Volume 63 — New Jersey Law Reports

<p>On demurrer to.two counts of the declaration.</p>

<p>A count in a declaration charging that plaintiffs, at the request of defendants, bargained for the purchase from defendants of a lot of land with a house upon it for a certain price, and that defendants, by falsely and fraudulently representing that the house was new, sold the premises to plaintiffs at the proposed price, coupled with allegations that the house was in fact old and its timbers rotten, whereby the plaintiffs were injured, exhibits a good cause of action for deceit.</p>

On contract. The defendants demur to the following declaration : Hudson county, ss. — New Jersey Supreme Court. As yet of the Term of February, A. D. eighteen hundred and ninety-eight.

<p>In tort. ■ On demurrer to plea.</p>

<p>If two suits be instituted at the same time on the same cause of action by the same plaintiff against the same defendant, but one of them is against the defendant in his personal capacity and the other is against him in an official capacity, so that the judgments in the suits would be capable of reaching different funds, a plea which shows this difference in the nature of the suits and sets up the pendency of the one in abatement of the other is bad.</p>

<p>1. On the consolidation of school districts under the act of May 25th, 1894 (Gen. Stat.', p. 3055), the bonds of the several districts become legal debts of the consolidated district.'</p> <p>2. Bonds issued by school districts under the acts of May 9th, 1884, and March 26th, 1886 (Gen. Stat., pp. 3038, 3042), are not mere mortgages, but are evidences of legal debts of the districts issuing them.</p> <p>3. Under the School act of April 6th, 1897 (Pamph. L., p. 154), when a new borough is formed and set off from a township and becomes a separate school district, and there is within the limits of the borough a school-house belonging to the board of education of the township, and for the erection of which there is an indebtedness for which said board is liable, the said board is not thereby discharged from its legal liability to pay such indebtedness, but on being compelled by suit and judgment at law to pay the same is entitled to collect the sum so paid from the board of education of the borough.</p> <p>4. Qucere. Whether on such indebtedness the creditor may maintain an action directly against the board of education of the borough.</p>

<p>Where the plaintiff claims that a nervous condition has resulted from an accident for which the defendant is responsible, the defendant may show the existence of a fact other than the accident, from which it may reasonably be inferred the nervous condition has sprung.</p>

<p>On error to the Middlesex Circuit.</p>

<p>On rule to show cause why a new trial should not be granted.</p>

<p>1. An employe assumes the risk of such dangers attending the prosecution of his work as he would discover by the exercise of ordinary care for his personal safety, and for hurt happening to him from those dangers the employer is not responsible.</p> <p>2. A charge which, by the fair import of its language, confines the obvious dangers, of which an employe assumes the risk, to the dangers arising from facts known to him, does not properly embody the rule above stated.</p>

<p>On rule to show cause why a new trial should not be granted.</p>

<p>On error to the Hudson Circuit.</p>

<p>1. Correct criminal pleading of a statutory offence does not require a' negative averment that the defendant is within an excepted class, unless the exception be in the enacting clause of the statute; if it be in a separate clause or in a subsequent statute, it is matter of defence.</p> <p>2. Upon the trial of an indictment for unlawfully commencing the practice of medicine, a witness testified to a relevant conversation with the defendant, in the course of which the defendant gave to him a bottle and a card upon which was written “a copy of the contents of the bottle.” Held, that these exhibits were properly admitted without proof that the contents of the bottle was a medicine.</p> <p>3. In the above context the word “prescription” is a common noun, and not a mere conclusion of the witness; it means a written medical recipe.</p>

<p>On certiorari to the Monmouth Quarter Sessions.</p>

<p>On error to the Essex Circuit.</p>

<p>Whether the defendant at the time he procured the registration of a certain person as a voter in the Fourth election district knew that such person was not entitled to vote in that district was properly left to the jury, being a permissible inference from the testimony.</p>

<p>On error to the Hudson Circuit Court.</p>

<p>The defendants gave to plaintiff a guarantee that if the latter would sell to the H. C. Co. coal to an amount not exceeding in value $900 they would be responsible for the coal so sold to the amount specified. Held, that a sale of coal made by the plaintiff to the H. C. Co. to an amount exceeding in value the stipulated sum discharged the defendants from liability on their guarantee.</p>

<p>On error to the Hudson Quarter Sessions.</p>

<p>On error to the Monmouth Common Pleas.</p>

<p>A by-law of the benevolent department of a fraternal society provided that if a member should fail to have its assessments in the hands of the secretary within thirty days from the date of call it should forfeit its right to receive benefits until all arrearages were paid, and that if thirty days should elapse before all arrearages were paid the member should be suspended from the department. Held, that a failure to pay assessments within thirty days after they became due did not of itself operate to suspend the defaulting member, but that affirmative action on the part of the society was required to produce that result. Held, further, that the right of an unsuspended member to receive benefits which accrued while it was in arrears in the payment of an assessment was not permanently forfeited by its remaining in default for thirty days, but was restored upon the payment by such member of all arrearages of assessment and the acceptance thereof by the society.</p>

<p>On certiorari.</p>

<p>- An honorably-discharged Union soldier who has been appointed by the board of chosen freeholders janitor of the county court-liouse for a term indefinite in its extent holds “a position” within the Veteran act of March Í4th, 1895 (Gen. Stát., p. 8702), from which lie cannot be removed except for cause.</p>

<p>1. Gen. Stat., p. 179, entitled “An act for the formation of borough governments,” which confers on the municipalities the power of eminent domain, sufficiently expresses its object in the title.</p> <p>2. Under Gen. Stat., p. 179, providing that the commissioners appointed to lay out and open a street in a borough shall be resident freeholders thereof, the fact that when appointed a commissioner owned a lot located about one hundred feet beyond the area of benefit as fixed by the commissioners does not disqualify him as not being disinterested so as to. render the assessment for the improvement invalid.</p> <p>3. Gen. Stat., p. 179, providing for the opening of streets in boroughs, provides that the excess of the expense above special benefits shall be paid out of the general road tax, which is assessable ag'ainst .the taxable property of the borough. Held, that where such excess was assessed against the taxable property, taxpayers were not injuriously affected in their property rights so as to entitle them to certiorari to set aside the assessment.</p> <p>4. The method of ascertaining the area of benefit of a local improvement which results in arbitrarily dividing some lots used or held as one plot of ground, so as to assess only the portion lying within the area, is illegal.</p> <p>5. Though a special assessment is erroneous, in that only portions of some lots, used as one plot of ground, are 'assessed, the assessment can only be set aside as to such lots and not to others, if the error did not result in imposing an improper assessment on the latter.</p> <p>B. The judgment of the commissioners as to the amount of benefits received by property-owners from a local improvement is conclusive unless clearly shown to be erroneous.</p>

On certiorari. This writ brings up an assessment of taxes for the year 1898 assessed by the city of Newark against the Howard Savings Institution. The Howard Savings Institution is a savings bank in the city of Newark, incorporated in 1857 by a special act. Pamph. L., p. 219. It has no capital stock.

