Volume 67 — New Jersey Law Reports

<p>1. The recompense to be paid to the Ocean Grove Camp Meeting Association for the lots demised by the form of lease shown in this case is rent, within the meaning of the seventh section of our Landlord and Tenant act, notwithstanding the fact that the lease styles the recompense an assessment as well as a yearly rent, and although its precise amount, not exceeding a stated maximum, is to be fixed annually by the lessor;</p> <p>2. Under such a lease the notice to be given to the lessee as to the amount of rent due is sufficient if it convey the information required, although, by a clerical error, it, in one of its clauses, misnames the lessee.</p> <p>3. In fixing the amount of rent no particular form of resolution by the lessor is required, provided the resolution expresses the amount or rate with reasonable certainty, so that the lessee' does, or should, understand it.</p>

<p>On error.</p> <p>This case was tried before the Circuit Court of Essex county without a jury, with the result stated by the trial judge as follows:</p> <p>“Swayze, J. This is a suit by William V. Snyder & Company against the Commercial Union Assurance Company, to recover the amount of a policy for $2,500, insuring the plaintiffs against loss by fire to a stock of merchandise, which was destroyed on the 27th of February, 1900. The policy is a one-year policy, dated February 24th, 1900, issued by James E. Garrabrant, an agent of the defendant at Newark.</p> <p>“The circumstances under which the policy was issued are as follows: Snyder & Company were in the habit of carrying $300,000 of insurance upon their stock of goods. One of their brokers for the purpose of placing this insurance was Henry C. Rommel, who had charge of about half of the total amount. He had secured for Snyder & Company a policy of insurance in the Glens Falls Insurance Company to the amount of $2,500, and this policy had been delivered to Snyder & Company, and was in their safe at the time of the fire. On the 19th of February the Glens Falls Insurance Company requested their agent at Newark, Mr. R. P. Conlon, to cancel this policy. Mr. Conlon gave a verbal notice to Rommel of the desire of the Glens Falls company to cancel their policy immediately upon the receipt of the request from the company, and apparently as early as the 20th of February. Subsequently, and probably on the 23d of February, at Rommel’s request, he gave Rommel a formal written notice, bearing date the 19th, but not served until the date last mentioned. The instructions of Snyder & Company to their brokers, or, at any rate, their intentions, seem to have been to carry only $300,000 insurance upon their stock. At the time of the fire there were outstanding policies of insurance or contracts for policies to the amount of $312,500. The loss exceeded that sum. The excess of insurance over $300,000 arose from the fact that policies were issued by the Atlas, Caledonian, Svea and Commercial Union (the policy in suit), amounting in all to $12,500, to take the place of policies for that amount theretofore issued. No claim is made by Snyder & Company in excess of the $300,000. The only question raised, as far as they are concerned, is whether the four companies last mentioned, or the companies which issued the prior policies, are responsible.</p> <p>“This suit, while brought in the name of Snyder & Company, is really for the benefit of the Glens Falls Insurance Company, which paid Snyder & Company $2,500 and took an assignment of the claim against the Commercial Union, after the beginning of this suit, in pursuance of an agreement made prior thereto.</p> <p>“Immediately after receiving the notice from Mr. Conlon of the cancellation of the Glens Falls policy, Mr. Rommel, Snyder’s broker, met Mr. J ames E. Garrabrant, the agent of the defendant company, and contracted with him for a policy of $2,500. Garrabrant represented several companies, but it does not appear whether he stated in what company he would place the new policy for $2,500. As a matter of fact, he placed it in the Commercial Union, and that policy appears to have been written, or, at any rate, it bears date February 24th, 1900, three days before the fire. It was not delivered, however, to Rommel until the morning after the fire; and Rommel delivered the policy after the fire to Mr. Snyder. Rommel and Snyder both understood that the new policy was to take the place of the Glens Falls policy, and Snyder made a pencil endorsement upon the policy in suit to that effect; but nothing was said to Garrabrant about the new policy being in substitution for the Glens Falls policy. Snyder made proof of loss under all of his policies, but it was understood between him and the insurance companies that the total amount he claimed was- only $300,000, and that all he desired was to have it settled which of the companies were indebted to him.</p> <p>“The Glens Falls policy seems to have been taken up by the company at the time they bought Snyder’s claim against the Commercial Union, and the policy was produced by them marked ‘canceled,’ with a slip attached, dated June 1st, 1900, whereby the members of the firm of Snyder & Company, in writing, ratified and confirmed ‘the action of our broker, Henry C. Rommel, in accepting notice of cancellation from the Glens Falls Insurance Company of $2,500 of insurance upon our stock, located in Newark, N. J., and of the replacing of the same amount of insurance by a binder and by policy No! 205,668 in the Commercial Union Assurance Company of London, England.’ It is evident that this ratification and the actual stamp of cancellation upon the Glens Falls policy took place at the time as a part of the transaction by which the Glens Falls Company acquired the interest of Snyder & Company in their claim against the Commercial Union.</p> <p>“The defendant insists that the Commercial Union policy was issued only in substitution for the Glens Falls policy, and that it could not become binding until the cancellation of the Glens Falls policy; that that cancellation had not taken effect at the time of the fire, and that therefore the Commercial Union policy was not a subsisting contract when the property insured thereby was destroyed. On the .other side, it is said that Rommel, having authority to take out insurance for Snyder & Company, had the authority to contract with Garrabrant for this insurance; that there was nothing in the contract between Rommel and'Garrabrant to indicate that the Commercial Union policy was in substitution for the Glens Falls poliqy, or that there was anjr condition precedent to its being effective; and it is argued that a purpose existing in the mind of Rommel or an intention existing in the mind of Snyder to limit his insurance to $300,000 would not avail to relieve the Commercial Union company from its liability.</p> <p>“As I look at the case, this contention of the plaintiffs cannot be sustained, unless by virtue of the subsequent ratification by Snyder. While it is true that a purpose existing in the mind of Rommel or an intention on the part of Snyder to limit his insurance to $300,000 would not affect the validity of the contract with Garrabrant, the real question on that branch of the case (aside, as I say, from the question of ratification, which I will deal with presently) is with regard to Rommel’s authority to make the contract; and Rommel’s authority to contract for Snyder & Company was limited to the amount of insurance outstanding. He had no authority to make the contract, unless for the purpose of substitution, and Snyder would not have been bound to pay the premiums on any more insurance than he had authorized. I think that this is the practical construction, also, which has been given to the matter by Snyder & Company in limiting their claims under the policies to $300,000, and not attempting to set up a claim to $313,500.</p> <p>“It is conceded by the'defendant that if the Glens Falls policy was properly canceled prior to the fire, then the Commercial Union policy became a subsisting contract, and the plaintiffs must prevail. The oral notice of cancellation was given more than five days before the fire. The written notice was not given earlier than the 33d. Neither notice, however, was brought to the attention of Snyder & Company, either by Oonlon, the agent of the Glens Falls company, or by Rommel, until after the fire.</p> <p>“It is well settled by the authorities cited at the argument that a broker who is merely employed to obtain insurance is not thereby authorized to receive notice of cancellation. Grace v. American Central Insurance Co., 109 U. S. 278; Hermann v. Niagara Fire Insurance Co., 140 N. Y. 411; Wilson v. New Hampshire Fire Insurance Co., 140 Mass. 210. But while this is the general rule, the broker may be authorized to receive notice of cancellation. Each case depends upon its own facts. Stone v. Franklin Insurance Co., 105 N. Y. 543; Karelsen v. Sun Fire Office, 122 Id. 545, and the very recent cases of Hamm Realty Co. v. New Hampshire Fire Insurance Co., 83 N. W. Rep. 41, decided by the Supreme Court of Minnesota in 1900, and White v. Insurance Co., 93 Fed. Rep. 161, in the United States Circuit Court, in Rhode Island, in 1899. The judgment in the last ease was affirmed in the Circuit Court of Appeals for the First Circuit on June 15th, 1900; the opinion by Colt, Circuit Judge, is to be found'in 103 Fed. Rep. 260; but the record did not present the real question in dispute, and the opinion in the Court of Appeals adds nothing to the opinion in the Circuit Court. The question in every case is a question of fact. The -broker is not authorized to receive notice of cancellation by the mere fact that he is the broker through whom the policy was procured. He may be authorized to receive notice of cancellation either by express authority or, as more usually happens, by the course of business between the parties.</p> <p>“In this case I find that Rommel was authorized by Snyder to receive notices of cancellation of policies procured by him, and was also authorized to procure new policies in place of those thus canceled. He says himself that he had charge of substitutions, and that he had received all the notices of cancellations of all the policies he had placed during the whole term he had served Mr. Snyder as broker, some seven or eight years; that his custom upon receiving such notices was to replace the insurance in some other company, take the policy to Snyder’s office, and take up the policy that was ordered canceled; that he cannot recall a case where he did not receive the notice, and that Snyder took the substituted policies and paid the' premiums. This testimony is uncontradicted, and I think brings the case within the rule laid down in the case of the Hamm Realty Company and the case of White v. Insurance Co., above cited. See, also Arnfeld v. Guardian Assurance Co., 172 Pa. St. 605; Dibble v. Northern, &c., Co., 70 Mich. 1.</p> <p>“My attention was called to two cases in Massachusetts and one in New Hampshire, which it was thought sustained the opposite view, but, upon examining those cases, I think they are clearly to be distinguished from the present case. In Massasoiit Steam Mills v. Western Assurance Co., 125 Mass. 110, the agent by whom the substituted policy was issued was also the agent of the company which had issued the original policy. He was not the agent of the assured at all, and the attempt was merely an attempt to change the plaintiff’s insurance from one company to another, represented by the same agent. Clearly, under those circumstances, the'company issuing the second policy issues it only upon condition that the first policy shall be canceled, and the agent of the company issuing the first policy could not be assumed to be the agent of the assured for the purpose of cancellation. In Stebbins v. Insurance Co., 60 N. II. 65, it appeared that Jenny & Sherman were the agents for both the compames and intended the Lancanshire policy as the substitute for the North British and Mercantile; but Jenny & Sherman were not, in that case, the agents of the assured, and there was no binding contract of insurance between the company and Barber, the plaintiff’s agent, at the time of the fire. In the present case there was a binding contract between Snyder’s agent and Garrabrant at the time of the fire, dependent only upon the cancellation of the outstanding policy. In the Stebbins case the court said: ‘Neither the plaintiff nor his agent had any knowledge of the existence of the policy previous to the fire. It was not an existing contract of insurance when the loss happened, and the subsequent delivery was ineffectual to give it validity.’ The same remarks apply to Wilson v. New Hampshire Insurance Co., 140 Mass. 210.</p> <p>“Finding, as I do, that Rommel had authority to accept notices of cancellation and to negotiate for new policies, it becomes unimportant to decide whether or not the Glens Falls policy was canceled by the expiration of the five days provided for in the standard policy; for, as a matter of fact, Rommel waived the time.limit, and the Glens Falls policy ceased to be binding as soon as the new policy procured in substitution for it became effective. This was as early as the 24th of February, on which day the policy bears date, and three days before the fire.</p> <p>“Even if, however, Rommel had not been at the time authorized to cancel the Glens Falls policy and substitute the Commercial "Union policy, I think the subsequent ratification by Snyder would remove that difficulty. It has been held in this state (Marts v. Cumberland Insurance Co., 15 Vroom 418) that a person for whose benefit an insurance policy is taken out 'may ratify the transaction either before or after the loss, and, a fortiori, I see no reason why the assured may not ratify a cancellation after a loss. The ratification must be complete and of the whole transaction, and the ratification of the contract for the substituted policy would necessarily carry with it a ratification of tire cancellation of the old policy. In this case Snyder ratified Rommel’s action by the pencil endorsement on the Commercial Union policy. He subsequently ratified it, in writing, on June 1st, 1900. I do not think Snyder lost any rights bjr making proof under both policies. That was, I think, a proper precaution for him to take. The fact that he made an unfounded claim against the Glens Falls company cannot relieve the Commercial Union from his just claim.</p> <p>“The" result is that I find in favor of the plaintiffs and against the defendant, and assess the damages at $2,500, besides interest. The interest may be calculated by counsel. I will allow counsel for the defendant time to frame his exceptions to my conclusions on questions of law, and to frame such requests to find, and exceptions as may be proper to secure him a review of my conclusions on questions of fact, as far as the samé may be' reviewab.le.”</p>

