. Specifically, its definition is
synonymous with "inexcusable delay.'' 25 Cyc, 840, and
cases.
Instances are presented in our reports where, ipso facto,
lapse of time has been held not to bar the issuance of the
writ in a cause otherwise meritorious. State, Evans, v. Jer-
sey City, 35 N. J. L. 381 ; State, Baa-ter v. Jersey City, 36
Id. 188.
We are unable to characterize the delay in this instance
as inexcusable in the light of the circumstances a.s we per-
ceive them.
The result is that the original resolution or proceeding of
the board of police commissioners, refusing the pension in
question, must be set aside; and since no dispute exists as
to the facts in the case involving a disputed legal status, no
reason seems to exist why a peremptory writ of mandamus
should not issue to the board of trustees of the Newark police
pension fund, requiring them to pay to the relator the
amount of the pension and arrears of pension to which the
relator is entitled under the resolution of the board of police
commissioners adopted on December 2 2d, 1915.
NINTH STREET IMPROVEMENT COMPANY. PROSECrTOR.
V. CITY OF OCEAN CITY, RESPONDEAT.
Argued November 10, lOlC)— Derided March 21, 1917.
1. By the provisions of section 8 of Pamph. L. 1911. p. 471, com-
monly known as the *'Walsh act.*' the adoption by any city of
the provisions of that act results in the confirming and validating
of such local legislation as the city governing body had passed
and which is then in operation in the municipality.
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FEBRUARY TERM, 1917. 107
90 X. J. L. Ninth Street Imp. Co. v. Ocean City.
2. A prosecutor of a writ of certiorari is too late to be heard to
complain of alleged informalities and irregularities in the pro-
cedure of the adoption of a building code ordinance twelve years
after its adoption, and under which ordinance citizens of the
municipality, affected thereby, have expended their means and
conformed their building operations to comply with its provi-
sions.
On certiorari removing ordinances of Ocean City.
Before Justices Swayze, Minturn and Kalisch.
For the prosecutor, Clarence i. Cole and Bahcoch &
Champion,
For the respondent, Andrew G. Boswell and IK. Holt
Apgar,
The opinion of the court was delivered by
Minturn, J. The case presents the following state of
facts, as contained in the stipulation of counsel.
Ocean City is a city having less than twelve thousand
population, and is operating under an act approved March
24th, 1897, entitled "An act relating to and providing for
the government of cities in this state containing a popula-
tion of less than twelve thousand inhabitants." Pamph, L.
1897, p. 4:6. The city has also adopted the Walsh act.
The Ninth Street Improvement Company was incorporated
May 31st, 1916, the certificate being recorded in the clerk's
office of Cape May county on June 8th, 19J6.
The building code, in addition to what is shown by the
return, contains the following: "Passed at an adjourned
regular meeting of the common council this seventh day of
March, a. d. 1904, George 0. Adams, President of Council,
certified to this seventh day of March, a. d. 1904, T. Ijee
Adams, City Clerk, approved this eighth day of March,
1904, Joseph G. Champion, Mayor," and the amendment to
the code contains the following : "Adopted this sixth day of
April, A. D. 1908, Harry G. Stanton, President of Council,
certified to this sixth day of April, 1908, T. Lee Adams,
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108 NEW JERSEY SUPBEME COURT.
Ninth Street Imp. Co. v. Oceaa City. 90 X, J. L,
City Clerk, approved this seventh day of April, 1908, K M.
Cresse, Mayor."
The reasons filed by the prosecutor are intended to attack
the validity of the ordinances in question, as well as their
reasonableness. The building code was passed on March
7th, 1904, in pursuance of the provisions of the charter of
the city. The Walsh act was passed in 1911. Pamph, L,
1911, p. 462. Its adoption by the city of Ocean City resulted
in confirming and validating such local legislation as the
city governing body had passed, and which was then oper-
ative in the municipality. Whatever formal defects may
have existed in the procedure necessary to pass such ordi-
nance were cured by the adoption, ipso facto, of the new
legislation. Pamph, L. 1911, p. 471, § 8.
But, aside from that consideration, it cannot be over-
looked that the attack upon the ordinance in question was
not undertaken until over twelve years had elapsed since the
date of its adoption. 'During that interval it is reasonable
to assume that the citizens of the municipality affected by
the provisions of this ordinance, regulating, as it specifically
expresses, "the manner of building dwelling-houses and
other buildings," have expended their means and conformed
their building operations to comply with its provisions, and
have fixed their status as property owners accordingly.
In such a situation, this prosecutor is too late to be heard
to complain of alleged informalities and irregularities in the
procedure which led to its adoption. State, Noe, v. West
Hoboken, 37 Atl. Rep. 439; State, Zabriskie, v. Hudson
City, 29 .Y. J. L..115; Bndd v. Camden, 69 Id. 193; H ope-
well V. Flemin^ton, Id. .597.
We think these considerations dispositive of the objections
urged against the ordinance. The attack upon the garage
ordinance is based upon* the contention that it is ultra vires.
The provisions of the Walsh act, it is assumed, presented
the basic law for the adoption of this ordinance. Section 8
of that act provides that the city adopting the act shall have
power to enact and enforce "all ordinances necessary for the
protection of life, health and property;'^ to declare, pre-
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FEBRUABY TERM, 1917. 109
90 A'. •/. L. Crane v. Jersej' City.
vent and abate nuisances, and to preserve and enforce "the
good government, general welfare, order and security of the
city," by the passage of ordinances consonant with "the laws
applicable to all cities of this state," and the "provisions of
the constitution."
These provisions manifestly convey in unmistakable terms
a liberal concession of governmental authority in aid of the
reasonable and constitutional exercise of the police power
by the municipalities adopting the provisions of the act.
The definition and limitation of that power under our
constitutions, state and federal, have presented such a pro-
lific subject for judicial investigation and discussion, that
no more need be said upon the topic here than that in our
judgment the erection and management of a garage, with
all its incidental dangers and inconveniences to adjoining
property and public travel, are manifestly matters properly
cognizable by the municipal governing body as a subject for
regulation in the public interest, under the police power ex-
pressly conferred, as in this instance, or reasonably implied
ex necessitate in aid of the general welfare against dangers
recognized and obvious, to persons and property. Slaughter
House Cases, 16 Wall 36; Cooley's Const, Lim. 227.
We think that the ordinances 'under review should be
affirmed, with costs.
PATRICK CRANE, PROSECUTOR, v. THE MAYOR AND AL-
DERMEN OF JERSEY CITY ET AL., RESPONDENTS.
Submitted July 6, 1916— Decided February 8, 1917.
1. The fact that a superior officer, in whom the law has vested the
authority to try his subordinates upon charges preferred against
them, has, on previous occasions, reprimanded or disciplined them
for delinquencies in the performance of their duties, does not, per
*f, in the absence of a statutory mandate forbidding it, disqualify
such superior officer from trying them on charges duly pre-
ferred against them.
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110 NEW JERSEY SUPREME COURT.
Crane v. Jersey City. 90 X. J. Ia
2. A director of public safety, in a city governed under the provi-
sions of the "Walsh act," has the power, sitting alone, to try a
member of the police department on charges preferred against
him, where the board of commissioners have, by resolution, and
in accordance with the provisions of Pamph. L, 1915, p. 494,
amending section 4 of Pamph, L. 1913, p. 836, conferred upon
such director the judicial powers exercised by him.
3. The admission of illegal testimony, in cases tried by a special
tribunal, such as a city commission, will not have the efitect to
invalidate the findings of that tribunal so long as it appears
that there is competent testimony in the case to support such
findings.
On certiorari.
Before Justices Swayze, Minturn and Kalisch.
For the prosecutor, Harry Lane.
For the respondents, Johti Milton,
The opinion of the court was delivered by
Kalisch, J. On the 21st day of October, 1915, the prose-
cutor, who was a member of the Jersey City police depart-
ment, was dismissed from that body. The ground of his dis-
missal was conduct unbecoming an officer. The specific
charges made against him were that on the 13th day of
October, 1915, while on duty at the Jewett avenue stable,
he was ordered by Lieutenant Lynch, his superior officer, to
leave the stable door open, whereupon the prosecutor used
vile language, assaulted and attempted to shoot Lynch ; that
on the 14th day of October, 1915, the prosecutor, when or-
dered by Lieutenant Lynch to make out a report regarding
his, the prosecutor's conduct the day previous, used vile and
threatening language to the lieutenant and refused to make
out the report, and that such conduct was in violation of
rule 25, section 34 of the manual of the Jersey City police
force. The prosecutor, on the 21st day of October, 1915, was
put upon trial before Frank Hague, director of depart-
ment of public safety. The accused appeared with counsel
and objected to being tried by the director on two grounds —
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FEBRUARY TERM, 1917. Ill
90 N. J. L. Crane v. Jersey City.
first, that the director was disqualified to try- the cause be-
cause in a letter written by that official to the chief of police
of Jersey City, he had expressed an unfavorable opinion on
the conduct of the prosecutor as a police officer; secondly,
that the director was without jurisdiction to try the prose-
cutor, sitting alone, in that the prosecutor was entitled to
a trial by the entire board of city commissioners.
These objections were overruled by the director and the
trial proceeded. Witnesses were sworn and examined and
cross-examined, the accused officer being a witness in his
own behalf.
The letter which is made the basis of the prosecutor's
claim that the director was disqualified to try the prosecutor
upon the charges preferred against him, was embodied in an
order made by the director on the 21st day of February,
1915, and which order is designated as "General Order No.
21.^' A part of the letter which the prosecutor claims dis-
qualified the director to sit in judgment, reads as follows:
**This man is constantly reporting sick, and I am convinced
that his ailments are only imaginary, with the purpose of
shirking his duties. I have stated before in a communica-
tion to you that I am determined to drive such men as these
out of the department and I only regret that I have not suffi-
cient evidence to place Crane (the prosecutor) before the
commissioners on charges, and recommend his dismissal."
Reading the entire letter, it becomes plain that the direc-
tor was attempting to eradicate an evil that had grown up
in the police department, namely, for some officers to feign
illness, be relieved from duty on account of illness, and
draw full pay. In order to stop this nefarious practice, the
director used plain and emphatic language. But it is an
idle thought to entertain for a single moment that the di-
rector was actuated by personal malice against the men in
his department generally or against the prosecutor in par-
ticular. The director was manifestly actuated by a proper
spirit of public service, and it was his duty to protect the
public against imposition and to enforce proper and strict
discipline in the department of which he was the head, and
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112 XEW JERSEY SUPREME COURT.
Crane v. Jersey City. 90 i\\ J, L,
for the proper conduct of which he was answerable to the
public.
It is further to be observed that what was said, by the
director; in this letter, written some six months prior to the
happening of the event, which gave rise to the present
charges, has no connection whatever with the nature of the
charges upon which the prosecutor was tried.
The fact that a superior officer, in whom the law lias
vested the authority to try his subordinates upon charges pre-
ferred against them, has on previous occasions reprimanded
or disciplined them for delinquencies in the performance of
their duties, does not, per se, in the absence of a statutory
mandate forbidding it. disqualify such superior officer from
trying them on charges duly preferred against them.
As we are unable to discover any evidence of bias or op-
pressive conduct on the part of the director in the trial of
the prosecutor, we are forced to the conclusion that he was
not disqualified to inquire into and determine the truth of
the charges made against the prosecutor.
As to the point made by counsel, for the prosecutor, that
the director sitting alone was without jurisdiction to try
the accused, in that the statute contemplates a trial by the
entire board of city commissioners, we find to be without
merit.
Prior to the adoption of the act of 1915 (Pamph. L.,
p. 494), amending section 4 of the act of 1913 (Pamph.
L., p. 836^), the law required the entire board to sit in a
case like the present. Herbert v. Atlantic City, 87 N, J. L.
98. In that case the prosecutor was a member of the police
department of Atlantic City and was tried by the entire
board of commissioners, sitting as a special tribunal for that
purpose. The authority of the board to trv- the case was ob-
jected to by the prosecutor upon the ground that by an ordi-
nance previously adopted by the board, the power attempted
to be exercised had been transferred by the board to a single
commiissioner — the director of the department of public
safetv.
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FEBRUAKY TERM, 1917. 113
90 y. J. L. Crane v. Jersey City.
This court held that, since the legislature vested the judi-
cial powers in the board of commissioners, the latter could
not lawfully divest itself of such powers and transfer them
to the. director of public safety.
Evidently, in view of the ruling of this court in that case,
the legislature amended section 4 of the act of 1913, so as to
authorize the board of commissioners to distribute the ex-
ecutive, administrative, judicial and legislative powers,
authority and duties into and among five, departments in
cities having five departments, &c. This was decided in
Brennan r. Jersey City, at the June term, 1916, by this court
in an unrepcfrted opinion.
Tn the present case it appears that the board of com-
missioners by resolutions had conferred upon the director of
the department of public safety the judicial powers exercised
by him.
It is next urged that the prosecutor was dismissed with-
out sufficient evidence to justify his dismissal, and that the
conviction was against the clear weight of the evidence.
An examination of the evidence leads us to the conclusion
that the judgment, pronounced by the commissioner against
the prosecutor, is fully supported by the preponderance of
the credible testimony in the case.
Lastly, it is insisted that the proceeding must be set aside
because illegal testimony was admitted over objections of
counsel for prosecutor. The admission of illegal testimony,
in cases tried by a special tribunal like the one whose pro-
ceedings we are considering, will not have the effect to in-
validate the finding of the tribunal, so long as it appears
that there is competent testimony in the case to support
such finding. In the present case, the competent testimony
amply supports the judgment of the commissioner.
The writ will l>e dismissed, and the proceedings affirmed,
with costs.
Vol. xc. 8
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114 XEW JERSEY SUPREME COURT.
S. I. W. and C. Co. v. Common Pleas of Hudson. 90 N. J. L.
SAFETY INSULATED WIRE AND CABLE COMPANY, PROSE-
CUTOR, V. COURT OF COMMON PLEAS IN AND FOR THE
COUNTY OF HUDSON ET AL., DEFENDANTS.
Submitted December 7, 1916— Decided April 7, 1917.
1. TNTiere, in a suit brought under the Workmen's Compensation act,
an award is made, based on a finding of total disability, and it
appears that a year and a half after the award the petitioner's
earning capacity had been fully restored, it was erroneous for
the Court of Common Pleas to refuse an order modifying the
original award, as provided by section 21 of the act. Pamph. L.
1911, p. 143.
2. The basic principle of the Workmen's Compensation act is in-
demnity. Therefore, when it appears, in a case where an award
has been made, that the incapacity upon which the award was
based had diminished or ceased, it becomes the duty of the court,
upon proper application, to interfere and grant relief.
On certiorari.
Before Justices Swayze, Minturn and Kalisoh.
For the prosecutor, Isidor Kaiisch.
For the defendants, Alexander Simpson.
The opinion of the court was delivered by
Kaltsch, J. This matter comes before us, by writ of
certiorari., to review the legality of an order made by Judge
Ten nan t. Judge of the Hudson County Court of Common
Pleas, dismissing a petition for rehearing, filed by the prose-
cutor in a workmen's compensation case, and directing that
an order awarding compensation theretofore entered in favor
of I'hilip Kress, be continued with full force and efifect, with
costs.
On or about April 1st, 1912, Philip Kix.*ss, who was
in the employ of the prosecutor received an injury in
his employment. Within the year Kress filed a petition
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FEBRUARY TERM, 1917. 115
90 y. J. L. S. I. W. and C. Co. v. Common Pleas of Hudson.
in the Hudson County Common Pleas Court for compen-
sation under the Workmen's Compensation act, and Judge
Carey, who waa then the judge of that court, after a hear-
ing, in a determination of facts and order filed March 8th,
1913, ordered that the prosecutor should pay as compensa-
tion to Kress for his injuries $6.21 per week for a period of
four hundred weeks. In February, 1916, an application
based upon a petition was made by the prosecutor to Judge
Tennant, the successor of Judge Carey, for a hearing, and
the judge made an order with the consent of the attorney
representing Philip Kress, that the hearing on the applica-
tion be set down for Friday, the 10th day of March, 1916.
On May 12th, 1916, the case came on before Judge Tennant
for a hearing upon a stipulation between counsel for the
respective parties, to determine whether the order awarding
compensation theretofore entered in the cause should be
modified.
The hearing developed that Kress was earning $12.42 at
the time he was injured. The injuries he sustained were
a?; follows: The loss of the third and fourth fingers of the
left hand and impairment of the use of the remaining fingers
on the left hand; loss of two joints of forefinger of right
hand, and permanent loss of use to first joint of thumb on,
the right hand.
The injuries enumerated were those which appeared to
have been sustained by Kress when he testified at the origi-
nal hearing before Judge Carey, in addition to the fact that
the petitioner at that time also complained that he suffered
from pains in the head, and it further appeared that he was
unable to perforin any work. Judge Carey allowed four
hundred weeks' compensation and, therefore, the basis of
this allowance under the Compensation act must have been
that there was permanent and total disability.
The statute provides that the loss of both hands, or botli
arms, or both feet, or both legs, or of any two thereof, shall
constitute total and permanent disability, to be compensated
according to clause b of the act of 1911, section 11, page
137 ; and in reverting to the clause referred to, we find that
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116 XEW JEKSEY SUPREME COURT.
8. I. W. and C. Co. v. Common Plea* of Hudson. 90 .Y. J. L,
compensation in such cases shall be paid for a period not
beyond four hundred weeks.
We think the statute contemplated other .disabilities total
in character and permanent in quality besides those enumer-
ated. This we gather from the final clause to section 6,
which reads: "This compensation shall be paid during the
j)eriod of such disability, not, however, beyond four hundred
weeks."
Furthermore, it is to be noted in this connection that
section c proceeds to give a schedule of injuries, their basis
of comjicnsation and number of weeks of duration. We
find that all the injuries testified to by the petitioner ex-
isted at the original hearing and are to be found in schedule
r. Basing the period of duration of compensation to which
the petitioner was entitled, by reason of the character of
his injuries, on the schedule of section c, it needs no argu-
ment to demonstrate that he was not entitled to a period of
four hundred weeks. The award of four hundred weeks made
by the court on the original hearing can only be reasonably
jtccounted for on the theor}' that the court grouped the
various injuries which the petitioner sustained, plus the
])ain8 in the head of which the petitioner complained, and
found that they constituted disability total in character and
permanent in quality.
.It will be presumed in the absence of anything to the
contrary, that the finding of the court was justified by the
facts then adduced. On the hearing of the present applica-
tion, it appeared that the petitioner was incapacitated from
performing any labor for a year and a half, but that after-
wards he succeeded in obtaining employment of a light char-
acter for which he was paid $9 per week. Subsequently he
was employed as a watchman in a factory, which position he
still holds, at $12 per week, which wages were later raised
to $14 per week. It thus appeared before the court below
that the |)etitioner's earning capacity had not only been re-
stored, but that he was receiving $2 a week more for his
labor than at the time he was injured.
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FEBRUARY TERM, 1917. 117
90 .V. ./. L, S. I. W. and C. Co. v. Common Pleas of Hudson.
Upon this state of the facts, counsel for the prosecutor
bases the argument that since the award made in the origi-
nal proceeding the petitioner's condition has improved to
such an extent that it is no longer a total disability, a^d that,
therefore, the prosecutor is entitled to have the original order
awarding compensation modified*.
Because it appeared that the injuries of the petitioner
were the same as when he applied for compensation, the
court below proceeded upon the theory that the present ap-
plication involved a review of the propriety of the award
in the original proceeding, and, therefore, refused to modify
the award. But it is obvious that this was an erroneous
conception of the situation.
Although the original award is incidentally involved in
the application for a modification thereof, it is clear that
the application wtis in nowise an attack on the propriety of
the award upon the facts as they then appeared before the
court. The essential new fact, which was disclosed to the
court belo\^, was that what appeared in the condition of the
petitioner in the original proceeding to be a total disability
has proved in the course of time not to be so, as evidenced
by the fact of tfie ability of the petitioner to perform labor
at higher wages than at the time of his injuries.
By section 21 of the Workmen's Compensation act of 1911,
page 143, it is, among other things, provided that an award
of compensation may be modified at any time after one year
from the time when it became operative, and nvay be reviewed
upon the application of either party on the ground that the in-
capacity of the injured employe has subsequently increased
or diminished.
It is to be obsened that the term "incapacity of the in-
jured employe" is used. The legislature has thereby estab-
lished the test of "incapacity" as the determining factor
wiiether an award shall be diminished or increased, as the
case may be. The incapacity which the legislature had in
mind was the incapacity to perform labor. This, of course,
is not applicable to the class of cases which the legislature
has expressly declared to be that of total disability, such as
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118 XEW JERSEY STJPREME COURT.
Seglie V. Ackerman. 90 y, J. L.
the loss of both .legs, &c., and for which there is a fixed
period of compensation.
It must be borne in mind that the basic principle of the
Compensation act is indemnity. Therefore, when it appears,
in a case where an award has been made, that the incapacit}'
upon which the award was based had diminished or ceased,
it becomes the duty of the court upon a proper application
to interfere and grant relief.
These views lead to the setting aside of the order made
by the court below dismissing the application of the prose-
cutor and directing that the order awarding compensation
in the original proceeding be continued in full force and
effect.
The record will be remanded that the case may be pro-
ceeded with in accordance with the views expressed herein.
PAUL SEGLIE, PROSECUTOR, v. HENRY ACKERMAN ET AL.,
DEFENDANTS.
Argued March 10, 1917— Decided April 2. 1917.
1. A petition for a recount, stating that the petitioner has reason
to believe that an error has been made by various boards of elec-
tion sufficient to change the result of the election and that the
written return in one district varied from the report in figures,
is sufficient to properly invoke the jurisdiction of the Supreme
Court to make an order for a recount under section 159 of the
Election law.
2. The granting of an application for a recount under section 159
of the Election law is not dependent upon the final result as de-
clared by the board of county canvassers, and may be made be-
fore such result is officially determined.
3. It is not necessary to the validity of a recount that the justice
of the Supreme Court, making the order, be actually present and
presiding at the recount. The statutory mandate that the re-
count shall be under the direction of the justice simply puts a
recount under his judicial control or direction, which direction
may be properly exercised by the justice out of the presence of
the board by an order, in writing, or verbally in the presence of
the board.
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FEBRUARY TERM, 1917. 119
90 y. J. L. Seglie v. Ackerman.
4. The power conferred by statute upon a justice of the Supreme
Court to grant a recount to be had under his direction is not
limited in its exercise by him in Ms individual capacity as such
justice, but upon the judicial office, irrespective of the individual
invested therewith.
On certiorari.
At a general election held in Hudson county on November
7th, 1916, the prosecutor and Henry Ackerman, the defend-
ant, were opposing candidates for the office of boulevard
commissioner.
The county board of elections, having canvassed the vote,
declared on December 4th, 1916, that the prosecutor had a
majority of twenty-two votes over the defendant Ackerman,
and issued to the prosecutor a certificate of election as boule-
vard commissioner.
It appears that within ten days after election, to wit, on
the 17th day of November, the defendant Ackerman pre-
sented a verified petition to Mr. Justice Swayze, the pre-
siding justice of the Hudson County Circuit, for a recount
of the votes cast for boulevard commissioner, in whole or in
part, as such justice might detennine. The basis of the pe-
titioner's application is set out as follows: "Your petitioner
further shows that he has reason to believe that an error
has been made by various district boards of election of said
county in counting and declaring the vote of said election,
whereby the result of such election has been changed; and
further shows that in the return of the elections filed by
the board of registry and election of the first district of
the second ward of the city of Bayonne, according to the
written return of the votes cast for one Paul Seglie, lie re-
ceived one hundred and twenty-seven votes, while according
to the statement of said vote expressed in figures he received
one hundred and forty-seven votes."
Upon this petition the Supreme Court justice, on Decem-
ber 1st, 1916, made an order for a recount. The counting
of the ballots occupied a long time and extended beyond the
19th day of January, 1917. The term of Mr. Justice Swayze
expired on January' 19th, 1917. He was reappointed on
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120 np:w jersey suprkme couet.
Seglie V. Aekerman. 90 A\ J. L,
January 22d, 1917. Several sessions of the board of elec-
tions were held after January 19th, 1917, at which a con-
siderable number of ballots were counted by the board. The
justice, subsequent to his appointment, also passed upon dis-
puted ballots held by the board for his decision. On the re-
count, Aekerman, the defendant, appeared to have a ma-
jority of one hundred and four votes over the vote received
by the prosecutor. This result was certified by the board
of elections to Mr. Justice Swayze, whereupon the justice, on
February 13th, 1917, made an order revoking the prosecu-
tor's certificate of election and issued in place thereof a cer-
tificate of election to the defendant Aekerman. The prose-
cutor, on this certiorari^ challenges the jurisdiction of the
Supreme Court justice to revoke his certificate of election.
Before Justices Swayze, Minturn and Kalisch.
For the prosecutor, Aaron A. Melmker, J, Emil Wahcheid
and George McEwan.
For the defendant, Gilbert Collins and Richwrd Doherty,
The opinion of the court was delivered by
. Kalisch, J. The first ground advanced by the prosecu-
tor and upon which he bases the assertion that the justice
of the Supreme Court lacked jurisdiction to entertain the
application for a recount, is that the petition upon which
the order for a recount was made did not comply with sec-
tii)n 159 of tlie Election law, in that it failed to set out
sufficient reasons for a recount within the meaning of that
section. The alleged particular defect in the petition pointed
out by the prosecutor is that the petition contains no fact**
upon which the pc»titioner based his belief. A similar ob-
jection was taken on a petition for a recount in Reams v.
Edwards, 28 Atl. Rep. 723. In that case the petition set out
that the petitioner had good reason to believe, and did be-
lieve, that errors had been made in several boards of elec-
tion within the district in counting the votes, whereby the
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FEBRUARY TERM, 1917. 121
90 N, J, L. Seglie v. Ackerman.
result of the election had been changed, &c. The defendant
objected that the petition stated no facts upon which the
petitioner based his belief, and showed no gi-ounds for be-
lieving any error had been made. Mr. Justice Depue held
the petition to be sufficient. The like objection was made
against the petitioner for a recount under section 159 of the
Electiort law in Carson v. Sadly et al., 89 N. J. L. 458, and
the court, following the ruling in Kearns v. Edwards, held
the petition to l)e sufficient. The court in Carson v. Scully
et al., supra (at p. 4G7), makes the observation that the
legislature made no provision^ in section' 159 as to the man-
ner in which an application for a recount shall be presented.
The invariable practice has been to make the application for
a recount, in writing, in the form of a petition addressed and
presented to a justice of the Supreme Court, which we deem
good practice and should be adhered to. We are also of
the view that in the present case the facts set out in the
petition were sufficient to properly invoke the jurisdiction of
the Supreme Court justice to make the order for a recount
under section 159.
Next, the prosecutor attacks the validity of the order for
the recount upon the ground that the order was made be-
fore any result of the election had been officially declared.
The statute permits an application for a recount to be
made at any time within ten days after the election. Such
application may be made the very next day. For it is to
be observed that section 159 permits an application for a
recount by any candidate at any election who has reason to
believe that an error has been made by any board of elec-
tions or of canvassers in counting the votes or declaring the
vote of sucli election, &c.
It is, therefore, plain that section 159 provides for four
classes of cases in which such recount may be applied for,
viz.: (1) Where the error has been made by the district
board of election in counting the vote. (2) Where the error
has been made by such board in declaring the result. (3)
Where the error has been made by the county board of elec-
tions, which constitutes the board of county canvassers, in
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122 NEW JERSEY SUPEEME COURT.
Seglie V. Ackerman. 90 N. J, L.
counting* the vote. (4) Where the error has been made by
such board in declaring the result.
The wisdom of this classification becomes strikingly ap-
parent in the light of other provisions of the Election law to
\^ch we now turn for consideration. Section 103 provides
that the county board of canvassers shall convene "on the
Monday next after any such election/^ which is the siith day
after election. Section 105 provides that if a major part
of such board shall not attend on that day, or* if at that time
the statements of the result of such election from every
election district in such county shall not be produced, the
board shall adjourn to some convenient hour the next day ;
and at the hour to which such adjournment shall have been
ordered, the member or members of the board then present
may proceed to canvass the vote, or may again adjourn for
a period not exceeding three days, at which time the mem-
ber or members of the board then present shall proceed to
canvass the vote. Thus, it is observable that a situation
might afise where a board of canvassers meet on the Mon-
day next after the election, adjourn to Tuesday, and adjourn
again to Friday, full ten days after election. It is also
within the range of probability that the board might declare
the result of the election on that day too late for an appli-
cation for a recount to be made under section 159, which
section requires that the application shall be made within
ten days after the election, which limitation as to the time
in which to make such application has been held to be man-
datory by Mr. Justice* Mintum in the Van Noort Case, 85
Atl Rep, 813.
The legislature in order to make an application for a re-
count efficacious, and to prevent the prime object of the act
from being circumvented by improper motives, very wisely
refrained from making the granting of such application de-
pendent upon the final result as declared by the board of
county canvassers.
These views lead to the conclusion that the application
for a recount and the order thereon were properly made.
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FEBRUARY TERM, 1917. 123
90 N, J, L, SegUe v. Ackerman.
Another objection urged by counsel for the prosecutor
against the validity of the' proceedings under review, is that
the ballots were not recounted under the direction of the
Supreme Court justice, in that the justice was not present,
presiding at the recount This objection is obviously the
offspring of a misapprehension of what is meant by the
statutory authormtion of a justice of the Supreme Court
to order and cause a recount to be publicly made under his
direction by the county board of elections. Counsel for the*
prosecutor argue that this language implies that the reeoujit
should be made in the presence of the justice of the Su-
preme Court. But that is clearly not the general sense of the
language used. What the language imports, obviously, is
that the board in making the recount shall be subject to the
direction of the justice. The statutory mandate that the
recount shall be under the direction of the justice, simply
puts a recount under his judicial control or direction. This
direction may be properly exercised by the justice out of
the presence of the board by an order, in writing, or verbally
in the presence of the board. The statute does not require
the presence of the justice during the progress of the re-
count The settled practice is for the board of elections, in
the absence of the justice, to count the ballots that they
can agree upon by a majority vote, and as to those ballots
that they cannot agree upon to count, by a majorit}- vote,
to lay them aside and refer them to the justice for his de-
cision. This was the practice pursued in the present case
and was proper.
Lastly, it is claimed by counsel for the prosecutor that
the justice was without any jurisdiction to revoke the cer-
tificate of election granted by the county board of election
to the prosecutor, and to issue in its place and stead a cer-
tificate of election to the defendant Ackerman, because of the
fact that during the progress of the recount the term of office
of the justice had expired, and an interval of two or three
days had elapsed before the justice was reappointed, and it
is on this situation that counsel bases the argument that the
recount had during that interval was not, by force of the
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124: XEW JERSEY SUPREME COURT.
Seglie V. Ackerman. 90 N. J, L.
circumstances mentioned, under the direction of a justice
of the Supreme Court, as required by the statute, and that
the vitality of the recount was extinguished simultaneously
with the expiration of the term of office of the justice.
The fallacy of this position, which is apparent, arises from
an unwarranted assumption, by counsel for prosecutor, that
the power conferred upon the' justice of the Supreme Court
by the statute vests in him in his individual and not official
'capacity, and that, therefore, the life of the order and di-
rections given under it became extinct when the official term
of the justice, who made the order, expires.
Carrying out this assumption to its legitimate conclusion,
it follows that where such justice resigns or dies during a
recount or after it is concluded, and before any further
action is taken to give proper effect to the recount, the en-
tire proceedings taken become a nullity. As the applicant
for a recount is barred from making a new application, under
the statute, by reason of the limitation of time within which
such application must be made, the applicant not only loses
the benefit of the statute by having a recount of the votes,
in which the general public has also an interest, in that the
votes cast for a candidate shall be given their proper effect,
but he is also saddled with the expense of such recount,
which, in largely populated counties like Essex and Hudson,
is very great, and, therefore, is more or less a factor to be
considered in giving a reasonable construction to the act.
The duties conferred upon the justice by the statute arc
both of a judicial and ministerial nature. The order that
he makes for a recount is a judicial order, and has the like
force and effect as any other judicial order made by a court
of competent jurisdiction, and that is, that the life of the
order remains intact, unless the order be revoked or reversed
by competent authority, until the purpose of the order has
been fully achieved. The order, in this case, therefore, was
in force during the recount made by the board on the days
intervening between the expiration of the official term of
the justice and his reappointment.
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FEBRUABY TERM, 1917. ' 125
90 y. J. L, Seglie v. Ackerman.
We are unable to perceive any force to the contention of
counsel for the prosecutor that the power conferred by
statute upon the justice to grant a recount, to be had under
the direction of the justice, is limited in its exercise by
him in his individual capacity as such justice. Besides we
think to uphold such a contention would be productive of
incalculable mischief and chaos in the administration of jus-
tice. Moreover, we find nothing in the statute that coun-
tenances the construction contended for.
The legislative intent was not to confer the powers desig-
nated by the statute ppon the individual, independent of
the judicial oflBce with which he is clothed, but, clearly, upon
the judicial oflSce, irrespective of the individual invested
therewith.
The statute provides that the application for a recount
may be made to any justice of the Supreme Court. The
\i't)rds, "such justice," which appear in subsequent clauses
of the act do not necessarily limit the carrying out, with
effect, the provision of the act to the justice of the Supreme
Court who in the first instance granted the order for a
recount.
The provisions of the act may be effectuated by any justice
of the Supreme Court, whenever the justice who originally
made the order for a recount has become incapacitated, re-
signed or died.
It is the duty of the court to construe legislative acts so
that they are workable, whenever that can be properly done,
for the purpose of effectuating their intent and spirit.
In the present case the order for a recount was made by
the justice presiding in the Hudson Circuit; he gave di-
rections for making the recount; his term of office expired
while the recount was going on, and thousands of ballots
had already been counted with great labor, patience and ex-
pense. After an interval of two or three days the justice
was reappointed, and heard counsel engaged in the recount
on disputed ballots which had been laid aside by the board
and referred to him, as justice, for decision. His decision
resulted in favor of the applicant for a recount, and there-
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.■■/
126 NEW JERSEY SUPREME COURT.
M^yer v. National Surety Co. 90 X. J, L.
upon he revoked the prosecutor's certificate of election and
issued a certificate of election to the defendant 4>ckermaii.
The fact of a temporary vacancy in the office of justice of
the Supreme Court, in the Hudson Circuity according to the
views above expressed, did not operate to nullify the recount,
nor did it prevent the members of the board of election from
pursuing the count, which had not yet been completed. It
is not disputed that the board had full power to count the
votes and refer all disputed ballots upon which they could
not agree to the justice for decision. The justice who or-
dered the recount was reappointed, and, therefore, it cannot
be justly said that the prosecutor was in any manner preju-
diced by having the matter heard knd determined by a jus-
tice who was a stranger to the earlier proceedings. Even
if we adopt the view urged that the reappointment of the
justice was the appointment of a new justice, as we regjird
the situation, it, is of no importance whatever, for that niay
be truthfully said, in a certain sense, pf a justice who is
reappointed immediately upon the expiration of his term.
The reasons we have given lead to the result that the
certiorari must be dismissed, with cost8.
KMANUEL MEYER, RESPONDENT, v. NATIONAL SURETY
COMPANY, APPELTiANT.
Submitted November 8, 1916— Decided March G, 1917.
1. It is competent, for a reinsuring company to agree to be directly
liable, to a policy holder, by the terms of the reinsurance agree-
ment. In this case, the defendant company became directly liable
to the plaintiff. A complaint, with the reinsurance agreement
attached and made a part thereof, which alleges that the defend-
ant company assumes all liabilities, &c., is sufficient.
2. A suit in the District Court between the same parties, to recover
a balance due under a contract, is not re9 adjudioaia^ in a suit
to recover for damages exceeding $500, on a bond against the
surety of the contract.
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1
FEBRUARY TERM, 1917. 127
90 y. J, L, Meyer v. National Surety Co.
On appeal.
Before Gummeee^ Chief Justice, and Justices Teen-
ciiABD and Black.
For the respondent, Edward E, McOlynn.
For the appellant, Gross & Gross.
The opinion of the court was delivered by
Black, J. The plaintiff sued the defendant company in
the Essex Circuit Court upon a bond and reinsurance agree-
ment. The trial resulted in the direction of a verdict for the
plaintiff, by the court, for the sum of $826.50. An exception
being noted, the propriety of the court's ruling is now before
this court on appeal. The grounds of appeal, in brief, are
the plaintiff's complaint discloses no cause of action, a judg-
ment of the District Court is res adjudicata of the subject-
matter of this suit, the court erred in refusing to direct a ver-
dict in favor of the defendant, and also erred in directing a
verdict in favor of the plaintiff. The case being somewhat
complicated, a statement of the facts is essential, to a clear
understanding of the points in the case under review. The
plaintiff, as owner of certain buildings in East Orange, made
a contract in writing with the Guarantee Waterproofing
and Construction Company, to make the cellars watertight,
for the sum of nine hundred dollars ($900), with an agree-
ment to furnish a three years' maintenance bond, in the sum
of nine hundred dollars ($900). Such maintenance bond was
furnished by the Empire State Surety Company. Thereafter
the Empire State Surety Company entered into a reinsur-
ance agreement with the National Suretv Company, the de-
fendant, whereby the latter company assumed the liability of
the former company, agreed to take its place and to fulfill all
the obligations of the Empire State Surety Company. The
proof showed, that up to the date of the bringing of the suit,
the cellars of the buildings were not watertight, notice of tlie
fact being given to the construction company and both surety
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138 NEW JERSEY SUPREME COURT.
Meyer v. National Surety Co. 90 A\ J. L»
companies. No repairs having been made, the plaintiff
brought suit, claiming damages. A motion was made to strike
out the complaint and for a judgment for the defendant,
which was denied by the Circuit Court, in a decision filed by
the court December 16th, 1915. This motion was renevved at
the opening of the case at the trial and again denied, re-
peated at the close of the case, on a motion to direct a judg-
ment in favor of the defendant. The basis for these motions
are practically the same as those set forth in tlie first ground
of appeal before this court, viz., the plaintiff's complaint dis-
closes no cause of action.
Some other important facts are that on July 30th, 1913,
the plaintiff instituted a suit against the defendant company
in the Essex Circuit Court. On motion, the complaint in
that case was stricken out. On July 29tli, 1914, on gi'ounds
that are not involved in the present discussion, the defendant
company sued the plaintiff in the Firsl District Court of
Xewark to recover $300, the balance due the construction
company under the agreement between tliat company and the
plaintiff. The contract having been assigned to tlie National
Surety Company January 5th, 1914, judgment was entered
in that case for the plaintiff, in the sum of two hundred and
twenty-six dollars and fifty cents ($226.50). This raises the
second ground of appeal, viz., that the suit in the District
Court of Newark is ref; ad judicata 'oi this suit. The suit
under appeal was commenced December 12th, 1914. There
is no ground of appeal challensring the correctness of the
amount of the judgment, nor is it made the subject of argu-
ment in the appellant^s brief.
It would serve no useful purpose to jnirsue the points of
the appellant in detail, or to. follow the daborate brief filed
in support of the first ground of appeal, viz., that the plaint-
iff's complaint discloses no cause of action. The complaint
alleges that the defendant company assumed all liabilities
under all the bonds given by the Empire State Surety Com-
pany, in accordance with the terms of an agreement made be-
tween the Xational Surety Company and the Empire State
Surety Company; that by virtue of tlie reinsurance agrce-
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FEBKUAKY TERM, 1917. 129
90 .v. ./. L. Meyer v. National Surety Co.
ment, which is annexed to and made a part of the complaint,
the National Surety Company became liable to the plaintiff.
When a company reinsures all the risks and agrees that all
losses ensuing under the policies shall be borne, paid and
satisfied by the reinsuring company, it has been held, that a
policyholder in the first company might maintain an action
against the reinsuring company to recover a loss on property
covered by a policy of the first company. Johannes v. Phcsnix
Insurance Co. of Brooklyn, 66 },Vis, 50; 1 May Ins,, § 12;
Rich, Ins, (3d ed.) 445; 14 R, C, L, 1452, § 618; 10 L,
R. A. 424; 8 L. R. A. {N, S.) 862. It is always competent
for the reinsuring company to agree to be directly liable to
the original policyholder, as we read the reinsurance agree-
ment— that is what the defendant company in this case
agreed to do. The case cited by the appellant in our Court
of Errors and Appeals, Styles v. Long Company, 70 N, J. L,
301, has no application to the facts under discussion.
By the reinsurance agreement the National Surety Com-
pany agrees to fulfill all the obligations of the Empire State
Surety Company under the bonds and policies thereby rein-
sured against loss, as above stated, and agrees to adjust all
claims arising under any of such bonds and such policies at
its own expense, and to pay all valid claims arising as afore-
said, under said bonds and policies in accordance with their
terms and conditions, &c. If the reinsurer assumes the risk,
he may be sued directly by the original insured. 8 L, R, A,
(N. S,) 862.
The fact that there was no schedule annexed to the rein-
surance agreement or to the complaint, and that there is
nothing to show that the bond in suit was one of those men-
tioned in the schedule, or covered by the reinsurance, is not
important. If such be the fact, the burden of proving that
fact is on the defendant.
The next point urged, and the only other one that needs
any discussion, is, that the judgment of the First District
Court is res adjudicata of the subject-matter of this suit —
that is, that this precise controversy was definitely settled by
the judgment of the District Court of Newark, and having
Vol. xc. 9
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130 XEW JERSEY SUPREME COURT.
Syms V. West Hoboken. 90 A'*./. L.
been once decided is finally decided. 7 Word^ d' Phrases
6126. This cajinot be so. The jurisdiction of District
Courts, by statute, is limited to $500. The Court of
Errors and Appeals held, that the Di^rict Court cannot
entertain jurisdiction of a notice of recoupment that claim?
more than $500. Ward v. Hmck, 87 N, J. L, 198. This
disposes of this point adversely to the appellant. There
being no facts proved by the defendant, whicli raise an
issue of fact for the jur}' to decide on the question of
liability, the correctness of the amount of the judgment not
being challenged, and therefore not considered, and finding
no error in the record, the judgment of the Circuit Court is
therefore affirmed.
GEORGE N. SYMS, PROSECUTOR, v. TOWN OF WEST HOBO-
KEN, IN THE COUNTY OF HUDSON, ET AL.. DEFEND-
ANTS.
Argued November 10, 1 01 (>— Decided March (). 15)17.
1. The Town of West Hoboken under Pamph, L. 1011. ;>. 531. ch.
2nO, has no authority to build a town hall.
2. The words in that statute, "other municipal purposes." under
the rule of construction known as eju^ent generin, refers to
buildinics of the same class or of the same general character as
those enumerated in the statute.
On ceriiorari.
Before Gummere, Chief Justice, and Justices Trex-
ciiARD and Black.
For the prosecntor, Frederick K, Iloph'in^,
For the to\m of AVest Hoboken, John J, Fallon.
For Fagan and Briscoe, Merritt Lane.
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FEBRUARY TERM, 1917. 131
90 N, J. L. Syms v. West Iloboken.
The opinion of the court was delivered by
Black, J. The point involved in this case is whether the
town of West Hoboken has authority to erect a town hall,
designated as a building suitable for the use of the fire depart-
ment, municipal oflBces and other municipal purposes, under
Pamph, L. 1911, p. 531, ch. 250. Our examination of this
statute leads us to the conclusion that the town of West Ho-
boken has no such authority thereunder.
Two ordinances were adopted by the town council of the
town of West Hoboken, dated August 23d, 1916. The first
provides for the erection of a building suitable for the use
of the fire department, &c., and the purchase of land in addi-
tion to the land now owned by the said town whereon to erect
paid building, following the language of the statute above
cited. Pamph. L. 1911, p. 531. The second ordinance au-
thorized $150,000 of municipal building bonds, in accordance
with the Pierson act. Pamph, L. 1916, /?. 525.
This certiorari challenges the l^ality of these ordinances
and tlie proceedings thereunder. Authority for the ordi-
nances under attack is contained in the act (Pamph, L. 1911,
p. 531), "An act to authorize th£ erection, enlargement and
equipment of engine houses and buildings for the protection
of fire apparatus and for other municipal purposes, includ-
ing police station houses, crematories for garbage, ashes and
refuse and poor houses and buildings for the care of the sick
poor in towns of this state and the purchase of lands w,hereon
to erect said buildings; also the issuing of bonds to provide
moneys for the purposes of this act." The pertinent part of
the body of the act in the first section follows closely the
wording of the title, which is: "The common council or
other governing body of any incorporated town in this state
are hereby authorized and empowered to erect one or more
buildings suitable, for the use of the fire department of said
town and other municipal purposes or for use as police sta-
tion houses, crematories for garbage, ashes and refuse and
poor houses, and buildings for the care of the sick poor, and
to purchase tracts of land whereon to erect said building or
buildings; and in case such building or buildings shall have
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132 NEW JERSEY SUPREME COURT.
Syms V. West Hoboken. 90 N. J. L.
been heretofore erected, to enlarge and equip the same
and to purchase land in one or more localities whereon to
erect said building or buildings/' the iiggregate cost not to
exceed $200,000. It will be observed, in the first place, that
the term town hall is in common and almost universal
use throughout Xew Jersey to designate the chief municipal
building of a town, t. e., the place in which is transacted the
public business of a town. This term is omitted in this stat-
ute, and, from a reading of the statute, it would seem id have
been purposely omitted by the legislature. Thus, in the act
of 1907, page 409 (4 Comp. Stat,, p. 5427, § 39), the words
"town halls" are used both in the title and the body of the
act authorizing the erection of such buildings. It is a fair
inference to draw, that if the legislature had intended this
act to confer authority to erect town halls, it would have used
these well-known words, especially so in view of the previous
act. Pamph. L, 1907, p. 409. The record shows, at the
present time, the town of West Hoboken has a town hall, in
which are located a council chamber and all the various town
offices and departments.
The body of the act above quoted provides : "In case such
building or buildings shall have been heretofore erected, to
enlarge and equip the same." As applied to the town of West
Hoboken, this language limits the power of the town council
to an enlargement and equipment of the present building or
buildings. It is a well -recognized rule, in the construction of
statutes, that all the words in the statute must be given a
meaning, when possible. The meaning of this statute con-
tended for by the defendants would entirely ignore the clause
of the statute above quoted. So, the rule of construction,
known as "ejusdem generis/' is invoked by the prosecutor —
that is, where general words follow the enumeration of par-
ticular classes of persons or things, such as the words in this
statute, "other municipal purposes," the general words will be
eonsti-ued as applicable only to persons or things of the same
general nature or class as those enumerated. 36 Cyc. 1119;
3 Words & Phrases 2328 ; 6 Id. 5098, 5099 ; In re Barre
Water Co,, 62 Vt. 29 ; 9 L. R. A. 195 ; 6 7?. C. L. 842, § 232 :
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FEBRUARY TERM, 1917. 133
90N.J.L. Syms V. West Hoboken.
Barracliff v. Oriscom, 1 N. J, L. 193, 195. Chief Justice
Beasley, speaking for the Court of Errors and Appeals, states
the nile in these words : "General tenns, following a specifica-
tion of things of a particular class must be understood to
refer to things of the same class, or at least of the same
general character. The rule, as clearly established, is thus
laid down : Where general words follow particular words, the
rule is to construe the former. as fipplicable to the things or
persons particularly mentioned.'^ Livermore v. Board of
Freeholders of Camden, 31 N, J, L, 507, 512.
As pointed out by the prosecutor, the town council, im-
doubtedly, has authority to build a town hall under the Gen-
eral Town act {Pamph. L. 1895, p, 218; 4 Cofnp. Stat,, p,
5518; Pamph. L. 1907, p. 409, ch. 168), but these acts' re-
quire a submission to the voters of the town, while the act
under which these ordinances were passed (Pamph, L. 1911,
p. 531) has no such requirement.
For the reasons stated^ we think there is no authority vested
by this statute (Pamph. L. 1911, p. 531), in the town of West
Hoboken, to build a town hall. The two ordinances brought
up by this certiorari are therefore set aside, with costs.
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CASES AT LAW
DBTBRMCNKD IN THE
COURT OF ERRORS AND APPEALS
OP THE
STATE OF NEW JERSEY
NOVEMBER TERM, 1916.
CONSOLIDATED GAS AND GASOLINE ENGINE COM-
PANY, A CORPORATION, RESPONDENT, v. MICHAEL
BLANDA, APPELLANT.
Submitted December 11, 1010— Decided March 5, 1917.
A general demand for a jury made two days before the time fixed for
trial, whenever that may 6e, with proper notice to the clerk, is
sufficient. The demand does not have to be for the return day
or any particular day, but if ?iven for a specific date, which
would normally be the day for trial, it is valid if the required
notice be served as directed by the statute.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N. J. L. 104.
For the appellant, Weinberger & Weinberger.
For the respondent, Herman Rusi. ^
135
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186 COURT OF ERRORS AXD APPEALS.
Cons. G«8 and Gasoline Engine Go. v. Blanda. 90 N, «/. L,
The opinion of the court was delivered by
Walker^ Chancellor. The judgment under review
herein should be aflBrmed, for the reasons expressed in the
opinion delivered by Mr. Justice Parker in the Supreme
Court.
We think, however, it should be pointed out that this case
differs from that of Janus E, Crossley v. William H, ConnoUy
Co, {post p, 238), Xo. 92 of this term, opinion by Mr. Justice
Mintum, in this court. In that case there was a proper de-
mand for a jury at the day fixed for trial, and the trial was
actually commenced before the jury which was empaneled.
An adjournment was granted by the court on motion of the
plaintiff's attorney. Upon the subsequent day set th^ court
proceeded to hear and determine the cause without a jurj% for
the reason that none had been demanded for that particular
day, and we held in the Crossle}' case that although no leg-
islative provision has been made for the return of the same
jury, nevertheless, as the plaintiff's request was not brought
about by any fault of the defendant, the rights of the latter
to the form of trial conceded by the statute, and which it had
elected to adopt, should in nowise be jeopardized by Ihe ac-
tion of the court, and that neither the plaintiff's unwillingness
to proceed, nor the trial court's recognition of his right to an
adjournment, should operate to deprive the defendant of a
right secured to it by law. The differentiating feature is, that
in the case at bar an abortive demand for a jury trial was
made for the return day (jf the summons, it being defective
because notice was not given the clerk two days before the
time fixed for trial, assuming the return day to be the time so
fixed. On the return day, which was December Ist, 1915,
there was no trial and an adjournment was had to December
8th, 1915, and no new demand for a jury trial was made in
writing two days before that date. In this situation, the
District Court properly proceeded to try the case wit^iout a
jury, and the judgment rendered for the plaintiff is valid.
A general demand for a jurv made two days before the time
fixed for trial, whenever that may be, with proper notice to
the clerk, is sufficient. The demand does not have to be for
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NOVEMBER TERM, 1916. 137
90 X. J, L. Fortein v. D., L. & W. R. R. Co.
the return day, or any particular day, but if given for a
specific date, which would normally be the day for trial, it is
valid if the required notice be served as directed by the
statute.
For affirmance — The Chancellor^ Chief Justice, Gar-
rison, SwAYZE, Trenchard, Beroen, Black, White, Hep-
PENHEIMER, WiLLIAMS, GARDNER, JJ. 11.
For reversal — Xone.
DESIRE FORTEIN ET AL., RESPONDENTS, v. THE DELA-
WARE, LACKAWANNA AND WESTERN RAILROAD COM-
PANY, APPELLANT.
Argued December 1, 1016 — Decided March 5, 1917.
1. Where it appears from the evidence that the place where an acci-
dent happened was a portion of the ferry premises as actually
used by a ferry company, and with respect to which, therefore,
it was the duty of the company to exercise reasonable care to
make the premises safe for the use of Its passengers, it is not a
defense in an action for damages resulting to a passenger from
want of repair that the locus in quo was not within the premises
demised to the ferry company.
2. Where an accident happens in another state and the injured
party sues for damages resulting from that accident in a court of
this state, and it is not shown that in the situation presented
there could be no recovery as matter of law in the state where
the injury happened, and there is sufficient evidence to go to the
jury upon the question of damages having been sustained by the
plaintiff, the leit fori governs.
On appeal from the Hudson County Circuit Court.
For the appellant, Frederic B. Scott.
For the respondents, William F. BiirJce.
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l;J8 COUKT OF EKKORS AXD APPEALS.
Fortein v. D., L. & W. R. R. Co. 90 N. J, L.
The opinion of the court was delivered by
Walker, Chancellor. This case presents an appeal from
a judgment entered on a verdict of a jury in favor of the
plaintiff, Desire Fortein, for personal injuries, and of her
husband, Pierre Fortein, for loss of services and expenses in-
cident to his wife's injun'.
The defendant was. a common carrier of passengers by
ferrj'-boats plying between Hoboken, in this state, and a cer-
tain ferry-hoiise at th^ foot of Christopher street, in the city
and State of Xew York. The plaintiff Desire Fortein on a
certain day became a passenger on one of the ferry-boats of
the appellant, which she boarded at Hoboken and departed
from it after it tied up at the ferry-house at Christopher
street, Xew York. Upon leaving the boat, she walked along
the passageway which had a plank floor and thereafter over
an asphalt pavement, intending to go through a line of posts
which marked the outward boundary, of what was, apparently,
the ferry premises, and the place from w^hich trolley cars
started. There were many other passengers, some in front
and others behind her. The people were close around her,
which necessarily obscured her view. Before reaching the
posts, her foot got in a hole in the asphalt pavement and she
fell, receiving injuries which were the subject of her com-
plaint. Over this asphalt pavement, and extending to the line
of posts, was a covered shed upon the front of which was dis-
played the name of the company and the word "entrance."
The underlying question is as to whether the place where
the accident happened was a portion of the ferry premises
with respect to which it was the duty of the defendant to
exercise reasonable care to make them safe for the use of the
plaintiff and other passengers. Not only was this place under
the shed, and, as far as outward appearances were concerned,
a portion of the ferry premises, but it was the way in which
it was necessary for the passengers to cross upon entering the
shed and alighting from trolley cars.
The grounds of appeal are two — first, because the trial
court refused to direct a verdict in favor of the appellant^ and
Seconal, because the trial court refused to charge certain re-
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XOYEMBER TERM, 1916. 139
90 y. J. L. Fortein v. D.; L. & W. R. R. Co.
quests to the jury. It is imnecessary to particularize the sub-
divisions of the first ground. Such of them as are substantive
will be treated of in the opinion. The second ground was
not argued, and* will therefore be considered to have been
waived and abandoned and will not be considered in this
court. State v. Hei/er, 89 N, J, L. 187.
The Christopher street ferry property belongs to the city of
Xew York and was the subject of a lease to the .Hoboken
Ferry Company, which was taken over by the appellant. The
property leased includes the ferry-slip, piers and ferry-house
structure, and extends from a point in the Hudson river
easterly to the sea wall or bulkhead at which the ferry was
located. From the bulkhead easterly into West street. Xew
York, was the superstructure of the ferry-house building, and
beyond the bulkhead, and under the ferry structure shed, were
certain traffic posts owned by the appellant. These were
placed on the asphalt pavement, which appellant claims is a
continuation of the pavement of West street proper. It is in
evidence that the employes of the appellant were accustomed
to sweep up the entire aSphalt pavemeut out to the row of
posts through which, as already remarked, passengers to and
from the ferry-boats were compelled to go. Even if the sec-
tion of the asphalt where the accident happened was part of
West street, Xew York, it was not obviously so. On the con-
trary, it appeared to be just the reverse, as it was under the
ferry-house and inside of the sign ^^entrance" to the ferry.
The appellant claims that it was not obliged to repair the
premises at the place where the accident occurred. Ap-
parently, the locus in quo was not within the premises de-
mised to the appellant; nevertheless, on the facts stated, it
cannot be said, as matter of law, that there was no liability on
the part of appellant. It appears from the evidence that the
place where the accident happened was a portion of the ferry
premises as actually used by the appellant, and with respect
to which, therefore, it was the duty of the appellant to exer-
cise reasonable care to make those premises safe for the use
of its passengers, of whom the plaintiff Desire Fortein was
one.
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140 COURT OF ERRORS AND APPEALS.
Fortemv.D.,L.&W.R.R.Co. OON.J.L.
The decisions are quite uniform, to the effect that such
a situation as above describe created a liability foi^ accidents
happening by the ostensible owner's negligence.
In Delaware, Lackaiwanna and Western 'Railroad Co, v.
• Trautwein, 52 N, J, L, 169, it was held in this court that the
duty of a tailroad company as a common carrier of passengers
does not end when a passenger is safely carried to the place
of destination, but that the company must also provide safe
means of access to and from its stations for the use of pas-
sengers, and the passengers have a right to assume that the
means of access provided are reasonably safe.
In Yetter v. Gloucester Ferry Co., 76 N. J. L, 249, Chief
Justice Gummere, writing the opinion for the Supreme Court,
commenting upon Delaware, Lackawanna and Western Rail-
road Co. V. Trautwein, remarked that the rule there enun-
ciated applied, of course, to ferry companies as fully as to
railroad companies ; that the duty as to safety of landing ap-
plies not only to the immediate means of getting on and off
the boats, but requires a ferryman to use care to furnish pas-
sageways between the ferry-house and the street; that to the
same effect was Exton v. Central Railroad Co,, 62 N, J, L.
7 ; S. C. on error, 63 Id, 356, where it was held that the com-
pany was liable for injuries resulting to the plaintiff from the
unsafe condition of the walkway outside of its ferry-house,
which was provided by the company for the use of travelers
to its ferry-boats and railroad trains.
The defendant, in Yetter r. Gloucester Ferry Co., con-
tended that the general rule, just stated, was not applicable
in that case, for the reason that the* pier at which it dis-
charged passengers did not belong to it, but to another com-
pany. The Chief Justice held that the owTiership of the pier,
however, was immaterial so far as the defendant's liabilitv
was concerned, that it was the landing place supplied by it
to the plaintiff, and it owed her the duty of using care to see
that it was safe for her use. The doctrine thus enunciated
has equal application to a way under a ferry shed leading to a
street, which, though it may be part of the street, is under the
shed and inside of the sign of the ferry company labeled
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NOVEMBER TERM, 1916. Ul
90 y, J. L. Fortein v. D., L. & W. R. R. Co.
^*entrance," and used by the passengers of the company in
going to and from the ferry-house — especially when it is the
only way provided or usable for the purpose.
• The appellant contends that as the accident to the re-
spondent happened in the State of Xew .York, the duties and
obligations of the appellant must be measured by the law of
that state. The doctrine contended for, as applied to the case
at bar, concerns only the question as to whether or not there
was sufficient evidence to go to the jury upon the question of
damages having been sustained by respondent, and this ques-
tion, as has been decided by this court, is governed by the
hx fori, Ferguson v. Central Railroad Co., 71 N. J. L. 647.
The New York cases cited in the brief of counsel for appel-
lant on this head do not show that in the situation presented
in the case at bar, there could be no recovery by respondents,
as matter of law, in the courts of that state. Besides, it was
held by our Supreme Court in Ackerson v. Erie Railroad Co.,
31 N. J. L. 309, that an action will lie in this state for a tort
to the person committed in another state. In that case the
plaintiff was injured by the carelessness of the defendant while
riding in a car on its railroad in the State of New York, and
it was held that the action was tr&nsicory and that it was
well brought in this state.
The judgment will be affirmed, with costs.
For affirmance — The Chancellor, Chief Justice, Gar-
rison, SWAYZE, TrENCHARD, PaRKER, BeRGEX, MlXTURN,
Kalisch, Black, White, Heppenheimer, Williams, Gard-
ner, JJ. 14.
For reversal — None.
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142 COURT OF ERRORS AND APPEALS.
McMichael v. Horay. 90 X. J. L.
THOMAS McAIICHAEL, APPELLANT, v. HARRY HORAY ET
AL., RESPONDENTS. ^
Submitted December 11, 1916— Decided March 5, 1917.
1. Where one party recovers judgment against another and the de-
feated litigant commences suit against his adversary for damages
for an alleged conspiracy, and the procuring of false testimony
to be given, in the very suit in which the recovery w-as had, these
matters, having been available as defences in the suit and on rule
to show cause why. a new trial should not be granted, cannot be
made the basis of recovery — the doctrine of rea adjudicata being
applicable.
2. A court of appeals need not, but may, decide questions on a rec-
ord before it which were not raised in a court below ; and it is
the constant practice of appellate courts to notice and decide on
quci^tions of jurisdiction and public policy, without those ques-
tions having been raised below.
3. A court of appeals may affirm a judgment, on ground other than
that upon which the decision was rested in the court below, if
the decision be correct.
On appeal from the Supreme Court.
For the respondents, Scovel & Harding,
For the appellant, Jess & Rogers,
The opinion of the court was delivered bv
Walker, Chancellor, The respondents, Harry Horay,
Joseph G. Moore and John M. Barefoot, brought suits in
the Camden District Court against the appellant for dam-
ages sustained as a result of the trespass of appellant's cattle
upon their respective lands. The suits were brought at the
same time, tried together before one jury, which returned
a verdict against the plaintiff in the sum of $600, of which
$300 was apportioned to Horay and $150 each to Barefoot
and Moore. The District Court denied appellant's applica-
tion for a new trial, but reduced the amount of the verdict
from $600 to $500, and executions were issued upon the
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NOVEMBER TERM, 1916. 143
90 N. J, L, McMichael v. Horay.
judgments which the appellant sought unsuccessfully to
restrain by injunction out of the Court of Chancery. Upon
filing the bill in that court, an order was made upon the
respondents to show cause why an injunction should not be
issued with an ad interim stay, and, upon hearing, an order
was made for the issuance of an injunction pendente lite.
The appellant, defendant in the executions, applied for new
trials of the cases in the Camden District Court, which court
denied the application. The appellant had instituted a suit
at law in the Camden Circuit Court against the respondent's
for damages for an alleged conspiracy in bringing their
suits in the Camden District Court against the appellant for
damages alleged to have been sustained by them as a result
of the trespass of appellant's cattle (whicli was the gravamen
of. their suits against him) by grossly exaggerating their
losses and procuring false testimony to be given to secure
recovery of excessive damages. The suit for damages for
fraud and conspiracy, in which appellant, defendant in the
executions, hoped to recover judgment against the respond-
ents and set it off against their judgments, was nonsuited
in the Camden Circuit Court, and a motion to vacate the
nonsuit was subsequently denied. Application was thlen
made to the Court x)f Chancery to dissolve the injunction,
which was granted, and the appellant appealed to this court,
and moved in the Court of Chancery for ^ stay of its order
dissolving the injunction, pending appeal. That court
granted the stay until application could be made to this
court for that purpose. On such application this court held
that by applying to the law courts — first, to the District
Court for new trials of the suits there, and spcondly, to the
Circuit Court to vacate its judgment of nonsuit, appellant
must be held to have elected to stand upon his legal remedy,
and should abide the I'csult, and denied the motion for a
stay pending appeal, which appeal has never been brought
to hearing. See McMichael v. Barefoot, 85 N, J. Eq. 139.
The appellant, after moving for the stay in this court,
brought suit against the same defendants in the Supreme
Court, grounded upon the same matter that was his cause for
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144 COURT OP EHRQRS AND APPEALS.
McMichael v. Horay. 90 N, J. L.
action in the Circuit Court, in which he had been nonsuited.
On moving the Supreme Court suit at the Camden Circuit,
plaintiff was nonsuited upon the opening of his counsel
upon the ground, as the trial judge put it, that no facta
were stated from which an innocent motive could not be as
readily inferred as any other, and that the facts expected to
be proven were insufficient to sustain an action of the char-
acter stated in the complaint.
The thing most prominently appearing upon the state of
the record before us is that the appellant is precluded from
recovery by estoppel of record, that is, by the judgments
recovered against him in the three suits by the respondents
in the Camden District Court. These judgments operate to
defeat the appellant's present suit res judi<:ata. It is true
that the respondents' suits against the appellant were for
damages for trespass, and that appellant's present suit against
respondents is for damages for alleged conspiracy, and the
procuring of false testimony to be given in the very suit in
wjiich the recovery by the respondents against the appellant
was had. These matters alleged and relied upon by the ap-
pellant were available to him ae defences in the trespass
suits brought by the respondents. It may be that he was
surprised by the testimony on the trial. If so, that fact
could be availed of on a motion for a new trial, and, in fact,
as we have seen, a motion for a new trial was made and
denied.
Vice Chancellor Van Fleet, in City of Paterson v. Baker,
51 N. J. Eq, 49, quoting from Cromwell v. S(ic County, 94
U. S. 351, said (at p, 53 of 51 X. J. Eq.) that parties and
those in privity with them are concluded, not only as to
every matter offered and received to sustain or defeat the
demand, but as to any other admissible matter which might
have been offered for that purpose ; for example, a judgment
rendered upon a promissory' note is conclusive as to its va-
lidity and the amount due upon it, although it be subse-
quently alleged that perfect defences actually existed, of
w*}iich no proof was offered, f^uch as forgery. &c. Again, the
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NOVEMBER TERM, 1916. 145
90 y, J. L. McMichael v. lloray.
same vice chancellor, in the same ease, quoting from Beloit
V. Morgan, 7 Wall. 619, said (at p. 56 of 51 N, J, Eq,) that
the judgment of a court having jurisdiction of the parties'
and the subject-matter of the suit is conclusive, not only as
to the res of that case, but as to all further litigation be-
tween the same- parties touching the same subject-matter,
though the res itself may be different. The doctrine of the
V\iy of Paterson r. Baker was approved by the Court of
Errors and Appeals in In re Walsh's Estate, 80 N. J. Eq.
565, 569, 570.
It is true that the judgments recovered by the respondents
against the appellant in the Camden District Court were ndt
pleaded as estoppel in bar to the appellant's action against
them in the Supreme Court, the judgment of nonsuit in
which is now being reviewed.
This court held in State v. IJeyer, 89 X. J. L. 187, that
a question not presented and argued in fhe court below will
l)e held to have been waived and abandoned, and will not be
considered in an appellate tribunal.' But this must be read
in the light of our holding in Stale v. Shape, 88 Id. 610,
where it was decided that a court of last resort need not
hear a party on a question which could have been, but was
not, raised in an intermediate court of appeal, except where
. the question goes to the jurisdiction of the subject-matter or
where a question of public policy is involved. The true doc-
trine is that a court of appeals need not, not that it cannot,
decide a question arising on a record before it, which was
not raised in a court below, whether that court be an inter-
mediate coiirt of appeals or a court of first instance; and
it is the constant practice of appellate courts to notice and
decide questions of jurisdiction, and especially questions of
public policy, residing in records before them, without those
questions having been raised below.
The doctrine of res judicata is one of public policy. On
this phase of the question Vice Chancellor Van Fleet re-
marked in City of Patrrson v. Bal-or, supra (at p. ^"iO of 51
.Y. /. Eq.):
Vol. xc. 10
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14() COURT OF ERRORS AND APPEALS.
McMlchael v. Iloray. 90 X, J. L,
"The doctrine under consideration is not a mere rule of
procedure, limited in its operation, and only to be enforced
in cases where a defeated suitor attempts to litigate anew a
question once heard and decided against him, but a rule of
justice, unlimited in its operation, which must be enforced
whenever its enforcement is necessary for the protection and
security of rights and for the preservation and repose of
society/'
In the case before us the motion to nonsuit was not made
upon the ground of estoppel by record, nor were the judg-
ments pleaded as res judicata, nor was the nonsuit granted
for that reason; but that makes no difference, as a judg-
ment entered upon a nonsuit directed by the trial judge, and
brought up for review, will be affirmed if correct on any legal
ground, although the reason given by the court below is
erroneous. Gillespie v. J, W, Fergtisoti Co., 78 N, J, L, 470.
We have not considered, and therefore do not decide, whether
the ground upon which the trial judge rested the motion to
nonsuit is tenable or uhtenable. We prefer to put our de-
cision upon the ground of public policy, which, for the re-
pose of society, decrees that judgments rendered by com-
petent tribunals, having jurisdiction of the subject-matter
and the parties, shall be forever at rest.
The judgment under review must be affirmed, with costs.
For affirmance — ^I'he Chancellor, Chief Justice, Gar-
Risox, SwAYZE, Trenchari), Parker, Bergen, Minturk,
Kaliscii, Black, White, Heppenheimer, Williams, Gard-
ner, JJ. 14.
For reversal — Xone.
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NOVEMBER TERM, 1916. 147
90 N. J. L. Shaw v. Bender.
MARY SHAW, RESPONDENT, v. ELLA A. BENDER, APPEL-
LANT.
Submitted July 10, 1916— Decided March 5, 1917
1. Whenever words clearly sound to the disreputation of the plaint-
iff they are defamatory on their face and actionable per «e.
2. A suit liee for words actionable per se without proof of special
damage.
3. Conflicting testimony is always for the jury.
4. A question not presented and argued in the court below will be
held to have been waived and abandoned, and will not be con-
sidered in an appellate tribunal.
5. The present practice requires that a defendant's answer must
specifically state any defence which, if not stated* would raise
issues not arising out of the complaint.
On appeal from the Atlantic County Circuit Court.
For the appellant, Bolte, Sooy & Oilh
For the respondent, Lee F. Washington,
The opinion of the court was delivered by
Walker, Chancellor. The plaintiff sued the defendant
for damages for slander. The complaint contained two counts
— first, that on November 6th, 1914, in the county of Atlan-
tic, the defendant, in the presence of Bose Scanlan, William
Colligan and other persons, said to, and of, and concerning,
the plaintiff: "You (meaning the plaintiff) bring that sign
back you stole last night, you and Col. Kelly * * * you
are a God damn liar, you stole it out of that window last
night * * * you are nothing but a thief, you stole my
chair * * * you stole part of my new range * * * yr)u
stole the gas, light out of the dining-room," thereby stating
that the plaintiff was a thief and guilty of the crime of lar-
ceny ; srecond, at the same time and place, in the presence of
Rose Scanlan and William Colligan and other persons, de-
fendant said to, and of, and concerning, the plaintiff : "You
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148 COURT OF ERRORS AND APPEALS.
Shaw V. Bender. 90 \, J. L.
(meaning the plaintiff) are nothing but a common low prosti-
tute * * * you are so God damn low you don't know what
you are * * * you are a liar ♦ ♦ * he (meaning Col.
Kelly) lives with you," meaning thereby that the plaintiff was
unchaste, subject to tlie punishment inflicted upon common
prostitutes, and that the plaintiff was guilty of the crime of
adultery or fornication with Kelly. Plaintiff alleged that the
words were false and malicious and demanded damages.
Defendant answered, first, that there was no allegation in
either count that the words spoken, or any of them, were used
in a defamatory sense, and, further, that no special damage
was alleged to have resulted to the plaintiff as a consequence
of the words alleged to have been spoken, and that for want
of such averments no cause of action was declared; second,
tliat the several 'allegations in the counts were wholly false
in fact and untrue.
The action was tried in the Atlantic County Circuit Court
before Mr. Justice Carrow and a jury, and resulted in a ver-
dict in favor of the plaintiff and against the defendant, upon
which judgment was duly entered, with costs.
The defendant appealed^to this court from the whole of the
judgment, first, because the trial court refuse<l the defend-
ant's request to nonsuit the plaintiff at the close of her case;
second, because the court refused to nonsuit at the close of the
defendant's evidence, and third, because the court erred in
charging the jury in certain particulars.
1. As to the motion to nonsuit : The plaintiff testified that
on Xovember 6th, 1914, in the defendant's house, in Atlantic
City, in the presence of the defendant's brother, Mr. Collio^n,
and of Mrs. Scanlan and several others, she, the defendant,
said to the plaintiff: "You God damn thief, you stole my
sign, I want you to bring that sign back you stole last night.
T said, Xow you be careful who you are talking to, T didn't
steal your sign. You are a God damn thief, you stole my si^rn,
you stole my gas jets, you stole part of my new stoye. You
are nothing but a God damn thief. She said T was so low I
didn't know what T was, and -she said T was nothing but a
(iod damn conmion low prostitute. * * * She said Col.
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XOVEMBER TERM, 1916. U9
DO X. ./. L. Shaw v. Bender.
Kelly and I stole the sign last night. I said, I didn't see Col,
Kelly last night. She said, You are a God damn liar; he lives
with you." This story was corroborated by Mrs. Scanlan, who
went with Mrs. Shaw to Mrs. Bender's. In this state of the
proofs, the plaintiff rested and the defendant moved for a
nonsuit, the only gi'ound approaching a reason therefor being
counsel's assertion that there was no damage alleged or
proved. The court thereupon allowed the plaintiff to amend
her complaint in certain respects requested by her atiomey,
namely, by alleging that as a result of the language used,
the plaintiff was injured in her reputation and standing in
the community, and that the making of the statements dam-
aged the plaintiff in her business as a boarding-house keeper,
and as a result of the speaking of the words the plaintiff was
humiliated in her feelings as well as by the indignity of
having the words spoken. The motion to nonsuit was denied,
with leave to renew it at the end of the case.
Whenever words clearly "sound to the disreputation" of
the plaintiff, there is no need of further proof, they are de-
famatory on their face and actionable per se. Odg, L, dP S,
*18. Spoken words are defamatory when the imputation cast
by them on the plaintiff is on the face of it so injurious that
the court will presume, without proof, that plaintiff's reputa-
tion has been thereby impaired, and one of the class of eases
in which this presumption arises is where the words charge
the plaintiff with the commission of a crime. Ibid. *53. As-
suming that the defendant uttered the words alleged to have
been spoken of and concerning the plaintiff, she charged her
with the commission of two crimes, namely, larceny and adul-
tery or fornication, each of which is indictable under our
statute. It is actionable to call one a thief, and no innuendo
at all is necessary, as larceily is clearly imputed! Ibid. *105.
Equally, it is actionable to call a woman a prostitute, and no
innuendo is necessarv% as adultery* or fornication is implied,
accordingly a« the woman is married or unmarried. A suit
lies for words actionable per se without proof of special dam-
age. Johnson t. Shields, 25 N. J. L. 116.
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150 COURT OF ERRORS AND APPEALS.
Shaw V. Bender. 90 N. J. L.
It is specified as cause for reversal that a nonsuit should
have been granted because the statements of the defendant
were directed to the plaintiff personally and to no one else,
hence, the element of publication, which is the foundation of
slander, was lacking. The trial court was not requested to
grant a nonsuit on that ground; hence, the question is not
before us for determination.
A question not presented and argued in the court below
will be held to liave been waived and abandoned, and will not
be considered in an appellate tribunal. State v. Eeyer, 89
N. J. L. 187.
2. As to the motion to nonsuit at the close of case: Mrs.
Bender, the defendant, took the witness stand and testified
that she never called Mrs. Shaw a thief or a prostitute. Mr.
Colligan, defendant's brother, testified that he saw there \^as
commotion in his sister's house and went in and got between
the women ; that he did not hear his sister say anything, only
heard Mrs. Shaw's tongue above them all. Other witnesses
were called who also gave only negative testimony, saying they
did not hear Mrs. Bender use the slanderous language at-
tributed to her.
When the testimony was closed, counsel for the defendant
addressed the court and said : "I am inclined to think that
this case ought to be dismissed without debate." The trial
judge, regarding this as a renewal of the motion to nonsuit,
which he had reserved, and treating it as a motion to direct
a verdict for defendant, denied it, and the case went to the
jury who found for the plaintiff.
The action of the trial judge was clearly right. The tes-
timony for the defendant did no more than put the facts in
dispute and thus raise a jury question. Conflicting testi-
mony is always for the jury. Dickinson v. Erie Railroad Co,,
85 N. J. L. 586.
3. Among the causes for reversal assigned by the appellant
are three alleged errors committed by the trial judge in charg-
ing the jury, but, as no exception was taken to any part of
the charge, these reasons for reversal are not available to ap-
pellant here.
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NOVEMBER TERM, 1916. 151
90 y, J. L. Sholes v. Eisner.
4. It is argued in the brief of the appellant that the alleged
slander was privileged. Privilege is not pleaded nor is it as-
signed as a reason for reversal. Counsel for respondent makes
the point that the question of privilege should not be con-
sidered by. the court, inasmuch as it was not specially set up
by the defendant in her answer. This is correct. The present
practice requires that a defendant's answer must specifically
state any defence which, if not stated, would raise issues not
arising out of the complaint. The present case is within this
provision. And in a case where defences are not so pleaded
they are not available on appeal. See Titus v. Penmylvania
Railroad Co., 87 N, J, L. 157, 161. Besides, the point is not
available here, for the reason that the other ones not raised
below are not. ,
The judgment must be affirmed, with costs.
For affirmance — ^The Chancellor, Chief Justick, (iar-
RISOX, SWAYZE, TrENCHARD, PaRKER, BeRGEX, MiNTCRN^
Kalisch^ BlaCk, White, Williams, JJ. 12.
For reversal — None.
ANNA E. SHOLES, RESPONDENT, v. LEO EISNER ET AL.,
APPELLANTS.
Submitted December 11, 1916— Decided March 5, 1917.
1.' Because the plaintiff did not produce affirmative proof that his
judgment debtor, who petitioned for discharge under the Insolvent
Debtors* act, did not appear in person at every subsequent court
until discharged, the motion to nonsuit should have been granted,
and failing that — this lack of evidence not having been supplied
in the farther progress of the trial — the motion to direct a ver-
dict should have been granted; and, therefore, the direction of
a verdict for the plaintiff was erroneous.
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]o2 COURT OF ERRORS AND APPEALS.
Sholes V. Ki8n«r. 90 A'. J. L.
2. The defendant havinj? appeared at the term of the Common Pleas
Court, next after presenting bis petition, and having been then
and there examined, and the court, which could have granted his
discharge within that term, held the matter und^r advisement
until a subsequent term and then granted it, the discharge, when
w) granted, operated to discharge the debtor's sureties on the
bond, because the court could not lawfully have granted the dis-
charge unless it were satisfied that the debtor's conduct had been
fair, upright and just, which, perforce, must include compliance
with the tenoi of the act which alone would entitle the debtor
to his discharge, and which, the discharge, necessarily presup-
poses that there had been no breach of the condition of the bond.
3. The discharge of an insolvent debtor is a release by act of law
from performance of the condition of the bond.
4. It is a general rule that the discharge of the principal works a
discharge of the sureties on a bond.
On appeal from the Supreme Court.
For the appollantis, James & Malcolm 0, Buchanan.
For the respondent, James J. McOoogan.
The opinion of the court wsls delivered hy
Walker, Chancellor. This ease comes here on an ap-
peal hy appellants from a judgment of the Supreme Court,
in favor of the respondent. The grounds of appeal are (1)
the refusal of the trial court to nonsuit the plaintiff; (2) the
refusal to direct a verdict for defendant; (3) the direction
of a verdict for plaintiff.
The action was hrought hy plaintiff for the alleged breach
of a bond under the Insolvent Debtors' act, made by defend-
ants as sureties for Benjamin Markowitz. The bond was
given December 17th, 1914, and was conditioned inier alia
that Markowitz should appear before the then next Com-
mon Pleas ("ourt of Mercer county, and petition for the bene-
fit of the act, and appear in person at every subsequent court
until discharged. The next term of the Mercer Pleas after
the giving of the bond was the January term, 1915. Marko-
witz duly appeared and petitioned. The breach alleged is
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NOVEMBER TERM, 1916. 153
90 N, J, L. Sholes v. Eisner.
that the said "Benjamin Markowitz named in the said bond,
did not appear in person before the Court of Common Pleas
holden in the county of Meicer, during the May (1915) term
thereof, as provided therein." This was denied by defend-
ants' answer, and the only evidence offered by plaintiff to
prove the alleged breach was the offer of the minutes of the
Common Pleas, which contained no entry or record to show
whether or not Markowitz appeared before that court during
the May (1915) term.
The minutes were kept by various persons and were shown
to be incomplete, for they contained no entry of the appear-
ance and examination of the insolvent debtor on his peti-
tion, although such appearance and examination were duly
had. This lack of evidence was not supplied in the further
progress of the trial; yet the court denied the defendants'
motion to nonsuit and to direct a verdict for defendants,
and, on tlie contrary, directed a verdict for plaintiff. All
of which was erroneous.
The defendants adduced testimony tending to show that
Markowitz had in fact appeared in person at the May (1915)
term of the Common Pleas; and, also, adduced testimony
tending to prove a waiver and abandonment by plaintiff of her
right to require the further appearance of Markowitz in the
insolvency proceedings. But in our view of the case, it is not
necessary to consider these questions of evidence.
As already stated, the next term of the Mercer pieas after
the giving of the lx>nd was that of January, 1915, at wliich
it is admitted Markowitz appeared and presented his peti-
tion for discharge and was examined. It is also admitted
that the Mercer Pleas on February 18th, 1916, made an
order discharging the insolvent debtor in customary form,
and on the same day appointed an assignee for him, and that
he, the debtor, thereupon made a deed of assignment to the
assignee.
The act for the relief of persons imprisoned on civil pro-
cess, commonly called the Insolvent Debtors' act (Comp.
Stat,, p. 2824), provides in section 11 that if the court, after
hearing,' shall be satisfied that the conduct of the debtor has
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154 COURT OF ERRORS AND APPEALS./
Sholes V. EiBner. 90 N, J. L,
been fair, upright and just, it shall proceed to appoint one
or more assignees to whom the debtor shall forthwith execute
an assignment of all his real and personal estate, &e., and
upon making which assignment and filing the same, the
court may direct the sherifif to discharge said debtor from
confinement on account of any debts by him previously con-
tracted. It is provided in section 3 that any person arrested
on process of execution, &c., as provided in section 2, having
given bond as therein provided, shall be entitled to make
application for his discharge under the act. The discharge,
if granted, is from confinement on account of any debts
previously contracted. The form of the order of discharge
is not printed in the state of the case, but it is stipulated
that the order therefor was in customary form. The cus-
tomary form must, in its nature, be one in conformity to
the statute. Therefore, the defendant has been discharged
from confinement on account of any debts by him previously
contracted, including the plaintiff's demand. It would be
anomalous, indeed, if the defendant may be discharged from
confinement on such demand, and, consequently from his
liability on the insolvent bond on the one hand, and his sure-
ties on the other hand, should be held for the payment of the
debt, when their undertaking was to be answerable for it
only in case he should not comply with the insolvent laws,
and, therefore, not entitled to his discharge. This do^s not
lay out of view the fact that the bond required that the
debtor would appear in person at every subsequent court
until he should be duly discharged, as a discharge by the Com-
mon Pleas necessarily includes a finding that the conduct
of the debtor has been fair, upright and just. These re-
quirements are restricted to the debtor's conduct in the in-
solvency proceedings (MelisJci v. Sloan, 47 N, J. L, 82),
and it is not perceived how this debtor could have been fair,
upright and just with Reference to these proceedings, with-
out having in all things complied with the requirements of
the insolvency laws, including appearance in person in court
when required to do so. The form of the bond given in
this case follows the statutory language contained in aection
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XOVEMBER TERM, 1916. 155
90 A\ J. L, Sholes v. Eisner.
2 of the act, and concludes, *^then the above bond or obliga-
tion shall be void and of no effect; otherwise to remain in
full force and virtue/^ In other vrords, if the insolvent
debtor complied with the requirements of the insolvent laws,
the bond was to be void and of no effect; that is to say, there
was to be no liability on the part of the insolvent debtor's
sureties to pay his debt.
So far as appears, thert was no impediment in the way of
the court^s making an order for the discharge upon the day
of the examination of the debtor, or at' least within a short
time thereafter, certainly within the term, for the exami-
nation took place on February 18th, and the term did not
end until the second Tuesday of May following, that is,
May 9th, 1916. It was not until the third term thereafter
that the assignee w^ appointed and the debtor discharged.
This delay was not the fault of the debtor, but resulted from
the action of the court. For this the debtor should not suffer.
In Stokes v. Hardy, 71 N. J. L. 549, at the hearing and
examination of the debtor, objection was made to the fur-
ther prosecution of the matter on the ground that the de-
fendant's petition had not been filed in compliance with
the act The petition was presented to the court on the 7th
of April, 1903, but was not filed in the clerk's office until
November 30th following, it having apparently been retained
in the possession of the judge during the intervening period.
The Common Pleas overruled the objection and at the close
of the hearing made an order that Hardy be discharged.
After certiorari proceedings, in which the order of discharge
was set aside in the Supreme Court with direction that the
bond should be taken from the files for prosecution, that
judgment was removed into this court on error, and Chief
Justice Gummere, writing the opinion, observed (at p. 551)
that after the presentation of the petition, the judge who
was sitting should, within a reasonable time, have deposited
it in the office of the clerk, where the records and files of
court were kept, but that the failure of the judge to do that
was something for which Hardy was in no way respon-
sible, and that the Common Pleas Court very properly re-
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15G COURT OP ERKORS AND APPEALS.
SholeB V. Eisner. 90 N. J, L.
fused to punish Hardy for its own failure to deposit the
petition. The doctrine of this case clearly extends to the
one at bar. Markowitz, the insolvent debtor, certainly had
a right to presume that his application would, within a rea-
sonably short time, be considered and decided, and he- cer-
tainly was not responsible for the fact that*it was held under
advisement for three succeeding terms, and when the court
at last gave him his discharge, irtiich it could only have
lawfully done upon liis compliance with the act, that ^iS"
charge must certainly be as efficacious as though made on
the day the matter was submitted to the court.
In St, Vincent's Church v. Borough of Madison, S6 N, J,
L, 567, it Was held that when an application for a writ of
certiorari was made within the time prescribed by statute
but allowed out of time, the writ would not be invalid, be-
cause a justice of the Supreme Court has a constitutional
right to deliberately consider all applications made to him
and take the same under advisement, and that if the delay
in entering a judgment or order be caused by action of the
court, the entry will be allowed nainc pro tunc as of the time
When the party would otherwise have been entitled to it, as
it is? a rule of practice, as well as of common justice, that
the action of the court should not be permitted to work an
injury to a party. This doctrine is universal. It was ap-
plied in the Court of Chancery in Grant v. Grant, 84 N, J.
Eq. 81. It extends to every court of general jurisdiction, of
which the Court ot Common Pleas is one.
The view that when a debtor has been discharged by the
Common Pleas under the Insolvent Debtors' act, that dis-
charge by virtue of the statute shall operate to discharge
the debtor's sureties on the bond, finds strong support in the
case of Young v. Young, 45 N. J. L. 197, wherein Chief
Justice Beasley said (at p, 200) :
*'It tlius appears that the legislature has, by explicit and
plain expression, declared that the decree shall order that
all claims which have not been presented within the time
limited in the rule shall be barred, and that such decree
shall have the effect of barring such unpresented claims, and
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XOVEMBER TERM, 1916. 157
90 y. J. L, Sholes v. Eisner.
therefore this court has not the competency to push aside
this regulation and to say that claims not so put in shall be
suable." . -
The doctrine of the Young case, applied to the case at bar,
would indicate that wlien the legislature provided that an
insolvent debtor should be discharged from arrest provided
he made out and delivered to the officer a true and perfect
inventory, &c., of all his goods, &c., and should give bond
to the plaintiff at whose suit he was arrested, with sufficient
sure^, with condition required by the statute, and provided
further that if upon hearing of his application for discharge
the court should be satisfied that his conduct had been fair,
upright and just — wliich, perforce, must include compliance
with the terms of the act, which alone would entitle him to
a discharge — and then discharges him from confinement on
account of the very debt for which he was arrested, that
discharge must necessarily presuppose that there had been
no breach of the condition of the bond, and that, of course,
would operate to discharge the sureties from their obliga-
tion. It has been decided that the discharge of an insolvent
debtor is a release by act of law from performance of the .
condition of the bond. Skillmun v. Baker, 18 N, J, L. 134,
138; Kirby v. Oarrison, 21 Id. 179. And it is a general
rule that the discharge of the principal works a discharge
of the sureties on a bond. There is nothing in the record
1)efore us to take this case out of the general rule.
The judgment will be reversed, to the end that a venire de
novo may be awarded.
For affirmance — Xone.
For reversal — The Chancellor, Chief Justice, Gar-
Risoy, SwAYZE, Trenchard, Parker, Bergen, Minturn,
Kalisch, Black, White, Heppenheimer, Williams, Gard-
ner, J J. 14.
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158 COURT OF ERRORS AND APPEALS.
Dickinsoa v. D., L. & W. R. R. Co. , 90 X. J. L.
EDNA DICKINSON, RESPONDENT, v. DELAWARE, LACKA-
WANNA AND WESTERN RAILROAD COMPANY, APPEL-
LANT.
Argued November 24, 1916— Decided March 5, 1917.
«
1. In an action brought to recover damages for a nuisance created
and maintained by the defendant in the building of an embank-
ment along a public highway, thereby interfering with plaintifiTs
full use of the highway, the recovery by the plaintiff must be
confined to the damage sustained up to the time of the commence-
ment of the suit, for the reason that since the creation of the
obstruction was an illegal act it is not to be assumed that the
unlawful condition created was a permanent one, no matter what
the character of the obstruction might be- In such a case a
prior recovery does not preclude a recovery for damages sus-
tained because of the continuance of the obstruction after the
commencement of the prior action.
2. The general rule that a person suffering from a nuisance created
by another is under a duty to take proper measures for the lessen-
ing of the damages resulting therefrom, is not so far reaching in its
effect as to relieve the wrong-doer from the responsibility for the
existence of such conditions and to impose it upon the innocent
sufferer by requiring him to assume that the creator of the nuis-
ance will continue indefinitely to maintain it in violation of law,
and, upon this assumption, oblige him to alter or add to the
buildings upon his property for the purpose of adapting it to
those conditions.
3. When, in an action, for damages, the fundamental question in-
volved was whether or not a structure, maintained by the de-
fendant^ was a nuisance, and the question was resolved in favor
of the plaintiff, the matter is res judicata between the parties in
all subsequent litigation arising out of the maintenance of the
structure.
4. There is nothing in section 30 of the Railroad act (Pamph, L,
1903, p. 661) which permits a railroad company and a munic-
ipality to agree that the former shall erect and maintain a nuis-
ance in a public highway. '
On appeal from the Supreme Court.
For the appellant, Frederic B. Scott,
For the respondent, Ralph E, Lum,
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NOVEMBER TERM, 1916. 159
90 N. J. L. Dickinson v. D., L. & W. R. R. Co.
The opinion of the court was delivered by
GuMMEEE^ Chief Justice. This action was brought to
recover damages for a nuisance created and maintained by the
defendant company in the building of an embankment and
wall along a public highway in the borough of Chatham upon
which the plaintiff's property abutted, thereby interfering
with her full use of the highway, and making ingress to and
egress from her premises paore diflScult. The trial resulted
in the rendition of a verdict in favor of the plaintiff. The
railroad company appeals from the judgment entered thereon.
The first ground of appeal is rested upon the proposition
that the damages resulting to the property of the plaintiff
having been made the subject-matter of a prior litigation be-
tween the same parties, her recovery in that litigation was a
recovery once and for all, because of the permanent character
of the illegal structure, and barred her from maintaining any
subsequent action for damages arising out of the continued
maintenance thereof by the defendant.-
It appears from the record before us that at the trial of the
first suit the jury waff limited to a consideration of the dam-
ages sustained by the plaintiff from the time of the commis-
sion of the wrongful act complained of up to the commence-
ment of the action ; and that its award was restricted by the
court to compensation for the loss sustained during the period
mentioned. It is plain, .therefore, that if appellant's conten-
tion is sound, the respondent has not received, and now never
can receive, full compensation for the damage done to her
property from the continued maintenance of the unlawful
structure.
Although the precise question presented by this ground of
appeal seems not to have been heretofore considered by this
court, it has been dealt with in a number of cases decided by
our Supreme Court. In Lems v. Pennsylvania Railroad Co.,
76 N. J. L, 220, the facts were as follows : The defendant
company had elevated its tracks through the city of Eliza-
beth. As an incident to the improvement, and for the pur-
pose of carrjdng the elevated structure over Mary street, it
unlawfully lowered the grade of that street to the detriment
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160 COURT OF ERKORS AND APPEALS.
Dickinsoa v. D., L. & W. R. R. Co. 90 X. J. L.
of tlie plaintiff's property which abutted thereon. It was held
that the recovery by the plaintiff must be confined to the dam-
age sustained by him up to the time of the commencement of
tlie suit, for the reason that since the change of grade was an
illegal act, it is not to be assumed t^iat the unlawful condi-
tion created was a permanent one, no matter what the char-
acter of the alteration of grade might be. In the earlier case
of Hatfield v. Central Railroad Co., 33 Id. 251, the same rule
was declared, where the defendant company had unlawfully
laid its railroad tracks within the limits of a public street,
and maintained them there, without taking any steps to
legalize its occupation of the street under the powers given
it in its charter. To the same effect are Brewster v. Sussex
Railroad Co., 40 Id. 57; CoUbis v. Langan, 58 Id. 6, and
Acherman v. Xailey, 70 Id. 438. These decisions, in our
opinion, lay down the correct rule and demonstrate the un-
soundness of appellant's contention.
Another ground of appeal urged before us is that the trial
court improperly overruled questions upon the cross-exami-
nation of a witness produced by the plaintiff, the purpose of
which was to show that by a rearrangement of the inside of
lier building by the plaintiff, and the construction of a stair-
way upon its outside, the diminution in rental value and con-
venient user caused by the presence of the elevated structure
could be largely obviated. We observe that the exclusion of
some of the questions discussed by counsel in his brief was
not objected to by him, and, consequently, the rulings of the
court upon them constitute no ground for reversal. Assum-
ing that the rulings which were made the subject of objection
present the matter discussed by counw^l, we consider the
judicial action complained of to have been legally unob-
jectionable. Tlie general rule that a person suffering from
a nuisance created by another is under a duty to take proper
measures for the lessening of the damages resulting there-
from, has never been considered to be so far reaching in its
effect as to relieve the wrong-doer from the responsibility for
the existence of conditions like those exhibited in the present
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XOVEMBER TERM, 1916. 161
90 X. J. L. Dickinson v. D., Lr. & W. R. R. Co.
cage, and to impose it upon the innocent sufferer, by requiring
him to assume that the creator of the nuisance will continue
indefinitely to maintain it in violation of law, and upon this
assumption oblige him to alter or add to the building upon
his property for the purpose of adapting it to those con-
ditions.
The last ground of reversal attacks the ruling of the trial
court refusing to permit the appellant to put in evidence an
agreement made between it and the borough of Chatham, the
object of which w^as the elimination of grade crossings by
the elevation of the appellaiit's right of way; this agreement
l)eing alleged to have been made under the authority of sec-
tion 30 of the act concerning railroads (Revision of 1903).
The purpose of the offer, as stated by counsel at the time
when it was made, was to show that the appellant had a legal
right to elevate its road through the borough of Chatham in
conformity to the provisions of that contract, and justified the
appellant in its occupation of the described portion of the
public way adjacent to the plaintiff's premises. In other
words, that the structure complained of is authorized by law,
and, therefore,- cannot be a nuisance. The trouble with ap-
pellant's present contention is that the fundamental question
in the prior litigation was nuisance vel non, and this question
was resolved in favor of the plaintiff; and, consequently, in
all subsequent litigations arising out of the maintenance of
the structure, the matter is res judicata between the parties.
I£ the alleged contract had the force and effect now ascribed
to it, and the appellant desired to take advantage thereof, it
should have been produced and offered in evidence at the trial
of the former suit. Having failed to do this, the company
cannot now put it in evidence for the purpose of overriding
the effect of the judgment in the earlier litigation.
It has been suggested that the contract was evidential for
the purpose of demonstrating that the structure complained
of was a permanent one; that the nuisance could not be
abated ; and that, therefore, the recovery had in the original
suit must have been once and for all.
Vol. xc. 11
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162 COURT OF ERRORS AND APPEALS.
Dickinson v. D., L. & W. U. R. Co.^ 90 X.J. L.
We think there are several answers to this suggestion. In
the first place, the contract was not offered upon any such
theory. In the second place, there was no intimation at the
time of the offer that there was anything in the contract to
show that it was the intention of the parties that this illegal
structure should be permanently maintained. In the third
place, even if such an intention did so appear, it would be
quite immaterial, for there is nothing in the statute appealed
to which permits a railroad company and a municipality to
agree that the former shall erect and maintain a nuisance in
a public highway. In the face of the prior adjudication, the
normal method to be adopted by this appellant compaJiy for
legalizing its structure, so far as the plaintiff is concerned, is
by taking advantage of its charter powers to condemn the
right of the plaintiff which has been invaded by its illegal act.
One other matter has been called to our attention, namely,
that the jury were permitted by the trial court in the making
up of its verdict to assess punitive damages against the ap-
pellant. We are unable to perceive any theory upon which,
under the facts before us, the appellant had subjected itself
to a liability to have damages of this character assessed
against it ; but as this judicial action ha^ not ))een made the
basis of a ground of appeal, the judgment under review can-
not be reversed for this error, notwithstanding its injurious
character.
There will be an affirmance.
For aprmanre — TiiE Cifancellor, Chief JraxiCE. Gah-
RTSON, SWAYZE, TREXCirARD, PaRKER, BeRGEN, MtKTURX,
Kalisch, Black, White,. Williams, Gardner, JJ. 13.
For reversal — Xone.
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NOVEMBER TERM, 1916. 163
90 N, J. L. Mausoleum Builders v. State Board of Taxes, &c.
MAUSOLEUM BUILDERS OF NEW JERSEY, APPELLANT, v.
THE STATE BOARD OF TAXES AND ASSESSMENTS ET
AL., RESPONDENTS.
Submitted December 11, 191G— Decided March 5, 1917.
1. A grant of eifemption from taxation, even though made in re-
spect to some particular property, is a personal privilege con-
ferred upon the grantee, and the immunity thereby granted does
not pass to a purchaser of the property, in the absence of an in-
dication by the legislature, so clear and unmistakable as to- leave
no doubt of its purpose, that it shall so pass.
2. Neither the language nor the history of section 3, paragraph 6,
of the General Tax act of 1903 (Comp. 8tai„ p, 5083), which
exempts "graveyards not exceeding ten acres of ground, ceme-
teries and buildings for cemetery use erected thereon," suggests
that in passing it the legislature intended to confer immunity
from taxation upon business corporations that should see fit tu
devote a part of their capital to the erection of mausoleums for
purely commercial reasons and in the hoi)e of making a profit
out of the transaction.
On appear from the Supreme Court, whose opinion is re-
ported in 88 .Y. J. L, 592.
For the appellant, Michael Dunn.
For the respondents, Daniel L. Campbell.
The opinion of the court was delivered by
GuMMERE, Chief - Justice. This is an appeal from a
judgment of the Supreme Court in a certiorari proceeding
brought to test the validity of a tax assessed by the borough
of Totowa upon a building erected- by the "Mausoleum
Builders of Xew Jersey" for purposes of sepulture. The
claim of the owners of the building, who were the prosecutors
below and are the appellants here, was and is that this prop-
erty is immune from taxation under section 3, paragraph 6, of
the General Tax act of 1903 {Comp. Stat., p, 5083), which
exempts "graveyards not exceeding ten acres of ground,
cemeteries and buildings for cemetery use erected thereon."
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1G4 COURT OF EWROES AND APPEALS.
Mausoleum Builders v. State Board of Taxes, &c. 90 X. J. L.
The exemption provision appealed to first became a part of
our General Tax act by the supplement of April 11th, 1866.
Pamph. L., p. 1078. At that time lands used fof the inter-
ment of the dead (with, perhaps, the exception of a few
private lots where the owners of farms buried their own im-
mediate families) were graveyards and cemeteries; the for-
mer being appendages to the churches in the state, used for
the burial of the dead of the congregations, and in the owner-
ship of the church organizations, the latter being owned by
corporations created by the state either under special char-
ter or general law, usually known as cemetery associations,
and brought into existence for the 'primary purpose of ac-
quiring lands to .be devoted to the interment of the dead.
The legislative scheme running through all of the enact-
ments was the acquisition of a tract of land, the cutting it
up into lots or plots, the selling of such lots or plots to
individual purchasers for the purpose of burying the dead
of such purchasers, and the perpetual maintenance of the
tract in a proper and orderly condition. No change has
been made in the text of the exemption enactment since its
original passage, and the intention of the legislature with
regard to its scope consequently remains unchanged. We
are, therefore, to ascertain who wfere the beneficiaries of the
immunity thus granted.
It is to be borne in mind that a grant of exemption from
taxation, even though made in respect to some particular
property, is a personal privilege conferred upon the grantee.
Morgan v. Ijouisiana, 93 U. S. 217; Wilson v. Gaines, 103
Id, 417 ; Memphis, &c., R. B. Co. v. Commissioners, 112 Id.
609; Mercantilr Banl- v. Tennessee, 161 Id. 161; StaU
Board of Assessors v. Morris and Essex Railroad Co., 49 N,
J. L. 193. The immunity, therefore, provided by the sup-
plement of 1866 was granted to the owners of churchyards
and to the owners of cemeteries; that is to say, to church
organizations which maintain graveyards as appurtenances to
their respective churches, and to cemetery associations and
the owners of burial lotr^ within the cemetery tract.
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XOVEMBER TERM, 1916. 165
90 N. J, L. Mausoleum Builders v. State Board of Taxes, &c.
Is the Mausoleum Builders of Xew Jersey one of the class
of corporations within the spirit of the exemption provision?
We think not; and for the purpose of making plain the
reasons for our conclusion, a short statement of the facts set
out in the return to the writ of certiorari is necessary.
The Laurel Grove Cemeter}' Company, a specially char-
tered corporation of this state, was created for the purpose
of acquiring land in Passaic county to be devoted to cemeteri*
uses. It exercised the power conferred upon it, and located
a cemetery in what is now known as Totowa borough. The
tract was laid out in- lots and plots, with walks and avenues
running through it. The Mausoleum Builders of Xew Jer-
sey is an organization incorporated under the General Cor-
poration act of this state. Some of the objects of its crea-
tion, as set forth in its certificate of incorporation, are the
building of mausoleums ; the manufacture of every kind of
material, and dealing in the same; the acquisition, holding
and disposing of stocks and bonds, and other personal prop-
erty; the acquisition and holding, leasing and conveying, of
real estate in Xew Jersey and elsew'here, and the purchasing,
owning, chartering and operating. of steamboats, tugs, barges
and other boats. Some time prior to the assessment of the
tax under review (but just when the return does not show),
these two corporations entered into an agreement by the terms^
of which the cemetery company agreed to sell to the Mauso-
leum Builders a plot of ground within the limit.s of the cem-
etery, one hundred by one hundred and fifty feet, for the
sum of $10,000, for the purpose of enabling the purchaser
to erect a mausoleum for the reception of the dead. The
purchase-money was to be paid in installments, the first pay-
ment to be made when ground w^s broken for the erection
of the building, the amount being $1,000, and each succeed-
ing month $1,000 was to be paid until the whole sum was
discharged. Pursuant to the provisions of this contract, the
mausoleum company entered into possession of this plot and
erected thereon the building which has been subjected to
the tax.
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16(5 COURT OF ERRORS AND APPEALS.
Mausoleum Builders v. State Board of Taxes, &c. 90 N. J. L,
It is asserted that the legal title to the plot had not been
. transferred at the time the tax was laid upon this building.
Assuming this to be the fact, it does not seem to us to be
material in determining the validity of the tax, for the
equitable, though not the legal, title to the tract is in the
purchaser. After the legal title passes to the mausoleum
company, the plot will cease to be anything more than a
tract of land, not belonging to the cemetery company and
not a part of the cemetery property, but merely adjacent
thereto and surrounded thereby. It will hardly be disputed
that it will then be as much subject to taxation as if the
land had never formed a part of the cemetery tract. And if
the cemetery association could not transfer to its vendee by
the delivery of the conveyance immunity from taxation as
to the property conveyed, it must at least be doubted whether
it could do so by the subterfuge of holding the legal title in
trust for its vendee.
It has already been pointed out that immunity from tax-
ation, even though granted with respect to some particular
property, is a personal privilege; and it is entirely settled
that such immunity does . not pass to a purchaser of the
property in the absence of an indication by the legislature,
fiio clear and unmistakable as to leave no doubt of its pur-
pose, that it shall so pass. The authorities from the United
States Supreme Court already cited, and our own decision
in 49 N. J. L, 193, supra, fully recognize this principle. See,
also, Ficurd v. EaM Tennensee, &c,, Railroad Co., 130 TJ. S.
637.
Neither the language of the tax enactment, nor its history,
piuggests that in passing it the legislature intended to confer
immunity from taxation upon business corporations that
should see fit to devote a part of their capital to the erection
of mausoleums for purely commercial reasons, and in the
hope of making a profit out of the transaction. Nor any
purpose to authorize the corporations to whom stich im-
munity is granted to transfer the exemption to corporations
of the character just described.
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XOVEMBEK TERM, 1916. 167
90 .V. J. L. Miller v. Iloboken.
But even if the soundness of the conclusion thus broadly
stated is doubted, it will hardly be denied that the purpose
of the legislature to grant such immunity to purely business
corporations, or to permit its transfer to them, does not ap-
pear "by language so clear and unmistakable as to leave no
doubt'* of the existence of that purpose; and to doubt is to
deny.
The judgment under review will be affirmed.
For affinnatwe — The Chief Justice, Parker, Minturx,
Kalisch, White, Heppexheimer, Williams, JJ. 7.
For reversal — The Chancellor, Swayze, Bergen, Gard-
ner, JJ. 4.
MAX MILLER. APPELLANT; v. MAYOR AND COUNCIL OF
CITY OF HOBOKEN ET AL., RESPONDENTS.
Arj?ued November 27, 1910 — Decided March 5, 1017.
The board of commissioners of a municipality, relying upon the state-
ment of a bidder for a municii>al contract that he had no connec-
tion with any other bidder, awarded him a' contract for paving.
It afterward appeared that he was superintendent of the plant
of the only other bidder for the work. /feW, that the award of
the contract was made under a false representation, and will
therefore be set aside.
On appeal from the Snprenic Court.
The Supreme Court upon certiorari sustained the award of
a munieipal contract to William T. S. Crichfield in the fol-
lowing per curiam:
"We think the specifications furnished a common standard
for bidding. We must assimie that the power reserved for the
engineer will be fairly exercised and we sec no reason to think
it is not reserved for the purpose of enabling the engineer to
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1(»8 COURT OF ERRORS AND APPEAJ^.
Miller v. Hobok^n. 90 \, J, L.
save the city's money by avoiding such changes of grade as
might lead to actions for damages.
^TVe think the contract contemplated is a single contract
for repair work and is not to be regarded as so many separate
and distinct contracts for each street.
*'As8uming that the contention of the prosecutor is correct,
and that Crichfield and the Uvalde company are identical in
interest, we would not be justified in setting aside the con-
tract. Upon that assumption; there was but one bidder, and
the commissioners might have been justified in rejecting lx)th
bids; but they might also in the exercise of their discretion
have been justified in awarding the contract. It cannot be
said, as a matter of law, that it is improper to award a con-
tract when there is only one bid.
"There must be judgment for the defendants."
The return to the writ supplemented by the evidence taken
and the exhibits admitted under a rule in the certiorari pro-
ceeding established the following facts :
1. That the specifications undei which bids were made re-
quired that "bids mu?t be made out on blanks furnished at
tlie city clerk's office."
2. That these blanks contained two declarations to be
signed by each bidder in the words: "1. I do declare that I
am the only person interested in this proposal, and that no
other person than myself has any interest in this proposal,
or in the contract proposed to be taken. 2. I further declare
that this proposal is made without any connection ' with any
other person or persons making proposals for the same work,
and is, in all respects, fair and without collusion or fraud."
3. That these declarations were signed by William T. S.
Crichfield in the bid proposed by him and by the Uvalde
Asphalt Paving Company in the bid proposed by it for the
same work.
4. That these were the only bids before the board of com-
missioners at the time they awarded the contract to Crich-
field, whose bid was the lower of the two.
5. That at the time these two bids were signed, and at the
time the contract was awarded, Crichfield was the general
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NOVEMBER TERM, 1916. 169
90 y, J, L, Miller v. Hoboken.
superintendent of the Uvalde Asphalt Paving Company under
a written contract at an annual salary of $10,000, besides all
current expenses incident to his employment and his traveling
expenses.
6. That by this contract Crichfield agreed "to give all of
his time to the furtherance of the interests of the party of
the first part,'^ i. e,, the Uvalde paving company, and further
that he "shall also in all respects endeavor to promote the
success of the company's business."
7. A letter signed by R. S. Rokeby, president, the perti-
nent language of which is as follows : "My dear Sherman —
Referring to your contract with the Uvalde company under
date of the 2d of April, 1912. This is tc confirm the verbal
understanding you and I have. You are at liberty to bid on
and undertake asphalt paving contracts in your name and in
your own behalf on the following conditions," which are for
the present purposes unimportant.
There was also a general denial by Crichfield of any secret
understanding with the company of which he was superin-
tendent as to their respective bids for the contract in question,
or that the company had any interest in such contract.
For the appellant, J. Emil Wahcheid.
For the respondents, John J. Fallon and Collins & Corbin,
The opinion of the court was delivered by
Garrison, J. Doubtlessly, the commissioners, as suggested
by the court below, would have been justified in rejecting
both bids because of tlie intimate connection between the two
bidders. The trouble is that they did not know of such con-
nection when they awarded the contract, in reliance upon the
declarations of both bidders that there was no connection be-
tween them.
I am not referring to the first declaration, wliich covered
joint interest in the bid and the contract when awarded, Init
to the second declaration which dealt with the bidders tliem-
selves by declaring that there was no connection between
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no COURT OF ERRORS AND APPEALS.
Miller v. Hoboken. 90 X. J, L.
them,, whereafi the fact was Ihat one was the general superin-
tendent of the other. This anomalous situation is not ex-
plained away either upon the theory that the company did
want the contract or that it did not want it; if the former,
whj' did it encouarge the competition of its own manager?
If the latter, wliy did it bid at all?
The atmosphere of suspicion that could not but be created
by the disclosure of the real facts, coupled with the disin-
genuous character of the declarations made by both bidders
would liave justified the rejection of both bids or at least tlie
serious consideration by the commissioners of the propriety
of taking such a course "in the best interests of the city.*'
Of the benefit of this exercise of discretion by the commission-
ers the city was entirely deprived by the circumstance that
the discrepancy between the declared facts and the actual
facts was not known to the commissioners when they awarded
the contract.
In addition to this detriment the award of the contract,
under the circumstances, was for the same reason detrimental
in so far as it necessarily rested upon false and misleading in-
formation both as to the fact of independent competition and
as to the fallacious standard set up as to the lower of the two
apparently competitive bids.
Apart from the public detriment presumably resulting from
the false impressions under which the contract was awarded
to Crichfield, such award should be set aside upon a ground
directly affecting him. Crichfield knew what his connection
with his company was; he knew also that he had declared
tliat there was no connection between them ; he knew, there-
fore, that in acting upon the faith of his declaration the com-
missioners would necessarily act under a false impression as
to the actual facts. They did so act in awarding the contract
to him. The doctrine applicable to such a situation is. thus
stated by this court in the case of lA)merson v. Johnston, 47
N. J. Eq, 312: "In order to establish a case of false repre-
sentation it is not necessary that something which is false
should have been stated as if it were true. If the presenta-
tion of that which is true creates an impression which is false,
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XOVEMBEE TERM, 1916. - 171
90 y. J. L. People's Bk. & Tr. Co. v. Passaic Co. Bd. of Tax.
it is, as to him who, seeing the misapprehension, seeks to
profit by it, a case of false representation.'^
Under this doctrine Crichfield cannot retain the contract
awarded to him under a misapprehension of which he was
cognizant without committing this court fto an approval of
an entirely indefensible practice.
The judgment by the Supreme Court is reversed and the
award of the contract set aside.
For affirmance — Xone.
For reversal — The' CAaxcellor^ Chief Justice, Gak-
Risox, Trenchard, Parker, Bergen, Black, White, Hep-
penheimer, Williams, Gardner, JJ. 11.
PEOPLE'S BANK AND TRUST COMPANY, APPELLANT, v.
PASSAIC COUNTY BOARD OF TAXATION, RESPONDENT.
Submitted July 10, 191&— Decided March 5, 1917.
1. A county board of taxation having made an assessment of the
stock of a bank as required by the act for the taxation of bank
stock {Famph. L, 1914, p. 141). a claim for a deduction there-
from of the value of certain shares of stock in other banks tax-
able elsewhere was properly denied.
2. Double taxation is avoided under section 4 of the act not by ex-
cluding personal property of the bank that is taxable elsewhere
from entering into the assessed value of its stock, but by provid-
ing that such asse^ement shall render such property immune from
further taxation to the extent that its value has entered into such
assessment.
On appeal from the Supreme Court.
This is an appeal from a judgment of the Supreme Court
affirming an assessment of taxes for the year 1914, levied by
the Passaic County Board of Taxation against the appellant
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112 OOUKT OF ERRORS AND APPEALS.
People's Bk. & Tr. Co. v. Passaic Co. Bd. of Tax. 90 iV. J. L.
under the provisions of chapter 90, laws of 1914, regulating
the taxation of bank stock.
The value of the stock of the bank, assessed according to
the provisions of the act of 1914 was $474,611.45, from
which $77,200 ^A deducted as the assessed value of real
estate owned by the bank, leaving $397,411.45 as the value
of its stock, all of which was by its request assessed against
the bank. A petition filed on December 17th, 1914, informed
the board of taxation that the bank owned certain shares of
stock of two banking institutions in Bergen county of the
aggregate value of $104,964.35, on which it had been assessed
by the Bergen County Board of Taxation, the prayer of the
petition being that the said sum of $104,964.35 be deducted
from the $397,411.45, the assessed value of its own stock,
and that it be taxed only upon the difference. The Passaic
County Board of Taxation refused to make this deduction,
which action was affirmed by the Supreme Court by the judg-
ment now under review, the meritorious question being
wliether the deduction claimed by the appellant was author-
ized or required by the act for the taxation of hank stock.
Parnph. L, 1914, p, 141.
For the appellant, Hvmphreys & Sumver.
For the respondent, Fred W. Tan Blarcom.
The opinion of the court was delivered by
Garrison, J. The deduction was not authorized by the
statute; it is expressly forbidden by It. By section 2 of
the act the only deduction authorized to be made is the as-
sessed value of the real property of the bank. This express
direction as to the deduction to be made excludes upon gen-
eral principles the authority to make other deductions. The
legislature, however, did not let the matter rest. upon thi?
general doctrine, but on the contrary concluded the section
with the categorical statement, "No deduction or exemp-
tion shall be allowed or made from the value determined
as herein provided.**
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NOVEMBER TERM, 1916. 173
90 X. J. L. People's Bk. & Tr. Co. v. Passaic Co. Bd. of Tax.
This injunction, which was addressed to and prescribed
the duty of the taxing board, was followed in section 4 by
an equally explicit statement addressed to the shareholders,
whose stock was assessed under the act in these words : "The
owners of such stock shall be entitled to no deduction from
the taxable value of their shares * * * ' f or any reason
whatsoever." In the face of these unequivocal declarations,
it is futile to argue that it was error for the board of taxa-
tion to refuse to allow a deduction which it was thus ex-
pressly commanded not to allow. Xo argument can make
it error to obey a statute. y
If the proceeding to test the board's denial of ^e de-
duction were by. mandamus, the relator could not expect
to get from the court a declaration that it was the clear legal
duty of the board to violate an express provision of the
statute.
The argument by which in this certiorari proceeding it is
sought indirectly to put the board in the wrong, is based
upon a misapprehension of the language of the fourth sec-
tion of the Taxing act, viz.:' "The said tax shall be in lieu
of all other state, county or local taxation upon such shares,
or upon any personal property held or owned * * * the
value of which enters into the taxing value of such shares
of stock." The appellant would construe this language as
clothing the taxing board with the power and the duty to
i^ee that the value of personal property of the bank otherwise
taxable did not enter into the taxing value of its shares as-
j^essed under the act, or, failing in that, to deduct the value
of such property otherwise taxable from such taxing value
when ascertained under the act.
Such a construction cannot be given to the language in
(piestion. First, because it conflicts with the express pro-
visions already quoted ; second, because it call's for data not
in the possession of the board and not provided by the act
in its third section or elsewhere: and third, because the
language itself is not susceptible of having such a meaning
])laced upon it.
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174 COURT OF ERRORS AND APPEA^^.
People's Bk. & Tr. Co. v. Passaic Co. Bd. of Tax. 90 X. J, L.
The meaning of the language in question is perfectly clear,
and doubly so in view of the context, for it immediately fol-
lows the clause already quoted which declared that the share-
holders were entitled to no deductions from the assessment
made under the act. Having thus denifed to the shareholders
the right to any deduction from the assessment made under
this act, the remainder of the section, which is the language
under consideration, announces in favor of such shareholders
a resulting exemption from further taxation as to any prop-
erty value that has entered into the assessment made under
the act. The object of this provision, as was pointed out in
Commercial Trust Company v. Board of Taxation, 87 A^. J.
L. 179, was to avoid double taxation, but the means by
which this is accomplished is not as the appellant contends,
by deducting or excluding personal property of the bank that
is taxable elsewhere from entering into the assessed value
of its stock, but by providing that such assessment shall ren-
der the bank immune from further taxation on such per-
sonal property to the extent that its value has entered into
such assessment.
The fact that the statute treats ownership by the bank as
the equivalent of ownership by its shareholders, does not ob-
scure its meaning or detract from its effect. The point that
concerns the present controversy is that the language under
consideration that is thus beneficial to the owners of the class
of property affected, and that is binding upon taxing au-
thorities seeking to impose further taxes thereon, is abso-
lutely devoid of any effect as to the Passaic County Tax
Board, whose assessment had produced the result thus an-
nounced. In fine, the clause in question does not purport
to prescribe the conduct of such board in making the assess-
ment required by the act, but simply declares what shall be
the effect of such assessment when made. This is the chief,
indeed the sole, aspect in which this clause is of any present
interest, for if it imposed no duty upon the Passaic County
Tax Board, it is for present purposes negligible; its prac-
tical workings or even its impracticability being no concern
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XOVEMBER TERM, 1916. 175
90 y. J. L. People's Bk. & Tr. Co. v. Passaic Co. Bd. of Tax.
to the respondent, in the attitude in which it is now before
this court.
The avoidance of double taxation, at which the provision'
in question is thus aimed, does not require or justify the ar--
bitrarv exemption from further taxation of the whole of thel
personal property with which the provision deals, but onlyj
its owner's immunity from the payment of any further tax
upon the* value of such property that has entered into the
assessment imder the statute. As to such value he has been
duly taxed and hence as to it he shall not be further taxed,
but as to the value of such property that is not so taxed, he
is given no such immunity either by the spirit of section 4
or by its letter.
The fundamental proposition upon which this grant of
immunity rests, and by which its extent is to be ascertained,
is that every asset held by a bank enters into and is reflected
in the true value of. its stock. This proposition, as wias
pointed out in the case already cited, is essential to the con-
stitutional taxation of property at its true value, and a doc-
trine that is thus essential to the validity of a taxing act
must a fortiori be applicable to all of its provisions.
Starting with this imperative assumption, the value im-
parted by any particular asset of a bank to an assessment
of its stock that reflects all of its assets is a mere matter of
ratio, in which, three of the quantities being known, the
fourth is ascertainable by a sum in simple proportion. The
assets are known, the particular asset is knoWn and can be
subtracted therefrom, which gives the two sums of assets on
which the ratio depends; the original assessment based on
all the assets is also known. With these three known quan-
tities the amount of an assessment into which the particular
asset does not enter is readily determined, and the difference
between this hypothetical assessment and the one into which
such particular asset actually enters is the extent to which
the value of the particular asset has entered into the taxing
value ascertained under the act as to which value immunity
from further taxation is granted. Properly construed, there-
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nc COURT OF ERRORS AXD APPEALS.
Raunsaville v. Central R. R. of N. J. 90 N. J. L.
fore, the language of section 4 is entirely without the force
sought to be ascribed to it.
The conclusion reached is that the Passaic Board of Tax-
ation, the respondent here, correctly refused to allow the
deduction claimed by the appellant.
The judgment of the Supreme Court is aflBrmed.
For affirmance — Tile Ciiaxcellok, Chief Justice, Gar-
rison, SwAYZE, Trenchard, Berqen, Black, White, Wil-
liams, Gardner, JJ. 10.
For reversal — Heppenheimer, J. 1.
GEORGE A. ROUNSAVILLE, RESPONDENT; v. THE CENTRAL
railroad of new JERSEY, APPELLANT.
Submitted December 6, 1915 — Decided June 18, 1917.
Tbe Federal Employers* Liability act, within itR scope, viz.. inter-
state commerce, deals with the same subject that is dealt, with
by the New Jersey Workmen's Compensation act under which
the duty of an employer to make compensation to an employe for
injuries arising out of the employment may exist independently
of the negligence of the employer; whereas, the federal s-tatute
makes such duty *to depend upon such negligence and excludes
the existence of such duty in the absence of negligence. The
federal act being thus comprehensive, both of those cases in which
it excludes liability and of those in which it imposes it, ous-ts
the Courts of Common Pleas of this state of jurisdiction under
the New Jersey Workmen's Compensation act to award the com-
pensation to be paid by a carrier to its employe for injuries re-
ceived by the latter while both were engaged in interstate com-
merce.
On appeal from the Supreme Court, wliose opinion is re-
ported in 87 N, J. L. 371.
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NOVEMBER TERM, 1916. 177
90 y. J. L, Rounsaville v. Central R. R. of N. J.
For the appellant, Charles E. Miller.
For the respondent, Elinor R, Gebhardt,
The opinion of the court was delivered by
Garbisox, J. The respondent, a brakeman on the appel-
lant's train under a contract made in this state, was injured
in the course of his employment in Pennsylvania while ap-
pellant and he were engaged in interstate commerce. His
petition to the Common Pleas of Warren county for compen-
sation under the Xew Jersey Workmen's Compensation act
was dismissed by Judge Roseberry upon the ground that the
enactment by congress of the Federal Employers' Liability
act prevented the application of state legislation to an injury
received in the course of interstate commerce.
Upon appeal the Supreme Court held that this was not so
and the judgment of the Pleas was reversed. Rounsaville v.
Central Railroad Co,, 87 N, J. L. 371.
From the judgment of the Supreme Court this appeal was
taken and argued before this court at the November term,
1915.
The decision of this appeal was held awaiting the decision
by the Supreme Court of the United States of the case of
Erie Railroad Co. r. Winfield, which involved precisely the
questions.
That decision has now been promulgated in an opinion filed
by Mr. Justice Van Devanter (not yet officially reported),
in which it is held that "the Federal act (Employers' Lia-
bility act) proceeds upon the principle which regards negli-
gence as the basis of the duty to make compensation and ex-
cludes the existence of such a duty in the absence of negli-
gence, and that congress intended the act to be as comprehen-
sive of those instances in which it excludes liability as of those
in which liability is imposed."
A further question decided was whether or not under the
Xew Jersey Workmen's Compensation act the interstate car-
rier might become bound contractually to make compensation
to an employe, even though such injury came within the Fed-
VoL. xc. 12
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178 COURT OF ERRORS AND APPEALS.
Wilczynski v. Penna. R. R. Co. 90 N. J. L,
eral act as above construed. Upon this question Mr. Justice
Van Devanter says : "It is beyond the power of any state to
interfere with the operation of that act (Federal Employers'
act), either by putting the carriers and their emplo3'e8 in
interstate commerce to an election between its proviisions and
those of a state statute, or by imputing such an election to
them by means of a statutory presumption."
This decision by the highest federal court as to the con-
struction of a federal statute is binding upon this court and
leads to the reversal of the judgment brought up by this ap-
peal and the affirmance of the judgment of the Comm6n Pleas
of Warren county.
For affirmance — None.
For reversal — ^The Chancellor, Chief Justice^ Gar-
rison, Trenchard, Bergen, Minturn, Black, White,
Heppenheimer, Williams. Taylor. JJ. 11.
MARYAN WILCZYNSKI, AD^HNISTRATRIX, RESPONDENT,
V. THE PENNSYLVANIA RAILROAD COMPANY, APPEL-
LANT.
Submitted March 27. 1916— Decided March 5, 1917.
1. Where the master provides his servants with a method of doing
his work, which has a direct bearing upon the safety of those em-
ployed in such work, a duty arises on the part of the master to
use reasonable care to provide a »afe method, or at least to avoid
a dangerous method if the exercise of reasonable care would pro-
duce that result.
2. The duty of a master to use reasonable care to provide" a safe
method for his employes to do his work, like the duty to use rea-
sonable care to provide a safe place of work, is one that the mas-
ter owes to his servants, and hence is one for the breach of which
the master cannot escape liability by entrusting the performance
of such duty to others, be they managers, agents, strangers, volun-
teers or fellow ser\'ants.
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NOVEMBER TERM, 1916. 179
90 N. J. L. WUczynski v. Penna. R. R. Co.
3, The obligation of a master to use reasonable care to provide a
safe method of work for his employes cannot be avoided by order-
ing them to work at an employment in his interest but over which
he exercises no control.
On appeal from the Supreme Court.
This is an action under the Federal Employers' Liability
act to recover damages for the death of a servant of the
appellant resulting from the negligence of that company
while engaged in interstate commerce, in which it employed
the plaintiff's intestate. The interstate commerce in which
the appellant was engaged consisted in the carriage of steel
girders from a point in the State of Delaware to a point in
the State of New York. This is established by the appel-
lant's answers to interrogatories as follows: "State where
the said freight was received by the defendant." Answer,
"From Edgemoor, Delaware." "State to where and to whom
the said freight was consigned." Answer, "Post and McCord
Company, New York City."
That the interstate character of the transaction continued
to exist at the time of the accident was also established by
the verdict of the jury, to whom the question was left as one
essential to the plaintiff's right of recovery. At the time of
this accident the deceased, whose name was Wilczynski, was
on the deck of a barge to which the girders were being trans-
ferred from the appellant's car on its dock at Greenville, New
Jersey, for transportation to New York City, the place of
their consignment
Wilczynski was r^ularly employed by the appellant as a
laborer on this dock, and at the time of his injury had been
ordered by the appellant to assist in the loading of the gird-
ers on the barge.' The girders, which weighed five tons each,
were hoisted from the car on the dock by means of a derrick
on the boat, the arm of which was long enough to be swung
over the car where a girder would be chained to its end,
when the arm bearing the girder would be swung back over
the deck of the boat and the girder lowered to its place.
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180 COURT OF ERROKS AXD APPEALS.
Wilczynski v. Penna. R. R. Co, 90 N. J. L,
The effect of the great weight of the girder at the extreme
end of the arm of the derrick was to pull the boat pharply
over to that side as long as the girder was suspended over the
dock, and to cause the barge to right itself suddenly when
the girder was swung over its deck. The rocking motion
thus imparted to the boat had a tendency to dislodge the top
girder of a pile that was unsupported by a neighboring pile
of equal height, and the higher the pile the more likely would
this be. The proper manner of piling the girders, as testi-
fied to by a witness for the defendant below, was to lay, first,
the bottom tier, and then to add successively one girder only
to each tier, thereby keeping the tiers of uniform height
or so that at most no tier would top the others by more than
one girder. The cause of the injury to Wilczynski, as the
jury might find, was that the rocking of the boat dislodged
the topmost of a pile of seven girders, causing it to fall on
to the top girder of a much lower pile, thereby dislodging
the girder thus struck and causing it to fall upon Wilczynski.
The defendant proved that the barge was owned by a
lighterage company who employed the captain, mate and
engineer, and that the servants of the railroad company, of
whom Wilczynski was one, were ordered by the appellant to
wlork on the boat under some arrangement between the rail-
road company and its consignee. The defendant also proved
that the captain of the barge had entire charge of the load-
ing of the girders on the boat, including the manner in which
they should be placed and piled.
Exceptions were taken to the denial of motions for a non-
suit and for the direction of a verdict.
An exception was also taken to the following language of
the charge: "The duty of this defendant company toward
this intestate, if he was their servant at the time that he
was doing the work there, was the duty to use reasonable care
in and about the work of loading the barge or boat with the
iron girders."
These exceptions are the basis of the grounds 'of appeal
that have been argued.
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NOVEMBER TERM, 1916. 181
90 N, J, L. Wilczynski v. Penna. R. R. Co.
For the appellant, Vredenbnrgh, Wall & Carey,
For the respondent, Charles M. Egan,
The opinion of the court was delivered by
Garrison, J. It was not error to deny the motions to
take the ease from the jury. There was ample testimony
from which the jury could find that the dislodgment of the
top girder of the highest pile by the rocking of the boat was
due to the fact that the piles of girders had not been kept
at a uniform height, as the testimony shows that they should
have been, and as the fatal result in this case demonstrated.
An accident from this cause would Ue due not to the work
done or to be done by the servants of the defendant, but to
the plan adopted for the proper distribution of the girders
among the several tiers or piles, a matter over which such
servants had no control, and in wfhich they had no partici-
pation. Owing to the great weight of the girders, the tier
or pile upon which any particular giMer would be placed
was the pile upon which it was mechanically lowered- by the
derrick operated under larders from the captain of the barge,
who, in respect to the adoption of the method in which^ the
girders should l)e piled up on the deck of the boat, occupied
the dominant position of master. Where, however, the
method provided for doing the work, or a jmrt of it, has a
direct "bearing upon the safety of those employed in and
about such work, a duty arises on' the part of the master of
such employes to use reasonable care to provide a safe method
of doing the work, or at least to avoid a dangerous method
if the exercise of reasonable care would produce that result.
The state and federal decisions are collected in the Ameri-
can Digest, under key number Master and Servant 130.
This duty of the master, like the duty to use reasonable
care to provide a safe place of work, with which it is closely
assimilated in legal principle, is one that the master owes
to his servants, and hence is one for the breach of which the
master cannot escape liability by entrusting the perform-
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182 COUET OF ERKORS AND APPEALS.
Wilczynski v. Penna. R. R. Co. 90 N, J. L,
ance of such duty to others, be they managers, agents,
strangers, volunteers or fellow servants.
As we said in the case of Laragai/ v. East Jersey Pipe Co.,
77 N, J. L. 516: "When a master thus owes a duty to his
servants it is immaterial what agency he may employ for its
performande, it remains his duty, and he cannot escape lia-
bility for its negligent fulfillment by delegating its per-
formance to one or more of the very class to whom such
duty is owing. The test is not what agents did the master
employ in the performance of a given duty, but whether the
duty itself was one that he owed to his servants or one that
they owed to him.'^ Obviously, in the present case, the em-
ployes of the defendant owed no duty to it to provide a rea-
sonably safe method of doing the work in which they were
ordered to assist, and it is equally obvious that such a duty
was owing by the defendant to its servants when it ordered
them to engage in a work where their reasonable safety de-
pended upon the method of doing it Inasmuch as the de-
fendant could not avoid this duty by delegating the perform-
ance of it to the captain of the barge, or by passively per-
mitting it to be performed by him, wit wias immaterial upon
the questions raised by the motions to nonsuit and to direct
a verdict, what relation, if an}^ existed between the light-
erage company and the Pennsylvania Railroad Company, or
between the servants employed by the one and those em-
ployed by the other. For as the duty of the defendant to
its servants could not be escaped by the delegation of its per-
formance, neither could it be avoided by ordering them to
work at an employment over which the defendant in fact
exercised no control. The duty of the master followed the
employment engaged in by the servant under the order ot
the master. The abandonment of a duty or the libdication
of the power to perform it, does not discharge the duty or
cancel the master's liability for its non-performance. The
question remains, Was the duty in fact performed? and
this, under the testimony in the present case, was a question
for the jury. There was, therefore, no error in the denial of
the motions to take the case from the jury.
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NOVEMBER TERM, 1916. 183
90 y. J, L, Wilczynski v. Penna. R. R. Co.
The exception to the charge wftiich is the basis of the re-
maining ground of appeal presents the same legal question
in a slightly different form.
The language of the charge covered any duty that was
owed by the defendant to the plaintiff's intestate, and hence
covered the one we have been considering, although no par-
ticular duty was specified. The ground of the exception,
however, was not that the character of the duty was not
specified, but that no duty of any character existed. When
the exception was taken by . counsel for the defendant, he
was asked by the court, ^^Your point being just what?" To
which inquiry the response was, "We claim that under the
evidence we were under no duty at all to this plaintiff's
intestate during the operation of the unloading and the trans-
ferring and stowing of the girders."
Th'is exception presents, therefore, the same question that
was presented by the motions to take the case from the jury,
and hence, for the reasons given upon that branch of this
appeal, the charge was not erroneous upon the ground
pointed out by the exception or upon any other ground
pointed out in the argument of this appeal.
Finding no error in any matter assigned as a ground of
appeal, the judgment of the Supreme Court is affirmed.
For affkniance — The Chancellor, Garrison, Swayze,
Trenchard, Bergen, Minturn, Kalisch, Black, White,
Hepp^nheimer, Williams, Gardner, JJ. 12.
For reversal — The Chief Justice, Parker, J. 2.
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184 COURT OF ERRORS AND APPEALS.
Ray EiState Corporation v. Steelman. 90 A'. J, L.
BAY ESTATE CORPORATION, RESPONDENT, v. ANDREW J.
STEELMAN, SUBSTITUTED ADMINISTRATOR, APPBI,
lANT.
Submitted December 11, 1916— Decided March 5, 1917.
A decree of the Orphans* Court, barring creditors who have failed to
present their claims within the time limited by a previous order
of the court, bars a creditor from any right of action against the
executor or administrator, founded upon a claim that might have
been presented within the time so limited.
On appeal from the Supreme Court.
For the respondent, Vredenburgh, Wall & Carey,
For the appellant, Randolph Perkins.
The opinion of the court was delivered by
SwAYZE, J. The plaintiff brought suit against the ancil-
lary administrator of Alexander Miller to recover for rents,,
taxes and water rates due under a lease of land in Xew York
City. The defendant, among other defences, set up that by an
order made in the Hudson Orphans' Court, bearing date May
20th, 1913, the plaintiff was barred from anj^ action therefor
against the defendant. This defence was stricken out on mo-
tion, and was therefore not available to the defendant at the
trial on the other issues. The Circuit judge evidently felt
that there was merit in the defence, but was constrained by
the order of the Supreme Court justice striking out the
answer. Under rule 40 the order is appealable and the ques-
tion is whether any cause of defence is disclosed. We think
our review should not be controlled by niceties of pleading,
but by the merits, if any are disclosed; and that defects in
the answer may be supplied by amendment. The answer is
defective in failing to aver that there was an order to limit
creditors and the time within which claims were to be pre-
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NOVEMBER TERM, 1916. 185
90 N. J, L, Ray Estate Corporation v. Steelman.
sented; and that the plaintiflf had not brought in its claim
within the time in said order directed.
The complaint claims for rent due May Ist, 1913, Novem-
ber 1st, 1913, and May Ist, 1914; and for taxes and water
rates that became due prior to 1913, and in that year; part
of which were paid by the plaintiff to the city of New York
on October 2d, 1913, and part on May 6th, 1914. That the
decree of the Orphans' Court bars creditors of their right of
action against the executor or administrator on all claims
that might have been presented within the time limited was
held on conclusive reasoning by the Supreme Court in Ryan
V. Flanagan, Admiriisirairix, 38 N, J, L, 161, and treated as
settled in the Court of Chancery. Seymour v. Goodwin, 68
N. J, Eg. 189. This disposes of the claim for rent due May
1st, 1913; as to that claim the plaintiff's action was barre^
and the defendant should have been allowed to plead the de-
cree instead of having his answer wholly stricken out. The
same course would clearly have been open as to the rent due
November Ist, 1913, if the answer had set up what seems
from the colloquy at the trial to have been the fact that the
decree was not entered until February 20th, 1914. Notwith-
standing this blunder, we think the defence was open as to the
rent due November 1st, 1913, and May Ist, 1914. Both were
liquidated demands which might be presented for allowance
under section 69 of the Orphans' Court act. Comp. Stat., p.
3834.
The question as to the taxes and water rates is more diffi-
cult. Most of tliese were in fact paid after February 20tb,
1914. If the liability of the Miller estate did not accrue until
the plaintiff paid the taxes and water rates to the munici-
pality, so much as was paid after the decree barring creditors
was not barred thereby since it could not be said that the
plaintiff had neglected to bring in his debt, demand. or claim,
within the time limited; it is only creditors who so neglect
that are barred. Such are the words of the statute, and such
was the decision of the Supreme Court in W air man v. Paal-
mier, Executor, 39 N. J. L, 340. On the other hand, if the
liability of the estate accrued immediately upon failure of the
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18G COURT OF ERRORS AND APPEALS,
Ray Estate Corporation v. Steelman. 90 N, J. L,
decedent to pay the taxes and water rates, there is no reason
why the plaintiff's claim therefor should not be presented
within the time limited. The demand, although tor damages
for breach of covenant, would be liquidated. The only aver-
ment before us is that Miller obligated himself to pay the
taxes and water rates. Probably, he was in default if he
failed to pay them when due. If so, the claim for taxes would
be barred to that extent. But this applies only to taxes and
water rates that accrued during his lifetime, t. e., prior to
May 6th, 1909. For defaults occurring after his death his
personal representatives would be liable either de honis testor
toris or individually, and although they might be entitled to
indemnity out of his estate, the claim therefor would not be a
claim against the decedent barred by the decree of the Or-
phans' Court. This claim, apparently, cannot be made against
the present defendant individually. His letters were not
issued until June 19th, 1914, as averred in plaintiff's com-
plaint and were ancillary only. The testator died in New
York ; the will was proved and administration had there, and
the leased property was situate there. The question may,
therefore, be presented, whether a mere ancillary administra-
tor can be sued for a breach of covenant by the domiciliary
executor that occurred after the decedent's death. This ques-
tion, however, is not presented by the present record.
The error in striking out the second answer led to a trial
on immaterial issues and thus affected the whole case. For
this error the judgment must be reversed and the record re-
mitted for a new trial.
For affir manure — Xone.
For reversal — The Chaxcellor, Chief Justice, Gar-
Risox, SwAYZE, Trenchard, Parker^ Bergen^ Minturn,
Kalisch, Black, White, Heppenheimer, Williams, Gard-
ner, JJ. 14.
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XOVEMBER TERM, 1916. 187
90 N, J. L, Stark v. Fagan.
NELSON STARK AND LAURA STARK, APPELLANTS, v.
MARK M. FA^AN, OVERSEER OF POOR OF JERSEY
CITY, RESPONDf:NT.
Argued November 27, 1916— Decided March 9, 1917.
Section 15 of the act of 1911 for the settlement and relief of the
poor (Pamph, L. 1911, p. 397) • prescribes two sets of conditions
under which the court may have jurisdiction to compel certain
relatives to maintain- any poor person, namely: (1) upon com-
plaint of the overseer of the poor where the overseer has made
an order for relief and maintenance which the relatives have
failed to perform, and (2) upon complaint by two freeholders,
where the indigent relative i« supported at public expense and
the overseer neglects to make the order. Where no order has
been made by the overseer and there is no proof that the indigent
relative was supported at public expense, the action must fail,
since the case is not within either class.
On error to the Supreme Court, whose opinion is reported
in 89 A\ J. L. 29.
For the appellants, Ralph E. I Aim.
For the overseer of the poor, John Ben thy.
The opinion of the court was delivered hy
SwAYZE, J. Although counsel for the appellants made a
very courageous argument to induce us to declare unconstitu-
tional a statute which in substance antedates the constitution
by nearly a century and has been on the statute book con-
tinuously since 1758 (2 Neinll 227), we think the only ob-
jection to the judgment worth considering is that the proceed-
ings fail to show the jurisdictional facts required by the act.
The statute now appears as section 15 of the act of 1911
for the settlement and relief of the poor. Pamph. L.y p.
397. The procedure prescribed is different from that pre-
scribed in the old act as amended in 1904. Comp. Siat., p.
4023, § 30. It requires that the father, grandfather, motlier,
grandmother, children and grandchildren of any poor person
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188 COUKT OF EREORS AND APPEALS.
Stark V. Fagan. 90 N. J. L.
not able to work, being of sufiBcient ability, relieve and main-
tain the poor person "in such manner as the overseer of the
poor shall order and direct;" and that if yiy of the relatives
named should fail to perform the order or direction of the
overseer with regard to the support of subh indigent relatives,
or should such indigent relative be supported at public expense,
and the overseer neglect to make such order or direction, it
shall be lawful for the court to make the order upon com-
plaint of the overseer or two freeholders resident in the mu-
nicipality. Two cases are thus provided for — first, where the
overseer has made an order for relief and maintenanpe which
the relatives have failed to perform; second, where the indi-
gent relative is supported at public expense and the overseer
neglects to make the order. In the firet case, it .seems the
court may act upon complaint of the overseer ; in the second
ease, upon the complaint of two freeholders. This is the
natural construction, since it can hardly be that an overseer
who was willing to make the complaint to the court would
fail to take the initial step of making the order for support ;
and it is equally improbable that the legislature meant that
the complaint should be made to the court by two freehold-
ers when the overseer was himself proceeding. It is, how-
ever, immaterial for the present case who is to make the com-
plaint ; the court has jurisdiction only in two cases, one where
the overseer has made an order for support which the relatives
have failed to perform, and the other whore the indigent rela-
tive is supported at public expense. This case is not within
either class. No order for eitpport is shown or averred to
have been made by the overseer, and there is no proof that the
child who was the indigent relative was supported at public
expense; for aught that appears the mother was performing
her maternal duty. If she was, the grandparents could not be
ordered to pay for the child's care and maintenance.
Jjet the judgment be reversed, with costs.
For affirmance — Xone.
For reversal — The Chancellor, Chief Justice, Swatze,
Bergex, Minturn, Kalisch, White, Heppenheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
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XOVEMBER TERM, 1916. 189
90 y, J. L. Van Hoogenstyn v. D., L. & W. R. R. Co.
VINNIE VAX HOOGENSTYN. RESPONDENT, v. DELAWARE,
LACKAWANNA AND WESTERN RAILROAD COMPANY,
At>PELLANT.
Submitted December 11, 191G— Decided March 5, 1917.
1. The Court of Errors and Appeals cannot directly review the
order of a single justice of the' Supreme. Court where he sits as
such and not as the court itself.
2. An appeal under section 2^ of the supplement of 1913 to the
Practice act cannot be effective until final judgment.
3. The allowance by a justice of the Supreme Court of a Mheas
corpus cum cau^a to remove an action from the Circuit Court or
Common Pleasv rests in his sound discretion and his order deny-
ing the writ is not appealable.
On appeal from an order made by the Chief Justice.
Application was made by the defendant to the Chief Jus-
tice, as one of the justices of the Supreme Court, for the
allowance of a wlrit of habeas corpus cum causa to remove
a suit from the Essex Common Pleas to the Supreme Court.
No reason was assigned for the removal. The Chief Justice
denied the application and the defendant appeals.
For the appellant, Frederic B. Scott.
For the respondent, William L. Brunyate.
. The opinion of the court was delivered by
SwAYZE^ J. This appeal presents several interesting legal
novelties. (1) It purports to be an appeal from the Su-
preme Court, but is in fact an appeal from a refusal by the
Chief Justice alone of an order which by statute is to be made
by one of the justices of the Supreme Court, not by the court
itself. (2) It is an attempt to have a case heard in this
court before final judgment in any court and upon a mere
refusal to issue a special form of process. (3) It is an at-
tempt to review a matter which is within the discretion of
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190 COURT OF ERRORS AND APPEALS.
Van Hoogenstyn v. D., L. & W. R, R. Co. 90 N. J. L.
the justice of the Supreme Court, to whom application is
made.
1. We hardly need cite authorities for the proposition that
this court cannot directly review the order of a single justice
of the Supreme Court, where he sits as such, and not as the
court itself. The proper practice is pointed out in Key v.
Paul, 61 N. J. L. 133. We cannot thus usurp the functions
of the Supreme Court. East Orange v. Hussey, 70 Id, 244.
.Even the Habeas Corpus act, in providing for an appeal, is
careful to provide that the proceedings shall be first removed
by certiorari into the Supreme Court; only the final de- ,
cision of that court can be removed into this. Gomp. 8tat,,
pp. 2651-53. We do not mean to say that this section is ap-
plicable to the present case; w<e cite it to show the care with
which the legislature, in a proceeding involving personal
liberty, preserved the constitutional functions of the Supreme
Court.
2. It is equally unnecessary to cite authorities for the
proposition that an appeal cannot be effective until final
judgment. .The appeal in this case is taken under the sup-
plement of 1912 to the Practice act. Section 25 permits an
appeal where the appellant would formerly have been en-
titled to a writ of error. Pamph, L., p. 382. That there could
be no relief by writ of error until after final judgment is ele-
mentary learning. Courts of law do not jiormit the intolerable
delay and expense that would arise if interlocutor}^ appeals
were permitted from every order that might be incidental to
the progress of ihe cause; by its very terms the writ of error
required a return only if judgment be given. The appel-
lant relies upon Defiance Fruit Co, v. Fox, 76 N. J, L, 482 ;
but that case came up only after final judgment. If it be
said that the appellant would thus be deprived of any bene-
ficial review, the answer is, first, that such deprivation doe?
not necessarily follow, and second, that the order may tk?
such that it ought not to be reviewed. The deprivation of
a review does not necessarily follow since there is an appeal
from the single justice to the court in han-c in one of its parts
under Key v, Paul ; since, also, if the appellant was entitled
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NOVEMBER TERM, 1916. 191
90 N. J, L. Van Hoogenstyn v. D., L. & W. R, R. Co.
to the order for a habeas corpus cum causa as a matter of
right as he was at common Jaw^, he might have issued his
writ and served it upon the Common Pleas and thus ousted
that court of jurisdiction, so that any judgment rendered
would be erroneous and subject to review. To this it may
be answered that the statute requires that the writ be duly
allowed by one of the justices. This is true, and is the
second and conclusive answer.
3. The history of the legislation as to the writ of habeas
corpus cum causa for the removal of causes into the Su-
preme Court, shows that this allowance was meant to be dis-
cretionary and was introduced for the correction of an abuse.
At common law the writ issued of common right (3 BJ. Com.
130), and it was usual for a defendant to sue out the writ,
keep it in his pocket without producing it, "till issue was
joined, the jury sworn, and the plaintiflE had given his evi-
dence; by which means the plaintifiE w)as not only put to
considerable expense, but the defendant, knowing before-
hand what proofs he could produce, had an opportunity of
opposing them by false witnesses." 1 Tidd Pr. 405. Aji
interesting history is given by Chief Justice Ewing in Chan-
dler V. Monmouth Bank, 9 N, J. L. 101. Some of these abuses
were corrected by the act of 1797, to which Chief .Justice
Ewing referred. Pat. L., p. 258. The right of removal
from the Common Pleas to the Supreme Court was limited
to cases where debt, damages, matter or thing in controversy
exceeded $200; no ^irit of habeas corpus was to be received
by the Common Pleas, nor any cause removed by such writ
after issue joined upon matter of law or of fact. By section
86 of the Practice act of 1799 {Pat. L., p. 364) the de-
fendant on removing a cause by habeas corpus was required
to enter into recognizance to the plaintiff in double the sum
demanded for the payment of the condemnation money and
costs in case judgment should pass against him. These pro-
visions applied only to the removal from the Court of Com-
mon Pleas. In the act of 1838 to facilitate the administra-
tion of justice (Pamph. L., p. 61), section 8 authorized the
removal to the Supreme Court by habeas corpus of suits or
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192 CQURT OF EREORS AND APPEALS.
Van Hoogenstyn v. D., L.' & W. R. R. Co. 90 N. J, L,
actions originally commenced in the Circuit Court. The
conditions were the same as already existed in the case of
removals . from the Common Pleas, but there was the signifi-
cant addition that the writ of hctbeas corpus should "be first
duly allowed by one of the justices of the said Supreme
Court." This provision was re-enacted in the revised statutes
of 1846 (Rev. Stat,, p. 201, § 7), and the old provisions as
to removal from the Common Pleas, with which the Circuit
Court was now coupled in the act, were re-enacted in the
Practice act. Rev. Stat., p. 941,. §§ 86 to 90, inclusive. So
the law remained • until the revision of 1874. Rev. 1877,
p. 882, § 222. The two previously existing acts were then
combined and the requirement that the writ should be
first duly allowed by one of the justices of the Supreme
Court became applicable to a removal from the Common
Pleas as well as to a removal from the Circuit Court. So the
law remains except for slight changes of wording intended'
to secure conciseness. Comp. Stat., p. 4112, § 198. We
think the legislature by the addition in 1846 of the require-
ment that the writ be allowed by a justice, meant to impose
a condition of substantial importance similar to the previous
limitation to the time before issue joined and the require-
ment of a recognizance, and that it did not mean merely to
impose on the justice the burden of allowing as a mere form
a writ that in substance was a writ of right. If it was sub-
stantial, the allowance involved some consideration by the
justice of the cause of removal and some determination by
him of the advisability of removal. No rules were prescribed
by the legislature and it was therefore left to his sound dis-
cretion. This result, clear upon the history and language
of the act, derives additional support from the fact that the
\^it of habeas corpus cum cwusa has fallen into disuse.
Prior to 1839, cases are not uncommon in our reports. This
is the first since that year to come Ijefore us. No doubt the
writ may still be resorted to when for any reason the Circuit
Court or Court of Common Pleas cannot be relied on to do
justice, or a change of venue is proper, but it ought only to
be allowed for good cause shown. No cause was shown or
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NOVEMBER TERM, 1916. 193
90 N, J. L. Ferber Cons. Co. v. Hasbrouck Heights.
%
even alleged in this case and the Chief Justice could not do
otherwise than deny the writ.
The result, however, is not an aflBrmamce of his order, but
a dismissal of. the appeal, for the reason that the order was
not appealable. The respondent is entitled to costs.
FERBER CONSTRUCTION COMPANY, RESPONDENT, v. THE
BOARD OF EDUCATION OF THE BOROUGH OF HAS-
BROUCK HEIGHTS, APPELLANT.
Submitted December 31, 1910— Decided , March 5, 1917.
1. Where damages may be sustained by the breach of a single
stipulation, and are uncertain in amount, and not readily sus-
ceptible of proof under the rules of evidence, then, if the parties
have agreed upon a sum of money for such breach and that sum
is not dispirot)ortionate to the presumable loss, it may be recov-
ered as liquidated damages.
2. Where in a suit for compensation unde^ a building contract
which provides for the completion of the building at a specified
time, and that for every day's defey in completion the contrac-
tor shall pay the owner $W as liquidated damageo, and the con-
tract also provides that there shall be no extension of time un-
/ less (1) the delay is caused by the neglect or default of the
owner, and unless (2) a written claim for extension is presented
to the architect within forty-eight hours after the occurrence of
the cause, and it appears on trial that performance was delayed,
then the burden of proving that the delay was caused by the
owner and that such claim for an extension was made, is upon
the contractor.
3. The powers of an architect under whose direction a building is
being erected, and the force and effect of any certificate he may
give, are determined strictly by the contract.
4. Where in a suit for compensation under a building contract it
appears that by the contract the architect had power by his
certificate to determine conclusively that the contract had been
completed, but had no power to determine how much the con-
tractor upon completion was entitled to be paid, the mere writ-
ten request of the architect that the owner pay a certain named
sum to the contractor on the completion of certain substantial
items therein specified, is no bar to the owner's counter-claim for
damages for delay in completion.
Vol. xc. 13
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194 COURT OF ERRORS AND APPEALS.
Ferber Cons. Co. v. Hasbrouck Heights. 90 N. J, L.
On appeal from the Bergen County Circuit Court.
For the appellant, Luce & Kipp,
For the respondent. Hart & Yanderwart.
The opinion of the court was delivered by
Trenchard, J. By written contract, dated May 27th,
1915, the plaintifiE below undertook to construct for the de-
fendant two school buildings for the contract price of $32,-
653, which, by extra work agreed upon pursuant \j(S contract
provisions, became sub&equently increased to $34,751.
The plaintiff in its pleadings, admitted that, in cash and
other agreed allowances, it had been paid the sum of $29,-
530.36, as the work had progressed; and also thai, of the
balance of the increased contract price, namely, of the sum of
$5,220.64, the defendant was entitled to retain for one year
the sum of $1,629.65, under the terms of the- contract, and so
claimed the sum of $3,590.99, with interest ^from November
29th, 1915, as the sum to which it was entitled.
The contract opntained a provision that the defendant
should be paid by the plaintiff $15 for each day that the com-
pletion of the .contract was delayed beyond October 1st, 1915;
and the only defence which the defendant made on the trial
was that the completion had been delayed fifty-nine days be-
yond October 1st, 1915, and that it was therefore entitled to
recoup $885.
The counter-claim thus insisted upon was adequately
pleaded by the defendant. In its answer thereto, the plaint-
iff pleaded {a) that completion was not delayed, and {h) that
any delay that there had been was the fault of the defendant
and that the plaintiff had complied with the provisions of the
contract relating to an extension of the time for completion
in such case. To this latter defence, the defendant replied
(1) by denying that any delay was caused by its fault, and
(2) by specifying the particular conditions which the con-
tract required the plaintiff to comply with, in order to be en-
titled to any extension of time, and denying that they had
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NOVEMBER TEEM, 1916. 195
90 y. J. L. Ferber Cons. Co. v. Hasbrouck Heights.
been complied with, its allegation being (1) that the plaintiff
had in no case presented any written notice of claim to the
architect within forty-eight hours, and (2) that the architect
has in no case granted any extension.
The facts necessary to be determined were, therefore (1),
the date when the contract was completed, and (2) if that
was after October 1st, 1915, whether or not the time for
completion had been duly extended for the corresponding
period.