<p>On petition for physical examination of plaintiff.</p>

On certiorari. The Cooper Hospital was incorporated under the name of the Camden Hospital by an act passed March 24th, 1875. Pamph. Tj., p. 170.

<p>The city having power under an act of the legislature to purchase land for the erection of public buildings thereon, and having no authority to sell any land so purchased, cannot, after having selected and purchased land in pursuance of such legislation, purchase other land not adjacent to the first purchase for the same purpose.</p>

<p>1. An application for tavern license with the requisite number of signers, duly certified, gives jurisdiction to the licensing tribunal, and the burden is upon those who object to it to show a fatal infirmity in it.</p> <p>2. If a petition for license is withdrawn by the applicant before action is taken upon it, a license may be granted upon a new petition subsequently presented.</p>

<p>On certiorari.</p>

<p>On habeas corpus and certiorari to bring up and review warrant for execution of prisoner.</p>

On application for summary determination of the character of certain property assessed by the local board of assessors of Jersey City, and also assessed by the state board of assessors for the year 1896.

<p>1. All ordinances in any of the cities, towns, boroughs, villages, townships and other municipalities in this state, regulating the use of bicycles and tricycles, must be in conformity with the provisions of an act of the legislature entitled “An act to regulate the use of bicycles, tricycles and similar vehicles, and to require uniformity of ordinances affecting the same,” approved March 3d, 1896. Pamph. L., p. 21. This statute was intended to create uniformity in such ordinances in all the municipalities of this state, and by its express provisions rendered all ordinances then in existence regulating the use of bicycles and tricycles inconsistent with its provisions of no force and effect whatever. It by implication repealed all such ordinances. This act also, by express enactment, created a uniform maximum penalty to be imposed for the violation of such ordinances as were adopted in accordance with its provisions.</p> <p>2. The exercise of the discretion to impose a lesser penalty than that fixed as the maximum was by the statute entrusted to the magistrate before whom proceedings were to be taken to punish offenders for the violation of ordinances.</p> <p>3. If a section of an ordinance which provides a penalty for the violation thereof is invalid, the whole of the ordinance becomes nugatory.</p> <p>4. The proceeding under an ordinance for the violation thereof authorized to be taken before a mayor, police justice, recorder, justice of the peace or other magistrate, is summary in its character, and must be in conformity with the statute and the conviction must set forth the offence with which the offender is charged, the names of the witnesses, sufficient of the evidence to show what offence was committed, of what offence there was a conviction and the judgment thereon. Without these essentials the conviction is a nullity. A mere transcript of the proceedings before the magistrate is not sufficient. There must be a formal conviction containing the essentials required by law.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On motion to change venue.</p>

<p>Oa motion to amend the summons and declaration.</p>

<p>On oertiorari.</p>

<p>On certiorari.</p>

<p>1. Where the return of surveyors of the highways laying out a public road is entirely at variance with the road applied for, it will be set aside.</p> <p>2. Boroughs have the exclusive power to lay out, regulate, &c., streets and highways within their respective districts, and any proceedings under the General Road act in the way of laying out public roads within such municipalities are invalid.</p>

<p>If the tenant in a proceeding for removal under the Landlord and Tenant . act appears, but does not demand proof of the jurisdictional facts, there is a failure to show cause why he should not be removed, and under the statute said facts were, prima faoie, established by the affidavit on file.</p>

On application for writs of certiorari. “An act to authorize boards of chosen freeholders to widen, straighten, grade and otherwise improve highways under their control, and to provide for the construction of street railroads thereon ” was approved June 13th, 1898. Pamph. L.,p. 461.

On application to set aside election of directors and officers. Upon a summary hearing, under section 42 of “An act concerning corporations (Revision of 1896)” {Pamph.L.,p. 277), the affidavits and proofs of the parties present the following pertinent facts: The A. A. Griffing Iron Company was organized February 6th, 1881, under the General Corporation act of 1875. Gen. Slat., p. 904.

<p>On certiorari.</p>

On motion to quash an indictment removed from the Camden Sessions by certiorari.

<p>On certiorari.</p> <p>At the charter election held in the city of Camden on April 13th, 1897, the statement of the result in the Third ward was that John S. Roberts had received five hundred' and fifty-nine votes, and that William Shafer had received five hundred and twenty-nine votes for member of the city council, and the board of canvassers declared Roberts elected. On April 29th, 1897, the justice of the Supreme Court holding the Camden Circuit made separate orders, as to each of the three voting precincts of the ward, nullifying such election and directing a new one to be held on May 18th, 1897. On May 19th, 1897, he allowed the present writs, removing such orders to the Supreme Court for review. The return of the county clerk includes not only the orders and the proceedings on which they were based, but also a statement of the board of canvassers, of the new election, showing twenty-one votes cast for Roberts and four hundred and eight votes for Shafer, and a certificate of said justice filed May 19th, 1897, declaring the result as the election of Shafer.</p>

<p>1. Where, by charter, a city council is made sole judge of the election returns and qualifications of its own members, its action, seating a member after investigation, is final and conclusive, although the council must organize annually, while membership may extend beyond the term of the council as then organized.</p> <p>2. If a resolution be offered in a city council to strike from the roll the name of a member seated by the preceding council, whose term has not expired, and to substitute that of another person in his stead, such resolution may be removed to this court by certiorari without awaiting action thereon by the council. •</p>

<p>counterbalancing a door covering a cellar stairway in a tenement-house became detached without the landlord’s knowledge. A girl of twelve years, daughter of a tenant, having full knowledge of this condition, undertook to raise the door and descend the stairway, and in doing so was injured. In a suit by her father to recover for expense and loss of service resulting from such injury — Held, that there could be no recovery.</p>

<p>Property of counties, townships, cities or boroughs, wherever situate, is, by the statute (Gen. Stat., p. 3320, pi. 200), exempt from taxation, notwithstanding that pecuniary profit is derived from its use.</p>

<p>On certiorari of an order for discovery in aid of execution, made by a Court of Common Pleas, upon a supposed judgment in a Court for the Trial of Small Causes docketed under the act of April 4th, 1892 (Gen. Stat., p. 1898), it is competent to inquire into the existence of the original judgment, which is essential to sustain the order.</p> <p>On certiorari to Middlesex Pleas.</p>