<p>1. An indictment for neglect of public duty must set forth the special circumstances out of which the duty would arise, unless the duty is imposed by a law of which the courts take judicial cognizance.</p> <p>2. A count in an indictment which charged the defendant with obstructing and failing to repair a highway, whereby it became dangerous for travel, is not double.</p> <p>S. When a single offence may be committed by many means or in several ways, a count which charges its commission in several ways or by several means that are not repugnant is not double.</p> <p>4. If a count attempts to charge two or more offences, but charges only one of them sufficiently, it is not double.</p> <p>5. An indictment for a public nuisance need not conclude formally “to the common nuisance of all the people,” &c., if it contain averments substantially equivalent thereto.</p>

<p>In an application for a policy of life insurance the applicant warranted that he had never been seriously ill; that he had never had pneumonia, and that within two years before making the application he had not been under the care of a physician except “for cold”— these statements were, by the policy, made part of the contract as warranties. Held, that their falsity annulled the contract.</p>

<p>In an action upon a contract in the following form: “We, George Kemmet & Bro., herewith guarantee - the account of Mr. Paul Dreher of 813 High St., West Hoboken, to the amount of $500. We are willing to make monthly settlement for the electrical supplies purchased by him, such payments to be made every 15th of the month for the month previous. (Signed) Geo. Kemmet & Bko.” Held—</p> <p>1. That the signer thereby became a guarantor of payment.</p> <p>2. That the guaranty was a continuing one.</p> <p>3. That its continuance was not dependent upon punctual payment being made by the principal debtor on the 15th of each month.</p> <p>4. That the guaranty was not conditioned upon the sales being limited to $500, and</p> <p>5. That the guaranty was not released by the creditor’s omission to notify the guarantor that a check given on account by the principal debtor had been dishonored.</p>

<p>An assessment levied in the town of Union under the act of April 20th, 1886 (Gen. Stat., p. 3546), bears interest at the rate of eight per cent, per annum, by force of an ordinance of the town adopted under the act of February 19th, 1880. Gen. Btat., p. 3403.</p>

<p>On certiorari.</p>

<p>A suit brought in this state upon á cause of action on which a suit, previously brought in a sister state, is still pending, should not be stayed as vexatious, pendente aWbi Mte, if in the foreign suit a defence is interposed which does not reach the substantial merits and which, because of changed conditions, is not available in the domestic action.</p>

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

<p>1. In an action for personal injuries alleged to have been sustained by the plaintiff by reason of the careless and unskillful manner in which a wagon was driven, whereby the plaintiff was knocked down in a public highway, the court charged the jury that “if the driver could have seen the boy [plaintiff] by looking before turning the corner, and did not see him, then he is guilty of negligence.” Held, to be error — furst, because such instruction selected a single circumstance from the many that bore upon the question at issue, to wit, the negligence of the driver, and presented it as sufficient of itself to support their verdict; second, because it ignored the real issue, which was the lack of reasonable care on the part of the driver, and substituted for it a circumstance that might or might not have been the result of such culpable conduct.</p> <p>2. Note upon the practice of handing up requests after the court .has begun to charge the jury.</p>

On demurrer to declaration. The count of the declaration to which the defendant has demurred is as follows: “And also for that whereas, said defendant, before and at the same time of committing the grievances hereinafter next mentioned, held and enjoyed, finder and by virtue of a certain certificate of tax sale, made, executed, acknowledged and delivered to her by Benjamin F. Williams, collector of taxes for the township of Gloucester, in said county of Camden, and duly…

<p>A plaintiff who has recovered nominal damages only will be denied a new trial if his failure to obtain a substantial verdict be due to his own conduct in withholding from the jury the facts upon which alone such a verdict could lawfully rest.</p>

On error to the Monmonth Pleas. The action was begun in the Court of Common Pleas to recover the sum of $300, and interest from August 24th, 1896, for money paid George D. Pettingill, in his lifetime, upon the purchase-price of real estate at Asbury Park, New Jersey, under an agreement entered into August 24th, 1896, of which the following is a copy: “Asbury Park, Aug. 24, 1896. “Received from Henry Steinbach three hundred dollars, account of purchase of house and lot,…

<p>On rule to show cause, also motion for judgment.</p> <p>An action for a breach of covenant was brought by the North Bergen board of education against Jaeger, as principal, and Libelli and Carson, as sureties. The instrument upon which the breaches were assigned was a bond excuted by the three defendants, the condition of which was that Jaeger should perform a certain contract for the construction of a steam heating apparatus according to plans and specifications annexed thereto and made a part thereof. The specifications contained the following;</p> <p>“Guarantee. — The contractor is to guarantee that the apparatus will have a complete and perfect circulation throughout with one pound pressure indicated on the boiler. That the apparatus will be ample to warm all the rooms in which the radiators are placed to 70 degrees in zero weather with not over five pounds per square inch on the boiler. That the apparatus will be steam and water tight and free from all noise of any kind.”</p> <p>Upon the completion of the work Jaeger was paid the contract price by the plaintiff, who then brought this action against Jaeger and his sureties who had joined in the bond for the performance of his contract. The breach set up was that the apparatus was not ample to warm the rooms in the manner guaranteed by the contractor.</p> <p>At the trial the jury was directed to answer special questions submitted by the trial court. These questions were:</p> <p>“First. Did the contractor furnish the heating apparatus specified in the contract ?</p> <p>“Second. Was the heating apparatus specified in the contract ample to warm all the rooms in which the radiators are placed to seventy degrees in zero weather, with not over five pounds per square inch on the boiler, provided the building was in proper condition ?</p> <p>“Third. If not, how much money would suffice to make it so ?”</p> <p>As returned in the postea, the answers to these questions were:</p> <p>“That the said defendant Albert C. Jaeger did construct a steam heating apparatus for the school-house known as No. 3, together with the addition thereof, in New Durham, in the township of North Bergen, and did furnish the materials therefor, according to the plans and specifications for the said addition, made and prepared by Emil Guhl, architect, for the steam heating .apparatus, with combination covering, which specifications were annexed to the contract, a copy of which is Schedule B of the plaintiff’s declaration, and which plans were signed by the parties thereto and made a part thereof, and that the said heating apparatus so specified was not ample to warm all the rooms in which the radiators were placed to seventy degrees in zero weather, with not over five pounds per square inch on the boiler, provided the building was in proper condition; but whether or not the condition of the writing obligatory, a copy of which is Schedule A of the plaintiff’s declaration, was thereby broken, the said jurors are altogether ignorant and thereupon pray the advice of the Supreme Court; and if upon the whole case the said court shall be of opinion that the said condition of the said writing obligatory was thereby broken, then they so find, and in that case they assess the damages of the said plaintiff against the said defendant, by reason of such breach, at the sum of two hundred and eighty-six, dollars and fifty cents over and above the plaintiff’s costs and said charges in this behalf expended, and for those costs and charges six cents; and if upon the whole case the said court shall be of opinion that the condition of the said writing obligatory was not thereby broken, then they so find, and therefore find that the defendant Albert Jaeger fully performed the contract recited in said writing obligatory.”</p> <p>Motion is now made by each party for leave to enter judgment upon this postea. The defendant also moved for a new trial, upon grounds which resolve themselves into three, viz.:</p> <p>1. That the verdict was against the weight of the evidence.</p> <p>2. That Jaeger did not contract that the apparatus should heat the rooms as per the specifications, but that he only agreed that he would so contract.</p> <p>3. The verdict shows that the performance of the work specified would not produce the result specified, hence there was no breach.</p>

On demurrer to declaration. A declaration for libel, after the formal, averments, charges that “the defendant, its officers and agents caused to be published in a Passaic daily paper, and known as the ‘Passaic Daily Herald/ in which they, well knowing and maliciously, describe and refer' to the plaintiff and his place of business and setting forth the plaintiff as a common thief, meaning that the plaintiff did unlawfully and willfully take, keep and use for his own benefit’…

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

On motion to enter judgment upon postea showing a special verdict upon a special plea.