At the trial the judge, ovei: the defendant's objection,
granted the plaintiff's request to direct a verdict for the full
amount claimed by the plaintiff,, and the defendant appeals
from the consequent judgment.
We are of the opinion that the learned trial judge erred in
directing a verdict for the full amount of the plaintiff's claim.
We think that the evidence required at least that the defend-
ant's counter-claim be submitted to the jury. ,
Where, as here, damages may be sustained by the breach
of a single stipulation, and are uncertain in amount, and not
readily susceptible of proof under the rules of evidence, then,
if the parties have agreed upon a sum of money as the measure
of compensation for such breach, and that sum is not dispro-
portionate to the presumable loss, it m.ay be recovered as
liquidated damages. Monmovth Park Association v. Wall is
Iron Works, 55 N. J. L, 132; Van Buskirk v. Board of Edu-
cation, 78 Id. 650.
There was testimony at the trial tending to show that the
contract was not completed until after October Ist, 1915.
The testimony of Mr. Ferber was, that on October 1st,
1915, there was work to the value of $4,697 remaining to be
done ; that some of this may have been completed by October
7th; but that the hardware was not placed in the buildings
until November 29th, 1915; and that even then there re-
mained some painting and other work tb be done. If this
were true,. it is quite clear that the defendant was entitled to
some part of its counterrclaim, unless it appeared that the
time for completion had been extended.
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196 COURT OF ERRORS AND APPEALS.
Ferber Cons. Co. v. Hasbrouck Heights. 90 N, J. L.
We think it did not conclusively appear that the time for
completion had been extended.
Under the provisions of the contract, there could be no ex-
tension of time unless (a) completion was delayed by the act,
neglect or default of the owner, or of the architect, or of some
other contractor employed by the owner, or by damage caused
by fire, or other casualty for which the contractor was not re-
sponsible, or by combined action of workmen in nowise caused
by or resulting from default or collusion on the part of the
contractor; and also unless (&) a written claim for an exten-
sion for any such cause was presented by the contractor to the
architect within forty-eight -hours after the occurrence of such
cause; and also unless (c) the architect thereupon determined
that an extension of time should be allowed and fixed the
period thereof.
The plaintiff's contention is that the delay was caused by
the neglect or .default of the defendant. Now, it having ap-
peared that there was a delay in performance, the burden of
proving that the delayed performance was caused by the
neglect or default of the defendant, and that a timely claim
for an extension was made in conformity with the contract
provisions, was upon the plaintiff. Turner v. Wells, 64 N, J.
L, 269 ; Feeney v. Bardsley, 66 Id. 239.
We incline to think that there was no evidence tending to
show that completion was delayed by an}* neglect or default
of the owner or any agent of his. But if there was, it is per-
fectly certain that there was no evidence tending to show that
any claim was made for an extension as required by the con-
tract, and hence no extension was or could have been allowed.
We also think there was no conclusive evidence of waiver of
the contract provisions in regard to timely performance, or
extension of time, or of the defendant's right to compensation
for delay.
The view of the trial judge was to the contrary.
He seems to have based his conclusion upon a written re-
quest addressed by the architect to the defendant on Novem-
ber 29th, 1915, that defendant pay to the plainiiff $5,220.55,
when certain work therein mentioned had been completed by
the plaintiff.
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NOVEMBER TERM, 1916. 197
90 N, J. L. Ferber Cons. Co. v. Hasbrouck Heights.
We pause to remark that this letter was evidently written
under a misapprehension, because it is conceded that not even
upon full completion would such amount be due.
But, apart from that, we think the view of the trial judge
erroneous. His holding necessarily asserted that this docu-
ment conclusively established either (1) that the contract had
been performed, or (2) that the time for performance had
been legally extended for a period equivalent to any delay.
We think it did not so establish either proposition.
The powers of the architect under whose direction a build-
ing is erected, and the force and effect o*f any certificate he
may give, are determined strictly by the contract. Newark v.
New Jersey Asphalt Co., 68 N, J. L. 458; ^Yelch v. Hvh-
schmitt, 61 Id. 57; Oerisch v. Herold, 82 Id. 605; Machin-
son V. Cordon, 55 Id. 564.
A perusal of the provisions of the contract in question dis-
closes that thereby the architect had power by his certificate
. to determine coiieluSlvely that the contract had been com-
pleted. But that he did not do. He did not certify that it
had been completed either on October Ist, 1915, the date, re-
quired by the contract, or on November 29th, 1915, the date
of his certificate, or, in fact, that it had been completed on any
other date. On the contrary, he stated therein that it had not
been finished in several substantial particulars. Under the
contract he had no authority to determine how much the con-
tractor, upon completion, was entitled to be paid. As a con-
sequence, it follows that the so-called certificate was no bar to
the defendant's counter-claim for damages for delay in the
completion of the buildings, and that the direction of a ver-
dict for the full amount of the plaintiff's claim was therefore
improper.
The judgment of the court below will be reversed and a
venire de novo awarded.
For affirmance — None.
For reversal — ^The Chancellor^ Chief Justice, Gar-
rison^ SwAYZE, Trench ARD^ Parker, Bergen, Minturn,
Kalisch, Black, White, Heppenheimer, Williams, Gard-
ner, JJ. 14.
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198 COURT OP ERRORS AND APPEALS.
Heinz v. D., L. & W. R. R. Co. 90 N. J. L.
PHILIP D. HEINZ, RESPONDENT, v. THE DELAWARE,
LACKAWANNA AND WESTERN RAILROAD COMPANY,
APPELLANT.
Submitted December 11, 1916— Decided March 5, 1917.
1. Where a defendant in an action in the Supreme Court, tried at
Circuit, elects to apply for and obtain a rule to show cause why
a new trial shall not be granted, and no points are expressly re-
served in the rul^ he is barred from taking or prosecuting an
appeal except upon matters of law arising upon the face of the
record.
2. On defendant's rule to show cause why a verdict in the Supreme
Court should not be set aside as excessive and a new trial granted,
that court has power, in the exercise of its discretion, to give
the plaintiff the option of accepting a reduced verdict, or being
put to a new trial. This power exists not only in actions based
upon contracts, but also in actions for unliquidated damages for
torts, and when, in such a case, the plaintiff has filed a remittUur
of so much as tlie court deemed excessive,'^ and judgment has been
entered for the reduced verdict, this court will not review the ac-
tion taken by the Supreme Court on the appeal of the party in
whose favor the reduction was made.
3. Although the appellate court has the power to dismiss an appeal
which is manifestly and palpably frivolous and without merit, it
will not, as a rule, dismiss on such ground, in the absence of a
motion for that purpose, but will affirm the judgment below.
On appeal from the Supreme Court.
For the appellant, Frederic B. ScoU.
For the respondent, WUliam H, Morrow,
The opinion of the court was delivered by
Trenchard, J. The plaintiff below had the verdict of a
jury at the Sussex Circuit in an action in the Supreme Court
for damages to his person and property in a railroad cross-
ing accident.
The defendant obtained a rule to show cause why a new
trial should not be granted. No points were reserved in
the rule.
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NOVEMBER TERM, 1916. 100
90 y. J, L. Heinz v. D., L. & W. R. R. Ck).
From the judgment record it appears that the Supreme
Court, after a hearing, determined that the verdict of $11,300
was excessive, and ordered that it should be set aside and a
new trial be had imless the plaintiff remitted the sum of
$1,355 from the verdict.
Thereupon the plaintiff remitted such sum of $1,355 and
accepted the sum of $9,945 in lieu of such verdict, and
judgment was entered accordingly.
The defendant appeals from that judgment.
We are of the opinion that the appeal is so clearly with-
out merit as to justify us in characterizing it as frivolous.
The legislature has declared that the "granting to a party
a rule to show cause why a new trial shall not be granted,
shall be a bar against him to taking or prosecuting an ap-
peal, except on points expressly reserved in said rule."
Pamph. L. 1912, p. 399, nUe 83.
Since the defendant elected to apply for and obtain the
rule, and since no points were expressly reserved in the rule,
the defendant is barred from taking or prosecuting an .ap-
peal, except upon matters of law arising upon the face of
the record.
The defendant, however, contends that in an action such
as this, sounding in tort for unliquidated damages, the Su-
preme Court was without power to deny a new trial upon
condition that the plaintiff should remit a part of the ver-
dict, and assigns such action as a ground of appeal.
It is quite true, as pointed out in Noxon v. Remington,
61 Ail. Rep. (Conn.) 963, that upon this point the practice
is not uniform in the different jurisdictions.
In England the power is denied in Watt v. Watt, L. R.
App. Cos. (1905) 115, overruling Belt v. Lams, 12 Q. B.
D. (1884) 356,
On the other hand, the practice of requiring the plaintiff
in such cases to submit to a new trial unless he remits a part
of the verdict, the amount of which is clearly excessive, is
sanctioned by the Supreme Court of the United States and
by many of our state courts. Arlcansas Cattle Co. v. Mann,
130 V. S. 69; Chicago City R. Co. v. OemmUl, 209 77/.
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200 COURT OF ERKORS AND APPEALS.
Heinz v. D., L. & W. R. R. Co. BON, J. L.
638; Landry v. New Orleans Shipwright Co., 112 La. 515;
Ad'coch V. Oregon R. & N. Co. (Or.), 77 Pac. 78; Bmley v.
Cascade Timber Co., 35 Wash. 295; Ingraham v. Weidler,
139 Cal. 588 ; Noxon v. Remington, supra.
Many cases from different states are cited in 18 Enc. of
P. & P. 125-127, in support of the statement in the text
that the power of a court to permit or require the entry of
a remittitur in actions for unliquidated damages for torts,
when the damages awarded by the jury are excessive, exists
by the great weight of authority.
In this state ^he Supreme Court undoubtedly has power,
on defendant's rule to show cause why a verdict in that
court should not be set aside and a new trial granted, to give
the plaintiff the option of accepting a reduced verdict, or
being put to a new trial. That power has been frequently
exercised, not only in cases based upon contracts (New Jer-
sey Flax Cotton Wool Co. v. Mills, 26 N. J. L. 60; Budd
V. BUer, 27 Id. 43 ; Rafferty v. Bank of Jersey City, 33 Id.
368j and Newell v. Clark, 46 Id. 363), but also in actions
for unliquidated damages for torts. Jackson v. Traction Co.,
59 Id. 25; May v. West Jersey, &c., R. R. Co., 62 Id. 67;
Raierty v. Erie R. R. Co., 66 Id. 444, and Baldwin v.
Thompson, 70 Id. 447.
So well settled in this state is the power of the trial court
to put the plaintiff to an election of accepting a reduced ver-
dict or a new trial, in order to do substantial justice and
save the expense of a new trial, that hitherto it seems not
to have been seriously questioned.
Of course the court is within the limits of its authority
when it sets aside a verdict of a jury and grants a new trial
where the damages are palpably excessive, and no appeal
lies tlierefrom.
So, too, of course, the refusal to grant a new trial is within
the power of the court, and is no ground for appeal. De
Mateo V. Perano, 80 N. J. L. 437.
In considering whether a new trial shall be granted upon
the ground that the verdict is excessive, the trial court neces-
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NOVEMBER TEEM, 1916. 201
• 90 N. J. L. Heinz v. D., L. & W. R. R. Co.
sarily determines^ in its own mind, whether a verdict for a
given amount would be Excessive. The authority to deter-
mine whether the damages are excessive implies authority
to determine when they are not of that character. To re-
quire a plaintiff to submit to a new trial, unless by remit-
ting a part of the verdict he removes thq objection that the
damages are excessive, certainly does not deprive the defend-
ant of any right or give it any cause for complaint. It is
in no sense an impairment of the constitutional right of
trial by jury. Arkansas Cattle Co, v. Mann, supra; Noxon
V. Remington, supra. Since the reduced sum required to be
paid by. the judgment, after the remittitur has been filed, is a
part of the damages assessed by the jury, the defendant cannot
be heard to say that such reduced damages were not assessed
by the jury.
But the defendant contends that the plaintiff could not
have been required to remit a part of his verdict except
upon the theory that the jury in finding their verdict were
governed by passion or prejudice, and that, therefore, it
should have been set aside as unfit for the basis of a
judgment
Undoubtedly if the Supreme Court had entertained such
view of the motives and conduct of the jury, it would have
set aside the verdict and submitted the case to another jtfty.
But with that matter we are not concerned on this appeal.
Our function is merely to ascertain whether there is any
error apparent upon the face of the record which is subject
to review on this appeal. We think there was none.
As w<e have pointed out, the refusal of a new trial in the
Supreme Court is not subject to review by this court. That
is a matter resting in the discretion of the trial court. De
Mateo V. Perarw, supra. And it is equally beyond
our authority to review, upon the appeal of the party against
whom a verdict is rendered, an order discharging a rule to
show cause why a new trial should not be granted, after the
plaintiff, with leave of the court, has remitted a part of the
verdict. Whether a verdict should be entirely set aside as
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203 COURT OF ERRORS AND APPEALS.
Heinz v. D., L. & W. R. R. Co. 90 N, J, L.
excessive, or as the result of passion or prejudice, or whether
it should stand after being reduced to such an amount as
would relieve it of the imputation of being excessive, are
questions addressed to the discretion of the trial court and.
cannot be reviewed on appeal at the instance of the party in
whose favor the reduction was made. De Mateo v. Perano,
supra; Flanigan v. OuggenJieim Smelting Co., 63 N. J.
L, 647; Arkansas CaMle Co. v. Mamt, supra. If the Su-
preme Court had discharged the rule and entered judg-
ment for the full amount of the verdict, the defendant
on appeal to this court could not have questioned the judg-
ment as excessive. There being no points reserved in the
rule, we could only, in that case, have considered matters
of law arising upon the face of the record. And we can do
no more when the defendant brings to us a record, showing
that the court below has, in the exercise of its discretion,
compelled the plaintiff, as a condition to its refusing a new
trial, to remit a part of the verdict.
No doubt this appeal, being manifestly and palpably friv-
olous and without merit, was subject to. dismissal. But no
such motion was made, the plaintiff below apparently pre-
ferring an affirmance of his judgment. In such case the
latter course will be pursued.
The judgment below will be affirmed, with costs.
For affirmance — The Chancellor, Chief Justice, Gar-
rison, SwAYZE, Trenchard, Bergen, Black, White, Hep-
PENHEi^fER, Williams, Gardner, JJ. 11.
For reversal — None.
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NOVEMBER TERM, 1916. 203
90 N. J. L, Bouquet v. Hackensack Water Co.
MAXIME BOUQUET, APPELLANT, v. HACKENSACK WATER
COMPANY, RESPONDENT.
Argued March 7, 1917— Decided June 18, 1917. •
1. In order that an individual may maintain an action for a public
nuisance, he must prove that he thereby suffers a particular,
direct and substantial injury. Citing 19 E, R. C. 263.
2. A riparian owner on a navigable stream suffers no peculiar in-
jury as such because the stream has been made less pleasant
for boating, fishing, and bathing. The injury to him is the same
as that to any other member of the public, and for the reason
that his right qua riparian owner is that of access, and not a
special right to use the stream in any different manner than
others may use it.
3. A judgment for appellant for nominal damages, although er-
roneous, will not be reversed if he was not entitled to any dam-
ages.
On appeal from the Supreme Court.
For the appellant, Arthur T, Dear.
For the respondent, Edwin F. Smith,
The opinion of the court was delivered by
Pakkek, J. Appellant, plaintiff below, claims to be legally
aggrieved by the action of the trial judge in directing a ver-
dict in his favor for nominal damages of six cents. *
His case, as finally submitted, was that he owned land on
the easterly side of the Hackensack river, a iiavigable stream,
on which land was a dwelling-house occupied by him and used
for the keeping of summer boarders; and that prior to the
summer of 1914 he had many boarders and did a profitable
business, but in that year and thereafter the water in the river
in front of his place was fouled by the act of the defendant,
so that it was not so pleasant as it had been to look at or so
available for fishing, boating and swimming, and that in
consequence the boarders, who had been attracted by the view
and the boating, fishing and swimming, were caused to re-
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204 COURT OF EBEORS AND APPEALS.
Bouquet v. Hackensack Water Co. 90 N, J, L,
main away, whereby plaintiflf suffered material loss. There
was some claim of an odor from the water, but this was dis-
regarded at the trial and is not now urged. The view taken
by the trial court was that on the assumption that plaintiff^s
title extended to high-water mark in the river, the rights, if
they existed, of swimming in the river, boating on it, and
looking at the view, wore not special rights of plaintiff qua
riparian owner, or of his guests claiming under his license,
but were rights of a purely public character, and that in their
infringement plaintiff suffered simply as a member of the
public and could not claim special damage in a private
action.
Our examination of the case satisfies us that plaintiff was
in no way legally injured by this ruling. It is not claimed
that he was entitled to recover in this suit as a member of the
public, for the deprivation of benefits because his guests
found the river no longer pleasant for boating, fishing or
swimming. The claim must rest, if at all, on the injury re-
sulting to plaintiff as an abutting owner. But the right of an
owner of the ripa of navigable water is that of access ; and if
th&t be imlawfully interfered with he may maintain a special
action. Stevens v. Paierson cmd Nevxirk Railroad Co., 34
N, J, L. 532, 553. Apart from this, he has no peculiar right
to the use of the water or of the shore. Ihid. 542, 543 ; Whit-
more v. Brown (Me.), 65 AtL Rep. 516, 521. Plaintiff, as
owner of land on or near the river, may have more occasion
to make use of the public rights of boating and (if there be
such rights) of fishing and bathing, but those rights remain
public and not private.
The rule, as we understand it, is this : "That in order that
an individual may maintain an action for a public nuisance,
he must prove that he thereby suffers a particular, direct and
substantial injur}^*' Benjamin v. Storr, 19 E. R. C. 263.
The same rule, in different phraseology, will be found in
Mehrhof v. Delaware^ Lackwwarma and Western Railroad Co.,
51 N. J. L. 56 (at p. 57). It may be conceded that plaintiff's
injur}' was substantial; there is more doubt whether it was
direct, but that may also be conceded for the sake of argu-
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NOVEMBER TERM, 1916. 205
90 y. J. L. Bouquet v. Hackensack Water Co.
ment; it was not, however, particular, as we have already
seen. The result is that the trial judge would have been jus-
tified in awarding a nonsuit or in directing a verdict for the
defendant.
All this has been predicated on the assumption that plaint-
iff exhibited a title running down to high-water mark. The
case does not, in our judgment, show that he gave proof of
any such title. His deed, offered in evidence, called for cer-
tain lots on a designated map (which map was not put in
evidence), and the only mention of the- river was contained in
a clause in the deed reading as follows :
^Together with all right, title and interest of the party of
the first part in and to the land lying between high-water
mark of the Hackensack river and the middle of Riverside
avenue, as shown on said map, lying directly opposite or in
front of such of the property above described as has a frontage
on said Riverside avenue."
There was no proof of what that right, title and interest
• was, or that there was any at all. It affirmatively appeared
that there was a strip several feet wide between Riverside
avenue and the river. If plainti^ did not own this strip, his
right even to access to the river was no better than that of an
owner of land a long distance away, or one not an owner at
all. But as plaintiff might peradventure have shown some
title as a riparian owner, we have preferred to treat the case
as if such were the* fact.
Inasmuch as plaintiff was not harmed by the direction in
his favor of a nominal verdict, the judgment will be affirmed.
Sypherd v. Myers, 80 N. J. L, 321 ; Butterhof v. Butterhof,
84 Id. 285.
For affirmance — ^Thb Chancellor, Garrison, Swayze,
Tbenchabd, PARKi», Berqen, Minturn, Kalisch, Black,
Heppenheimeb, Williams^ Gardner, JJ. 12.
For reversal — ^White^ Taylor, JJ. 2.
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20G COURT OF ERRORS AND APPEALS.
Jerolaman v. Belleville. 90 N. J. L,
THEODORE JEROLAMAN, RESPONDENT, v. THE TOWN OF
BELLEVILLE, APPELLANT.
Submitted December 11, 1916— Decided June 18, 1917.
1. A municipality has no right, by artificial drains, to divert sur-
face water from the course it would otherwise take, and cast it,
in a body large enough to do substantial injury, on land where,
but for such artificial drains, it would not go.
2. Evidence legal for some purpose cannot be excluded because a
jury may erroneously use it for another purpose- The opposite
party *s protection against this is to ask for cautionary instruction.
On appeal from the Essex Circuit Court.
For the appellant, Harold A, Miller.
For the respondent, Pitney, Hardin £ Skinner.
•
The opinion of the court was delivered by
Pabker, J. The suit wjas for overflowing plaintiff's lands
by water, and the complaint, in two counts, alleged two dif-
ferent dates when such overflow occurred. The jury found
for plaintiff in the sums of $179.18 on the first count, and
$2,935.66 on the second count
Plaintiff was the owner and occupier of a coal and lum-
ber yard on the nprthwest corner of Cortlandt and Jerola-
man streets in Belleville., Jerolaman street runs substan-
tially east and west. One block west of Cortlandt street and
running parallel with it is the Paterson and Newark branch
of the Erie railroad. A block further west, up a sharp grade,
is Washington avenue, an important highway between New-
ark and Paterson, Next west of Washington avenue, and
still further up the hill, is linden avenue. North of Jerol-
aman street and east of Linden avenue was a spring, whose
overflow ran generally slightly south of east, always to the
north of Jerolaman street, passing under Washington ave-
nue down the hill, under the railroad through a culvert, and
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NOVEMBER TERM, 1916. . 207
90 y. J. L. Jerolaman v. Belleville.
across plaintiff^s lands to the comer of Jerolaman and Cort-
landt streets and so to the Passaic river. Previous to the
occurrences giving rise to the suit, the town had adopted a
general plan of regrading, which involved, arfiong other things,
the elimination of a *Tiump'^ in Jerolaman street abov€
Washington avenue, which had retarded the flow of water
dowtn the hill; and these changes, slq claimed by plain tifE,
led to the flooding of Jerolaman street in heavy rains, which
resulted in cutting gullies and carrying away of soil, so that
the town undertook to prevent this by banking the east side
of Washington avenue, which prevented the water from
running down Jerolaman street, and, as plaintiff claimed,
turned it in large measure into the natural water course
already described. The case presented under the first count
was that in the storm conditions of November 11th, 1911,
this artificial diversion caused an overflow of plaintiff's land
whereby he was damaged.
The second count, as amended, rested on the same acts of
defendant in diverting the water, and in addition charged
that early in 1912 the town connected the natural water
course with a covered drain just east of plaintiff's premises,
and put catch bars across the opening, so that in March,
1912, during storm conditions, the excessive volume of
diverted water flooded plaintiff's premises as before and. in
addition the opening of the covered drain became blocked
by debris caught by the bars and the water backed up on
plaintiff's premises.
1. There was a motion to nonsuit on each count, and it
is now urged that there should at least have been a nonsuit
as to the first count. For this, the case of Miller v. Morris-
town, 47 N. J. Eq, 62, aflBrmed in this court in 48 Id. 645,
is relied on as the leading authoi'ity. The argument pro-
ceeds on the assumption that plaintiff's evidence showted
nothing more than a regrading of streets and diversion of
water consequent thereon. If this were true, defendant's
point would be well taken under the first branch of the Mil-
ler case; but the evidence tends to show in addition, and
the jury evidently found, that water fiowing down Jerola-
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1
208 COURT OF ERRORS AND APPEALS.
Jerolamatt v. Belleville. 90 A". J. L.
man street had been intentionally diverted therefrom by
special provision for that purpose and thrown on plaintiff's
land. This 'wias a very different thing from mere regrading,
and brought the ease under the second branch of the Miller
case where it was held that such conduct is an actionable
injury. The law was stated by the court in the precise
language of the syllabus to the case cited, on both branches,
and the jury was .justified in finding that the conditions of
the second proposition were met. The same rule was laid
down by this court in the later case of Kehoe v. Rutherford,
74 N. J. L. 659, where the conditions closely approximated
those in the case at bar. If the plaintiff's evidence were be-
lieved, the defendant for its own convenience diverted the
water naturally flowing down Jerolaman street and turned
it over the plaintiff's laad. This it had no right to do with-
out making proper compensation.
2. The same considerations dispose of the point that there
should have been a direction of verdict for the defendant.
There was a fair conflict of evidence, and a direction would
have been improper.
3. Error is further charged in that the court permitted
evidence of changes made by defendant in the drainage
system after the injuries complained of.
Ordinarily it may be conceded such evidence is irrelevant
and injurious, in tending to operate as an admission of guilt
In the present case, however, it came in on the cross-exami-
nation of defendant's engineer, who had denied in his testi-
mony that the flood water had run dowtn the street in any
such quantity as to do material damage to the roadway and
lead defendant to provide for it in other ways. This was a
material point in plaintiff's case, and to meet it he was en-
titled to bring out that defendant had taken care of this
storm water by a special sewer; the inference, of course,
being that unless there were a material amount of storm water,
the culvert would not have been built, and its building whs
evidential of the incorrectness of the witness' statement. In
this aspect it was competent; its incidental harmfulness as
tending to show an admission of liability could and should
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NOVEMBER TERM, 1916. 209
90 A". ./. L. Jerolaman v. Belleville.
have been met by a proper request to limit its application
in the charge. Trenton Pass. Railwcuy Co. v. Cooper, 60 N.
J, L. 219, 223; Perry v. Levy, 87 Id. 670.
4. Finally, it is claimed that the court erred in charging
the jury as follows in response to plaintifE's request:
"If the jury find that, at the time complained of, water
which in its natural course according to the grade of streets
and levels of adjacent property, would not have reached
plaintiff's land, was artificially collected and diverted by the
town to the plaintiff's land, to his damage, it will not ex-
cuse the town that the water years before, by another route,
had reached the watercourse that ran through plaintiff's
land. In other words, if on the 11th of November, 1911,
and the 12th and 13th of March, 1912, water which would
not have come to the plaintiff's land in any way was thrown
upon it, the fact that at some prior time it had come upon
the plaintiff's land by some other course is past history
which does not concern the court and jury.^'
The objection to this instruction, stated in the language
of appellant's brief, is this: That the jury were told "that
they were not concerned with the question whether the same
volume of water, from the same sources, prior to the acts
of defendant would or would not have reached plaintiff's
land by the natural wlatercourses of the surrounding
country."
If by "acts of defendant" counsel means the general sys-
tem of regrading, rather than the particular act of diversion
at the crossing of Washington avenue, the charge was cor-
rect. If, as was held in Miller r. Morristown, the town might
lawfully adopt a new set of grades causing incidental
changes in drainage, it is that system, and not, the natural
drainage of an uninhabited country to which owners are to
conform and which they are entitled to assume will be main-
tained. If by "acts of defendant" the particular diversion
is meant, we answer that a reading of the instruction will
demonstrate that no such interpretation as that indicated by
appellant can reasonably be placed upon it; for the com-
parison is between the "natural course, according to the grade
Vol. xc. 14
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210 COURT OF ERRORS AXD APPEALS.
Kratz V. D., L. & W. R. R. Co. 90 X. J, L.
of streets and levels of adjacent property/' and the '^artificial
collection and diversion to plaintiff's land."
The judgment will be affirmed.
For affirmance — The Chancellob, Chief Justice, Gar-
rison, SwAYZE, Trenchard, Parker, Bergen, Minturn,
Kalisch, Black, White, Heppenheimer, Williams, Tay-
lor, Gardner, JJ. 15.
For reversal — None.
GUSTAVE KRATZ. RESPONDENT, v. THE DELAWARE,
LACKAWANNA AND WESTERN RAILROAD COMPANY,
APPELLANT.
Submitted December 11. l!)ir — Decided March 5, 1917
The provisions of both chapter 35 and chapter 90 of the laws of 1909
are applicable to cases at railroad grade crossings which are pro-
vided with safety gates, or other devices for the warning of
travelers. ,
On appeal from the Morris Circuit Court.
For the appellant, Frederic B, Scott.
For the respondent, James H. Bolitho.
The opinion of the court was delivered by
Parker, J. This case arose out of a railroad crossing acci-
dent, and on the trial the plaintiff had a verdict and judg-
ment. The material circumstances of the accident were that
the plaintiff was crossing the railroad on foot within the
lines of a public highway, as lie testified, and was struck by a
train just as he was leaving the crossing. The defendant com-
pany had installed safety gates which, as the plaintiff claimed,
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NOVEMBER TERM, 1916. 211
90 N, J, L. Kratz v. D., L. & W. R. R. Co.
and as the jury were entitled to find, were up at the time he
attempted to cross.
The sole ground of appeal presents a somewhat lengthy ex-
tract from the charge of the trial court which need not be
quoted at length in view of the character of the exception
taken by counsel at the trial, and which is as follows : "I de-
sire to note an exception to your honor's charging that chapter
96, laws of W09, applies to this case ; my thought being that
if any statute applies it is chapter 35, laws of 1909, which, to
my mind, is essentially different and more beneficial to the
defendant." The only inference to which this language of
counsel is susceptible is that counsel wished to point out to
the court his view that it was erroneous to instruct the jury'
that chapter 96 was applicable, although chapter 35 might be,
and probably was, applicable.
The entire argument of appellant rests upon the proposition
just quoted, and the sole ground now urged in support of the
proposition that chapter 96 was inapplicable, is contained in
the first paragraph of the argument in brief of counsel, viz. :
"There was no evidence in the entire case that the appellant
was either operating under or had complied with chapter 96
of the laws of 1909, with respect to posting a notice at such
crossing, specifying during what liours the gates would be
operated, and, in view of that fact, it is contended that the act
in question was not the act applicable to the situation shown
by the instant case."
It appeared in the testimony that there were safety gates
which at the time of the accident were under the control of a
towerman employed by the defendant who testified that he
was Actually operating them at that time as occasion required.
There does not seem to be anything in the testimony indicat-
ing whether the company had installed any such sign or no-
tice as described in the statute. If there had been such a no-
tice, and the accident had occurred within the hours of non-
operation specified therein, it is safe to say that the defendant
would have proved that fact ; on the contrary, the claim seems
to be that because there was no evidence of the existence of
such notice, the case should be treated as though there were
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21? COURT OF ERRORS AND APPEALS.
Phillips V. Lonirport. 90 N. J. L.
in fact no such notice, and from these premises it is argued
that the statute, chapter 96 of the laws of 1909, does not ap-
ply. The contrary, however, was decided in the recent case of
Brown v. Erie Railroad Go,, 87 N. J. L. 487 (at p. 495), in
which case it was held that not only chapter 35, but also
chapter 96, are applicable to such a situation.
In view of this decision the trial court was plainly right in
instructing the jury that chapter 96 applied, and, as the re-
mainder of counsel's brief (there was no oral argument) is
based wholly upon the alleged error of this instruction, it be-
comes unnecessary to deal with it in detail. The judgment
of the Circuit Court is therefore affirmed.
For affirmance — The Chancellor, Chief Justice, Gar-
rison, SwAYZE, Trenchard, Parker, Bergen, Minturn,
Kalisch, Black^ White, Heppenheimer, Wii^liams,
Gardner^ JJ. 14.
For reversal — Xone.
ARVINE n. PHILLIPS, PROSECUi^R (MAX AND SARAH
BAMBERGER SEASHORE HOME, APPELLANT), v. BOR-
OUGH OF LONGPORT, RESPONDENT.
Argued November 24, 1916 — Decided March 5, 1917.
1. The act of 1881 {Pamph L„ p. 194 ; Comp, Stat., p. 5171), provid-
ing for reassessment under direction of the Supreme Court when
the original assessment is set aside on certiorari for defects in the
proceedings, is applicable in all cases where a valid assessment
could have been made at the time it was attempted, or could be
made at the time of pronouncing judgment on a certiorari of the
defective assessment.
2. On an appeal corresponding to writ of error at common law,
every intendment is in favor of the correctness of the judgment
below, and doubt will not lead to a reversal.
3. On appeal corresponding to a writ of error, the appellate court
cannot properly deal with any other state of the case except that
considered by the court below.
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NOVEMBER TERM, 191&, 213
90 N, J, L. Phillips v. Longport.
On appeal from the Supreme Coiirt.
For the appellant, Clarence L, Cole.
For the respondent, Harry Wootton,
The opinion of the court was delivered by
Parker, J. The appeal involves an assessment on the real
estate of appellant Seashore Home for benefits resulting from
the construction of jetties built to protect the ocean front.
The original assessment was set aside at the suit of the prose-
cutor, Phillips, who is not a party to the present appeal.
A reassessment was then made and on certiorari was like-
wise set aside. Thereupon the Supreme Court, acting no
doubt by virtue of the act of 1881 {Pamph, L., p. 194;
Comp. Stat., p. 5171, § 191), appointed its own commission-
ers to make a third assessment; and on the coming in of
their report, the present appellant objected to its con-
firmation, on the grounds, as now alleged — first, that the
court was without power to appoint its commissioners to
reaf^ss in such a case; and secondly (as claimed), that
the new assessment, professedly reached by adopting per-
centages of valuation of the respective properties by a uni-
form rule, had charged such percentage as to appellants, not
only on the value of their land, but also on that of their new
building erected after the improvement was made. The
court overruled all objections and confirmed the report, and
its action in so doing is challenged by this appeal. A re-
viewi of such action by appeal corresponding to a writ of
error is obviously proper (Eames v. Stiles, 31 N. J. L. 490),
and has the sanction of precedent. Moran v. Jersey City,
58 Id. 653.
The denial by appellant of the power of the Supreme
Court to appoint its own commissioners to reassess is
grounded, if we understand the argument of counsel, on the
provision of the Borough act requiring that the commission-
ers of assessment in a borough shall be freeholders and resi-
dents in that borough, but at the same time providing that
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214 COUBT OF ERRORS AND APPEALS.
Phillips V. Ix>ngport. 90 A' . J. L.
they shall not be interested in the matter of the aseescraent
Comp. Stat, p, 259, § 52; Pamph, L. 1897, p. 310; Pamph.
L. 1900, p, 402. Baaed on the assumption that the original
assessment included all the land in the borough as to some
extent benefited by protection from the sea, the argument
now is, that as every freeholder and resident was (as claimed)
interested in the assessment, no commissioners could be
appointed who would be qualified under the statute, so that
no lawful assessment could be made by the borough, and
the act of 1881 had no basis upon which to operate.
Without conceding the inapplicability of the act of 1881
in such a supposed case, it is enough to say that that case is
not now shown to exist. The original assessment is not laid
before us; and it does not otherwise appear that all the land
in the borough was included therein. Hence there is no
reason to conclude that disinterested commissioners could
not have been obtained. If they were available, but in fact
one or more of the commissioners who acted were interested,
it is well settled that the act of 1881 would apply. The
rule is that the Supreme Court may act, not only in cases
wlhere a valid assessment could have been made at the time
it was attempted, but also in cases where such valid assess-
ment could be made at the time when the Supreme Cdurt
pronounces its judgment in reviewing the defective assess-
ment. Brewer v. Elizabeth, 66 N. J. L. 547; Elizabeth v.
Meeker, 45 Id. 157; Brown v. UrUon, 65 Id, 601. And when
there is a permanent board of assessment commissioners, it
is not necessary that they should certify in their report as
to their qualifications, but the burden is on prosecutor to
show disqualification. Batchelor v. Avon-by-the-Sea, 78 Id,
503. There is nothing in the case before us to show that any
of the original commissioners, or of their successors, was dis-
qualified ; and hence the argument lacks a minor premise.
The other point made is that the commissioners appointed
by the court, in laying the new assessment on a graduated
percentage basis, decreasing from the sea landward (the gen-
eral propriety of which is not here challenged), added to the
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NOVEMBER TERM, 1916. 215
90 N. J. L. Phillips v. T-ongport.
valuation of appellant's property the value of a new build-
ing erected by appellants after the municipal improvement
was made; and that the percentage could lawfully apply
only to the value of the property as it existed at the time
of the completion of the municipal improvement. Without
conceding the impropriety of such a course, where the com-
missioners certify, as they have done, that the assessments
do not exceed the actual benefits (and there is no proof
to the contrary), the answer is that it does not appear that
a percentage was assessed on the value of the new building —
counsel so asserted on the argument; and members of the
court expressing some doubt of this appearing in the case,
counsel announced his intention of making AVritten applica-
tion for dismissal of the appeal without prejudice, in order
to have the fact settled. No such application was made,
but, instead, a stipulation has been submitted in this court,
which it would be irregular for us to consider, as ,we must
take the case as it was presented to the court below. In this
we find only the clause in the per curiam of the court below,
that "real* estate must be assessed with respect to the value
imparted to it by permanent iniprovements,^^ and paragraph
6 of a stipulation of counsel certified as correct by the court
below, that the commissioners "in making a reassessment
against the property of appellant took into consideration
the improvements upon the land made by appellant after
the completion of the jetties." With respect to the former
we remark that the Supreme Court states no time as of which
the value imparted by permanent improvements is to be
taken as the basis of assessment, and we cannot suppose that
an illegal time was selected; and as to the latter it may
similarly be said that the commissioners may as well have
"taken into consideration" the later improvements to the
land with a view of excluding them from assessment as
with a view of assessing them.
In short, to work a reversal, some injurious error must be
shown, as every intendment is in favor of the record. Low-
eree v. Neicark, 38 ^. J. L, 151 ; Demster v. Freeh, 51 Id,
501 ; Dallas v. Newell, 65 Id. 172. To raise a doubt is not
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216 COURT OF ERRORS AND APPEALS.
State V. Lootnis. 90 A*. J. L,
enough. Smith v. Newark, 33 N. J. Eq, 545, 552. It was
a simple matter to show error if it existed; but it has not
been showji in any \^ay that we can recognize on this appeal.
The judgment is affirmed.
For affirmance — The Chancellor, Chief Justice,
SwAYZE, Parker, Bergex, Minturn, Heppenheimer, Wil-
liams, JJ. 8.
I
For leversal — White, Gardner, J J. 2.
THE STATE, DEFENDANT IN ERROR, v. BRUCE E. LOOM IS
AND FRANK G. BLINN, PLAINTIBTi'S IN ERROR.
Submitted December 11, 1916 — Decided Marcli 5, 1917.
1. In a prosecution for violation of section 119 of the Crimes act
by procuring the "miscarriage of a woman pregnant with child."
it is not necessary to show that the woman was quick with child
but it is sufficient if it appears that conception had taken place
and gestation was in progress.
2. Where in a trial for abortion, in which the state claimed that
the faetits had been expelled by the female, the state introduces
direct evidence of the sexual intercourse with defendant on more
than one occasion, of the subsequent cessation of menses, and
of nervous functional disturbances, which, in the opinion of ex-
perts denoted probable pregnancy, there was sufficient proof to
justify the jury in finding that pregnancy existed.
On error to the Supreme Court, whose opinion is reported
in 89 N. J. L. 8.
For the plaintiffs in error, Frank M, McDermit.
For the state, Jacob L. New^nan, prosecutor of the pleas,
and Andreir Van Blarcom, assistant "prosecutor.
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NOVEMBER TEEM, 1916. 217
90 y. J. L. state v. Loomis.
The opinion of the court was delivered by
Pakker, J. But for the claim advanced by counsel that
the Supreme Court *^did not refer to or dispose of thfe prin-
cipal objection raised to the judgment of conviction," it
would in all probability be unnecessary to add anything to the
opinion of that court.
The point made is this: That whereas plaintiffs in error
maintained that under the statute (section 119 of the Crimes
act, quoted in State v. Mcmdeville, 89 N. J. L. 228; 98 Atl
Rep, 398) it was incumbent on the state to show in a prose-
cution for abortion, or attempted abortion, that the female
was "then pregnant with child," and that no proof of this
condition had been adduced, the Supreme Court disposed of
the claim as though counsel had argued that the proof must
show that she was ^^quich with child," and by merely citing as
authority the earlier case of Staie v. Murphy, 27 N. J. L, 112,
in refutation of such argument.
This misapprehension of the court below, if it was in fact
such, may be accounted for by the fact that in the brief, the
first point, stated at the outset to be that "the state failed to
prove pregnancy" and developed at considerable length, con-
cludes with the proposition that the phrase "pregnant with
child" in the statute means "quick with child," and that the
burden of so proving did in law rest upon the state. If
counsel stands on this latter proposition, the opinion of the
Chief Justice in* the Supreme Court is adequate; if on the
other, then the question is whether there was evidence to jus-
tify the jury in finding pregnancy, t. e., the existence of the
condition beginning at the moment of conception, and termi-
nating with delivery of the child. 1 C. J. 312; State v.
Howard, 32 YU 380 ; State v. Murphy, tnipra; Powe v. State,
48 N. J. L. 34, 35.
There was ample proof to go to a jury on this question,
and full justification for their finding if they believed the
evidence, as they were entitled to do. There was direct evi-
dence of sexual intercourse with defendant Loomis on more
than one occasion; of the subsequent cessation of menses;
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218 COURT OF EBROES AXD APPEALS.
State V. Loomis. 90 A\ J. L.
of nervous and functional disturbances which, in the opinion
of medical experts for the state, denoted probable pregnancy.
Absolute demonstration was, of course, impossible, especi-
ally as it was claimed that the foetxis had been expelled. The
point was properly ruled against the defendants.
Several other points, not specifically treated by the Supreme
Court, may be noticed here — (1) That there was no proof of
an intent that an abortion should take place. Upon the evi-
dence examined by us, this seems frivolous. (2) The state-
ment in the charge that a state expert had testified that cer-
tain specified symptoms showed the probable existence of
pregnancy. The recital of the evidence was correct. (3)
Questioning of a state witness by the prosecutor as to state-
ments made by her to the grand jury inconsistent with her
testimony. This was proper under the rule laid down in
State V. Bovino, 89 N, J, L, 586. (4) The charge that what
had been said to the jury (evidoitly by counsel in summing
up) that the question of ^^reasonableness of an attempt by a
person who gets a woman into trouble to assist her in getting
out" should not be given any weight by the jury, &c. The
court properly took the view that when the statute denoimced
a certain course of conduct as criminal, the guilty participa-
tion of a defendant in acts which preceded and caused the
pregnancy that led to the criminal abortion was irrelevant
as a defence. A reading of the charge makes it obvious that
these remarks of the court were provoked by the summing up
of counsel, and in this aspect they were doubly pertinent.
The judgment is affirmed.
For affirinance — The Chancellor, Garrison, Tren-
CHARD, Parker, Minturn, Kalisch, Black, White, Hep-
PENHEIMER, WiLLIAMS, GARDNER, JJ. 11.
For reversal — None.
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NOVEMBER TERM, 1916. 219
90 N, J. L. Eisele & King v. Raphael.
JOHN EISELE AND NATHANIEL KING, PARTNERS, TRAD-
ING AS EISELE & KING, RESPONDENT, v. ELIAS
RAPHAEL, APPELLANT.
Argued December 1, 1916— Decided June 18, 1917.
Rule 80 of the Supreme Court declares that a frivolous or sham plea
may be stricken out, upon proper affidavit in support of a mo-
tion for that purpose, unless the defendant by affidavit or other
* ' proof shall show such facts as may be deemed, by the judge hear-
ing the motion, sufficient to entitle him to defend. Under this
rule the finding of the judge must be taken as true until the con-
trary appears, and this is so when an appeal is taken from such
an order ae permitted by section 15 of the Practice act of 1912.
On appeal from an order of the Supreme Court striking out
answer and entering judgment.
. For the appellant, Levitan & Leviian.
For the respondent, Edgar W. Hunt,
The opinion of the court was delivered by
Bebgen, J. This action was brought by the plaintiffs to re-
cover from the defendant a balance due on an account relat-
ing to the purchase and sale of the capital stock of certain
corporations, bought and sold on what is commonly called a
margin, which it is alleged the defendant refused to take up
and pay for, and thereupon plaintiffs sold the stocks on the
Xew York stock exchange for less than they cost. The de-
fendant had made a deposit to be applied on account of such
purchases pledging the stock to secure the balance of the pur-
chase price advanced by the plaintiffs, and recovery is sought
for the difference between the sum of the proceeds of the sale
and deposit and the cost. The answer denied each paragraph
of the complaint in such a manner as to amount to a general
denial of all the allegations set out in it, and then stated, as
separate defences — (1) that the complaint did not state a
cause of action. We think that the complaint does state a
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220 COUKT OF ERRORS AND APPEALS.
Eisele & King v. Raphael. 90 N, J, L,
cause of action; (2) Ihat defendant had on deposit with the
plaintiffs certain shares of stock which they sold without suffi-
cient notice to the defendant; (3) that when the deposit of
the defendant was exhausted plaintiffs continued to buy and
sell stocks for the defendant's account without demanding an
additional margin. This, if true, would be no defence if the
defendant gave orders to purchase and they were executed, for
it was nothing more than extending him credit. Defendant
also filed a counter-claim for the deposit and an alleged con-
version of stock which the defendant claims the plaintiffs had
purchased for him. The plaintiffs moved to strike out the
answer and counter-claim as frivolous and sham, which mo-
tion was heard by a justice of the Supreme Court on affida-
vits read on behalf of plaintiffs and answering affidavit of the
defendant. The justice struck out the answer and counter-
claim and ordered a judgment for plaintiffs from which the
defendant has appealed.
That an order striking out an answer and the entering of
a summary judgment rested in discretion and was not the sub-
ject of a writ of error, prior to the Practice act of 1912, has
been long settled in this state and is not open to argument
(State Mutual Building wad Loan Association v. Williams,
78 N. J, L. 720), but it is claimed that the Practice act of
1912 has altered the rule in this state. This is so to the ex-
tent of allowing an appeal and a review uf such an order.
Section 15 of the new Practice act (Pamph. L. 1912, p.
380) provides that "subject to rules, any frivolous or sham
defence to the whole or any part of the complaint may be
struck out ; or, if it appear probable that a defence is frivolous
or sham, defendant may be allowed to defend on terms. De-
fendant, after final judgment, may appeal from any order
made against him imder this section."
This section being made expressly "subject to rules" must
be read in connection with rules 80 to 84, inclusive, relating
to the entry of summary judgments. Rule 80 provides that
"the answer may be struck out and judgment final may be
entered upon motion and affidavit as hereinafter provided,
unless the defendant by affidavit or other proofs shall show
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XOVEMBER TERM, 1916. 221
DON^J^L. "* Ei6el^& King V.Raphael.
such facts as may be deemed, by thet judge hearing the motion,
suflBcient to entitle him to defend."
Rule 81 requires that the motion to strike out be made
upon affidavit of "the plaintiff or that of any other person
cognizant of the facts, verifying the cause of action, and stat-
ing the amount claimed, and his belief that there is no de-
fence of the action." Reading the rules, to which the statute
is subject, and the statute together, a plaintiff will be entitled
to a summary judgment upon presenting an affidavit comply-
ing M'ith rule 81, which should set. out fully the facts upon
which the cause of action is based, unless the defendant by
affidavit or other proof shall show facts deemed by the judge
hearing the motion sufficient to entitle him to defend. This
confers upon the judge the power to determine the sufficiency
of the facts set up by the defendant, and his conclusion that
they are not sufficient should not be set aside unless the suffi-
ciency clearly appears. In the present case, the affidavits of
the plaintiffs show that they were stock brokers; that de-
fendant deposited with them a margin to cover stock pur-
chases; that he ordered purchases and sales and that they
advanced to him the difference between the cost of the stock
^nd the deposit holding the stock in pledge to secure the re-
payment of such advances*; that each purchase and sale was
reported to the defendant on a printed statement containing
a notice that it was understood and agreed between the de-
fendant and plaintiffs that all stock bought for the defendant,
and so held in pledge, could be sold w:hout demand for a
further margin, or notice of a sale of the stock whene^ver such
Pale was deemed necessary by the plaintiffs for their protec-
tion : that defendant refused on demand to take up and pay
for the stock purchased for him or to deposit additional money
to protect the plaintiffs from loss, and that they thereupon
sold the stock in the open market at public sale on the Xew
York stock exchange to protect them from further loss ; that
the stock did not sell for a sum which, with the deposit added,
was sufficient to cover the cost, and that having exhausted the
pledge there still remained a balance due to them. Without
further statement of plaintiffs' proofs submitted to the judge,
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222 COURT OF ERRORS AND APPEALS.
Eisele & King v. Raphael. 90 y. J. L.
it is sulBficient to say that by them it was conclusively shown
that defendant was liable to the plaintiffs for the amount
claimed.
The facte set up by the defendant's affidavit are these — (a)
that he never read the agreement giving the plaintiffs the
right to sell the stock without demand or notice. This, if
true, would not be a defence, for the agreement was printed
on every statement sent him for each purchase and sale, about
eighty in number, and these he accepted and held as evidence
of his contract of purchase; (&) that he did not order plaint-
iffs to buy certain stocks which are specifically set out, but, in
the next paragraph of his affidavit, he says that these pur-
. chases were not made in September, 1915, as he had pre-
viously testified, *T)ut by the notices in my possession appear
' really to have taken place in October." This is an admission
that he had notice of the purchase of this stock, and he says
in one of his affidavits, "I did not object when I found out
because I thought the said Pope was doing the right thing
by me." He now claims that these purchases were not made
by his order, but, if this be true, it was his duty to object at
once and not wait and have them held for him with the ex-
pectation of a profit, to be repudiated if he subsequently found
that the purchase resulted in a loss. He had an account with
the plaintiffs to whom he admits that he gave numerous orders
to purchase and sell stocks, and, as soon as he found out that
a purchase had been made for him which he had not ordered,
it was his duty to promptly disavow it and not speculate on
the result, which, if favorable, he could avail himself of, and,
if unfavorable, repudiate.. Under the facts set out in his own
affidavit his conduct amounted to a ratification of the pur-
chase; (c) that he never ordered plaintiffs to purchase two
lots of stock which he names, but a^ the purchase and sale of
these two lots resulted in a profit to him he suffered no loss,
for his account has been credited with the profit and does not
enter into this controversy except to his advantage; (d) that
he was not given notice to make any additional deposit of a
margin. This was not required under his contract, and he
knew that at any time he could take up the stock purchased
for him by paying the balance due.
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XOVEMBER TERM, 1916. 223
90 N, J, L. Eisele & King v. Raphael.
There is nothing in the defendant's affidavit which entitles
him to have this court reverse the finding of the judge that he
deemed the facts shown by the defendant to be insufficient to
entitle him to defend.
The record shows that from September 7th to November
1st, 1915, a period of less than two months, this defendant
dealt in over two thousand seven hundred shares of stock at a
total cost of $134,821, and that over eighty purchases and
sales were made for him by the plaintiffs from which he
reaped a profit in nearly every case except in the five transac-
tions which he now seeks to repudiate, which shows that he
was an active and rather a liberal speculator in stocks, and,
in most instances, a successful one.
The order of the judge in this case declares that the answer
filed is frivolous and a sham, and that the defendant failed to
show such facts as he deemed sufficient to entitle him to de-
fend. The finding of the judge must be assumed to be true
until the contrary appears, and, as it does not appear in this
case, the finding must be taken as correct.
Striking out a sham or frivolous plea is not an infringe-
ment of the right of trial by jury. A plea of general issue,
although it denies the entire claim of the plaintiff, and, ap-
parently, raises a question of fact, is not protected for that
reason against a motion to strike out as sham or frivolous.
Coyhendall v. Robinson, 39 N. J. L. 98.
As to the counter-claim based upon the conversion of stock,
we do not perceive how there could be a conversion, to de-
fendant's injury by the sale of stock to raise the money neces-
sary to pay a loan for the security of which the stock was
pledged.
'the judgment will be affirmed, with costs.
For affirmance — The Chancellor, Garrison, Bergen,
MiNTURN. Kalisch, Black, White. Heppenheimer, Wil-
liams, Taylor, Gardner. JJ. 11.
For reversal — The Chief Justice, Swayze, Parker,
JJ. 3.
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224: COUBT OF ERRORS AND APPEALS.
McGuire v. Catholic Benevolent Legion. 90 N, J. L,
CATHERINE McGUIRE, ADMLNISTRATRTX, APPELLANT, v.
CATHOLIC BENEVOLENT LEGION. RESPONDENT.
Submitted December 11, 1916— Decided March 5, 1917.
1. Where the constitution and by-laws of a beneficial order per-
mit a member at his option to change the character of his mem-
bership by' surrendering a certificate assuring the payment of
a fixed sum bt death, and have another certificate issued in its
stead fixing a less sum to be paid, in consideration of a reduc-
tion of the amount of the dues payable for the assurance, if he
shall comply with certain conditions set out in the constitution
and by-laws which are made a part of the contract of assurance,
the procedure and conditions required by the contract to ac-
complish such change must be complied with and the new certifi-
cate issued before an action at law can be maintained to re-
cover what would be due if the change had been made, a new
• certificate issued, and its terms performed by the assured.
2. If a proper application for a new certificate be refused by the
subordinate council and the rules of the order provide for an
, appeal from such refusal to the silpreme council, that remedy
must be exhausted by the applicant before a right of action
arises for damages caused. by the refusal of the subordinate coun-
cil to grant the application.
On appeal from the Supreme Court.
For the appellant, KaJisch d- Kalisch,
For the respondent, Butler (£• Brown.
The opinion of the court was delivered by
Bergen, J. Th€ plaintiff's intestate was the holder of a
certificate issued by the defendant corporation which entitled
his beneficiaries to $3,000 at his death, or, in case of his
permanent disability and the surrender of the certificate, to a
new certificate for $1,500, payable at his death, upon which
dues but no assessments were required to be paid. The
plaintiff, as his administrator, brought this suit to recover
$1,500, notwithstanding there was no surrender of the old
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NOVEMBER TERM, 1916. 225
!fO N. f/. L. McGuire v. Catholic Benevolent Legion.
certificate, or a new one iBsued, upon the ground that the as-
sured had, in his lifetime, become permanently disabled and
taken the necessary steps to entitle him to a new certificate
for that sum.
The trial court ordered a judgment of nonsuit from which
plaintiff has appealed. The nonsuit was allowed for two rea-
sons— first, because the assured had not made such application
as the constitution and by-laws of the defendant corporation
required to entitle him to the payment because permanently
disabled, and second, that the by-laws provide for an appeal
to the supreme council of the order from all matters of im-
portance emanating from subordinate councils thereof. The
certificate in question was issued by the supreme council of the
order to Thomas Doolan, the intestate, as a member of Wood-
bridge Council, No. 120, located at Woodbridge, New Jersey,
and upon condition therein expressed that he would strictly
comply with the laws, rules and regulations of the legion now
in force, or which might thereafter be adopted by it, and the
certificate was accepted in writing by Doolan on the conditions
therein named. The constitution of the order provides for the
establishment of subordinate councils — Woodbridge Council,
of which Doolan was a member, being one.
Section 24 of the by-laws of the order permits any member
in good standing, who shall arrive at the age of seventy years,
and who shall become permanently disabled, at his option,
upon payment of all dues and assessments and surrender of
his benefit certificate to the secretary of his subordinate coun-
cil, to have issued to him a new certificate for one-half the
face value of the one surrendered, and thereafter not be re-
quired to pay any asgessments, but, in order to retain his mem-
bership and rights under the new certificate, he is required to
comply with the laws of the order and pay his dues and other
charges, in default of which he may be suspended and thereby
forfeit all rights imder the new certificate.
By section 12, when such application is made, the president
of that coimcil must appoint a committee to investigate and
report upon the application, and the secretary notify all other
Vol. xc. "^15
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226 COURT OF ERRORS AND APPEALS.
McGuire v. Catholic Benevolent Legion. 90 N. J. L,
councils withia a given district of such application, and that
the president of each of such councils shall appoint a mem-
ber of his council to act in an advisory capacity with the in-
vestigating committee. If the report be favorable a ballot is
to be taken, and if the application be granted, notice thereof
given to the secretary of the supreme council, and if approved
by the supreme council, a new certificate issued. It is not
pretended that the assured ever surrendered the original cer-
tificate or availed himself of this procedure, or that whether
he was permanently disabled, was investigated. All the plaint-
iff claims is that the assured in 1911 went to the secretary of
the supreme council, in Brooklyn, and consulted him con-
cerning the obtaining of a certificate of permanent disability,
and when there, he then signed some paper relating to it, and
that the secretary said he would look into the matter, but
that nothing further was done. Manifestly, the secretary of
the supreme council had no authority under the rules and
regulations of the order to issue a new certificate, nor to make
an enforceable agreement that the supreme council would issue
one, for the by-laws provide the only method by which such a
certificate could issue. The assured made no payments, not
even the dues he was bound to pay even if the new certificate
had been issued, after 1911, and he died March 3d, 1915, -and
he was suspended from the order in November, 1911, over
three years before his death. We think the trial court was
right in granting the nonsuit, for without the certificate based
upon permanent disability the action to recover the sura it
would have represented if issued had no legal foundation.
If the subordinate council, upon a proper case made, had
refused to issue the certificate, then the remedy of the assured
was, in the first instance, by an appeal to the supreme council.
Section 2 of the constitution provides that the supreme coim-
cil shall be the body to which ifinal appeals shall be made, and
section 12 of the by-laws makes the decision of the president
of the subordinate council final if no appeal be taken to the
supreme council within thirty days. Neither the constitution
or the by-laws impose an absolute duty to issue the certificate.
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NOVEMBER TEEM, 1916. 227
90 y.J.L. McGoire v. Catholic Benevolent Legion.
but its issuance depends upon the result of an investigation
and determination of the rights of the assured under the Con-
stitution and by-laws. By the terms of his contract he is re-
quired to submit his application to the adjudication of the
subordinate council, and if it refuses, then to appeal to the
supreme coimcil. This course was not pursued by the assured,
and so if he had laid a proper foundation for the allowance
of his application, he did not exhaust his remedy within the
order, as he was boimd to do by appeal to the supreme council.
Ocean Castle v. Smith, 58 N, J, L, 545.
He was npt seeking to recover a money claim, but a change
in the character of his membership which required the pay-
ment of dues alone and the exemption from all assessments,
in consideration of a reduction of the sum payable at death,
a matter controlled alone by the rules of the order. The
present suit is based upon the assumption that the certificate
should have been issued without following the method which
the contract required. At the time of his death he held the
original certificate which fixed the class of his membership,
and he was no longer a member under it, having been sus-
pended for non-payment of dues and assessments, to which he
submitted for over three years without appeal.
The nonsuit was properly allowed for both reasons, and the
, judgment will be affirmed, with costs.
For affirmance — The Chancellor, Chief Justice, Gar-
rison, SwAYZE, Trenchard, Parker, Bergen, Minturn,
Kalisch, Black^ White, Heppenheimer, Williams, Gard-
ner, JJ. 14.
For reversal — ^None.
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228 COURT OF ERRORS AND APPEALS.
Nevich v. D., L. & W. R. R. Co. 90 N. J, L,
STEPHEN NEVICH, RESPONDENT, v. DELAWARE, T>ACKA-
WANNA AND WESTERN RAILROAD COMPANY. APpfjI^
LANT.
Submitted December 11, 1916— Decided Maxch 5, 1917.
1. The petitioner for compenBation under our Workmen *8 Compen-'
sation act, was using a barrel as one of the implements of bis
service ; two strangers carried it away a short distance and peti-
tioner was directed by bis immediate superior, one of the ser-
vants of his employer, to recover it, and when petitioner ap-
proached the strangers they threw the barrel down" and assaulted
him and he was severely injured. Held^ that the accident arose
out of and in the course of his employment.
2. In a case under the Workmen^s Compensation act, where the
facts are disputed, a finding in favor of either party will not
be disturbed, if there be evidence to support it, for a reviewing
court will not weigh the evidence, the decision of the trial judge
being, under the statute, conclusive if there be any evidence to
support it.
On appeal from the Supreme Court.
For the respondent, William Pedis,
For the appellant, Frederic B, Scott.
The opinion of the court was delivered by
Bergen, J. The petitioner filed his petition with the Court
of Common Pleas of the county of Hudson, praying that de-
fendant compensate him for injuries as required by the
Workmen's Compensation act. The court found that he was
employed by the defendant, and that the accident which
caused the injuries arose out of and in the course of such
employment, and that the petitioner was entitled to compen-
sation based upon a total and permanent disability, and
awarded compensation according to such finding. The de-
fendant removed this judgment by certiorari to the Supreme
Court for review, and assigned as reasons for reversal that
the accident did not arise in the course and out of the em-
ployment, and also that the injuries did not result in a per-
manent total disability.
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NOVEMBER TERM, 1916. 229 .
90 N. J. L. Nevich v. D., I> & W. R. R. Co.
The Supreme Court affirmed so much of the judgment
of the Common Pleas as adjudged that the accident arose
in the course and out of the employment of, the petitioner,
and reversed the "findings as to the extent of petitioner-
respondent's injuries.^' From this judgment both parties
have appealed, the defendant from the affirmance of liability,
and the petitioner from the reversal relating to the extent of
his injuries. The testimony upon which the liability of the
defendant was based by the Common Pleas, and the affirm-
ance by the Supreme Court, is substantially as follows ; The
work to which the petitioner was assigned by the defendant
was the filling of a barrel with wjater, and the carrying of
the water in pails to other servants of defendant to be used
in mixing cement, and, while temporarily away from it, two
strangers upset the barrel, carried it for a short distance,
and at this point the superior, or boss, of petitioner directed
him to get the barrel and bring it back. This he undertook
to do, and when he approached the men they threw down
the barrel and assaulted him, inflicting the injuries for which
he asks compensation. As there whs testimony tending to
show that the superior of the petitioner directed him to get
the barrel while it was in the hands of the persons carrying
it away, there can be no doubt that the accident happened
in the course of his employment and also that it arose out
of his employment, for he was reclaiming his employer's
property, by his direction, from persons who were attempt-
ing to remove, without color of right, a part of the tools
used by him in the performance of his service, and being di-
rected by the defendant to reclaim the barrel, with knowledge
of the existing conditions, one being a possibility that the
recovery of the property might be resisted, we are of opinion
that the accident arose out of the employment, as well as in
the course of it, and that the judgment of the Supreme Court
on this branch of the case should be affirmed.
In reversing in part the judgment of the Common Pleas,
the Supreme Court said that there was no evidence to sup-
port the finding of total permanent disability. If there was
such evidence, then the judgment of reversal was erroneous.
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230 COUKT OF ERRORS AND APPEALS.
Nevvch V. D., L. & W. R. R. Co. 90 y. J. L.
for in cases of this class the Supreme Court is not authorized
to determine the preponderance or weight of testimony, for
the statute declares that the decision of the judgment of the
Court of Conmion Pleas* "as to all questions of fact shall be
conclusive and binding." Pamph, L, 1911, p. 134, § 18; vide
Sexton V. NetmxrJc District Telegraph Co., 84 N, J, L, 85;
Hvlley V. Moosbrugger, 88 Id. 161. We are of opinion that
there is evidence in this record which supports the finding
of the Court of Common Pleas. Doctor King, called by the
petitioner as a medical expert, testified that he had made a
thorough examination of the petitioner; that he is suffering
from a nervous disease called corhea, commonly known as
St. Vitus^s dance, which seldoto afficts people of his age,
and from which an adult rarely recovers; that it may be
produced by a blow on the head, such as petitioner testified
was given him when he was injured ; that the blow and con-
sequent condition would indicate a grave lesion of the motor
area of the brain, and that at the time of the trial petitioner
was entirely incapacitated to perform any work — "total dis-
ability from any manual labor." In addition to this, ihe
petitioner testified, that he was struck on the head with a
piece of iron and fell unconscious; this was in September,
1914, and the hearing on the petition was in October, 1915,
during which period he had been unable to work and was in
the same condition as when he left the hospital, where he
remained seven weeks following the accident, and that when
he first became conscious he was trembling as when he ap-
peared as a witness, but not quite so much. "I am worse
now."
His wife testified that before the accident he was in good
health, had no shaking and convulsions such as he was now
suffering, and that he had grown worse since he left the
hospital.
Wc are of opinion that this testimony justifies the infer-
ence drawn by the Court of Common Pleas that the injuries
produced a total permanent disability wjthin the meaning
of the statute. The result which we reach is that on the
appeal of the defendant, the judgment of the Supreme Court
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NOVEMBER TEBM, 1916. 231
90 N. ./. L. Reed v. Atlantic Qty & Sub. Gas & Fuel Co.
that the accident arose out of and in the course of the peti-
tioner's employment should be aflSrmed, and that so much of
the judgment from which the petitioner appeals should be re-
versed, and the judgment of the Court of Common Pleas of
the county of Hudson aflBrmed.
On appeal of Delaware, Lackawanna and Western Railroad
Company —
For affirmance — The Chancellor, Chief Justice, Gar-
rison, SwAYZE, Trenchard, Bergen/ Black, White, Hep-
penheimer, Williams, Gardner, J J. 11.
For reversal — None.
On appeal of Stephen iJevich —
For affirmance — None.
For reversal — The Chancellor, Chief Justice, Gar-
rison, SwAYZE, Trenchard, Bergen, Black, White, Hep-
PENHEIMER, WiLLIAMS, GARDNER, JJ. 11.
JOHN C. REED, APPELLANT, v. ATLANTIC CITY AND SUB-
URBAN GAS AND FUEL COMPANY, RESPONDENT.
Arjsrued November 22, 1916 — Decided March 5, 1917.
The president and general manager of a corporation having control
of its books of account and the direction of entries made therein,
claiming to have loaned the corporation money, brought suit to
recover, and the corporation, under a new management, set up
payment. The plaintiflf's account in the ledger as kept while
plaintiff was in control, showed a credit to plaintiff for the
amount of the loan and a debit for a like sum, the entries hav-
ing been made by plaintiff's agent by his direction. Held, that
the ledger was admissible evidence of an admission by plaint-
iff that the loan was satisfied, the entry made by him being
against interest.
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232 COUKT OF ERRORS AND APPEALS.
Rfted V. Atlantic City & Sub. Gas & Fuel Co. 90 N. J. L.
On appeal from the Supreme Court.
For the appellant^ Wilson & Carr.
For the respondent, Thompson & Smathers.
The opinion of the court was delivered by
Bergen, J. The plaintiff brought his action to recover
from defendant $2,500, which he claims he loaned it, and
having offered in evidence two checks representing together
that sum, which were deposited in bank to the credit of the
company, with proof that the money was used to pay interest
on the bonds of the company, rested his case. The defence
was payment, and the principal evidence to support this was
the ledger of the company containing the account of the
plaintiff, which showed that he was credited with the loan
and debited with an equal amount imder the item "Bills
payable,'' so that the account appeared to be balanced. There
was evidence from which a jury might infer that plaintiff
was the president and general manager of the company
having possession and control of its books of account, and
that the entries in question were made by his clerk as his
agent and by his direction, the company not having a book-
keeper; that the management of the financial affairs of the
defendant and its accounts were under the control of the
plaintiff, and that he had suflBcient familiarity with the en-
tries in the ledger to justify charging him with actual knowl-
edge. The ledger account also disclosed that other loans
had been made by plaintiff which were satisfied by a credit
entry of "Bills payable,'' which loans, it is not denied, have
l)een satisfied. The jury found for the defendant, and the
plaintiff appeals.
The ground in support of the appeal most seriously urged
is that the ledger was improperly admitted in evidence. The
offer was not for the purpose of proving a book account, but
the admission of the plaintiff that the loan had been satisfied.
We are of opinion that the book containing plaintiff's en-
try of satisfaction of the debt was competfnt as an admis-
sion against interest. It was not used to establish a claim.
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. NOVEMBER TERM, 1916. 233
4
90 N, J, L. Reed v. Atlantic City & Sub. Gas & Fuel Co.
but as a written admission by plaintiff that his loan had been
satisfied, and the entry by his agent under his direction is
the same as if he had written it "A party's own statements
may always be used against him as admissions; hence the
opponent may always offer the party's books as containing
admissions favoring the opponent's claim of facts." 2 Wigm.
Ev., § 1567.
Entries in the books of a corporation showing dealings
with its manager are competent evidence against him if it
appears that he has sufficient connection and familiarity
with them to justify actual knowledge of their contents, "on
the basis of admissions or assertions of the facts stated
therein." Foster v. V. 8., 101 C. C. A. 485, 495.
In Bird v. Magowwru, 43 Atl. Rep, 278, the bill was filed
against directors who, it was claimed, had unlawfully ab-
stracted large sums of money belonging to the corporation,
which was shown by charges against Magowan on the books
of the corporation, and Vice Chancellor Reed held that
charges against an officer of the company, known to him,
and not objected to by him are competent evidence as ad-
missions. In the present case, an inference may be drawn
from the testimony that plaintiff caused the debit entry to
be made, and, if so, it is evidence of his admission that the
loan has been satisfied. He now denies that the debt was
paid, or that he had knowledge of the satisfying entry, but
the truth of this denial is met by his admission that it was
paid, as shown by the. entry made by his direction, if the
jury drew such an inference from the testimony, and his
knowledge that such entry existed may be inferred from his
position as manager having charge of the books, and his di-
rection to his clerk to make the entries. There was no error
in the admission of the ledger for the purpose of showing
plaintiff's admission that the debt had been liquidated. This
view makes it unimportant whether all the books of account
of the corporation were produced or not. The plaintiff
was the manager, having in his possession all the books, and
when the control passed from him, he claims to have turned
thom over to the new management.
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2U COURT OF ERRORS AND APPEALS.
Reed v. Atlantic City & Sub. Gas & Fuel Co. 90 N, J. L.
There was proof that all the books bearing on the question
of accounts which were passed over were a cash-book and
ledger, and they were produced, but, under the view we take,
it was suflScient to produce only the book which contained
the admission of payment. There is a wide difference be-
tween establishing a claim by the production of books of ac-
count and the proof of an admittted payment of such claim
appearing in the ledger kept under the direction of the
claimant. Such admission may be proved by any writing
made by one seeking to enforce a claim.
The foregoing conclusion disposes of the exception to the
refusal to direct a verdict for plaintiff, because it was for
the jury to determine the controverted fact of payment. The
permissible inference of payment to be drawn from the en-
tries made by the plaintiff in the ledger was met by his
denial thereof, as well as knowledge of the entry, and this
raised a jury question which the court properly left to it
It is urged that it was error to refuse a request to charge,
"The payment by Reed (the plaintiff) to the company of
the sum of $2,500 as a loan, casts upon the defendant the
legal duty of repaying the same to Reed.**
This was in effect charged, for the court, after stating the
plaintiff's testimony in support of his claim that he had
loaned $2,500 to the company, said: "If what the plaintiff
says be true, he is entitled to have a verdict for $2,500.** As
to the other requests refused, to which exceptions were taken,
it is sufficient to say that they are not argued in the brief.
We have examined the ground of appeal relating to the
admission of testimony to which plaintiff objected, and find
no error which warrants a reversal of this judgment, and it
will be affirmed, with costs.
For affirmance — The Chief Justice, Garrison, Swayze,
Trenchard, Parker, Bergen, Minturn, Kalisch, Black,
White, Heppenheimer, Williams, Gardner, JJ. 13.
For reversal — The Chancellor, 1.
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NOVEMBER TERM, 1916. 235
90 N, J, L. Shoeffler v. Phillipsburg Horse Car R. R. Co.
GEORGE W. SHOEFFLER, APPELLANT, v. PHILLIPSBURG
HORSE CAR RAILROAD COMPANY, RESPONDENT.
Submitted December 11, 1916— Decided March 5, 1917.
1. An excerpt from instructions to a jury upon which error is as-
signed must be read in connection with the context and if, when
taken#together, no error appears, the excerpt alone will not sup-
port the assignment.
2. The trikl court in changing the jury as to the amount of force
to be used in ejecting a passenger improperly oa defendant's car
said, by way of illustration, that if a passenger refused to leave
the cfir, "And he pushed him off, that is all that would be neces-
sary.** Heldj that this was not an instruction that defendant
might pu»h a passenger off the car regardless of consequences,
the words "Would be necessary'* meaning, in the connection
used, that if the push accomplished the ejection, that was all
the force defendant was permitted to use. In other words, the
defendant had used all the force that was necessary under the
conditions stated.
On appeal from the Warren County Circuit Court.
For the appellant, William C, Oebhardt.
For the respondent, William H. Walters and William H.
Morrow.
The opinion of the court was delivered by
Bergen, J. The defendant operates a street railway, and
one of its rules require passengers to enter their cars through
the rear door except during hours when the conductor is re-
quired to leave it to change a derailing switch at a steam
railroad crossing. Plaintiff attempted to enter by the front
door during the period when all passengers were required to
board it in the rear, and the motorman told him to get off
and get on the other end, which request he refused, and the
motorman pushed him off. Plaintiff claims that more force
was used than was necessary, causing injuries for which he
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23G COURT OF ERIiORS AND APPEALS.
Shoeffler v. Philllpsburg Horse Car R. R. Co. 90 N, J. L.
brought a suit, resulting in a judgment for defendant from
which plaintiff appeals.
The principal ground urged in support of the appeal is
that the rule was an unreasonable one, and that, therefore,
the court erred in charging the jury that the motonnan had
the right to use as much force as was necessary to remove
plaintiff from the front end of the ear; and second, in
charging that defendant had a right to push the plaintiff
off without any warning that he intended to do it. That
plaintiff knew that there was such a rule appears from his
testimony, which was, in part^ as follows :
"Q. You understood it was his wish for you to go to the
rear of the car and get on?
"A. I presume that is true. v
*'Q. And you knew that was just according to the notice
on the car, that you should enter by the rear door, didn't
you?
"A. Yes, sir.^'
The court charged that the rule was a reasonable one, and
no exception was taken to this, the exception being limited to
that part which instructed the jury that defendant's servant
had the right to use re^onable force to carry it out. The
part of the charge which the plaintiff most complains of is
this: "Or if a man got on the car and the motorman said,
*6et off and go to the rear door,' and he said ^I don't feel
like it,' and he pushed him off, that is all that would be
necessary."
lYom this, plaintiff argues that the court told the jury
that the motorman had a right to push the plaintiff off the
car, not merely to use as much force as was necessary to
remove defendant from the car, but to push him off without
regard to consequences.
An excerpt from a charge to a jury must always be read
in connection with its context, and in doing so in this case,
we find that the court was instructing the jury concerning
the necessary force required in a given case, and that if there
be resistance, that the force is to be measured by the amount
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NOVEMBER TERM, 1916. 237
90 N, J, L. Shoeffler v. Phillip»burg Horse Car R. R. Co.
of the resistance, and, by way of illustration, said that if a
motorman requested a person to get off and enter by the
rear door, and the request was complied with, there would
be no need of force beyond the request, and then follows
what is above quoted, which amounts to nothing more than
saying that if there was a refusal, and a push was suflBcient
to put him off, the push would be all the force which the
jcdrcumstances justified. It was not an instruction that a
push was justifiable under all circumstances. The question
whether more force was used than necessary to induce plaint-
iflE to comply with the rule was distinctly left to the jury.
The second proposition that the court charged that de-
fendant had a right to push plaintiff from the car without
warning is without merit. No such instruction appears in
the charge, and no request to charge that warning was re-
quired was submitted, and if it had been, it would have been
properly refused, for plaintiff testified that he knew the rule
required him to enter by the rear and that he was requested
to comply with that rule.
There is no error in the charge to which any exception
was taken and noted on the record. The other points argued
relate mainly to the weight of the evidence, which cannot be
considered on this appeal.
The judgment under review is affirmed, with costs.
For affirmance — The Chancellor, Chief Justice, Gar-
rison, SwAYZE, Trenchard, Parkbr, Bergen, Minturn,
Kalisch, Black, White, Heppenheimer, Williams, Gard-
ner, JJ. 14.
For reversal — None.
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238 COURT OF ERRORS AND APPEALS.
Crofisley v. Connolly Co. 90 N. J, L.
JAMES E. CROSSLEY, RESPONDENT, v. WILLIAM H. CON-
NOLLY COMPANY, APPELLANT.
Submitted December 11, 1916— Decided March 5, 1917.
Where the defendant, in a District Court, demanded a trial by jury,
and during the progress of the trial, the court, upon the motion
of the plaintiff, dismissed the jury, and Adjourned the case, and
upon the next day fixed for the trial under the objection of the de-
fendant proceeded to hear the case without a jury, and gave
judgment for the plaintiff — HM, that the proceeding was irreg-
ular, and that the defendant under the circumstances, could not
be deprived of his right to a trial by jury.
On appeal from the Supreme Court, whose opinion is re
ported in 89 N. J. L. 55.
For the respondent, Oaetano M, Belfatto.
For the appellant, Newton P. Kinsey,
The opinion of the court was delivered by
MiNTURN, J. Process having been issued out of the Dis-
trict Court of East Orange, the defendant within the time
required by law demanded a trial by jury, upon which de-
mand a venire was duly issued, and the parties upon the day
set for the trial proceeded therewith. It became apparent
to the-^laintifFs attorney, as he presented his case, that he
would be unable to prove an essential fact without the pres-
ence of the president of defendant company, who, having
been present in the court room, but without service of sub-
poena by the plaintiff upon him, had departed. Confronted
with this situation, the plaintiff's attorney moved for an ad-
journment of the trial, which the court, under objection by
defendants attorney, granted, having previously denied a
motion to nonsuit upon the ground of plaintiff's inability
to prove his case.
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XOVEMBER TERM, 1916: 239
90 N. J, L. Cro88ley v. Connolly Co.
Upon the next trial day, the court under the objectipn of
defendant, proceeded to hear and determine the case with-
out a jury, none having been demanded for that day, and
rendered a judgment for the plaintiff, from which judg-
ment the defendant appealed to the Supreme Court, where
the judgment was affirmed, from which affirmance the pres-
ent appeal was taJcen.
The substantial inquiry presented by these facts is whether
the trial court deprived the defendant of his statutory right
of a trial by jury. The question resolves itself essentially into
one of procedure, and since the District Court is a court of
statutory origin, the relative rights of the parties must be de-
duced from the express provisions and the spirit of the statute.
Causes ordinarily are tried before the District Court
without a jury, except in one contingency, when the court
by the express provisions of the statute is deprived of that
power. Section 149 of the District Court act provides (Comp.
Stat, p. 1999) :
"Either party may demand a trial by jury * * * unless
a demand for trial by jury shall be made * * * and unless
the party demanding the same shall at the time of making
such demand pay the cost of the venire, the demand for trial
by jury shall be deemed to be waived * * *."
This section of the act|receiv^d the consideration of the
Supreme Court at the June term of 1893, in the case of
Clayton v. Clarke 55 N, J. L. 539, 542, wherein Mr. Justice
Garrison observed: "The legislature has made the right
to a jury absolute, if demanded at the proper time. The
defendant has had no voice in choosing the forum, hence has
submitted himself to no implied conditions arising from its
construction. He is there in invitnm with the right to ques-
tion the constitutionality of the procedure in all its steps,
and to ignore utterly all innovations upon his common law
rights, for which express legislative authority does not exist."
Adverting to this construction of the act, the Supreme
Court at the following term, by Mr. Justice Abbett, declared
that "a demand for a jury made by the defendant at the
proper time, deprives the court of jurisdiction to try the case
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240 COURT OF ERRORS AND APPEALS.
Crossley v. Connolly Co. 90 N. J. L,
otherwise than by a juiy." Raphael v. Lane, 56 N. J, L, 108,
114.
It wall suffice, for the determination of the case sub judice,
to declare that we concur in this construction of the pro-
vision of the act under consideration. The inquiry results
whether, in such a situation, no legislative provision having
been made for the return of the same jury, or the payment
of the cost of a subsequent venire, the District Court may
order an adjournment of a jury trial and impose upon the
defendant, ex necessitate, the cost of another venire, for the
trial of the case upon the adjourned day.
Whereas, in this case, it is manifest that the plaintiff^s
demand was brought about by no dereliction or default upon
the part of the defendant, the rights of the latter. to the
form of trial conceded to him by the statute, and which he
has elected to adopt in conformity with the statutory pro-
cedure, should in nowise be jeopardized by the action of the
court. Neither the plaintiff^s unwillingness to proceed, nor
the trial court^s recognition of his right to an adjournment,
should be so determined as to deprive the defendant of a
right secured to him by law.
The practical equitable procedure in such an exigency
wiould dictate that the postponement requested be panted
upon terms which would impose |upon the party demanding
it the costs incident to the issuing of another vemre, so that
upon the adjourned day the parties may be restored to the
status quo ante.
The judgment of the Supreme Court will be reversed, and
the record will be remitted to the District Court for a venire
de novo.
For affirmance — None.
For reversal — The Chancellor, Chief Justice, Swayze,
Parker, Bergen, Minturn, Kalisch, White, Heppen-
heimer, Williams, Gardner, J J. 11.
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NOVEMBER TERM, 1916. 241
! s
90 y, J, L, Martin v. Baldwin.
EDWARD W. MARTIN, RESPONDENT, v. ALFRED F. BALD-
WIN, APPELLANT.
Submitted December 11, 1916— Decided March 5, 1917.
The plaintiff was owner of some real estate, which he was induced
to part with, by the defendant, in exchange for a bond and mort-
gage for $3,000 which it was represented to him was made by
a responsible business man, who was owner of the property.
The fact turned out to be, that the so-called owner was a
"dummy," who was paid by defendant to represent himself as
owner, and to exercise acts of ownership abou-t the property, as
well as to execute the bond and mortgage, which was without
consideration, and valueless. In an action for deceit, the jury
having found for the plaintiff, no ^trors of procedure or errors in
the charge of the court being apparent, the judgment is affirmed.
On appeal from the Supreme Court.
For the respondent, Jacob L. Newman,
For the appellant, Howe & Davis,
The opinion of the court was delivered by
MiNTUBN, J. The plaintiff, Martin, was owner of two lots
in East Orange, and the defendant, Baldwin, according to the
allegations of the complaint, induced him to part with the
property in consideration of the assignment to him of a bond
and mortgage for $3,000 upon a house and lot in Montclair,
the mortgage being a second mortgage held by one P. Frank
Stone, a client of the defendant. The representation which
induced the sale was that the Improved Building and Tjoan
Association of Newark held upon the Montclair property a
mortgage for $5,000; that the property was of the value of
$11,000, and that Stone had purchased it at that figure, pay-
ing the difference above the first mortgage in cash, from the
Fairchild-Baldwin Company, with which the defendant was
connected ; that the property was about to be purchased from
Stone by one James Hendrickson, who was to give Stone the
Vol. xc. 16
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242 COUKT OF ERRORS AND APPEALS.
t
Martin v. Baldwin. 90 X. J. L.
$3,000 mortgage; that Hendrickson was a responsible plum-
ber, who could pay the charges incident to the mortgage, and
would discharge the second mortgage by monthly payments
until its final payment at maturity on July 1st, 1915; that
the mortgage was a bona fide security, and represented an
equity in the property over and above the first mortgage ; that
Hendrickson had purchased it for the purpose of a home and
residence which he intended to occupy.
In pursuance of these representations a written agreement
was executed between the parties for the mutual transfers of
the respective titles, and, subsequently, the actual transfers
were made. Plaintiff thereafter sold the bond and mortgage
to one Marsh, and guaranteed its payment; subsequently,
Baldwin called upon Marsh- and informed him that Hendrick-
son was embarrassed financially, and was unable to meet the
interest charges on either of the mortgages, and offered Marsh
a conveyance of the mortgaged premises, for the purpose of
saving the expense of a foreclosure, which proposal Marsh ac-
cepted, and on the same day conveyed the premises to the
plaintiff. These allegations are supplemented by a general
.charge that the scheme thus outlined was concocted by Bald-
win and Stone, knowing its essential falsity, for the purpose
of inducing the plaintiff to part with his property, for an ex-
change that in truth possessed no market value, and by means
of this deceit thus cheated and defrauded the plaintiff. Upon
the trial a nonsuit was granted as to Stone, and the case pro-
ceeded against the defendant, Baldwin.
There was ample testimony adduced at the trial to support
the allegations of the complaint, as to Baldwin. It was shown
by Hendrickson himself that he was in ireality a hired
"dummy," without any business or financial responsibility,
drafted into the service of defendant, for the sole purpose of
assuming a status of business and financial responsibility,
which he did not in reality possess ; that he had not advanced
any consideration for the property above the first mortgage,
and that the market value of the second mortgage was merely
nominal; that he was paid $25 by the Fairchild-Baldwin
Con'iany at the request of defendant for his services in
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NOVEMBER TERM, 1916. 243
90 N, J. L, Martin v. Baldwin.
executing the bond and mortgage, and that in part perfonn-
anee for the consideration he assumed the position of owner
of the property; and upon a visit which he was directed to
make thereto that he divested himself of his working clothes,
a|id clothed himself in raiment compatible with the deceptive
role, in which he was thus called upon to masquerade.
This situation, supplemented by testimony from which the
jury might infer all the elements of a scheme to cheat and
defraud the plaintiff, presented a prima facie case of deceit.
To this was superadded the fact that the mortgaged prem-
ises were sold by the first mortgagee at sheriff's sale under
foreclosure, and the mortgage of the plaintiff being thereby
extinguished became practically valueless. The denial of these
essential facts by the defendant manifestly presented a jur}'
question which was resolved in favor of the plaintiff.
We have examined the exceptions presented by the record,
as to the admission* and exclusion of testimony, and it must
suffice to say th^t in no specific instance do we find the rulings
in that regard erroneous.
The refusal of the court to admit in evidence a contract
between the. Fairchild-Baldwin Company, the former owner
of the exchanged real estate, with one Wakeman, for the pur-
pose of showing the value of the property, was not improper,
since the issue involved was not the true value of the property
exchanged, but whether the representations as to Hendrickson
upon which the plaintiff had been induced to accept the mort-
gage and part with his property had any basis in fact. In
fair dealing the plaintiff was entitled to know the real owner
of the mortgaged property, and his business and financial
status, for the purpose of determining the value of his bond,
as an added asset to the value of the property ; or at least he
was entitled not to have the real character and standijig of
the alleged owner misrepresented to him; and that inquiry
presented the gravamen of the action.
Nor do we think the court erred in refusing to charge, that
if the defendant was merely the agent of the Fairchild-Bald-
win Company, which was acting for Stone, no liability for his
individual misfeasance could attach to him. The law is other-
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244 COURT OF ERRORS AND APPEALS.
Martin v. Baldwin. 90 N. J. L.
wise. 2 Corp, Jur, 826, and cases cited ; 20 Cyc, 85, and cases
cited.
In Bennett v. Ives, 30 Conn. 329, it was held that "the
actual perpetrator of a positive and obvious wrong can never
exonerate himself from personal liability by showing that he
was acting as the agent or servant of another, or even by his
superior's command." This rule was adopted in Carew v.
Rutherford, 106 Mass, 1, and adverted to and adopted in this
state in Homer v. Lawrence, 37 N. J.L. 46; in Bocchmo v.
Cook, 67 Id. 467, and in White v. New York, Susquehanna
and Western Railway Co,, 68 Id. 123.
This test of the defendant's liability imposed upon him the
duty, at least, to refrain from actively perpetrating a fraud in
his own interest, or in the interest of his principal, to the
detriment and damage of another.
The charge of the trial court was in consonance with this
rule of law and morals, and our attention has not been called
in the exceptions to any erroneous application of it.
. Nor are we able to discover in the charge any misdirection
as to the rule of damages applicable to the situation. The
rule itself, settled beyond controversy, by years of repeated
adjudication, and the critical analysis of text-writers, is stated
generally to be compensation adequate to the loss sustained.
The effort always is to so apply the rule as to produce repara-
tion in the individual case; and with that purpose in view,
appellate pronouncements in particular cases might be multi-
plied.
* For our purpose the potent analysis and wealth of illus-
tration, applied by Chief Justice Beasley and Chancellor Za-
briskie in Crater v. Binninger, 33 N, J. L, 513, supply the
rationale of the doctrine, and settle the rule in this state be-
yond the pale of controversy.
The defendant's application of the rule is based upon the
notion that the transaction was, in essence, the exchange of
real estate ; but quite manifestly it was simply the loss of the
bond and mortgage, plus the necessary ard incidental outlay
in living up to the transaction on the part of the plaintiff.
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NOVEMBER TERM, 1916. 245
90 N. J, L, Whitcomb v. Brant.
Our examination of the various elements and items ^of. loss
which entered into the plaintiiFs calculation of damage, the
correctness of which was left to the jury to determine, satis-
fies us that in this respect no error was committed.
The judgment will be affirm^!.
For affirmance — The Chancellor^ Chief Justice, Gar-
rison, SwAYZE, Thenchard^ Parker, Bergen, Minturn,
Kalisch, Black, White, Heppenheimkr, Willlams, Gari>-
NER, JJ. 14.
For . reversal — None.
JAMES A. WHITCOMB, APPELLANT, v. R. RUSSELL BRANT,
RESPONDENT.
Argued November 28, 1910— Decided March 5, 1917.
The plaintiff leased certain premises, in the city of Newark from de-
fendant, and having occupied under the lease for a period, at-
tempted to induce the landlord to accept a surrender of the same,
which the latter declined to do. The plaintiff then abandoned
the premises, and the landlord after an interim of two months,
during wliich the premises remained unoccupied, rented them for
a period of years, at an increased rent. The pjaintiff basing
his complaint on the doctrine of a89vmi)Ht, instituted suit for
the recovery of the excess rent from the ' landlord ; the com-
plaint on motion was strickeni out, as not alleging a valid cause
of action. Held, that since the plaintiff had abandoned the
premises, he could claim no interest, either upon the theory of ^^
privity of estate or privity of contract, above the amount of rent
for which he was obligated under his covenant. Held, further^
that since the doctrine of assumpsit is based upon an implied
promise invoked by the law, upon equitable considerations, it can
lend no support to a claim by one who while he repudiates his
express covenant, seeks at the same time to invoke it as a basis
for a claim to incidental profit.
/
On appeal from an order striking out complaint at Essex
Circuit.
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246 COURT OF ERRORS AXD APPEALS.
Whitcomb v. Brant. 90 N. J. L,
For the appellant, William L. Brunyate and Joseph 1/.
Oazzam (of the Xew York bar).
For the respondent, Lum, Tamb'lyn & Colyer.
The opinion of the court was delivered by
MiNTUBN, J. The complaint in this case was stricken out
at the Circuit, and from that order this appeal has been taken.
The situation presented is as though a demurrer under the
former practice had been interposed to the declaration.
The complaint alleges that about April 10th, 1906, the
plaintiff entered into a written lease under seal, for a term
of years, with defendant, as owner of certain premises in the
city of Xewark, at the annual rental of $2,400, payable in
equal monthly installments. In April, 1912, the plaintiff
notified defendant that he had no further use for the premises,
and plaintiff then procured one Forster to enfer as sub-lessee,
at the same rent for the remainder of the term. Defendant
refused to allow Forster to enter, and plaintiff then offered to
surrender the premises, and induce Forster to enter as defend-
ant's tenant, which offer defendant also refused.
In May, 1912, the plaintiff ceased to occupy the premises,
and offered to surrender same, but this also the defendant
refused.
The lease contained this covenant :
"If the said premises shall become vacant or be deserted
during the said term, said party of the second part (Whit-
comb, the tenant) does hereby authorize the said party of tlie
first part (Brant, the landlord), his heir&. assigns, agents or
attorneys, to re-enter the same, at his or their option, and re-
let them, and receive and apply the rent so received to the
pa}Tnent of the rent due by tliese presents."
For about two months the premises remained unoccupied,
but on July 5th, 1912, the defendant let the same to Forster
for a term of years, expiring on May 1st, 1915, at an annual
rent of $2,700, payable in monthly installments of $225,
being an increase of $300 annually over the former lease.
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NOVEMBER TERM, 1916. 247
90 y. J. L. Whitoomb v. Brant.
The plaintiff conceiving that this increased rental was his
property instituted this suit to recover it.
The concrete question thus presented is whether, upon such
a state of facts, an action in assumpsit can be maintained.
The theory upon which it is sought to be maintained is that
the plaintiff's estate as a tenant was never terminated, and,
in the language of the complaint, "the estate of the plaintiff"
during all of this time "was still outstanding and in exist-
ence." Upon this conception of liability, the plaintiff's com-
plaint has been framed, and the common law notion of an
assumpsit for money had and received to the plaintiff's use is
thereby invoked, as the legal theory upon which the validity
of the complaint must be determined.
That there was no conventual surrender of the demised
premises is manifest from the attitude of the parties, and the
inaction of the defendant; that there was no constructive sur-
render by operation of law is equally manifest, when it is re-
called that such a surrender can be evolved from the acts of .
the parties only when the intent to accept a proffered sur-
render is made reasonably clear and unequivocal, or is the
logical and necessary result of the landlord's conduct. Meeker
v. Sjyaulsbun/, 66 .V. J. L. 6*0 ; Payne v. Hall, 82 Id. 362 ;
Smith V. Hunt, 32 R, L 326; 25 Am, Cas. 971; Dentiis v.
Miller. 68 .V. J. L. 320; Jones v. Rush more, 67 Id. 157.
That the element of privity of estate which enters into the
completed legal relationship of landlord and tenant, was di-
vested by the plaintiff's conduct in "ceasing to occupy," or, in
the language of the trial court, "abandoning" the premises,
becomes manifest. Hunt v. Gardner, 39 y. J. L. 530; Ghe-
gan v. Young, 23 Pa. St. 18; 2 Bouv. 758; 2\ Cyc. 877.
The second paragraph of the complaint alleges that the
plaintiff "having no further use for said premises so notified
the defendant," and the third paragraph alleges that "the
plaintiff ceased to occupy said premises and tendered to the
defendant a surrender of his estate therein."
The failure of the defendant to accept the plaintiff's offer
is of importance only upon the inquiry whether there was in
fact a conventual surrender, or one implied by operation of
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248 COURT OF ERRORS AND APPEALS.
Whitcomb v. Brant. 90 N. J. L.
law ; but upon the question of abandonment^ these allegations
of the complaint are material as an admission evidencing the
plaintiff's own mind and individual status, with regard to the
locus in quo; and we conceive that these admissions establish
the plaintiff's status as a tenant, who had abandoned the de-
mised premises, without the consent of the landlord, thereby
severing the common law relationship of privity of estate,
without terminating the privity of contract which still im-
posed upon the plaintiff the obligation to pay rent imder the
covenant in the lease. Hunt v. Oatrdner, supra; Creveling v.
DeHart, 54 N, J, L, 338; 24 Cyc, 1164, and cases cited.
In this situation the landlord had a legal right to enter
under the privilege accorded him by the express terms of the
lease; or under his common law right as landlord for the pro-
tection of the demised premises. Upon this principle a land-
lord is not upon the abandonment of the demised premises
required to relet for the protection of the tenant.
Where the landlord enters under a provision in the lease,
such as is here presented, the liability to pay rent as such is
based upon the terms of the covenant, and does not arise out
of the privity of estate incident to the relationship of landlord
and tenant, which is thereby terminated. Hunt y. Gardner,
supra; Teller v. Boyle, 132 Pa. St. 56; 18 Atl Rep. 1069;
Vogel V. Piper, 89 N. Y. Supp. 431 ; 24 Cyc. 1165.
We have, therefore, the situation of a tenant who has vio-
lated his covenant by abandoning the demised premises, and
failing to pay rent, upon which after an interim of two
months, the landlord entered and relet the premises, and is
thereupon met by a demand from the tenant for the increased
monthly installment of rent which the new letting yields,
during the term of the former lease.
This demand, confessedly, cannot rest upon contract, be-
cause none exists, unless one can be implied, as the plaintiff
conceives, upon the doctrine underlying the common law ac-
tion of assumpsit for money had and received. But quite mani-
festly that doctrine was based upon an equitable considera-
tion, superimposed upon a pure legal or moral duty, as where
money had been paid under mistake or duress, or where a con-
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XOVEMBER TERM, 1916. 249
90 N. J, L, Whitcomb v. Brant.
sideration had failed, from which equitable consideration the
law ex debito justitioB raised an implied promise, and, in the
absence of a suitable original writ, conceded an action on the
case as a remedy. Bonnell v. Fovike, 2 Sid. 4; 2 Harv. L,
Rev, 66 ; 2 fi. C, L, 746, and cases ; 3 Streets Found, Leg.
Lidb. 190; 5 C/J. 1381, and cases.
Lord Mansfield, in Moses v. Macferlan, 2 Burr, 1005, con-
cisely defined its nature as a "kind of equitable action, to re-
cover back money, which ought not in justice to be kept.
* * * It lies only for money which, ex OBquo et bono, the
defendant ought to refund. * * * In one word, the gist
of this kind of action, is that the defendant, upon the circum-
stances of the case, is obliged by the ties of natural justice and
equity to refund the money."
It is manifestly inconceivable that a right of action, based
as was this, in its inception upon the construction of a legal
fiction to support it, could be made applicable to any claim
excepting one arising in fore conscientice ; for, as Blackstone
says, "No fiction shall extend to work an injury; its proper
operation being to prevent a mischief, or remedy an incon-
venience which might result from the general rule of law."
3 Bl, Com, 43.
In Lloyd v. Hough, 1 Eow, (U. S.) 153, Mr. Justice
Daniel observed: "The very term assumpsit presupposes a
contract. Whatever, then, excludes all idea of a contract, ex-
cludes, at the same time, a remedy which can spring from
contract only."
The development of modem contract law has evolved from
these fundamental principles a distinct department of juris-
prudence under the designation of- ''gw^m-contracts," to the
elucidation of which the learned eflforts of an eminent legal
tutor has given deserved prominence.
It is therein observed that "the real reason why a plaintiff
who is in default under a contract cannot recover money paid
thereunder, is that it is because of his default that he has not
received from the defendant the subject-matter of the con-
tract." Law of Quasi Cont, {Prof, Keener) 230.
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250 COURT OF ERRORS AXD APPEALS.
Whitcomb v. Brant. 90 X. J, L.
The Massachusetts Supreme Court, in Stark v. Lincoln, 2
Pick, 267, elucidates the general principle with these abserva-
tions : '^Courts ' of justice are eminently characterized by
their obligation and office to enforce the performance of con-
tracts, and to withhold aid and countenance from those who
seek, through their instrumentality, impunityor excuse for the
violation of them. And it is no less repugnant to the well-
established rules of civil jurisprudence, than to the dictates of
moral sense, that a party who deliberately and understand-
ingly enters into an engagement and voluntarily breaks it,
should be permitted to make that very engagement the founda-
tion of a claim to compensation for services under it."
The same doctrine was applied in Haslack v. Mayers, 26
N. J. L. 284; Fry v. MUes, 71 Id. 293; West Shore Railroad
V. Wenner, 75 Id. 494, and in New York in Peoples Bank v.
Mitchell, 73 N. Y. 406.
Volenti non fit injuria supplies the basic maxim upon which
this superstructure of the law has been constructed, as it does
in the ordinary delictual actions where the conduct of the
actor presents a complete answer to the suit as an estoppel
in pais.
Its application results in denying a remedy to one who^e
voluntary conduct, tantamount to a consent, has resulted in
his own loss or injury.
It is "a general rule of the English law," says Lord Tindall
in Oould V. Oliver, 4 B. N. C. 134, " that no one can maintain
an action for a wrong, where he has consented to or con-
tributed to the act which occasions his loss."
The same principle was applied in Byam v. Btdlard, 1 Curt.
(U. S.) 101, and in Caswell v. Worth, 5 E. £ B. 849.
Remembering that the action of assumpsit had its origin in
a conception of tort liability, primarily based upon the ele-
ment of deceit, by which one attempted to enrich himself at
the expense of another (2 Harv. L. Rev. 64) from which ex
debito justiticB an implied promise was evolved, the propriety
of the applicability of the maxim in this instance becomes
apparent ; and its application becomes conspicuously apparent,
wlien it is recalled that so far as the plaintiff could do so, he
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XOVEMBER TERM, 1916. 251
90 N. ./. L, Whitcomb v. Brant,
endeavored by act and word to surrender and evade every
semblance of his contractual obligation; and in fact aban-
doned the locm in quo, for the purpose of being relieved from
all responsibilities and obligations under his covenant.
The conduct of the defendant in acting as he did upon this
declared abandonment, incidentally resulted in having the
rent received, applied pro tanto to benefit the plaintiff, ahd
to relieve him to that extent under the obligation of the
covenant.
To that extent the doctrine of assumpsit which he invokes
indemnified him and finds recognition in the adjudications.
Alsup V. Banks, 13 L. R. A, 598, and notes.
In so far as the plaintiflPs rights under the contract are
concerned, they were at an end, so far as he could produce that
result, when he abandoned the premises and defaulted in the
performance of his covenants.
His privity of ^tate was terminated by his own act, so that
no implied promise can be said ex debito justiti<g to arise from
its existence. To concede to him, therefore, a right con-
structed by a fiction of law, for the purpose of subserving the
ends of justice, is tantamount to conceding that a contractual
right of action may be implied by law in favor of one who by
the voluntary violation of his covenant, produces a status of
non-feasance and default, from which acts of deliction he
seeks to reap a benefit and extract a reward; an anomaly,
as we have seen, which can find no support in legal principle.
The judgment will be affirmed.
For affirmance — The Chancellor, Chief Justice, Gar-
rison, SwAYZE, Trenchard, Parker, Bergen, Minturn,
Kalisch, Black^ White^ Heppenheimer, Williams, Gard-
ner, JJ. 14.
For reversal — None.
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252 COUKT OF ERRORS AND APPEALS.
Bonfield y. Blackmare. 90 N. J. L.
ORAVIA M. BONFIELD, RESPONDENT, v. J. EDWARD
BLAOKMOBE, APPELLANT.
Argued December 1, 1916 — ^Decided March 5, 1017.
1. The liahilHy of an iaviter is circumscribed by the invitation, and
does not extend to -persons invited whose injuries ' are received
while using the premises without the limits of the invitation.
2. A mere passive acquiescence by the owner of a building, or his
representative, in a certain use of his property, imposes no obli-
gation upon him to keep it in a safe condition for the benefit of
the user.
On appeal from the Supreme Coirrt.
For the appellant, 3/. Casewell Heine.
For the respondent, Wilhwr A, Heisley,
m
The opinion of the court was delivered by
Kalisch, J. The appellant appeals from a judgment on a
verdict rendered against him in favor of the respondent, in
the Essex Circuit, for injuries sustained by the latter, as a re-
sult from falling down an elevator shaft in the appellant's
store. The fact^ are briefly these :
The appellant at the time of the accident was the owner of
a six-story building with basement at No. 60 Academy street,
in the city of Newark.
The entrance to the building was through a small tiled ves-
tibule from which a stairway led to the upper floors. To the
right, at the threshold of this vestibule, was a door leading
into the appellant's photo and art supply store, and to the
left was a show case, displaying photographs, of a tenant
named Bergman, who occupied and used the fifth floor, as a
photo finishing studio.
About midway of the appellant's store, in the side wall, was
a door which opened directly upon a freight elevator shaft.
The door opened and shut on a slide. When opened it would
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NOVEMBER TERM, 1916. 253
90 N, J. L. Bonfield v. Blackmore.
pennit entrance upon the elevator, if there, and if the elevator
was not there, then upon a dark open shaftway. This elevator
was used, by appellant as well as by Bergman, who was the
only other tenant, to carry merchandise, employes and some-
times visitors or customers to the various floors of the build-
ing. The use to which Bergman put the elevator was known
to appellant who made no objection. The appellant provided
no one to run the elevator, and when he had need of it, one
of his employes would operate it The respondent, who had
never been in the building before, while on his way there and
near the entrance thereto, was accosted by Bergman's employe,
a boy fourteen years of age, ,who was just coming out of the
building and was asked who the respondent wanted to see, and
when told that it was the photographer, the boy replied:
"Follow me, and I will take you up on the elevator." The
respondent followed the boy into the appellani^s store and to
the place where the freight elevator was located. The boy
opened the sliding door, stepped aside to let the respondent
enter, and no elevator being there at the time, the respondent
stepped into open space and fell to the basement.
At the close of the plaintiff's case, in the court below, coun-
sel for appellant unsuccessfully moved for a nonsuit, and at
the close of the entire case unsuccessfully moved for a direc-
tion of a verdict for the defendant below, upon grounds which
present the broad question here, whether the facts, as estab-
lished, afforded any legal basis for a recovery by the plaintiff
below. Counsel for respondent urges that the judgment under
review can be properly sustained upon the theory that the ap-
pellant being a storekeeper necessarily was an inviter to the
public to enter his premises, and, therefore, under a legal duty
of guarding the elevator and opening in a reasonable manner
to protect persons who enter as prospective customers, regard-
less whether they in fact became purchasers or not. The facts
show that the respondent did not enter the appellant's store
for the purpose of becoming a purchaser, but for the purpose
of visiting a tenant on the fifth floor. But even if it were
assumed that the respondent entered the appellant's store for
the purchase of articles in the line of the appellant's business.
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254 COURT OF ERRORS AND APPEALS.
Bonfield v. Blackmore. 90 N, J. L,
the legal duty of the inviter to use reasonable care to protect
the invitee from dangers existing on the premises and un-
known tq the invitee was no broader than the implied invita-
tion— that is, to the use of the store space.
It is well settled that the liability of an inviter is circum-
scribed by the invitation and does not exte^id to persons in-
vited whose injuries are received while using the premises not
within the limits of the invitation. Ryerson v. Bathgate, 67
N. J. L. 337. Evidently, to meet this legal situation, it is
further urged by counsel for respondent that since there was
proof that the appellant had knowledge that the elevator was
being used by the tenant Bergman in carrying visitors and
customers to the studio and made no objection, that that was
tantamount to an acquiescence by the respondent in the use of
the elevator by the tenant for that purpose, and hence, persons
who came through the appellant's store to take the elevator
to go to Bergman's studio were impliedly invited to do so by
the appellant.
But this court, in Saunders v. Smith Realty Co,, 84 N. J, L,
276, held that a mere passive acquiescence by the owner of a
building, or his representative in a certain use of his property,
imposes no obligation upon him to keep it in a safe condition
for the benefit of the user.
The lease, from the appellant to Bergman, which was
offered in evidence, contains no clause authorizing Bergman
to use the elevator.
It cannot, properly, be said in the present case that the
appellant did not use reasonable care in keeping his store to
which the public was generally invited in a reasonably safe
condition.
When -the respondent with Bergman's servant entered the
appellant's store the door leading to the elevator was shut.
It was the act of Bergman's servant in opening the door when
the elevator was not there that created a danger, and it was
at the invitation of Bergman's servant that the respondent
stepped into the vacant space which resulted in his injur}*.
Manifestly, these circumstances in themselves preclude any
liability for the accident attaching to the appellant.
The judgment will be reversed.
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NOVEMBEE TERM, J 916. 255
t
90 X, J. L. Caruso v. Montclair.
For affirmance — Black^ J. 1.
For reversal — The Chancellob, Chief Justice, Garri-
son, SwAYZE, Trenchabd, Parker, Bergen, Minturn, Kal-
iscH, White, Heppenheimer, Williams, Gardner, JJ. 13.
NICOLA CARUSO AND GUISEPPI CARUSO, APPELLANTS, v.
TOWN OF MONTCLAIR, RESPONDENT.
Submitted July 10, 1916— Decided March 5, 1017.
The right of a municipality to contract with a railroad company for
an alteration of street grades to change a grade crossing, under
the provisions of section 30 of the €>eneral Railroad law (Comp.
8tat„ p. 4234), is paramount to the provisions of the Road act
of 1858 (Comp, Stat, p. 4461) and supersedes it; and in cases
where a change of grade in a street is made by a municipality
thereunder, the consent of a majority of owners in interest,
fronting on the street, is not required. Therefore, where the
municipality proceeds under section 30 of the General Railroad
law, to change the grade of a street, sections 70 and 73 of the
Road act are not applicable, and any damage sustained by the
landowners, by reason of such change, must be assessed as pro-
vided by the statute.
On appeal from the Supreme Court.
For the appellants, Oaetano M. Bclfatto and Wilbur A.
Beisley.
For the respondent, Hartshome, lAnsley d' Leake.
The opinion of the court was delivered by
Kalisch, J. The precise question presented for decision
on this appeal is whether an owner of a lot in a street built
upon can properly maintain an action for damages sustained
by him against a municipality, for a change made in the grade
of the street, where it appears that the consent of a majority
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256 COUHT OF ERRORS AND APPEALS.
Caruso v. Montclair. 90 N, J.L.
of the owners^ in interest, of the lots fronting on the part of
the street altered had not been obtained, according to the re-
quirement of section 73 of the Road act (Comp, Stai., p.
4461), and where it further appears that such change was
made, in order to eliminate a grade crossing, under the act
of 1901, page 116. The facts are these:
The plaintiffs were the owners of a lot on Bay street, in the
town of Montclair, upon which stood a three-story building.
The tracks of the Delaware, Lackawanna and Western Rail-
road Company crossed Bay street at grade. In order to elimi-
nate this crossing the town and railroad company made an
agreement by which the town should by ordinance change the
grade of the street. This was done, and as a result the street
was depressed, in front of the plaintiffs' propeiiy, the entire
width thereof, to a depth of about fifteen feet. The plaintiffs
w^e awarded damages by the assessors who were authorised
to make the award. Plaintiffs refused to accept the award
and brought an action for damages against the town. The
trial judge directed a nonsuit, and' it is from that judgment
that the plaintiffs appeal.
Section 70 of the Road act (Comp, Siat, p, 4461) gives
an action to the landowner injured by any change of grade,
if brought within twelve months. Section 73 of the same act
provides that no change of grade shall be made in a street
built upon, without the consent of the majority of the owners,
in interest, of the lots fronting on the part of the street
altered, nor without paying damages. These two sections
make provision for an action for change of grade if brought
within twelve months, and make a change of grade where the
street has been built on unlawful without the consent of the
majority.
Section 72 provides that section 70 shall not apply where
the- charter of the municipality authorizes an assessment for
damages, and, as the respondent had that power, this action
cannot be sustained if the change of grade was lawfully made.
The contention of counsel for appellants is, that since it
appears that the change was made without the consent of the
majority of the owners, as required by section 73, the town
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XOVEMBER TERM, 1916. 257
' i
90 A', e/. L. Caruso v. Montclair.
was without power to lawfully order it to be done, and bein^
unlawful it could not properly make any assessment, and
hence, the appellants' remedy is an action against the town to
recover damages for the unlawful injury sustained by them.
This contention leaves wholly out of consideration an essential
factor necessary to be considered in order to amve at a proper
solution of the question presented, and tliat is, as to the legal
effect of the act of 1901 (Pamph. L,, p, 116), on the several
provisions of the Road act, relied upon by the appellants.
The act of 1901, amended in 1903, is section 30 of the Rail-
road and Canal act (4 Comp, Stat., p. 1234), is of like char-
acter as the act of March 19th, 1874, relating to railroads and
canals (Rev., p. 944, § 163), the legal effect of which latter
act upon the section of the Road act wa^ dealt with in Reed
V. Camden, 53 N. J. L. 322, 328, in a well-considered opinion
by Mr. Justice Scudder, who, speaking for the Supreme Court,
held that the right to contract for change of grade at railroad
crossings is paramount to the Road act of 1858 and super-
sedes it, and in such cases the consent of landowners is not
required.
Therefore, where the municipalitv proceeds under the act
of 1901, as amended, to change the grade, the sections of the
Road act invoked by the appellants are not applicable, and
any damages sustained by the landowners by the change must
be assessed as provided by the statute.
The judgment of nonsuit will be affirmed, with costs.
For affirmance — The Chancellor^ Chief Justice, Gar-
riscTn", Swayze, Trexchard, Parker, Beroex, Mixture.
Kalisch, Black, White, Williams, Gardner, JJ. 13.
For reversal — Xone.
Vol. xc. 17
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2o8 coujrr .OF ekroks and appeals.
Martin v. Lehigh Valley R. R. Co. 90 N. J. L,
SAMUEL MARTIN, WHO SUES TO THE USE OF STANDARD
FIRE INSURANCE COMPANY, RESPONDENT, v. LEHIGH
VALLEY RAILROAD COMPANY OF NEW JERSEY, AP-
PELLANT.
Submitted December 11, 1916— Decided March 5, 1917.
1. The owner of a house, which was set on fire by sparks emitted
from a locomotive engine of the defendant company, received a
.sum of money, from an insurance company, giving the latter a
subrogation receipt. He then brought an action against the rail-
road company for the entire loss, which was settled by payment
of the total loss, less a certain sum, fixed as the amount paid
by the insurance company. The insurance company subsequently
brought an action against the railroad company to recover the
amount paid by it upon the insurance policy, and the railroad
company asked for a nonsuit, because it appeared that another
ivction had been begun and determined for the same loss. Ueld^
that the former action and settlement thereof was not a bar to
the action by the insurance company.
2. The statute limiting the time within which an action for dam-
ages for fire occasioned by sparks from a locomotive engine shall
be 'brought, does not require the prosecution of the action to be
brought to a finality within the statutory period fixed for the
bringing of the suit
3. Where, at the trial of an action against a railroad company
for damages oi*casioned by the emission of sparks from a loco-
motive, there was testimony adduced by the defendant company,
that the spark arrester of the locomotive which caused the fire
was inspected, and found in good order, and there was also
testimony that the same engine had set another fire, and an ex-
[)ert further testified that where fires repeatedly occur through
sparks escaping from an engine, it is evidence that the engine is
not in proper order, the question of negligence of the defendant
company was properly submitted to the jury.
On appeal from the Supreme (nuit.
For tlie appellant, Adrian Lyon.
For the respondent, Jlwtfnn I) iron.
The opinion of the court was delivered hv
Kalisch, J. The action in the court helow was brought
against the Lehigh Valley Railroad Company for the use of
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NOVEMBER TERM, 1916. ' 259
90 N. J, L. Martin v. Lehigh VaUey R. R. Co.
the Standard Fire Insurance Company, and arose oxit of the
following circumstances :
Martin's house was burned by a fire originally started by
sparks or live coal emitted from a locomotive engine of the
defendant company. He had a policy of insurance on the
house in the Standard Fire Insurance Company, which com-
pany paid him upon that policy $1,089, and for which he gave
a subrpgation receipt to the company. He then brought his
action against the railroad company to recover his entire loss,
but it appears that this action was compromised between the
parties, by the railroad company paying the amount of the
total loss, less the sum received by Martin from the insurance
company, which was fixed at $1,500. -
The insurance company then endeavored to collect from the
railroad company the amoimt which it had paid Martin on
the policy of insurance, and upon a refusal of the railroad
company to recognize this claim, the action in tlie court below
was brought and resulted in a verdict and judgment against
the railroad company. From this judgment the railroad com-
pany appeals to this court.
The first ground of appeal is based upon the claim that the
trial judge erred in refusing to nonsuit the plaintiff below,
because it appeared that another action had beon commenced
and determined for the same loss. This manifestly refers to
the action brought by Martin against the railroad company to
recover the whole amount of the loss, and which was compro-
mised by the railroad company payinsr Martin $1,500, after
deducting the ainount received by him from the insurarjce
company. That action was obviously settled upon the basis of
the liability over by the railroad company to the insurance
company, and, therefore, afforded no legal bar to the latter
maintaining its action against the railroad company.
The next ground of appeal is based upon the assertion, by
counsel for appellant, that more than a year elapsed before
the action was begun. But this is not so in fact. The fire
occurred on the 2d day of May, 1913, and the action was
begun by the issuance of the summons on the 30th day of
December of that year and the filing of the complaint on the
8th day of the next succeeding month.
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2G0 COURT OF EHKORS AND APPEALS.
Martin v. Lehigh Valley R. R. Co* 90 N. J. L,
The argument of counsel for appellant further proceeds
upon the theory that tlie language of section 58 of the Rail-
road act (Comp. Stat,, p. 4246), creating the special limita-
tion of actions of this nature, requiring that they *^shall be
commenced and sued within one year after the cause qj^ action
has accrued and/not after/' limits not only the bringing of the
action within the year, but also the prosecution thereof to a
finality, unless good cause for delay is shoVn. But, cjearly,
the statute does not mean that. It is well to note here that
the Limitation act above referred to wai^ amended by a later
statute which enlarged the limitation of one year to two years.
Pamph. /,. 1912, p. 265. But Ihis is of no importance here.
Moreover, the statute of limitation is a defence which must
he pleaded and no such defence is set up in tiie defendant's
answer.
The only other ground urged for a reversal is that there was
no negligence shown on the part of the appellant company as a
producing cause of the fire. We think that there was evidence
on this point requiring the submission of the question in-
.volved to the jury. It is true that there was proof of the ex-
amination of the spark arrester of the engine which caused the
fire and that the inspector testified to its good order. But
there was also evidence that this same engine had set another
firC; and only two days before the one in question, and there
was also testimony emanating from an expert called by the
railroad company that where fires repeatedly occur through
sparks escaping from an engine, it is good evidence that the
engine is not in proper order.
#The judgment will be affirmed, with costs.
For affirmance — The Chaxcellor, Chief Justice, Gar-
rison, SwAYZE^ Trenchard, Parker, Bergen, Minturn,
Kalisch, Black, White, Heppenheimer, Williams, Gard-
ner, 33. 14.
For reversal- — None.
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XOVEMBER TERM, 1916. 261
90 N. J, L. State v. Hart.
THE STATE OF NEW JERSEY, PLAINTIFF IN ERROR, v.
FREDERICK HART, DEFENDANT IN ERROR.
Argued June 21, 1916-— Decided June 18, 1917.
1. At common law, a bill of exceptions was not allowable in a
criminal case. Error was assignable only upon the record.
2. The right of review for trial errors, on bills of exceptions, in
criminal cases, is given by the statute of this state, solely to the
defendant.
3. A writ of error will not lie in favor of the state, to review a
judgment of acquittal.
4. Where an acquittal is had in a court of competent jurisdiction,
having jurisdiction of the person a ad the crime with which he
is charged, it is an acquittal within ^he meaning of the provi-
sions of article 1, paragraph 10, of the state constitution, even
though such acquittal was the product of trial errors.
On drror to the Supreme Court, whoso opinion is reported
in 88 N. J. L. 48.
For the plaintiff in error^ Martin P, Devlin.
For the defendant in error, William J. Crossley.
The opinion of the court was delivered hy
Kalisch, J. The defendant in error was indicted for
seduction. On his trial, in the Quarter Sessions Court of Mer-
cer county, the trial judge directed the juiT to acquit him.
The state sued out a writ of error in the Supreme Court to the
Court of Quarter Sessions, which writ was dismissed hy the
Supreme Court upon the ground that in order for the state to
secure a review of a trial error, it must be able to have a bill
of exceptions and a writ of error based thereon to remove the
case to that court, and since the statute makes no such pro-
vision, and there being no such practice at common law as a
writ of error in favor of the crown after an acquittal on the
merits, the writ was improperly sued out.
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262 COURT OF ERKOBS AND APPEALS.
State V. Hart 90 N. J. L,
The state now brings the record np for review before us on
a writ of error sued out of this court to the Supreme Court.
At common law a bill of exceptions was not allowable in a
criminal case. .Error was assignable only upon the record.
The bill of exceptions had its origin in the statute Westm.
2 ; 13 Edw. L, c. 31.
Tidd, in volume 2 on Practice, page 862, in commenting
on this statute, says: '^This statute extends to inferior
courts; and to trials at bar, as well as those at nisi prius;
but it has been doubted whether the statute extends to crimi-
nal cases."
In King v. Archbishop of York, Willes Rep. 533, Lord
Chief Justice Willes, in discussing the scope of chapter 31 (on
p. 535). says: "My brother Abney cited 2 Inst. 421, and
Savile 2, where it was holden that the statute of Westm. 2, c.
30, concerning nisi prius does not extend to the king ; and that
although the act is general, yet a nisi prius cannot be granted
where the king is a party, or where the matter toucheth. the
right of the king, without a special warrant from the king or
the consent of the attorney-general. He ^:aid, likewise, that r.
31 of the same act, concerning bills of exceptions, was never
thought to extend to the crown. And he mentioned some
cases where such pleas had been denied : and said that he
thought that the stat. 9 An. c. 20, extending this statute to
writs of mandamus &c. rather strengthened the objection."
'In 2 Inst. 427, Lord Coke says: "This act doth extend as
well to the demandant or plaintiff as to the tenant or defend-
ant in all actions, real, personal or mixed." And in King v.
The Inhabitants of Preston, Rep. temp. Jlardw. 249, Lord
Hardwicke (on p. 251), on an information in the Court, of
Exchequer, said that when he was attorney -general he had
known a bill of exceptions allowed, but tlien, said his Lord-
sliip, "tliey are properly civil suits for the king's debt," &c.
But a bill of exception cannot be allowed by the justices of
peace at the Quarter Sessions on the hearing of an appeal
against an order of removal.
In the cafse of Sir Henry Vane, 1 Lev. 68 ; Kel. 15 ; Sid. '
85, who was tried for high treason, the court refused to seal
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NOVEMBER TERM, 1916. 263
90X.J,L. State V.Hart.
a bill of exceptions, because they s-aid criminal cases were not
within the statute, but only actions between paiiy and party.
This matter is fully discussed in a learned and exhaustive note
by Mr. Evans in volume 3 of Evans Staiuies, page 341, &c.,
edition of 1829. On p. 342, the learned commentator says:
"From the language of the statute itself, I certainly should
not infer its application to criminal cases. * * * The gen-
eral feeling of the profession upon the subject is most strongly
evinced by the fact of no such bill of exceptions having been
tendered for a very long period of time, although many im-
portant questions of criminal law have been discussed with
great warmth, and with strong feelings of opposition to the
opinions of the court of which the much-agitated question of
the functions of the jury in cases of libel previous to the
statute of George III., is perhaps the most prominent in-
stance."
Chitty, in volume 1 of his excellent treatise on Criminal Law
(*622), says: ^^Vhen an exception is made by any party
to a witness which is overruled by the court, the opposite sidc#
have, at least in civil proceedings, the power of appealing
from his decision, by tendering a bill of exceptions. This
document the judge must, in civil cases, seal by virtue of 13
Edw, I., c. 31, and it will operate like a writ of error. But it
seems to be the better opinion that this provision does not
extend to any criminal case ; and is certainly inadmissible on
indictments for treason and felony. It has indeed been
allowed on an indictment for a misdemeanor, but the pro-
priety of this allowance has been disputed."
In Alhym's Oase, Dears. Or. Cos. Res, 505 (1852-1856),
Lord Campbell, C. J. (on p. 509), savF : "A bill of exception?
could not lie for the statute of Westm. *? is confined to civil
cases."
Tender the ancient English practice trial errors in criminal
case<j were reviewable by the taking of a special verdict or by
a case reserved which is illustrated by the following instances :
In King v. Hodgson et ah, 1 Leach Cr. Cos. 6, a case de-
cided in 1730, there was a special verdict upon an indictment
against several defendants, jointly indicted, tried and con-
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264 COURT OF ERRORS AND APPEALS.
State V. Uart 90 N, J. L.
victed. The question was whether under the evidence they
were all equally guilty. The report of the ease states: "In
order to avoid the expense which attends the drawing and
arguing a special verdict, the counsel agreed to submit the
point to tlie consideration of the judges in the shape of a re-
served case."
In Reg. v. Bernard, 1 F. & F, Cr. Cm.UO, ;^53, the defend-
ant's attorney submitted seven legal questions to the trial court
to be reserved, the seventh of which was concerning a certain
letter which was claimed to have been improperly received in
evidence, upon which Lord Campbell, C. J., sitting with Pol-
lock. C. B Erie; J., and Crowder, J., and a jury, remarked:
"l^iiere appears to be no objection to reserving any of those
jK)ints except the seventh; but that point, as you must be
aware, was argued before us, and we were unanimously of the
opinion that the letter was admissible. All other points which
you have raised are very fit indeed for the consideration of
the fifteen judges.''
And so it was held by the courts of the State of Xew York
prior to the passage of a statute providing for bills of excep-
tions in criminal cases, that no bill of exceptions could be
taken in a criminal case. People v. Ilolhrook, 13 Johns. Rep.
90; People v. Vermilyea, 7 Cow. 108; Ex parte Barker,
T(h US.
A consideration of the history of the origin and develop-
ment of bills of exceptions in this state is highly important as
bearing upon the question as to what the common law was on
the subject prior to the constitution of 1770.
The first act relating to bills of exceptions was passed in
1797, and is to be found in Pat. L., p. 24:0, entitled "An act
directing bills of exceptions to be sealed '* This act tliough
somewhat narrower in its terms than the English Parent act
of Wcfitm. 2, in that the New Jersey statute confines its op-
eration to causes where a writ of error lies to a higher court,
whereas the English statute is general in that regard. In all
other respects, however, the act of 1797 is, in substance, a copy
of the earlier Enorlish statute.
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NOVEMBER TERM, 1916. 265
90 S. ./. L, State v. Hart.
An examination of the early reports of eriniinal cases in
thif* state shows an absence of bills of exceptions in such cases,
until 1819, when, in We^t v. State, 22 N. J. L, 212, for the
first time,' manifestly, in a criminal case under review, with a
return of the record c^me a bill of exceptions, which the re-,
porter says was signed by virtue of the act of 1848.
Looking into the practice which prevailed in criminal cases
in this state prior to the passage of the act of 1848, we find
that it was analogous to the practice wliieh prevailed in Eng-
land before the Revolution of 1776, so far as it was consonant
with our changed form of government. The practice was for
the trial judge or court to take a special verdict, reserving
the questions of law for the opinion of the judges, or to cer-
tify a stated case, asking for an advisory opinion. See State
V. Ouild, 10 N, J. /v. 175.
That the consensus of opinion of botli bench and bar of
this state was that the act of 1797 did not provide for bills of
exceptions in criminal cases is not only confirmed by the
))ractice above alluded to, but also by the statute of 1818
(Pamph. Fj., />. 226) entitled "An act directing bills of excep-
tions to be sealed in certain criminal cases."
Section 1 of this act declares "that the act entitled ^4n act
directing bills of exceptions to be sealed,' passed March 7th,
1797, and each and every of the provisions thereof shall l>e
taken, deemed, and adjudged to extend to trials of indictment
for crimes and misdemeanors, which by law are punishable
by imprisonment at hard labor."
Section 2 of the act provides for the taking of an exception
on the trial of an indictment for any crime or misdemeanor
included within the provisions of the firtt section of the act,
and for the return of the bills of exceptions with a writ of
error.
In 1855 the legislature by an act entitled "A supplement to
an act, approved April the sixteenti), 1846, and entitled ^An
act regulating proceedings and trials in criminal cases,' " de-
clared that the act passed in 1797 shall be taken, deemed and
adjudged to extend to trials of indictment for treason, murder
or other crimes punishable with death, misprision of treason.
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2GG COURT OF KRROBS AND APPEALS.
State V. Hart. 90 A'. J. L.
manslaughter, sodomy, lapc, arson, burglary, robbery, forgery,
perjury and subornation of perjury, and in express terma re-
pealed the act of 1848. Pamph. L. 1855, p. 648.
It is obvious that the effect of this declaration of- the legis-
lature, and the repeal of the act of 1848, precluded the taking
of bills of exceptions in cases of misdemeanor and not men-
tioned in the above categorv^ of crimes.
In 1863 the legislature, after declaring that the act of 1797
shall apply to criminal cases, extended the right to a bill of
exceptions on the trial of any indictment for any crime or mis-
demeanor. Pamph, L. 1863, p, 311; Nix, Dig,, p, 228, ^
49, 50.
By section 90 of the Criminal Practice act of the Revision
of 1877, page 284, it is provided that sections 242, 243, 244,
245 and 246 of the act entitled "An act to regulate the prac-
tice of courts of law," shall be deemed, taken and adjudged to
extend to trials of indictment for crimes and misdemeanors
which bylaw are punishable by imprisonment at hard labor.
This, obviously, left all cases of misdemeanor punishable by
fine only or by imprisonment only, or by fine and imprison-
ment, without the benefit of bills of exceptions. But, by a
later statute found in {he Revision of 1877, page 1298, section
90 of the Criminal Practice act was repealed, and section 91
of the same act was amended with the result that bills of ex-
ceptions for trial errors are allowable "on the trial of any in-
dictment in any court of this state, for any crime or mis-
demeanor.'"
It is to be noted that the right of review for trial errors,
on bills of exceptions, in criminal cases, is given by the statute
of this state, solely to the defendant.
These statutes were enacted after the adoption of the consti-
tution of 1844. They essentially broadened the operation of a
writ of error in favor of a person convicted of crime.
In view of the constitutional provision (article 1, para-
graph 10) that no person shall, after an acquittal, be tried for
the same offence, it is clear that it is not within the constitu-
tional power of legislative authority to confer by statute any
such riofht on the state.
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NOVEMBEB TERM, 1916. 267
90 N. J. L, State v. Hart.
It is no answer to the prosecutor's claim to the right to re-
view a trial error to say that because the crown at common
law was not entitled to a bill of exceptions, in a criminal case,
therefore, no writ of error would lie in its behalf. For it has
already been suflBciently pointed out that bills of exceptions,
in criminal cases, were imknown to the common law, and to
the criminal procedure of this state until the statute of 1818.
But, as to the right of the crown to a writ of error, at com-
mon law, for a trial error, in a criminal case, tliere seems to
be some diversity of opinion. It is the consensus of judicial
opinion that the sole function of a writ of error at common
law was to bring up for review errors appearing on the face of
the record. In Rex v. Wilkes, 4 Burr. 2527, 2550, Lord Mans-
field, inier alia, said : "Till the 3rd of Queen Ann, a writ of
error in any criminal case was held to be merely ex gratia/*
* * * "But in the 3rd of Queen Ann, ten judges were of the
opinion Hhat in all cases under treason and felony, a writ of
error was not merely of grace, but ought to be granted.* *' "It
cannot issue now, without a fiat from the attorney-general;
who always examines whetlier it be sought merely for delay, or
upon a probable error. * * * In a misdemewaor, if there be
probable cause, it ought not to be denied ; this court would
order the attorney-general to grant his fiat. But be the error
ever so manifest in treason or felony, the king's pleasure to
deny the writ is conclusive."
The head-note to the case Be Pigott, decided in 1868 (11
Cox Cr. Cos. 311), reads: "The granting of a writ of error is
part of the prerogative of the crown. If, therefore, the attor-
ney-general of England, or the Ijord Lieutenant of Ireland
refuse to grant it, the Lord Chancellor has no jurisdiction to
review that decision."
Bishop, in the second edition of his valuable treatise on
Criminal Procedure, volume 1, section 1191, in commenting
on the English practice relating to the writ of error, say? : '^It
never was granted except when the kino:, from justice when
there really was error, or. from favor where there was no
error, was willing the judgment should be reversed. After
writ of error granted, the attorney-general never made any
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2(>8 COURT OF ERRORS AND APPEALS.
State V.Hart. 90Ii,J,L,
opposition because either he had certified there was error and
then he could not ar^e against his own certificate; or tlie
crown meant to phow favor, and then he had orders not to
oppose. Tlje king, who alone was concerned as prosecutor,
and who had the absolute power of pardon, having thus ex-
pressed his willingness that the judginent should be reversed,
the Court of King's Bench reversed it upon very slight and
trivial objections, which could not have prevailed if any oppo-
sition had been made, or if the precedent had been of any
consecjuence."
But enough has been said to demonstrate that a writ of
error, even in a case of misdemeanor, did not, under the Eng-
lish practice, issue, as a matter of course, upon the application
of a convicted defendant, and that the writ was resorted to by
the crown to show favor to the convicted person and to bring
al>out a reversal of the judgment against him. Singularly
cnougli it does not appear that the writ was ever used by the
attorney-general to reverse a judgment of acquittal, until the
cases of Beghia v. Mills, 10 CI & F. 534, decided in 1843 ;
Begina v. ChadwicJc, 11 Q, B, 205, decided in 1846, and Be-
gxiia V. Houston, 2 Crate, & Dix. 191, the latter case being a
judgment on demurrer in favor of the defendant. In none of
these cases was the question raised as to the right of the attor-
ney-general to take the writ. And because of this situation,
counsel for the state argues that it must be accepted as a fact
that the right of the crown to take the writ in case of an ac-
((uittal is indisputable.
To a similar contention of counsel made in People v. Com-
ing. 2 X. Y. 9, dealing with the precise question under dis-
cussion, the Court of Appeals, through Mr. Justice Bronson
(on p. 17), said: "The weight of authority seems to be
against the right of the government to bring error in a crim-
inal case. The absence of any precedent for it, either here
or in England, within a very recent period, fully counter-
balances, if it does not outweigh the fact, that the right has
lately been exercised in. a few instances without objection.
And in three or four states, where the question has been made,
the courts have decided that the right does not exist.''
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NOVEMBER TERM, 1916. 269
VO X. J, />. state v. Hart.
But even if it be assumed that it was the practice in Eng-
land for the attorney-general to take a writ of error in a crimi-
nal case, where the defendant was acquitted, we must not over-
look the fact that this power so exercised spning from a gov-
ernmental policy to carry out the royal prerogative of the king
and was either to favor or oppress a suhjcct. Such a policy
could not, consistently, with our free form of government
Jiave become imbedded in the administration of law in this
state. And while we recognize in full measure the functions
of a writ of error as they existed at conmion law up to tlie
time of the adoption of the constitution of 1776, tlie procedure
relating thereto is of statutory regulation.
Whatever doubt may exist whether the king under the com-
mon law could have a writ of error in a criminal ca?c after
judgment of acquittal of the defendant, it has been, as de-
clared in the opinion of the Supreme Court, the unquestioned
practice in this state recognized and acquiesced in by bench,
and bar, that no such writ would lie in lavor of the state, to
review a judgment of acquittal.
Since the constitution declares that no person shall, after
an acquittal, be tried for the same offence, no legislation can
be constitutionally enacted giving the right of review in cases
where there has been an acquittal.
Counsel for the state argues that the word "acquittaF' in
the constitution signifies legal acquittal, and that where it
appears that a trial error has occurred which led to an ac-
quittal, it cannot be properly said that there was an acquittal
within the meaning of the constitutional sense of the word.
To adopt this view would lead to a nullification of the bene-
fit of the constitutional provision. The obvious design of the
framers of the constitution was to prevent oppression.
Where an acquittal is had in a court of competent jurisdic-
tion, having jurisdiction of the person and the crime with
which he is charged, it is an acquittal within the meaning of
the constitutional provision, even though such acquittal was
the product of trial errors.
In the case of State v. Meyer, 65 N. J. L. 233, the defend-
ant was convicted in the Court of Quarter Sessions, and took
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270 COURT OF ERRORS AND APPEALS.
State V.Hart 90 N.J, L,
a writ of error to the Supreme Court, where the judgment of
tlie Quarter Sessions was reversed. Thereupon the prosecutor
of the plea« sued out a writ of error from this court to reverse
the judgment of the Supreme Court, and the defendant moved
to dismiss the writ on the ground that the state was not en-
titled to a writ of error in a criminal case. This court justi-
fied the propriety of the taking of the writ by the state, by
virtue of an act of 1799, "that errors happening in the Su-
preme Court of this state shall be heard, rectified and de-
termined by the Court of Appeals in the last resort in all
cages of law."
It is to be observed that the defendant in that case was
convicted in the court of first in^stance, and that it was an
intermediate court, whose action was subject to review by this
court, which reversed the judgment. This case, is, therefore,
no authority for the proposition advanced by counsel for the
state that a y^tH of error may be prosecuted by the state where
an ao(|uittal is the result of misdirection by the court.
For the reasons given, the judgment of the Supreme Court,
dismissing the writ of error, is affirmed.
For afjirmance — The Chancellor, Garrlsox, Tren-
ch ard, Parker, Minturn, Kalisch, Black, White, Hep-
PENHEIMER, WlLLTAMS, TaYLOR, GaRDNER, JJ. 12.
For reversal — Xone.
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NOVEMBER TERM, 1916. 271
90 X. J, L, Erie R. R. Co. v. Pub. Utility Board.
ERIE RAILROAD COMPANY, APPELLANT, v. BOARD OP
PUBLIC UTILITY COMMISSIONERS AND BOARD OF
CHOSEN FREEHOLDERS OF THE COUNTY OF HUD-
SON, RESPONDENTS.
Argued November 28, 191^— Decided March 5, 1917.
lender an act concerning public utilities (Pamph. L. 1911, p. 374,
oh. 195, § 38) the Supreme Court is given jurisdiction to review
the orders of the board of public utility commissioners and to
set aside or affirm the orders in- toto, but the Supreme Court
has no power under said act, either to revise or modify an order
of said board.
On appeal from the Supreme Court, whose opinion is re-
ported in 87 N, J. L. 438.
For the appellant;, Collins & Corhin.
For the board of public utility commissioners, L. Edward
Ilen'mann and Frank 11. Sommvr.
For the board of chosen freeholders of the eoimty of Hud-
son, John A. Dennin, James J. Murphy and Joseph M.
Noonan,
The opinion of the court was delivered by
Black, J. This case is an appeal by the Erie Railroad
Company from an order and judgment entered in the Su-
preme Court, reversing an order of the board of public utility
commissioners, founded upon a petition filed by the board of
chosen freeholders of Hudson county. The subject-matter of
the order was the keeping on duty flagmen at certain grade
crossings of the Newark branch of the appellant's railroad, in
Hudson county. The factvS are clearly and accurately stated
in an opinion by Mr. Justice Kalisch, speaking for the Su-
preme Court, reported in 87 N. J. L. 438. The order of tlie
Sir])reme Court on which the judgment was entered, in addi-
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272 COURT OP ERRORS AND APPEALS.
Brie R. R. Co. v. Pub. Utility Board. 90 N. J. L.
tion to setting aside the order of the board of public utility
commissioners, dated June 9th, 1914, "further ordered that
the record be remitted to said board of public utility com-
missioners so that said part of said order be modified by pro-
viding that the prosecutor be required to keep a flagman on
duty at said crossings and each of them only during such
liours of the day as trains and engines are operated over said
crossings^, and each of them, and covering the operations of
all trains and engines over said crossings, and each of them."
It is from the above order and judgment of the Supreme
Court that an appeal has been made to this court, on the
gi'ound that the Supreme Court had no power to make sucK
an order and judgment. The statute involved in this dis-
cussion is an act concerning public utilities (Pamph. L. 1911,
p. 374, ch. 195, § 38), the pertinent part of which is: "The
Supreme Court is hereby given jurisdiction to review said
order of the board and to set aside such order when it clearly
appears that there was no evidence before the board to support
reasonably such order, or that the same was without the juris-
diction of the board." It requires no argument or illustration
to demonstrate the point, that under this statute, the Su-
preme Court having concluded, there was no evidence to sup-
port a certain part of the order, the order of the board of
public utility commissioners should have been set aside in into.
without directing or ordering the board of public utility com-
missioners to either revise or modify the order. What order
should be made in lieu of the one set aside rests exclusively
within the jurisdiction of the board of public utility com-
missioners.
We therefore conclude the judgment of the Supremo
Court, for the above error should be set a^ide, because the
Supreme Court had no power to make such an order or judg-
ment under the statute. The power of the Supreme Court
under the above statute must be limited either to affirm or to
set aside the order of the board of public utility commission-
ers as a whole. The rule to be applied is illustrated in cases
from our reports. Public Service Gas Co. v. Board of Public
Utility Commi,moners. 81 .Y. J. L. 463; 87 7^. 581; Id
597.
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NOVEMBER TERM, 1916. 213
90 N. J. L. Frank v. Bd. of Education of Jersey City.
The judgment of the Supreme Court is therefore reversed
and- the order of the board of public utility commissioners is
set aside in to to.
For affirmance — White, Williams, Gardner, JJ. 3.
For reversal — The Chancellor, Chief Justice, Garri-*
SON, Trencilard, Bergen^ Minturn, Black, Heppen-
heimer, J J. 8.
EUGENE FRANK, RESPONDENT, v. BOARD OF EDUCA-
TION OF JERSEY CITY, APPELLANT.
Submitted July 10, 1916— Decided March 5, 1917.
A municipal corporation may be liable for work done and materials
furnished it, by an unauthorized agent, when the contract for
such supplies is one that is within the scope of its corporate
I>owers. ♦An agency in such a case may, by implication, be
created in fact, by the conduct or acts of the parties, and the
contracts of such an agent may, by like conduct and acts of the
parties, be, by implication, ratified by the municipality.
On appeal from the Supreme Court.
For the respondent, Maximilian T. Boi^enberg.
For the appellant, John Beniley.
The opinion of the court was delivered by
Black, J. There is but a single question presented by the
record in this case to be answered, viz., whether a nnmicipal
corporation is liable to pay for work done and materials fur-
nished it, by an unauthorized agent, when the mimicipality
had the power to make a contract for such purchases. If so,
whether an agency to purchase such supplies in fact can be
implied, from the acts and conduct of the parties and a ratifi-
Yol. xc. 18
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274 COURT OF EBROES AND APPEALS.
Frank v. Bd. of Education of Jeraey City. 90 N. J. L.
cation of the contract for such supplies be also implied, from
like acts and conduct. The application of elemental and well-
recognized principles in the law of agency, to the facts, as
disclosed by the record in this case, leads us to answer these
questions in the affinnative.
The case was tried at the Circuit, on an agreed statement
of facts, resulting in a judgment against the board of educa-
tion of Jersey City, for the sum of $684.30, with interest,
from June Ist, 1909. The suit was instituted to recover for
work done and materials furnished as follows :
Xov. 4, 1908. To installing light feeder
conduit under sidewalk, $67 . 50
Dec. 9, 1908. To installing power
conduit under sidewalk, 67 . 50
Oct. 15, 1909. To repairing damaged
wiring in roadway 40 . 00
Dec. 1, 1909. To repairing motor gen-
erator 46.70
To one pole tester 5.00
Dec. 28, 1909. To installing power
feeder conduit 228 . 80
To installing light feeder
conduit .. 228.80
$684.30
The facts on which the ruling of tlie trial court was based
are these: The above work and materials were actually fur-
nislied by the respondent to the appellant, by order of John
T. Rowland, Jr.. supervising architect of the appellant, ex-
cept two items. He had been permitted by the appellant "for
a number of years" to order labor and materials of the nature
sued for in this case. His orders had been recognized by the
appellant and the amoimts therefor had been paid by it.
"Many previous orders of the same kind were duly paid for
by the defendant," furnislied by the respondent. The item of
$46.70, for repairing motor generator, was for labor, which
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NOVEMBER TERM, 1916. 275
90 N. ./. //. Frank v. Bd. of Education of Jersey City.
was furnished by the respondent, tg the appellant, by order of
Charles C. Wilson, vice principal of the Jersey City high
school, which was under appellant's control. All the items
except the item of $5 for one pole tester were "emergency"
work, 1. e., they were furnished at the time the emergency ex-
isted, requiring immediate performance, and before a meeting
of the appellant could be held, to pass upon the necessity of
doing the same and ordering it to be done.
The respondent had done other work and furnished ma-
terifils of a similar character for the appellant under and by
similar orders. Such work had been regularly paid for, in due
course, by the appellant, when the bills for the same were pre-
sented, without question as to the regularity of the requests,
or the authority of the said Rowland and Wilson. The work
done and materials furnished, sued for in this suit, were done
and furnished, relying on the fact that previous orders by
Rowland and Wilson, under similar circumstances, had been
paid for by the appellant. The respondent knew that this
practice existed and was permitted to exist by the appellant.
This practice had been so "for a number of years." The ap-
pellant knew that the work and materials had been furnished
it by the respondent, at or about the times they had been so
furnished, and it did not, until three years after the last work
had been performed, deny the authority of the said Rowland
and Wilson to order the work and materials. The appellant
has had the use and benefit of the work so done and materials
furnished. The amounts charged are the usual amounts for
such work and materials and are reasonable charges. The
item of $5 for one pole tester represents the loss or damage
to a glass instrument, known as a pole tester, injured by the
employes of the appellant. Wilson directed the respondent to
present his bill therefor to the appellant, stating that it would
be paid. Bills in due form of law, under oath, were presented
by the respondent to the appellant before this suit was
instituted.
It is quite clear the facts of this case substantially distin-
guish it from the cases decided by this court, viz., New Jersey
Car Spring, £c., Co, v. Jersey City, 64 N. J. L. 544, and
Jersey City Supply Co, v. Jersey City, 71 Id. 631.
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276 COURT OF ERRORS AND APPEALS.
Frank v. Bd. of Education of JersejrCity. 90 N. J. L.
In the first case, the sui^ was instituted to recover for tliree
bills of goods furnished, viz., January 3d, 1894, $270 ; June
30th, 1894, $130.19; April 30th, 1895, $280.05. The first
bill, by a formal resolution of the street and water commis-
sioners, dated April 2d, 1894, was ordered and directed to be
paid. The court held the city was not liable for the last two
bills, as the goods were requisitioned by subordinate officers,
without authority from the board. The goods were not know-
ingly accepted or used by the board. That case did not in-
volve the question of an express contract, nor the question of
how an agency might be created.
In the second case, the requisition of the goods by the
president of the board of fire commissioners was not pre-
viously authorized by the board, and approved or acquiesced
in by the mayor, as provided by the statute. The agreed
statement of facts sets forth in terms that the goods were
"used by the city," and this expression fuVnished the chief
support for the contention in th^ case that the municipal cor-
poration was liable upon an implied undertaking to pay for
tliem, but the court held there can be no implied contract in
defiance of express restrictions imposed by law. In that case,
the authorized agents were subject by law to restrictions, with
respect to the subject-matter and to the form and method of
contracting. They were limitations upon the power itself.
This case is differentiated from those cases by the facts in
essential points. It is not simply a distinction without a dif-
ference. Those cases were rightly decided. They stand upon
a firm legal foundation. The rule of law to be applied to tliis
class of cases is stated by our Supreme Court thus : The rule
of law is, that it is only when the corporation has the right to
enter into the given contract that it can legalize it, after it
has been performed under an authority of its unauthorized
agents. Cory v. Frceliolders of Somerset, 44 N, J, L, 445.
That rule was subsequently applied by the Supreme Court, in
the case of Bourgeois v. Freelwlders of Atlantic, 82 Id. 82, to
a recovery for the price of lumber sold and delivered to tlie
county of Atlantic, for the reconstruction and repair of
bridges. The contract for such lumber having been made by
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NOVEMBEB TEEM, 1916. 277
00 X. J. L. Frank v. Bd. of Education of Jersey City.
an unauthorized agent, but was one which th^ corporation
could lawfully make. It was also held that such a contract
may be ratified by implication. This court, in the case of
New Jersey Car Spring, £c., Co, v. Jersey City, supra, held
such a contract can be expressly ratified by the municipal
authorities. See, too, Oreen v. City of Cape May, 41 A^. J,
L. 45.
In the case under discussion, the School law of the state,
session of 1903, found in Pamph. L. 1904, /?. 5, § 47 ; 4 Comp.
Stat., p, 4740 et seq,, provides that the board of edu-
cation in a city school district such as Jersey City is vested
with the power of making contracts in and by its corporate
name, and by section 50 every such board shall have the super-
vision, control and management of the public schools and
public school property in its district. It may appoint a super-
intendent of schools, a business manager and other ofiScers,
agents and employes as may be needed. Section 52 provides
the board may at any time order repairs to school buildings
to an amount not exceeding $500, may authorize the purchase
of supplies to an amount not exceeding $250, without adver-
tisement. Section 72 provides for a business manager, who
shall supervise, if there be one, the construction and repair of
all school buildings, and shall report monthly to the board of
education the progress of the work; that repairs not exceed-
ing the sum of $100 may be ordered by the business manager,
and repairs not exceeding the sum of $500 may be ordered by
the committee of the board having charge of the repair of
school property, without the previous order of the board and
without advertisement. In this statute, as will be seen, there
is 'express authority for the appointment of an agent — a
business manager. The term is immaterial. A supervising
architect or vice principal might just as well be called an
agent or business manager. There is also the recognition by
the legislature of the fact that the board of education prob-
ably could not act in many cases without appointing such
agents, since the very necessity of some cases requires that
such a board should act through agents. But even this would
not dispose of the two main items of $228.80 each. There is
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278 COURT OF ERRORS AND APPEALS.
Frank v. Bd. of Education of Jersey City. 90 N, J, L.
no evidence tending to show, and it is not even pretended,
that all these various items, amounting in the aggregate to
$684.30, can be treated as one contract, so as to bring the
amount above the $500 limitation permitted by the statute for
repairs of school property without the previous order of tiie
board and without advertisement It would be quite imprac-
ticable to require either a formal resolution for every possible
small expenditure, or for the board to act by a majority in
person. In the state of facts these orders under consideration
are called **emergenc/^ orders. The dictionary definition of
emergency is, a sudden or unexpected occurrence or condition
calling for immediate action. 3 Words & Phrases 2361.
The literature of the law of agency is rich in adjudged
cases. The principles pertinent to the subject under discus-
sion are these: An agency, as between individuals or busi-
ness corporations, may be implied from prior habit, or from a
course of dealings of a similar nature between the parties.
Fifth Ward Savings Bank v. First NcMoiud Bank, 48 N. J. L.
513; Oibson v. Snow Hardware Co,, 94 Ala, 346; 2 Corp.
Jur, 435, 441; 31 Cyc. 1217 (II) ; 1 Mech. Ag, (2d ed,), §
708. The agency may be implied from the recognition or ac-
quiescence of the alleged principal, as to acts done in his be-
half, by the alleged agent, especially if the agent has repeat-
edly been permitted to perform acts like the one in question.
Murphy V. Cane, 82 N, J, L. 557; 2 Corp, Jur, 443, § 40.
But when it is implied, and in so far as it is implied, the
power of the agent must be determined from no one fact
alone (New Jersey Car Spring, &€., Co, v. Jersey City,
supra), but from all the facts and circumstances for which the
principal is responsible. 2 Corp. Jur. 570, 576, § 218. So,
ratification may be implied from any acts, words or conduct
on the part of the principal, which reasonably tend to show an
intention on the part of the principal to ratify the imauthor-
ized acts or transactions of the alleged agent. Strauss v.
American Talcum Co., 63 N. J. L, 613 ; Smell v. Housman,
208 N. Y, 115, 123, provided, the principal in doing the acts
relied on as a ratification acted with knowledge of the material
facts. Metzger v. Huntington, 139 Ind, 501, 520; 1 Mech.
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NOVEMBER TERM, 1^16. 279
90 N. J, L. Frank v. Bd. of Edueation of Jersey City.
Ag. (2d ed.), § 395. The rule is particularly applicable,
where it appears that the principal has repeatedly recognized
and affinned similar acts by the agent. 2 Corp. Jur, 489, §
109 ; 31 Cyc. 1219. So, a municipal corporation may ratify
the unauthorized acts and contracts of its agents or officers,
which are within the scope of the corporate powers, but not
otherwise. DUl. Mwt. Corp. (5th ed.), §§ 463, 797; 6 Mc-
Quill Mun. Corp., § 2656; Green v. City of Cape May, 41
N.J.L.^5; 2S Cyc. 676.
There can be no legal distinction in the method by which
an agency may be created by implication, for an individual
and a municipal corporation. In both cases they stand on the
pame footing. Thus, in Dili Mxm. Corp. (5th ed.), §§ 445,
'775, it is stated: "In cases of public agents the public cor-
poration, it is said, is not bound unless it manifestly appears
that the agent is acting within the scope of his real and law-
ful authority, or he is held out by the authorized and proper
officers or body of the municipality as having authority to do
the act." The same rules apply to municipal corporations
acting within the limits of the powers conferred upon them
by the legislature as to other corporations or private persons.
Clark V. City of Washington, 12 Wheat. 40; Mayor, d-c, of
Jersey City v. Harrison, 71 lY. J. L. 69 ; affirmed, 72 Id. 185.
The remark of Mr. Justice Collins, in tl^e case of WentinJc v.
Freeholders of Passaic, 66 Id. G5, 67, is pertinent : "All that
he (i. €., the vendor or contractor) need look to is the power to
make the ostensible contract." On this point, see Arm {(age v.
Essex Construction Co., 87 Id. 134; affirmed, 88 Id. 640;
28 Cyc. 6676, 676.
An implied agency is an actual agency. Tt is a fact to he
proved by deductions or inferences from other facts. 2 Corp,
Jur. 435, § 32; 444, § 42. This is quite different from agency
by estoppel, as has been pointed out. Agency by estoppel
should be restricted to cases in which the authority is not
real but apparent. Morris v. Joyce, 63 N. J. Eq. 549, 555 :
Blake v. Domestic Mfg. Co., 64 Id. 480, 494 ; Pettingcr v.
Alpena Cedar Co., 175 Mich. 162, 166; Cohmhxa Mill Co. v.
National Bank of Commerce, 52 Minn. 224, 229; 31 Cijr.
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280 COURT OF ERRORS AND APPEALS.
Jackson v. Dilks. 90 N, J, L.
1219 (B). Agency bv estoppel has no proper plaxje in the law
of municipal corporations.
We think, as the board of education had the power, under
the statute, to contract for the work done and material sup-
plied in this case, there was created by conduct an implied
agency, an agency, in fact, on the part of Messrs. Rowland
and Wilson; and further, that by implication the contracts
of these unauthorized agents have been ratified by the acts
and conduct of the school board ; hence, it was not error for
the trial court to direct a judgment in favor of the respondent
and against the appellant.
The judgment will therefore be affirmed, with costs.
For affirmance — The Chancellor, Garrison, Swayze,
Trenchard, Bergen^ MInturn, Kalisch, Black, Heppen-
HEiMER, Williams, Gardner, JJ. 11.
For reversal — The Chief Justice, Parker, White,
JJ. 3.
THOMAS W. JACKSON, APPELLANT, v. LORENZO C. DILKS,
RESPONDENT.
Submitted December 11, 1916 — Decided March 5, 1917.
On an issue of fact, tried by a court and jury, where there is testi-
mony on both sides of a controverted fact, it is not error for the
trial court to submit the question at issue to the jury for deter-
mination.
On appeal from the Supreme Court.
For the appellant, Frank Benjamin,
For the respondent, Raymond, Mountain, Van Blarcom &
Marsh.