<p>1. The powers and duties of the board of education of the city of Camden under its act of incorporation (Pamph. L. 1854, p. 88) and amendment (let. 1874, p. 246) and those of its officers were not abrogated or diminished by the general act of March 10th, 1892, changing the method of selection of the commissioners of public instruction now forming such board and granting additional powers. Gen. Stat., p. 3096. The office of treasurer of such board still exists, with the powers and duties prescribed by law.</p> <p>2. Money derived in the city of Camden from a sale of bonds under the act of February 14th, 1898 (Pamph. L., p. 26), for erecting public •school buildings, is to be disbursed by the board of education of that ■city through its treasurer. Upon a proper request, showing necessity for the use of any part of such money, it is the duty of the city council to order a warrant on the city treasurer to pay the same to the treasurer of the board of education, and the duty of the city comptroller to sign such warrant.</p>

<p>On certiorari.</p>

<p>When it appears on final hearing that the prosecutor of a writ of certiorari has no interest in the controversy he incites, the writ will be dismissed.</p>

<p>1. The fair cost of a public improvement is not necessarily the measure of benefit to the property benefited thereby. If the cost exceeds the special benefits the public must bear the excess as a general benefit.</p> <p>2. A uniform assessment arbitrarily imposed, by the lot, on all property affected' in the same way by a public improvement will not be sustained if the advantages to the lots vary.</p> <p>3. An assessment on lands for a public improvement clearly proved to exceed the benefits thereby conferred on the property will be set aside on certiorari.</p> <p>4. Laches is not an absolute bar to relief against an assessment for a public improvement if there is legal provision for a re-assessment. The delay in this case, under all the circumstances, held not unreasonable.</p>

<p>On certiorari.</p>

<p>1. The city clerk of Newark is under no duty to furnish gratuitously to private persons certified copies of municipal proceedings.</p> <p>2. The demand by such clerk of a reasonable fee for certifying, for a purchaser of city bonds, the minutes of the city council relating to the bond-issue, promptly withdrawn upon an intimation that such certifying might fairly be considered city business, affords no evidence to sustain a charge of willful or corrupt misconduct in office.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 33 Vroom 586.</p>

<p>On error to the' Passaic Circuit Court.</p>

On error to the Supreme Court. The action was in tort for the recovery of damages for injury received by Beck, defendant in error, while in the employ of the company, plaintiff in error. In its defence the company proved the establishment by it and some of ‘its employes of a relief department, and put in evidence the regulations governing the same, the pertinent parts of which are as follows : “ 1.

<p>On error to the Supreme Court.</p>

<p>1. An offer made by one litigating party to the other is competent evidence for the latter, unless it is expressly stated that it is made without prejudice, or unless the party making it has been led to believe by the conduct of the adversary that a compromise may probably be effected.</p> <p>2. A tract of land was conveyed by deed, together with the free and common use of a basin adjoining it to load and unload at all times, without let or hindrance from the grantor, his heirs or assigns forever. This was an appurtenant easement and not a mere personal privilege or license. It was an easement apparent and continuous, and passed by the deed of this grantee to his grantee, to whom he conveyed, “ with the appurtenances,” without specifically giving the right to use the basin.</p> <p>3. Any unauthorized act by the owner of the servient tenement which tends to deprive the plaintiff of the benefit of the easement is actionable.</p>

<p>1. The city charter provided for compensation under the designation of damages for lands taken for the opening of streets. A street was laid out across the lands of the railroad company, crossing its tracks at grade. Held—</p> <p>1. That a railroad company on the laying of a highway over its tracks is entitled to compensation for the use of the locus in quo for a highway crossing; that such use does not deprive the company of the use of the premises for the passage of its trains, and that when the crossing is at grade the injury to the company in that use of its property is so slight as to justify nominal damages.</p> <p>2. That for an injury occasioned by necessary structural changes, such as the removal of buildings or changes in the tracks, compensation should be made which would be adequate under the circumstances.</p> <p>3. That for expenses incident to the erection and maintenance of gates, signboards, cattle-guards, and the like, including the expenses of a flagman, the company is not entitled to an allowance; such expenditures, being required either for the protection of the company in running its trains or of the public using the street at such crossings, are expenses incident to a compliance with police regulations, and, therefore, do not entitle the company to an allowance for them.</p> <p>4. That planking between the rails and maintaining it for a crossing is not a structural change for which compensation should be allowed.</p> <p>5. That in proceedings under the city charter, providing for the assessment of damages and benefits incident to the laying out of a street across the tracks of a railroad company, the company should not have been assessed for benefits.</p> <p>2. A judgment of the Supreme Court setting aside the award of commissioners making an assessment of damages for the opening of a street is a final judgment on which a writ of error will lie, although the court in setting aside the assessment directed that a new assessment should be made on different principles. Paterson and Newark Railroad Co. v. Newark, 32 Vroom 80, overruled.</p>

On error to the Supreme Court. Helen M. Devoe, as administratrix of Bertha L. Devoe, deceased, brought suit against the New York, Ontario and Western Railway Company. The deceased, a child nine years of age, was struck on the 22d day of September, 1897, by a train of the company while she was crossing the company’s railroad track near Schraalenburg, and so injured that she shortly afterwards died.

<p>On error to the Supreme Court.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court see 33 Vroom 107.</p>

<p>In taking possession and disposing of property seized for violation of “An act for the prevention of cruelty to animals,” persons designated in that act as “agents of the New Jersey Society for the Prevention of Cruelty to Animals,” do not proceed as representatives of the society, and the society is not responsible for their conduct, in the absence of any actual directions or interference by the society.</p>

<p>'The defendants were induced to sign their names to a printed form of contract for the purchase of a book, by a fraudulent representation made to one defendant that he was writing his name only to show how it was spelled, and to the other defendant that he was signing his name only as an autograph. Held, that they were not bound, even though they were negligent in failing to ascertain what was printed on the papers which they signed.</p>

<p>. 1. The tribunal consisting of three justices of the Supreme Court, assigned by the Chief Justice to determine whether railroad property has been lawfully assessed by the local authorities under the two hundred and thirty-ninth section of the Tax act, is, pro haa vice, the Supreme Court.</p> <p>2. In such a proceeding the determination by the Supreme Court of a question of fact sustained by competent testimony is a finality.</p> <p>3. A writ of error brings for review before the higher court the judgments of inferior tribunals upon matters of law only.</p>

On error to the Supreme Court. For opinion of the Supreme Court see 33 Vroom 88. An action of ejectment was brought in the Circuit Court, where judgment was given for the defendant, which was, upon writ of error to the Supreme Court, affirmed.