<p>1. On review by writ of error of a judgment in a cause tried without a jury, if error be assigned only on an exception to the general finding at the trial, there cannot be a reversal unless there is no evidence which can support such finding. •</p> <p>2. On' the trial of a suit against maker and endorser of a promissory note, the declaration being framed in assumpsit, the defence attempted to be proved under the general issue was that the consideration for the note was a debt arising out of business transactions in this state with a foreign corporation, not a party to the note nor its holder; and that such corporation was not authorized to transact business in this state. Held, that the burden was upon the defendant to prove such lack of authority. Mere proof of foreign-incorporation will not, even prima faeia, suffice for that purpose.</p>

<p>A decree of foreclosure will not estop defendants thereto from claiming title to the land involved as heirs-at-law of one who was not a party to the suit and who died after the decree.</p>

<p>1. This court, on a rule to show cause wby a new trial should not be granted of an issue tried at the Circuit, will not consider questions embraced in exceptions reserved in the rule, and therefore it will not give its advisory opinion to a Circuit Court on questions embraced in exceptions reserved in a rule to show cause why a new trial should not be granted of an issue tried in that court.</p> <p>2. Under section 299 of the Practice act (Gen. Stat., p. 2534) rules of practice settled by judicial decision in the Supreme Court extend to the Circuit Courts. Therefore such questions are not pending, and do not present a case of doubt and difficulty to be certified, under section 247 of that act.</p> <p>3. If, in a rule to show cause why a new trial should not be granted, there be reserved an exception to a refusal to take the case from the jury, which exception involves all the evidence in the cause, a reason assigned for new trial that the verdict is against the weight of the evidence should be struck out or disregarded. That reason is necessarily embraced in the exception.</p>

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

<p>Where a policy of insurance requires that satisfactory proof of loss shall have been received by the insurer a specified time befox-e the loss shall become payable, a general averment, in the declaration in a suit for a loss covex-ed by such policy, of performance of conditions precedent will, under section 126 of the Practice act (Gen. Stat., p. 2554), embrace such condition of time as well as that of receipt.</p>

<p>1. Under “An act to encourage the establishment of mutual loan, homestead and building associations” [Revision], approved April 9th, 1875 (Gen. Stat., p. 331), and its supplements, it is the actual amounting of the fund in which a shareholder has an interest to the sum per share specified in the articles of association that will entitle him to receive such sum. It is not competent for an association, by constitution or otherwise, to provide that such right shall accrue upon the ascertainment by the directors of the value of a share in that fund.</p> <p>2. Recovery of the value of matured shares in an association organized under said act cannot be had at law. The remedy of a shareholder, if the directors will not recognize his demand for distribution of the fund in which he is interested, is in the Court of Chancery.</p>

On demurrer to declaration. This action was brought February 23d, 1901. The declaration counts on a written assumption by the defendants, on J une 9th, 1899, of a bond for $7,500 held by the plaintiff, dated September 23d, 1898, payable in two years from its date with interest semi-annually, secured by a mortgage on land in New York whereof the defendants had become owners.

On error to Essex Comity Circuit Court. The plaintiff recovered a judgment, on verdict, in an action for negligence. The defendant has brought a writ of error, the assignments under which present only exceptions sealed at the trial.

<p>In declaring on a bond, with condition, it is not permissible to include in one assignment several distinct breaches of such condition. The remedy against such a defect is not by general demurrer, but by motion to strike out the assignment.</p>

<p>On certiorari to review an ordinance of the common council of Atlantic City.</p>

<p>On certiorari in matter of taxation.</p>

<p>On certiorari in matter of taxation.</p>

<p>Proceedings taken under the provisions of an act to enable small landowners to drain and improve their lands, approved March 28tb, 1883 (Gen. Stat., p. 2059, § 163), cannot be attacked collaterally, the appointment under the act having been duly made.</p>

<p>1. The ordinance certified in this case is illegal because it was finally passed on the 1st of February without having been introduced and passed at a previous meeting, as required by the statute.</p> <p>2. The ordinance directs poles placed in the highway without the consent of the public authorities to be removed ; therefore, the attempt of the town committee to remove the poles of the prosecutor without notice and without giving it an opportunity to be heard in defence of its right to maintain the poles was also illegal.</p>

<p>On certiorari to the District Court.</p>

<p>1. A description of premises which at common law would have been good in ejectment, is sufficient under the Landlord and Tenant act.</p> <p>2. The requirement of the statute is complied with when there is in the description sufficient certainty to advise the tenant of the premises claimed, and the officer of the premises from which the tenant is to be dispossessed, if a writ shall issue for that purpose.</p> <p>3. The description of a public hall or hotel by its reputed name, and as being upon a certain street in a certain city or town, is good.</p> <p>4. The description of the premises in the affidavit in this case as “the westerly portion of the building known as ‘Newings Hotel,’ situate on Broadway, Long Branch City, in the county of Monmouth,” is sufficient to comply with the statute.</p>

<p>1. The surrogate of a county in probating a will acts judicially and holds a court.</p> <p>2. Whether an official holds a court is to be determined from the functions conferred upon him which he is empowered to perform.</p> <p>3. The surrogate is made by statute the recorder of the papers and decrees in his own court; in fact, clerk of- his own court.</p> <p>4. He may exemplify the records of his office, under the act of congress, by making the necessary certificates both as judge and clerk.</p>

<p>On certiorari.</p>

<p>1. A conviction under the “Act concerning disorderly persons” must be of some offence named in the statute.</p> <p>2. The conviction in the record in this case is in these terms : “Upon the law and testimony, I convicted the defendants of being disorderly persons, as charged.” Such a conviction does not find the defendants guilty of any offence.</p>

<p>On certiorari to the Burlington County Common Pleas.</p>

<p>Where a statute gives a municipal council power to impose license, fees for revenue, the council itself must fix the fees. It cannot delegate, the power to fix them to the mayor or, in his absence, t'o the city recorder.</p>

<p>On certiorari.</p>

<p>On certiorari bringing np an order of a justice of the Supreme Court appointing commissioners to condemn land.</p>

<p>On certiorari to Justice’s Court.</p>

<p>On rule to show cause why'mandamus should not issue.</p>

<p>A special act of the legislature affecting a particularly described territory is violative of the section of the constitution requiring notice to be given of all applications for special acts, if the description included territory not described in the notice.</p>

<p>A person who, for a distance of fifty feet along- a public highway from a railroad crossing, has an unobstructed view of the track for sixteen hundred feet, is guilty of contributory negligence in an action brought against the railroad company for killing cows which were in his control and driven by him along the highway across the railroad.</p>

<p>A member of a benefit society who has been expelled from membership in the society by a tribunal not authorized by the constitution and by-laws of the order, and from whose decision no appeal is provided, is entitled to a writ of mandamus to reinstate her into membership.</p>

<p>The city of Elizabeth is not authorized by its charter, nor by the supplements thereto nor by any general laws of the state, to pass an ordinance to vacate a street and attach thereto conditions under which the ordinance may not go into effect at all, or under which, if it did go into effect, the vacation might be revoked and the street again become a public highway.</p>

<p>On certiorari.</p>

<p>A person appointed by a township committee to superintend the making and repairing of roads, under a supplement to the Road act (Gen. Stat., § 2835), is not the overseer of the highways authorized by section 50 of “An act concerning roads” (Gen. Stat., p. 2817) to bring the action to recover the penalty provided by that section for narrowing, encroaching upon, stopping or obstructing a highway.</p>

<p>On certiorari.</p>

<p>1. A taxpayer and inhabitant of a city is entitled to interpose, by information in the nature of a quo warranto, when its municipal' officers have been illegally selected.</p> <p>2. The supplement of February 24th, 1892, to “An act to establish an excise department in cities of this state,” passed April 8th, 1884, is unconstitutional in that the object of the supplement, as. set forth in the body thereof, is not expressed in its title.</p>

<p>A municipality entered into a contract with a public lighting company by the terms of which the latter were required to erect and maintain, at such places in the streets of the municipality as the lighting committee thereof might direct, certain incandescent lamps, and to furnish and erect the necessary poles for the same. Held, that the erection by the lighting company of a pole upon one of the streets of the municipality, in pursuance of the terms of this contract, without obtaining the consent of the abutting owner, did not subject the company to liability for violation of a prior ordinance of -the municipality which prohibited the company from erecting a pole in any street or highway of the municipality without the consent, in writing, of the owner in front of whose property the pole should be erected.</p>

<p>On certiorari to review judgment of the Elizabeth District Court.</p>

<p>An adjusted assessment,. made by commissioners under the Martin act, although irregular for the reason that it embraces several lots which were originally assessed separately, will not be set aside on certiorari, after it has been submitted to and confirmed by the Circuit Court as provided by the statute.</p>

