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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 

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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. 



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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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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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*^*W7 , 



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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I 

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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i 



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 

J 



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 cr