<p>1. Under the statute entitled “A supplement to an act for the punishment of crimes” (Revision), approved March 27th, 1874, which supplement was approved March 22d, 1895 (Pamph L., p. 598), knowledge on the part of the accused of the character of the lottery policy slips and papers found in his possession is of the gravamen of the offence created by the statute.</p> <p>2. Although the accused at the trial of an indictment against him under the statute deny his knowledge of the character of the slips or papers found in his possession, yet the fact of his possession may be considered by the jury upon the question of knowledge in determining his guilt or innocence, and notwithstanding his denial the jury may convict the defendant upon circumstantial evidence, if satisfied by it of his guilt beyond' a reasonable doubt.</p>

<p>Every person occupying lands abutting upon a public street has a right to obstruct the sidewalk in front thereof for a reasonable time, in order to move heavy merchandise to or from his premises, provided he does so in such a way as not to interfere with its use by the public to a greater extent than is necessary for the purpose, and does not thereby become bound to furnish to the passer-by a safe passage around the obstruction.</p>

<p>. 1. “An act to secure in this state the certification of marriages, births and deaths and. of the vital facts relating thereto, and to provide for the record thereof,” approved February 15th, 1888 (Gen. 8tat.,p. 2006), supersedes all previous legislation on the subject included in its title.</p> <p>2. Money paid for a municipal corporation to one of its officers in excess of his lawful fees may be recovered by the corporation in an action against the officer for money had and received to its use, although the payments were made on the order of its governing body with full knowledge of the facts and without fraud The defence of voluntary payment is not available in such a case.</p>

<p>The managers of a fire insurance company instructed their local agents, by letter, to procure a reduction of the amount insured by a policy issued by them. The policy contained no provision for compulsory reduction, but did permit cancellation upon paying a rebate of premium. The instructions were not complied with and the managers received no information that the reduction had not been effected. A fire occurred and the company paid the whole insurance. In a suit by the company against the agents to recover the difference between the amount of insurance paid and that which would have been paid had the insurance been reduced as directed, the trial court refused to admit evidence as to the meaning of the word “ reduce” in the letter of instructions and directed a verdict for the defendants. Held, erroneous because—</p> <p>1. The case falls within the rule that parol evidence is admissible to show the special meaning of terms used with relation to a business well understood by the parties.</p> <p>2. The letter of instructions may fairly be construed as a direction to the agents to endeavor to agree with the insured on a reduction of the amount of the policy, and if unsuccessful to report to the managers, to the end that the policy might be canceled according to its terms; and in the absence of a report to the contrary the managers could conclude that a reduction had been made and a case existed for a jury whether the plaintiff had not sustained injury through a breach of the defendants’ duty.</p>

<p>On error to the Supreme Court. The facts appear fully in the opinion.</p>

<p>On error to Hudson Circuit.</p>

In tort. On error to Hudson Circuit. Action by George O’Brien against William Walsh and Mary Walsh to recover damages for assault and battery. Plaintiff had judgment and defendant brings error.

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 33 Vroom 165.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 33 Vroom 571.</p>

<p>On error to the Supreme Court.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 33 Vroom 521.</p>

<p>On error to the Supreme Court.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 33 Vroom 7.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see antep. 168.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 33 Vroom 505.</p>

<p>The provisions of section 2 of the act commonly known as the Werts act (Gen. Stat., p. 1810), which make liable to indictment any person who sells any of the liquors named in the title and body of that act, in any quantity from one quart to five gallons without license for that purpose, were neither expressly nor impliedly repealed by the provisions of the “Act for the punishment of crimes” (Revision of 1898), approved June 14th. 1898 (Pamph. L., p. 794). Indictments for the unlicensed sale of such liquors in the specified quantities may be found and prosecuted.</p>

<p>The right of an accused in a criminal prosecution to have the assistance of counsel in his defence, guaranteed by the last clause of section 8 of article 1 of the constitution, may be waived. When the record and bill of exceptions do not show any request for the assignment of counsel made or refused, but only show that no counsel appeared for the accused, no error is disclosed, for it will he presumed that the accused did not desire the assistance of counsel. Failure to apply for the assignment of counsel indicates a waiver of the right to have the assistance of counsel.</p>

<p>Oil demurrer to declaration.</p>

<p>On demurrer to the first count of the declaration.</p> <p>The count of the declaration demurred to avers that the trustees of School District No. 1, in the county of Bergen, a corporation of this state, for the purpose of building a schoolhouse in said district, and raising the money necessary therefor, pursuant to the “Act to establish a system of public instruction,” approved March 27th, 1874, and the supplements thereto, made a certain bond payable to bearer, which was delivered to Francis 14. McCully, who became thereby the owner of said bond, and entitled to the principal and interest thereon. It further avers that on July 4th, 1894, by virtue of the provisions of an amendment to the Public Instruction act, the said School District No. 1, of the county of Bergen, and the corporation known as the trustees of School District No. 1, in the county of Bergen, were consolidated with the other school districts in the township of Ridge-field under the name and designation of the plaintiffs in this action, and that by virtue of said act of the legislature, the bond of which McCully was the bearer became the obligation and indebtedness of the plaintiffs, who were legally bound to pay the same.</p> <p>It further avers that after the said bond became the obligation and indebtedness of these plaintiffs, the borough of Cliffside Park was formed out of the township of Ridgefield, and became a separate and distinct school district ánd corporation by the name of “ The Board of Education of the Borough of Cliffside Park, in the County of Bergen,” and that within the territorial limits of the said borough of Cliff-side Park was and is the school-house and property formerly belonging to the plaintiffs in this action, by reason of the consolidation of School District No. 1, in the county of Bergen, with these plaintiffs, and for the erection of which the said bond was issued, and that thereby the said defendants became entitled to said school-house and property.</p> <p>It further avers that on September 5th, 1896, an action was commenced in this court by said McCully against the plaintiffs to recover the amount of his said bond, and that such proceedings were had therein that on February 16th, 1897, McCully recovered a judgment against the plaintiff's for $1,227.59.</p> <p>It further avers that the plaintiffs upon a writ of execution issued against them upon such judgment paid, in satisfaction thereof, the sum of $1,342.55, and that by means thereof, and according to the tenor and effect of an act entitled “A supplement to an act entitled ‘An act to establish a system of public instruction (Eevision),’ passed March 27th, 1874,” approved April 6th, 1897, and a further supplement to the same act approved April 22d, 1897, the defendants became liable to reimburse and pay to the plaintiffs the sum of money paid by the latter upon the said judgment, with interest.</p>