<p>It is only when the minds of parties to a lease concur in the common intent of relinquishing the relation of landlord and tenant, and execute that intent by acts tantamount to a stipulation to put an end thereto, that a surrender by act and operation of law arises.</p>

<p>By a resolution of the city of P., every applicant for a liquor license is required, at the time of making his application, to deposit the amount of the license fee with the city clerk. Held, that the deposit of the license fee vests a conditional right thereto in the municipality, which becomes absolute upon the granting of the application.</p>

<p>On certiorari.</p>

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

<p>Where the appointee to a public office has been duly inducted into such office, the proper method by which his right to continue to occupy it may be tested is by an information against him in the nature of a quo warranto.</p>

<p>1. An agreement between the owner of lands and another that the latter shall farm the lands on half shares, paying for the labor required to cultivate, gather and market the crops, does not create the relationship of landlord and tenant between the parties thereto.</p> <p>2. In a proceeding brought under the eleventh section of the Landlord and Tenant act to recover possession of lands and premises, the facts out of which the relation of landlord and tenant is claimed to arise must be set forth in the affidavit; it is not enough that the affiant swears that the person in possession is her tenant, or that the premises were let and rented to him.</p>

<p>The refusal of an attorney to obey the command of a subpoena duces tecum cannot be justified on the ground that the paper which he is required to produce contains a privileged communication from his client. If he desires, upon that ground, to be excused from obeying the command of the writ, he must apply to the court, out of which it issued, to quash it.</p>

<p>The losing party, in an action brought in a Court for the Trial of Small Causes, is entitled to have the judgment entered there reviewed, either by appeal to the Court of Common Pleas or by certiorari to the Supreme Court, when the justice was without jurisdiction to render the judgment. But having selected one of these methods of review, and subsequently abandoned it, the other is no longer open to him.</p>

<p>On certiorari.</p>

<p>On certiorari. On motion to quash indictment.</p> <p>The legislature of this state, on March 24th, 1899, passed-an act entitled “An act for the better regulation and control of the taking, planting and cultivating of oysters on lands lying under tidal waters of the Delaware bay'and Maurice river cove, in the State of Now Jersey.” Pamph. L., p. 506.</p> <p>This act, as its title suggests, creates a complete scheme for the planting, cultivating and taking of oysters on the lands of the state lying under the tidal waters mentioned.- The first section provide^ for the creation of a “state oyster commission,” which shall have the exclusive regulation and control of all the oyster grounds of the state lying under those waters. Sections 2 and 3 empowei' the commission to appoint an “oyster superintendent” and to employ surveyors and guards to enforce all laws regulating the taking, planting or cultivating of ojrsters in the waters mentioned. Section 4 provides for the maintenance of an office and the holding of meetings by the commission. Section 5 authorizes the commission to lease to applicants any of these lands, for the purpose of taking, planting and cultivating oysters thereon; “provided, however, that no lease or leases shall be granted to any person who shall not be at the time of granting of said lease or leases, and shall not have been for twelve months next preceding, a citizen and actual resident of this state; provided, nevertheless, that any person not a citizen or resident of this state, already holding and using ground or grounds south of said southwest line in the Delaware bay. and Maurice river cove and having oysters planted thereon under any usage, custom or existing law of this state, may apply for and receive a lease or leases for said ground or grounds so held at the time of the adoption of this act.” Sections 6 and 7 fix the terms upon which the lands may be leased and give the first right to apply for and receive a lease to persons now having such lands staked up. Section 8 authorizes the commission to survey and map leased land. Section 9 excludes from the operation of the law all natural oyster beds lying under these waters. Section 10 authorizes the oyster superintendent to issue licenses to captains of boats entitled by law to engage in the business of catching, planting and growing oysters in these waters, upon their paying the license fixed therefor by the state oyster commission, and prohibits all boats' from dredging for or catching oysters or carrying on the oyster business therein without first obtaining such license and paying the fee. It also authorizes the state oyster commission to fix the license fee at any sum not exceeding $2 per ton on the tonnage measurement of such boats. Section 11 requires the state oyster commission, before issuing any lease, to cause the person applying for the same to make oath that he is a citizen and actual resident of the state, and has been such for twelve months next preceding his application, or that,, at the time of the adoption of the statute, he was holding or using, and has since continued to hold or use, for the purpose of taking, planting- and cultivating oysters, the lands for which the application for a 'lease is made. It further requires that the oyster superintendent, before issuing a license for a boat, shall cause the master or captain to make oath that such-boat is wholly owned by citizens and actual residents of this-state, who have been such for twelve months next preceding, or that, at the time of the adoption -of the statute, the boat was duly licensed, under laws exising at that time, to carry on the business of catching, planting and growing oysters in Delaware bay and Maurice river cove. Sections 12, 13 and 14 relate to unexpired licenses and to the disposition of the revenue received under the act. Section 15 requires the oyster superintendent to keep an account of fees received by him and submit such accounts to the state comptroller, and, after they have been audited by that officer, to pay over the njoneys shown thereby to the state treasurer. It also requires the payment by that officer of bills incurred by the state oyster commission. Sections 16 and 17 prohibit the taking of oysters from lands under these waters which are held by lease from the state oyster commission except during a designated period, and at any time from such lands as are not held by lease from the commission. Section 18 requires the return to the waters of all oyster shells and other materials, except oysters, which shall be taken up in the process of dredging. Section 19 empowers the state oyster commission to adopt ordinances to regulate the taking, catching and cultivating of oysters in these waters. Section 20 provides that “any person or persons who shall hereafter dredge upon or throw, take or east his oyster dredge, or any other instrument used for the purpose of catching oysters, upon any oyster bed or ground duly marked, buoyed or staked up within the waters of this state, belonging to any other person, without the permission of the lessee or lessees thereof, shall be deemed guilty of a misdemeanor and of a violation of the provisions of this act.” Section 21 authorizes the members of the state oyster commission, the oyster superintendent and the several captains or' masters of guard boats to arrest, on view, without special warrant, any person engaged in violating the provisions of the act, or the provisions of any ordinance adopted by the state oyster commission. Section 22 provides for the revocation of licenses under certain conditions. Section 23 excludes from the privileges of the act any person or boat which, at the time of its passage, was prohibited, by the laws of this state then in force, from engaging in the business which the act regulates and controls. Section 24 is a disclaimer of any intent to confirm or verify, by the act, the title of any person to any of these lands. Section 25 provides that “any person violating any of the provisions of the act, or any ordinances duly adopted by the state oyster commission, or the provisions of any other law of this state regulating the taking, planting or cultivating of oysters in the Delaware bay or Maurice river cove, in -force and not repealed by this act, shall be deemed guilty, of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding $1,000, or imprisonment in state prison not exceeding five years, or both.” Section 26 repeals all inconsistent legislation.</p> <p>The indictment brought up for review is found under the twentieth and twenty-fifth sections of the act, and charges the prosecutor with unlawfully" dredging for oysters upon a certain oyster bed, duly staked out, marked and buoyed, within the waters of Delaware bay and Maurice river cove, and belonging to and in the possession of one Hager, under a lease made to him by the state oyster commission, without the permission of the lessee.</p>

<p>1. In proceedings to enter judgment by confession upon bond and warrant of attorney, under the statute, an affidavit of the obligee, setting forth, as the true consideration of the bond, a promissory note of a given date and amount made by the obligor to the obligee, without other reference to the consideration of the bond or note, will not support such judgment, and the same will be held void as against a purchaser in good faith of the defendant’s lands upon which the judgment is an apparent lien.</p> <p>2. Where the purchaser of such lands claims to be a corporation, and as such it has been organized in good faith, under appropriate laws, and is in the exercise of its franchise, but, oy reason of some defect in the proceedings to incorporate, is a do facto corporation only, this condition will be no bar to an application to set aside such void judgment, and the plaintiff therein will not be heard in defence of such action to question the validity of such corporation.</p>

<p>On certiorari.</p>

<p>The constitution of a mutual benefit association prescribed the penalty of expulsion against members who shall have impugned the honor or the name of the society, either in word or deed, or who shall have talked against the society, thus staining the good name and honor of the same. Two of the members had been appointed upon a committee to defend certain suits against the society in the civil courts. The suits were decided against the society. A motion to expel the two members on account of the loss of two suits against the society, and in the case of M., one of the two members, on account of his disorderly manner, in pressing a motion for sick benefits for his brother, and his refusal to cease talking when ordered to do so, prevailed. Held, on review, that the charges gave-'no jurisdiction for the expulsion, and that the members so expelled should be reinstated.</p>

<p>1. A street railway, exercising its franchise within a city street, although having a property in its ties, rails and other necessary equipment, is not liable to be assessed for benefits of a street improvement made by the city, under the act of June 13th, 1898 (Pamph. L., p. 466), which directs the assessment to be made in proportion to the benefits acquired by lands and real estate bordering on such street.</p> <p>2. Under the provisions of an ordinance requiring a street railway to keep and maintain the portion of a street inside its rails and for two feet outside of them in good and sufficient repair, the company is not bound to repave within those limits with a new and different material selected by the city, nor is it liable to the expense of such repaving when laid down by the city.</p> <p>3. Where the report of the commissioners making such assessments for benefits is in regular and proper form, the fact that the schedule annexed thereto shows the assessment for pavement and curb in separate columns, with the total carried out opposite, will not invalidate the assessment.</p>

<p>1. While the negligence of the maker of negotiable paper, in leaving blanks therein, may, in some cases, be a bar to the defence of fraudulent alteration, by the filling in of the blanks, when set up by a bona fide holder, this doctrine has no application in a suit by the assignee of paper which is not negotiable.</p> <p>2. An order, in writing, by a retail druggist, directing a wholesale dealer to ship certain merchandise, through any jobber or direct, and purporting to Contain a bill of the goods, with prices annexed, is not a negotiable instrument in the sense stated, and in a suit thereon by the assignee, who was a jobber, for the price of the goods furnished by him, it was held, on review, that the defence of fraudulent alteration would avail against the assignee without notice, even though the signer may have been negligent in leaving blanks in the instrument, whereby such alteration was made easy.</p>