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NOVEMBEK TERM, 1916. 281
90 N. J. L. Jackson v. Dilks.
The opinion of the court was delivered by
Black^ t[. The appellant sued the respondent for the sum
of $261.60, interest on a loan of $2,012.35. The trial resulted
in a verdict for the respondent. The respondent was the
receiver of the Goeller Iron Works. He received from the
appellant a check for the above amount, as a loan, to be used
for the pa3rment of wages due to workmen, for which, as se-
curity, the respondent assigned preferred wage claims of an
equal amount. The receipt was signed "Lorenzo C. Dilks,
Receiver of the Goeller Iron Works." This money was repaid
to the appellant, by an order of the referee in bankruptcy, by
the respondent, as trustee in bankruptcy, "but without interest.
Hence, this suit to recover the interest. The appellant claims
that the respondent is liable to pay the interest individually
and the respondent claims that he dealt with the appellant,
not individually, but as receiver or trustee in bankruptcy, and
his liability, if any, is not an individual liability, but a lia-
bility as trustee in bankruptcy.
There are six grounds of appeal, but the only one argued
at length in the appellant's brief is the exception to the re-
fusal of the trial c4urt to direct a verdict for the appellant,
on the ground that the respondent is personally liable for the
amount of the interest sued for. This ground of appeal is
the only one that needs any discussion. We have examined,
however, all the other grounds of appeal. They are without
legal merit.
The testimony shows the receipt was signed by the re-
spondent, as receiver in bankruptcy. The respondent testi-
fied that the dealings in this matter with the appellant were
with him as receiver in bankruptcy. The money was returned
to the appellant from the bankrupt's estate by an order of the
referee in bankruptcy. The Goeller Iron Works was indebted
to the appellant in a large sum of money. The money loaned
was to pay wages that had accumulated and which were then
unpaid. The appellant testified that the wage claims were
given as security for the money that was advanced, and the
respondent agreed personally to pay six per cent, interest on
the loan imtil it was returned. The respondent denies, how-
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2S2 COURT OF ERRORS AND APPEALS.
Smith V. Smith. 90 N. J. L.
ever, that Tie ever personally promised to pay the interest.
Surely this raised an issue of fact, which could only be settled
by a jury. The rule to be applied is elemental. It is ex-
pressed in these words, where the evidence is in substantial
conflict concerning a critical question of fact, it would be
error to take the case from the jury. Friedmcui v. North
Hudson County Raiiwmf Co., 65 N, J. L, 298, 300; Delaware,
Sc, Railroad Co, v. Shelton, 55 Id, 342 ; Fiver v. Pennsyl-
vania Railroad Co., 76 Id. 713.
The action of the trial court was not error in this respect.
As stated above, there is no legal merit in any of the other
grounds of appeal. They require no discussion. The judg-
ment of the Supreme Court is then^fore afiirmed, with
costs.
For affirmance — ^The Chancellor, Chief Justice, Gar-
rison, SwAYZE^ Trenchard^ Parker, Bergen. Minturn,
Kalisch, Black, White, Heppenheimer, Williams, Gard-
ner, JJ. 14.
For reversal — None. » •
WALTER H. SMITH, RESPONDENT, v. CLARENCE C. SMITH,
EXECUTOR OF JAMES PRALL, DECEASED, APPELLANT.
Submitted November 21, 1916— Decided June 18, 1917.
1. A judgment or decree entered in the courts of the state of
Iowa, under proceedings to foreclose a mortgage and for the
redemption of the land, by paying the amount due on a judg-
ment, such decree and proceedings are prima facie evidence of
the validity of the mortgage, of the amount due thereon, of the
lands upon which the same were a lien, of the extent of the
lien, and of the right of redemption. This is so, when such
judgment or decree is put in evidence, in a suit brought in the
New Jersey courts, to recover damages for a breach of the
covenants against encumbrances, contained in deeds conveying
the lands covered by the mortgage foreclosed.
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XOVEMBEB TEBM, 1916. 2SS
90 N.J. L. Smith V. Smith.
2. Remedies are to be regulated and pursued according to the lew
fori, the law of the place where the action is instituted.
3. There is no statute of limitations in New Jersey, in an action
for breach of a covenant against encumbrances.
4. Actual eviction is not necessary, before an action will lie for
the breach of a covenant against encumbrances. It is sufficient
that eviction may take place.
On appeal from the Warren Cotinty Circuit Court.
For the respondent, L. De Witt Tayloi' and Osiris D. Mc-
Connell.
For the appellant, William H. Morrow.
The opinion of the court was delivered by
Black, J. The respondent sued the appellant's testator, in
the Warren Circuit Court, for a breach of the covenants
against encumbrances contained in two deeds made by James
Prall, the appellant's testator, bearing date March 8th, 1891.
The land conveyed by the deeds is situate in Harrison county,
State of Iowa. The case coming on for trial, the record
shows, the respective counsel having agreed upon the facts,
the court took the case from the jury and directed a verdict
for the respondent for $2,091.08. An exception was then
noted to the direction of the verdict. The appellant brings
the appeal, and alleges thirteen grounds and reasons for a re-
versal of the judgment, all of which, in different forms, chal-
lenge the right of the respondent to maintain the action.
Thus, the first four and the eleventh allege error in the trial
court in directing a verdict in favor of the respondent. The
fifth, sixth and seventh allege the only action that could be
maintained is an equitable proceeding; eighth, certain re-
leases given by the respondent operated as an equitable estop-
pel against the respondent maintaining the suit; ninth, there
was no eviction ; tenth, the broken covenants did not run witli
the* land, so that an action could be maintained on such
broken covenants; twelfth, the respondent, and those claiming
under him, have been in open and exclusive possession of the
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284 COURT OF EERORS AND APPEALS.
Smith V. Smith. 90 N. J. L.
premises since the 30th day of October, 1890, upwards of
twenty years next before the commencing of this suit; that
such possession is a bar to the right of action asserted by the
respondent; thirteenth, the decree or judgment entered in
the District Court of Harrison county, Iowa, so far as the
same is claimed to be the basis of this action, is of no force or
effect against the appellant, as executor of James Prall, de-
ceased. These points are argued by the appellant's counsel
at length in anelaborate brief, which fails to convince us that
the trial court was in error, or that the respondent had no
right to maintain his action.
The correctness of the computation of the amount of the
judgment, as directed by the trial judge, is not challenged
by any ground of appeal; nor is it argued by the appellant
in his brief. We have not, therefore, considered that ques-
tion, nor is It necessary to follow in detail the argument of
the appellant.
■ A short summary, however, of the essential facts is neces-
sary to a clear understanding of the case. The language of
the covenants in each deed is: "That the above-described
premises are free from any encumbrances other than roads
and highways." At the time of the delivery of the deeds, one
Alonzo P. Tukey held a mortgage upon the lands described
in the deeds for the sum of five hundred dollars ($500) and
interest. This mortgage was made to Tukey by one John W.
Foster, owner of the lands. The mortgage was dated Januar}^
25th, 1888. James Prall, the appellant's testator, received his
title to the land by virtue of a sheriff's deed under a decree
entered in the District Court of Harrison county, Iowa, on
September 6th, 1889. This decree was made in a suit brought
by James Prall to foreclose a first mortgage upon the same
lands for sixteen hundred dollars ($1,600) and interest, made
by the same John W. Foster to D. C. Richman & Son, and by
them assigned to James Prall. This mortgage was dated De-
cember 16th, 1887. In this foreclosure suit by James Prall,
Tukey- was made a defendant, by reason of his holding jthe
above mortgage, being a second mortgage upon the lands ; no
process was served upon him, he did not j'ppear in the action,
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NOVEMBER TERM, 1916. 285
90 N, J, Lj Smith v. Smith.
and the suit was by otder of the court continued as to him.
In fact, he had no knowledge of the Prall foreclosure suit
until a long time after the sheriff's sale — 1897 or 1898. On
March 11th, 1908, Tukey brought suit in the District Court
of Harrison county for the foreclosure of his mortgage, for
the redemption of the land, by paying the. amount due on the
judgment, in the Prall foreclosure suit. The respondent, in
this case, was made a defendant, as were also Peter Rein-
holdt and Alfred Peterson, who were, at that time, the owners
of the equity in the lands, having derived their title from
James Prall and the respondent through intermediate gran-
tees. Peterson filed a cross-petition against the respondent,
the plaintiff in this suit, to compel him to pay Peterson such
sum of money as might be found necessary to redeem the land
from the Tukey mortgage and to make Peterson whole in the
premises. On June 18th, 1909, a final decree was entered in
the Tukey case, wherein it was adjudged that the Tukey mort-
gage be established as a lien upon the lands in the amount of
•thirteen hundred and fifty-five dollars and eighty-eight cents
($1,355.88), with interest from June 18th, 1909. The court
directed a special execution to issue* for the sale of the lands
to satisfy the Tukey lien. The purchaser should pay off the
senior lien by paying three thousand dollars ($3,000), with
the accumulated interest thereon, to the clerk of the court
for the benefit of the owners of the land sold. On the cross-
petition, the court ordered that Peterson was entitled to re-
cover from the respondent, the plaintiff in this suit, such sum
as should be necessary under the decree to redeem the lands
from the Tukey mortgage, or to satisfy that mortgage.
An appeal was taken *by the respondent, the plaintiff in this
suit, from this decree to the Supreme Court »f Iowa, and
that court affirmed the decree. A procedendo was issued by
that court on April 29th, 1913. After this affirmance, by the
Iowa Supreme Court, in order to extinguish the Tukey decree
or judgment, as it is called, and free the lands from tlie lien
thereon, the respondent paid Tukey's attorney, on May 23d,
1913, nineteen hundred and six dollars and seventy-sLx cents
($1,906.76), being the amount of the judgment, with interest
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28G COURT OF ERRORS AND APPEALS.
Smith y. Sniith. 90N.J.L,
and costs. He then took an assignment of the judgment.
Respondent then released all of the lands from the lien of
the judgment, and thereupon brought the pres^it suit, Octo-
ber 10th, 1913, against the appellant's testator to recover the
amount which he paid to extinguish the encumbrance of
Tukey, with the result that the trial court directed a verdict
in his favor.
The question, as we see it, arising out of this state of facts,
and involved in the decision of this case, is whether the re-
spondent, the plaintiff in this suit, had a right to maintain
his action in the common law courts of New Jersey to recover
damages for the breach of the covenants against encum-
brances, and, if so, what law is to be applied to the solution
of this problem? The answer to this question depends upon
the application of the following-accepted principles of law.
'The proceedings and decree in the Tukey case are prima facie
evidence in this case of the validity of the Tukey mortgage,
of the amount due thereon, of the lands upon which the same
were a lien, of the extent ot the lien and of the right of re-
demption. 11 Cyc. 1156, 1157. The law of Iowa governs, as
to the lien, on the lands situate in that state. OriffUi v.
Griffin, 18 A^ J. Eq. 104, 107. It is the law of the state, in
which the mortgaged property lies, which governs. Brine v.
Hartford Fire Insurance Co., 96 U. S, 627, 635; 5 R, C. L.
926, § 21. The Iowa Supreme Court passed upon the Tukey
mortgage, in an opinion in which the facts as disclosed by
this record are quite fully set out. TvJcey v. Reinholdt, 130
X. W. Rep, 727; see TnJcey v. Foster, 158 Iowa- 311. From
these propositions, it would seem to follow that Prall's lia-
bility, the appellant's testator, is to be determined from the
judgment or decree entered in the Iowa courts, except, in so
far as that liability may be affected, by matters relating to the
remedy, t. e., the lex fori. Thus, the statute of limitations of
Xew Jersey, if any, would be applied, the period of limitation
])rescribed by the law of the forum controls. Jaqui v. Ben^
jam in, 80 N. J, L. 10. A foreign judgment is subject to the
statute of limitations of the lex fori, Summerside Bank v.
Ramsey, 55 Id. 383. Remedies are to be regulated and pur-
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NOVEMBEB TERM, 1916. 287
90 N, J, L, Smith v. Smith.
sued according to tlie lex fori, the law of the place where the
action is instituted. GiUich v. Loder, 13 Id, 68 ; 5 R. C. L.
917, §11; 941, §28.
In cases from our courts, in actions for a breach of cove-
nant against encumbrances, it is said the general rule is, the
right of action on the covenant against encumbrances arises
upon the existence of the encumbrance, irrespective of any
knowledge upon the part of the grantee or of any eviction of
him or of any actual injury it has occasioned him, so that,
if he has paid oflf or bought in the encumbrance, he is entitled,
at least, to nominal damages. Demars v. Koehler, 62 N, J. L.
203, 208; 7 R. C. L. 1163, §§ 78, 79. He may recover the
amount fairly and justly paid by him for the removal of the
encumbrance, not exceeding the value of the estate. Harts-
horn v. Cleveland, 52 N. J. L. 473, 482 ; affirmed, 54 Id. 391 ;
7 R, C. L. 1181, § 104, although he may not yet have paid
the same. Sparhman v. Gove, 44 N, J, L, 252.; Fagan v.
Cadmus, 46 Id, 441; affirmed, 47 Id. 519. An actual evic-
tion or disturbance of possession, unlike a suit for a breach of
a covenant of warranty, is not necessary, as a condition pre-
cedent, to maintaining an action for the breach of a covenant
against encumbrances. Carter v. Executors of Denman, 23
Id. 260, 270; Smith v. Wahl, 88 Id. 623. It is sufficient that
eviction may take place. Share v. Anderson, 7 Serg. & R.
43, 61.
.There is no statute of limitations in New Jersey in an ac-
tion for breach of a covenant against encumbrances, barring
sfucli an action, if not brought within twenty years after
broach of the covenant. Hasselbusch v. Mohmking, 76 N. J.
L. 691 ; see Parisen v. New York, £c.. Railroad Co., 65 Id.
413. The coimsel for the appellant concedes this, but argues,
in the answer to the complaint, he set up accord and satisfac-
tion, as a bar to this action, thereby invoking an analogy to
tlie statute of limitations, citing GiUick v. Loder, supra;
Parisen v. New York, &c., Railroad Co., snprn, and Bin/' v.
Everett, 55 N. J. Eq. 329, as illustrative cases on which to
rest the defence of presumptive satisfaction received for a
breach of the covenant. The obvious answer, to this is, of
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288 COURT OF ERRORS AND APPEALS.
Smith V. Smith. 90 N, J, L.
course, those cases and the principle therein illustrated have
no application to the facts of this case^ as disclosed by the
record. At best, that is a rebuttable presumption of satisfac-
tion. The proceedings in the Tukey ca^se show satisfactorily
the reasons for the delay. No evidence was offered or pro-
duced in denial of the facts shown by that record, the facts
not being controverted. It is hardly necessary to pursue this
discussion farther in detail. The record consists entirely of
exhibits and documents, over which there is no dispute. Xo
evidence was produced to controvert the findings of the decree
in the Iowa courts in the Tukey case.
Upon the undisputed facts, and the law applicable thereto,
we are satisfied that the respondent was entitled to maintain
his common law action in the courts of New Jersey. In our
view, this determines the case. K% stated above, the amount
of damages as calculated by the trial court is not challenged
or argued, so we express no opinion upon that point.
Finding no error in the record, the judgment of the War-
ren Circuit Court is affirmed.
For affirmance — The Chaxcellor, Garrison, Tren-
CHARD, Parker, Mtnturx, Kaliscii, Black, White, Hep-
PEJaiEIMER, JJ. 9.
For reversal — The Chief Justice, Swayze, Bergex,
Williams, Taylor^ Gardner,, JJ. 6.
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NOVEMBER TERM, 1916. 289
90 N, J, L, Erwin v. Traud.
(iRACE W. ERWIN, ADMINISTRATRIX, ETC., RESPONDENT,
V. WILLIAM A. TRAUD, APPELI^NT.
Argued November 22, 19ie— Decided March 5, 1917.
A traffic regulation giving an automobile driver the right of way at
a street intersection against a vehicle approaching the crossing
at the same time from his left, does not relieve liim of the legal
duty to use reasonable care to avoid colliding with such vehicle
should its driver disregard such right. In case of injury to a
passenger on the latter vehicle resulting from such a collision
under circumstances indicating a disregard of that legal duty,
it becomes a jury question whether under all the circumstances,
including the traffic regulation, there was negligence on the part
of the driver having the right of way.
On appeal from tlie Supreme Court.
For the appellant, FranJc E. Bradner,
For the respondent, Lum, Tamblyn & Colyer.
The opinion of the court was delivered by '
White, J. Respondent sued as administratrix of Frank
C. Young, who, while a passenger on an auto-bus running
west on Park avenue, in N'ewark, was killed in a collision be-
tween said auto-bus and the Ford automobile of the appellant,
which was running south on Fifth street, a street crossing
Park avenue at right angles. As appellant reached the near
side of Park avenue he had a clear view eastward down that
avenue which is sixty feet wide between curbs, and the jury
may properly ha\*e concluded that if he httd looked in that
direction he would have se<»n the approaching auto-bus in
ample time to avoid the collision. An ordinance of the city
of Xewark provided "every driver or op<?rator of a vehicle ap-
proaching a street intersection shall grant the right of way
at such intersection to any vehicle approaching from his
right." Fnder the requirements of tliis ordinance, if the two
Vol. xc. 19
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290 COURT OF ERRORS AND APPEALS.
Erwln V. traud. 90 N. J. L.
vehicles here involved reaxjhed the intersection substantially
at the same time, appellant's car should have been permitted
to cross first, and the claim is therefore made in his behalf
that he was not negligent in assuming, without looking to see
(if he did not look) that no vehicle was crossing from his
left at the same time that he was crossing, and that there
should have been a nonsuit or a direction of a verdict in his
favor on this ground.
We are imable to adopt this view for two reasons — ftfst, the
evidence was of such a nature that it was a question of fact
whether the two vehicles did reach the crossing at substan-
tially the same time. Tliore was evidence that appellant's
car was running "very fast," at a "terrible gait," and that it
struck the auto-bus on the latter's side. From this the jury
were justified in finding, if they did so find, that the auto-
bus reached the crossing first and was consequently entitled
to cro<s first; second, the fact, if it was a fact, that appel-
lant's car was entitled to cross before the auto-bus crossed did
not absolve appellant's driver from (using the language of
Mr. Justice Kalisch. in Pool v. Brown, 89 A'. J. L. 314) his
"legal duty to use reasonable care to avoid colliding with other
vehicles and persons in the highway." This is not a ease, as
was aptly suggested by the learned trial judge in his charge
to the jury, where the driver looked and saw the approaching
auto-bus in a position and going at a rate of speed which jus-
tified him in thinking that it would, as in duty bound, yield
the right of way to him. It was a case where the driver, as
the jury from the evidence may have found, did not look to
his left at all. This, we tliink, as a reasonably careful man
he should have done wliere, as liere, there was full unob-
structed opportunity for liim to have done so. In Earlr v.
Cojisolidaied Traction Co., 64 X. J. L. 573, this court said
that while the fii-st to reacli a crossing had the riglit of way,
yet, where it appeared to him that the other was not yielding
this riglit, lie could not recklessly proceed, but was bound to
stop or to turn aside if he could by the exercise^ of due care
do so. While this is a ease where there was an equally-
divided court, we, nevertheless, applied the same doctrine in
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NOVEMBER TERM, 1916. 291
90 y. ./. L. Erwin v. Traud.
Bahinowitz v. Hawthorne, 89 37". J. L. 308. If, as in those
cases decided, it is true that there still remains a duty to use
reasonable care to avoid a collision in a case where a driver
has secured a rtght of way by first arriving at a crossing, it
must be equally true that such a duty also exists where the
right of way is, as here, artificially or arbitrarily secured by
municipal ordinance. There being a duty to use reasonable
care to avoid a collision, and evidence indicating that such
care was not used, a jury question results, although it also
appears that the collision was caused by a disregard of mu-
nicipal traffic regulations by the other driver, for whose ac-
tion, however, respondent's decedent, as a passenger, was not
responsible. THe court cannot arbitrarily say that a failure
to look, under such circumstances, was an exercise of rea-
sonable care. We think the learned trial judge correctly
stated the law when he charged the jury: "The fact that
there was such an ordinance did not relieve the defendant
from using that degree of care which was reasonable under
like circumstances. You are to say from all tlie evidence,
considering where the accident occurred, the grade of the
streets,^the ordinance giving vehicles coming from the right
and crossing from an intersecting street the right of way,
whether the accident was caused by the negligence of the
defendant."
AYe think, therefore, that the learned trial judge was right
in refusing appellant's motions for a nonsuit and for direction
of a verdict in his favor.
There was also evidence of a more or less contradictory
character tending to show that the driver of the auto-bus,
because of having passed a touring car shortly before, instead
of occupying his right hand, which was the northerly side of
Park avenue, was in fact a little south of the centre of that
avenue in approaching Fifth street, and that in so doing his
negligence contributed to the accident. It is urged in this
connection that the learned trial judge should have charged
without qualification appellant's request: "If the jury is
satisfied that the driver of the auto-bus was driving west on
the south side of Park avenue, they must then assume that
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•292 COURT OF EREORS AND APPEALS. .
Erwin v. Traud. 90 N. J. L.
the driver was prima fade negligent, and if they are further
satisfied that Frank C. Young was aware of such negligence
of the driver and did not request him to change his course,
or warn him of the danger, or if the said Frank C. Young re-
quested the driver to take that course on the south side of
Park avenue, then they must find that Frank C. Young was
also negligent."
The court said : "I so charge you, but you must recollect
in applying that rule that the burden of proving the con-
tributory negligence of Frank C. Young is on the defendant,
and that there is no assumption that he was negligent unless
such fact is established to your satisfaction by the evidence
of the defendant."
This answer to the request was at least quite as favorable
to appellant as he was entitled to have it. There was no evi-
dence of a request from Young to drive on the south side of
the street, and his observation of danger and reasonable op-
portunity to request a change of course was at most only sur-
mise. The statement that Young's negligence must be estab-
lished by evidence of the defendant might have been harmful
if there had been any evidence on either side of such negli-
gence, but, under the circumstanes, it amounted to nothing
more than what it was obviously intended to mean, viz., that
in the absence of such evidence, the burden rested with the
defence to establish such negligence. We think in this con-
nection that there was no error in the affirmance of respond-
ent's second request to charge to the effect that contributory
negligence of the driver of the auto-bus, if there was any, was
not, standing alone, imputable to the passenger Frank C.
Young.
We believe that the foregoing substantially answers all the
specifications of error and the judgment is therefore affirmed.
For affirmaiwe — The Ciianckllor, Chief Justice, Gar-
rison, SwAYZE^ Trenckard^ Parker. Bergex, Mtxturx,
Kaliscii. Black, White, Heppexiihimek. AVilliams,
(tARdxer, JJ. 14.
For reversal — Xone.
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NOVEMBER TERM, 1916. 293
90 X. J. L. 'Albrecht v. Penna.' R. R. Co.
CHARLES ALBRECHT, RESPONDENT, v. THE PENNSYL-
VANIA RAILROAD COMPANY, APPELLANT.
Submitted December 11, 1910— Decided March 5, 1917.
On appeal from the Hudson County Circuit Court.
For the appellant, Vredenburgh, Wall & Carey {John A.
II art pence on the brief).
For the respondent. Queen & Stout,
Per Curiam.
The questions raised on this appeal are determined, in
effect, by the principles laid down by this court in Cart v.
Pennsylvania Railroad Co., 88 N, J, L, 235.
The judgment below will be affirmed, with costs.
For afiirmance — ^The Chaxoellor, Chief Justice^ Gar-
rison, SwAYZE^ Trenchard, Parker^ Bergen, Minturn,
Kalisch, Black, White, Heppenheimer, Williams,
Gardner, JJ. 14.
For reversal — None.
AMERICAN WOOLEN COMPANY, APPELLANT, v. EDWARD
I. EDWARDS, COMPTROLLER, ET AL., RESPONDENTS.
Submitted December 11, 1916— Decided March 5, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 90 N, J. L. 69.
For the appellant, Lindabwry, Depue Jc Fanlks,
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:^94 COURT OF ERROKS AND APPEALS.
American Woolen Co. v. EMwards, Comptroller. 90 N, J. L,
For the respondents, Frcmcis H. IjfcOee and John IF. Wes-
cott, attorney-general.
Per Cukiam.
For the purposes of the present ease we find it unnecessary
to add anything to the reasoning of the opinion delivered in
the Supreme Court. But our adoption of that opinion for the
purposes of the present decision is not intended to be taken
as deciding more than that, the state tax in question is
^levied" in the sense intended by the statute at least as early
as the first Tuesday in May, which is the latest date upon
which the annual return of the corporation could have been
made to the state board of assessors. The act says "on or
before the first Tuesday in May;'^ but how long before that
date is not specified. Inasmuch aS the return is made as of
the 1st day of January preceding, it is obvious that it may be
made at any time between the 1st of January and the first
Tuesday in May ; and it is equally obvious that the. state
board of assessors may certify to the comptroller at any time
between the actual receipt of the annual report from the
corporation and the first Monday of June, the amofmt of tax
due at the rates fixed by the act. Comp. Stat., p. 5291, §
505. It may well be argued that in contemplation of law
the annual tax is levied on the 1st day of January, being
the date as of which the taxable status of the corporation
is ascertained; and so the United States Supreme Court
seems to have thought. Nem Jersey v. Anderson., 203 U.
8, 483, 494. We do not decide the point, as it has not been
fully argued, and is not necessary to an affirmance of the
judgment below, but content ourselves with reservation of the
question for decision if and when it is squarely raised.
The judgment of the Supreme Court is affirmed.
For affirmance — The Chancellor, Chief Justice, Gar-
rison, Trenchard, Parker, Bergen, Minturn, Kalisch,
Black, White, Heppenheimer, Williams, Gardner,
JJ. 13.
For reversal — None.
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NOVEMBER TERM, 1916. 295
90y,J.L. Carson V. Scully.
ROBERT CARSON, APPELLANT, v. THOMAS J. SCULLY ET
AL., RESPONDENTS.
(Middlesex county recount case.)
ROBERT CARSON, APPELLANT, v. THOMAS J. SCULLY BT
AL., RESPONDENTS.
(Monmouth county recount case.)
ROBERT CARSON, APPELLANT, v. THOMAS J. SCULLY ET
AL., RESPONDENTS.
(Ocean county recount case.)
Argued December 4, 1916 — Decided January 19, 1017.
The judges being equally divided on the question whether the judg-
ment should be reversed, the judgment is afSrmed solely because
of such division, which renders any opinion by the court im-
possible.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N. J. L. 458.
Walker, Chancellor. My vote to reverse tlie judgment
of the Supreme Court in this case is oased solely upon the
view that the legislature has not provided any machinery for
carrying on a recount of votes cast for candidates for congress,
although I find in the statute a declaration of intention that
recounts shall extend to congressional elections.
The learned justice, who wrote the opinion in the court
below, states the case when he says :
"The insistence of counsel for the prosecutor is, that tlie
legislative intent was to confine the provisions of this section
(159 of the act concerning elections) to candidates for elec-
tion, such as state senators, members of asseml)ly, surrogates
and other county and municipal officers who, if elected, arc,
under the statute, entitled to receive their certificates of olcc-
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296 COURT OF ERRORS AND APPEALS.
Carson v. Scully. 90 N, J, L.
tion from the county board of canvassers. And, in further-
ance of this view, it is strenuously argued that the clear leg-
islative design to exclude candidates at an election for gov-
ernor, United States senator, members of congress and presi-
dential electors, whose election under the statute is to be de-
termined by tlie state board of canvassers, is made manifest
by tlie provisions of sections 160 and 161 relative to the re-
count of votes, and section 164 relative to contested elections
for county offices," &c.
I agree with the view held by the learned justice that the
statute (Pamph. L. 1898, p, 237, § 159; Comp, Stat., p.
2073; Pamph, L. 1909/ />. 41) evinces an intent to give to
any candidate at anj'^ election, who shall have reason to believe
that an error has been made in counting or declaring the vote
of sucli election, whereby the result has been changed, the
right to a recount; and to this extent, disagree with the con-
tention of counsel that the section evinces a legislative intent
to confine the provisions to candidates for the offices named;
but, as I find in the act no machinery provided for the carry-
ing on, ascertaining or certifying the result of a recount of
votes cast in congressional elections, I am constrained to the
view tliat no such recount can be ha^, not that it was not the
intention of the legislature to give it.
There was a time in the history of our state when no re-
count of votes cast at any election could be had (except as an
incident to proceedings in a contested election before a body
authorized to inquire into and decide such a question, as the
house of representatives, which is the sole judge of the elec-
tion and qualification of its members, and the Supreme Court
on quo warranto, wliere the right to office was I)eing inquired
into). In fact, we had no statute authorizing a recount of
votes until as late as 1880. See the Eupplement to "An act to
regulate elections." Pamph. L. 1880, p. 229; Rev. Supp., p.
277: Oen. Stat., p. 1327, § 195. And this extended only to
candidates for member of the state senate or assembly.
By a supplement to the Elections act {Pamph. L. 1895, p.
659. § 13; Gen. Stat., p. 1367, § 369) it was provided that if
any candidate for any office shall pray a lecount of the whole
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NOVEMBER TERM, 1916. 297
90 N. J. L. Carson v. Scully.
or any part of the vote, by petition to one of the justices of
the Supreme Court, and shall deposit such sum as the justice
shall order as security for the payment of expenses, it shall
be the duty of the justice to order such recount by the county
board of elections u|^er such supervision as he may order,
&c., and on the conclusion thereof shall certify the result,
which certificate shall take the place of that originally issued
by the canvassing board. The present statute, with reference
to recount of votes, is to be found in "An act regulating elec-
tions" (Revision of 1898), Comp. StaL, p, 2073, § 159;
Famph, L, 1909, p. 41 et seq., and provides that whenever
any candidate at any election shall have reason to believe that
an error has been made by any board of elections or of can-
vassers in counting or declaring the vote of such election,
whereby the result has been changed, such candidate may ap-
ply to any justice of the Supreme Court who shall be author-
ized to cause, upon such terms as he may deem proper, a re-
count of the whole or such part of the votes as he may de-
termine, to be publicly made under his direction by the county
board of elections, and if it shall appear upon such recount
that an error has been made sufficient to change the result of
such election, then such justice, in case of candidates, shall
revoke the certificate of election issued to any person and
shall issue in its place another certificate in favor of the party
who shall be found to have received a majority of the votes
cast at such election. Section 159. That whenever any such
certificate shall be issued by such justice, the same, shall be
filed with the clerk of the county or municipality in and for
which such election was held, and the clerk shall make and
certify a copy thereof and deliver it to the person who shall
be so declared elected, and in case of an election for senator,
assembl3mian or any county officer, shall transmit to the sec-
retary of state another copy of such certificate. Section 160.
That any applicant for such recount shall deposit with the
counly clerk such sum as the justice shall order as security
for the payment of the expenses of the recount, or if such
justice shall order, shall file with the county clerk a bond to
the incumbent, to be approved by the justice, in such sum as
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298 COURT OF ERROES AND APPEALS.
Carson v. Scully. 90 N. J. L,
he may require, conditioned to pay all costs and expenses in
case the original count be confirmed or the result of such re-
coimt is not suflBcient to change the result, and if an error
sufficient to change the result has been made, the expenses
shall be paid by the county or municinality in and for which
such election was held. Section 161.
It will be observed that section 13 of the act of 1895, and
section 159 of the act of 1898, as amended by Pamph. L,
1909, p, 41, omit mention of the offices, candidates for which
may apply for a recount, while the act of 1880 expressly con-
fined recoimts to elections for state senators and assembly-
men. Assuming that the recount provisions of the act of
1895 are as broad as those of the acts of 1898 and 1909, it
would b^ quite useless to analyze them, as it is the latest
statute with which we have to deal in the case at bar.
That statute (Pamph. L. 1909, p. 41), which, is a supple-
ment to- the Election act (Revision of 1898), purports to
amend section 159 of the act of 1898 "to read as follows," and
then goea on to re-enact section 159 verbatim et literatim, and
adds another section — se^ction 2 — which enacts that the pro-
visions in section 159 relating to recount of votes upon any
referendum or question submitted to the electors shall apply
to those submitted at the last general election (1908), if
applied for within thirty days after the passage of that act
(1909), the time of application for which, under the pro-
vision of section 159, had expired. Therefore, the statute
stands just the same, with reference to the recount of votes
cast for candidates at elections, as though the amendment of
1909 had not been passed.
The provision in section 159, that "if it shall appear upon
such recount that an error has been made sufficient to change
the result of such election," the justice shall revoke the
"certificate" of election already issued, &c., does not come in
aid of the contention of the appellant to the slightest extent,
because the word "certificates" has reference to the word
"candidates," the whole clause reading, "and if it shall ap-
pear upon such recount that an error has been made suffi-
cient to change the result of such election, then such justice
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XOVEMBER TERM, 1916. 299
90 N. J. L, Carson v. Scully.
in the case of candidates shall revoke the certificates of elec-
tion issued to any person, and shall issue in its place another
certificate in favor of the party who shall be found to have
received the majority of the votes cast at such election." The
provision that in the case of candidates the certificates shall
be revoked, clearly comprehends the case of recounts for more
than one candidate at the same time — as, for instance, a re-
count before a. county board of canvassers of the votes cast at
an election for surrogate of the county, and of mayor, or say,
alderman of a city within the county — and yet the act goes
on and provides that after the certificates shall be revoked,
the justice shall issue in its place another certificate in favor
of the party who shall be found to have received the majority
of the votes cast at the election — although certificates may
have to be issued to persons as suggested. This alternate use
of nouns in the singular and plural numbers, when either one
or the other only should be employed, while ungrammatical,
does not, in anywise vitiate the section ; but, on the contrary,
because the plural noun is thus employed, it cannot be laid
hold of as an argument for the contention that the votes of
three counties, comprising a congress disti'ict, may be ordered
recounted, because a justice of the Supreme Court may make
superseding certificates as well as certificate, because, as
stated, the noun certificates is used only ir reference to candi-
dates, comprehending, plainly one certificate for each candi-
date obtaining a majority on a recount; and this, quite aside
from the fact that congressmen get no certificates from county
boards, but only one certificate from the state board of
canvassers.
The popular and generally accepted meaning of language
is to be applied to the construction of a statute in the absence
of a legislative intent to the contrary. Conover v. Public Scr-
pice Railway Co,, ^SO N. J. L. 681. The word **any" means
"one out of many * * * and is given the full force of
'every' or 'all.' " Bouv. L, Diet. (Ramie's rev.) 205.
In Pturdy v. The People {Nem York Court of Errors), 4
Hill 384, Scott, senator, in his opinion (at p. 413), observes:
"Johnson says that the word 'every' means each one of all, and
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300 COURT OF ERBORS AND APPEALS.
Carson v. Scnlly. ' 90 A'. J. L.
^veff this example: ^411 the congregation are holy, everyone
of them. Numbers/ The same lexicographer defines 'any' to
mean ei^ry, and says: 'It is, in all its senses, applied indif-
ferently to persons and things.' "
Now, it must be perfectly obvious that when the legisla-
ture, in section 159 of the present act concerning elections,
«fiid that any candidate for any office might have a recount,
&c., it meant what it said. The words define themselves and
there is no room for construing them contrary to their plain
and ordinary meaning. I start, therefore, with the proposi-
tion that the legislature meant to give a recount to a candi-
date in a congressional election. But, it must be equally ob-
vious that a recount cannot be carried on without machinery
provided for that purpose. And the act of 1898, as we have
seen, provides that machinery, but restricts its operation to a
recount for county or municipal offices, for the recount is to
be had &y the county board of canvassers and the certificate
of the result is to be fi^led with the clerk of the county or miir
nicipality in and for which the election was held; and the
expenses, if an error be made sufficient to change the result,
are to be paid by the county or municipality in and for which
the election was held.
Now, an election for congressman is not held in and for a
county or municipality, but in and for a ''district" created by
the legislature, and these districts have no clerks, and no cer-
tificates of election are given congressmen-elect by any officers
of their respective congressional districts ; in fact, there are
no such district officers.
The present act {Pamph. L, 1912, p. 912) divides the state
into twelve congress districts, the one in question being com-
posed of the counties of Middlesex, Monmouth and Ocean,
called in the act the "third district.'' Admittedly, a single
county could be constituted a district, but none is in the act
mentioned, and, what is more to the purpose, several counties
are subdivided in creating districts, notably the sixth, which
is composed of the counties of Bergen, Sussex and Warren,
and the townships of Pompton and West Milford, in the
countv of Passaic.
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jSTOVEMBER term, 1916. 301
90 N. J, 2>. Carson v. Scnlly.
If the decision of the court below is right, then a recount
.of votes cast in a gubernatorial election can be had on the ap-
plication of an unsuccessful candidate. This recount would
liave to be made upon an order of a justice of the Supreme
Court, under his direction, "by the county board of elections,"
after due notice, &c. If made, the "county board" would have
to swell into twenty-one different county boards of election
and "the clerk of the county or municipality in and for whicli
such election was held," would have to be multiplied by the
total number of county clerks in the state. And all tliis with-
out any legislative provision made therefor. The analogy in
the case of votes cast in a congress district is entirely apposite
to that of an election for governor. Furthermore, if the re-
sult were changed, how would the expenses be paid? That
act (section 161) provides, as already noticed, that the appli-
cant for a recount "shall deposit with the county clerk such
sum as such justice shall order as security for the payment
of such recount, or if such justice shall so order, shall file
with the county clerk a bond to the incumbent, * * * and
if it shall appear that an error sufficient to change the result
has been made, then the expenses of such recount shall be
paid by the county or municipality in and for which such
election was held." As an election for governor is not held
in and for a county or municipality, but for the whole state,
it would be entirely impracticable to order the expenses paid
in a gubernatorial contest, where the result had been changed
by a recount, under the provisions for payment found in the
statute, namely, by the county or mumcipaUty in and for
which the election was held, because an election for governor
is held neither for a county nor municipality, but in eirrry
voting precinct in the state, and, it may be said, for the whole
state, but n^ot for any county or municipality of the state.
Payment of the expenses of a congressional recount by the
political subdivisions comprising the district — counties and
mimicipalities, as the case might be — where the result had
been changed, in my judgment, could only be made by court
action transcending construction, and amounting to judicial
legislation — a thing forbidden. Whether, in rase the result
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302 COURT OF ERRORS AND APPEALS.
Carson v. Scully. 90 N. J, L.
should not be changed, the money deposited could be laid hold
of for payment, br the bond enforced for that purpose, as a
voluntary obligation (see Emarmel v. McNeil, 87 N. J. L.
499), need not be considered.
The scheme of a congress district recount is not workable
under the provisions of the act. I do not say that such a
scheme could not be made workable by legislation. On the
contrary, it is plain that it could.
Ample provisions are made in the act concerning elections
for contests for governor and for members of the legislature
and. congress. The ninth congress district is composed of the
cities of East Orange and Orange, and certain wards of the
city of Newark, all in the county of Essex. If an election re-
count were held in this district, the certificate of the justice
of the Supreme Court might physically be filed with the city
clerks of the Oranges, but could not be filed with the clerks
of the several wards of Newark, as there are no ward clerks.
The modus operandi of canvassing the votes cast at elec-
tions is, shortly, as follows : The county board of elections in
each county is constituted the board of county canvassers.
Section 102. The members of the county board proceed to
examine the statements and copies of statements of elections
which shall .be produced before thefm, and canvass and de-
termine the votes cast at the election and make two state-
ments of the result containing the number of votes given in
each election district for any oflSce to be filled. Section 108.
Such boards deliver one of the statements, in case of an elec-
tion held for members of the house of representatives or for
electors of president and vice president or for governor or
senator, members of assembly or any county officers, to the
secretary of state. Section 110. In case of an election for
one or more members of the house of representatives or elec-
tors of president or vice president or for governor, the secre-
tary of state lays before the board of state canvassers two such
statements. Section 118. The governor and four or more of
the members of the senate attend at Trenton, on a certain
date, for the purpose of canvassing and estimating the votes
cast for each person for whom votes have been givai for mem-
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NOVEMBER TERM, 1916. 303
90 N. J. L, Carson v. Scully.
bers of the house of representatives or electors of president or
vice president or governor, and determine and declare the
person or persons who shall, by the greatest number of votes^
have been duly elected to such office or offices. Section 119.
The board proceeds to make a statement of the result of such
election which is delivered to the secretary of state and filed
by him. Section 123. And the secretary of state makes as
many copies of the statement of the determination of such
board as there axe persons thereby declared to be elected and
delivers one of the same to each person who shall be so elected.
Section 127.
By this summary of the election machinery, it will be seen
that no certificates of election issue to congressmen-elect by
county boards of canvassers, who merely make a certificate of
the result of election for congressmen as it appears returned
in the several election districts, and send that certificate to the
secretary of state, who lays it before the state board of can-
vassers, who make a determination as to wlio is elected to
congress in any given district. There is no provision in the
statute for any revocation by a justice of the' Supreme Court
of any certificate made by the state board of canvassers. As
the certificates of election of congressmen emanate, not from
county boards of canvassers, but from the state board, how
can interference with the work of a county board affect the
holder of a certificate from the state board ?
Because there is no practical method of recounting the vote
in a congress district, an apparently unsuccessful candidate
is not thereby deprived of the right to show that he, and not
liis rival, as certified, was elected; for, as already remarked,
the house of representatives is the judge of the election of its
members, and our statute provides an ample method of con-
testing the election of members of congress. Section 153
et seq.
My view is, that while the legislature in the revision of the
Election law of 1898 intended to provide for a recount to
any unsuccessful candidate for any office at any election, upon
proper showing made, which would include congress districts,
it failed to provide the method whereby lawfully, step by step.
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304 COURT OF ERRORS AND APPEALS.
.Carson v. Scully. 90 N. J. L,
the proceeding could be efifectively carried on and a definite
result obtained and certified.
Sir William Blackstone, treating of the constructions of
statutes, says: "Acts of parliament that are impossible to be
performed are of no validity." 1 Bl. Com. 91. The doctrine
thus expounded by the learned commentator is, by parity of
reasoning, equally applicable to a part of an act which is im-
possible of performance, sl& well as to an entire act that can-
not be put into operation. It has been held, in this state, that
parts of acts which are unconstitutional are to be excised to
the extent to which they are invalid and the rest of the act
upheld, if jthe parts are wholly independent of each other.
State V. Davis, 72 N. J. L. 345, and cases cited; affirmed, 73
Id, 680. See, also, Meehati v. Excise Commissioners, Id. 382,
388. It must be perfectly obvious that a provision in a
statute for a recount of votes cast for a state senator is en-
tirely independent of one for a recount in a congressional
election, and that^ if the latter be invalid or unenforceable, the
former shall, nevertheless, stand.
In Comm^onwealth v. Qouger, 21 Pa. Super. Ct. 217, it was
held (at p. 229) :
"In the construction of statutes it may sometimes become
necessary to transpose words or even to supply or strike out
a won^ which the context shows was omitted or inserted by
mistake. Instances are not lacking in the reports where this
has been done in order to effectuate the intention of the leg-
islature. But where an enactment is plain and sensible, and,
according to any meaning, broad or narrow, popular or tech-
nical, which may be ascribed to the, words, docs not apply to
the case in hand, it is not permissible for the courts to add or
omit words, in order to make it so apply, even tliough it may
be clear to them that the case is as fully within tlie miFclrief
to be remedied as the cases provided for. This would be, not
to construe, but to amend the law, which is within the exclu-
sive province of the legislature. * * * AVhen a court has
gone to the verge of its power of construction, there will some-
times remain what is termed a casus omissus — a ease within
the mischief to ])e remedied and possibly within the general
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NOVEMBER TEBM, 1916. 305
90 y, J. L. Carson v. Scully.
intent of the l^islature aa disclosed by the act — and yet not
provided for therein. In such case the legislature alone can
cure the defect."
The doctrine laid down in Commonwealth v. Gouger is en-
tirely apposite. I think it clear, as I have said, that the re-
count provision of the Election law is intended to apply to
the case of a congressional election. A miscount in an elec-
tion for congressmen is fully as mischievous and equally en-
titled to be remedied as a miscount in the case of county or
municipal officers.; but the enactment is so plain in providing
the method for recounting votes cast for county and munici-
pal candidates, and ascertaining and certifying the result, and
so plainly fails to provide any such machinery in the case of
candidates for congress, that it is not permissible for the
courts to add or omit words in order to make the act apply
to the class of candi<Jates excluded. And, by the way, how do
candidates for county and municipal offices derive their right
to a recount? It is not because t^iey are named in section
159. Yet, nobody will deny that they have the right. It is
derived from the language "any candidate at any election."
If this language applies to the case of a surrogate of a county
and to the mayor of a city, and, certainly, it docs, it equally
applies to a congressman. Therefore, I repeat again, that the
office of congressman is within the purview of section 159,
which clearly intends to give a candidate for congress, in
given circumstances, a recount; but, the act failing to pro-
vide a method for carrying on a recount and certifying to its
result in the case of a congressional election, it is, to that ex-
tent, impossible of being performed.
The camu^ omisms in the statute under consideration is tlie
lack of provision of machinery for carrying on a recount in
the case of a contested election in a congress district, not-
withstanding the act evinces a clear intention to give a re-
count in such case as well as in all others. The omission was
doubtless inadvertently made, and probably came about in this
way: The act of 1880, which gave a recount only to candi-
dates for the state senate or assembly, provided for the recount
being made in the particular county, with the superseding
Vol. xc. 20
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336 COUKT OF EKRORS AND APPEALS.
Carson \. Scully. 90 X. J. L.
certificate, if one were issued, to be certified by the county
clerk and delivered to the person found to be elected. While
in the supplement of 1895 and the Revision of 1898, the lan-
guage granting recounts and restricting them to candidates
for the senate and aBsembly, found in the act of 1880, was
enlarged so as to apply to candidates for any and all offices,
but the machinery for recounts, certification of the result,
&c., was allowed practically to remain the same, and was not
correspondingly enlarged so as apply to congressional elec-
tions, which, of necessity, require other provisions for enabling
a recount to be carried on, as an election for congressman
is not held in and for a county or municipality, and his cer-
tificate emanates, not from a coimty board of canvassers, but
from the state board of canvassers, for the superseding of
wJiose certificate of elec'tion by a justice of the Supreme Court
no provision is made in the statute.
It is not an answer to say that one of the justices of the
Supreme Court, upon petitions preferred for that purpose,
made three several orders for a recount of the votes east at
the la5=t general election in the counties of Middlesex, Mon-
mouth and Ocean, respectively, for member of the house of
representatives of the United States, under his direction, by
the c(mnty boards of election in those counties respectively.
Those orders were, in my judgment, unauthorized by the
statute and should be held to be null and void.
The Chief Justice and Justices Swayze, Trenchard and
Minturn and Judge Williams have authorized me to say that
they concur in the views expressed in this opinion.
White, J. The (juestion is, Do the recount provisions of
the act conceniing elections (2 Comp. Stat., p, 2125) apply
to an election of a congressman for the third congressional
district, comprising the three counties of Middlesex, Mon-
mouth and Ocean ?
The language of the act ])rovides for a recount. '^Wlieiirver
any candidate at any ctectiou shall have reason to believe that
an error has been made />// any board of ejection or of can-
ra*iserx in conntinij the vote or declaring the vote of such
'ecticm," &c.
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NOVEMBER TERM, 11)16. 307
90 y. J. L, (^arson v. Scully.
It is urged that the court should modify tliis language of
the legislature by, in effect, reading into it after the word
^'candidate" the word8 "for state senator, member of assembly
or county or municipal officgr." It is said this should be done
lKH*ause subsequent provisions of the act provide for the issu-
ing of a certificate by the Supreme Court justice holding the
recount in place of the certificates issued by the boards of
canvassers, and as there is no certificate of election from the
county boards of canvassers in elections for United States
senator, member of congress, presidential electors or governor
of tlie state, the act, it is urged, must be held not to apply to
tlie?e officers. A furtlier argument to tlie same effect is said
to arise from the fact that a subsequent section of the act
provides, with reference to the expense of such recounts, that
in case a recount shall result in favor of the applicant the
expense shall be borne by the county or municipality "in and
for which such election was held," and tliat as elections for
the officers above mentioned are state-wide, or, at least, con-
gressional district-wide, tliis provision for the county or
municipality bearing the expense is inappropriate,. and there-
fore indicates that the act does not apply to those elections.
These leasons, it may be remarked incidentally, apply with
ecjiial force to the election, say, of an alderman from a single
ward of tlie city of Newark, or of a ward councilman of any
otlier municipality liaving ward representation in its gov-
ernmental body. Xo certificate is issued to such alderman
or councilman by any board of canvassers and the election is
not nnmicipality-wide, nor is the expense, in ease of a suc-
cessful recount, confined to the ward where the election and
rwount took place, but must be borne by the mTinicipality-at-
large. Xo one, however, suggests that the recount provisions
are not applicable to an election of such an alderman or
councilman. On the contrary, it is here conceded and urged
that they are so applicable.
T take it that these certificate and expense provisions are
not inconsistent with the wide scope given the act by its ex-
press language, "any candidate at any election," but that, on
tli(» contrary, they simply provide the machinery to carry out
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338 C.^OURT OF ERROES AND APPEALS.
Carson v. Scully. 90 N. J. L,
that broad scope in conformity with the political Bcheme
adopted by the state for holding elections. That scheme, as
I understand it, is that for the purpose of holding elections
there are two divisions of thp state, namely, municipal
and county. For all municipal oflBcers the municipality is
the political unit which holds the elections. For all other
elections in the state the county is the political unit which
holds such elections. In the municipality, if the election is
for mayor, or in commission governed cities for commission-
ers, tlie election is municipality-wide, and if the election is
for an alderman or a councilman from a particular ward or
subdivision, the election is not municipality-wide; but in.
either case the election is "held in and for the municipality,"
and is at the mumcipality's expense, although in one case it is
mimicipality-wide and in the other it is not. The munici-
pality is the political unit in the electoral scheme of the state
for holding this class of elections. In all other elections the
county is the political unit to hold the elections. "Where a
governor is to be elected, although his office is state-wide and
the election is by the voters of the entire state, the political
units that hold the necessary elections aie the counties, and
each county hears the expense of its awn election. The elec-
tion held in each county for the office of governor of the state
is in effect an election "in and for that particular county,"
although the office is state-wide and the result in the particu-
lar county does not in itpclf decide who is elected to the state-
wide office. So, with reference to a United States senator
and presidential electors, and, substituting the congressional
district for the state, with reference to d congressman.
This view (which, like all others herein expressed, is only
advanced as that of an individual member of the couil and
not as that of the court itself, which court, of course, in a
case, as here, of a tie vote, does not decide or express any
view) supplies, in my judgment, a consistent working basis
for all of the provisions of the Recount Election law. It re-
moves the alleged inconsistency of each county bearing its
own successful recount expense, although more than one
county is involved, ai^d a liberal construction, of the certificate
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NOVEMBER TERM, 1916. 301)
90 y. J. L. Carson v. Scully.
provisions (and all election laws should be liberally construed '
in the spirit of their enactment) would make the Supreme
Court justice's certificate a substitute for the declarations of
results by, or certificates of, election boards, as the case might
Ik?, so as to make a reality of the express provision of the act
that the Supreme Court justice's certificate "shiould supersede
all others and entitle the holder thereof to the same rights
and privileges as if such certificates had been originally issued
by the canvassing board." The change from the word "cer-
tificate" to its plural "certificates" also made by the amending
act of 1909 (the present Recoimt act) authorizing the Su-
preme Court justice holding a recount to revoke the ''certifi-
cates'* of election already issued to any person, instead of ta
revoke the ''certificate" of election already issued to any per-
son, as the law theretofore read, would seem to accord with
this view, and to contemplate a revoking of all records of the
result of the election of whatsoever description, including all
certifications thereof, and the substituting therefor of the
Supreme Court justice's certificate, the same to have the effect
indicated by the above-quoted language.
I think, therefore, that there is no substantial reason for,
in effect, reading into the act the words "first above indi-
cated," thereby changing the broad language, "any candidate
at any election," into "any candidate for state senator, mem-
ber of assembly or county or municipal office." I think such
a judicial reading into the statute of these words would be
particularly unjustifiable, in view of the fact that the recount
provision of our Election law as it was first enacted in 1880
did contain a similar limitation in the words "wherever any
candidate at any election in this state for member of the
senate or of the assembly," &c., and that, subsequently, that
limitation was omitted in the present act and the language
was made to read '^whenever any catulidate at any election''
&c. Surely, the legislature in changing the law with refer-
ence to recounts from one applying only to "a candidate for
state senator or member of the assembly" to "any candidate
at any election," did something which has a very significant
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310 COURT OF ERRORS AND APPEALS.
Carson v. Scully. 90 -V. J. L,
bearing on what it is now suggested this court ought to read
into the act.
Another indication of the wide change contemplated by the
act of 1909 is found in the new provision in that act with
reference to a recount in referendums, in the following lan-
guage: "AVHienever any citizen shall have reason to believe
that an error has been made by any board of canvassers in
counting the vote or declaring tjie result of any election upon
any referendum submitted to the electors," &c.
But even in the absence of such an historical indication of
the legislative intent, the language of the present act is, in
my judgment, plain and certain, and therefore is not properly
subject to judicial construction into anything other than what
it says. As above stated, I find no real conflicting provisions
in the act, but, if I did, I should still think this language
"any candidate at any election" too plain for constructive
modification.
"Where the purpose of the lawmakers is expressed in lan-
guage so plain as to make it unmistakable, it must be inter-
preted by the court, as it is written without regard to its
wisdom or its apparently unwise limitations."
This is the language of this court in Island Ilrights and
Seaside Park Bridge Co. v. Brooks S Brooks, 88 A'. J. L.
613, citing Douglass v. Freeholders of Essex, 38 Id. 214.
In the case of Bullock v. Biggs, 78 N. J. L. 63, this court
notes with approval the exact words of Chief Justice Bea^2ley
in Douglass v. Freeholders of Essex, namely: **Where that
which is dire<.'ted to be done is within the .sphere of legisla-
tion, and the terms used clearly express the intent, all rea-
soning derived from the supposed inconvenience, or even
absurdity of the result, is out of place."
It is for the reasons above expressed that I have recorded
my vote for affirmance of the decision of the Supreme Court
upholding the applicability of the recount provisions of the
Election law to the congressional election here involved.
I am requested by Justices Garrison and Black and Judges
Heppenheimer and Gardner to say that they unite in the
views herein expressed.
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NOVEMBER TERM, 1916. :]11
90 N, J. L. Carton v. Trenton & Mercer Co. Trac. Corp.
For the appellant, Alan II, Stron-g and Theodore Strong.
For the respondents, Thomas P, Fay and Lindley M
Garrison,
Per Curiam.
The judgment under review lierein is affijjmed by an
equally-divided court.
For affirmance — Garrison, Bergex, Black, White, PIep-
PENHEIMER, TaYLOR/ GaRDNER, JJ. 7.
For reversal — The Chancellor, Chief Justice, Swayze,
Trenchard, Parker, Minturn, Williams, JJ. 7.
SARAH CARTON, RESPONDENT, v. TRENTON AND MER-
CER COUNTY TRACTION CORPORATION, APPELLANT.
Submitted December 11, 1916 — Decided March 5, 1917.
On appeal from the Supreme Court.
For the appellant, George W. Macphrmon.
For the respondent, James J. McGoogan.
Per Curiam.
Plaintiff had a verdict and judgment for damages on ac-
count of personal injuries which she admittedly sustained
while a lighting 'from a street car of the defendant on which
she was a passenger. Her claim, supported hy her own testi-
mony on direct examination, and also on cross-examination,
was that as she was stepping down from the car, and hefore
she fully reached the ground, the car was negligently started.
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31^ COURT OF ERROKS AND APPEALS.
Caruso v. Montdair. 00 X J. L.
causing her to fall and inflicting the injury in question. This
was contradicted by defendant's evidence, both of the occur-
rence and of alleged admissions made by plaintiff before the
trial.
The only grounds of appeal argued are that tke verdict
was against the great weight of evidence, and that the weight
of defendant's evidence was so overwhelming that the court
should have granted the motion for a directed verdict for de-
fendant. With the first ground we have nothing to do ex-
cept so far as it is included in the second. As to that, it is
enough to invoke the thoroughly-settled rule that a verdict
will not be directed in cases where there is a fair conflict of
testimony on a fundamental issue. Such was the situation at
the trial. The judgment will be affirmed, with costs.
For affirmance — The Chancellor^ Chief Justice^ Gab-
UTSON, SwAYZE, Tkenchard^ Parker, Beroen, Minturn,
Kalisch, Black, White, Heppenheimer, Williams,
Gardner, J J. 14.
For reversal — !N^one.
LUIGI CARUSO AND CARMELA CARUSO, APPELLANTS, v.
TOWN OF .MONTCT-AIR, RESPONDENT.
Submitted July 10, 1916— Decided March 5, 1917.
On appeal from the Supreme Court.
For the appellants, Oaeiano Belfaiio and Wilbur A,
Ileisley.
For the respondent, Hartshome, Irisletj & Leake,
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NOVEMBER TERM, 1916. 313
00 y. J. L. Chi'isafides v. Brunswick Motor Co.
Per Curiam.
The same question presented in this case was involved in
Nicola Caruso atid Guise ppi Caruso, appellants, v. Toum of
Montclair, decided at the present temi (ante p. 255), and for
the reasons given in the opinion filed in that case, the judg-
ment herein will be affirmed, with costs.
For affirmance — The Chancellor, Chief Justice, Gar-
rison, Swathe, Trenchard, Parker, Bergen, Minturn,
Kalisch, Black, White, Williams, Gardner, JJ. 13.
For reversal — None.
STRATTON CHRISAFIDES, RESPONDENT, v. BRUNSWICK
MOTOR COMPANY AND JOHN KNAUSS, APPELLANTS.
Submitted December 11, 1916— Decided March 5, 1917.
On appeal from the Supreme Court.
For the appellants, William E, Holm wood.
For the respondent, Winfield S. An^/lcman.
Per Curiam.
The record here for review discloses that the appellants
set out eleven grounds of appeal. Seven of these are based
upon alleged refusal of the trial judge to charge the seven
specific requests set out in the grounds of appeal. The record
does not show that the court was asked to deal with any of
the requests, nor does the record show that the court refused
to charge the same, and that an objection was noted to such
refusals.
Under Kargman v.. Carlo, 85 N. J. L. 632, and Miller v.
Delaware Transportation Co., Id. 700, these requests will not
be considered.
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;^14 COUKT OF ERRORS AND APPEALS.
Chrisafides v. Brunswick iMotor Co. 00 .V. ./. L.
Another ground of appeal is that the trial judge erred in
denying appellants' motion for a nonsuit upon the opening
made by the plaintiff's attorney. Although an objection was
noted to the refusal of the court to nonsuit on that ground, the
appellants' brief is silent upon the subject, and, therefore,
it will be assumed that this ground of appeal has been
abandoned.
A further ground of appeal is that the trial court refused
to strike out the testimony of the plaintiff when he answered
the question : ''Q. Could he have ^eau you coming if he iiad
looked?" ".4. Oh, yes, he could." Xo (/bjections appear to
have been taken to the ruling of the court and, therefore, as
already pointed out, the i-uling will not be considered.
The only other ground of appeal is directed to this lan-
guage used by the trial judge in his charge: **Tt is very diffi-
cult for me to feel that there was no negligence ; a car coining
along at a fair rate of speed, and turning a corner sharp, as
he puts it, and a collision."
Counsel 'for appellant-s contends that tliis was an error,* in
that the court invaded the. province of the jury by deciding
a question of fact in issue. But this excerpt does not repre-
sent all that the trial judge said in this connection. For be,
in continuation of what has just been quoted, said: **He
looked while some distance down the street, but did not look
apparently as he came closer to the corner. But it is for you
to siiy from ^11 the evidence whether this driver, Knauss. was
negligent or whether he was not."
It was not error for the trial judge to give his opinion of
the impression that the testimony made ujwn his mind so
long as he left the decision of the questions of fact involved
in the case to the jury. Castn^r v. SlikT', 33 X, J. L. 507 ;
State v. Ilinnmrr, 73 1(1.114.
The judgment will be affirmed, with costs.
For affirmance — The Chancellor, Chief Justice, Gar-
RISOX, SWAYZE, TrENCHARI). PaRKER. BeRGEX, MlXTlRK,
Kallsch, Black, White, Heppexheiajer, Williams, Gard-
XER, JJ. U.
For reversal — None.
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NOVEMBER TERM, 1916. ;U5
f>0 X.J. L. Colletto V. Hudson & Manhattan R. R. Co.
JOSEPH COLLETTO, RESPONDENT, v. HUDSON AND MAN-
HATTAN^ RAILROAD COMPANY, APPELLANT.
Submitted December 11, 1910— Decided March 5, 1917.
On appeal from the Supreme Court, in which (lie following
per curiam was filed : ^
"The plaintiff's case shows that he was a passenger on the
defendant's caj- ; that the car was so crowded that there were
no seats to be had, and he was standing near the door.
"As the car approached a station the guard opened tlie
door, and, as the car was passing around a curve in the track,
the plaintiff was thrown off his balance, and in order to save
himself from falling, put his hand against the jamb of the
door, and that closing, because of the swing of the train, his
hand was caught and the injuries produced for which this suit
was brought. The testimony shows that these doors slide in
a groove in the sides of the car, and that when in place there
is a catch which will hold the door so that it will not move
because of any ordinary motion of the train. It further aj)-
peared that this car was examined the next day and the lock
or catch was found to be in 'good order, and the uncontra-,
dieted testimony is that if the door had been pushed far
enough open, it would have been locked in that position. The
plaintiff has a judgment, from which the defendant has aj)-
pealed because the trial court refused to nonsuit or to direct
a verdict for it.
■ "The first point argued is, that the nonsuit should liave
been granted for want of proof of negligence on the })ait of
the defendant, because, as it is argued, there is no proof of
any extraordinary jerk or lurch of the car, and that the door
closed because such a thing was likely to happen if the door
was not properly locked. We think it may properly be in-
ferred from the testimony that unless fastened the door was
liable to close when the car was running around a curve, even
if there was no unusual lurch, and that to prevent this the
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31(> COURT OF ERRORS AND APPEALS.
Colletto V. Hudson & Manhattan R. R. Co. 90 N. J. L.
defendant company had provided the car with a lock or catch
to liold the door in place, and that this accident occurred be-
cause the guard neglected to properly fasten the door.
"We think the case was open to a finding that the negli-
gence of tlie defendant was in failing to throw the door far
enough open so that the lock would hold it in place, and that
with knowledge to be imputed to it that the door would not
stay in place during ordinary operation unless it was prop-
erly held by the latch ; the duty arose to so fasten the door
as to prevent its movement during ordinary operation of
the car.
"The appellant cited two cases which we think not ap-
plicable, viz.j Hamwn v. Boston Railroad Co., 65 N. E, Rep.
809, where the passenger was inside of the car as it drew up
to the platform and put his hand on the glass of the door so
that when it was opened by the guard standing on the station
platfoim, the plaintiff's hand was caught, and in Cashman v.
New York, New Haven and Hartford Railroad Co., 87 Id.
570, where the plaintiff's hand was pushed between the door
and the jamb of an elevator as the guard was closing. In
both of these cases the act of the plaintiff in putting his hand
in a dangerous place was the proximate cause of the accident,
while, in the present case, the negligence of the defendant
was in not properly fastening the door which he knew was
required to be held in place when the train was moving
around a curve. We think the trial judge properly refused
both motions.
"The second point is, that the plaintiff was guilty of con-
tributory negligence as a matter of law. To this we cannot
accode, for, according to the plaintiff's case, the car was
crowded with passengers and he was required to stand near
the door, and, because he was in such a position, it became
necessary, on account of the sudden motion of the car, to
steady himself, and he had a right to assume that the door
was properly fastened, . and if it was, what he did was per-
fectly safe.
^The judgment should be aifirmed."
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NOVEMBER TERM, 1916. 31?'
00 N. J. L. DeGroflf v. O'Connor.
For the appellant, Collins & Corbin.
For the respondent, David F. Eduxirds.
Per Curiam.
The judgment under review will be affirmed, for the rea.^^onf*
set forth in the opinion of the Supreme Court.
For affirmamce — The Chancellor, Chief Justice,
SwAYZE, Trenchard, Minturn, Kalisch, Black, Heppen-
HEIMER, AViLLIAMS, GARDNER, JJ. 10.
For reversal — None.
JESSE V. DeGROFF, APPELIAXT; v. JOHN R. O'CONNOR.
RESPONDENT.
Argued November 29, 1916 — IVcided March 5, 1917.
On appeal from the Supreme Court, in which the following
per curiam was filed :
*'The allegations in this case involves the title to the office
of superintendent of weights and measures for Bergen county.
The relator claims to be entitled to it by virtue of an appoint-
ment made by the board of chosen freeholders of the county
on the 13th of April, 1913, and that as an exempt fireman he
was entitled to hold the office during good behavior. The re-
spondent's claim to the office rests upon an appointment by
the board of freeholders of the county, which organized on
the 3d of January, 1916, under the act of 1912^ known as the
Small Board of Freeholders act.
"The case of Earle v. Durh<im, 89 .Y. J, L. 4, decided at
the present term, is identical in its legal essence witli that
now under consideration, and for the reasons stated in the
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318 COURT OF EJIROKS AND APPEALS.
Devlin v. Jersey Qty. 90 N. J. L,
o})inion delivered in that case, the present respondent is en-
titled to judgment on the demurrer to the plea/^
For the appellant, Thomas F, McCran,
For the respondent, Clwrence MaJbie,
Per Curiam.
The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Court.
For affirmaiwf-^TiiE Chancellor, Garrisox, Trex-
ciiARD, Parker, Mixturn, Kaltsck, Black, White, Hep-
PEXHEiMER, Williams, Gardncb, JJ. 11.
For reversal — Xone.
JAMES DEVLIN ET AL., APPELLANTS, v. MAYOR, ETC., OF
JERSEY CITY ET AL., RESPONDENTS.
Argued November 24, 1916 — Decided March 5, 1917.
On appeal from tlie Supreine Court, in wliich tlie following
prr niriam was filed :
"We think the contiact must be treated a? a single contract
for repairs to various streets. In such a contract much must
necessarily he left to the judgment of the city authorities,
such as the streets to be paved. No doubt this opens the door
to favoritism, but we' have no right to assume that the selec-
ti(m of the streets to he repaired at any particular time will
be governed by any consideration except the public need.
"The extent of the obligation under the maintenance bond
will depend on the aniount of work done, and we sec no valid
objecticm on this score. All bidders seem to have had the
same chance.
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XOVEMBER TERM, 1916; 319
00 A . J. L. Earle v. Durham.
*'ln repair work of this kind it is probably impossible to
state accurately all the work that may be required, sucji as
the depth of binder on the asphalt pavements and the grade
to which the bituminous concrete pavement is to be brought.
"We think the conditions on which bidders were required
to bid were stated as definitely as was probably practicable
and that there should be judgment for the defendants."
For the respondents, J. Emil Walscheid,
For the appellants, Co/Z/m? <£- Voihin.
Per Curiam.
' The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Court.
Far aflirmance — ^Tiik Chancellor^ Chief Justice, Gar-
Risox, Trexchard, Bergex, Black, Williams, JJ. 7.
For reversal — Parker, White. Gardxer, JJ. 3.
ualph d. eaulk, .tr.. appp:lkant, v. henry w. nruHAM
KESPONDENT.
Argued November 23, imO— Decided March ."», 1917.
On appeal from the Supreme Court, whose o])inion j:^ re-
ported in 81) y. J. L. k
For the appellant, GUbert Collins.
For the ret^ptrndent, John R. JJnrdin (Wahlroii J/. Ward en
the brief).
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320 COUET OF ERRORS AXD APPEALS.
Earle v. Durham. 90 N, J, L.
Per Curiam.
The judgment of the Supreme Court will be affirmed, for
the reasons given in the opinion of Chief Justice Gummere
in that court upon the points therein considered.
Counsel for appellant claims that the Supreme Court did
not discuss all the points made before them. We fin J on the
brief two points not treated below. One is the sufficiency, in
a constitutional sense, of the title 'of the "Small Board of
Freeholders act." Pamph, L, 1909, p. 294; Pamph. L. 1912,
p. 619. *The other is that the revised Road act of 1912
(Pamph, L,, p, 809), which was passed later than the Small
Board act of that year, impliedly repeals it as respects tlie
office now in question.
We conceive that neither of these questions is raised by the
record. The information sets up merely that the provisions
of section 6 of chapter 355 of the laws of 1912 had and have
no applicability to the office of county engineer of the county
of Bergen, &c. This is repeated in the statement of the case
in appellant's brief. It would be sufficient to rest on this
answer but for the importance of the legislation.
The argument as to the title of the act runs counter to our
holding in Patterson v. Close, 84 N. J. L. 319. It is claimed
that that holding was dictum. But if so, it was uttered de-
liberately, and no doubt in view of the importance of setting
the sufficiency of the title at rest. We are content to follow
it now, without regard to the fact that on the present record
our decision on this point may, also be called dictum.
As to the other point the answer is, that during a course
of many years, the Road act and the Small Board act have
remained on the statute books side by side, each altered from
time to time by the legislature, and treated substantially as
interlocking legislation. We read a clear legislative intent
that the fundamental purpose jand effect of the Small Board
act are to be unimpaired by any incidental changes in the
Road act; and hence, that the provision for vacating the
offices is not superseded by an}i;hing in the Road act relating
to the appointment and term of office of the county engineer.
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NOVEMBEE TERM, 1916. 321
90 A'. J. L, Gilbert v. Penna. R. R. Co.
For affirmance — Tjie Chancellor, Garrison, Tren-
ciiARD, Parker, Minturn, Kaliscii, Black, White, IIep-
PENiiEiMER, Williams, Gardner, JJ. 11.
For reversal — None.
DANIEL H. GILBERT, RESPONDENT, v. THE PENNSYL-
VANIA railroad company, appellant.
Submitted December 11, 191G— Decided March 5, 1917.
On appeal from the Supreme. Court. *
For the appellant, Vredenburgh, Wall & Carey [John A.
Ilartpence on the brief) .
For the respondent, Queen & Stout.
Per Curiam.
The questions raised on this appeal are determined, in
effect, by the principles laid down by this court in Carr v.
Pennsylvania Railroad Co., 88 K, J. L. 235.
The judgment l)elow will be affirmed, with costs.
For affirmance — The Chancellor, Chief Justice, Gar-
rison, Swayze, Trenchard, Parker, Bergen, ^Iinturn,
Kalisch, Black, White, Heppenheimer, Williams, Gard-
ner, JJ. 11.
For reversal — None.
Vol. xc. . 21
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322 COUKT OF ERRORS AND APPEALS.
Ileckman v. Cohen. 90 y. J. L.
ADAM HElCKMAN, RESPONDENT, v. ABRAHAM COHEN,
APPELLANT.
Submitted December 11, 1916— Decided March 5, 1917.
On appeal from the Supreme Court, in which court the fol-
lowing pen curiam was filed :
"This is an appeal from a judgment rendered against the
appellant in favor of the appellee in the Orange District
Court, for the sum of $192.66 and costs. The case was tried
by the courts sitting without a jury.
**Tlie appellant urges three grounds of reversal of the judg-
ment— firat, the refusal of the trial court to grant a motion
for a nonsuit; second, the refusal of the trial judge to find
for the defendant; third, that the court improperly allowed
punitive damages^
"We think the motions for a nonsuit and to find for the
defendant were properly refused. This is a case where a per-
son while crossing a public street in full view of the driver
of an automobile for a distance of one hundred and fifty feet,
was hit by the automobile and injured.
"The plaintiff drove a pie wagon. He stopped his wagon
on the right side of Bowery street, in the middle of a block.
There was an exit from the rear of the wagon, by means of a
step, from which the plaintiff, according to his story% alighted,
with fifteen pies piled on his left arm, and started on his way
across the street to make delivery of the pies, when he was
struck by the automobile.
"It appears that the automobile that struck the plaintiff
was on the trolley tracks and directly behind a trolley car,
which was proceeding in a westerly direction. The plaintiff
testified that when he first saw the automobile it wa^^ about
one hundred feet away, and that he had walked from the rear
of his wagon, the distance variously estimated at nine and
fifteen feet, and had passed over one track and was just on the
inside track when he was struck by the automobile.
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XOVEMBER TEEM, 1916. 323
90 y. J. L, Heckman v. Cohen.
"For the appellant, the driver of the. automobile testified
that he was driving on the trolley tracks behind the trolley
ear at eight or ten miles an hour; that he saw the plaintiff
leave the rear of his wagon and start ^across the street; thdf
at that time the automobile was one hundred and fifty feet
away ; that he gave no signal of the approach of the automo-
bile to warn the plaintiff. It further appears that the plaint-
iff was seventy years of age at the time of the accident. We
think that it was a question of fact for the trial judge to de-
termine whether the defendant, under the surrounding cir-
cumstances, by the exercise of reasonable care, could have
avoided running into the aged plaintiff. The trial judge
found that the defendant could have avoided the accident by
the use of reasonable care. The speed at which the car was
driven, under the surrounding circumstances, and the failure
of the drivel* of the automobile to sound a warning to the aged
plaintiff, were the basis of the court's finding that the defend-
ant was negligent. We think the facts properly justified this
inference. We also think that court was justified in finding
that the plaintiff was not guilty of contributory negligence.
The plaintiff had the right to reasonably expect ihat the driver
of the automobile having the plaintiff in sight as he was cross-
ing the street would have his car under control and would
avoid running into him. The driver of the automobile could
turn either to the right or left, and, therefore, the reason of
the rule applicable to street railways which must proceed on
the tracks is not applicable to wagons which may turn readily
from their course in various directions.
"The, reason urged for a reversal of the judgment that the
trial judge awarded punitive damages is not sustained by the
record in the case. The finding of the trial judge plainly
shows that he awarded damages to the plaintiff for the pain,
suffering and anguish which resulted to the plaintiff as a con-
sequence of his injuries.
"The judgment will be affirmed, with costs."
For the appellant, McDermott & Enright,
For the respondent, John A, Bem^ard,
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324 COURT OF EllRORS AND APPEALS.
Heckman v. Cohen. 90 X. J. L.
Per Curiam.
Heckman, the present respondent, recovered a judgment in
the Orange District Court for personal injuries received from
being run down by the defendant's automobile while crossing
Bowery street, in the city of Newark, for the purpose of dis-
tributing pies to customers. He had stopped his wagon on
the north side of the street, in the middle of the block, and
was crossing over the south side with a dozen or more pies
upon his arm when the accident occurred. The trial resulted
in a judgment in his favor. The defendant, Cohen, then ap-
pealed to the Supreme Court, and the District Court judg-
ment was there afl5rmed.
We concur in the views expressed by the Supreme Court
in its opinion, and are satisfied to afiirm upon that opinion.
We observe, however, a slight inaccuracy in the statement of
facts contained therein, viz., "that the automobile that struck
the plaintiff was on the trolley tracks and directly behind a
trolley car." We have discovered nothing in the testimony
sent up with the appeal which discloses the presence of a
trolley car upon the scene of the accident at the time of its
occurrence. With this correction we adopt the opinion of the
Supreme Court.
The judgment under review will be affirmed.
For afjirman4:e — The Chancellor^ Chief Justice^ Gar-
rison, SwAYZE, Trenchard^ Bergen, Black. White, Hep-
pexheimer, Williams^ Gardner, JJ. 11.
For reversal — None.
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NOVEMBER TERM, 1916. 325
00 X. J. L. llendee v. Wildwood & Del. Bay R. R. Co.
WILLIAM C. HENDEE, ADMINISTRATOR, ETC., RESPOND-
ENT, V. WILDWOOD AND DELAWARE BAY SHORT LINE
RAILROAD COMPANY, APPELLANT.
Submitted December 11, 1916— Decided March 5, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 A^ J. L, 32.
For the respondent, WUliam C, French and Samuel T.
French,
For the appellant, J. Fiihicm Tatem.
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Swayze in the Supreme Court.
For a^jirmance — The Chancellor, Chief Justice, (Har-
rison, Trenchard, Bergen, Minturn, Black, White, Hep-
penheimer, Williams, Gardner, J J. 11.
For reversal — None.
KELLS MILL AND LUMBER COMPANY, INCORPORATED.
RESPONDENT, v. THE PENNSYLVANIA RAILROAD COM-
PANY, APPELLANT.
Argued November 28, 1916— Decided ^larch 5, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N. J, L. 490.
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326 COURT OF ERRORS AND APPEALS.
Leib V. Penna. R. R. Co. 90 N. 7. L.
For the respondent, Maximiliojn T, Rosenberg.
For the appellant, Vrederiburgh, Wall it Carey,
Per Curiam. ^
The judgment under review herein should be aflBrmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Kalisch in the Supreme Court.
For affirmance — ^The Chancellor, Chief Justice, Gar-
rison, Sv^AYZE, Trenchard, Beroen, Black, White, Hep-
PENHEIMER, WiLLIAMS, GARDNER, J J. 11.
. • For reversal — None.
J. C. LEIB, A CORPORATION, RESPONDENT, v. THE PENN-
SYLVANIA RAILROAD COMPANY, APPELLANT.
Submitted December 11, 1916~-Decided March 5, 1917.
On appeal from the Supreme Court.
For the appellant, Vredenburgh, Wall & Carey {John A,
Hartpence on the brief) .
For the respondent, Queen & Stout,
Per Curiam.
The questions raised on this appeal are determined, in
effect, by the principles laid down by this court in Cam v.
Pennsylvcmia Railroad Co,, 88 N. J, L. 235.
The judgment below will be affirmed, with costs.
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NOVEMBER TERM, 1916. 327
90 N. J, L, Loewenthal v. Penna. R. R. Co.
For affvrmance — ^Thb Chancellor, Chief Justice, Gar-
rison, SwAYZE, Trbnohaed, Parker, Beroen, Minturn,
Kalisch, Black, White, Heppenheimer, Williams, Gard-
ner, JJ. 14.
For reversed — None.
ISAAC LOEWENTHAL, RESPONDENT, v. THE PENNSTI^
VANIA railroad company, APPELLANT.
Submitted December 11, 1916— Decided March 5, 1917.
On appeal from the Supreme Court.
For the appellant, Vredenburgh, Wall rf Carey {John A.
Hart pence on the brief).
For the respondent. Queen & Stout.
Per Curiam.
The questions raised on this appeal are determined, in
effect, by the principles laid down by this court in Carr v.
Pennsylvania Railroad Co., 88 N. J. L. 235.
The judgment below will be affirmed, with costs.
For aflirnumce — ^Tiie Chancellor, Chief Justice, Gar-
rison, Swayze, Trench ard, Parker, Bergen, Mixturn,
Kalisch, Black, White, Heppenheimer, Williams, Gard-
ner, JJ. 14.
For reversal — Xone.
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328 COURT OF ERRORS AND APPEALS.
Moriarity v. Orange. 90 y. J. L,
JAMES D. MORIARITY, APPELLANT, v. BOARD OF COMMIS-
' SIONERS OF THE CITY OF ORANGE, RESPONDENT.
Submitted December 11. 19ie— Decided March 5, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 .V. J. L, 385.
For the appellant, George W. Anderson,
For the respondent, Arthur B, Seymour. *
Per Curiam.
The judgment under review herein should be aflSrmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Swayze in the Supreme Court.
For affirmance — The Chancellor, Chief Justice, Gar-
rison, Trenciiard, Parker, Bergen, Black, White, Hep-
penheimer, Williams, Gardner, J J. 11.
For reversal — None.
OLIVIT BROTHERS, A CORPORATION, RESPONDENT, v.
THE PENNSYLVANIA RAILROAD COMPANY, APPEI^
LANT.
Submitted December 11, 1916 — Decided March 5, 1917.
On appeal from the Supreme Court.
For the appellant, Vredenhurgh, Wall & Carey {John A,
Hart pence on the brief).
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XOVEMBEE TERM, 1916. 329
90 N. J. L, Olivit Brothers v. Penna. R. R. Co.
For the respondent, Qtieen & Stout.
Per Curiam.
The questions raised on this appeal are determined, in
effect, by the principles laid down by this court in Carr v.
Pennsylvania Railroad Co,, 88 iV. J. /v. 235.
The judgment below will be aflfirmed, with costs.
For affirmance — The Cil\noellor^ Chief Justice, Gar-
RisoN> SwATZB, Trenchard, Parker; Bergen, Minturn,
KvLisoH, Black, White, Heppenheimer, Williams, Gard-
ner, JJ. 14.
For reversal — None.
olivit brothers, a corporation, respondent, v.
the PENNSYLVANIA RAILROAD COMPANY, APPEL-
LANT.
Submitted December 11, 1916— Decided March 5. 1917.
On appeal from the Supreme Court.
For the appellant, Vredenbvrgh, Wall & Carey {John A.
n art pence on the brief).
For the respondent. Queen & Stout.
Per Curiam.
The questions raised on this appeal are determined, in
effect, by the principles laid down by this court in Carr v.
Pennsylvania Railroad Co., 88 N. J. L. 235.
The judgment below will be affirmed, with costs.
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330 COURT OF ERROES AND APPEALS.
Olivit Brothers v. IVnna. R. R. Co. 90 N, /. L.
For affirmance — ^The Chancellor^ Chief Justice^ Gar-
rison, SwAYZE, Trenohard, Parker, Bergen, Minturn,
KaJjIbck, Black, White, Heppenheimer, Williams, Gard-
ner, J J. 14.
For reversal — None.
OLIVIT BROTHERS. A CORPORATION, RESPONDENT, v.
THE PENNSYLVANIA RAILROAD COMPANY, APPEL-
LANT.
Submitted December 11, 1916~-Decided March 5, 1917.
On appeal from the Supreme Court.
For the appellant, Vredenburgh, Wall & Carey {John A.
Hart pence on the brief).
For the respondent. Queen & Stout,
Per Curiam.
The questions raised on this appeal arc determined, in
eflfect, by the principles laid down by this court in Carr v.
Pennsylvania Railroad Co., 88 N. J. L. 235.
The judgment below will be affirmed, with costs.
For affirmance — The Chancellor^ Chief Justice, Gar-
FJSON, SwAYZE, Trenchard, Parker, Bergen, Minturn,
KA.LISCH, Black, White, Heppenheimer, Williams, Gari>-
ner, JJ. 14.
For reversal — None.
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NOVEMBER TERM, 1916. 331
90 N, J, L. Opportunity SaleA Co. v. Edwards, Comptroller.
OPPORTUNITY SALES COMPANY, APPELLANT, v. EDWARD
I. EDWARDS, COMPTROLLER OF THE TREASURY, AND
THOMAS F. MARTIN, SECRETARY OF STATE, RE-
SPONDENTS.
Submitted December 11, 1916— Decided March 6, 1917.
On appeal from the Supreme Court.
For the respondents, John W, Wfiscott, attorney-general.
For the appellant, McDermott & Ermght,
Feb Curiam.
The judgment under review lierein should be affirmed, for
the reasons expressed in the per curiam of this court in
American Woolen Co. v. Edward I, Edwards et d., Xo. 121
of this term {ante p. 293).
For affirmance — The Chancellor, Chibi" Justice, Gar-
rison, Trenchard, Parker, Bergen, Minturn, Kaliscu,
Black, White, Heppenheimer, Williams, Gardner,
JJ. 13.
For reversal — None.
PEOPLES BANK AND TRUST COMPANY, APPELLANT, v.
BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY
OF PASSAIC, RESPONDENT.
Submitted July 10, 1916— Decided March 5, 1917.
On appeal from the Supreme Court.
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332 COURT OF ERRORS AND APPEALS.
Rabinowitz v. Vulcan Insurance Co. 90 N. J, L.
For the appellairf, Humphreys & Sumner,
For the respondent, Fred W, Van Blarcom.
Per Curiam.
The judgment of the Supreme Court is affirmed, for the
reasons given in the east of Peoples Bank and Trust Co, v.
Passaic Couniy Board of Taxation,, decided at this term {ante
p. 171).
For uffirmance — ^The Chancellor, Chi£f Justice, Gar-
rison, SwAYZB^ Trenchard^ Bergen, Black, White, Wil-
liams, Gardner, JJ. 10.
For reversal — Heppenheimer, J. 1.
DAVID RABINOWITZ, RESPONDENT, v. VULCAN INSUR-
ANCE COMPANY, APPELLANT.
Argued November 29, 1916 — Decided March 5, 1917.
On appeal from the Supreme Court, in which the following
per curiam was filed :
"This action was brought on a policy of insurance issued to
the plaintiff by the defendant company against, among other
things, loss by theft or robbery, the basis of the action being
a loss by theft or robbery. The plaintiff had a verdict and
the defendant appeals. The loss by theft is not contested,
but the defendant claims that it was entitled to have allowed
by the trial court its motion for nonsuit upon the ground that
in the application for the insurance, and in the proof of loss*
the machine is described as a new one, whereas the defendant
claims that this was false, and therefore the plaintiff was not
entitled to recover.
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NOVEMBER TERM, 1916. 333
90 y. J. L. Rabinowitz v. Vulcan Insurance Co.
^The trial court found that the car was insured by the
defendant company and that it had been purchased by one
Van Homd for the plaintiff, the car to* become the property
of the plaintiff as soon as paid for ; that two or three nionths
after the purchase the policy was taken out by the plaintiff
upon the car which was then his property, and that in his
application he stated that the car was new. He also found
that Van Home, when the policy of insurance was applied for,
he being the agent of the defendant company, had as much
knowledge of the fact as the plaintiff; that whether the car
was a new one or not was a question of fact; that there was
no representation by the plaintiff which was not known to the
defendant company, and thereupon gave judgment for the
plaintiff. At the argument the court allowed a rule on the
trial court whether the car was a new one, and in compliance
with that order he certified that the testimony disclosed that
the automobile was purchased in the month of January, 1915,
by Van Home, who was the employer of the plaintiff, and
that Van Home testified the auto was purchased by him with
. the intention of turning it over to the plaintiff as soon as the
latter had earned sufficient funds to pay for it; that in the
month of March following the plaintiff earned such amount
and that the automobile was then turned over to the plaintiff.
After this statement the trial court certified: 'Of course,
from the testimony produced before me, the car was an old
one, having been purchased from the manufacturers by \^an
Home, a license being issued in his name, and, subsequently,
the title passed from him to the plaintiff at least two months
after the purchase by Van Home.'
"The application contained this question and answer: 'Q.
•Was the automobile new or second hand when purchased by
the present owner? A. New.' It is so described in the proof
of loss, but it is not so described in the policy. The policy
bears date June 25th, 1915, and the year in which it wa< built
is put down as 1915. We think the trial court was in error
when it based the judgment for the plaintiff upon the tlieory
that the agent of the defendant had full knowledii:e of the
fact concerning the age of the machine Ix'cause there is no
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334 COURT OF ERRORS AND APPEALS.
Rabinowitss v. Vulcan Influrance Coi 90 N, J. L.
proof in this case that Van Home was authorized in writing
to be the agent of the defendant company. On the other
hand, we think the trial court was not justified in fending that
the (jar was not a new one within the meaning of the policy of
insurance. The car was new in January, 1915 ; it was bought
by Van Home for the plaintiflE and the title remained in Van
Home until about the Ist of March, when the plaintiff was
able to pay for the machine. The undisputed facts are that
plaintiff. needed a car for use in the real estate business of
Van Home, by whom he was employed, and his employer,
having a trading account with a dealer in automobiles, and
having also an open credit account with the plaintiff, bought
, the car for him* and kept it in his, Van Homers, garage, and
turned it over to him when his credits amounted to the cost.
This amounted to a purchase for plaintiff as much as if the
credit had been given to him directly by the seller.
"We think the machine was new within the meaning of the
policy, and that therefore the judgment should be affirmed,
but not for the reasons given by the trial court.^'
For the appellant, William E. Blackman.
For the respondent, Ilershenstein & Finnertif,
Per Curiam.
The judgment under review will be affirmed, for the reasons
set forth in the opinion of the Supreme Court.
For affirmance — The Chancellor, Chief Justice,
SwAYZE, Trenchakd, Minturn, Kalisch, Black, Heppen-
heimer, Williams, Gardner, JJ. 10.
For reversal — None.
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NOVEMBER TERM, 1916. 335
90 N. J. L. Ruby v. Freeholders of Hudnon.
EMORY R. RUBY ET AL., RESPONDENTS, v. FREEHOLDERS
OF HUDSON COUNTY ET AL., APPELLANTS.
JOHN T. KENNEDY, RESPONDENT, v. FREEHOLDERS OF
HUDSON COUNTY ET AL., APPELLANTS.
Argued November 23, 1916--Decided March 5, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 88 N. J. L, 481.
For the appellants, William Baker^ Inc., Mwrahnll Van
Winkle (Warren Dixon on the brief).
For the respondents, Oilhert Collins and Edward A.
Markley,
Per Curiam. '
The judgment of the Supreme Court should be afiBrmed, for
the reasons given in the opinion of Mr. Justice Trenchard in
the first of the above cases in that court.
Appellant Baker makes the additional point, not discussed
by the Supreme Court, that the retention of his certified check
deposited as a guarantee, when the checks of all other com-
peting bidders were returned to them, amounted in law to an
acceptance of the Baker bid and bound the county to proceed
with the contract. We cannot take this view. The retention
of Baker's check went with the resolution purporting, by a
vote of six to three, to award him the contract, and certainly
gave that attempt no additional efficacy. The fact that by
consent of parties, or misapprehension of the correctness of
the legal situation, the check remained with the freeholders,
conferred no rights on the bidder except to have the check
back.
For affirmance — The Chancellor, Chief Jfstice.
SwAYZE, Parker, Bergen, Minturn, Kalisch, White, ,
Heppenhetmer, Willtamr, Gardner, JJ. 11.
For reversal — N'one.
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336 COURT OFEREORS AND APPEALS.
Sickler v. Tuckahoe National Bank. 90 N. J. L.
JOSEPH T. SICKLER, RESPONDENT, v. TUCKAHOE NA-
TIONAL BANK, IMPLEADED, ETC., APPELLANT.
Submitted December 11, 191G— Decided March 5, 1917.
On appeal from the Supreme Court.
For the appellant, David 0. Watkins.
For the respondent, Joseph J, Summer ill.
Per Curiam.
The respondent sued the appellant, the Tuckahoe National
Bank, impleaded as defendant with Lilbem M. Hess, for $500,
with interest. Hess, as agent for the bank, agreed with Annie
J. Sickler that the bank would convey to her a certain hotel
property, with the furniture in a certain other hotel, and
certain bonds of an improvement company, and would cause
to be conveyed to John R. Sickler, her husband, the stock of
\vines and liquors in the last-mentioned hotel, and would
cause to be transferred to him a certain license to keep an inn
or tavern, all for $23,000, of which sum $500 was to be paid
forthwith, the sum of $3,500 on a certain later day, the sum
of $1,000 when the license was transferred, making a total
cash payment of $5,000, the balance to be secured by a mort-
gage on the hotel property to be conveyed to her. Mrs. Sickler
paid the $500 to Hess, as agent for the bank, and received a
receipt therefor. The agreement not having been performed,
she subsequently assigned her claim against tlie bank growing
out of the transaction to the respondent, who brought suit
thereon, averring that he had no knowledge as to whether the
bank authorized Hess to make the agreement, or whether
Hess ever paid the $500 to the bank, hut that Hess, acting
for the bank, had repudiated the agreiMuont and refused to
comply with its terms. He demanded of the bank, or, in the
alternative, Hess, the sum of $500, so paid on account of the
agreement, with interest. The case came on to be heard In
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NOVEMBER TERM, 1916. 337
90 N, J. L. Sickler v. Tuckahoe National Bank.
the Gloucester County Circuit Court before Judge Carrow
and a jury, and resulted in a verdict in favor of Joseph
T. Sickler, the respondent, and against the Tuckahoe
Xational Bank, appellant, upon which judgment was
duly entered. From this judgment the bank has appealed
upon the sole ground that the trial ju.dge refused to nonsuit
the plaintiff at the close of his case.
When the plaintiff rested there was testimony to the effect
that Hess, after the agreement was made, demanded $6,500
in cash instead of the $5,000 stipulated, making an additional
cash payment of $1,500, and that he had refused to have the
property conveyed and the license transferred, as required by
the agreement. The Sicklers^ although they went into pos-
session of the hotel to be conveyed, vacated it and were not in
possession at the time of the break.
While there does not appear to have been competent proof
of Hess' agency for the bank on the plaintiff's case, that ques-
tion was not raised, but, on the contrary, such agency was
practically conceded by coiinsel for the defendant on the argu-
ment of the motion to nonsuit.
As there was evidence to go to the jury at the close of the
plaintiff's case, to the effect that the defendant bank, through
its agent, had varied the terms of the agreement, and there-
fore excused performance by the plaintiff's assignor, the
denial of the motion to nonsuit was right, and the judgment
will therefore be affirmed, with costs.
For affirmance— r^HE Chancellor, Chief Justice, Gar-
rison, SwAYZE, Trenchard^ Parker, Bergen, Minturn^
Kalisch, Black, White, Heppenheimer, Williams, Gard-
ner, JJ. 14.
For reversal — Xone.
Vol. xc. 22
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338 COUET OF ERROKS AND APPEALS.
Spada V. Penna. R. R. Co. 90 N. J. L,
ANDREW SPADA ET AL., PARTNERS, ETC., RESPONDENTS.
V. THE PENNSYLVANIA RAILROAD COMPANY, APPEL-
LANT.
Submitted December 11, 1910— Decided March 5, 1917.
On appeal from the Hudson County Circuit Court.
For the appellant, Vredenlurgh, Wall & Carey {John A,
Ilartpence on the brief) . •
For the respondents, QtLaen & Stout.
Peh Curiam.
The questions raised on this appeal are. determined, in
effect, by the principles laid down by this court in Carr v.
Pennsylvania Railroad Co.^ 88 N. J. L. 235.
The judgment below will be aflSrmed, with costs.
For affirmance — ^Tiie Chancellor, Chief Justice, Gar-
rison, SwAYZE, Trexchard^ Parker, Bergen, Minturn,
Kalisch, Black, White, Heppenheimer, Williams, Gard-
ner, JJ. 14.
For reversal — ^None.
STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MOR-
RIS HOFFMAN, PLAINTIFF IN ERROR.
Submitted December 11, 1916 — Decided March 5, 1917.
On appeal from the Supreme Court, in which the following
jter curiam was filed :
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NOVEMBER T^RM, 1916. 339
90 N. J. L. State v. Hoffman.
"The defendant was convicted of receiving stolen goods and
seeks to review by writ of error alone.
"The first point is, that the conviction rests alone upon the
unconfirmed testimony of three boys who stole and sold brass
auto lamps to defendant. It is not necessary to consider the
legal effect of this because it is not raised by any exception.
It goes to the l^al effect of the testimony and there was no
motion for direction or request to charge which raised this
question. But if the record did raise the question, it has been
disposed of contrary to the contention of plaintiff in error in
State V. Rachm<jn, 68 iV. «7. L. 120.
"The next point is, that the court charged the jury that
^every effort should be made to stamp otit such practice.' This
is an excerpt from that part of the charge which refers to the
practice of buying goods that have been stolen from boys, but
it was said 'without regard to the guilt or innocence of the
defendant.' It was perhaps not happy, but that does not make
it error.
"The third point is, refusal to charge that if the defendant
did not know the brass was stolen, then he could not be con-
victed, and that the state must prove that the goods were
stolen and that defendant knew or had reason to believe that
they were. The court did charge this in explicit terms.
"The fourth point is the same as the second and refers to
■ comments upon the evils of buying stolen goods.
"The last alleged error is refusal to charge Hhat if defend-
ant purchased the lamps which were smashed up and the de-
fendant having no knowledge that they were stolen,' he must
be acquitted. The court did charge all of this that defendant
was entitled to have charged.
"The judgmept will be affirmed."
For the defendant in error, Jacob L. Newman,
For the plaintiff in error, Charles Hood,
Per Curiam.
The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Court.
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^40 COURT OF ERRORS AND APPEALS.
State V. Lehigh Valley' R. R. Co. 90 N. J. L.
For affirmmice — ^The Chancellor^ Garrison^ Trbn-
ciiARD, Parker, Bergen^ Minturn^ Kalisch, Black,
White, Heppenheimer, Williams, Gardner, JJ. 12.
For reversal — None.
THE STATE, DEFENDANT IN ERROR, v. LEHIGH VALLEY
RAILROAD COMPANY, PLAINTIFF IN ERROR.
Argued November 22, 1916 — Decided March 5, 1917.
On error to the Supreme Court, whose opinion is reported
in 89 N. J. L. 48.
For the plaintiff in error, Charles B. Bradley.
For the state, Charlton A. Reed, prosecutor of the pleas.
Per Curla-m.
We conclude that the judgment brought up should be
affirmed, substantially for the reasons given in the opinion of
Mr. Justice Swayze in the Supreme Court.
We are not called upon to decide as between the present
plaintiff in error and its lessor, the MoiTis Canal Company,
which one is bound under the contractual relations existing
between them, to bear the expense of maintaining bridges
across the canal. In the case of Ryerson v. Morris Canal Co.,
71 N. J. L. 381, relied on by counsel and discussed in the
opinion below, the question was whether by the act of leasing
under express legislative authority, the canal company could
"transfer * ♦ ♦ the duty of maintaining the bridges,'^
and this was properly decided in the negative; but the ques-
tion whether by leasing in perpetuity and taking complete
possession of all the property and franchises of the canal com-
pany, the lessee, had as between itself and the state assumed
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NOVEMBER TEKM, 1916. 341
90 y, J. L. State v. Di Maria.
equally with the canal company the duty of maintaining those
bridges, was not involved and was not decided.
We agree with the conclusion of the Supreme Court that
the lessee took cum onere, and, consequently, was laid under
the same duty toward the state and the public, respecting
bridges, as its lessor. This makes it unnecessary to rely on the
point suggested by the court below, that the bridge in ques-
tion would be a nuisance if unauthorized by statute and so
built as to obstruct the highway. This is challenged as not
supported by any allegation in the indictment. For the pur-
poses of this decision we disregard it and express no opinion
thereon.
The judgment is affirmed.
For affirmance — The Cpiancellor, Garrison, Tren-
CHARD, Parker, Minturx, Kalisch, Black, White, Hep-
PENHEIMER, WiLLIAMS, GARDNER, J J. 11.
For reversal — None.
STATE OP NEW JERSEY, DEFENDANT IN ERROR, v. NUN^
ZIO DI MARIA, PLAINTIFF IN ERROR.
Submitted December 11, 1916 — Decided March 5, 1917.
On error to the Supreme Court, whose opinion is reported
in 88 N. J. L. 416.
For the defendant in error, Robert S. Hudspeth,
For the plaintiflP in error, Alexander Simpson.
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Chief Jus-
tice Gummere in the Supreme Court.
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342 COURT OF EREOES AND APPEALS.
State V. Nonee. 90 N, J. L,
For afftrmance — ^The Chancellor, Gahribon, Tren-
CHABD, Parker, Minturn, Kalisch^ Black, White, Hep-
PENHEIMER, WiLLIAMS, GARDNER, JJ. 11.
For reversal — None.
STATE OF NEW JERSEY, DEFENDANT IN ERROR, v.
CHARI.es A. NONES, PLAINTIFF IN ERROR.
Argued November 21, 1916— Decided March 5, 1917.
On error to the Supreme Court, whose opinion is reported
in 88 N. J, L. 460.
For the defendant in error, Jdcoh L. Netmnan.
For the plaintiff in error, Borden D. Whiting,
Per Curiam.
The judgment under review herein should he aJBBrmed, for
the reasons expressed in the opinion delivered hy Chief Jus-
tice Gummere in the Supreme Court.
For affirmance — The Chancellor, Garrispn, Tren-
OHARD, Parker, Minturn, Kalisch, Black, White, Hep-
PENHEIMER, WiLLIAMS, GARDNER, JJ. 11.
For reversal— None,
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XOVEMBER TEKM, 1916. 343
90 N, J, L. State v. Serritella.
THE STATE, DEFENDANT IN ERROR, v. JOSEPH SERRI-
TELLA, PLAINTIFF IN ERROR.
Submitted December 11, 1916— Decided March 5, 1917.
On error to the Supreme Court, whose opinion is reported
in 89 N. J. L, 127.
For the plaintiflP in error, Frank M. McDermii.
For the state, Jacob L, Neumum^ prosecutor of the pleas, ,
and Andrew Van Bla/rcom, assistant prosecutor.
Per Curiam. ^
The judgment of the Supreme Court should be affirmed, for
the reasons given in the opinion of Mr. Justice Bergen in
that court, except as to the point hereii^ discussed.
The trial judge charged that one of the witnesses, a small
boy, was '^corroborated by one of the other boys, who says,"
&c. Upon the review in the Supreme Court on strict writ of
error, and also under section 136 of the Criminal Procedure
act, it was urged that the testimony adverted to was not cor-
roborative, and the Supreme Court held that it was. We find
ourselves unable to concur with the Supreme Court on this
point, but this does not work a reversal. The language used
is only comment on the evidence. If it were a statement of a
fundamental fact as having been proved, and were erroneous
and properly made the foundation of a review, it would prob-
ably lead to a reversal, as in Smith rf Bennett v. Staie, 41 N.
J, L. 370 ; but if merely comment not binding on the jury,
and whose error in fact is not pointed out to the court, it will
not avail the defendant even under section 136. Siatf v.
Kroll 87 Id. 330, 331; Staste v. Lovell, 88 Id. 353. The
record does not show that the attention of the court was in
any way drawn to this misrecital of the testimony, of whope
inaccuracy the jury were quite. competent to judge.
The judgment is affirmed.
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344 COURT OF ERRORS AND APPEALS.
Whittingham v. Millburn Twp. 90 N. J. L
For affirmance — The Chancellor, Garrison, Trex-
CHARD, Parker, Minturn, Kalisoh, Black, White, Hep-
PENHEIMER, WiLLIAMS, GARDNER, J J. 11.
For reversal — None.
ELIZABETH WHITTINGHAM, APPELLANT, v. TOWNSHIP
OF MILLBURN ET AL., RESPONDENTS.
Argued November 29, 1916 — Decided December 5, 1910.
On appeal from the Supreme Court, in which the following
per curiam was filed :
"Two ordinances, one to change the grade of Wyoming ave-
nue, in the township of Millburn, and the other to widen the
same avenue, have been brought up for review bv separate
writs of certiorari,
"The prosecutrix owns lands adjoining the avenue. Her
status to prosecute the writs is not questioned.
"It is conceded that the ordinances are- intended to accom-
plish part of a general scheme of abolishing certain grade
crossings of the Delaware, Lackawanna and Western Railroad
Company, one of the defendants.
"The township of Millburn entered into an agreement with
the Delaware, Lackawanna and Western Railroad Company,
providing, among other things, for the elimination of the
grade crossing of Wyoming avenue, by raising it above the
level of the tracks and crossing the railroad on a bridge.
"This contract was made September 20th, 1915, pursuant
to the authority conferred by section 30 of an act entitled ^An
act concerning railroads,^ Revision of 1903 (Pamph. L., p.
645; 3 Comp. Stat,, p. 4234, amended by chapter 57 of the
laws of 1915). Pamph. L„ p. 98. ♦
"The first point made by counsel for prosecutrix is, that
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NOVEMBER TEEM, 1916. 345
90 N: J. L. Whittingham v. MiUburn Twp.
the ordinances should be set aside because they are a part of a
general illegal scheme. The general ground upon which this
assertion is rested is that the township of Millbum does not
come within the operation of the act of 1903 as amended.
"It is argued under this head that because the act of 1903
uses the phraseology 'municipality or township/ that it was
intended to include all municipalities above the dignity of
townships; that because in the amendment of 1915 of the act
of 1903, the word 'township' was wiped out and the word
''municipality' only was allowed to remain, it was the plain
intention of the legislature by the use of the word 'munici-
pality' to exclude townships and only to include every politi-
cal division of a higher rank than township, and that being
so, the township of Millbum is excluded and therefore had
no power tp enter into the contract with the railroad com-
pany, and as a consequence the ordinances being a part of the
scheme to effectuate the purposes of the contract are illegal
and should be set aside. There is no substance to this con-
tention. We think the legislature, by the amendment of 1915,
clearly intended by the elimination of the word 'to\vn8hip'
from the act and leaving therein the word 'municipality' to
broaden the application of the act of 1903, to every munici-
pality in which the condition described by the act existed,
without regard to whether such a municipality is a city,
town, township, borough, or the like.
"One of the primary objects expressed in the act and which
the act seeks to accomplish is 'greater safety to persons and
property.'
"AVe do not think it would be a reasonable construction of
the act to hold that the legislature intended to protect the
lives and property of those who inhabited municipalities
which are termed cities and to leave the lives or property of
those who inhabited municipalities which are not so denomi-
nated unprotected.
"When it is considered that there are eighty-five cities,
towns and boroughs in this state each of which has a popula-
tion of less than one thousand, and that there are twenty-two
townships each of which has more than five thousand inhabit-
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346 COURT OF ERRORS AND APPEALS.
Whittingham v. Millburn Twp. 90 N. J. L.
ants, and some of which have more than ten thousand inhabit-
ants and as high as twenty thousand, it would easily be giving
an absurd effect to the act by excluding from its operation
townships which are by far more populous and in need of the
power conferred by this legislation than are municipalities
which are styled cities. We conclude, therefore, that the
township of Millburn had the power to make the contract,,
and possessing that power it was authorized to effectuate the
purpose of such contract by passing the ordinances assailed.
"It appears that the ordinance to change the grade of
Wyoming avenue was passed on final passage on February
21st, 1916, and the ordinance to widen the same was passed
April 17th, 1916. The writs were not applied for until May
27th, 1916, and under the ninety-third section of the Town-
ship act (4 Comp. Stat,, p. 5609), the application was made
too late. The section referred to forbids either certioraai
or injunction to set aside any ordinance or resolution for
any public improvement, &c., after thirty days have elapsed
from the date of the adoption of the resolution or ordinance.
"We think, therefore, that the only question that we can
properly consider is the attack made upon the constitution-
ality of the grade crossing elimination scheme contained in
the General Railroad act. The precise point made in this
regard being that section 30 of the Railroad act is unconsti-
tutional, in so far as it attempts to enlarge the powers of
municipalities.
"It does not appear that the constitutionality of this sec-
tion has ever been challenged, but, on the contrary, it does
appear that its effectiveness has been uniformly recognized
by the courts of this state for almost fifty years.
• "Besides all this, we think that the ground upon which
this section is attacked is untenable. The subject-matter
dealt with in section 30 of the Railroad act is cognate to the
use and operation of railroads which necessarily cross public
highways, &c. The scheme of the section is to permit rail-
roads to make contracts with municipalities in regard to the
use of public highways and this is clearly germane to the
operation of railroads.
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NOVEMBER TERM, 1916. 347
90 y. J, L, Whittingham v. Millburn Twp.
"Another point urged by counsel for the prosecutrix is
that the ordindhce did not receive the unaniriious vote which
under the act of 1899 (4 Comp, Stat., p. 5579) is required
where the change of the grade of highway is the design.
"We think that this has reference only to improvements
made in the usual course of development of such municipali-
ties. The Railroad act contains no such provision. It pro-
vides that the municipal authorities may enter into contracts
with railroad companies to secure the abolition of grade
crossiAgs. We think this power, inferentially, is to be exer-
cised on the principle of a majority rule.
"Ijastly, it is urged that the powers conferred on the town-
ship in making the agreement with the railroad company,
were- limited to the elimination of the grade crossings, .and
did not authorize the widening of the avenue. The answer
to this objection is that if it became necessary, in order to
eliminate the grade crossings, that the avenue should be
widened, it was proper exercise of power.
"The writs will be dismissed and the proceedings aflSrmed,
with costs.'^
For the appellant, Cortlandt & Wayne Parker and John 0.
Bigelow,
For the respondent township of Millburn, Jerome T. Con-
gleton, *
For the respondent Delaware, Lackawanna and Western
Railroad Company, Walter J. Ijorrahe^:
Per Curiam.-
The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Court.
For affirmance — The Chancellor, Chief Justice, Gar-
rison, Trenchard, Black, White, Heppenheimer, Wil-
liams, Gardner, JJ. 9.
For reversal — Parker, Bergen, JJ. 2.
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348 COUET OF EREOES AND APPEALS.
Whittingham v. Millburn Twp. 90 N. J. L.
ELIZABETH WHITTINGHAM, APPELLANT, v. TOWNSHIP
OF MILLBURN ET AL., RESPONDENTS.
Argued November 29, 1916 — Decided December 5, 1916.
On appeal from the Supreme Court.
For the appellant, Cortlandt £ Wayne Parker and John 0.
Bigelow,
For the respondent township of Millburn, Jerome T. Coiv-
glet'on.
For the respondent Delaware, Lackawanna and Western
Eailroad Company,' Walter J. Larrabee.
Per Curiam.
The judgment under review will be aflBnned, for the rea-
sons given in the per curiam in Whittingham v. Tovmship of
Millburn ei ol., Xo. 125, present term of this court, ante p.
344.
For affirmance — The Chancellor, Chief Justice, Gar-
rison, Trenchard, Black, Whiti^ Heppenheimer, Wil-
liams, Gardner, JJ. 9.
For reversal — Parker, Bergen, JJ. 2.
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CASES DETERMINED
nr THs
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW JERSEY.
JUNE TERM, 1917.
ALFRED H. ELLIS, ADMINISTRATOR, RESPONDENT, v. THE
PENNSYLVANIA RAILROAD COMPANY, PROSECUTOR.
Submitted May 28, 1917— Decided June 28, 1917.
In an action brought by an administrator under the "Death act"
a motion to non proa., if granted, is without costs against the
plaintiff. The case of Kinney, Admini^raior, v. Central Railroad
Co^ 34 N, J. L, 273, followed.
On motion to non pros.
Before Justices Garbison, Parker and Bergen.
For the motion, John A. Haripence.
Contra, Warren Dixon,
The opinion of the court was delivered by
Garrison^ J. This is a motion for ncn pros., and for the
allowance of costs in favor of defendant against the plaintiff,
who is an administrator suing under the "Death act.'' The
349
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350 NEW JEKSEY SUPBEME bOURT.
Malone v. Erie Railroad Co. 90 A\ J, L.
court granted the non proa,, but reserved the question of costs,
with leave to defendant to submit a memorandum in support
of the application therefor against the administrator, which
has now been handed to the court.
In his memorandum counsel frankly admits that in the case
of Kinney v. Central RaUroad Co, (1870), 34 N.J, L, 273, this
court decided that a defendant could not recover costs against
an administrator in an action brought imder the "Death act."
He also admits that for nearly fifty years this rule has been
applied in this court. He then argues with much force that
the rule is wrong, for the reason that the administrator does
not sue in the right of his intestate, but in the right of statu-
tory beneficiaries. We express no opinion as to whether the
original decision of this question was correct or not, for the
reason that it is the judicial habit of this court under the cir-
cumstances now before us to follow its own previous decision,
leaving it to the Court of Errors and Appeals to review the
legal merits of such decision.
The rule of non pros, may be entered, without costs.
JAMES C. MALONE. APPELLANT, v. THE ERIE RAILROAD
COMPANY, RESPONDENT.
Submitted March 22, 1917— Decided June 1, 1917.
When a judge is trying a case with a jury, his opinion as to the suffi-
ciency of the plaintiflTfi proofs, whether commynicated . to counsel
or not, does not deprive the plaintiff of his right to submit to a
voluntary nonsuit at any time before the jury has retired to con-
sider its verdict or the judge has commenced to address the jury
for the purpose of directing a verdict.
On appeal.
Before Justices Gakkison, Parker and Bergen.
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JUNE TERM, 1917. 351
90 y. J. h. Malone v. Erie Railroad Co.
For the appellant, Thomas J. Brogan.
For the respondent, Collins & Corbin.
The opinion of the court was delivered by
Garrison, J. This was an action for damages for the neg-
ligent transportation of skins whereby they heated and were
in part spoiled.
A motion to direct a verdict was made during the argument,
of which the court several times gave expression to a view of
the case favorable to the granting of the motion, and when
these expressions had reached a point that satisfied counsel for
the plaintiff that in the view of the court his evidence was not
sufRcieut to make a case for the jury, he said to the court that
he would take a nonsuit. This right the court denied him,
and after an exception had been taken to this ruling, the court
addressed the jury and directed them to render a verdict for
the defendant.
We think that it was error to deny the plaintiff's motion to
submit to a volimtary nonsuit made before the jury had re-
tired to consider its verdict and at a time when it had not been
directed what verdict to render.
Section 160 of the Practice act takes away this right only
^'after the jury have gone from the bar to consider their ver-
dict." This applies to District Courts. Greenfield v. Cary,
70 A^. J. L, 613 ; Ciesmelemshi v. DomalewsJci, ante p, 34.
In this latter case there was no jury and the judgment pro-
nounced by the court was in effect after the consideration of
its verdict.
Wolf Company v. Fulton Realty Co,*, 83 iV. J, L, 344, was
also a case tried without a jury, and the judge had begun to
announce his decision, which, of course, assumed that the jury
element in the court had considered its verdict.
Mr. Justice Swayze, in this case, said that the situation
was closely analogous to one where the trial judge has directed
the jury to render a verdict for the defendant, but the verdict
has not in fact been rendered, in which situation the plaintiff
has no right to submit to a nonsuit, citing DobJcin v. Ditt-
mers, 76 iV^. J. L. 235.
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352 NEW JERSEY SUPREME COURT.
Malone v. Erie Railroad Co. 90 N. J. L.
The theory of this line of eases is that when the jury lias
been directed as to its verdict no consideration by the jury is
contemplated, hence the offer to submit to a nonsuit comes too
late. The essential feature of these decisions is the legal effect
of a binding instruction delivered by the court to the jury.
The attempt in the present case is to give to the opinion ex-
pressed by the judge to counsel during the argument of the
defendant's motion for a direction the same effect that the
cases cited give to a judicial direction to the jury to render a
verdict for the defendant.
The confusion of these two totally different things loses
sight of the fact that at common law wliere compulsory non-
suits were unknown voluntary nonsuits were based upon the
communication to counsel of the judge's opinion adverse to
the plaintiff. So far, therefore, from such a communication
preventing the plaintiff's submission to a voluntary nonsuit it
normally led to it.
In the early case of Runyon v. Central Railroad Co., 25 N.
J, L. 556, while our practice as to nonsuits was still in the
making, this court said : "The counsel did, indeed, resist the
motion below, and the question, whether the plaintiff had made
a case which entitled him to recover, was fully argued; but
after the court had given the opinion that the plaintiff ought)
to suffer a nonsuit, he did not insist upon his right to have the
matter submitted to the jury. In such case the party is con-
sidered as, technically, suffering a voluntary nonsuit."
There is nothing in our judicial rule as to compulsory non-
suits that alters the common law right to submit to a volun-
tary nonsuit ; if that right has. been abridged it is by our
statute, which preserves the right until the jury has retired
to consider its verdict or some judicial action has been taken,
the legal effect of .which is to control the action of the jury.
It results, therefore, that when a judge is tr}-ing a case
with a jury his opinion as to the sufficiency of the plaintiff's
proofs, whether communicated to counsel or not, does not de-
prive the plaintiff of the right to submit to a voluntary non-
suit at any time before the jury has retired to consider its
verdict or the court has addressed the jury for the purpose of
directing its verdict.
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JUXE TERM, 1917. 353
90 N. J. L. Atl. Coast Elec. Ry. Co. v. State Bd. T. & A.
It may well be that when the judge has eomraenced to ad-
dress the jury for the purpose of directing a verdict for the
defendant, he cannot be interrupted by counsel for the plaint-
iff. That question does not arise in this case, where the court
had not commenced to address the jury, but had expressed
his opinion in a running colloquy with counsel.
Having reached the conclusion that there was legal error in
the denial of the plaintiflf's right to take a voluntary nonsuit,
there must be a reversal of the judgment of the District Court
and the award of a venire de novo.
ATLANTIC COAST ELECTRIC RAILWAY COMPANY, PROSE-
CUTOR, V. STATE BOARD OF TAXES AND ASSESS-
MENTS. RESPONDENT.
Submitted March 22, 1917— Decided June 6, 1917
The act of 1906 (Pamph, L., p. 644) requiring an annual franchise
tax upon the annual gross receipts of any street railway corpo-
ration or upon such proportion of such gross receipts as the
length of its line in this state upon any street, highway, road,
lane or other public place bears to the leAgth of its whole line,
clearly requires that the tax should be calculated upon all gross
receipts, irrespective of whether or not they are receipts for trans-
portation, and* was intended to provide a specific scheme for the
taxation of the street railway corporations and to differentiate
. such corporations from corporations liable to the franchise tax
under the act of 1903. Pamph, L., p. 232.
On certiorari of taxes.
m
Before Justices Swayze, Minturn and Kalisch.
For the prosecutor, Durand, Jvins & Carton,
For the respondent, John W. Wescott, attorney-general.
Vol. xc. 23
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354 NEW JEI^SEY SUPREME COriiT.
Atl. Coast Elec. Ry. Co. v. State Bd. T. & A. 90 A' . J. L.
The opinion of the court was delivered by
SwAYZE^ J, The prosecutor was taxed under the act of
1906 (Pamph, L,, p, 644), upon gross receipts amounting to
$363,742.35.' Of this amount $67,752.55 was receipts from
current and power delivered to the Atlantic Coast Electric
Light Company. The prosecutor claims that this last amount
should not be included in the gross receipts upon which the
franchise tax is to be estimated. The language of the statute
plainly requires an annual franchise tax upon the annual gross
receipts of any street railway corporation or upon such pro-
portion of such gross receipts as the length of its line in this
state upon any street, highway, road, lane or other public place
bears to the length of its whole line. The argument of the
prosecutor is that although this language is clear, the tax
should be computed only upon the gross receipts for transpor-
tation, because this was the rule under the act of 1903.
Pamph, L,, p, 232. The answer is that the act of 1906 was
intended to provide a specific scheme for the taxation of the
street railway corporations and to differentiate such corpora-
tions from corporations liable to the franchise tax under the
act of 1903. The legislature had before them the latter act
and carefully omitted the words indicating that the tax should
be calculated on receipts for transportation. No inference
can be drawn froi^g this omission except that the legislature
meant that the tax should be imposed upon the total of the
gross receipts in accordance with its precise language, which
cannot be explained away by a mere guess at the possible in-
tent to the contrary. This is borne out by the fact that under
the act of 1900, whicli was the original Franchise Tax act for
corporations of this character, a distinction was made between
oil and pipe line corporations which were required to report
gross receipts for transportation of oil and petroleum, and
other corporations which were required only to report gross
receipts. The act of 1900 was before this court in Paierson
and Pa,smic Gas Co. v. Board of Assessors, 69 N. J. L. 116,
iind it was held that gross receipts included all gross receipts.
The tax is affirmed, with costs.
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JUNE TERM, 1917. ^ 355
90 y. J. L. Benjamin & Johnes v. Brabban.
BENJAMIN & JOHNES, PROSECUTOR, v. FLORENCE A.
BRABBAN, RESPONDENT.
Argued June 7, 1917— Decided June 25, 1917.
1. A claim for compensation under the Workmen's Compensation
act is 'barred by the lapse of one year from the date of the acci-
dent unless a petition is filed or an agreement for compensation
payable under the act, is reached within such time. Neither the
payment by the employer of the physician's bill for attendance
during the first two weeks of disability nor «n agreement that
there shall be "no compensation" can properly be called an agree-
ment such as may be reviewed by the Court of Common Pleas,
under the authority of paragraph 21 of the act, on the ground
that the incapacity of the injured employe has subsequently in-
creased or diminished.
2. A case linder the Workmen's Compensation act, solemnly adju-
dicated on a petition and agreed statement of facts, should not
be reopened for the purpose of allowing a party to make a new
and distinct case.
On certiorari to the Essex Pleas.
Before Justices Swayzb^ Bergen and Black.
For the prosecutor, M, Casewell Heine.
For the defendant, Wilbur A, Heisley.
The opinion of the court was delivered by
SwATZE, J. ^ Florence M. Brabban was injured on May 1st.
1913, while in the employ of Benjamin & Johnes. On April
30th, 1915, nearly two years afterward, she filed a petition in
the Essex Common Pleas setting up that there was a dispute
between her and the present prosecutor concerning her claim
for compensation and praying that that dispute might be
determined in accordance with the act. To this petition an
answer was filed claiming that her right was barred by the
lapse of the year allowed by the statute, and obviously this de-
fence was valid. Thereupon, on June 16th, 1915, she filed an
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356 NEW JERSEY SUPREME COURT.
Benjamin & Johnes v. Brabban. VO A'. •/. />.
amended petition in which she stated that about two weeks
after the accident an agreement was entered into between her
and the prosecutor by which it was understood and agreed
"that the petitioner should receive no compensation for the
injury which she sustained by reason of the fact that she had
returned to her employment on the sixteenth day after the
occurrence ;" that in November, 1914, she discovered that her
incapacity had increased and she therefore requested the court
to review the agreement and to adjudge compensation to her
under the act. This petition came on for hearing upon an
agreed state of facts which recited that on the sixteenth day
after the accident slie returned to work, and on the same day,
had a conversation with one of the members of the respondent
corporation, during which she asked for compensation and was
told that as she had returned shortly after the lapse of two
weeks she was entitled to no compensation under the law, but
was advised to see a lawyer; that she consulted counsel and
was advised that she could recover nothing; that she again
saw the same member of the respondent corporation And told
him that she acquiesced in his interpretation of the law, and
said that she was satisfied that she was entitled to no com-
pensation, ^nd if satisfactory to the respondent would con-
tinue to work there; and that she did so continue working
until the month of November, 1914. The judge held, on this
state of facts, that he could find no agreement such as con-
templated by the language of the last paragraph of section 21
or the last paragraph of section 23, and that the petition
would be dismissed.
On November 13th, 1915, Miss Brabban filed a second
amended petition in which she recited that two weeks aftfer
the accident an agreement was entered into between her and
the prosecutor, in which it was agreed that the prosecutor
should pay or reimburse her for the amount she had become
indebted to a physician for medical attendance made neces-
sary by the accident. The petition states that more than one
year had elapsed since the agreement became operative ; that
the statement in her former petition that it was agreed that
she should receive no compensation for the injury was made
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JUNE TERM, 1917. 357
00 y. i/. L. Benjamin & Jahnes v. Brabban.
• ' — _i
by inadvertence and mistake and without the knowledge of
the petitioner (although it was sworn to). She prayed that
the agreement be reviewed. TJiereupon the judge set aside his
former jud^ent, reheard the case, held that the agreement
to pay the physician's bill was an agreement for compensation
and that he had the right to review it. He did review it and
awarded her $5.50 a week for four hundred weeks.
Obviously, she could not recover under any of these peti-
tions as an original petition for compensation under. the act,
for they were all filed more than a year after the injury. The
only ground on which the proceedings can be sustained is
that there had been an agreement for compensation between
the parties within a year after the accident, and that this
agreement might be reviewed under section 21 of the act on
the ground that her incapacity had increased. The difficulty
with this claim of the petitioner is that it is necessary that
there should have been an agreement upon the "compensation
payable under the act," which shall be subject to diminu-
tion as well as to increase. The payment of the physician's
bill required no agreement, as the present prosecutor was
under an obligation to pay that bill under section 14 of the
statute, without any agreement. It is vciy doubtful, we think,
whether the opinion of the learned judge of the Common
Pleas that the physician's bill was compensation is sound, but
whether so or not the payment of the physician's bill required
no agreement and would not be subject to review ; it is only
where there is an agreement, that there can be a review after
the year and a case where there is an agreement is contrasted
by the statute with a case where there is a dispute. The pro-
vision is clearly not applicable to a case like this. To call an
agreement that there should be "no compensation" an agree-
ment for compensation under the act, is a mere perversion
of language.
Force is added to this view by the very fact stated in the
first amended petition that the agreement was that the peti-
tioner should receive no compensation for the injury which
she had sustained by reason of the fact that she had returned
to her employment on the sixteenth day after the injury. Ob-
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358 NEW JERSEY SUPREME COURT.
Freeman v. Van Wagenen. ' 90 N. J. L.
viously, the petitioner then had in mind the provisions of sec-
tion 13 of the act that no compensation should be allowed for
the first two weeks after the injury is received, and as the
trial judge said in his original opinion, the statement of facts
which was agreed upon showed that there was no agreement
such as was contemplated by sections 21 and 23. His adjudi-
cation on that petition and statement of facts was undoubtedly
correct, and we think he ought not, after he had adjudicated
the matter, to have allowed the case to be reopened for the
purpose of making a new and diflEerent case in contradiction
of the petitioner's own averments under oath. Such a pro-
cedure deprives the. defendant of the protection which the
statute intends to give him.
We pass by the questions as to the technical form of the
procedure on which a rehearing was had, as we do not regard
that as important, but it is important that a case solemnly
adjudicated sliQuld not be reopened for the purpose of allow-
ing a party to make a new and distinct case.
BART J. FREEMAN, RESPONDENT, v. GEORGE A. VAN
WAGENEN ET AK, APPELLANTS.
Submitted March 22, 1917— Decided June 6. 1917.
1. In a suit by a broker for commissions, alleged to be due for the
procuring of a sale of real estate under a written agreement, where
it was a disputed question whether the agreement had been aban-
doned by consent, such a question was a proper one for the
jury.
2. In the absence of a special agreement, a real estate broker, acting
by virtue of a written agreement, earns his commission when he
secures a ready and willing purchaser, "brings the parties together
and gets them to make a binding agreement.
On appeal from the Essex Circuit.
Before Justices Swayze^ Mixturn and Kalisch.
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JUNE TERM, 1917. 359
DO y. J. L, Freeman v. Van Wagenen.
For the appellants, William K. Flanagan.
For the respondent, Edwin C Caffrey.
The opinion of the court was delivered by
SwAYZE, J. This is an action by a broker to recover com-
missions on a sale of real estate. On October 22d, 1913, John
B. Van Wagenen, one of the defendants and tenants in com-
mon, signed a written agreement to pay the plaintiff a com-
mission of two and one-half per cent, for the sale of the prop-
erty. The defendants claim that this agreement was meant
to apply only to a proposed sale to the Pennsylvania Railroad
Ccrmpany; that no such sale was made; that thereupon in
December, 1913, the agreement for commissions was returned
by Freeman to Van Wagenen and abandoned. In fact, the
agreement was not produced at the trial ; the plaintiff relied
on what was said to be a copy which had been retained by his
law}^er. The point in this respect was that the agicement
had been abandoned by consent, although there are sugges-
tions in the case and in the briefs that the defendant sought
to vary the terms of the agreement by making it applicable
only in case of a sale to the railroad. The learned trial judge
rightly held that the evidence was not admissible for that pur-
pose and put to the jury the real question whether the written
authority was given up by the plaintiff, so as to render it of no
effect.
Whether the authority was given up or not, the plaintiff
continued his efforts to sell the property ; he claims, of course,
that he was acting under the written authority ; the defend-
ants claim that he was acting only under a verbal authority
from John B. Van Wagenen, whose agency for all the tenants
in common is not disputed. As a result of the plaintiff's
efforts, a prospective purchaser was procured in the person of
Cobb. Pending the actual execution of a contract for sale
with Cobb, the plaintiff produced, in March, 1914, another
purchaser — Scherer — who offered a higher price; with him
the defendants made a formal written contract on March 14th,
1914, for the conveyance of the land, and received $1,000 on
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360 NEW JERSEY SUPREME COURT.
Freeman v. Van Wagenen. 90 N. JL L,
account of the purchase price. This contract did not, how-
ever, result in a conveyance. Scherer sought to rescind and
recover his thousand dollars, but failed. Meantime, the de-
fendants actually conveyed the property to Cobb for a lower
price than that at which they had authorized the plaintiff to
sell. The claim of the plaintiff ft)r commissions on the sale
and conveyance to Cobb is not important for the present pur-
poses, since the jury found in favor of the defendants on that
issue and the plaintiff does not appeal. The question for us
is whether there was any error in submitting the case to the
jury as to the claim for commissions on the sale to Scherer.
Assuming, as we must, in view of the jury's finding in favor
of tlie plaintiff on this issue, that the authority of October
22d had not been given up, we think it was right to hold, as
the judge did, that the authority, and the subsequent agree-
ment for a conveyance to Scherer by the defendants, satisfied
the requirements of the tenth section of our statute of frauds.
There was an agreement signed by one of the defendants
which complied with the statute ; from the fact that the other
defendants joined him in the contract to convey to Scherer,
it was a necessary inference either that he was in fact their
agent in signing the authority to Freeman, or that they had
adopted his act. Under either view — actual present agency
or subsequent adoption — he was entitled to recover if he had
perfonned on liis part. As to this, the defendants claim that
although the plaintiff had produced a ready and willing pur-
chaser in the person of Scherer, he had not produced one able
to perform the contract. The judge charged that all the
plaintiff was bound to do was to bring the parties together
and get them to make a binding agreement. This was a cor-
rect statement of the law. It is a mistake to tliink that we
decided, in Hinds v. Henry, 36 N, J. L. 328, that the broker
could never recover unless he procured an able and willing
purchaser. We said that the general rule was that when he
had done that, his right to commission was complete. We did
not deny that other facts also might make his right complete.
A clear distinction is made in our cases between a sale and a
conveyance of land. We agree with what was said in Lindley
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JUNE TERM, 1917. 361
90 N. J. L. Newark Homebuilders Co. v. Bernards Twp.
et aJ, V. Keim ct d., 54 N, J. Eq, 418 (at p. 423), quoting
the opinion of Vice Chancellor Pitney, to be found in 30 Atl,
Rep. 1073, that, the words "sale'' and "selP in agreements be-
tween the owners of land and real estate brokers mean no
more than to negotiate a sale by finding a purchaser upon sat-
isfactory terms. This the plain tiflf did; the defendants actu-
ally accepted Scherer as satisfactory ; and the only question,
so far as the Scherer transaction is concerned, was that put
by the judge to the jury, whether the written authority had
been abandoned by the plaintiff as the defendants claimed.
We find no error ; the judgment is affirmed, with costs.
NEWARK HOMEBUILDERlS COMPANY, PROSECUTOR, v.
TOWNSHIP OF BERNARDS, RESPONDENT.
Submitted July 6, 1916— Decided May 21, 1917.
The interest, which a landowner must pay on the amount of his
assessment for sidewalk improvements, does not begin to run
until the amount of such assessment has been definitely ascer-
tained.
On certiorari.
Before Justices Swayze, Minturn and Kalisch.
For the prosecutor, Arthur A. Palmer,
For the township, Harrison P. Lindabury.
The opinion of the court was delivered by
SwAYZE^ J. An assessment for sidewalk improvements was
set aside and a new assessment ordered. The amounts to be
assessed have been agreed upon, and. the only question now
submitted to us is from what time interest should run on the
assessment. We think it should not begin to run until the
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3fi2 NEW JERSEY SUPREME COURT.
N. Y. Telephone Co. v. Newark. 90 N, J, L,
amount is ascertained by the court. Until that time the land-
owner is in no default; he cannot pay until the amount is
known. That this is the rule seems to have been taken for
granted in State, ex rel Miller, v. Love, 37 N, J. L. 261. The
cases cited on behalf of the township only hold that interest
paid by the municipality is a part of the cost of the improve-
ment. No doubt this is true, and we must assume, that the
total cost required to be assessed includes all interest paid by
the township. We cannot go back to February 4th, 1915, and,
by allowing interest on the assessment from that date, compel
the property owner to pay interest on interest for a time ante-
dating the day when the amount of his own liability becomes
known, and on interest that may not have been paid by the
township until long after that date and up to the present
time. That would mean not only compound interest but com-
pound interest in advance.
NEW YORK TELEPHONE COMPANY. PROSECUTOR, v.
MAYOR AND COMMON COUNCIL OF THE CITY OF
NEWARK, RESPONDENT.
Submitted March 22. 1917— Decided June 6 3917.
Where there is nothing that in a le^al sense implies the permanent
devotion of a telephone company's property to a public use, an
assessment for improvements may be measured by the increase in
the market value of the land, and it is not limited to the benefit
conferred on the company for its use of the property. It is only
where land is acquired under a legislative sanction that implies
its permanent devotion to a public use that such land has, in legal
contemplation, no market value for any other purpose, and hence
no market value to be enhanced.
On certiorari of assessment for benefits.
Before Justices Swayze, Minturn and Kalisch.
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JUNE TERM, 1917. 363
00 X. J. L. N. Y. Telephone Co. v. Newark.
For the prosecutor, Edward A. & William T, Day (Charles
T, Russell on the brief).
For the city, Harry Kalisch.
The opinion of the court was delivered by
SwAYZE^ J. This assessment is for the same improvement
involved in Jenkinson v. Parmly, Comptroller, and Fiedler i\
Parmly, Comptroller. All the points but one are disposed of
by the opinions in those cases. The additional point made in
this case is ihat the assessment must be limited to the benefit
conferred on the telephone company for its use of the prop-
erty, and cannot be measured by the increase in the market
value of the land; and inasmuch as the property is said to
be permanently devoted to a public use of such a character
that the present owner is not benefited by improved means of
access, it is argUed that the assessment should be nominal, or
should, at most, be less than it would be if the property were
ordinary business property. To sustain this position the
prosecutor relies on State, Morris and Essex Railroad v. Jer-
sey City, 36 N, J, L, 56 ; Cemetery Company v. Neimrk, 50
Id. 66 ; Erie Railroad Co. v. Paterson, 72 Id, 83. The last
two cases do not help the prosecutor. In the Cemetery Com-
pany case the portion of the land to which the cemetery com-
pany had title was held liable to assessment. In the Erie
Bailroad Company ca^ it was held that there might be an
assessment for benefits to the use of the property, although
there might be no assessment under the circumstances of that
ease for enhancement of market value. In the Morris and
Essex Railroad case it was, indeed, held that the enhancement
of the present market value was not the proper basis of assess-
ment, but that result was justified by the facts peculiar to tlie
case. The subject has been recently reviewed by the Court of
Errors and Appeals, and the rule and the reasons on which
it rests have been admirably stated by Mr. Justice Garrison.
Xew York Bay Railroad 'Co. v. Newark, 82 M 591. The
reason of the rule in Morris and Essex Railroad Co. v. Jersey
City, he says, is "j;hat land acquired under a legislative sanc-
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36i NEW JERSEY SUPREME COURT.
Old Dom. Cop. Min., &c., Co. v. S. Bd, Taxes, &c. 90 N.J. L.
tion that implies its permanent devotion to a public use can-
not, without a violation of such public use, have a market for
any other purpose and hence, as such a violation will not be
presumed, such land has, in legal contemplation, no market
value to b^ enhanced." The distinction between such a case
and the present is that here there is nothing that in a legal
sense implies the permanent devotion of the telephone com-
pany's property to a public use. It may be that in fact it is
always likely to remain the best site in Newark for a tele-
phone exchange, and that the company is never likely to
move ; it may be that the investment is so large that the loss
due to a removal would be prohibitive; it may be that it is
fitted up for the special business of the company. All these
considerations would probably be applicable to any large busi-
ness, to a bank, an insurance company or office building, a
hotel, a factory or a department store. But there is nothing
to show that the title to the property is likely to be affected
by an abandonment of the present use, nor is the property so
changed in character that it cannot readily be adapted to other
business purposes. Such a change is not unknown in the case
of the telephone company in Newark. We see nothing to dis-
tinguish the case from tliat of land used for the other kinds
of business buildings just mentioned.
The assessment is affirmed, with costs.
OLD DOMINION COPPKR MINING AND SMELTING COM-
PANY. PROSECUTOR, V. STATE BOARD OF TAXES AXD
ASSESSMENTS ET AL., RESPONDENTS.
Argued June 7, ipi7— Decided June 15, 1917.
The annual license fee or franchise tax, imposed upon corporations by
Pamph. L. 1906, p. 31, amending the supplement of 1901 (Pamph.
L., p. 31) to the act of 1884 (Pamph. L., p. 282), is payable each
year in advance, the year beginning with the first Tuesday of
May.
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JUNE TERM, 1917. 365
90 N. ./. L. Old Dom. Cop. Min., &c., Co. v. ^. Bd. Taxes, &c.
s
On certiorari.
Before Justice Swayze^ by consent.
For the prosecutor, Oilbert Collins.
For the respondents, Herbert Boggs, assistant attorney-
general.
The opinion of the court was delivered by
SwAYZE^ J. This ease presents the question that was ex-
pressly reserved by the Court of Errors and Appeals in
American Woolen Co. v. Edwards, Comptroller. Further re-
flection has confirmed me in the opinion expressed in that
case. Ante p. 293. The present prosecutor was dissolved
in March, 1917, and is therefore not liable to the franchise
tax if the year for which it is claimed begins with the first
Tuesday of May.
We have held that the tax is in the nature of a license fee,
payable in advance. New York and Nav Jersey Water Co. v.
Hendrichson, 88 N, J. L. 595, 600. In that case we pointed
out the diflference between such a tax declared by the legisla-
ture to be annual, and the ordinary property tax imposed upon
a fixed day. In the American Woolen Company case I said
that calling the tax a license fee, as the statute does, suggested
payment in advance, since the government would naturally
make the payment of the fee a condition precedent. I might
have gone further and said that the legislature has in fact
made the tax payable in advance as near as possible. The
original act of 1884 was approved April 18th. The year for
which the annual tax was thereby for the first time imposed
could not begin until the tax was imposed by the approval of
the act in April, and the tax was made payable in June, i. e.,
as soon as the necessary returns could be had and the calcula-
tions made. The Court of Errors and Appeals did not ques-
tion this view in the case cited. It results that the year for
w^hich the tax is to be paid cannot be the calendar year begin-
ning January 1st. The act imposing this tax on corporations
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366 NEW JERSEY SUPBEME COURT.
Old Dom. Cop. Min., &c., Co. v. S. Bd, Taxes, Ac. 90 A". J. L.
like the prosecutor was passed February 19th, 1^01. Pamph,
L,, p. 31. If the "annual license fee or franchise tax/' as the
act calls it, were imposed for a calendar year, that year could
not have begun until January 1st, 1902, unless the tax were
expressly made retroactive. Now, the act of 1901 was a sup-
plement to the act of 1884. Pamph, L., p, 282; Camp. Siat,
p. 5286. Taxes imder that act are payable in June and
subject to a penalty after July 1st. If we held that the license
fee or franchise tax is for a calendar year we should either
Ijiave the absurdity. that the first annual tax under the act be-
came payable six months before the year for which it was
levied had begun or we should have the injustice of constru-
ing a tax to be retroactive when the legislature had not made
it so. I do not question the power of the legislature to make
a tax retroactive, but, on well-settled principles, we will not
adopt such a construction unless the language plainly re-
quires it. The language of the statute is so far from requiring
such a construction that the result woiild be absurd. We
should be forced to say that a corporation which ceased to
exist on February 18th, 1901, would be liable to a tax which
was not imposed by the legislature until February 19th,
1901.
It seems too obvious to require further illustration that the
intent of the legislature was that the year should begin with
or after the passage of the act and before the tax became pay-
able thereunder. As to the class of corporations to which the
prosecutor belongs the year must begin between February 19th
and July Ist. In the absence of any furtlier indication it
would be natural to assume that the year began at the earliest
possible date, which would be the date the act imposing the
tax took effect. This was the underlying reason for our
ruling in Brewing Improvement Co, v. Board of Assessors, 65
N. J. L. 466, with reference to the Franchise Tax act of
1884. There are, however, other considerations which make
that ruling inapplicable now. We held, in Hardin y. Morgan,
70 Id. 484 ; affirmed, 71 Id, 342, that the legislature had sub-
stituted the first Tuesday of May for the 18th day of April,
the date the act of 1884 took effect. Now, we said, in the
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JUNE TEEM, 1917, 367
90 N. J. L, Old Dom. Cop. Min., &c., Co. v. S. Bd. Taxes, &c.
earlier case, that that date marked the "beginning of the
yearly period for which the fee or tax is charged.*^ The neces-
sary implication from the change of date by the act of 1901,
and what was said in Hardin v. Morgan, is that under that
act the first Tuesday in May marks the beginning of the yearly
period for which the fee or tax is charged ; Hardin v. Morgan
was affirmed on the opinion of this court.
Possibly, it was open to the court, prior to that decision, to
hold that the yearly period began April 18th or February
19th, depending on the class of corporation. It is not open to
us now. The decision has been acted on for years, and the
stability of jurisprudence requires that it should be adhered
to. Not only is this required for the stability of our juris-
prudence, but, since the decision in Hardin v. Morgan, the
statute of 1901 has been amended. Pamph. L, 1906, p. 31.
If the legislature had meant something different, the statute
would have contained language apt for the purpose. It does
not contain such language. The necessary inference is that
the legislature was satisfied with the law as construed by the
courts. There is another consideration of the practical ad-
ministration of the act which fortifies this view. The act of
1906 re-enacts the provisions of the act of 1901, exempting
manufacturing and mining corporations fifty per centum of
whose capital stock is invested in mining or manufacturing
carried on within this state. The courts had just held in. the
case cited that this exemption could not be allowed unless the
annual return was made on or before the first Tuesday of
May. By the statute the exemption must be allowed if the
other conditions exist and return is made On or before that
date. The necessary result is thdt in the case of mining and
manufacturing companies the amount of the license fee or
franchise tax could not be ascertained until that time. It can-
not be that the legislature meant that a fee declared by statute
to be annual can cover a time antecedent to the date when it
first becomes possible to ascertain the amount thereof. The
same rule must be applicable to corporations other than min-
ing atid manufacturing taxed by the same language of the
same act of which the prosecutor is one.
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368 XEW JERSEY SUPREME COURT.
Old Dom. Cop. Min., &c., Co. v. S. Bd, Taxes, &c. 90 y, J. L,
To hold that the year begins with the first Tuesday of May
ensures uniformity; any other date ensures diversity; for
if the year is held to begin January 1st as to corporations
whose tax is determined by the situation on January 1st, it
must be held by parity of reasoning to begin February 1st
with corporations whose tax is determined by the situation on
February 1st. If we take the view that the year begins with
the passage of the act imposing the tax, it begins on April
18th as to corporations taxed under the original act of 1884
and on February 19th as to corporations taxed under the
supplement of 1901. This diversity would be due, not to any
legislative declaration, but to judicial construction, or, per-
haps, rather, judicial inference, an inference not permissible.
We must remember that the supplement of 1901, as amended
in 1906, is part of the act of- 1884, and the act and its supple-
ments must be treated as a consistent whole.
There is also an historical reason and a reason of conveni-
ence for holding that the tax year begins in May. For many
years, and certainly since the constitution of 1844, our l^s-
lature has met in January. It was natural that taxes im-
posed by the legislature should become effective after there
had been time for legislation. Ordinarily, May would come
after adjournment and would prove the earliest convenient
date. If, for example, the legislature should think it wise
to increase the franchise taxes as it has increased some fran-
chise taxes this winter, it would certainly seem unfair to make
the increase retroactive, when the business of the corporation
had been adjusted to the existing situation. No charge of un-
fairness for that reason, at least, could be brought against a
tax to begin after the adoption of the legislation. T^o doubt
the legislature might impose a franchise tax as they impose
the general property tax, as an imposition taking eflfect on a
particular day ; no doubt they might also measure the amount
of the tax by the situation as it existed on any day selected
even though that day was before the act took eflfect. That is
not the question here. The legislature has declared that this
tax shall be annual. This can only mean that it shall be im-
posed once a year. In order that only one tax a year may be
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JUNE TERM, 1917. 369
, J
9Q ^\ J. L, Old Dom. Cop. Min., &o., Co. v. S. Bd. Tnxes, &c,
imposed, it must be decided when the year begins and ends.
To decide that question we must, of course, go back to the
origin of the legislation, since each succeeding year must cover
the same months as the first year. I need not repeat the argu-
ments already stated against holding the tax year under this
statute to be a calendar year nor the arguments stated in my
opinion in the American Woolen Company case.
The United States Supreme Court, in construing the Bank-
ruptcy act, held that the franchise tax was "legally due and '
owing" within the meaning of that act in the case of a cor-
poration that was adjudicated a bankrupt on April 23d. New
Jersey v. Anderson, 203 CT. S, 483, 494. With the constnic-
tion of the Bankruptcy act we have nothing to do. The court
did not consider the history and language of our statute im-
posing the tax nor our decisions thereunder, although Hardin
V. Morgan was cited by counsel. The case is not therefore a
decision as to the meaning of our act. Tf it were, however, it
would not control us. We recognize the eminence of that tri-
bunal and entertain the most profound respect for its de-
cisions, and even for its informal expressions of opinion, but
it is vital to the very existence of the several* states that their
own tribunals control the construction of their own statutes,
and this is pre-eminently true of tax acts which affect the
state's revenue. The Supreme Court of the United States,
in that ver}' case, maintained its well-established right to con-
strue federal statutes, notwithstanding a previous construction
by a state tribunal. It is for us to maintain with equal vigor
our right to construe our own state statutes. This right is
so thoroughly settled by decisions of the United States Su-
preme Court that that tribunal will follow the decision of the'
state court on the construction of a state statute, notwithstand-
ing its own prior decision to the contrary. Fairfield v. County
of Gallatin, 100 Id. 47 ; recently cited as authorit}' in North-
em Pacific Railway Co. v. Meese, 239 Id. 614 (at p. 619).
The tax in this case must be set aside.
Vol. xc. 24
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370 NEW JERSEY SUPREME COURT.
Schwa rzrock v. Bd. BMucation of Bayonne. 90 N. J, L.
GUSTAV G. SCHWARZROCK, RELATOR, v. BOARD OF EDU-
CATION OF BAYONNE, RESPONDENT.
Argued May 7, 1917— Decided July 6, 1917.
1. Under section 10 of the School law (Comp, Stat., p. 4727) the
commissioner of ed^ication has jurisdiction in controversies in-
volving the removal, by a local board, of a person from « position
existing under the School law.
2. The hearing by the commissioner of education in any controversy
or dispute of which he has jurisdiction by virtue of the pro-
visions of section 10 of the School law, is a new hearing, and he
is not limited to a mere review of evidence taken before the
local board.
3. The action of the state board of education in setting aside the
removal of a person from a position existing under the School law,
has the effect of a judgment, and a mandamus will issue thereon
in a proper case, commanding the pajinent of the salar>' due
such person. Such a case is presented when it appears that he
has always been ready and willing to perform his duties and
that there are funds in hand applica'ble to the payment of the
amount due him.
On certiorari of decision of state board of education, and
on demurrer to alternative mandamus.
Before Justice Swayze, by consent.
For Scliwarzrock, Mark Toumsend, Jr,
For tlie board of education, Danid J. Murray,
The opinion of the court was delivered by
SwAYZE, J. The certioraH at tlie suit of the board of edu-
cation brings up the decision of the state board affirming the
commissioner of education and reversing the action of the
local hoard removing Schwarzrock from the position of super-
visor of buildings and repairs.
1. I agree with the state board that the controversy was one
of which the commissioner of education and the state board
had jurisdiction under section 10 of the School law. That
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JUNE TERM, 1917. 371
DO N, J. L, Schwarzrock v. Bd. Education of Bayonne.
controversy was whether the local board had rightfully re-
moved Schwarzrock from a position existing under the School
law. The proceeding could only result in either affirming or
reversing the removal. It could not result in any binding
judgment as to his guilt or innocence of the charge of at-
tempting bribery ; the finding that he was guilty or innocent
could only be a finding for the purpose of action by the board,
not for the purposes of the criminal law. Whether in such
a case the board should act before action is taken by the
criminal courts is a matter resting in the discretion of the
board.
2. It necessarily results from the provision that the facts
involved in any controversy or dispute shall be made known
to the commissioner by written statements verified by oath
and accompanied by certified copies of documents, that the
liearing before him should be a new hearing, and that he is
not limited to a mere review of evidence taken before the local
board. An examination of the evidence in this case makes it
clear that the commissioner and the state board reached a cor-
rect result. It would be intolerable to permit a public official
of good repute to be dismissed from office on the testimony
of one who had been convicted of perjury, in the face of the
officer's denial.
3. The action of the state board setting aside the removal
of Schwarzrock has the effect of a judgment and a mandamus
will issue in a proper case. Thompson v. Board of Education,
57 N. J. L, 628. The alternative writ in the present case
avers that Schwarzrock was appointed supervisor for three
years at a salary of $1,800 ; that after his wrongful dismissal
he was always ready and willing to perform his duties until
July 1st, 1916 (the expiration of his term), and that the local
board refused to allow him to do so ; that they refused to pay
him the sum due as salary, $3,000; that there are funds in
the hands of the commissioner of finance and the custodian of
the school funds applicable to the payment of said sum of
$3,000. These averments are admitted by the demurrer.
Perhaps the defendant meant to challenge the averments by
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372 NEW JERSEY SUPREME COURT.
State V. r.ehigh Valley R. R. Co. 90 N. •/. L.
the reasons, but it is a mistake to say, as in reasons three and
four, that the writ does not show that the amount claimed is
in possession of respondents, and that it does not show that
the respondents are in possession of moneys applicable to the
payment required by the writ. The writ does show these facts.
If the defendants meant to traverse the averments they should
not have demurred. I cannot distinguish the present case
from Thompson v. Board of Edtication, supra. The writ
should go. While it prays relief in the alternative, that was
proper in view of the relator's uncertainty whether there were
funds in hand to meet his claim. In view of the admission of
that fact, I see no reason why the peremptory m<mdamus
should not command the drawing of a salary warrant upon
the custodian and the payment by the custodian, or other
proper officer. The relator is entitled to costs.
STATE, RESPONDENT, v. LEHIGH VALLEY RAILROAD COM-
PANY ET AL., PROSECUTORS.
Argued June 6, 1917— Decided August 14, 1917.
1. A corporation aggregate may be held criminally for manslaughter.
2. An indictment in the statutory form charging a corporation aggre-
gate with manslaughter will not be quashed for failure to specify
whether voluntary or involuntary manslaughter is meant.
On motion to quash indictment.
' Before Justices Swayze^ Bergen and Black.
For the motion, Gilbert Collins and Lindley M, Garrison.
For tiie state, John F. Drewen, Jr, (Robert S. Hudspeth
on the brief) .
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JUNE TERM, 1917. 373
VO A\ J. L. State v. Lehigh Valley R. R. Co.
The opinion of the court ^as delivered by
SwAYZE, J. LJt has long been settled in this state that a
corporation aggregate may in a proper ease be held criminally
for acts of malfeasance as well as for non-tea&anee?s. State v.
Morris and Essex Railroad Co,, 23 N, J, L, 360; State v.
Passaic County Agricultural Society, 54 Id, 260. So well
settled is the general rule that in the later cases it has not
been even questioned. State v. Erie Railroad Co,, 83 Id.
231; 84 Id, 661; State v. Lehigh Valley Railroad Co,,
89 Id, 48 ; ante p, 340. Notwithstanding these decisions it is
now argued that a corporation aggregate cannot be held
criminally for manslaughter.
We need not consider whether the modification of the com-
mon law by our decisions is to be justified by logical argu-
ment; it is confessedly a departure at least 'from the broad
language in which the earlier definitions were stated, and a
departure made necessary by changed conditions if the. crimi-
nal law was not to be set at naught in many eases by contriv-
ing that the criminal act should be in law the act of a cor-
poration. The modern rule, as well as the reasons for it. were
so well stated by Chief Justice Green, in the earliest cas'^ above
cited, that his opinion may fairly be said to be the classical
judicial deliverance on the subject. The Chief Justice recog-
nized that there were certain crime?, for example, perjury, of
which a corporation cannot in the nature of things be guilty;
that there are other crimes, for example, treason and murder,
for which the only punishment imposed by law cannot Ik? in-
flicted upon a corporation ; he added, however, without any
specific illustration that a corporation could not be liable for
any crime of which a corrupt intent or mains animus is an
essential ingredient. We need not consuler what crimes may
be included under the last exception, fit is enough to say that
the case is an authority which we are nbt at liberty to question,
and would not question if we might, for the proposition that
a corporation aggregate may be held criminally for criminal
acts of misfeasance or non-feasance unless there is Something
in the nature of the crime, the character of the punishment
prescribed therefor, or the essential ingredients of the crime.
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374 NEW JEESEY SUPREME COURT.
State V. Lehigh Valley H. R. Co. 90 N. J. L.
which makes it impossible for a corporation to be held. In-
volimtary manslaughter does not come within any of these
exceptions. It may be the result of negligence merely and
arise out of mere non-feasance. That a corporation may be
guilty of negligence is now elementary ; that it could be: held
criminally for non-feasance was settled by numerous prece-
dents cited by the Chief Justice (at pp. 364, 365). We
think of no reason why it should not be held for the criminal
consequences of its negligence or its non-feasance. There is
nothing in the punishment prescribed which makes it impos-
sible to punish a corporation. Section 109 of the Crimes act
prescribes in the alternative a fine of $1,000 or imprisonment
not exceeding ten years, or both. Clearly, a corporation may
be punished by way of fine. The punishment is prescribed
only for persons, but by section 9 of the act relative to statutes
the word "person" is declared to include bodies corporate
(artificial persons) as well as individuals (natural persons),
and the same provision in a somewhat different form appears
in section 220 of the Crimes act.
It is argued that the essential ingredients of manslaughter
make it impossible to hold a corporation therefor. The crime
was a felony at common law and some of the old authorities
define homicide as the killing of one human being by another
human being; that manslaughter was a felony at common
law is not to the point, since "the distinction between felonies
and misdemeanors is not observed in cur criminal code."