<p>On error to Mercer Oyer and Terminer.</p>

<p>On demurrer to plea.</p>

<p>On demurrer to declaration.</p>

<p>On error to the Warren Quarter Sessions.</p>

<p>On rule to show cause.</p>

<p>One who uses, controls and manages an electric current of high destructive power in a place where it is reasonably probable that others must enter to work, owes to each person who so enters a duty to use reasonable care to maintain proper insulation of such current.</p>

<p>On rale to show cause.</p>

<p>On demurrer to the declaration.</p>

<p>On demurrer to plea.</p>

<p>1. The occurrence of a sudden lurch or jerk of a street railway car of sufficient violence to throw a passenger off the platform, who was there preparing to alight, and awaiting the stoppage of the car for that purpose, justifies an inference of a breach of duty upon the part of those operating the car within the maxim res ipsa loquitur. Traction Co. v. Thalheimer, 30 Vroom, 474. That the car was following another closely, which was stopping and starting suddenly, is a fact for the consideration of the jury in determining the cause of the sudden lurch or jerk, and as bearing upon the questions of negligence arising in the cause.</p> <p>2. It is not negligence per se for the passenger to ride upon the platform of an electric street railway car, nor to get up and go there from inside the car, before the car has stopped, to await an opportunity to alight.</p> <p>3. The railway company operating such a car is bound to exercise a high degree of care to carry its passengers safely in or upon whatever part of the car they are permitted to ride.</p> <p>4. Whether a passenger riding upon a platform, or standing there awaiting an opportunity to alight whilst the car is moving, should in the exercise of ordinary care for his own safety take hold of the hand-rail there, is a question which, under all the circumstances, must be determined by the jury.</p>

<p>1. Where a wife had agreed to pay a claim made against her husband by the mother of a minor daughter, upon whom the husband had committed an assault, and had become liable for the injuries to the daughter consequent upon such assault, and the wife had given her promise in writing to pay a certain sum agreed upon to the mother to settle the liability of the husband, and to save him from an action at law and consequent exposure and disgrace — Held, that the wife was relieved from a recovery upon sucli written promise to pay, as the obligation, at most, was only to answer for the default or liability of her husband, and for which she received neither directly nor indirectly any money, property or other thing of value for her own use and benefit, or for the use and benefit of her separate estate.</p> <p>2. Neither the desire on the part of the wife to save herself the disgrace of a prosecution of the husband for such assault, nor her desire not to be deprived of the benefits of his society, or of his conjectural services in any business of her own, will form a good consideration for such a promise, or be sufficient to support the contract to make such payment, as they are not the things of value for her own use, or for the benefit of her separate estate provided by the statute to render her contract enforceable in an action or suit.</p>

<p>On rule to show cause why verdict for the plaintiff should not be set aside.</p>

<p>1. A nonsuit will not be granted where the question is whether the engagement upon which the action is founded is an original one, or collateral to pay the debt of another, where there are facts in evidence in the case of the plaintiff, some of which tend to establish that it was an original promise, and other facts which tend to the establishment only that it was a collateral agreement to pay the debt of another, and therefore within the statute of frauds. If a reasonable conclusion can be drawn either way, then the character of the agreement, upon proper legal instructions, is for the jury to decide.</p> <p>2. Where the action of the plaintiff and his right to recovery are founded upon a contract or promise in writing under the statute of frauds, which contract or promise has been lost, and the evidence of the execution and existence of the same is in dispute, it is error for the trial court to refuse to charge, upon request, that the burden of proof is upon the plaintiff to establish the execution and contents of such contract or promise by a preponderance of proof, and for such error the judgment will be reversed and a new trial ordered.</p>

<p>On certiorari.</p>

<p>1. Under the laws applicable to the borough of South Cape May, the collector of taxes thereof is bound to pay to the county collector of the county of Cape May, out of the first moneys collected, from all sources of general taxation in said borough, the county taxes apportioned against said borough.</p> <p>2. It is no excuse for non-payment if sufficient amount from all the sources of the general taxation has been collected by the collector of taxes of the borough to make such payment, that the assessments of particular individuals have been reduced by the local board of appeals in cases of taxation, or by the state board of taxation, and the deficiency so made must be borne by the borough, and the county taxes remain as a primary obligation to be discharged by the payment to the county collector of all taxes as collected.</p> <p>3. Where the collector of taxes of any township, city or borough has made default in the payment of such taxes as he has collected to the county collector, he will be chargeable with interest, from the time of such delinquency as provided by the statute.</p>

<p>A life insurance company of Iowa agreed with one of its agents that he should have a year’s premiums on certain policies issued by it and should bear the year’s losses. The agent further agreed to deposit with the company as security a sum equal to thirty per cent, of such premiums, but by a later arrangement there were substituted for such deposit policies of re-insurance issued by a life insurance company of New Jersey to the Iowa company. Afterwards these policies were repudiated by the New Jersey company and the contracts thereby evidenced were rescinded by the Iowa company. After the period of indemnity had expired the Iowa company sued the New Jersey company upon an implied assumpsit to repay the premiums recited in the policies of re-insurance as having been paid. Held, that in the absence of proof of any actual loss there could be no recovery.</p>

On case certified from Gloucester County Circuit Court. The plaintiff declared on an overdue money bond given by defendants’ testator. The defendants pleaded that with the bond a mortgage was given for the same debt and that there had been no sale of the mortgaged premises under foreclosure proceedings. The plaintiff replied that on his presentation to the defendants of a verified claim on the bond they had given him notice in writing that said claim was disputed.

