Volume 72 — New Jersey Law Reports

<p>1. The filing, by a defendant, of a demurrer to a declaration, is a waiver by him of all objections to the jurisdiction of the court over his person.</p> <p>2. By virtue of the provisions of “An act concerning obligations,” when one of the defendants, in a suit against joint debtors, is brought into court, the plaintiff is entitled to proceed to judgment against all of the defendants named in the process.</p> <p>3. An act of congress provides that suits brought under it shall be prosecuted only in courts which are authorized to require proper security for costs in case judgment is for the defendant. Helé, that the bringing of an action under that statute, in the Supreme Court, is a tender by the plaintiff of his willingness to furnish such security, provided he is directed by the court to do so; and that, under such circumstances, the court is authorized to require security for costs from him.</p>

<p>In an indictment for the illegal sale of intoxicating liquor the place of sale is a material incident of the crime charged; and an amendment of the indictment, by substituting therein another place for that named by the grand jury, is not warranted by the provisions of section 34 of the Criminal Procedure act.</p>

<p>On quo warranlo. Demurrer to information.</p>

<p>In determining- what judgment shall be entered upon a special verdict, nothing can be looked at, by the court, except the pleadings and the postea.</p>

<p>1. A promissory note, given for an antecedent debt, although it does not operate to discharge the debt, in the absence of any agreement that it should have that effect, extends the credit until the note matures.</p> <p>2. No obligation rests upon the owner of a building, under section 3 of the Mechanics’ Lien law, to retain in his hands pioney of the contractor to meet the demand of a stop notice, unless the sum claimed in such notice is actually due at the time when it is served.</p>

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

<p>1. Whether or not the effect of a municipal ordinance is to discharge a public easement is not a question of fact, to be left to the jury for decision, but a question of law, to be determined by the court.</p> <p>2. When a wharf has been dedicated to public use the local authorities, as the representatives of the public, are clothed with power to do all acts necessary for the protection of the public right; but the legislature alone has the power to release the dedicated land and discharge the public servitude when it has once attached.</p>

<p>1. The averment in a declaration that a car came nearly to a standstill, at the instance and request of the plaintiff, who then and there, at the instance and request of defendant, was then and there invited to become a passenger, is a statement of a conclusion drawn by the pleader from inadequate or undisclosed facts, and is bad on demurrer.</p> <p>2. In a pleading imputing legal liability, the word “invitation” must be given its legal, and not its colloquial, meaning.</p>

<p>1. The refusal of a nonsuit for failure of proofs is not reversible error if such proofs were afterwards supplied by either party in the progress of the trial.</p> <p>2. In the absence of some «statutory provision a bill of exceptions will not be regarded as sealed unless it is identified by the certificate of the trial court.</p>

<p>1. Where delivery of a schooner load of grain by the vendor was a material part of the contract of sale, the vendee, by acceptance and the assumption of the risks incident to a delay in unloading the cargo, may render himself liable for the purchase-price, notwithstanding the schooner sank before it was unloaded.</p> <p>2. McNeal v. Braun, 24 Vroom 617, distinguished.</p>

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

<p>If, by reason of an ambiguity resulting- from the form in which a question has been cast by an insurer, the answer of the applicant (which becomes a warranty) may state the truth or may state a falsehood, according as the ambiguity is resolved, that construction should be adopted that is most strongly against the party who is responsible for the ambiguity, and to this end the insured may stand upon the strict form of the question put to him. by the insurer.</p>

<p>1. A railroad company owes to an engineer employed by it in running a locomotive over its tracks the duty of exercising reasonable care to keep its tracks in a safe condition for this purpose.</p> <p>2. In an action for the death of such employe, caused by a defect in the defendant’s tracks, the jury was instructed that “it was the obligation of this railroad company to use a high degree of care to keep its roadbed in a safe condition for the uses for which it was designed.” Held, that while this instruction is not approved, it affords no ground for reversal when the objection made to it at the trial failed to point out in what respect the language to which exception was prayed was either inadequate, misleading or lacking-in precision.</p>