Jachson v. State, 49 iV. J. L. 252 ; Brown v. State, 62 Id,
666 (at p, 695). Although it may be necessary in applying
some of the old legal rules to our jurisprudence, to regard cer-
tain crimes called by our statute misdemeanors, as the equiva-
lent of felonies for the application of common law rules, that
necessity is one of terminology only; otherwise, there is now
in this state no essential distinction between the two grades
of offence known to the common law. We are unable to at-
tribute to the ancient classification of manslaughter as a
felony, the force in. our modem jurisprudence which counsel
claim for it. \
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JUNE TEEM, 1917. 375
90 N. J. L, State v. I^ehigh Valley R. R. Co.
As to the definition of homicide cited by counsel, it is
enough to say that authorities of equal eminence define it dif-
ferently. Blackstone, for example, in the passage cited in the
brief (4 BL Com, 188), defines felonious homicide as ^^the
killing of a human creature, of any age or sex, without justi-
ficatiorj or excuse." He then adds by way of illustration:
'This may be done either by killing one's self, or another
man." Blackstone does not say that these are the only cases
of felonious homicide ; as far as his text goes, the case of in-
voluntary manslaughter by a corporation aggregate is not
excluded, and is within the words of his definition. But if
we assume, as is probably the fact, that Blackstone did not
have in mind the case of involuntary manslaughter by a cor-
* poration aggregate as a possible case of felonious homicide,
nevertheless, his illustration of suicide as a felonious homi-
• eide shows that the definition relied upon (killing of one
human being by another human being) is inaccurate. We
need not italicize the word "another" to show the conflict.
[^G do not forget that voluntary manslaughter involves in-
gredients quite different from those involved in involuntary
manslaughter. The indictment is in statutory form. Under
the statute there is no difference between an indictment for
voluntary, and an indictment for involuntary, manslaughter,
and a defendant may be convicted of either. State v. Thomas.
65 N, J, L. 598. If his constitutional right to be informed of
the nature and cause of the accusation were not sufficiently
protected by the form of indictment prescribed by the statute,
the obligation is not available to the present defendant, who
has been furnished with a bill of particulars showing that
the charge relied upon is that of involuntary 'manslaughter.!
We have examined the authorities in other jurisdictions to
which' we were referred. The decision of People v. Rochester
Railway and Light Co,, 195 N, F. 102; 88 N, E, Rep. 22;
reported with note, 16 Ann. Cos. 837, was based entirely upon
the construction of the exact language of the penal code,
which defined homicide as "the killing of one human being
by the act, procurement or omission of another," and the court
necessarily, we think, held that "another" meant "another
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376 NEW JEKSEY SUPREME COURT.
, 1
State V. Lehigh Valley R. R. Co. 90 N, J, L.
human bein^." But Judge Hiscock, now the eminent Chief
Judge, who spoke for the court, was at some pains to show
that there was nothing essentially incongruous m holding a
corporation aggregate criminally liable for manslaughter.
The case is a good illustration of the way in which the proper
growth and development of the law can be prevented by the
hard and fast language of a statute, and of the advantage of
our own system by which the way is open for a court to do
justice by the proper application of legal principles.
The case of Commonu^eaWi v. Illinois Central Railroad
Co., 152 Ky. 320; 153 S. W, Rep. 459, rests on the inaccu-
rate definition of homicide to which we have already referred.
The case of Regina v. Oreat Western Laundry Co., 13 Man.
66, rests chiefly on the absence of precedent. We cannot
avoid the feeling that the learned judge attributed to(» much
importance to this lack. We think the true question is
whether the indictment is in harmony with established legal
principles, as we think it is ; we are not troubled by tHfe -fact
that the case is one of first impression in New Jersey.
It is urged that the indictment should at least be quashed
as to all tlie defendants except the Lehigh Valley Railroad
Company, since the bill of particulars is directed at that de-
fendant only. An indictment otherwise valid cannot be
vitiated by the bill of particulars, although some motion
depending on the latter may properly be raised at the trial.
Moreover, a motion to quash is addressed to our discretion.
State v. Pusaniello, 88 X. J. L. 262. That discretion ought
not to be exercised in a case like this where injustice may be
done tbereby to tlie state and where the refusal to exercise it
deprives the defendants of no substantial rights, since the
question can be raised at the trial.
The motion to quash is denied. Let the record Ije remitted
to the Hudson Quarter Sessions for trial.
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JUNE TERM, 1917. 377
90 N. J. L, State v. Pullis.
STATE, RESPONDENT, v. READ PULLIS, PROSECUTOR.
Argued February 20, 1917— Decided June 6, 1917. •
It is no valid objection to an indictment that the foreman of the
grand jury which found it was at the time a caJididate for the
office of freeholder, and, in his canvass, had suggested that the
members of the existing board, of whom the defendant was one,
were not to be trusted with th/s management of the county govern-
ment, when neither malice nor ill-will is averred.
On motion to quash indictment.
Before Justices Swayze, Minturn and Kaliscii.
For the motion, Egbert Bosecrcuas and Harlan Besson,
Opposed, William A, Stryker.
The opinion of the court was delivered by
Swayze, J. The most important objection to the indict-
ment is that the foreman of the grand jury which found it
was at the time a candidate for the office of freeholder, and
in his canvass had suggested that the members of the existing
board, of whom the defendant was one, were not to be trusted
with the management of the county government. If we draw
this inference from the fact that he stated that he stood for
efficiency and economy in county government, and that the
remedy was in the hands of the voters, we tliink it fails to
justify us in quashing the indictment. The case differs from
State v. McCarthy, 76 N, J. L, 295, where the proof showed
partiality on the part of the sheriff in selecting the grand
jury, af» was possible under the law as it then stood. The
present charge is in the nature of a challenge to the favor of
a single grand juror, and goes no further. Xo malice or ill-
will is averred, and the present defendant was not even the
rival of the foreman of the grand jury for the office he e^ought.
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378 NEW-JERSEY SUPREME COURT.
Trenton & Mercer County Trac. Corp. v. Trenton, 90 N, J. L.
The case is within the rule of State v. Turner, 72 Id, 404;
State V. Rickey, 10 Id, 83.
The objection to the form of the indictment is unsubstan-
tial. It follows that approved by this court in Staie v. Cod-
ington, 80 N, J. L, 496; affirmed, 82 Id. 728. We do not
understand the suggestion of the brief that the question was
not squarely discussed in the opinion in that case. We think it
enough to aver that the defendant was an oflBcer of the county,
having been duly elected chosen freeholder by the qualified
electors of the township of Blairstown. and having taken
upon himself the said office without specifically averring that
he took the oath of office.
The motion is denied. Let the record be remitted for trial
to the Quarter Sessions.
TRENTON AND MERCER COUNTY TRACTION CORPORA-
TION, PROSECUTOR, V. INHABITANTS OF THE CITY OF
TRENTON AND BOARD OF PUBLIC UTILITY COMMIS-
SIONERS, RESPONDENTS.
Argued November 9, 1916 — Decided August 1, 1917.
1. Where a traction company seeks to withdraw the sale of six
tickets for a quarter and charge a straight five-cent fare, such
withdrawal is an increase in rate suflScient to give the public
utility commission jurisdiction to pass upon the same under sec-
tion 17, paragraph "h" of the Public Utility act. Pamph. L,
1911, p. 380.
2. A resolution, adopted by the board of directors of a traction com-
pany, directing its oflScers to execute, with a municipality, imme-
diately after the passage, by the municipality, of a *new ordinance
which would be less harmful to the company's dnterest, an agree-
ment, already prepared (a copy of which was set forth in the
resolution), providing for a fixed rate of fare to be charged on its
' lines, and in consequence of which resolution the ordinance in
question was passed, constitutes a binding and valid agreement,
notwithstanding that the agreement in question was not signed by
the officers of the traction company as directed by the resolu-
tion.
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I
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JUNE TERM, 1917. 37?
90 y. J* L. Trenton & Mercer County Trac. Corp. v. Trenton.
3. The benefit to the traction company of what was omitted from the
ordinance, in the way of drastic provisions inimical to its inter-
ests, was a suflScient consideration for the agreement.
4. Whether the mere act of passing the ordinance in pursuance of
the agreement would be a sufficient consideration, in a legal sense,
qucere.
On certiorari.
Before Justices Swayze^ Minturn and Kalisch.
For the prosecutor, Frank S. Katzeniach, Jr. {Edward M.
Hunt on the brief) .
For the city of Trenton, George L. Record (Charles E.
Bird on the brief) .
For the board of public utility commissioners, Frank H.
Sommer.
The opinion of the court was delivered by
SwAYZE, J. Although the voluminous record in this case
has necessarily required a long time to examine, the decision
may well be rested on a single point and that within narrow
compass. The prosecutor seeks to set aside an order forbid-
ding it to put into eJffect a proposed withdrawal of the sale of
six tickets for twenty- five cents on street railways operated
by it. These railways are three in number — the Trenton
Street Railway Company, the Mercer County Traction Com-
pany and the Trenton, Hamilton and Ewing Traction Com-
pany. They are operated under leases and agreements of
October 15th, 1910. The two latter had been leased prior to
1909 to the fh'st named for nine hundred and ninety-nine
years.
We think it clear that the public utility commission had
jurisdiction under section 17, paragraph "h" of the act.
Pamph. L. 1911, p. 380. The withdrawal of the sale of six
tickets for a quarter was an increase of an existing rate under
which eighty-two 'per cent, of the passengers carried paid a
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380 NEW JERSEY SUPREME COURT.
Trenton & Mercer County Trac. Corp. v. Trenton. 90 N, J. L,
fare of only four and one-sixth cents ; by the proposed with-
drawal they wonld be forced to pay a fare of five cents.
We find it unnecessary to pass upon the question whether
the original ordinances and their acceptance amounted to a
contract by which the companies were authorized to charge
as much as five cents, or whether they amounted only to a
limitation by which the comj)anie8 were forbidden to charge
more than five cents. It is likewise unnecessary, in our view,
to consider whetlier a fare of four and one-sixth cents is rea-
sonable, in view of present conditions and the situation of the
company. We find that in 1909 a new contract was made
between the city and the company which requires the com-
pany to sell six tickets for twenty-five cents upon all cars
operated in the city of Trenton. Thefacts are as follows:
For many years tickets had been sold at that rate. In 1909,
the street railway company proposed to stop the sale. Natur-
ally, great public interest was aroused, threats were made of
attacks upon the franchises of the company and the city au-
thorities were preparing for such an attack and for amend-
ments of the ordinances. An agi'eement was reached by
negotiation, and on October 4th, 1909, the Trenton Street
Railway Company adopted a resolution waiving its right to
notice of alterations in the ordinances, and directing its offi-
cers to execute an agreement already prepared (a copy of
which was set forth), immediately after the passage of a new
ordinance, a draft of which had been submitted by the city
counsel to the railway company. This ordinance provided
for the sale of tickets at the old rate by tlie company upon all
cars operated in the city of Trenton. The ordinance was
passed by the common council on October 19th and approved
by the mayor on October 22d, eighteen days after the resolu-
tion of the railway company. Had the agreement been signed
by the officers of the company, as directed by the resolution
of October 4th, on the faith of which the city passed the ordi-
nance, no question could have arisen. Instead of that, the
company, after the passage of the ordipance, rescinded the
resolution because, as the rescinding resolution states, it was
falsely recited therein that the city had reserved the right to
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JUNE TERM, 1917. 381
90 A\ J. L, Trenton & Mercer County Trac. Corp. v. Trenton.
alter the ordinances whenever in the judgment of the com-
mon council it became necessary for the public good. It is a
little difficult to understand upon what theory it is supposed
the false recital vitiates the action of the company. It is not
charged that the city did anything to mi&lead the company in
this respect; it could not have done so since the ordinances
were necessarily as well known to the company as to the city ;
and the proposed written form of contract, submitted by the
city counsel, recited what wa3 the exact truth that the right
of alteration or amendment was reserved "by the several ordi-
nances aforesaid, or sohie of them." The addition of the
qualifying words was enough to call the attention of the com-r
pany to the existence of a question as to the extent of the
city's right. With this draft before them, the directors chose
to put a broader statement in the recitals of their own reso-
lution. Manifestly, they ought not to be permitted for their
own mistake to withdraw from the agreement after the city
had acted thereon.
It is argued that the parties did not int-end that there
should be a complete contract until the written agreement was
executed. The case, it is said, is within the i-ule of Water
Commissioners of Jersey City v. Brown, 32 N, J, L, 504, de-
cided by the Court of Errors and Appeals in 1866, and ap-
plied by the Supreme Court in Donnelly v. Ctirrie Hardware
Co., 66 Id, 388. These cases are not applicable. In the first
the water commissioners directed that their «igineer and at-
torney should prepare ia contract and submit the same for
approval by the board before being executed. The coutt «aid
that several particulars, as to the time of finishing the work,
as to the manner of doing it, and as to the guarantee of its
permanence, remained to be settled. The second cas»e was
decided upon the ground that there had been no agreement
as to the time allowed for beginning and completing the work
and the mode of payment, matters which are generally pro-
vided for in such arrangements. As I^ord Cran worth said, in
Ridgetmy v. Wharton, 6 H. L. Cos, 238 (at p. 268), the fact
"that the parties do intend a subsequent agreement to be made,
is strong evidence to show that they did not intend the pre-
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382 NEW JERSEY SUPREME COURT.
Trenton & Mercer County Trac. Corp. v. Trenton. 90 N, J. L.
vious negotiations to amount to an agreement;" but at the'
same time he protested against its being supposed because per-
sons wish to have a formal agreement drawn up that therefore
they cannot be bound by a previous agreement if it is clear
that such an agreement had been made; and he expressed his
approval of Sir William Grant's decision in the leading case
of Fowle V. Freeman, 9 Ves, 351. In Whojrion v. Stouten-
hwrgh, 35 iV. J. Eq, 266, it was held that a final agreement
had been reached, although the parties intended that a lease
embodying the agreement should be executed. The applica-
bility of that case to the present is not weakened by the fact
that a written memorandum would have been there necessary
to satisfy the statute of frauds, if the vendee had not taken
possession. The taking possession did not supply the terms
of the lease, and before decreeing that the lease should be
executed, it was necessary for the court to fimd that a final
agreement had been previously reached, and that the execu-
tion of the lease was necessary only by way of part perform-
ance of the agreement, and not as a condition precedent- to
the existence of a final agreement. The fa6ts of the present
case bring it within the rule of Wlwrton v. Stout enburgh.
The driaft agreement had been submitted by the city to the
company; the company had assented to its terms; all that
remained was for the executive oflRcers to execute the written
instrument in which the terms of the agreement were set
forth ; but the officers had no power to vary the terms, and it
was not contemplated that the directors should again pass on
the matter. The case is^ as if, in Water Commissioners of
Jersey City v. Brown, the agreement had been already pre-
pared and adopted by the water commissioners.
There was sufficient legal consideration for the agreement
by the company. It is true the ordinance did not affirma-
tively concede any benefit to the company ; on its face it was
rather a detriment; but that is too narrow a view to take.
The situation was that the company was liable to attack and
the ordinances might be altered or amended in such a way as
to be very harmful or at least productive of long and expen-
sive litigation. What the company secured was the adoption
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JUNE TERM, 1917. 383
90 N. J. L. Whitaker v. Dumont.
of an ordinance which contained no such drastic changes ; the
benefit to the .company waa in what the ordinance omitted,
not in what it contained. In saying this, we are not to be
understood as suggesting that the mere act of passing the or-
dinance in pursuance of the agreement would not be a suffi-
cient consideration in a le|al sense.
We think there was a valid contract requiring the company
to sell six tickets for a quarter, and hence the public utility
commissioners might well conclude that such a rate was just
and reasonable under the circumstances of the case.
It is said, however, that the Mercer County Traction Com-
pany and the Trenton and Hamilton and'Ewing Traction
Company could not be affected by the ordinance because no
official action was taken by either with reference to its terms.
' This argument overlooks the fact that both those companies
were at the time under lease to the Trenton Street Bailway
Company for a term of which more than nine hundred and
ninety years were still to come. The probability of the two
lessor companies being affected prejudicially by the ordinance
is negligible.
The order is affirmed, with costs.
BENJAMIN J. WHITAKER ET AL., PROSECUTORS, v. MAYOR
AND COUNCIL OF THE BOROUGH OF DUMONT,
RESPONDENT.
Argued February 20, 1917— Decided August 11, 1917.
An assessment by commissioners of a borough, which included assess-
ments for laj^ing out and opening a new street and' the improving
of such street, as well as the cost of sidewalk construction, will
be set aslde^ since separate assessments of damages or benefits
for each improvement should have been made under section 33 of
the Borough act. Comp. 8iat., p. 244.
On certiorari to set aside assessments for special benefits.
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384 NEW JERSEY SUPREME COURT.
Whitaker v. Dumont. 90 y. J. L.
Before Justices Swayze, Minturn and Kalisch.
For the prosecutors, William M, Seuferi,
For the respondent, Frank 0. Turner,
The opinion of the court was delivered by
Swathe, J. Although the writ removes only the assess-
ment, the prosecutor improperly assigns reasons for setting
aside the ordinances under which the improvements were
made. The justice who allowed the writ acted advisedly in
limiting its scope. The prosecutor had allowed the time for
questioning the ordinances to pass by and he could only ques-
tion the assessment. This consideration disposes of most of
the reasons assigned.
In order to determine the question of the validity of the
assessment, we have had to pick out from the voluminous, and
somewhat confused, record the essential facts. Three ordi-
nances were approved April 11th, 1911. One established the
grade of part of Madison avenue. One provided that the
avenue be widened to fifty feet where it was then less ; that
it be graded and improved according to the grade to be estab-
lished therefor; that the improvements be done according to
such plans and specifications as the mayor and council might
adopt therefor, and that the cost be assessed upon the prop-
erty benefited thereby. The third provided for the construc-
tion of cement sidewalks. Subsequently, the borough au-
thorities called for bids ^'covering the grading work and con-
struction of cement sidewalks." Separate bids were received
and separate contracts were awarded (1) for the sidewalks;
(2) for the grading and macadamizing. Subsequently, some
additional grading, macadamizing and improving was done.
On March 15th, 1915, the cost and expenses were ascertained
to be $11,368.49, of which $7,869.75 was for roadway con- .
struction, and $3,327.84 was for "sidewalk grading.^' Of the
total, all but $670.24 was assessed on property owners as
special benefits. The return of the comtrjissioners shows that
their assessment was for laying out, o[)ening and improve-
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JUNE TERM, 1917. 385
90 N. J, L. Whitaker v. Dumpnt.
ment of Madison avenue. Obvionsly, this is not an assess-
ment of the cost of grading and paving and laying sidewalks.
Section 33 of the Borough act discriminates between laying
out and opening, which are provided for in paragraph 1, and
grading and paving, which are provided for in paragraph 2.
Paragraph 2 authorizes a single ordinance for the making of
more than one of the improvements therein specified, all of
which are cognate in character and relate to the improvement
of existing streets, but does not authorize the inclusion in the
same ordinance of provisions as to laying out and opening,
which have to do with new streets. Moreover, paragraph 2
requires a separate assessment of damages and benefits for
each improvement, and T^hatever doubt there may be as to the
extent to which this goes {Cook v. Man^isquan, 80 N. J. L.
206), there can be no doubt that a distinction must be made
between benefits due to laying out and opening under para-
graph 1 and improvements under paragraph 2. The observ-
ance of the rule is especially important in a case like the
present, where there was no ordinance to lay out and open a
street, and apparently no laying out and opening in point of
fact. We cannot tell how much of the assessments the com-
missioners attributed to laying out and opening and how
much to the improvement of the street. All we can tell from
the return is that some of the assessment was for laying out
and opening for which there was no authority. There is a
further diflBculty. The amount of the assessment is much in
excess of the cost of the street improvement and obviously in-
cludes some of the cost of the sidewalks. The return of the
commissioners says nothing about an assessment for the side-
walks. Under the statute, the cost of sidewalks is to be paid
by the owners of the lands in front of which the same is con-
structed, a very different method from that of an assessment
for benefits. The commissioners could not legally have com-
bined the two in a single assessment, and it is probably for
that reason that they returned no assessment for sidewalks;
but they could not by thus omitting to assess for sidewalks ac-
cording to the statute clothe themselves with authority to
assess for the street improvements more than they cost. The
A'oL. xc. 25
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386 NEW JERSEY^ SUPREME COURT.
Hoflf V. Public Service Railway Co. 90 N, J. L.
suggestion that the expense of the sidewalks was not included
in the $11,368.49, for which the assessment was made, is
futile. The determination of cost, on page 58, shows that
,there was included for "sidewalk grading" $3,327.84. This
determination we must assume to be correct, although the
amount seems large for grading alone. The resolution
printed on page 142, on which counsel relies, must be in-
correct. The item "side grading" has no meaning that we
can ascertain imless it refers to the sidewalks. Moreover,
there was a contract for the construction of sidewalks, and
as near as we can tell the road construction alone would not,
under the contract therefor, amount lo the total cost as
ascertained.
The assessment must be set aside, with costs. As to the
sidewalks there should be a now assessment Whether a new
assessment of the cost of the street improvement is permis-
sible is not clear. The answer to the question seems to de-
pend chiefly on whether the ordinances authorized the mac-
adamizing of the street. We will hear counsel as to the form
of the judgment to be entered.
HELEN IIOFF, RESPONDENT, v. PUBLIC SERVICE RAIL-
WAY COMPANY, APPELLANT.
Submitted March 22, 1917— Decided June 22, 1917.
1. A carrier owes to its passeDger the duty of protecting him from
the violence and insults of other passengers, so far as this can be
done by the exercise of a high degree of care, and it will be held
responsible for its servant^s negligence in this particular when, by
the exercise of proper care, the act of violence might have been
foreseen and prevented.
"2. The failure of the 8er\-ant of a carrier to prevent the commission
of an assault upon a passenger by another passenger, to be a negli-
gent failure or omission must be a failure or omisison to do some-
thing which could have "been done by the servant ; and, therefore,
there is involved the essential ingredient that the servant had
knowledge, or with proper care could have had know^ledge, that the
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JUNE TERM, 1917. 387
IfO N. J. L, Hoflf V. Public Service Railway Co.
tort was imminent, and that he had that knowledge, or had the
opportunity to acquire it, sufficiently long in advance of its in-
fliction to have prevented it with the force at his command.
3. In passing upon a motion for the direction of a verdict, the court
cannot weigh the evidence, but is bound to concede to be true all
evidence which supports the view of the party against whom the
motion is made, and to give to him the benefit of all legitimate
inferences which are to be drawn in his favor.
4. The fact that a passenger was intoxicated to the knowledge of the
carrier's conductor, the fact that he had repeatedly insulted a
woman passenger in the presence and bearing of the conductor,
and immediately after the last insulting remark arose from his
seat and struck her twice, all without any word of admonition
or protest by the conductor or attempt upon his part to prevent
the assault, although he was throughout within arms' reach of
the drunken man, are circumstances from which the jury could
properly infer that with proper care upon the part of the con-
ductor the act of violence might have been foreseen and prevented.
On appeal from the Hudson County Circuit Court.
Before Justices Tbenchard and Black.
For the appellant, Lefferts ^^ HoffmaUy Leonard J. Tynan
and George H, Blake.
For the respondent, Alexander Simpson.
The opinion of the court was delivered by
Trenciiard, J. This suit was brouglit by the plaintiff, a
passenger on a trolley ear of the defendant company, to re-
cover for injuries sustained by her by reason of the failure to
protect her as a passenger.
The plaintiff had a verdict of the jury and the defendant
appeals.
The defendant complains of the refusal of the trial judge
to direct a verdict in its favor, and the determination of the
propriety of that action will dispose of every question raised
and argued.
We are of the opinion that the refusal to direct a verdict
was right.
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388 NEW JERSEY SUPREME COURT.
Hoff V. Public Service Railway Co. 90 .V. J. L.
At the time when the motion was made it was open to the
jury to infer from the evidence, if they saw fit, the following
matters of fact:
The plaintiff, a young woman, boarded a closed "pay-as-
you-enter" car of the defendant company on March 20th,
1915, at First street, in Bayonne. It was late at night and
there were some men on the car who had been to a prize fight
and who had been drinking. As she walked into the car, one
of tlie men said, *TiOok who is here !" or ^T/Ook who is com-
ing!" The plaintiff was agitated and walked into the car
without paying her fare and afterwards got np and paid her
fare. As she passed the man the second time he again spoke
to her, saying, "Hello chicken!'' and addressed other insult-
ing remarks to her as she was paying her fare. When the car
reached Sixteenth street (where she wished to alight), 'as she
passed the drunken man, he said, "Hey, chicken, take us
along." The plaintiff resented this remark and turned and
said to him: "You insulted me since I got on this car, if
you insult me again I will smack your face." The man then
arose from his seat and struck her twice; once in the breast
and once in the face, severely injuring her. These insulting
remarks made by the drunken man to and concerning the
plaintiff were all in the presence of the conductor of the car
(who stood within two feet of the man) and were heard by
him, but he uttered not a word of admonition or protest, and
made no effort to protect the plaintiff from such insults, nor
from the assault, although he knew that the man was in-
toxicated.
Now, the rule is that a carrier owes to its passenger the
duty of protecting him or her from the violence and insults
of other passengers, so far as this can be douiB by the exercise
of a high degree of care, and it will be held responsible for
its servant's negligence in this particular, when, by the exer-
cise of proper care, the act of violence might have been fore-
seen and prevented. Exton v. Central Railroad Co., 62 N. J. ^
/.. 7 ; 63 Id, 356.
It is, unquestionably, the right of a carrier to control a
person who is behaving in an improper manner on its con-
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JUNE TERM, 1917. 389
90 X. J. L. Hoff V. Public Service Railway Co.
veyance, or to eject a person who refuse? to desist from ob-
jectionable and indecent conduct, or whose condition is such
as to render his presence on the conveyance ojffensive or dan-
gerous to the reasonable comfort or safety of other passengers.
And having this power of control oT ejection it is only rea-
sonable to hold the carrier liable in case its negligent failure
to exercise it results in injury to a passenger. The gist of the
action for such injuries is the negligence of the carrier or
its officers in charge of the conveyance.
The negligent omission of the sej-vant of a carrier to pre-
vent the commission of a tort upon a passenger by fellow-
passengers being, as we have stated, the basis of the carrier's
liability to a passenger injured by such tort, it follows, of
course, that the failure to prevent the commission of the tort,
to be a negligent failure or omission, must be a failure or
omission to do something which could have been done by the
servant; and, therefore, there is involved the essential ingre-
dient that the servant had knowledge, or with proper care
could have had knowledge, that the tort was imminent, and
that he had that knowledge, or had the opportunity to ac-
quire it, sufficiently long in advance of its infliction to have
prevented it with the force at his command.
The defendant argues that the evidence conclusively shows
(1) that the man who committed the assault upon the plaint-
iff was not drunk, and (2) that its conductor had no reason
to anticipate the assault, and hence that a verdict should have
been directed in its favor. ^
But this contention is not well founded in fact.
In passing upon the motion for a direction of a verdict for
the defendant, the court cannot weigh the evidence, but is
bound to concede to be true all evidence which supports the
view of the plaintiff, and to give her the benefit of all legiti-
mate inferepces which are to be drawn in her favor. So con-
sidered, it was open to the jury to find both that the passen-
ger who assaulted the plaintiff was drunk, and that the con-
ductor had reason to anticipate the assault sufficiently long in
advance to have prevented it. Of course, the mere fact that
a passenger may have drunk to excess will not, in every case.
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390 NEW JEBS|;Y SUPREME COURT.
State V. Hop. 90 N, J. L,
justify his expulsion from the ear. It is rather the degree of
intoxication, and its effect upon the man, and the fact that,
by reason of the intoxication, he is dangerous or annoying to
the other passengers, that gives the right or imposes the duty
of expulsion. In the present case, the mere fact that the
drunken man was not ejected is not a controlling circum-
stance. But the fact that the man was intoxicated to the
knowledge of the conductor, the fact that he had repeatedly
grossly insulted the plaintiff in the presence and hearing of
the conductor, and imm^iately after the last insulting re-
mark arose from his seat and struck the plaintiff twice, all
without any word of admonition or protest by the conductor,
or attempt upon his part to prevent the assault, although he
was throughout within arms' reach of the drunken man, are
circumstances from which the jury could properly infer that
with proper care upon the part of the conductor the act of
violence might have been foreseen and prevented.
The judgment below will be aflBrmed, with costs.
STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. SAM
HOP, PLAINTIFF IN ERROR.
Submitted March 20, 1917— Decided June 22, 1917.
1. In order that a defendant may have the benefit of section 136
of the Criminal Procedure act (Comp, Stat., p. 1863). the trial
jud^e must, in addition to the formal and ordinary return to a
writ of error, certify that the proceedings transmitted by him to
the court of review comprise the entire record of the proceedings
had upon trial. And where the defendant neglects to obtain such
a certificate, the review is limited to alleged errors arising on
the face of the record itself or upon bills of exceptions duly taken.
2. A lack of suflScient evidence to make out the case charged in the
indictment is not a ground for arresting judgment. In order to
raise such a question there should have been a request to direct
an acquittal or to charge in conformity with the contention.
On writ of error.
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JUNE TEBM, 1917. 391
90 N. J, L. State v. Hop.
Before Justices Trench a^ and Black. ^
For the plaintiff in error, Charles E. S, Simpson,
For the defendant in error, Robert S. Hvdspefth, prosecu-
tor of the pleas.
The opinion of the court was delivered by
Trenchard, J. The defendant below was convicted in the
Hudson Quarter Sessions Court on an indictment for sodomy.
The return to the writ of error is only the formal and ordi-
nary return. There is no certificate by the trial judge that
tlie proceedings transmitted by him to this court comprise the
entire record of the proceedings had upon the trial, such as is
required to obtain a review under section 136 of the Criminal
Procedure act. Comp. Stat., p. 1863. .Our review is there-
fore limited to alleged errors arising on the face of the record
itself or upon bills of exceptions duly taken. State v. ^Yehher,
77 N, J, L. 580.
There is no bill of exceptions, and the only assignment of
error is "because the court denied the motion made on behalf
of the defendant before judgment was announced for an arrest
of judgment."
We are of the opinion that such motion was properly de-
nied. The sole contention made in support of the motion is
that there was not sufficient evidence to support the convic-
tion. . But a lack of sufficient evidence is not a grouud /or
arrefiting judgment. In order to properly raise such a ques-
tion there should have Ix^en a request to direct an acquittal or
to charge in conformity with the contention. Poice v. Staie,
48 N. J. L. 34; State v. Kelly, 84 Id. 1. Xo such request
was made. However, in order to see that no injustice has
been done, we have looked into the question argued and find
no merit in it.
The judgment of the court below will be affirmed.
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392 NEW JEKSEY SUPKEME COURT.
Gordon v. Pannaci. " 90 N. J, L,
SAMUEL GORDON, APPELLANT, v. VERONICA PANNACI.
RESPONDENT.
Submitted March 22, 1917— Decided June 6, 1917.
Proceedings taken in District Courts under the supplement of 1915,
page 182, to the Executions act, by way of garnishing a debt due
the defendant in execution,' are reviewable properly by certiorari
and not by appeal.
On appeal of the First N*ational Bank of Sea Bright from
a rule of the District Court, first judicial district of Mon-
mouth county, making absolute a rule to show cause why said
bank sliould not be required to pay to the sergeant-at-arms of
said court the amount of a money balance to the credit of the
defendant, in part satisfaction of an execution issued under
plaintiff's judgment in this cause.
Before Justices Garrison^ Parker and Bergen.
For the appellant, If i7/mm L. Edwards,
For the respondent, James J. Gibb.
The opinion of the court was delivered by
Parker, J. This is not a case for an appeal. As appears
ab^ve, the judicial action attempted to be brought imder re-
view is an order of the court, or the judge, in what may be
described as a statutory garnishee proceeding, evidently under
the supplement of 1915, page 182, to the Executions act,
which makes rights and credits of a defendant in execution
subject to levy thereunder, and by section 9 authorizes the
court by procedure of the character of that apparently pur-
sued in this case, to order the debtor of the defendant to pay
the debt to the officer holding the execution.
Various questions are attempted to be raised: the suffi-
ciency of the execution; of the levy by the officer; the ex-
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JUNE TEEM, 1917. 393
90 N, J, L. Gordon v. Pannaci.
elusion of evidence on the hearing of the rule,*and so on. We
think they ought not to be passed upon in the present case.
Apart from the fact that neither the rule to show cause nor
the rule xnaking the same absolute is put before us in the
printed case, it is obvious, from what has been said, that the
proceeding itself is not according to the course of the com-
mon law. It partakes of the nature both of attachment, as
the term is understood in modem practice, and of proceed-
ings supplementary to execution. Both these, like a claim of
property levied on or attached, are of purely statutory origin,
and of a class of cases reviewable only by certiorari. Supple-
mentary proceedings are of a summary character. WestfaJl
v. Dunning, 50 N. J, L. 459 (at p, 461). Refusals to obey an
order to pay out of income, in satisfaction of a judgment,
have been held contemptuous, and such adjudications have
been reviewed under the Contempt act. Adler v! Turnbull &
Co,, 57 Id. 62 ; Eggert v. McHose, 80 Id, ioi. In one case
this court considered without comment an appeal from an
order for payment of income. White v. Koehler, 70 Id, 526.
I^ut the correct and substantially uniform practice has been
by certiorari, as in Spencer v. Morris, 67 Id, 500; Eershen^
stein v. IlaJin, 77 Id. 39, and Russell v. Mechanics Realty Co.,
88 Id. 532. This brings this class of cases in line with claims
of property where the rule is the same. Berry v. Chamber-
lain, 53 Id. 463; Relman v. Wilkinson, Gaddis & Co., 88
Id. 383, 386; City Bank of Bayonne v. O'Mara, Id, 499.
As was said in the last case (at p. 500) : "The point is ma-
terial, for if certiorari be the only proper method of review,
it follows that frivolous and non-meritorious attempts to re-
move the record, which appeal, as a matter of right, would
fa^'ilitate, will be cut off by the timely refusal of an allo,catur
in certiorari.'' And, in the same opinion, the bar was ap-
prised that the court would deal with appeals improperly
brought, of its own motion.
The appeal is dismissed, but without prejudice to an ap-
plication for a certiorari which would properly bring up the
proceedings for review, including the two orders not printed
in the present case.
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394 NEW JERSEY SUPREME COURT.
Belmont I^nd Association v. Garfield. 90 7^. J. L,
BRLMONT LAND ASSOCIATION OF THE BOROUGH OF GAR-
FIELD, PROSECUTOR, V. THE MAYOR AND COUNCIL
OF THE BOROUGH OF GARFIELD, RESPONDENT.
Submitted' July 5, 1917— Decided Septemfber 17, 1917.
1. Under the General Borough act an assessment for the cost of
sidewalks is to be made by resolution of the common council, on
the lands fronting on the street along which the sidewalks are
laid, and not by commissioners of assessment appointed to deter-
mine the damages and benefits arising from the improvement of
public streets.
2. Commissioners of assessment in considering the benefits to be
assessed against the landowner, for the grading and improvement
of a public street in a borough, are required to consider and re-
port the damages which a landowner may suffer because of the
improvement as well as benefits which may accrue therefrom.
3. Every ordinance for making street improvements must be pre-
ceded by the petition required under section 53 of the Borough
act. Comp. Stat, p. 260.
On rule to show cause why a writ of certiorari should not
be allowed.
Before Justices Swayze, Bkrgen and Black.
For the prosecutor, Addison Ely,
For the respondent, Joseph Lefferts.
The opinion of the court was delivered by
Bergen, J. The prosecutor holds a rule to show cause why
a writ of certiorari should not be allowed to review two ordi-
nances adopted by the respondent and all proceedings there-
under, including the report of the assessment against the
prosecutor for benefits^ and the order of the respondent con-
firming the same, relating to the improvement of Dewey
street, in the borough of Garfield, between Palisade avenue
and Chestnut street. The improvements were made under
separate ordinances, one providing for the grading of the
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JUNE TERM, 1917. 395
90 y. J. L. BelipoDt Land Association v. Garfield.
street and the construction of a cement gutter and curb on
each side of the street, and the other for the construction of a
cement sidewalk on both sides of Dewey street between the
same points. The entire work was let under one contract,
and benefits assessed in a single report. The proceedings are
so replete with errors from start to finidi that the respondent
does not undertake to justify them prior to the assessment re-
port, but relies upon section 92 of the Borough act (Comp.
Stat., p. 275), which provides that no certiorari shall be
allowed to set aside an ordinance for any improvement after
a contract therefore shall have been awarded, nor to review
any assessment after thirty days shall have elapsed from its
confirmation.
This testimony shows that the requisite number of resident
freeholders did not sign the petition for the improvement, the
statute providing that such an ordinance g^hall be preceded by
an application in writing for the improvement, signed by at
least ten freeholders of the borough residing therein; that
no such notice as the law requires relating to th£ sidewalk
ordinance was given the landowner, nor was he afforded an
opportunity to do the work if he desired ; that the advertise-
ment for bidders for the contract was not published in Bergen
county, where the improvement was to be made, but in news-
papers in Passaic coimty; that the minutes of the council
do not show that the ordinances were adopted by a majority
vote, and that the defendant had no actual notice of the pro-
ceedings until after. the work was finished. Whether under
these circumstances the statutory limitations upon the power
of this court to exercise the right to issue its prerogative writ
is reasonable, it is not necessary to determine, for this matter
can be disposed of on other grounds, in the consideration of
which we assume that the ordinances are non-assailable, leav-
ing that question open to the prosecutor on final hearing.
As to the sidewalk assessment we think the writ should go
because for want of proper nbtice to the prosecutor, no as-
sessment can lawfully be laid against it in the present pro-
ceedings. Section 50 of the Borough act (Comp, Stat,, p.
258) provides that any ordinance providing for the construc-
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396 XEW JEBSEY SUPEEME COURT.
Belmont Land Association v. Garfield, 90 N. J. L.
tion of sidewalks "shall provide for allowing the owner or
owners of the land in front of which said sidewalks may be
so constructed * * * at least thirty days' time in which to
do the work required thereby, and that written notice of the
required work be sent to such owner by mail, if their post-
office address be known ; if not known, then by posting such
notice on the premises affected thereby,'' or by personal ser-
vice if the owner be a resident. No such notice was given in
either of the methods prescribed by the statute, and the ordi-
nance does not make the provision the statute requires. The
next section of the act — section 51 — provides that if the
owner shall fail to do the work within th6 thirty days, the
municipality may do it and assess the cost, by resolution,
upon the property and certify the same to the borough clerk
who shall deliver it to the borough collector, and he shall enter
it m a book to be called ''Sidewalk Assessments," from which
time it shall become a lien upon the premises. It thus ap-
pears that the commissioners of assessment have no authority
to assess fpr the cost of sidewalks, the entire cost of which is
to be assessed by the common council on the property along
which it is laid, and it is distinct from the grading of the
street for the reception of the sidewalk, the question of dam-
ages and benefits from change of grade being adjusted in
proceedings relating to the establishment and resultant im-
provement of the grade of the street. Under the statute the
borough has no power to deprive the landowner of his right
to make the required improvement, nor had the commission-
ers of assessment any authority to make the assessment for the
cost of the sidewalk, for the legislature has provided another
method.
We are also of opinion that prosecutor is entitled to a writ
to review the assessment for grading. The grading required
a cut in front of prosecutor's property which placed the level
of its property at one point seven feet above the street, and
the testimony tends to show that this was a damage, yet the
commissioners, apparently, did not take into account the
question of damages. In addition to this, the testimony shows
that there is some ground for prosecutor's complaint that it
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JUNE TERM, 1917. 397
90 X. J. L. Belmont Land Association v. Garfield.
was improperly assessed because of the elevation of its land,
and that it was unfair to put the greater part of the cost Of
the grading on the lands along Dewey street immediately in
front of the iipprovement, while the entire street was bene-
fited by the change of the grade. It also appears that the
assessment includes the cost of the sidewalk, and that in as-
certaining the cost of the improvement upon which the assess-
ment was based, no distinction was made between the different
items of cost.
We think the applicant for this writ has presented a suffi-
ciently debatable question to justify the allowance of the writ,
and in view of the want of a required petition before the ordi-
nance was adopted, which seems to be necessary to give the.
common council jurisdiction to pass the ordinances, we think
the writs should extend to a review of the legality of the
ordinances.
This is a proceeding to take prosecutor's property, for
money is property, against its consent, by means of a void
ordinance adopted without observing one of the conditions of
the delegated power, and the legislature never intended to
put such ultra vires action beyond the power of this court to
review, simply because a contract has been awarded based upon
it, and if it did, then a constitutional question is presented
of sufficient importance to warrant solemn argument.
ThQ ordinance must be one which the council had the power
to adopt if the bar of the statute is to operate, and where the
council fails to pursue the provisions of the legislative dele-
gation of power and acts without jurisdiction, it is beyond
the power of the lawmaker to arrest the power of review by
certiorari. Traphagen v. West HohoTcen, 39 N. J. L, 232.
The only other point raised by the defendant is, that under
the statute no certiorari shall be allowed to review an assess-
ment for a street improvement after thirty days shall have
elapsed from the date of the confirmation. The prosecutor
had no notice of the improvement until after it was com-
pleted, and its first notice was information of a meeting of
the commissioners of assessment whose report was confirmed
November 14th, 1916, and on December 12th, 1916, within
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398 NEW JERSEY SUPEEME COURT.
CahilL V. West Hoboken. 90 N, J. L,
thirty days after the confirmation, it applied for a writ of
certiorari and was allowed this rule to show cause. This we
deem sufScient.
The prosecutor will be allowed writs of certiorari to review
both ordinances, and all proceedings thereunder, including
the assessments, based thereon.
THOMAS A. CAHILL, PROSECUTOR, v. TOWN OF WEST
HOBOKEN, RESPONDENT.
PATRICK MCCARTHY, PROSECUTOR, v. TOWN OF WEST
HOBOKEN, RESPONDENT.
Argued March 21, 1917— Decided July 9, 1917.
While a municipal office may be abolished by the municipality for
economical or ^neficial reasons, and the incumbent deprived of
his office, although protected by a tenure of office statute, that
end cannot be accomplished by a removal from office contrary to
the terms of such a statute, when such action leaves the office in
existence and only brings about the creation of a vacancy to which
another may be appointed.
On certiorari.
Before Justices Garrison, Parker and Bergen.
For the prosecutors, John J. Fallon.
For the respondent, Frederick K. Hopkins.
The opinion of the court was delivered by
Bergen, J. In each of the foregoing cases a rule was
allowed requiring the respondent to show cause why a writ of
certiorari should not be allowed to review a resolution adopted
by the common council of the respondent on the 1st day of
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JUNE TERM, 1917. 399
90 N, J. L. Cahill v. West Hoboken.
January, 1917, rescinding a previous resolution of the coun-
cil appointing the two prosecutors to the positions of patrol-
men and abolishing the positions which they held. On the
argument, the cases being argued together, it was agreed by
counsel that if the court determined to allow the writs, it
should decide the merits of the controvers}' as if on final hear-
ing without further argument.
It was stipulated that the respondent is incorporated under
"An act providing for the formation, establishment and gov-
ernment of towns," approved March 7th, 1895, and has since
been governed by the provisions of that act; that the respond-
ent, on April 12th, 1916, adopted an ordinance establishing
a police department, which provided that the police force of
the town should consist of one policeman (to be called patrol-
man) for every seven hundred inhabitants of the town; that
the two prosecutors were appointed in December, 1916, to
fill vacancies, one caused by death and the other by retire- .
ment; that the appointments took effect immediately, and
the two prosecutors qualified and entered upon the perform-
ance of their duties as patrolmen and served as such until
January 6th, 1917 ; that on January Ist, 1917, the respondent
adopted a resolution rescinding the resolution appointing the
two prosecutors and purporting to abolish the oifice of patrol-
man held by the prosecutors ; that no charges were preferred
against either for incapacity, misconduct, non-residence, diso-
bedience of just rules and regulations, or otherwise, nor was
either given a hearing on any charge or charges; that the
preamble of the rescinding resolution recited that the police
force was sufficient without the appointment of the prosecu-
tors, and that such appointments were unwarranted and im-
posed an unnecessary and unjust burden on the taxpayers, and
that the purpose of the resolution was the promoting of the
efficiency of the department and economy in the administra-
tion of the town's affairs.
The power of the respondent to provide for the establish-
ment of a police force is to be found in section 50 of an act
entitled "An act providing for the formation, establishment
and government of towns" (Pamph. L. 1895, p. 239; Comp.
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400 XEW JERSEY SUPREME COURT.
CabiU V. West Hoboken. 90 X. ./. /..
Stat., p, 5532, § 375), which declares fpat the council shall
have power by ordinance to establish and provide for the ap-
pointment, removal, duties and compensation of a police
force, "provided, that such police force (excluding officers)
shall not exceed more than one policeman to every eigiit hun-
dred inhabitants, and provided, further, that no policeman
or police officer shall be removed except for neglect of duty,
misbehavior, incompetency or inability to serve."
There is nothing in this record which tends to show that
the police department of the town of West Hoboken was not
lawfully established under the statute above referred to.
It authorizes the establishment of a police foice not to ex-
ceed one to every eight himdred inhabitants, and to that ex-
tent the number of patrolmen is fixed by law, and appoint-
ments beyond that number would be unlawful. The fact that
the present ordinance fixed the number at one to every seven
hundred inhabitants does not destroy the ordinance estab-
lishing a police force and leave the municipality without such
force, for, if the number of patrolmen is not properly fixed
by the ordinance, the statute fixes it, and within that limit all
appointments would be legal, and in this case the appoint-
ments, including the prosecutors, do not exceed that limit..
We are of opinion that the police force was lawfully es-
tablished.
If the police department was lawfully established, then the
statute entitled "An act respecting municipal police depart-
ments lawfully established in this state and regulating the
tenure and term of office of officers and men employed in said
departments,'^ Pamph, L. 1915, p, 688, applies. That
statute, section 1, provides that in municipal police depart-
ments lawfully established in this state, the officers and men
employed therein shall hold their offices and continue in their
employment "during good behavior, efficiency and residence
in the municipality wherein they are respectively employed:
and no person shall* be removed from office or employment
in any such police department or from the police force of
any such municipality for political reasons or for any other
cause than incapacity, misconduct, non-residence or diso-
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JUNE TERM, 1917. 401
90 A'. J. L. Cahill v. West Hoboken.
bedience of Just rules and regulations established or which
may be established for the police foice in such deparfment."
Section 3 of the same act enacts that no person whether offi-
cer or employe in any police department shall be removed
from office except for a cause provided \i\ the first section of
the act, "and then only after written charge or charges of the
cause or causes of complaint shall have been preferred against
such officer or employe, signed by tiie person or persons
making such charges and filed in the office of the municipal
officer, officers or board, having charge of the department in
which the complaint arises, and after the charge or charges
shall have been publicly examined into by the proper board
or authority upon reasonable notice to the person charged, it
being tlie intent of this act to give every person against whom
a charge or charges for any cause may be preferred under this
act a fair trial upon said charge or charges and every rea-
sonable opportunity to make his defence, if any he has or
chooses to make/'
This act prevents the removal of any patrolman from a
police department for political reasons, or for any other cause
except incapacity, misconduct, non-residence or disobedience
of rules, and then only after a public hearing upon written
charges, and it is not pretended in this case that any charges
were preferred or any hearing allowed.
It is urged that when the purpose of the removal of a
patrolman is alleged to be in the interest of economy he may
be removed arbitrarily by resolution and without a hearing
accorded to him. We do not agree to this proposition, for the
office cannot be abolished by resolution; it is created either
by statute or ordinance and must be abolished in a like
solemn manner. If it be granted that the municipality has
the power to reduce the number of patrolmen, it must be
done by ordinance fixing the number at less than the statu-
tory ratio.
The statute declares, among other things, that the council
shall have power to provide by ordinance for the removal of
the police force, and there is nothing in this record which
shows any such ordinance ; all that appears is that the prose-
VoL. xc. 26
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402 NEW JERSEY SUPREME COURT.
Cahlll V. West Hoboken. 90 N, J. L.
cutors. lawfully appointed, are r^noved from their oflScea
without the hearing which the statute gives them, leaving the
offices in existence to be filled with partisans of the majority
of the council. If this can be done, then there is nothing to
prevent other removals in like manner until the entire force
is discharged and their places filled by new appointments, all
by resolution of the council. Under such conditions the alle-
gation of economy as an excuse for a removal of an incum-
bent without a hearing affords an easy means to avoid the
statute.
Mr. Justice Scudder, speaking for the Court of Errors and
Appeals in Newark v. Lyons, 53 N. J, L. 632, said statutes
of this class are intended "for the protection of incumbents
while the oflSces continue," and that the power to declare all
offices vacant cannot be exercised "for the purpose of appoint-
ing another to the vacated office unless it be for good cause
shown against the incumbent, for this would be a removal
within the prohibition of the statute." In that case it was
held that a power existed to abolish useless and antiquated
offices, and that "the tenure of the oflBce is qualified by the
continuance of the office." In Sutherland v. Jersey City, 61
Id. 436 ; Paddock v. Hudson Tax Board, 82 Id. 360 ; Van
Horn V. Freeholders of Mercer, 83 Id. 239, and Boylan v.
Neuurk, 58 Id. 133, the office was abolished. The rule seems
to be settled in this state that while a municipal office may
be abolished by the municipality for economical or beneficial
reasons, and the incumbent deprived of his office, although
protected by a tenure of office statute, that end cannot be ac-
complished by a removal from office contrary to the terms of
such a statute when such action leaves the office in existence
and only brings about the creation of a vacancy to which
another may be appointed. The resolution under review does
nothing more tlian create a vacancy which the council may at
any time fill, and is not supported by the cases, cited by the
defendant, holding that an office may be abolished in the
public interest even where the incumbent is protected by a
tenure of office act.
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JUNE TERM, 1917. 403
90 y. J. L. Fenton v. Atlantic City.
Whether, under any cireumfetanees, in view of the act of
1915 {Pamph. L,, p, 688), a police oflScer can be removed
without written charges, and a hearing accorded as provided
in that act, it is not necessary to decide in this case, for here
the oflSce remains in existence, and the result is the removal
of the prosecutors from office without charges, or the hearing
to which they are entitled, and without an effective abolition
of the offices which they held. The writs will be allowed and
the resolution under review will be set aside, with costs to
prosecutors.
CHARLES FBNTON, PROSEX^UTOB, v. ATLANTIC CITY.
RESPONDENT.
Submitted July 5, 1917— Decided September 17, 1917.
1. It is not an unreasonable exercise of police power by a city to
require an abutting landowner to connect his buildings with a
public sewer, notwithstanding he may already have a private
sewer. The object of such a health code is the sanitary condi-
tion of dwellings, the prevention of disease, and the maintenance
of public health, and this may be done by the prevention of
nuisances as well as their abatement.
2. It is no answer to a prosecution for the violation of an ordinance
requiring that adjacent buildings 'be connected with a public
sewer, that it discharges in the same body of water as the private
sewer, and an offer to prove that fact was properly overruled.
3. Anything injurious to public health may be a nuisance, and it is
as much the duty of a board of health to prevent a condition
likely to be detrimental to public health, as to abate it after its
^ evil consequences appear.
On certiorari to review conviction of violation of health
code of Atlantic City.
The facts applicable to this case, not disputed, are that de-
fendant owns property in Atlantic City fronting on a street
in which there is a sewer for the use of all property along it
requiring the disposal of sewage matter ; that the defendant's
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404 NEW JERSEY SUPREME COURT.
Fenton v. Atlantic City. 90 N. J. L.
property runs from this street to a body of water called
"Thoroughfare;" that it requires ^wage disposal facilitie?.
now afforded by a pipe from the buildings thereon^ which
empties in the Thoroughfare on defendant's land, distant over
two hundred feet from the buildings; that the city has an
ordinance requiring all property owners to connect buildings
abutting on streets ^^on which a sewer is laid" within thirty
days after notice by the health oflBcer directing that such
buildings be connected therewith; that defendant was given
the proper notice and refused to connect his buildings with
the sewer in the street, and that the sewer was constructed
and maintained by a private corporation open lo the use of
property abutting the streets through which it was laid. The
defendant was prosecuted for a violation of the ordinance and
convicted, and thereupon the proceedings and judgment were
brought here for review by a writ of certiorari.
Before Justices »watze^ Bergen and Black.
For the prosecutor, Clarence L. Cole,
For the respondent, Harry Wootion and Joseph B, Perskie,
The opinion of the court was delivered by
Bergen, J. The first point made by the prosecutor in
support of this writ is that the complaint does not allege that
prosecutor was maintaining a nuisance. It is not necessary
that the health officer should wait until a nuisance existed and
the public health put in jeopardy before requiring defendant
to connect with the sewer. It is within the reasonable exer-
cise of police power to prevent disease by the enforcement of
a proper sanitary regulation such as this. It also appears in
the record that when the question was raised by the prosecu-
tor in the court below, counsel said: "We waive any ques-
tion of the complaint being defective." This disposes of the
first objection adversely to the prosecutor.
It is next u^ged that it was error to overrule proof offered
by the prosecutor that the refuse from the sewer was de-
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JUNE TEEM, 1917. 405
90 X. J. L. Fenton v. Atlantic City.
posited in the game flow of water as that in wTiich defendant
was then discharging his sewage through his private pipe
line.
^ This, we are of opinion, was properly overruled because the
place of final deposit in no way afifects the reasonableness of
the requirement to connect with, the sewer. It is the sanitary
condition of the buildings required to be connected with the
sewer which is the primary object, and this may well be better
accomplished by a sewer under public inspection rather than
by numerous sewers under private control, although all dis-
^charge in the same stream at different points. It is not a
question where the disposal is to take place, but whether the
requirement that all buildings abutting a sewer shall be con-
nected with it is a reasonable one. We think that the re-
quired use by all adjacent property owners of a single sewer
constructed on sanitary principles is not unreasonable, al-
though such enforced use compels the abandonment of private
sewers discharging in the same body of water, and that there-
fore it is immaterial where the public sewer empties, especi-
ally when, as in this case, the sanitary condition of the public
sewer is not questioned.
The next point is that the place of deposit by prosecutor
is beyond the limits of the city of Atlantic City. This we
consider of no consequence. The buildings and a portion of
defendant's pipe are within the citv% and the health of the
city depends upon the sanitary condition of the defendant's
dwelling-house and private Fewer w^ithin the city. The trans-
portation of garbage by defendant through the city, if for-
bidden by ordinance, could not be justified upon the ground
that he intended to deposit it bcA-ond the city limits. What
he now contends is that he may use private pipes, not subject
to sanitary inspection, to carry garbage within the city with
impunity because he deposits it beyond the city line.
We do not consider the proposition has any legal merit.
The only other point argued is that as the sewer belongs to
a private corporation, and there being no proof that defend-
ant is maintaining a nuisance, tlie sanitary code cannot be
enforced against him. The prosecutor does not insist that if
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406 NEW JEESEY SUPREME COUBT.
Horner v. Margate City. 90 N, J, L.
he was maintaining a nuisance he could not be compelled to
connect with the sewer, although maintained by a private cor-
poration for public use, but rather thai he should not be
required to use it until it had been demonstrated that its non-
use creates a nuisance. As we have said, in the earlier part
of this opinion, it is a proper exercise of the police power in
the interest of public health, as well as its duty, to prevent a
condition likely to be detrimental to public health as much
as it is to abate such condition after its evil consequences ap-
pear, and a board of health would meet with merited con-
demnation if it stood by and took no steps to provide, by the
exercise of ordinary prudence, a sanitary condition which
would prevent an epidemic of disease likely to grow out of
known conditions.
Anything which is injurious to health may be a nuisance,
and we cannot say that a private sewer over two hundred feet
in length, used for sewage disposal, although used for a single
dwelling, is not injurious to the public health, at least we
cannot be so conclusively certain of it as to warrant us in
paying that the action of the board of liealth in causing its
abatement was erroneous.
The judgment will be affirmed, with costs.
JOHN G. HORNER, RECEIVER OF WEST JERSEY MORT-
GAGE COMPANY, PROSECUTOR, v. BOARD OP COMMIS-
SIONERS OF MARGATE CITY ET AL., RESPONDENTS.
Argued June 6, 1917— Decided June 19, 1917.
Under the act entitled "An act for the assessment and coUection of
taxes'* {Pamph. Z>. 1903, p. 394) there is no Umitation as to the
lien of a tax assessed on lands against the owner, at least so long
as he continues to be the owner, and a taxing district has, in such
case, the right to enforce the payment of taxes assessed against
the owner although the sale is not made, or attempted to be made,
within two years of the twentieth day of December of the year
for which the taxes are assessed.
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JUNE TERM, 1917. 407
90 N. J. L, Horner v. Margate City.
On certiorari.
Before Justices Swayze, Bergen and Black.
For the prosecutor, Harvey F. Carr,
For the respondents, Joseph Thompson,
The opinion of the court was delivered by
Bergen, J. In this cause a writ of certiorari was allowed
to review a resolution of the defendant corporation directing
its tax collector to sell lands for taxes in arrears.
The record is so meagre that it is doubtful whether the
precise question is presented in it, but we think it sufficiently,
supplemented by admissions on the argument and the briefs
of counsel to justify the consideration of the real question in
dispute, which is. Does the lien against the land for unpaid
taxes expire, in favor of the owner, at the end of two years
from the date when they are payable, where the owner, against
whom the assessment was levied, still holds the title? The
facts, as we feid them from the record and admissions of coun-
sel, are substantially as follows: In 1912, the Ventnor syn-
dicate was the owner of a tract of land in Margate City, of
which it is still the owner; in that year a tax was assessed
against the land in the name of the owner which became pay-
able December 20th of that year, and is not yet paid ; that
October 9th, 1916, the city passed a resolution directing the
sale of the land to make the taxes in arrears, which is the
resolution under review; that the collector advertised the
land for sale on April 10th, 1917 ; that February 21fit, 1912,
the Ventnor syndicate mortgaged the land to the West Jersey
Mortgage Company for $5,000, and the latter company, being
decreed to be insolvent, the prosecutor was appointed its re-
ceiver October 1st, 1915.
While we have concluded to consider the merits of the
question presented, we do not thereby wish to be understood
as conceding the right of a mortgagee to challenge the legality
of a tax assessed in the name of the owner against the mort-
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408 NEW JERSEY SUPREME COURT.
Horner v. Margate City. 90 N, J. L.
gaged premises, under such conditions as are present in this
case, for it may well be that even if the lien has expired as
to the mortgagee, it might remain a lien against the interest
of the owner sufficient in value in excess of the mortgage to
raise the sum due for \mpaid taxes, and that if the lien had
lapsed as to the mortgagee a sale of the owner's interest would
not affect the mortgagee's lien. This question we do not pass
on, for it is not raised, and defendant makes no objection to
the prosecutor's standing.
The only reason filed by the prosecutor is that "the lien
created" by the act of 1903 (Pamph, L,, p, 394; Comp. StaL,
p. 5075) "has expired, and the defendants, in consequence,
have no right or power to sell the said lands and can convey
no valid title tliereto."
Tliis raises but one question, and the only one argued, viz..
Is there any limitation to the lien for taxes on the land
against which they are assessed and levied where there has
been no subsequent conveyance by the owner? We are of
opinion that under the act of 1903, siipra, there is no limita-
tion for the lien for taxes, so far as the owner is concerned,
against whom tlie tax was levied, at least so long as he retains
the title. Prior to 1854 we had no statute making taxes a
lien on land or limiting the lien for taxes. In that year
(Pamph. L., p, 429) an act was passed which provided, sec-
tion 2, that an assessment for taxes against any person resid-
ing out of the state, or of corporations residing out of the
county wliere the lands were located, should be a lien on the
lands for the "space of two years," from the time when they
were made payable, and in 1863 (Pamph. L., p, 497) this
was extended to all persons and corporations whether resi-
dent or not. This limitation was maintained in all subse-
quent statutes relating to the subject until the general re-
vision of the Tax act in 1903, so, that under the statutes prior
to 1903, taxes were made a lien on the land against which
tliey were assessed for the space of two years after they were
payable, except, since 1888 (Pamph. L., p. 372), when all
taxes were made a first and paramount lien for the space of
two years from and after December 20th in each year, to
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JUXE TERM, 1917. 409
30 N. J. L, Horner v. Margate City.
which all conveyances, mortgages 'and other liens were sub-
servient, and our courts, in construing this legislation, have
uniformly held that the lien imposed expired at the end of
two years from the due day. Johnson v. Van Horn, 45 N.
J. L, 136; Poillon v. Rutherford, 58 Id, 113; Hohenstatt v.
Bridgeton, 62 Id, 169. With this statutory limitation re-
garding taxes continued in our law for a period of forty
years, together with its judicial construction before it, the
legislature, by the act of 1903, supra, deliberately eliminated
the limitation of the lien of taxes, and expressly repealed, by
Pamph, L. 1903, p. 436, all the legislation relating thereto,
and by section 49 of the revised act of 1903 declared that
all unpaid taxes should be, after the 20th. day of Decem-
ber next after the assessment, "a first lien on the land on
which they are assessed, and paramount to all prior or subse-
quent alienations and the descents of the said land or encum-
brances thereon, except subsequent taxes." Section 50 of
the act requires the collector of each taxing district to file, on
or before the first Tuesday of February in each year, with the
county clerk, except in cities having charter provisions for a
public record of tax liens on land, a list of all unpaid taxes
assessed the preceding year on real estate in his taxing dis-
trict, setting forth against whom assessed, the description of
the property and the amount of taxes assessed thereon, ar-
ranged alphabetically in the names of the owners, and then
declares that ^^the said list when filed and the record thereof
shall be constructive notice of the existence of the tax lien for
two years from said first Tuesday of February, but not there-
after against any parcel unless within said term of two years
the sale of said parcel shall be noted in the record."
The same section further provides that a purchaser or mort-
gagee in good faith after the said fii^t Tuesday of February,
whose deed or mortgage is recorded before the collector has
filed his list, shall hold his title free from the tax lien. The
radical change made by this statute is that the lien of taxes
is no longer subject to any limitation; they are made a lien
paramount to all conveyances or mortgages except such as are
taken after the first Tuesday in any February and recorded
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410 NEW JERSEY SUPREME COURT.
Horner V. Margate City. 90y,J.L.
before the collector has filed his list. This was manifestly
adopted to protect innocent purchasers and mortgagees in
good faith against the default of the collector in not filing
his list on the day required by law, but they are not protected
if recorded after the list has been filed, so, that if such pur-
chaser or mortgagee finds no list on file showing taxes in ar-
rears against the land when he records his conveyance or
mortgage, he may safely accept either. That part of section
60 relating to the limitation of constructive notice to two
years does not destroy the tax lien in favor of an owner, for
he has actual notice that he has not paid his taxes, and the
legislature could not have intended to do away with the actulal
notice which he had, and put in its place a constructive no-
tice, which is one which the law implies and charges him with
in absence of actual notice.
This limitation of constructive notice only applies to per-
sons who deal with the land without notice of any tax lien.
As to such persons the list filed is a notice which the law
implies they have, but this implication fails, by force of the
statute, after the lapse of two years from the beginning of the
lien, after which the list is not constructive notice to a pur-
chaser or mortgagee of the tax lien, and if he finds no list on
file, or a sale noted, within two years, he may Assume that
there are no taxes in arrears which are a lien upon the prop-
erty. It may well be doubted whether this statute applies in
any case where the conveyance or mortgage is recorded pi-ior
to the assessment, for; as was said by Mr. Justice Dixon, in
Eohinson v. Hvlick, 67 N, J. L. 496: "All persons inter-
ested, or about to become interested, in knds in Xew Jersey,
are chargeable with notice of these laws and of their normal
operation. Every purchaser or mortgagee of such land must
therefore be deemed to have notice of the taxes which become
a lien upon that land on every 20th day of December after he
acquires his interest."
We are inclined to think that the statute with reference to
the constructive notice to be derived from the fi'led list was
intended for the protection of persons intending to become
interested in the land, and that as to tlum the list is not a
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JUNE TERM, 1917. 411
90 N. J. L, Kelly v. Freeholders of Essex.
constructive notice for more than two years after it is filed,
so, that if in searching the record, he finds no list containing
an assessment unpaid against the land, he is not chargeable
with notice of any assessment, although filed, which is not
within the limited period, but if this be not sound, we are of
opinion that the limitation of the eifect of the constructive
notice provided by the statute does not apply where the owner
had actual notice of a tax levied during his ownership, and
that, so far as he is concerned, the tax remains a lien upon his
land without limitation by any statute.
The result which we reach is that the prosecutor can take
nothing ^by his writ and that it should be dismissed, with
costs.
JAMES F. KELLY, PROSECUTOR, v. BOARD OF CHOSEN
FREEHOLDERS OF THE COUNTY OF ESSEX ET AL..
RESPONDENTS.
Argued June 6, 1917— Decided June 19, 1917.
A municipality cannot lawfully reject the bid of the lowest bidder,
where the law requires the awarding of a contract to the lowest
• responsible bidder, upon the ground that he is not responsible,
without giving him a hearing, and a finding that he is not respon-
sible rested upon proper facts.
On certiorari.
Before Justices Swayze^ Bergen and Black.
For the prosecutor, Ualph E. Lurn.
For the respondents, Harold A. Miller,
The opinion of the court was delivered by
Bergen, J. The respondent the board of chosen freeholders
of the county of Essex advertised for bids for the plumbing
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412 XEW JERSEY SUPREME COURT.
Kelly V. Freeholders of Essex. 90 N. J. L.
and gas fitting work necessary for a greenhouse and a gar-
dener's cottage connected with a county hospital.
' The prosecutor was the lowest bidder by one dollar, but the
contract was awarded to the next highest bidder, and it is to
review this award that the writ of certiorari was allowed in
this ease. The difference in the bids is sinall, but the prin-
ciple involved is applicable to all bids and cannot be evaded
because, in this instance, the amount is small, for the con-
trolling legal rule must be applied in all cases without re-
gard to sum involved. The minutes of the meeting of the
board at which the bids were opened and considered show that
after the bids were opened tho architect reported that the bid
of James F. Kelly was the lowest, and that thereupon it was
"moved that on account of the unsatisfactory work done in the
past by this firm for the county, that the bid be rejected.
Seconded and carried," and that then the contract was
awarded to the next highest bidder. Tho testimony taken in
support of this action justifies the inference that a firm with
whom the prosecutor was at one time connected had not satis- .
fied the board with regard to work which it had done for it,
but, so far as the testimony goes, it affords no ground for any
inference that prosecutor was responsible for the ground of
complaint, but, assuming that his bid was rejected upon the
ground that the board did not consider him a responsible bid-
der, the action was taken without giving him a hearing* or
making a finding that he was not a responsible bidder. The
board has no right to arbitrarily reject a bid on that ground.
The bidder has a right to be heard and to a determination of
the question, which must have the support of proper facts in
order that the rejected bidder may have an opportunity to
review the action taken and the sufficiency of the proof upon
which it is rested.
In Faisi v. Hobohen, 72 N. J. L. 361, this court said: "If
there be an allegation that a bidder is not responsible he has
a right to be heard upon that question, and there must be a
distinct finding against him, upon the proper facts, to justify
it," and in Harrington's Sons Co. v. Jersey City, 78 Id, 610,
Mr. Justice Swayze said : "If the provisions had been that the
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JUNE TEEM, 1917, 413
ifO N, J, L, Kelly v. Freeholders of Essex.
contract should be awarded to the lowest responsible bidder,
it would have been necessar}^, before deciding adversely to the
prosecutors on that question, to give them a hearing." This
holding was approved by the Court of Errors and Appeals, on
appeal of the same case, Id. 614. The law has thus been
settled in this state that before the lowest bid can be rejected,
where the statute requires that a contract shall be awarded to
the lowest responsible bidder, upon the ground that such bid-
der is not responsible, without giving him a hearing, and a
distinct finding against him that he is not a responsible bid-
der upon facts which warrant such a conclusion. Xo such
hearing was afforded the prosecutor in this case, nor was there
any determination that he was not a responsible bidder, based
upon proper facts, and therefore the resolution awarding the
contract, and the contract made in pursuance of the award,
will be set aside. The respondent relies in justification of its
conduct on McGovem v. Board of Works, 57 Id, 580, but that
case involved an entirely different statute requiring the award-
ing of the contract to the lowest bidder giving satisfactory
proof of his ability to furnish the materials and perform the
work properly, and to offer security for tlie faithful perform-
ance of the contract, which is quite different from the present
act requiring the award to be made to the lowest responsible
bidder, a distinction pointed out by Mr. Justice Garrison, in
speaking for the Court of Errors and Appeals, in the Harring-
ton case. And in the McGovem case Mr. Justice Lippincott
said that if the charter of the city of Trenton provided that
contracts "should be awarded to the lowest bidder, the action
of the governing board in this matter would be set aside as an
unauthorized exercise of power," and when we have added
only that the lowest bidder shall be responsible, our courts
have held that the question of responsibility is one of fact to
be decided only after the bidder has been heard.
In addition to this, the rejected bidder was, in the ca?e last
cited, accorded a hearing with the assistance of counsel.
It is to be regretted that the municipality may be put to ad-
ditional expense in readvertising and awarding another con-
tract, but we can find no way to avoid it. The responsibility
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414 NEW JERSEY SUPREME COURT.
Martin v. Woodbridge. 90 N. J. L,
for it rests with the public board which disregardeci a settled
rule of law, by action, which, if approved, would nullify the
statute and pennit its willful avoidance by the arbitrary ac-
tion of municipal bodies, for, if permitted where the differ-
ence is one dollar, the same principle would apply to a like
unauthorized action if the difference was thousands, and per-
mit favoritism in the awarding of all contracts.
The prosecutor may enter an order setting aside the reso-
lution awarding the contract and the contract rested upon it.
ALBERT MARTIN, AND EPHRAIM CUTTER, EXECUTOR OF
THE LAST WILL AND TESTAMENT OF SAMUEL DALLY,
DECEASED, PROSECUTORS, v. THE TOWNSHIP OF
WOODBRIDGE, IN THE COUNTY OF MIDDLESEX, AND
VALLEY COMPANY, RESPONDENTS.
Argued June 6, 1917— Decided June 19, 1917.
1. Where lands have been sold "by the proper oflScer to make taxes
in arrears levied against land under the provisions of section 53
of the act of 1903 (Oomp, Stat, p. 6134), it is lawful to add* to
the taxes in arrears for the current year, to make which a sale
has been ordered, all arrears of taxes for which the land has been
sold and purchased by the taxing district to the extent necessary
to pay the cost of red<emption, whether the taxes accrued prior
to the date when the act of 1903 went into effect or thereafter.
2. The fact that the township clerk in furnishing the collector with
a statement of all taxes in arrears erroneously included an in-
stallment of a sewer assessment not yet due, will not vitiate the
sale when it appears that the collector before making the sale
corrected the error by deducting the installment and did not in-
clude it in the amount for which the sale was made, nor will the
fact that the clerk includ>ed in the amount certain costs not prop-
erly chargeable make the sale illegal if in fact the sum for which
the land was sold was not more, excluding the fees, than the true
amount due.
3. Proof by the collector making the sale that he posted advertise-
ments thereof in five of the most public places of the taxing
district, is not overcome by the fact that two of the places were
sometimes closed during business hours.
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JUNE TEEM, 1917. 415
90 N. J, L. Martin v. Woodbridge.
4. It is not necessary that the notice of sale for unpaid taxes put
up by the collector shall contain a statement that the land will be
sold* in fee if no one should bid for a shorter term. The statute
makes it the duty of the officer to make the sale in fee if no one *
shall bid for a shorter term, and it is not necessary to advertise
the terms of the statute.
On certiorari.
Before Justices Swayze, Beboen and Black.
For the prosecutors, Charles C, Hommarm.
For the respondents, J. H, Thayer Martin.
The opinion of the court was delivered by
Bergen, J. On the 31st day of July, 1916, the collector of
the township of Woodbridge, in the county of Middlesex, sold
at public auction a parcel of real estate for unpaid taxes to the
defendant Valley Company, in fee, for the sum of $2,077.13,
and thereupon issued to the purchaser a certificate of the sale
as authorized by statute. The prosecutors were allowed a writ
of certiorari to review the proceedings upon which the tax
certificate is based, and also for an order setting aside the sale
and certificate. The material facts, which are not in dispute,
are as follows: The land was assessed in the name of the
owner, Charles S. Demarest, for the years 1894 to 1911, in-
clusive, and in the name of the estate of Samuel Dally for the
years 1912 to 1915, inclusive; that in 1895 the land was sold
for taxes assessed for the year 1894, and were also sold in
1898, 1900 and 1908 for the taxes of the next preceding year,
the township in each case being the purchaser. The sales in
1895, 1898 and 1900, being for the period of thirty years,
and those of 1904 and 1908 being in fee. After the foregoing
sales the township contiilued to levy the taxes against the
land in the name of the owner and no taxes being paid after
the sale of 1908, nor the land redeemed from the effect of the
prior sales, the township committee, March 15th, 1916,
adopted a resolution directing the collector to sell the land
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416 XEW JERSEY SUPREME COURT.
Martin v. Woodbridge. 90 N. J. L,
to raise the taxes levied for the year 1914 and for all other
taxes in arrears.
The township clerk certified to tlie collector the amount of
unpaid taxes for the years 1894 to 1915, inclusive, and also
an unpaid sewer assessment. When the collector came to
make the sale it was found that of the sewer assessment $33
was not then due and the collector deducted that sum from
the amount certified and added to the balance thus ascer-
tained, the expenses and costs of the sale, making a total of
unpaid taxes, interest, sewer assessment and expenses of $2,-
077.13 for which the land was sold and purchased by the Val-
ley Company.
The sale was made by virtue of section 53 of the Tax act of
1903 (Comp. Stat., p. 5134), which provides that where land
has been sold and purchased by a taxing district, the subse-
quent taxes shall be levied as if no sale had been made and
shall remain a paramount lien on the land, and that no
further sale shall be made unless directed by the governing
body of the municipality assessing the taxes, in which case
the clerk of the taxing district shall certify to the collector
the amount required to be paid to redeem the land from the
previous sales, and that the collector shall sell the land for the
amount thereof to be added to the tax for the current year.
In the present case, the sale was made for taxes levied in the
year 1915, and to it was added all unpaid taxes, the result
being to raise a suflRcient sum to pay all taxes in arrears and
also to redeem the land from the prior sales to the taxing
district.
The first reason which the prosecutor argues why this tax
sale should be set aside is, that the certific ate of the township
clerk of the amount to be added to the current taxes included
the tax for the years between 1894 and 1903, the date of the
act which permitted the adding of anterior unpaid taxes to
those of the current year for which the sale was to be made,
it being urged that the act of 1903 had no application to taxes
accrued previous to that date, because, although section 53 of
the act of 1903 declares that "where a parcel of land has been
purchased and is held by the taxing district under a tax sale
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JUNE TEEM, 1917. 417
90 N. J. L, Martin v. Woodbridge.
not redeemed, all subsequent taxes * * * shall be and re-
main a paramount lien on the land and be added to the pur-
chase-money and shall be paid before the land can be re-
deemed from the sale/' it is provided by section 66 (Comp,
Stat., p, 5141), "this act shall take effect on the 20th day
of December, 1903, and its provisions shall extend to pro-
ceedings on and after that date relating to taxes assessed in
the year 1903, but not to proceedings relating to taxes assessed
in prior years." Section 66 appears to be a legislative decla-
ration that the act of 1903 shall not apply to proceedings re-
lating to taxes theretofore assessed, and that th»^ collection of
prior unpaid taxes cannot be enforced in the method pro-
vided by section 53, which relates to cases where, at a prior
tax sale, the taxing district became the purchaser. By the
statute of 1902 (Pamph. L., p. 447) all unpaid taxes assessed
after the 1st day of January, 1898, were made a first lien for
and during the period of five years next after the date on
which they become delinquent, and by section 2 of the same
act taxes thereafter assessed were made a paramount lien for
five years, but this act was repealed in 1903 (Pamph. L., p.
446), with the proviso that the repealer should not effect the
proceedings or remedies relating to taxes assessed prior to
1903. The effect of this repealer was to restore the status
existing prior to its adoption, the limitation of five years
being removed, and the proceedings and remedies relating to
taxes assessed prior to December 20th, 1903, restored.
By the statute of 1879 (Pamph. L., p. 298; Comp. Stat.,
p. 5188), it was enacted that where real estate theretofore or
thereafter sold, for non-payment of taxes, assessments or
water rents was purchased by the taxing district, or by any
person in its behalf, subject to the right of redemption, the
taxes, assessments and water rents should continue to be as-
sessed upon the land for subsequent taxes, but that it should
not be necessary to sell the land for non-payment, and that
such taxes and assessments should remain a first lien upon
the lands to be paid before it could be redeemed, but this does
not provide for a sale for unpaid taxes for which a sale had
been made, so the •situation is, that as to taxes assessed prior
Vol.. xc. 27
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418 NEW JERSEY SUPREME COURT. •
Martin v. Woodbridge. 90 N. J. L.
to 1903, and for which the land assessed had been sold and
purchased by the taxing district, the right of redemption and
not of resale existed, and the only question now presented is
whether in making a sale under section 53 of the Tax act the
cost of redemption may be added to the amount of the current
taxes for which a sale is to be made. We do not perceive any
difference between selling to make a current tax subject to a
right of redemption from a prior sale, and a sale to make cur-
rent taxes which shall include the amount necessary to pay
the redemption fee. The sale made under the act of 1903 is
in fee unless tlie bidder will take it for a shorter term, and
the purchase of a fee, subject to the cost of redemption, would
require the payment of the latter cost, for it cannot be as-
sumed that the legislature ever intended by implication what
it has not expressly declared, viz., that a sale of land for un-
paid taxes for a current year under the act of 1903 would
deprive tlie taxing district of its right to claim, and be paid
the tax'es in arrears for which it had purchased the land and
was holding subject to the o>vner'8 right of redemption. We
are therefore of opinion that when a sale of land is made
under the act of 1903, the taxing district may add to the cur-
rent tax, for which a sale is about to be made, the amount
required to be paid to redeem the land from the effect of all
prior sales at which a taxing district became the purchaser.
In matters of taxation all doubtful questions must be re-
solved in favor of the right of the state to' enforce the pay-
ment of taxes levied to sustain the government.
The next point is, that as some of these taxes are more than
twenty years in arrears there is a presumption that the tax
has been paid. In support of this wc are referred to In re
€ommmwners of Trenton, 17 N. J, L. J. 23, in which it is
reported that Mr. Justice Abbett said that as to taxes "a
presumption of payment arises after an absence of twenty
years if tliere is no evidence to repel it and to show that the
debt is still unsatisfied.'' Without conceding that such a pre-
sumption arises against the state, it is a sufficient answer in
this case to say that such a presumption, if it exists, is re-
butted bv the admitted fact that none of ttie taxes now in dis-
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JUNE TERM, 1917. 419
90 X. J. L. Martin v. Woodbridge.
pute have ever been paid. But aside from this all of these
taxes beyond the twenty-year limit have been enforced by a
sale and purchase by the taxing district for the period of
thirty years which has not yet expired, and therefore it is still
the owner subject to the owner's right of redemption if that
right has not yet expired.
The next reason argued is that the certificate of the clerk
included an installment of a sewer assessment amounting to
$33, not yet payable, and that this amount, although deducted
by the collector before the sale, was included in the certificate
of the clerk. It is not denied that this amount was not in-
cluded in the sum for which 'the sale was made, and the mere
fact that there was a mistake in the amount claimed in the
certificate of the clerk, which was corrected before the sale
and it made for the true amount, will not vitiate the sale, for
the owner was in no way injured because he could have re-
deemed before the sale by paying the correct amount for
which the sale was made.
Another reason urged is that the certificate of the clerk in-
cluded certain items of cost which were greater than that
allowed by law — that is, that forty cents was charged in each
case as a fee in excess of the l^al amount. This does not
make the sale illegal when it appears, as it does here, that the
amount for which the proper^ was sold, owing to other slight
miscalculations, was not more than was due the township, ex-
cluding these alleged illegal fees, there being nothing to show
that the owner offered to redeem for any sum due less these
fees or that he made, any objection thereto prior to the sale,
or that he is now willing to redeem by paying the amount
due.
The next reason urged is that the lands could not be ad-
vertised for sale to make the taxes of 1915 until after July
Ist, 1916, prior to which time the land could not be sold for
unpaid taxes for the year 1915. This claim is not sound, for
there is nothing in the statute which prevents the advertising
of the land for sale prior to the 1st day of July in each year ;
all that the statute forbids is a sale prior to that date, and
in this case a sale was not made until after that date.
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420 NEW JERSEY SUPBEME COURT.
Martin v. Woodbridge. 90 N. J. L.
The next reason urged is that the advertisements of the sale
were not put up in five of the most public places of the tax-
ing district. It is not urged that the places were not public in
the general sense of that word, but that two of the places were
sometimes closed during business hours. The affidavit of the
collector sets out that they were set up "in five or more of the
public places of said township/' as follows : one on a pole on
the north side of Green street, "in froni of the premises de-
scribed in feaid notice/' one in the post oflBce, one in the print-
ing office, one in a real estate office, one in a grocery store and
one in the public room of a hotel, giving the name of each.
We think this is sufficient proof, and must be taken as true,
unless it is rebutted in a more substantial manner than ap-
pears in this case. They are all, in a fair sense, public places,
and should be taken as such under this proof in the absence
of anything which conclusively shows that they were net such
public places as satisfies the law. What is a public place
would depend upon the state of mind of anyone objecting to
a public sale by any officer which required the posting of such
notices.
The next reason urged is that the notice of sale did nor
state that the land would be sold in fee if no one would bia
for a shorter term. Such a statement in the advertisement
of the sale is not necessary, for the law fixes the duty of the
officer which is to sell in fee unless some bidder at the sale is
willing to pay the arrears in consideration of an estate lesj^
than a fee, and the report expressly states that no person bid
for a shorter term than a fee, nor was it necessary, as next
urged, that the return of the collector should state that it was
required to sell the whole of the land, for that sufficiently ap-
pears, when, as he did, he reports he sold the entire tract to
make the arrears.
The next and last reason urged is that the affidavit of mail-
ing does not state that a copy of the advertisement was mailed
to the owner of the land. The land belonged to the estate of
Samuel Dally, deceased, of whose will Ephraim Cutter was
the executor, and his affidavit sliows that he mailed to Cutter
as the executor of the estate of Samuel Dally, deceased, as-
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JUNE TERM, 1917. 421
90 N, J. L. Splitdorf Electrical Co. v. King.
14 n
sessed as owner, a copy of the notice which was enclose^ in an
envelope, with the postage prepaid, addressed to the said
Ephraim Cutter; this is sufficient.
There not appearing in this record any sufficient reason
why the certificate of sale should be set aside, the proceedings
and sale will be confirmed, with costs.
SPLITDORF ELECTRICAL COMPANY, PROSECUTOR, v.
ANNA KING ET AL., RESPONDENTS.
Submitted July 5, 1917— Decided September 17, 1917.
"1. An illegitimate child of the daughter of an injured workman is
not a dependent of the daughter's father as defined in the Work-
men's Compensation act of this state.
2. The illegitimate child of a deceased workman's daughter is not a
grandchild of such workman within the meaning of the statute.
On certiorari to review an order of the Court ol Common
Pleas of the county of Essex awarding compenpation under
the Workmen's Compensation act.
Before Justices Swayze, Bergek and Black. .
For the prosecutor, Kalisch S Kalisch. .
For the respondents, William P. Murphy.
The opinion of the court was delivered by
Bergen, J. The petition for compensation in this case was
filed by a daughter of a deceased workman on behalf of her-
self and her illegitimate child. The trial court properly de-
cided that the daughter, because of her age, was not a de-
pendent, but held that her illegitimate child was a grandchild
within the statutory definition, and therefore entitled to com-
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4:22 NEW JERSEY SUPREME COURT.
Splitdorf Electrical Co. v. King. 90 N, J, L,
pensation, and judgment was thereupon entered according to
such finding, to review which a writ of certiorari was allowed.
The proofs in the case show that the daughter was not living
with her father when her child was born, but that after that
event she took the child to the place where her father was
living; that an additional room was leased; that the father
paid her $8.50 a week fot room rent and board, taking only
one meal a day except Sundays, and that out of this the
daughter paid the rent, $5.50, using the balance for food ;
that the father occasionally gave her extra money, and that
at the time of his death her sister boarded with her, paying
$4 a week. This is the only proof of assumption by the
- father of any responsibility for the support of the illegitimate
child of his daughter, and it is not sufficient to raise a pre-
sumption that he was treating such child as a dependent even
if that be sufficient under our statute, which we think it
would not be. The right to this class of compensation is the
creature of the statute and cannot be extended by judicial
construction in opposition to the words of the act. By the
amendment of the act (PampK, L. 1913, p. 302) the term
"dependents" is made to apply to and include a designated
class of persons, among them being "grandchildren, post-
humous children (and) illegitimate children," the latter to
be presumed to be dependent when they are a part of the de-
cedent's household. There is nothing in the statute making
the illegitimate children of an injured workman's child his
dependents unless they fall within the class denominated
grandchildren within the meaning of th»^ statute. The court
below held that such a child was a grandchild.
We are of opinion that this was erroneous, for at common
law a bastard was nullius filim, and if xfot a child of anyone
could not be a grandchild. Our statute permitting inherit-
ance between a mother and her illegitimate child does not
establish any relationship betwet^n such child and the parents
of its mother, nor can such child inherit from the mother's
ancestors, for, except as changed by the statute, the common
law prevails.
The Workmen's Compensation act imposes new and exten-
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JUNE TEBM, 1917. 423
90 y. J. L. Browne v. Hagen.
sive obligations upon the employer of workmen in favor of
the latter^s dependents and expressly defines who are to be in-
cluded as dependents, among them being the illegitimate
children of the workman residing in his family, to whom he
owes the duty of maintenance, and to impose a further obli-
gation on the employer, not provided for ly the statute, would
be legislation and not judicial construction.
In the absence of anything to the contrary we must con-
clude that when the legislature made use of the descriptive
term "grandchildren,'" it used it in its ordinary sense and as
applicable only to persons who stood legally in that relation
to the decedent workman, and not as intending to alter the
common law rule by making one who could not stand in such
relation a grandchild. The legislature iiad in mind the ques-
tion of illegitimacy, for it provided for the illegitimate chil-
dren of the decedent, but went no further, and wo are now
asked to supply what it omitted by construing the law to in-
clude among grandchildren those who have no such, legal
status.
If the legislature had intended that the bastard children of
a decedent workman's children were his dependents, it could
readily have said so, and having omitted to include such per-
sons among the class of dependents entitled to the benefit of
the act, the court cannot supply the omission by what would
clearly be the exercise of a legislative function.
The judgment will be reversed and a new trial awarded.
ALEXANDER BROWNE, RELATOR, v. ORVILLE R. HAGEN,
RESPONDENT.
Argued April 14, 1917— Decided May 10, 1917.
Where the incumbent of the office or position of health officer of a city
brought a writ of certiorari to set aside a decision of the civil
service commission, that another person be reinstated to the office
or position, and' the court of first instance fully considered the
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4:24: NEW JERSEY SUPREME COURT.
Browne v. Hagen. - 90 N, J. L,
relative rights of the two persons, deciding that the incunfbent
was not entitled to hold the office or position but that his op-
ponent was, and dismissed the writ, and on appeal the appellate
court affirmed the judgment of the lower court on the ground
that certiorari was not the proper remedy, and that the most the
incumbent was entitled to was a mandamus to the civil service
commission to certify his compensation ; in a subsequent pro-
ceeding to determine the right to the same office, in the same
court, the doctrine of Bta^-e decisis will be applied', and the right
to the office or position will be determined in accordance with the
prior decision.
On infoiination in the nature of quo warranto. On de-
murrer to information.
Before Justice Minturn, by consent.
Por the relator, ^Yard & McGinnis,
For the respondent, William I, Leiois,
The opinion of the court was delivered by
MiNTURN, J. The relator in this information bases his
claim to the office of liealth officer of the board of health of
the city of Paterson upon the following facts, which are sub-
stantially conceded by the litigants: On the 10th of No-
vember, 1903, the relator was %y the board of health of the
city of Paterson appointed health officer, and thereupon en-
tered upon the discharge of his duties; that on the 13th day
of Novcml)er, 1906, he was reappointed for the term of three
years: that on the 12th of November, 1909, he was reap-
pointed by said board of health for tho term of three years
and until* a successor should be appointed. In 1912. owing
to a dead-lock in the board of health, no appointment was
made and relator continued to hold over in office.
At the general election, in Novembj^r, 1912, the city of
Paterson adopted the provisions of the Civil Service act of
1908, and thereafter the position of health officer was classi-
fied as being within the competitive class, and relator accord-
ingly held said position during good behavior, and was remov-
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JUNE TERM, 1917. 425
90 N. J. L. Browne v. Hagea.
able for cause only; that he was never at any time removed
for eaxiBe, but Dr. Clay was elected to succeed him.
Eelator further avers that on the 14th day of November,
1916, the said Thomas A. Clay resigned as health oflBcer, and
thereupon the said board of health at a regular meeting held
on the 14th day of November, 1916, elected, or attempted to
elect, and did formally declare to be elected, one Orville B.
Hagen, the respondent, for an unexpired term of three years,
to which they had elected^ or attempted to elect, the said
Thomas A. Clay; that the said Orville B. Hagen thereupon
took possession of said office and has ever since been T^og-
nized by the board of health as its health officer, and is now
perfoi-ming, or pretending to perform, all the duties of said
office.
That the said Orville R. Hagen, during the time aforesaid,
has usurped, intruded into and unlawfully held, used and ex-
ercised the office, and yet does intrude into and unlawfully
hold and exercise the office to the exclusion of the said J.
Alexander Browne.
The information is filed under the provisions of section 4
of the Quo Warranto act (Comp. Stat, p. 4212), and may be
disposed of under the provisions of the act of 1895 (Pamph,
L., p. 82), which now appears as section 12 {Comp, Stat,, p.
4214), which gives respondent the right to put the title of the
relator in issue. The respondent has raised such issue by de-
murrer to the information. This was the practice followed
in Haight v. Love, 39 N, J, L, 14, 476; Anderson v. Myers,
117 Id, 186; Dunham v. Bright, 85 Id, 391; Civil Service
Commission v. O'Neill, Id, 92; Bonynge v. Frank, 89 Id.
•239. ■
The claim of the relator is that by virtue of his tenure of
office, as it existed upon the adoption of the Civil Service act
in Paterson, he became, upon and by virtue of such adoption,
vested with a tenure "during good behavior and was remov-
able for cause only."
In determining the legal question presented by this infor-
mation, I am naturally confronted with the inquiry as to
what legal effect is to be attributed to the deliverance of Mr.
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426 NEW JERSEY SUPREME COURT.
Browne v. HAgeo. 90 N. J. L.
Justice Parker, speaking for this court in the case of Clay v.
Civil Service Comrrdssion, 88 N, J. L. 502. That case was
upon certiorari, and in effect determined that the relator was
regularly appointed to the office in question, and that his
tenure thereof was protected by the Civil Service act, and the
classification made thereunder, and that as the result of such
appointment and tenure, the attempted appointment of Dr.
Clay to the same oflBce was necessarily invalid. This informa-
tion discloses no change in the situation presented to the
court in that case, excepting the fact that the respondent
claims to have succeeded by appointment to the status occu-
pied by Dr. Clay; otherwise, the status of the parties in fact
remains unchanged. The inherent diflBculty in accepting the
pronouncement of the Supreme Court as dispositive of the
rights of the respective parties to the litigation arises not
from any change in status, but entirely from the fact that the
Court of Errors and Appeals upon review affirmed the result
reached by the Supreme Court, but upon different grounds.
The ratio decidendi, in the Court of Errors and Appeals,
was that the remedy invoked by certiorari to test the validity
of the ruling of the civil service commission was inappropriate
and without legal warrant; and that the utmost protection
to which Dr. Clay was entitled against the alleged illegal
action or inaction of the civil service commission, in refusing
to certify his compensation, was a resort to the writ of mrni-
damus to compel the performance of a statutory duty. Clay
V. Civil Service Commission , 89 N, J. /v. 194.
This conclusion, manifestly, left the meritorious question
inter partes with which this court dealt imtouched ; and its
value as a controlling precedent therefore upon this applica-
tion presents the initial and fundamental difficulty w^hich
confronts me.
I am inclined, however, to accept the Supreme Court de-
termination as finally dispositive of the rights of the parties
upon this information. I must assume, in consonance with
the opinion, that that court upon consideration of the facts
herein presented, adjudicated the respective rights of the par-
ties to the office in question.
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JUNE TERM, 1917. 427
90 N. J. L. Fairview Heights Cemetery Co. v. Fay.
The fact that the adjudication was reached through the
medium of an inappropriate legal vehicle of transmission may
aifect its value in an appellate tribunal, but the essential value
of any precedent is the cogency and applicability of its rea-
soning to the situation sni judice; for, with Coke, we must
conclude ratio legis est anima legis, 7 Co, 7. Or, as ex-
pressed by a more modem commentator, "adjudged cases be-
come precedents for future cases resting upon analogous facts,
and brought within the same reason.^* 1 Kent 473.
The result is that upon the doctrine of stare decisis, I am
of the opinion that the relator in this information is legally
entitled to the possession of the office in question, and that a
judgment of ouster upon this demurrer should be entered
against the respondent.
FAIRVIEW HEIGHTS CEMETERY COMPANY, PROSECUTOR,
V. THOMAS FAY, COLLECTOR, ETC., RESPONDENT.
FAIRVIEW DEVELOPMENT COMPANY, PROSECUTOR, v.
THOMAS FAY, COLLECTOR, ETC., RESPONDENT.
Submitted March 22, 1917— Decided June 6, 1917.
1. The fundamental rule, pervading all exemptions from the general
tax burden of the state, is that they are not favored by the law
unless the statute invoked' to support them expresses the legis-
lative intention in clear and unmistakable terms.
2. It is not reasonable to assume that the power conceded by the
legislature to cemetery associations, for the purpose of the pro-
tection, under proper management, of the bodies of the dead, is
so comprehensive in scope as to enable them to purchase tracts
of land, and to hold them unimproved and undeveloped for any
purpose out of the taxable assets of township, county and state
assessments.
3. Where property, held by a cemetery association, presents no
indicia of actual use or of. reasonably contemplated use, within
the statutory purview, such property should not be exempted
from taxation.
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428 NEW JEESEY SUPREME COURT.
' Fairview Heights Cemetery Co. v. Fay. 90 N. J, L.
4. Whether a company, fonned under the Greneral Corporation act
for general business, may exercise the power and claim the privi-
If'ges expressly conferred by exceptional legislation upon a dis-
tinctive species of corporation, created for the purpose of per-
forming a gtt(w*-public function, and existing specially for the
purpose therein prescrfbed, quwref
Two writs of certiorari, removing assebsments and taxes by
tho borough of Fairview, in the couniy of Bergen.
Before Justices Swayze^ Mintukn and Kalisoh.
For the prosecutors, Weller & Lichtenstein.
For the respondent, Edwards & Smith,
The opinion of the court was delivered by
MiNTURN, J. Two cases, involving a claim of exemption
from taxation are presented by these writs. In the first in-
stance, the borough of Fairview, in Bergen county, levied a
tax on the assessed value of the property of the Fairview
Heights Cemetery Company, comprising about fifty acres, for
the year 1913.
The prosecutor is organized under the Cemetery act (Comp.
Stat., p. 370) and owns and manages a cemetery comprising
about sixt^^-five acres, fifty acres of whicli are not in use for
cemetery purposes. The undeveloped section remains prac-
tically in its natural state. It was asses^fed and is taxed by
the borough, from which assessment the prosecutor appealed
to the county board, which board sustained tlie assessment
and tax. The insistence of the prosecutor is that the entire
tract in use and out of use is exempt from taxation.
The Cemetery acts have frequently been before this court,
in various aspects of litigation, and from the views expressed
as the result of those adjudications, the following principles
may be gleaned: The fundamental rule pervading all ex-
emptions from the general tax burdens of the state, is that
they are not favored by the law, and will not be construed
to exist unless the statute invoked to support them expresses
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• JUNE TERM, 1917. 429
90 N. J, L. Fairview Heights Cemetery Co. v. ¥&y,
the legislative intention in clear and unmistakable terms.
Mausoleum Builders v. State Board, &c,, 88 iV^. J. L. 592;
.Cooper Hospitai v. Camden, 70 Id. 478; Rosedale Cemetery
Co, V. lAnden, 73 Id. 421.
In enacting legislation of this general character ,whose
main and fundamental purpose is the protection under proper
management of the bodies of the dead, it is not reasonable to
assume that the power conceded by the legislature to cemetery
associations, for that purpose, is so comprehensive in scope
as to enable them to purchase tracts of territory and to hold
them unimproved and undeveloped for any purpose, out of
the taxable assets of township, county and state assessments.
If such a construction of this legislation wore to be ad-
mitted, there would appear to be no limit to the bounds of the
ownership of the corporation, within the terms prescribed in
the act, except the financial carrying capacity of the corpora-
tion itself, and the following case involving a claim for ex-
emption upon this ground will enable one to per.ceive how
even that protective limitation may be evaded in actual
practice.
The mere organization of a company, under the cemetery
acts, and the purchase of land thereafter, without expenditure
to improve or develop it, but the mere passive holding of the
land, as it were by a species of mortmain, is not enough to
bring the claim for exemption within the language and spirit
of this legislation.
Ownership and use seem to be the legislative tests upon
which an exemption from taxation of this character may
legally be based. Section 4 of the Ruial Cemetery act ex-
pressly provides that any portion of a cemetery '^not actually
set apart and used for burial purposes shall be subject to taxa-
tion," &c.
In 1883, this section was amended by a proviso reading
that any portion of the property of any such company "not
actually set apart and used for burial purpose? shall be sub-
ject to taxation," &c. Pamph. L. 1883, p. 123.
The amendment of 1889 made no change in this feature of
the legislation. Pamph. L. 1889, p. 418.
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430 NEW JEfiSEY SUPREME COURT.
Fairview Heights Cemetery Co. v; Fay. ' 90 N. J. L.
These various enactments are in pari materia and must be
considered together as presenting a cohesive and consistent
legislative scheme declaratory of a state policy of setting aside,
by a separate species of tenure, through corporate agencies,
sections of land, free from taxation, when such lands are
actually in use, or within reasonable contemplation of being
used for the purpose declared, in the statute. Mt, Pleasant
Cemetery v. Newark, 89 N, J. L. 255; Rosedaie Cemretery
v. Linden, supra; Maaisoleum Builders v.' State Board, ante
p. 163.
The locus in quo in this controversy presents no indicia of
actual use or- of reasonably contemplated use, within the
statutory purview, which will enable us to bring it within
such a classification, and the tax in question should therefore
be affirmed.
• The second writ removes an assessment and tax upon
twenty-six acres of undeveloped land, situated on the Bergen
turnpike and owned by the Fairview Development Company,
a corporation not organized under the cemetery acts, but or-
ganized for business purposes under the General Corporation
act.
It obtained title to the locus in quo in 1910, by a convey-
ance from the Fairview Cemetery Company, for one dollar
and other valuable considerations; and thereafter an agree-
ment was executed between the parties to the deed setting
out the true consideration of the conveyance ($360,000), and
a covenant was entered into with the cemetery company that
the latter company might sell burial plots from the land con-
veyed, upon certain prescribed terms, as to price and condi-
tions. In effect, the instrument constitutes a holding agree-
ment, by which the title to the locus in quo is vested in the
development company, subject to certain useg; the covenant
being in all formal essentials not unlike the common law
covenant to stand seized to uses (4 Kent Com. 492) ; the
purpose apparently being to vest in the development company,
in trust, such lands as the cemetery company could not legally
hold by reason of the limitation contained in the cemetery
acts.
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JUNE TERM, 1917. 431
90 N. J. L. Fairview Heights Cemetery Co. v. Fay.
The land in question is part of forty acres lying west of the
Bergen turnpike, and eleven acres of meadow land lying on
the east side thereof. Nothing has been done to improve or
develop this acreage, for cemetery uses, and it lies in its
natural state, impressed with a cemetery use only, so far as
the trust expressed in the agreement may impose that char-
acter of user upon it.
The situation thus presented in principle is not unlike that
presented in the case of Mt, Plecusant Cemetery v. NetmrJc,
snpra, and the recent case of Mausoleum Bvilders, &c., y.
State Board, supra.
We do not deem it necessary to determine the power of a
company, formed under the General Corporation act, for gen-
eral business purposes, to exercise the power and claim the
privileges expressly conferred by exceptional legislation upon
a distinctive species of corporation, created for the purpose of
performing a ^w^-public function, and existing specially for
the purpose therein prescribed, and for no other; nor do we
deem it necessary to determine the further inquiry mooted in
the briefs of counsel, whether in such a situation the lands
in question can be properly considered as being held for
cemetery uses, within the meaning and purview of the ceme-
tery legislation.
It must suffice to declare, as we have done, in the previous
instance, and for the reasons there advanced, that the locu>s
in quo was not at the time of the imposition of this tax de-
voted to and in use for cemetery purposes, and for that rea-
son this tax also must be affirmed.
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432 XEW JERSEY SUPREME COURT.
N. Y., S. & W. R. R. Co. V. Pub. Utility Bd. 90 N. J. L.
NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD
COMPANY, PROSECUTOR, v. BOARD OF PUBLIC
UTILITY COMMISSIONERS AND CITY OF PATERSON,
RESPONDENTS.
Submitted March 22, 1917— Decided June 6, 1917.
1. A declaration, by the husband of the then owner of land, that if
he opened streets through it the opening would conform to a cer-
tain map, lacks the essentials of a legal dedication — first, because
it is not made by the owner of the locus j and secondly j because
at most it is but a promise or agreement to dedicate in futuro,
2. The declared object of the Fielder Grade Crossing act {Pamph.
L. 1913, p. 91) is to protect the public from danger incident to
grade crossings. Consequently, where it appears that the danger
incident to a proposed grade crossing can be obviated by a slight
change in the line of streets, which can be made to practically
serve the public use and convenience, the adoption of such a plan
would seem to present a satisfactory substitute, and the permis-
sion granted by the Public Utility Commission for the construc-
tion of such grade crossing should 'be vacated.
On certiorari removing order of Public Utility Commis-
sioners relative to grade crossing at Seventeenth avenue and
Twenty-fourth street, Paterson.
Before Justices Swayze, Minturn and Kalisch.
For the prosecutor, Collins & Corbin.
For the commissioners, L, Edward Heirmann.
For the city of Paterson, Randall B. Lewis,
The opinion of the court was delivered by
Minturn, J. The certiorari in this ease removes an order
made by the Board of Public Utility Commissioners, grant-
ing permission to the city of Paterson to construct a crossing
at grade, over the railroad right of way at Seventeenth avenue
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JUNE TERM, 1917.
90 N. J. L. X. Y., S. & W. R. R. Co. v. Pub. Utility Bd.
and Twenty-fourth street, where the two streets come to-
gether. A crossing is arranged for Seventeenth avenue, but
none is arranged for East Twenty-fourth street, and the pro-
posal is to compel such construction by the railroad. The
railroad contests the right of the city to require it on the
ground that the street is not in fact a public highway. It
was never laid out as such, and the city relies upon a map
made in 1868 to evidence the dedication. We think the map
does not show a dedication of the Jocu.s in quo. It contains
a declaration by the husband of the then owner that if he
ever opened the streets, the opening would conform to the
map. This lacks the essentials of a legal dedication — firsts
because it is not made by the owner of the locm; and secondly,
because at most.it is but a promise or agreement to dedicate
in futuro.
The buildings along the lines of the street, as actually used^
and the actual practical use of the street as a dirt or cinder
road, seem to be shown, and that fact would justify an infer-
ence that continued use has accorded to it the status of a
public highway. That question, however, is not before us for
decision, nor w^as it a subject for the determination of the
Public I^tilitv Commissioners, under the legislation pre-
scribing their powers.
The fact is quite apparent that in opening up these two
streets, as proposed, so that the railroad may cross them
diagonally, a crossing involving serious danger to the public
will be thereby created.
The commissioners seem to have dealt with tl;ie situation as
though it presented a question of the construction of appur-
tenances to the railroad. The declared object of the statute
is to protect the public from the danger incident to grade
crossings, and the inquiry before the commissioners was
whether such a crossing as that in question would result in
increasing the danger and hazards of the public in the use
of it; and if it would increase the public dangers, then
whether in view of the situation thus presented, it was still
necessary and desirable as a public crossing. For manifestly
a public crossing at grade might be highly desirable as a pub-
Vo7.. xc. 28
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434 NEW JERSEY SUPREME COURT.
Bradford v. DeLuca. 90 N, J. L.
lie convenience, but if its existence and continued use might
serve in actual practice as a standing menace to the lives of
the community, it would not comport with a proper exercise
of wisdom, nor accord with the declared legislative policy
and intent to authorize or compel such constructicm.
These important considerations seem not to have been dis-.
cussed or determined by the board, and as we have intimated,
they present the distinctive and vital inquiry in the case.
We think it was made quite clear by the railroad, that the
diflSculty presented here could be obviated by a slight change
in the lines of the streets at the comer where Seventeenth
avenue and Twenty-fourth street intersect, and if such a
change in existing conditions can be made to practically
serve the public use and convenience, the adaption of such a
plan would seem to present a satisfactory substitute, and a
reasonable solution of the situation rather than a proposed
construction which is menaced with the very difficulties and
dangers which it is the avowed purpose of this legislation
to eliminate.
We think the testimony before the board was not sufficient
nor of a character to warrant or reasonably support the con-
clusion reached by the board, and for that reason we h«tve
concluded that the permission granted should be vacated.
Erie Railroad Co, v. Board of Utility Commissioners, 89 N.
f/. L, 57; Potter v. Board of Public Utility Commissioners,
Id. 157.
CHARLES L. BRADFORD, PROSECUTOR, v. FRANK DeLUCA
AND FRANK KATOK, JUSTICES OF THE PEACE,
RESPONDENTS.
Submitted December 7, 1916— Decided June 12, 1917.
The act of 1846 (Pamph. L., p. 181), entitled "An act for the preser-
vation of clams and oysters," and the proceedings provided therein,
has been superseded' by the act entitled **An act to provide a uni-
form procedure for the enforcement of all laws relating to the
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JUNE TEEM, 1917. 435
90 N, J. L, Bradford v. DeLuca.
taking of natural seed oysters and clams and the protection of
the natural seed oyster grounds of the state and for the recovery
of penalties for the violation thereof (Pamph, L, 1900, p. 425),
which provides, among other things, that all proceedings for the
recovery of penalties pursuant to the provisions of the act shall
be entitled and run in the name of the State of New Jersey, with
one of the oyster commissioners or their assistants or a police
officer or a constable, and that "no proceedings shall be insti-
tuted by any person not a duly commissioned oyster commissioner
or their assistants or a police officer or a constable of this state."
Held, that a judgment rendered in a proceeding instituted by a
private person under sections 7 and 9 of the ^ct of 1S46 must be
set aside. '
On certiorari.
Before Justices Swayze^ Minturn and Kalisiph.
For the prosecutor, William A. Logue and Walter H\
Bacon.
For the respondents, Robert H. McCarter and William, F.
Kelly,
The opinion of the court was delivered by
Kjllisch, J. The prosecutor was the owner of a schooner
equipped with tackle, appai*el and furniture engaged in and
used to rake and gather oysters in Maurice Biver cove and
Delaware bay. He had for that purpose in his employ per-
sons who were not residents of this state, the prosecutor being
a citizen and resident of this state.
The present proceeding was instituted by one Zane, a pri-
vate person, under sections 7 and 9 of an act entitled "An
act for the preservation of clams and oysters." Pamph. L.
1846, p. 181. These sections provide that it shall be unlaw-
ful for any person who is not at the time an actual inhabit-
ant and resident of this state and who has not been such
inhabitant or resident for six months next preceding such
time to rake or gather clams, oysters or shell-fish, either on
his own account and benefit or that of his employer, in any
of the rivers, bays or waters of this state, on board of any
canoe, flat, ?cow, boat or other vessel imder a penalty of
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43G NEW JERSEY SUPREME COURT.
Bradford v. DeLuca. 90 N. J. L.
twenty dollars to be recovered and applied in the manner
directed by the first section of the act, and the canoe, flat,
?cow, boat or other vessel, used and employed in the com-
mission of such oflfence, with all the clams, oysters, clam
rakes, tongs, tackle, furniture and apparel, shall be forfeited
and seized, secured and disposed of in the manner prescribed
in the ninth and tenth sections of the act ; that it shall be the
duty of all sheriffs and constables, and may be lawful for any
other person or -persons to seize and secure any such canoe,
flat, scow, boat or other vessel, and immediately thereon give
information thereof to two justices of the peace of the county
where such seizure shall have been made, who shall meet at
such time and place as they shall appoint for trial thereof
and hear and determine the same ; and in case the same shall
be condemned, it shall be sold by the order and under the
direction of the said justices, who, after deducting all legal
costs and charges, shall pay one-half of the proceeds of said
sale to the collector of the county in which such offence shall
have been committed, and the other half to the person who
shall have seized and prosecuted the same.
Section 3 of the act deals with proceedings to be instituted
for penalties against individuals residing within or without
the state who shall use or employ, or be on any boat, &c.,
where there is used or employed an instrument called a
dredge in raking for or gathering oysters.
Zane undertook to seize the schooner by nailing to her
mast a notice of her seizure, under the act of 1846 above re-
ferred to, and had her sectirely fastened to a float and imme-
diately thereafter filed an information of such seizure before
two justices of the peace, who set a time and place for a
hearing.
The prosecutor appeared at the hearing, and after testi-
mony taken the justices of the peace having found that the
schooner had been used in the commission of the offence
complained of, and in violation of section 7 of the act, or-
dered and adjudged "that the said schooner (C. L. Bradford)
be and is hereby condemned, and that it be sold at public sale
to the highest bidder ♦ * ♦ jn the manner provided by
section 9 of the act of 1846."
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JUNE TEEM, 1917. 437
90 y. J. L, Bradford v. DeLuca.
The principal question upon which the disposition of this
case must turn is whether sections 7 and 9 of the act of 1846,
under which this proceeding was had, are still in force, or
whether they were supplanted by later legislation.
We think the legal procedure provided for in the act of
1846, for the enforcement of the various provisions thereof,
has been superseded by later legislation.
Since 1846, many statutes have been passed for the preser-
vation of clams and oysters. Various penalties were provided
and different methods of procedure prescribed for their en-
forcement. Some of the statutes relate only to the oyster in-
dustry and prescribe penalties for their violation.
It is more than likely that in view of all this the legisla-
ture in order to bring about uniformity in the method of pro-
cedure against offenders under the various statutes, and to
take the prosecution of the same out of the hands of private
individuals, as under the act of 1846, and to put the entire
matter under the control of public officials, enacted the statute
entitled "An act to provide a uniform procedure for the en-
forcement of all laws relating to the taking of natural seed
oysters and clams and the protection of the natural seed
oyster grounds of this state and for the recovery of penal-
ties for the violation thereof." Pamph, L, 1900, p. 425.
Section 1 of the act provides that all laws, general and
special, for the protection of natural seed oysters grounds, or
in any manner prohibiting or regulating the taking of pos-
session of natural seed oysters and clams, shall hereafter be
enforced, and all penalties for violation thereof shall here-
after be recovered in accordance with the provisions of the
act.
Section 2 confers jurisdiction 6n justices of the peace, Dis-
trict Courts and police magistrates to deal with offenders for
offences committed against any of the provisions of the
various statutes.
Section 3 points out the method of procedure, and, among
other things, it is to be observed that where the proceeding
is in the justice^s court it is before a justice of the peace sit-
ting alone.
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438 NEW JERSEY SUPREME COURT.
DuPont De Nemours Co. v. Spocidio. 90 N. J, L.
The thirteenth section of the act provides that all proceed*
ings for the recovery of penalties^ pursuant to the provisions
of the act, shall be entitled and shall run in the name of the
State of New Jersey, with one of the oyster commissioners or
their assistants or a police oflBcer or a constable; and here
follows significant language: "And no proceedings shall be
instituted by any person not a duly commissioned oyster com-
missioner or their assistants or a police ofl5cer or a constable
of this state/'
Section 15 repeals all acts and parts of acts inconsistent
with the provisions of the act.
The procedure provided for by- the statute of 1900, there-
fore, supplants that of 1846.
Having reached this result it becomes unnecessary to con-
sider the other reasons presented and argued for setting aside
the proceedings.
The judgment will be reversed, with costs.
B. I. DUPONT DB NEMOURS POWDBR COMPANY, PROSB-
CUTOR, V. JAMES SPOCIDIO, RESPONDENT.
Submitted December 7, 1916— Decid«ed June 28, 1917.
1. Whether, ia a proceeding under the Workmen's Compensation
act there was a prior agreement between the parties to make com-
pensation, under the statute, without resorting to the Court of
Common Pleas by petition, is a mixed question of law and fact ;
and where there was testimony to the effect that the employer
agreed to and did pay the petitioner periodically one-half of his
weekly wages for some time after the accident, and also medical
expenses incurred as a result of the petitioner's injuries, .the trial
judge was justified in finding that there was such an agreement.
2. An agreement, made within a. year after an accident, between
any employer and employe, for compensation due under the
Workmen's Compensation act, for a less sum than that which
may be determined by the judge of the Court of Common Pleas
to be due, is a sufficient agreement under the act to relieve the
petitioner of the duty of bringing his action within one year or
otherwise ^e barred of his action.
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JUNE TERM, 1917. 439
90 y. J. L. DuPont De Nemours Co. v. Spocidio.
On certiorari.
Before Justices Swayze, Mintubn and Kalisch.
For the prosecutor, J. Forman Sinnickson,
For the respondent, Bergen & Richman.
The opinion of the court was delivered by
Kalisch, J. The question to be determined upon this re-
view is whether the respondent, the petitioner in the court
below, filed his petition for compensation under the Work-
men's Compensation act within the time required by law.
The petitioner was in the employ of the prosecutor. On
the 25th day of January, 1915, the petitioner, while engaged
in transporting cans of cotton from one part of the re-
spondent's plant to another, fell and broke his left arm in
three places and suffered a permanent injury.
On the 3d of March, 1916, the petitioner filed his petition
for compensation. On the 24th of March, 1916, the peti-
tioner by leave of the court filed an amended petitk)n. In
this latter petition he sets forth that after the accident men-
tioned, he and the prosecutor agreed upon the amount of
compensation due to the petitioner for his injuries; that
petitioner was informed that he would receive one-half of his
wages until he was able to return to work, and after the ex-
piration of fifteen days from the date of the accident, the
prosecutor paid the petitioner $5.28 per week, being fifty per
cent, of his weekly wages, and which sum it paid him weekly
until the 5th day of April, 1915, when he was told by the
prosecutor's physician to return to work, but that the peti-
tioner was not physically able to return to work at the time,
not being entirely cured of his injuries and suffering from a
permanent disability as a result of his injuries.
The petition further sets forth that the prosecutor paid
petitioner's medical expenses, including an operation per-
formed on petitioner's arm; that the petitioner is not entirely
cured of his injuries and is suffering from a permanent dis-
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4i0 NEW JERSEY SUPREME COURT.
DuPont De Nemours Co. v. Spocidio. 90 N. J. L.
ability of his left arm ; that he has not been fully compen-
sated under the statute for his injuries received from the
accident, and that the agreement 'as to the compensation made
between him and thfi prosecutor had not been approved of
by the judge of the court in which the petition is filed, or a
judge of any other Court of Common Pleas in any county of
this state; and that a dispute has arisen between the prose-
cutor and petitioner as to the compensation due the latter.
The fact that the petitioner's injuries were due to an 'acci-
dent arising out of and in the course of his employment is
not disputed by the prosecutor.
The trial judge found that as a result of the accident the
petitioner broke his left arm in three places, and that as a
result thereof the petitioner suffered a temporary injury to
his arm extending from the time he was injured (January
?5t]i, 1915) until the 5th day of July, 1915, and that there
is a pennanent injury to the whole arm of ten per cent. ; that
after the petitioner was injured- he was first taken to the
office of Dr. Lummis, and was there treated, and subsequently
to tlie Cooper liospital in Camden; that the petitioner was
told to ^0 to the plant of the prosecutor and he would be paid
one-half of his wages; tliat petitioner went to the prosecu-
tor's plant and received the sum of $5.28 per week from the
prosecutor until the 7th day of April, 1915, a total of $42.21:;
that the petitioner was then given a note by Dr. Lummis ad-
vising him to go to the plant for work, the doctor stating
that he would be able to do light but not heavy work; that
the petitioner returned to the plant and did work from the
13th day of April, 1915, until the 13th day of May, 1915,
when he was discharged from the plant and has not been at
work there since.
From these facts the trial judge further finds that there
was an agreement and money actually paid to the petitioner
under the agreement to the amount as above stated from the
time of the petitioner's injury: The trial judge further made
the following findings:
*That the prosecutor is entitled to a credit on the amount
awarded of $5.28 a week for a period of eight weeks, or a
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JUNE TERM, 1917. 441
90 y. J. L. DuPont De Nemours Co. v. Spocldio.
total credit of $42.M; that the jirosecutor is not entitled to
a credit of $43.85 paid for medical expenses after the first
two weeks, nor what was paid to the petitioner for the time
he worked from April 16th, 1915, to May 13th, 1915, since
there was no proof of any agreement that it should be pay-
ment under the act; that the petitioner is entitled to com-
pensation at the rate of $6.12 per week for tweniy-one weeks
from the 8th day of February, 1915 (being two weeks after
the accident happened), for the temporaiy injury to his arm,
and that subsequent thereto the petitioner is entitled to the
sum of $6.12 per week for a period of twenty weeks for the
permanent injury to his arm."
The prosecutor seeks a reversal of the judgment on two
grounds :
1. That the proceeding is barred by the statute of limita-
tions. ^
2. That "the Court of Common Pleas did not find and de-
termine the facts from which the legality of the award by
said court can be determined.*'
Taking up for consideration the second point made by the
prosecutor first, we think that by the facts above set forth^
it sufiiciently appears what the injuries to the petitioner were —
their nature and extent.
As to the position taken by the prosecutor that the proceed-
ing of the petitioner is barred by the statute, which provides
that in case of personal injuries or death all claims for com-
pensation on account thereof shall be forever barred unless
within one year after the accident the parties shall have
agreed upon the compensation payable under the act, or un-
less within one year after the accident one of the parties shall
have filed a petition for adjudication of compensation as pro-
vided by the act {Pamph. L. 1913, ;?. 302), because the peti-
tion in the present case was filed after a year had elapsed
from the time of the accident, we find to be untenable.
It is plain that the statute provides three methods which
may be pursued within the year, for the purpose of fixing
compensation to be paid to an injured employe — (1) by a
petition filed by the injured workman, (2) by a petition filed
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U2 NEW JERSEY SUPREME COURT.
DuPoot De Nemours Co. v. Spocidio. 90 N. J. L.
by the employer of the injured workman, and (3) by an agree-
ment between employer and employe.
In the present case there was testimony which aflEorded a
reasonable basis for the finding of the trial judge that there
was an agreement for compensation to be paid petitioner be-
tween the prosecutor and petitioner, under the statute. For
there was testimony to the effect that the prosecutor, after
th^ lapse of two weeks from the time of the accident, agreed
to and did pay to the petitioner periodically one-half of the
petitioner's weekly wages for some time, until the prosecutor
requested the petitioner to go to work, which the petitioner
did, but was soon afterward discharged. It also appears that
the prosecutor paid the medical expenses, amounting to $43,
incurred as a result of the petitioner's injuries.
Whether there was an agreement between the parties to
make compensation, unde» the statute, without resorting to the
Court of Common Pleas by petition, was a mixed question
of law and fact, and we think there was evidence justifying
the finding of the trial judge that there was such an agree-
ment.
It is clear from the plain reading of the statute that where
the parties agree as to the compensation to be made, the legis-
lature contemplated that such agreement should be wholly
regulated and controlled by the provisions of the statute, both
as to the duration of time and the 'amount of compensation
to be periodically paid.
Paragraph 20 of the Workmen's Compensation act (Pamph.
L. 1913, p. 309) expressly provides, inter alia, that no agree-
ment between the parties for a lesser sum than that which
may be determined by the judge of the Court of Common
Pleas to be due, shall operate as a bar to the determination
of a controversy upon its merits, or to the award of a larger
sum, where it shall be determined by the judge that the
amount agreed upon is less than the injured employe or his
dependents are properly entitled to receive.
In the present case it appears that the petitioner was earn-
ing $12.24 per week at the time of the accident, and, there-
fore, the petitioner, was entitled to receive $6.12 per week
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JUNE TEEM, 1917. 443
90 N. J, L. DuPont De Nemours Co. v. Spocidio.
instead of the periodic weekly payment of $5.28, as agreed
upon between the parties. It further appears that under the
statute the petitioner was entitled to compensation for tem-
porary injuries for the period of twenty-one weeks and for
permanent injuries for twenty weeks, and that all the prose-
cutor paid to the petitioner under the agreement were period-
ical payments of $5.28 for eight weeks. Thus it becomes
manifest, in view of the excerpt from paragraph 20, above
quoted, that the petitioner was not barred from filing a peti-
tion in order to have the agreement made between the parties
reviewed by the court upon its merits at any time.
As it appears in the present case that there was an agree-
ment made between the prosecutor and the petitioner as to
the compensation to be paid by the former to the latter, the
one-year limitation clause in which a petition must be filed
or an agreement made for compensation is obviously not
applicable to the situation presented here. And this is also
equally true as to the non-applicability of the clause of para-
graph 21 of the act of 1913, which provides that an agree-
ment or award of compensation may be modified at any time
by a subsequent agreement, or at any time after one year
from the time when the same became operative, on the ground
that the incapcwjity of the injured has subsequently increased
or diminished, because the petition under consideration is not
filed on either ground. But if we turn to paragrapH 18 of the
act, we find that provision is made by it for filing a petition
in case of a dispute or failure to agree upon a claim for com-
pensation between employer and employe, &c., and that either
party may submit the claim, both as to questions of fact, &c.
Paragraph 20 points out in general terms what the petition
shall set forth in case of a dispute.
We cannot be led to Wieve that it was the purpose of the
legislature to put agreements entered into within the year
between employer and employe, as to the compensation to be
paid, upon a less secure footing than an award made upon a
petition filed within the year. One of the objects of the act
is to secure to the parties an inexpensive method of pro-
cedure. Of course, an agreement between employer and em-
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4:14: NEW JEKSEY SUPREME COURT.
Hansen v. Brann & Stewart Co. 90 N. ./. L.
ploye involves no expense whatever and saves to the employer
the expense of a hearing, &e. If in the present ease either
party had filed a petition within the year, and the court had
made an award of compensation, there could not be the
slightest doubt under the expj*es8 language, of the statute,
that either party would have the right in case a dispute arose
regarding the compensation, &c., to file a petition after the
expiration of the year. The statute has put the agreement
between employer and employe on the same plane as an award
made by the court upon petition, after a hearing, &c. And
this course was manifestly necessary, in order to prevent one
of the prime objects of the act from being frustrated.
For it is obvious that if the argument made by counsel
for the prosecutor should prevail, then in a case where an
employe is entitled to compensation for a period extending
beyond fifty-two weeks, and enters into an agreement with
his employer, as he may under the statute, then if at the end
of the year, after the last pa>Tiient due for the year has been
paid, the employer should choose to discontinue any further
payments, the employe would be remediless under the statute.
We cannot give our sanction to such a construction without
violating the plain language and spirit of tlie act and ex-
tinguishing one of its vital features.
The judgment will be affirmed,, with costs.
ELLEN OLSEN HANSEN. ADMINISTRATRIX OF ALF OLSEN.
DECEASED, PROSECUTRIX, v. THE BRANN & STEWART
COMPANY, RESPONDENT.
Submitted Deoembor 7. 1916 — Decided June 7, 1017.
1. The amendment of 1913 (Pamph. L., p. 302), amending: parafrraph
12 of the^ Workmen*8 Compensation act of 1911 {Pamph. /v., p.
134), provides that if the widvjw of a deceased employe remarry
during the period covert by weekly payments, the rijrht of the
widow "under this section shall cease." Held, that a widow.
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JUNE TEEM, 1917: 445
90 N. J, L. Hansen v. Brann & Stewart Ck).
whose husband was killM prior to the passage of the amendment
of 1913, leaving her as his sole dependent, acquired a vested right
to compensation during three hundred weeks, which could not be
legally abridged by subsequent legislation, and did not, by her sub-
sequent remarriage, forfeit her right to recover compensation pay-
ments for the full period fixed by the statute.
Though a widow remarried, she did not thereby cease to be the
widow of the deceased husband.
On certiorarL
Before Justices SwayiZE^ Minturn and Kalisch.
For the prosecutrix, Pierson & Schroeder.
For the respondent, Lindahury, Depue & Faulks {John \Y.
Bishop, Jr., and Kinsley Twining on the brief).
The opinion of the court was delivered by
Kalisch^ J. The facts in this case present the single ques-
tion whether under the Workmen's Compensation act of 1911
a widow, whose husband was killed prior to the passage of the
amendment of 1913, amending paragraph 12 of the act of
1911, leaving her as his sole dependent, forfeits her right to
receive compensation payments for the full period fixed by
the statute by a remarriage.
The amendment of 1913 referred to provides that if the
widow of a deceased employe remarry during the period
covered by weekly payments the right of the widow "under
this section shall cease."
The principal facts found by the trial judge are succinctly
stated, in his opinion, as follows: "Alf Olsen, on the 27th
day of September, 1911, while in the employment of the re-
spondent, received injuries by an accident arising out of and
in the course of his employment which resulted in his death
a few days later. At the time of the accident he was in re-
ceipt of wages at the rate of $21 a week. He left no de-
pendent surviving him except his widow, the petitioner
herein, to whom letters testamentary were issued. The re-
spondent, admitting its liability, made payments to her as a^
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446 NEW JERSEY SUPREME COURT.
Hansen v. Brann & Stewart Go. 90 N. J, L,
dependent under the Workmen's Compensation act, at the
rate of $5.25 a week up to November 11th, 1914. On No-
vember 25th, 1914, the petitioner was married to her present
liusband, Harold Hansen, with whom she is now living, and
by whom she is now supported."
After remarriage, respondent refused to continue the
weekly payments, disputing the right of the petitioner thereto
because of her remarriage. Thereupon the petitioner filed her
petition in the Court of Common Pleas, in order, to have that
tribunal settle the dispute between them. The respondent, in
its answer to the petition, admitted its liability to make com-
pensation under the statute, but claimed that its liability
ceased upon the petitioner's remarriage. By the act of 1911
the compensation in case of death shall be paid during three
hundred weeks.
It also appeared that the respondent paid the petitioner
the fixed weekly compensation for one hundred and thirty-
nine weeks, leaving one hundred and sixty-one weeks to be
compensated for imder the statutory schedule. The trial
judge found that the petitioner was not entitled to recover
compensation for any period of time after the date of her re-
marriage, and that her right to compensation ceased upon
such remarriage.
In reaching this conclusion the trial judge erred. This
ease must be dealt with under the provisions of the act of
1911. If, under that act, the petitioner, upon the death of
Iier husband, was entitled to compensation during three hun-
dred weeks, she acquired a vested right, which could not be
legally abridged by subsequent legislation. The amendment
of 1913, therefore, which cuts off the widow's right to com-
pensation, upon remarriage during the period covered by
weekly payments, can have no bearing upon the construction
to be given to the act of 1911, except as evidencing a change
of the legislative mind, in respect to what shall happen to an
award of compensation made after the passage of the amend-
ment to a widow who subsequently remarried and pending
tlie period of weeks for which compensation was to run.
It is obvious, from a plain reading of the act of 1911, that
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JUNE TERM, 1917. 447
90 N. J. L. Hansen v. Brann & Stewart Co.
the legislature provides for an award of compensation to a
widow without any condition annexed. Therefore, in order
to give the construction contended for by counsel for re-
spondent, we would be forced to read into this act the condi-
tion contained in the amendment of 1913, which, as has been
already pointed out, is clearly not permissible.
It is a matter of pertinent significance to the topic in hand
to observe that where the legislature intended to subject an
original award to a change by the court during the period of
weeks for which it was to run, it expressly provided for such
contingency ; and it is strikingly noticeable that the authority
to make a change in the award is limited, firstly, as to time —
that is, after one year when the award became operative, and
secondly, to cases of living injured employes, and then only
^^on the ground that the incapacity of the injured employe has
subsequently increased or diminished." Pamph. L. 1911, p.
143, second clause of paragraph 21.
If we seek further for the intention of the legislature,
whether or not it was its design that the widow should have
a vested interest in the award at the time it is made, we
readily find it expressed that she should have such vested in-
terest in section 2, paragraph 21, page 143 of the act of 1911,
which paragraph authorizes the trial judge to commute the
"amounts payable periodically" to one or more lump sums.
As to the insistence of counsel for respondent that since the
act provides that the weekly payments shall be made to the
widow, therefore, when the petitioner remarried she ceased to
be widow, under the statute, to whom the payments should be
made, we think is without merit.
In Clay v. Edwards, 84 N. J. L. 221, this court held that
the phrase 'husband of a daughter," in a statute exempting
from inheritance taxation property passing to the husband of
a daughter, includes within its meaning the surviving hus-
band of a deceased daughter, even though he subsequently
remarried.
So, in the present case, the legal status of the widow, upon
marriage, did not change so as to affect any vested rights she
had acquired before her remarriage.
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448 NEW JERSEY SUPREME COURT.
Dept. of Health of N. J. v. Monheit. 90 \. J. L.
And, moreover, in the general sense of mankind, and in
the legal sense, though the widow remarried, she did not cease
thereby to be the widow of the deceased husband.
The views herein expressed bring us to the conclusion tliat
the widow is entitled to have the weekly payments paid her
for the entire period of three hundred weeks, and that the
judgment of the court below should be reversed and the record
remitted, to the end that it may be proceeded upon according
to law. The prosecutrix is entitled to costs.
DEPARTMENT OF HEALTH OF THE STATE OF NEW JER-
SEY, RESPONDENT, v. HIRSCH MONHEIT, PROSECUTOR.
Argued June 6, 1917 — Decided June 19, 1917.
In an action to recover a penalty for violating the provisions of the
Pure Food law (Pamph. L, 1915, p. 665, § 1) commenced in the
small cause court, the Court of Common Pleas of the county
iu which the action is brought has jurisdiction to hear the case
on appeal.
On certiorari.
Before Justices Swatze, Bergen and Black.
For the respondent, Josiah StryJcer and John W. Wescott,
attorney-general.
For the prosecutor, Alvord & Tuso.
The opinion of the court was delivered by
Black, J. The question to be decided in this case is the
jurisdiction of the Common Pleas Court to hear a case on
appeal, in a suit brought in the small cause court, before a
justice of the peace, to recover a penalty for a violation of the
pure food statute. The defendant was charged with the vio-
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JUNE TJIRM, 1917. Ud
90 y, J, L. Dept. of Health of N. J. v. Monheit.
lation of section 1 of the supplement (Pamph. L. 1915, p.
665) to the Pure Food act. Rev,, Pamph. L. 1907, p. 485.
He was found not guilty by a jury in the small cause court.
The department of health appealed from the decision to the
Court of Common Pleas, in the county of Cumberland. That
court found the defendant guilty and imposed a penalty of
fifty ($50)* dollars, hence a writ of certiorari was allowed,
which' draws in question the jurisdiction of the Court of
Common Pleas. The grounds of attack are, that the suit
should have been commenced before the justice of the peace,
sitting as a magistrate, and that, by the original Pure Food
act {Pamph, L, 1901, p. 186, § 16), parties aggrieved may
appeal to the Circuit Court of the county, wherein said ac-
tion is had. Manifestly, this view of the prosecutor is un-
tenable, as is clearly demonstrated by the following pro-
visions in the statute law of the state. Thus, the Revised
Pure Food act, above cited {Pamph. L. 1907, p. 485, § 40;
Comp. Stat., p. 2574, § 40), provides "any and all penal-
ties prescribed by any of the provisions of this act shall
be recovered in an action of ^debt. * * * The pleadings
shall conform, in all respects, to the practice prevailing in the
court in which any such action shall be instituted." And in
the supplement above cited {Pamph. L. 1915, p. 665, § 5),
the statute under which the action in this case was brought,
it is provided : "Such penalties may be sued for and recovered
by the same boards and oflRcials, and in the same manner, as
provided for the recovery of penalties in the act to which this
act is a supplement." The act speaks of a court, the only ,
court, which a justice of the peace is empowered to hold is*,
the small cause court; by the Small Cause Court act {Pamph.
L. 1903, p. 251, § 80, as amended Pamph. L. 1904, p. 72, §"
80) it is further provided that from any judgment which may
be obtained in those courts, except such as may be given by
confession, an appeal is given to the Court of Common Pleas;
of the county.
The case of Ha r man v. Board of Pharmacy, 67 N. J. L..
117, however, is decisive of this case; there the. prosecutor
was convicted of violating the Pharmacy act ; the suit was to
Vol. xc. 29
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450 NEW JEKSEY SUPREME COURT.
Flyno V. N. Y., S. & W. R. R. Co. 90 N. J. L,
recover a penalty under the act; as in this case, the same point
was there made that the suit should have been commenced
before a justice of the peace sitting as a magistrate and not
in the small cause court; that case held the action was prop-
erly commenced in the small cause court.
We therefore conclude that the Court of Common Pleas
had jurisdiction to hear the case on appeal. The judgment
of that court was regular. The rules applying to summary
convictions have no application; it is not necessary that the
evidence in the court be set out or the procedure conform to
the rules governing summary convictions.
The judgment of the Common Pleas Court of Cumberland
county is affirmed, with costs.
MARY FLYXN, RESPONDENT, v. NEW YORK. SUSQUE-
HANNA AND WESTERN RAILROAD COMPANY, PROSE-
CUTOR.
Submitted June 6, 1917— Decided September 14, 1917.
1. A crossing flagman, employed by a railroad company engaged in
interstate and intrastate commerce, was struck and killed by the
engine of a trgin engaged in interstate commerce. Held, that the
Court of Common Pleas of New Jersey is ousted of jurisdiction
to award compensation under the New Jersey Workmen's Com-
pensation act. The Federal Employers* Liability act is exclusive.
2. Although the findings of the Court of Common Pleas as to the
facts in workmen's compensation cases are conclusive on appeal,
nevertheless the law arising upon undisputed facts is a question
of law for the court reviewing the decision to decide.
On certiorari.
Before Justices Swayze, Bergen and Black.
For the prosecutor, Collins & Corhin.
For the respondent, Edward F. Merrey.
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JUNE TERM, 1917. 451
90 N, J. L, Flynn v. N. Y., S. & W. R. R. Co.
The opinion of the court was delivered by
Black, J. The writ of certiorari in this case is to review a
determination of the Court of Common Pleas of Passaic
county, in a proceeding under the New Jersey Workmen's
Compensation act, brought by Mary Plynn, the widow of
James Flynn, deceased.
The trial court determined that the petitioner is entitled to
five ($5) dollars per week for a period of three hundred
weeks, beginning on the 30th day of April, 1916. The trial
court further found the prosecutor is a common carrier and is
engaged both in interstate and intrastate commerce, that
James Flynn was not employed by the prosecutor in inter-
state commerce, and thereupon the Federal Employers' Lia-
bility act does not apply. It is to review this latter finding
that the controversy is brought under review in this court.
The pertinent facts are: The deceased, James Flynn, on
March 23d, 1916, was employed by the prosecutor as a cross-
ing flagman at the Lyon street crossing in the city of Pater-
son; while thus engaged in the performance of his duties as
a flagman, with respect to a passing train, which was carrying
passengers and baggage from points in the State of New York
to various points in the State of New Jersey, he was struck
and killed by the engine of the train in the course of his
employment. Flynn crossed over the eastbound tracks of the
prosecutor, on the approach of an eastbound train, to ^a^ the
crossing, and while so engaged was standing near the west-
bound tracks and was struck and killed by the outer edge of
the breastpiece of an engine drawing a train on the west-
bound tracks, which was an interstate train. The question
therefore for solution, and the only one, is, was the deceased
at the time of his death engaged in an interstate act ? If so,
it is firmly settled by the recent decisions of our Court of
Errors and Appeals, in the case of Rounsaville r. Central RaU-
road Co., ande p. 176, and by the United States Supreme
Court, in the case of Erie Rcdlroad Co, v. WinfieJd (decided
May 2l8t, 1917), 244 U, S. 170, reversing 88 N. J, L. 619,
that the Federal Employers' Liability act of 1908 is ex-'
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452 NEW JERSEY SUPREME COURT.
Flynn v. N. Y.. S. & W. R. R. Co. 90 N. J. L.
elusive of the state act and ousts the Courts of Common Pleas
of the state of jurisdiction under the New Jersey Workmen's
Compensation act.
The courts, thus far, apparently have been unable to formu-
late any rule, sufficiently exact,. comprehensive and exclusive,
by which to test the quality of an act or series of acts as fall-
ing within, or without, the domain of interstate business.
Upon reflection, it would seem almost impossible to formulate
a rule applicable to the almost endless variety of circum-
stances and facts springing out of the intricacies of everyday
modern life, that will be of much practical use or aid. Tlie
application of the principle must be made to particular fact?,
as they arise, and by a process of exclusion and inclusion a
rule may perhaps be formulated in time from the decision
of such cases. There is already a long line of cases, in the
federal and state courts, showing the application of the prin-
ciple to the facts under discussion. It would serve no useful
purpose to collate or cite these decisions. The decisions in .
the United States Supreme Court, the .ultimate authority on
the point, are quite uniform when stating the principle to use
such language as this — the employe must be engaged in inter-
state business, or in an act which is so directly and imme-
diately connected with such business as substantially to form
a part or a necessary incident thereto. New York, &c., Rail-
road Co. V. Carr, 238 U. S, 260 ; or in work so closely related
to it (t. e., interstate transportation) as to be practically a
part of it. Shanks v. Delaware, &c,, Railroad Co,, 239 Id,
556; so, Louisville, dc. Railroad Co. v. Parker, 242 Id. 13.
We have been xmable to find any case in the federal courts
where this precise question has been passed upon. We are
referred to two cases, however, in the California Supreme
Court, both of which held that crossing flagmen engaged in
flagging, on a railroad where interstate trains were being
operated, were engaged in interstate conmierce. Southern
Pacific Co. V. Industrial Accident Commission (CaL), 161
Pac. 'Rep. 1139; Southern Pacific Co. v. Industrial Ac-
riflenf Commissionj Id. 1142. These cases, of coui*se, are
not binding precedents upon this court, but we think
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JUNE TERM, 1917. 453
90 y, J. L. Flyon v. N. Y., S. & W. R. R. Co.
these deflttsions are in harmony and accord with the spirit
and principle of the cases decided by the Supreme Court
of the United States. Notwithstanding this situation, it
is now urged by the defendant that the statute makes the
judgment of the Court of Common Pleas conclusive and bind-
ing as to all questions of fact. Pamph. L. 1911, p. 134, § 18 ;
Nevich v. Delaware, d'c. Railroad Co., ante p. 228; Hid'
ley V. Moosbrugger, 88 N. J. L. 161. The judgment of
the Common Pleas must be upheld if there is any evidence
in the case to support it. This, of course, must be accepted
as the law of the state, but in the case of Hulley v. Moos-
brugger, fiLpra, it was* said by Chancellor Walker, speaking
for tUe Court of Errors and Appeals, "Although the findiugs
of the Court of Common Pleas as to the facts of the case are
conclusive, according to section 18 of the act, and the de-
cision of the Supreme Court ♦ ♦ * and, therefore, are
conclusive here, yet, nevertheless, the law arising upon ascer-
tained facts is a question for the court reviewing the decision."
The finding of the trial judge that the deceased, James
Flynn, was not employed by the prosecutor in interstate com-
merce is not a finding of fact, it is a statement of law ; the
facts in the case are entirely undisputed ; it is a pure question
of law arising upon facts that are not disputed. We think
James Flynn at the time of his death was engaged in an act,
to use the words of the Supreme Court of the United States,
directly and immediately connected with interstate business,
as substantially to form a part or a necessary incident thereto,
and under the decision of the Supreme Court of the United
States, in the Winfield Case, supra, that fact ousted the Com-
mon Pleas Court of Passaic county of jurisdiction.
The judgment, therefore, of the Passaic Court of Common
Pleas is reversed, with costs.
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454 NEW JERSEY SUPREME COURT.
Jersey City v. Borst. 90 N, J. L,
MAYOR, ETC., OF JERSEY CITY, PROSECUTOR, v. KATHA-
RINE LOVELL BORST, AS NEXT FRIEND, RESPONDENT.
Submitted June 6, 1917— Decided September 14, 1917.
1. The supplement to the Workmen's Compensation act {Pamph. L,
1913, p. 230), which provides "that no person (i. e., employe of
the state, county or municipality) receiving a salary greater than
$1,200 per year" shall be compensated, under section 2 of the
original act {Pamph, L. 1911, p. 134), applies only to employes of
the class therein mentioned who were injured. It does not apply
to cases of death where dependents of employes are affected.
2. The Workmen's Compensation statute is a remedial law of^ prime
. import ; it should be liberally and broadly construed.
On certiorari.
Before Justices Swayze, Bergen and Black.
For the prosecutor, John Beniley.
For the respondent, Richard F. Jones.
The opinion of the court was delivered by
Black, J. This is a workmen's compensation case. The
certiorari was allowed to review the determination of Judge
George G. Tennant, in the Hudson County Common Pleas.
An award of $10 per week for three himdred weeks was made,
in that court, from May 3d, 1914. The facts are not dis-
puted. The point on review and for decision is a pure ques-
tion of law, involving the correct construction of the supple-
ment, approved March 27th, 1913 (Pamph L., p. 230), to the
Workmen's Compensation act, which was approved April 4th,
1911. Pamph. L., p. 134. The first section of that act pro-
vides "every employee who shall be in the employ of the state,
county, municipality * * ♦ shall be compensated under
and by virtue of section 2 to which this act is a supplement;
provided, however, that no person receiving a salary greater
than twelve hundred dollars per year, nor any person holding
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JUNE TERM, 1917. 455
90 N. J. L. Jersey City v. Borst.
an elective oflfiee shall be entitled to compensation ;" section 2 :
^Vhen any payment shall be due under the provisions of this
Supplement or the act to which it is a supplement/ the name
df the injured employee, or in case of his death, the names of
the persons to whom payment is to be made as his dependents
shall be carried on the pay roll,'* &c.
It is conceded that the respondent would be entitled to
compensation were it not for the proviso in the above sup-
plement. The facts, in brief, are: W. Hudson Lovell, the
deceased, was an employe of the mayor and aldermen of Jer-
sey City as an assistant fire chief, or assistant engineer, in
the fire department. On May 3d, 1914, while responding to a
fire call or alarm he was killed in a collision ; he was receiv-
ing pay at the rate of two thousand eight hundred and fifty
($2,850) dollars per year. He left him surviving an actual
dependent, Helen Katharine Borst, a granddaughter. We
think the judgment of the Court of Common Pleas is founded
iipon the correct construction of the statute and therefore
must be affirmed. The reasoning that carries the mind for-
ward to this conclusion may be briefly indicated as follows:
The original Workmen's Compensation act (Pamph. L.
1911, /?. 134) applies to municipal corporations and their em-
ployes. Allen V. City of MillviUe, 87 N. J. L. 356; affirmed,
88 Id. 693. Paragraph 19 of the ori^nal act {Pamph, L.
1911, p. 142) provides for the payment of compensation in
cases of death. It is significant, if not important, that the
title of the supplement, supra, Pamph. L. 1913, p. 230, is
identical in terms with the title of the original act, except "a
further supplement to an act entitled;" as stated, it is a sup-
plement to the original act ; now the ordinary meaning of the
word "supplement" doubtless is a supplying by addition of
what is wanting. Railway Sanvings Institution v. Mayor, £c,,
of Rahway, 53 Id. 48. It is a fair argument to say that the
supplement applies only to employes of the class therein men-
tioned who are injured. It does not apply to cases of death,
where dependents of employes are affected; this would seem
to be clear in view of section 2, supra, which provides that the
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456 NEW JEKSEY SUPREME COURT.
Jersey City v. Borst. 90 N. J. L,
name of the injured employe, "in case of his death, the
names of the persons to whom parent is to be made as his
dependents, shall be carried upon the pay roll." This con-
struction is not inconsistent but in harmony with section 1
of the 1913, page 230, supplement, supra,
A reason for this, if it is the true interpretation of the leg-
islative will, may, perhaps, be found in the fact, that an in-
jured employe of a mimicipal corporation usually receives his
full wages, from the municipality, while incapacitated from
personal injuries. It limits the application of section 11 of
the original act of 1911, page 134; so that, no injured em-
ploye himself, who receives "a salary greater than twelve hun-
dred dollars per year," should be entitled to secure compensa-
tion for personal injuries.
In other words, section 1 of the supplement, supra (Pamph,
L, 1913, p. 230), deals with^a designated class of injured em-
ployes, but leaves untouched the provisions of the act relating
to dependents, when death ensues. What was so aptly said by
Judge Vredenburgh, speaking for the Court of Errors and
Appeals, in the case of Beagle v. Lehigh, &c,, Coal Co., 82
N, J. L. 707, 710, Applies to the construction of the work-
men's compensation statute. This law, it will be noted by a
reference to its terms, is a remedial law of prime import, and
should be liberally construed. It should be broadly con-
strued. To a like eflEect is the case in the Supreme Court
of Errors of Connecticut. Ponders v. Hotel Bond Co., 89
Conn. 143; 93 Ail. Rep. 247.
The judgment of the Hudson Coimty Court of Common
Pleas is affirmed, with costs.
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JUNE TERM, 1917. 457
90 N, J, L, Materka v. Erie R. R. Co.
MARY MATERKA, ADMINISTRATRIX, ETC., RESPONDENT,
V. ERIE RAILROAD COMPANY, APPELLANT.
Submitted November 9, 1916 — Decided June 6, 1917.
1. It 19 for the jury to say what weight shall be given to the testi-
mony of a witness, having an opportunity to hear, standing at or
near the crossing where the accident occurred, and who testifies
that he did not hear the blowing of a whistle or the ringing of a
b^ll, in a grade crossing accident case.
2. It was not error in this case to refuse to direct a verdict in favor
of the defendant on the ground that there was no proof of negligence
on the part of the defendant, or because the decedent was guilty
of contributory negligence. They were both jury questions.
Holmes v. Pennsylvama Railroad Co., 74 N. J, L. 409; Wei»$ v.
Central Railroad Co., 76 Id. 348 ; Hoioe v. Northern RaUroad Co,,
78 Id. 683, distinguished.
On appeal from the Hudson Circuit Court.
Before Justices Trenchard and Black.
For the appellant, Collins & Corbin and George 9. Hobart.
For the respondent, Alexander Simpson.
The opinion of the court was delivered by
Black, J. This action was brought by the plaintiff, as ad-
ministratrix of Ferdinand Materka, to lecover damages for
the benefit of his widow and next of kin, by reason of his
death, on September 6th, 1912, by being struck by an east-
bound express train, at the Park avenue grade crossing, in the
borough of East Rutherford and Rutherford, Borgen county,
while he was crossing the tracks on foot ; at that crossing
there were four tracks, safety gates and a watchman. A rule
to show cause was allowed, reserving objections and exceptions
noted at the trial. The verdict was reduced to the sum of
four thousand ($4,000) dollars. The trial court refused to
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458 XEW JERSEY SUPREME COURT.
Materka v. Erie U. R. Co. 90 N. J. L.
set aside the verdict on the ground that it was against the
weight of evidence. The points argued by the appellant for
a reversal of the judgment are, first, there was no proof of
negligence on the part of the defendant; second, a verdict
should have been directed for the defendant because of con-
trihutory negligence of the decedent, Ferdinand Materka;
third, error in the charge of the trial judge, and in the re-
fusal to charge as requested, but this latter point involves the
same points as are in the first two, except as hereinafter noted.
This is the second trial of the case. The judgment recovered
in the first trial was reversed by the Supreme Court for trial
errors. The judgment of the Supreme Court was affirmed by
the Court of Errors and Appeals. In the report of the case
the facts are quite fully and satisfactorily stated. Materka
V. Erie Railroad Co., 88 N. J. L. 372.
The crux of the case is whether there was evidence, from
which the jury might find, that the decedent attempted to
make the crossing, while the safety gates were up and without
receiving any warning from the flagman, that the train,
which struck the decedent, approached the crossing without
giving the statutory signals, of ringing a bell or sounding a
steam whistle.
The record shows the following testimony :
David Harris, a witness, testified.
"^. Were the gates up when you crossed over?
".4. Yes. * * * I crossed into East Rutherford and I
saw this gentleman get off this trolley car and cross the rail-
toad tracks.
*'(?. Were the gates up when he crossed ?
"A, The gates were up on one, yes.
*'$. On your side?
"il. The side I crossed the gate was up on, yes.
"^. That is the side he entered the tracks from?
"A. That is the side he entered the tracks on.
*'(?. When he came from the trolley car and went on the
tracks the gates were up, I understand ?
''A. That is right, sir.
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JUNE TERM, 1917. 459
90 y, J, L. Materka v. Erie R. R. Co.
"0- After he got on the tracks what occurred ?
"4. Why; that gate on the Eutherford side went down.
''Q. Yee.
"^. And the gate on the East Eutherford side was up.
"(?. Yes.
"-4. And I passed a remark.
"^. You cannot tell what you said — just what you saw;
you saw this ?
"^. I saw this man cross the track and there was a train
coming down the track, and I said to myself, I don't think
he will get across, and with that I saw the man hit. * * ♦
'^Q, Did you hear any whistle or bell up to the time you
saw him hit ?
"A. I did not, sir."
On cross-examination.
"Q, You did not know it was coming?
"A. No, sir.
"^. You were not listening for it ?
"A. No, sir.
"^. Not paying any attention* to it at all ?
''A. No, sir.
"Q. I understand you to say, however, that you did see it
coming ; is that right, you did see tlie train coming before it
struck Mr. Materka ?
"A. Yes."
[Witness marks on a photograph, Ex. PS, where he was
standing at that time.]
Re-direct.
"^. Now, Mr. Hobart asked you if you were listening for
the express train ; you did not know it was coming until you
saw it, did you ?
"A. No, sir.
'^Q, And from the time you started across the crossing up
to and until the time you saw the express train, had you heard
any whistle or bell of any kind ?
''A, No, sir."
Genevieve Ruth Saxly, a witness standing at the crossing
at the time of the accident, did not hear any whistle before
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460 NEW JERSEY SUPREME COURT.
Materka v. Erie R. R. Co. 90 N, J. L,
the decedent was struck; she said she was not listening for
whistles.
Under the rule laid down in the cases, in the Court of
Errors and Appeals of this state, such as DcunsJcin v. Perm-
sylvania Railroad Co,, 83 N, J. L, 522, 526 ; Horandt v. Ceiv-
tral Railroad Co., 81 Id, 488; Waible v. West Jersey, £c..
Railroad Co,, 87 Id. 573 ; McLean v. Erie Railroad Co,, 69
Id, 57, 60; affirmed, 70 Id, 337, this evidence was for the
jury — it made a jury question. The point cannot be re-
moved from the domain of the jury.
The cases of Holmes v. Pennsylvania Railroad Co., 74 N, J.
L, 469; Weiss v. Qentral Railroad Co., 76 Id. 348; Howe v.
Northern Railroad Co., 78 Id. 683, distinguished. So, con-
tributory negligence of the decedent was also a jury question
under such cases as Brown v. Erie Railroad Co., 87 Id, 487;
Ferneiti v. West Jersey, &c., Railroad Co., Id, 268.
This disposes of the case, except it is further urged that
there was error in the refusal of the trial court to charge each
of two specific requests in reference to the statutory signals
and the operation of the crossing gates; each request covers
separate charges of negligence. The judgment must be re-
versed, so it is argued, because the trial judge permitted the
jury to base a verdict upon either ground, notwithstanding
the specific requests submitted by the defendant with respect
to each allegation of negligence. The court in the charge to
the jury had covered each ground fully, accurately and
clearly. The requests refused were, in effect, to^take the case
from the jury, hence this was not error, in view of the cases
above cited.
"The judgment of the Hudson Circuit Court is aflBrmed,
vrith costs.
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JUNE TEEM, 1917.. 461
90 N. J, L, Ross V. Com*rf Palisades Interstate Park.
P. SANFORD ROSS ET UX.. APPELLANTS, v. THE COMMIS-
SIONERS OF THE PALISADES INTERSTATE PARK,
RESPONDENT.
Argued Februarj- 20, 1917— Decided June 6, 1917.
1. Who is an expert on the value of land, under our decisions, must
be left very much to the discretion of the trial judge ; his decision
is conclusive, unless clearly shown to be erroneous in matter of
law.
2. The dominant circumstances forming the qualification of expert
witnesses as to land values consist of the fact either that they have
themselves made sales or purchases of other similar lands in the
neighborhood of the land in question, within recent periods, or
that they have knowledge of such sales by others.
3. The mere fact that a witness owns the land, but has no special
knowledge of values, does not qualify as an expert so as to give
an opinion as to the value of the land.
4. Valuing land taken under condemnation, underlaid with stone, the
stone should not be valued separately and apart from the land, 'out
it may be shown to what extent the land is enhanced in value
by the stone. The stone is a component part of the land.