<p>On case certified from the Circuit Court of the county of Middlesex, as follows:</p> <p>“A verdict for the plaintiff in the above-stated cause involves a finding of the following matters of fact, viz.: On November 14th, 1896, the defendants, husband and wife, /made their promissory note (the wife signing first) to the ■order of Charles T. Cowenhoven for $2,480, payable in four unpnths, and delivered the same to him on the understanding ■that he was to use the same as collateral for a loan. Cowen-Iioven gave in exchange his promissory note to the order of ■Isabella Eastburn for a like amount and term, with the understanding that the same was not to be used. He also paid •Jo the defendants, or one of them, as a bonus, the sum of :$80. The notes were partly renewed from time to time on the same conditions and with the same bonus at each renewal. The notes now outstanding were given December 6th, 1897, Tor four months, for $2,080 each. The plaintiff became a bona fide holder for full value before maturity of one of the series of defendants’ notes and is such holder of the note in suit. At the time of the giving of the original notes Cowenhoven was reputed solvent and his note was of value. Isabella Eastburn knowingly received a part of the bonus on one of the renewals. On July 28th, 1898, Isabella Eastburn brought suit against Cowenhoven upon his last promissory note, among other claims. At that time she did not know that plaintiff held the note in suit. Cowenhoven filed a plea of the general issue, and the action is still pending. The plaintiff subsequently brought the present suit. The pleadings in this cause are sufficient to admit of a defence by Isabella Eastburn under the amendment of June 13th, 1895 {Gen. 8tat, p. 2017, ¶ 26), to section 5 of “An act to amend the law relating to the property of married women” (Revision), approved March 27th, 1874. A rule to show cause why the said verdict should not be set aside and a new trial granted is now pending. The advisory opinion of the Supreme Court is asked whether the rule to show cause should be made absolute or discharged—</p> <p>“ 1. If all the matters of fact above recited are consistent with the clear weight of the evidence.</p> <p>“ 2. If the clear weight of the evidence is that Isabella East-burn did not knowingly receive any bonus, but, on occasion of one of the renewals, did ignorantly obtain for the advantage of her separate estate a part of the bonus paid.</p> <p>“The foregoing case hereby made and stated as one of doubt and difficulty is certified to be argued at the bar of the Supreme Court.</p> <p>“Gilbert Collins,</p> <p> “Judge. </p> <p>“ Dated January 7th, 1899.”</p>

<p>On error to Hudson Circuit Court on affirmance of a judgment of a District Court.</p>

<p>On rule to show cause why new trial should not be granted.</p>

<p>1. A master, charged with the duty to use reasonable care that overhead shafting in a factory shall be supported and maintained so as not to endanger the safety of servants working underneath it, cannot escape liability for .breach of that duty by delegating its performance to an engineer placed in charge of the machinery in the factory.</p> <p>2. Inspection and repair necessary to the safe support and maintenance-of overhead shafting in a factory is not to be considered as merely incidental to the running of the engine with which the shafting is connected.</p>

<p>1. In 1881 a railroad excavation disturbed the foundation of an adjacent church edifice. An agreement of settlement for damages was made between representatives of the church and the railroad company. On January 9th, 1882, on payment of §1,000, the church treasurer gave to the president of the railroad company a writing acknowledging receipt of that sum “ in full settlement and discharge of all damages done by Railroad Co. against our church,” adding, “Railroad Co. to pay for all work in process.” The company afterwards paid for all work then in progress. In an action begun in 1891 to recover damages for the injury due to the excavation — Held—</p> <p>1. That the writing was a complete acquittance of all claim for damages by reason of the excavation.</p> <p>2. That it was not competent to prove that, before or at the time of the delivery of the writing, the railroad company made an oral agreement to restore and secure the foundation of the church edifice.</p> <p>3. That any cause of action of the plaintiff was barred by the statute of limitations.</p> <p>2. Under the constitution (article 4, section 7, paragraph 4), “An act to regulate party walls,” approved February 22d, 1871 (Gen. Stat., p. 2443), is only operative as to walls within its title.</p>

<p>On error to Cumberland Sessions.</p>

<p>On rule to show cause.</p>

<p>On application for mandamus.</p>

<p>1. The writ of certiorari in this case is prosecuted to set aside a resolution of the common council of West Hoboken accepting the work of the contractors in macadamizing of Palisade avenue. The property-owners on the avenue have been assessed for the cost of the work, and have paid their assessments. The allegation of the prosecutors is that the contractor has failed to do the work in accordance with the terms of the contract, and that they are entitled to have the work completed, for which they have been constrained to pay.</p> <p>2. Assuming all the prosecutors claim to be true, the writ of certiorari will not lie; the remedy is in equity.</p>

<p>On certiorari.</p>

<p>1. The board of excise of the city of Camden is authorized, by the statute under which it is established, to confer upon the recorder of that city power to hear and determine complaints for the violation of ordinances regulating the sale of intoxicating liquors.</p> <p>2. The charter of the city of Camden conferred upon its common council power to pass ordinances regulating the sale of intoxicating liquor, and punishing infractions thereof by the imposition of a fine not exceeding §100, or of a term of imprisonment not exceeding ten days. By subsequent legislation the regulation of the liquor traffic in that city was transferred to an excise board, and power given to it “ to prescribe and enforce penalties, either by fine or imprisonment, for the violation of excise ordinances.” Held, that a fine or term of imprisonment so prescribed could not legally exceed the maximum penalty fixed by the charter.</p> <p>S. Under a charter provision authorizing punishment for violation of a city ordinance, by a fine or by imprisonment, the sentence must impose' either the one or the other; and an alternative sentence which allows a convicted party either to pay a fine or submit to a term of imprison- • ment, as he may select, is not justified by such charter provision.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari to review a decision of tlie Circuit Court refusing to quash a writ of attachment, the proper practice is to confine the review to errors of law and not to determine disputed questions of fact.</p>

<p>Section 49 of our Practice act provides that the service of summons upon a defendant shall be made either upon him in person or by leaving it at his dwelling-house or usual place of abode. Held, that the dwelling-house or usual place of abode of a defendant within the meaning of the statute, is the place where he is actually living at the time when the service is made.</p>

<p>A contract for repairs to a vessel, made at her home port, is maritime in its nature, and proceedings m rem for the enforcement of a lien given for its security by a state statute cannot be instituted before state tribunals.</p>

<p>The determination of the state board of taxation, on the appeal of a taxpayer from an assessment of taxes against his property, can only be set aside for error of law. In determining whether such error exists, this court will consider only those facts which were before the board as the foundation of its decision, and this consideration will be limited to ascertaining whether there was legal evidence before that body upon which its finding may be supported.</p>

<p>On certiorari.</p>

<p>1. Awards for land to be taken in the opening of a street and assessments for benefits to arise from the opening were made by commissioners at the same time and embodied in a single report to the city council, which the council confirmed. On certiorari it appeared that the report was lost and its contents were not shown. Held, that the proceedings should be set aside.</p> <p>2. In the case mentioned, the payment of the awards was by statute made a condition precedent to the acquisition by the city of the right to open the street. IJeld that, as by the reversal of the award, the right to make the improvement was wholly defeated, a statutory provision requiring that a cerliwari to review the assessment should not be allowed after six months from the date of confirmation, was inapplicable.</p>

<p>On certiorari as to grading of Railroad avenue.</p>

<p>On certiorari.</p>

<p>Under the Tax act of March 19th, 1891 (Gen. Stat., p. 3344), personal property situate outside of New Jersey but owned by a resident of the state, is taxable in the township, ward or taxing district where the owner resides.</p>

<p>In an indictment for obtaining goods by false pretences, the description of the goods as “a large amount of dry and fancy goods of the value of twenty-seven hundred dollars,” is too indefinite.</p>