<p>1. The holder of a chattel mortgage, which had not been recorded, and which was not followed by an actual and continued change of possession of the things mortgaged, made a sale thereunder, at which B. bought the mortgaged goods. Pending the proceedings to sell, but before the sale, the landlord of the mortgagor had distrained the goods for rent in arrears, and they were afterwards sold under the distress proceedings to one H., who took the same out of the possession .of B. B. afterwards brought suit in tort against H., and recovered the value of the goods. Hold, on review, that the chattel mortgage, by force of the fourth section of the Chattel Mortgage act (Gen. Stat., p. 2113, § 52), was void against creditors, and that the sale thereunder conveyed no title, as against the purchaser, under the distress proceedings.</p> <p>2. It was also hold that it did not avail anything in favor of the plaintiff; that the mortgagor had taken the goods into his possession ten months after the mortgage was delivered, or that notice of the existence of the mortgage was given to the landlord after the rent'was due and before the distress.</p> <p>3. The Chattel Mortgage act of May 2d, 1885 {Gen. Stat., p. 2113), is not repealed by the provisions of an “Act respecting conveyances” [Revision of 1898], approved June 14th, 1898 {Pampli. L., p. 670), relating to the recording of certain chattel mortgages and conveyances of personal property.</p> <p>4. In the conduct of sales under an “Act concerning distresses” [Revision], approved March 27th, 1874 {Gen. Stat., p. 1207),'although the statute is silent as to adjournments, after the sale itself has been properly advertised, a reasonable adjournment of the sale may be lawfully made, by public announcement, without further advertising.</p>

On habeas corpus. To a writ of habeas corpus the respondent returns that he holds the petitioner under warrant of the governor of this state, issued upon the requisition of the governor of the State of Pennsylvania, for the apprehension of the prisoner as.a fugitive from justice. Copies of such warrant and requisition are annexed to the return.

<p>On certiorari to review assessment for grading and graveling Central avenue in Ocean City.</p>

<p>1. In proceedings by boards of health to enforce ordinances and recover penalties; the statute (Gen. Stat., p. 1642) prescribed the form of the conviction. Held, that a conviction following the form with exactness, excepting the omission of the words “in a summary proceeding,” .will not invalidate the conviction, the complaint and summons both showing that was the character of the proceeding.</p> <p>2. .Where the complaint charges acts which are described and defined as a nuisance by an ordinance of a board of health, it is not necessary that the conviction shall expressly charge the creation and maintenance of a nuisance.</p> <p>3. Evidence returned by a police justice, as part of his transcript, not embraced in the conviction, and not required to be, under the prescribed form, and returned pursuant to any rule of this court, is not part of the record, and'will not be considered by the court.</p>

<p>On certiorari.</p>

<p>In tort. On petition for an order to remove the cause to the United States Circuit Court for the district of New Jersey.</p>

<p>Where, at the trial of a cause at Circuit an amendment of the pleadings was verbally allowed by the court, and after the entry of the judgment, the pleas necessary to raise the real subject-matter of the controversy between the parties were filed under an order allowed by the court — Held, such order was sufficient; the subsequent entry of the rule was a matter of form and though entered, after the trial, was entered mine pro tuno.</p>

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

<p>The denial by a Court of Oyer and Terminer of a new trial in a criminal case is not reviewable under the provisions of section 136 of the Criminal Procedure act of 1898.</p>

<p>In an action for goods sold to a firm alleged to be composed of the three defendants, the issue tried was upon the liability of one of the defendants. The trial judge confined the evidence to a liability arising from that defendant having held herself out as a partner.</p> <p>Held—</p> <p>(1) That evidence that the other defendants had asserted that she was a member of the firm was incompetent; and</p> <p>(2) That the liability of the defendant thus arising for sales made to the firm would extend only to sales made after her holding herself out as a partner came to the knowledge of the plaintiffs.</p>

<p>On error to the Atlantic Oyer and Terminer.</p>

<p>A franchise .to maintain and operate a street railway over public highways and collect tolls from persons traveling upon it is property, and is taxable as such.</p>

<p>1. A municipality was empowered by a supplement to its charter “to run, mark, lay out and designate the lines and courses of those streets within its borders, the lines of which were uncertain.” Under the authority of this charter provision it passed an ordinance appointing commissioners to lay out and designate the lines of F. street. An abutting owner upon said street attacked the validity of the ordinance on the ground that the street was not a public highway at the time of the passage of the supplement. Held, that in the absence of proof of this fact the ordinance should be sustained, the burden being on the abutting owner to prove the truth of her allegation.</p> <p>2. The supplement required the commissioners, after running and laying out the lines of such streets, to make a map and profile thereof, and provided that the map and profile should be “full evidence of the street and of its lines and courses.” Held, that, by the true construction of this provision, the commissioners’ map and profile are made prima facie evidence of the lines and courses of the street.</p>

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

<p>On error to the Supreme Court. For opinion of that court see 37 Vroom 561.</p>

<p>1. In an action of ejectment for land occupied by the defendant, a plea of not guilty admits such possession as excludes the plaintiff.</p> <p>2. The owner of the soil in a street may maintain ejectment against any person wrongfully taking or claiming exclusive possession of the same.</p> <p>3. A person occupying part of a street with poles and appliances for lighting the street, in pursuance of a contract made with the municipal authorities under the act of May 22d, 1894 {Pamph. L., p. 477), has such rightful exclusive possession of the part so occupied as will support a plea of not guilty in an action of ejectment brought by the owner of the soil.</p> <p>4. But the right of such a person to use the street in the immediate vicinity of his poles and appliances for the purpose of maintaining them, is not capable of supporting such a plea.</p> <p>5. If a person who has rightfully placed poles and wires in a street for the purpose of lighting the street, uses them wrongfully for private lighting, he does not thereby lose his right to maintain them as against the owner of the soil.</p>

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

<p>1. A motion made in the Supreme Court to open one of its judgments regularly entered by default is addressed to the discretion, of the court, and its determination thereon cannot be reviewed by writ of error.</p> <p>2. The supplement to the Practice act, approved March 28th, 1895 (Gen. Stat., p. 2596), is incapable of impairing the discretionary nature of the power, so as to make a refusal to open the judgment subject to review on error.</p>

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

<p>Where patties have entered into a contract and one of them after-wards requests the other to address him a letter that is capable of the construction that such contract has not been made, the conversation that induced the writing of such letter is admissible proof upon the question of the existence of the contract. In such ease the meaning of the words employed in the writing is a court question, but the purpose for which the writing came into existence is for the jury. The object of the oral testimony is not to alter, vary or contradict the sense of a writing, but to show that the writing itself was not what upon its face it seemed to be.</p>

On error to the Supreme Court. The plaintiff below recovered verdict and judgment in ejectment, and error is assigned upon exceptions sealed at the trial. Both parties claim title under the same deed, the defendant by reason of the conveyance and the plaintiff by reason of an alleged breach of its conditions.

<p>1. The manager of a sales branch of a manufacturing and merchandising business was, on January 2d, 1897, employed, indefinitely as to time, at a weekly salary and “a commission of three per cent, on cash receipts less all expenses” of the branch “to be computed yearly, payable after three months’ notice. Three months’ notice to be given by either party before termination of the employment.” The employment was terminated in October, 1897, without previous notice, under circumstances that, for the purposes of this case, must be held to imply the mutual assent of the parties, and the salary of the manager to that time was paid.</p> <p>2. In a suit brought by the manager against the employer in February, 1898, the plaintiff recovered verdict and judgment for commission on the daily cash receipts less the daily expenses of the branch up to the termination of the employment. On writ of error of the defendant — Held—</p> <p>(1) That the termination of the employment by mutual assent did not forfeit the right to commission.</p> <p>(2) That the commission could properly be ascertained only by deducting from the cash receipts of the whole year. 1897 the expenses of that year and reckoning the agreed percentage on the proportionate part of the residue represented by the manager’s time of service during the year.</p> <p>(3) That cost of merchandise was not to be included in expenses.</p> <p>(4) That the commission earned was not payable except on three months’ notice after January 1st, 1898, and that therefore the suit was prematurely brought.</p>

On error to the Supreme Court upon a judgment entered on a verdict directed lor the plaintiff at the Essex Circuit by the trial judge.