5. It is not error to admit evidence of prices paid by the condemning
party for similar lands in the vicinity.
6. In order that the price paid for land in the neighborhood of that
being condemned may be eviden4;ial, the land must be shown to
be su'bstantially similar.
7. The land is to be valued in the condition in which it was on the
date of filing the petition and order, fixing the time and place for
the condemnation proceedings. Pamph. L, 1900, p. 81, § C.
On appeal from the Bergen Circuit Court.
Before Justices Tkenchard and Black.
For the appellants, Bedle & Kellogg and Alonzo Church,
For the respondent, Josiah Stryhr and John W. WescoU,
attorney-general.
The opinion of the court was delivered by
Black, J. This case is an appeal from the verdict of a
jury rendered in a condemnation proceeding, tried at the Bcr-
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463 NEW JERSEY SUPREME COURT.
Ross V. Com*rs Palisades Interstate Park. 90 N. J, L.
gen Circuit. The verdict of the jury was eight thousand
($8,000) dollars. The award of the commissioners was six
thousand six hundred ($6,600) dollars. The amount of land
sought to be taken was three and six (3.6) tenths of an acre.
The land under condemnation is situate in the extreme
northerly part of the borough of Fort Lee, Bergen county,
and lies between a line drawn parallel with the Hudson river
one hundred and fifty (150) feet west of the high-water line
of the Hudson river and the steep cliffs of the Palisades. The
tract extends about nine hundred and eighty (980) feet along
this line, while the distance from the line to the cliflEs is one
hundred and seventy (170) feet at the northerly end and one
hundred and fifty-five (155) feet at the southerly end. Ac-
cess to the land on the west is shut off by the steep cliffs. The
surface of the land is a steep slope from the base of the cliffs
to the easterly boundary. The land is bounded on the east
by other lands of the appellants, which extend easterly one
hundred and fifty (150) feet to the high-water line of the
Hudson river and from there to the exterior line for solid
filling.
The land in question, and the remainder of the same tract,
is wild, unoccupied land, the upland being covered with small
trees, underbrush and stones, the whole tract being under-
laid with slate and sandstone, and at the westerly end, at an
elevation of one hundred and twenty-three (123) feet, with
trap rock. There is no communication with the land by rail-
road, trolley or wagon road; none of the land under the
Palisades, north of the tract, has ever been used for industrial
purposes, and the nearest land under industrial development
is, two and six (2.6) tenths miles southerly in the adjoining
borough of Edgewater.
The grounds of appeal are thirty-eight in number. They
are argued, however, under eight (8) heads, in the appellants'
brief. They all challenge the rulings of the trial court and
allege trial errors as grounds for a rever&al of the judgment.
The principal ones, however, relate to the court's exclusion
of the opinion of appellants' experts as to the value of the
land taken. The witnesses offered by the appellants for this
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JUNE TERM, 1917. 463
90 N, J. L, Ross V. Com*r8 Palisades Interstate Park.
purpose were Mr. Frederick Dunham, a civil engineer; Mr.
Floyd S. Corbin, a reaf estate broker of water front and dock
properties in the harbor of New York; Mr. John H, Ehre-
hardt, a consulting engineer ; Mr. Edlow W. Harrison, a difi-
tinguished civil and consulting engineer. Mr. Harrison has
had long and varied experience in valuing railroad lands in
New Jersey for taxation, since 1884, particularly as to the
value of the railroad terminal lands in Hudson county. He
has been called as an expert on many features of the litiga-
tion involving the taxation of railroad property since the
passage of the Bailroad Tax act of 1884. Mr. Joseph E.
Snell is a civil engineer of Newark. Mr. P. Sanf ord Roes, the
appellant and owner of the property under condemnation, .
is an engineer and contractor. Mr. Dunham testified that he
had no familiarity with sales of property under the Palisades,
in the vicinity of the Ross property; that he had made no
effort to keep in touch with sales of land under the Palisades,
in the borough of Port Lee. Mr. Corbin had no familiarity
with the sale of any water front property, in the borough of
Fort Lee, or with the sale of any property anywhere, which
had the same physical characteristics and the same lack of any
means of communication, as the property under condemna-
tion, or the tract of land of which it formed a part. Mr.
Ehrehardt had not bought or sold property in Bergen county :
he had no knowledge of any sale of any land lying along the
Hudson river anywhere in Bergen county. Mr. Harrison tes-
tified that the nearest property to the Ross tract, of wldch he
had any knowledge, was the Koch property, which was located
one mile south of the Ross property, his familiarity with this
property being acquired by appraising it; he had no fa-
miliarity with values of land in the borough of Fort Lee, ex-
cept this one appraisal of the Koch property; he knew of no
sales of any property similar or like the Ross property;
furthermore, the record does not show any question overruled
by the trial court, put to him, as to the value, but it does show
that the trial judge said he would sustain the objection. Mr.
Snell testified that he had never purchased or sold any land
in the vicinity of the tract under condemnation ; that he had
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464 NEW JERSEY SUPREME COURT.
Ross v. Comers Palisades Interstate Park. 90 N. </. L.
no familiarity with the sale price of any land in that vicinity.
Mr. Ross testified that he had no knowledge of sales of water
front property under the Palisades north of the land under
condemnation; that he had made no effort to learn the sale
prices of such property ; he had no knowledge of either values
or purchase prices of any property in the borough of Fort
Lee, except the piece under condemnation and the tract of
which it was a part, which he purchased in 1882.
The primary question in this case for solution, then, is
whether, under our cases, it was error to reject the opinion of
these witnesses, on the value of the land under condemnation.
Who is an expert under our decisions must be left very much
to the discretion of the trial judge; his decision is conclusive,
unless clearly shown to be erroneous in the matter of law.
Manda v. Delaware, LacJcaivanna and Western Railroad Co,,
89 N. J. L, 327 ; New Jersey Zinc Co, v. Lehigh Zinc Co,,
59 Id. 189; Elvins v. Delaware, &c., Tel. Co., 63 Id. 243;
State V. Arthur, 70 Id. 425.
Our Court of Errors and Appeals, speaking on this precise
point, said : "Evidently, in the view of these authorities, the
most material circumstance forming this qualifilcation of
expert witnesses as to land values consists of the fact, either
that they have themselves made sales or purchases of other
similar lands in the neighborhood of the land in question
within recent periods, or that they have knowledge of such
sales by others. How recent the occurrence of such soles, in
point of time, and how near in location, and how nearly
similar in comparison must, of course, vary with the circum-
stances of each case, and it is therefore impossible to define
a general rule applicable to all cases." Broum v. New Jersey
Short Line Railroad Co., 76 N. J. L. 795, 797.
So, the court, in speaking of a former owner of land for
six or seven years, said : "Hence, to say nothing of personal
capacity or of study or practice, there was shown on his part
no opportunity to observe, and no actual observation, in the
locality of the land which fitted him to speak of its value.
The witness had no special knowledge of values, which,
bein^ imparted to the jurors, could aid them in the discharge
of their duty." Walsh v. Board of Education of Newark, 73
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JUNE TEEM, 1917. 4()5
90 N. J. L. Ross V. Com'rs Palisades laterstate Park.
N. J. L. 6^3, 647. The witness must have some special knowl-
edge of the subject about which he is called upon to express
an opinion. Crosby v. City of East Orange, 84 Id. 708, 710 ;
Elvins V. Delaware, &c., Tel. Co., supra.
A witness to be an expert must have more than a general
\ knowledge of the subject under investigation. Authorities
from other jurisdictions applying a different rule are not
binding on this court. It is suflScient to say, in the language
of Mr. Justice Dixon, that if in other states, a more liberal
rule is applied respecting the opinion of witnesses as to the
value of real estate; 'Hhe worthlessness of such testimony is
hardly a stronger reason for its rejection than the practically
limitless amount of it that might be produced." Laing v.
United New Jersey Railroad, £c., Co., 54 N. J. L. 576, 578.
In our reports the rule has been applied in the following
illustrative instances to the opinion of witnesses on the valua-
tion and damage to land. A witness has qualified as an expert,
who has a knowledge of sales of lots and portions of lands
similar to and in the immediate neighborhood of the con-
demned land; the land so sold was within a radius of two
miles from the land in question, and within a period of three
years from the date of the giving of the testimony. Brown v.
New Jersey Short TAns Railroad Co., supra.
A farmer is not an expert, as to the damage done to a
farm by the building of a railroad, other than for farming
purposes. Pennsylvania Railroad Co. v. Root, 53 N. J. L. 253.
Real estate agents residing six miles distant from the prop-
erty, who had nothing to do with property in the vicinity or
anywhere near it, are not experts on the question of rents.
Haulenbeck v. Cronlcnght, 23 N. J. Eq. ^J07; affirmed, 25 Id.
513.
Ordinary real estate agent is not an expert as to the value
of the private title in a strip of land lying on a public high-
way, separated by the street from private property, nor ai? to
damages done to the o\ynQT of the abutting property, by appro-
priating that strip to railroad purpose?^. lAiing v. United
New Jersey Railroad, &c., Co., 54 N. J. L. 576. Real estate
agent is not an expert to give his opinion on difference be-
VoL. xc. 30
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466 NEW JERSEY SUPREME COURT.
, Ross V. Com*T8 Palisades Interstate Park. 90 N, J, L,
tween value of the property either to rent or sell estimated
with the railroad in the street and the value without the rail-
road. Thompson v. Pennsylvania Railroad Co., 51 Id. 42.
Not simply because witness resided on the property or because
the witness owned and resided upon adjoining property. Riley
V. Camden, itc, Railway Co., 70 Id. 289. A real estate agent ^
is not an expert as to the amount of depreciation caused by
the existence of a sanitary sewer running through the prem-
ises. Morrell v. Preiskel, 74 Atl. Rep. 994. Nor is a real
estate agent an expert, who is familiar with prices of property
in the neighborhood, as to the value of land after the construc-
tion of a tunnel with its present value. Pennsylvania, New
Jersey and New York Railroad Co. v. Schwarz, 75 N. J. L.
801.
The fact that a real estate agent on one occasion was able
to lease a farm having a water-supply, in preference to one
which had not, affords no basis for an opinion concerning the
difference in rental value between the two. Crosby v. City of
East Orange, 84 lA^ J. L. 708.
Knowledge of real estate values in the locality does not
qualify witness to testify to the diminution in value of prop-
erty, by reason of the destruction of Bhade frees standing in
the highway in front of it. Burrouffh v. New Jersey Gas Co.,
88 N. J. L. 643. Or such knowledge in a township. Van
Ness V. New York, &c.^ Tel. Co., 78 Id. 511. Valuation of
adjoining railroad terminals is a basis of qualification of mem-
bers of board of assessors making the valuation. lA)ng Dock
Co. v. State Board of Assessors^ 89 Id. 108. An experienced
real estate man of large experience is not an expert on the
question as to the fair value of the connection and use of a
sewer condemned. Park Land Corporation v. Mayor, ifr., of
Baltimore, 98 Atl. Rep. 157. A witness with some knowledge
of real estate is not an expert on the value of shade trees.
Elrins v. Delaware, £c., Tel Co., 63 N. J. L. 243.
From the rule thus stated, and its application made by our
courts, it was not error for the trial court to exclude the
opinion of these witnesses, on the value of the land under
condemnation.
Nor was it error to admit the opinion of the witness Wil-
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JUNE TERM, 1917. 467
90 N. J, L. Ross V. Corners Palisades Interstate Park.
liam 0. Allison. He had bought and sold property in the
borough of Fort Lee of the same peculiar quality; he quali-
fied, as an expert, under the cases above cited (Brotvn v.
New Jersey Short Line Railroad Co,, supra) ; nor was it
error to exclude evidence as to the value of the stone in place,
under the case of Manda v. Delaware, &c,. Railroad Co,,
supra. The stone in place is a part of the land ; it cannot be
valued separately and apart from the land, to what extent, if
any, the value of the land is enhanced by the stone may be
shown. The value of the land, as stone land suitable for
quarrying is a proper subject of consideration, both by the
witnesses and the jury in fixing the amount of just compen-
sation to be awarded, but not the value of the stone separately
and apart from the land. The value of the land is not
measured by such facts. The stone is a component part of the
land. Reading, >£c,. Railroad Co, v. Baltliaser, 119 Pa, St,
472, 482; 126 Id, 1, 10; Norfolk, &c„ Railway Co, v. Davis,
58 If. Va, 620, 626 ; St, Louis, i&c. Railway Co, v. Cartan
Real Estate Co., 204 Mo. 565, 575; Gardner v. Inhabitants
of Brookline, 127 Mass. 358; Tn-State Tel, dec, Co, v. Cos-
griff, 19 N. D. 771; 26 L, R, A. (N. S,) 1171; 10 R. C. L.
129, § 112; Lew, Em. Dom. (3d ed.), §?- 724, 725; 15 Cyc,
758. These cases cited as supporting a 'different principle are
not in point: Dewey v. Creat Ijokes Coal Co., 236 Pa. St.
498, 500; Cole v. Ellwood Power Co., 216 Id. 283, 290;
Seattle, (fr.. Railroad Co. v. Roeder, 30' Wash, 214.
Nor was it error to admit the testimony of Frank Clark,
whether the stone in question would make concrete. So, it
was not error to admit in evidence the prices paid by the con-
demning party for similar lands in the vicinity. Curley v.
Mayor, &c., Jersey City, 83 N, J, L, 760; Hadley v. Free-
holders of Passaic, 73 Id, 197. So, it was not error to ex-
clude the purchase price of the Carpenter tract; it was not
substantially similar land or of the same peculiar quality.
The purchase price included the quarry, machinery and good-
will of a quarry plant in operation. Manda v. Delaware, &c„
Railroad Co,, supra; Brown v. New Jersey Short Line Rail-
road Co,, 76 N, J, L. 795; Manda v. City of East Orange,
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468 NEW JERSEY SUPREME COURT.
Ross V. Comers Palisades Interstate Park. 90 N. J. L,
S2 Id, 686. Nor wag it error to admit the opinion of Dr.
Ilenr}' B. Kiimmel, state geologist of New Jersey, with re-
gard to the danger of stones falling from the cliffs along the
Palisades, at the Ross property. Nor was it error, on cross-
examination, to permit the witness Charles W. Stanisforth to
testify as to the specifications of the dock department of New
York City] it was admissible to test his knowledge of the
various specifications which he said he had prepared. Nor
was it error to exclude Joseph E. Snell from answering the
question : "In your opinion does the taking of the three and
six-tenths acres from Mr. Ross^ property injure the remain-
ing?" when the witness was permitted to answer the follow-
ing question : "Does the taking of the three and six-tenths
acres render this property less available for commercial pur-
poses?" ITnder the third ground of appeal, to the witness
Frederick Dunham, this question was asked : "Do you know
whether the railroad has been laid out further up the river ?"
This was overruled on the ground that the best evidence as
to whether a railroad had been laid out would be the papers,
if any, in the secretary of state's oflBce. This was not error,
but under this head, counsel for the appellants argued at some
length that the trial court excluded relevant evidence tending
to show the adaptability of the land for commercial purposes ;
it is sufficient to say, in answer to this, that the record, so far
as we have been able to find, does not in fact show any such
evidence excluded by the trial court. Nor do we find any
error in the charge of the court to which error is assigned.
This is contained in the thirty-first to the thirty-eighth
grounds of appeal. The precise point of alleged error in the
charge of the trial court is not made clear, and it hardly needs
any extended discussion. The charge is in conformity to the
cases in our reports, on the points excepted to. Packard v.
Bergen Neck Railway Co,, 54 N, J, L, 553; Manda v. City
of Orange, 82 Id, 686 ; Manda v. Delaware, &c.. Railroad Co.,
supra.
The charge of the court that the jury were obliged to value
the land in the condition in which it was on the 12th day of
January, 1914, which was the date of the filing of the petition
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JUNE TERM, 1917. 469
90 N. J. L. Society, &c., v. Bd. Conservat*ii & Developm't.
and order thereon, fixing the time and place for commencing
the condemnation proceedings, was correct, as required by
statute. Pamph. L, 1900, p. 81, § 6 ; 2 Comp. Stat., p. 2184,
§ 6 ; Manda v. Delaware, &c.. Railroad Co,, supra.
Finding no error in the record, the judgment of the Bergen
County Circuit Court* is aflBrmed, with costs.
THE SOCIETY FOR ESTABLISHING USEFUL MANUFAC-
TURES, PROSECUTOR, V. BOARD OF CONSERVATION
AND DEVELOPMENT, NORTH JERSEY DISTRICT
WATER SUPPLY COMPANY ET AL., RESPONDENTS.
Argued June 6, 1917 — Decided September 14, 1917.
Upon an «pplication by the District Board of Water-Supply Com-
missioners, under the act of 1916, page 129, to the Board of Con-
servation and Development, created by the act of 1915, page 426,
for its approval and consent to the diversion of water for an
additional water-supply to the cities of Newark and Paterson, the
Board of Conservation and Development has power to attach
reasonable terms and conditions to its approval and consent,
which are germane to the subject-matter. For such terms and
conditions, in this case, see this opinion.
On certiorari.
Before Justices Swayze, Bergex and Black.
For the prosecutor, lluinphrcys d' Sumner and Gilbert
Collins.
For the state, John W. Wescott, attorney-general.
For the city of Xewark, Harry Kalisch.
For the city of Paterson, Francis Scott.
For North Jersey District Water-Supply Commission,
Spaulding Frazer.
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470 NEW JERSEY SUPREME COURT.
Society, &c., v. Bd. Conservat'n & Developm*t. 90 N, J. L,
The opinion of the court was delivered by
Black, J. Approval of the application of the North Jersey
District Water-Supply Commission and a consent to the di-
version of vrater from the Wanaque river, as proposed therein,
for an additional water-supply for the cities of Newark and
Paterson, was given by the Board of Conservation and Devel-
opment on the 19th day of December, 1916. This approval
wa« made under a petition filed by. the North Jersey District
Water-Supply Commission on the 9th day of October, 1916.
The Board of Conservation and Development was created
by an act of the legislature approved April 8th, 1915. Pamph,
L,, p, 426. The certiorari was issued in this case to test
the legality of such approval and consent.
The approval and consent was given subject to the follow-
ing terms and conditions :
1. The North Jersey District Water-Supply Commission
shall pay or cause to be paid to the state on behalf of each
of the municipalities supplied with water under this approval
such annual charge as is now made or may be hereafter author-
ized by law.
2. This approval shall not become operative unless said
commission shall have filed with this board within ninety
days from date hereof its written agreement accepting the
terms and conditions hereby imposed.
3. The North Jersey District Water-Supply Commission
shall in good faith begin the construction of the storage
reservoir mentioned in its application within one year from
the date of this approval and shall complete the same within
fi/e years.
4. The maximum diversion from the Wanaque river author-
ized by this approval is an average of fifty million gallons
per diem for any period of thirty consecutive days.
5. The dry-season flow of the Wanaque river below the dam
must at all times be maintained at a minimum of twelve
million gallons per diem,
6. This approval is given subject to the vested rights of
all persons, corporations, or municipalities affected by the
proposed plan.
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JUNE TERM, 1917. 471
90 y, J, L, Society, &c., v. Bd. Conservat'n & Developm't^
7. In the event that any of the conditions herein imposed are
violated and such violation shall be established to the satis-
faction of this board, this assent sliall thereby be abrogated.
The prosecutor has valuable water rights in the Passaic
river, of which the Wanaque river is a tributary.
The ground of attack is, that under section 6 of the. act of
1916, page 131, the jurisdiction of the Board of Conservation
and Development is confined to giving or withholding its
consent to the proposed diversion and to nothing else; in
other words, the terms and conditions, as set forth above, on
which the approval and consent were given, renders it illegal.
A correct solution of this question involves, of course, a critical
examination of the statutes under which these two boards
were created ; a short summary or history of such legisla-
tion is as follows :
A state water-supply conmiission was created by an act of
the legislature approved June 17th, 1907 {Pamph, L., p. 633) ;
among other things, it provides for the approval of plans for
municipal corporations obtaining new or an additional source
of water-supply. It may by that act "either approve such
application, reject it entirely, or approve the same subject
to such reasonable terms and conditions as the commission
may prescribe.^' Section 3, this act, was referred to in
Mundy v. Fountain, 76 N, J, L, 701; by the act approved
April 8th, 1915 {Pamph. L., p, 426), the Board of Conserva-
tion and Development, the defendant in. this suit, was created
as the successor to the state water-supply commission, re-
pealing all acts inconsistent therewith (section 16) ; but "shall
succeed to and exercise all the rights and powers and per-
form all the duties now exercised and performed or conferred
and charged upon the state water-supply commission" (sec-
tion 5) ; 'The Board of Conservation and Development shall
have full control and direction of all state conservation and
development projects and of all work in any way relating
thereto, except such work as is conferred upon other boards
not included within the provisions of this act" (section 7) ; by
the act approved March 16th, 1916 {Pamph. L., /?. 128), the
state was divided into two water-supply districts, to be known
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472 NEW JERSEY SUPREME COrRT.
S(K?iety, &Cm v. Bd. Conservat'n & Developm't 90 N, J. L,
respectively as the North Jersey Water-Supply District and
the South Jersey Water-Supply District; the act approved
March 16th, 1916 {Pamph. L., p. 129), provides for the ap-
pointment of district boards as provided and authorized by
the previous act, and defining their powers. It was under
this act that the commissioners of the North Jersey Water-
Supply District petitioned for the consent which is the dis-
puted point in this litigation; section 6, which provides
"upon the filing of such petition the said district water-supply
commission, after obtaining the consent of the state water-
supply commission, or its successor, to the diversion of waters
for sucli water-supply," shall proceed id formulate plans, &c.
V The argument is, this section provides for a bare consent and
nothing more. But this ignores the legislation and the power
granted in that legislation to the Board of Conservation and
Development above cited. We tliink it is too plain for argu-
ment that under this legislation the Board of Conservation
and Development had not only implied but express power to
attach to its approval and consent the terms and conditions
above set forth, as shown in the record. In addition to what
seems to us to be the clear expressed intention of the legis-
lature, these terms and conditions are all strictly germane to
the subject-matter that was then before the board for action ;
they are necessary incidents to make effective, if not efficient,
the approval and consent of the board. The construction con-
tended for by the prosecutor is too narrow aUd artificial ; it
would strip such approval and consent of its vitality, and, as
we think, in direct opposition to the expressed intention of
the legislature, viz., that the Board of Conservation and De-
velopment had the power to impose those terms as conditions
precedent to its approval and consent. Tlie only other ques-
tion is whether such terms and conditions imposed were rea-
sonable. We think there is nothing unreasonable in any of
them. There is nothing else mooted in the record which calls
for discussion.
The certiorari in this case is dismissed, with costs.
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CASES AT LAW
DBTERMIKXD IN TBB
COURT OF ERRORS AND APPEALS
OF THX
STATE OF NEW JERSEY
MARCH TERM, 1917.
THOMAS DELKER, RESPONDENT, v. THE BOARD OF
CHOSEN FREEHOLDERS OF THE COUNTY OF ATT.AN-
TIC ET AL., APPELLANTS.
Argued March 16, 1917— Decided June 18, 1917.
1. It is the judgment, not the opinion, of a court below which is
brought before an appellate coutt for review. If the judgment
of the lower court varies from its decision, it may be corrected
only by amendment in that court; in the court above it can
only be affirmed, reversed or modified.
2. The publishing of official advertisements for municipal corpora-
tions in newspapers is neither work, labor nor materials fur-
nished by the owners of the papers to such advertising custom-
ers under Pamph. L. 1912, p, 593.
3. The act of 1909 (Pamph, L., p. 92; Comp. Stat., p. 3762), which
regulates the price to be paid for public advertising, is not re-
pealed by implication by act of 1912 (Pamph, L., p. 593) (there
being no express repealer, specific or general), which latter act
relates to expenditures by public bodies for the doing of work
or the furnishing of materials or labor.
4. Although a municipal corporation advertises for bids or pro-
posals for publishing all official advertising in newspapers, it is
not required to award a contract to the lowest bidder, but may
contract for such advertising at the price fixed in Pamph, L.
1909, p. 92.
473
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474 COURT OF ERRORS AND APPEALS.
Delker v. Freeholders of Atlantic. 90 N. J. L.
On appeal from the Supreme Court.
For the respondent, Clarence L. Cole,
For the appellants, Enoch A. Uighee.
The opinion of the court was delivered by
Walker, Chancellor. The board of chosen freeholders
of the county of Atlantic called for sealed bids or proposals
for the publication or printing of all public notices or adver-
tisements authorized by the board, including monthly and
annual financial statements.
In response, bids were submitted by the South Jersey Star,
Frank Breder, Atlantic City Review, Atlantic City Daily
Press and Atlantic City Union, and were as follows: South
Jersey Star, seven-eightlis cents per line; Frank Breder, six-
eighths cents per line; Atlantic City Review, four cents per
line for the first insertion and three cents per line for subse-
quent insertiohs; Atlantic City Press, ten cents per line for
the first insertion, eight cents per line for subsequent inser-
tions; Atlantic City Union, ten cents per line for the first
insertion and eight cents per line for subsequent insertions.
The proposals were referred to the printing committee, and
the minutes of the board sliow that, on motion, a contract was
awarded to the Atlantic City Review and Atlantic City Press
at the legal rate as given in the bid of the Atlantic City Press.
These two were not the lowest bidders.
The prosecutor-respondent sued out a certiorari from the
Supreme Court to test the legality of the award. That court
in a per curiam held that the award of the contract was at a
figure much in excess of the statutory limitati(m, and set the
same aside, with costs. This appears to refer to the total cost
of the advertising, which would exceed (according to a stipu-
lation in the cause) the $500 limit of expenditure, without
advertising for proposals and awarding the contract to the
lowest bidder, as provided by the act of 1912, infra. The re-
spondent, the board, has appealed to this court."
It is urged as a ground of appeal that the judgment in the
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MARCH TERM, 1917. 475
90 y, J, h. Delker v. Freeholders of Atlantic.
Supreme Court is not in accord with its opinion, in that the
judgment sets aside the proceedmgs, with costs, whereas the
opinion directed the setting aside of the contract, with costs.
It is not the opinion, but the judgment, of the court below,
which is before this court for review. The reasoning of the
judges in a court below is always considered, and, so far as it
tends to support the conclusion reached by that tribunal, is
given due weight by an appellate court; but the judgment
entered in the court below, even if it is different from the
court's decision, cannot be amended in the court above ; it can
only be aflSrmed, reversed or modified there.
The judgment entered upon the opinion of the Supreme
Court in the case at bar recites that that court was of opinion
that the proceedings under review should be set aside, and so
ordered, with costs, the opinion concluding, as above men-
tioned, that the contract should be set aside. The form of
the judgment, however, if a matter of importance, could only
be corrected by the court which rendered it. See Hansen v.
De Vita, 76 N. J, L. 330. However, the form of the judg-
ment before us is of no importance in the view which we
have reached, for were it one setting aside the proceedings
under review instead of the contract it would have to be re-
versed. And this brings us to the meritorious question in
the controversy, which is one of statutory construction.
Two statutes are involved. The first is Pamph. L, 1909,
p. 92 ; Comp, Stat,, p. 3762, and the other is Pamph, L. 1912,
p, 593. The title and pertinent section of the first reads as
follows :
"An act to regulate the price to be paid for oflBcial adver-
tising.
"I. Hereafter the price to be paid for publishing all oflBcial
advertising in the newspapers, published in cities of the first
and second class, or in counties of the first and second class
in this state, shall be at the rate of ten cents per agate (or
hY2 point) line for the first insertion, and eight cents per
agate line for each subsequent insertion; provided, that in
computing such charge per line, the lines shall average at
least seven words.'*
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476 COURT OF ERRORS AND APPEALS.
Delker y. Freeholders of Atlantic. 90 N. J, L.
And the second:
"An act. relating to expenditures by public county, city,
town, township,' borough and village bodies.
"1. Where and whenever hereafter it shall be lawful and
desirable for a public body of any county, city, town, town-
ship, borough or village to let contracts or agreements for the
doing of any work or for the furnishing of any materials or
labor, where the sum to be expended exceeds the sum of five
hundred dollars, the action of any such public body entering
into such agreement or contract, or giving any order for
the doing of any work or for the furnishing of any materials
or labor, or for any such expenditures, shall be invalid un-
less such public body shall first publicly advertise for bids
therefor, and shall award said contract for the doing of said
work or the furnishing of such materials or labor to the low-
est responsible bidder; provided, however, that said public
body may, nevertheless, reject any and all bids."
The prosecutor, who bid for the South Jersey Star, was the
lowest bidder, and claimed that the act of 1912, which pro-
vides tliat where a public body in any county, &c., shall make
a contract or agreement for the doing of any work or the
furnishing of any materials or labor, where the sum to be
expended exceeds $500, the action of such body shall be
invalid unless it shall publicly advertise for bids and shall
award the contract to the lowest responsible bidder, required
that the contract should have been awarded to him. We do
not think that this act applies at all to tlie case at bar.
The advertising under which the bids were received was
for proposals for the publication or printing of all public
notices or advertisements authorized by the board of chosen
freeholders, including monthly and annual financial state-
ments, and that the successful bidder, or the ones to whom
the contract should be awarded, must enter into a written
contract to publish such legal notices as should be author-
ized by the board for the price for which they bid, &c. The
sort of advertising here called for was clearly official adver-
tising, as provided for in section 1 of the act of 1909, and
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MARCH TERM, 1917. 477
90 N, J. L. Delker v. Freeholders of Atlantic.
»
was not the doing of work or the furnishing of materials or
labor comprehended in the act of 1912.
It is urged on behalf of the respondent that the act of
1912 repealed the act of 1909 by implication, there being no
express repealer, specific or general. The Supreme Court
held that the two acts could stand together and seems to have
treated them as being in pan materia. We think they are
not; that they contemplate two entirely different subjects,
the one of 1909 the ma.tter of official advertising and the one
of 191*2 the doing of public work, or furnishing materials
therefor.
The act of 1909 does not require advertising for bids, and,
.consequently, the appellant was not required to award the
contract to the lowest bidder. This court, in Trenton v.
Shuw, 49 N, J. L, 638, held that under a provision in the
charter of Trenton requiring that all contracts for work or
materials for any improvement should be given to the lowest
bidder, did not apply to a contract to furnish rubber hose for
the fire department, because that was not an improvement.
In that case advertisement had been made for bids, but the
contract was not awarded to the lowest bidder and the action
of the common council was set aside in the Supreme Court
but was upheld in this court- The doctrine of Trenton v,
Shaw is applicable to the case at bar.
The judgment under review must be reversed, with costs.
For affirmance — None.
For reversal — The Chancellor, Garrison, Bergen,
Black, White, Heppenheimer, Willlvms, Taylor,
Gardner, JJ. 9.
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478 COURT OF ERHOBS AND APPEALS.
EberUng v. MutiUod. 90 N. J, L.
EMIL EBERLING, BY RUDOLPH EBERLING, HIS NEXT
FRIEND, RESPONDENT, v. MARIUS MUTILLOD, APPEL-
LANT.
RUDOLPH EBERLING, RESPONDENT, v. MARIUS MUTIL-
LOD, APPELLANT.
Argued March 21, 1917— Decided July 18, 1917.
1. The infant plaintiff, a boy sixteen years old, testified that he
had been in the business of delivering newspapers on defendant's
estate to him and his tenants, for about a yeaf, and that on the •
day he was bitten by defendant's dog he was going across de-
fendant's lawn on the regular route he had always taken, hav-
ing entered through a gate which was open. jffeW, that even if
he were a trespasser on defendant's premises he was entitled to
recover damages for the injury resulting from the biting by the
dog, under the facts in this case, if it were owned by the de-
fendant (which was admitted), and if defendant knew that the
dog had previously bitten other people, of which there was evi-
dence, and unless the plaintiff was guilty of contributory negli-
gence, aside from the mere fact of trespassing, and he was not,
according to his own testimony.
2. Tlie mere fact of trespassing upon the grounds of another is
not, in and of itself, contributory negligence which will defeat
an action to recover damages for injuries inflicted by a vicious
animal belonging to defendant and allowed to be at large upon'
the premises.
3. The question whether a person entering upon the grounds of
another without invitation or license, and then and there injured
by an attack by a vicious animal of the owner allowed to be at
large upon the premiscfs, exercises the degree of care which rea-
sonable and prudent persons would use under like circumstances,
is a jury question.
On appeal from the Hudson County Circuit Court.
For the appellant, Frederick K. Hopkins,
For the respondent, Harlan Besson,
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MARCH TERM, 1917. 479
90 N. J. L, Eberling v. MatiUod.
The opinion of the court was delivered by
Walker, Chancellor. These cases arose out of injuries
resulting to a boy from being bitten by a dog. They were
tried together before a jury and were argued together here.
In the first action the plaintiff, Emil Eberling, a minor, sued
by his father as next friend, and in the other action the father
sued for himself.
In March, 1915, the plaintiff, Emil Eberling, was employed
in delivering newspapers afternoons. He was a boy sixteen
years old.
Two verdicts were rendered, one for the boy of $400 and
one for his father for $23.50, against the defendant, Marine
Mutillod, in the Hudson County Circuit Court by a jury, and
judgments were thereupon entered. The defendant has ap-
pealed to this court.
The plaintiff, Emil Eberling, was a newsboy living in the
borough of Secaucus with his father, from whom he had not
been emancipated. The defendant, Marius Mutillod, .was a
florist, owning an estate in the borough of Secaucus, Hudson
county. He was the owner of a large St. Bernard dog, which
he permitted to run at large on his property. It was estab-
lished that his dog had attacked a man named Fred Montigel
when the defendant, its owner, was present, some time before,
and ruined a pair of trousers for which the defendant paid.
There was also testimony that the dog had bitten another
man, who had told the owner of it. It appeared from the tes-
timony that it was the custom of the newsboy plaintiff to enter
the gate in the northern part of Mr. Mutillod's property and
cross the lawn to one of the houses situate on his estate. On
March 13th, 1915, while delivering papers to Mr. Mutillod's
tenants, the boy was attacked by the defendant's dog, which
was roaming at large upon the latter's estate. The dog bit the
boy several times in the hip. The bites were severe and he
required the care of a doctor for some time.
The defendant's land was only partially enclosed by a fence
in which there were large gates, which were open most of the
time, and in that situation the defendant's dog was permitted?
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480 COURT OF ERRORS AND APPEALS.
Eberling v. Mutillod. 90 N. J, L,
by him to run at large on the premises. The boy entered
through an open gate at the time he was bitten.
Defendant's counsel moved to nonsuit at the end of plaint-
iff's <;ase, and for a direction of a verdict at the close of the
testimony, both of which motions were denied, and the cases
were submitted to the jury, who found for tlie plaintiffs, as
stated. These are the only grounds of appeal.
It is perfectly obvious that the defendant-appellant is not
entitled to a reversal of the judgments. The reason is that
• there was evidence to support them, and this court will not
review the findings of fact in a court below beyond ascertaining
that there* was evidence to support such findings. Lamed v.
MacCarthy, 85 N. J. L, 589.
The plaintiffs, under the facts in this case, were entitled to
go to the jury if they showed — first, that the defendant owned
the dog ; second, if the boy was bitten by the dog and injured ;
and third, if the defendant knew that the dog had previously
bitten other people. Tliere was testimony establishing de-
fendant's liability and the plaintiff's right to recover on all of
these grounds. Ownership of the dog was admitted by the
defendant.
Counsel for appellant relies upon DeOray v. Murray, 69
N, J. L. 458, but in our judgment the doctrine in that case
is not applicable to the one at bar. It was there held that
the owner of a vicious dog will not be liable for injury in-
flicted by it if it escapes from control, where the owner has
exercised a degree of care commensurate with the danger to
others which would follow from such an escape. That is not
this case. The owner here failed to control the dog. He
appears to have regarded it, or at least to have treated it, as
being docile and not vicious.
The appellant contends that the infant plaintiff was not
upon his premises by invitation or license, but as a trespasser,
and that, therefore, he is not liable to respond in damages for
the injury to the boy inflicted by the biting by the dog. The
doctrine of invitation and license need not be considered, for
recovery was properly had even if the boy were a trespasser.
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MARCH TERM, 1917. 481
90 N. J. L. Eberling v. Mutillod.
The doctrine is that in an action for injuries caused bv an
attack by a vicious animal kept by a person on his premises,
the mere fact that the injured person was a trespasser at the
time will not, as matter of law, defeat the action.
A leading case on this subject is that of Marble v. Ross, 12-t
Maiis. 44. There was evidence tending to show tliat the
plaintiffs' intestate received his injuries in the defendant's
pasture, where he was at the time a trespasser, and that when
he went upon the premises he knew there was a stag there,
and understood that it was vicious. It was not contended that
the defendant placed the stag in the pasture for the purpose
of keeping off trespassers or of having tlie stag frigliten or
injure anyone. Mr. Justice Morton said (at /?. 48) :
"In the case at bar it appeared that the defendant know-
ingly kept a vicious and dangerous stag in a large pasture,
and the plaintiffs' intestate, while in the pasture, was attacked
and injured by it. The defendant requested the court to rule
that if the plaintiffs' intestate was a trespasser in the pasture,
they could not recover. We ar^ of opinion that the court
rightly refused this ruling. The mere fact that the intestate
was upon the defendant's land without his consent would not
defeat the right of action. The unlawful character of his act
did not contribute to his injury or affect the defendant's
negligence. * * *
"The fact, therefore, that the intestate was committing an
unlawful act at the time of his injury would not prevent his
recovery. Nor does the fact that this unlawful act was a
trespass upon the defendant's land necessarily have this effect.
It is true that, as a general rule, a trespasser who is injured
by a pit or dangerous place upon the land of another, exca-
vated or permitted for a lawful purpose, cannot recover dam-
ages therefor, because the owner of the land owes no duty
to him, and therefore was not negligent to him; but it is;
clear that the oT^Tier of land cannot wantonly injure a tres-
passer. If he does, he is liable civilly as well as criminally.
The law holds the keeper of an animal known to be dangerous,
which injures another, to the same degree of responsibility as
in cases of wanton injury, and the fact that the person injured
Vol. xc. 31
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48;J COURT OF ERROES AND APPEALS.
Eberling v. MutUlod. 90 N, J. L.
is trespassing does not exonerate such owner from the conse-
quences, of his negligence."
And at p. 49 :
"If Marble voluntarily and negligently put himself in a
position which was likely to result in injury, and the injury
happened, his negligence is a contributing cause, and he could
not recover. The fact of his knowledge that the stag was in
the pasture and was dangerous would be important evidence
tending to show negligence, but we cannot say, as matter of
law, that it would conclusively prove it. This might depend
upon the size of the pasture, the position of the stag in it, and
other circumstances which are proper for the consideration
of the jury. The test is, whether the plaintiffs' intestate, in
entering the pasture, exercised that degree of care which rea-
sonable and prudent men use under like circumstances. This
is a question of fact for the jury upon all the evidence.''
We think that Marble v. Ross well states, the law of the
case under consideration. The boy had gone upon the defend-
ant's estate ever}' day for a year to deliver his papei-s, and at
the time he was attacked by the dog he was on the regular
route he had always taken. He was not guilty of any con-
tributory negligence, if he is to be believed when lie says that
he did nothing to axcite the dog, which he did not see until
it was about five feet away from him. He had only seen the
dog once before, and, although someone had told him that it
would bite, the tenants said he should not be seared because
it would not bite or do anything like that.
In no aspect of the cases at bar can it be said <ls matter of
law that the defendant was not liable. The cases were prop-
erly submitted to the jury, and the judgments entered upon
the verdicts must be affirmed, with costs.
For affirmance — The Chancellor, Chief Justice,
SwAYZE, Bergen, Minturn, Kalisch, Heppenheimer,
Williams, Gardner, JJ. 9.
For reversal — None.
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MARCH TERM, 1917. 483
90 N. J. L. Fox V. Forty-four Cigar Co.
VORIS FOX, APPELLANT, v. FORTY-FOUR CIGAR COM-
PANY, RESPONDENT.
Argued March 9, 1917— Decided June 18, 1917.
1. While a party cannot impeach a witness called by him, which
is done by showing by general evidence that he is unworthy of
belief, he may, nevertheless, show that such witness has made
other and different statements from those to which he has testi-
fied. That is contradicting, not impeaching, the witness.
2. A communication made by a party to an attorney after the
latter's employment has terminated, is not privileged, and the
attorney may be compelled to disclose the information so
acquired.
3. When a party writes a letter to a member of the bar whose
relation as counsel to the former had ceased, if, in fact, there
ever had been such relationship between them, which letter con-
tained statements tending to prove a fact concerning the ques-
tion of master and servant, which was pertinent to the issue,
the letter is not a privileged communication and is competent
evidence against the party writing it.
On appeal from the Supreme Court.
For the appellant. Bourgeois & Coulomh.
For the respondent, Clarence L. Cole.
The opinion of the court was delivered by
Walker, Chancellor. This was an action at law for
damages growing out of an accident to the plaintiff by col-
lision with an automobile while he and another were riding
on a motorcycle along a public road in Atlantic county. On
August 16th, 1915, the plaintiff and his companion were
traveling along the road on the motorcycle, when an automo-
bile driven by a director and officer of the defendant com-
pany approached and a collision occurred, which demolished
the motorcycle and injured the plaintiff.
One defence was that at the time of the accident the car
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484 COURT OF ERRORS AND APPEALS.
Fox V. B^orty-four Cigar Co. 90 'N. J. L.
was not being used for the purposes of the defendant com-
pany, and therefore the company was not liable to the
plaintiff.
During the progress of the trial, for the purpose of showing
that tlie ear was being used for the purposes of the company,
and for the purpose of showing an inconsistent statement
made by Max Lipschutz, the assistant treasurer, certain letters
to W. Frank Sooy, Esquire, a member of the bar, were offered
and admitted in evidence. After the testimony had been con-
clude<l, the letters were excluded by order of the court, to
which an exception was noted. The judge then directed a
verdict in favor of the defendant, to which exception was
taken, and the plaintiff appealed.
The defendant company in its answer admitted thai on the
day of the accident it was the registered owner of a certain
touring car which was being driven by Max Lipschutz, who
was a stockholder, director and officer of the company, but
denied that the car was being drivT?n by him as such stock-
holder, officer, director, agent or employe.
Max Lipschutz was called by the plaintiff and testified
that he was assistant treasurer of the defendant company,
whose president was his father, Benjamin Lipschutz, and
whose assistant secretary was George M. Lex; that the de-
fendant did quite extensive advertising through New Jersey
by signs. He testified to the genuineness of a letter dated
December 15th, 1915, as to his own and Lex's signatures
thereon. Asked what was the object of his tour through
South Jersey on the day in question he answered that he had
promised his sister, who was sick, a little ride and outing for
her friends, and it was for that purpose alone that he took
them out that afternoon. Asked whether at that time he was
engaged on the business of the company, he answered that he
always looked around (meaning for and at the signs), but
that the idea of taking them out that day was for pleasure
alone. He could not remember whether he stated to the offi-
cers of the company that he was going out on the business of
the company that day. Shown the letter again and asked to
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MAKCH TERM,. 1917. 485
90 N. J. L. Fox V. Forty-four Cigar Co.
tell whether he informed the sooretary that he was out on the
business of the company that day, he first answered "No" and
then "Yes." He afterwards said taat he had not gone out to
inspect the signs on that day.
W. Frank Sooy, Esquire, counselor-at-law, was called by
the plaintiff and testified he was one of the firm of Bolte,
Sooy & Gill; that he met Mr. Lipschutz, Sr., and Mr. Lips-
chutz, Jr., and talked the situation over with them; that he
was notified by the defendant company that he was represent-
ing Max Lipschutz; that he was never formally employed by
the company; that he handed the letter in question to Mr.
Stem, who was associated with Messrs. Bourgeois & Coulomb,
attorneys for the plaintiff, to carry out an agreement he had
with Mr. Stern as to the form of answer that would he filed
by 'the company, leaving out, as defendants, Max Lipschutz
and his father.
Benjamin Lipschutz testified that he instructed his son
Max on the day. in question not to take his sister out, but to
attend to certain business; that the car had l)een owned by
the company for a couple of years and was bought to enter-
tain customers and for other business; that it was used by
his son, by Mr. Funk (secretary of the company) and Mr.
Lex; that it was primarily bought for the purposes of the
company and the benefit and convenience of its officers, and
also for the purpose of taking out his sick daughter.
In view of the testimony of the Lipschutzes — father and
son — to the effect that the young man was not out on the
business of the company that day, it became highly important
to the plaintiff to have in evidence the letter from the assistant
secretary to Mr. Sooy. in which it is stated, inter alia, that
Max Lipschutz would testify at the trial that he was driving
the car, comhining hoik business and pleasure.
The following is a copy of the letter :
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486 COURT OF ERRORS AND APPEALS.
Fox V. Forty-four Cigar CJo. 90 N. J, L.
^'Benjamin Lipschutz, president and treasurer; Mahlon A.
Funk, secretary and sales manager; Max Lipsehutz,
assistant treasurer; George M. Lex, assistant secretary.
Forty-four Cigar Company
Incorporated.
Lipschutz's Adlon
44 Cigars
Cigars
Business established by Benjamin Lipschutz, 1893.
Main office and factory
N. E. cor. 11th and Wharton streets, Philadelphia.
P. 0. address, Southward Station.
Address all communications to company.
Bolte, Sooy & Gill,
21 Law Building,
Atlantic City, N. J.
December 15th, 1915.
Attention of W. Frank Sooy, Esq.
Gentlemen :
The writer has your letter of the 13th inst., addressed to
Mr. Max Lipschutz.
The answer as filed by the insurance company is about
what we expected, nevertheless, the policy that they issued to
us calls for business and pleasure, and as Mr. Max Lipschutz
was an officer of the company, we feel, under the terms of
the contract, that he had a perfect right to drive the car.
You can rest assured that Mr. Max Lipschutz at the trial
will testify.
First — That the company owned the car.
Second — That he was driving the car, combining both
pleasure and business.
Third — That he is an officer of the company.
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MARCH TERM, 1917. 487
90 N. J, L. Fox V. Forty-four Cigar Co.
In order to fulfill your wishes in the matter, I am having
a postscript in this letter which is signed by Mr. Max Lips-
chutz.
Very truly yours,
"44" Cigar Company, Inc.,
Geo. M. Lex,
L-AH Asst Sec.
P. S.
W. Frank Sooy, Esq.,
The facts As covered by Mr. Lex above will be testified to
by me at the trial. •
Very truly yours.
Max Lipsohutz."
The letter was offered to contradict Max Lipschutz, and as
an admission by the company. Counsel for the defendant
states in his brief that there is not the slightest evidence that
the writer, who signed himself "assistant secretary,'^ was
such, or that he had authority to bind the company. This is
evidently a misconception on the part of the learned counsel
who argued the case for the defendant. Max Lipschutz tes-
tified that he was the assistant treasurer, and that Mr. Lex
was the company's assistant secretary. As to whether they
had authority to bind the company was, in all the circum-
stances of the case, at least, inferable. The question i*emains,
Was the letter properly excluded ? We think not. It should
have been admitted and the case submitted to the jury.
Counsel for the defendant argues that the attempt to put
the letter in evidence was for the purpose of impeaching the
plaintiff's witness. This is not so; the attempt was to con-
tradict the witness. The inhibition is only that a party call-
ing a witness will not be permitted afterwards to impeach his
general reputation for truth or veracity by general evidence
tending to show him to be unworthy of belief. Ingersoll v.
English, 66 N, J. L. 463. A party to a suit is not precluded
from proving the truth of any particular fact by competent
testimony in direct contradiction to that to which any of the
witnesses called by him may have testified. Scrieber v. Public
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488 COURT OF ERRORS AND APPEALS.
Fox V. Forty-four Cigar Co. 90 N. J. L,
Sewice Railway Co,, 89 N. J. L. 183. It is always allowable
to show that a witness has made other and different state-
ments than those to which he testifies. Vice Chancellor Pit-
ney, in Thorp v. LeihrecU, 56 N. J. Eq. 499 (at p. 502),
states that the rule forbidding a party calling a witness to
offer evidence for the purpose of impeaching his general char-
acter for truth and veracity, falls far short of forbidding the
paity to show by any legitimate evidence that the witness lias
testified to what is not true in a matter material to the issue.
This rule was approved by this court in Biuchanan v. Bur
chanan, 73 Id. 544 (at p. 546). Althou^i, in Tlwrp v. Dei-
brechi and Buchanan v. Bucluinan, the witnesses called by
complainants were defendants, the rule is not restricted to
such witnesses — that is, witnesses who are adversary parties,
but is as broad as the statement in Buchanan v. Buchanan
(at p. 516), that "the rule against impeachment denies the
right to impeach the general reputation of the witness for
truth, but does not deny the right to show that the whole or
any part of the testimony of the witness is untrue." In fact,
counsel for defendant concedes this in his brief, where he says:
"While the law permits one who calls a witness to contradict
him, it does not permit impeachment." Impeachment, as
shown, is an attack upon a witness' general reputation for
truth and veracity ; and as that which was attempted in this
case was not such an attack, but only a contradiction of the
witness' statement, the letter was admissible upon that score.
It is next objected on behalf of the defendant that the
letter was a privileged communication by defendant addressed
to the attorneys, Messrs. Bolte, Sooy & Gill. While ad-
dressed to them, it was marked for the "Attention of W.
Frank Sooy, Esq.," who appears to have had charge of the
matter, so far as his firm was concerned with it, if at all.
Mr. Sooy was called as a witness by the plaintiff and a^ked
whether he, or his firm, represented the defendant com-
pany, and answered that he would rather tell what they did ;
that he did not know how to answer the question rightly.
lie also stated that he was advised that he was representing
Max Lipschutz, and that Judge Starr, he thought it was,
would take care of the defendant company. As a fact. Judge
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MARCH term;, 1917. 489
90 N. J. L. Fox V. Forty-four Cigar Co.
Starr did represent the company, filed their answer and tried
the ease. It is a fact, also, that Mr. Sooy's bill was made to
Max Lipschutz and paid by him. Besides, if Messrs. Bolte,
Sooy & Gill were retained by the defendant, their representa-
tive capacity ceased on December 11th, 1915, when they re-
ceived a letter from the defendant, signed by the assistant
secretary, Ijcx, in which the company said : "Please leave the
insurance company attend to looking after the "44" Cigar
Company's interests and you look after the interest of Mr.
Benjamin Lipschutz and Mr. Max Lipschutz, personally, as
they no doubt have arranged for."
There is no privilege as to communications made to an at-
torney after his employment has terminated. 4 Wigm. Ev.,
§ 2304; 40 Cyc. 2366,
These two letters were declarations by the company which
were admissible in evidence, the one of December 11th to
show that the firm of Bolte, Sooy & Gill did not represent
the defendant company, at least after that date, and the one
of December 15th that the company owned the car, and that
Max Lipschutz was one of its officers who had a right to drive
it, and was driving it on business as well as pleasure.
The remaining contention on behalf of the defendant is
that the testimony failed to disclose that Max Lipschutz, the
driver of the automobile at the time of the accident, was a
servant of the corporation defendant, engaged on its hvsiness.
Without deciding this question on the evidence which was be-
fore the court at the time of the direction of the verdict for
the defendant, it is apparent, as stated, that if the letter of
December 15th, 1915, had been in evidence, it might have
been inferred — if the jury found the other questions raised
by the pleading and evidence in favor of the plaintiff — that
the defendant company was liable for the consequences of the
accident which was the subject of the controversy in the suit.
Xo citation of authority is necessary to support so plain a
proposition.
The letter of December 8th, 1915, from the defendant
company to Messrs. Bolte, Sooy & Gill, which is referred to
in the letter of December 11th, and which indicates that that
firm represented the Lipschutzes — father and son — and not
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V
490 COUET OF EEEOES AND APPEAJ^S.
Gaff ney v. Illingsworth. 90 N. J. L.
the defendant company, was pertinent evidence and should
have been admitted; not so the letter of January 25th, 1916,"
written to Messrs. Bolte, Sooy & Gill by Max Lipschutz, per-
sonally, in which he enclosed his own check, with thanks* to
Mr. Sooy, or the finn (it not being stated which), for ser-
vices rendered. This was properly excluded.
The judgment of the court below must be reversed, to the
end that a venire de novo^ may be awarded.
For affirmance — None.
For reversal — The Chancelloh^ Garrison, Swayze,
Trenchard, Bergen, Minturn, Kalisch, Black, White,
Heppenheimer, Williams, Taylor, Gardner, J J. 13.
JOHN GAFFNBT, RESPONDENT, v. WILLIAM H. ILLINGS-
WORTH, APPELLANT.
Argued March 13, 1917— Decided June 18, 1917.
1. Under the Practice act {Pamph, L. 1912, p. 377, § 32), and
rules 72 and 73 annexed, and Supreme Court rules, 1913, Nos.
131, 132 and 219, a judge of the Circuit Court has power to
grant a new trial because of inadequate damages awarded by
the verdict of a jury, and, under rule No. 122, to impose terms
that if the defeated party pays a certain sum within a specified
time, the rule to show cause why a new trial should not be
granted shall be discharged, otherwise made absolute. Semble:
that the trial court could impose such terms without the aid of
statute or rule of court
2. The granting of a new trial rests in the sound discretion of the
trial court, and, as it does not settle definitively the rights of
the parties, it is not appealable.
On appeal from the Essex County Circuit Court.
For the appellant, M. Casewell Heine,
For the respondent, Qrosken & Moriarty.
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MARCH TERM, 1917. 491
90 N. J. L. GaflPney v. lUingsworth.
The opinion of the court was delivered by
Walker, Chancellor. This action was brought in the
Essex County Circuit Court for damages for personal injury
suffered by the alleged negligence of defendant. It was tried
before Judge Dungan and resulted in a verdict for the
plaintiflE in the sum of $190.25, and costs. Rules to show
cause were taken . by plaintiff and defendant, respectively,
and, upon argument, the court discharged defendant's rule
and made an order granting to plaintiff a new trial as to
damages only, provided, that if the defendant paid $480.50,
within ten days, the plaintiff'*^s rule should be discharged.
The defendant did not make the payment, and the plaintiff's
rule became absolute. The propriety of the Circuit Court
judge's action in this regard is drawn in question by the
appeal.
The defendant argues that upon common law principles
a trial court has no power to set aside a verdict as inadequate
and to grant a new trial as to damages only. Without pausing
to. consider the force of these particular objections, a perfect
answer is found in the Practice act {Pamph, L. 1912, p. 377),
which provides, in section 32, that the Supreme Court shall
prescribe rules for that court and for the Circuit and Com-
mon Pleas Courts, and that sudh rules shall supersede (so far
as they conflict with) statute and common law regulations
theretofore existing, and that, until such rules be made, the
rules thereto annexed shall be deemed the rules of the court.
Rules 72 and 73 (at p. 397) are. as follows:
"72. In case a new trial is granted it shall only be a new
trial of the question or questipns with respect to which the
verdict or decision is found to be wrong, if separable.
"73. When a new trial is ordered because the damages are
excessive or inadequate, and for no other reason, the verdict
shall be set aside only in respect of damages, and shall stand
good in all other respects."
The Supreme Court in 1913 made rules to take effect De-
cember 1st, 1913, and, among them, adopted rules 72 and 73
annexed to the Practice act •(1912), making them rules 131
and 132 of those then promulgated, and provided in rule 219
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49-^ COURT OF ERRORS AXD APPEALS.
Gaffney v. Illingsworth. 90 N. J, L.
that the rules of the Supreme Court should, so far as appro-
priate, be applicable to the practice of the several Circuit
Courts. The appropriateness and applicability of these rules
cannot be doubted. Therefore, the trial judge had tlie right
to grant a new trial on the sole question of the inadequacy
of the damages by virtue of the statute and rules mentioned,
the question of damages being clearly separable from that of
liability; and the only question remaining is, had he the
power to couple the rule for a new trial with terms, namely,
that if the defendant paid a certain sum within a specified
time, the rule should be discharged?
Counsel for appellant contends that the imposition of the
terms mentioned upon the defendant was unwarranted. He
cites no authority to sustain this proposition.
Quite aside from any question of the court's inherent
power to impose terms, the appellant is here again met with
a positive rule of the Supreme Court, which provides that
the judge to whom an application for a rule to show cause
whether a new trial should be granted, shall exercise the same
discretion in granting such rule as was then exercised by the
court, and shall prescribe the terms, that is, the terms upon
which the rule may be granted. Supreme Court Rules, 1913,
No. 122.
The power of the court in granting a new trial upon the
ground that the damages are excessive, upon terms that a new
trial shall be had unless the plaintiff will accept a certain
sum named, less than that awarded by a verdict, is too well
established to be questioned. It would swm to follow, by
parity of reasoning, that when a new trial is granted because
the damages are inadequate, the court may impose like terras,
that is, terms to the effect that if the defeated party will pay
a certain sum, greater than that awarded by the verdict, the
rule will be discharged; subject,. doubtless, to the power of
an appellate court to vacate any such terms when they appear
to be an abuse of discretion. Xo such showing is made on
the record before us, and this makes it inappropriate for us
to give consideration to the appellant's other contention,
namely, that the verdict, as it stands, is adequate and proper
and evinces no prejudice or partiality on the part of the jury.
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MARCH TERM, 1917. 493
90 N.J. L. Gaffney v. Illingsworth.
As to whether or not the verdict is adequate and proper, is,
on application for a new trial, a matter of sound discretion
in the trial court, and in the absence of an abuse of discre-
tion, the appellate court cannot review the trial court's action.
And with tlie question of damages, apart from such discre-
tion, we have nothing to do.
These views lead to an affirmance. But affirmance also is
to be rested upon another ground, namely, that the order
under review is not appealable.
An appeal, which was substituted by the Practice act
(1912) for a writ of error, lies only when the decision sought
to be reviewed has not proceeded from a matter resting in
discretion, but has settled definitively in the suit or proceeding
the rights of the parties. Eames v. Stiles, 31 N. J. L. 490,
494; Defiance Fruit Co, v. Fox, 76 Id. 482; Knight v. Cape
May Sand Co., 83 Id. 597; Handford v. Duchastel, 87 Id.
205. The proceedings of the Circuit Court in a common law
action are reviewable only after final judgment. Taylor Pro-
vision Co. V. Adams Express Co., 72 Id. 220.
It is obvious that the decision in question does not de-
finitively settle the rights of the parties in the cause. A
finality would eventuate from a judgment resulting from a
new trial granted. Besides, as stated, the question of grant-
ing a new trial is a matter of sound discretion^ 3 -Bl. Com.
392. That the granting of a new trial rests in the discre-
tion of the court is fully established by all authorities.
Ililliard on New Trials, § 6, citing Gray v. Bridge, 11 PicJc.
188, wherein (at p. 191) it is held that the decision of that
question is not appealable. And our Supreme Court, in
Mitchell V. Erie RaUroad Co., 70 N. J. L. 181, held (at
p. 183) that in the Circuit Courts the matter of granting a
new trial is discretionary, and not reviewable upon error.
The judgment under review will be affirmed, with costs.
For affirmance — The Chancellor, Garrisox, Swayze,
Trenciiard, Bergen, Mintfrn, Kalisch, Black, AViiite,
Heppenheimer, Williams, Taylor, Gardner, JJ. 13.
For reversal — Xone.
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494 COURT OF ERRORS AND APPEALS.
AttorDey-GeDcral v. Verdon. 90 JV. J, Lt.
THE ATTORNEY-GENERAL, EX REI^ HUDSON COUNTY
QUARTER SESSIONS, PLAINTIFF IN ERROR, v. WII--
LIAM P. VERDON, DEFENDANT IN ERROR.
Argued NovenAer 29, 1916— Decided October 11, 1917.
1. A proceeding in contempt, the sole purpose of which is the pun-
ishment of the alleged contemner, and the vindication of the
dignity and authority of the court, is not reviewable by an ap-
pellate tribunal, in the absence of legislative authority, except for
lack of jurisdiction in the court in which the proceeding is had.
2. Section 2 of "An act providing for the review of conclusions and
judgments for contempt of court" (Pamph. L. 1884, p. 219;
Cofiip. Stat.f p. 1736, § 138), makes it mandatory upon the Su-
preme Court in all appeals taken thereunder to rehear the matter
of contempt upon which the conviction was founded, de tioro,
both upon the law and upon the facts.
3. A person who has been proceeded against in a court of law in
this state, on a charge of contempt, the sole purpose of the pro-
ceeding being to punish the alleged contemner and vindicate the
dignity and authority of the court, is not, as a matter of right,
entitled to have the procedure conducted by the submission of
interrogatories.
On error to the Supreme Court, whose opinion is reported
eo nomine. In re Verdon, 89 N, J. L. 16.
For the plaintiff in error, George T, Vickers, assistant
prosecutor of the pleas^ and Robert H, McCarter.
For the defendant in error, Harlan Besson and Merritt
Lane.
The opinion of the court was delivered by
GuMMERE, Chief Justice. William P. Verdori, the de-
fendant in error, was adjudged by the Hudson County Quar-
ter Sessions to be guilty of a contempt of that court, by rea-
son of certain newspaper publications reflecting upon it, and
tending to bring it into disrepute. The proceeding was in-
stituted by a rule to show cause. At the hearing upon the re-
turn of this rule Verdon appeared and insisted that the court
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MARCH TERM, 1917. 495
90 N. J. L, Attorney-General v. Verdon.
should not proceed against him by the taking of testimony
to try the question of contempt, but should submit interroga-
tories to him for his answers thereto. His claim was over-
ruled, and witnesses were called and examined by the assistant
prosecutor over his objection, whereupon Mr. Verdon an*
nounced that he elected to stand mute. At the close of the
testimony the judgment of the court was pronounced and
thereupon Verdon appealed to the Supreme Court, "in ac-
cordance with the statute in such case made and provided,"
to review the judgment against him both upon the law and
the facts. Upon the hearing of the appeal the Supreme
Court considered that the Quarter Sessions in refusing to
submit interrogatories to Verdon, violated a fundamental
right vested in him ; that in proceeding to judgment in dis-
regard of that right it exceeded its jurisdiction; and there-
upon ordered that the judgment of the Quarter Sessions be
set aside, and for nothing holden, and that the record be re-
mitted. Prom the judgment entered upon this order the
attorney-general appeals.
A proceeding in contempt, the sole pui*pose of which is the
punishment of the alleged contemner, and the vindication of
the dignity and authority of the court, is not reviewable by
an appellate tribunal, in the absence of legislative authority,
except for lack of jurisdiction in the court in which the pro-
ceeding is had. Seastream v. New Jersey Exhihition Co., 72
N. J. Eq. 377. This principle is equally applicable to com-
mon law courts and to equity tribunals; and where a person
adjudged guilty of contempt in a court of law seeks to review
the judgment upon the ground of want of jurisdiction, the
proper means for obtaining such review is by taking out a
certiorari from the appellate tribunal. Croasdale v. Quarter
Sessions, 88 N. J. L, 506; 89 Id. 711.
In 1884, however, the legislature enacted a law entitling
the person adjudged to be guilty of contempt by a court of
law inferior in ii*^ jurisdiction to the Supreme Court, to ap-
peal to the Supreme Court for a review thereof both on the
law and the facts (Comp. Stat., p. 1736) ; and this is the
statute under which Verdon sought a review in the present
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496 COUET OF EREORS AND APPEALS.
AttorDey-General v. Verdon. 90 N, J. L.
case. Section 2 of the act provides the method of procedure
to be followed by the Supreme Court in all appeals taken
under it. The legislative mandate is that upon the petition
of a person convicted of contempt by any court of law in-
ferior in its jurisdiction to the Supreme Court, he may have
that conviction immediately certified and sent to the latter
tribunal, together with all proceedings touching the same,
and then declares that the Supreme Court "shall be invested
with jurisdiction, and required to rehear the matter of con-
tempt upon which the conviction was founded, both upon the
law and upon the facts, which shall be inquired into and as-
certained by depositions, or in such other way or manner as
the court above shall direct; and it shall be required to give
such judgment in the premises as to it shall seem to be lawful
and just under all the circumstances of the case, to be en-
forced in such way and manner as it shall order and direct."
The manifest purpose of the act is to afford the appellant
a trial de novo both upon the law and the facta, before an
entirely impartial tribunal.
It is, of course, true that if in pronoimcing the judgment
complained of by him the Court of Quarter Sessions over-
stepped its jurisdiction, Verdon would have been entitled to
review the judicial action by certiorari. Croasdale v. Quar-
ter Ses^ns, supra. But it is equally true that it was within
his election to avail himself of the benefit given him by the
statute of 1884, and have the question of the truth of the
charge laid against him tried out and determined in the man-
ner provided by the statute, by a tribunal which had no in-
terest in the matter involved ; and, having made that election,
the attorney-general was entitled to held him to it. The
action of the Supreme Court in remitting the record to the
Quarter Sessions in order that the case might there be retried,
was, as it seems to us, in disregard both of the right of Mr.
Verdon to have an adjudication by the appellate tribunal on
the law and the facts, and also in disregard of the right of the
attorney-general to have Mr. Verdon held to the election
which he had made.
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MARCH TERM, 1917. 497
90 N. J, L. Attorney-General v. Verdon.
The failure of the Supreme Court to proceed under the
statute requires a reversal of its judgment, and a remission of
the record to it in order that it may, in the language of the
statute, rehear the matter of contempt upon which the con-
viction was founded, both upon the law and upon the facts,
by the taking of depositions, or in such other way or manner
as it shall deem advisable, and render such judgment thereon
as shall seem to it to be lawful and just under all the circum-
stances of the case.
On account of the importance of this matter, not only to
the defendant, but to the public generally, we deem it proper
to say that we are not in accord with the view of the Supreme
Court that a person who has been proceeded against in a court
of law in this state, on a charge of contempt, the sole pur-
pose of the proceeding being to punish the alleged contemner
and vindicate the dignity and authority of the court, is en-
titled, as of right, to have the procedure conducted by the sub-
mission to him of interrogatories, in accordance with the prac-
tice existing at common law. In fact, in this state no settled
practice seems to exist. As was said by Mr. Justice Dixon,
In re Cheeseman, 49 N. J. L, 115, 143, sometimes a rule to
show cause has been allowed without an affidavit on a mere sug-
gestion ; sometimes an attachment has been issued without a
rule to show cause ; sometimes punishment has been inflicted
forthwith on the offender's confession, when brought in by
the writ, without interrogatories ; and sometimes the penalty
has been imposed on the offender's admissions made uhder
the original rule, without either writ or interrogatories*
Having pointed out the unsettled state of the practice, Mr.
Justice Dixon then declared (and in this declaration we fully^
concur) that "these various steps are manifestly not jurisdic-
tional, except to the extent of laying before the court matters-
which constitute a contempt, and affording the party accused
a fair opportunity of denying or confessing their truth."
Mr. Yerdon had that opportunity afforded him. Instead
of taking advantage of it, and either confessing or, denying
the truth of the charge against him, he saw fit to stand mute.
Having so elected it cannot be said with any justice tliat he
Vol. xc. 32
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498 COURT OF ERKOES AND APPEALS.
Attorney-General v. Verdon. 90 N, J. L..
was deprived of a fundamental right. Nor could he, by
adopting the course pursued by him, inject into the case the
question of the effect to be given to his denial of the charge,
in case he had made such denial — that is, whether such denial
would have been conclusive of the matter in issue. The Court
of Quarter Sessions having afforded him full opportunity to
deny the charge against him, and he having declined to avail
liimself of that opportunity, the court was entirely within its
jurisdiction in proceeding to judgment on the testimony
which had been submitted to it.
One other matter remains to be referred to. Although we
are not called upon to pass upon the conclusiveness to be
given, in the court of first instance, to the alleged con-
temner's denial of the charge laid against him, it is important
tliat we should express our opinion of its effect when made
upon the retrial of the matter in the Supreme Court. The
act of 1884 not only prescribes the procedure to be adopted,
but, by necessary inference, the effect to be given to the evi-
dence, including that of the alleged contemner. The court
is to determine the truth of the charge by depositions taken,
or in such other way as it may deem just and proper. That is
to say, it was the legislative intent that the very truth of the
matter should be determined by the appellate court, and that
judgment should be rendered accordingly, the same weight
to be given to the testimony of the appellant as would be
given to it in any ordinary legal procedure.
The judgment under review will be reversed, and the record
remitted to the Supreme Court, to be there proceeded with
as above indicated.
Kalisch, J. (dissenting). I have reached the conclusion
that the appeal should be dismissed upon the fundamental
ground that no appeal lies from the Supreme Court to this
court, in a proceeding for contempt, where, as in this case,
the proceeding is purely to punish the contemner for the pur-
pose of .vindicating the dignity of the court. Dodd v. Una,
40 N. J. Eq, 672, 715.
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MARCH TERM, 1917. 499
90 N. J, L, Attorney-General v. Verdon.
The case cited is valuable to illustrate the inflexibility of
the common law rule that no appeal was countenanced in a
proceeding for contempt where the sole purpose was to punish
the contemner for contumacious conduct. And that learned
jurist, Mr. Justice Depue, emphasized the common law on
the object (on p. 718J when he said : ' "If the case brought
up was capable of being treated as the action of the Chancellor
taken with a view simply of vindicating the dignity of his
court, I would vote to dismiss the appeal." If it will be borne
in mind that in that case the appeal was founded on the claim
that the order contemned was one without the jurisdiction of
the Chancellor to make, it becomes at once manifest that the
line of demarcation which Judge Depue draws between the
appealability of a proceeding in contempt, the object of
which is to afford a method of relief inter partes, and where
it is of a criminal nature to punish contemptuous conduct in
the presence or with respect to the authority or dignity of the
court, is both logical and sound. But this is on the assump-
tion that the court whose jurisdiction is challenged had gen-
eral jurisdiction of the subject-matter and of the party pro-
ceeded against.
In Fraihk et d. v. Herold, 64 N, J. Eq. 371, the appellants
were adjudged guilty of a contempt and were fined and
sentenced to imprisonment for a period of sixty days, by the
Court of Chancery, for willfully violating a restraining order
of that court. The appeal was dismissed by this court upon
the ground that the proceedings were punitive in their char-
acter, taken solely for the purpose of vindicating the authority
and dignity of the court, and were, consequently, not review-
able. And, in the later case of Seagtream v. New Jersey
Exhibition Co., 72 N. J. Eq, 377, decided in 1906, this court,
speaking through the present learned Chief Justice (on p,
378), said: *The proceeding was instituted solely for the
purpose of punishing alleged contemners, to vindicate the
dignity and authority of the court. Such a proceeding is not
reviewable by an appellate tribunal, except for lack of juris-
diction in the court in which the proceeding is had."
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500 COURT OF ERRORS AND APPEALS.
Attorney-General v. Verdon. 90 N. J. L,
This language obviously refers to the court exercising
oiiginal jurisdiction whose authority or dignity has been con-
temned, and not to an appellate court invested by the legisla-
ture with authority to review contempt of inferior courts.
And it was evidently with this situation in view that the
legislature, in 1909, passed the remedial statute conferring
upon a person or corporation adjudged in contempt by the
Court of Chancery, for acts done or omitted elsewhere than in
the presence of the court, the right of appeal from such adju-
dication to this court. Comp. Stat., p. 452, § 113a.
Although the cases referred to arose in the equity branch,
nevertheless they are in point on the question discussed, for
the reason that the legal principle governing an appeal in
contempt cases, except as modified by statute, is the same as
on the law side. But before leaving this topic it is well to
allude here to the fact that the legislature, in 1884, enacted
a statute by which an appeal is given, in a proceeding for con-
tempt, except from the Orphans' Court to the ^Prerogative
Court. This statute will be dealt with in extenso later on,
for it is upon the construction to be given to it in conjunction
with the common law that the present case must turn.
From what has been said it is apparent that there is no
legal difficulty in agreeing to the proposition laid down by the
learned Chief Justice, in the prevailing opinion, that a pro-
ceeding for contempt, the sole purpose of which is the punish-
ment of the alleged contemner, and the vindication of the
dignity of the court, is not reviewable, except for lack of
jurisdiction in the court in which the proceeding is had, if,
by the term "for lack of jurisdiction," is meant want of
jurisdiction in the court of the party or subject-matter, or
of both.-
But where the court, in its constitution, has power to
punish for contempt, its decision is final and conclusive.
Dodd V. Una, 40 N. J, Eq, 715. The opinion of this court
proceeds upon the theory that the lack of jurisdiction, in the
present case, was not in the court of first instance, in which
Verdon was adjudged guilty of contempt, but in the Supreme
Court, to which court Verdon appealed, and which latter
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' MARCH TERM, 1917. 501
90 N. J. L, Attorney-Generahv. Verdon.
court reverped the judgment appealed from. I cannot accede
to this.
The position taken by the court n«3ce8sarily brings into
consideration the scope and meaning of the statute of 1884.
2 Comp. Stat, p. 1736, §§ 138, 139.
Section 138 provides that every summary conviction and
judgment by any court inferior in its juiisdiction to the Su-
preme Court, except an Orphans' Court, for a contempt
against its owa dignity, pc^ce and good order shall be review-
able, both upon the law and upon the facts by the Supreme
Court.
It is clear that the broad language here employed invests
the Supreme Court with general jurisdiction to review a con-
viction and judgment for contempt of a court inferior to it,
as designated by the statute.
If this section stood alone there could be no question that
the jurisdiction conferred is to be exeQpised in accordance with
the common law power of the court relating to the review of a
judgment from an inferior court. I am unable to find any-
thing in section 139 which abridges the exercise of the general
jurisdiction conferred. A brief consideration of the section
will make the matter plain. It is to be observed that this. sec-
tion relates to the procedure to be pursued by a person who
has been convicted and adjudged in contempt, in appealing
from such conviction and judgment. It provides that the
person adjudged in contempt upon filing a petition, signed
by at least two counselors, may have his conviction and judg-
ment certified to and sent to the Supreme Court; that the
Supreme Court "shall be invested with jurisdiction and re-
quired to rehear the matter of contempt upon which the con-
viction was founded, both upon the law and upon the facts,
which shall be inquired into and ascertained by depositions, or
in such other way or manner as the court above shall direct ;
and it shall be required to give such judgment in the premises
as to it shall seem to be lawful and just under all the circum-
stances of the case, to be enforced in such a way and manner
as it shall order and direct."
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502 COURT OF ERRORS AND APPEALS.
Attorney-General v. Verdon. 90 N, J. L,
In the enactment of the statute the legislature obviously
had in view two classes of contempt — -first, contempts com-
mitted in the presence of the court in which case the proceed-
ings are of the most summary nature and are conducted
orally ; secondly, contempts committed out of the presence of
the court, in which the proceedings are by attachment against,
and the submission of written interrogatories, to the alleged
contemners. This difference of procedure in the two kinds of
contempt was clearly in the legislative mind as evidenced by
the provision in section 139, which requires the Supreme
Court to rehear the matter of contempt upon which the con-
viction was founded both upon the law and upon the facts,
to be inquired into and ascertained by depositions, or in such
other way or manner as the court above shall direct. Such a
method of procedure, obviously, was aimed at an appeal from
a conviction and judgment of contempt committed in the
presence of the court jn order that the appellate tribimal
should have before it a reproduction of all the facts and cir-
cumstances as they were at the time of the alleged contempt
in the presence of the court contemned, either by hearing
witnesses in such appellate tribunal or by depositions, or in
any other manner as the appellate tribunal may direct. But
no good reason exists for the hearing of witnesses or the
taking of depositions where the contumacious conduct takes
place out of the presence of the court, for in such a case the
alleged contemner is brought into court by attachment, inter-
rogatories in writing are submitted to him, which interroga-
tories he is required to answer in writing, and thus both
interrogatories and answers present the law and facts of the
case.
By section 138 the legislature invested the Supreme Court
with general jurisdiction to hear and determine appeals in
contempt case, therefore, its judgment is final and not review-
able, even though it may have erred in the matter of pro-
cedure. It is to be particularly noted that the jurisdiction to
hear and determine the appeal is not made dependent upon
the method of procedure adopted by the Supreme Court.
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MARCH TERM, 1917. 503
90 y. J. L. Attorney-General v. Verdon.
In the present case the alleged contempt was committed out
jof the presence of the court, which fact appears on the face
of the record. The Court of Quarter Sessions did not proceed
by attachment and interrogatories, as it was legally required
to do, and, therefore, when the appeal was regularly brought
before the Supreme Court, under section 139, that court de-
cided, after hearing counsel for appellant and counsel for the
state, that the procedure adopted by the lower court against
the alleged contemner was erroneous, and thereupon reversed
the judgment. And the representative of state is now here,
having sued out a writ of error from this court, on behalf of
the state, to the Supreme Court, asking tliis tribunal to review
the judgment of the Supreme Court.
But even if the position assumed by the majority court is
sound in the assertion that the Supreme Court was in error in
failing to rehear the appeal upon the law and upon the facts
of the case, such error does not properly constitute a lack of
jurisdiction to hear and determine the appeal, but presents
rather a case of jurisdiction erroneously exercised, for which,
if this had l)een a case subject to review, by this court, error
was assignable and a writ of error would have been the proper
remedy.
Moreover, the record on this appeal f-hows that the only
question raised and argued in the Supreme Court was the
legality of the procedure adopted by the Quarter Sessions
against the alleged contemner. The representative of the
state and counsel for Verdon were in accord that that was the
only question in the case and it was in that aspect that the
case was submitted by counsel in the case, to the Supreme
Court for its decision. Verdon did not see fit to avail himself
of the privilege accorded him by the statute and ask for a re-
hearing upon the law and upon the facta of the case. Neither
did counsel for the state ask the court for a rehearing.
Apparently, counsel for the state and counsel for Verdon
were content to waive the privilege of the statute accorded to
the alleged contemner to a rehearing upon the law and upon
the facts. The statute contemplates that the person ad-
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504 COURT OF ERRORS AND APPEALS.
Attorney-General v. Verdon. 90 .V. J, L.
judged in contempt is the one entitled to the privilege of a
rehearing. As it is a provision made for his express benefit,
there is no legal rule which precludes him from waiving it.
At any rate he is not here complaining.
And even in the view that the provision of a rehearing
might be availed of by the state, it is a sufficient answer to
the complaint of the state made heix?, that it is not in a posi-
tion to challenge the jurisdiction of the Supreme Court, be-
cause it did not demand a rehearing and acquiesced in the
submission of the question of the legality of the procedure in
the Quarter Sessions.
In Dodd V. Una, 40 .V. J. Eq. 672, 713, Mr. Justice Magie
-^^id : "Where the subject-matter is within the court's jurisdic-
tion tlie appearance and submission of parties may justify the
assertion of the jurisdiction and prevent their afterward ques-
tioning it. Tompkim v. Sclwmp, 45 .Y. J. L, 488; Funck v.
Smith, 46 Id. 484."
It is conceded in the present case that the subject-matter
was within the jurisdiction of the Supreme Court.
At common la^', and before the statute of 1884, the only
proper means to review a jiidgrU'eni, in a criminal contempt,
where want of jurisdiction in the court was alleged, was by
habeas corpm. In Dodd v. Una, 40 lY. J. Eq. (on p. 706),
this court, by Mr. Justice Magie, said : "In proceedings for
contempt the jurisdiction of the court to make the order
alleged to have been disobeyed may be questioned on an appli-
cation for attachment. People v. Sturtevdnt, 9. N. Y. 263.
Or on a habeas corpus. Ex parte Fisk\ 113 U. S. 713."
The attempt of this court upon a writ of error to the Su-
preme Court to review the law and facts dealt with by the
Court of General Quarter Sessions is \\nthout precedent.
Whence does this court derive that jurisdiction? Xot from
tlie common law nor by force of any statute.
The Croasdale case, reported in 88 N. J. L. 506, is no au-
thority on the subject. The legality of the procedure remov-
ing that case from the Quarter Sessions to the Supreme Court,
by certiorari, before judgment, and thence to this court by
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MARCH TERM, 1917. 505
90 N. J. L, Attorney-General v. Verdon.
writ of error, appears not to have been challenged in either
court. It is sufficient to state that such a procedure is con-
trary to all well-recognized precedents firmly engrained in the
law of this state.
If it were competent on this appeal for this court to pass
upon the question as to the propriety of the ruling of the
Supreme Court, and the propriety of the procedure in the
Quarter Sessions, then I would have no hesitancy, in view of
the unanimity of text-writers and well-considered cases on
the subject, and the general consensus of opinion of the bench
and bar, as manifested in a long line of decisions and con-
tinued practice, that the procedure pursued by the Quarter
Sessions was erroneous. I am, therefore, in full accord with
the views expressed by Mr. Justice Garrison in his opinion in
the Supreme Court, wherein he sets forth a lucid, accurate
and complete exposition of the law and practice relating to
contempt cases in this state.
In the Cheeseman case (49 N. J. L. 115, 1*13) Mr. Justice
Dixon does not unqualifiedly declare that the various steps
against an alleged contemner are not jurisdictional. They
may or may not be according to the circumstances of the case.
It must be borne in mind that in the Cheeseman case the
learned justice was. dealing with the concrete facts of the case
before the court, and his remarks must be understood and
taken in that sense. He explains his remarks: "So that
these various steps are manifestly not jurisdictional, except
to the extent of laying before the court matters which con-
stitute a contempt, and affording to the party accused a fair
opportunity of denying or confessing their truth," by stating
these facts : "In the present case, the appellant on the return
of the rule to show cause filed his affidavit declaring the truth
of all the matters alleged in the rule as the basis for its allow-
ance, and although the consideration of the cause was then
adjourned from term to term, yet the appellant never inti-
mated that an affidavit should have been presented before the
rule was granted, or that he was entitled to have an attach-
ment issue or interrogatories .filed, or that the rule should be
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506 COURT OF ERRORS AND APPEALS.
Attorney-General v. Verdon. 90 N. J. L,
discharged for want thereof; and even after sentence was
pronounced, he obtained leave to amend his affidavit, but did
not complain of any irregiUarity or illegality in the proceed^
ings. Under these circumstances, the objection now made
cannot be sustained."
And (on p. 142) the learned justice assigns as a reason for
not setting aside the proceedings that the objection came too
late.
It is, therefore, at once apparent that the Cheeseman case
is no authority for the proposition that the steps to be taken
in a procedure for contempt are not jurisdictional, but is
rather as authority for the proposition that an alleged con-
temner may waive such proceedings, by appearing and not
objecting.
In the present case, the important facts of which are clearly
distinguishable from those in the Cheeseman case in many
substantial respects, Yerdon objected, froni the very start of
the initial proceedings against him, to their irregularity and
illegality, but was overruled. I vote to dismiss the appeal.
For affirmance — Xone.
For reversal — The Chancellor^ Chief Justice, Parker,
Bergen, Minturn, Heppenhether, Williams, Gardner,
JJ. 8.
For dismissal— Kaljscu, J. 1.
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MARCH TERM, 1917. 507
90 N. J. L. State v. Jefferson.
THE STATE, DEFENDANT IN ERROR, v. MATTHEW JEF-
FERSON, PLAINTIFF IN ERROR.
Argued December 1, 1916— Decided July 18, 1917.
1. Courts of impeachment in the United States perfonn no puni-
tive function. The single purpose of their existence is the pro-
tection of the people against public servants who have betrayed
their trust and have violated the law which they were sworn
to obey.
2. A judgment of conviction, in impeachment proceedings, under
article 6, section 3, of the state constitution, is not a condi-
tion precedent to the indictment of a prosecutor of the pleas for
malfeasance in office and punishment thereunder.
On error to the Supreme Court, whose opinion is reported
in 88 N, J. L. 447.
For the plaintiff in error, Howard L, Miller and Clarence
L. Cole,
For the state, Josiah Stryker and John W. Wescott, attor-
ney-general.
The opinion of the court was delivered by
GuMMEBE, Chief Justice. The judgment brought up by
.the present writ is one affirming a conviction of the piaintiflf
in error in the Cape May Quarter Sessions upon an indict-
ment charging him with malfeasance in office. The office
held by him was that of prosecutor of the pleas of the county,
and the specific malfeasance charged against him was the
protection of violators of the criminal law and affording them
immunity from punishment for a money consideration.
Xumerous assignments of error were submitted to the Su-
preme Court, and received consideration by that tribunal in
the opinion promulgated by it. The same grounds of attack
upon the conviction which were there made have been re-
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508 COURT OF ERRORS AND APPEALS.
State V. Jefferson. 90 N, J, L.
peated before us. With a single exception, we are content
with the disposition made of them by that court and for the
reasons set out in the opinion.
The only assignment which we consider merits further dis-
cussion is that directed at the refusal of the trial court to
grant a motion in arrest of judgment, which was based upon
the ground that the plaintiff in error, being a state officer,
could .not be legally indicted and tried for malfeasance in
office until after impeachment proceedings had been instituted
against him and a judgment of conviction rendered therein.
The argument is, that this is a right afforded to him by
article 6, section 3, paragraph 3 of our constitution, which
declares that "judgment in cases of impeachment shall not
extend farther than to removal from office, and to disqualifi-
cation to hold and enjoy any office of honor, profit or trust
under this state; but the party convicted shall nevertheless
be liable to indictment, trial and punishment according to
law."
A consideration of the English cases is not helpful in solv-
ing the question presented, for the reason that the courts of
impeachment of this country, both federal and state, al-
though- modeled upon the English tribunal, so far as its
formation and methods of procedure r.re concerned, differ
from it fundamentally in the purpose of their existence and
the power exercised by them. Stated specifically, the jurisdic-
tion of the English court is purely criminal, inflicting pun-
ishment of the same kind and in the same measure as the
ordinary criminal courts of the kingdom. (For instance.
Lord Stafford, after an indictment for high treason had
been presented against him, and before trial thereon, was
proceeded against by articles of impeachment for the same
offence, was convicted by the house of lords, sentenced to
death on the conviction and executed. 7 IIow, St. Tr. 1297.
So, too, after the rebellion of 1745 some of the participants
therein were indicted and convicted in the common law courts
and executed on such convictions, while articles of impeach-
ment were exhibited against at least one of the other partici-
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MARCH TERM, 1917. 509
no N, J. L, State v. Jeflfer«OD.
pants, and the trial thereon resulted in his conviction and
execution. CamphelVs Life of Lord Hardmch, p. 106.)
The courts of impeachment of this country, on the other
hand, perform no punitive function. The single purpose of
their existence is the protection of the people against public
servants who have betrayed their trust and have violated the
law which they were sworn to obey. The sentence pronounced
against the offender affects neither his life, liberty nor prop-
erty, but merely removes him from the office he has dis-
graced and bars him from ever afterward holding any office
of honor, trust or profit.
From what has been said it is apparent that the consti-
tutional provision appealed to by the plaintiff in error was
not adopted from any rule of procedure prevailing in Eng-
land. So far as my examination has gone, it first appears in
the New York constitution of 1777, and next in that adopted
by New Hampshire in 1784. It was written into the federal
constitution in 1787, and after that from time to time was
adopted as part of the fundamental contract of at least seven-
teen of our sister states. Its purpose must be either that
claimed for it on behalf of the plaintiff in error or else to
settle beyond controversy the claimed right of a person con-
victed by a court of impeachment to jdead that conviction
as a bar to a trial on an indictment for the same offence
which brought about his removal from office.
So far as the researches of counsel and of the court have
gone, but one case has been found in which a contention
similar to that advanced by the plaintiff in error has been
made, viz., Commonwealth v. Rome, 112 Ky. 482; 66 S. W,
Rep. 29. In that case the Supreme Court of Kentucky, after
a full consideration of the question, reached the conclusion
that the impeachment of a commonwealth's attorney is not
a condition precedent to his indictment for malfeasance in
office and punishment thereunder. The opinion is a care-
fully-considered one, and the conclusion reached seemr to be
fully supported by the logic of the argument set out in it.
But, independent of the reasoning of the case cited, we are
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510 COURT OF ERRORS AND APPEALS.
State V. Jeflferaon. 90 N. J. L,
entirely satisfied that the conclusion of the Kentucky court
is the correct one. If it be true that the effect of the consti-
tutional provision is to stay proceedings m the criminal courts
until after a convictipn in the court of impeachment, then
punishment for crime in such a case is made to depend upon
whether or not the house of assembly will see fit to present
articles of impeachment against the ofEending oflBce-holders.
This it may or may not do, as the judgment of its members
may dictate. It may be that the offender's term of office will
have expired during the recess of the legislature or will expire
almost immediately after its convening, and that impeach-
ment proceedings therefore will be inadvisable. Other rea-
sons for non-action by the house of assembly will readily sug-
gest themselves. That any such possible immunity from
punishment was intended to be conferred upon betrayers of
public trust by the framers of this provision of the constitu-
tion cannot be conceded and never has been so understood by
our people. The history of our own state is a demonstration
of this fact. From 1784, when Peter Hopkins, a justice of
the peace, was impeached by the house of assembly, down to
the present time, there have been just four impeachment
trials in New Jersey. Certainly, no one will suppose that
during this period of one himdred and thirty-three years the
four persons thus proceeded against constitute all of the office-
holders under the state government who have been untrue to
the trust reposed in them. In fact, the very slightest ex-
amination of our oflScial reports will demonstrate the con-
trary.
The history of the federal court of impeachment is similar.
The records of the senate show that from the adoption of the
constitution, in 1787, until now, articles of impeachment
have been presented against one president, one United States
senator, one member of the cabinet and six members of the
judiciary. All other civil oflScers serving under the federal
government who have been guilty of criminal conduct while
in office have been dealt with by the ordinary tribunals of
justice.
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MARCH TERM, 1917. . 511
90 N. J. L. State v. Jefferson.
The records of our sister states have not been available to
us for inspection, but it is more than probable that they will
disclose a similar condition; for, as was said by Professor
Theodore W. Dwight, in an" article on ^^Trial by Impeach-
menr (6 Am. L, Reg. (N. 8.) 257) : "This mode of trial
is rarely exercised and practically dormant."
It has been suggested, rather than argued, that unless the
indictment of a state oflScer is postponed until the termina-
tion of impeachment proceedings, the interests of the state
will suffer by its deprivation of the services of the oflBcer
while the title to the oflSce remains in him. This suggestion,
when applied to the present case, would seem to savor jof grim
humor, if it were not for the seriousness of the matter. When
it is remembered that the specific charge upon which the
plaintiff in error was convicted was the shielding of violators
of the criminal law from punishment for a pecuniary con-
sideration, the suggestion that by his conviction and sentence
the state is being "deprived of his services" is very wide of
the mark; it would be much more accurate to say that by it
the state is being protected against the further prostitution
of his oflRce.
We conclude that the refusal of the motion in arrest of
judgment was proper, and that on the whole case the convic-
tion should be affirmed.
For affirmance — The Chancellor, Chief Justice,
SwAYZE, Parker, Bergen, Minturn, Kalisch, White,
Heppenheimer, Williams, Taylor, Gardner, JJ. 12.
For reversal — None.
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512 COURT OF ERRORS AND APPEALS.
Daly V. Garven. 90 N, J, L.
BERT DALY, APPELLANT, v. PIERRE P. GARVEN, RE-
SPONDENT.
Argued March 21, 1917— Decided June 18, 1917.
1. The provision of the act of April 7th, 1914, commonly known
as the Preferential Voting act (Pamph. L., p. 170) that "all
hallots shall be void which do not contain first choice votes for
as many candidates as there are offices to be filled,** is not
separable from the other provisions of the statute so that it may
be rejected and the residue of the statute be permitted to stand ;
hence, if such provision be unconstitutional the act as a whole
fails and an election held under its terms is incapable of con-
ferring a de jure title to a private relator under section 4 of the
Quo Warranto act.
2. In quo warranto^ when a defeated candidate for an elective
office, in order to obtain a judicial determination that he re-
ceived a plurality of the ballots cast at such election, seeks a
decision as to the unconstitutionality of the statute under which
the election was held, which is fatal to his de jure title to the
office, the court, in view of the futility of deciding the question^
will decline to pass upon it.
On appeal from the Supreme Court.
For the appellant, Elmer W. Demarest.
For the respondent, Gilbert Collins.
The opinion of the court was delivered by
Garrison, J. This appeal brings up for review a judg-
ment of the Supreme Court in favor of the defendant in quo
warranto entered upon a postea certifying the result of a trial
before the Circuit Court of Hudson county. The parties were
candidates for the office of commissioner of the city of
Bayonne under the act of 1911, commonly, known as the
Walsh act. Pamph. L., p. 462. Five commissioners were
to be elected. The election was held under the supplement
of 1914, commonly known as the Preferential Voting act
(Pamph. L., p. 170), the pertinent provision of which is
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MARCH TERM, 1917. 513
90 N. J. L. Daly v. Garven.
that "All ballots shall be void which do not contain first
choice votes for as many candidates as there are offices to
be filled/' which was brought to the attention of the voters
by a direction on the ballot, viz., "If more than one office is
to be filled, vote as many first choices as there are offices to be
elected or the ballot will be void."
More than nine thousand ballots were cast in compliance
with this statutory provision, and counted for the respective
candidates. The canvass of the votes so counted showed the
election of Garven, the defendant, over Daly, the relator, by
less than a score of votes. In making this canvass one hun-
dred and ninety-two ballots were rejected for the reason that
they did not contain first choice votes for five candidates for
the office of commissioner. If these ballots had been counted
they would change the result by giving the relator a plurality
over the defendant. The relator, deeming the provision of
the statute which required the rejection of these one hundred
and ninety-two ballots to be unconstitutional, and believing
that he was lawfully entitled to the office in question, filed
his information in the nature of a quo warranto under the
fourth section of the Quo Warranto act, in which he set forth
the foregoing facts in detail, concluding with the charge that
the said relator by virtue of said election was lawfully elected
one of the commissioners of the said city of Bayonne, and is
entitled to said office which the said Pierre P. Garven hath
usurped to the exclusion of said Bert Daly. Issue was joined,
and upon the trial at nisi pritis, Judge Speer, sitting by con-
sent without a jury, held that the act of 1914 was not un-
constitutional, which decision justified the rejection of the
one hundred and ninety-two ballots on which the relator's
claim to the office rested, and this is the trial error that is
laid as the ground for the reversal of the judgment of the
court below.
It is the contention of the appellant that the act of 1914
is unconstitutional for the reason that it places a compulsion
upon all electors to vote a first choice for as many candidates
for commissioner as there were offices to be filled. His argu-
ment is that this provision may operate to shut off voters
Vol. xc. 33
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514 COURT OF ERRORS AND APPEALS.
. Daly ▼. Ganren. 90 N, J. L.
from the ballot box and hence must fall before the constitu-
tional guaranty of the right to vote, citing Ransom v. Black,
54 N. J. L. 446. The following quotation from the brief of
counsel for the appellant illustrates his argument : "It might
very well happen in a given case that there were only five
candidates for five ofiBces. Two of them, perhaps, might be
totally unfitted to fill the oflSce. Yet, in order to cast a vote
for tlie fit persons, the voter is compelled to vote for persons
who should not be trusted with the administration of public
offices."
A still stronger argument is that by being compelled to
vote for other candidates in addition to voting for those who
are his real choice, the elector may actually bring about the
defeat of the candidates whose election he desires.
The constitutionality of an election law having these pos-
sibilities is evidently a debatable question of great interest
and importance.
A subsidiary question of vital importance to the appellant's
contention is whether this provision, if found to be uncon-
stitutional, may be exscinded from the statute, leaving its
remaining provisions to stand.
We are clearly of opinion that this cannot be done. The
occasion for the exercise of this delicate judicial function is
carefully stated by Mr. Justice Depue in Johnson v. Siatf*,
59 N. J. L. 535, 539, in these words: "The same statute
may be in part constitutional and in part unconstitutional,
and if the parts are wholly independent of each other, that
wliich is constitutional may stand and that which is uncon-
stitutional will be rejected; but if the different parts of the
act are so intimately connected with and dependent upon each
other as to warrant a belief that the legislature intended them
as a whole, and that if all could not be carried into effect the
legislature would not have passed the residue independently,
and some parts are unconstitutional, all the provisions which
are thus dependent upon each other must fail."
Stated more tersely, the same doctrine is laid down by
Mr. Justice Dixon in Albright v. Sussex County Lake Com-
mission, 71 .V. J. /v. 309, as follows: "The general rule with
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MARCH TEEM, 1917. 515
90 N, J. L. Daly v. Garven.
regard to the validity of a statutory scheme, some feature of
which proves to be unconstitutional, is that, if the objection-
able feature be not so important to the legislative design as
to warrant the opinion that the scheme would not have been
authorized without it, then the residue of the scheme will
be upheld; otherwise, the entire scheme will fail/'
Tested by either of these criteria the provision in question
is on the one hand not wholly independent of the other pro-
visions of the act, but on the contrary is intimately connected
with them and with the scheme as a whole ; while as to its
importance, it was evidently inserted under the belief that
without it a complete board of commissioners might not be
elected, and so the entire scheme of the statute be defeated.
The entire scheme of the statute relates to the holding of
an election in which the provision in question is the most
striking feature ; to eliminate such a feature from a complete
legislative program requires an act of legislation. Such a pro-
vision may be dropped by a subsequent legislature as the re-
sult of experience or because it differs in opinion from its
predecessor. Pamph, L, 1916, p, 216. That, however, is a
totally different thing from a judicial determination that the
provision was deemed of little or no importance by the legis-
lature that enacted it.
The provision that is attacked by the appellant is, there-
fore, not separable from the residue of the statute ; hence, if
such provision be unconstitutional, the statute is invalid and
the election held under it is incapable of affording a de jure
title to any of the candidates thereat, including the appellant.
True it is, that the respondent and the other de facto com-
missioners might not be directly affected by such a judicial
opinion. The appellant, however, has no such de facto status ;
he is a private citizen claiming a de jure title to an oflSce by
force of an election, which, if his argument be soimd, can
confer a de jure title upon no one. For it must be remem-
bered that the title of the relator as well as that of the re-
spondent is at issue. Lane v. Otis, 68 N, J, L. 656.
Tn the proceeding which the appellant has instituted in
his own right against the respondent, the very rights of both
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616 COURT OF EKROKS AND APPEALS.
Daly V. Garvea. 90 N, J. L.
parties are drawn into question. Manakan v. Watts, 64 N. J.
L. 464.
This being so, to what end should a court consider and de-
cide a constitutional question, which, if decided as the ap-
pellant argues it should be, would be of no avail to him as a
suitor? The charge of the information is that the de facto
tenure of the respondent excludes the appellant from an office
to wliich he has the de jure title. If we cannot adjudge the
latter, an adjudication of the former would be of no avail to
this private relator. If the one hundred and ninety-two
ballots on which the title of the appellant rests were im-
properly rejected because of the compulsory provision of the
statute as to first choice under which the election was held,
and if such compulsion renders the statute unconstitutional,
'ijfien the remaining four thousand two hundred and ninety-
three votes on which the appellant bases his title were cast
under a like compulsion and were for a like reason incapable
of affording valid evidence of a de jure title.
In fine, if the statute be invalid because of the compulsory
feature it brought to bear upon all the electors, it is equally
invalid as to thofee who yielded to such compulsion as it is to
those who stood out against it. So that, adopting the appel-
lant's illustration, every one of such four thousand two hun- •
dred and ninety-three ballots cast for him may have been
so cast because of such compulsion. If this be too extreme,
still it is at least true that we have no way of knowing how
many ballots were cast for the relator because of the invalid
provision of the statute.
To take another illustration from appellant's brief, "In the
Bayonne election there were but thirteen candidates. Who
can say whether or not voters were not disfranchised by be-
ing compelled to vote for at least five or not at all.'' Look at
it as we may, an invalid election cannot invest the appellant
with a de jure title.
To sum the matter up in a single sentence: In quo war-
ranto, when a defeated candidate for an elective office, in order
to obtain a judicial determination that he received a plu-
rality of the ballots ctist at an election, seeks a decision as to
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MARCH TERM, 1917. 517
90 N. J, L. Godfrey v. Freeholders of Atlantic.
the unconstitutionality of the statute under which the election
was held, which is fatal to his de jure title to the office, the
court, in view of the futility of deciding the question, will
decline to pass upon it.
The redress sought by the appellant as a private relator
has two aspects which are inter-related, viz., that the re-
spondent should be ousted from his office in order that the
appellant be installed therein, which would not be eflfected
by a decision that the act of 1914 was unconstitutional.
A decision that cannot affect the litigants before the court
ought not to be made, and if it ought not to be made, it need
not be considered, especially in view of what was said by this
court in Devlin v. Wilson, 88 N, J. L. 180.
Having thus reached the conclusion that upon no ground
that is available to the appellant is any legal error shown in
the action of the court below, the judgment of the Supreme
Court is affirmed.
For affirmance — The Chancellob, Garrison, Swayze,
Bergex, Minturn, Kalisch, Black, Heppenheimer, Wil-
liams, Gardner, JJ. 10.
For reversal — None.
CARLTON GODFREY ET AL., RESPONDENTS, v. BOARD OF
CHOSEN FREEHOLDERS OF THE COUNTY OF ATLAN-
TIC ET AL., APPELLANTS.
Argued March 20, 1917— Decided AprU 27, 1017.
Chapter 122 of the laws of 1914 {Pamph, L., p. 203) is not a grant
of power to reconstruct county roads in the broad sense of the
term "reconstruction," but is limited to the "reconstruction con-
templated under the provisions of an act entitled 'An act to
provide for the ^permanent improvement and maintenance of
public roads in this state (Revision of 1912), approved April
15th, 1912.' " Pamph. L., p, 809.
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51S COURT OP ERBOSS AND APPEALS.
Godfrey v. Freeholders of Atlantic. 90 N. J. L.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N. J. L. 511.
For the appellants, Emerson L. Richards and Louis Hood
(Riker & Riker on the brief) .
For the respondents, Theodore W. Schimpf and Clarence
L. Cole.
The opinion of the court was delivered by
Gabeison, J. The facts of this case are fully stated in the
opinion of Mr. Justice Black, who set aside the award of a
contract for the improvement of certain public roads. God-
frey V. Chosen Freeholders, 89 N. J, L, 511.
We agree that the contract was not legally awarded, but
find it unnecessary to lay down any rule as to conditional
awards generally.
In the present case, the conditional award made on No-
vember 8th, 1916, was by its own terms rendered void by the
election to which it referred. There was, therefore, on No-
vember 24th, 1916, no award and no power to make one, since
the meeting held on that date was not an adjourned meeting
or one to which the matter had been continued; moreover,
all bids but one had been rejected and none of the statutory
safeguards thrown around the awarding of such a contract
was or could have been complied with. The award made at
that meeting had not even the semblance of legalitj*. Our
affirmance of the judgment of the Supreme Court might well
rest upon this ground alone, were it not for the fact tliat
there is a more fundamental question that has been fully
argued by counsel and that ought, in the interests of the
public, to be decided before any fuVther action is taken by the
board of chosen freeholders under chapter 122 of the laws of
1914, which, admittedly, is the authority upon which the
right to make the proposed improvement rests. That statute
is not a grant of power to reconstruct county roads in the
broad sense of the term ''reconstruction," nor does it leave it
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MARCH TERM, 1917. 519
90 N, J, L. Godfrey v. Freeholders of Atlantic.
to the courts to give such broad meaning to it. The statute
itself defines the word by limiting it to the "reconstruction
contemplated under the provisions of an act entitled ^An act
to provide for the permanent improvement and maintenance
^of public roads in this state (Revision of 1912), approved
April 15th, 1912.' " We are thrown back, therefore, upon the
act of 1912 in order to ascertain the sense in which the word
"reconstruction" is used in that act, and when such sense is
ascertained such meaning and none other must be given to it
in the act of 1914. Turning, then, to the act of 1912, we
find it to be a revision of the Public Roads act dealing, as its
title imports, with the permanent improvement of public
roads and their maintenance. The improvement of a public
road is described generally by the act to be its construction
as a macadamized, telford, stone, gravel or other sort of road;
and the maintenance of such an improved road includes a
provision for any extraordinary repairs or reconstiniction of
which such road may be in need.
This is the sort of reconstruction that is contemplated by
the act of 1912, a reconstruction that is, upon the one hand,
closely associated with the idea of repairs, and upon the other,
sharply contrasted with the idea of construction. So, that
upon comparing the provisions of that act with the provisions
of the present contract, the latter could by no stretch of the
imagination l)e brought within the provision for reconstruc-
tion of the act of 1912.
This being so, it follows imperatively that such contract
provisions cannot be brought within the authority to recon-
struct granted by the act of 1911, which in express terms
applies to such reconstruction only as was contemplated by
the act of 1912.
The award of the contract, therefore, was not only invalid
because not legally made, but also because the board of
chosen freeholders were without authority to make the pro-
posed improvement.
The judgment of the Supreme Court is affirmed.
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520 COURT OF ERRORS AND APPEALS.
Jersey City v. Thorpe. 90 N, J, L.
For affirmance — The Chanoellob^ Garrison^ S\^ayze,
Bergkx, Mixturx, Kalisch^ Heppenheimer, Williams,
Tlvi.oR, Gardner, JJ. 10.
.For reversal — None. «,
THE MAYOR AND ALDERMEN OF JERSEY CITY, RESPOND-
ENT, V. HERBERT A. THORPE, APPELLANT.
Argued March 15, 1917— Decided June 18, 1917.
Writs of error do i^ot run directly to this court from the order of
a justice of the Supreme Court reviewing the 'summary convic-
tions of criminal courts in municipalities.
On apjK?al from tlie Supreme Court.
For the a])pellant, Frank- W, Ueilenday.
For tlie respondent, John Bentley.
The opinion of the court was delivered by
Garrison, J. The appellant was convicted by the First
Criminal Court of Jersey City of a violation of the provisions
of section 4 of an ordinance entitled "An ordinance concern-
ing the littering of the streets with refuse hiatter/' in that
the said appellant did distribute hand circulars upon Summit
avenue, in said city.
Having been thus convicted, the appellant made applica-
tion to the justice holding the circuit of the Supreme Court
in Hudson county for the purpose of having his said convic-
tion set aside, if found to be illegal, as provided by the act
establishing criminal courts in municipalities in counties of
the first cla^s.
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MARCH TERM, 1917. 521
90 N. J, L. Jersey City v. Thorpe.
The said justice having heard said appeal, "under the
statute in such case made and provided," ordered that the
conviction of the said appellant be affirmed. This order the
appellant seeks to bring before this court by an appeal.
It is too plain for argument that such an appeal is with^
out legal foundation, not only for the reason that an appeal
lias not been substituted for a writ of error in the review of
the judgments of courts of criminal jurisdiction, but for the
more substantial reason that a writ of error does not rim
directly to this couri from the orders or judgments of a leg-
islative agency such as the justice of the Supreme Court is
under the provisions of the statute under which the proceed-
ings below were liad.
Ceftiorari is the proper remedy; the constitutionality of
tlie statutory review by a legislative agency is sustainable
solely upon the ground thai orders or judgments so made*
may be supervised by the Supreme Court upon certiorari,
ypwark V. Kazinski, 86 N, J, L, 59.
The present appeal, therefore, brings nothing before this
court and must consequently be dismissed.
It may be well to point out to counsel for the appelliant
that he has no right to argue in an iappellate court constitu-
tional questions based upon a stipulation entered into for the
purposes of such appeal, and raising for the first time in the
appellate tribunal questions that were not raised ill the court
below. N. J. Dig. (Appeal and Error) , § 91 et seq,; State v.
Shupe, 88 y.J. L. 610.
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522 COURT OF ERRORS AND APPEALS.
Ross V. Freeholders of Hudson. 90 N. J. L.
JOHN ROSS, APPELLANT, v. BOARD OF CHOSEN FREE-
HOLDERS OF TJHE COUNTY OF HUDSON, RESIK)ND-
ENT.
Submitted March 30, 1917— Decided October 11. 1917.
Plaintiff, who held a position in the county jail under the provisions
of the Civil Service law, having been dismissed by the sheriff
in violation of such provisions, brought his suit for damages
against the board of chosen freeholders and was denied recovery
. upon the doctrine of Stuhr v. Curran, 44 N. J. L. 181. Held,
that as the relation between plaintiff and defendant was con-
tractual in character, it was error to apply to it a doctrine that
applied only to those who were part of a governmental depart-
ment, to wit, officers, and not to those employed by such depart-
ment. Held also, that the relation <$f the parties bound the de-
fendant to the observance of the pertinent provisions of the Civil
Service law, and that such implied contract was broken by the
defendant when the sheriff as its agent dismissed the plaintiff in
violation of such provisions.
On appeal from the Supreme Court.
The following decision was rendered by the Circuit Judge :
"This case is, by consent, tried before me without a jury
on a stipulated state of facts.
"Plaintiff was employed as a guard in the Hudson county
jail. His employment was under and subject to the Civil
Service laws of the State of New Jersey. The sheriff of
Hudson county dismissed plaintiff from his position without
alleging any reason, without a hearing, and contrary' to law.
The state civil service commission refused to sustain the
sheriff's said action on the ground that it was improper and
illegal and held that the plaintiff should be permitted to per-
form his duties as such guard, and plaintiff thereupon was
allowed to perform his duties. It is stipulated that plaintiff's
dismissal was contrary to law, and that he duly and regularly
reported for work, and was at all times ready and willing to
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march: term, 1917. 523
90 N. J. L, Ross V. Freeholders of Hudson.
perform the duties of his said employment, but that he did
not perform the same. It is also stipulated that plaintiff
was prevented by the then sheriff of Hudson eounly from
rendering any services as such guard in said Hudson county
jail from November 30th, 1911, up to March 19th, 1913, for
which period he sues herein to recover his salary.
'There is no question made by either side but that a guard
in a county jail holds a position {Cavanagh v. Essex County,
58 N, J, L, 531) ; nor is there any doubt that ^a position is
analogous to an office, in that the duties that pertain to it are
permanent and certain, but it differs from an oflBce, in tliat
its duties may be non-governmental and not assigned to it by
any public law of the state.' Fredericks v. Board of Health,
82 Id, 200. There is no doubt either but that one who be-
comes a public officer de facto without dishonesty or fraud on
his part, and who renders the services required of such public
officer, may recover the compensation provided by law for
such services during the period of their rendition. Erwin v.
Jersey City, 60 Id. 141. It follows that he, the de facto
officer, is entitled to the compensation. Ibid, 150. It was
decided in that case that the de fa^to officer, who actually
performed the services, was entitled to the compensation, and
that the de jure officer who had not performed them was not
entitled to it. This conclusion is abundantly supported by
the cases of Stuhr v. Curran, 44 Id. 181 ; Uffert v. Vogt, 65
Id. 377, and HoboJcen v. Gear, 27 Id. 265, 278.
"The question for decision in this case is whether the cases
above cited are applicable 'to the case now sid> judice or
whether the case of John Boy Ian, appellee, v. Mayor and
Aldermen of Jersey City, submitted March 25th, 1914, and
decided June 23d, 1914, by the New Jersey Supreme Court,
is applicable. The opinion in the latter case, which is short,
was as follows :
"*P^ ctcriam: The appellee was employed in the street
department of Jersey City at $65 a month. On August 17th,
1912, he was suspended and later was tried and dismissed.
On appeal the civil service commission adjudged that he was
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524 COURT OF ESEORS AND APPEALS.
Ross V. Freeholders of Hudsoti. 90 N, J. L,
illegally dismissed and ordered his reinstatement; and on
January Ist, 1913, he was in fact reinstated. This suit is for
$65 a month from August 17th, 1912, to January Ist, 1913,
less what the appellee was able to earn. Judgment was given
for appellee for the amount claimed. Tliis was right. It is
not the case of an oflBce or position, but of a mere employ-
ment. Fredericks v. Board of Health, supra. The action
was based on an unlawful discharge. If there had been a
contract for a fixed term, say one year, judgment would un-
questionably be founded on a sound legal principle. In our
opinion the tenure of office treated by the l^islative policy
of the Civil Service act takes in legal theory the place of such
contract, and hence by analogy the discharged employe when
reinstated by the civil service commission recovers upon the
principle of an unlawful discharge, in which action under
the civil service rule the technical diflferencQ between damages
and wages does not arise. If this is not so, a mere suspension,
however unlawful, will accomplish all that a lawful dismissal
could and the civil service be thereby entirely emasculated.
" *The judgment of the First District Court of Jersey City
will be affirmed.'
"I think that the cases first cited, notably that of Erwin v,
Jersey City and Stuhr r. Curran. are applicable, and that tlie
ease of Boylan v, Jersey City is inapplicable. It must not be
overlooked that the court in pronouncing the opinion in
Boylan v. Jersey City took particular pains to differentiate
tliat case from one in which the case of an office or position
Avas in question and planted its decision firmly upon the
c^round that the case then before it was one of mere employ-
ment, thereby indicating that if the case had been one of
office or position the result would in all likelihood have been
different. Further, it cannot be denied that if the case were
one of office the defendant is entitled to prevail, and it seems
to me that the analog}' between an office and a position
pointed out in Fredericks v. Board of Hedlih, supra, and the
fact that in this case the emplovment of the plaintiff was, in
the light of the decisions, and by the nature of plaintiff's
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MARCH TERM, 1917. 525
90 N, J. L, Ro88 v. Freeholders of Hudson.
duties and functions, and the source from which they ema-
nated, of such a character as to make the analogy between it
and an oflBce too close to be overlooked or to work any dif-
ference in the adjudication that should be made in the case
in hand.
*The above results in my finding in favor of the defendant
and against the plaintiff in the present action/'
For the appellant, Charles M. Egan.
For the respondent, James J, Murphy.
The opinion of the court was delivered by
Gakrison, J. The court below, having rightly decided
that the plaintiff held a position, and not an oflSce, erred in
denying his cause of action upon the doctrine of Stuhr v,
Curran, which is applicable solely to an oJEce and not at all
to a position. The analogy which was supposed to justify
the extension of this doctrine to the holder of a position is
limited to certain of the qualities appertaining to the duties
of both an office and a position, viz., their permanence and
certainty; but, as was pointed out in Fredericks v. Board of
Heulth, all analogy is lacking with respect to the obligation to
perform such duties as are non-governmental, which is pre-
cisely the ground upon which the doctrine of Stuhr v. Cur-
ran is founded. No analogy can bridge the distinction estab-
lished by that case between an oflBce and a position or any
other form of public employment. Every person engaged in
the civil service is either part of a governmental system or
he is employed to forward the work of such system ; if the
former, he is an oflBcer to whom the doctrine of Stuhr v.
Curran applies ; if the latter, he is an employe to whom such
doctrine does not apply.
The division of such employes into those holding positions
and those having a mere employment, is one of convenience
only, which, having been adopted by the legislature, has called
forth judicial definition, but, generically, and for the appli-
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o26 COURT OF ERRORS AND APPEALS.
Ross V. Freeholders of Hudson. 90 N, J, L.
cation of judicial doctrines, there are but the two classes
mentioned, viz., those who are part of the government and
those who are employed by it. Between these two one of the
fundamental diflferences declared by the decision, in Stuhr v.
Curran, is that as to the former all idea of a contract is ex-
cluded, whereas an employment, whatever may be its grade,
connotes in some form the contractual relation of master and
servant. A test, therefore, of the applicability of the doctrine
of Stuhr V, Curran, is whether the relation of the parties is
in legal contemplation that of master and servant; if it is,
the doctrine peculiar to oflBces cannot be applied to it.
Now, it is settled law that the appointment of the plaintiff
as a guard in the Hudson county jail by the then sheriflE
created between the plaintiff and the defendant, the board of
chosen freeholders, the relation of m^ter and servant. StU-
livan V. McOsher, 84 N. J. L. 380.
The position involved in. that caae was that of jail warden,
and the crucial question was whether or not the appoint-
ment by the sheriff constituted such appointee an employe of
the county, the Supreme Court having held, following the
case of Kell]/ v. Arbv^hle, 78 N. J, L, 94, that the appoint-
ment by the sheriff did not have that effect. . SvUivan v. Mc-
OsJcer, 83 Id, 16.
In reversing this decision of the Supreme Court, this court,
speaking through Mr. Justice Kalisch, said:
"As soon as the sheriff selects' and employs assistants they
become the servants of that mimicipality for whom the sheriff
is acting as, the agent.''
It being thus settled in this court that a contractual rela-
tion existed between the plaintiff and. the defendant, it fol-
lows necessarily that it was error to apply to such a relation
the doctrine of Stuhr v. Curran, from which all idea of a con-
tractual relation is excluded.
This disposes of the main question argued upon the present
appeal, but, inasmuch as the case cited also disposes of certain
subsidiary questions, two further excerpts from thfe opinion
in that case will be quoted : ^The fact that the county pays
the warden for such services out of the county funds makes
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MAKCH TEKM, 1917. 527
90 y. J^ L, Ro88 V. Freeholders of Hudson.
him an employe in the service of the county, and therefore
mlhin the protection of the Civil Service law.
"It must be borne in mind that the object of the legislature
was to secure by means of the Civil Service law eflScient pub-
lic service in the state institutions and in the governmental
departments of this state. Therefore, in applying this statute
to any particular given case the court must above all recog-
nize and enforce the broad public policy which underlies it."
This means that in the given case before us the observance
by the defendant of the provisions of the Civil Service law
must be read into its contract with the plaintiff, and that for
a breach of the contract thus constructed the defendant may
be held liable for damages. Boylan v. Jersey City,
That the dismissal of the plaintiff by the sheriff in viola-
tion of the Civil Service act constituted such a breach is the
necessary corollary of the decision that the acts of the sheriff
within his delegated authority as agent for the board of
freeholders are binding upon the board of freeholders. Apart
from the decided case this must be so upon general principles,
since there is no question that the legislature made the sheriff
the agent of the county in these respects, and there can be no
question that in dealing with its governmental agencies the
legislature may by general laws distribute authority among
them and impute the responsibility for its exercise as it
sees fit.
The case cited also puts at rest any question, if there can
l)e any, arising from the circumstance that when the plaintiff
in the present case was dismissed in 1911, the law as then
declared by the Supreme Court in the Arbuckle case imposed
no liability therefor upon the county. For the decision in the
case cited was made not only in the face of the Arbuckle case,
but also in the face of the concrete decision of the Supreme
Court in that very case itself. To judicial decisions thus re-
versing judgments previously rendered or overruling older
decisions, the rule of legislative enactments has no applica-
tion. What a court declares to be the law always was the law,
notwithstanding earlier decisions to the contrary.
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5S8 COURT OF ERRORS AND APPEALS.
Ross V. Freeholders of Hadson. 90 N. J, L.
Such earlier decisions may indeed be cited elsewhere than
in a court of justice in extenuation of unlawful acts that were
apparently lawful at the time of their commission, but such
considerations have no place in judicial determinations as to
the legal liability for such acts with which alone we are now
concerned. '
Prom this it follows that the fact that the defendant rely-
ing upon judicial decisions paid for the services rendered by
the person whom the sheriff put in the position from which
he had unlawfully dismissed the plaintiff has no greater legal
significance than similar payments would have if made by an
individual or by a private business concern under like circum-
stances. For the hardships arising from the mistakes of
courts the law has never undertaken to provide a remedy or
to afford redress.
The question of damages was not reached in the court be-
low, and hence is not raised on this appeal. The case must
be retried upon the unlawful discharge theory under the rules
as to the measure and mitigation of damages appropriate to
that branch of the law of contracts.
The judgment of the Supreme Court is reversed and a
venire de novo awarded.
For affirmance — ^The Chief Justice, White, Taylor,
JJ. 3.
For reversal — The Chancellor, Garrison, Swayze,
Trenchard. Parker, Bergen, Minturn^ Kalisch, Bl.\ck,
Heppenheimer, Williams, Gardner, JJ. 12.
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MARCH TERM, 1917. . 629
90 N, J„ L, Arnfbrecht v. D.; L. & W. R. R. Co.
AUGUSTA ARMBRECHT, ADMiNISTRATRIX, RESPONDENT,
V. THE DELAWARE, LACKAWANNA AND WESTERN
RAILROAD COMPANY,' APPELLANT.
. Argued March 19, 1917— Decided June 18, 1917.
In an action under the Federal Employers' Liability act, it was
open to the jury to infer from the evidence that the plaintiff's
intestate was engaged in removing snow from the tracks, both
interstate and intrastate, of a railway; that the work had been
only temporarily suspended ; that the , men were told by the
boss to go in a covered car as it was raining and freezing at
the time ; that to do so, they walked along the tracks . because '
they couldn't go otherwise, and decedent was struck and killed
by a fast passenger train considerably behind time ; that there
was a failure to warn him that the passenger train was behind
time and might be expected. JfeW, that it w«as for the jury to
say whether the decedent was engaged in interstate commerce,
whether there was negligence on the part of the railway com-
pany, and whether the decedent had assumed the risk.
On appeal from the Hudson Circuit.
For the appellant, Maximilian M. Stallman (Frederic B,
Scott on the brief) .
For the respondent, Alexander Simpson,
The opinion of the court was delivered by
SwAYZE, J. This is an action under Ihe Federal Employ-
ers' Liability act. There was evidence from which the jury
might infer that the deceased was engaged in removing snyw
from the tracks, both intrastate and interstate, at the Port
Morris yard; 'that after working for some time it InHaine
necessary to back fhe work train east gome four miles to
Chester Junction for the purpose of getting back to tbe !^^^t
Morris yard on the westbound tracks; that more snow was
to be removed; that the train was held ?ome minui' s ut Ches-
ter Junction ; that the men were told by the '1)os?" to so in
the covered car as it was raining and freezing at the time;
Vol. xc. 34
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530 COURT OF ERRORS AND APPEALS.
Atmbrecht v. D., U & W. R. R. Co. 90 Jf. J. L,
that to do so, they walked along the tracks because they
couldn't go otherwise ; that a fast passenger train eaiue along
considerably behind time, struck the men on the track and
killed plaintiff's intestate; that there was no Wiiming that it
was behind time and might be expected.
The trial judge left it to the jury to say whether the de-
ceased was engaged in interstate commerce and whether there
was negligence on the part of the defendant. We think the
evidence required him to take this course. The fact that
there was a temporar}' cessation in the work of removing
snow, and a temporary rest from work, did not require a
finding that the decedent at the moment of the accident was
not engaged in interstate commerce; nor do mc think that
the fact- that he was about to take refuge from the storm in
the covered car makes any difference. That was a mer^ inci-
dent of the employment which did not thereby change its
general character. The work was the removal of snow from
railway tracks, interstate as well as intrastate; it had merely
suffered a temporary interruption due to the necessities jV
traffic on a busy railway, and in some degree to the inclem-
ency of the weather. It is enough to refer to New York Cen-
tral Hailroad v. Carr, 238 U. S. 260, and to Shanks v. Dela-
ware, LaH'awmina and Western Railroad, 239 Id, 556^ as
showing the line of cleavage between the cases. Other cases
are cited in the opinion in the Shanks case. What we have
said is enough to distinguish the present case from Minne
apolis and St, Tjouis Railroad Co. v. Winters, 242 Id, 353,
and to bring it within the principle of Louisville and Nash-
rille Railroad Co, v. Parker, Id. 13. Other recent cases on
one side or the other of the line are Erie Railroad Co. v.
Welsh, Id, 303 ; Illinois Central Railroad Co, v. Peery, Id.
292.
The question of negligence is more difficult. The failure
of the engineer of the passenger train to blow a whistle until
too late for any good does not indicate negligence, since he
could not be supposed to anticipate that men would bo walk-
ing on the track at that point. But we think the failure to
warn the men that the passenger train was behind time and
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MARCH TERM, 1917. 531
90 y. J, L. Hamilton Twp. ▼. Mercer Co. Trac. Co.
might be expected, ia sufficient to sustain the verdict, since
the jury might have believed the evidence that the boss told
the men to go to the covered car and that there was. no way
to go except along the track. This disposes al?o of the ques-
tion of the assumption of risk. No doubt a railroad em-
ploye, or anyone el?e, assumes the risk of walking on the
track, but it does not follow that he assumes the risk of being
struck by a train which he may well think had gone by. The
request to charge did not embody all the pertinent facts. We
find it difficult to understand what the judge had in mind
when he told the jury that they might take into consideration
the speed of the passenger train in considering the other
charges of negligence, but as he had just charged that the
speed of the train did not present a question of negligence,
because the company had the right to exercise its judgment
in that respect, we think no harm could have been done the
defendant by that portion of the charge which is made a
ground of appeal.
The judgment is affirmed, with costs.
For affirmance — The Chancellor, Garrison, Swayzi:,
Bergen, Minturn* Kalisch, Black, White, Heppen-
HEiMEH, Williams^ Taylor, Gardner, JJ. 12.
For reversal — None.
TOWNSHIP OF HAMILTON, RERPONDBNT, y. MERCER
COUNTY TRACTION COMPANT BT AL., APPELLANTS.
Arjned November 28, 1916— Decided September 18, 1917.
1. In order to construct a street railway from terminus to terminus
as authoHfled by tfie munldpftl Ofdinatice, M WAS HetJ^ssary to
etfma a steam railroad ; the ooasent of th« niiltodd (Mnuipaiiy to
the crossing could not be had and efforts by th« street milway
company to secure an order ot the Chancellor and the approval
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532 COURT OF EHRGBS AND APPEALS.
Hamiiton TWp. v. Mercer Co. Trac. Co. 90 N. J, L.
of the public utility commission were without l-esult. Held, that
in the absence of a legal right to cross the steam railroad a
mandamus should not be awarded to compel the construction of
the street railway.
2. A municipal ordinance authorized the construction of a street
railroad . from terminus to terminus. HM, that a mandamus
should not be awarded to compel its construction in two uncon-
nected sections, separated by a steam railroad, which the street
railway had no legal right to cross.
On appeal from the Supreme Court, whose opinion is re-
ported in 88 N. J, L. 485.
For the appellants, George W. Macplierson and Frank
Bergen,
For the respondent, Alvin W. Syhes and Linton Sat-
terthwaiie.
The opinion of the court was delivered by
SwAYZE, J. The pleadings in this ease as moulded by the
Supreme Court consist of an alternative writ of mandamus,
return and demurrer thereto. The return avers as follows:
The Mercer County Traction Company was organized in
1899 under the "Traction act" of 1893; on August 1st, 1904,
it leased all its property and franchises, except the franchise
to be a corporation, to Trenton Street Railway Company;
this lease was canceled October 15th, 1910, and a similar
lease made to Trenton and Mercer County Traction Corpora-
tion"; the township of Hamilton, by ordinance on February
7th, 1906, consented to the construction of a street railway by
Mercer County Traction Company on th6 Allentown, Cross-
wicks arid Trenton tumpike, beginning at 'the intersection
of the turnpike with the boundary between Mercer and Mon-
mouth counties, and thence westerly to a point in YardviUe
across and one hundred feet from and west of the railroad gf
tlie United New Jersey Railroad and Canal Company^. said
point being' the terminus in said turnpike of a street railway
owned by said Mercer County Tr^ion Company extending
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MARCH TEEM, 1917. 533
90 N. J. L. Hamilton Twp. v. Mercer Co. Trac. Co.
from Trenton to Yardville; the proposed street railroad^ if
constructed on the route prescribed in the ordinance and in-
dicated on a map filed with the secretary of state, would con-
nect with and might be operated in connection with the ex-
isting street railway owned and operated by appellants be-
tween Trenton and Yardville, and would be in effect a
physical extension of the appellants' pre-existing street rail-
way; the ordinance did not authorize the traction company
to construct its railway across the tracks of the United New
Jersey Railroad and Canal Company, and could have no legal
effect until the right to cross the railroad was obtained ; the
proposed street railway would be of little value unless it could
be connected with the railway from Trenton to Yardville,
and would not have been undertaken by the appellants; the
appellants, and each of them, shortly after the passage and
acceptance of the ordinances, endeavored in good faith to
negotiate an agreement with the United Railroads and the
Pennsylvania Railroad Company, its lessee, for permission
to construct street railway tracks across the railroad in order
to connect with the Trenton- Yardville tracks; in order that
an elevated crossing might be made the appellants pur-
chased land on both sides of the railroad for the purpose of
making a detour across the railroad above its grade, but could
reach no agreement with the railroad company; appellants
tiled a bill in chancery for a decree authorizing the construc-
tion of the street railway across the tracks of the railroad com-
pany, which suit is now pending; in April, 1913, the appel-
lants applied to the board of public utility commissioners for
an order authorizing such crossing to be made, but the board
adjourned the matter indefinitely and has never made the
order. "We need not recite other important averments in the
return since the case can be decided upon those already set
forth. The Supreme Court gave final judgment for the rela-
tors and ordered a peremptory mandamus requiring the ap-
pellants to forthwith complete the construction of the street
railway described in the ordinance of February 7th, 1906,
from the westerly terminus to Xorth Crosswicks and hence
within a reasonable time to the easterly terminus. The judg-
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534 COURT OF ERRORS AND APPEALS.
Hamilton Twp. v. Mercer Co. Trac. Co. 90 ^. J. L.
ment properly recognized the proposed railway as an entirety
from the westerly to the easterly terminus, but permitted it
to be built in two sections. It failed, however, to recognize
the fact that the construction ordered was impossible since the
street railway could not force its way across the tracks of the
United Railroad and Canal Company. There can be no
duty to be enforced by numdamus until there i^ an absolute
legal obligation to do what the writ commands. To consti-
tute such an obligation there, must be an absolute right to do
what is commanded. In the present case this requires not
only the municipal ordinances and the acceptance of them
by the street railway, but also either the assent of the railroad
company or action by the Court of Chancery and the board
of public utility commissioners. Comp, Stat,, p. 4235, pi. 32 ;
Pampk. L. 1911, p. 383, § 21. The Supreme Court suggested
that this contingency was within the contemplation of both
parties when the ordinance was passed and accepted. The
necessity of obtaining the assent of the railroad company or
the decree of the Chancellor must have been within the con-
templation of both since they are presumed to know the
statute. What effect this knowledge of the parties of a con-
dition necessary to performance resting on the will of a
court, and subsequently by legislative enactment the will of a
public administrative body, may have upon the obligation
of the contract we need not decide.
The prerogative writ of mandamus is not used for the en-
forcement of a mere contract between parties. Newark v.
North Jersey Street Railroad Co., 73 .V. J. L. 265. It is used
only to enforce a public duty which may sometimes grow out
of a contract as well as out of a statute. Wilbur v. Trenton
Passenger Railway Co., 57 Id. 212; Bridgeton v. Traction
Co., ^2 Id. 592; Rutherford v. Hudson River Traction Co.,
73 Id. nil\ Pleasantville v. Atlantic City Traction Co., 75
Id. 279; Camden v. Public Service Railway Co., 82 Id. 246;
but there can be no public duty to do what the law, out of
considerations of the public safety, forbids. To apply the
principle to the present case, there can be no public duty to
construct the street railwav across the railroad until the
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MARCH TERM, 19H. 535
00 y, J, L. Hamilton Twp. v. Mercer Co. Trac. Co.
statutory requirements are complied with. To hold otherwise
would be equivalent to permitting a municipality and a street
railway company to override a public statute based on the
highest considerations of public safety. If there was a valid
agreement between the municipality and the street railway,
and that agreement imposed an absolute obligation on the
railway company and not an obligation conditional upon the
proposed performance being permitted by law {Poll, Cont.
405; Batly v. DeCrespigny, L. R., 4 Q. B, 178; LouistnUe
and Nashville, &c,, Railroad Co, v. Motiley, 219 U, S, 467 ;
Pom, Cont,, § 295), the most the municipality could do in
case of breach of contract would be to sue the street rail-
way company for damages; but that is a very different
remedy from a mandamus commanding them to do wliat
the law forbids. Even if the contract required the street
railway company to exert its powers to secure the right to
cross, the court could at ihe utmost go no further than to
command it to exert its power. In that event, we would be
bound to assume that the Chancellor and the public utility
commission would act justly in furtherance of the public
policy evinced by the statute. We could not control the action
of either.
It is suggested that the railway company did not act in
good faith; but as good faith is averred in the return and
admitted by the demurrer, and as the company in fact ini-
tiated proceedings before the Chancellor (still pending), and
applied to the board of public utility commissioners and
brought the case to hearing, we are unable to see how bad
faith can properly be imputed. The Supreme Court a8sume<l
that the effort was made in good faith. If that were not so,
the Supreme Court still could not, legally, require the street
railway company to do something which our statutes forbid.
The furthest its writ of mandamus could go would be to re-
quire the railway company to press to a conclusion the pend-
ing proceeding before the Chancellor; it could hardly compel
the company to undo the act of the board of public utility
commissioners in adjourning the matter indefinitely ; and it
surely could not dictate to either tribunal what decision to
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536 COURT OF ERRORS AXD APPEALS.
Hamilton Twp. v. Mercer Co. Trac Co. 90 N. J, L.
render. Until a favorable decision is reached, the defendants
are under no public duty to build their railway across the
railroad tracks.
The Supreme Court realized the diflBculty, and to avoid it
suggested that if the crossing of the railroad was impossible,
the street railway company might still exercise their fran-
cliise in behalf of the public without reference to the steam
railroad crossing by completing the construction and oper-
ating their line on either side thereof. It is enough to say
that such is not the judgment entered nor the command of the
writ awarded by tlie court, which commands construction and
operation from terminus to terminus. The Supreme Court
might indeed amend the judgment when the record is re-
mitted but for the fact that there is an objection which is
insuperable. The sug^tion of the opinion amounts to:
changing an obligation to build one street railway into an
obligation to build two. It involves the holding that a com-
pany which has been incorporated and authorized to build a
single and continuous line between fixed tennini may be com-
pelled to build two separate lines with different termini. We
cannot know the practical effect of such a change. The de-
murrer admits the averment of the return that such a rail-
road would be of little value anJ would not have been under-
taken by the respondents. It is enough for us to know that
the company has not contracted to build two separate lines
and is not authorized by its charter or by the township ordi-
nances to do so. Both the public and the company are in-
terested in having exactly what the charter and the ordi-
nances provide; it is not for the court to give them some-
thing which it may think nearly as good. As -was said in
Bridgetoth v. Traction Co., 62 N. J. L. 592 (at /?. 600), "it
became the duty of the respondent company to operate the
railway over its entire route under the fianchises as acquired
by it." This duty could not be performed by operation over
a part of the route only. The company in that case had the
right to cross the bridge; it could not have performed its
public duty by merely running to the bridge on each side
and compelling its passengers to walk across. In this case
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MARCH TERM, 1917. • • 537
90 N, J. L. N. Y. and N. J. Water Co. v. Hendrickson.
^he company has no right to cross the railroad, but the se-
curing of that right was within the contemplation of both
the municipality and the street railway company; and the
line from terminus to terminus cannot be cut in two, and the
company absolved by a partial performance of an entire
contract.
The judgment must be reversed and the record remitted to
the end that judgment be entered for the defendants. The
defendants are entitled to costs.
For affirmance — Xone.
For reversal — The Chancellor, Chief Justice, Swayze,
Parker, Bergen, Kaliscii, White, Heppekheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
NEW YORK AND NEW JERSEY WATER COMPANY, APPEL-
I^NTS, V. CHARLES E. HENDRICKSON ET AL., STATE
BOARD OF ASSESSORS ET AL., RESPONDENTS.
Argued March 7, 1917— Decided June 18, 1917.
Owners of franchises whose business is the sale of their commodities
or services, gas, electric current, electric communication, steam
or water, with whom the means of transportation — ^wires or
pipes — are only the necessary means of delivering their com-
modities, are not transportation companies under section 4 of
the Voorhees Franchise Tax act of 1900 as amended (Comp.
8tat,y p, 5299, pi, 530), and, consequently, are taxable under
section 5 of that act (Comp, 8tat„ p, 5299, pi, 531) on the
whole of their gross receipts, irrespective of whether such re-
ceipts are from the sale of commodities or for its mere trans-
portation.
On appeal from the Supreme Court, whose opinion is re-
ported in 88 .Y. J. L. 595.
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538 COURT OF ERROBS AND APPEALS.
N. Y. and N. J, Water Co. v. Hendrickson. 90 N. J. L,
For the appellants, Franklin W. Fort, \
For the respondentg, Herbert Boggs, assistant attorney-
general.
The opinion of the court was delivered by
SwAYZE, J. One point raised by the appellants seems to
require notice. It is argued that the franchise tax on a water
company under the act of 1903, amending the Voorhees
Franchise Tax act of 1900 (Pamph, />. 1903, p. 232 ; Comp.
Stat., p, 5299), must be calculated only upon the gross re-
ceipts for transportation. Hence, it is said, it was erroneous
to tax the prosecutor on the whole of its gross leceipts, since
it owned the water it transported, and to calculate the tax
on the whole of the gross receipts was to calculate it, at least
in part, on receipts for the sale of water, as distinguished
from receipts for its mere transportation. The tax is fixed
by -section 5 {Comp. Stat., p. 5299, pi. 531) at two per
centum of the annual gross receipts "as aforesaid." The
reference is to section 4, and the difficulty arises out of the
fact that by that section the owner of a franchise is first re-
quired to make return of the gross receipts of the business,
and later, in the same section, every owner of a franchise
having part of its transportation line on private property and
part on public streets or places, is required to make return
showing the gross receipts for transportation. The appel-
lants assume that a water company is within the last pro-
vision. The history of the legislation shows the fallacy of
this assumption. The corresponding part of section 4, as
originally enacted in 1900 (Pamph. L,, p. 503), applied only
to oil or pipe line companies having part of their transporta-
tion line in this state and part in another state and to their
receipts for transportation of oil or petroleum. At that time
oil and pipe line companies transporting oil or petroleum
having part of their lines in this state and. p^rt in another
state, were transportation companies called transit companies,
and were soon after treated as common carriers by the act of
congress known as the Hepburn act. This view has recently
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MARCH TERM, 191?. 539
90 N, J, L. N. Y. and N. J. Water Co. v. Hendrickioii.
been sustained by the Supreme Court of the United States.
Pipe Line Cases, 234 U. 8. 548.
The legislature, in the act of 1903, dealt with two classes
of owners of franchises, one of which was required to make a
return of the gross receipts of the business, the other a return
of gross receipts for transportation. Probably all owners of
franchises affected by the act, i. e., those having the right to
use or occupy, and occupying the streets and public places,
used the streets for the transportation of their product. Such
are the owners of gas plants, electric light plants, telegraph
and telephone plants, steam heating plaints. If all these are
to be dealt with as transportation companies under the later
clause, there will be few or none left to make return on the
whole of their gross receipts under the earlier clause. Wliat
was meant by the later clause was to tax the owners of fran-
chises whose business was transportation, like the New York
Transit Company and the National Transit Company. Others
whose business was the sale of their commodities or services,
gas, electric current, electric communication, steam or water,
with whom the means of transportation — wires or pipes —
were only the necessary means of delivering their commodi-
ties, were taxable on their total gross receipts under the
earlier clause. This disposes of the objection to. the view of
the Supreme Court that the error in apportionment affects
only the municipalities and they do not complain. It dis-
poses also of the contention that the apportionment should
be made, not according to the length of the line, whether
there was one pipe or more, but according to the number of
feet of pipe. There is no apportionment necessary in ascer-
taining the amount of the tax, in which alone the appellants
are interested. If there has been error in apportioning the
amount among the taxing districts, the appellants are not
injured thereby.
As to other points raised, we have nothing to add to what
was said by the Supreme Court.
We find no error and the judgment is affirmed, with
costs.
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540 COUET OF EERORS AND APPEALS.
! 1
Christy V. N. Y. Cen. & Hud. Riv. R R. Co. 90 N, J. L.
For affirmance — The Changellor, Gabhison, Swayze^
Trench ARD, Bergen, Black, White^ Williams, Taylor,
Gardner, JJ. 10.
For reversal — Xone
CHARLES R. CHRISTY ET AL., RESPONDENTS, v. NEW
YORK CENTRAL^ AND HUDSON RIVER RAILROAD
COMPANY, APPELLANT.
Argued March 16,^1917— Decided June 18, 1917.
1. In a suit brought to recover damages for property destroyed by
fire through the failure of the defendant railroad to i!se reason-
able care to keep its right of way in New York State clear of
combustible materials, a written statement made by the defend-
ant's general manager (who was charged with the duty of main-
tenance and care of such right of way), to the public service
commission of New York (when it was conducting a legally
authorized investigation of the fire) to the effect that, at the
time of the fire, the defendant company had not cleared its right
of way of combustible materials, was admissible in evidence
against the defendant company.
2. The general rule is that when a corporation authorizes an attor-
ney to speak for it, the corporation may be confronted by testi-
mony as to what was said by such attorney within the scope of
his authority.
3. Where a railroad company had authorized its attorney to act
and speak for it at a legally authorized hearing by the public
service commission at which a fire along the company's right
of way, and the company's connection therewith, was under in-
vestigation, evidence as to such attorney's statements then and
there made with respect to combustible matter on such right of
way at the time of the fire, are admissible in evidence against
the company in a suit involving that issue, subject to the latter's
right to disprove, rebut, or explain such statements.
4. The presumption of payment or release arising from lapse of
time is not necessarily a conclusive and absolute presumption.
The lapse of time gives rise to a conclusive and absolute pre-
sumption only when not satisfactorily accounted for or explained.
But when so accounted for or explained the delay still remains
as one of the facts in the case upon which the ultimate question
of payment or release is to be determined in connection with
the other evidence.
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MAIfcH TERM> .1&17. 541
00 A\ J. L. Christy v. N. Y. Ce^rA Hud. Riv. R. R. Co.
/
I 7
5. When a party asks for aii instruction which is partly good and
partly bad, it is proper to refuse it altogether.
-^
On appeal from the Supreme Court.
For the appellant, Vrederiburgh, Wall & Carey,
For the respondents, Edmund TF. Wakelee, Wendell J.
Wright and Edward F. Thomall (of the New York bar).
The opinion of the court was deliverel by
Trenchard^ J. This appeal brings up for review a judg-
ment in favor of the plaintiffs below, .?ntered upon the ver-
dict of a jury, at the Hudson Circuit.
We are of the opinion that the judgment must be affirmed.
The action was brought by the plaintiffs, residents of New
Jersey, against the defendant railroad, to recover the value
of certain cut and piled timber at Long Lake West, Ham-
ilton county. New York, which was destroyed by fire on Sep-
tember 27th, 1908.
The only questions raised on this appeal are those points
reserved in the rule to show cause why a new trial should not
be granted, which was discharged.
The first challenges the admission in evidence at the trial
of a communication by A. H. Smith, vice president and gen-
eral manager of the defendant company, dated Januaiy 6th,
1909, addressed to the public service commission, second
district. State of New York.
The situation was this: At the trial of the present case
the main issue was whether or not the defendant company
was negligent in the maintenance and care of its right of way
in violation of itfe' common duty to exercise reasonable care
to keep it clear of combustible matter, by reason of which neg-
ligeilc^ the plaintiffs sustained the damages sued for.
The jilaintiffs introduced evidence tending to show that
the right of way of the defendant at and near where the
plaintiffs' lumber was piled was filled with combustible ma-
terials. Th^ plaintiffs also put in evidence section 7'^ of the
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542 COURT OF ERRORS AND APPEALS.
Christy v. N. Y. Cen* & Hud. Riv. B. R. Co. 90 N. J, L.
(Jeneral Railroad law of the State of New York which enacts,
among other things, that "every railroad company shall, on
such parts of its road as passes through forest land or lands
subject to fires from any cause, cut and remove from its right
of way along such lands, at least twice a year, all grass, brush
and other inflammable materials," and also provides that
"the public service commission must, upon the request of the
forest, fish and game commissioner, and on notice to the
railroad company or companies affected, require any railroad
company having a railroad running through forest lands in
counties containing parts of the forest preserve, to adopt such
devices and precautions against setting fire upon its line in
such forest lands as the public interest requires.*'
It was also proven and admitted (1) that part of the forest
preserve was in Hamilton county; (2) that after the fire in
question the public service commission of the second district
of the State of New York, upon the request of the forest,
fish and game commissioner, began an investigation into such
fire to ascertain what the causes were, and to what extent
railroad operations were responsible; (3) that the commis-
sion made an order directing the defendant company and
others to show cause what precautions were being used by
them against setting fires upon their respective lines in forest
lands, &c. ; (4) that at such hearing the defendant company
was represented both by its general attoniey and its local at-
torney, and submitted to the commission a communication,
in writing, made by Mr. Smith, the vice president and general
manager of the defendant company.
It was evidence of this communication which the defend-
ant contends was error requiring reversal. We think not.
The communication contained a statement from which the
inference might properly be drawn that the defendant com-
pany, at the time of the fire in question, had not cleared its
right of way of combustible materials, and the communication
having been made by its general manager, who, it appeared,
was charged with the duty of maintenance and care of such
right of way, was admissible in evidence against the defend-
ant company. Hdsey v. Lehigh Valley BaUroad Co., 45 N*
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MARCH -TERM, 1917. 543
90 N, «/. //. Christy v. N. Y. Cen, A Htid* Riv. B. R Co.
J. L, 26; Agri<niltvr(U Insurance Co. v. Potts, 55 Id. 158;
Carey v. Wolff it Co,, 72 M 610; Jones v. ilfouni J?o%
Water Co., 87 M 106.
It is next argued that there should be a reversal because of
evidence given of an oral statement made by Martin E. Mc-
Clary, the local attorney of the defendant, before the public
service commission, at the hearing above referred to.
We think there is no merit in this contention.
It satisfactorily appeared at the trial, apart from Mr. Mc-
Clary's statement, that he was the defendant's local attorney,
and was instructed by the defendant company to act and
speak for it at the hearing respecting the defendant's relation
to the fire in question.
The statement in question was then and there made by him
in pursuance of his instructions. It was in amplification of
the written statement of Mr. Smith, and was that the condi-
tion of the right of way, with respect to combustible matter,
was "bad and was one of the causes of the fite."
Now, the general rule is that when a corporation authorizes
an attorney to speak for it, the corporation may be confronted
'by testimony as to what was said by suc!i attorney within the
scope of his authority. Gallagher v. McBride, 66 N, J, L.
360; Uuebner v. Erie Railroad Co., 69 Id. 327; King v.
Atlantic City Cos Co., 70 M 679; Wall v. Hinds, 4 Oray
(Majfs.) 266; Luther v. Clay, 39 L. R, A. (Oa.) 95. .
And where, as here, the defendant railroad company had
authorized its attorney to act and speak for it, at a legally
authorized hearing by the public service commission at which
the fire in question, and the defendant's connection therewith,
was under investigation, evidence as to such attorney's state-
ments then and there made with respect to combustible
matter on such right of way at the time of the flre, was ad-
missible in evidence against the company in this suit involv-
ing that issue, subject to the latter's right to disprove, rebut
or explain such statements.
The last reason urged for reversal is that the trial judge
refused to charge as follows :
'Tlaintiffs' right of action, if any, having accrued Septem-
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544 COURT OF ERRORS- AND' APPEALS.
Christy v. N. Y- Oen. & Hud. Riv. R. R. Co. 90 N. J. L.
ber 27th, 1908, the law of this state presumes that plaintiffs^
demands were paid or released within one year thereafter.
This presumption has not been rebutted and the verdict must
be for the defendant."
The defendant's contention was, and is, that the plaintiffs,
when they invoked the jurisdicti<]in of a court of thijj state
over such a cause of action arising in New York, must accept
the limitations which would arise against one prosecuting
such a cause of action which arose in this state, and that the
courts of New Jersey will presume that such cause of action
has been released or settled at the expiration of the period of
one-year limitation found in section 58 of our General Rail-
road act. Pamph. L, 1903, p. 674. And since that section
only applies to railroads within this state, the defendant filed
pleas of payment and release in order to raise that question.
Assuming that the defendant's contention respecting the
presumption of payment or release is sound to a certain ex-
tent, still the refusal of the instruction was right.
.The presumption of payment or release arising from lapse
of time is not necessarily a conclusive and absolute presump-
tion. The lapse of time gives rise to a conclusive and abso-*
lute presumption only when not satisfactorily accounted for
or explained. But when so accounted for or explained, the
delay still remains as one of the facts in the case upon which
the ultimate question of payment or release is to be determined
in connection with the other evidence. Oidich v. Loder, 13
N. J. L. 68, 71 ; Bins v. Everett, 55 N. J. Eq. 329,- and cases
there cited.
At the trial, in order to meet the defendant's pleas of pay-
ment and release, and to account for and explain the delay of
a few days beyond one year from the time of the fire, the,
plaintiffs proved that they had not been paid and had not re-
leased the defendant. They also introduced evidence tending
to show that immediately after the fire they put their claim in
the hands of their attorney who had many interviews and
much correspondence respecting it with the duly-authorized
attorney of the defendant; that in the course of these i^ego-
tiations, and about two weeks before the expiration of one
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MARCH TERM, 1917. 545
90 N. J, L. Eckert v. West Orange.
year from the time of the fire, the defendant's attorney re-
quested the plaintiffs' attorney to delay beginning suit until
a day named, which, it appears, was one day beyond the one-
year period; that on that day the defendant's attorney in-
formed the plaintiffs' attorney that further negotiations were
useless, and within a few days thereafter this suit was begun.
In this state of the proofs the trial judge was bound to,
and did, submit the question of payment and release to the
jury.
So, too, he was bound to refuse the request to charge.
Even if it be assumed that the first paragraph of the re-
quest was proper, clearly the second paragraph, which called
for a direction of a verdict for the defendant, was improper.
And when a party asks for an instruction which is partly good
and partly bad, it is proper to refuse it altogether. Dederick
V. Central Railroad Co,, 74 N. J, L. 424.
The judgment under review will be affirmed, with costs.
For affirmance — The Chancellor, Garrison, Swayze,
Trenchard, Bergen, Minturn, White, Heppenheimer,
Williams, Taylor, Gardner, JJ. 11.
For reversal — None.
FRANK G. ECKERT. APPELLANT, v. TOWN OF WEST
ORANGE, RESPONDENT.
Submitted March 26, 1917— Decided June 18, 1917,
1. A town has the authority to provide for the collection and dis-
posal of ashes and garbage in either of two ways, bnt not other-
wise— first, it may provide for the doin^ of the work by the
town itself. If it adopts this course, it must do so by ordinance,
with all of the formalities necessary to enact a valid ordinance;
second, it may make a contract with some one to do the work.
But where more than |500 is to be expended, it has no authority
to make a valid contract until it has first publicly advertised for
bids, and the contract can then be awarded only to the lowest
responsible bidder.
Vol. xc. 35
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546 COUKT OF ERROES AND APPEALS.
Eckert v. West Orange. 90 N. J, L,
2. Where a town has contracted for the removal of ashes and gar-
bage involving an expenditure of more than $500, without com-
plying with the provisions of chapter 342 of the laws of '1012
(Pamph. L.f p. 593) requiring advertisement for bids and award
to the lowest responsible bidder, there can be no recovery on a
quantum meruit for services rendered* under such ultra virea con-
tract after the service upon the contractor of the writ of cer-
tiorari sued out to review the validity of the contract
3. The law will not permit a recovery on a quantum meruit in a
suit against a municipality where an express contract would be
ultra vires because in violation of chapter 342 of the laws of
1912. Pamph. L., p, 593.
On appeal from the Essex County Circuit Court.
For the appellant, Arthur B. Sm/movr.
For the respondent. Borden D, Whiting and Ira C,
Moore, Jr,
The opinion of tlic court was delivered by
Trenchard, J. This is an appeal from a judgment of the
Essex County Circuit Court in favor of the defendant in an
action brought to recover compensation for collecting and dis-
posing of ashes and garbage in the town of West Orange.
The material facts are as follows :
The town council of the town of West Orange passed an
ordinance purporting to create the office of town scavenger.
This ordinance provided that this so-called officer should col-
lect all ashes and garbage and dispose of the same at a place
to be provided by himself. His salary, by an amendment
passed May 5th, 1914, was fixed at the rate of $4:69.50 a
month. This was intended not only to compensate him for
his services in supervising the work, but also to reimburse him
for his necessary expenses, such as hiring men and providing
wagons. Eckert, the plaintiff, was appointed town scavenger
under this ordinance.
On July 20th, 1914, a writ of certiorari was allowed attack-
ing the ordinance and the appointment of Eckert thereunder
and the writ was served upon Eokert July 23d, 1914. One of
the grounds of attack was that it violated chapter 342 of the
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MARCH TERM, 1917. 547
90 N, J, L. Eckert v. West Orange.
laws of 1912 (Pamph, L., p. 593) which requires that where
an expenditure of more than $500 is to be incurred for labor,
materials, &c., the town council must first publicly advertise
for bids and award the contract to the lowest responsible bid-
der. On August 14th, 1914, the Supreme Court rendered
judgment setting aside the ordinance and appointment of all
proceedings thereunder. Briefly, the basis of Ihe decision was
that the person appointed under an ordinance of this .char-
acter was not an officer of the town and the services were such
as should be regulated by contract.
The plaintiff continued to act as scavenger until Septem-
ber 15th, 1914, thereby serving after service of the writ of
certtoraid upon him, and even after entry of the judgment
setting aside the ordinance and his appointment. He wa?
paid in full up to July 31st, 1914, which was one week aftei
the writ of certiorari was served upon him. He has not been
paid for the work done from August Ist, 1914, to September
15th, 1914. It is to recover compensation for work per-
formed by him during this period that this suit was brought.
We are of the opinion that the judgment for the defend-
ant was right.
The contention that, even though the contract was set aside
as illegal, the plaintiff iS) nevertheless, entitled to recover on
a quantum meruit, is not well founded in law.
A municipality is under no legal obligation to take charge
of the rubbish or garbage which accumulates upon the prop-
erties of the inhabitants thereof. It has authority to do so,
however, by virtue of the following acts of the legislature :
A supplement to the Town act of 1895 (Comp. Stat,, p,
5533, f 378) provides that *Hhe council shall have power by
ordinance to provide for the collection, removal, treatment
and disposal of ashes and garbage, and to appropriate and pro-
vide for raising moniey by taxation for the said purposes, or
any or either of them."