<p>A writ of mandamus should not be awarded to compel a training school, organized under the Charitable Institutions act of March 9th, 1877, and its supplements [Oen. StaL, p. 1686), to issue to a pupil a diploma certifying that she has completed, with credit, a two years’ course of instruction and practice in the institution, when, in the judgment of the proper authorities of the school after fair investigation, she has not with credit completed such a course.</p>

<p>According to “An act concerning cities,” approved May 11th, 1886 (Gen Slat., p. 575), an ordinance, introduced before the city council at a stated meeting, cannot be legally passed by the council at an adjourned session of the same stated meeting.</p>

<p>1. The right to construct and operate, and forever to repair, renew and maintain a trunk sewer through land is an estate in the land.</p> <p>2. Under the Sewer act of March 8th, 1882 (Gen. Stat, p. 605), in proceedings for the construction of a sewer, a preliminary assessment of the cost of the sewer is not required.</p> <p>3. The said act and its supplements authorize the construction of a main ' or trunk sewer. • 1</p> <p>4. Where the bed of a tidal creek has, by grant from the state, become private property and its mouth has been closed so as to destroy its utility, a public sewer may lawfully be constructed across its course if ’ 'the private owner consents.</p> <p>5. Under the above-mentioned act a public sewer may be constructed through the land of a corporation, at least if the corporation consents.</p>

<p>On certiorari.</p>

<p>On mandamus. On certiorari.</p>

<p>On rule to show, cause for a mandamus.</p>

<p>By the Veteran act of March 14th, 1895, an honorably-discharged Union veteran, against whom no charges have been preferred, and who has not made any special contract as to his term of service, has the right to hold a position to which he lias been lawfully appointed, and its emoluments, during good behavior, subject nevertheless to discharge, removal or termination of service as such employe whenever governmental changes in structure, method, management or policy, bom fide for the public interest, might necessarily require or result in such removal, discharge or termination of service.</p>

<p>1. The property of the United States and the bonds and securities issued by the United States are not taxable by or under the authority of any state without the permission of the United States. They owe their exemption from such taxation to their -nature and character and not to laws of the state requiring such exemption.</p> <p>2. The supplement to the Tax law of April 11th, 1866, by section 5, as amended by the further supplement of May 16th, 1894, expresses a legislative intent to exempt from taxation the property and the bonds and securities of the United States absolutely and without qualification.</p> <p>S. The act of congress of August 13th, 1894, may be construed as -permitting states to tax some of such securities as are in question in this' case, and to that extent their non-taxability has been removed. But no subsequent legislation of this state has imposed the burden of taxation upon such securities. Taxing officers acquired no power to assess such securities for taxation from the act of congress, for the state legislature must determine what property shall be taxed ; ñor from our tax laws, for the rule presented thereby absolutely exempted such securities from taxation.</p> <p>4. The requirements of section 1 of the supplement to the Tax law of February 23d, 1885, that an owner claiming exemption of such property from state taxation must furnish the taxing officers a detailed list of his securities and of the dates at which they were purchased, will be complied with by a statement of such securities in detail without a statement of the dates of purchase, when such securities are not the subject of purchase but are issued to circulate and do circulate as money and they have been received by the turner -in the ordinary course of business.</p>

<p>On error to the Supreme Court.</p>

This was an action brought by the plaintiff as administrator of the deceased for causing the death of Lessie Madison by the negligent and careless conduct and management by the •defendants and their employes of the defendants’ telephone and electric light wires, whereby the deceased received an •electric shock from the effects of which she died.

<p>On error to the Supreme Court.</p>

<p>1. Public lighting only is provided for by the act of May 22d, 1894 (Pamph. L., p. 477), and Bayonne may, under that, act, without the consent of the abutting landowners or previous designation of streets, use the streets and erect poles or cause poles to be erected for public lighting.</p> <p>2. The, acts of 1884 (Pamph. L., p. 331), 1893 (Pamph., L., p. 412) and 1896 (Pamph. L., p. 322) apply to private lighting companies which desire to use streets for private lighting, heat and power purposes, and require the consent of the abutting landowners and the designation of streets by the city before poles can be erected.</p> <p>3. The purpose for which the designation of streets by the city is required is to prevent the use of any street without the consent of the city, and that object is attained by a general designation of all the streets. The permission of the city is a prerequisite to the right of the company to enter the streets, and the designation is for the purpose of ’establishing what streets the company may use, and not what they must occupy.</p>

<p>On error to the Supreme court.</p>

<p>1. The Bridge act of March 15th, 1860 (Gen.^Stat., p. 307), making the board of chosen freeholders of a county' responsible for damage received by any person through the wrongful neglect of the board to erect, rebuild or repair a bridge, with the erection, rebuilding or repair of which the board is chargeable by law, applies to the case of a person whose vessel is damaged by running against the draw of a bridge spanning a navigable river.</p> <p>2. If such a bridge stands between two counties, the boards of chosen freeholders of both counties may be held jointly liable.</p> <p>3. Under the circumstances of the present case, in which it appeared that a draw over the Hackensack river could not be opened because the heat had expanded the rails laid by a trolley company upon it, and consequently the plaintiff’s vessel ran against the bridge, the questions whether the defendants were guilty of wrongful neglect and whether the plaintiff was chargeable with contributory negligence were for the jury, and on these questions it was permissible to show how near to the bridge the bridge-tenders usually allowed vessels to be before the draw began to move.</p>

<p>On error to the Supreme Court.</p>

<p>The court charged that the plaintiff, who was not an attorney-at-law of this state, could not recover for taxed costs or for any services that inhered in the office of attorney. Later in the charge, with respect to certain exhibits, the jury was told that if an account had been adjusted so that a promise to pay on the part of the defendant might be found, the plaintiff would be entitled to rely on that promise. . There were services and questions of amount to which this language correctly applied. Held, that the express charge of the law of the ease as to taxed costs and services as an attorney was not withdrawn or superseded by the general expression of the latter clause, and that, the court’s attention not having been called to the possible ambiguity, the judgment will not be disturbed.</p>

<p>In an action against an electric light company for causing the death of the plaintiff’s intestate, who was an employe of the traction company, the plaintiff proved that the employes of the traction company broke down a wire of the electric light company, the naked end of which was touched to a metallic hydrant and gave no flash, and that shortly afterwards the intestate handled this wire and was killed. It was also proved by an expert witness called by the plaintiff that the failure to elicit a spark from the wire indicated either that the circuit was per* fectly insulated or that the current was off, and that whether the breaking and grounding of the wire would be indicated at the defendant’s power-house depended upon “how severe the ground was,” of which there was no proof. Held, that this testimony was incapable of supporting the burden of proof necessary to the plaintiff’s recovery, and that a verdict should have been directed for the defendant.</p>