<p>1. Where there is a conflict in the evidence or lack of conclusive an unquestioned proof of the falsity of a warranty, the question is one for the jury.</p> <p>2. There must exist no rational theory upon which the jury might find the non-falsity of the answers of the insured before the court can direct a verdict for the defendant. If there be a rational doubt of the falsity of the statement, the case is for the jury.</p> <p>3. If the question asked relates to a matter upon which the insurer should know that the insured could not have the knowledge to fully answer, the warranty will not be held to be more than a warranty in the fair sense of the question, namely, to the belief of the insured.</p> <p>4. In an action on a policy on the life of one for the benefit of another, the declarations of the insured before or after the insurance are not competent evidence against the beneficiary unless part of the res gesta;.</p> <p>5. The several answers in this case alleged to .have constituted the breach of warranty considered and found to have been rightly left to the jury by the learned trial justice. *</p>

<p>1. The fact that the matter alleged to be libelous had been, previous to its publication in a newspaper, (1) a matter of common rumor, or (2) found in affidavits, charging the plaintiff with the offence, which had been filed with a justice of the peace, or (3) found in a petition for divorce, which had been filed in Chancery by a complainant charging that the plaintiff had committed the offence published, is not legal ground for a justification of the publication of the libel.</p> <p>2. Such facts are proper to be taken into consideration by the jury in determining what damage the publication had done to the plaintiff.</p>

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

<p>1. Where the abutting owner or those under him find it necessary in' the improvement of the abutting property to make excavations in or along a city street, it becomes their duty to exercise reasonable-care to-properly guard the excavation to prevent accident.</p> <p>2. They may perform this duty by erecting guards or barriers, or by giving warning by lights or otherwise to protect the careful traveler from injury; the sufficiency of such guards or warnings under the circumstances of a given case being a question for the jury.</p> <p>3. In the erection of a fence to guard such an excavation, the owner is required to make it sufficiently secure to withstand any wind that a reasonably prudent man ought to have anticipated in-building such a fence. If it fall, causing" injury, only because the wind was of such extraordinary violence or unusual character that a reasonably prudent man would not have anticipated it, the owner would not be liable.</p> <p>4. The plaintiff was injured by the fall of a fence induced by a high wind and by his precipitation thereby into an excavation made-along a city street for building purposes and obtained a verdict for damages. Exceptions were taken on the trial to refusals to nonsuit and to direct a verdict, and also to refusals to charge as requested. I-Ield, on review, that there were no errors in the rulings."</p>

<p>Is In an action of tort against a railroad company for negligently operating its locomotives in such manner as to cause them to emit smoke denser and more offensive in quality, and greater in volume, than reasonably required for the proper operation of the railroad, to the injury of plaintiff’s property situate near to the railroad, where the evidence shows such negligent operation and substantial damage to the plaintiff’s property directly attributable thereto, it is erroneous for the trial court to limit the plaintiff’s recovery to nominal damages on the ground of the inherent impossibility of determining how much of the damage was caused by smoke necessarily emitted in the careful operation of the railroad and how much was caused by the smoke that was due. to negligent operation.</p> <p>2. In an action of tort, if it be impossible in the nature of the case to distinguish between the damage arising from the actionable injury and damage which has another origin, the jury should be left to make, from the evidence, the best estimate in their power as reasonable men and award to the plaintiff compensatory damages for the actionable injury.</p>

<p>Where the owner or occupier of lands, by express invitation, induces a person to make use of a portion of the premises for an expressed purpose, his liability is confined within the limits of the invitation and does not extend to injuries received by the person invited while using the premises for a purpose not expressed and not authorized by the invitation.</p>

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

<p>In an action by an administrator to recover money due the estate of his intestate, the widow of the latter is a competent witness as to any transaction with or statement by such intestate, and the defendant is not a competent witness as to such subject-matter unless the administrator has offered himself as a witness on his own behalf and has testified to some transaction with or statement by his intestate.</p>

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

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

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

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

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

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

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

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

<p>On mandamus. On demurrer to return to writ.</p>

<p>On quo warranto.</p>

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

<p>1. Municipalities “having a special charter” or “governed by a special act of incorporation” do not constitute a class for which exclusive legislation is constitutional.</p> <p>2. Goldberg v. Dorland, 27 Vroom 364, followed.</p>

On rule to show cause. The plaintiff, in his declaration, complained of negligence in the operation of the defendant’s electric, street car, on which he was a passenger, whereby he was injured through collision with a wagon standing in the street. The circumstances were not stated. At the trial there -was a nonsuit ordered at the close of the plaintiff’s ca*se.

On rule to show cause. The plaintiff declared, as in assumpsit, upon an unsealed policy of insurance issued December 4th, 1899, whereby the defendant agreed to pay $1,000, twenty years after date, to John W. Dimiek, called the insured; and if, prior to that time and while the policy should be in force, he should die, then to pay that sum to Bridget Dimiek, his wife, called the assured, if living; otherwise to the legal representatives of the insured.

<p>1. In an action against two or more defendants, if there be a count showing a cause of action against all, it is improper to join a count showing a cause of action against some or one only.</p> <p>2. Such a misjoinder of counts affords cause for a general demurrer to the whole declaration.</p>

<p>On demurrer to declaration.</p> <p>The plaintiffs declare in covenant for breach of the warranty of title contained in a deed of conveyance, set forth, from the defendant to the Spring'Lake and Sea Girt Company, dated December 19th, 1889, of a tract of land in the county of Monmouth, described by metes and bounds, excepting there-out such portions as had been theretofore conveyed by deeds on record or leased by the defendant. In the description of said tract there are incidental references to avenues shown on “the map of the Spring Lake Beach Improvement Company.” The habendum is in fee, and there are the usual covenants and warranty extending to the grantee, its successors and assigns. It is averred that on August 23d, 1892, by deed, set forth, the Spring Lake and Sea Girt Company conveyed to the plaintiff and another person, since deceased, and that the grantees entered on a plot of land known as block 41 on a “plan of lots of Spring Lake, filed in the office of the clerk of Monmouth county May 16th, 1878,” a map of the plot conveyed being annexed to the deed, together with the right of using the streets and avenues shown on said plan, but reserving the soil thereof. The map annexed shows a tract bounded on the north by Passaic avenue, on the west by Fourth avenue, and otherwise by the waters of Spring Lake. Habendum in fee with full covenants and warranty. It is then averred that the premises conveyed by the deed last recited are a part of those conveyed by the deed first recited. It is assigned for breach of the warranty of the deed first recited that the land described in the deed of August 23d, 1892, with other lands of the defendant, had, before December 19th, 1889, been dedicated by the defendant to public use as a park and a way of access to the waters of Spring Lake, and that the owners of other lands sold and conveyed by the defendant and by the Spring Lake and Sea Girt Company and the inhabitants of the borough of Spring Lake and the public at large, then had and now have the right to enter upon said lands for pleasure, amusement, recreation and health and as a way of access to the waters of Spring lake, and that their right and title to said lands and premises are paramount, and that there has been entry, eviction and ouster of the plaintiffs, to their damage, &c.</p> <p>To this declaration the defendant interposes a general demurrer.</p>

On error to the Monmouth Quarter Sessions. The defendant was convicted upon the following indictment: “Monmouth county, to wit: The grand inquest of the State of New Jersey, in and for the body of the county of Monmouth, upon their respective oaths present that Prank S. Bartholomew, late of the borough of Deal, in the said county of Monmouth, on the second day-of April, in the year of our Lord one thousand nine hundred and one, at the borough aforesaid, in the county…

<p>In a suit for assault the defendants pleaded that the plaintiff unlawfully interfered with the business of the defendants in a specified close, and was gently removed in the supposed trespasses. The plaintiff replied (1) that she did not unlawfully so interfere with such business, and (2) that excessive force was used against her. On the trial of the issues joined in the suit the proof was mainly addressed to the question of the defendants’ right to possession of the close at the time of the occurrences involved. The clear weight of the evidence was in favor of such right and of the justification pleaded. There was testimony that incidentally the plaintiff, while standing outside of the close, which was part of the right of way of a pipe line for a water-supply, was pressed against by a section of steel pipe, being rolled into place in the close, but projecting beyond it, and in front of which, as it was being rolled, she placed herself. She was not bruised or hurt by the contact. The claim of injury was of chronic neurasthenia resulting from the nervous excitement of the contest to prevent the occupation of the close. Held, that a verdict for substantial damages could not be sustained even if what so occurred outside the close was technically a trespass.</p>

<p>On information in the nature of quo warranto. On demurrer to plea.</p>

<p>1. Under the revised Borough act (Pamph. L. 1897, p. 285, §§ 4, 8), providing that the councilmen shall hold office for the term of three years and until their successors shall have qualified by filing an official oath, where it happens that the terms of two councilmen expire simultaneously, and two new members have been elected to fill these vacancies, the filing of the official oath by one of the new councilmen terminates the office of doth the old members; neither of the latter being in a position to say that it is his successor who has not qualified. The doctrine of Kilburn v. Conlan, 27 Vroom 349, applies.</p> <p>2. Under the revised Borough act (Pamph. L. 1897, p. 285, §§ 3, 23, 26), the appointment of one to the office of common councilman to fill a vacancy requires not only a nomination by the mayor, but the affirmative vote of a majority of the whole council, the mayor having no Vote thereon except to give a casting vote in case of a tie.</p> <p>•3. One who is acting as a councilman de facto and not de jure, cannot, by .his own vote upon his own appointment, confer upon himself a de jure title to the appointive office.</p>

<p>1. The general rule that one who is not a party to a contract cannot-maintain an action of tort in respect of the breach of a duty arising solely out of the contract, applies to stipulations imposing a continuing obligation.</p> <p>2. In order to maintain an action of tort for breach of a contractual duty, the plaintiff must have the same status under the contract as would entitle him to maintain an action upon contract for a breach of its stipulations.</p> <p>3. The statute of Tune 13th, 1898 (Pamph. L., p. 481), extends to-contracts under seal the same rule which had already obtained with respect to simple contracts, so as to enable a third person, for whose benefit a contract is made, to maintain an action thereon in his own name although the consideration did not move from-him. This rule is limited to those for whose benefit the contract was made, and is not extended to third parties who only indirectly and incidentally would be advantaged by its performance.</p> <p>4. Where a contract is made by a public corporation for the construction of a public work, and incidentally contains stipulations, intended for the safety of the public, an individual, who sustains, personal injuries by reason of the non-performance of such stipulations, does not bear such a relation to the contractor as will' support an action of tort against the latter, based upon the mere-violation of the contractual duty. The injured party is remitted, to his action for breach of such duty (if any) as may be imposed; upon the defendant aside from the contract.</p>

<p>Under section 126 of the Practice act (Gen. Stat., p. 2554), which provides, “that the plaintiff or defendant in any action may aver performance of conditions precedent generally, and the opposite party shall not deny such averment generally, but shall specify in his pleading the condition precedent, the performance of which he intends to contest,” where a pleader confines himself to a general averment of the performance of conditions precedent, he is not required to particularly recite the conditions themselves. The section has the effect of imposing upon the opposite party, if he intends to contest the performance of a condition precedent, the duty of setting forth the condition as well as the duty of denying its performance.</p>