The Town act of 1895, as amended by Pamph, L. 1906, p.
324, provides: "Xo ordinance or by-law shall be passed by
the town council unless the same shall have been introduced
at a previous stated meeting, and shall be agreed to by a
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648 COUET OF ERRORS AND APPEALS.
Eckert v. West Orange. 90 N. J, L.
majority of the members of the council; and no ordinance
shall take effect until five days after it shall have been pub-
lished in the official newspapers of the town, and if there be
none, in at least one newspaper published in the county and
circulating in the town * * *."
Chapter 56 of the laws of 1914 (Paraph. L,, p. 91) pro-
vides as follows : "It shall be lawful for the governing body
of any incorporated town of this state to enter into and make
a contract or contracts, not exceeding the term of five years
at a time, with any corporation or individual for the collection
and removal of. ashes and rubbish, and for the collection, re-
moval and disposal of garbage."
Chapter 342 of the laws of 1912 (Pamph. L., p, 593) pro-
vides as follows : ^TV^here and whenever hereafter it shall be
lawful and desirable for a public body in any county, city,
town, township, borough or village to let contracts or agree-
ments for the doing of any work or for the furnishing of any
materials or labor, where the sum to be expended exceeds the
sum of five hundred dollars, the action of any such public
body entering into such agreement or contract, or giving any
order for the doing of any work or for furnishing of any
materials or labor, or for any such expenditures, shall be in-
valid unless such public body shall fiirst publicly advertise for
bids therefor, and shall award said contract for the doing of
said work or the furnishing of such materials or labor to the
lowest responsible bidder; provided, however, that said public
body may, nevertheless, reject any and all bids."
It thus appears that the town council has authority to pro-
vide for the collection and disposal of rubbish and garbage
in either of two ways, but not otherwise — first, it may pro-
vide for the doing of the work by the town itself. If it adopts
this course, it must do so by ordinance, with all of the for-
malities necessary to enact a valid ordinance ; second, it may
make a contract with someone to do the work. But, wher^
more than $500 is to be expended, it has no authority to make
a valid contract until it has first publicly advertised for bids,
and the contract can then be awarded only to the lowest re-
sponsible bidder.
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MARCH TERM, 1917. 5 49
90 N. J. L. Eckert v. West Orange.
The sections of the Town act, and the acts of 1914 and
1912, above quoted, should be read together in the same man-
ner as this court in Townsend v. Atlantic City, 72 N, J, L.
474, decided that the act under which Atlantic City was or-
ganized (Pamph. L, 1902, p. 284), and the Garbage act
(Pamph. L, 1902, p. 200), should be read together. The
town, therefore, had no power to make the contract in ques-
tion with the plaintiff without complying substantially with
the provisions of the act of 1912, and that, admittedly, it
did not do.
Where, as in this ease, a town has contracted for the re-
moval of ashes and garbage involving an expenditure of more
than $500, without complying with the provisions of chapter
342 of the laws of 1912 {Pamph. L., p. 593), requiring ad-
vertisement for bids and award to the lowest responsible bid-
der, there can be no recovery on a quantum meruit for ser-
vices rendered under such ultra vires contract after the ser-
vice up^n the contractor of the writ of certiorari to review the
validity of the contract.
This case is different from a suit against a private corpo-
ration on a claim arising out of an ultra vires contract. The
defendant in this case is a municipal corporation. The con-
tract out of which the plaintiff's claim arises is ultra vires,
not because of the provisions of som^ private charter, but be-
cause it violates the public policy of the state.
The legislature by the act of 1912 provided that all public
contracts involving the expenditure of more than $500, must
be publicly advertised and awarded to the lowest bidder. The
purpose and importance of this act is too obvious to require
comment. The plaintiff is now asking that a contract be im-
plied which this law expressly declares shall be invalid. His
claim is for more than $500. It is for services performed
after the granting and service of a writ of certiorari to review
his express contract with the town, and in large part per-
formed after the Supreme Court had set aside his express con-
tract as ill^al. If he can recover on a quantum meruit for
these services, it would seem that there would be nothing to
prevent a town council so disposed from permitting him to
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550 COUET OF ERRORS AND APPEALS.
Eckert v. West Orange. 90 N. J, L,
continue indefinitely to act as town scavenger without any ex-
press contract and thus evade the provisions of the act of 1912
entirely.
Moreover, the law will not permit recovery on a quantum
wcrnit in a suit against a municipality where an express con-
tract would be ultra vires. Recovery hjis frequently been al-
lowed on a quantum meruit, where there has been some un-
important irregularity in the proceedings, or an innocent mis-
take as to some matter of fact. But the law will not raise an
implied promise which would, as in this case, be in direct de-
fiance of an act of the legislature. If the plaintiff's conten-
tion were correct this law (Pamph. L. 1912, p. 593), which
applies to all municipalities alike, and represents a definite
public policy, could be nullified by proof of the fact that the
man had done the work and therefore was entitled to what
such work was reasonably worth.
In Hackettstown v. Sumckhamw^r, 37 iV. J. L, 191, it was
held that a note given for an unauthorized loan could not be
enforced even though the money borrowed had been expended
for municipal purposes. Chief Justice Beasley, in delivering
the opinion of the Supreme Court, said (at p. 196) : "Nor
do T think that it adds anything to the right, to enforce the
note in this case, that the money which it represents, and
which was borrowed, has been expended in behalf of the cor-
poration for legitimate purposes. The argument on this head
was that, as the money had gone for the benefit- of the cor-
poration, the law, upon general principles, would compel its
repayment. If this is so, then the rejection of an implied
power to borrow is of little avail. The doctrine, although
repudiated in the abstract, would be ratified in the concrete.
* * * It is to be noted that it is altogether a fallacy to
argue that the law will raise an implied power to repay the
money after it has been used. The impediment to such a
theory is that the corporation has not the competency to make
the promise thus sought to be implied. An express promise,
to the effect contended for, would be illegal, and, therefore^
clearly, the law will not create one by implication. ♦ * *
N"o one can justly reproach the law for not providing him a
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MARCH TERM, 1917. 551
90 N. ./. L. Eckert v. West Orange.
remeuv for his own folly or indiscretion. Such folly or in-
discretion may have enabled the city officials to create a
burden, or may have stimulated them to acts of extravagance,
which would not have been otherwise created or done. It is
but just that the individual who has occasioned the evil should
bear the loss."
In mil Dredging Co. v. Ventnor City, 77 N. J. Eq. 467,
it was held that a municipal corporation cannot be bound by
an engagement which it had no power to make; and the cor-
porate powers of such a corporation cannot be extended by
the doctrine of estoppel.
In Dallas v. Sea Isle City, 84 N. J. L. 679, this court said :
"Courts are instituted to carry into effect the laws. They can-
not become auxiliary to the consummation of violations of
law. And so it has been held with practical unanimity in
such circumstances, since an express promise to pay is ultra
vires and unlawful, the law will not raise an implied promise."
See, also. Bourgeois v. Freeholders of Atlantic, 82 N. J. L.
82, and eases there collected.
The cases cited by the plaintiff in his brief furnish no sup-
port for a recovery in this case. For example, in the Bour-
geois case, supra, the lumber was ordered by an unauthorized
agent, but the board of freeholders had authority to buy the
lumber and by its acts ratified the purchase.
In New York^ Susqwehanna and Western Railroad Co. v.
Patersofi, 86 N. J. L. 101, the city had the power to make the
contract, although it was not regularly executed.
In Wentinh v. Freeholders, 66 N. J. L. 65, there was no
lack of power to make the contract. There was an innocent
mistake for which the plaintiff was not responsible, and as
to a matter about which he was not bound to inquire.
In Klemm v. Newark, 61 N. J. L. 112, the city was held
to have the power to make the contract, as the making of it
acted as a suspension of the ordinance which forbade it. See
MacLear v. Newark, 77 Id. 712, 714.
In Tappam v. Long Branch Commission, 59 .Y. J. L. 371,
the proceedings were regular on their face and the city was
acting within the scope of its chartered power.
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552 COUKT OF ERRORS AND APPEALS.
Eckert v. West Orange. 90 N, J. L.
The case of Bigdow v. Perth Amboy, 25 N. J. L. 297, does
not appear to be applicable, but in that case the city had the
power to purchase the material.
It is true that the work performed by the plaintiff in tlie
case at bar was of a character which the defendant was au-
thorized by law to have done ; and it is true that the plaintiff
performed the work for the defendant at its request. The
plaintiff's difficulty is that the request was lUtra vires and in-
valid. While the defendant was authorized to make a con-
tract for this work, its authority was conditional upon its
awarding the contract in accordance with the provisions of
the statute of 1912. It had not the power either to make or
to ratify an express contract in any other manner; and the
law will not imply a contract which the parties had not power
to make. The plaintiff in this case was a party to a scheme to
evade and nullify a well-defined public policy of this state,
and his present predicament is a direct result of thaj: scheme.
Wliat his motive may have been is immaterial. Under such
circumstances, the courts will not aid him by implying a con-
tract which the law expressly forbids, but will leave him where
it finds him.
The judgment below will be affirmed, with costs.
For affirmance — The Chancellor, Garrison, Swayze,
Trenchard, Parker, Bergen, Minturn, Kalisch, Black,
White, Heppenheimer, Taylor, Gardner, JJ. 13.
For reversal — Xone.
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MARCH TERM, 1917. 553,
90 N. J, L. Orlando v. Ferguson & Son.
VITO ORIx^NDO, RESPONDENT, v. F. FERGUSON & SON,
A CORPORATION, APPELLANT.
Submitted March 25, 1917— Decided October 12, 1917.
1. Under section 2 of the Workmen^s Compensation act {Pamph,
L. 1911. p. 134, as amended by Pamph, L. 1913, p. 302), in the
case of a partial but permanent loss of the usefulness of both
hands, or both arms, or both feet, or both legs, or both eyes, or
any two thereof, compensation shall bear such relation to the
compensation therein provided for total and permanent disa-
bility as the partial but permanent disabilities collectively bear
to total and permanent disability.
2. In a case under section 2 of the Workmen's Compensation act
(Pamph. L. 1911, p. 134, as amended by Pamph, L. 1913, p.
302), when the trial judge finds that there was a fifty per cent,
loss of the usefulness of each hand, and a ten per cent loss of
the usefulness of one eye, he should then find what percentage
of total and permanent disability the combination of fifty per
cent, loss of the usefulness of two hands and ten per cent of one
eye make, and should then award as compensation that per-
centage of four hundred weeks. It is not strictly a mathe-
matical problem. It is not to be solved by adding up the frac-
tional parts, but upon the basis of the percentage of total and
permanent disability reasonably found to be produced by the
several injuries considered collectively and with due regard to
their cumulative effect.
On appeal from the Supreme Court.
For the appellant, Pierson & Schroeder.
For the respondent, LaPorta & Stites,
The opinion of the court was delivered by
Trenciiard, J. This is a proceeding under section 2 of
the Workmen's Compensation act (Pamph. L. 1911, p. 134,
as amended by Pamph. L. 1913, p. 302) brought before a
judge of the Hudson County Common Pleas Court to recover
compensation for the petitioner's injuries.
The learned trial judge rendered judgment for the peti-
tioner, and that judgment was affirmed by the Supreme
Court.
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55^ COURT OF ERRORS AND APPEALS.
Orlando v. Ferguson & Son. 90 N. J. L,
We are of the opinion that the judgment of the Supreme
Court now here for review must be reversed.
We think that sufficient facts were found by the trial court
to warrant a judgment for the petitioner, and that there waa
evidence to support such finding. But we cannot agree thai
the method used in fiLxing the amount of compensation
awarded was proper.
The petitioner was employed in attending a furnace. A
flame shot out severely burning him. The trial judge found
that there was a fifty per cent, loss of the usefulness of each
hand, and a ten per cent, loss of the usefulness of one eye.
He considered the two hands together as fifty per cent, of
total and permanent disability and allowed therefor two hun-
dred weeks (fifty per cent, of the four hundred weeks al-
lowed by the statute for total and permanent disability), and
allowed additional compensation of ten per cent, of one hun-
dred weeks for the injury to the eye, making a total of two
hundred and ten weeks.
We think that such method of fixing compensation was
wrong.
Paragraph 11 of section 2 of the Workmen's Compensation
act (Pamph. L. 1913, p. 302) divides injuries into three
classes — those producing {o) temporary disability; (6) total
and permanent disability, and (c) partial but permanent
disability. Subject to certain limitations and provisos not
affecting this case, it enacts a schedule of compensation for
each class of injuries as follows :
(a) Temporary disability, fifty per cent, of wages during
disability not beyond three hundred weeks.
(&) Total and permanent disability, fifi-^ per cent, of
wages not beyond four hundred weeks.
{c) Partial but permanent disability, according to a sched-
ule set forth, based upon the extent of the disability, in which
are included these — for loss of a hand, fifty per cent, of wages
during one hundred and fifty weeks ; for loss of an eye, fifty
per cent, of wages during one hundred v/eeks.
The paragraph then continues :
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MARCH TERM, lOl-Ji. 555
90 N. J. L. Orlando v. Ferguson & Son.
"The loss of both hands, or both arms, or both feet, or both
legs, or both eyes, or of any twa thereof, f^hall constitute total
and permanent disability, to be compensated according to
the provisions of clause (6)."
It then adds:
"In all other cases in this class, or where the usefulness of
a member, or any physical function, is permanently impaired,
the compensation shall bear such relation to the amounts
stated in the above schedule as the disabilities bear to those
produced by the injuries named in the schedule/'
Now, the trial judge avowedly undertook to apply the prin-
ciple underlying the case of Vishney v. Empire Steel and Iron
Co., 87 N. J. L. 481. The Supreme Court considered that he
did apply it. We think he did not.
In the Vishney case there was an eighty per cent, loss of
the usefulness of both eyes. The trial judge there held that
compensation for injury to each eye should be considered
separately under clause (c) and calculated the number of
weeks for which compensation should be made on the basis
of an eighty per cent, injury to each eye, which would make
eighty weeks (eighty per cent, of one hundred weeks) for each
eye, or a total of one hundred and sixty weeks for both.
That award the Supreme Court reversed, saying: "It ap-
pearing that there was a loss of the usefulness of both eyes
to the extent of eighty per cent., the prosecutor was entitled
to compensation for three hundred and twenty weeks."
That case, therefore; furnishes no support for the action of
the trial judge, in the present case, in adding ten per cent,
of one hundred weeks for the injury to the eye after having
allowed fifty per cent, of four hundred weeks for total and
permanent disability on account of the fi:fty per cent, loss of
the usefulness of both hands. It must be obvious that if such
a case of partial but permanent disability of three members
is to be apportioned on the basis of total and permanent disa-
bility, it must be in the proportion that all of the injuries
bear to total and permanent disability, and not partly on the
ratio that two of them bear to total and permanent disability
and partly on the compensation provided for injury to the
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556 COURT ©F ERROBS AND APPEALS.
Orlando v. Ferguson & Son. 90 N. J. L.
third member only. It must be equally manifest that com-
pensation for total and permanent disability cannot exceed
four hundred weeks; and if there is a partial but perma-
nent disability the compensation cannot exceed a certain
definite portion of four hundred weeks. The method adopted
by the trial judge gave a portion of four hundred weeks and
a portion of an additional one hundred weeks, making a por-
tion of a total of five hundred weeks. That this method is
erroneous is also seen by supposing, for convenience, the in-
jury to the eye to .have been a fifty per cent. one. There is
no legal relation that would cause the two hands to be con-
sidered together rather than one hand and one eye. There is
a physical relation between the two, but not a legal one, as
the statute considers any two indiscriminately. If the court
had combined the one eye and one hand as a fifty per cent,
of the total, giving two hundred weeks, and taken the other
hand separately, it would have resulted in a total of two hun-
dred and seventy-five weeks. Whereas, if the two hands had
been combined, resulting in two hundred weeks and fifty
weeks added for half of the loss of the eye, the total would
have been two hundred and fifty weeks. We consider either
one of these methods as legally justifiable as the other. Of
course, neither is right.
We do not, however, approve of the method of award advo-
cated by the appellant, namely, that compensation should be
calculated by taking each injured function separately and
adding up the items of partials. This was the method con-
demned in Vishney v. Empire Steel and Iron Co., supra. The
appellant contends that the Vishney case was wrongly de-
cided, the argument being that "this class" (page 304 of act
of 1913) means partial in character and permanent in quality
(clause c) and excludes any consideration of the allowance
for total and permanent disability as a standard, and hence,
that if there is any percentage of total and permanent disa-
bility less than one hundred, it must be reckoned by adding
up the items of partials. But we think not.
We consider that the Vishney case, so far as its underlying
principle above stated is concerned, was rightly decided. We
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MARCH TERM, 1917. ^ 557
90 y. J. L. Orlando v. Ferguson & Son.
consider that the facts in that case and in this bring both
within the "other cases in this class or where the usefulness
of a member or any physical function is permanently im-
paired/' and hence "compensation shall bear such relation to
the amounts stated in the above schedule (t. e., for both
hands, or both eyes, or any two of them, four hundred weeks)
as the disabilities bear to those produced by the injuries
named in the schedule." That compen^sation should not be
awarded by adding up the items of partials taken separately
will be seen by supposing the case of au eighty p^r cent, in-
jury of both hands and both feet. By that method we would
get eighty per cent, of one hundred and fifty weeks for the
first hand, t. e,, one himdred and twenty weeks ; one hundred
and twenty weeks for the second hand; eighty per cent, of
one hundred and twenty- five weeks (being number of weeks
allowed in schedule for one foot), t. e., one hundred weeks
for the first foot and one hundred weeks for the second foot,
making a total of four hundred and forty weeks, or forty
weeks more than the number of weeks allowed for total and
permanent disability.
We think the true rule is, that in the case of a partial but
permanent loss of the usefulness of both hands, or both arms,
or both feet, or both 1^, or both eyes, or any two thereof,
compensation shall bear such relation to compensation for
total and permanent disability as the partial but permanent
disabilities collectively bear to total and permanent disa-
bility.
It follows, therefore, that when the trial judge found that
there was a fifty per cent, loss of the usefulness of each hand,
and a ten per cent, loss of the usefulness of one eye, he should
then have found what percentage of total and permanent disa-
bility the combination of fifty per cent, loss of the usefulness
of two hands and ten per cent, of one eye made, and should
have awarded that percentage of four hundred weeks. It is
not strictly a mathematical problem. It is not to be solved
by adding up the fractional parts, but upon the basis of the
percentage of, total and permanent disability reasonably found
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558 COURT OF ERRORS AND APPEALS.
Security Trust Co. v. EMwards. 90 N. J. L.
to be produced by the several injuries considered collectively
and with due regard to their cumulative effect.
In this particular case it may be that the resiUt was ap-
proximately right, though the method by which it was reached
was wrong, and, as we have pointed out, would lead to wrong
results in many cases of partial but permanent loss of the use-
fulness of two or more members. What the trial judge found
in res^dt was fifty-two and one-half per cent, of four hundred
weeks. If he had found that the combination of fifty per
cent, of the loss of both hands and ten per cent, of Ihe eye
equaled, for example, fifty-three per cent, of total and per-
manent disability, it may be that such would be regarded as a
reasonable finding; but with respect to that, of course, no
opinion is now expressed.
The judgment of the Supreme Court will be reversed, to
the end that the proceeding be remanded to the Common
Pleas Court for a judgment based upon a finding made in
accordance with the foregoing principles.
No costs will be allowed in this court.
Por affirmance — None.
For reversed — The Chancellor, Garrison^ Trenchard,
Parker, Bergen^ Black/ White, Heppenheimer, Wil-
liam's; Taylor, Gardner, J J. 11.
SECURITY TRUST COMPANY, EXECUTOR OF LEONARD
MORSE, DECEASED, RESPONDENT, v. EDWARD I. ED-
WARDS, STATE COMPTROLLER, APPELLANT.
Argued March 13, 1917— Decided June 18, 1917.
The interest of a nonireeident deceased pledgor of stock of a New
Jersey corporation in such stock is subject to the transfer tax
imposed by the act of 1909 (Pamph, Ir., p. 325 ; Oomp. Stat,, p,
5801), as amended in 1914. Pamph. L,, p. 207.
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MARCH TERM, 1917. 559
90 X. J. L, Security Trust Go. v. Edwards.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N. J. L. 396.
For the appellant, John W. Wescott, attorney-general, and
John R, Hardin.
For the respondent, Lum, Tamblyn & Colyer, EcUph E.
Lum and Joseph F. McCloy (of the New York bar).
The opinion of the court was delivered by
Trenchabd^ J. This is an appeal by the state comp-
troller, defendant in certiorari, from a judgment of the Su-
preme Court setting aside an inheritance tax levied under
the act of 1909 {Pamph. L., p. 325; Comp. Stat., p. 5301),
as amende in 1914. Pamph. L., p. 267.
The prosecutor below. Security Trust Company, a Con-
necticut corporation, is the executor of the will of Leonard
Morse who died resident in Hartford, Connecticut, on April
2d, 1915. Morse left no real estate whatever, either within
or without New Jersey. His gross estate amounted to $64,-
523.85, and by the will went entirely to collaterals or those
unrelated to the testator. The estate consisted largely of
certain securities, viz., corporate stock and four bonds ap-
praised in the aggregate at $63,285.50. All of these securi-
ties had been pledged by Morse in his lifetime, accompanied
by a power of attorney in blank to the Phoenix National
Bank of Hartford, Connecticut, to secure his promissory note
of $37,500 upon which there was due $5.21 of interest, to-
gether with all of the principal amount, at the time of his
death. It does not appear that this note had been called prior
to the death of Morse or that the pledgee had caused any of
the securities to be transferred to it or that any demand had
been made upon him prior to death for the payment of the
' note.
Among the securities so pledged were New Jersey stocks
appraised in the aggregate at $28,249.
The comptroller appraised the New Jersey stocks at the
%ure8 above mentioned, and the decedent's interest in the
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560 COURT OF ERRORS AND APPEALS.
Security Trust Co. ▼. Edwards. 90 N, J. L.
Xew Jersey stocks at the sum of $11,507. This amount was
obtained by prorating the amount of the loan together with
such portion of the general deductions as the other assets
were insufficient to meet, over all of the stocks pledged. The
value of the equity in the New Jersey stocks was arrived at
by applying to the equity in all of the stocks the fraction
represented by the value of the New Jersey stocks over the
value of all the securities pledged.
Treating the gross estate for the purpose of taxation as the
value of the equity in all of the stocks, plus the value of the
other assets, the comptroller arrived at the proportion de-
manded by the method of computation prescribed for non-
resident estates in section 12 of the act (namely, the ratio of
the New Jersey property to the total property wherever situ-
ate), which proportion was found to be forty-two and six-
tenths per cent. The tax was then calculated in the manner
prescribed in that section and found to be $527.55.
The comptroller refused to consent to the transfer of the
New Jersey stocks to the executor of the decedent, unless such
tax upon the decedent's equity therein was paid, and ac-
cordingly it was paid.
The amount of the tax, t. e., the method of computation, ia
not challenged, and with that we are not concerned.
The only question, presented by the record, and, indeed, the
only question argued, is that decided by the Supreme Court,
namely, Is the interest of a non-resident deceased pledgor of
stock of a New Jersey corporation in such stock subject to
the transfer tax imposed by Pamph, L. 1909, p. 325, as
amended by Pamph, L. 1914, p. 267 ?
We are of the opinion that that question must be answered
in the affirmative.
The view of the Supreme tourt was that Morse had ceased
to be the owner before his death ; hence there was no succes-
sion. The court does, indeed, refer to his "interest" in the
stock, but the tenor of the opinion appears to be that there is
no taxable succession if the decedent owned anything less than
the entire legal and beneficial interest in the stock.
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MARCH TERM, 1917. 561
90 N. J. L. Security Trust Co. v. Edwards.
Such a view ignores the language of the statute (Pamph.
L, 1909, p. 325, as amended by PampJi. L. 1914, p. 267),
taxing "* * * the transfer of any property * * * or
of any interest therein or income therefrom, in trust or other-
wife. * * * When the transfer is by will * * * of
shares of stock of corporations of this state, * * * and
the decedent was a non-resident of the state at the time of
his death * * • *." Section 1.
"26. The words ^estate' and ^property' wherever used in
this act * * * shall be construed to mean the interest of
the testator * * * passing or transferred to the (suc-
cessors) * * *. The word 'transfer,' as used in this act,
shall be taken to include the passing of property, or any in-
terest therein, in possession or enjoyment, present or future,"
&c. Section 26.
The only authority cited by the court below is that of Sur-
rogate Fowler, of Xew York county, In re Ames* Estate
(1918), 141 N. Y, Supp, 793. But that decision is in con-
flict with the doctrines of the highest court of New York, as
we shall show.
We think that a non-resident pledgor's interest in New
Jersey stocks is a property interest which has a situs here for
the purpose of succession taxation.
As between the pledgor and pledgee, the pledgor is still
the general owner. The pledgee has a special property only,
and upon payment of the debt this is extinguished.
That rule has been frequently stated and applied without
challenge by English judges.
In the early case of Mores v. Conhain (1610), Owen 123;
74 Eng, Reprint 946, the court recognized that the right of
the pledgee was but a special interest.
In Coggs v. Bernard (1702), 2 Ld. Raym, 909 ; 1 Sm, Lead,
Cos, *199^ Chief Justice Holt stated the same principle. The
learned annotator (at p. *228) says:
"A pawn never conveys the general property to the pawnee,
but only a special property in the thing pawned ; and the
effect of a default in payment of the d^ibt by the pawnor is,
not to vest the entire property of the thing pledged in the
Vol. xc. 3G
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56^ COURT OF ERRORS AND APPEALS.
Security Trust Co. ▼. Edwards. 90 N. J. L.
pawnee, but to give him a power to dispose of it, accounting
for the surplus, which power, if he neglected to use the gen-
eral property of the thing pawned continues in the pawnor,
who has a right at any time to redeem it.''
Another leading case is Donald v. Suckling, L, R,, 1 Q. B,
585; 35 L. /. (?. J5. 232.
Another famous case is Sewell v. Bwrdick (1884), 10 App,
Cos, 74; 54 L, J. Q. B, 156, where Lord Fitzgerald says that
the pledgees ^'acquired a special property in the goods, with
a right to take victual possession should it be necessary to do
so for their protection or for the realization of their security.
They acquired no more, and, subject thereto, the general prop-
erty remained in the pledgor."
A very recent opinion by the privy council in a prize case is
The Odessa, 1 .4. C, (1916), 145; (#rm%, A. C. (1915), 52.
Prior to the outbreak of the European war, German owners
of the cargo had by assignment of the bills of lading pledged
the cargo to Britisli bankers for advances made prior to the
outbreak of the war. After the war began, and while the
vessel was on the high seas, the cargo was seized and con-
demned as prize. The contest was between the British
pledgees and the crown. Lord Mersey, speaking for the court,
says : "All the world knows what ownership is, and that it is
not lost by the creation of a security upon the thing owned."
Our own decisions are uniformly to the same effect. In
Donnell v. Wyckoff {Supreme Court, 1886), 49 2V. J. L. 48,
wherein the subject-matter of the pledge was corporate stock,
Mr. Justice Depue said (at p. 49) :
'TJpon a pledge of property as security for a debt, the
pledgee has only a special property. The general property is
in the pledgor, subject to the rights of the pledgee."
In Broadway Bank v. McElratli (Chancellor Oreen, 1860),
13 JV. J. Eq, 24, the conflicting rights of a pledgee of stock
and the attaching creditors of the pledgor were dealt with.
It would appear from the opinion that the court entertained
no doubt that the interest of a non-resident pledgor in stock
of a New Jersey corporation pledged to a non-resident was
subject to attachment, under the New Jersey statute, and the
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MARCH TERM, 1917. 563
90 N. J, I4. Security Trust Co. v. Edwards.
court (on p, 26) says that the rights of the creditors were un-
questioned, except so far as they conflict with the rights of
the pledgee. And, speaking of the effect of a pledge, says :
^The absolute ownership of the stock, it is true, was not
transferred, nor was it intended it should be."
In Meisel v. Merchants National Bank XCourt of Errors
and. Appeals, 1913), 85 N, J. L, 253, it was said, in effect,
that the pledgor has the right to bring a possessory action
against the pledgee to recover the stock itself, providing only
he makes and keeps good isi tender of the debt.
In McCrea v. Ytde, 68 N. J, L, 465, the Supreme Court, in
1902, in a case of an assignment of a chose in action as col-
lateral security, said (at p, 467) :
''A pledgee of personal property, assigned as collateral se-
curity, has the right to collect the interest, dividends and
income accruing on the collateral assigned, accounting to the
pledgor upon the redemption of the pledge. In making such
collections the pledgee is a trustee of the pledgor to see to
the proper applications of the funds collected or to refund
the same to the pledgor if the debt be otherwise paid."
In Mechanics' Building and Loan Association v. Conover,
14 N. J, Eq, 219 (reversed on other grounds, Herbert v. Me-
chanics' Building and Loan Association, 17 Id. 497), the
court said that when shares of stock are pledged, they ^^re-
main the property of the shareholder for every purpose ex-
cepting that of defeating the lien" of the pledgee.
In the United States Supreme Court, drawing the familiar
distinction between a chattel mortgage and a pledge, Mr.
Justice Pitney says, in Daie v. Pattison, 234 U. S. 399, 405 :
"On the other hand, where title to the property is not
presently transferred, but possession only is given, with power
to sell upon default in the performance of a condition, the
transaction is a pledge, and not a mortgage."
The law of Connecticut appears to be to the same effect.
In Robertson v. Wilcox (1870), 36 Conn. 426, the highest
court of that state (at p. 430) said :
"A pledge of property does not carry with it the title to
the thing pledged. The title remains as before. All that
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564: COUKT OF ERRORS AND APPEALS.
Security Trust C^. v. Edwards. 90 N. J. L.
passes to the pledgee is the right of possession, coupled with
a special interest in the property, in order to protect the
right."
It is this intangible proprietary interest of the pledgor in
the corporate property that the pledgor's executor succeeds to.
Xow, the doctrine is too well established to need dis-
cussion that the stock of a New Jersey corporation has a
dtus in this state and is subject to succession taxation here.
Dixon V. Russell {Court of Errors and Appeals), 79 A'. J. L.
490 ; Carr v. Edwards, 84 Id. 667 ; Hopper v. Edimrds, 88
Id, 471.
The matter is nowhere more fully and ably discussed than
in the opinion of Mr. Justice Garrison, in the Supreme Court,
in Neilson v. Russell (1908), 76 N. J. L. 27; reversed on
another point. Id. 655 (1908). The following is quoted
therefrom, not for the purpose of supporting this elen\entary
proposition, but ais illuminating the precise question under
review in the present case (at p. 35) :
^^In this country, where the general doctrine of the state
courts is that the situs of property governs its liability to suc-
cession taxes, the weight of authority is that the stock in a
corporation is subject to the imposition of succession taxes by
the state that created the corporation, and that in this regard
the place of residence of the deceased stockholder is im-
material."
The case of Amparo Mining Co. v. Fidelity Trust Co.
(Court of Errors and Appeals, 1909), 75 N. J, Eq. 555;
affirming opinion of Vice Chancellor Stevenson, in 74 Id.
197, is also instructive. There the jurisdiction of the courts
of the state of incorporation over the enforcement of property
interests in stock as against non-residents was upheld.
It being firmly established that the stock is subject to suc-
cession taxation by the state, it necessarily follows that not
only is the entire legal interest in the stock subject to taxa-
tion by the state, but as well every undivided or fractional
interest in any such given share of stock, and as well any
proprietary interest in such share of stock though it be an
interest of a quality different in character from a mere frac-
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MARCH TERM, 1917. 565
90 N, J, L. Security Trust Co. V. Edwards.
tional or other legal interest less than the whole. The interest
of a pledgor of a share of stock being* such a proprietary in-
terest in the share of stock itself, and the stock being taxable,
it follows that the pledgor's interest is taxable, whether it be
called an equity of redemption or by some other name.
We need not dwell on the distinctions which exist in respect
to situs for the purpose of property taxes, on the one hand,
and succession taxes on the other. The argument of re-
spondent is not forwarded by calling the pledgor's right an
equity of redemption, ' or chose in aciign, or intangible.
The stock itself is a chose, and intangible. While an intan-
gible right has really no locality, it must, in the nature of
things, have ascribed to it a sitiis for legal purposes. The
situs is based on the power. of the sovereign, and if the sover-
eign has power to deal with it effectively as a property right,
it may tax it as having an ascribed situs within its jurisdic-
tion.
The Amparo Mining Company case, supra, at once sug-
gests such power. We note, especially, the attitude of the
court towards the rights of bona fide iiolders. If any one
class of such holders was more prominently in the mind, of
the court than another, it was probably that of pledgees. But
the court did not turn aside from rendering judgment be-
cause of the possibility that a non-resident owner had pledged
his stock to a non-resident which, if respondent's argument
be sound, would at once have ousted the court of jurisdiction.
It can hardly be doubted that the pledgor could resort to
our courts to enforce a conflicting property right in respect
to his stock; and that because he could obtain effective relief
nowhere but in the domicile of the corporation. To be more
concrete, suppose that Morse, a resident of Connecticut, had
pledged New Jersey stock to residents of Massachusetts and
New York jointly, and that the latter wrongfully delivered
the same to a resident of Oregon, and tiiat the stock had no
market value (see Safford v. Barber, 74 N. J, Eq. 352),
where could he obtain relief except in New Jersey? Gre-
gory v. New Yorl\ LaJre Erie and Western Railroad Co., 40
Id. 38. Who would doubt that such a suit would be quasi
in rem ?
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566 COURT OF ERRORS AND APPEALS.
Security Trust Ck>. v. Edwards. 90 N, J, L.
The New York courts recognize that the pledgor has a
residuary interest
In Warner v. Fourth National Batik, 115 N, Y, 251, the
interest of a non-resident pledgor of notes held in pledge by
a resident was held to be subject to attachment in New York
state. Judge Gray said ; ^The title to property may remain
in the pledgor, but the pledgee has a lien, or special property
in the pledge, which entitled him to its possession against the
world." And further: "The pledgor^s residuary interest in
the pledge constitutes a claim or deiAand upon the pledgee,
which is property, and hence may become the subject of at-
tachment." And again: "We think the attachment in ques-
tion here operated to secure to the (attaching creditor) a
lien upon the pledged property, to the extent of the interest
of the (pledgor), and that interest was the right to the
pledged property, or so much of it, or of its proceeds from any
collection, as remained after the satisfaction of the pledgee's
claim for advances."
See, also, opinion of the same judge in Simpson v. Jersey
City Contractin^g Co,, 165 N, Y, 193, where it is said: "The
pledgee obtains a special property in the thing pledged, while
the pledgor remains general owner."
The most distinguished Xew York judge of all times,
Chancellor Kent, expressly held, in Cortelyou v. Lansing
(1805), 2 Cai. Cas, 200, that the legal property in a pledge
does not pass as io the case of a mortgage with defeasance;
that the general ownership remained with the pledgor and
only a special property passed to the pl^edgee, and further,
that the pledgor's interest passed to his administrators.
If the stock has a situs here, where else can be the situs of
the residuum ?
If the interest of the pledgee is less than absolute and un-
qualified ownership, how can the residuary interest of the
pledgor have a situ^ other than that of the subject of the
pledge? The stock never ceases to have a situs in this state,
whoever may be the owner. Neilson v. Russell, supra. If the
transfer of full ownership does not change the situs of the
property, how can the transfer of a limited right take out of
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MARCH TERM, 1917. 567
90 N. J. L, Security Trust Co. v. Edwards.
the jurisdiction or affect the situs of what of the rights of
ownership remain after such partial transfer?
Xhe tax is in rem; the res is the succession to the pro-
prietary right that a stockholder has in a corporation of this
state. Unless the whole of the proprietary right be trans-
ferred, the remainder must be taxable here as property of the
pledgor having a situs here, to which Jjis executor succeeds.
Of course, the -stock has a situs here ; and the general prop-
erty in the thing pledged must continue, notwithstanding the
pledge, to have a legal situ^ here for the purpose of the taxa-
tion of the succession to such general property.
The power to tax being established, we have no difficulty
in finding in the statute the intention to do so. It is clear
that every proprietary interest of whatever nature in those
species of property subject to tax is included. The fourth
subdivision of section 1 imposes tax "upon the dear market
value" of the property, which impliedly recognizes that the
property taxed may be encumbered. Sections 2 and 3 tax
future and contingent estates of every character. Section 12
forbids the transfer, by a corporation, without the comp-
troller's waiver, of shares of stock of, "or other interests in,"
the corporation. The last paragraph of section 12 (the ratio
provision) necessarily contemplates that every kind of prop-
erty interest be brouglit into hotchpot, and puts the non-resi-
dent on the same footing as the resident. Section 26 says
that the word "transfer" shall be taken to include the passing
of "any interest" in property, present or future.
Such words as "property" and "interest" are ordinarily
used in a revenue act in a popular sense, and should be
broadly construed. Smelting Company v. Comm, of Inland
Revemie, 2 Q, B. (1896), 179; 65 L. /. Q. B, 513; affirmed,
1 Q. B. (1897), 175; 66 L, J. (?. B, 137; In the Matter of
Whiting, 150 N, Y, 27.
The pledgor's "equity" certainly is property in a popular
sense. It has value; it may be sold; it may be encumbered;
it may be made the basis of extending credit.
See, also, as to the extensive application of the language of
the act, Hopper v. Edwards, 88 N, J. L, 471.
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568 COUKT OF ERRORS AND APPEALS.
Security Trust Co. v. Edwards. 90 N, J, L.
Some stress is laid below by the respondent on the rights
of the pledgee, arid their supposed infringement by the comp-
troller, but they are not here involved. No pretence is made
by the state that its lien on the stock is other than inferior
to that of the pledgee. The latter is not before the court, and
there appears in the case nothing of interference with his
riglits. Certain practical difficulties in the collection of such
a tax as this may be compassed within the imagination, but
the present case is free therefrom.
It is enough for the decision of this case that the comptrol-
ler's consent to transfer was requested by the executor of the
decedent's will; that he^ refused unless payn\ent of the tax
was forthcoming; that the tax was paid, the waivers issued,
and the stock transferred. The only question before the court
is, Had the legislature the power to authorize the assessment,
and did it do it?
In the opinion of the Supreme Court (but whether it was
the basis of the decision we cannot tell), mention is made of
the possibility that tlie "equity of redemption" be rendered
valueless by a resort to the security after the pledgor's death.
This possibility would, with equal force, support the proposi-
tion that no tax should be levied on an equity in real estate,
since that might l)e foreclosed. This might be due to the
owner's neglect to pay the encumbrance, or for other reasons.
Likewise, a house might be destroyed l)y wind or flood; a
chattel burnt or lost ; the assets of the estate might be em-
bezzled; a debt become uncollectible by incompetent man-
agement; a security valueless by fluctuations in the market
or the receipt of "news from abroad."
The tax is on the succession, which occurs at d-eaih; and
is then due and jmyahle. Section 1. If the subject-matter
of the succession be of value at that time, and the universal or
imrficular sarressar.H choose to aecept the succession, the state
may then levy, as of the situation then existing, a premium
upon the privilege so to succeed. What becornes of the thing
after the state has admitted the successors to the succession
is not of its concern. And so hold the authorities. See Til-
ford V. Dickinson, 79 N. J. L. 302, 305 ; reversed on another
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MARCH TEEM, 1917. 569
90 N. J, L. Security Tryst Co. v. Edwards.
point, 81 Id, 576; McCurdy v. McCurdy, 197 Mass, 248;
In re Penfold's Estate, 216 N. Y, 171.
The argument of respondent that due prudence and cau-
tion requires that assessment be withheld pending realization
on the pledge is self-destructive. It will not do to say that
the state should take into computation the loss or shrinkage,
if any, which has taken place in the meantime. It would not
be argued that if there be an increase in value a tax should
be laid on this. Of course, the state is not bound to stay the
exercise of the taxing power at the pleasure of the pledgee,
and chance the collection of a tax on his judgment and
honesty, and on the variability of the market's demand for
the thing to be sold.
In the case at bar, it appears that certam of the Xew Jersey
stocks were sold by the pledgee shortly after Morse's death,
at a price in excess of the appraisenunt. Certainly, this did
not render valueless the "equity" in these stocks. It was a
realization of their value. While the proceeds were applied
in reduction of the principal of the debt, this increased
correspondingly the "equity" in the other stocks. It is as if
the proceeds of the Bethlehem steel preferred which was sold
were paid to the respondent, and by it applied to the payment
of the testator's legal obligation.
The validity of the tax, therefore, is not affected by any of
the foregoing matters.
Upon the whole, our conclusion is that the interest of a
non-resident deceased pledgor of stock of a Xew Jersey cor-
poration in such stock is subject to the transfer tax imposed
by the act of 1909 {Pamph, L., p. 325; Comp, Stat., p,
5301), as amended in 1914. Pamph. L., p. 267.
The judgment below will be reversed, with costs, with di-
rection for the entry of an order below affirming the assess-
ment and tax.
For affirmancp — Xone.
For reversal — The Ciiaxcellor, Garhisox, Trenciiard.
Bergex, Black, White, Heppenheimer, Williams, Tay-
lor, Gardner, J J. 10.
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570 COURT OF ERROJRS AND APPEALS.
Stand. Gas Power Corp. v. J^ew Eng. Cas. Co. 90 N, J, L.
STANDARD GAS POWER CORPORATION, APPELLANT, v.
NEW ENGLAND CASUALTY COMPANY, RESPONDENT.
Argued March 5, 1917— Decided June 18, 1917.
1. Where a bond refers to another contract and is conditioned for
the performance of the specific agreements set forth therein, sudi
contract, with all its stipulations, limitations or restrictions, be-
comes a part of the bond and the two should be read together
and construed as a whole.
2. A bond given by a contractor and his surety to the Passaic
valley sewerage commissioners, conditioned that it shall be void
if the contractor shall pay for all labor and materials furnished,
and shall perform all the obligations of his contract for build-
ing a sewer (by which contract he agreed to save harmless the
commissioners from claims for labor and materials), is limited
to an indemnity of the obligee and is not made for the benefit
of persons who furnish materials to the contractor, even though
the contract further provided that the commissioners might
pay claims for labor and materials used in the work and call
upon the contractor to repay the same, or might retain funds
in their hands, due or to become due to the contractor, for that
purpose.
3. The statute (Comp. Stat.y p. 4059, § 28) permitting a third
party not privy to a contract and who has given no considera-
tion, to sue thereon, is limited to those for whose benefit the
contract is made, and does not extend to third parties who in-
directly and incidentally would be advantaged by its performance.
On appeal from the Supreme Court.
For the appellant, McDermoit & Enright,
For the respondent, Robert Strange- (Stuart McNamara,
of the N"ew York bar, on the brief).
The opinion of the court was delivered by
Trenchard, J. This is an appeal from a judgment for
the defendant rendered by the trial judge, sitting without a
jury, at the Hudson Circuit.
We are of the opinion that the judgment must be affirmed.
The pertinent facts are these :
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MAKCH TERM, 1917. 571
90 N. J. L. Stand. Gas Power Corp. v. New Eng. Cas. Co.
The Passaic valley sewerage commissioners (a public cor-
poration of the State of New Jersey) advertised for bids for
the building of a section of the Passaic valley sewer, with
notice that the successful bidder would be required to execute
a contract and bond with satisfactory surety in a certain form
prescribed. The Healey Contracting Company, a corporation
of New Jersey, pursuant to such call, bid, in writing, for
such work upon the form prescribed by the commissioners.
Such bid was accepted by the commissioners and the Healey
Contracting Company entered into contract with the commis-
sioners for the execution of such work, delivering to the com-
missioners concurrently therewith its bond in the sum of
$20,000, executed by it as principal and by the New England
Casualty Company as surety, both contract and bond being
in the form prescribed. The bond provides that the principal
and surety are ^Tield and firmly bound unto the Passaic valley
sewerage commissioners in the sum of $20,000." The bond
further provides that such sum is "to be paid to the Passaic
valley sewerage commissioners, for which payment, well and
truly to be made, they bind themselves," &c. The condition
of the bond is as follows :
"Now, the condition of this obligation is such that if the
said principal shall well and truly keep and perform all the
obligations, agreements, terms and conditions of this said
contract on its part to be kept and performed and shall also
pay for all labor performed and furnished and for all ma-
terials used in carrying out of said contract, then this obli-
gation shall be void; otherwise, it shall remain in full force
and virtue."
Article 13 of the contract provides thai —
"The contractor shall take all responsibility of the work,
and take all precautions for preventing injuries to persons
and property in or about the work; shall bear all losses re-
sulting to him on account of the amount or character of the
work, or because the nature of the land in or on which the
work is done is different from what was estimated or ex-
pected, or on account of the weather, elements or other cause ;
and he shall assume the defence of, and indemnify and save
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572 COURT OF ERRORS AND APPEALS.
Stand. Gas Power Corp. v. New Eng. Cas. Co. 90 N, J, L,
harmless, the commissioners and their officers and agents
from all claims relating to labor and materials furnished for
the work!' &c. Article 17 provides, in effect, that the com-
missioners might pay claims for labor and materials used in
the work and call upon the contractor to repay the same, or
the commissioners might retain funds in their hands due or
to become due to the contractor for that purpose.
The Healey Contracting Company entered into the per-
formance of the contract, and it, and its receiver, after it had
been decreed to be insolvent, purchased, partly from the
plaintiff and partly from the plaintiff's assignor, certain of
the materials used in the construction of the sewer called for
by the contract.
These claims for materials purchased from the plaintiff and
the plaintiff's assignor, and used in the performance of the
work, remaining unpaid, the plaintiff requested the commis-
sioners to enforce the bond for the benefit of the plaintiff.
This the commissioners did not do, and, subsequently, the
plaintiff brought this suit against the Xew England Casualty
Company, the surety, upon the theory that the action is main-
tainable by the plaintiff as one for whose benefit the bond
was given.
We are of the opinion that the trial judge rightly held that
the bond in question was limited to an indemnity of the
obligee and was not made for the benefit of persons who fur-
nished materials.
The plaintiff bases its contention that the action is main-
tainable by it as one for whose benefit the bond was given,
upon the statute which reads as follows :
"Any person for whose benefit a contract is made, whether
such contract be under seal or not, may maintain an action
thereon in any court, and may use the same as matter of de-
fence in any action brought against him, notwithstanding the
consideration of such contract did not move from him.'^
Comp. Stat., p. 4059, § 28.
But that contention is untenable. No doubt, where, as
here, a bond refers to another contract and is conditioned for
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MARCH TERM, 1917. 573
90 N. J. L. Stand. Gas Power Corp. v. New Eng. Cas. Co.
the performance of the specific agreements set forth therein,
such contract, with all its stipulations, limitations or re-
strictions becomes a part of the bond and the two should be
read together and construed as a whole.
But, so construed, it is clear that the bond is a contract of
indemnity for the benefit of the Passaic valley sewerage com-
missioners, and not for the benefit of those furnishing ma-
terials. The intent and purpose which the commissioners
had in requiring it were twofold : the protection of the public
interest in the proper performance of the work, and the
protection of the commissioners from liability for claims on
account of the work. The language of the bond, apait from
the condition therein, clearly indicates that the bond is solely
for the benefit of the obligee, and the condition of the bond
is a mere limitation and restriction upon the language found
in the obligation thereof, to the effect that the principal and
surety "are held and firmly bound unto the Passaic valley
sewerage commissioners in the sum of $20,000," and the per-
son to whom the obligation is to be discharged is manifested
by the further provision of the bond, to the effect that such
sum is "to be paid to the Passaic valley sewerage commis-
sioners." Reading the bond in connection with the provisions
of the contract, it appears that the commissioners are given
two means of protecting themselves from loss resulting from
unpaid claims for labor and materials — first, by paying the
claims themselves and calling upon the contractor to repay
them, and if the contractor fails to make such repayment,
to rely upon the bond furnished by the contractor, or,
secondly, to retain any moneys due or to become due for the
payment of such claims. But it does not appear that the bond
was made, or intended to be made, for the protection of per-
sons furnishing materials to the contractor who, at most,
were merely indirectly and incidentally advantaged thereby.
Xow, the statute upon which the plaintiff relies (Comp.
Stat., p. 4059, § 28), permitting a third party not privy to
a contract, and who has given no consideration, to sue thereon,
is limited to those for whose benefit the contract is made
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574 COURT OF ERRORS AND APPEALS.
Kitchen V. Crossley. 90 N, J. L.
and does not extend to third parties who indirectly and in-
cidentally would be advantaged by its performance. Styles
V. Long Co., 67 N. J. L. 413, 418; S, C, 70 Id. 301, 305;
Lawrence v. Union Insurance Co., 80 Id. 133, 136; American
Malleables Co. v. Bloomfield, 83 Id. 728, 736.
The judgment below will be aflBrmed, with costs.
For affirmance — The Chancellor^ Garrison, Swayze,
Trenchard, Parker, Bergen^ Minturn^ Kalisoh, Black,'
White, Heppenheimer, Williams, Taylor, Gardner,
JJ. 14.
For reversal — None.
BRUCE P. KITCHELL, RESPONDENT, v. JAMES E. CROSS-
LEY, RENA P. CROSSLEY AND CORNELIA V. PEDDIB,
APPELLANTS.
Submitted March 26, 1917— Decided June 18, 1917.
Plaintiflf, an "architect, was employed to make plans and specifica-
tions for a new buildinif. A dispute having arisen respecting
the amount of his compensation, the parties agreed in writing
that he should be paid $1,500 for said plans and specifications
and supervising the construction of the building, $760 of which
was payable upon thfe completion of the plans and specifications,
$375 when the building was half completed, and the remainder
upon completion. 'Hie $750 was paid upon the signing of the
agreement but the defendants never proceeded to the construc-
tion of the building. Held, in a suit by the architect to recover
for his services, that the written contract was controlling as to
the rate of compensation and that the amount of same was to
be determined according to the rule laid down in Kehoe v. Ruth-
erford, 56 N. J. L. 23. Stephen v. Camden and PhUa. Soap Co.,
75 Id. 648, distinguished.
On appeal from the Essex Circuit Court.
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MARCH TERM, 1917. 575
90 N. J, L. Kitchell v. Crossley.
For the appellants, Raymond, MourUain, Van Blarcom &
Marsh,
For the respondent, Church £ Harrison.
The opinion of the court was delivered by
Parker, J. The plaintiff's claim was for the ^treasonable
value" of his services as architect in drawing plans and
specifications and receiving bids for a proposed new building
which was never built according to such plans. Defendants
undertook to meet this by setting up a written agreement
signed by plaintiff and by James E. Crossley as defendants'
agent, whereby plaintiff stipulated to draw the plans, &c., and
supervise the erection of the building for $1,500, of which
$760 was to be payable on completion of plans, $375 when
building should be half completed, and the remainder on
completion. Plaintiff attacked this as having been "aban-
doned" and claimed for what he had done at the architect's
customary rate, as testified, of three- fifths of six per cent, on
the estimated cost of the building, and had a verdict of $2,-
757.26 besides the $750 which had been paid to him at the
time of executing the written agreement, or about $3,500 in
all. He did nothing after receiving bids, though he was ready
to perform all needed services, the defendants having refused
to go on according to his plans and having employed another
architect. The decision turns upon the. rule to be applied
touching the amount of recovery.
When plaintiff was first employed there was no specific
agreement or understanding as to the rate of his compensa-
tion, and after the plans were substantially ready, he sent Mr.
Crossley a bill for $2,520, for services up to that point. This,
and later communications threatening suit, brought Crossley
to his office, and there was some disputing about the amount
of compensation, which resulted in the preparation, by plaint-
iff, of the following paper in the form of a letter or proposal
on plaintiff's letter-head, and signed by him. Both parties
agree that it was accepted by Crossley, and it is plain that
his signature thereto was intended as such acceptance :
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576 COURT OF ERRORS AXD APPEALS.
Kitchell V. Crossley. 90 N. J. L.
"Newark, X. J., October 27, 1914.
Mr. J, E. Crossley, Newark, N. J.:
Dear Sir — I propose to make the plans, specifications and
supervise the works on the new four-story and basement
building on the corner of Market and Halsey streets, Xewark,
N. J., for the Peddie estate, for the sum of one thousand five
hundred ($1,500) dollars. Seven hundred and fifty ($750)
on completion of plans. Three hundred and seventy-five
($375) when building is half erected. Balance as work
progresses.
Yours truly,
Bruce P. Kitchell.
J. E. Crossley.''
At the time this paper was signed by the plaintiff, on his
own part, and by Crossley as representing the defendants, the
plans and specifications had not been sent out to prospective
bidders. The case shows that the $750 stipulated for was
paid at the time the agreement was made, or almost imme-
diately thereafter, and that plaintiff was instructed to get the
, bids. He did so, and, according to his testimony, Crossley
never came to his office to consider the bids, and did nothing
further in the matter. As a result, the plaintiff was not only
not required to complete the work he had stipulated to do by
this agreement, but was actually prevented from completing
it by the action of the defendants.
At the trial it was claimed by the defendants that this
agreement was a compromise and settlement of plaintiff's
claim for what he had actually done, and a written agreement
with respect to what he should be paid therefor, and that it
was binding upon the plaintifl^. The plaintiff's claim was
that by reason of the failure of the defendants to go on with
the building, he was not bound by the agreement either for
what he had done or with respect to what he was to do. The
trial judge left it to the jury to say, first, whether the written
agreement was a settlement for the work that had been done
by the architect up to that time; whether (to quote his lan-
guage), when they signed that agreement, it was with an
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MARCH TERM, 1917.
90 y. J. L. Kitchell v. Crossley.
understanding between the architect and Mr. Crosslcy tliat
what work had been done up to that time was included in the
sum of $1,500, which he was to receive, as well as the services
which were afterwards to be performed by him, as the archi-
tect, in the construction of this building. He went on to say
that if it was, a certain rule of law applied, and then stated
the rule as laid down in Kehoe v. Rutherford, 56 A^. J. L.
23, and Wilson y. Borden, 68 Id, 627; and under that rule
limited the plaintiflf's recovery to three-fifths of the total
price of $1,500, stating that no claim, as he understood it,
^ was made for profit on the work that still remained to be done
by the plaintiff, and that there was no evidence of what the
profit would be. He then further charged as follows :
"Now, gentlemen, on the other view of the case, if you
should find that the agreement of October 27th was not in
settlement of all the work that had been done prior to that
time, then the architect, Mr. Kitchell, would be entitled to re-
cover for his services, whatever they were worth up to that
time, less the $750 which he received at that time."
This was followed by instructions as to the details of the
amount recoverable under those circumstances.
Defendant^' counsel requested a charge laying down the
rule of Kehoe v. Rutherford, supra, in the language of that
case, which was refused, and an exception noted, both to this
refusal and to the portion of the charge permitting a recovery
for the value of the services as above set forth.
We consider that there was error in the matters excepted
to. There was no question but that the written agreement
was made because of a dispute between the parties and for
the purpose of settling that dispute. At that time plaintiff
had rendered some services for which he was, perhaps, then
entitled to compensation, but at an amount not agreed upon,
and therefore uncertain. It was evidently the desire of both
parties that the amount that he should be entitled to receive
should be fiJxed and settled between them, with a view of
avoiding further controversy, both as to services already
rendered and as to such as the parties contemplated should be
Vol. xc. 37
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5?8 COURT OF ERRORS AND APPEALS.
KitcheU V. Crossley. 90 N. J, L.
rendered. If this agreement had been made before the
plaintiff performed any services^ and after he had finished
the plans and specifications the defendants had refused to go
further, we think there can be no question but that the rule
of Kehoe v. Rutherford would apply, and the damages re-
coverable on a breach, whereby plaintiff was prevented from
performing in full, would be limited by that rule as applied
to the contract price. The fact that the agreement was made
after some work had been done, and a dispute had arisen,
makes no difference in the result, except that the additional
element is introduced, of a compromise and settlement of the
dispute, the legal consideration of which cannot be success-
fully challenged. McCoy v. Milhury, 87 N. J, L, 697.
Respondent relies upon the case of Stephen v. Camden and
Philadelphia Soap Co., 75 N, J. L. 648, as authority for the
claim that the contract now imder consideration was aban-.
doned, and that the rule of reasonable value for the services
should be applied. There is no doubt that the plaintiff^should
have the reasonable value of his sendees, but the question is,
how is that reasonable value to be ascertained? Is it to be
ascertained by inquiry with respect to the usual and custo-
marv' rate of compensation, in the absence of special contract,
or are we to look to the contract itself as determinative of
the rate of compensation? This question is not answered by
the case cited. An examination of that decision fails to dis-
close how much the plaintiff recovered or on what basis. The
errors assigned were that the court below should have con-
strued the contract so as to relieve the defendant from lia-
])ility and erred in refusing to grant a nonsuit, or, if not, then
to direct a verdict in its favor. These were the only two
questions considered. In deciding them the court had occa-
sion to quote from authorities which, in laying down the rule
that plaintiff was entitled to recover something for his ser-
vices, also discussed the question whether the price fixed by
the contract, if any, should be made the conclusive test of
the value of the services rendered, or the real value of the ser-
vices, though in excess of the contract price; but this court
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MARCH TERM, 1917. 579
90 y, J, L. Security Trust Co. v. Edwards.
did not decide the question in that ease, because it was not
raised.. The opinion concluded, however, by citing the cases
of Kehoe v. Rutherford, supra, and Ryan v. Remmey, 57 N.
J, L, 474, in both of which the amount of recovery for work
done under an uncompleted contract, terminated by the
wrongful act of the defendant, was predicated upon the con-
tract price.
We are unable to Fee that the circumstances of this case
prevent the application of the rule laid down in Kehoe v.
Rutherford and Wilson v, Borden, or thac there was any ques-
tion for the jury as to whether the written contract between
the parties applied. There was no fraud in its making, as
the court itself expressly charged; its consideration was
adequate, and there being nothing to vitiate it, it stood as the
agreement of the parties. It was, therefore, error for the
trial court to permit the jury to pass on the question whether -
this contract was controlling, and for this error the judg-
ment must be reversed, to the end that a venire de novo issue.
For affirmance — None.
For reversal — ^The Chancellor, Garrison, Swayze,
Trenchard, Parker, Bergen, Minturn, Kalisch, Black,
White, Heppenheimer, Williams, Taylor, Gardner,
JJ. 14.
SECURITY TRUST COMPANY, EXECUTOR, ETC., APPEL-
LANT, V. EDWARD 1. EDWARDS, COMPTROLLER, ETC.,
RESPONDENT.
Submitted March 28, ^917— Decided June 18, 1917.
Under section 3 of the Succession Tax act of 1909 (Comp. Siat, p.
5301) where there are contingent or executory interests depend-
ent upon a power of appointment, the appraisal and taxation
thereof is suspended until the exercise of the power.
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580 COURT OF ERRORS AND APPEALS.
Security Trust Co. v. Edwards. 90 N. J. L,
On appeal from the Supreme Court, which affirmed on
certiorari a succession tax on life interests in personalty and
also a tax on interests in remainder, subject to a testamentary
power of appointment.
For the appellant, Ralph E. Lum.
For the respondent, Theodore Baches, assistant attorney-
general.
The opinion of the court was delivered by
Parker^ J. So far as concerns the tax upon the life in-
terests, all questions raised herein were determined by the
Supreme Court in the case of Maxwell v. Edwards, 89 N,
N, J. 446, the judgment in which case has been affirmed by
this court at the present term. On this branch of the case the
judgment affirming the tax will be liere. affirmed.
With respect to the interests in remainder, the respondent's
counsel concedes, quite properly, that there should be a re-
versal. The will of Howard S. Collins, the testator, made
identical provision for each of his two daughters by bequeath-
ing the residuary estate to a trustee, upon trust to pay the net
income of one-half thereof to each daughter for life, "and
on her death to pay over, transfer and convey said part of
said residue, with any income not paid to her, to the person,
persons, corporation or corporations that she may have desig-
nated and appointed by her last will to take the same, or, in
default of a valid exercise by her by will of the power of ap-
pointment herein conferred, to those persons who under the
statutes of distribution of the State of Connecticut in force
at the time of her death would be entitled to succeed to her
intestate estate in the proportions therein specified."
The residue was appraised at $66,905.34, and the value of
the life interests bequeathed in tnist at $38,178.38, which
latter amount, or the balance thereof after deducting the
statutory exemptions, was made the basis of calculation for
a tax of one per cent, as property transferred to children.
Section 1, paragraph 4 of act of 1909 (Camp. Stat., p. 5301),
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MARCH TERM, 1917. 581
90 \. J. L, Security Trust Co. v. Mwards.
as amended by Pamph, L. 1914, pp, 267, 269. The remainder
pf the residuary estate, or $28,726.96, was made the basis of a
five per cent, tax presently imposed as subject to the general
rate prescribed in the same paragraph. So far as relates
to this Iremainder, the comptroller seems to have disre-
garded the provisions of section 3, which deals with estates
in expectancy of a contingent or defeasible character, and
tJie particular life estates supporting them. Where there is
a power of appointment, the statute provides that ^^the
appraisal and taxation of the interest or interests in re-
mainder to be disposed of by the donee of power shall be
suspended until the exercise of the power of appointment, and
(they) shall then be taxed, if taxable, at the clear market*
value of such property, which value of such property shall be
determined as of the date of death of the creator of the
power.'^
It seems quite plain that in obeying this mandate, the tax
on the interests in remainder will normally await the termi-
nation of the particular estate; and counsel urge as a ground
of invalidity of such tax that it becomes impossible for the
executor or trustee to transfer shares in New Jersey corpora-
tions until that time, witliout submitting to the requirement
of section 12 for payment of full five per cent, tax, which was
upheld in Senff v. Edwards, 85 N. J, L. 67, or depositing a
five per cent, tax with the comptroller and taking out a
waiver, as provided in chapter 58 of the laws of 1914. These
provisions appear to be aimed, particularly, at the transfer
of the legal estate in stock to a purchaser, or the like, rather
than at the particular succession of a legatee in remainder.
There is also the provision contained in the last paragraph of
section 3, permitting the compounding on equitable terms of
a tax not presently payable, which is evidently the '^compro-
mise'' mentioned in Senff v. Edwards, supra. The statutory
scheme is not obscure. If the executor wishes to sell the stock,
without waiting for the specific assessment based on interests
created by the will, it can be done by paying the five per cent,
tax under section 12, or depositing it under the act of 1914,
page 97, subject to refund of excess when later ascertained;
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582 COURT OF ERRORS AND APPEALS.
State y.Monetti. 90N.J,L.
or by paying the tax on the particular interests as presently
due, and compromising that against the remainders upon an
equitable ascertainment of its present worth, according to
section 3. We are unable to see that this scheme gives rise to
any unjust or unconstitutional discriminations. It may be
said that the point is not before us except as contained in the
reasons for setting aside a five per cent, tax on remainders
presently payable. As a condition of permitting sale of se-
curities, such tax has the support of Senff v. Edwards in the
Supreme Court. As a pure tax, irrespective of such sale, it is
not warranted by the statute and should be set aside. To
.this extent the judgment of the Supreme Court is reversed.
For afftrmance— None.
For reversal — ^The Chancellor, Garrison, Thenchard,
Parker, Bergen, Black, White, Heppbnheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
THE STATE, DEFENDANT IN ERROR, v. MOI.LIE MONBTTI,
PLAINTIFF IN ERROR.
Submitted March 26, 1917— Decided June 18, 1917.
Parol evidence that a certain person was foreman of the irrand jury
and administered the oath to defendant as such foreman at a
session of the grand jury, is competent on the trial of an indict<
ment for perjury before the grand jury, as evidence that he was
in fact such foreman.
On error to the Supreme Court.
For- the plaintiflE in error, Anthony R. Finelli,
For the defendant in error, J, Henry Harrison.
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MARCH TERM, 1917. 583
90 N. J. L. State t. Monetti.
The opinion oi the court was delivered by
Paekeb, J. PlaintiflF in error was convicted of perjury in
falsely swearing before the grand jury of Essex county. At
the trial it was objected that there was no proof of the admin-
istration of the oath to her by anyone competent to admin-
ister it. The clerk of the grand jury was then called and
testified that the oath was administered (giving its language)
by one T. F., who was then foreman of the grand jury.
This was sufficient. The question whether perjury can be
assigned upon an oath taken before a de facto officer need not
be considered. See Izer v. Staie, 77 Md, 110; 20 .1//. Rep.
282. In this state there is a line of cases holding that parol
evidence that one is a public officer, or that he was acting as
such, i^ pri?na facie evidence of his tenure of the office with-
out resort to his written authority so to act. Den, c.r d4>m,
Lee, V. Evatd, 1 N, J. L. 286 ; Den v. Pond, Id. 379 ; Stout
v. Hopping, 6 Id, 125; Oratz v. Wilson^ Id, 419 (justice of
United States Supreme Court) ; Brewster v. Vail, 20 Id, 56
(sheriff) ; Conover v. Solomon, Id, 295 (justice of the
peace) ; Reeves v. Ferguson, 31 Id, 107 (overseer of the
poor) ; Vandegrift v. Mdkle, ^^ Id, 92 (official chemist) ;
State V. Reilly, 88 Id, 104 (justice of the peace). We see no
reason for excepting a foreman of the grand jury from the
operation of this rule. There was no attempt to rebut the
evidence, but the court was asked to direct an acquittal. This
was rightly denied.
The other point argued in the brief (there was no oral ar-
gument) relates to a portion of the charge not challenged by
any assignment of error or "* cause for reversal under the
statute, and therefore requires no consideration.
The judgment of the Supreme Court affirming the convic-
tion is affirmed.
For affirmance — ^The Chancellor, Garrison, Swayze,
Parker, Bergen, Minturn, Kalisch, White, Heppen-
HEiMER, Williams^ Taylor, Gardner, JJ. 12.
For reversal — None.
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584 COURT OF ERRORS AX1> APPEALS.
Stuart V. Burlington Co. Farmers* Exchange. 90 N. J, L, -
JOHN (\ STUART, RESPONDENT, v. BURLINGTON COUNTY
FARMERS' EXCHAN(iE, APPELLANT.
Submitted March 26, 1917— Decided June 18, 1917.
Plaintiff relying on representations of defendaot*s agent that its
pro<luct called "crude fish" was a good fertilizer for his intended
crops of sweet corn, gave an order for "crude fish" and used
what he received in response to such order in the belief that it
was "crude fish." The crop failed, and he sued for damages.
Held, {a) that there was evidence of implied warranty that the
fertilisser supplied was "crude fish;" (6) that on this point evi-
dence of the statements to plaintiff by the general manager of
defendant was competent; (c) that plaintiff's oral testimony as
to the receipts and expenses of growing, reaping and marketing
his crop was competent, whether or not he kept books of account
and without their production on his own case. See 89 A'. J, L. 12.
On appeal from the Burlington Circuit Court.
iPor the appellant, Gaskill & OasJcill and George M.
II ill man.
For the resiK)ndent, John G. Homer.
I'he opinion of the court was delivered by
Parker, J. Plaintiff, a fanner, contracted to purchase a
fertilizer called "crude fish" from defendant, upon the rep-
resentation of defendant's sales agent that it was a specially
good fertilizer for raising sweet corn. He received and used
the contents of a number of bags shipped by defendant and
labeled "crude fish," but his crop failed, and he then dis-
covered, as claimed, that the Contents of the bags were not
"crude fish," but something else. He brought suit for dam-
ages on the theory of Wolcott v. Mount, 3Q N, J, L. 262, for
the loss of the crops which he claimed would have resulted
had tlie fertilizer been as represented, and at the trial had a
verdict of $1,0.00.
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MAfiCH TERM, 1917. 585
90 y. J. L. Stuart v. Burlington Co. Farmery' Exchange.
Tlie representations regarding the fertilizer were made by
one Page, a sales agent of defendant; and the first point
made on this appeal is that it was error to admit testimony
of oral statements by Page at the time when the purchase
was agreed on, because the contract of sale was in writing.
An examination of the paper referred to, however, shows that
plaintiff was not a party to it, but tliat it was a mere order
for shipment to plaintiff's address sent by the salesman to the
factoiy or office of his principal, signed by the salesman, but
not by the plaintiff.
This also disposes for the most part of the fourth point re-
lating to the same conversation on the redirect examination of
plaintiff. It is also objected that he had already been fully
examined on this head ; but a repetition of his testimony was
within the judicial discretion.
Tender the second, third and sixth points the argument is
made that it was error to permit plaintiff to testify to a con-
versation, after his crop failed, with Mr. Embree, admitted
by defendant to be the manager of the defendant, wherein
plaintiff complained that the fertilizer was not as represented,
and perhaps he should have tried it out in a small way first,
and Embree said "we stand behind what we sell/' &c. There
is no doubt of the competency of statements by Embree, as
manager, that were relevant to the issue. Agricultural In-
fiit ranee Co. v. Pottff, 55 N, J. L. 158; Smith v. Telephone
Company, 64 .Y. /. Eq, 770; Carey v. ^Volif & Co., 72 N. J.
L. 510 : Bridgeton^ v. FidelHy Company. 88 Id. 645.
Tf the defendant had been an individual, his statement that
he held himself responsible for the quality and fitness of what
he sold through his agent would be clearly relevant as an ad-
mission that he was liable for defects therein; and the fact
that this statement is made by a general agent of a corpora-
tion does not deprive it of relevancy.
The seventh point alleges error in the court's refusal to
strike out the testimony of plaintiff respecting the amount of
his sales and losses on the crop. This was asked on the
ground that plaintiff admitted he kept books showing the
amount of his sales and expenses, &c., and had not produced
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586 COURT OF ERRORS AND APPEALS.
Stuart ▼. BqrliDgtOD Co. Farmers' Exchange. 90 N. J. L.
them. We think there is no merit in this point. The books,
if they existed, and if they were legal evidence at all for
plaintiff, against the defendant, were not the best evidence
so as to exclude his parol proof. The whole line of ^'shop
book** cases in this state bears, not upon the exclusiveness, but
upon the admissibility of such books, as unsworn day-to-day
records of the business of the party producing them, to show
facts in his own favor. Defendant could have obtained these
books under subpoena, but was not entitled to shut out plaint-
iflPs testimony as to the receipts from his* business because of
their non-production. The case of East Jersey Water Co, v.
Bigelov}, 60 N, J. L. 201, is in nowise to the contrary ; nor is
that of Bartow v. Erie Railroad Co,, 73 Id, 12, where the ab-
sence of plaintiff's books was commented on in connection
with the total absence of evidence of the cost of conducting
his business. In Standard Amusement Co, v. Champion, 76
Id, 771, 774, the books were held admissible because as be-
tween the parties they partook of the nature of partnership
accounts. In the very recent case of Rdbinowitz v. Haw-
thome, 89 Id. 308, the discussion was not as to the exclusive-
ness or admissibility of the books, for there were none, but as
to the general competency of evidence to show the average
profits of plaintiff in his business.
We may add that plaintiff was again put on the stand and
then testified that the ^Hbooks" were only the collected sales
slips that had been sent him from time to time by the com-
mission merchants; and that these were the only record
he had.
Lastly, it is urged that the court should have granted the
motion to nonsuit, on the double ground {a) that plaintiff
had failed to show any warranty, or (6) any breach thereof.
There was evidence of a sale by description, which raised an
implied warranty that the goods were "crude fish" (Comp,
Stat., p, 4650, § 15) ; and evidence that in fact they were
not.
The nonsuit was properly denied. If it be conceded that
the evidence for plaintiff failed to indicate that what he re-
ceived was not in fact "crude fish," this was supplied by the
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MARCH TERM, 1917. 587
90 N, J. L. Swiller v. Home Insurance Co. of N. Y.
testdmony oflFered for defendant, and the error, if any, cured.
Bostwich V. WiUeftt, 72 N. J. L. 21 ; VanNess v. NoHh Jer-
sey Street Railway Go,, 77 Id. 551; Dennery v. Oreat Atla/tv-
tic and Pacific Tea Co., 82 Id. 517. ,
The judgment will be affirmed.
For affirmance — The Chancellor^ Garrison, Swayze,
Trenchard, Parker, Bergen, Minturn, Kjilisoh, White,
Williams, Taylor, Gardner, JJ. 12.
For reversal — Black, Heppbnheimer, JJ. '2.
BIAX AND ABB SWILLER, PARTNERS, ETC., ET AL., RE-
SPONDENTS, y. HOME INSURANCE COMPANY OF NEW
YORK, APPELLANT.
Submitted December 11, 191^— Decided March 5, 1917.
The endorsement by an insurer on a fire insurance policy, of consent
to chan^ of ownership in the property insured, without more,
is not to be construed as an agreement by the company to be-
come liable to the new owner for a loss occurring after the
ownership actually changed but before the consent was given.
On appeal from the Supreme Court.
For the appellant, Russell E. Watson.
For the respondents, John P. KirkpatricTc.
The opinion of the court was delivered by
Parker, J. The suit is to recover loss by fire which plaint-
iffs claimed to be covered by a policy issued by the defendant
company.
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588 COURT OF ERRORS AJSTD APPEALS.
SwUler V. Home Insurance Co. of N. Y. 90 N\ J, L.
Th^ policy was issued in the names of Max Herman and
Wolfe Fisher, as their respective interests might appear, for
a term of one year from October 8th, 1912,
On February 14th, about three p. m., Fisher and .Gottlieb
delivered a deed conveying the property to the two Swillers,
the present plaintiffs, who also received the written policy,
and about four p. m., of the same day, they gave it to their
insurance broker, named Levine, with directions to have the
ownership transferred to their names. Levine was not the
agent of the company. That agent was a corporation named
Xeilson T. Parker, Inc. Levine did not go to Parker for an
endorsement of change of interest until the next morning
when the endorsement was made. In the meantime, the fire
had occurred. The stipulation of facts shows that when
Levine presented the policy for endorsement of new owner-
ship, neither Parker, Inc., nor the company knew of the fire
having taken place, and Levine did not inform Parker of it.
On this state of facts the trial judge, sitting without jury,
held that, although in his estimation the policy was not
originally enforceable because Fisher had no interest in the
property at the time of its issue, or thereafter, yet plaintiffs
were entitled to recover, on the theory, as he stated it, that
the question was not one of waiver of the invalidity of the
original policy, but of practically new insurance; and that
instead of writing a new policy for the remaining portion of
the policy (term?) the company extended the old insurance
to the new owners.
We think that this was error. It may be conceded that by
endorsing the new ownership on a policy which the com-
pany could have voided for misstatement of original owner-
ship, or for transfer of ownership to the Swillers without such
endorsement, the company entered into a fresh contract with
said new owTiers to insure them for the remainder of the term,
and that the premium originally paid was a valid, considera-
tion therefor. But when did the remainder of the term be-
gin? In order to uphold the decision below, it is necessary
to saj^ that it began when the deed to the Swillers was de-
livered. Doubtless, the company could have so agreed, but
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MARCH TERM, 1917. 589
90 N, J, L. Swiller v. Home Insurance Co. of N. Y.
the question is. What agreement did it actually make by the
endorsement? The only reasonable answer, as it appears to
us, is, that in the absence of some special stipulation the in-
surer's consent to change of ownership must be construed as
operating to protect the new owner from the time it is given;
and that time is ordinarily when it is affixed by the company
or its authorized agent, and that it does not relate back to any
prior time when the ownership in fact changed, or, in other
words, that the insurer does not, by assenting to the change
of ownership, assume the liability for a loss occurring before
that consent was given, of which it knew nothing, and for
which, as the policy stood without its consent, it was not
liable.
The case is not within 'the rule in Hallock y. Insurance
Company, 26 N, J. L, 268 ; 27 Id. 645, for, in that case, the
application was made for insurance and premium tendered
to the agent before the fire occurred, for a term to begin at
the date of the application, and the policy was so written.
There was, consequently, in that case, no room for argument
as to what the company agreed to, and the main question was
whether it was relieved from the agreement because the fire
had occurred without its knowledge before it had formally
entered into it.
One of the defences set up in the pleadings, and not con-
tradicted as to the facts, was that the policy contained a pro-
vision that unless otherwise provided by agreement endorsed
thereon or added thereto, it should be void if any change,
other than by the death of the insured, take place in the in-
terest, title or possession of the 'subject of insurance, &c., and
that by the conveyance to the Swillers such change took place
and vitiated the policy. On the trial defendant requested the
court to find that the foregoing clause was a warranty, of
which there had been a breach by the conveyance to the Swil-
lers which had not been waived by an endorsement on the
policy or addition thereto ; and further, that the endorsement
in question, placed on the policy after the fitre, did not con-
stitute such waiver because the company had no knowledge
or notice of such fire. These requests were either overruled
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590 COURT OF ERRORS AND APPEALS.
SwiUer v. Home Insurance Co. of N. Y. 90 N. J. L.
or confessed and avoided by the decision placing the judg-
ment upon the ground, not of waiver, but of new insurance.
As the case stands before us, defendant is entitled to attack
both the refusals of the court and its specific findings of law
injurious to defendant. It is not necessary to pass upon the
question whether by the language of the policy insuring Her-
man and Fisher as their respective interests appeared, the
policy, though void as to Fisher, would be good as to Herman.
It might even be conceded for the sake of al-gument that they
might have recovered for the loss. The simple question be-
fore us is. Was the company under a contractual liability to
the Swillers for a loss after title vested in them, and before
the endorsement of change of ownership? The trial court
held that it had agreed to such liability by its endorsement
made after the fire and without Imowledge thereof. This we
consider erroneous, for reasons already stated; and for this
error the judgment must be reversed.
Bergen, J. (dissenting). I am unable to agree with the
majority of the court that the refusal of the trial court to
find as requested, that the endorsement entered on the policy
on February 15th, 1913, which reads as follows: "Interest
in this policy is. hereby vested in Max and Abe S wilier, trad-
ing under the name of SwiUer Bros, as owner instead of as
heretofore. Loss, if any, first payable as before. Second
mortgagee eliminated,^^ was not a waiver of previous breaches
of warranty as to ownership, called to the attention of the
court, because the company had no notice of the facts alleged
to avoid the insurance and forfeit the policy, was erroneous.
This request is based upon the assumption that the policy,
before it was assigned to the plaintiffs and the endorsement
made thereon, was absolutely void, because when it was issued
to the previous owners. Max Herman and Wolfe Fisher, the
latter had conveyed his undivided one-half interest to Nathan
Cottlieb. The policy of insurance is not printed in the record,
nor was it submitted to the court, the case being tried and
determined upon facts stipulated, so we have no knowledge
of the terms of the policy, relating t6 the character of tiie in-
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MARCH TERM, 1917. 591
90 y. J. Lu Swiller v. Home Insurance Co. of N. Y.
terests insured, except as they appear in the stipulation, the
first of which is that on October 8th, 1912, the defendant
issued a Standard fire insurance policy *^to Max Herman and
Wolfe Fisher, 05 their respective interests appear, for the term
of one year from the 8th day of October, 1912, at noon,
to the 8th day of October, 1913, at noon." As I read
this policy it is an insurance against loss of the respec-
tive interests of each, and not of their joint interest, and
there is no reason why the insurance company could not law-
fully contract, as they did, to insure either against loss, so
far as their respective interests appeared, and, if so, each had
an undivided interest insured. If Fisher had no interest, all
thje company insured was the interest of Herman, which in-
terest remained insured until he conveyed it to the plaintiffs,
and so long as he retained that interest his mortgagee, Au-
gusta McGinnis, one of the plaintiffs, was protected to the
extent of his insurable interest by reason of the endorsement
making any loss first payable to her as mortgagee. ,
None of the conditions contained in the policy upon which
the breaches of warranty appearing in the requests to charge
or find appear in this record, but, assuming that the policy
contained these warranties, there was no breach, so far as the
interest of Herman is concerned, because his respective in-
terest was always in existence, and continued to be until he
conveyod the property and handed over the policy to the new
owner, for '^respective interests" means such interests as each
of the insured had. It is not a case where tenants in com-
mon are jointly insured where conveyance by one would avoid
the policy^ but an insurance of the respective interests of
eacli as such interest might appear, and therefore there was
no breach of warranty, so far as Herman was concerned, which
called for a compliance with the sixth request that the en-
dorsement did not constitute a waiver of the breaches of
warranties, because one of the parties held a valid insurance
to the extent of his interest. The effect of the new contract
created by the endorsement on the policy, after the convey-
ance by Herman and after the loss, is not raised by ^y re-
quest to charge and is not to be considered because all of the
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592 COURT OF ERRORS AND APPEALS.
S wilier v. Home Insurance Co. of N. Y. 90 N, J. L.
requests are based upon the theory that the entire policy was
void from its inception because Fisher was not one of the
owners when the policy was issued, and therefore the very in-
teresting question liow much of the/ period of the time stated
in the policy it was to cover inures to the assignee when the
entire policy is assigned and consented to by the insurance
company is not before us.
If it is a new contract based upon all the terms and con-
ditions of the policy, as seems to be the settled law, it may
be that the insurance company, by the substitution of a new
owner for the old one, makes the policy good to the new o\vuer
for the entire period, which would be nothing more than an
agreement to insure the new owner for the entire period
covered by the policy, or at least from the time it was as-
signed to him, and that the company has a right to antedate
its policy was settled in HcMock v. Insurance Comparing, supra.
But no such question is raised in this case, for all of the re-
quests, the refusal to comply with which is the only ground of
error alleged, are based upon the claim that the policy being
originally void, the endorsement to the new owner was not a
waiver of alleged breaches, because the policy itself was void,
and if, as I think, the policy was not void because it was an
insurance of respective interests, one of which was insurable,
then the requests were based upon a false assumption of law
and were properly refused.
The judgment should be affirmed.
For affirmance — The Chancellor^ Bergen^ Mixtfrn,
Kalisch, White, Williams, JJ. 6.
For reversal — The Chief Justice, Swayzb, Trexchard,
Parker, Heppenheimer^ Taylor^ Gardner, JJ. 7.
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MARCH TERM, 1917. 593
90 N. J, L, Collins v. Central R. R. Co. of N. J.
ANDREW J. COLLINS, RESPONDENT, v. THE CENTRAL
RAILROAD COMPANY OF NEW JERSEY, APPELT.ANT.
Argued March 22, 1917— Decided June 18, 1917.
1. In a case where the defendant was charged with negligence be-
cause of defective premises, an instruction to a jury "That if
the defendant company had, at any timet before the accident,
either knowledge or notice of a dangerous condition of its prem-
ises, it would have been negligence on the part of the company
n(^ to have remedied this condition," is erroneous, because the
defendant is entitled to a reasonable time to inspect, discover
and repair such defect "At any time before the accident" in-
cludes immediately prior.
2. An erroneous instruction is not cured by a subsequent correct
one, unless the illegal one is withdrawn.
On appeal from the Essex County Circuit Court.
For the respondent, C, Herbert Walker,
For the appellant, Charles E. Miller.
The opinion of the court was delivered by
Bergen, J. The plaintiflf was lawfully in the freight station
of defendant at Newark, N. J., for the purpose of moving some
bags of manure. After he had taken one and was returning
for another, an iron radiator fell on him and inflicted injuries
for which he brings this action.
It is not necessary to determine whether any negligence of
defendant was shown, because this judgment must be reversed
for error in the charge of the court, which was as follows : *^If
the defendant company had, at any time before the accident,
either knowledge or notice of a dangerous condition of its
premises it would have been negligence on the part of the
company not to have remedied this condition." "At any time
before the accident" includes immediately before, and under
our cases defendant was entitled to a reasonable time within
which to inspect, discover and repair the defective condition
Vol. xc. 38
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594 COUirr OF ERRORS AND APPEALS.
(iro88 V. Com. Cas. Ins. Co. of Newark, N. J. 90 N, J. L,
if it existed. Schnatterer v. Bamberger & Co., 81 N. J. L.
558. All that is requil-ed is reasonable care and ordinary pru-
dwioe. Ruane v. Erie Railroad Co,, 83 Id. 423.
The fact that the court subsequently charged the correct
rule, if he did as is claimed, does not cure the trouble, for as
Mr. Justice Parker said in State v. Tapack, 78 N. J. L. 208,
"The rule is well settled that an erroneous instruction, fol-
lowed or accompanied by a correct one is not cured by the lat-
ter unless it is also expressly withdrawn, as the jury is left
at liberty to adopt either."
The judgment is reversed.
For affirmance — None.
For reversal — ^The Chancellor, Garrison, Swayze,
Trenciiard, Bergen, Minturn, Kalisch, Black, White,
Heppenheimer, Williams, Tayjx)r, Gardner, JJ. 13. •
RUDOLPH GROS§, RESPONDENT, v. COMMERCIAL CAS-
UALTY INSURANCE COMPANY OF NEWARK, NEW JER-
SEY, APPELLANT.
Argued March 19, 1917— Decided June 18, 1917.
An insurance company, by its policy, contracted to pay the assured
a weekly indemnity so long as he should be totally disabled and
wholly and continuously prevented from performing any and
every kind of business relating to his occupation. The business
of the assured was that of a traveling salesman, which required
a constant use of his feet, and during the term of the policy be
was afflicted with a foot ailment which entirely prevented him
from traveling and soliciting business, although during part of
the term for which he claimed indemnity he was able to go to the
office of his employer and conduct some business by writing letters
^nd the use of the telephone. The trial court instructed the jury
that the reasonable construction to be put upon the language
used, was, not that he must be so disabled as to prevent him from
doing anything whatsoever pertaining to bis occupation, but thait
if he be so disabled as to prevent him from doing any and evory
kind of business pertaining to his occupation, he was entitled to
recover. Held, that such an instruction was not error.
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MARCH TERM, 1917. 595
90 N, J, L. Gross v. Com. Cas. Ins. Co. of Newark, N. J.
On appeal from the Essex County Circuit Court.
For the appellant, William M, Holmwood and Edward L.
Katzenbach,
For the respondent, Jacob L, Newman.
The opinion of the court was delivered by
Bergen, J. The plaintiff brought his action to recover on
a policy issued to him by the appellant, assuring him certain
payments in case of death or disability resulting from bodily
injuries effected solely through accidental means, and it pro-
vided that if by reason of disease or illness, contracted during
the term of this insurance by the assured, he be totally dis-
abled, and "wholly and continuously prevented from perform-
ing any and every kind of business pertaining to his occupa-
tion and necessarily confined in the house," he should be paid
as for total disability, *'and if, immediately following such a
period of total disability and confinement in the house, he
shall be totally disabled and wholly and continuously pre-
vented from performing any and every kind of business per-
taining to his occupation, but is not necessarily confined in
the house, three-fourths of said amount per week shall be paid
to the assured."
The plaintiff recovered, a judgment from which the defend-
ant has appealed.
This appeal presents two questions — first, is the plaintiff
entitled to recover, and second, if entitled to recover, was the
jury improperly instructed as to the extent of disability re-
quired by the policy ?
The first was raised by motions to nonsuit and for a direc-
tion in favor of the defendant, and the second by an objection
noted to the instructions given to the jury. The solution of
the first question favorably to the appellant depends upon a
determination that the policy was inyalidated because of a
breach by the plaintiff of certain writtai warranties made by
him, and made a part of the policy which was issued on Octo-
ber 11th, 1911, and contained among other warranties the
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596 COURT OF ERRORS AXD APPEALS.
Gross V. Com. Cas. Ins. Co. of Newark, N. J. 90 N. J, L.
following: "I have not been disabled nor have I received any
medical or surgical attention during the past five years except
as follows: In 1911 for exzema, lasting four months," and
"My habits of life are correct and temperate; my hearing and
vision are not impaired; I am in sound condition mentally
and physically; except as herein stated: No exceptions."
This policy expired October 1st, 1912, and was renewed each
year thereafter, the last being from October Ist, 1914, to Octo-
ber 1st, 1915. The renewals were manifested by a certificate
continuing in force the original policy. "Provided the state-
ment in the schedule of warranties in the original contracts
are true on this date and that nothing exists on the date hereof
to render the hazard of the risk greater than or different than
that shown by such schedule."
The testimony permits an inference that previous to the
issuing of the last certificate the plaintiff had called upon a
physician because, as plaintiff testified, he "got so easily tired
in my feet, I went down there to consult, because he once
treated me before, about a few years ago. * * * I went
down there and he looked me over, he did not say anything.
He said, ^You go home and take a little more care and take a
little rest and rub your feet with alcohol.^
**Q, He did not tell you anything was the matter with you ?
"/I. No.
"Q. And you had no trouble after that until this last illness ?
"A. Yes."
This he testified happened six months or a year prior to the
last renewal. As this branch of the case rests upon the mo-
tions to nonsuit and for direction of a verdict, the foregoing
testimony must be taken as true, and the question is whether
this testimony conclusively established the fact that when the
last renewal certificate was issued the plaintiff's warranty that
he had "not been disabled nor have I received medical or sur-
gical attention during the past five years," was untrue and
therefore a breach of the warranty within the meaning of the
policy, and also whether his condition made "the hazard of
the risk different or greater than that shown by such schedule."
The plaintiff's business required him to be on his feet most of
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MARCH TERM^ 1917. 597
90 N. J. L, Gross v. Com. Cas. Ins. CJo. of Newark, N. J*
the time, and finding that he tired easily, he went to the phy-
sician and represented his condition, but was not informed
by him that he had any illness ; was simply told to bathe his
feet in alcohol. We do not consider this receiving medical
attention of such a character as to require the plaintiff to
state it to the defendant on the renewal, or that not doing so
would invalidate the policy. Neither the physician or the
plaintiff had any idea that the symptoms might be an indi-
cation of the ailment which subsequently developed, or that
it was a disease or sickness. Advising one to bathe his feet
in alcohol simply because they are tired is not conclusive
evidence that the plaintiff had received medical or surgical
attention suflBcient to forfeit the policy, because it had not
been made known to the defendant any more than if the ail-
ment was temporary, such as an ordinary cold. Whether
the plaintiff had knowledge that his condition was such that
the hazard of the risk was different or greater than that
shown by the schedule of warranties was a. jury question.
The court submitted to the jurj' the question whether the
ailment was of so serious a character as to permanently affect
his health and to make him a less desirable risk, and directed
them that if they found in the aflBrmative then there could
be no recovery. It was not error for the court to refuse to
nonsuit, or to direct for the defendant, for the reasons urged.
The second branch of the case depends upon the construc-
tion to be given to the following part of the policy: "If,
immediately following such a period of total disability and
confinement in the house he shall be totally disabled and
wholly and continuously prevented from performing any and
every kind of business pertaining to his occupation, but is
not necessarily confined to the house, three-fourths of the
said amount for the week will be paid to the assured.*'
The trial court instructecj the jury that the reasonable
construction to be put upon the language used was, not that
he must be so disabled as to prevent him from doing anything
.whatsoever pertaining to 1ms occupation, but that if he be so
disabled as to prevent him from doing any and every kind
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598 COURT OF ERRORS AND APPEALS.
Gross V. Com. Cas. Ins. Co. of Newark, N. J. 90 N. J. L,
of business pertaining to his occupation, he was entitled to
recover.
The proofs show that the occupation of the plaintiff was
traveling for his employer from Newark, N. J., to New York,
Boston, Philadelphia and other places, to sell and buy leather
and hides and attend to the shipments; that he sometimes
did office work, calling people on the telephone and dictating
letters concerning business growing out of his traveling;
that from January 4th, 1915, to the 15th of October follow-
ing he was not able to do any traveling because of a severe
and persistent ailment aflPecting his feet; they were so
swollen that he could not wear his shoes until nearly the end
of the period when he was able to wear a special shoe made
for his use ; he would go to the office with an automobile and
while there occasionally dictated a letter, the proofs showing
that during the entire period he dictated about eighty letters
but that he did not do his regular work. We think that the
instruction of the trial court was right. The indemnity con-
tained in the policy included any and every kind of work
appertaining to his occupation, not a part of his work, but
any and every kind, and the policy makes the distinction
between the total disability, which confined him to the house,
and the disability to do every kind of work pertaining to his
occupation after lie was able to go out of the house, and pro-
vided a. lower rate for the latter disability.
Tn Young v. Travelers Inmiran<'r Co., 13 AtL Rep. 896, the
Supreme Court of Maine dealt with a policy which had in
it this clause: "And wholly disable and prevent him from
the prosecution of any and every kind of business pertaining
to the occupation under which he is insured." In that case
the trial court instructed the jury that the meaning of this
language was not. that he must be so disabled as to prevent
him from doing anything whatsoever pertaining to his occu-
pation or to any part of his business, but that he must be
so disabled as to prevent him from doing any and every kind
of business pertaining to his occupation, and that there was
a difference between being able to perform any part, and any
and every kind of business, and the. appellate court sustained
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MARCH TERM, 1917. 599
9a y. J. L, Gross v. Com. Cas. Ins. Co. of Newark, N. J.
this instruction to the jury. 'If the prosecution of the
business required him to do several acts and perform several
kinds of labor, and he was able to do and perform only one,
he was as effectually disabled from performing his business
as if he could do nothing required to be done."
In Hooper v. Accidental Death Insurance Co,, 5 Hurht, &
N, 546, where the plaintiff was an attorney, he sprained his
foot while riding on horseback, and the claim by the insurance
company was that it did not wholly disable him. In that case
the covenant was that if the injury be of "so serious a nature
as to wholly disable him from following his usual business,
occupation, or pursuits," the company would pay, and the
court held, "If a man is so incapacitated from following his
usual business, occupation or. pursuits as to be unable to do
so, he is Vholly disabled' from following them. His 'usual
business and occupation' embrace the whole scope, and com-
pass of his mode of getting his livelihood. * * * They
intended that when the insured was wholly incapable of per-
forming a very considerable part of his usual business, he
should receive a compensation in respect of that disablement."
In construing a policy we should adopt the meaning of the
words used most advantageous to the assured, and in the
present case the indemnity runs during such period as the
insured is disabled to perform any and every kind of his
occupation. The proofs show sufficiently for the jury to so
infer, tliat the principal part of the occupation of the insured
was traveling, in which the use of his feet were absolutely
necessary, and because of his peculiar illness he was disabled
from performing the principal and major part of his
occupation.
We see no error in this record, and think the judgment
should be affirmed.
For affirmance — The Chancellor, Garrison, Swayze,
Bergen, Minturn, Kaltsch, Black, White, Heppen-
HEiMER, Taylor, Gardner, J J. 11.
For reverml — None.
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600 COURT OF ERRORS AND APPEALS.
Limpert Bros. v. French & Son. 90 N, J, L.
LIMPERT BROTHERS, INCORPORATED, APPELLANT, v. R.
M. FRENCH & SON ET AL., RESPONDENTS.
Argued March 16, 1917— Decided June 18, 1917.
1. The respondents caused an attachment to be issued out of a
court for the trial of small causes and under it the debtor's
goods were seized ; subsequently, but before judgment in the pro-
ceedings, the prosecutors, as they claim, issued an attachment
out of the Circuit Court against the same debtor and under it
the same goods were seized. Held, that if it appeared that prose-
cutor had in fact issued the attachmeift and seized the goods
it had the same right that the debtor would have to move the
justice court to quash the writ issued by that court, and to
rescue the goods, on which it had a lien, from the prior seizure.
2. In support of such motion ex parte affidavits are not sufficient;
the material facts must be proved 'before the justice, by the pro-
duction of Competent proof.
3. A stipulation of facts not submitted to the justice of the peace
cannot be used on review by an appellate court.
On appeal from the Supreme Court.
For the appellant, James 0, Clark.
For the respondents, Augustus C. Nash and Winft^td S,
Artglnnati.
Tlie opinion of the court was delivered by
Bkrgkn, J. 11. M. French & Son procured a writ of attach-
ment to be issued out of a court for tlie trial of small causes
and the officer seized the property of Clay & Tokis, trading as
"Diana," the defendants in that proceeding. Subsequently,
and before judgment therein, it is claimed by the present
prosecutor that it caused to be issued a writ of attachment out
of the T^nion County Circuit Court, under which the same
property was attached by the sheriflp. Thereafter, the prose-
cutor filed an affidavit with the justice of the peace and moved
to quash the writ issued by him because the Christian names
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MARCH TERM, 1917. 601
90 N.J. L, . Limpert Bros. V. French & Son.
of the defendants are not set forth in the aflBdavit or the
attachment.
The aflBdavit and the writ described the defendants as "Clay
& Tokis, partners trading and doing business n& Diana," and
the motion to quash was made in pursuance of a stiplilation
that it should be made 'in one case, there being other attach-
ments of like nature, "for the purpose of establishing the
validity of said attachment." The court, after argument,
refused to quash the attachment and proceeded to hear the
merits, rendering judgment for R. M. French & Son. The
prosecutor then obtained a writ of certiorari to review the
order of the court for the trial of small causes in refusing to
quash, and the Supreme Court dismissed the writ upon the
ground that the statute, does not authorize a stranger to the
record in that court to intervene by filing an affidavit of
interest in the subject-matter of the litigation, and, therefore,
the prosecutor had no legal status in the proceeding.
Assuming that it was properly proven before the justice
that a writ of attachment had been issued out of the Circuit
Court and the same goods seized under it, we are of the opinion
that the conclusion of the Supreme Court was not sound in
law, for it was held in National Papeteri^ Co. v. Kinsey, 54
N. J. L. 29, where a subsequent judgment creditor moved to
(^ash a prior attachment that "the judgment creditors acquired
the right of the judgment debtor in the property levied on,
and had a right to rescue it for the satisfaction of their claims
from any one who could not assert a superior title in the law
to it. It is not perceived how the eflRcacy of the proceedings
under the judgments can be impaired, or how validity can be
imparted to attachment proceedings unauthorized by law, by
tlie mere volition of the debtor as against the judgment credi-
tors. The debtor may waive his own rights, but he cannot,
surrender the rights of his judgment creditor." We are of
opinion that an attachment vests in the attaching creditor the
same right of rescue as if he were a judgment credi^tor, and
that if the debtor has a right to move to quash an attachment
in any court, his attaching creditor has the same right. He
has a lien upon the property and stands in the place of the
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602 COURT OF ERRORS AND APPEALS.
Limpert Bros. v. French & Son. 90 N, J. L,
debtor and if the debtor is entitled to have the writ quashed
he cannot defeat the rights of his other creditors, having a
lien, by consenting to the execution of a void attachment.
The prosecutor's difficulty in this case arises over the method
which it adopted in proceeding to quash the attachment, for
while, as was said in McLcmghlin v. bross, 68 7rf.« 599, "the
practice is quite general to afford relief against void judg-
ments to any person interested,'"^ the method of relief in a
case of this character seems to be prescribed by statute. Sec-
tion 43 of the Attachment act provides that in all cases of an
attachment issued by a justice of the peace, when an affidavit
shall be filed by or on behalf of the defendant, setting forth
facts which would render said attachment illegal or void, it
shall be the duty of the justice upon a motion to quash to try
the facts. In this case the prosecutor produced no witnepses
but seems to have relied on the affidavit filed by him, and also
the affidavit upon which the justice issued the writ, but it was
held in Morris v. Quick, 45 Id. 308, that the ex parte affidavits
of the moving party cannot be used on the motion but that he
must sustain the burden by legal evidence, that the writ was
illegally issued.
The original affidavit described the debtor as "Clay & Tokis,
partners trading and doing business as Diana," and section 3
of the Attachment act provides that the writ may issue against;
the separate and joint estate of joint debtors "either by their
names or the names of the partnership or by whatsoever name
they may be generally distinguished." In the original affidavit
the defendant is described as doing business linder the name
of Diana, and the prosecutor offered no proof that this was not
correct.
Xor did the prosecutor make any legal proof before the
justice of the peace that any attachment had been issued out
of the Circuit Court and the debtor's goods attached under it.
Without this there was nothing before the justice to show
that the prosecutor had any interest in the goods 'to be
rescued for its benefit. The stipulation between the parties,
from which an inference, it is claimed, may be drawn that
there was such a writ of attachment was not submitted to
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MARCH TERM, 1917. 603
90 N. J. L. Michael v. Minchin.
the justice, and his record as returned, to correct which no
attempt has been made, certifies that "This court has no
knowledge except the statements of the attorney that a writ
of attachment has been issued out of the Union County Cir-
cuit Court. If a writ affecting these proceedings has been is-
sued, superseding or affecting this jurisdiction, this court has
not been oflBcially go informed." Under the facts before the
justice he correctly disposed of the motion.
For the reasons given the judgment will be affirmed, with
costs.
For affirmance — The Chancellor, Garrison^ Swayze,
Trenchard, Bergen, Black, White, Heppexheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
For reversal — None.
MARY F. K. MICHAEL, RESPONDENT, v. HARRY W. MIN-
CHIN, APPELLANT.
Submitted March 26, 1917— Decided June 18, 1917.
The testator devised to his wife for life his real estate and after her
death to his three children, each a distinct parcel specifically
described, subject, among others, to this proviso: "In Case my
Son Harry W. Minchin Should depart this life Without Issue
His Share will, go to my Dauter Emma Jane Minchin;" Harry
survived the life tenant and Emma died during the life ten-
ancy, leaving a child. The life tenant conveyed to Harry all her
interest in the lands devised to him. Reld^ that Harry having
survived the life tenant and the executory devisee, Emma, his
estate in the land devised to him became absolute for two rea-
sons— (a) because the words "depart this life without issue"
were properly referable to the death of the life tenant and not
to the devisee, applying Patterson v. Madden, 54 N. J, Eq. 71 4 ;
(5) that by the death of the executory devisee, Emma, in the
lifetime of Harry, the gift over became impossible of perform-
ance, and that the estate of Harry, the first taker, became abso-
lute, applying Den v. Sohenck, 8 ^. J, L, 29, and Drummond's
Executor v. Drummondy 26 y. J. Eq, 234.
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604 COURT OF ERRORS AND APPEALS.
Michael v. Mincfain. 90 N, J. L,
On appeal from the Essex County Circuit Court.
George Minchin died leaving a last will and testament in
which, by the first paragraph, he devised to his wife for life
his real estate, and at her death to his three children, Harry,
Emma and Adeline, each a distinct parcel specifically de-
scribed, and to his son Abraham $3,000, subject to the fol-
lowing conditions :
*SShould death take my Dauter Addeline or She do not
have anny Issue Children living at her death her Part will
be divided between my Son Harry W. Minchin and my dauter
Emma Jane Minchin in Case my Son Harry "W. Minchin
Should depart this life without Issue 'His Share will go to
my Dauter Emma Jane Minchin if Emma Should depart this
liffe without (Issue Children) her Share Should go to my
Son Harry W. Minchin in Case of my (three 3) last men-
tioned children depart this life without Issue then the whole
Shall go to my Son Abraham C. Minchin.
"Second — I leave to my wife Mary Jane my life Insurance
Poliseys and when Paid She Should Pay m.y Son Abraham
C. Minchin his Share $3000.00/100 out of it besides in Say
Sixty days after or as can be done I leave my Wife Mary
Jane all My Personal Property for her lifetime and at her
death it Shall go to my Son Harry W. Minchin if alive and
if not alive to my Dauter Emma Jane and is not alive to my
Dauter Addie L. La Bough and if She is dead to my Son
Abraham C. Minchin but at anny time during my wife life
if She wish she can give to my son Harry or my Dauter
Emma anny or all Parts of what was left to them besides She
is to Seport them untill the are of age in as good a way as it
will Alow I diret my Exectiors to Pay all my lawful deaths."
The testator left him surviving his widow and the four
children mentioned in the will, which was probated August
8th, 1892. The widow is dead, and of her children three died
in her lifetime, Abraham without issue and Adeline and
Emma leaving issue; Harry is still alive and has two chil-
dren living.
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MARCH TERM, 1917. 605
90 JV. J. L. Michael v. Minchin.
The widow conveyed her life estate in the land devised to
Harry, to him, and he and his wife conveyed the land, the
subject of this suit, to the plaintiff by a deed containini:^ a
special covenant of seizin in fee-simple, and the plaintiff
brought this action to recover damages for an alleged breach
of that covenant because, as she claims, Harry has not an
indefeasible estate, but one that is subject to the gift over to
Emma if he should die at any time without leaving issue.
For the appellant, Arthur H. Mitchell.
For the respondent, Lnm, Tamhlyn & Colyer,
The opinion of the court was delivered by
Bergen, J. Upon the foregoing facts the trial court held,
a jury being waived, that the estate of Harry was a fee-simple,
subject to a defeat upon his death at any time without issue,
in which event the executory devise over to his sister Emma
J. Minchin, who died in his lifetime, vested in her heirs or
devisees, and that Harry's estate remained defeasible until
after his death leaving issue, and ordered judgment entered
for the plaintiff, from which the defendant has appealed.
The result reached by the court below is erroneous, for rea-
sons to be stated. The trial court disposed of the case with-
out at all considering the effect of the intervention of the Jife
estate of the widow, and the postponement of the right of pos-
session of Harry until after the death of the life tenant.
Passing for the present the consideration of the question
concerning the character of the estate which Emma took
under this will if she died before Harry, to be hereinafter
dealt with, and assuming that there are two gifts after the
life estate, one to Harry, defeasible upon his death at any
time without issue, and another, the remainder, to his sister
Emma in that event, the limitation over, in such case, will
be referred either to the death of the first devisee, or of the
life tenant, as the court may determine from all tlie pro-
visions of the will, because it should be so construed as to give
effect to the intent of the testator ascertainable from his will.
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606 COURT OF ERRORS AND APPEALS.
Michael v. Minchin. 90 N, J. L.
In the present case, the will should be so construed as to refer
the death of Harry without issue, to death in the lifetime of
the life tenant. 'TVliere the two concurrent or alternative
gifts are preceded by a life, or other partial interest, or the
enjoyment under them is otherwise postponed, the way is
open to a third construction, namely, that of applying the
words in question (depart this life without issue) to the event
of death occurring before the period of possession or distribu-
tion." 3 Jarm, Wills 648.
In Paterson v. Madden, 54 N, J. Eq. 714, 723, Chief Jus-
tice Gummere, in a well-considered opinion read for this
court, declared that two rules are established in this state,
in the construction of wills containing a limitation over by
way of an executory devise after the death of the original
devisee without issue, and they are stated by him as follows :
"First. If land be devised to A in fee and' a subsequent
clause in the will limits such land over to designated persons
in case A dies without issue, and A so dies, and the substi-
tuted devisees axe in esse at his death, and there is no other
event expressed in the will to which the limitation over can
fairly be referred, then A takes a vested fee which becomes
divested at his death and vests in those to whom the estate
is limited over.
"Second. Where there is an event indicated in the will
other than the death of the devisee to which the limitation
over is referable (for instance, the distribution of the testa-
tor's estate or the postponement of the enjoyment of the
property devised until the devisee reaches the age of twenty-
one or until the exhaustion of a prior life estate), such limi-
tation over will be construed to refer to the happening of
such event or to the death of the devisee, according ss the
court may determine from the context of the will and the
other provisions thereof, that the limitation clause is set in
opposition to the event specified or is connected with the
devise itself."
It will be observed that under the first rule the substituted
devisees must be in esse at the death of the fest taker, which
is not the condition in the case under consideration^ for here
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MARCH TERM, 1917. 607
90 N, J, L, Michael y. Minchin.
the executory devisee died in the lifetime of the first taker
and during the existence of the life estate.
In the Paterson case the will gave certain farms to his
four sons upon condition that neither of the farms should be
sold by his sons during the lifetime of his wife, with a pro-
viso that if either should die without lawful issue, the widow
of the one dying should have the use of the farm given to the
son so long as she remained unmarried, and on her marriage
or decease, over to his lawful heirs, and it was there held that
the limitation over stood, not in opposition to the devise, but
to the event of the devisees coming into possession, and that
the limitation over became operative only in case the prior
devisee died without issue before the death of his mother,
and the case of Williamson v. Chamberlain, 10 N, J. Eq, 373,
was cited as an example of the application of the second rule.
In that case there was a gift of a life estate to a wife in real
and personal property with remainder to his children, upon
condition that if any of his children should die without law-
ful issue, his or her share should be divided between the sur-
vivors, and it was held that the limitation over stood, not in
opposition to the devise, but to the distribution to the chil-
dren after the death of the wife, and that the limitation over
was defeated by the death of the mother during the life-
time of the children. Under the cases referred to, supported
by numerous citations not necessary to be here repeated, the
present will should be construed to mean that testator in-
tended, if Harry survived his mother his estate should be-
come absolute, for the words "should depart this life without
issue," are properly referable to death without issue during
the life tenancy. This interpretation of the intent of the
testator is aided by the second paragraph of the will where
the personal estate is given to the widow for life and at her
death to Harry, if alive, and if not alive, to Emma, "but at
anny time during my wife life if She wish She can give to
my Son Harry or my Dauter Emma anny or all Parts of
what was left to them." This will was, evidently, drawn by
an illiterate person, and is crudely expressed, but it is rea-
sonably subject to interpretation that the wife was author-
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608 COUBT OF ERROKS AND APPEALS.
Michael v. Minchin. 90 N. J. L.
ized to turn over to Harry any part of what wa-? left him by
the will when he came of age, for until tliat period the wife
was required to support him in "as good a way" as his share
would allow.
That the power of appointment given to the wife, to be
exercised at any time she might wish, was not intended to be
limited to the personal estate, may be inferred from the fact
that Emma is given no part of the personal estate unless she
was alive at her brother's death, and therefore the gift to
Emma of all part of what was left her, if the life tenant so
wished, would be without meaning unless it referred to some-
thing that had been left to, and which could be advanced to,
her, and so, when the wife exercised her power of appoint-
ment by conveying to Harry the land that was left to him,
she accelerated, as she had a right to do, the period of dis-
tribution as to Harry, but whether this be so or not, we have
no doubt that the testator intended Harry to have his share,
if he survived his mother, and that the executory devise to
Emma was dependent upon his death without issue in the
lifetime of his mother, and as he survived her his estate be-
came absolute.
The trial court was also in error in holding that notwith-
standing the death of Emma, the executory devisee, in the
lifetime of her brother Harry, she had an estate which passed
to her child, and that the child will take the land, by inherit-
ance from her mother if Harry should at any time die with-
out is^ue. The gift to Emma was a personal one, there being
no gift over in case of her death. Under the common law
she would have taken a life estate, but by virtue of our
statute concerning wills (Comp, Stat., p. 5873, § 36) her
estate becomes absolute if the prior estate fails by death of
Harry without issue, if she be in esse, and the situisition is the
same as if the devise over to her was absolute, so her chil-
dren can only take by inheritance from her and not by pur-
chase under the will, for there is no gift to her children or
legal representatives.
By the death of Emma before the gift over to her took
effect, the object of such gift was not in existence, and there-
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MARCH TERM, 1917. 609
90 A . J, L. Michael v. Minchin.
fore it became impossible of performance. In such case the
prior estate becomes absolute in the first devisee. In Den v.
Schenck, 8 N. J, L, 29, the testator gave to his son Gilbert
and his two daughters. each a parcel of land with the proviso
"that if any of my children should happen to die without any
issue, that such share or dividend shall be divided by the sur-
vivors of them." Of the daughters, one died without issue,
and another, Hannah, died during the lifetime of Gilbert,
who, subsequently, died without issue. Hannah left chil-
dren, and after the death of Gilbert, who had conveyed to
the defendant Schenck, Hannah's children brought an eject-
ment suit based upon the claim that their mother had an in-
heritable estate which passed to her heirs at the death of
Gilbert without issue. The court held that Gilbert took an
estate in fee, subject to defeasance upon the happening of
two events, death without issue and the survival of the
sisters, and said: ^^hen his two sisters died it became im-
possible that the estate should be defeated by going over to
survivors when there were none; from that time it Wame
an absolute fee-simple in Gilbert."
In that case it will be observed there were children of Han-
nah claiming an inheritance from her, property she would
have taken if she had survived Gilbert, he dying without
issue.
The rule laid down in that case is that where there is a gift
over and it becomes impossible of performance through the
death of its object, nothing more being present, the estate of
the first taker becomes absolute. The statute making an
estate absolute where the words "heirs and assigns" are
omitted, and where there is no expression in the will whereby
it shall appear that it was intended to convey only a life
estate, as it now appears in our statute relating to will*, sec-
tion 36, was then in force, it having been passed August 26th,
1784, and was not in Den v. SrhenH\ suirra, considorod as
vesting an inheritable estate in executory devisees if they
did not survive the first taker. That case was decided in
1824, and has been uniformly recognized by our courts as
establishing in this state the legal rule, that where there is a
Vol. xc. 39
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CIO COUKT OF ERRORS AXD APPEALS.
Michael v. Minchin. 90 N. J. L.
gift to one, and then over to another if the first taker dies
without issue, the executory devisee must be alive to take at
the termination of the prior estate, and in default of the ex-
istence of the object of the gift over, the prior estate becomes
absolute. Groves v. Cox^ 40 N. J, L. 40, 45.
This rule was adopted and applied by Chancellor Runyon
in Driimmond's Executor v. Drummond, 26 N. J. Eq, 234,
where the gift was to testator's adopted daughter "when she
arrives at full age," and if she should die without leaving
lawful issue, then to his nephew. The daughter lived to come
of age and the nephew predeceased the testator. The chil-
dren of the nephew claimed that the daughter only look an
estate defeasible in the event of her death without issue at
any time, and if that happened, they would be entitled as
next of kin of their deceased father, but the Chancellor held
that by the death of the nephew the estate of the daughter
became absolute, saying: "The provision made in the con-
tingency of her dying without leaving lawful issue, was made
expressly for another object of his bounty whom he desired
and intended to benefit in that event, that object had ceased
to exist, and the provision, therefore, was at an end and the
primary gift was left wholly unaffected by it. The testator
did not provide that Jane should have a life estate merely,
and that after her death the property should go to her chil-
dren, if she should leave any, but he gives the property to her
without qualification in the gift. The principle of the rule
that, where there is an estate in fee liable to be defeated on
a condition subsequent, and that condition originally was, or
by matters subsequent, has become impossible to be per-
formed, the defeasible estate is made absolute {Co, Lilt,
206a). applies to this case, for the estate was made liable to
be defeated by a gift over, which could never, by possibility
take effect, and the primary gift, therefore, is the same as if
there were no provision for its defeasance." The trial court
refused to apply this case because the nephew died in the
lifetime of the testator, apparently overlooking the declara-
tion of the Chancellor that the rule applied when the condi-
tion "originally was, or, by a matter suhsequentT became im-
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MARCH TERM, 1917. 611
90 N, J. L. ' Michael v. Minchin.
possible of performance. The court below also refused to
apply Den v. SchencJc, supra, upon the ground that the gift
over was lo survivors of testator's" children, and that in the
will now under consideration there is nothing to indicate an
intention that the share of his son Harry should go to his
sister Emma only in the event that she should survive him,
but this begs the question for it assumes that under a proper
construction of this will, Emma took an indefeasible estate
after the death at any time of Harry, even if she did not sur-
vive him, which is the very matter in dispute. Nor is there
any force in the notion expressed by the trial court that there
is a distinction between an executory bequest to the survivors
of a class of devisees and one to a single devisee, because the
word "survivors," when so used, merely describes the object
or objects who are to take the gift over because in existence .
when the prior devise fails, which may be one or more
persons.
As the court below relies to some extent upon the case of
Seddfl V. Wills, 20 N. J. L. 223, and quotes at some length
from it to sustain its conclusion that although Emma died
before her brother Harry, the estate given her vested in her
heirs or devisees, if Harry thereafter died without leaving
issue, a short analysis of that case seems to be required.
The facts in that case, pertinent to the present occasion,
are these : The testator had three sons and six daughters and
one grandchild, and devised to each of his sons and daughters
a specific tract of land, and to his granddaughter a money
legacy. He then provided that if either of his children should
die without lawful issue, the land devised to them should be
equally divided between his surviving children. Two of the
daughters died without leaving issue; the three sons died
leaving issue, two of them before both of their sisters and
the other after the death of one, and before the death of the
other sister, another daughter died after Her two sisters, leav-
ing issue, and the three other daughters and the grand-
daughter named in the will were still alive.
Chief Justice Homblower, in determining the respective
interests of the granddaughter named in the will and of tes-
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61^ couKT OF p:rrors and appp:als:
Michael v. Minchin. 90 N, J. L,
tator's other grandchildren, the is8ue of his three son?, states
two possible constructions of the will depending upon whether
the devise ovei* was to all his other children or only to such
of them as shouhl actually survive the one dying without
issue, and tlien said : ^^Upon the supposition, that the devise
over was to all his other children, then, immediately upon
testator's death, they each become seized of, or entitled to,
an executory devise in fee in (*ach other's lands, subject to be
defeated upon the others leaving issue at the time of their
death; and, consequently, if one died leaving issue after the
testator, but before the death of a brother or sister without
issue, the issue of the one so first dying would take a share of
the land of the one dying without issue; not as devisees of
the testator, nor yet as heirs of the one dying without issue,
•but as heirs-at-law of his or her deceased father or mother,
although such deceased father or mother did not die seized of
the land in possession, but seized only of the executory in-
terest or estate." It is upon this citation that the trial court
rested its decision, but Chief Justice Hornblower did not
construe "my surviving sons and daughters" to meati all his
other children, for, following the statement above quoted,
which applied to "the supposition that the devise over was to
all his other children," he said: "I was at first inclined to
adopt this view of the case ; but, upon further reflection, and
upon looking at the whole scope and tenor of this will, I
think it is not necessary to depart from the plain common
sense and grammatical meaning of the language of the tes-
tator. There is nothing in the will to indicate any intention
in the testator that the cliildren of a deceased child, whether
dying before or after him, should stand in loco parentis: nor
any necessity to adopt such a construction for the purpose of
effectuating any manifest intention of the testator, or satis-
fying the rules of the law.
"On the contrary, the peculiarity of the devise to the three
sons, and the limitation over only of what he devised to
Samuel and Thomas, and the substitution of a mere legacy
to his granddaughter Rebecca, in the place of real estate
which the testator originally intended to give to her mother.
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MARCH TERM, 1917. 613
90 N. J. L. Michael v. Mincbin.
show that the grandchildren were not viewed or thought of
hy him ae immediate objects of his bounty in respect to his
real estate/' and he determined that upon the death of the
two daughters without issue, the land devised to them be-
longed by force of the will "to the brothers and sisters then
actually living, to the exclusion of the children of the deceased
brothers and sisters, and of the testator's granddaughter Re-
becca^" and that the surviving brothers and sisters took their
respective shares in fee-simple and not contingent upon any
future event. As one of the daughters survived her sister
who died without issue, it was held that she, surviving her
sister, became entitled to her share of the deceased sister's
land in fee-simple. It thus appears that the construction
relied upon by the trial court was not adopted by the Chief
Justice in dealing with a condition similar to the one in this
case, and the result which he reached affirmed the principle
laid down by the court in Den v. Schench, supra.
The result of the views above expressed is that the defend-
ant's death without issue is referable to his death in the life-
time of the life tenant, and if he survived her his title be-
came absolute, and also that the gift over failed by the death
of Emma, in the lifetime of her brother Harry, because the
object of the gift over, being removed, the executory devise
became impossible of performance, and the prior estate be-
came absolute, and in either event the defendant became
seized of an indefeasible estate, and, therefore, there was no
breach of tlie covenant, contained in his deed to the plaintiff,
that he wa?? seized of a fee-simple estate. This requires a
reversal of the judgment under review and the awarding of
a venire Je novo, and it is so ordered.
For affirmanee — Xone.
For reversal — The Chancellor, Garrison, Swayze,
Trexchard, Parker, Beroen. Mixturn, Kallsch/Black,
White, Heppenheimer, Williams, Taylor, Gardner,
JJ. 14. .
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614 COURT OP EBRORS AND APPEALS.
Parkview B. & L. Ass'n of Newark v. Rose. 90 N, J. L.
PARKVIEW BUILDING AND LOAN ASSOCIATION OF THE
CITY OF NEWARK, RESPONDENT, v. EDWIN E. ROSE,
APPELLANT.
Submitted March 26, 1917— Decided June 18, 1917. .
Where a building and loan association draws a check to pay ma-
tured shares on account of which a loan has been made and a note
taken, expecting the shareholder to pay the note at the time of
delivery of the check for the shares, and both note and check
are placed in a safe to which the secretary of the association
has lawful access, he being the principal officer transacting the
financial business between the association and its shareholders,
and authorized to receive all moneys paid to the association,
and he, without express authority, takes the note and check
from the safe, delivers the check' to the shareholder, collects the
money due on the note, surrenders it and embezzles the money,
the loss must, as between two innocent parties fall on the one
whose negligence made the fraud possible. Whether the cir-
cumstances in such a case amount to negligence is a jury qxies-
tion, and a directed verdict is error.
On appeal from a judgment entered on a verdict directed
for plaintiff in the Essex County Circuit of the Supreme
Court.
For the appellant, Philip J. Schotland.
For the respondent, Riker & Riker,
The opinion of the court was delivered by
BjniGEN, J. This is an appeal from a judgment entered
upon a verdict directed for the plaintiff, and the question to
be decided is. Was such a direction warranted?
The facts are not in serious dispute. The plaintiff was an
incorporated building and loan association, of which defend-
ant was a shareholder, and from which he borrowed $1,800
and gave his promissory note. When his shares matured they
were worth $2,000, and George Brown, Jr., plaintiff's secre-
tary, notified defendant that the plaintiff would pay him tlie
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MARCH TERM, 1917. 615
90 N. J. L. Parkview B. & L. Ass'n of Newark v. Rose.
$2,000 and that he should draw a check to Brown's order for
the amount due on the note; this defendant did, and the note
and certificate of shares was delivered to the defendant.
Brown cashed the check and embezzled the money, and plaint-
iff brought this suit to recover the sum due on the note, in
which action the court directed a verdict for the plaintiff.
The constitution of the plaintiff association provides that the
secretary "shall receive all moneys paid to the association and
pay the same to the treasurer," and the evidence shows that
the secretary did receive nearly, if not all, the moneys paid
to the association for it. There was -also testimony from whicli
it may be inferred that Brown, as secretary, was entrusted
with most of the financial transactions between tlie association
and its members, the duties of the treasurer being confined to
the receipt of moneys from the secretary and their disburse-
ment; that in the present case, when, on two occasions, de-
fendant borrowed money and gave his notes, the delivery
of the checks and taking of the notes was done by Brown with
the treasurer's knowledge and consent, and that, in fact, all of
defendant's transactions with the association were had with
Brown.
But the plaintiff claims that Brown had no authority to de-
liver the note and accept the moneys due thereon; that al-
though the uniform course of business of tlie plaintiff was to
p^y in full matured shares, and to be paid in full by a bor-
rower the debt due, when shares were pledged for a loan, the
secretary had no power to make settlements of this kind as that
was always done by the treasurer, and in accordance with that
practice the check in this case was drawn for $*^,000 and
placed in the safe of the plaintiff with defendant's note, to be
delivered when defendant notified the treasurer of liis desire to
settle, when the latter would attend at his office for that })ur-
pose; but there is no proof that defendant had knowledge of
this. It is admitted that Brown had lawful access to the safe,
in common with the other officers, and there is proof tliat he
was thus afforded an opportunity to do just what lie did — take
the note, deliver it to defendant and collect the amount duo.
That he accepted a check instead of cash is of no consequence.
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r>lf) COURT OF ERRORS AXl) APPEALS.
Parkview B. & L. Ass'n of Newark v. Rose. 90 .V. J. L,
for lie could as readily embezzle the proceeds of the check as
the cash.
We are of opinion that it was a jury question whether the
plaintiff was not negligent in putting the check and note
within the reach of Brown, the one officer with whom most, if
not all, the financial transactions between the plaintiff and this
defendant were carried on, and also whether the course of
conduct pursued or acquiesced in by the plaintiff in permitting
Brown to so act, was not a holding out of him as the financial
agent of plaintiff with whom the defendant might safely deal.
Brown collected all dues; he negotiated the loans with the
defendant, first one for $600 and delivered the check and took
the note, and when the second loan was made, increasing the
total to $1,800, he delivered the check and took the note for
$1,800. From the evidence a jury might infer that when the
note for $1,800 was delivered to Brown to be given to the
association, it was received by him as agent of the plaintiff;
that Brown, through the negligence of the plaintiff, came into
})oSv«ession of the check and note ; that he had always collected
the interest on the loan and acted as the agent of the plaintiff
in its ordinary financial dealings with shareholders; that he
came to defendant with the check, note and shares in his pos-
session, apparently authorized to make the settlement, and
delivered them, collecting the amount due on the note, and
that the possession by Brown of the necessary papers, and the
former course of the association in permitting Brown to make
the loans, misled the defendant into paying his note to him.
In this case one of the two innocent parties must suffer, and
if the jury should find from the above facts that one was negli-
gent, the loss must be sustained by the one whose conduct has
made the fraud possible. fMtvson v. Cat son, 50 N. J, Eq, 370.
Where one through negligence gives another power to prac-
tice a fraud upon innocent parties, the court will not interfere
in his protection at the expense of the one who has been de-
ceived. **What circumstances shall be sufficient to establish
negligence * * * must be determined as a question of
fact." Uetjder v. Excelsior Building and Loan Association,
!? A\ J. Eq. 403.
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MARCH TERM, 1917. 617
90 A". ./. y.. Darville v. Freeholders of Essex.
A jnrv might also find that by its course in conducting its
business the association had impliedly authorized Brown as its
secretary, by whom all moneys paid to the association must be
received according to the terms of its constitution, to surrender
the note and collect the amount due.
Questions for a jury to determine being present, the di-
rection for plaintiff was error.
The judgment under review will be reversed and a new trial
awarded.
For affirmance — The Chancellor, Black, Williams,
Taylor, Gardner, JJ. 5.
For reversal — Garrison, Swayze, Trenchard, Parker,
Bergen, MiNTiRN, Kalisch, White, Heppenheimer, JJ.
9.
JAMES DARVILLE, RESPONDENT, v. THE BOARD OF
CHOSEN FREEHOLDERS OF THE COUNTY OF ESSEX,
APPELLANT.
Submitted March 26, 1917— Decided June 18, 1^917.
The plaintilf having fallen from a county biidge, by reason of the
giving way of an iron rail, and there being testimony from which
the jury might infer negligence of the defendant, in the per-
formance of its statutory duty of maintenance and repair, as
well as the question of the defendant's ownership of the rail,
and of the locu8 in quo; and also testimony from which an in-
ference might reasonably be drawn, that the defendant assumed
responsibility and exercised control over the rail in question —
Held, that a motion to nonsuit, as well as a motion to direct a
verdict were properly refused.
On appeal from the Essex Circuit.
For tlie respondent, Hugh B. Reed.
For the appellant, Harold A. MUler,
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618 COURT OF ERRORS AND APPEALS.
Darville v. Freeholders of Essex. 90 N. J, L,
The opinion of the court was delivered by
MiNTUEN, J. The plaintiff was injured by falling from
the entrance to a public bridge, crossing Third river, at
Nutley, in the county of Essex. The cause of his fall he at-
tributes to the negligence of the defendant in failing to use
reasonable care to keep the rail or guard of the approach to
the bridge in a reasonably safe condition.
The plaintiff fell while attempting to lean upon an iron
guard rail which ran from the bridge at right angles to an
adjacent blacksmith shop, out of which tlje plaintiff came
and proceeded to cross the bridge. While he was stopping to
answer the salutation of a friend, he placed his hand and
weight upon the rail, when it gave way and precipitated liim
ten feet to the bed of the stream, producing the injuries
which present the basis of this suit.
The defendant denies responsibility, insisting that the rail
in question was not placed there by the county, and that at
the*time of the injury the plaintiff was not upon the public
thoroughfare, but was upon private property adjoining the
bridge, upon which was tlie rail, and that therefore the county
was under no legal liability to maintain or repair it.
The alleged contributory negligence of the pliaintiff, under
the circumstances, presented the final ground of defence.
These issues the trial court treated as jury questions, and
refused a motion to nonsuit, and to direct a verdict baned
thereon.
There was testimony sufficient in the caae from which a
jury might infer that the county at the time the bridge was
erected constructed the rail in question. There was testimony
also from which a jury might conclude that the county recog-
nizing its responsibility for the maintenance of the rail had
at least six months prior to the accident caused the rail, with
the rest of the structure to be painted,' and that after the ac-
cident the county engineer ordered the rail repaired. The
latter fact, while not directly evidential of liability, might be
accepted as a recognition or admission by the defendant, of
the extent of the defendant's ownership, or control of the rail.
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MARCH TERM, 1917. 619
90 N. J. L. Darville v. Freeholders of Essex.
These facts were met by counter evidence from which the
jury might infer the absence of either ownership or mainte-
nance, upon the part of the defendant, and some testimony
from which it was argued that the locus in quo, upon which
the plaintiff stood at the time of his fall, was private prop-
erty, over which the defendant could not legally exercise any
act of control or ownership.
These questions manifestly presented a jury question, in-
volving, as they did, inquiries as to questions of fact, and not
of law, and in leaving them to the jury the rule is common
place that the trial court conmiitted no legal error.
The production by the defendant of the plans for the con-
struction of the bridge might have thrown light upon the
question of the original construction, and have shown the
presence or absence of the rail in question, but the failure to
produce it left the question open, assuming the locus in quo
to be private property, whether, during an interim of years
since the original construction, the defendant may not have
assumed the added j*esponsibility, and imposed the corre-
sponding liability upon itself by accepting permission, tanta-
mount to a license from the adjoining landowner, to keep
and maintain the rail as part of the structure, a legal status
which the jury might reasonably infer in fact existed in view
of the acts of supervision and maintenance, which the p^oof
showed the defendant exercised over tho entire structure.
The liability of defendant being entirely statutory {Pamph.
L. 1860, p, 285; Camp, Stat, p. 304, § 9) ; Maguth v. Free-
holders of Passaic, 72 N. J. L. 226 ; Freeholders of Sussex v.
Strader, 18 Id. 108, the trial court properly left these ques-
tions to the jury, premising its comments upon the situation,
with the fundamental considerations, that the defendant's lia-
bility was conditioned upon their answer to the inquiries
whether the rail in question was part of the bridge, and
whether the plaintiff at the time of the accident was upon
defendant's property, or upon private property, over which
the defendant assumed no responsibility and exercised no
control.
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620 COURT OF ERRORS AND APPEALS.
Lightcap V. Lehigh Valley R. R. Co. of N. J. 90 N. J, L.
The charge of the trial court, and its rulings upon testi-
mony, were in consonance with these principles of liability,
and the judgment will therefore be affirmed.
For affirmance — The Chancellor, Garrison, Swayze,
Trenchard, Parker, Bergen, Minturn, Kalisch, Black,
WiriTE, Heppenheimer, Williams, Taylor, Gardner,
JJ. 14.
For reversal — None.
AVA LIGHTCAP ET AL., APPELLANTS, v. LEHIGH VALLEY
RAILROAD COMPANY OF NEW JERSEY, RESPONDENT.
Argued March 26, 1917— Decided June 18, 1917.
The defendant owning a tract of land, upon which was located a freight
shed, filled in the land so as to change its topography, and the
direction of the flow of surface water therefrom. Snow having
accumulated on the retaining wall of the embankment erected the
water flowed therefrom oyer the adjacent sidewalk and froze there-
on. The plaintiff while walking on the sidewalk slipped, fell and
was injured. In an action to recover for the injuries, the trial
court charged the jury that unless there was affirmative proof
in the case, from which they could infer, that the ice upon the
sidewalk was caused by melting snow, which had been trans-
ported from another locality, to the defendant's premises, there
could be no recovery ; and also that the mere presence of piles
of snow upon defendant's wall presented no proof that the snow
had been carried thereto from another place by the defendant
or its agents — Held, that the instructions of the court in these
particulars were correct.
On appeal from the Warren County Circuit Court.
For the appellants, William C. Gehhardt.
For the respondent, Smith £ Brady.
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MARCH TEKM, 1917. 021
90 N, J. L. Lightcap v. Lehigh Valley R. R. CJo. of N. J.
The opinion of the court was delivered by
MiNTURX, J. While walking along Mercer street, in the
town of Phillipsburg, the appellant fell and injured her knee-
cap. She attributed the accident to the dangerous condition
of the walk, owing to the accumulation of ice thereon, caused,
as she alleges, by the wrongful act of the defendant in causing
to be brought an accumulation of snow upon its lands adjoin-
ing the walk, which snow in the process of melting flowed
upon the sidewalk, thereby creating a public nuisance and
causing the injury in question.
The facts elicited from the testimony show that the defend-
ant was owner of a tract of land which was used by it for a
freight station. That it filled in the tract to such an extent
as to work a change in the topography of the land, and to
cause the surface water to run in a soittherly instead of, as
formerly, in an easterly course.
The municipality caused a street to be opened along tlie
easterly line of the defendant's property, thereby requiring the
excavation of the earth along defendant's line, which in turn
necessitated upon defendant's part the erection of a stone re-
taining wall along the line of the sidewalk. The snow which
accumulated upon the property was precipitated over the
wall in the form of water, and running upon the adjoining
sidewalk became frozen, thereby producing the condition whicli
caused the accident.
The liability of the defendant was predicated upon the
theory of alleged fact, that it had caused quantities of snow
to be carried upon or near its wall, which, having melted, pro-
duced the condition complained" of.
It will be observed that the plaintiff sought to charge the
defendant with liability upon the principle enunciated in the
p]nglish Exchequer in the case of Fletcher v. Rylands, L. R,
1 Ex. 265 ; 3 //. L. 330, to the effect that one who for his
own purposes brings on his lands and keeps and collects there
anything likely to do mischief if it escape, must keep it at
his peril, and if he fail so to do is prima facie answerable for
all damage which is the natural consequence of his act. While
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622 COURT OF ERRORS AND APPEALS.
Lightcap V. Lehigh VaUey R. R. CJo. of N. J. 90 N, J. L.
this doctrine has not been repudiated as a legal principle, it
has been placed in the category of vexatio questio, both in this
country and in England, by the criticisms of the courts and
the text writers, as a principle of law fundamentally unques-
tionable but containing a statement too generic in form for
practical application as a test of legal liability, and conse-
quently it has been definitely qualified, distinguished and lim-
ited by the adjudged cases until the original statement has
become quite attenuated. Nichols- y. Marsland, 2 Ex, D. 1;
L, R, 10 Ex, 255; 1 Ex, R. C. 272; Losee v. Bxicluman, 51
N. Y. 476 ; GorJiam v. Gross, 125 Mass, 232 ; Wilson v. New
Bedford, 108 Id. 261; CaJiill v. Eastman, 18 Minn. 324;
Cooley ToHs 573; 14 Am, L, Rev, 1,
In this state Chief Justice Beasley in Marshall v. WellwooJ,
38 N. J, L, 339, criticises it on the ground that it is a rule
"mainly applicable to a class of cases which I think should
be regarded as in a great degree exceptional."
In the 'case in which it was applied in the Exchequer, the
trend of opinion is that its application to the situation was
proper and justifiable, but the consensus of opinion in later
cases supports the criticism of Chief Justice Beasley that
the doctrine enunciated *^is amplified, and extended into a
general, if not universal principle," and following the Xew
York case of Losee v. Buchanan, supra, he held, speaking for
our Supreme Court, in a case involving damages caused by
the explosion of a boiler, that in principle the doctrine was
inapplicable.
But if we assume that the doctrine might be applicable to
the circumstances of the case at bar, from the plaintiff's con-
ception of it, we are met by the controlling fact that in no
aspect of the testimony can it be affirmed that the defendant
brought upon its land the cause of the damage, so as to enable
the plaintiff to invoke the rule referred to, and the doctrine
therefore can have no application here.
The conclusion that the defendant transported the snow
from another place to its premises because the snow was
heaped upon the wall, at a period of the year when snow was
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MARCH TERM, 1917. 623
90 N. J. L. Lightcap v. Lehigh VaUey R. R. CJo. of N. J.
universal in the neighborhood, is manifestly a non sequitur,
and rests entirely upon the obvious fallacy that because the
?now was there, the defendant and not vis major or other ex-
traneous cause brought it there, for which act under the many
qualifying cases following Fletcher v. Rylands, supra, legal
responsibility could not be imposed upon a landowner entirely
quiescent and guilty of no active tort-feasance.
An interesting and well considered resume of the doctrine
herein discussed, particularly with reference to the liability
which emanates from the application of the maxim sic utere
tuo ut alienum non Icedas, and its many qualifications in prac-
tical use to a situation like the present, will be found in the
May number of the Cohimbia Law Review, page 388. Nichols
V. Marsland, 2 Ex, D. 1; Penn Coal Co, v. Sanderson, 113
Pa. St. 126 ; Marshall v. Wellwood, supra.
In this aspect of the case, however, assuming the rule to be
applicable to tlie plaintiff, she manifestly is in no situation to
complain, since the trial court allowed the case to go to the
jury upon a charge which expressly left it to them to find as
the test of liability whether or not the defendant had trans-
ported tlie snow to its premises, and they found to the
contrary.
In contradistinction, however, to the doctrine of liability
thus applied, the non-liability of Ihe defendant for damages
resulting from the mere presence of the snow upon its prem-
ises, in the absence of proof of active tort-feasance in bringing
it there, has been settled beyond controversy by the pro-
nouncements of the courts of this state.
This court in Jessup v. Bamford Brothers Co., 66 N. J. L.
641, in an opinion by the present Chief Justice, approving the
doctrine enunciated by the Massachusetts Supreme Court in
Gannon^ v. Hargadon, 10 Allen 106, declared that ^^the right of
an owner of land to occupy and improve it in such manner,
and for such purposes, as he may see fit, either by changing
the surface or by the erection of buildings or other structures
thereon, is not restricted or modified by the fact that his own
land is so situated, with reference to that of adjacent owners.
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624 COURT OF EKRORS AND APPEALS.
Lightcap V. Lehigh VaUey R. R. Co. of N. J. 90 AT. J. L,
that an alteration in the mode of its improvement or occupa-
tion in any portion of it will cause water, whicli may accimiu-
late thereon by rains and snows falling on its surface, or flow-
ing on to it from the surface of adjacent lots, either to stand
in unusual (puintities on other adjacent lots or to pass into or
over the same in greater quantities, or in other directions than
they were accustomed to flow." And the general doctrine was
enunciated that '*the obstruction of surface water, or an alter-
ation in the flow of it, affords no cause of action in behalf of a
person who may suffer loss or detriment therefrom against
one who. does no act inconsistent with the due exercise of
dominion over his own soil." To the same effect are Bowlsby
V. Speer, 31 X. J, L. 351; Lightcap v. Lehigh V alley RaU-
road, 87 Id. 64; Sullivan v. Bromiing, 67 N, J. Eq. 391.
The trial court consistently with this conception of the law
instructed the jury that unless they could find from the testi-
mony that the defendant carried the snow from another place
to the premises in question, thereby causing the condition
which superinduced the accident, there could be no recovery.
The jury having found for the defendant, the plaintiff
argues that tlie trial court was in error because it declined to
charge that tlie defendant by filling in the land changed the
topography of tlie premises, and incidentally the adjoining
lands, so as to cause* a change in direction of the previously
existing water-conrse, thereby causing the conditions com-
plained of. As has been stated there was no proof that the
defendant or its agent had transported the snow, or that they
had in any manner transposed its condition or its original
situs further tban the fact that it existed in piles upon the
wall, which incident, as we have intimated, was neither con-
vincing nor evidential to show its transference from elsewhere
to the premises in question, and, as we have observed, the mere
fact that the defendant exercised over his land an indubitable
right of ownership in changing the grade or slope to suit the
defendant's convenience or necessities in the use thereof, pre-
sents no ground of liability for an incidental injuri' to an-
other, but is clearly damnum absque injuria.
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MARCH TERM, 1917. (>-^^
90 N, J. L. Lightcap v. Lehigh Valley Ri R. Co. of N. J.
"Affirmative" evidence, the trial court declared, must be
found in the case from which an inference could be rationally
drawn that the snow on the wall was an accumulation trans-
ported to the premises from another locality, and to this di-
rection exception- is taken. When it is recalled that the
gravamen of the action was the active interference by the de-
fendant with the normal situation, by the transportation to its
premises of an element in which inhered the possibilities of
danger and damage, in the absence of the exercise of due care
in its management and control, it is not perceived in what
aspect of the situation the use of the adjective in question can
be characterized as either inappropriate or misleading, or as
conveying any definitive meaning, unless it be considered as
conveying a correct indication of the quantum and quality of
the proof necessary to entitle the plaintiff to recover under the
testimony and the rules of law to which we* have adverted.
The judgment will be affirmed.
For affirmaivce — The Chancellor, Garrisox, Swayze,
Trenchard, Parker, Bergen, Minturn, Kalisch, Black,
White, Heppenheimkr, Williams, Taylor, Gardner,
JJ. 14.
For reversal — None.
Vol. xc. 40
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626 COURT OF ERRORS AND APPEALS.
More V. Richards. 90 N. J. L.
RICHARD M. MORE ET AU, RECEIVERS FOR B. S. AYARS
& SONS COMPANY, RESPONDENTS, v. CHARLES G.
RICHARDS, APPELTANT.
RICHARD M. MORE ET AL., RECEIVERS FOR B. S. AYARS
& SONS COMPANY, RESPONDENTS, v. SIMON MILNER,
APPELLANT.
RICHARD M. MORE ET AL., RECEIVERS FOR B. S. AYARS
& SONS COMPANY, RESPONDENTS, v. CHARLES SII^
VER, APPELLANT.
Argued March 16, 1917— Decided June 18, 1917.
The defendants agreed in writing, to produce from their respective
farms, tomatoes, of a given quality, by a certain time, and de-
• liver same to the vendee, and before the period of delivery men-
tioned in the contract the vendee was declared insolvent, and
receivers were appointed .therefor. In a suit by the receivers
to collect a claim against the defendants for fertilizer, which
claims were certain in amounts and admittedly correct, the
defendants set up by way of set-off their unliquidated demands
against the insolvent company, for failure to receive the
tomatoes. Held, (1) that being unliquidated the demands
were not capable of set-off under the Corporation act, which
accords the right of set-off only to claims arising out of mutual
dealings; (2) the defendants had not perfected their right
to sue because of failure to deliver or a tender of delivery ;
(3) the recognition of unliquidated claims not entitled to any
legal preference against the receivers, would accord to such
claims a preference in the distribution of the assets of the in-
solvent company, contrary to the provisions and spirit of the
Insolvent act.
On appeal from the • Cumberland County Circuit Court.
For tlie respondent?, Jame^ S, Ware, William A. Logue
and Waller TI. Bacon.
For the appellants, A Ivord d- Tuso.
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MARCH TEEM, 1917. 627
90 N. J. L. More v. Richards.
The opinion of the court was delivered by
MiNTURN, J.' The respective defendants in these three
suits are sued by the receivers of the B. S. Ayars & Sons
Company, upon contracts, similar in form and substance,
entered into between that company during its active existence
with each of the defendants. The company sold the defend-
ants quantities of fertilizer for their respective farms, and
in turn entered into the agreements in question, whereby the
defendants, respectively, contracted "to plant and thoroughly
cultivate" and to deliver to the company specified acreages
of tomatoes, of a specified quality, during the season of 1913,
and to receive from the company therefor $8.25 per net ton.
The fertilizers were delivered, but the tomatoes were not,
because the company, before their fruition, had become in-
solvent, and had gone into the hands of the present plaintiffs
as receivers. The receivers brought suits to recover for the
agreed price of the fertilizers, regarding which no question
was made. The defendants interposed pleas of set-off,
whereby they alleged that they were damnified by the failure
of the company to execute its contract, by accepting delivery
of the tomatoes, to an amount greater than the agreed price
of the fertilizers, which damage they claim should present a
legal set-off to the plaintiffs' claim.
No question is made that the tomatoes were raised, and
that in every essential, but the fact of delivery, the defend-
ants complied with their contract. Upon this assumption a
jury was dispensed with at the Circuit, and by consent of
counsel the legal questions arising upon the facts were sub-
mitted to the court.
It was conceded that the tomatoes matured from day to
day after August 1st, 1913, and that the receivers were ap-
pointed July 21st, 1913, and that on July 28th, 1913, a
restraining order was made by the Court of Chancery en-
joining the company from transacting business except through
its receivers.
It was also in evidence that the receivers did not operate
the company's canning factory. Upon these facts the court
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62S COUKT OF ERRORS AND APPEALS.
More V. Richards. 90 N. J. L,
found for the plaintiffs, from which determination these ap-
peals are taJcen.
It is argued that the Ayars company, in its sale of fertili-
zers, was the agent of another company, known as the Tygest
Company. The trial court, however, found it unnecessary to
interpolate this fact into the issue, but disposed of the ques-
tions upon the concrete inquiry, whether under the facts
stated an action will lie against the receivers.
It is apparent that when the receivers were appointed these
contracts had not matured, and therefore no delivery had
l)een made, and that no tender of the tomatoes was thereafter
made. The case, therefore, is within the narrow compass of
an unliquidated demand, which the defendants seek to off-
set against a distinct independent and liquidated demand,
which the plaintiffs, as receivers, are called upon virtate
officii to collect for the purpose of administering the affairs of
an insolvent corporation, whose liability for the claim in ques-
tion at the time of adjudicated insolvency was not fixed.
The manifest effect of a judgment against the receivers,
under the circumstances, is to single out these defendants
among the creditors, and concede to them a preference upon
claims in nowise distinguishable from the great body of un-
preferred claims, and accord them a preferential status, con-
spicuously opposed to the letter and spirit of the law which
liquidates such claims upon a basis of equality, in the dis-
tribution of assets. Comp. Stat., p. 1652, § 86' Lehigh, £c,,
Co, V. Stevens Co., 63 N. J. Eq. 107 ; Doane v. Millrille Iiv-
surance Co,, 45 Id. 274.
It is equally obvious, upon well-settled principles, that in
order to acquire a legal status for the purpose of maintaining
their suit against the receivers, and of putting them in the
category of vendees, or the legal representatives of vendees,
who have repudiated their contracts, the defendants should
have tendered performance or delivery of the subject-matter
of the contracts, after the period provided in the contracts
had arrived. Florence Mining Co, v. Brovm, 124 TJ, 8, 385 ;
People V. Olole Mutual Insurance Co,, 91 iV. F. 174.
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MxVRCH TERM, 1917. 629
90 \. J. L. More v. Richards.
It is to be observed that the Corporation act, section 66,
provides that in eases of mutual dealings between the cor-
poration and its creditor, just set-oflfs may be allowed "ac-
cording to law and* equity."
The eityation here disclosed presents no appearance of
mutual dealings, upon which the receivers might have exer-
cised their judgment, in dealing with the claims, upon the
basis of mutual set-oflfs, as contemplated by the statute; and
in this connection it is also to be observed that the claims in
question were not presented to the rieceivers upon oath, for
administration as required by section 76 of the Chancery act,
which requires every claim against an insolvent corporation
to be presented to the receiver, in writing, under oath.
Quite obviously, therefore, the effort is to obtain by judg-
ments against the receivers a legal status which will accord
to the defendants a preference in the distribution of corpo-
rate assets, superior to the status accorded by law to the ordi-
nary claimant.
The case is not like Rosenbaum v. Credit System Co,, 61
N. J. L. 543; 40 Atl. Rep. 591, where no injunctive order
restrained the defendant from transacting business, and per-
roitted the plaintiff to continue his services under the re-
ceivership, thereby conceding to him a legal status which is
not presented by the record before us.
The result of these considerations is that the judgment of
the trial court must be affirmed.
For affirmance — The Chancellor, Garrison, Swayze,
Trenchard, Bergen, Minturn, Kalisch, Williams, Tay-
lor, Gardner, J J. 10.
For reversal — Black, White, Heppenheimer, JJ. 3.
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630 COURT OF ERRORS AND APPEALS.
Title Guar. & Surety Co. v. Fusco Const Co. 90 N. J. L,
THE TITLE GUARANTY AND SURETY COMPANY. RE-
SPONDENT, V. FUSCO CONSTRUCTION COMPANY AND
DONATO FUSCO, APPELLANTS.
Submitted March 26, 1917— Decided June 18, 1917.
The plaintiff in consideration of the execution of an agreement of
indemnity to it by defendants, executed a surety bond to the town
of Harrison, New York, for the due performance of the contracts
of the defendant company, with the town. The Indemnity agree-
ment provided for the payment of annual premiums during the
continuance of the work, and the payment of incidental expenses
in case of suit The only affirmative defence pleaded, was that
the contracts were completed before the maturing of the annual
premium sued for. The proof showed otherwise, and no con-
tradiction of the substantial allegations of the plaintiff's loss
being apparent, the trial court directed a verdict for the plaintiff.
Held, upon review of the testimony, that the action of the trial
court was not erroneous.
On appeal from the Supreme Court.
For the respondent, Cohn <& Cohn,
For the appellants, Charles M. Mason.
The opinion of the court was delivered by
MiNTURN, J. The plaintiff, a foreign corporation, brought
suit against defendants, the defendant company being a cor-
poration of this state, to recover premiums due on three bonds
given by the plaintiff, as surety for the Fusco Construction
Company, to the town of Harrison, in the State of New York,
to ensure the completion of certain contracts entered into by
the construction company with the town, for the construction
of a sanitary sewer system therein.
The allegation of the complaint is that in consideration of
the plaintiff's suretyship, the defendants agreed, in writing,
with the plaintiff, to pay in cash the annual premium, upon
each of said bonds, and to continue the payment of the same.
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MARCH TERM, 1917. 631
90 N. J. L. Title Guar. & Surety Co. v. Fusco Const. Co.
until the plaintiflf should be discharged, according to law,
from all liability upon the obligations.
The agreement also contained a provision of indemnity,
in virtue of which the plaintiff was to be saved harmless from
any loss or liability by reason of its execution of the obliga-
tions, including disbursements and costs and counsel fees in-
curred in collecting the premiums due upon the bond?.
The breach alleged was that the premiums remained un-
paid for the years 1914 and 1915, maturing, respectively, on
the 6th of December in each year. The answer of both de-
fendants contained a general denial of the allegations of the
complaint, and an averment that the contract in question was
completed by the company prior to December 6th, 1913.
The trial at the Circuit resulted in a direction of a verdict
for the plaintiff, and the appeal lies from that determina-
tion. The due execution of the bonds was not denied in the
proof. It is contended that there was a variance between the
allegation and the proof, in that two of the bonds were dated
December 6th, and since the indemnity agreement was dated
December 19tli, the inference to be drawn was that the latter
could not have been executed as quid pro quo for the former.
No proof was tendered to support the contention, while the
proof was ample and uncontradicted that the agreement of
indemnity presented the moving motive for the execution of
the bonds. It is also to be observ^ed that the test is not fixed
by the date of the bond, but hy the date of delivery thereof.
The argument that the agreement was without considera-
tion is based upon the same misconception, and falls with it;
and it is to be noted that no averment of the kind is made in
the answers, and that the agreement itself refers to the execu-
tion of the bonds as quid pro quo for the execution of the
agreemeni.
The third bond was.in fact dated December 28th, and the
premiums for the first year were paid, and it was proved and
stands apparently without dispute in the record that the
performance of the contract consumed more than a year, so
that the premiums again matured on December 6th, 1914,
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63> COrRT OF EHR0K8 AXI) APPEALS.
Betts V. Massachusetts Bond. & Ins. Co. 90 N, J, L,
and tlie liability of the defendant? for cheir payment, conse-
quently, is manifest.
Certain ledger cards containing statements of payment of
premiums by defendants were admitted in evidence over the
defendants' objection, that tbey were not original entries, and
were not properly proved.
If this contention be conceded, their admission was in
nowise injurious to tlie defendants, since, without their pres-
ence in the case, the proof was ample from other sources
upon which to base defendants' liability. The substantial
allegations of the complaint remained unchallenged and im-
contradicted in the proof; and we think the right, if not the
duty of the court, nnder the circumstances, manifestly was
to adopt the course it pursued, and to direct the judgment
appealed from, which will be affirmed.
For affirmance — Tith Chancellor, Garrisox, Swayze,
Trench ARD, Parker, Bergen^ Minturn, Kalisch, Black,
WiflTE, HePPENUEIMER, WlLLLVMS, TaYLOR, (tARDNER,
J J. 14.
For revrrml — None.
EDWIN BETTS, RESPONDENT, v. MASSACHUSETTS BOND-
INO AND INSURANCE COMPANY, APPELLANT.
Submitted March 26, lOlT—Decided June 18, 1917.
1. The terms of a policy of iusurance, made between the insurance
company and a dentist, to protect the dentist "against loss from
the liability by law upon the assured for damages on account
of bodily injuries or death suflfered by any person or persons in
consequence of any alleged error, or mistake or malpractice oc-
curring in the practice of the assured's profession as described
in the application" and "against loss from the liability imposed
by law upon the assured for damages on account of bodily in-
juries or death suffered by any person in consequence of any
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MARCH TERM, 1917. 633
90 X, J. L. Betts v. Massachusetts Bond. & Ins. Co.
alleged error or mistake or malpractice, by any assistant of the
assured while acting under the assured's instructions*' contained,
among others, the provision that the company shall not be liable
• under the policy for any claim against the assured or any as-
sistant arising from the violation of any law or ordinance on
the part of the assured. Ueld^ that the insurance company was
not liable, under the policy of insurance, to the assured, for
damages recovered against him for the malpractice of an as-
sistant, who was held out, by the assured, to the public and to
the insurance company, as a licensed dentist, whereas, in fact,
the assistant was, to the knowledge of the assured, not licensed
to practice and was acting in direct violation of the laws of
the state covering the practice and licensing of dentists.