<p>1. The legal rule defining the defendant’s duty of inspection announced by this court upon the setting aside of a former verdict for the plaintiff (40 Vroom 221), required the nonsuiting of the plaintiff on a second trial, in which the same question was presented.</p> <p>2. The virtue ascribed to a second concurring verdict by Brown v. Paper Company, 40 Vroom 474, is confined to the effect of the determination by the jury of the weight of conflicting testimony, and does not extend to court questions arising from the admitted or uncontroverted facts of a case.</p>

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

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

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

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

<p>1. In a suit upon a policy of fire insurance containing a clause exempting the insurance company from liability for loss “by theft,” it appeared that some of the property insured was stolen during the fire. Held, the defendant was not liable for such loss.</p> <p>2. A clause in a policy of fire insurance exempting- the company from liability for loss caused “by theft” means a loss caused by theft during the fire.</p>

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

<p>1. AVhere a public highway has been made a county road under the provisions of “An act to provide for the permanent improvement of public roads in this state” (Gen. Stat., p. 2902), those employed by the comity to carry out the plans and specifications which in the exercise of a reasonable discretion have been adopted by the county authorities for such improvement, are not liable for the removal of trees growing- within the limits of that part of the county road which by the plans and specifications is required to be graded.</p> <p>2. When a property owner plants trees upon a public highway he plants them subject to the right of the legislature to make such regulation as to the improvement of the highway as will render it more convenient for public use.</p>

<p>If, after denial of a motion for nonsuit for failure of proof, the defect was supplied in the evidence afterward adduced, -the error of refusal will not lead to a reversal.</p>

<p>1. In an action upon contract, tbe evidence of the plaintiff to sustain the burden of proving- that he had fulfilled the contract was clearly overcome by the evidence of the defendant that there was a failure to perform the contract.</p> <p>2. Proof of a sufficient excuse for not performing- a contract will not sustain an averment in the declaration that it was performed.</p>

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

<p>1. The authority conferred by the Election law of April 4th, 1898 (Pamph. L., p. 237), upon the governor of the state to appoint county boards of election is separable from the provisions of the law respecting nominations to the governor for such appointment, so that, if these provisions be unconstitutional, the authority would nevertheless remain.</p> <p>2. The authority conferred by that law upon county boards of election to appoint district boards of registry and election is valid to this extent, at least, that persons so appointed to constitute district boards become de faeto members thereof, and as such are indictable for official misdemeanors created by that law.</p>

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

<p>In January, 1899, the township of East Orange, in pursuance of the Drainage and Sewage act of March 4th, 1884, and its supplements (Gen. Stat., p. 3636, &c.), adopted an ordinance for the construction of the Black Brook valley drain, and the construction of the drain was finished in 1901. This drain was neither a sewer nor a street improvement, its object being the drainage of swampy land lying in the Black Brook valley. In December, 1899, the township became a city, by virtue of “An act for the incorporation of cities, and providing for their officers, government and powers,” approved March 24th, 1899. On February 25th, 1900, the Drainage and Sewage acts above mentioned were repealed by the revised Township act, passed March 24th, 1899. Held, that after the completion of the drain the city of East Orange was not entitled to have an assessment levied in accordance with the provisions of the Drainage and Sewage acts, in order to reimburse it for the expense of constructing the drain.</p>