<p>A builder sued under the Mechanics’ Lien act may not set off claims due to him from the plaintiff in a different right.</p>

<p>1. Under the fifth section of the supplement to the Mechanics’ Lien law, approved March 14th, 1895 (Pamph. L, p. 313; Oen. Stat., p. 2074; Pamph. L. 1898, p. 539), which expressly forbids the owner to pay any</p> <p>• money in advance of the terms of the contract, if the effect may be that the amount unpaid will prove insufficient to satisfy the notices served upon the owner under the other provisions of the Mechanics’ Lien laws, such notices must appear to have been served before the contract provided for by such fifth section has been completed according to the terms of the contract or before the liability of the owner under the contract matures. The lien upon the liability expires on such maturity of the contract if no notice has been given, and a notice served after such maturity derives no aid from the fifth section of such supplement.</p> <p>2. In a trial before the court or trial judge without a jury, upon the question when the written and filed contract under the provisions of the Mechanics’ Lien law between the owner and the contractor was completed and performed according to its terms, or when the building therein provided for was completed, or when demand was made and notice given, in order that t-he court ascertain whether the payments on such contract were in advance of its terms, the finding of facts are not reviewable upon writ of error. The only question upon which a review can be had on error is whether the facts so found are sufficient to sustain the judgment. The court on error will not settle the disputed facts of such trial.</p> <p>3. The proper practice considered when jury is waived and trial is had by the court or judge.</p>

<p>The neglect of a railroad company to give warning of the approach of its trains to a highway crossing, even when so gross as to amount to a declaration that the way is safe for travelers upon the highway, does not absolve a person about to cross the tracks from the duty of making an independent observation for the purpose of ascertaining whether or not a train is coming to the crossing; and failure in that regard is, ordinarily, a failure to exercise that reasonable degree of prudence which the law requires of all persons when approaching these places . of known danger.</p>

<p>A person who enters into the employ of another assumes all the risks and perils usually incident to the employment; and included in such risks and perils are those which it is a part of his duty to take knowledge of by observation.</p>

<p>Where, in an action upon a contract, the defendant seebs to escape liability solely upon the ground that the person who assumed to act for him in the making of the agreement sued on was not authorized to act’ as his agent, proof of the presence of facts which compel the conclusion that such agency existed not only requires the refusal of a motion to non-suit, but, uncontradicted, justifies the court in controlling the verdict of the jury.</p>

<p>1. Incorporated cities, boroughs, towns and.villages, as well as townships, are recognized by the constitution as classes for legislation. Laws limited to either of such classes will not violate the constitutional prohibition of private, local or special laws “regulating the internal affairs of towns and counties.”</p> <p>2. The courts cannot inquire whether a municipality or class of municipalities is titular only. The classification of the legislature in that regard is conclusive.</p> <p>3. A statute providing for the funding of existing debts for street improvements in incorporated towns, is a general law within the constitution.</p>

<p>O11 error to the Supreme Court upon a judgment on verdict in a cause tried at the Warren Circuit.</p>

<p>On error to the Supreme Court. For opinion of the Sujjreme Court, see ante p. 96.</p>

<p>1. Where a suit is brought by the assignee of a chose in action in his own name, pursuant to the authority of the act of 1S90 (Gen. Stal.,p. 2591, § 340), and a demand is made by the defendant before pleading for a bill of particulars of the plaintiff’s demand and for a copy of any bond, note, contract, deed, record or writing on which the declaration is founded, in accordance with section 236 of the Practice act {Gen. Stat., p. 2572), the plaintiff must furnish the defendant with a copy of the assignment of such chose in action, in addition to such other writings as constitute the foundation of the action, or be barred from all claim under the declaration.</p> <p>2. The admission of such an assignment in evidence over defendant’s objection after such demand made and failure to furnish a copy of the same — Held, under the circumstances of the present case, to be rever- . sible error.</p>

<p>1. The legislature of New Jersey cannot impair the jurisdiction of a constitutional court.</p> <p>2. Chapter 139 of the laws of 1899 (Pamph. L., p. 323) provides, among verdict of a jury, the plaintiff in error may assign for error that the verdict is against the clear weight of evidence and is excessive, and directs said court to consider the grounds so assigned as fully as like grounds are considered in the Supreme Court on a rule to show cause why a new trial should not be granted, and, if it shall appear that such verdict is against the clear weight of evidence or is excessive, to set aside the verdict and reverse the judgment. Held, that this act does not authorize the Court of Errors and Appeals, on writ of error to a judgment of the Supreme Court in a civil action founded on the verdict of a jury, to weigh evidence and consider whether the amount of 1¡he verdict is excessive.</p> <p>3. For the Court of Errors and Appeals to consider and adjudicate upon such assignments of error in such a case, would impair the jurisdiction of a constitutional court by depriving its judgment of the attribute of finality as to fact.</p> <p>4. Specifically, the effect of the statute would be, in this case, to extend to the Court of Errors and Appeals the right to employ a method of reviewing facts substantially the same as that before enjoyed exclusively by the Supreme .Court within itself, and to diminish the authority of the Supreme Court by making such right no longer exclusive.</p> <p>5. A company which is bound to use reasonable care to furnish a safe ladder for the use of its workmen, is responsible for the negligence of the agents whom it employs to construct such ladder.</p> <p>6. The plaintiff) who was an employe of the defendant company, was injured by falling from a ladder which the jury might conclude was supplied by the defendant for the use of its workmen. Questions of fact arose at the trial as to the presence of a structural defect in the ladder, as to the comparative opportunities for inspection possessed by the plaintiff and the defendant or its agents as to the character of the risk, and as to negligence in the conduct of the plaintiff. Held, that under the proof in the case these questions were fairly debatable, and so were for the jury.</p> <p>7. An employe of the defendant having testified that he examined the ladder after the accident and found that it was unbroken, it was competent to show, on cross-examination, that the witness himself destroyed the ladder immediately after the accident. Such evidence was proper, as tending to discredit the witness, and also to show why the plaintiff did not produce the ladder’in evidence.</p> <p>8. The trial judge having charged the jury that no inference unfavorable to the defendant arose out of such destruction of the ladder, it is not to be supposed that the admission of such evidence, even if erroneous, could have been injurious to the defendant.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 33 Vroom 499.</p>

<p>On error to Essex Circuit.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 32 Vroom 202.</p>

<p>On error to Essex Circuit.</p>

<p>On error to the Supreme Court.</p>