2. Held, also, that under the terms of the policy, in order for the
assured to recover, it must appear that the error, mistake or
malpractice of the assistant occurred while acting under the
assured's instruction.
li, Ui)on grounds of public policy, one who actively or passively
participates in violating a statute, cannot recover damages for
a loss occasioned by such violation; following and applying the
doctrine enunciated in Heizel v. Wasson Piston Ring Co., 89
y. J. L, 205.
On apj)eal to the Supreme Court.
For tlie appellant, Kalisck & Kalhch {Isidor Kalisch on the
brief).
For the respondent, Joseph Steiner,
The opinion of the court was delivered bv
Kalisch, J. Tliis case is a sequel to Klitch v. Betts, de-
cided by us at the June term, 1916, and reported in 89 N.
J. L. 348. There it appears that the respondent herein, a
licensed dentist, was sued for malpractice by one Klitch for
injuries inflicted upon his jaw by one Snively, an assistant
to the respondent, while in the performance of a dental oper-
ation. It further appears that Dr. Betts, the defendant in
that case and the respondent herein, endeavored to defend
upon the ground that his assistant, Snively, had done an un-
authorized and illegal act in operating on Klitch's jaw in the
absence of and not under the supervision of the respondent,
Snively not being licensed to practice dentistry in this state.
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634 COURT OP ERRORS AND APPEALS.
Bett8 V. Massachusetts Bond. & Ins. Go. 90 N. </. L.
We held that Dr. Betts had so arranged the conduct of his
business oflSce as to hold out Snively as his lawful assistant,
and, therefore, was answerable for the assistant's negligence
to Klitch, and upon that ground we sustained the judgment
obtained against Betts.
Dr. Betts, having paid the judgment, brought an action
against the appellant insurance company to recover the
amount so paid, basing his action on a policy of insurance
issued to him by the appellant company whereby the com-
pany had agreed to protect him, as a licensed dentist prac-
ticing in this state, against loss from liability to any person
or persons upon certain terms and conditions to be later
herein set forth and considered.
The case was tried at the Essex Circuit, and by stipulation
the record and testimony in the case of Klitch v. BettSy supra,
together with the record of this court in that case, were put
in evidence, with some slight additional testimony.
Upon these records and testimony Betts recovered a judg-
ment against the insurance company, from which it has
appealed.
The argument addressed to us, by counsel for appellant,
for a reversal of the judgment, is that the respondent was
not entitled to recover a judgment against the appellant be-
cause, by the uncontroverted testimony in the case, it appears
that the negligent act of Snively, for which the respondent
was held answerable in damages, was not covered by the
contract of indemnity, in that Snively was not a licensed and
registered dentist, and, therefore, under the law of this state
was not only not authorized to perform a dental operation
but was expressly forbidden to. do so, the statute making it
a misdemeanor, and that by the terms of the policy it was
expressly agreed that the company should not be liable under
the policy for any claim against the assured or any assistant
arising from the violation of any law or ordinance on the part
of the assured or any assistant ; that the malpractice or error
in the dental operation performed by Snively was not done
while acting under the assured's instruction, which is one
of the requirements of the policy as a basis of the right of the
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MARCH TERM, 1917. 635
90 N. J, L. Beits y. Massachusetts Bond. & Ins. Co.
assured to indemnity ; that the respondent knew that Snively
was not licensed and registered to practice dentistry in this
state, and, nevertheless, was employed and held out by respond-
ent as his assistant in performing dental operations, which was
in express violation of the Dentistry act, which statute makes
such conduct a misdemeanor, and, therefore, the respondent
does not come into court with clean hands and should not be
permitted to make his unlawful act the basis of a right to
recover; that in the application for the policy of insurance
the respondent stated that he employed no physician, surgeon
or dentist regularly on a salary or commission except Dr.
Charles L. Snively, and thereby he falsely represented that
Snively was a licensed and registered dentist of this state,
and that being so, he subjected the insurer to a risk which
was not contemplated by it and which was concealed from the
insurer, and, therefore, the contract of insurance became
void; and lastly, that no notice was given by respondent to
the company of any claim made by Klitch upon him within
the time required by the terms of the policy.
Turning to the policy of insurance we find that by its tenns
the insurance company agreed to protect the respondent (1)
"against loss from the liability by law upon the assured for
damages on account of bodily injuries or death suffered by
any person or persons in consequence of any alleged error, or
mistake or malpractice occurring in the practice of the as-
sured's profession as described in the application for this
policy;" (2) "against loss from the liability imposed by law
upon the assured for damages on account of bodily injuries
or death suffered by any person or persons in consequence of
any alleged error or mistake or malpractice, by any assistant
of the assured while acting under the assured's instructions."
This undertaking of the insurer is made by the policy, sub-
ject to certain conditions contained therein, but for the pur-
pose of this case, it will suflSce to set forth conditions B and
C. Condition "B" provides that the company shall not be
liable under the policy for any claim against the assured or
any assistant arising from the violation of any law or ordi-
nance on the part of the assured. Condition 'T" provides
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636 COURT OF EBRORS AND APPEALS.
Betts V. Massachusetts Bond. & Ins. Co. 90 N. J, L,
tkat the assured shall give immediate written notice of any
charge of error or mistake or malpractice, and of any claim
for damages covered by this policy to the home office of the
company or its authorized agent.
'The respective rights of the litigants in this controversy
must be determined by the contract of insurance.
The language of the contract is neither technical nor am-
biguous, and, therefore, no difficulty can interpose itself to
prevent applying the well-recognized canon of construction,
by giving the language employed its legal, natural and ordi-
nary meaning.
This court, in Bennett v. Van Riper, 47 A\ J. Eq. 563 (on
/>. 5G6), speaking through Mr. Justice Scudder, said: "Where
there is no fixed legal or technical meaning which the court
must follow in the construction of a contract, tlien Hhe best
const i*uct ion,' says Chief Justice Gibson^ is that which is made
by viewing the subject-matter of the contract as the mass of
mankind would view it; for it may be safely assumed that
sucli was the aspect in which the parties themselves viewed it.
A result thus obtained is exactly what is obtained from the
cardinal rule of intenticm."
Therefore, upon the threshold of the present inquiry into
what the legal obligations and rights, flowing from the agree-
ment between insurer and insured, w^ere, and are, we must
first pay due regard to the fact that state legislation, for the
protection of the public against charlatanism and imposi-
tion, has put the practice of dentistry under statutory con-
trol. Section 1 of the act relating to dentistry {Comp,
Stat., p. 1911) provides that only persons who are now duly
licensed and registered, pursuant to law, and those who may
hereafter be duly licensed and registered as dentists, pur-
suant to the provisions of this act, shall be deemed licensed
to practice dentistry in this state.
The eighth section o/ the act provides, inter alia, that the
act shall not be construed to prohibit an unlicensed person
from performing mechanical work upon inert matter in a
dental office or laboratory or to prohibit a registered student
of a licensed dentist from assisting his preceptor in dental
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MARCH TP]RM, 1917. 037
90 N. J. L. Betts v. Massachusetts Bond. & Ins. Co.
operations while in Ms presence and under his direct and im-
mediate personal supervision.
This section further provides that a person shall be re-
garded as practicing dentistry within the meaning of the act
who shall use the words "doctor of dental surgery," "doctor
of dental medicine/' or the letters "D.D.S." or "D.M.D/' in
connection with his name, or any other title intended to im-
ply or designate him, &c., as a practition'^r in all its branches.
Section 12 of the act provides that any person, company
or association practicing or liolding himself or itself out to
the public as practicing dentistry, not being at the time of
said practice or holding out legally licensed to practice such
in this state, shall be guilty of a misdemeanor.
This being the established law regarding the practice of
dentistry in this state at the time the parties to the contract
entered into it, they will be held to have done so with full
knowledge of the legal effect of their contractual act.
The appellant was entitled to rely on the safeguards which
the law erected against improper and illegal practice of den-
tistry which tends to lead to error, mistake or malpractice.
The record in Klitch v. Belts, mpra, establishes that the
uncontroverted fact that Snively, both unlicensed and un-
registered to practice dentistry-, did, as an assistant to Dr.
Betts, a licensed dentist, in the dental office, and, in the
absence of Dr. Betts, perform several dental operations upon
Klitch and treated the latter's injured jaw resulting from
such operations. These acts were clearly in express violation
of the statute which forbids dental operations by an unlicensed
person. The record also clearly shows that Betts employed
and permitted Snively to perform dental operations while he
was an unlicensed person, which was a clear violation of the
policy.
Snively's acts, being both unlawful and unauthorized, and
not having occurred while acting under the assured's instruc-
tion, by force of the provision of the insurance contract which
limits the liability of the insurance company to injuries or
death in consequence of any alleged error or mistake or mal-
practice, by an assistant of the assured while acting under the
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638 COURT OP ERRORS AND APPEALS.
Betts V. Massachusetts Bond. & Ins. Go. 90 N. J. L,
assured's instruction, cannot, therefore, operate to create any
liability on part of the insurance company to indemnify the
respondent.
Besides this conclusive bar to the respondent's right to a
recover}^ condition ^^" of the policy of insurance expressly
provides that the insurance company shall not be liable under
the policy for any claim against the assured or any assistant
arising from the violation of any law or ordinance on part of
the assured.
The insurer is entitled to the protection which this clause
affords it. It is of the very essence of the contract. • It is
difficult to perceive in what reasonable way the insurance
company could have protected itself against claims arising
out of illegal act or acts by unauthorized persons than the one
agreed upon between the parties to the contract, by limiting
the liability^ of the company to claims arising out of mistakes,
error or malpractice against a dentist or his assistant in the
lawful practice of dentistry.
The fact that the assistant was a dentist of another state
does not make it the less a substantial violation of the law of
this state and his act an unauthorized one. In the legal as-
pect his act stands upon, the same level as if it had been per-
formed by a butcher or a blacksmith, or any other unqualified
person.
It is suggested that condition "B" has only reference to
where the violation of the law is the proximate cause of the
injury. We must bear in mind that we are dealing with lia-
bility arising out of contractual relations and not with lia-
bility arising out of a tort.
There is no legal obstacle in the way to parties agreeing, as
in this case, what shall or shall not be the basis of liability.
If they fix remote causes as a basis, it is not for us to say that
they intended to fix proximate. In the present case, however,
it might be properly said that the violation of law, in that
the unauthorized act of an unlicensed dentist in this state
caused the malpractice, was in a certain sense the proximate
cause.
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MARCH TERM, 1917. 639
90 X. J, L. Betts v. Massachusetts Bond. & Ins. Co.
The record in Klitch v. Betts, supra, establishes that in-
juries from which Klitch suffered were inflicted upon him
by Snively, the respondent's assistant, in a dental operation.
Before a person can lawfully practice dentistry in this state,
he must submit himself to both a written and oral examina-
tion by the state board of registration and examination in
dentistry, and if the board filnds the applicant qualified to
practice dentistry and of good moral character, he will be
entitled to a license and be registered. Snively had never
su'hmitted himself to any such test as to his qualifications
in order to obtain a license, and, therefore, in the eye of the
law, his status was thai of a person not qualified to practice
dentistry. It was the direct result of Snively's unlawful act,
coupled witli his want of ordinary skill that caused 'the in-
jury. It would not be reasonable to hold the insurer liable
for the malpractice of an assistant whose act was, to the
knowledge of Betts, contrary to law.
AVe think also that the respondent is debarred from re-
covering on the policy, because it appears that the basis of
his claim of recovery is the unlawful act of Snively in which
the respondent participated, by holding Snively out as a
licen?ed dentist to the public and to the appellant.
It is to be observed that in the contract of insurance the
respondent makes and warrants the truth of the statements
made by him in applying for the insurance. He made this
statement : "I employ no physician, surgeon or dentist regu-
larly or on a salary or commission except as follows.: Dr.
Charles L. Snively." It has already been p6inted out that a
person shall be regarded as practicing dentistry within the
meaning of the Dentistry act who shall use a title, &c. There-
fore, when the respondent made the statement and gave the
title "Dr/'^ to Snively, knowing that Snively was not entitled
thereto, under the law of this state, he made an untruthful
statement.
It is manifest that the truthfulness of this statement was
highly important to the insurer. For it determined one of the
risks that the insurer was to insure against. It was one of
the risks to be covered by the policy of insurance and, there-
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640 COURT OF ERRORS AXD APPEALS.
Betts V. Massachusetts Bond. & Ins. Co. 90 A'. J, L,
fore, it was essential that the statement in relation thereto
should be true.
We need not spend time to demonstrate that the risk of
mistake, error, &e., is greater in the case of one wlio is not
legally qualified to practice dentistry than in the case of one
who is.
The legislature has declared what tlie qualification to prac-
tice dentistry shall be, and, in the absence of a license to prac-
tice dentistry, there will be an absence of proj^umption of
qualification. It is, therefore, apparent that the object of
requiring a statement as to the status of the person or persons
is to apprise the insurance company of the risk wliich it was
insuring against.
Upon the question whether the insured will be peimitted
to recover on his contract where he has sustained a loss, which
loss arose through the act of an assistant in violating the law,
related to the subject-matter of the contract, the lawful prac-
tice of dentistry, and in which violation the insured either
actively or passively participated, we are unable to distin-
guish, on grounds of public policy, the present case from the
case of Hetzel v. Wasson Piston Ring Co,, recently decided
by this court, and reported in 89 N. J, L. 205.
In that case it was held that the father disentitled himself
of his right of action to recover for loss of the services of his
son, who was injured while in the employ of the company,
because it appeared that the son was under fiM^een years of
age, and hence wa^ employed in violation of^ttfffute which
imposed a penalty of $50 on any corporation, firm, individual,
parent or custodian who permitted such employment. Chief
Justice Gummere, speaking for this court (on p. 308), says:
"The injury to the plaintifFs son is the direct result of the
joint violation of the act of 1904, by the defendant and the
plaintiff, &nd the stripping of the child of that protection
which the legislature by that statute declared he should have.
"The plaintiflF can take nothing by way of compensation
for a loss which has come to him as the direct result of his
own violation of law."
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MARCH TERM, 1917. 6U
90 N. J, L. Breidt Brewery Co. v. Weber.
In the present case, the insurance company is a wliolly in-
nocent party, which was not the fact as to the company in the
case just referred to, and, therefore, there is a stronger reason
for denying the respondent's right to a recovery.
Furthermore, it is to be observed that the statement made
by the respondent in liis application for insurance, that Dr.
Snively was his assistant, was a material statement, since
it related to the risk which the compiuiy was talcing, and,
besides, the respondent warranted the statement to l)e true
when he knew that Snively was not authorized to practice
dentistry in this state. This of itself is sufficient to avoid the
appellant's liability on the policy.
Having reached the result that the trial judge erred in not
directing a verdict for the appellant, we find it unnecessary
to consider the other matters assigned as grounds of appeal.
The judgment will be reversed.
For affirmance — Swayze, Parker, Black, White, Hep-
PENHEiMER, Williams, JJ. 6.
For reversal — The Chancellor, Chief Justice, Gar-
rison, Trenchard, Bergen, Minturn, Kalisch, Taylor,
Gardner, JJ. 9.
THE PETER BREIDT CITY BREWERY COMPANY, RE-
SPONDENT, V. FRED WEBER, APPELLANT.
Submitted March 26, 1917— Decided June 18, 1917.
Where a brewing company agreed in writing to let a saloon prop-
erty "at a monthly rent of $100, payable in advance," and the
tenant agreed **to pay a monthly rental for the premises of $100
per month, payable in advance," the tenancy thereby created
was a monthly tenancy, notwithstanding that the tenant made
application annually, and paid an annual license fee for the
sale of intoxicating liquors, to the proper authorities, for several
years, the fact that the tenant made such yearly application
for such license not having the legal effect of changing the terms
of the letting.
Vol. xc. 41
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642 COURT OF ERRORS AND APPEALS.
Breidt Brewery CJo. v. Weber. 90 N, J, L.
On appeal from the Supreme Court.
For the appellant, WiWam R. Wilson,
For the respondent, John J. Stamler.
The opinion of the court was delivered by
Kalisch, J. The fundamental question presented here is
whether the trial judge was warranted, unier the facts and
circumstances of this case, in deciding, as a matter of law,
that an agreement of letting between the parties was one from
year to year and required a three months' notice to terminate.
The agreement between th6 parties, which is in writing,
was entered into by them on the 10th day of June, 1910. By
that instrument it appears that the brewing company agreed
to let the premises therein mentioned to the appellant "at a
montfily rent of $100, payable in advance," and that the ap-
pellant agreed "to pay a monthly rental for the premises of
one hundred dollars ($100) per month, payable in advance."
The premises were let to the appellant for the saloon busi-
ness. The brewing company, by the terms of this agreement,
obligated itself to put in a new front and to make such re-
pairs and innovations on the interior as would make the
premises suitable for the saloon business. The appellant ob-
ligated himself to apply for a license, or transfer of the exist-
ing license, to the excise board to conduct the business of
retail liquor dealer on the premises. On the trial of the
cause, it appeared that on the 26th day of July, 1910, the
appellant procured the license from the board of excise, and
that he renewed the same annually, the last renewal being
from July 26th, 1915, to July 25th, 1916.
It further appeared that the appellant paid an annual li-
cense fee of $500, and that the brewing company spent a
considerable sum of money in putting the premises in condi-
tion for the conduct of the saloon business. On the Ist day
of November, 1915, the appellant vacated the premises, having
prior thereto given thirty days* notice to his landlord of his
intention to vacate on the day mentioned as is required by
law to be given to terminate a tenancy from month to month.
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MARCH TERM, 1917. 643
90 N, J, L, Breidt Brewery Co. v. Weber.
The error eomplained of by appellant is presented by ex-
ceptions taken to that part of the court's charge in which he
defines the nature and extent of the term agreed on by the
parties.
The court appears to have assumed that because appellant
paid a saloon license fee of $500, year after year, from June,
1910, to July, 1915, that this had the legal effect of fixing
the term of the lease from year to year. And it was in this
view he charged the jury that the tenancy was not a monthly
one, and that the appellant could not relieve himself from the
obligations of the lease by giving one month's notice to quit
to his landlord.
But this view is clearly untenable. The written agreement
entered into by the parties in the present case does not show
an annual rental reserved, and this circumstance, according
to Steffcns v. Earl, 40 N. J, L. 128, is a distinctive feature of
a yearly letting, but, on the contrary, the writing shows that
only a monthly rental was reserved, and in these express
terms: "And to pay a monthly rental for the store or first
floor and the basement underneath same of one hundred
($100) per month, payable in advance." Concerning such
a situation, Judge Reed, in the case cited (on p. 137), said:
"But where there is no such letting (yearly), and there is no
evidence but the mere fact of payment at intervals of a week
or a month, the implication is that the renting is a monthly
or a weekly one, just as the payment is monthly or weekly."
The letting in the present case was manifestly a monthly
one and was subject to be legally terminated by either party
giving one month's notice. The fact that the tenant made a
yearly application for a license to conduct his business did
not have the legal eflfect to change the terms of the letting.
The rights and obligations of the parties must be deteimined
by the terms of the contract of letting. This was, apparently,
not done.
The judgment will be reversed and a venire de novo
awarded.
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644 COURT OF EBROBS AND APPEALS.
Gromer y. George. 90N,J.L,
For affirmance — White^ Taylor^ J J. 2.
For reversal — The Chancellor, Garrison, Swayze,
Trenchard, Parker, Bergen, Minturn, Kaliscii, Black,
Heppenheimer, Williams, Gardner, JJ. 12.
JULIUS GROMER, ADMINISTRATOR, APPELLANT, v.
JOSEPH GEORGE AND ANTONIO GEORGE, RESPOND-
ENTS.
Submitted Marcb 26, 1917— Decided June 18, 1917.
In a suit against a father and son for damages sustained by reason
of the negligent operation, by the son, of an automobile, the
admission of alleged hearsay testimony that the ownership of
the automobile was in the son, and not in the father, was harm-
less, where the jury found the son "not guilty" of negligence,
since, if the father was the owner of the car and the son was
on his father's business, as his agent or servant, at the time of
the infliction of the injury, the father would not have incurred
any legal responsibility therefor unless it also appeared that the
injury was due to the son's negligence and to which the de-
cedent did not in anywise proximately contribute.
On appeal from the Supreme Court.
For the appellant, William Oreenfijeld.
For the respondents, John A. Matthews and William J.
Dowd.
The opinion of the court was delivered by
Kalisch^ J. The appellant, who was the plaintiff below,
appeals from a judgment entered on a verdict rendered by a
jury in favor of the respondents, defendants below.
The appellant brought his action, as administrator of the
estate of his son, a lad fourteen years of age, in the court be-
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MARCH TERM, 1917. 645
90 N. J. L, Gromer v. George,
low, against the respondents, father and son, to recover dam-
ages for negligently causing the death of appellant's son.
The complaint charged the respondents with being "the
owners, proprietors or lessees of a certain automobile," &c.,
and that on the 30th day of May, the respondents, their
agents, servants, &c., did operate and run the automobile
along the public highway, at a high rate of speed and in a
careless, reckless and negligent manner, run into and against
the appellant's decedent, who was then and there lawfully on
the public highway, &c.
It is to be observed that the gravamen of the charge is
negligence. This charge was negatived by the jury finding
a verdict in favor of both respondents. On the trial the
appellant sought a recovery against both respondents upon
the theory that the father was the owner of the automobile,
and that the son, while on the business of his father, negli-
gently operated the car with the result as above stated.
The principal ground relied on by the appellant for a re-
versal of the judgment is that the trial judge illegally ad-
mitted hearsay testimony concerning the ownership of the au-
tomobile, in Antonio George, the son.
Even upon the assumption that such testimony was im-
properly admitted, it is obvious from the verdict of the jury,
finding the son not guilty of negligence, that the admission of
such testimony was harmless. For it is plain that if the father
was the owner of the ear, and the son was on his father's
business, as his agent or servant, at the time of the infliction
of the injury upon appellant's decedent, the father would not
have incurred any legal liability therefor, unless it also ap-
peared that the injury to the appellant's decedent was due to
the son's negligence and to which the decedent did not in any-
wise proximately contribute.
The remaining exceptions discussed in the brief of counsel
for appellant relate to what the trial judge said in his charge
to the jury was necessary to be established by the evidence in
order to make the father answerable in law for the negligent
acts of his son in operating the machine. But in view of the
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646 COURT OF ERRORS AND APPEALS.
Duff V. Prudential Insurance Co. 90 N. J. L.
fact that the jury, by their verdict, exonerated the son from
the charge of negligence, and without which negligence no
legal liability could have been incurred by the father, it is
manifest that if any error in stating the legal rule governing
the father's liability was committed, it was harmless.
The judgment will be aflBrmed.
For affirmance — The Chancellor^ Garrison, Swayze,
Trenchard, Parker, Bergen, Minturn, Kalisch, Black,
White, Heppenheimer, Williams, Taylor, Gardner,
JJ. 14.
For reversal — Xone.
RICHARD H. DUFF, ADMINISTRATOR, ETC., JOHN SULLI-
VAN, DECEASED, RESPONDENT, v. PRUDENTIAL IN-
SURANCE COMPANY OF AMERICA, APPELLANT.
Submitted March 26, 1917— Decided June 18, 1917.
1. A finding of fact by the District Court, supported by evidence,
that, in the application for a policy of life insurance, a state-
ment, that the insured was not suffering from consumption was
a willful untruth, vitiates the policy. This in effect is a finding
that the policy was procured by fraud.
2. By statute Pamph. L. 1907, p. 133, § 1 (4) statements purport-
ing to be made by the insured shall, in the absence of fraud, be
deemed representations and not warranties.
3. The Supreme Court cannot review the findings of fact of the
District Courts, when supported by evidence.
On apjwal from tlie Supreme Court.
For tlie appellant, Randolph Perkins,
For the respondent, Ilershenstetn & Finnerty,
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MARCH TERM, 1917. 647
90 .V. J, L, DufiF V. Prudendal Insurance Co.
The opinion of the court was delivered by
Black, J. This was a suit brought on an industrial life
insurance policy, issued to the decedent^ John Sullivan, by
the defendant company, for the sum of two hundred and
forty-four dollars ($244), on September 21st, 1914. The
insured died of tuberculosis at the City Hospital in Jersey
City, June 13th, 1915. The case was tfied in the First Dis-
trict Court of Jersey City, by Judge Carrick, without a jury,
resulting in a judgment rendered in favor of the defendant.
The trial court found, «8 a fact, the statement made by the
insured, in his application, that he had never suffered from
consumption, in view of the previous history of the case, to
have been a vnllfvl untruth, mhich vitiates* the policy and
prevents recovery thereunder. The evidence in the record
amply supports this finding of fact by the trial court. The
?ase was reviewed in the Supreme Court, which reversed the
judgment of the District Court, on the ground that the false
statement in the application, if it was false, did not vitiate
the policy, in the absence of proof, that the company was in-
duced to write the policy through fraud. The Supreme Court
also said the case is substantially, though not precisely, similar
to Melick v. Metropolitan Life Insurance Co., 84 N. J, L,
437; affirmed, 85 Id, 727, in which the determining factor
was the continued acceptance of weekly premiums by the
company.
We do not agree with the conclusion reached by the Su-
preme Court. We think the judgment of the Supreme Court
should be reversed and the judgment of the District Court
affirmed.
In the application for the policy of insyranee, which was
dated September 9th, 1914, the insured stated that he had
never suffered from consumption, that he was in good condi-
tion of health and had no serious disease. The company de-
fended on the ground of the falsity of these statements.
The policy itself does not refer to the application for in-
surance. The statements in the application are not made
warranties or conditions. The statute provides : "All state-
ments purporting to be made by the insured shall, in the ab-
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648 COUirr OF ERKORS AND APPEALS.
Duff V. Prudential Insurance Co. 90 N, J, L.
sence of fraud, be deemed representations and not warranties.
Any waiver of this provision shall be void/' Pamph. L,
1907, p. 133, § 1 (4).
The finding of facts by the District Court was not the sub-
ject of review by the Supreme Court. Dordoni v. Hughes,
83 N, J. L, 355. It seems to us, the necessary result of find-
ing, that an applicafion for a policy of life insurance con-
tains a mil fill untruth as to whether the applicant had con-
sumption was necessarily a finding that the policy was pro-
cured by fraud.
The Supreme Court thought there was no proof, that this
misrepresentation was material, or that the company may
have been aware' of its falsity and issued the policy regardless
of that fact. The fact that the company asks the question
shows it is material, and it is common knowledge to as-
sume that life insurance companies do not accept for life in-
surance tubercular persons.
Tt is said the most essential clemeni of fraud is deceit.
What could be the purpose of the insured making a statement,
that was a mllful uniruth about his health, which he must
have knouTi was impoi*tant and material, if it was not to
deceive? Many dofmitions and illustrations of fraud, taken
from adjudged eases, will be found collcoted in 3 Words and
Phrases 2943. AVe agree with the District Court that a state-
ment which is a willful untruth, as found by the District
Court, in procuring the insurance policy renders it void, on
the ground of fraud. This view results in a reversal of the
judsnnent of the Supreme Court and an affirmance of the
judgment of the District Court. Tt also renders unnecessary
any further discussion of the points argued in the briefs of
counsel.
The judgment of the Supreme Court is therefore reversed,
with costs, and the judgment of the District Court affirmed.
For affirmance — Xone.
For reversal-^Tiiv: CftancelloRj Swayze, Trexchard,
MixTURN", Kalisch, Black, White, Heppenheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
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MARCH TERM, 1917. 649
90 N. J. L, Jersey City v. Hud. & Manhattan R. R. Co.
THE MAYOR AND ALDERMEN OF JERSEY CITY, RE-
SPONDENT, V. THE HUDSON AND MANHATTAN RAIL-
ROAD COMPANY, APPELLANT.
Argued March 20, 1917— Decided June 18, 1917.
1. The word "each" in an ordinance of Jersey City, providing for
compensation to be paid the city, for the use of land privileges
by a railroad company, in connection with its three routes, de-
pending upon the amount of fare for each single passenger ser-
vice, means any route and not all three routes.
2. Where an ordinance by its terms does not constitute a contract
with a railroad company, for the use of land privileges, but
does provide an option, the railroad company cannot retain
the use of the privileges and refuse to pay the stipulated com-
pensation.
3. A continued exercise of the privileges by a railroad company,
under an ordinance accepted by it, evinces an election to pay
the stipulated compensation and thereby creates a legal obliga-
tion to pay. The language of the ordinance construed will be
found in the opinion.
On appeal from the Hudson County Circuit Court.
For the respondent, James J. Murphy and John Beniley.
For the appellant, Collins <& Corhin.
The opinion of the court was delivered by
Black, J. The suit in this case was brought by the mayor
and aldermen of Jersey City against the Hudson and Man-
hattan Railroad Company, to recover compensation for the
conditional rights or occupancy, by the defendant company,
of certain land privileges, in the public street, at Henderson
and Grove streets, Jersey City, used by the defendant com-*
panv for station purposes. The case was tried under a stipu-
lated state of facts, on the second count of the complaint only,
before Judge Speer at the Hudson Circuit, without a jury,
resulting in a judgment, in favor of the plaintiff, for the sum
of six thousand five hundred and twenty-five dollars ($6,525).
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650 COURT OF ERRORS AND APPEALS.
Jersey City v. Hud. & Manhattan R. R. Co. 90 N, J, L.
The suit grows out of the construction of sections three
(3), four (4) and six (6) of an ordinance of Jersey City,
which was accepted by the defendant company on September
29th, 1910.
Those sections read thus :
"Section 3. Said railroad company, its successors or as-
signs, shall pay to the city, annually, except in the contingency
hemnafter noted in section 4 hereof, for the right to use and
occupy said tract of land aforedescribed in section 1 hereof,
and so long as it shall so use and occupy the same, in addi-
tion to such taxes or assessments which may be legally levied
upon its personal and real estate by the city of Jersey City,
or by any other authority, the suip of one hundred ($100)
dollars for the first year of occupancy dating from the ac-
ceptance of this ordinance and thereafter like payments for
the entke period of the life of this ordinance. The permis-
sion to use and occupy said tract of land aforedescribed to
continue and remain in force so long as the rate of fare
charged by said Hudson and Manhattan Railroad Company,
its successors or assigns, between the Grove and Henderson
street stations and Thirty-third street and Broadway, Xew
York, and intermediate stations, and between the said Grove
and Henderson street stations and the Hudson terminal, in
Xew York, and intermediate stations, and between said Hen-
derson and Grove street stations and Hoboken, Xew Jersey,
and intermediate stations, shall not exceed for each single
passenger service, one way, and in either direction, the sum of
five cents."
•^Section 4. If, at any time, after the passage and accept-
ance of this ordinance the said Hudson vnd Manhattan Rail-
road Company, its successors or assigns, shall proceed to
charge and exact a fare exceeding five cents for each single
passenger service as described in section 3 hereof, then and
thereupon said railroad company shall immediately surrender
to the city all privileges herein and hereby granted or then
the annual payment to be made by said railroad company, its
successors or assigns, for the use and occupancy of the tract
of land aforedescribed, shall in lieu of the amount of annual
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MARCH TERM, 1917. 651
90 N. J. L, Jersey City v. Hud. & Manhattan R. R. Co.
payment indicated in section 3 of tnis ordinance and in sub-
stitution therefor, be five thousand ($5,000) dollars to be
computed from the date of exaction by paid company of such
excess fare — such payment of five thousand ($5,000) dollars
to be in addition to such taxes or assessments which may be
legally levied upon its personal and real estate bt the city of
Jersey City or by any other authority and to so continue for
each and every year during the continuance of such increased
rate. The said railroad company shall have the right of elec-
tion hereunder.
"If by reason of the enforcement of the provisions of this
section there shall have accumulated a deficiency in the an-
nual pa.vment herein in this section contingently required to
be made, such accumulation shall in its entirety be paid. by
said company on the first payment day thereafter ensuing and
as hereinafter provided."
"Section 6. Proper proportions of the payments of the city
herein provided for shall be made in advance to the city comp-
troller at his office in the city hall, on the first days of Octo-
ber and April next succeeding the acceptance of this ordi-
nance, failing which pavment for thirty days or a failure by
said company to comply with all or any of the terms, re-
quirements or obligations of this ordinance as heretofore ex-
pressed shall constitute an annulment of any and all permis-
sions herein or hereby accorded, and the city may thereupon
remove any and all obstructions herein authorized and restore
any affected street or portion thereof at the entire cost and
expense of said company without prior notice and without
recourse to it."
Smne of the additional facts pertinent to this discussion are :
The defendant railroad company, from the time it began
operations, charged only five cents for each passenger service,
from the Grove and Henderson street station eastward
thereof, on any of its lines, until December 24th, 1911, when
it raised its rate of fare to seven cents, between the Grove and
Henderson street station and the stations in New York City
on the Thirty-third street line. It did not increase the rate
to the Erie station, to Hoboken, to Exchange Place, in Jer-
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652 COURT OF ERROES AND APPEALS.
Jersey City v. Hud. & Manhattan R. R. Co. 90 N. j\ L,
sey City, or to the Hudson terminal, in Xew York, the rate
to those stations from Grove and Henderson street station
and from Summit avenue station, remaining five cents — tnat
is, passengers who go to New York from the Grove and Hen-
derson street station, by way of the uptown line, are charged
two cents extra fare to New York stations, and to those only.
There are fitve grounds of appeal — first, no breach of the
alleged contract ; second, no election under the fourth section
of the ordinance; third, acceptance of $100 per year by Jer-
sey City after the increase of fare was a construction, by the
parties to the contract that it had not been broken, by such
increase.
The other two grounds of appeal — the fourth and fifth —
are purely formal.
The argument is, the use of the conjunction "and" in sec-
tion 3 of the ordinance, where reference is made to the three
lines of the railroad and intermediate stations in connection
with section 4, makes section 3 mean that the permission
stands until the rate of fare is increased above five cents on
all three lines; tliat for each single passenger service, one way
or in either direction, means for all the lines, but we think
the natural and intended meaning of the word "each" in this
connection means "any," i. e., any one of the three lines.
It is next argued, the ordinance does not constitute a con-
tract to pay; at best, it provides, merely, for an annulment.
It may be conceded that section 4, in itself, does not consti-
tute a contract to pay, but it gives the railroad company the
option either to surrender its privileges to the city or to pay
the five thousand dollars ($5,000). When the railroad com-
pany continues exercising the privileges, it evinces an eleftion
to pay the increased amount, and it thereby becomes in law
liable to pay. Section 6 does not militate against this conclu-
sion. That section provides, simply, that the failure to make
the pa\Tnent of five thousand ($5,000) dollars shall consti-
tute an annulment of the permission granted. The city may
thereupon enter and remove obstructions.
This is nothing more than the ordinary clause of forfeiture
in a lease. It hardly seems reasonable, and it cannot be rea-
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MARCH TERM, 1917. 653
90 N, J. L, Rogers v. Warrington.
sonable, that one can have the option to make a contract valid
or invalid, as he chooses; that he can retain the privileges
and get rid of the obligation by refusing or failing to per-
form his part by paying the stipulated amount for the privi-
leges so retained.
The other points need no discussion, they are without legal
merit.
The judgment of the Circuit Court is therefore affirmed,
with costs.
For affirmance — The Chancellor, Garrison, Swayze,
Trench ARD, Bergen, Minturn, Kalisch, Black, White,
Heppenheimer, Williams^ Taylor, Gardner, J J. 13.
Fot reversal — None.
JERUSHA B. ROGERS, RESPONDENT, v. SUSAN N. WAR-
RINGTON, APPELLANT.
Submitted March 26, 1917— Decided June 18, 1917.
1. In New Jersey, the fee in the lands over which highways have
been laid, is in the abutting owner.
2. The owner of the fee, for the soil in the highway, may maintain
an action of ejectment against any person wrongfully taking
or claiming exclusive possession of the same.
3. By the statute {Comp. Stat., p. 2056, ^ 13), in an action of eject-
ment for land occupied by the defendant, a plea of not guilty ad-
mits such possession as excludes the plaintiff.
On appeal from the Supreme Court.
For the appellant, Kaiglin & Wolverion.
For the respondent, George M. IliUman,
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q54 COUBT OF ERRORS AND APPEALS.
Rogers v. Warrington. 90 N, J. L,
The opinion of the court was delivered by
Black, J. This was an action of ejectment. The record
shows* however, that the plaintiff was the owner of a lot of
land upon which her dwelling-house was erected, situate on
the south side of Main street, at the forks of the road known
as Perkins Comer, in Moorestown, Chester township, Burling-
ton county, New Jersey. The suit was brought to recover
possession of the land, in the public highway, in front of the
plaintiff's lot.
The defendant erected a public drinking fountain, or water-
ing trough, in the highway, the fee of which was owned by the
plaintiff. The suit was brought to recover that portion of the
highway, thus appropriated by the defendant, by the erection
of the drinking fountain, or watering trough. The answer
defends the action, as to a part of the premises claimed in the
•complaint, viz., the portion thereof^ witliin the lines of the
Main street, occupied by the public drinking fountain, erected
by consent of the municipal authorities, as to which part the
defendant denies the truth of the matters contained in the
complaint. By force of the statute (Comp. Stat,, p. 2056,
^13), the plea for the purpose of this action is an admission
that the defendant was in possession of the premises, for
which she defends. French v. Robb, 67 N, J. L, 260; Jacob-
son V. Hayday, 83 Id. 537.
The case was tried by the court at the Circuit, without a
jury, resulting in a judgment for the plaintiff; the damages
being assessed at six (.06) cents. The plaintiffs title to the
fee of the premises in question being conceded, the plea ad-
mitting the defendant was in possession, the ruling of the
trial court was not error in giving judgment for the plaintiff.
It is the accepted law of this state that lands on which
streets and highways have been laid the fee is in the abutting
owner. Hoboken Land and Improvement Co. v. Mayor, &c,,
of Hoboken, 36 N. J. L. 540 ; Starr v. Camden, &c., Railroad
Co,, 24 Id, 592.
It also has long been the settled law of this court that .the
owner of the soil in such cases may maintain an action of
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MARCH TERM, 1917. 655
90 N, J, L. Peoples National Bank v. Cramer.
ejectment against any person wrongfully taking or claiming
exclusive possession of the same.
All the cases are in harmony on this point: Wright v.
Carter, 27 N, J. L, 76 ; Hoboken Land and Improvement Co.
V. Mayor, &c., of Hoboken, supra; French v. Robb, supra;
Bork V. United New Jersey Railroad and Canal Co,, 70 N, J.
L, 268; Moore v. Camden, dc, Railway Co., 73 Id. 599;
Johanson v. Atlantic City Railroad Co., Id. 767.
Whether the drinking fountain, or watering trough, is an
additional servitude on the land to that of the highway, is not
before us for consideration on this record. "We, therefore, ex-
press no opinion on that point. Finding no error in the
record, the judgment of the Supreme Court is therefore
affirmed, with costs.
For affirmance — The Chancellor, Garrisok, Swayze,
Trench ARD, Parker^ Bergen, Minturn, Kalisch, Black,
White, Heppenheimer, Williams, Taylor, Gardner,
JJ. 14.
For reversal^—'N one.
THE PEOPLES NATIONAL BANK OF TARENTUM, PENN-
SYLVANIA, RESPONDENT, v. WILLIAM E. CRAMER,
APPELLANT.
Submitted March 26, 1917— Decided June 18, 1917.
Where a promissory note was given in payment for a carload of
glass bought and delivered, the fact that the contract for the
glass also included- four other carloads which the payee of the
note failed to deliver, thereby entailing a loss on the maker of
more than the amount of the note, is no defence to a suit on
the note by a holder thereof for value in due course where there
was no proof that such holder knew of such contract when it
took the note. Under such circumstances it is immaterial that
such holder did know that the payee 'Vas losing money, was in
a bad way, and in danger of going into the hands of a receiver.**
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656 COUKT OF p]RRORS AND APPEALS.
Peoples National Bank v. Cramer. 00 N, J. L.
On appeal from a judgment of the Supreme Court.
For the appellant, Joseph Beck Tyler.
For the respondent. Grey & Archer.
The opinion of the court was delivered hy
White. J. This is a suit upon a promissory note given
by the defendant-appellant, Cramer^ as drawer, to the Fidelity
Glass Company, as payee, in payment for a carload of glass
bottles purchased and delivered, which note was discounted
prior to maturity with the plaintiff-respondent bank (the
proceeds being duly placed to payee's credit) and upon ma-
turity vas not paid. The defence is, that the carload of glass
bottles in question was part of five carloads contracted to be
delivered by the payee to Cramer at a fixed price; that the
payee went into the hands of a receiver and the remaining
four carloads of the contract were never delivered, so that
Cramer was compelled to buy elsewhere at a loss of more than
the amount of the note ; that the bank is chargeable with this
defence because its cashier, Crawford, was given general au-
thority by the directors to discount notes, and did in fact dis-
count this note; that at the time he did so, which was two
days before the receiver was applied for, he was also the treas-
urer and a member of the board of directors of the payee.
Fidelity Glass Company, and as such knew that that company
had been losing money, that it was going from bad to worse;
that the manager told him that it could not fill its existing
contracts by reason of the advance in cost of materials, &c.,
and that on the same day he was told this, which was the day
he discounted the note, he advised the manager to call a meet-
ing of the board of directors of the Fidelity Glass Company,
at which meeting it was decided to apply for a receiver.
Whether the payee was in fact insolvent is uncertain. Under
the receivership it paid its creditors ninety-two cents on the
dollar.
The learned trial judge directed a verdict for the plaintiff
for the full amount of the note, with interest, on the ground
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MARCH TERAI, 1917. 657
90 N. J. L. Peoples National Bank v. Cramer.
that the cashier, Crawford's, knowledge of these facts was not
imputable to the bank because he acquired it not while acting
for the bank, and because in the transaction in wliicli he was
acting for the bank, his interests as an officer of the payee, the
Fidelity Glass Company, were opposed to those of the bank.
Upon this view we express no opinion because we do not
find it necessary to do so, for the reason that assuming that
all the knowledge which the cashier was proved to possess was
properly imputable to the bank itself, the latter still became a
holder for value in due course without notice of the defence
here set up, because it is not shown that the cashier either
as such or as treasurer and director of the Fidelity Glass Com-
pany knew of the outstanding contract with the drawer,
Cramer, for the other four carloads. The evidence shows that
the running of the business of the Fidelity Glass Company
was in the hands of a manager, and, in fact, the cashier testi-
fies that he had no such knowledge, and he is not contradicted.
Without such knowledge it is obvious that it made no differ-
ence whatsoever to the bank's standing as a holder for value
in due course, that it knew the payee-endorser of this note
given for goods sold and delivered was losing money, was in
a bad way, and in danger of having to go into the hands of
a receiver. If it were otherwise, much of a bank's usefulness
in enabling people in financial difficulties to avoid disaster
would be destroyed.
The judgment is affirmed.
For affirmance — The Chancellor, Garrison, Swayze,
Trenchard, Parker, Bergen, Minturn, Kalisch, Black,
White, Heppenheimer, Williams, Taylor, Gardner,
JJ. 14.
For reversal — None.
Vol. xc. 42
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658 COURT OF EBRORS AND APPEALS.
Brinsko v. Lehigh Valley RaUroad (^. 90 N, J. L.
THE ESTATE OF JOHN BRiNSKO, RESPONDENT, v. LE-
HIGH VALLEY RAIIJIOAD COMPANY OF NEW JERSEY,
APPELLANT.
Argued January 4, 1917 — Decided October 11, 1917.
On appeal from the Supreme Court.
For the appellant, Adrian Lyon.
For the respondent, Thomas Brown.
Per Curiam.
This suit was brought in the Middlesex Common Pleas
under the Workmen's Compensation act (Pamph. L. 1911, p.
134, amended Pamph. L. 1913, p. 302), for compensation to
the dependent widow and children of John Brinsko, deceased,
who met his death by being run over by a car of the defend-
ant company, of which company he was an employe.
After hearing and argument the trial judge found that de-
ceased, wliile in the "course of his employment" with the de-
fendant company, was run over by one of its cars and killed.
One of the defences interposed was, that at the time de-
cedent met his death he was employed in moving cars en-
gaged in interstate commerce, and that, therefore, the defend-
ant is liable only under the Federal Employers' Liability act.
On this head the trial judge found that for the purposes of
the suit, it was not necessary to determine whether the car,
which injured and caused the death of the deceased, was en-
gaged in interstate commerce at the time.
With this finding tlie Supreme Court disagreed, but held
that the award made by the trial judge in the Common Pleas
was not vitiated on that account, because, on the finding of
facts by tlie judge, the car was not engaged in interstate com-
merce, nor was the deceased. This was error.
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MARCH TERM, 1917. 659
90 N, J, L. Bnnsko ▼. Lehigh Valley Railroad Co.
In Dunnemald v. Henry Steers, Inc., 89 N. J. L, 601, this
court held that to warrant a recovery under our Workmen's
Compensation act, it must appear that the employe's death
was caused (1) by an accident (2) arising out, and (3) in
the course, of his employment, and that all of these essential
facts must be found by the trial judge and must be con-
tained in his written determination.
As a matter of fact the trial judge, in the case at bar, while
determining that the deceased's injury occurred in the course
of his emplo}'ment, failed to find that it arose out of that em-
ployment or was the result of an accident. And, owing to the
defence of interstate commerce, he would have to go a step
farther and find whether at the time of the accident the de-
ceased was engaged in interstate or intrastate commerce. As
shown above, he noticed the point, but held that it was un-
necessary to determine it. If he had held that decedent was
engaged in interstate commerce, then he could not have
awarded compensation under our Workmen's Compensation
act. See Erie Railroad Co. v. Winfield, 244 U, S. 170;
Rounsaville v. Central Railroad of New Jersey, ante p. 176.
On the contrary, if he had held that the deceased was engaged
in intrastate commerce, then he could have awarded compen-
sation, if he found, as facts, that the deceased came to his
death as the result of an accident arising out of and in the
course of his employment.
The right of the Supreme Court to review a proceeding
under the Workmen's Compensation act is limited to ques-
tions of law, and it cannot review determinations of fact if
tliere is evidence to support them. Dunnewald v. Henry
Steers, Inc., supra^
Upon the authority of the Dunnewald case the judgment
of the Supreme Court aflBrming the judgment of the Common
Pleas must be reversed, to the end that there may be a new
trial and proper determination of the facts in the Common
Pleas, either upon the evidence already put in, or such other
evidence as the parties may. see fit to offer. No costs will be
allowed in this court.
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660 COUKT OF ERRORS AND APPEALS.
Burnett v. Superior Realty Co. 90 N. J. L.
For aflirmance — None.
For reversal — The Chancellor^ Chief Justice, Gar-
rison, SwAYZE, Trenchard, Bergen, Black, White. Hep-
PEXHEiMER, Williams, Taylor, Gardner, J.T. 12.
EI.ANOR BURNETT, BY NEXT FRIEND, AND FRANKLIN
P. BURNETT, RESPONDENTS, v. SUPERIOR REALTY
COMPANY, A CORPORATION, APPELLANT.
Submitted March 26, 1917— Decided June 18, 1917.
On appeal from the Supreme Court, in which court the fol-
lowing memorandum was filed by Mr. Justice Parker :
"This appeal brings up a judgment recovered by the plaintiff,
an infant of tender years, based upon the verdict of a jury for
damages sustained by an accident. The grounds of appeal
are for the most part indefinite and do not point out any legal
error on the part of the trial court except the first, which
sets up that the trial court refused to grant the motion for a
nonsuit, and the second, that the court refused to grant a di-
rection of a verdict in favor of the defendant. With the third,
which is, that the verdict is contrary to the weight of evidence,
we have nothing to do on this appeal; the fourth, that the
charge was erroneous in law, specifies no error ; the same may
be said of the fifth, that the charge of the court on the meas-
ure of damages was based upon an erroneous rule of law ; the
sixth, that the damages were excessive, is not open to con-
sideration at this time ; the seventh, that there is no evidence
of negligence on the part of the defendant, is covered by
grounds one and two ; and the eighth, and last, that the court
admitted illegal evidence for the plaintiffs, is similar to the
fourth in failing to specify what illegal evidence is complained
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MARCH TERM, 1917. 661
90 N. J. L. Burnett v. Superior Realty Co.
of and was objected to at the trial. The sole question there-
fore is whether there was a ease for the jury.
^The plaintiff, a little girl of tender years, and too young to
testify, was injured in the back yard of the apartment-house
or tenement-house where she lived with her parents on the
ground floor, by a mortar box about six feet long and four feet
wide, falling over upon her. No one saw it fall, but the child
was heard to scream and was found lying flat on the ground
on her face with the box lying over her. It was inferable
from the evidence that the mortar box had been stored in the
yard on its edge so that it might easily be caused to fall in
the manner in which it did fall.
"Two important questions in the case are, whether there
was evidence to justify a jury in findhig that the infant
plaintiff was invited by the owner of the premises, the de-
fendant, to use the yard as a playground, and, secondly, if so,
whether there was . evidence to justify the jury in further
finding that the fall of the box was due to any negligence that
could be brought horiie to the defendant company. Both of
these questions turn to some extent upon questions of au-
thority, expressly or impliedly, or ostensibly conferred upon
the defendant as its agent.
"The defendant is the owner of the property. It turned
over the management of the property to another corporation
called the Progressive Investment Company, which seems to
have been engaged in the real estate business, as its agent, to
manage and control the house and apartments and collect the
rents, and generally attend to the usual details of the land-
lord's agent. That corporation had an employe named Rash-
kober, who was entrusted, as the jury might filid, with the
duty of collecting rents and attending to repairs. He also
undertook to settle disputes among the tenants. He seems to
have lived there on the premises, or next door, or near by, so
that he was readily accessible to tenants. In addition to this,
there was a janitress of the building named Mrs. T^eise, who
also seems to have taken more or less part in the renting of
the premises, especially in showing rooms and in the pre-
lim inarv neffotiations for rental. There are various circum-
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662 COURT OP ERRORS AND APPEALS.
Burnett t. Superior Realty Co. 90 N, J. L,
stances in the case which bear both on the question of agency
and of negligence, and therefore are recited together.
"We think it suflSciently appears as a jury question that the
rooms were rented to the Burnetts with a specific privil^e of
the yard for their children. The evidence indicates that Mrs.
Burnett, who went to arrange for the rental, dealt with the
janitress, who oflfered her the second floor rooms, and Mrs.
Burnett refused to take them, and insisted on the ground
floor on account of the children. She said that she told the
janitress at the time that she was moving from the second
floor. There was no denial that the children played in the
yard without objection. The mortar box, and a quantity of
other impedimenta, such as planks and garden tools, belonged
to, or were in the possession of, another tenant of the build-
ing named Weissman, who caused them to be put in the yard.
As soon as the mortar box and these other articles came into
the yard, Mr, Burnett complained to .Reshkober on the
ground that the yard was for the children, and, according to
the testimony, Rashkober said that he would see Weissman at
once in the matter. It appears that he did see Weissman and
had a dispute with him on the matter of storing these articles
in the yard. It also appears that Burnett announced his in-
tention of making complaint at the ofliee of tlie agents, and
that Rashkol)er told Burnett that it was his (Rashkober's)
business. Tt further appears that on on'? occasion when Bur-
nett had an errand at the office of the Progressive Investment
Company about his rent l)ook, he was informed that Rash-
kober was the agent, and that if he did not have rent hook?
the office would furnish them to him. We think that these
facts show at least an ostensible agency of Rashkober and the
janitress for the defendant company under the doctrine of
Klitch V. Befts, 89 N. J. L. 348, and a question for the jury
as to whether the plaintiff, in common with the other chil-
dren, was entitled to use the yard to plav in.
"The case is different from Saunderfi v. Realty Comjiany. 84
N, J. L. 276, in that the lease in the present case was oral,
and, as the jury might find, the use of the back yard was
under discussion at the time the lease was made and was an
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MARCH TERM, 1917. 663
90 N. J. L, Burnett v. Superior RealtyCo.
inducement to Mrs. Burnett to take the ground floor rooms
instead of rooms on the second floor.
'TVe, therefore, approach the question whether there wa^ evi-
dence for a jury of negligence on the part of the defendant in
permitting the box put in by Weissman to remain in the yard
an unreasonable time after the defendant had notice, pr
should in the ordinary course of things have taken notice that
it was there and was likely to be dangerous to children using
the yard. That it was a menace to children is plainly a jury
question, from the fact that it fell over on one of the chil-
dren, and could not have done so because of its weight, some
four hundred pounds, unless it was balanced in a position to
be easily upset.
"Now, as to the question of notice and reasonable time, tlie
jur>' was entitled to find that the box came in the yard on
Tuesday afternoon about twenty-four hours before the ac-
cident; that Burnett, the father, saw the box and other ar-
ticles, and complained almost immediately to Rashkober, who,
as already stated, lived in the building or next door. The
basis of the complaint is not entirely clear on the evidence,
whether it was an obstruction to the yard or tlie foul odors
from the lumber, which consisted of old stable planking, or
the danger to children. It does appear, however, that Bur-
nett said to Rashkober on that occasion: 'Here is a box
weighs al)0ut four hundred pounds lies in the yard now.^ I
says, *I want this stopped. When I hired the house I had
Mrs. Leise, tlie janitress, take a lamp and show us the yard.'
I said : ^V little boy was hurt when we lived on the second
floor, and that is what I hired this yard for.' He said, *I
will go up and see Weissman.' And he came back and said :
'Well, I have been up and told Weissman I wanted this
stopped, and Weissman said, "My boy put the box in the
yard."'
"Burnett testified that he had complained to Rashkober some
nine days or two weeks before, when Weissman first l^egan to
put implements into the yard, and that the above conversation
was later when the box came in. From this, and the other
evidence, we conclude that it was at least an inference for tlie
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(yCA COURT OF ERRORS AXD APPEALS.
Burnett v. Superior Realty Co. 90 N. J. L,
jiirv that Rasbkober was notified tbat the premipcs were ren-
dered iin?ni table, if not, indeed, dangerous, for cbildren.
"The only remaining question is whether the jury was en-
titled to say tbat there was. an unreasonable delay in remov-
ing the box or rendering the yard safe. The case does not
present the question of reasonable time for discovery of the
box in the absence of express notice, as in Timlan v. DUworth,
7G X ./. L. 568, but of reasonable time after notice within
wbicb the conditions might and should have been remedied.
As the jury might find, about twenty-four hours elapsed after
notice of the dangerous condition; the obstruction of the
yard began apparently some nine days before and seemed to
have been farming utensils that might be dangerous in them-
selves to children. As on the other branches of the case, we
think tbat the question of unreasonable delay in attending
to the matter was also for the jury.
'^This result disposes of the questions arising on the motion
to nonsuit and to direct a verdict for th(? defendant ; and as
no other trial errors, if existing, are adequately presented,
Ave conclude that the judgment below must be affirmed.
"Mr. Justice Bergen concurs.''
For the respondents, Peter Steinsitz.
For the appellant, J awes P. Mylod.
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Parker in the Supreme Court.
For affirmance — The Chancellor, Chief Justice,
SwAYZE, Trenchard, Minturx, Kalirch, Black, White,
TTeppexheimer, Williams. Taylor, Gardner, JJ. 12.
For reversal — None.
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MARCH TEEM, 1917. 665
90 y. J. L, Cooney v. Rushmore.
MICHAEL J. COONEY, RESPONDENT, v. SAMUEL W. RUSH-
MORE ET AL., APPELLANTS.
Argued March 20, 1917— Decided June 18, 3917.
On appeal from the Supreme Court, in which court the fol-
lowing memorandum was filed by Mr. Ju.^tice Bergen :
"The pvo?ecutor caused a petition, praying compensation for
injuries a« authorized by the Workmen's Compensation act,
with an order of the court fixing the day for hearing, to be
served on the defendant. The only answer interposed was
that the petition was not filed with the clerk of the Court of
Common Pleas within one year after the accident. This the
Court of Common Pleas sustained and made an order dis-
missing the petition, which action is now uifder review, the
record having been brought here by a writ of certiorari
allowed tlie petitioner. The facts are not disputed and show
that the accident, the basis of the prosecutor's petition, hap-
pened on March 9th, 1914, and that his petition was presented
to the judge of the Court of Common Pleas March 8th, 1915,
who on that day made the following order: 'A petition
having been filed in this cause by Michael J. Cooney, peti-
tioner, praying for the compensation, payable by Samuel W.
Rushmore, the respondent, it is on this 8th day of March,
1915, on motion of John P. Owens, attorney for petitioner:
" ^Ordered, that the hearing of said matter bQ and hereby is
set down for Friday, the 3d day of April, 1915, at the court
house, in the city of Elizabeth, at ten o'clock in the forenoon,
or as soon thereafter as counsel can be heard. And it is
further ordered, that a true, but uncertified copy of this order,
together with a copy of the petition, upon which this order is
issued, be served upon the respondent, within six days after
the date of this order.' After the order was signed, it and
the petition was given to the sheriff of the county of Union
to be served on the defendant. It wa.^ properly served on
March 8th, 1915, but the sheriff did not return the original
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666 COURT OF ERRORS AND APPEALS.
Oooney y. Rasfamore. 90 N, J, L,
petition and order to the clerk until March 10th, 1915, wlio
marked it filed as of that date.
"The only question to l)e determined is whether tlie petition
is to be considered as filed on March 8th, when it was pre-
sented to the judge of the court, for if it was, then the order
under review and the judgment thereon should he set aside.
"The return made by the sheriff was not a filing of the peti-
tion and order, for he had no authority to do more tlian m'ake
a return of the character of the service lie had made.
"Section 18 of the Workmen's Compensation act, 1911
(Pamph. L., p. 134), provides that in case of dispute? concern-
ing the claim of an injured employe, ^either party may sul)-
mit the claim' to a judge of the Court of Common Pleas of
the county, who is empowered to hear and determine the dis-
pute in a summary manner. The method of ])rocedure ap-
pears in section 20 of the act, as amended in 1013 (Pnmph.
L., p. 302), wjiich, after providing that either party may
present a petition, declares that ^ipon the presentaHon of
such a petition the same shall \w filed with the clerk of the
Court of Common Pleas, and the judge shall by order fix a
time and place for the hearing.. * * * A copy of said peti-
tion and order shall be served as summons in a civil action
and may be served within six days thereafter upon the adverse
party/ and the last paragraph of the amending act of 1913
provides that all such claims ^shall be forever barred unless
within one year after the accident the parties shall haN-e
agreed upon the compensation payable under this act, or
unless within one year after the accident one of the parties
shall have filecl a petition for the adjudication of compensa-
tion as provided herein.^
"While the statute is perhaps not as definite on the subject
as it might be, T am of opinion that while the proceeding is
statutory, the jurisdiction in these matters is conferred on the
Court of Common Pleas and not on the judge, for although
the petition, must be presented to a judge of that court, the
record is that of the court ; the petition is to be filed with the
clerk of the Court of Common Pleas, and the judgment is to
be entered in that court, on the findinsfs of the jiulsre, the same
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MARCH TEEM, 1917. 667
90 N, J, L. Cooney v. Rusfamore.
as in cases tried in that court, while section 21 of the act pro-
vides that the compensation may be commuted by said ^Court
of Common Pleas/ and to make the statute consistent and
workable/ we must assume that the legislature, in providing
this new method of compensation and the means for its en-
forcement, vested the jurisdiction in the Court of Common
Pleas, and not in a judge of that court as a distinct tribunal.
The case of Hendrwhson- \. Pvhlic Service Railway Co., 87
N, J. L. 366, is not applicable to the present situation, for^ in
that case, the court made an order that the petition be filled
with the clerk of the Court of Common Pleas, and this was
not done within the year, nor does it appear that any order
was made declaring that the petition was filed and fixing a
time for hearing. The decision in that case was put upon the
ground that neither the judge or the petitioner considered the
presentation of the petition as a filing; in fact, the contrary
appeared for the court made an order that it be filed.
"In the case under consideration the court, after the presen-
tation of the petition, acted upon it as if filed with the clerk,
and stated in the order that it had been filed. The orderly
proceeding under this statute seems to be the presentation of
the petition to the judge, its filing with the clerk of the Court
of Common Pleas, followed by the making of the order by the
judge fixing a day for hearing. In this case the petition was
presented to the judge, and he certifies that it was filed and
thereupon made the order fixing the date for hearing, which
he could only make after the petition was filed with the clerk.
The certificate of the judge that the pe^"ition was filed is, in
my judgment, just as eflFective as if he, as the judge of the
Court of Common Pleas, had endorsed the date of filing on the
petition. When the petition was presented, adjudged to be on
file, and the order made fixing the day of hearing, the peti-
tion and order passed beyond the petitioner's control and he
could not, at least without an order, withdraw them from the
files. The fact that the clerk did not endorse on the petition
the date of filing is, in my judgment, of no consequence, if it
was in fact filed with the clerk of the court, as the judge
thereof determined before he acted on it.
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668 COURT OF ERRORS AND APPEALS.
Cooney v. Rushmore. 90 y. J. L.
"The statute must be given a reasonable construction, and
when a petition is presented to the judge of the court;, and he
not only certifies that it has been filed, but acts upon it as he
only could after it was filed, the petition becomes a jecord of
the court from that date, and is to be taken as filed with the
clerk of the court at the time when the court certifies that it
was filed. The only other difficulty presented is, that the
original petition and order were removed from the files and
given to the sheriff in order that he might make service of a
copy thereof. As the petition and order constitute the only
writ or process in actions of this kind, they were probably
taken by the sheriflF to be exhibited to the defendant in case
of personal service, but, if this was not necessary, the peti-
tioner cannot be deprived of his rights arising from the filing
because the sheriff made such a temporary use of the petition
and order. . Both were served within the year, and the defend-
ant then had notice that such a petition had been filed, for
the order so stated, and also that he was recjuired to answer.
The endorsement made by the county clerk on March 10th,
1915, indicated the date of the filing of the return by the
sheriff. My opinion is that, where the petition is presented
to the judge of the Court of Common Pleas, and he certifies
that it has been filed and thereupon makes an order which he
can only make after such fijing, the petition must be taken to
have been filed on the date certified by the court, and that in
this case the petition was filed within a year after the accident,
and therefore the order and judgment of the Court of Com-
mon Pleas now under review should be set aside."'
For the respondent, Fort & Fort,
For the appellants, Kalisch & Kalisch
Pee Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Bergen in the Supreme Court.
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• MARCH TERM, 1917. 669
90 N. J. L. Duffy v. Paterson.
For affirmance — ^The Chancellpr, Garrison^ Swayze,
MiNTURN, Kalisoh, Blaok^ White^ Heppenheimer, Wil-
liams^ Taylor^ Gardner, JJ, 11.
For reversal — None.
WILLLAlM J. DUFFY, APPELLANT, v. THE MAYOR AND
ALDERMEN OF THE CITY OF PATERSON ET AL.,
RESPONDENTS.
Submitted March 26, 1917— Decided June 18, 1917.
On appeal from the Supreme Court.
For the appellant. Ward & McOinnis,
For the respondents, Edward F. Merrey.
Per Curiam.
The judgment under review will be affirmed, for the rea-
sons given in the per curiam in WUhelmina Koettcgen v.
Mayor and Aldermen of the City of Paterson et al., Xo. 149
of the present term of this court, post p. 698.
For affirmance — The Chancellor^ Swayze, Parker, Ber-
gen, MiMTURN, Kalisch, White, Heppenheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
For reversal — None.
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670 COURT OP ERRORS AND APPEALS.
Durkin v. Fire CJom'rs of Newark. 90 N, J, L,
MICHAEL J. DURKIN, APPELLANT, v. BOARD OF FIRE
COMMISSIONERS OF THE CITY OF NEWARK, RE-
SPONDENT.
Submitted March 26, 1917^Decided June 18, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N, J. L. 468.
For the appellant, Frank E. Bradner.
For the respondent, Harry Kalisch.
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Kalisch in the Supreme Court.
For affirmance — ^Thb Chancellor, Garrison, Tren-
CHARD, Parker, Bergen, Black, White, Heppeniieimer,
Williams, Taylor, Gardner, J J. 11.
For reversal— -^ one.
EDWARD I. EDWARDS, COMPTROLLER OF THE TREASURY,
APPELLANT, v. FREDERICK PETRY, Jr., RESPONDENT.
Submitted March 15, 1917— Decided June 18, 1917.
On appeal from the Supreme Court, in which the following
prr curiam was filed :
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MARCH TERM, 1917. 671
90 N. J. L. Edwards v. Petry.
**Thi8 is a writ of certiorari to review an order made by
Mr. Justice Trenehard, under chapter 120 of the laws of 1915,
providing for an order by a justice of the Supreme Court to
enforce rights under the Civil Service act.
"The sole question argued by the prosecutor was as to the
power of the legislature to delegate to a justice of the Su-
preme Court this right to review.
"In the present case the defendant appealed to the civil
service commission and met with an adverse decision, and
thereupon applied to Mr. Justice Trencliard and secured an
order reversing the action of the commission.
"^A''e do not find in the case that Mr Justice Trenchard
went further tlian to issue a rule to show cause on the comp-
troller, and the power to issue the writ was therefore chal-
lenge<l in Jim in/". This involves the questions that were dis-
cussed in this court in New Bnmsunch v. McCann, 74 N, J, L.
171 ; Newarl' v. Kaziiiski, 86 Id. 59, and Summit v. larusso,
87 Id, 403.
"We think that while the ease presents some difficulty we
are bound, nevertheless, to follow the last two cases, which
seem to us controlling.
"AVe think that the jurisdiction given to the justices of the
Supremo Court, by the act under consideration, in no way in-
terferes with the right of Ihe Supreme Court to review the,
entire case by certiorari, but superadds an additional step in
a proceeding which may ultimately reach this court as a re-
viewing tribunal.
"AVe are not to Ik? understood as approving of this character
of legislation which quite insidiously results in unsettling the
legal machinerv of the court without gaining ultimately any
substantial advantage 'to the litigant by the disarrangement.
"AVe think this writ must be dismissed."
For the appellant, John W, Westcott, attorney-general.
For the respondent, Linton Satterthwaite,
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672 COUKT OF EEROBS AND APPEALS.
Erie Railroad Co. v. Public UtUity Board. 00 N. J. L.
Per Curiam.
The judgment under review will be affirmed, for the rea- .
sons set forth in the opinion of the Supreme Court.
For affirmance — The Chancellor, Chief Justice,
Garrison, Bergen, Black, White, Heppenheimer, Wil-
liams, Gardner, JJ. 9.
For reversal — None.
ERIE RAILROAD COMPANY, APPELLANT, v. BOARD OF
PUBLIC UTILITY COMMISSIONERS ET AL., RE-
SPONDENTS.
Argued January 4, 1917 — Decided October 11, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N, J. L. 57.
For the appellant, Collins & Corbin.
For the respondents, L, Edward Herrmann and Edward F.
Merrey,
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Garrison in the Supreme Court.
For affirmance — ^The Chancellor, Minturn, Kalisch,
White, Williams, Taylor, Gardner, JJ. 7.
For reversal — The Chief Justice, Swayze, Parker, Ber-
gen, Heppenheimer, JJ. 5.
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MARCH TERM/l9ir. 673
90 N. J. L. Erie Railroad Co. v. Public Utility Board.
ERIE RAILROAD COMPANY, APPELLANT, v. BOARD OF
PUBLIC UTILITY COMMISSIONERS ET AL., RE-
SPONDENTS.
Argued January 4, 1917 — Decided October 11, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N. J. L. 57.
For the appellant, Collins & Corbin.
For the respondents, L, Edward Herrmann and Edward F,
Merrey.
Per Curiam.
The judgment under review herein should be affirmed, lor
the reasons expressed in the opinion delivered by Mr. Justice
Garrison in the Supreme Court.
For affirmance — ^The Chancellor, Minturn, Kalisch,
White, Williams, Taylor, Gardner, JJ. 7.
For reversal — The Chief Justice, Swayze, Parker, Ber-
gen, Heppenheimer, JJ. 5.
JAMES FAGAN, Jb.; APPELLANT, v. BOARD OF FIRE COM-
MISSIONERS OF THE CITY OF NEWARK, RESPONDENT.
Submitted March 26, 1917— Decided Judc 18, 1917.
On appeal from the Supreme Court.
For the appellant, Frank E. Bradnor.
For the respondent, Itarry Kalisch.
Vol. xc. 43
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674 COURT OF EKKOBS AND APPEALS.
Fennan v. Atlantic City. 90 N, J. L.
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Kalisch in the Supreme Court, eo nomine Durkm v. Fire
Commissioners of Newark, 89 N. J. L. 468.
For affirmance — The Chancellor, Garrison, Tren-
CHARD, Parker, Bergen, Black, White, Heppenheimer,
Williams, Taylor, Gardner, JJ. 11.
For reversal — Xone.
WILLIAM H. FENNAN, APPELLANT, v. CITY OF ATLANTIC
CITY ET AL., RESPONDENTS.
Argued March 7, 1917— Decided July 18, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 88 N. J, L, 135.
For the appellant, Bourgeois & Coulomb.
For the respondent?, Harry Wootton.
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Garrison in the Supreme Court.
For affirmance — The Chancellor, Swayze, Parker, Ber-
gen, MiNTURN, Kalisch, White, Heppenheimer, Wil-
liams, Taylor, Gardner, J J. 11.
For reversal — Xone.
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MARCH TERM, 1917. 675
90 N, J, L. Fennan v. Atlantic City.
WILLIAM H. FENNAN, APPELLANT, v. CITY OF ATLANTIC
CITY ET AL., RESPONDENTS.
Argued March 7, 1917— Decided July 18> 1917
On appeal from the Supreme Court, whose opinion is re-
ported in 88 N. J, L, 435.
For the appellant. Bourgeois & Coulomb,
For the respondents, Harry Wootton.
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Garrison in the Supreme Court.
For affirmance — Tke Chancellor, Swayze^ Parker, Ber-
gen, MiNTURN, Kaltsch^ White, Heppenheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
For reversal — None.
WILLIAM H. FENNAN. APPELLANT, v. CITY OF ATLANTIC
CITY ET AL., RESPONDENTS.
Argued Mardr 7, 1917— Decided July 18, 1917.
On appeal from the Supr^ne Court, whose opinion is re-
ported in 88 N, J. L, 435.
For the appellant. Bourgeois £ CoulonA.
For the respondents, Harry WooUon.
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G76 COURT OF ERRORS AXD APPEALS.
FenDan y. Atlantic City. 90 N, J, L,
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Garrison in the Supreme Court.
For affirmance — The Chancellor, Swayze, Parker, Ber-
gen, MiNTURN, Kalisch^ AVhite, Heppenheimer, Wil-
liams, Taylor, Gardner^ J J. 11.
For reversal — None.
WILLIAM H. FENNAN, APPELLANT, v. CITY OF ATLANTIC
CITY ET AL., RESPONDENTS.
Argued March 7, 1917— Decided July 18> 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 88 N. J. L. 435.
For the appellant, Bourgeois & Coulomb,
For the respondents, Harry Wootton,
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Garrison in the Supreme Court.
For affi/rmance — The Chancellor, Swayzb, Parker, Ber-
gen, MiNTURN, Kalisch, White, Heppenheimer, Wil-
liams, Taylor^ Gardner^ J J. 11.
For reversal — None.
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MARCH TEEM, 1917. 677
90 iV. J, L, Fennan v. Atlantic City.
WILLIAM H. FENNAN, APPELLANT, v. CITY OF ATLANTIC
CITY ET AL., RESPONDENTS.
Argued March 7, 1917— Decided July 18, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 88 N. J. L, 435.
For the appellant, Bourgeois & Coulomb.
For the respondents, Harry Wootton,
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Garrison in the Supreme Court.
For affirmance — The Chancellor, Swayze, Parker, Ber-
GEN^, MiNTURN, KaLISCH^ WhITE, HePPENIIEIMER, WIL-
LIAMS. Taylor, Gardner, JJ. 11.
For reversal — None.
D. FULLERTON & COMPANY, APPELLANT, v. BOARD OF
PUBLIC UTILITY COMMISSIONERS ET AL., RE-
SPONDENTS.
Argued January 4, 1917 — Decided October 11, 1917.
On appeal from the Supreme Court, in which the following
per curiam was filed :
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678 COURT OF ERRORS AND APPEALS.
Fullerton & Co. v. Public Utility Board. 90 N. J. L,
"In this case there are eight reasons presented to the court
for setting aside the order made by the board of public utility
commissioners. They are, however, argued under four points
in prosecutor's brief.
"The first point argued is that the order, if construed to
require prosecutor to make changes in its building necessary
to have the same conform to the side track of the Erie rail-
road, when reconstructed, is invalid, because the prosecutor is
not a public utility and the board has no power to order it to
make such changes.
"The second point argued is that the order, if construed to
require the prosecutor at its own expense to reconstruct the
existing side track, it is without the jurisdiction of the board.
The work commanded to be done by the order in altering the
crossing is specifically (a) the changing of the highways and
(b) the reconstruction of the railroad.
"The third point argued is, the order under review takes
the private property of the prosecutor for public use, without
just or any compensation, and takes the property of the prose-
cutor for private use of other companies.
"The fourth point argued is the order under review takes
the property of the prosecutor without due process of law and
deprives the prosecutor of the equal protection of the law.
All these points are disposed of in the opinion of the court in
the case of Erie Railroad Co. v. Board of Public Utility Com-
missioners.
"The order under review will be affirmed, with costs."
For the appellant, Hudson & Joelson.
For the respondents, L, Edward Herrmann and Frank R,
Sommer,
Per Curiam.
The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Court.
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MARCH TERM, 1917. 679 '
90 N. J. L, Grand! v. Brunetti
For affirmance — ^The Chancellor^ Minturn, Kalisch,
White, Williams, Taylor, Gardner, JJ. 7.
For reversal — The Chief Justice, Swayze, Parker, Ber-
gen, Heppexheimer, JJ. 5.
ANTONIO GRANDI ET AL., RESPONDENTS, v. NICOLA
BRUNETTI, APPELI^NT.
Argued March 15, 1917— Decided March 15, 1917.
On appeal from the Supreme Court, in which the following
per curiam was filed :
"The reasons for appeal present for our determination
either matters of fact, which are not brought before us for
consideration on a merely appellate proceeding, or matters of
law which have long been settled in this state, and settled ad-
versely to the contention of appellant's counsel.
'The judgment under review will be aflfirmed."
For the respondents, Themistocles ^f. IJngaro.
For the appellant, Oaetano M. Belfatto.
Per Curiam.
The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Court.
For affirmance — ^The Chancellor, Garrison, Swayze,
Bergen, Minturn, Kalisch, White, TIeppenheimer, Wil-
liams, Gardner, JJ. 10.
For reversal — Xone.
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680 COURT OF EKRORS AND APPEALS.
•Grillo V. Edison. 90 N. J. L.
SALVATORE GRILLO ET AL., RESPONDENTS, v. THOMAS
A. EDISON* ET AL., APPELIJ^^NTS.
Submitted March 26, 1917— Decided June 18, 1917.
On appeal from the Supreme Court, in which the following
per curiam was filed :
"This case, which was tried before the District Court with-
out a jury, resulted in a judgment against the defendant
Thomas A. Edison, Inc. The trial court found from the
proofs that substance flowing from this defendant's plant
through its artificially constructed channel into the stream
created a condition that was injurious to health and- property.
Touching this finding the appellant says: The learned
judge's finding of fact is correct, but his conclusion of law is
erroneous.' The legal ruling of the trial court that is com-
plained of is the denial of the appellants' motion to direct a
verdict in its favor. This motion does not stir the question of
the measure of damages, and, its denial presenting only the
question of the liability of the defendant, the motion was
properly denied.
"The substances put into the stream by the defendant were
the proximate and efficient cause of the injury to the plaintiff.
The circumstance that the sulphuric acid already in the stream
contributed to this result does not absolve -the defendant;
and this is equally true whether the acid was a natural ingre-
dient of the stream or was artificially introduced by strangers
to this suit.
'^Weidmen Silk Dyeing Co. v. East Jersey Water Co., 91
Atl. Rep. 338, was an action for the unlawful abstraction of
water from a stream. The contention there, as here, was that
the injury was created in part by the acts of others than the
defendant, in tliat they polluted the water. In that case, in
declining to give the desired force to this argument, we said :
The abstraction was a direct and proximate cause of the in-
jury, though alone it would not have caused it,' citing New-
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MARCH TERM, 1917. 681
90N.J,L. GriUo 17. Edison.
man v. Fowler, 37 N. J, L. 89 ; Matthews v. Delaware, Lackar
wanna and Western Railroad Co., 56 Id, 34, and referring to
38 Cyc. 488.
"The subsequent reversal of the judgment (88 N, J, L.
400) was upon a totally different ground, and in the ease
upon which such reversal rested, viz.. Augur & Simon, &c., v.
East Jersey Water Co,, Id. 273, it was said, by Mr. Justice
Bergen, speaking for the Court of Errors and Appeals: *It
is no answer to an action for a nuisance to show that a gi-eat
many others are committing the same species of nuisance
upon the stream, for if the defendant's acts appreciably add
to the pollution they create a nuisance.' The difference be-
tween a nuisance created by the concurrence of pollution of
the stream and the abstraction of its waters does not differ in
principle from a nuisance created by a chemical reaction be-
tween a substance already in the stream and one placed therein
by the act of the defendant. Upon the question, therefore, of
liability, which is all that was presented by the motion to
direct a verdict, the trial court committed no error in the
denial of such motion.
"The question of the measure of damages is not before us
upon an appeal from this ruling. The judgment of the Dis-
trict Court is affirmed, with costs."
For the appellants, McCarter £ English.
For the respondents, John Larkin Hughes.
Per Curiam.
The judgment under review will be affirmed, for the rea-
sons fet forth in the opinion of the Supreme Court.
For affirmance — The Chancellor, Swayze, Trexchabd,
MiNTURN, Kalisch, Black, White, Heppexheimer, Wil-
liams, Taylor, Gardner, J J. 11.
For reversal — None.
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682 COURT OF ERRORS AND APPEALS.
Guarraia v. Metropolitan Life Ins. CJo. 90 N, J. L,
GIOVANNINA GUARRAIA, RESPONDENT, v. METROPOL-
ITAN LIFE INSURANCE COMPANY, APPELLANT.
Submitted March 26, 1917— Decided June 18, 1917.
On appeal from the Supreme Court, in which the following
per curiam was filed :
''In this case we dismissed the appeal on the ground that
the printed case did not set forth the rules to show cause why
a new trial should not be granted in the District Court, and
especially whether such rules reserved tho points of law taken
at the trial ; the statute requiring that there be such a reser-
vation to support an appeal. Comp, Stat., p. 2017, § 213.
The petition for rehearing sets up that such reservation was
made, and on June 26th we heard counsel, and tlie cases were
reinstated, so far as omission of the rules to show cause and
reservations are concerned ; but there remained the motion to
dismiss the appeal made on the further ground that the state
of the case was not filed within the fifteen days specified in
the statute.
"If this point is resolved against the respondent, then we
consider the merits of the appeal.
'^Ve think the failure to file the transcript within fifteen
days after judgment was waived by the service and acceptance
of the printed state of the case and the limitations of objection
thereto that certain documentary evidence had not been
printed which was afterwards supplied. Taking this view, the
application to dismiss falls, and we are brought to a considera-
tion of the merits.
"The defence was breach of warranty, misrepresentation and
concealment of facts, and the errors relate to the refusal of
the court to direct a verdict and also instructions to the jurv'.
Among the statements subscribed by insured in the applica-
tion were declarations that he had not had bronchitis, and
whether he had been attended by a doctor within a certain
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MARCH TERM, 1917. 683
90 N, J. L, Guarraia v. Metropolitan Life Ins. Co.
period. These statements were for the most part printed and
stated that he had not had various diseases catalogued therein
^except' (and here follows a blank for a statement of the ex-
ceptions). No exceptions were stated and the claim is that
this amounted to a definite statement on his part that he had
not had any of the diseases mentioned. On the other hand,
it is urged that they were simply incomplete answers which
were accepted by the company without any insistence upon
completion. The trial court so held in denying a motion to
direct. We do not take this view, but, on the contrary, think
that the silence with respect to the exception should properly
be taken as a statement that there is no exception ; and, con-
sequently, if the insured had in fact had one or another of the
diseases there was a false statement with respect to that fact.
The question then is with reference to the effect of the state-
ment. If it was a warranty the policy falls; if if was only a
misrepresentation, the question of intentional falsehood be-
comes material. The policy says : 'All statements by the in-
sured shall, in the absence of fraud, be deemed representations
and not warranties.' The result of this seems to be that they
are made the legal equivalent of representations in any case
and we must look for fraud in order to vitiate the policy.
Here we are met by the fact that the insured was an Italian,
apparently not well acquainted with the English language,
confronted with an English-speaking doctor, who probably
conducted the examination in the usual more or less per-
functory manner and had the insured sign the paper more or
less as a matter of form. The judge left it to the jury to say
whether there had been intentional misrepresentation. We are
inclined to think that this course was right. There is little
doubt that the deceased had consumption, or that he probably
had chronic bronchitis and probably other diseases, but the
terms of the policy require the company to show that he had
intentionally misrepresented these matters, and we do not
think that this was shown as a court question. This disposes
of the motion to direct.
"The next point is that the plaintiff failed to show any
proof of deatli. There was no formal proof of it, but the
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684 COURT OF ERRORS AND APPEALS.
Gaarraia v. Metropolitan Life Ins. Co. 90 N. J, L,
plaintiff relied on a letter of the insurance company declining
to pay the policy because it had been procured in fraud or
misrepresentation, and claimed that this was a waiver of the
proof of death. This is attacked on the authority of an unre-
ported opinion of a justice in this court which is quoted in the
brief. We do not know the facts in that case and cannot tell
whether it covers the present situation, but are inclined to say
that under the terms of this policy such a letter may be con-
sidered a waiver. The policy fixes no time in which the proofs
of death are to be submitted, so that they could be presented
within any reasonable time; and, consequently, when some
three months after the death, the lawyer wrote to the com-
pany asking whether the claim was going to be paid and the
company said : ^No, we don't propose to pay because the
policy was procured in fraud;' it should not be held neces-
sary for the" claimant thereafter to put in proofs which would
be entirely nugatory.
"The next point is that the judge erred in charging the
jury, in effect, that in order to vitiate the policy it must ap-
pear that the deceased was knowingly stating a falsehood to
the company. This is in line with what has been said.
Finally, it is stated that there was error in excluding certain
prescriptions. These, if evidential, would have tended to show
that the deceased had in fact consumption or bronchitis or
what not. In the view we take of the case, it may be assumed
that he did, and on that assumption the error would become
harmless.
"These views lead to an affirmance of the judgment."
For the appellant, McCarter £ English,
For the respondent, John J, Stamler,
Per Curiam.
The judgment under review will be aflSrmed, for the rea-
sons fet forth in the opinion of the Supreme Court.
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MARCH TERM, 1917. 685
00 N. J. L, Guarraia v. Metropolitan Life Ins. Co.
For affirmance — The Chancellor, Garrison^ Swayze,
Trenchard, Bergen^ Black, White, Heppenheimer, Wil-
liams, Taylor, Gardner, J J. 11.
For reversal — None.
GIOVANNINA GUARRAIA, RESPONDENT, v. METROPOL-
ITAN LIFE INSURANCE COMPANY, APPELLANT.
Submitted March 26, 1917— Decided June 18, 1917.
On appeal from the Supreme Court.
For the appellant, McCarter t& English,
For the respondent, John J. Stamler,
Per Curiam'.
The judgment imder review will be affirmed, for the rea-
sons given in the per cvria^m in Gwarraia v. Metropolitan Life
Insurance Co., No. 120 of the present term of this court, ante
p. 682.
For affi^rmance — The Chancellor, Garrison, Swayze,
Trenchard, Bergen, Bl^vck, White, Heppenheimer, Wil-
liams, Taylor, Gardner, J J. 11.
For reversal — None.
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686 COURT OF ERROES AND APPEALS.
Qude Ck>. v. Newark Sign €k>. 90 N, /. L.
O. J. GUDE COMPANY, NEW YORK, A CORPOBATION, RE-
SPONDENT, V. NEWARK SIGN COMPANY, A CORPORA-
TION, NEWARK BILL POSTER ADVERTISING COM-
PANY, A CORPORATION, THOMAS F. J. KELLY, HUGH
J. KAVNEY, SAMUEL PRATT AND MICHAEL J. CUL-
LEN, APPELLANTS.
Argued March 19, 1917— Decided May 24, 1917.
On appeal from the Supreme Court.
For the appellants, Kalisch & Kalisch,
For the respondent, Lum, Tamhlyn & Colyer.
Per Curiam.
This was an action in the Supreme Court. The complaint
alleges that the plaintiflE has been, and is, in the sign adver-
tising business in general; that the defendant corporations
were engaged in the same business and were, and are, its
competitors and rivals throughout the city of Xewark and the
surrounding territory; that Kelly and Kavney were officers,
directors and employes of each of the defendant companies
and were actively engaged in the conduct, managemeilt and
promotion of the business of each, and of their rivalry and
competition with the plaintiflE; that they, with Pratt and
Cullen, maliciously intending to harass, onnoy and embaiTass
the plaintiff in the carrying on of its business, damaged and
destroyed its signs and property, and caused dissatisfaction
among its customers; and to injure and drive it out of busi-
ness, &c., maliciously conspired, combined and agreed to
damage and deistroy its signs and property, and to cause dis-
satisfaction among its customers, and in pursuance of this
design the defendants chopped down, sawed oflE, burned and
otherwise mutilated and injured the signs of the plaintiff, to
its damage.
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MARCH TERM, 1917. 687
90 N. J, L, Gude Co. v. Newark Sign CJo,
At the trial in th^ Essex Circuit the jury rendered a ver-
dict in favor of the plaintiff against the defendants (except
CuUen, as to whom the plaintiff took a nonsuit). From that
verdict a rule to show cause was allowed with reservation of
exceptions. The rule was discharged and the case is here on
appeal on the reserved exceptions.
There were many grounds of appeal relied on by the ap-
pellants, but for the purpose of disposing of the matter before
us only those grounds need be considered which have refer-
ence to certain transactions and a certain controversy between
the New Jersey Sign Advertising Company (which is not a
party to this suit) and three of the defendants in this suit,
namely,. Samuel Pratt, Newark Sign Company and Newark
Bill Poster Company; evidence of which, transactions and
controversy the court received in evidence and referred to in
his charge to the jury, over the objection of the defendants.
In offering this evidence, the plaintiff sought to show that
the above-mentioned three defendants in an earlier suit
brought against them by the New Jersey Sign Advertising
Company in January, 1913, were charged with the commis-
sion of acts similar to those charged against them in the
present suit ; the complaint in the earlier suit having alleged
that the acts were conmiitted in pursuance of an unlawful
conspiracy, combination and agreement entered into by the
three defendants above mentioned, and that the acts were com-
mitted since January 20th, 1907. The record of that euit was
offered and received in evidence. This was error.
The record in the suit just mentioned throws no light upon
the present controversy. It was a suit based upon an alleged
conspiracy entered into in 1907, which was more than seven
years before the acts complained of in the suit at bar. The
plaintiff in that suit was the New Jersey Sign Advertising
Company, and the plaintiff in the case at bar is 0. J. Gude
Company. The plaintiffs were not the same in each case. It
further appears, upon an examination of the record in the
former case, that the answer filed by the defendants denied
the charges in the complaint and that the suit was never tried,
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688 COUET OF EKROKS A:^rD APPEALS.
Gude Co. V. Newark Sign Co. 90 N. J. L.
but was discontinued. It cannot be said, that, because the
Xew Jersey Sign Advertising Company, three years before the
present suit was commenced, accused three of the present de-
fendants of conspiring, in 1907, to injure it— especially with-
out any verdict in the case to establish the truth of the accu-
sations— that those accusations in that suit afford any light
in determining whether like accusations in the present suit
are true. It was highly improper to place before the jury the
record of the other- case. It confused the issues in this case
and prejudiced the defendants. It also affected the question
of punitive damages. The defendants could not be required
to meet the issues in the former suit.
An effort was made to substantiate the charges in the pre-
vious suit by the admission of testimony showing that that
suit was settled. This was error. As the admission of evi-
dence of the bringing of that suit was error, testimony to the
effect that it was settled was equally erroneous.
The trial judge, in dealing with the matter in his charge,
said that the jury should consider the earlier suit and the
settlement of it as showing that some of the defendants had
knowledge that similar charges had been previously made.
This, too, was error, for, as neither the bringing nor settle-
ment of that suit was competent evidence for the plaintiff, it
follows that the jury could not lawfully give consideration to
that evidence in the pending suit.
The judgment under review will be reversed, to the end
that a vendre de novo may be awarded.
For affirmance — Black^ White, Heppenheimer, Wil-
liams, Gardner, JJ. 5.
For reversal — The Chancellor, Chief Justice, Swayze,
Bergen, Minturn, Kalisch, Taylor, JJ. 7.
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MARCH TERM, 1917. 689
90 N, J. L. Houghton v. Jersey City.
JAMES M. HOUGHTON ET AL.. APPELLANTS, v. MAYOR AND
ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
Argued March 21, 1917— Decided June 18, 1917.
On appeal from the Supreme Court, in which court the
following memorandum was filed by Mr. Justice Swayze :
"jPer curiam: The prosecutors are taxpayei^s of Jersey
City and seek to set aside a contract with Thomas Harring-
ton Sons Company for the removal of garbage. The chief
complaint is that the specifications are so drawn as to leave
too much to the discretion of the city ofl5cers in the enforce-
ment of the contract and to give them too much power for
the enforcement of the Eight-Hour Work-Day law. Assum-
ing this to be so, we are imable to see how taxpayers are in-
jured thereby in the absence of proof that prospective bidders
were deterred from bidding by the supposed looseness of the
specifications. All bidders had the same opportunity to bid
on the same specifications, and there seem to have been as
many bidders as there was any reason to expect. It is also
objected that the successful bid was for five years, and that of
the total bid the payment for the balance of the then current
fiscal year was less in proportion than the pajrments for suc-
ceeding years, and was just below the amount of the appro-
priation available for the current year. The bid itself was a
lump bid for the five years; the amount payable varied with
the years, increasing as time went on. As the contract was
an entire contract for the five years, and Thomas Harrington
Sons Company were the lowest bidder, we do not see, in the
absence of proof, that the prosecutors were injured because
the bidder chose to postpone in part the times of payment.
The postponement would seem to be to the advantage of the
taxpayers in the saving of interest.
"Let the writ be dismissed, with costs.^'
Vol. xc. 44
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690 COURT OF ERRORS AND APPEALS.
Ireson v. Cunningham. 90 N.J. L,
For the appellants, Richard Doherty.
For the respondents, Collins it Oorhin and John Buniing.
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Jus-
tice Swayze in the Supreme Court. ,
For affirmance — ^The Chancellor, Garrison, Bergen,
MiNTURN, Kalisoh, Black, White, Williams, Taylor,
Gardner, JJ. 10.
For reversal — None.
GEORGE IRESON, RESPONDENT, v. GEORGE CUNNINGHAM,
APPELLANT.
Argued March 6, 1917— Decided March 6, 1917.
On appeal from the Cumberland County Circuit Court.
For the appellant, Henry S. Alvord.
For the respondent, S. Webster Hvrd and Royal P. TuUer.
Per Curlvm.
Plaintiff brought suit to recover damages for injuries sus-
tained by reason of a head-on collision, in a public highway,
of an automobile driven by the defendant and a horse and
wagon driven by the plaintiff. The plaintiff was driving his
vehicle without a light and the defendant was driving his
automobile with lights, the time being seven p. m. of March
19th, 1914, on which day the sun set at six-eleven p. m. The
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MARCH TERM, 1917. 691
90 N. J, L, Ireson v. Cunningham.
statute required plaintiflf to carry a light on his wagon from
one-half hour after sunset.
The jury returned a verdict for the plaintiff. The judg-
ment entered on the verdict has been brought to this court by
appeal. The questions presented by the grounds of appeal are
the propriety of a denial of motions to nonsuit and to direct
a verdict for defendant, and also objections to the charge of
the trial judge in certain respects.
Testimony oifered by the plaintiff established that the col-
lision occurred in a roadway wide enough for two vehicles to
pass, and that the plaintiff, was as far over on the right-hand
side as he could get at the time he was run into ; that as the
automobile approached it wobbled or zigzagged in the road
and plaintiff shouted to warn the driver of his presence be-
fore the horse was struck ; that the time was one of sufficient
light to see a wagon or a machine several hundred feet away;
that the horse of the plaintiff had to be killed as a result of
the injury; that the wagon was somewhat broken and that
plaintiff suffered injury.
The testimony justified the jury in believing that the de-
fendant, in violation of the law of the road, failed to turn to
the right in order to allow the plaintiff to pass him when they
met in the highway. And the jury was justified in believing
it was light enough for the defendant to see the plaintiff and
that it was his duty to turn out for him; and if, on the
contrary, it was too dark for him to see, they could find that
it was his duty to he on the right-hand side of the road in the
direction in which he was going, so as not to take the chance
of running into anyone approaching him from the opposite
direction.
Although the plaintiff was driving without a light on his
wagon, in violation of the statute, that fact does not operate
to prevent his recovery if the defendant could see him, and,
if he could, the unlawful act of the plaintiff in no way con-
tributed to the accident. The testimony was certainly sus-
ceptible of the construction that the defendant either saw, or
by the exercise of due care, could have seen the plaintiff.
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692 COURT OF ERRORS AND APPEALS.
Jersey City v. Ruber. 90 X, J. L.
The defendant urged before the trial court, and argues
here, that the plaintiflp was guilty of contributory negligence.
If contributory negligence was present in the case, the facts
from which it was to be deduced were in dispute, and it was,
therefore, a jury, and not a court, question.
The defendant excepted to the charge of the court in several
respects, but argues them very meagrely and without citation
of any authority. We have examined them and find they are
entirely without substance.
The judgment will be affirmed, with costs.
For affirm(mce — ^The Chancellor, Chief Justice, Gar-
rison, SwAYZE, Trenohard, Parker, Berobn, Minturn,
Kalisch, Black, White, Heppenheimer, Williams, Tay-
lor, Gardner, JJ. 16.
For reversal — None.
MAYOR AND ALDBRMKN OF JERSEY CITY. RESPONDENT,
V. LEWIS P. HTJBER, COLLECTOR, ETC., APPELLANT.
Submitted March 26, 1917— Decided June 18, 1917.
On appeal from the Supreme Court, which delivered the
following per curiam opinion, on certiorari, to an assessment
for taxation of the pipe line of the Jersey City water-supply :
"P^r curiam: The assessment by the borough of Secaucus
upon the pipe line is illegal. The statute (Comp. Stat., p,
5084, 4d) authorizes the taxation of real estate without re-
gard to any buildings or other improvements on such lands.
This was meant to exclude from the valuation the value added
by the improvements.
"The statute authorizes the levying of a tax upon the land
only of another municipality. 4 Comp. Stat., p. 5085.
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MARCH TERM, 1917. ' 693
90y,J,L. Jersey aty V. Huber.
"It is argued that the laches of the oflBciak of Jersey City
in failing to attack these assessments, must result in a denial
of the city's claim upon that ground. But the rule is other-
wise in the public interest^ and the doctrine is settled that
the laches of an oflBcial, charged with the performance of a
public duty, cannot operate to bar the municipality he serves
from asserting its legal rights. Jersey City v. North Jersey *
Street Railway Co., 72 N. J. L. 383.
*The result is that the assessments for taxes for the years
in question must be vacated.^'
For the appellant, Harlan Besson.
For the respondent, John Milton.
Per Curiam.
The judgment should be affirmed, for the reasons stated
by the Supreme Court in its per curiam opinion.
It is- argued here that the land and pipe line are not exclu-
sively used for water to be supplied and used in Jersey City,
but that part of the water obtained through it is sold to cor-
porations and individuals outside of the taxing district, and*
therefore the exemption fails. To this we do not agree.
The aqueduct was not constructed as a business venture
but to take care of the present and future needs of the city
and its inhabitants. The pipe was made larger than was im-
mediately necessary in order to provide for growth of the
city. The sale of water not at present needed is merely in-
cidental, and the fact of such present sale does not n^ative
the use of the land for the purpose of public water-supply
and of the accompanying exemption, so long as said land is
reasonably needed for the present or reasonably anticipated
future supply of Jersey City for purely public purposes. In
Nexcarh v. Clinton, 49 N. J. L. 370, there was a separation
between the tract used for public purposes and the rest of the
land, which is not the condition here.
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694 COURT OF EBROES AND APPEALS.
Meyer v. Public Utility Board. 90 If. J. L.
» — —
For affirma/nce — ^The Chancellor, Gabrison, Tren-
OHARD^ Parker^ Bergen, Black, White, Heppenhbimer,
Williams, Taylor, Gardner, JJ. 11.
For reversal — None.
JACOB MEYER ET AL., APPELLANTS, v. BOARD OF PUBLIC
UTILITY COMMISSIONERS ET AL., RESPONDENTS.
FULLER'S EXPRESS COMPANY, APPELLANT, v. BOARD OF
PUBLIC UTILITY COMMISSIONERS ET AL.. RESPOND-
ENTS.
MORRIS & COMPANY, APPELLANTS, v. BOARD OF PUBLIC
UTILITY COMMISSIONERS ET AL., RESPONDENTS.
Argued January 4, 1917 — Decided October 11, 1917.
On appeal from the Supreme Court, in which the following
per curiam was filed:
"In each of these cases there are eight reasons presented to
the court for setting aside the order made by the board of
public utility commissioners. They are identical with the
reasons presented in the case of D. Fullerton & Company,
prosecutor, except in the case of Fuller's Express Compafny,
prosecutor, presents an additional reason, viz., the order di-
recting changes, relocation, &c., is invalid because it imposes
a burden upon the interstate traffic of the prosecutor, inter-
feres with and impairs its ability to perform its duty, as a
common carrier of such interstate traffic. These cases were
argued orally before the court by Mr. Gourley. All the points
in these cases are disposed of in the opinion of the court in
the case of Erie Railroad Co. v. Board of Public Utility Com-
missioners. The order under review will be aflSrmed, with
costs."
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MABCH TERM, 1917. 695
90 N, J. L. Koenigsberger v. Mial.
For the appellants, William B. Oonrley,
For the respondents, L. Edward Herrmann and Franlc H.
Sommer.
Per Curiam.
The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Court.
For affirmance — The Chancellor^ Minturn, Kalisck.
White^ Williams, Taylor, Gardner, JJ. 7.
For reversal — The Chief Justice, Swayze, Parker,
Bergen, Heppenheimer, JJ. 5.
FERDINAND H. KOENIGSBERGER, RESPONDENT, v. KATE
A. MIAL, INpR'IDUALl.Y AND AS EXECUTIilX OF THE
LAST WILL AND TESTAMENT OF HENRY H. HANKINS,
DECEASED, APPELLANT.
Submitted March 26, 191 7— Decided June IS, 1917.
On appeal from the Supreme Court, in which the follow-
ing per curiam was filed:
^^his is an appeal from a judgment entered hv default
against the defendant in an action brought by the plaintiff to
recover for architect's fees alleged to be due him on a build-
ing operation. Originally, the suit was brought against Kate
A. Mial, individually, and Leonidas L. Mial, as executor of
Henry H. Hankins, deceased. The complaint was filed in
September, 1913. Subsequently, and in March, 1914, appli-
cation was made on behalf of the defendants to compel the
amendment of the complaint by striking therefrom the n^me
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696 COURT OP EEEORS AND APPEALS.
Koenigsberger v. Mial. 90 N. J. L.
of Leonid&s A. Mial, and substituting that of Kate A. Mial,
as executrix. The rule directing the amendment required a
copy thereof to be served upon Kate Mial within twenty days
after its date, and allowed her twenty days after such service
within which to file her answer. The date of this rule was
March 30th, 1914. The amended complaint was filed on the
15th day of April of that year. On the 15th of May follow-
ing tlie defendant moved to strike out certain portions of the
amendjed complaint, for reasons set forth in a notice of the
motion which was served upon the plaintiff's attorney on the
5th day of that month. The court took time to consider the
motion, and on the 19th day of June filed a memorandum
stating that the defendant was entitled to have struck from
the complaint the provisions referred to in her notice of
motion. Xo rule was entered pursuant to this finding of the
court, and on the 17th of November, 1914, the plaintiff en-
tered judgment by default. The defendant, Kate Mial, there-
upon applied for and obtained a rule to show cause why the
judgment should not be opened as having been prematurely
and improvidently entered. Testimony was taken in sup-
port of, and in opposition to, the making of this rule abso-
lute, and in January, 1916, the matter coming on to be heard
before the Circuit Court, the rule to show cause was dis-
charged.
''The defendant thereupon appealed to this court.
"We think the judgment under review should be affirmed.
On its face it is regular. The defendant is presumed to have
had notice of the filing of the amended complaint, because
within twenty days after its filing she moved to strike out
certain portions thereof. Her failure to enter a nile in ac-
cordance with the decision of the Circuit Court in her favor
on the motion to strike out certain parts of the amended
complaint was, wo think, an abandonment of the motion.
Having abandoned the motion, and having failed to plead to
the amended complaint within the time specified by the order
of the court, the plaintiff was entitled to take judgment
against her by default. According to the theory of the de-
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MARCH TERM, 1917. 697
90 y. J. L. Koenigsberger v. Mial.
fence, a suit might be perpetuall;f stayed by a defendant by
following the course pursued in the present case by Kate A.
Mial, the appellant. Without stopping to consider whether,
on an appeal from the judgment now under review, the ap-
pellant can attack the action of the lower court in discharging
the rule to show cause, we are of opinion that the action com-
plained.of was proper. If it be true, as counsel suggests, that
the failure of the defendant to pursue her defence as re-
quired by law was due to the neglect of her attorney, that
fact alone did not entitle her to the relief she sought under
the rule. She was required, in addition, to show that she
had a meritorious defence, and this the Circuit Court con-
sidered she had failed to do. Our examination of the testi-
mony submitted under the rule to show cause leads us to the
same conclusion.
"The judgment under review y^ill be affirmed."
For the appellant, Samuel A. Bessfon,
For the respondent, Rtmyon & Autenreith.
Per Curiam.
The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Couri
For (cffh-mance — ^The Chancellor, Garrison, Swayze,
Parker, Bergen, Kalisch, White, Heppenheimer, Wil-
liams, Taylor, Gardner, J J. 11.
For reversal — None.
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698 COUET OP EEEORS AND APPEALS.
Koettegen v. Pateraon. 90 N. J, L.
WILHELMINA KOETTEGEN, APPELIANT, v. THE MAYOR
AND ALDERMEN OF THE CITY OF PATERSON ET AL.,
RESPONDENTS.
Submitted March 26, 1917— Decided June 18, 1917.
On appeal from the Supreme Court, in which the follow-
ing per curiam wafl filed :
"This writ brings up for review an ordinance passed by the
Paterson board of aldennen to license and regulate the public
dance halls of that city.
"Our examination leads to the following conclusions:
"1. The authority to pass the ordinance in question is con-
ferred upon the board of aldermen by the provisions of the
city charter. If the authority thus conferred is in one or
more respects curtailed or superseded by the act of 1913, still
the ordinance as a whole cannot be set aside in this proceed-
ing in which no conviction has been had.
"2. The fee fixed by the ordinance is not excessive or un-
reasonable, in view of the incidental expenses connected with
its enforcement, including cost of constant inspection. The
fee thus fixed is therefore incident to regulation and not for
revenue.
"3. The penalty imposed by the ordinance is authorized by
the charter; in the absence of a conviction, and the imposi-
tion of any penalty, it is not perceived that the prosecutor is
in a position to quarrel with a provision which, if her con-
tention be correct, would not be enforceable in case she vio-
lated the ordinance. If separable the whole ordinance will
not be set aside. Shtll Rolling Chair Co. v. Atlanfic City, 87
N, J. L, 399.
"4. The ordinance is not an illegal delegation of the char-
ter powers to the mayor. The charter does not require the
board of aldermen to license places of amusement ; it author-
izes them to pass ordinances regulating such places. That
they have done, and a part of the regulation thus ordained
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MABCH TERM, 1917. 699
90 N, J, L. Koettegen v. Paterson.
is a license to be obtained in the manner prescribed by the
ordinance. The board has not delegated its authority,^ it has
exercised it; the prosecutor has not been refused a license
or been convicted for not having one; hence, she has not
shown that any injury has come to her from this' incident of
regulation.
"5. .The ordinance is not unreasonable because of its in-
cidental effect upon the business in which the prosecutor is
lawfully engaged, hence the fact that the sale of liquors and
the receipts of rent for the dance hall fell off after the ordi-
nance went into effect does not render it confiscatory in any
legal sense.
'The defendant in certiorari contends in limine that, in-
asmuch as there has been no conviction, the ordinance can-
not be set aside in toto if any of its provisions are at once
lawful and separable from those that are challenged, citing
Rosencrans v. Eatontown, 80 N. J. L. 227 ; Newmann v. Ho-
boken, 82 Id. 275; Siciliano v. Neptune Township, 83 Id,
158.
'There are in the ordinance such provisions, e, g,, the sale
of intoxicating liquors, the inspection of dance halls and the
revocation of licenses.
"Our conclusion, therefore, is, that in the respects in which
it is challenged, the ordinance is valid, and that if it were
otherwipe, it would not be set aside in toto in this proceeding.
"This applies also to the cases in which the prosecutors
are : Duffy, the Charles Kruchen Company and the Eiverside
Turn Verein Harmonic.
"The writs are dismissed, with costs."
For the appellant, Ward £ McOinnis.
For the respondents, Edward F. Merrey.
Pek Curiam.
The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Court.
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700 COURT OP ERRORS AND APPEALS.
Kruchen Co. v. Paterson. 90 N. J. L.
For affirmance — The Chancbllob^ Swayze, Parker^
Bergen, Minturn, Kalisoh^ White, Heppenheimer, Wil-
liams, Taylor, Gardner, J J. 11.
For reversal — None.
CHARLES KUUCHEN COMPANY, A CORPORATION, APPEL-
LANT, V. THE MAYOR AND ALDERMEN OF THE CITY
OF PATERSON ET AL., RESPONDENTS.
Submitted March 26, 1917— Decided June 18, 1917.
On appeal from the Supreme Court.
For the appellant, Ward & McOimvis.
For the respondent?, Edward F, Merrey,
Per Curiam.
The judginent under review will be affirmed, for the rea-
sons given in the per curiam in Wilhelmina Koett^en v,
the Mayor and Aldermen of the City of Paterson et al., No.
149 of the present term of this court.
For affkm^mce — The Chancellor, Swayze, Parker,
Bergen, Minturn, Kalisch, White, Heppenheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
For reversal — None.
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MARCH TERM, 1917. 701
90 N, J, L. I^njr Dock Co. v. State Board of Taxes, &c.
LONG DOCK COMPANY, APPELLANT, v. STATE BOARD OF
TAXES AND ASSESSMENT, ETC., RESPONDENT.
Argiied March 13, 1917— Decided May 24, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N. J, L. 108.
(In re reassessments on second-class property for 1911.)
For the appellant, Collins & Oorbin.
For the respondent, John W, Wescott, attorney-general,
John Bentley and John B. Hardin,
Per Curiam.
Tjegal questions were' first dealt with in the opinion of Mr.
Justice Parker in the court below, so as to lay a foundation
for the consideration of the facts, and those questions were,
in our opinion, rightly decided. As tliere was evidence to
support the finding of facts made by the Supreme Court, that
finding is not reviewable in this court.
The judgment under review will be affirmed.
For affirmance — ^Thk Chancellor, Garrison^ Swayze,
Trenohard, Bergen, Blaok^ White, Heppenheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
For reversal — None.
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702 COURT OP ERRORS AND APPEALS.
Long Dock Co. v. State Board of Taxes, &c. 90 N. J, L.
LONG DOCK COMPANY, APPELLANT, v. STATE BOARD OF
TAXES AND ASSESSMENT, ETC., RESPONDENT.
Argued March 13, 1917— Decided May 24, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N. J, L, 108.
(In re reassessments on second-class property for 1912.)
For the appellant, Collins & Corbin.
For the respondent, John W. Wescott, attoraey-general,
John Beniley and John R. Hardin.
Peb Curiam.
The judgment under review will be affirmed, for the rea-
sons given in the per curiam in Long Dock Co. v. State Board
of Taxes and Assessment, &c.. No. 48 of the present term of
this court.
For affirmance — ^The Chancellor^ Garrison, Swayze,
Trenchard, Bergen, Black, White, Heppenheimer, Wil-/
liams, Taylor, Gardner, JJ. 11.
For reversal — None.
IX)NG DOCK COMPANY, APPELLANT, v. STATE BOARD OF
TAXES AND ASSESSMENT, ETC., RESPONDENT.
Argued March 13, 1937— Decided May 24, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N. J. L. 108.
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MARCH TEEM, 1917. 703
90 y. J. L. Long Dock Co. v. State Board of Taxes, &c.
(In re reassessments on second-class property for 1913.)
For the appellant, Collins de Corbin.
For the respondent, John W. Wescott, attorney-general,
John Beniley and John R, Hardin.
Per Curiam.
The judgment under review will be affirmed, for the rea-
sons given in the per curiam in Long Dock Co. v. State Board
of Taxes and Assessment, &c.. No. 48 of the present term of
this court.
For affirmance — ^The Chancellor, Garrison, Swayze,
Trexchard, Bergen, Black, White, Heppenheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
For reversal — None.
LONG DOCK COMPANY, APPETXANT, v. STATE BOARD OF
TAXES AND ASSESSMENT. ETC., RESPONDENT.
Argued March 13, 1917— Decided May 24, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N. J, L, 108.
(In re reassessments on second-class property for 1914.)
For the appellant, Collins £ Corhin.
For the respondent, John W. Wescott, attorney-general,
John Bentley and John R. Hardin,
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704 COUET OP EEBORS AND APPEALS.
Loveland v. McKeever Bros. 90 N. J. L.
Per Curiam.
The judgment under review will be aflSnned, for the rea-
sons given in the per curiam in Long Dock Co. t'. State Board
of Taxes and Assessment, &c., No. 48 of the present term of
this court.
For affi/rmance — ^The Chancellor^ Garrison, Swayze,
Trenchard, Bergen^ Black^ White, Heppenheimer, Wil-
liams, Taylor, Gardner, J J. 11.
For reversal — None.
BENJAMIN F. IX)VELAND, RESPONDENT, v. McKEEVER
BROTHERS. INCORPORATED, APPELTvANT.
Argued March 20, 1917— Decided June 18, 1917.
On appeal from the Supreme Court.
For the appellant, James Mercer Davis.
For the respondent, Oriffin t6 Oriffm.
Per Curiam.
The defendant is tlie owner of Crab Island, situate in Little
Egg Harbor bay. Ocean county. New Jersey, on which it
has a plant for the rendering of menhdden fish, caught in the
Atlantic ocean. In the conduct of this business, the defend-
ant employed the plaintiff at a salary of $200 per month,
from the 22d day of July, 1911, until the 24th day of July,
1915. From July 24th, 1915, until March Slst, 1916, the
plaintiff drew wages at the rate of $50 per month. Plaint-
iflf's salary not having been paid, suit was entered against the
defendant for the entire amount accruing to the plaintiff
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MARCH TERM, 1917. TOo
00 .V. J. L, ]x)veland v. McKeever Bros.
from the date of his employment until his discharge on the
date last mentioned, and, also, the plaintiff sued for certain
moneys which he had expended on hehalf of the defendant,
at its request, claiming in all a balance of $7,015.81-.
The defendant filed an answer and counter-claim. The
answer set up that the plaintiff agreed to devote his exclusive
services to the care of defendant's plant ; that in violation of
his agreement he neglected or refused to perform thope ser-
vices for long periods oi time, and instead devoted himself
to private enterprises of his own; and that defendant had
paid plaintiff, pursuant to the contract, various sums agi^^e-
gatiug $7,600. By way of counter-claim the defendant
alleged that the plaintiff wrongfully engaged in private busi-
ness of his own and obtained the services of certain employes
of the defendant to assist him in it, and charged their com-
pensation to the defendant's pay-roll ; that plaintiff, at
various times, used a boat belonging to defendant in his
private business, and damaged the defendant thereby; that
plaintiff so negligently and carelessly performed his duties
as superintendent of defendant's plant that defendant sus-
tained damage. The total amount demanded in the counter-
claim was $7,700.
The case was tried in the Burlington County Circuit Court
without a jury. The trial judge filed the following mem-
orandum :
"Carrow, J. I find that the plaintiff properly performed
his contract and is entitled to recover his unpaid compensa-
tion, less $90 for the use of the 'Green Garvey' and $24 for
the use of defendant's men.
"The amount which I find is due from defendants to
plaintiff is $2,395.82."
From the judgment entered upon this finding the defend-
ant has appealed to this court. The grounds of appeal are
as follows : 1. Because the court refused to grant defendant's
motion for a nonsuit upon the evidence for the plaintiff given
at the trial. 2. Because the court refused to give judgment
for defendant, although it should have done so on the evi-
VoL. xc. 45
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706 COUKT OF EREORS AND APPEALS.
I^veland v. McKeever Bros. 90 N, J, L.
dence given at the trial. 3. Because the amount of the judg-
ment was excessive. 4. Because the finding of the court was
against the clear weight of the evidence.
The first two grounds of appeal are unavailing to the ap-
pellant if there be any evidence to support the finding of
the trial judge. It has been repeatedly held that this court
will not review the findings of fact in a court below beyond
ascertaining that there was evidence to support such findings.
See Lamed v. MacCarthy, 85 N, J. L. 589 ; also Eherling v^.
Mutillad (Court of Errors and Appeals), ante p. 478. An ex-
amination of the testimony returned with the record shows
that there was evidence entitling the plaintiflE to recover at
the close of his case, and that the case was in the same posture
when both sides rested; therefore, the trial judge was justi-
fied in denying the motion to nonsuit, and also in finding for
the plaintiff.
The third and fourth grounds of appeal are equally value-
less to the appellant. Excessive damages can only be reduced,
and a verdict set aside because against the weight of the evi-
dence, on rule to show cause in the court in which the trial
was had ; even the legislature is powerless to confer upon this
court the right to set aside verdicts because against the
weight of evidence, or to reduce them because excessive.
Flanigan v. Ouggenheim Smelting Co,, 6;^ N, J. L. 647.
The judgment under review must be affirmed, with costs.
For affirmance — ^Tiie Chancellor, Garrison, Swayze,
Bergen, Minturn, Kalisch, Black, White, Heppen-
HEiMER, Williams, Taylor, Gardner, JJ. 12.
For reversal — None.
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MAECH TERM, 1917. 707
90 N. J, L. Maxwell v. Edwards.
LAWRENCE IdAXWELL BT AT.., EXECUTORS, ETC.. OF LAST
WILL OF JAMES McDONALD, DECEASED, APPELLANTS,
V. EDWARD I. EDWARDS, STATE COMPTROLLER OF
THE TREASURY OF NEW JERSEY, ET AL., RESPOND-
ENTS.
Argued March 13, 1917— Decided June 18, 1917.
On appeal from the Supreme Court, whose opinion i& re-
ported in 89 N. J. L. 446.
For the appellants, CouU & Smith {Edward De Witt, of
New York) .
For the respondents, John W. Wescott, attorney-general,
and John R, Hardin.
Per Curiam.
The constitutionality of the act of April 9th, 1914 {Pamph.
L., p. 267), amending the Inheritance Tax law of April 20th,
1909 {Pamrph. L,, p, 325), has been sustained by the Su-
preme Court in an opinion by Mr. Justice Minturn. Maa-
well V. Edwards, 89 N. J, L. 446.
Nothing need be added thereto, on the constitutionality of
the act, but it is important that the facts illustrating the
method by which the transfer inheritance tax was levied in
this case may be amplified somewhat, thus the return to the
writ of certiorari shows the appraised value of the entire
estate, wherever situate, was ascertained and fixed at $3,969,-
333.'25. From this amount was deducted $328,914.04, being
the appraised value of the New Jersey stocks specifically be-
queathed to the widow and stranger, leaving $3,640,419.21,
from which figure was deducted $270,813.17, being the
amount allowed for debts, administration expenses, &c., leav-
ing a net estate of $3,369,606.04; from this net estate was
deducted legacies bequeathed under the will, together with
legacies to beneficiaries in the five per cent, class and the in-
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r08 COVUT OF IvKRORS AXD APPEALS.
Maxwell v. Edwards. HO N. J, L.
terest of the widow in the estate, other than Xew JerFey
stocks specifically bequeathed, amounting to $651,471.25,
leaving a residuary estate of $2,718,131.79.
The appraised value of the JSTew Jersey stocks specifically
bequeathed to the widow was ascertained to be $246,685.53,
and the rate of taxation assessed thereon is one per cent., one
and one-half per cent, and two per cent., making the tax due
this state on this specific bequest to the widow $3,933.71.
The appraised value of the ]N'ew Jersey stock specifically
bequeathed to the stranger was ai?certained at $82,228.51.
and the rate of taxation on the value of this bequest is five
per cent, making the amount of tax due $4,111.42. The ap-
praised value of the New Jersey stocks owned by the de-
cedent at the time of death was $1,114,965; from this ap-
praised value was deducted the appraised value of the New
Jersey stocks specifically bequeathed to the widow and
stranger, amounting to $328,914.04, leaving the net appraised
value of the New Jersey property, which formed a portion of
the general assets of the estate at $786,050.96.
The method employed in ascertaining the tax due this
state, on the transfer of the shares of stock of the New Jersey
corporations not specifically bequeathed, is as follows:
The amount of legacies, &c., passing to beneficiaries taxed
at the rate of five per cent, was determined at $356,761.26,
making the tax due thereon at the rate of five per cent. $17,-
838.06. The interest of the widow in the estate, other than
shares of New Jersey stocks specifically bequeathed, was
determined to be $294,712.99, and the statutory exemption of
$5,000 was deducted and the tax at the rate of two per cent,
and three per cent, was $8,658.24. The residuary estate was
taxed as passing to the son and two grandchildren and de-
termined to be $2,718,131.79, and the statutory exemption of
$5,000 to each, totalling $15,000, was deducted, and the bal-
ance taxed at the rate of one per cent., one and one-half per
cent., two per cent, and three per cent., making the tax on
the residuary estate $70,893.95. .
The total amount of tax on the interest of the collateral
heirs, and the amount passing to the widow, together with
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MARCH TERM, 1917. 709
90 N, J. L, Nell v. Godstrey.
the residuary estate passing to the son and grandchildren, as
set forth above, total, $97,390.25.
The percentage or proportion of the New Jersey stocks
(not specifically bequeathed), which total $786,050.96, bears
to the entire estate (less specific bequests of New Jersey
stocks), which total $3,640,419.21, was determined to be
.2159, thus:
$3,640,419.21) $786,050.96 ( .2159
This percentage or proportion of $97,390.25, which is the
tax that would have been due, if the decedent had died a
resident of this state and all his property had been located
here, equals $21,026.55. The total amount of. tax, as set
forth above, which included the tax on the New Jersey stocks
specifically bequeathed to the widow and stranger and the
New Jersey stock which forms a portion of the general assets
of the estate, totals $29,071.68, the amount of the tax.
The judgment of the Supreme Court is affirmed, with costs.
For affirmance — The Chancellor, Garbison, Tren-
CHARD, Beroen, Black, White, Heppenheimer, Wil-
liams^ Taylor, Gardner, JJ. 10.
For reversal — None.
HARRIET NELL ET AL., APPELLANTS, v. WILLIAM C. GOD-
STREY, RESPONDENT.
Argued March 12, 1917— Decided March 12, 1917.
On appeal from the Bergen County Circuit Court.
For the appellants, Nathaniel Kent and Oxlbert Collins.
For the respondent, Wendell J. Wright.
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710 COURT OP ERRORS AND APPEALS.
Nell V. Godstrey. 90 y. J. L.
Per Cueiam.
This case presents an appeal from a judgment entered in
the Bergen County Circuit Court, founded upon a verdict for
the defendant directed by the trial judge, to which direction
exception was duly taken.
The action was brought by Harriet Nell and her husband,
John J. Nell, for injuries alleged to have been sustained by
her while a passenger in a taxicab said to have been owned
by the defendant and operated and controlled by his agent.
The facts relating to the accident, which was the subject-
matter of the suit, were substantially as follows:
The plaintiff Mrs. Harriet Nell, on Saturday, January
15th, 1916, and her sister Miss Josephine McGintee, went
from Bogota, New Jersey, where Mrs. Nell lived, to Hacken-
eack, and thence to New York, for the purpose of doing some
shopping and visiting the family of one of her husband's em-
ployes. They left the home of the persons whom they were
visiting at about oneTthiri;y Sunday morning to catch the
ferry going to Edgewater, New Jersey. They missed the two
o'clock boat and were compelled to take the next boat at two
forty-five a. m. When they arrived in Edgewater they found
that there would be no car leaving until five o'clock. Mrs.
Nell telephoned to her husband and he instructed her to hire
a taxicab to take them home. She then asked an officer to
get her a taxicab, and he said he would. Within ten or fif-
teen minutes thereafter Patrick Dowdell came with a taxicab
from the Edgewater Garage, and agreed to take them to Bo-
gota for $3. The plaintiff and her sister then entered the
taxicab and were driven along the river edge for about fifteen
minutes, until they came to a hill called the Fort Lee hill.
When near the top of the hill the car stalled and commenced
coasting backwards, whereupon the chauffeur turned his wheel
to make the car turn sideways towards the curb, and thus
backed the car up against the south curb. After stopping the
car he turned the front wheels facing down hill, so as to aid
the gasoline, which was low, to run into the carbureter, and
started to crank the machine. This he continued doing for
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MARCH TERM, 1917. 711
90 N. J. L, Nell v. Godstrey.
about ten or twelve minutes, when Mrs. Nell opened the
window and asked him what the trouble was, and he said that
the gasoline had run low and that the radiator was hot
While trying to crank the car it suddenly started down hill
with no one at the wheel, the chauffeur trying to hold it back
with his hands around the radiator. As it rapidly increased
its speed, the chauffeur called to the plaintiff and her sister
to jump for their lives. After the car had gone some con-
siderable distance, the plaintiff jumped. Her head struck on
the street and she was rendered unconscious, receiving more ,
or less serious injuries.
At tlie conclusion of the whole case a motion was made to
direct a verdict for the defendant upon several grounds,
namely, that no negligence had been proved on the part of the
defendant ; that the negligence specified in the complaint had
not been proved ; that if any negligence at all appeared in the
case, it was not that of the defendant; that Dowdell was not
the agent of the defendant; that under the evidence, as it
appeared, Dowdell was acting as the agent of the plaintiff,
and that the defendant, Godstrey, was not the owner or
operator of the car, or in any circumstances, under tlie evi-
dence, liable for the alleged accident. Whereupon the court
made the following observation:
"The point that has been troubling me all through the case
is the question as to whether this driver has been acting
within the scope of his authority in such a manner as to bind
the defendant. That is the situation as I find it now. The
burden of proof is upon the plaintiff to show by a fair pre-
ponderance of the evidence that the driver was the agent of
the defendant, and, at the same time, th^ act performed was
within the scope of his authority. That burden is upon the
plaintiff to prove. That is without taking into consideration
the other questions involved, of ownership or negligence. If
that is disposed of in a manner negative lo the plaintiff's case,
all the others would fall with it."
Then, after argument by counsel for plaintiff, the court
said : "The motion to direct a verdict will be granted," not
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712 COURT OF ERROKS AND APPEALS.
Nell V. Godstrey. 90 N. J, L.
putting the decision upon any particular ground. The plaint-
iff noted an exception.
We think it unnecessary to review tlie testimony. It is
sufficient to say that we are of opinion that the case should
have been submitted to the jury, as there was evidence tend-
ing to show that the taxicab belonged to the defendant; that
the chauffeur, Dowdell, was his agent, and that he, the chauf-
feur, was negligent. It was claimed on behalf of the defend-
ant that Dowdell exceeded his authority as an employe. If
he did, if he violated his instructions, his authority and in-
structions were not known to the plaintiff. He was ap-
parently the agent of the defendant with authority to drive
his taxicab for hire.
These observations dispose of the grounds upon which the
motion for the direction of a verdict for the defendant was
rested and the point suggested by the trial judge.
It ought, perhaps, to be stated that in the argument on
the motion to direct a verdict, counsel for the plaintiff (cit-
ing, but not quoting, literally, from BennM v. Busch, 75 N.
J, L, 240) said:
*'If there is any evidence in the case upon any proposition
upon which reasonable men' might differ, or any honest man
could have a difference of opinion therefrom, then the element
must be submitted to the jury."
To which the judge replied :
"I don't think so. If that was the case, why, then, we have
nothing in the rule that a verdict is against the weight of the
evidence.''
It is obvious that the trial judge failed to perceive the dis-
tinction between court questions and jury questions arising
from evidence. In cases where a new trial is granted because
the verdict is against the weight of the evidence, the direction
of a verdict at a second trial on the same or similar evidence,
where a substantial conflict of testimony is present, is not
justified. Conflicting testimony is always for the jury. Dick-
xnson v. Erie Railroad Co., 85 N, J. L. 586. See, also, Tilton
v. Pennsylvania Railroad Co., 86 Id. 709; Keeney v. Delc^
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MARCH TERM, 1917. 713
ifO N. J. L. N. Y., S. & W. R. R. Co. v. Newbaker.
ware, Lackawa/rma and Western Railroad Co., 87 Id. 505;
Tonsellito v. New York Central and Hudson River Railroad
Co., Id. 651 ; McCormack v. Williams, 88 Id. 170.
The judgment under review will be reversed, to the end that
a venire de novo may be awarded.
For affirmance — None.
For reversal — The Chancellor, Chief Justice, Gar-
rison, SwAYZE, Trenchard, Bergen, Minturn, Kalisch,
Black, Heppenheimer, Williams, Taylor, Gardner,
JJ. 13.
THE NEW YORK, SUSQUEHANNA AND WESTERN RAII^
ROAD COMPANY, APPELLANT, v. CHARLES J. NEW-
BAKER, RESPONDENT.
Submitted December 11, 1916— I>ecided July 18, 1917.
On appeal from the Supreme Court.
For the appellant, George M. Shipman and Collins &
Corbin.
For the respondent, William H. Morrow.
Per Curiam.
The judgment under review herein should be reversed, for
the reasons expressed in the opinion delivered by Mr. Justice
Garrison in the case of George A. Rounsaville v. Central
Eailroad Company of Xew Jersey, No. 81 of the November
term, 1915, recently decided in this court upon the authority
of the decision of the Supreme Court of the United States
' in the case of Erie Railroad Co. v. Amy L. W infield (opinion
by Mr. Justice Van Devanter), 244 U. 8. 170.
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7U COUET OF EEEORS AND APPEALS.
Passaic Water Co. v. Public Utility Board. 90 N, J, L.
For affirmance — None.
For reversal — The Chancellor^ Chief Justice, Swayze,
Parker, Bergen, Minturn, Kalisch, White, Heppen-
HEiMER, Williams, Taylor, Gardner, JJ. 12.
PASSAIC WATER COMPANY, APPELLANT, v. BOARD OF
PUBLIC UTILITY COMMISSIONERS ET AL., RESPOND-
ENTS.
Argued January 4, 1917 — Decided October 11, 1917.
On appeal from the Supreme Court, in which the following
per curiam was filed :
^^In this case there are twelve reasons presented to the
court for setting aside the order made by the board of public
utility commissioners. They are, however, argued under four
points in prosecutor^s brief. The first and fourth points
argued are, the statute upon which the order under review is
based is invalid and unconstitutional because it takes the pri-
vate property of the prosecutor for public use without any
compensation, denies the prosecutor the equal protection of
the law; impairs the obligation of contracts, &c. All these
points are disposed of in the opinion of the court in Erie Eail-
road Co. v. Board of Public Utility Commissioners.
'The second point argued is, the statute is unconstitutional,
in so far as it deprives the Court of Chancery of its exclusive
jurisdiction over the regulation of the use of easements. This
point is disposed of in the opinion of the court in the case of
Erie Bailroad Co. v. Board of Public Utility Commissioners.
'The third point argued is, the order is invalid and beyond
the jurisdiction of the board, in so far as it requires the prose-
cutor to change the location of its water pipes, water mains, '
&c., arguing that the title of the statute does not truly express
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'MARCH TERM, 1917. 715
90 N. J, L. Pub. Ser. Ry. Co. v. PubUc Utility Board.
the object of the legislation which it embodies. This and the
other points tinder this head are disposed of also in the
opinion of the court in the case of Erie Railroad Co. v. Board
of Public Utility Commissioners.
"The order under review will be affirmed, with costs."
For the appellant, Humphreys <6 Sumner.
For the respondents, L. Edward Herrmann and FranJc H,
Sommer,
Per Curiam.
The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Court.
For affirmance — The Chancellor^ Minturn^ Kalisch,
White^ Williams, Taylor, Gardner, JJ. 7.
For reversal — ^The Chief Justice, Swayze, Parker, Ber-
gen, Heppenheimer, JJ. 5.
public service railway company, appellant, v.
board of public utility commissioners et al.,
respondents.
Argued January 4, 1917 — Decided October 11, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N. J. L. 24.
For the appellant, FranJc Bergen,
For the respondent^?, L, Edward Herrmann,
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716 COURT OP EEEOES AND APPEALS.
Haab v. Ellison. 90 N. J, L.
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Garrison in the Supreme Court.
For affirmance — ^The Chancellor, Minturn, Kalisch,
White^ Williams^ Taylor^ Gardner, JJ. 7.
For reversal — The Chief Justice, Swayze, Parker,
Bergen, Heppenheimer, JJ. 6.
HERMAN RAAB, RE5SP0NDDNT, v. W. P. ELLISON, INCOR-
PORATED, ETC., APPELLANT.
Argued March 16, 1917— Decided March 16, 1917.
On appeal from the Supreme Court, whose opinion is re-
ported in 89 N, J. L, 416.
For the respondent, George D, Hendrichson.
For the appellant, Dams & Hastings.
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Trenchard in the Supreme Court.
For affirmance — ^Thb Chancellor, Garrison, Swayze.
Bergen, Minturn, Kalisch, White, Heppenheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
For reversal — ITone.
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MAECH TEEM, 1917. 717
90 N. J. L. Riverside Tiirn Verein Harmonie v. Paterson.
THE RIVERSIDE TURN VERBIN HARMONIE, A CX)RPORA-
TION, APPELT^NT. v. THE MAYOR AND ALDERMEN
OF THE CITY OF PATERSON ET AL., RESPONDENTS.
Submitted March 26, 1917— Decided June 18, 1917.
On appeal from the Supreme Court.
For the appellant, Ward & McGinnis.
For the respondents, Edward F. Merrey,
Per Curiam.
The judgment under review will be affirmed, for the reasons
given in the per cvriam in Wilhelmina Koettegen v. Mayor
and Aldermen of the City of Paterson et al., No. 149 if the
present term of this cotirt.
For affirmance — ^The Chancellor^ Swayze, Parker,
Bergen, Minturn, Kalisch, White, Heppenheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
For reversal — N'one.
HARRY ROSE, RESPONDENT, v. BENJAMIN G. FITZGERALD,
APPELIANT.
Submitted March 26, 1917— Decided June 18, 1917.
On appeal from the Supreme Court, in which the following
per curiam was filed :
"This was a suit against a husband to collect the amount
of a bill for tailoring done for the wife. There was a judg-
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718 COURT OF ERRORS AND APPEALS.
Rose V. Fitzgerald. 90 N. J, L.
ment for the plaintiff below. The defence was mainly based
upon the claim that the plaintiff had been notified by the
husband not to give any credit to the wife, and also that the
articles furnished were not necessaries. After the suit was
begun the wife paid a part of the bill, leaving a balance of
forty-five ($45) dollars, which was the basis of the judgment.
"Appellant has put in what appears to be a stenographic
transcript of the testimony taken in, the court below, but there
is nothing in the record to show that a stenographer was ap-
pointed pursuant to the statute, and unless there was an ap-
pointment, the transcript has no value. On .the other hand,
there is a state of the case settled by the trial judge, which
naturally excludes a stenographic transcript. The alleged
errors called to our attention are the following:
"First. That the court found, against uncontradicted evi-
dence, that the plaintiff did not see a written notice upon the
defendant's check that no more credit was to be given to the
wife. The burden was on the defendant to show that the
plaintiff did see this notice, and the judge certifies that the
plaintiff testified that if the clause was there he did not see
it, while the transcript is silent on this point. We think we
should not take the silence of the unofficial transcript as im-
peaching the statement of the court to the contrary.
"The same may be said as to the court's finding that the
defendant did not supply his wife with necessaries. The
ruling that evidence as to what were necessaries was part of
tile defence is complained of in the brief, but was not objected
to at the trial and was not specified as a ground of error.
^Third and fourth. It is objected, generally, that the de-
fendant did not have a fair trial. A general objection of this
character, of course, counts for nothing.
^TVe find no error of the trial court properly assigned that
should lead to a reversal, and the judgment will, therefore, be
affirmed.'*
For the appellant, John J, CrandaJl and James A, Light-
foot
For the respondent, Morris Bloom.
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MARCH TERM, 1917. 719
90 N. J. L. Smith v. Fire Com Vs of Newark.
Per Curiam.
The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Court.
For affinnance — The Chancellor, Swayze, Tren-
OHARD, MiNTURN, KaLISCH, BlACK, WhITE, HePPEN-
HEiMER, Williams, Taylor, Gardner, J J. 11.
For reversal — None.
CORNELIUS SMITH, APPELLANT, v. BOARD OF FIRE COM-
MISSIONERS OF THE CITY OF NEWARK, RESPONDENT.
Submitted March 26, 1917— Decided June 18, 1917.
On appeal from the Supreme Court.
For the appellant, Frank E. Bradner.
For the respondents, Harry Kalisch.
Per Curiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Kalisch in the Supreme Court, eo nomine Dwrhin v. Fire
Commissioners of Nemarlc, 89 N, J. L, 468.
For affirmance — ^The Chancellor, Garrison, Tren-
chard, Parker, Bergen, Black, White, Heppenheimer.
Williams, Taylor, Gardner, J J. 11.
For reversal — None.
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720 COURT OF ERRORS AXD APPEALS.
Sppolte V. D., L. & W. R. B. Co. 00 N. J, L.
GEORGE SPROTTE, RESPONDENT, v. THE DELAWARE,
LACKAWANNA AND WESTERN RAILROAD COMPANY,
APPELLANT.
Subi^itted March 20, 1917— Decided Juue 18. 1917.
On appeal from the Supreme Court, in which court the
following per curiam was filed :
"The plaintiff employed a shipping company in Los An-
geles to ship a carload of furniture from that point to Dover,
Xew Jersey. When the goods arrived in New York they
were forwarded by tlie shipping company to Dover over the
defendant's line, and some of the goods were damaged when
they arrived.
"The defendant issued a way bill in which it was stated
that the property was in apparent good order except as noted.
(Contents and condition of packages unknown.) The list
contained specific items, some of which were boxes. There
was a stipulation that if defendant was found liable the dam-
ages were to be assessed at $169.05, and this sum the District
Court found. Under the record all we have to deal with is
the liability of the defendant between New York and Dover.
The defendant claims th^t the court should have granted its
motion for a nonsuit, or directed a verdict for the defendant
because there was no proof that the goods were damaged while
in defendant's possession, beyond that the way bill certified
that they were received in apparent good order in New York,
and the fact that they were received in a damaged condition at
Dover.
"Such a recital in a bill of lading is ffri.ma facie evidence
of the fact that the goods were in apparently good condition
when received, and while the common carrier may show the
contrary the burden is on it. No attempt was made in this
cape to show that the goods were not in good condition when *
delivered to the defendant, and where a carrier receives freight
in good condition, and it is found in itt? possession damaged
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MARCH TERM, 1917. 721
!)0 \. J. L. Sprotte v. I).. L. & W. K. R. Co.
at point of destination, negligence will be presumed, unless
removed by explanation.
"The next point is, that it wajs error to admit the contract
with the I^s Angeles Moving Company, the initial shipping
company. This did not injure the defendant if error was
harmless.
"The next objection is refusal to allow defendant's train
conductor to testify that nothing unusual happened to the
car between New York and Dover. This was immaterial,
for if he so testified, which w the best defendant could expect,
it would prove nothing, for the goods were in a closed car and
it was not pretended that anything happened to tlie car.
"As we find no error in this record the judgment will ])e
affirmed, with costs."
For tile appellant, Frederic B. Scott.
For the respondent, Kin^i <£ Vogt.
Per Curiam.
The facts are stated in the memorandum of the Supreme
Court. We «gree that the bill of ladinof was sufficient jn-iwa
facie proof that the goods mentioned therein were in ap-
parent good order, so far as their good order could bo ap-
parent. This applies to the greater part of the goods and of
the damages claimed. Most of the goods were of such a char-
acter that it could he asc^ertained by mere inspection whether
they were in sound condition, and most of the damages were
due to breakage. To such goods where the claim is for ob-
vious injury the clause "contents and condition of packages
unknown" is not applicable. Where th*? claim for scratches
and similar injuries to furniture and the condition at the time
the bill of lading was issued was concealed by burlap or other
covering, there could not be irood order apparent in that re-
spect and proof other than the mere acknowledgment in the
bill of lading would be necessary. This difficulty is particu-
larly applicable in this case ^o the piano, which was boxed.
We should have difficulty with the case if the distinction had
Vol. \r. 4fi
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7n COURT OF ERRORS AND APPEALS.
State V. Fletcher. 90 X. ./. /..
been made at the trial and the question properly raised. This
was not done. The plaintiff relied on the bill of lading, as if
its terms were applicable alike to all the articles named. The
defendant relied on the clause as to contents and condition
of contents of packages, as if all the articles had been so
packed as to conceal their real nature. The amount of dam-
ages was stipulated. The error was the usual one of attempt-
ing to apply general expressions without discrimination to
particular cases. We have- nothing to add to what the Su-
preme Court said as to the rulings on questions of evidence.
We find no error of law pointed out in the record and the
judgment must be affirmed, with costs.
For affirmance — The Ciiaxcellor, Swayze, Trenchard,
.MiJtturx, Kaliscii, Black, White, Heppenheimer, Wil-
LTAMs, Taylor, Gardner, JJ. 11.
For reversal — Xone.
THK STATE OF NEW JERSEY, DEFENDANT IN ERROR, v.
JANE FLETCHER, PLAINTIFF IN ERROR.
Stibmitted March 2G, 1017— Decided June 18. 1917.
On appeal from the Supreme Court, in which the follow-
ing per curiam was filed :
*'We think it was proper to allow Dr. Ill to use his hospital
liistorv to refresh his recollection. Although it was dictated
bv him to another and not transcribed in his presence, he
identified it as a transcription of the notes he dictated at the
time. We think he might well do so ; and no more proof was
necessary to justify its use.
"The evidence warranted the statement of the prosecutor
that Dr. Ballontine became convinced that a criminal opera-
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MABCH TERM, 1917. 723
00 S.J. L. ' State V.Fletcher.
tion had been performed. The statement that the doctor
made an examination perhaps was inaccurate, dependent on
tlie sense in which the word ^examination' was used; but it
was liarmless.
"Tlie cross-examination of the defendant as to her ac-
quaintance with Dr. Muttart was permissible. She testified
on direct examination that her patient told her she had come
from a doctor in Xew York. On cross-examination she said
the girl gave lier the name of Dr. Muttart. Her knowledge
o^ the doctor might throw light on the probability that she
would perform an abortion on a girl who claimed to have been
sent by Dr. Muttart.
'*It was peimissible to use the speculum offered in evidence
to illustrate the kind of an instrument which the girl said the
defendant had used.
*^The defendant was not injured by the charge that *the
fact that this young woman had a previous miscarriage or
visited someone else is not finally to affect your minds in de-
tei mining this defendant's guilt. If she had ninety-nine
other operations, and somebody else had gone free, that is not
the question.' We infer that the judge was trying to warn
the jury not to convict the defendant because they thought
someone ouglit to be punished. It seems to be intended as a
warning in favor of the defendant.
"We think it was permissible to ask the defendant if she
couldn't give the girl something to alleviate the pain. The
defendant had testified that the girl had come to her suffering
l)ains of pregnancy and wanting her to perform an abortion;
that she had refused to do so, and offered to do nothing to
alleviate tlie pain. The questions bore upon the probability
of defendant's testimony, since the prosecutor might well
argue that the natural instinct of humanity would lead the
defendant to alleviate the pains if she was im willing to per-
form the abortion.
'Tart of the prosecutor's examination of the complaining
witness was leading, but we cannot say there was any legal
orror or abuse of discretion.
**Tlie judgment must be affirmed."
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724 COURT OF ERRORS AND APPEALS.
State V. Stanford. 90 N. J. L.
For the plaintiff in error, Uamill & Cain,
For the defendant in error, Robert S. Hudspeth, prosecu-
tor of the pleas.
Per Curiam.
The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Court.
For affirmance — The Chancellor; Garrison, Parker,
MiNTURN, Kalisch, Black, Wiiite, Heppenheimer, Wil-
liams, Taylor. Gardner, J J. 11.
For reversal — None.
STATE OF NKW JERSEY, DEFENDANT IN ERROR, v. AI^
BERT STANFORD, PLAINTIFF IN ERROR.
Argued March 6, 1917— Decided March 6. 1917.
On appeal from the Supreme Court.
For the plaintiff in error. Garrison & Voorhees and Isaac
IL Nutter.
For the defendant in error, Charles S. Moore,
Per Curiam.
Alhert Stanford and Albert Jackson were convicted at the
January term, 1916, of the Atlantic County Court of Quarter
Sossionp, each under two separate indictments for the common
law crime of keeping disorderly houses at two separate places
in Atlantic City. The four indictments were tried together^
verdicts of guilty found, and from separate judgments in each
case writs of error were taken to the Supreme Court. The
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MARCH TERM, 1917. 72o
90 .V. ./. /.. State v. Stanford.
cases were there argued togethei: and the convictions affirmed
by that court. From the judgments of aflBnnance entered in
the Supreme Court Albert Stanford took two writs of error
which are now before this court The testimony and assign-
ments being identical, the cases were presented and argued
together by consent of counsel.
The opinion in the four cases in the Supreme Court was
rendered in one of the Jackson cases, and is as follows :
^^Per curtain: The defendant was indicted for, and con-
victed of, the crime of keeping a disorderly house, the grava-
men of the charge being the assisting in carrying on a
gambling establishment at Chalfonte avenue, in the city of
Atlantic City. A similar indictment was found against oiie
Albert Stanford, and a conviction was had in his case also.
The cases were tried together in the Quarter Sessions and
were argued together before this court.
^^Numerous errors were assigned by each defendant, bu-t all
of them were abandoned on the argument except three. These
three are each of them directed at an alleged error of the trial
court in permitting the oflBcial stenographer to read the entire
testimony given by Stanford, and also that given by Jackson,
on a trial theretofore had on an indictment presented against
one Andrew Terry, who was the proprietor of the gambling
establishment at which the present defendants acted as as-
sistants. The pith of the contention is that the prior testi-
mony given by each of them, and permitted to be read to the
jury, was evidential only against himself, and not against his
co-defendant, and that its admission was improper for this
reason. It is conceded that Jackson's previous testimony, if
voluntarily given, was properly admitted as evidential against
himself, and that Stanford's also was admissible against him-
self. It follows, therefore, that an application to exclude this
evidence in toto was properly refused. The protection which
each defendant was entitled to have against the previous tes-
timony of his co-defendant, was an instruction that it should
not be considered by the jury in passing upon his guilt or
innocence. Perry v. Levy, 87 N. J. L. 670. But as no re-
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726 COURT OF ERRORS AND APPEALS.
SUte T. Btanford. OON.J.L,
quest for such an infltniction was proffered, and, as the tes-
timony was admissible to the extent indicated, the defendants
cannot now complain of the failure of the trial court to thus
limit the effect of the evidence. Moreover, the objection to
the admission of this testimony was not based upon its lack
of evidential value, but upon the sole ground that it could
not be introduced until it was first shown that the admissions
contained in it were voluntary, and that the party making
them was cautioned that what he said might be used against
him on some other occasion ; and further, that Uie state had
no right to make a defendant testify against himself. These
grounds of objection were, under the circumstances, entirely
without merit and have not been urged before us. It is
proper to say, however, that the previous testimony of tliese
defendants on the trial of the Terry indictment had been
elicited, not by the state, but by Terry's coimsel ; and, under
these conditions, there was, of course, no obligation on the
part of the prosecutor of the pleas to warn the witnesses that
what they might say could be used against them if it indicated
criminality on their part. The suggestion that the state, by
submitting the previous admissions of the defendants, was
compelling them to testify against themselves, is, of course,
entirely without substance.
"The judgment under review will be affirmed."
The other judgments were affirmed, for the reasons given
in the above opinion, a memorandum to that effect being
filed.
Per Curiam.
The two judgments under review on the writs of error sued
out by Stanford in this court are affirmed, for the reasons
given in the above opinion of the Supreme Court.
For afprmance — The Chancellor, Garrison, Swayze,
Parker, Bergen, Minturn, Kalisch, White, Heppen-
HEiMER, Williams, Taylor, Gardner, JJ. 12.
For reversal — None.
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MARCH TEHM, 1917. 727
f)0 N. J. L. State v. Vreeland.
STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HARRY
A. VREEI^ND, PIAINTIFF IN ERROR.
Argued March 22, 1917— Decided June 18, 1917.
On error to the Supreme Court, whose opinion is reported
in 89 N. J. L. 423.
For the defendant in error, Martin P. Devlin.
For the plaintiff in error, John A, Ilartpence.
Per Curiam.
The judgment under review herein sliould be affirmed, for
the reasons expressed in the opinion delivered by Mr. Justice
Trenchard in the Supreme Court.
For affirmance — The Chancellor, Garrison, Swayze,
Bergen, Minturn, Kalisch, White, Heppenheimer, Wil-
liams, Taylor, Gardner, JJ. 11.
For reversal — None.
SUBURBAX INVESTMENT COMPANY', APPELLANT, v. STATE
BOARD OF ASSESSORS 171' AL., RESPONDENTS.
Argued March 7, 1917— Decided June 18, 1917.
On appeal from the Supreme Court.
For the appellant, Franklin MV, Fori.
For the respondents, Herbert Boggi^, assistant attorney-
tjeneral.
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728 COURT OF ERRORS AND APPEALS.
Suburban Invest. (\). v. Stale Bd. Assessors. 90 \. J. L.
Per Curiam.
The jiKlgment is affirmed, for the reasons stated in the fol-
lowing memorandum of the Supreme Court:
Tlie Suburban Water Company was incorporated under the
laws of this state in 1912, and, subsequently, changed its name
to the Suburban Investment Company, tlie prosecutor in this
case. Tlie facts are fully set out in the per curiam opinion
in New Jersey Water Cmnpany against the same defendant,
decided at the present term. The prosecutor was assessed
$e560.80 for state uses on $560,800 amount of capital stock
issued and outstanding January 1st, 1914, as reported by the
prosecutor.
The only specific reason assigned by the prosecutor for
setting aside the assessment is that the state board of as-
sessors made and levied the tax" upon the prosecutor under
the provisi(m of chapter 185 of the laws of 1890, and the sup-
plements thereto and amendments thereof, instead of under
the act of 1900, discussed in the prr curiam opinion above
referred to.
The return made by the prosecutor to the state board of
assessors sets forth the amount of its capital stock issued and
outstanding: on January 1st, 1914, undeT section 3 of the
Corporation Franchise act of April 18th, 1884, as said section
was amended in 1906 (Pamph. L., p. 31), as above stated.
The ])ros(Yu tor's return reports that its business is, ''Mn-
ve«tinent in and managing corporations," and that it is not
engaged in manufacturing or mining within this state. The
i-'ituation of the prosecutor on December 31st, 1913, was that
of an inactive coiporation holding no special franchise. In
harmony with the views expressed in the per curiam opinion
filed in Xo, ?25, the tax was properly assessed in the present
case.
The writ will be dismissed and the action of the state board
of a^Fcssors affirmed, with costs.
For affirmance — The Chancellor, Garrisox/ Swayze,
THExruARi). Beroek, Black, White. Williams. Taylor.
(lARDXER, JJ. 10.
For reversal — None.
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MARCH TERM, 1917. 729
})0 A . -/. /.. W. Union Tel. Co. v. Public Utility Board.
WESTKRX UNION TELEGRAPH COMPANY, APPELLANT, v.
BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL.,
RESPONDENTS.
Argued January 4, 1917 — Decided October 11, 1917.
On appeal from tlie Supreme Court, in which the following
per curiam was filed:
"In this case there are eleven reasons presented to the
court for setting aside the order made hv the board of public
utility commissioners. They are in the main identical with
the reasons presented by the prosecutor, the Passaic Water
Company, except an additional reason, viz., the order is in-
valid, because it imposes a burden upon the interstate traffic
of the prosecutor, interferes with and impairs its ability to
perfoim its duty as a common carrier of such traffic.
"They are, however, argued under five points in prosecutor's
brief. The first four points are constitutional questions, all
of which are disposed of in the opinion of the court in the
ca«e of Erie Railroad Co. v. Board of Public Utility Commis-
sioners.
"The fifth point is, the order is invalid, stating six reasons;
these, also, have been disposed of in the opinion of the court
in. the case of Erie Railroad Co. v. Board of Public Utility
Commissioners. They need no further discussion.
"The order under review will be affirmed, with costs."
For the appellant, Collin.^ d' Corbin,
For tlie rc^|)ondents, L. Edtrard Herrviann and Frank H.
Sow?)ier.
Per CrFiAM.
The judgment under review will be affirmed, for the rea-
sons set forth in the opinion of the Supreme Court.
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730 COURT OF ERRORS AND APPEALS.
W. Jersey Trust Co. v. Phila. & Read. Ry. Co. 90 .V. J. L.
For affirmance — The Chancellor, Minturx, Kaliscit,
White, Willlvms, Taylor, Gardner, JJ. 7.
For reversal — The Chief Justice, Swayze, Parker,
Bergen, Heppenheimer, J J. 5.
WEST JERSEY TRUST COMPANY, RESPONDENT, v. PHILA-
DELPHIA AND READING RAILWAY COMPANY. APPEL-
LANT.
Argued March 20, 191 <*►— Decided July IS, 1017.
On- appeal from the Supreme Court.
For the appellant, Edward L, Katzenharh.
For t-he respondent, Ott & Carr.
Per Curiam.
The jud^s^ent under review herein should he reversed, for
the reasons expressed in the opinion delivered hv Mr. Justiee
Garrison in the case of George A. Rounsaville r. Central
Railroad Company of Xew Jersey, Xo. 81 of tlie Xovemher
term, 1915, recently decided in this court upon the authority
of the decision of the Supreme Court of the United States
in the case of Erie Railroad Co. v. A my L, Win field (opinion
by Mr. Justice Van Devanter), 2U U. S. 170.
For affirmance — !N"one.
For reversal — The Chancellor, Chief Justice. Swayze.
Trenchard, Bergen, White, Heppexheimer, Williams,
Gardner, JJ. 9.
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MARCH TERM, 1917. 731
90 N. J. L. Zabriskie v. Edwai-ds.
CHARLES L. ZABRISKIE ET AL., EXECUTORS OF THE
LAST WILL AND TESTAMENT OF CHARLES FRED-.
ERIC ZABRISKIE, DECEASED, APPELLANTS, v. ED-
WARD I. EDWARDS, COMPTROLLER OF THE TREAS-
ITRY OF THE STATE OF NEW JERSEY, RESPONDENT.
Argued Maxch 13, 1917— Decided June 18, 1917.
On appeal from the Supreme Court.
For the appellants, Tjum, Tamhlyn & Colyer,
For the respondent, John W, Wescott, attorney-general.
Per* Cueiam.
The judgment under review herein should be affirmed, for
the reasons expressed in the per curiam of this court in Max-
well et al., Executors, &c., v, Edwards, Comptroller, &c., et al..
No. 108 of the present term of this court.
For affirnia/nce — ^The Chancellor, Garrison, Tren-
ciiARD, Bergen, Minturn, Black, White, Heppenheimer,
Williams, Taylor, Gardner, J J. 11.
For reversal — None.
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INDEX.
ABORTION.
1. Where the proofs show that the
defendant merely aided and
abetted an abortion, without
actually participating in the use
of the instruments for effecting
it, he may be convicted upon an
indictment charging him with be-
ing a principal in the production
of an abortion, all concerned in
such a misdemeanor being liable
as principals. State v. Riccio^
25
2. In a prosecution for violation of
section 119 of the Crimes act by
procuring the "miscarriage of a
woman pregnant with child," it
is not necessary to show that the
woman was quick with child but I
it is sufficient if it appears that'
conception had taken place and!
gestation was in progress. State]
V. Loomi^, 216
H. Where in a trial for abortion, in|
which the state claimed that the
fatus had been expelled by the!
female, the state introduces di-l
rect evidence of the sexual in-]
tercourso with defendant on
more than one occasion, of the!
subsequent cessation of menses,
and of nervous functional dis-
turbances, wliich. in the opinion,
of experts denoted probable
pregnancy, there was sufficient |
proof to justify the jury in find-,
ing that pregnancy existed. Ih.\
ACTIONS.
See Railroads, 5.
ADMISSIONS.
See Evidence, 2.
ADVERTISING.
. The publishing of official adver-
tisements for municipal corpora-
tions in newspapers is neither
work, labor nor materials fur-
nished by the owners of the pa-
pers to such advertising custom- .
ers under Pamph. L. 1912, p.
593. Delker v. Freeholders of
Atlantic, 473
. The act of 1909 {Pamph. /.., p.