<p>On certiorari to reduce assessment.</p>

<p>1. Penal statutes of one state can have no operation in another— they are strictly local in their effect.</p> <p>2. A statute which gives a remedy for an injury, against him by whom it is committed, to the person injured, and to him alone, and limits the recovery to the mere amount of the loss sustained, belongs to the class of remedial statutes.</p> <p>3. The New York statute against gaming, like our own, is a remedial statute giving a right of action both against the stakeholder and the principal to whom he pays the money. A judgment in New York against the stakeholder, which is unsatisfied, is no bar to a suit in this state against the principal.</p>

<p>1. Service of summons on the clerk and the three members of council of Cape May Point is sufficient service, there being no mayor, the service being made fifteen days before the' return day, in accordance with the common law practice.</p> <p>2. By service of a copy of the declaration upon the same officers, the plaintiff was entitled to enter judgment by default after the lapse of thirty days.</p>

<p>On appeal from an order of the Camden County Quarter Sessions adjudging the defendant in contempt.</p>

On rule to show cause why a mandamus shall not issueeommanding John H. Oonger, county clerk of Middlesex county, to permit access- to, and use of, the books of deeds and indexes, and the delivery of said books to the relators, to betaken to a room in the court house at New Brunswick, to prepare a combination index thereof and to continue such , indexes as now exist.

<p>1. If it appears that the trolley car motorman is not going to respect your rights to cross the street first, you must wait, or you are guilty of contributory negligence if hurt.</p> <p>2. A person cannot take chances and hold himself free from contributory negligence. There is a difference between an unforeseen peril and being overtaken by one recklessly incurred.</p>

<p>On certiorari to bring np an order of a justice of the peace convicting the prosecutor of being a disorderly person.</p>

<p>1. Subdivision 8 of section 32 of tbe General Township act (Pamph. L. 1899, p. 380) confers express authority upon the township committee to pass ordinances for the removal of trees from the highways.</p> <p>2. A unanimous vote of the township committee is not necessary to pass an ordinance under subdivision 8 of section 32, but it is under subdivision 7 of that section. A comparison of the language used in section 21 and subdivision 7 of section 32 will show them to be identical.</p> <p>3. This writ must be dismissed, also, for the reason that it is not directed to the municipality “the township of Landis in the county of Cumberland.” It should not be directed to the clerk or members of the township committee alone.</p> <p>4. Davis v. Town of Harrison, 17 Vroom 79, correctly states the practice in such cases.</p>

On certiorari to remove an assessment for benefits (confirmed by the Circuit Court of the county of Passaic) for the construction of a sewer through North Fifth street and Cliff street, from Temple street to Rip Yan Winkle avenue, in the city of Paterson.

<p>The court will not interfere with the action of a municipal corporation in a matter which is committed to its discretion, so long as it acts honestly and within the limits of its power.</p>

<p>1. Under section 6 of the supplement of 1885 to the Cemetery act (Pamph. L., p. 165), if the municipal authorities consent, and the local board of health refuses to grant permission to the location of a cemetery within the municipality, this is a refusal to grant consent, within the meaning of the act, and application may be made to the state board of health to reverse such action of the local authorities.</p> <p>2. In hearing an application to locate a cemetery, uncler the above provision, the state board of health acts judicially, and persons interested have a right to be heard before that board.</p>

<p>1. One who extorts money from another cannot set up in defence to a suit for the money extorted that he acted as agent and has paid over the money to his principal.</p> <p>2. In such case action for money had and received will lie.</p> <p>3. The District Court has the power of amendment as fully as the higher courts.</p>

<p>1. The proceedings of a municipal corporation, with reference to the . purchase of a site for the erection of a public school building thereon will not be set aside because not in accordance with the provisions of “An act to establish a system of public instruction” [Revision of 1900] (Pamph. L., p. 192), that act having been declared to be unconstitutional.</p> <p>2. Where a prosecutor who seeks to set aside the proceedings of a municipality in purchasing lands has delayed suing out his writ of certiorari nearly a year after the resolution to purchase was passed, and more than eight months after the money was actually expended for the purchase, he is in laches, and the court will not consider the objections.</p> <p>3. Where no statute requires a municipal board to advertise for proposals for doing work, such board may make such contracts without advertising, and if it does advertise, reserving a right to reject any or all bids, it may enter into any contract it deems best for the interests of the municipality, without reference to the advertisement.</p> <p>4. If the advertisement for bids by a municipal body, to do work which that body is not required by law to advertise for, reserves the right to reject any or all proposals, and contains a clause that none but union labor shall be employed, a contract entered into not in accordance with the advertisement, and not containing that clause, will not thereby be vitiated.</p> <p>5. Where a municipal body has by law discretion in awarding contracts, such contracts will not be set aside unless it appears that there is fraud or a palpable abuse of that discretion.</p>

<p>A street railway company obtains no such rights in a public road or street by the construction and operation of a railway therein, under an ordinance passed ultra, vires, as will prevent the township committee from granting permission to another railway company to construct and operate its railway in the same public road or street.</p>

<p>The facts proved justified the submission to the jury of the negligence of the defendant and of the damages to the plaintiff.</p>

<p>On quo warranto. On motions to quash information and discharge rule to plead, and for a rule to show cause.</p>

<p>1. Under the charter of Atlantic City (Pamph. L. 1866, p. 314) the council may legally enact a maximum penalty (within the limits of the charter) for the violation of municipal ordinances, and thus permit the trial court to exercise its discretion in adjusting the penalty to the particular case proved.</p> <p>2. A complaint that the accused obstructed a highway by leaving his wagon standing there when not in use, and interfered with public travel thereon, charges but a single offence, the obstruction and interference being only the effects of the position of the wagon.</p>

<p>1. The act of March 19th, 1900 (Pamph. L., p. 74), amending section 8 of the Telegraph Companies’ act of April 9th, 1875 (Gen. Stat., p. 3457), does not impair the power granted by the act of March 11th, 1880 (Pamph. L., p. 201), to acquire by condemnation the right to use public roads for poles and wires, in cases where the owner of the soil refuses to consent to such use.</p> <p>2. The act of March 20th, 1900 (Pamph. L., p. 79), designates the procedure to be followed in such condemnation.</p> <p>3. In such procedure the petition need not be authenticated by the corporate seal; nor need an effort be made to obtain the consent of a mortgagee of the soil, when the owner refuses to consent.</p>

<p>1. A judgment recovered on the common money counts is not excepted from the operation of a discharge in bankruptcy, under section 17 of the United States Bankrupt act of July 1st, 1898, as a judgment in an action for fraud.</p> <p>2. On the discharge in bankruptcy of a debtor against whom a judgment was, before the discharge, recovered for a debt that is within the operation of the discharge, execution of the judgment by the creditor should be perpetually stayed.</p> <p>3. After the debtor has been discharged in bankruptcy, the creditor cannot use such a judgment to set aside as fraudulent against him a conveyance made by the debtor of his property, since the right to avoid such conveyances and recover the property so transferred is vested in the trustee in bankruptcy by section 70 of the Bankrupt act.</p>

<p>On certiorari in matter of taxation.</p>

<p>On certiorari to District Court.</p>

<p>On motion to strike out plea.</p>

<p>1. An ordinance requiring the owner or driver of a stage used in the transportation of passengers to obtain a license therefor, is within the authority given to borough councils by the act of April 24th, 1897 (Pamph. L., p. 285, § 28), “to license and regulate the use of stages used in the transportation of passengers.”</p> <p>2. An ordinance which directs that a person sentenced to pay a fine for violating it and failing to pay the fine, shall be imprisoned for thirty days, but that the magistrate may in his discretion for such default sentence to imprisonment for a less time, will support a sentence for thirty days.-</p> <p>3. Under section 11 of the Borough act of 1897 (Pamph. L., p. 285), irregularities in the proceedings of the borough magistrate may be rectified on the appeal to the Common Pleas.</p> <p>4. A law requiring that stages used for the transportation of passengers should be licensed, and providing that persons violating the law might be fined $100 or imprisoned for ninety days, does not</p> <p>■ deny to the drivers of such stages the equal protection of the laws, or subject them to cruel and unusual punishment.</p>

<p>On certiorari.</p>

<p>1. In a replevin suit brought in a city District Court, where the de-. fendant retains possession of the goods by putting in claim of title- and giving bond, and the plaintiff recovers upon the trial in whole- or in part, the docket entry of the judgment must show the title-to the goods as found and the value of those belonging to the-plaintiff. A general judgment for so much money, without incor-. porating the finding as to such title and value, is invalid.</p> <p>2. Such judgment cannot be rendered for debt, but must be in damages as well for the value of the goods and chattels as for taking; and detaining them.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. Where a city ordinance provided that the driver of every omnibus . or other public conveyance “that may be required to be licensed” should wear in a prominent position on his clothing the number corresponding to the number assigned to the owner of such conveyance by the officer granting the license, it was held on review of a summary proceeding to enforce a penalty for violation of the provision, that the conviction, among other things, must show proof that the omnibus in question was one of a class “required to be licensed” under the ordinances of the city.</p> <p>2. In summary proceedings to recover a penalty for the violation of a city ordinance, the conviction must show a case clearly and distinctly within the provisions of the ordinance.</p>

<p>1. Where a suit is brought upon a contract made in a sister state, the leas loei eontraetus must control in determining its validity as to the form and solemnities to be observed in its creation.</p> <p>2. In interpreting the foreign statute as applied to the contract in question, the court were the suit is brought will follow the rules of interpretation as laid down by the courts of such foreign state.</p> <p>3. Under, the statute of frauds of New York (Laws of N. Y. 511), every contract for the sale of goods of the value of $50 or more, where the buyer does not accept and receive part of the goods sold, nor pay any part of the purchase-money, is void, unless such contract, or some note or memorandum thereof, is in writing, to be signed, &c.</p> <p>4. Where a defendant, who was doing a retail trade in Atlantic City, New Jersey, ordered the plaintiffs, who were importers and manufacturers of Bohemian glass novelties, &c., in the city of New York, an assortment of watch cases and cologne articles to be thereafter manufactured in Europe, with the words “Atlantic City” thereon, for the special use of defendant’s trade, it was held, following the decisions of the State of New York, that this was not a contract of sale, but for work, labor and materials, and hence not a contract within the statute of frauds.</p>

<p>On certiorari.</p>

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

The judgment of the Supreme Court brought up on this writ of error was rendered December 5th, 1901, and set aside and annulled an ordinance of the township committee of the township of Pensauken.

<p>On error to the Supreme Court. The Opinion of that court is reported ante p. 23.</p>

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

<p>A passenger on a trolley car notified the conductor to let him off at a certain street corner. The conductor neglected to stop at the designated place. The passenger thereupon stepped out on the running-board, and leaned outward, looking backward, in order to be able to see the conductor and attract his attention. While doing this he was struck and injured by a wagon which he had not observed, but which was proceeding along the street, in the same direction as the car and which was overtaken by it. Held, that the passenger, by leaning out so far from the body of the car as to be carried against a passing wagon, whose presence he had not ob; served, but which he could have seen and avoided had he looked, was guilty of negligence. Held, further, that an injury received under such conditions was not the natural result of the negligent act of the conductor in failing to stop his car at the place designated by the passenger.</p>

<p>1. Nothing will excuse the defendant for the breach of promise of marriage except such a disease or complication of diseases as renders the making of the marriage contract and the consummation of the marriage by marital intercourse impossible.</p> <p>2. It is competent in an action for breach of promise of marriage to prove the pecuniary circumstances of the defendant, but it must be proven by evidence of general reputation; it is not admissible to prove his ownership of specific property. The defendant may rebut this evidence by showing that the general reputation is otherwise, or by showing what property he is really possessed of.</p> <p>S. When the declaration alleges as a ground of special damages the loss of a valuable right of dower in defendant’s property, evidence of defendant’s ownership of specific property may be offered by the plaintiff.</p>

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

<p>1. A Circuit Court held by a judge of a Court of Common Pleas, in pursuance of the act of March 23d, 1900 (Parnpli. L., p. 349, §§ 37, 38), is constitutionally organized.</p> <p>2. Under that act the judge of the Court of Common Pleas derives his authority to hold the Circuit Court, not from the request of the justice of the Supreme Court, but from his appointment as judge of the Court of Common Pleas.</p> <p>3. If, under a contract to do certain work in a specified manner for a specified price and to guarantee the work against certain defects for a specified time, the contractor does the work improperly; the other party may, in a suit for the price, recoup the damages for improper performance, without regard to the guaranty.</p> <p>4. If the plaintiff sues for the price of the work done under a contract, and the defendant, with the general issue, gives notice that he will defend because of defective performance of the work, and the plaintiff intends to insist that the defects arose from the failure of the defendant to perform his obligation under the contract, the plaintiff should give notice of such special matter under section 119 of- the Practice act.</p> <p>5. An unambiguous clause in a written contract cannot be modified by showing similar but somewhat variant clauses in contracts between one of the parties and third persons.</p> <p>6. Exceptions taken at a trial, but not discussed on error, need not be considered by the court of review.</p>

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

<p>1. In the case of a plaintiff two years and nine months old, who was thrown down by the starting of a street car which she had boarded, before she had time to be seated, and while she was, for the moment, out of the reach of her attendant, who was also boarding the ear, it is not error for the court, to refuse to charge the jury “that the starting of a car before a passenger is seated is not negligence.”</p> <p>2. When the trial judge has stated to the jury in concrete terms the legal principles applicable to the case, it is not error for him to refuse to charge the abstract principles.</p>

<p>1. In a suit upon a contract by which the defendant agreed to sell nine hundred heaters under the plaintiff’s letters-patent, and to pay license fees therefor, according to a schedule of rates, plaintiff declared specially that the defendant had sold all of said heaters and had not paid therefor, adding the common counts. The proofs showed that the defendant had sold three hundred and eighty-six heaters, but failed to show that they were under the plaintiff’s patent. A verdict was directed for the plaintiff for the specified royalties for these heaters and also for the lowest rate of royalty upon the five hundred and fourteen heaters not sold. Held, that it was error for the court to assume that the heaters that had been sold were under the plaintiff’s patent, and that it was also error to include in the verdict damages for the defendant’s failure to sell according to his contract.</p> <p>2. The common counts will not support a verdict for damages resulting from a defendant’s failure to do some particular thing which he has agreed to do unless it be the mere failure to pay money.</p>

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

<p>1. The action of ejectment' by the municipal authority is the appropriate remedy against a person unlawfully encroaching upon a public highway under its control.</p> <p>2. A right in the nature of an easement, if it exists in the defendant, does not constitute a defence to an action of ejectment.</p>

<p>On error to the Camden County Circuit Court.</p>

<p>1. The township of Centre, in the county of Camden is, by virtue of the supplement of 1860 (Pamph. L., p. 554) to the Road act of 1846, excepted from the operation of section 20 of the supplement of 1859 (Pamph. L., p. 626; Gen. Stat., p. 2840) to said Road act, whereby townships in Camden and other counties were made liable for damage happening to persons or property by means of the insufficiency or want of repairs of the public roads therein.</p> <p>2. The revision of the Road act in 1874 (Gen. Stat., p. 2803), saving said act of 1859 and the “supplements thereto” from implied repeal, did not, by implication or otherwise, repeal said act of 1860, although it was entitled as a supplement not to the act of 1850, but to the Road act of 1846, expressly repealed by said revision. Both acts were supplementary to the act of 1846, and it was not the legislative intent to preserve the enactment of 1859 except as subsequently modified.</p> <p>3. The case of Dupuy v. Township of Union, 17 Vroom 271, approved.</p>

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

<p>'On error to the Supreme Court. The opinion of that court is reported in 37 Vroom 182.</p>

<p>1. Persons taking the possession, care and control of real property under a trust devise in a will, may be sued in tort as individuals for injuries resulting from their negligent acts or omissions in the management of the property. Whether such trustees may have indemnity out of the trust estate is of no concern as to the rights of a third party.</p> <p>2. An abutting owner or occupant of premises who maintains a coal-hole in a sidewalk in a city street, with a lid upon it which he allows to become so insecure and unsafe that a traveler stepping thereon slips in the hole and is injured, is liable to such injured person irrespective of whether there be liability on the part of the municipality.</p>

<p>On contract. On error to the Essex County Circuit Court.</p>

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

<p>This court, on writ of error, will not review the finding of a question of fact.</p>

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

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

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

<p>1. When a workman has agreed to do, to the satisfaction of his employer, work, the excellence of which is to some extent a matter of taste, the doing of the work in a manner unsatisfactory to the employer is a breach of contract for which the employer may discharge the workman.</p> <p>2. By such a contract the employer reserves to himself the right to pass upon the excellence of the work. It should not be left to a jury to say whether the employer ought to have been satisfied.</p> <p>3. In a suit by a workman under such a contract to recover compensation for an unlawful discharge, proof may be legitimately directed at the trial to the questions whether the employer was dissatisfied, and whether he discharged the workman because of dissatisfaction.</p> <p>4. Where the testimony as to these questions is in conflict, the direction of a verdict for the defendant is erroneous.</p>

<p>A light, one-horse wagon, in which the plaintiff sat, had been driven by another man, over whom the plaintiff had no authority, along a public highway in a southerly direction over a single-track railroad crossing, when its progress was arrested by the lowering of gates that were designed to guard the crossing on that side. The horse and the wagon and its occupants were thus penned in between the gates, some six or eight feet in front of the horse, and the track, the nearer rail of which was about ten feet back of the hind wheels of the wagon. The gates were operated by a man in a tower about two hundred and sixty feet distant. The plaintiff and the driver shouted to the man in the tower to raise the gates. A trolley car came along the highway from the south and stopped on the other side of the gates.. The-plaintiff and the driver continued to sit in the wagon. The gates were not raised. After an interval, estimated by the plaintiff at one minute and á half, a train came from the northeast- at the rate of about thirty miles an hour, and the horse, becoming frightened, backed the wagon against the engine and the plaintiff was injured. Held, that it was for the jury to say whether the plaintiff was negligent in not alighting from the wagon. ■</p>

On error to the Supreme Court. The opinion of that court is reported in 37 Vroom 9. Action of George T. Vickers against the Electrozone Commercial Company for damages for breach of contract for failure to purchase certain drugs for the first year covered by the contract.

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

<p>1. C., a common laborer in the employ of the defendant, was directed with other laborers by the general superintendent of the defendant company to assist in the moving of a large iron punching machine; in the course of the moving a fly-wheel at the end of the machine, which was loose upon the shaft, slipped off injuring the plaintiff, who was in the performance of his work standing in front of the wheel. Held, that the failure to exercise reasonable care for the safety of the servant and properly to inspect the condition of the machine before ordering its removal was a breach of duty on the part of the company for which it was liable.</p> <p>2. If the injury is due to a latent defect which the master either knew or by the exercise of the care required of him might have known, he will be liable.</p> <p>3. A servant is entitled to assume, in the absence of any notice to the contrary, that the master has exercised reasonable care and skill in providing for the safety of the servant.</p>

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

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

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

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