92; Comp, Stat., p. 3762),
which regulates the price to be
paid for public advertising, is
not repealed by implication by
act of 1912 (Pamph. L., p. 593)
(there being no express repealer,
specific or general), which latter
act relates to expenditures by
public bodies for the doing of
work or the furnishing of ma-
terials or labor. lb.
. Although a municipal corpora-
tion advertises for bids or pro-
posals for publishing all official
advertising in newspapers, it is
not required to award a contract
to the lowest bidder, but may
contract for such advertising at
the price fixed in Pamph. L.
1909, p. 92. lb.
ANIMALS.
. The infant plaintiff, a boy six-
teen years old, testified that he
had been in the business of de-
livering newspapers on defend-
ant's estate to him and his
tenants, for about a year, and
that on the day he was bitten
by defendant's dog he was going
across defendant's lawn on the
regular route he had always
taken, having entered through a
gate which was open. Held,
that even if he were a trespasser
733
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INDEX.
[90 N. J. L.
Appeal and Error,
Attachment,
uu defendant's premises he was
entitled to recover damages for
the injury resulting from the
biting by the dog, under the facts
in this case, if it were owned by
the defendant (which was ad
mitted), and if defendant knew
that the dog had previously bit-
ten other people, of which there
was evidence, and unless the
plaintiff was guilty of contribu
tory negligence, aside from the
mere fact of trespassing, and he
was not, according to his own
testimony. Eberling v. Mutillod,
478
|3.
5.
2. The mere fact of trespassing
upon the grounds of another is'
not, in and of itself, contributory
negligence which will defeat anj
action to recover damages for in-,
juries inflicted by a vicious ani- 6.
mal belonging to defendant and
allowed to be at large upon the
premises. 76.
3. The question whether a person |
entering upon the grounds of
another without invitation or li^
cense, and then and there injured
by an attack by a vicious animal
o^ the^wner allowed to be at
large upon the premises, exer-|
cises the degree of care which! 7.
reasonable and prudent persons
would use under like circum-
stances, is a jury question. Ih.
APPEAL AND ERROR.
1. A court of appeals need not, but j
may. decide questions on a rec-,
ord before it which were not
raised in a court below ; and it |
is the constant practice of ap-,
pellate courts to notice and de-
cide on questions of jurisdiction '
and public policy, without those
questions having been raised be-,
low. McMichael v. Horay, 142 H
2. A court of appeals may affirm n
judgment, on ground other than j
that upon which the decision was'
rested in the court below, if the !
decision be correct. 76.'
A question not presented and ar-
gued in the court below will be
held to have been waived and
abandoned, and will not be con-
sidered in an appellate tribunal.
Shaw V. Bender, 147
. On an appeal corresponding to
writ of error at common law,
every intendment is in favor of
the correctness of the judgment
below, and doubt will not lead
to a reversal. PhtUipa v. Long-
port, 212
On appeal corresponding to a
writ of error, the appellate court
cannot properly deal with any
other state of the case except
that considered by the court be-
low. 76.
It is the judgment, not the
opinion, of a court below which
is brought before an appellate
court for review. If the judg-
ment of the lower court varies
from its decision, it may be cor-
rected only by amendment in that
court ; in the court above it can
only be affirmed, reversed or
modified. Delker v. Freeholders
of Atlantic, 473
Writs of error do not run di-
rectly to this court from the or-
der of a justice of the Supreme
Court reviewing the summary
convictions of criminal courts in
municipalities. Jersey City v.
Thorpe, 520
. The Supreme Court cannot re-
view the findings of fact of the
District Courts, when supported
by evidence. Duff v. Prudential
Inauranre Co,, • 646
ATTACHMENT.
. The respondents caused an at-
tachment to be issued out of n
court for the trial of small,
causes and under it the debtor*s
goods were seised ; subsequently,
but before judgment in the pro-
ceedings, the prosecutors, as they
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1)0 N. J. L.]
IxYDEX.
735
Beneficial Associations.
Boroughs,
claim, issued an attachment outr
of the Circuit Court against theji
same debtor and under it the
same goods were seized. Held,
that if it appeared that prosecu-
tor had in fact issued the at-
tachment and seized the goods
it had the same right that . the
debtor would have to move the
justice court to quash the writ
issued by that court, and to
rescue the goods, on which it had
a lien, from the prior seizure.
Limperf Bros. v. French d Son,
60()
2. In support of such motion ex
parte affidavits are not suffi
cient ; the material facts must
be proved before the justice, by
the production of competent] I
proof. 76.
.*i. A stipulation of facts not sub-,
mitted to the justice of the peace,
cannot be used on review by anj
appellate court. 76.
I
new certificate issued before an
action at law can be maintained
to recover what would be due
if the change had been made, a
new certificate issued, and its
terms performed by the assured.
McGuire v. Catholic Benevolent
Legion, 224
. If a proper -application for a
new certificate be refused by the
subordinate council and the rules
of the order provide for an ap-
peal from such refusal to the
supreme council, that remedy
must be exhausted by the appli-
cant before a right of action
arises for damages caused by the
refusal of the subordinate coun-
cil to grant the application. 76.
BILLS OF EXCEPTIONS.
^ee CRiMiiNAL Procedure, 2, 3.
BILLS OF LADING.
ATTORNEY AND CLIENT. I *SVr Carriers, 1, 2, 3, 4, 5.
f^ee Privileged Communications, i
1. 2. '
BOROUGHS.
BENEFICIAL ASSOCIATIONS.
1. Where the constitution and by-'
laws of a beneficial order per-'
mit a member at his option to'
change the character of his mem-
bership by surrendering a cer-
tificate assuring the payment of
a fixed sum at death, and have,
another certificate issued in its
stead fixing a less sum to be,
paid, in consideration of a re-'
duction of the amount of the,
dues payable for the assurance,'
if he shall comply with certain
conditions set out in the consti-l
tution and by-laws which are
made a part of the contract of
assurance, the procedure and
conditions required by the eon-
tract to accomplish such change
must be complied with and the
. An appointment to the office of
any borough, to fill a vacancy
in such office, caused by death,
disability, resignation or any
other cause, if made for a longer
term than until noon of the first
day of January following the
next annual election, is in viola-
tion of section 1 of the amend-
ment of 1904 of the Borough act
iComp. Stat., p. 230), and there-
fore nugatory. Florey v. Lan-
ning, 12
. Under the General Borough act
an assessment for the cost of side-
walks is to be made by resolu-
tion of the common council, on
the lands fronting on the street
along which the sidewalks are
laid, and not by commissioners
of assessment appointed to deter-
mine the damages and benefits
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INDEX.
[90 X. J. L.
Bridges.
\ arisinji; from the improvement of|
public streets. Belmont Land
Association v. Oarfield, 394
3. Commissioners of assessment in
considering the benefits to be
assessed against the landowner,
for the grading and improvement
of a public street in a borough,
are required to consider and re-
port the damages which a land-
owner may suffer because of the
improvement as well as benefits
which may accrue therefrom.
76.
4. Every ordinance for making
street improvements must be pre-
ceded by the petition required
under section 53 of the Borough
act. Comp, Stat,, p, 200. lb J
See also Taxes and Assessments.
13.
BRIDGES.
The plaintiff having fallen from a|
county bridge by reason of the
giving away of an iron rail, and
there being testimony fromj
which the jury might infer negli-
gence of the defendant, in the
performance of its statutory
duty of maintenance and repair,
as well as the question of the de-
fendant's ownership of the rail,
and of the locus in quo; and
also testimony from which an in-
ference might reasonably be
drawn, that the defendant as-,
sumed responsibility and exer-
cised control over the rail in
question — Held, that a motion toj
nonsuit, as well as a motion to!
direct a verdict were properly
refused. Darville v. Freeholders
of Essex, 617
BROKERS.
1. A broker who procures a loan of,
money for his principal under
the express contract of the lat-'
ter to jiay him a greater c6m-|
pensation than that allowed by|
section 5 of the Usury act, may,i
Building and Loan Associations.
notwithstanding such void con-
tract, recover the reasonable
value of his services, not exceed-
ing the statutory rate. Roth d
Miller v. Tern kin, 39
. In a suit by a broker for com-
missions, alleged to be due for
the procuring of a sale of real
estate under a written agree-
ment, where it was a disputed
question whether the agreement
had been abandoned by consent,
such a question was a proper one
for the jury. Freeman v. Van
Wagenen, 358
, In the absence of a special agree-
ment, a real estate broker, act-
ing by virtue of a written agree-
ment, earns his commission when
he secures a ready and willing
purchaser, brings the parties to-
gether and gets them to make a
binding agreement. lb.
BUILDING AND LOAX ASSO-
CIATIONS.
Where a building and loan asso-
ciation draws a check to pay ma-
tured shares on account of which
a loan has been made and a note
taken, expecting the shareholder
to pay the note at the time of
delivery of the check for the
shares, and both note and check
are placed in a safe to which
the secretary of the association
has lawful access, he being the
principal officer transacting the
financial business between the
association and its shareholders,
and authorized to receive all
moneys paid to the association,
and he, without express author-
ity, takes the note and check
from the safe, delivers the check
to the shareholder, collects the
money due on the note, sur-
renders it and embezzles the
money, the loss must, as be-
tween two innocent parties fall
on the one whose negligence
made the fraud possible.
Whether the circumstances in
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90 X. J. L.]
INDEX.
737
Carriers,
such a case amount to negli- 1
geoce is a jury question, and a |
directed verdict is error. Park-^\
view B. if L, AsB'n of Newark
V. Rose, 614
Carriers.
on the part of such assignee,
even though, by mistake of the
carrier, the bill as rendered did
not include the entire charge.
Jb.
CARRIERS. ,'«•
I
1. Prima facie, the consignor of
freight who contracts with the '
carrier for its shipment, is liable i
to pay the charges of transpor- 1
tation, and the mere fact that ^
the charges are left unpaid by i
the consignor and are to be col-
lected from the consignee at des- j
tination, does not discharge the
consignor from liability to thej
carrier. Penna. R. R. Co, v.
Townsendy 75 7.
'I
2. The term "consignee" when usedj
in a bill of lading means the'
person named in the bill as the i
person to whom delivery of thci
goods is to be made. /5.!|
3. The mere existence of the rela-l
tion of carrier and consignee is |
not enough to establish a lia-!
bility of the latter to pay freight' |
charges. There must be an;
agreement by the consignee, ex-n
press or implied, in order to
create such a liability. Ih.
4. If the assignee of a bill of lading,
accepts and removes goods at
their destination without paying i
the charges, with knowledge that S.
the carrier is giving up for his I
benefit a lien thereon for a i
stated amount, that would be |
cogent evidence from which to i
imply an agreement on his part '
to pay the known amount of i
the freight charges. Ih. I
5. The mere acceptance and re-j,
moval of goods at their destina- \
tion by the assignee of a bill of
lading, and the payment by him i
of the freight bill as made out
by the carrier, without knowl-
edge by -the assignee that the
same was an undercharge, doest;
not create any further liability' '
Vol. xc. 47
A carrier owes to its passenger
the duty of protecting him from
the violence and insults of other
passengers, so far as this can be
done by the exercise of a high
decree of care, and it will be held
responsible for its servant's neg-
ligence in this particular when,
by the exercise of proper care,
the act of violence might have
been foreseen and prevented.
Hoff V. Puh, Serv. Ry, Co., 386
The failure of the servant of a
carrier to prevent the commis-
sion of an assault upon a pas-
senger by another passenger, to
be a negligent failure or omis-
sion must be a failure or omis-
sion to do something which
could have been done by the ser-
vant; and, therefore, there is
involved the essential ingredient
that the servant had knowledge,
or with proper care could have
had knowledge, that the tort was
imminent, and that he had that
knowledge, or had the oppor-
tunity to acquire it, suflSciently
long in advance of its infliction
to have prevented it with the
force at his command. Ih,
The fact that a passenger was
intoxicated to the knowledge of
the carrier's conductor, the fact
that he had repeatedly insulted
a woman passenger in the pres-
ence and hearing of the con-
ductor, and immediately after-
the last insulting remark arose-
from his seat and struck her-
twice, all without any word of
admonition or protest by the
conductor or attempt upon his
part to prevent the assault, al-
though he was throughout within
arms' reach of the drunken man,
are circumstances from which
the jury could properly infer
that with proper care upon the
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INDEX.
[90 N. J. L.
Case* Ajfirmed,
Cases Affirmed.
part of the conductor the act of
violence might have been fore-
seen and prevented. lb.
CASES AFFIRMED.
1. Consolidated Gas and Gasoline
Engine Company v. Michael
Blanda. From the Supreme
Court 89 N, J. L. 104, 135
2. Desire Fortein et al. v. The Del-
aware, Lackawanna and West-
ern Railroad Company. From
the Hudson County Circuit
Court, 137
3. Thomas McMichael t?. Harry
Horay et al. From the Supreme
Court, 142
4. Mary Shaw v. Ella A. Bender.
From the Atlantic County Cir-
cuit Court, 147
5. Edna Dickinson r. The Dela-
ware, Lackawanna and Western
Railroad Company. From the
Supreme Court, 158
6. Mausoleum Builders of New
Jersey v. The State Board of
Taxes and Assessments et al.
From the Supreme Court. 88
N. J. L. 592, 163
7. Peoples Bank and Trust Com-
pany V. Passaic County Board of
Taxation. From the Supreme
Court, 171
8. Mary an Wilczynski, Administra-
trix, &c., V. The Pennsylvania
Railroad Company. From the
Supreme Court, 178
O.Philip D. Heinz v. 'The Dela-
ware, Lackawanna and Western
Railroad Company. From the
Supreme Court, 198
10. Maxime Bouquet t?. The Hack-
ensack Water Company. From
the Supreme Court, 203
11. Theodore Jerolaman v. The
Town of Belleville. From the
Essex County Circuit Court,
206
12. Gustave Kratz v. The Dela-
ware, Lackawanna and Western
Railroad Company. From the
Morris County Circuit Court,
210
13. Arvine H. Phillips et al. v. The
Borough of Longport. From the
Supreme Court, 212
14. The State of New Jersey t?.
Bruce E. Loomis and Frank G.
Blinn. From the Supreme
Court 89 2f. J, L. 8, 216
15. John Eisele and Nathaniel
King, partners trading as Eisele
& King, 17. Ellas Raphael, f^m
the Supreme Court, 219
16. Catherine McGuire, Adminis-
tratrix, v. Catholic Benevolent
Legion. From the Supreme
Court, 224
17. Stephen Nevich i\ The Dela-
ware, Lackawanna and Western
Railroad Company. On appeal
of The Delaware, Lackawanna
and Western Railroad Company.
From the Supreme Court, 228
18. John C. Reed v. Atlantic City
and Suburban Gas and Fuel
Company. From the Supreme
Court, 231
19. George W. Shoeffler t?. Phillips-
burg Horse Car Railroad Com-
pany. From the Warren County
Circuit Court, 235
20. Edward W. Martin v, Alfred
F. Baldwin. From the Supreme
Court, 241
21. James A. Wbitcomb t?. R. Rus-
sell Brant. From the Essex
County Circuit Court, 245
22. Nicola Garuso and Guiseppi
Caruso v. Town of Montdair.
From the Supreme Court 255
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90 N. J. L.]
INDEX.
739
Ca9e$ 4^ilirm^
Case9 Afirmed,
23. Samuel Martin v, Lehigh Val-
ley Railroad Company, from
the Supreme Court, 258
24. The State of New Jersey, v,
Frederick Hart. From the Su-
preme Court 88 N. J. L. 48,
261
25. Eugene Frank v. Board of Edu-
cation of Jersey City. From
the Supreme Court, 273
26. Thomas W. Jackson v, Lorenzo
C. Dilks. From the Supreme
Court, 280
27. Walter H. Smith r. Clarence C.
Smith; Executor. From the
Warren County Circuit Court,
282
28. Grace W. Erwin, Administra-
trix V, William A. Traud. From
the Supreme Court, 289
29. Charles Albrecht t?. The Penn-
sylvania Railroad Company.
From the Hudson County Cir-
cuit Court, 293
30. American Woolen Company v.
Edward I. EMwards, Comp-
troller, et al. From the Supreme,
Court. 90 N. J, L. 69, 293i
t
31. Robert Carson v. Thomas J.
Scully et al. From the Supreme
Court. 89 N. J, L. 458, 295;
32. Robert Carson v. Thomas J.
Scully et al. From the Supreme
Court. 89 N. J. L, 458, 295
33. Robert Carson v, Thomas J.
Scully et al. From the Supreme
Court. 89 N. J, L, 458, 295'
34. Sarah Carton v. Trenton andj 47. james D. Moriarity v. Board
36. Stratton Chrisafides v, Bruns-^
wick Motor Company and John
Knauss. From the Supreme
Court, * 313
37. Joseph CoUetto v. Hudson and
Manhattan Rail|*oad Company.
From the Supreme Court, 315
38. Jesse V. De Groff v. John R.
0*Connor. From the Supreme
Court, 317
39. James Devlin et al. v. The
Mayor, &c., of Jersey City et
al. From the Supreme Court,
318
40. Ralph D. Earle, Jr., v, Henry
W. Durham. From the Supreme
I Court. 89 N, J, L. 4, 319
41. Daniel H. Gilbert v. The Penn-
sylvania Railroad Company.
From the Supreme Court, 321
42. Adam Heckman v, Abraham
Cohen. From the Supreme
Court, 322
43. William C Hendee, Adminis-
trator, r. Wildwood and Dela-
ware Bay Short Line Railroad
Company. From the Supreme
Court 89 N. J. L. 32, 325
44. Kells Mill and Lumber Com-
pany V. The Pennsylvania Rail-
road Company. From the Su-
preme Court. 89 N. J. L, 490,
325
45. J. C. Leib, a corporation, v.
The Pennsylvania Railroad Com-
pany. From the Supreme Court,
326
46. Isaac Loewenthal v. The Penn-
sylvania Railroad Company.
From the Supreme Court, 327
Mercer County Traction Corpo-
ration. From the Supreme,
Court, 811
35. Luigi Caruso and Carmela
Caruso V, Town of Montdair.
From the Sujprepie Court, 312
of Commissioners of the City of
Orange. From the Supreme
Court. 89 N, J, L, 385, 328
4aOUvit Brothers 17. The Penn-
sylvania Railroad Company.
From ^e Supreme Court, 328
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740
INDEX.
[90 N. J. L.
Cas€8 Affirmed,
Cases Affirmed,
49. Olivit Brothers v. The Penn-]
sylvariiia Railroad Company.
From the Supreme €ourt, 329
50. Olivit Brothers v. The Penn-'
sylvania Railroad Company, j
From the Supreme Court, 330!
51. Opportunity Sales Company v.'
Edward I. Edwards, Comptrol-
ler, et al. From the Supreme!
Court, 331
52. Peoples Bank and Trust Com-
pany V. Board of Chosen Free- 1
holders of the County of Passaic'
From the Supreme Court, 331
i
53. David Rabinowitz v, Vulcan
Insurance Company. From the|
Supreme Court, 332*
54. Emory R. Ruby et al. v. Free-'
folders of Hudson County et al..
From the Supreme Court ■ 88'
N, J. L. 481, 335
55. John T. Kennedy v. Freehold-'
ers of Hudson County et al.l
From the Supreme Court. 88
N, J. L. 481, 335
56. Joseph T. Sickler v, Tuckahoe
National Bank. From the Su-|
preme Court, 336
57. Andrew Spada et al. \\ The'
Pennsylvania Railroad Com-
pany. From the Hudson County |
Circuit Court, 338
58. State of New Jersey v, Morris,
Hoffman. From the Supreme]
Court, 338
59. State of New Jersey v. Lehigh'
Valley Railroad Company.
From the Supreme Court. 89
^. J. L. 48, 340
60. State of New Jersey v. Nunzio
Di Maria. From the Supreme
Court. 88 N. J. L. 416, 341
62. State of Kew Jersey v. Joseph
Serrit^lla. From the Supreme
Court. 89 N. J. L. 127, 343
63. Elizabeth Whittingham v.
Township of Millburn et al.
From the Supreme Court, 344
64. Elizabeth Whittingham v.
Township of Millburn et al.
From the Supreme Court, 348
65. Pmil Eberling v, Marius Mu-'
tillod. From the Hudson
County Circuit Court, 478
66. Rudolph Eberling v, Marius
Mu tillod. From the . Hudson
County Circuit Court, 478
67. John Gaffney v. William H.
Illingsworth. From the Essex
County Circuit Court, 490
68. The State of New Jersey v,
Matthew Jefferson. From the
Supreme Court. 88 N. J. L.
447, 507
69. Bert Daly v. Pierre P. Gar-
n. From the Supreme Court,
512
70. Carlton Godfrey et al. v,
^oard of Chosen Freeholders of
the County of Atlantic et al.
From the Supreme Court. 89
N, J, L, 511, 517
71. Augusta Armbrecht, Adminis-
tratrix, &c., V. The Delaware,
Lackawanna and Western Rail-
I road Company. From the Hud-
f son County Circuit Court, 529
1 72. The New York and New Jer-
sey Water Company t?. Charles
I E. Hendrickson et al. From the
I Supreme Court. 88 2V^. J, L.
595, 537
'73. Charles R. Christy et al. v.
' New York Central and Hudson
River Railroad Company. From
the Supreme Court, 540
61. State of New Jersey t?. Charles 1 74. Frank G. Eckert v. Town of
A. Nones. From the Supreme West Orange. From the Essex
Court. 88 "SI. J, L. 460, 342 ' County Circuit Court, 545
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90X.J.L.3
INDEX.
741
Casea Afflrtned,
Cases Ajfirmed,
75. Standard Gas Power Corpora-! '87. The Mayor and Aldermen of
tion V, New England Casualty,
Company. From the Supreme! |
Court, 570
Court,
77. John C
County
Jersey City v, Hudson and Man-
hattan Railroad Company.
From the Hudson County Cir-
cuit Court, «49
76. State of New Jersey v. Mollie| I
Monetti. From the Supreme 88. Jerusha B. Rogers v. Susan
582JI N. Warrington. From the Su-
preme Court, ' 653
^IZlJ' ^FxS^d^ P«<>Ple8 National Bank of
P..™«.e Exchange Tarentum t;. William E. Cramer.
584!! ^^^™ *^^ Supreme Court, 655
Farmers'
From the Burlington
Circuit Court,
78. Rudolph Qross v. Commercial,
Casualty InsuFance Company.
From the Essex County Circuiti
Court, 5941
90. Elanor Burnett and Franklin
P. Burnett v. Superior Realty
Company. From the Supreme
i Court, 660
79. Limpert
rated, v.
Son et al.
Court,
Brothers, Incorpo-f ^1^^^^^^*^^ ^' ^^f^Y ^- Samuel
R. M. French & W. Rushmore et al. From the
From the Supreme Supreme Court, 665
^^ 92. William J. Duffy v. The Mayor
-80, James Darville v. The Board , and Aldermen of the City of
of Chosen Freeholders of thell Paterson et al. From the Su-
County of Essex. From the, preme Court, 669
Essex County Circuit Court,'! _
617! 93. Michael J. Durkin v. The Board
of Fire Commissioners of the
81. Ava Lightcap et al. v. Lehigh
Valley Railroad Company of
New Jersey. From the Warren
County Circuit Court, 620
94. Edward I. Edwards, Comptrol-
82. Richard M. More et al., Re-j ler, v. Frederick Petry, Jr.
ceivers, &c., v. Charles G. Rich-'
ards. Fi'om the Cumberland
County Circuit Court, 626 ^5. Erie Railroad Company v.
Board of Public Utility Com-
City of Newark. From the Su-
preme Court. 89 N, J, L. 468,
670
From the Supreme Court, 670
83. Richard M. More et al., Re-j
ceivers, &c., v, Simon Milner.
From the Cumberland County^
Circuit Court, 626
84. Richard M. More et al.. Re-
ceivers, &c., V. Charles Silver.
From the Cumberland County j
Circuit Court, 626
85. Title Guaranty and Suretyi
Company v. Fusco Construction
Company and Donato Fusco.
From the Supreme Court, 630
86. Julius Gromer, Administrator,!
&c., V. Joseph George and An-'
tonio George. From the Su-
preme Court, 644,
missioners et al. From the Su-
preme Court. 89 N, J, L. 57,
672
96. Erie Railroad Company t?.
Board of Public Utility Com-
missioners et al. From the Su-
preme Court. 89 y. J, L, 57,
673
97. James Fagan, Jr., v. Board of
Fire Commissioners of the City
of Newark. From the Supreme
Court, 673
98. William H. Fennan r. City of
Atlantic City et al. From the
Supreme Court. 88 N, J, L.
435, 674
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742
INDEX.
[90 N. J. L.
Cases AHirmed.
Cases Afirmed.
OO.WiUiam H. JFenlian v. City of
Atlantic City et al. -From the
Supreme Court. 88 N. J. L,
435, 675
100. William H. Fennan v. City of
Atlantic City et al. From the
Supreme Court. 88 N, J. L.
435, 675
101. William H. Fennan v. City of
Atlantic City et al. From the
Supreme Court. 88 N, J. L,
435, 670
102. William H. Fennan v. City of
Atlantic City et al. From the
Supreme Court. 88 N, J. L.
435, 677
laS. D. Fullerton & Company v.
Board of Public Utility CommiB-
sioners et al. From the Supreme
Court, 677
104. Antonio Grandi et al. v. Nicola
Brunetti From the Supreme
Court, 679
105. Salvatore Grillo et al. t?.
Thomas A. EMison et al. From
the Supreme Court, 680
106. Oiovannina Guarraia r. Met-
ropolitan Life Insurance Com-
pany. From the Supreme Court,
682
107. Giovannina Guarraia t?. Met-
ropolitan Life Insurance Com-
pany. From the Supreme Court,
- 685
108. .Tames M. Houghton et al. v
Tlie Mayor and Aldermen of
Jersey City et al. From the Su-
preme Court, 689
109. George Iroson v. George Cun-
• ningham. From the Cumberland
County Circuit Court, 690
110. The Mayor and Aldermen of
Jersey City v. I^wis P. Huber.
"From the Supreme Court, 692
111. Jacob Meyer et aL D. Board
of Public Utility Commissioners
et al. From the Supreme Court,
694
112. Fuller's Express Company i?.
Board of Public Utility Commis-
sioners et aL From the Su-
preme Court, 694
113. Morris & Company v. Board
of Public Utility Commissioners
et al. From the Supreme Court,
694
114. Ferdinand n. Koenig^berger
V, Kate A. Mial. From the Su-
preme Court, 695
115. Wilhelmina Koettegen v. The
Mayor and Aldermen of the
City of Paterson et al. From
the Supreme Court, 698
116. Charles Kruchen Company v.
The Mayor and Aldermen of the
City of Paterson et al. From
the Supreme Court, 700
117. Long Dock Company v. State
Board of Taxes and Assess-
ments, &c. From the Supreme
Court. 89 N, J, L. 108, 701
118. Long Dock Company v. State
Board of Taxes and Assess-
ments. &c. tVom the Supreme
Court. 89 N, J, L, 108, 702
119. I^ong Dock Company t?. State
Board of Taxes and Assess-
ments, &c. From the Supreme
Court. 89 N, J, L. 108, 702
120. Long Dock Company v. State
Board of Taxes and Assess-
ments, ^c. From the Supreme
Court. 89 N. J. L, 108, 703
121. Benjamin F. Loveland v,
McKeever Brothers, Incorpo-
rated. From the Supreme
Court, 704
122. Lawrence Maxwell et al., Ex-
ecutors, &c.. r. Edward I. Ed-
wards, State Comptroller.
From the Supreme Court. 89
2Vr. J. L. 446, 707
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INDEX.
743
Caset Di9mis8ed,
Casea Reversed.
123. Passaic Water CJompany t?.
Board of Public Utility CJom-
missioners et al. From the Su
preme CJourt, 714
124. Public Service Railway Com
pany v. Board of Public Utility
Commissioners et al. From the
Supreme Court. 80 N. J. L,
24, 715
125. Herman Raab v. W. P. ElU
son, Incorporated. From the
Supreme Court. 89 N, J, L,
416, 716
126. Riverside Turn Verein Har
monie v. The Mayor and Alder
men of the City of Paterson et
al. From the Supreme Court,
717
127. Harry Rose v. Benjamin G.
Fitzgerald. From the Supreme
Court, 717
128. Cornelius Smith v. Board of
Fire Commissioners of the City
of Newark. From the Supreme
Court, 719
129. George Sprotte u. The Dela-
ware, Lackawanna and Western
Railroad Company. From the
Supreme Court, 720
130. The State of New Jersey v.
Jane Fletcher. From the Su-
preme Court, 722
131. The State of New Jersey v
Albert Stanford. From the Su-
preme Court, 724
132. The State of New Jersey r.
Harry A. Vreeland. From the
Supreme Court. 89 N. J, L,
423, 727
133. Suburban Investment Com
pany v. State Board of Asses-
sors et al. From the Supreme!
Court, 727
134. Western Union Telegraph
Company r. Board of Public
Utility Commissioners et al.ii
From the Supreme Court, 729.1
135. Charles L. Zabriskie et al.,
Executors, &c., v, Edward I.
Edwards, Comptroller. From
the Supreme Court, 731
CASES DISMISSED.
. Vinnie Van Hoogenstyn t?. The
Delaware, Lackawanna and
Western Railroad Company.
From an order made by the
Chief Justice, 189
. The Mayor and Aldermen of
Jersey City v, Herbert A.
Thorpe. From the Supreme
Court, 520
CASES REVERSED.
. Anna E. Sholes v, Leo Eisner et
al. From the Supreme Court,
151
. Max Miller v. The Mayor and
Council of the City of Hoboken
et al. From the Supreme Court,
167
. George A. Rounsaville r. The
Central Railroad of New Jersey.
From the Supreme Court. 87
N, J. L. 371, 176
. Ray Estate Corporation v. An-
drew J. Steelman. From the
Supreme Court, 184
. Nelson Stark et al. t?. Mark M.
Fagan. From the Supreme
Court. 89 2\r. J. L. 29, 187
. Ferber Construction Company r.
The Board of Education of the
Borough of Hasbrouck Heights.
From the Bergen County Cir-
cuit Court, 193
•
. Stephen Nevich r. The Delaware,
T^ackawanna and Western Rail-
road Company. On appeal of
Stephen Nevich. From the Su-
preme Court, 228
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744
INDEX.
[90 N. J. L.
Cases Reversed.
Gases Reversed.
8. James E. Crossley v, William H.
Connolly Company. Frpm the
Supreme Court. 89 iST. J, L, 55,
238
0. Oravia M. Bonfield v. J. Edward
Blackmore. From the Supreme
Court, 252
10. Erie Kailroad Company v.
Board of Public Utility Com-
missioners and Board of Chosen
Freeholder*- of the County of
Hudson. From the Supreme,
Court. 87 N. J. L, 438, 2711
11. Thomas Delker v. The Board of'
Chosen Freeholders of the
County of Atlantic et al. From
the Supreme Court, 473
12. Voris Fox v, Forty-Four Cigar
Company. From the Supreme
Court, 483
13. Attorney-General v. WiUiam
P. Verdon. From the Supreme
Court. 89 N, J. L, 16, 494
20. Max and Abe SwiUer, Partners,
&c., et al. V. Home Insurance
Company of New York. From
the Supreme Court, 587
21. Andrew J. Collins v. Central
Railroad Company of New Jer-
sey. From the Essex County
Circuit Court, t)U3
22. Mary F. K. Michael v, Harry
W. Minchln. From the Essex
County Circuit Court, 603
23. Parkview Building and Loan
Association of Newark v. Edwin
E. Rose. From the Supreme
Court, 614
I
'24. EMwin Betts v. Massachusetts
! Bonding and Insurance Com-
pany. From the Supreme Court,
632
25. Peter Breidt City Brewery
Company v. Fred Weber. From
the Supreme Court, 641
14. John RoRs v. Board of Chosenl 26. Richard H. Duff, Administra-
Freeholders of the County of'
Hudson. From the Supreme!
Court, 522
15. Township of Hamilton v. Mer-
oor County Traction Company
ot nl. From the Supreme Court.
as .V. J. L. 485, 531
tor, &c., V. Prudential Insurance
Company of America. From the
Supreme Court, 646
27. The Estate of John Brinsko v.
Lehigh Valley Railroad Com-
pany of New Jersey. From the
Supreme Court, 658
16. Vito Orlando v. F. Ferguson & Lo ^ -r /^ j /^ t^t i
s.n T?rnm fh^ Snr..nr«« P^„^ ^8.0. J. Gudc Company v. Newark
Son,
From the Supreme Court.
553
17. Security Trust Company, Ex-
ecutor, &c., 1?. Edward I. Ed-
wards. Comptroller. From the
Supreme Court. 89 N, J, L
396, 558
iK Bruce P. Kitchell v. James E.
Crofjsloy et al. From the Essex
County Circuit Court, 574
Sign Company et al.
Supreme Court,
From the
686
29. Harriet Nell et al. v. William
C. Godstrey. From the Bergen
County Circuit Court, 709
.^0. New York, Susquehanna and
Western Railroad Co. t'. Charles
.7. Newbaker. From the Su-
preme Court, 713
19. Security Trust Company, Ex-' 31. Wej^t Jersey Trust Company u.
ecutor, &c., v. Edward I. Ed-I Philadelphia and Reading Rail-
wards, Comptroller. From thel way Company. From the Su-
Supreme Court, 579il preme Court,. 730
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90.KJ.L.]
INDEX.
745
Cemeteries,
Commission Oovemment,
CEMETERIES.-
. It is not reasonable to assume
that the power conceded by the
legislature to cemetery associa-
tions, for the purpose of the pro-
tection, under proper manage-
ment, of the bodies of the dead,
is so comprehensive in scope as
to enable them to purchase
tracts of land, and to hold them
unimproved and undeveloped for
any purpose out of the taxable
assets of township, county and
state assessments. Fairview
Heights Cemetery Co, v. Fay,
427
. Where property, held by a cem-
etery association, presents no
indicia of actual use or of rea-
sonably contemplated use, within
the statutory purview, such prop-
erty should not be exempted
from taxation. Ih,
CERTIORARI.
A prosecutor of a writ of certiorari
is too late to be heard to com-
plain of alleged informalities and
irregularities in the procedure
of the adoption of a building
code ordinance twelve years
after its adoption, and under
which ordinance citizens of the
municipality, affected thereby,
have expended their means and
conformed their building opera-
tions to comply with its provi-
sions. Ninth 8t, Imp, Co, v,
Ocean City, 106
CIVIL SERVICE.
Plaintiff, who held a position in
the county jail under the pro-
visions of the Civil Service law,
having been dismissed by the
sheriff in violation of such pro-
visions, brought his suit for dam-
ages against the board of chosen
freeholders and was denied re-
covery upon the doctrine of
Stuhr V. Curran, 44 "M, J, L, 181.
Heldf that as the relation be-
tween plaintiff and defendant
was contractual in character, it
was error to apply to it a doc-
trine that applied only to those
who were part of a governmental
department, to wit, officers, and
not to those employed by such
department. Held, also, that the
relation of the parties bound the
defendant to the observance of
the pertinent provisions of the
Civil Service law, and that such
implied contract was broken by
the defendant when the sheriff
as its agent dismissed the plaint-
iff in violation of such pro-
visions. Ross V. Freeholders of
Hudson, 522
COLLATERAL INHERITANCE
TAX.
See Succession Tax.
COMMISSION GOVERNMENT.
1. The legislature did not intend by
the provisions for the initiative
in the Walsh act {Pamph, L,
1911, p, 462) to make it possible
to change fundamentally the
scheme of government with
power concentrated in the com-
missioners therein provided for,
and again scatter the powers
among different boards. Buohl
V. Beverly, 44
2. The act to establish an excise
department {Pamph, L, 1901, p,
239; Comp. Stat,, p. 2918) is
superseded by the Walsh act
(Pamph. L. 1911, p, 462) in
cities which adopt the latter.
U),
3. By the provisions of section 8
of Pamph, L, 1911, p, 471, com-
monly known as the "Walsh
act,** the adoption by any city
of the provisions of that act re-
sults in the confirming and vali-
dating of such local legislation
as the city governing body had
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INDEX.
[90 N. J. L.
Condemnation,
\}ontcmpt.
passed and wiiicfa is then in op-
eration in tiie monicipality.
Ninth 8t. Imp. Co, v. Ocean
' City, 106
See also Evidence, 1.
OFFICEB8, 1, 2.
CONDEMNATION.
1. Valuing land taken under con-
demnation, underlaid with stone,
the stone should not be valued
separately and apart from the
land, but it may be shown to
what extent the land is enhanced
in value by the stone. The stone
is a component part of the land.
Rosa V. ComWa Palisades Inter-
state Park, 461
2. It is not error to admit evidence
of prices paid by the condemning!
party for similar lands in the vi-|
cinity. 76.
S. In prder that the price paid for
land in the neighborhood of that
being condemned may be evi-
dential, the land must be shown
to be substantially similar. Ih.
4. The land is to be valued in the
condition in which it was on the
date of filing the petition and or-
der, fixing the time and place for
the condemnation proceedings.
Pamph. L, 1900, p. 81, § 6. lb.
See also Expert Witnesses, 1,
2,3.
CONFLICT OF LAWS.
. Where an accident happens in
another state and the injured
party sues for damages result-
ing from that accident in a court
of this state, and it is not shown
that in the situation presented
there could ,be no recovery as
matter of law in the state where
the injury happened, and there
is sufficient evidence to go to the
jury upon the question of dam-
ages having been sustained 1)y
the plaintiff, the UiP fori governs.
Fortein v. Del, Lack, d W, R. R,
Co,, 137
. Remedies are to be regulated and
pursued according to the lem fori,
the law of the place where the
action is instituted. Smith v.
Smith, 282
See also Covenants, 1.
OONSTIjrUTIONAL LAW.
The legislature cannot deprive a
man of his right to be indicted
by a grand jury in case a charge
of a crime at common law is
made against him by enacting
that his conduct shall make him
a disorderly person punishable
in a summary manner under the
Disorderly Persons act. State
V. Rodgers, 60
See also Cbiminal Law, 1, 2.
OccxjPATioN Tax.
CONTEMPT.
1. A proceeding in cofatempt, the
sole purpose of which is the
punishment of the alleged con-
temner, and the vindication of
the dignity and authority of the
court, is not reviewable by an
appellate tribunal, in the ab-
sence of legislative authority, ex-
cept for lack of jurisdiction in
the court in which the proceed-
ing is had. Atty.'Oen, v. Ver-
don, 494
2. Section 2 of An act providing
for the review of conclusions and
judgments for contempt of court"
{Pamph, L. 1884, p. 219; Comp,
Stat., p. 1736, 8 138), makes it
mandatory upon the Supreme
Court in all appeals taken there-
under to rehear the matter of
contempt upon which the con-
viction was founded, de novo,
both upon the law and upon thei
facts. fb.
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90 N. J. L.]
INDEX.
747
Vontraots,
Contracts.
3. A person who has been proceeded
against in a court of law in
this state, on a charge of con-
tempt, the sole purpose of the
proceeding being to punish the
alleged contemner and vindicate
the dignity and authority of the
court, is not, as a matter of
right, entitled to have the pro-
cedure .conducted by the submis-
sion of interrogatories. /6.
CONTRACTS.
1. The board of commissioners of a
municipality, relying upon the
statement of a bidder for a mu-
nicipal contract that he had no
connection with any other bid
der, awarded him a contract for
paving. It afterward appeared
that he was superintendent of
the plant of the only other bid-
der for the work. Held, that the
award of the contract was made
under a false representation, and
will therefore be set aside. Mil-
ler V. Hoboken, 167
2. The powers of an architect un-
der whose direction a building is
being erected, and the force and
effect of any certificate he may
give, are determined strictly by
the contract. Fcrher Const, Co.
V. Hashrouck Heights, 193
3. Where in a puit for compensa-
tion under a building contract
it appears that by the contract
the architect had power by his
certificate to determine conclu-
sively that the contract had been
completed, but had no power to
determine how much the con-
tractor upon completion was en-
titled to be paid, the mere writ-
ten request of the architect that
the owner pay a certain named
sum to the contractor on the
completion of certain substantial
items therein specified, is no bar.
to the owner's counter-claim for
damages for delay in completion.
Ih.i
.A resolution, adopted by the
board of directors of a traction
company, directing its officers to
execute, with a municipality, im-
mediately after the passage, by
the municipality, of a new ordi-
nance which would be less harm-
ful to the company's interest, an
agreement, already prepared (a
copy of which was set forth in
the resolution), providing for a
fixed rate of fare to be charged
on its lines, and in consequence
of which resolution the ordinance
in question was passed, consti-
tutes a binding and valid agree-
ment, notwithstanding that the
agreement in question was not
signed by the officers of the trac-
tion company as directed by the
resolution. Trenton rf Mercer
County Traction Corp, v. Tren^
ton, 378
. The benefit to the traction com-
pany of what was omitted from
the ordinance, in the way of
drastic provisions inimical to its
interests, was a sufficient consid-
eration for the agreement. Ih,
6. Whether the mere act of passing
the ordinance in pursuance of
the agreement would be a suffi-
cient consideration, in a legal
sense, qucere. Ih,
7. Where a bond refers to another
contract and is conditioned for
the performance of the specific
agreements set forth therein,
such contract, with all its stip-
ulations, limitations or restric-
tions, becomes a part of the bond
and the two should be read to-
gether and construed as a whole.
fitandard Gas Power Corp, v.
'Sew Eng. Cas. Co., 570
8. A bond given by a contractor
and his surety to the Passaic
valley sewerage commissioners,
j conditioned that it shall be void
if the contractor shall pay for
I all labor and materials furnished,
and shall perform all the obli-
gations of his contract for build-
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INDEX.
[90 N. J. L.
Contracts.
Corporations.
ing a sewer (by which contract]
he agreed to save harmless the:
commissioners from claims for
labor and materials) , is limited'
to an indemnity of the obligeej 11. The plaintiff in consideration
v. Camden and Phila. Soap Co.,
75 Id. 648, distinguished.
Kitohell V. Crossley, DY4
and is not made for the benefit
of persons who furnish materials
to the contractor, even though
the contract further provided
that the commissioners might
pay claims for labor and ma-
terials used in the work and call
upon the contractor to repay the
same, or might retain funds in
their hands, due or to become
due to the contractor, for that
purpose. Ih.
9. The statute {Comp. Stat., p.
4059, § 28) permitting a third
party not privy to a contract
and who has given no considera-
tion, to sue thereon, is limited to
those for whose benefit the con-
tract is made, and does not ex-
tend to third parties who in-
directly and incidentally would
be advantaged by its perform-
ance. Ih.
of the execution of an agreement
of indemnity to it by defendants,
executed a surety bond to the
town of Harrison, New York,
for the due performance of the
contracts of the defendant com-
pany, with the town. The in-
demnity agreement provided for
the payment of annual premiums
during the continuance of the
work, and the payment of inci-
dental expenses in case of suit
The only affirmative defence
I pleaded, was that the contracts
were completed before the ma-
turing of the annual premium
sued for. The proof showed
otherwise, and no contradiction
of the substantial allegations of
the plaintiff's loss being appar-
ent, the trial court directed a
verdict for the plaintiff. HeW,
upon review of the testimony,
that the action of the trial court
was not erroneous. Title Guar,
d Surety Co. v. Fusco Const.
Co., ' 630
10. Plaintiff, an architect, was em-
ployed to make plans and speci-
fications for a new building. A,
dispute having arisen respecting
the amount of his compensation,
the parties agreed in writingi
that he should be paid $1,500
for said plans and specifications]
and supervising the construction!
of the building, $750 of which |l. A subscription to the stock of
was payable upon the completion! a proposed corporation, to be
See also Municipal Corporations
(Powers, &c.), 1, 2.
Public Work.
CORPORATIONS.
of the plans and specifications,
$375 when the building was half
completed, and the remainder|
upon completion. The $750 was
paid upon the signing of the
agreement but the defendants
never proceeded to the construc-
tion of the building. Held, in
a suit by the architect to re-
organized under a specified name
and for certain designated pur-
poses, imposes no obligation upon
the subscriber to take stock in a
company afterward organized by
the same promoters under the
same corporate name, but for
radically different purposes.
CoHings v. Allen, 5
cover for his services, that the |
written contract was controlling ; 2. Under the supplement to the
as to the rate of compensation | act concerning corporations.
and that the amount of same was |
to be determined according to the !
rule laid down in Kehoe v. Ruth-
erford, 56 N. J. L. 23. Stephen^
approved March 23d, 1900
(Pamph. L., p. 316; Comp.
Stat., p. 1620, § 31a), no cor-
poration organized under, the
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90 X. J. L.]
INDEX.
749
Covenants,
CrimeB.
laws of this state can be dis-
solved unti^ all taxes levied
upon or assessed against the
corporation by the state shall
have been paid. The connection
of the words "levied" and "as-
sessed/* by the conjunctive "or,"
indicate , that two different acts
were meant, therefore, taxes
levied, although not yet assessed,
must be paid before the corpo-
ration can be dissolved. Amer-
ican Woolen Co. v. Edwards,
69
I
3. The annual corporation license
fee or corporation tax cannot be
said to be assessed until the'
state board has ascertained the
amount of the tax and certified
it to the comptroller, pursuant
to Comp. Stat.y p. 5291, pi 505.
76.
4. The corporation license fee, or
franchise tax, provided for in
Comp, Stat., p. 5288, pi. 504, is
called by the legislature an an- 1
nual license fee, which suggests |
a payment in advance. Under ,
the statute, the levy is completed |
and the year for which the tax |
is paid begins on the first Tues- '.
day in May, that being the date |
fixed for the return by the cor- 1
poration to the state board, ■
which latter body has merely to
calculate the amount of the tax j
based upon such return, ex-
cept where the corporation neg-,
lects or refuses to make a re- 1
turn. lb. o
I,"'
5. Upon the dissolution of a corpo-
ration, the secretary of state is
not required to issue a certifi-
cate of dissolution unless the 3.
certificate of the comptroller that
the state taxes have been paid
has been filed with him, pursu-
ant to the provisions of the act
of 1900 (Comp. Stat., p. 1620,
5 31a). /&. '
6. Whether a compnny, formed un-
der the General Corporation act
for general business, may exer- 1
cise the power and claim the
privileges expressly conferred by
exceptional legislation upon a
distinctive species of corpora-
tion, created for the purpose of
performing a quasi-public func-
tion, and existing specially for
the purpose therein prescribed,
quare. FainHew Heights Cem-
etery Co. V. Fapj 427
See' also Criminal Law, 3.
Evidence, 5, 6.
COVENANTS.
A judgment or decree entered
in the courts of the state of
Iowa, under proceedings to fore-
close a mortgage and for the
redemption of the land, by pay-
ing the amount due on a Judg-
ment, such decree and proceed-
ings are prima facie evidence of
the validity of the mortgage, of
the amount due thereon, of the
lands upon which the same were
a lien, of the extent of the lien,,
and of the right of redemption.
This is so, when such judgment
or decree is put in evidence, in a
suit brought in the New Jer-
sey courts, to recover damages
for a breach of the covenants
against encumbrances, con-
tained in deeds conveying the
lands covered by the mortgage
foreclosed. Smith v. Smith.
282
There is no statute of limitations
in New Jersey, in an action for
breach of a covenant against en-
cumbrances. 76.
Actual eviction is not necessary,
before an action will lie for the
breach of a covenant against
encumbrances. It is sufficient
that eviction may take place.
76.
CRIMES.
See Abobtjon. 1, 2, 3.
Receiving Stolen Goods.
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750
INDEX.
[90 N. J. L.
Criminal Law,
Criminal Procedure,
CRIMINAL LAW.
1. The question whether the offence
with which a man is charged
is a crime at common law, can-
not be made to depend on a mere
matter of nomenclature. It de-
pends on the real case presented.
State y. Rodgers, 60
2. One who, when "good and
drunk," drives a large automo-
bile on a public street of a city,
and through the front window of
a saloon, breaking the glass and
framework of the window, and
driving the front of his car to
the front of the bar, is guilty of
a public nuisance at common
law. Ih,
3. A corporation aggregate may be
held criminally for manslaughter.
State V. Lehigh Valley R. R.
Co,, 372
4. An indictment In the statutory
form charging a corporation
aggregate with manslaughter
will not be quashed for failure
to specify whether voluntary or
involuntary manslaughter is
meant. lb
5. It is no valid objection to an in-
dictment that the foreman of the
grand jury which found it was
at the time a candidate for the
office of freeholder, and, in his
canvass, had suggested that the
members of the existing board,
of whom the defendant was one,
were not to be trusted with the
management of the county gov-
ernment, when neither malice nor
ill-will is averred. State v. Pul-
«m, • 377
See also Abortion, 1.
Constitutional Law, 1.
Criminal Procedure, 5.
Impeachment, 1, 2.
TRL/kL, 1, 2.
CRIMINAL PROCEDURE.
1. An erroneous statement of law
by the prosecutor of the pleas in
arguing before the jury cannot
be made a ground for reversal
under section 136 of the Crimi-
nal Procedure act, where no ap-
plication is made to the court
to deal with the statement
State V. ^ish, 17
I, At common law, a bin of excep-
tions was not allowable in a
criminal case. Error was as-
signable only upon the record.
State V. Hart, 261
L The right of review for trial
errors, on bills of exceptions, in
criminal cases, is given by the
statute of this state, solely to
the defendant Ih.
\. A writ of error will not lie in
favor of the state, to review a
judgment of acquittal Ih.
i. Where an acquittal is had in a
court of competent jurisdiction,
having jurisdiction of the person
and the crime with which he
is charged, it is an acquittal
within the meaning of the provi-
sions of article 1, paragrapn 10,
of the state constitution, even
though such acquittal was the
product of trial errors. Ih.
L In order that a defendant may
have the benefit of section 136
of the Criminal Procedure act
(Comp. Stat., p. 1863), the
trial judge must, in addition to
the formal and ordinary return
to a writ of error, certify that
the proceedings transmitted by
him to the court of review com-
prise the entire record of the
proceedings had upon trial. AJid
where the defendant neglects to
obtain such a certificate, the re-
view is limited to alleged errors
arising on the face of the record
itself or upon bills of exceptions
duly taken. State v. Bop, 390
7. A lack of sufficient evidence to
make out the case charged in the
indictment is not a ground for
arresting judgment In order to
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INDEX.
751
Damage$,
DetoeM*
raise such a question there
should have been a request to
direct an acquittal or to charge
in conformity with the conten-
tion. Ih,
DAMAGES.
Where damages may be sustained
by the breach of a single stipu-
lation, and are uncertain in
amount, and not readily suscep-
tible of proof under the rules
of evidencci then, if the parties
have agreed upon a sum of
money for such breach and that
sum is not disproportionate to
the presumable loss, it may be
recovered as liquidated damages.
Ferher Cons, Co. v. Hashrouck
Heights, 193
See also Public Policy.
TniBEB, 2.
DECEIT.
The plaintiff was owner of some
real estate, which he was in-
duced^ to part* with, by the de-
fendant, in exchange for a bond
and mortgage for $3,000 which
it was represented to him was
made by a responsible business
man, who was owner of the
property. The fact turned out
to be, that the so-called owner
was a "dummy," who was paid
by defendant to represent him
self as owner, and to exercise
acts of ownership about the
property, as well as to execute
the bond and mortgage, which
was without consideration, and
valueless. In an action for de-
ceit, the jury having found for
the plaintiff, no errors of pro-
cedure or errors in the charge
of the court being apparent, the
judgment is affirmed. Martin v.
Baldwin, 241
DEDICATION.
A declaration, by the husband of;
the then owner of land, that ifl
he opened streets through it the
opening would conform co a cer-
tain map, lacks the essentials of
a legal dedication — first, because
it is ju>t made by the owner of
the locus, and secondly, because
at most it is but a promise or
agreement to dedicate in futuro,
N, Y., 8usq. d W, R. R. Co. v.
PuUio Utility Bd., 432
DENTISTRY.
1. Proceedings under the act of
1915 {Pamph. L., p. 261) for
illegal practice of dentistry are
essentially a civil suit, subject
to the procedure of the court in
which they are brought. The
defendant is entitled to jury trial
if demanded. Lowrie v. State
Bd. of Dentistry, 54
2. In a complaint under the act of
1915 {Pamph. L,, p. 261) for
illegal practice of dentistry, it is
enough to charge illegal prac-
tice in the language of the
statute without setting forth
specific instances, to aver that
the illegal practice was during a
named month without specifying
the days, and that it. was at de-
fendant's office in a named city
without further specifying the
place. lb.
See also Insurance, 5, 6.
DESCENT.
The testator devised to his wife
for life his real estate and after
her death to his three children,
each a distinct parcel spe-
cifically described, subject, among
others, to this proviso: "In
Case my Son Harry W. Mincbin
Should depart this life without
Issue His Share will go to my
Dauter Emma Jane Minchin ;"
Harry survived the life tenant
and Emma died during the life
tenancy, leaving a child. The
life tenant conveyed to Harry
all her interest in tiie lands de-
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[90N.J.L.
Disorderly House.
Disorderly Persons,
vised to him. Held, that Harry
having survived the life tenant
and the executory devisee,;
Emma, his estate in the land I
devised to him became absolute!
for two reasons — (a) because
the words "depart this life with-,
out issue" were properly refer-'
able to the death of the life ten-
ant and not to the devisee, ap-i
plying Paterson v. Madden^ 54 1
2Vr. J, Eq. 714; (6) that by the
death of the executory devisee,!
Emma, in the lifetime of Harry,
the gift over became impossible
of performance, and that the,
estate of Harry, the first taker, |
became absolute, applying Den
V. Schcnck, 8 N, J. L, 29, and;
Drummond's Executor v. Drum-
mond, 26 N, J, Eq, 234. MichaeV
V. Minchin, 603
DISCOVERT. I
See Orphans* Coubt, 1.
DISORDERLY HOUSE. i|
1. On a prosecution for keeping a .
disorderly house, evidence of acts
and conduct upon the part of
the defendant tending to show
that he was occupying the house |
and using it as his own, and ,
exercising the same control over i
it that men usually have over||
their own houses, is sufficient to i
authorize the jury to find that
he kept the house. State v.
Frank, 78
2. On a prosecution for keeping a
disorderly house, evidence that
the defendant exhibited at his
house a chart showing horses*
names, where running, and the
odds that he laid against them ;
that his patrons there present!
delivered to him the money which |
they bet, together with slips re-
cording their names, the horses*
names, and the odds; and thatl
when his patrons won the de-|
fendant paid thp winnings, is^
sufficient to justify the jury in
finding that betting upon horse I
racing was carried on, even
though there was no more defi-
nite proof that the races had
been actually run. lb.
3. On a prosecution for keeping a
disorderly house, testimony given
by detectives in the employ of
the state that bets on horse races
were made by them, and by
others in their presence, with
the defendant at his house, was
competent evidence, its weight
and credibility being for the jury
to determine. lb,
4. On a prosecution for keeping a
disorderly house, the state asked
a witness, "Do you know where
this defendant's place is?'*
Against the defendant's objec-
tion, the judge directed the wit-
ness to answer "yes or no." The
witness answered "Yes.** Then
without any further objecction
the state asked "Where?** and
the witness answered "800 Park
avenue, Hoboken,** and gave tes-
timony as to the presence, acts
and conduct of the defendant
there (no part of which, defend-
ant denied), from which the jury
could and did find that the de-
fendant kept the house. Held,
that even if the question objected
to was improper, it could not
have prejudiced the defendant in
maintaining his defence upon
the merits, and so should not
result in a reversal. lb,
I DISORDERLY PERSONS.
A conviction setting forth that the
defendant operated an automo-
bile on High or Main street in
the town of Mount Holly, town-
ship of Northampton, &c., while
under the influence of intoxi-
cating liquor, sufficiently shows
I a violation of the act of 1913
without finding that High or
Main street was a public street.
Curtis V. Joyce, 47
See also Constitution ax Law.
Criminal Law, 1, 2.
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UOX. J.L.]
INDEX.
r53
District CourtB.
Elections,
DISTRICT COURTS. n
1. Upon a trial before the District 1
Court without a jury, it was not |
error to deny the plaintiff's re- 1,
quest for a voluntary nonsuit:'
made after the court had an- 1
nounced that judgment was
given for the defendant. Cies-\
melewski v. Domalewskiy 34
I
2. A general demand for a jury
made two days before the time!
fixed for trial, whenever that'
may be, with proper notice to
the clerk, is 'sufficient. The de-
mand does not have to be for^
the return day or any particular i
day, but if given for a specific
date, which would normally bei
the day for trial, it is valid if
the required notice be served as
directed by the statute. Con-,
soUdatrd Has, <(:c., Co. v. Rlanda,
135
ELECTIONS.
. A petition for a recount, stating
that the petitioner lias reason
to believe that an error has been
made by various boards of elec-
tion sufficient to change the re-
sult of the election and that the
written return in one district
varied from the report in tigures,
is sufficient to properly invoke
the jurisdiction of the Supreme
Court to make an order for a
recount under section 151) of the
Election law. SegJie v. Acker-
man, 118
. The granting of an applicatiim
for a recount under section 159
of the Election law is not de-
pendent upon the final result as
declared by the board of county
canvassers, and may be made be-
fore such result is officially de-
termined, /h.
3. Where the defendant, in a Dis I
trict Court, demanded a trial by I
jury, and during the progress of t
the trial, the court, upon the
motion of the plaintiff, dismissed 1
the jury, and adjourned the case,
and upon the next day fixed for '
the trial under the objection of
the defendant proceeded to hear
the case without a jury, and
gave judgment for the plaintiff '
— Held, that the proceeding was'
irregular, and that the defend-
ant under the circumstances,
could not be deprived of his right
to a trial by jury. Crossley v. I
Connolly Co., £iiSi
See also Appeal and Error, 8. p
Mechanics' Lien.
Res Adjudicata, 1. I
EJECTMENT. '
By the statute (Comp. Stat., p."
2056, ^ l.T). in an action of||
ejectment for land occupied by, i>.
the defendant, a plea of not i
guilty admits such possession as
excludes the plaintiff. Rogers v.|
Warrington, 653,1
Vol. X(\ 48
. It is not necessary to the va-
lidity of a recount that the jus-
tice of the Supreme Court,
making the order, be actually
present and presiding at the re-
count. The statutory mandate
tliat the recount shall be under
the direction of the justice sim-
ply puts a recount under his
judicial control or direction,
which direction may be properly
exercised by the justice out of
the presence of the board by an
order, in writing, or verbally in
the presence of the board. lb.
. The power conferred by statute
upon a justice of the Supremo
Court to grant a recount to be
had under his direction is not
limited in its exercise by him in
his individual capacity as such
justice, but upon the judicial
office, irrespective of the indi-
vidual invested therewith. Ih.
The provision of the act of April
7th, 1914. commonly known as
the Preferential Voting act
(Pamph, L., p. 170) that "all
ballots shall be void which do
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INDEX.
[90 N. J. L.
Eminent Domain,
Evidence,
not contain first choice votes for
as many candidates as there are
offices to be filled/* is not sep-
arable from the other provisions
of the statute so that it may
be rejected and the residue of the
statute be permitted to stand;
hence, if such provision be un-
constitutional the act as a whole
fails and an election held under
its terms is incapable of con-
ferring a de jure title to a pri-
vate relator under section 4 of
the Quo Warranto act. Daly v.
Garven, 512
G. In quo warranto, when, a de-
feated candidate for an elective
office, in order to obtain a judi-
cial determination that he re-
ceived a plurality of the ballots
cast at such election, seeks a
decision as to the unconstitu-
tionality of the statute underl
which the election was held.j
which is fatql to his de jure
title to the office, the court, in
view of the futility of deciding!
the question, will decline to pass,
upon it. 76. 1
See also TowNSUiPS. i
EMINENT DOMAIN. j
In a proceeding for the taking of I
lands under the Eminent r)o-||«
main act. the omission as par-
ties of owners of land in whose
favor an easement of way exists
across the land to be taken,
will not entitle the general
owner to have the order for ap--
l)ointment of commissioners set I'
aside. Rowland v. Mercer Co.
Tract. Co., 82 |
ERROR. I
A judgment for appellant for nom-!'^-
inal damages, although erro-
neous, will not be reversed if he
was not entitled to any damages.
Bouquet v. Hackensack Water
Co., 203
F!ee also Criminat, Procedure, 4.
EVIDENCE.
. The admission of illegal testi-
mony, in cases tried by a special
tribunal, such as a city commis-
sion, will not have the effect to
invalidate the findings of that
tribunal so long as it appears
that there is competent testi-
mony in the case to support such
findings. Crane v. Jersey City,
109
. The president and general man-
ager of a corporation having
control of its books of account
and the direction of entries made
therein, claiming to have loaned
the corporation money, brought
suit to recover, and the corpo-
ration, under a new manage-
ment, set up payment. The
plaintiff's account in the ledger
as kept while plaintiff was in
control, showed a credit to
plaintiff for the amount of the
loan and a debit for a like sum,
the entries having been made by
plaintiff's agent by. his direction.
Held, that the ledger was .ad-
missible evidence of an admis-
sion by plaintiff that the loan
was satisfied, the entry made by
him being against interest. Reed
V. Atlantic City Suburban, dc.,
Co., . 231
While a party cannot impeach a
witness called by him. which
is done by showing by general
evidence that he is unworthy of
belief, he may, nevertheless, show
that such witness has made other
and different statements from
those to which he has testified.
That is contradicting, not im-
peaching, the witness. For v.
Forty-Four Cigar Co., 483
In a suit brought to recover
damages for property destroyed
by fire through the failure of the
defendant railroad to use rea-
sonable care to keep its right of
way in New York State dear of
combustible materials, a written
statement made by the defend-
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INDEX.
755
Executions,
ant's general manager (who was
charged with the duty of main
.tenance and care of such right
of way), to the public service
commission of New York (when
it was conducting a legally au-
thorized investigation of the fire)
to the effect that, at the time
of the fire, the defendant com-
pany had not cleared its right
of way of combustible materials,
was admissible in evidence
against the defendant company.
Chnsty v. N. r. Cent, d H, R.
R. R. Co., 544)
5. The general rule is that when a
corporation authorizes an attor-
ney to speak for it, the corpora-
tion may be confronted by testi-
mony as to what was said by
such attorney within the scope of
his authority. lb.
6. Where a railroad company had
authorized its attorney to act
and speak for it at a legally au-
thorized hearing by the public
service commission at which a
fire along the company's right of
way, and the company's connec-
tion therewith, was under in-
vestigation, evidence as to such
attorney's statements then and
there made with respect to com-
bustible matter on such right of|
way at the time of the fire, arei
admissible^ in evidence against
the company in a suit involving,
that issue, subject to the latter's;
right to disprove, rebut, or ex-
plain such statements. /&.
7. Parol evidence that a certain
person was foreman of the grand
jury and administered the oatn
to defendant as such foreman at
a session of the grand jury, is
competent on the trial of an in-
dictment for perjury before the
grand jury, as evidence that he
was in fact such foreman. State
V. Monetti. .582
See also Covenants, 1. ,
Disorderly House, 3, 4.1
I
Expert Witnesses.
EXECUTIONS.
Proceedings taken in District
Courts under the supplement of
1915, page 182, to the Execu-
tions act, by way of garnishing
a debt due the defendant in ex-
ecution, are reviewable properly
by certiorari and not by appeal.
Gordon v. Pannacif 392
EXECUTORS AND ADMINIS-
TRATORS.
In an action brought by an ad-
ministrator under the **Death
act" a motion to non pros., if
granted, is without costs against
the plaintiff. The case of Kin-
ney, Administrator, v. Central
Railroad Co., 34 N. J. L. 273,
followed. Ellis v. Penna. R. R.
Co., 349
See also Taxes and Assessments,
2, 3.
i
EXPERT WITNESSES.
'l. Who is an expert on the value of
I land, under our decisions, must
be left very much to the dis-
cretion of the trial judge; his
. decision is conclusive, unless
clearly shown to be erroneous in
I matter of law. Ross v. Comrs.
Palisade Interstate Park, 461
[2. The dominant circumstances
forming the qualification of ex-
pert witnesses as to land values
consist of the fact either that
they have themselves made sales
or purchases of other similar
lands in the neighborhood of the
land in question, within recent
periods, or that they have knowl-
edge of such sales by others.
76.
3. The mere fact that a witness
owns the land, but has no special
knowledge of values, does not
qualify as an expert so as to give
on opinion as to thp value of
the land. 76.
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INDEX.
[liOX.J.'L.
Federal Employers' Liability Act.
Fire and Police,
FKDKRAL EMPLOYERS' LIA
BILITY ACT.
1. The Federal Employers' Liabil-
ity act, within its scope, viz.,
interstate commerce, deals with
the same subject that is dealt
with by the New Jersey Work-
men's Compensation act under
which the duty of an employer
to make compensation to an em-
ploye for injuries arising out of
the employment may exist inde-
pendently of the negligence of
the employer ; whereas, the fed
eral statute makes such duty to
depend upon such negligence and
excludes the existence of such
duty in the absence of negli
gence. The federal act being
thus comprehensive, both of
those cases in which it excludes
liability and of those in which
it imposes it. ousts the Courts
of Common Pleas of this state of
jurisdiction under the New Jer-
sey Workmen's Compensation
act to award the compensation
to be paid by a carrier to its
employe for injuries received by
the latter while both were en-
gaged in interstate commerce.
Rounsaville v. Central R. R. Co.,
176
2. In an action under the Federal
Employers' Liability act, it was
open to the jury to infer from
the evidence that the plaintifTs
intestate was engaged in re-
moving snow from the tracks,
both interstate and intrastate,
of a railway ; that the work had
been only temporarily sus-
pended ; that the men were told
by the boss to go in a covered
car as it was raining and freez-
ing at the time ; that to do so.
they walked along the tracks be-
cause they couldn't go other-
- wise, and decedent was struck
and killed by a fast passenger,
train considerably behind time;
that there was a failure to warn
him that the passenger train was
behind time and might be ex-
pected. Held, that it was for
the jury to say whether the de-
cedent was engaged in interstate
commerce, whether there was
negligence on the part of the
railway company, and whether
the decedent had assumed the
risk. Armbrecht v. Z)e/., Lack,
d W. R. R. Co., 529
Hec also Workmen's Compensa-
tion, 13.
FERRIES.
See Negligence, 2.
FIREMEN'S RELIEF ASSO-
CIATIONS.
See Insubance, 1.
FIRE AND POLICE.
The statute of 1911, entitled "An
act to authorize any incorpo-
rated town in this state to pur-
chase fire engines, or other fire
apparatus, equipment and appli-
ances, for protection against fire,
and to provide a method for
raising money for the payment
thereof," as amended March
28th, 1912 (Pamph. L.. p. 358),
was not intended to curtail the
powers conferred by the General
Town act {Pamph. L. 1895. p.
218) with reference to that sub-
ject, but was intended to enlarge
such powers, by permitting the
issue of bonds where the pur-
chase of fire apparatus was rea-
sonably necessary, but other
pressing expenditures made it in-
advisable to provide the moneys
necessary for the purchase out
of the annual tax levies. Bauer
V. West Hoboken, 1
FOOD AND DRUGS.
In an action to recover a penalty
for violating the provisions of
the Pure Food law (Pamph. L.
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Franchise Tax.
Garbage and Ashes.
1915, p. 665, § 1) commenced
in the small cause court, the
Court of Common Pleas of the
I'ounty in which the action is
brought has jurisdiction to hear
the case on appeal. Department
of Health of N. J. v. Monheit,
448
FUAXCHISK TAX.
1. The act of 1$KK; {Parnph. 7.., p.
644) requiring an annual fran-
chise tax upon the annual gross
receipts of any street railway!
corporation or upon such pro- 1
portion of such gross receipts
as the length of its line in this
state upon any street, highway, ^
road, lane or other public placeV
bears to the length of its whole
line, clearly requires that the
tax should be calculated upon
all gross receipts, irrespective of
whether or not they are receipts ^•
for transportation, and was in-
tended to provide a specific
scheme for the taxation of the
street railway corporations and
to diflFerentiate such corporations
from corporations liable to the
franchise tax under the act of
lOm. Pam^ph. L., p. 232. At-
lantic Coast Elec. Hy. Co. v.
f^tate Bd. T. cC- A.. 353
2. The annual license fee or fran-
chise tax. imposed upon corpo-
rations by Pnmph. L. 1906, p.
31. amending the supplement of
1901 iPamph. L., p. 31) to the
act of 1884 iPamph. L., p. 282),
is payable each year in advance,
the year beginning with the first
Tuesday of May. Old Dominion^
Copper Mining, dr., Co. v. State 2
Bd. T. rf .4.. 364 *
3. Owners of franchises whose bus-
iness is the sale of their com-||
modities or services, gas. electric
current, electric communication,,
steam or water, with whom the|
means of transportation — wires \
or pipes — are only the necessary
means of delivering their com-ii
modities, are not transportation I
companies under section 4 of. the
Voorhees Franchise Tax act of
1900 as amended {Comp. Stat.,,
p. 5299, pL 530), and, conse-
quently, are taxable under sec-
tion 5 of that act {Comp. Stat.,
p. 5299, pi. 531) on the whole
of their gross receipts, irre-
spective of whether such receipts
are from the sale of commodi-
ties or for its mere transporta-
tion. N. Y. d X. J. Water Co.
V. Hendrickson, 537
See also Corporations, 4.
FREE PASSES.
See Railroads, 1.
GARBAGE AND ASHES.
A town has the authority to pro-
vide for the collection and dis-
posal of ashes and garbage in
either of two ways, but not
otherwise — first, it may provide
for the doing of the work by the
town itself. If it adopts this
course, it must do so by ordi-
nance, with all of the formali-
ties necessary to enact a valid
ordinance; second, it may make
a contract with some one to do
the work. But where more than
$500 is to be pxpended, it has
no authority to make a valid
contract until it has first pub-
licly advertised for bids, and the
contract can then be awarded
only to the lowest responsible
bidder. Eckert v. West Orange,
545
Where a town has contracted for
the removal of ashes and gar-
bage involving an expenditure
of more than $500, without com-
plying with the provisions of
chapter 342 of the laws of 1912
{Pamph. L., p. 593) requiring
advertisement for bids and
award to the lowest responsible
bidder, there can be no recovery
on a quantum meruit for ser-
vices rendered under such ultra
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INDEX.
[90 N. J. L.
Grade Crossings,
Impeachment.
vires contract after the service
upon the contractor of the writ
of certiorari sued out to review
the validity of the contract. Ih.
GRADE CROSSINGS.
The declared object of the Fielder
Grade Grossing act (Pamph, L,
1913, p. 91) is to protect the
public from danger incident to
grade crossings. Consequently,
where it appears that the danger
incident to a proposed grade
crossing can be obviated by a
slight change in the line of.
streets, which can be made to
practically serve the public use
and convenience, the adoption of
such a plan would seem to pre-
sent a satisfactory substitute,
and the permission granted by
the Public Utility Commission
for the construction of such
grade crossing should be vacated.
.V. y., Susq. d W. R. R. Co, v.
Public Utility Bd., 432
See also Railroads, 3.
(.RAND JURY.
I
A witness who has been examined
before the grand jury is under
no legal obligation to refrain
from stating what was said to|
or by him while there. State v.,
Fish, 17|
tion of disease, and the mainte-
nance of public health, and this
may be done by the prevention
of nuisances as well as their
abatement. Fenton v. Atlantic
City, «U3
2. It is no answer to a prosecu-
tion for the violation of an ordi-
nance requiring that adjacent
buildings be connected with a
public sewer, that it discharges
in the same body of water as
the private sewer, and an offer
to prove that fact was properly
overruled. Ih,
. Anything injurious to public
health may be a nuisance, and it
is as much the duty of a board
of health to prevent a condition
likely to be detrimental to pub-
lic health, as to abate it after
its evil consequences appear. 76.
HIGHWAYS.
. In New Jersey, the fee in the
lands over which highways have
been laid, is in the abutting
owner. Rogers v. "Warrington,
653
. The owner of the fee, for the
soil in the highway, may main-
tain an action of ejectment
against any person wrongfully
taking or claiming exclusive pos-
session of the same. Ih,
I
HABEAS CORPUS.
See Practice, 4.
HEALTH.
^i It is not an unreasonable exer
cise of police power by a city to
require an abutting landowner to
connect his buildings with a
public sewer, notwithstanding he
may already have a private
sewer. The object of such a
health code !s the sanitary con-
dition of dwellings, the preven-
IMPEACHMENT.
. Courts of impeachment in the
United States perform no puni-
tive function. The single pur-
pose of their existence is the
protection of the people against
public servants who have be-
trayed their trust and have vio-
lated the law which they were
sworn to obey. State v. Jefer-
son, 607
. A judgment of conviction, in im-
peachment proceedings, under
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90 X. J. L.]
INDEX.
759
Infants,
article 6, section 3, of the state
constitution! is not a condition
precedent to the indictment of a
prosecutor of the pleas for mal-
feasance in office and punish-
ment thereunder. /&.
INDICTMENTS.
ISee Criminal Law, 4, 5.
INFANTS. I
1. The owner of an automobile lent'
it to an infant, by whose un-j
skillful driving the ear was in-i
jured. Held, that an action in'
tort against the infant will notj
lie. Brumhoclzl v. Brandes, 31]
2. The liability of infants for their
torts and their immunity from
liability for their contracts can-
cel each other in so far as the
gravamen of the tort and the
breach of the contract have ai
common basis of fact, the rule
being that an infant cannot be.
held liable for a tort that would'
in effect be the enforcement of
his liability on his contract. lb.' X
INHERITANCE TAX.
f^ee SuctESSiON Tax.
INITIATIVE.
tSVr Commission (Jovernment, 1.
Instructions to Juries,
granted ; and, therefore, the di-
rection of a verdict for the
plaintiff was erroneous. Sholes
V. EisncTy 151
:. The defendant haviui; appeared
at the term of the Common
Pleas Court, next after present-
ing his petition, and having been
then and there examined, and
the court, which could have
granted his discharge within
that term, held the matter under
advisement until a subsequent
term and then granted it, the
discharge, when so granted, oper-
ated to discharge the debtor's
sureties on the bond, because the
court could not lawfully have
granted the discharge unless it
were satisfied that the debtor's
conduct had been fair, upright
and just, which, perforce, must
include compliance with the
terms of the act which alone
would entitle the debtor to his
discharge, and which, the dis-
charge, necessanly presupposes
that there had been no breach of
the condition of the bond. Ih.
The discharge of an insolvent
debtor is a release by act of law
from performance of the condi-
tion of the bond. 76.
. It is a general rule that the dis-
charge of the principal works a
discharge of the sureties on a
bond. 76.
INSOLVENT DEBTORS.
1. Becaus** the plaintiff did not pro-
duce affirmative proof that his,
judgment debtor, who petitioned
for discharge under the Insolvent
Debtors' act. did not appear in
person at every subsequent
court until discharged, the mo-
tic^n to nonsuit should have been
irrniTtrd, find failing that — this
lack of pvidonce not having been
supplied in the further progress
of the trinl — i\\o motion to di-
rect a verdift should have been
INSTRUCTIONS TO .TCRIES.
1. An excerpt from instructions to
a jury up<m which error is as-
signed must be read in connec-
tion with the context and if.
when taken together, no error
appears, the excerpt alone will
not support the assignment.
Shoefflpr v. PhilUpshurrj TTorse
Car R. R. Co., 235
2. The trial court in charging the
jury as to the amount of force
to be used in ejecting a passen-
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IxVDEX.
[90 N. J. L.
Insurance.
ger improperly on defendant's
car said, by way of illustration,
that if a passenger refused to
leave the car, "And he pushed
him off, that is all that would
be necessary." Held, that this
was not an instruction that de-
fendant might push a passenger
off the car regardless of conse-
quences, the words "Would be
necessary'* meaning, in the con-
nection used, that if the push
accomplished the ejection, that
was all the force defendant was
l)ermitted to use. In other
words, the defendant had used
all the force that was necessary
under the conditions stated. lb.
3. When a party asks for an in-
struction which is partly good
and partly bad, it is proper to
refuse it altogether. Christy v.
.V. y. Cent, d n. R. R. R. Co..
540
4. In a case where tne defendant!
was charged with negligence be-
cause of defective premises, an
instruction to a jury "That if
the defendant company had, at
any time, before the accident,
either knowledge or notice of a
dangerous condition of its prem-
ises, it would have been negli-
gence on the part of the com-
pany not to have remedied this,
c«»ndition,*' is erroneous, because
the defendant is entitled to a
reasonable time to inspect, dis-
cover and repair such defect.
"At any time before the acci-
dent" includes immediately prior.
CoUins V. Central R. R. Co.,
593
5. An erroneous instruction is not
cured by a subsequent correct
one. unless the illegal one is
withdrawn. 76.
INSURANCE.
1. The act of 1885. requiring the
payment of a percentage on pre- \
mi urns received by foreign fire
Insurance.
insurance companies for the bene-
fit of firemen's relief associa-
tions, xioes not authorize the
Court of Common Pleas to im-
pose the penalty or forfeiture
therein provided for, or to enter
a judgment for damages by sum-
mary proceedings. Van Roden
V. Strauss, 64
. It is competent, for a reinsuring
company to agree to be directly
liable, to a policy holder, by the
terms of the reinsurance agree-
ment. In this case, the defend-
ant company became directly
liable to the plaintiff. A com-
plaint, with the reinsurance
agreement attached and made a
part thereof, which alleges that
the defendant company assumes
all liabilities, &c., is sufficient.
^feyer v. National Surety Co.,
126
. The endorsement by an insurer
on a fire insurance policy, of
consent to change of ownership
in the property insured, without
more, is not to be construed as
an agreement by the company to
become liable to the new owner
for a loss occurring after the
ownership actually changed but
before the consent was given.
Swiller v. Home Ins. Co., 587
. An insurance company, by its
policy, contracted to pay the as-
sured a weekly indemnity so long
as he should be totally disabled
and wholly and continuously
prevented from performing any
and every kind of business re-
lating to his occupation. The
business of the assured was that
of a traveling salesman, which
required a constant use of his
feet, and during the term of the
policy he was afflicted with a
foot ailment which entirely pre-
vented him from traveHn*? and
soliciting busineps. although dur-
ing part of the term for which
he claimed indemnity he was
able to go to the office of his
employer and conduct some bus-
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DO X. J. L.]
INDEX.
701
Insurance.
Intoxicating Liquors.
iness by writing letters and the
use of the telephone. The trial
court instructed the jury that
the reasonable construction to be
put upon the language used "was,
ut>t that he must be so disabled
as to prevent him from doing
anything whatsoever pertaining
to his occupation, but that if he
be so disabled as to prevent him
from doing any and every kind
of business pertaining to his
occupation, he was entitled to
recover. Held, that such an in-
struction was not error. Oross
v. Commercial Casualty Ins. Co.,
594
i>. The terms of a policy of insur-
ance, mad^ between the insur-
ance company and a dentist, to
protect the dentist "against loss
from the liability by law upon
the assured for damages on ac-
count of bodily injuries or death
suffered by any person or per-j
sons in consequenee of any al-^
leged error, or mistake or mal-j
practice occurring in the prac-
tice of the assured's profession,
as described in the application"!
and "against loss from the lia-'
bility imposed by law upon t^le!
assured for damages on account'
of bodily injuries or death suf-j
fered by any person in con8e-|
quence of any alleged error or
mistake or malpractice, by any
assistant of the assured while
acting under the assured's in
structions" contained, among
others, the provision that the
company shall not be liable un-
der the policy for any claim
against the assured or any as-
sistant arising from the viola-
tk)n of any law or ordinance on
the part of the assured. Held.
that the insurance company was
not liable, under the policy of
insurance, to the assured, for
damnges recovered against him
for the malpractice of an assist-
ant, who was held out. by the
nssured, to the public and to the
insurance company, as a licensed
dentist, whereas, in fact, the as-
sistant was, to the knowledge of
the assured, not licensed to prac-
tice and was acting in direct vio-
lation of the laws of the state
covering the practice and li-
censing of dentists. Betts v.
Mass. Bonding d Ins. Co., 632
6. Held, also, that under the terms
of the policy, in order for the
assured to recover, it must ap-
pear that the error, mistake or
malpractice of the assistant oc-
curred while acting under the
assured's instruction. 76.
7. A finding of fact by the District
Court, supported by evidence,
that, in the application for a
policy of life insurance, a state-
ment, that the insured was not
suffering from consumption was
a willful untruth, vitiates the
policy. This in effect is a find-
ing that the policy was procured
by fraud. Duff v. Prudential
Ins. Co.: 640
8. By statute Pamph. L. 1907, p.
133. § 1 (4) statements purport-
ing to be made by the insured
shall, in the absence of fraud, be
deemed representations and not
warranties. 76.
Ftee also Res Adjudicata, 1.
INTOX-ICATING LIQUORS.
Where a petition for a license to
keep an inn and tavern was in
the usual form, excepting a pro-
vision attached thereto reciting
that the locus in quo is "a picnic
or recreation ground of more
than one acre," and there was
evidence before the Court of
Common Pleas from which that
court might properly conclude
that the loeits in quo was of
such character, the license so
granted, although in the usual
form for the keeping of an inn
and tavern, is, in fact, a license
for "a picnic or recreation
ground comprising at least one
acre" under the exceptions men-
tioned in chapter 280 of the laws
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762
INDEX.
[90 X. J. L.
Jitney Busses.
Landlord and Tenant.
of 1913 iPampk. L., p. 574),
which is intended to limit the
granting of licenses for inns and
taverns according to a basis of
five hundred of population- to one
inn or tavern. Deck v. Bell^ 96
JITNEY BUSSES.
The act of 1916 {Pamph. L., p.
283), requiring the owner of
jitney busses to comply with cer-
tain legislative regulations, and.
to pay a specified tax into the.
treasury of the city in which'
they are operated, imposes a
state wide policy of regulation)
upon all subordinate governing
bodies, in the use and regulation
of such a method of transporta-i
tion, but it contains nothing in
its provisions to indicate that it.
was the legislative purpose to|
repeal the powers of regulation
theretofore conceded to munici-
palities by their respective char-
ters. Trtoin v. Atlantic Vity, 91)
JURISDICTION.
A defendant who desires to object
to the jurisdiction of a magis-
trate on the ground of bias,
should do so before the trial or
argument. Curtis v. J.oyce, 47
iSffp also Orphans' Court, 1.
JURIES.
^ee District Courts, 3.
JUSTICES' COURTS.
Ree Jurisdiction.
LACHES.
1. Where the justice and legality of
the claim of the widow of a
policeman, against a board of
police commissioners, for a pen-
sion, have been established sub-
sequent to an adverse ruling on
her claim, but which ruling was
made without giving her an op-
portunity to be beard, and the
result of which she was in Ig-
norance except for having
learned of it some time there-
after in the newspapers, and it
appearing that, after learning of
such adverse action, she had
made endeavors to have the mat-
ter reheard, the defendant can-
not invoke the equitable doc-
trine of estoppel or laches, based
upon its manifest improper dep-
rivation of the right of the
prosecutrix to an existing legal
claim, which, but for the initial
error in procedure; would have
been terminated in her favor.
McGurty v. Neioark, 103
. Tjaches under any circumstances
is a relative term and is in-
voked upon equitable considera-
tions to prevent injustice by un-
settling rights which have ac-
crued during an interval of ap-
parent repose, due to a claim-
ant's inexcusable inaction. 76.
LANDLORD AND TENANT.
.. When a party enters into pos-
session of premises which he has
contracted to purchase, which
contract he afterwards success-
fully repudiates on the ground
that the title is unmarketable,
and continues to occupy the
premises after tender and re-
fusal of the deed, he is liable to
the owner for the fair rental
value of the premises during the
period of occupation. Wheaton
V. Collins. 29
!. The plaintiff leased certain prem-
ises, in the city of Newark from
defendant, and having occupied
under the lease for a period, at-
tempted to induce the landlord
to accept a surrender of the
same, which the latter declined
to do. The plaintiff then aban-
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90 X. J. L.]
INDEX.
763
lAhel and 8lander,
Limitation of Actions,
doned the premises, and the land-
lord after an interim of two
months, during which the prem-
ises remained unoccupied, rented
them for a period of years, at an
increased rent. The plaintiff
basing his complaint on the doc-
trine of assumpsit, instituted
suit for the recovery of the ex-
cess rent from the landlord ; the
complaint on motion was stricken
out, as not alleging a valid
cause of action. Held, 'that
since the plaintiff had abandoned
the premises, he could claim no i
interest, either upon the theory
of privity of estate or privity of
contract, above the amount of
rent for which he was obligated
under his covenant. Held, fur- -"^
thcr, that since the doctrine of '
assumpsit is based upon nn im-
plied promise invoked by the
law, upon equitable considera-
tions, it can lend no support to
a claim by one who while he re-
pudiates his express covenant, **-
seeks at the same time to invoke
it as a basis for a claim to in-
cidental profit. Whitcomb v.
Brant, 245
with malfeasance of the gravest
character in his office, if untrue,
are libelous. State v. Fish, 17
. In a trial of an indictment for
libel, it is not permissible to in-
troduce testimon^L in support of
the truth of matters contained
in the alleged libelous article but
which are not referred to in the
indictment or made a ground of
charge against the defendant,
since, even if it be conceded
that the charges at which it is
directed be true, it can afford no
justification for the untruthful
statement which is made the
subject of the indictment. • Ih.
. A person who circulates a paper
containing an untruthful and
libelous statement is su|)ject to
punishment under indictment, no
matter what his. motives are or
what induces his action. lb.
, Whenever words clearly sound
to the disreputation of the
plaintiff they are defamatory on
their face and actionable per se.
^haw v. Bender, 147
3: Where a brewing company
agreed in Writing to let a saloon
property "at a monthly rent of
$100, payable in advance," and
the tenant agreed "to pay a
monthly rental for the premises
of $100 per month, payable in
advance,*' the tenancy thereby
created was a monthly tenancy,
notwithstanding that the tenant
made application annually, and
paid an annual license fee for the
sale of intoxicating liquors, to
the proper authorities, for sev-
eral years, the fact that the ten-
ant made such yearly applica-
tion for such license not having
the legal effect of changing the
terms of the letting. Breidt
Brewery Co. v. Weber, G41
LIBEL AND SLANDER.
1. Printed words circulated, charg-
ing a member of the grand jury
5. A suit lies for words actionable
per se without proof of special
damage. lb.
tSTcr also Grand Juries.
LICENSE.
f^ee Negligence. 3, 4.
LIFE ESTATE.
Siee Descent.
IMITATION OF ACTIONS.
The statute limiting the time with-
in which an- action for damages
for fire occasioned by sparks
from a locomotive engine shall
be brought, does not require the
prosecution of the action to be
brought to a finality within the
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IXDEX.
[90X.J.L.
Mandamus.
Municipal Corporations,
statutory period fixed for the
bringing of the suit. Martin v.
Lehigh Valley R. R. Co., 258
tiee also Ck)VENANTS, 2.
majJdamus.
1. A writ of mandamus will not
issue to enforce a contractual
obligation. In such case a pri-
vate^ party has a remedy by an
action for damages. McAllister
V. Atlantic City, 93
2. Objection to the legal sufficiency
of a plea to an alternative writ
of mandamus should be presented
by demurrer and not by motion
to strike out. The Practice act
of 1912 does not apply to plead-
ings resting on a prerogative
writ. 76.
See also Schools, 3.
Street Railways, 4, .5.
MASTER AND SERVANT.
1. Where the master provides his
servants with a method of doing
Ills work, which has a direct
bearing upon the safety of those
employed in such work, a duty
arises on the part of the master
to use reasonable care to pro-
vide a safe method, or at least
to avoid a dangerous method if
the exercise of reasonable care
would produce that result. Wil-
czynski v. Penna. R. R. Co., 178
•
2. The duty of a master to use rea
sonable care to provide a safe
method for his employes to do
his work, like the duty to use
reasonable care to provide a safe
phu'c of work, is one that the
master owes to his servants, and
hence is one for the breach of
which the master cannot escape
liabilit>' by entrusting the per-
formance of such duty to others,
be they managers, agents,
strangers, volunteers or fellow
servants. lb.
. The obligation of a master to use
reasonable care to provide a safe
method of work for his employes
cannot be avoided by ordering
them to work at an employment
in his interest but over which
he exercises no control. /6.
MAXIMS.
Damnum absque injuria, 624
Ratio legis est anima legis, 427
Volenti non fit injuria, 250
MECHANICS' LIENS.
In an action brought in a District
Court to enforce a mechanics*
lien claim, it is not necessary
that a return ddy be named in
the summons. The amendment
of the act relating to the en-
forcement of mechanics* lien
claims {Pamph. L. 1012, p. 470)
provides the re<iuired form to be
used in District as well as Cir-
cuit courts in cases brought un-
der that act, and it was error
for a District Court to dismiss
such a suit for wapj of a return
day in the summons. Booth cf
Bro. V. Qlasser, 91
MOTOR VEHICLES.
See Criminal Law. 2.
Disorderly Persons.
Negligence, 1, 6.
MUNICIPAL CORPORATIONS
[POWERS].
1. Where a bid for a municipal con-
tract is open to the world for
competition, and everyone has
an equal chance of success in
obtaining the award, the fact
that the successful bidder has no*
competition cannot operate to
deprive the municipality of itH
right to award the contract.
Bauer v. West Hoboken, 1
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90 X. J. L.]
INDEX.
705
Negotiable Instruments.
Negligence.
2. The fact that one particular bid-|
der is able to comply with the
specifications for municipal work
at less expense than other con-
cerns aflfords no ground for re-j
fusing to the municipality the
right to obtain the best material
or work that skill and ingenuity]
can produce. Ih.
3. A municipality has no right, byi
artificial drains, to divert sur-,
face water from the course itj
would otherwise take, and cast
it, in a body large enough to do
substantial iniury, on land
where, but for such artificial
drains, it would not go. Jerola-
man v. Belleville, 206
4. A municipal corporation may be
liable for work done and ma
terials furnished it, by an un
authorized agent, when the con-
tract for such supplies is one
that is within the scope of its
corporate powers. An agency
in such a case may, by implica-
tion, be created in fact, by the
conduct or acts of the parties,
and the contracts of such an
agent may, by like conduct* and
acts of the parties be, by impli-
cation, ratified by the munici
pality. Frank v. Bd. of Educa
tion, 273
5. The law will not permit a re-
covery on a quantum meruit in a
suit against a municipality
where an express contract would
be ultra vires because in viola-
tion of chapter 342 of the laws
of 1912. Pamph. L., p. 593.
Eckert v. West Orange, 545
Flee also Ordinances.
Public Work.
Railroads, 4.
NKGOTIABLE INSTRUMENTS.
Where a promissory note was given
in payment for a carload of
glass bought and delivered, the
fact that the contract for tho
glass also included four other
carloads which the payee of the
note failed to deliver, thereby
entailing a loss on the maker of
more than the amount of the
note, is no defence to a suit on
the note by a holder thereof for
value in due course where there
was no proof that such holder
knew of such contract when it
took the note. Under such cir-
cumstances it is immaterial that
such holder did know that the
payee **was losing money, was in
a bad way, and in danger of go-
ing into the hands of a receiver."
People*s National Bank v.
Cramer, 655
NEGLIGENCE.
. Where defendant, while driving
an automobile on a public high-
way, ran into plaintiffs decedent
because he was unable to see de-
cedent, owing to his temporary
blindness ciiused by the deflec-
tion of light shining on his wind-
shield, and there being no con-
tention that acts of the decedent
contributed to his injury, a ver-
dict* of the jury, on the trial for
damages, resulting in the exon-
eration of the defendant, cannot
be justified, and is set asido.
Uwmmond v. Morrison. 15
. Where it appears from the evi-
dence that the place where an
accident happened was a portion
of the ferry premises as actually
used by a ferry company, and
with respect to which, therefore,
it was the duty of the company
to exercise reasonable care to
make the premises safe for the
use of its passengers, it is not
a defense in an action fc»r dam-
ages resulting to a passenger
from want of repair that the
locus in quo was not within the
premises demised to the ferry
company. Fortcin v. Del.. Lark.
rf W. R. R. Co., 137
. The liability of an inviter is cir-
cumscribed by the invitation, and
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IN^DEX.
[90 X. J. L.
Negligence,
Negligence.
does not extend to persons in- J.
vited whose injuries are received ,
while using the premises without j
the limits of the invitation.
Bonfield v. Blackmore, 252+
I'
4. A mere passive acquiescence by
the owner of a building, or his
representative, in a certain use
of his property, imposes no obli- ,
gation upon him to keep it in
a safe condition for the benefit'
of the user. lb, i
r>. Where, at the trial of an action
against a railroad company for
damages occasioned by the emis-
sion of sparks from a locomotive, ,
there was testimony adduced by
the defendant comfi^ny, that the
spark arrester of the locomotive
which caused the fire ^as in
spected. and found in good order,
and there was also testimony
that the same engine had set an-
other fire, and an expert further
testified that where fires repeat-
edly occur through sparks es
cnping from an engine, it is evi-
dence that the engine is not in
proper order, the question of
negligence of the defendant com-
pany was properly submitted to
the jury. Martin v. Lehigh Val-
ley R, R. Co,, 258^
i\. A traffic regulation giving an au
tomobile driver the right of way
at a street intersection against
a vehicle approaching the cross-
ing at the same time from his
left, does not relieve him of the
•legal duty to use reasonable care
to avoid colliding with such ve-
hicle should its driver disregard
such right. In case of injury
to a passenger on the latter
vehicle resulting from such a
collision under circumstances in-
dicating a disregard of that legal
duty it becomes a jury question
whether under all the circum-
stances, including the traffic
regulation, there was negligence
on the part of the driver having
the right of way. Erwin v.
Traud, 289
The defendant owning a tract ot
land, upon which was located a
freight shed, filled in the land
so as to change its topography,
and the direction of the flow of
surface water therefrom. Snow
having accumulated on the re-
taining wall of the embankment
erected, the water flowed there-
from over the adjacent sidewalk
and froze thereon. The plaintiff
while walking on the sidewalk
slipped, fell and was injured. In
an action to recover for the in-
juries, the trial court charged
the jury that unless there was
affirmative proof in the case,
from which they could infer, that
the ice upon the sidewalk was
caused by melting snow, which
had been transported from an-
other locality, to the defendant's
premises, there could be no re-
covery ; and also that the mere
presence of piles of snow upon
defendant's wall presented no
proof that the snow had been
carried thereto from another
place by the defendant or its
agents — Held, that the instruc-
tions of the court in these par-
ticulars were correct. TAghtcap
Y. Lehigh Valley R, R. Co., 620
In a suit against a father and
son for damages sustained by
reason of the negligent operation,
by the son, of an automobile, the
admission of alleged hearsay tes-
timony that the ownership of
the automobile was in the son,
and not in the father, was harm-
less, where the jury found the
son **not guilty'* of negligence,
since, if the father was the
owner of the car and the son
was on his father's business, as
his agent or servant, at the time
of the infliction of the injury,
the father would not have in-
curred any legal responsibility
therefor unless it also appeared
that the injury was due to the
son's negligence and to which the
decedent did not in anywise
proximately contribute. Oromer
V. George, 644
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90 X. J. L.]
INDEX.
767
Nonsuit,
Officers.
See also Bridges, 1.
Building and Loan
Associations.
Infants, 1, 2.
Instructions to Juries,
4.
NEW TRIAL.
See Practice, 9, 10.
NONSUIT.
When a judge is trying a case with
a jury, his opinion as to the suffi-
ciency of the plaintiff's proofs,
whether communicated to coun-
sel or not, does not deprive the
plaintiff of his right to submit
to ji voluntary nonsuit at any
• time before the jury has retired
to consider its verdict or thel
judge has commenced to address
the jury for the purpose of di-
recting a verdict. M alone v. Erie]
R, R. Co.. 350
NUISANCE. !
1. In an action brought to recover
damages for a nuisance created
and maintained by the defendant
in the building of an embank-
ment along a public highway,
thereby interfering with plaint-
iff's full use of the highway, the
recovery by the plaintiff must be
confined to the damnge sustained
up to the time of the commence-
ment of the suit, for the reason
that since the creation of the
obstruction was an illegal act it
is not to be assumed that the
unlawful condition created was
a permanent one. no matter what'
the character of the obstruction!
might be. In such a case a prior,
recovery does not preclude a re-'
covery for damages sustained be-!
cause of the continuance of the
obstruction after the commence-
ment of the prior action. Dirk-
itinon V. f^el , Lack, d W. R, R
Co., 158
. The general rule that a person
suffering from a nuisance created
by another is under a duty to
take proper measures for the
lessening of the damages result-
ing therefrom, is not so tar
reaching in its effect as to relieve
the wrong doer from the respon-
sibility for the existence of such
conditions and to impose it upon
the innocent sufferer by requir-
ing him to assume that the
creator of the nuisance will con-
tinue indefinitely to maintain it
in violation of law, and, upon
this assumption, oblige him to
alter or add to the buildings
upon his property for the pur-
pose of adapting it to those con-
ditions. /&.
. In order that an individual may
maintain an action for a public
nuisance, he must prove that he
thereby suffers a particular,
direct and substantial injury.
Citing 19 E. R. C. 263. Bou-
quet V. Hackensack Water Co..
203
See also Railroads, 2.
OCCT'PATION TAX.
An ordinance, imposing an occu-
pation tax. that provides for ex-
emptions that have no rational
connection with such occupation,
is invalid. H addon Heights v.
Hunt. 35
OFFICERS.
1. The fact that a superior officer,
in whom the law has vested the
authority to try his jrabordinates
upon charges preferred against
them, has, on previous occasions,
reprimanded or disciplined them
for delinquencies in the perform-
ance of their duties, does not,
per se, in the absence of a stat-
utory mandate forbidding it,
disqualify such superior officer
from trying them on charges
duly preferred against them.
Crane v. Jersey City, 109
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[90 X. J. L.
Officers.
2. A director of public safety, in a|
city governed under the provi-
sions of the "Walsh act,*' has
the power, sitting alone, to try!
a member of the police depart-
ment on charges preferred
against him, where the board of
commissioners have, by resolu-
tion, and in accordance with the
provisions of Famph. L. 1915, p.\
494, amending secticm 4 of,
Famph. L. 1918, p. 836, con-!
ferred upon such director the|
judicial powers exercised by
him. Ih.
3. While a municipal office may be
abolished by the municipality for
economical or beneficial reasons,
and the incumbent deprived of
his office, although protected by
a tenure of office statute, that
end cannot be accomplished by a
removal from office contrary to
the terms of such a statute,
when such action leaves the office
in existence and only brings
about the creation of a vacancy
to which another may be ap
pointed. CahiU v. West Ho-
hoken, 398
4. Where the incumDent of the
office or position of health officer
of a city brought a writ of cer-
iiorari to set aside a decision of
the civil service commission, that
another person be reinstated to
the office or position, and the
court of first instance fully con-
sidered the relative rights of the
two persons, deciding that the
incumbent was i\ot entitled to
hold the office or iwsition but
that his opponent was, and dis-
missed the writ, and on appeal
the appellate court affirmed the
judgment of the lower court on
the ground that certiorari was
not the proper remedy, and that
the most the incumbent was en-
titled to was a mandamus to
the civil service commission to
certify his compensation ; in a
subsequent proceeding to deter-
mine the right to the same office,
in the same court, the doctrine
Orphans* Court.
of stare decisis will be applied,
and the right to the office or po-
sition will be detei-mintMl in ac-
cordance with the prior decision.
Browne v. Hagen, 423
*SVc also Boroughs, 1.
Quo Warranto.
ORDINANCES.
By virtue of the act of 1916
{Famph. L., p. 525), an ordi-
nance for the issue of munici-
pal bonds is conclusively pre-
sumed to have * been duly and
regularly passed and to comply
with the provisions of the
statutes; and its validity can-
not be questioned except in a
suit, action or proceeding com-
menced prior to the expiratioii
of the twenty days after the first
publication of the statement re-
quired by the act. Held, in an
action commenced after the ex-
piration of the twenty days, that
the ctmclusive presumption ap-
plies to a case where the munici-
pality had lawful authority to
make the improvement at the
time proposed for the issue of
the bonds although not at the
time of the first publication of
the ordinance and that the va-
lidity of the ordinance could not
be questioned. Dale v. Bayhead,
49
See also Railroads. 6, 7. 8.
ORPHANS' COURT.
1. The Orphans' Court has no juris-
diction to make an order for
discovery of assets, upon the
petition of an executor of a non-
resident decedent, when letters
testamentary have not been
issued out of such court. Traut
V. Paul 62
2. A decree of the Orphans* Court,
barring creditors who have failed
to present their claims within
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INDEX.
769
Oysters and Clams.
Practice.
the time limited by a previous
order of the court, bars a cred-|
itor from any right of action^
against the executor or adminis-
trator, founded upon a claim
that might have been presented |
within the time so limited. Ray
Estate Corp. v. Steelman, 184
OYSTERS AND CLAMS.
The act of 1846 {Pamph. L., p.\
181), entitled "An act for thej
preservation of dams and
oysters," and the proceedings
provided therein, has been su-
perseded by the act entitled "An
act to provide a uniform pro-
cedure for the enforcement of all
laws relating to the taking of
natural seed oysters and clams
and the protection of the natural
- seed oyster grounds of the state
and for the recovery of penalties
for the violation thereof*
iPamph. L. 1900, p. 425), which
provides, among other things,,
that all proceedings for the re-|
covery of penalties pursuant tO|
the provisions of the act shall
be entitled and run in the name!
of the State of New Jersey, with|
one of the oyster commissioners
or their assistants or a police
oflBcer or a constable, and that,
"no proceedings shall be insti-j
tuted by any person not a duly
commissioned oyster commis-|
sioner or their assistants or a|
police oflBcer or a constable of
this state." Held, that a judg-
ment rendered in a proceeding In-!
stituted by a private person un-j
der sections 7 and 9 of the act'
of 1846 must be set aside. Brad-
ford V. De LucOy 434
PARKS.
A city is not required to purchase
or condemn land for park pur-l
poses under Pamph. L. 1894, p.
146. and a writ of mandamdis
will not be allowed when it ap-
pears that the cost of pur-
chase or condemnation will re-
quire a bond issue beyond the
legal limit. McAllister v. At-
Untie City, 93
PENALTIES.
The legislature may authorize im-
prisonment for non-payment of
penalties imposed for offences
that involve injury to the public.
Loiorie v. State Board of Den-
tistry, 54
8ee also Dentistry, 1, 2.
POLICE PENSIONS.
8ee Laches, 1, 2.
POLICE POWER
See Health, 1.
POOR.
Section 15 of the act of 1911 for
the settlement and relief of the
poor {Pamph. L. 1911, p. 397)
prescribes two sets of conditions
under which the court may have
jurisdiction to compel certain
relatives to maintain any poor
person, namely: (1) upon com-
plaint of the overseer of the
poor where the overseer has
made an order for relief and
maintenance which the relatives
have failed to perform, and (2)
upon complaint by two free-
holders, where the indigent rela-
tive is supported at public ex-
pense and the overseer neglects
to make the order. Where na
order has been made by the over-
seer and there is no proof that
the indigent relative was sup-
ported at public expense, the
action must fail, since the case
is not within either class.
Stark V. Pagan, 187
PRACTICE.
1. The present practice requires
that a defendant's answer must
specifically state any defence
Vol. xc.
49
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[90 N. J. L.
Practice,
which, if not stated, would rliise
issues not arising out of the
complaint. t^haw v. Bender,
147
2. The Court of Errors and Ap-
peals cannot directly review the
order of a single justice of the
Supreme Court where he sits
as such and not as the court
itself. Van Hoogenstyn v. Del.,
Lack, d W. R. R. Co., 189
3. An appeal under section 25 of
the supplement of 1912 to the
Practice act cannot be effective
until final judgment. Ih.
i
4. The allowance by a justice of the
Supreme Court of a habeas cor-
pus cum causa to remove an
action from the Circuit Court or
Common Pleas, rests in his
sound discretion and his order
denying the writ is not appeal-
able, lb.
5. Whore a defendant in an action
in the Supreme Court, tried at
Circuit, elects to apply for and
obtain a rule to show cause why
a new trial shall not be granted,
and no points are expressly re-
served in the rule, he Is barred
from taking or prosecuting an
appeal except upon matters of
law arising upon the face of the
record. Ileinz v. Del., Lack. &
W. R. R. Co., 198
(5. On defendant's rule to show
cause why a verdict in the Su
preme Court should not be set
aside as excessive and a new
trial granted, that court has
])ower, in the exercise of its
discretion, to give the plaintiff
the option of accepting a reduced
verdict, or being put to a new
trial. This power exists not
only in actions based upon con-
tracts, but also in actions for
unliquidated damages for torts,
and when, in such a case, the
plaintiff has filed a remittitur of
so much as the court deemed ex-
cessive, and judgment has been
Practice.
I entered for the reduced verdict,
I this court will not review the
action taken by the Supreme
Court on the appeal of the party
I in whose favor the reduction was
made. lb.
7. Although the appellate court has
the power to dismiss an appeal
which is manifestly and palpa-
bly frivolous and without merit,
it will not, as a rule, dismiss on
' such ground, in the absence of a
I motion for that purpose, but will
affirm the judgment below. lb.
8. Rule 80 of the Supreme Court
declares that a frivolous or sham
plea may be stricken out, upon
proper affidavit in support of a
motion for that purpose, unless
the defendant by affidavit or
other proof shall show such facts
, as may be deemed, by the judge*
hearing the motion, sufficient to
' entitle him to defend. Under
I this rule the finding of the judge
must be taken as true until the
contrary appears, and this is so
when an appeal is taken from
such an order as permitted by
section 15 of the Practice act of
1912. Eisele d King v. Raphael
219
9. Under the Practice act (Pamph.
L. 1912, p. 377, § 32). and
rules 72 and 73 annexed, and
1 Supreme Court rules, 1913, Nos.
I 131, 132 and 219, a judge of the
j Circuit Court has power to
I grant a new trial because of in-
adequate damages awarded by
the verdict of a jury, and, under
rule No. 122, to impose terms that
if the defeated party pays a cer-
tain sum within a specified time,
the rule to show cause why a
new trial should not be granted
shall be discharged, otherwise
made absolute. Ftemble: that the
trial court could impose such
terms without the aid of statute
or rule of court. Oaffney v. Ill-
ingsworth, 490
10. The granting of a new trial rests
in the sound discretion of the
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IXDEX.
771
Privileged OommutUcations.
Public Utilities.
trial court, and, as it does not
settle definitively the rights of
the parties, it is not appealable.
lb,
PRACTICE ACT.
See Mandamus, 2.
Pbocbss, 4.
PRINCIPAL AND AGENT.
See Building and Loan Associa
TI0N8.
Municipal Corporations
I Powers 1, 4.
PRINCIPAL AND SURETY.
See Contracts, 11.
Insolvent Debtors, 4.
PRIVILEGED COMMUNICA-
TIONS.
1. A communication made by a
party to an attorney after tho
latter's employment has termi
nated, is not privileged, and the
attorney may be compelled to
disclose the information so ac-
quired. Fox V. Forty-Four Cigar
Co., 4a3
2. When a party writes a letter to
a member of the bar whose re-
lation as counsel to th« former|
had censed, if, in fact, there ever,
had beon such relationship be-j
tween them, which letter con-
tained statements tending to
prove a fact concerning the ques-
tion of master and servant,
which was pertinent to the issue,
the letter is not a privileged com-
munication and is competent
evidence against the party writ-
ing it. lb.
PROCESS.
1. A return that a summons was
served by leaving it at defend-
ant's "residence" is insufficient
Heilemann v. Clowney, 87
2. A summons is not lawfully
served by slipping a copy thereof
under the locked entrance door
of a building leading into a hall,
which is used to communicate
both with a business establish-
ment and a stairway to defend-
ant's suite of apartments, shut
off by its own entrance door. lb.
3. Whether such summons could be
lawfully served by delivery to
defendant's son, living with her
in said apartment and about to
enter the building from the
street, qu<rre. /i.
4. The abolition of a return day in
the summons brought about by
the Practice act of 1912, and the
requirement that summons shall
be served "forthwith*' {Pamph.
L. 1912, p. 468), have done away
with the practice of enlarging
the return day in cases when
prompt service cannot be made
or defective service has been
made ; but have not deprived
plaintiffs of the right to have
lawful service made on defend-
ants on the same principles that
led to an extension of the return
day under the former practice.
76.
PUBLIC POLICY.
I'pon grounds of public policy, one
who actively or passively par-
ticipates in violating a statute,
cannot recover damages for a
loss occasioned by such viola-
tion ; following and applying the
doctrine enunciated in Hetzel v.
WasBon Piston Ring Co., 89 2V.
J. L. 205. Betts v. Mass. Bond-
ing d Ins. Co., 632
PUBLIC UTILITIES.
1. Under an act concerning public
utilities (Pamph. L. 1911, p.
374, ch. 195, $ 38) the Supreme
C<)urt is given jurisdiction to re-
view the 'orders of the board of
public utility commissioners and
to set aside or affirm the orders
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[90 N. J. L.
Public WorJc,
Railroads.
in totOf but the Supreme Courtl
has no power under said act J
either to revise or modify an
order of said board. Erie R, R.
Co. V. Public Utility Board, 271
2. Where a traction company seeks
CO withdraw the sale of six
tickets for a quarter and charge
a straight five-cent fare, such
withdrawal is an increase in
rate sufficient to give the public
utility commission jurisdiction
to pass upon the same under sec-
tion 17, paragraph **h" of the
Public Utility act. Pamph. L.
1911, p. 380. Trenton rf Mercer
County Tract. Co. v. Trenton^ \
378
PUBLIC WORK. I
A municipality cannot lawfully re-|
ject the bid of the lowest bid-,
der, where the law requires the
awarding of a contract to the'
lowest responsible, bidder, upon,
the ground that he is not respon-'
sible, without giving him a hear-i
ing, and a finding that be is not
responsible rested upon proper
facts. Kelly v. Freeholders of
Essex, 411
See also Adyertisino, 1.
QUO WARRANTO.
One who complains that the in-
cumbent of an office holds the'
office illegally, can only succeed,
in a quo warranto proceeding to
oust the incumbent, by showing
that he himself has a legal title
thereto. Florey v. Lanning, 12
I
/?ec also Elections, 5, 6. j
RAILROADS. I
1. The provision of the General,
Railroad law (3 Comp. Stat., p.\
1910, $ 40), requiring that the
clerk of the Supreme Court be!
carried free of charge, is uncon-i
stitutional as to any railroad
company that is under no con-
tract obligation to perform that
duty. Penna. R. R. Co. v. Geb-
hardt, 36
. There is nothing in section 30 of
the Railroad act (Pamph. L.
1903, p. 661) which permits a
railroad company and a munici-
pality to agree that the former
shall erect and maintain a nuis-
ance in a public highway. Dick-
inson v. Del., Lack, d W. R. R.
Co., 158
. The provisions of both chapter
35 and chapter 96 of the laws
of 1909 are applicable to cases
at railroad grade crossings
which are provided with safety
gates, or other devices for the
warning of travelers. Kratz v.
Del., Lack, d W. R. R. Co., 210
. The right of a municipality to
contract with a raUroad company
for an alteration of street grades
to change a grade crossing, un-
der the provisions of section 30
of the General Railroad law
(Comp. Stat., p. 4234), is para-
mount to the provisions of the
Road act of 1858 {Comp. Stat.,
p. 4461) and supersedes it; and
in cases where a change of grade
in a street is made by a munici-
pality thereunder, the consent of
a majority of owners in interest,
fronting on the street, is not re-
quired. Therefore, where the
municipality proceeds under sec-
tion 30 of the General RaUroad
law, to change the grade of a
street, sections 70 and 73 of the
Road act are not applicable, and
any damage sustained by the
landowners, by reason of such
change, must be assessed as pro-
vided by the statute. Caruso v.
Montclair, 255
. The owner of a house, which was
set on fire by sparks emitted
from a locomotive engine of the
defendant company, received a
sum of money, from an insurance
company^, giving the latter a
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Railroads.
Release,
subro^tion receipt. He then'
brought an action against the!
railroad company for the entire
loss, which was settled by pay-
ment of the total loss, less a cer
tain sum, fixed as the amount
paid by the insurance company.
The insurance company subse-
quently brought an action
against the railroad company to
recover the amount paid by it
upon the insurance policy, and
the railroad company asked for
a nonsuit, because it appeared
that another action had been be-
gun and determined for the same
loss. Held, that the former ac-
tion and settlement thereof was
not a bar to the action by the
insurance company. Martin v.
Lehigh Valley R, R, Co., 258
6. The word "each" in an ordinance
of Jersey City, providing for
compensation to be paid the city,
for the use of land priyileges by
a railroad company, in connec-
tion with its three routes, de-
pending upon the amount of fare
for each single passenger service,!
means any route and not allj
three routes. Jersey City v.,
Hudson d Manhattan R. R. Co..\
($49
7. Where an ordinance by its termsl
does not constitute a contract!
with a railroad company, for the'
use of land privileges, but does,
provide an option, the railroad
company cannot retain the use
of the privileges and refuse to
pay the stipulated compensation.
76
8. A continued exercise of the priv-
ileges by a railroad XH>mpany,
under an ordinance accepted by
it, evinces an election to pay the|
stipulated compensation and
thereby creates a legal obliga-
tion to pay. The language of
the ordinance construed will be
found in the opinion. 75.
See also Limitation op Actions, 1.
NOGLIGENCB, 5.
RECEIVERS.
The defendants agreed in writing,
to produce from their respective
farms, tomatoes, of a given
quality, by a certain time, and
deliver same to the vendee, and
before the period of delivery
mentioned in the contract the
vendee was declared insolvent,
and receivers were appointed
therefor. In a suit by the re-
ceivers to collect a claim against
the defendants for fertilizer,
which clain^s were certain in
amounts and admittedly correct,
the defendants set up by way of
set-off their unliquidated de-
mands against the insolvent
company, for failure to receive
the tomatoes. Held, (1) that
being unliquidated the demands
were not capable of set-off under
the Corporation act, which ac-
cords the right of set-off only to
I claims arising- out of mutual
' dealings; (2) the defendants
I had not perfected their right to
I sue because of failure to deliver
or a tender of delivery; (3) the
I recognition of unliquidated
claims not entitled to any legal
I preference against the receivers,
' would accord to such claims a
preference in the distribution of
I the assets of the insolvent com-
pany, contrary to the provisions
I and spirit of the Insolvent act.
! More V. Richards, 626
I
RECEIVING STOLEN GOODS.
The receipt of money which has
been unlawfully or fraudulently
obtained from another person,
the receiver thereof knowing it
to have been so obtained, is
within the purview of section
166 of the Crimes act as
amended by Pamph. L. 1906, p.
431, relating to the receiving of
stolen goods. Btate v. Johnson,
21
RELEASE.
The presumption of payment or re-
lease arising from lapse of time
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[90 N. J. L.
Rea Adjudicata.
Sales.
is not necessarily a conclu8ive||
and absolute presumption. The
lapse of time gives rise to a con-
, elusive and absolute presumption|
only when not satisfactorily ac-
counted for or explained. But
when so accounted for or ex|
plained the delay still remains,
as one of the facts in the casei
upon which the ultimate ques-i
tion of payment or release is to
be determined in connection with
the other evidence. Christy v. I
A. r. Cent d Hudson R. R. Rj
Co., 540
RES ADJUDICATA. |
1. A suit in the District Court be-'
tween the same parties, to re!
cover a balance due under a con-|
tract, is not res adjudicatat in a
suit to recover for damages ex-|
ceeding $500, on a bond against
the surety of the contract.
Meyer v. National Surety Co..\
126
i
2. Where one party recovers judg-
ment against ^another and. the
defeated litigant commences suit
against his adversary for dam-
ages for an alleged conspiracy,!
and the procuring of false testi-.
mony to be given, in the very
suit in which the recovery was!
had. these matters, having been
available as defenses in the suit'
and on rule to show cause why
a new trial should not be'
granted, cannot be made the,
basis of recovery — the doctrine'
of res adjudirata being ap-
plicable. McMiehael v. Horay,'
142,
3. Wlien, in an action for damages.l
the iFundnmental question in-
volved was whether or not a
structure, maintained by the de-
fendant was a nuisance, and'
the question was resolved in|
favor of the plaintiff, the matter
is res judicata between the par-,
ties in all subsequent litigation'
arising out of the maintenancei
of the structure. Dickinson v. I
7>f/., Laclc. d W. R. R. Co.. 1.5.Sii
RIPARIAN OWNERS.
A riparian owner on a navigable
stream suffers no peculiar injury
as such because the stream has
been made less pleasant for boat-
ing, fishing, and bathing. The
injury to him is the same as
that to any other member of
the public, and for the reason
that his right qua riparian owner
is that of access, and not a
special right to use the stream
in any different manner than
others may use it. Bouquet v.
Hackensack Water Co., 203
ROADS. .
Chapter 122 of the laws of 1914
(Pamph. L., p. 203) is not a
grant of power to reconstruct
county roads in the broad sense
of the term ''reconstruction,"
but is limited to the "reconstruc-
tion contemplated under the pro-
visions of an act entitled 'An
act to provide for the permanent
improvement and maintenance
of public roads in this state (Re-
vision of 1912), approved April
15th, 1012.'" Pamph. L., p.
809. Godfrey v. Freeholders of
Atlantic, 517
See also Railroads, 4.
SALES.
Plaintiff relying on representations
of defendant's agent that its
product called "crude fish" was
a good fertilizer for his intended
crop of sweet com. gave an order
for "crude fish" and used what
he received in response to such
order in the belief that it was
"crude fish." The crop failed,
and he sued for damages. Held,
(a) that there was evidence of
imnlied warranty that the fer-
tilizer supplied was "crude fish ;"
(h) that on this point evidence
of the statements to plaintiff by
the general manager oJF defendant
was competent ; (c) that plaint-
iff's oral testimony as to the re-
ceipts and expenses of growing.
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Schools.
Statutes,
reaping and marketing his crop
was competent, whetlier or not
he kept books of account and
without their production on his
own case. See 89 N, J. L. 12.
Stuart V. Burlington County
Farmers' Emchangey 584
SCHOOLS.
1. Under section 10 of the School
law {Comp, Stat., p. 4727) the'
commissioner of education has
jurisdiction in controversies in-'
volving the removal, by a local
board, of a person from a posi-l
tion existing under the School |2. In the absence of an express in-
law. Schwarzrock v. Bd. of Ed
ucation of Bayonne, 370
SIDEWALKS.
See Taxes and Assessments, 11.
STATUTES.
1. Where words used in a statute
have been interpreted by the Su-
preme Court of the state more
than two years before the pass-
age of the act, the words so used
must be assumed to have been
used with the judicial definition
in mind. American Woolen Co.
V. Edwards y 69
tent to repeal, or of a legislative
intent to deal de novo with the
1 1 entire subject, evinced by the
existence of incongruous enact-
ments, demonstrating ex neces-
sitate the legislative purpose to
supersede existing legislation by
the later law, a repeal by impli-
cation is not favored. Irwin v.
Atlantic City. 09
2. The hearing by the commissioner!^
of education in any controversy i
or dispute of which he has ju-'
risdiction by virtue of the pro- 1
visions of section 10 of the,
School law, is a new hearing,
and he is not limited to a mere j
review of evidence taken before'
the local board. 76. i
(STATUTES OF NEW JERSEY
3. The action of the state board of CITED,
education in setting aside the re- 1
moval of a person from a posi-' Boroughs.
tion existing under the School
law, has the effect of a judg-|
ment, and a mandamus will issue
thereon in a proper case, com-
manding the payment of the sal-i
ary due such person. Such a'
case is presented when it appears;
that he has always been ready!
and willing to perform his du-,
ties and that there are funds in
hand applicable to the payment
of the amount due him. /&..
Pamph. L. 1897, p. 310, 214
Pamph L. 1000. p. 402, 214
Comp. Stat., p. 230, 13
Comp. Stat., p. 244, § 3.3, 3a3
Comp. Stat., p. 258, § 50, 395
Comp. Stat., p. 259, « 52, 214
Comp. Stat., p. 273. § 00. 50
Comp. Stat., p. 275, $ 92, ,395
SETOFF AND COUNTER-
CLAIM.
See Receivers.
SEWERS.
See TTealtii, 1, 2.
Ordinances.
Bridges.
Comp. Stat., p. ,304. § 0,
Cemeteries.
Pamph. L. 188.3. p. 12.3,
Pamph. L. 1889. p. 418.
Comp. Stat., p. .370.
Chancery.
Comp. Stat..
A 11.3fl,
p. 452. ^
019
429
429
428
500
ChoRon Freeholders.
J Pamph. L. 1909. p, 294, ,320
Pamph. L. 1912, p. 019. ,320
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Google
776
INDEX.
[90 N. J. L.
statutes of N. J.
Statutes of N. J.
Cities.
Pamph. L. 1897, p. 46, 107
Pamph. L. 1902, p. 284,
100, 549
Clams and 'Oysters.
Pamph. L. 1846, p. 181, 435
Pamph. L. 1900, p. 425, 437
Commission Government.
Pamph. L. 1911, p. 462,
45, 108. 512
Pamph. L. 1913, p. 836, §
4,
112
Pampfc. L. 1914, p. 253,
45
Pampfc. L. 1915, p. 494,
112
Pampfc. L. 1916, p. 216,
515
Contempt.
Comp. Stat., p. 1736, §
138,
494
Corporatiops.
Comp. Stat., p. 1620, pi
31a,
71
Comp. £f<a*., p. 1652, §
86,
628
Crimes.
\
Rev. of 1874, p. 253, §
147,
23
Pamph. L. 1898, p. a39,
§ 166,
23
Pampft. L. 1906, p. 431,
21
Criminal Procedure.
Pamph. L. 1848, p. 226,
265
Pamph. L. 1863, p. 311,
266
Comp. Stat., p. 1836. §
50,
23
Comp. Stat., p. 1863, §
136,
391
Dentistry.
Comp. Stat., p. 1911, $ 1,
636
Pamph. L. 1915, p. 261,
54
Disorderly Persons.
Pamph. L. 1913
, p. mi. 60
Distriot Courts.
Comp. Stat., p.
45.
Comp. Stat., p.
149,
Comn. Stat., p.
213.
1966, S
90
1999, §
239
2017. §
682
Ejectment.
Comp. Stat., p. 2056, f
13, 654
Elections.
Rev. Supp., p. 277, 296
Pamph. L. 1880, p. 229, 296
Gen. Stat., p. 1327, f 195, 296
Gen. Stat., p. 1367, § 369, 296
Pamph. L. 1898, p. 237, $
1^ 296
Pamph. L. 1909. p. 41, 296
Comp. Stat, p. 2073, §
159, 296
Pamp*. L. 1911, p. 317,
§ 58, 68
Pamph. L. 1912, p. 912, 300
Pamph. L. 1914, p. 170, 512
Eminent Domain.
Comp. Stat., p. 2181, 83
Comp. Stat., p. 2184, §
6, 469
Executions.
Pamph. L. 1915, p. 182, 392
Fire and Police.
Comp. Stat., p. 2446, pi.
459, 66
Pamph. L. 1915, p. 688, 400
Food and Drugs.
Pamph. L. 1901, p. 186,
§ 16, 449
Pamph. L. 1907. p. 485, 449
Comp. Stat., p. 2574, § 40, 449
Pamph. L. 1915, p. 665, 449
Garbage and Ashes.
Pamph. L. 1902, p. 200, 549
Grade Crossings.
Pamph. L. 1913, p. 91, 432
Habeas Corpus.
Comp. Stat., p. 2651, 190
Tnsolvept Debtors.
Comp. Stat., p. 2824, 153
Insurance.
Pamph. L. 1907, p. 133,
8 1 (4), 648
Intoxicating Liquors.
Pamph. L. 1913, p. 574,
97
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Google
90 N. J. L.]
INDEX.
777
Statutes of N. J.
Statutes of N. J.
Justices' Court.
!
Comp. Stat., p. 4122, {
Pamph, L. 1903, p. 261,
1
225,
48
§80,
449!
Pamph. L. 1912, p. 377,
Pamph. L. 1904, p. 72, §
§27,
30
80,
449
Pamph, L, 1912, p. 377, f
Comp. Stat., p. 2985, §
1
32,
490
16,
90
Pamph, L, 1912, p. 380, §
15,
220
Mechanics* Lien.
Pamph. L. 1912, p. 382, §
Pamph, L. 1912, p. 470,
25,
190
§ 23,
92
Pamph. L. 1912, p. 397,
rule 83,
199
Motor Vehicles.
1
Pamph. L. 1912, p. 468,
88
Pamph, L, 1916, p. 283,
99
Quo. Warranto.
Municipal Corporations.
Pamph. L, 1912, p. 593,
1
1
Comp. Stat., p. 4212, § 4,
Comp. Stat., p. 4214, f
12.
425
425
475,
547I
•■■*•»
Pamph. L. 1916, p. 525,
Pamph, L, 1916, p. 525,
i 2,
131
1
50
Public Utilities.
Pamph. L. 1911, p. 374, §
38,
271
Newspapers.
i
Pamph. L. 1911, p. 380, f
17 "h,**
379
Comp, Stat,, p, 3762,
475
Pamph.' L. 1911, p. 383, §
21,
534
Orphans* Court.
!
Comp. Stat,, p. 3834, $
60,
Comp, Stat., p. 3866, pi.
Railroads and Canals.
185
1 Rev. of 1874, p. 944, §
163,
257
139a,
03
1
1 Pamph. L. 1901, p. 116,
257
Poor.
2 3rcvi« 227,
Comp. Stat., p. 4023, §
30,
Pamph. L. 1911, p. 397,
§ 15,
1
187
187
187
i Pompfc. L. 1903, p. 674, §
i 58,
1 Comp. Stat., p. 4234, §
30, 257,
Comp. Stat., p. 4235, §
I 32,
Comp. Stat., p. 4240, §
544
344
534
40,
36
Parks.
Comp. Stat., p. 4246, §
Pamph. L. 1894, p. 146,
93
58,
260
Pamph. L. 1912, p. 265,
260
Practice.
Pamph. L. 1914, p. 358,
36
Pat. L., p. 245,
264
Pompfc. L. 1915, p. 98,
344
Po*. L., p. 258,
191
Pot ly., p. 364,
191
.Roads.
Pampfc. L. 1838, p. 61, {
Comp. Stat., p. 4461, §
8,
191
70,
256
/?w. Stat., p. 201, H 7.
192
\ Comp. Stat., p. 4461, §
Rev, Stat,, p. 941, f§ 86*
' 73,
256
90,
192
Pamph. L. 1912, p. 809,
Comp. Stat., p. 4059, $
1
1
1 320,
517
28,
572
, Pamph. L. 1914, p. 203,
517
Comp. Stat., p. 4067, {
52,
87
Sales of Goods.
Comp. Stat., p. 4112, §
1 Comp. Stat., p. 4650, §
198,
192
1 15,
586
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778
INDEX.
[90 N". J. L,
Statutes of N, J,
Statutes of N. J.
Schools.
Comp, 8tat„ p. 4727, §
10, 370
Comp. Stat,, p. 4740, 277
Statutes.
Comp. Stat., p. 4973, p/.
10, (2
Street Railways.
Comp. Stat., p. 5021,
84
Succession Tax.
Pamph. L. 1909, p. 325,
559, 707
Comp. Stat, p. 5301, § 3, 579
Pamph. L. 1914, p. 267,
559, 579, 707
Comp, Stat., p.
502,
Comp. Stat., p.
503,
Comp. Stat., p.
504,
Comp. Stat., p.
505,
Comp. Stat., p.
510,
Comp. Stat., p.
519,
Comp. Stat., p.
531,
Pamph. L. 1914,
Pamph. L. 1914,
Pamph. L. 1916,
5287, §
74
5287, I
73
5288, §
72
5291, §
71, 2W
5293, §
71
5295, §
73
5299, §
538
p. 141, 171
p. 353, 59
p. 25, 72
Taxes and Assessments.
Pamph. L. 1854, p. 429,
Pamph. L. 1863, p. 497,
Pamph. L. 1866, p. 1078,
Pamph. L. 1879, p. 298,
Pamph. L. 1884, p. 282,
Pamph. L. 1888, p. 372,
Pamph. L. 1900, p. 503,
Pamph. L. 1901, p. 31.
Pamph. L. 1902, p. 447,
Pamph. L. 1903, p. 232,
354
Pamph. L. 1903, p. 436, '
Pamph. L. 1903, p. 446,
Pamph. L. 1906, p. 31,
377,
Pamph. L. 1906, p. 644,
romp. Stat., p. 5075.
fowp. fiffo^, p. 5083, § 3,
Comp. Stat., p. 5084, §
4(1,
romp. /?faf., p. 5085, § 5,
romp. -Sffflt, p. 5107, §
28,
Comp. Stat., p. 5121, §
38,
Comp. Stat., p.
.39.
Comp. Stat, p.
50,
romp. 5ffo/.,
66,
romp. Stat.,
101,
Comp. 5?fof.,
5124, S
53
5134, §
p. 5141, §
p. 5171, 8
p. 5286,
408.
408
1641
417,
366
408,
538,
366'
417,
538!
409
417
I
728
354
408
163
692
53
52
58
, 58
I
416
I
417
i
213
366
Timber.
Pat. L., p. 49, 11
Perm. L., p. 700, 10
Comp. Stat, p. 5396, 9
L. 1895,
L. 1906,
L. 1907, ^ ,
Stat., p. 5427, §
Towns.
Pamph
Pamph.
Pamph,
Comp.
39,
Comp.
Comp.
375,
Comp. Stat., p. 5533, §
378,
Pamph
Pamph
Pamph
Stat., p.
Stat., p.
L. 1911,
L. 1912,
/.. 1914,
p. 218, 2
p. 324, 547
p. 409, 132
132
133
5518,
5532,
400
547
p. 531, 131
p. 358, 2
p. 91, 548
Townships.
Comp. Stat., p. 5582, §
27, 68
Comp. Stat., p. 5609, §
93, 346
Usury.
Comp. Stat., p. 5706, § 5, 41
Water Supply.
Pamph. L. 1907, p. 633, 471
Pamph. L. 1915. p. 426, 470
Pamph. L. 1916, p. 128, 471
Wills.
Comp. Stat, p. 5873, §
36, 608
Digitized by
Google
90 X-. J. L.]
IXDEX.
779
Street Railtcays.
Succession Tax,
Workmen's Compensation. |
Pamph, L, 1911, p. 134,
454, 553, 658i
Pamph, L, 1911, p, 134, i
!! 12, 444
Pamph. L. 1911, p. 134,
1 18, 06«1
Pamph, L. 1911, p. 143,
If 21, 114, 447!
Pamph, L, 1913, p. 230, 454,
Pampfc. />. 1913, p. 302, 1
422, 441, 553, 658,
Pamph, L. 1913, p. 302, 1
t 11, 554
Pamph. L. 1913, p. 302,
H 12, 444
Pamph. L. 1913, p. 302, '
If 20, 442, 666
STREET RAILWAYS.
1. TTnder the Street Railway act of
1893 (Camp. Stat., p. 5021). the
necessity for the taking of lands
exists when it appears that they
are required for a route lawfully
filed, and otherwise complying
with the statute. Rowland v.
Mercer County Traction Co., S2
2. The fact that the taking is in
pursuance of a general project,
involving with the creation of
new highways in a municipality
the removal of a railroad termi-
nal and trolley terminal. *so as
to connect detached sections of a
university campus, does not de-
prive the improvement of its
public character. 75.
3. The change of a trolley terminus
to a new site, and its connection
with the existing line at a con-
venient point, involves the build-
ing of a new line in a sense
cov^ed by sections 6 and 13 of
the Street Railway act of 1893.
lb.
4. In order to construct a street I
railway from terminus to termi-|l
nuR as authorized by the muni- 1
cipal ordinance, it was necessary
to cross a steam railroad ; the
consent of the railroad company
to the crossing could not be had
and efforts by the street railway
company to secure an order of
the Chancellor and the approval
of the public utility commission
were without result. Held, that
in the absence of a legal right to
cross the steam railroad a
mandamus should not be
awarded to compel the construc-
tion of the street railway. Ham-
ilton Ttcp. V. Mercer County
Traction Co., 531
. A municipal ordinance author-
ized the construction of a street
railroad from terminus to termi-
nus. Held, that a mandamus
should not be awarded to compel
its construction in two uncon-
nected sections, separated by a
steam railroad, which the street
railway had no legal right to
cross. lb.
See also Contract.s, 4, 5. 6.
Public UxiLrnEs, 2.
STOCKHOLDERS.
See Corporations, 1.
SrCCESSIOX TAX.
. The interest of a non-resident de-
ceased pledgor of stock of a New
Jersey corporation in such stock
is subject to the transfer tax im-
posed by the act of 1900 (Pamph.
L.s p. 325; Comp. Stat., p.
5301), as amended in 1014.
Pamph. L., p. 267. Secitrity
Trust Co. V. Edwards, 558
. Under section 3 of the Suc-
ces.sion Tax act of 1900 (Comp.
Stat., p. 5301) where there are
contingent or executory interests
dependent upon a power of ap-
pointment, the appraisal and
taxation thereof is suspended
until the exercise of the power.
Security Trust Co. v. Edwards,
579
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780
INDEX.
[90 N. J. L.
Taxes and Aaaeaamenis.
Tawes and Asaesamenia.
SUMMARY CONVICTION.
See Appeal and Ebbob, 7.
TAXES AND ASSESSMENTS.
1. A taxpayer, on May 2()th, owned
household goods, jewelry, prom-
issory notes, and deposits in
bank, and was assessed for per-
sonalty at the value of the house-
hold goods only; the county
board of taxation subsequently
assessed the jewelry, promissory
notes and deposits in bank as
omitted property. Held, that
this was correct, and that the
county board was not bound to
take the proceedings required in
the case of undervalued property.
FideUty Trust Co, v. Essex Bd.
of Taxation, 51
2. Where it is discovered after the
owner's death that personal
property has been omitted from
taxation, it is a suflScient com-
pliance with the statute to give
notice of the assessment of the
omitted property to the executor,
who is then the owner. 76.
3. Where an owner dies after May
20th, and property omitted is
subsequently assessed, it should
be assessed in the name of the
owner on May 20lh, not in the
name of his executor. 76.
4. Under section 39 of the Tax act
{Comp. Stat,, p. 5124), an as-
sessment for taxation cannot be
set aside for irregularity or de-
fect in form or illegality in
assessing, laying or levying the
tax, if, in fact, the person so
assessed is liable to taxation in
respect of the purpose for which
the tax is levied. Musconetcong
Iron Works v. Netcong, 58
5. An assessment of taxes cannot
be set aside on certiorari on the
ground that the aggregate amount
of money levied or assessed in
any taxing district for taxes is
greater than called for by the
law or resolution granting it.
Comp. Staty pp. 5121-5122. 76.
. A grant of exemption from taxa-
tion, even though made in re-
spect to some particular prop-
erty, is a personal privilege con-
ferred upon the grantee, and the
immunity thereby granted does
not pass to a purchaser of the
property, in the absence of an
indication by the legislature, so
clear and unmistakable as to
leave no doubt of its purpose
that it shall so pass. Mausoleum
Builders v. State Bd, of Taxes,
rfc, 163
. Neither the language nor the
history of section 3, paragraph
6. of the General Tax act of 1903
(Comp. Stat., p, 5083), which
exempts "graveyards not exceed-
ing ten acres of ground, ceme-
teries and buildings for cemetery
use erected thereon," suggests
that in passing it the legislature
intended to confer immunity
from taxation upon business cor-
porations that should see fit to
devote a part of their capital to
the erection of mausoleums for
purely commercial reasons and
in the hope of making a profit
out of the transaction. 76.
•
. A county board of taxation hav-
ing made an assessment of the
stock of a bank as required by
the act for the taxation of bank
stock {Pamph. L, 1914, p. 141).
a claim for a deduction there-
from of the value of certain
shares of stock in other banks
taxable elsewhere was properly
denied. Peoples Bank d Trust
Co. V. Passaic County Bd, of
Taxation, • 171
. Double taxation is avoided un^er
section 4 of the act not by ex-
cluding personal property of the
bank that is taxable elsewhere
from entering into the assessed
value of its stock, but by provid-
ing that such assessment shall
render such property immune
from further taxation to the ex-
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90N.J.L.]
INDEX.
781
Taxes and Aasesaments,
Taxes and Aaaesamenta,
tent that its value has entered
into such assessment. Ih.
10. The act of 1881 {Pamph. /.., p.
194; Comp, Stat., p. 5171)*, pro-
viding for reassessment under
direction of the Supreme Court
when the original assessment is
set aside on certiorari for defects
in the proceedings, is applicable
in all cases where a valid assess-
ment could have been made at
the time it was attempted, or
could be made at the time of
pronouncing judgment on a cer-
tiorari of the defective assess-
ment. Pkillipa V. Longport,
212
11. The interest, which a landowner
must pay on the amount of his
assessment for sidewalk improve-
ments, does not begin to run
until the amount of such assess-
ment has been definitely ascer-
tained. "Newark HomebuUders
Co. V. Bernards Ttop., 361
12. Where there is nothing that in;
a legal sense implies the per-i
manent devotion of a telephone
company's property to a public!
use, an assessment for improve-!
ments may be measured by the'
increase in the market value of|
the land, and it is not limited to
the benefit conferred on the com-,
pany for its use of the property.
It is only where land is acquired
under a legislative sanction that
implies its permanent devotion to
a public use that such land has,
in legal contemplation, no mar-'
ket value for any other purpose, |
and hence no market value to be
enhanced. .V. Y. Tel. Co. v.
yetrark, 362
13. An assessment by commission-
ers of a borough, which included
assessments for laying out and
opening a new street and the
improving of such street, as well
as the cost of sidewalk construc-
tion, will hie set aside, since
separate assessments of damages
or benefits for each improvement
should have been made under sec-
tion 33 of the Borough act.
Cotnp. Stat., p. 244. Whitaker
V. Dumont, 383
14. Tinder the act entitled "An act
for the assessment and collection
of taxes" (Pamph. L. 1903, p.
394) there is no limitation as to
the lien of a tax assessed on
lands against the owner, at least
so long as he continues to be the
owner, and a taxing district has,
in such case, the right to enforce
the payment of taxes assessed
against the owner although the
sale is not made, or attempted to •
be made, within two years of the
twentieth day of December of
the year for which the taxes are
assessed. Homer v. Margate
City, 406
15. Wl^ere lands have been sold by
the proper officer to make taxes
in arrears levied against land
under the provisions of section
53 of the act of 1903 (Comp.
Stat., p. 5134), it is lawful to
add to the taxes in arrears for
the current year, to make which
a sale has been ordered, all ar-
rears of taxes for which the land
has been sold and purchased by
the taxing district to the extent
necessary to pay the cost of re-
demption, whether the taxes ac-
crued prior to the date when the
act of 1903 went into eftect or
thereafter. Martin v. Wood-
bridge, 414
16. The fact that the township clerk
in furnishing the collector with
a statement of all taxes in ar-
rears erroneously included an in-
stallment of a sewer assessment
not yet due, will not vitiate the
sale when it appears that the
collector before making the sale
corrected the error by deducting
the installment and did not in-
clude it in the amount for which
the sale was made, nor will the
fact that the clerk included in
the amount certain costs not
properly chargeable make the
sale illegal if in fact the sum
for which the land was sold was
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782
INDEX.
[90 X. J. L.
Timber.
Townships.
not more, excluding the fees,
than the true amount due. /6.
17. Proof by the collector making
the sale that he posted adver-
tisements thereof in five of the
most public places of the taxing
district, is not overcome by the
fact that two of the places were
sometimes closed during business
hours. 76.
18. It is not necessary that the
notice of sale for unpaid taxes
• put up by the collector shall con-
tain a statement that the land
will be sold in fee if no one
should bid for a shorter term.
The statute makes it the duty
of the officer to make the sale in
fee if no one shall bid for a
shorter term, and it is not neces-
sary to advertise the terms of
the statute. • 76
19. The fundamental rule, pervad-
ing all exemptions from the gen-
eral tax burden of the state, is
that they are not favored by the
law unless the statute invoked
to support them expresses tho
legislative intention in clear and
unmistakable terms. Fairvieic
Heights Cemetery Co. v. Fay.
427
^ce also Franchise Tax.
TIMBER.
Under a proper construction of the
Timber act (Comp. Sitat.. p
5390), a plaintiff in an action
for a violation of the provisions
of that act is limited in his
recovery to the actual loss
. sustained by him if the wrongful
acts complained of have been
committed by the defendant
under an honest belief that he
was cutting timber upon his own
property, and the question of
whether or not defendant has
such belief is a question for the
determination of the jury. Cook
V. Bennett Gravel Co., 9
TOWNS.
1. The Town of West Hoboken
uncLer Pamph. L. 1911. p. 531,
ch. 250, has no authority to
build a town hall. 8yms v. West
Hoboken, 130
2. The words in that statute, "other
municipal purposes," under the
rule of construction known as
ejusdem generis, refers to build-
ings of the same class or of the
same general character as those
enumerated in the statute. 76.
See also Gabbage and Ashes,
1, 2.
TOWNSHIPS.
Section 27 of the Township act
(Comp. Stat., p. 5582) enacts
that at the annual election at
which appropriations for town-
ship purposes are voted upon, a
majority of all votes cast shall
be required to determine the
amount of money to be raised
for such purposes. At an elec-
tion held for that purpose, votes
were cast for two different
amounts for each specified ob-
ject, and neither amount, taken
by itself, had either a majority
of the voters who voted at the
election, or a majority of the
votes cast on the question of
appropriations. Held, that the
method of determining which
sum was adopted, is to add all
the affirmative and negative
votes on both propositions to find
the total vote, and, as no sum
received a majority, if only the •
affirmative votes for each propo-
sition are considered, yet. as it
is clear that all who voted for
the larger sum voted for the
smaller sum and something more,
the two affirmative votes should
be added together and' counted
for the smaller sum. Wood-
bridge V. Keys, 67
TRAFFIC.
See Negligence. 6.
Digitized by
Google
90 K J. L.]
IXDEX.
783
Trial,
Trial
TRIAL.
1. Where a defendant was indicted
for assault and battery, as well
as for abortion, upon the same
female, testimony as to an al-
leged rape committed upon the
female was clearly competent in
proving the former offence. State
V. RicciOy 25
2. Where the court erroneously
charged the jury as to the duty
to convict the defendant, if the
jury found by the weight of the
evidence that he did the thing
named in the statute under which
*he was indicted, and subsequent-
ly corrected the charge, so that
the jury were, in substance, told
that they could only convict in
ca»e the weight of the evidence
was so preponderating as to sat-
isfy them upon that point beyond
a reasonable doubt, the initial
error in the charge was thereby
cured. 76.
3. Although certain sentences in a
charge, taken alone, need some
amplification to render them ac-
curate, yet if such amplification
be given in the context, so that
the jury cannot be misled, there
is no error justifying reversal.
State V. Frank, 78
4. Upon trial of an indictment,
where the defendant fails to tes-
tify in his own behalf to deny
inculpatory facts, which if false
he must know to be so, it is
proper for the trial judge to call
attention to his failure to testify.
/&.
5. Conflicting testimony is always
for the jury. Shaw v. Bender,
147
6. Where in a suit for compensa-
tion under a building contract
which provides for the comple-
tion of the building at a specified
time, and that for every day's
delay in completion the contrac-
tor shall pay the owner $15 as
liquidated damages, and the con-
tract also provides that there
shall be no extension of time
unless ( 1 ) the delay is caused by
the neglect or default of the
owner, and unless (2) a written
claim for extension is presented
to the architect within forty-
eight hours after the occurrence
of the cause, and it appears on
trial that performance was de-
layed, then the burden of proving
1 that the delay was caused by the
owner and that such claim for
I an extension was made, is upon
I the contractor. Ferher Cons.
Co. V. Hashr'ouck Heights, 193
I
,7. Evidence legal for some purpose
I cannot be excluded because a
I jury may erroneously use it for
another purpose. The opposite
party's protection against this is
to ask for cautionary instruc-
' tion. Jerolaman v. Belleville,
206
\K On an issue of fact, tried by a
court and jury, where there is
testimony on both sides of a
controverted fact, it is not error
for the trial court to submit the
^ question at issue to the jury for
determination. Jackson v. Dilks,
280
9. In passing upon a motion for the
direction of a verdict, the court
cannot weigh the evidence, but is
' bound to concede to be true all
evidence which supports the
view of the party against whom
the motion is made, and to give
to him the benefit of all legiti-
mate inferences which are to be
drawn in his favor. Hoff v.
Public Service Ry. Co., 380
10. It is for the jury to say what
weight shall be given to the testi-
mony of a witness, having an op-
portunity to hear, standing at or
near the crossing where the acci-
dent occurred, and who testifies
that he did not hear the blowing
of a whistle or the ringing of a
bell, in a grade crossing accident
case. Materka v. Erie R. R. Co.,
457
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784
INDEX.
[90KJ.L.
Water Supply.
Workmen's Compensation,
11. It was not error in this case to
refuse to direct a verdict in favor
of the defendant on the ground
that there was no proof of negli-
gence on the part of the defend-
ant, or because the decedent was
guilty of contributory negligence.
They w^re both jury questions.
Holmes v» Pennsylvania Rail-
road Co., 74 N. J. L. 469 ; Weiss
V. Central Railroad Co., 76 Id.
348; Hoice v. Northern Rail-
road Co., 78 Id. 683, dis-
tinguished. /6.
See also Bbokers, 2.
Criminal Procedure, 1.
Instructions to Juries,
1, 2.
Negligence, 1.
USURY.
See Brokers, 1.
WARRANTY.
See Sales.
WATER SUPPLY.
Upon an application by the District
Board of Water-Supply Com-
missioners, under the act of 1916,
page 129, to the Board of Con-
servation and Development,
created by the act of 1915, page
426, for its approval and consent
to the diversion of water for an
additional water-supply to the
cities of Newark and Paterson.
the Board of Conservation and
Development has power to at-
tach reasonable terms and condi-
tions to its approval and consent,
which are germane -to the sub-
ject-matter. For such terms and
conditions, in this case, see this
opinion. Society, rfc, v. Bd.\
Conservation and Development.
469
WATER COURSES.
See Municipal Corporations
[Powers!, 3. I
WILLS.
See Descent.
WORDS AND PHRASES.
Any," 299
At," 89
Consignee," 76
"Each," 649
"Emergency," 278
"Every," 299
"Interest," 567
"Person," 374
'Property,"
567
WORKMEN'S COMPENSA-
TION.
. Where, in a suit brought under
the Workmen's Compensation
act, an award is made, based on
a finding of total disability, and
it appears that a year and a half
after the award the petitioner's
earning capacity had been fully
restored, it was erroneous for the
Court of Common Pleas to re-
fuse an order modifying the
original award, as provided by
section 21 of the act. Pamph. L.
1911, p. 143. Safety Insulated
Wire d Cable Co. v. Common
Pleas of Hudson, 114
. The basic principle of the Work-
men's Compensation act is in-
demnity. Therefore, when it ap-
pears, in a case where an award
has been made, that the in-
capacity upon which the award
was based had diminished or
ceased, it becomes the duty of
the court, upon proj)er applica-
tion, to interfere and grant
relief. lb.
3. The petitioner for comnensation
under our Workmen's Compensa-
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90 X. J. L.]
IXDEX.
re.)
Workmen a Compensation.
tion act, was using a barrel as
oue of the implements of his
service ; two strangers carried it
away a short distance and peti-
tioner was directed by his im-
mediate superior, one of the ser-
vants of his employer, to recover
it, and when petitioner ap-
proached the strangers they
threw the barrel down and as-
saulted him and he was severely!
injured. Heldj that the accident
arose out of and in the course of
his employment. Nevich v. De/.,!
Lack. <€ W. R. R. Co., 228|
4. In a case under the Workmen's'
(.Compensation act, where the'
facts are disputed", a finding in
favor of either party will not
be disturbed, if there be evidence
to support it, for a reviewing
court will not weigh the evidence,
the decision of the/ trial judge
being, under the statute, con
elusive if there be any . evidence
to support it. 76.
5. A claim for compensation under
the Workmen's Compensation
act is barred by the lapse of one
year from the date of the acci-
dent unless a petition is filed or
an agreement for compensation
payable under the act, is reached
within such time. Neither the
payment by the employer o^ the
physician's bill for attendance
during the first two weeks of
disability nor an agreement that
there shall be "no compensation"
can properly be called an agree-
ment such as may be reviewed
by the Court of Common Pleas,
under the authority of paragraph
21 of the act, on the ground that
the incapacity of the injured em-
ploye has subsequently increased
or diminished. Benjamin d
Johnes v. Brahhan, 3.i5
6. A case under the Workmen's
Compensation act, solemnly ad-
judicated on a petition and
agreed statement of facts, should
not be reopened for the purpose
of allowing a party to make a
new and distinct case. 75.
Vol. XV. 50
Workmen's Compensation.
7. An illegitimate child of the
daughter of an injured workman
is not a dependent of the daugh-
ter's father as defined in the
Workmen's Compensation act of
this state. Splitdorf Electrical
Co. V. King, 421
8. The illegitimate child of a de-
ceased workman's daughter is not
a grandchild of such workman
within the meaning of the
statute. 76.
1). Whether, in a proceeding under
the Workmen's- Compensation
act there was a prior agreement
between the parties to make com-
pensation, under the statute,
without resorting to the Court of
Common Pleas by petition, is a
mixed question of law and fact;
and where there was testimony
to the effect that the employer
agreed to and did pay the peti-
tioner periodically one-half of
his weekly wages for some time
after the accident, and also medi-
cal expenses incurred as a result
of the petitioner's injuries, the
trial judge was justified in find-
ing that there was such an agree-
ment. DuPont De yemours Co.
V. ^pocidio, 438
10. An agreement, made within a
year after an accident, between
any employer and employe, for
compensation due under the
Workmen's Compensation act,
for a less sum than that which
may be determined by the judge
of the Court of Common Pleas
to be due, is a sufficient agree-
ment under the act to relieve the
petitioner of the -duty of bring-
ing his action within one year or
otherwise be barred of his action.
76.
11. The amendment of 1913
(Pamph. L.y p. 302). amending
paragraph 12 of the Workmen's
Compensation act of 1911
(Pamph. L., p. 134). provides
that if the widow of a deceased
employe remarry during the
period covered by weekly pay-
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INDEX.
[90 X. J. L.
Workmen's Compensation,
Workmen's Compensation.
ments the right of the widow
"under this section shall cease."
Held, that a widow, whose hus-
band ^as killed prior to the
passage of the amendment of
1913, leaving her as his sole de-
pendent, acquired a vested right
to compensation during three
hundred weeks, which could not
be legally abridged by subsequent
legislation, and did notj, by herj
subsequent remarriage, forfeit
her right to recovet compensa-
tion payments for the full period
fixed by the statute. Hansen v.
Brann d Stewart Co,, 444
I
12. Though a widow remarried, she
did not thereby cease to be the
widow of the deceased husband..
76,
13. A crossing flagman, employed |
by a railroad company engaged;
in intei*state and intrastate com-,
merce, was struck and killed by,
the engine of a train engaged in,
interstate commerce. Held, that'
the Court of (^ommon Pleas of
New Jersey is ousted of jurisdic-',
tion to award compensation j
under the Xew Jersey Work-'
men's Compensation act. The
Federal Employers* Liability act.
is exclusive. Flynn v. iV. Y.,'
Susq. rf W. R. R. Co., 450^
14. Although the findings of thei
Court of Common Pleas as to the
facts in workmen's compensation'
cases are conclusive on appeal, ^
nevertheless the law arising upon
undisputed facts is a question of,
law for the court reviewing thei
decision to decide. ' /ft.
15. The supplement to the Work-,
men's Compensation act (Pamph.,
L. 1913, p. 230), which provides
*'that no person (t. c, employe of
the state, county or municipal-!
ity) receiving a salary greater
than $1,200 per year" shall be
compensated, under section 2 of
the original act (Pamph. L. 1911.
p. 134), applies only to employes
of the class therein mentioned
who were injured. It does not
apply to cases of death where
dependents of employes are af-
fected. Jersey City v. Borst,
454
1(5. The Workmen's Compensation
statute is a remedial law of
prime import; it should be lib-
erally and broadly construed.
Ih.
17. Under section 2 of the Work-
men's Compensation act {Pamph,
L. 1911, p. 134, as amended by
Pamph. //. 1913, p. 302), in the
case of a partial but permanent
loss of the- usefulness of both
hands, or both arms, or both
feet, or both legs, or both eyes,
or any two thereof, compensation
shall bear such relation to the
compensation therein provided
for total and permanent dis-
ability as the partial but per-
manent disabilities collectively
bear to total, and permanent dis-
ability. Orlando v. Ferguson d-
Son, 553
18. In a case under section 2 of the
Workmen's Compensation act
(Pamph. L. 1911. p. 134. as
amended by Pamph. L. 1913, p.
302), when the trial judge finds
that there was a fifty per cent,
loss of the usefulness of each
hand, and a ten per cent, loss of
the usefulness of one eye, he
should then find what percentage
of total and permanent dis-
ability the combination of fifty
per cent, loss of the usefulness
of two hands and ten per cent,
of one eye make, and should then
award as compensation that per-
centage of four hundred weeks.
It is not strictly a mathematical
problem. It is not to be solved
by adding up the fractional
parts, but upon the basis of the
percentage of total and per-
manent disability reasonably
found to be produced by the sev-
eral injuries considered collec-
tively and with due regard to
their cumulative effect. Jh.
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