<p>On appeal from First District Court of Jersey City.</p>

<p>Ail indictment against, the defendant having been removed to this court by certiorari, he moves to quash it. The indictment is as follows: ...</p> <p>“Atlantic County, ss. — 'The grand inquest of the State of New Jersejq in and for. the body of the county of Atlantic, upon their respective oaths,</p> <p>“Present, That oil the thirteenth day of September, in the year of onr Lord one thousand nine hundred and four, at Atlantic City, in said county and state, a primary election was held and conducted, under and in pursuance of an act of the legislature, entitled ‘A further supplement to an act entitled “An act to regulate elections (Revision of 1898),” Lap-proved April fourth, one thousand eight hundred and ninety-eight, approved April 14th, 1903, to elect, among other things, delegates to represent the Republican and Democrat parties at the state and county conventions to nominate a candidate for governor and senator, to be voted for at the ensuing election, and on said day and place, in the third precinct of the fourth ward, a man, giving his name as John Warner, and as residing at number seven South Texas avenue, in said city, presented himself to vote, whereupon one Samuel Comly, a duly and regularly appointed challenger, challenged tire right of said person to vote in the hearing and presence of one John Cooney, upon the ground that said pretended voter was not John Warner and did not reside at said number, whereupon, and in order that said person might be permitted to vote, and after being required so to do, the said John Cooney, at the time and place aforesaid, wilfully and corruptly and falsely swore that he knew said pretended voter to be John Warner, and that he resided at number seven South Texas avenue,'in Atlantic City aforesaid, when in truth and fact the said person was not John Warner, and did not reside at said number, to the knowledge of the said Cooney, in consequence of which said oath said person was permitted to vote at said primary election, contrary to the form of the statute in such case made and provided, and against the peace of this state, the government and dignity of the same.</p> <p>“Joseph E. P. Abbott,</p> <p> "Prosecutor of the Pleas.” </p> <p>“The following reasons are assigned for quashing the indictment in the above-stated cause:</p> <p>“1. The supplement approved April 14th, 1903, to fAn act to regulate elections (Revision of 1898)/ approved April 4th, 1898, is unconstitutional and void.</p> <p>“2. Section 33 of said supplement is unconstitutional and void.</p> <p>"3. Said supplement has been superseded by an amendatory act, approved April 5th, 1904.</p> <p>"4. The indictment charges no offense. The alleged false oath was extra-judicial and extra-statutory. There is no provision in either of the statutes cited for such an oath, and the case does not fall within section 35 of 'An act to regulate elections (Revision of 1898)/ or any other provision of that act imported into either said supplement of 1903 or amendment of 1904.</p> <p>"5. The facts constituting the alleged offense are not set out in the indictment with clearness and certainty sufficient for identification.</p> <p>"6. The indictment does not name the man giving his name as 'John Warner/ nor allege that his name was to the grand inquest unknown.</p> <p>"John C. Reed,</p> <p> "Attorney of Plaintiff in Certiorari.” </p>

<p>In case of a controversy between a citizen and the local board of education respecting the public ■ school to which the children of the citizen should be assigned, all remedies provided by the School law of 1903 must be exhausted by the citizen before the prerogative writs of the state are awarded to him.</p>

<p>1. A discharge in bankruptcy does not affect the lien of an execution levied on the bankrupt’s property before the bankruptcy proceedings were instituted.</p> <p>2. Such a lien is not affected by the mere sale of the bankrupt’s property in the bankruptcy proceedings.</p> <p>3. If in the bankruptcy proceedings the judgment debt was proved as a claim secured by the levy subject to prior encumbrances, the fact that the dividend paid was based on the full amount of the judgment does not cancel the lien.</p>

<p>"When the land of a railroad company used for railroad purposes is benefited for those purposes by a municipal improvement, it may be assessed to the extent of such benefit, in the absence of a legislative exemption.</p>

<p>1. The opinion in this case deals with the question whether certain pieces of property in Jersey City belonging to the Central Railroad Company of New Jersey were “used for railroad purposes,” so as to render them assessable by the state board of assessors, under the act of March 27th, 1888. Gen. Stat., p. 3324.</p> <p>2. The provision in that act that, in case assessments have been made both by the state board and by the local authorities; the court shall direct the unlawful assessments to be canceled, and shall make such order regarding the return of any unlawful tax which has been paid as the court shall deem just, indicates that the court, in its determination as to the return of such tax, is not to be governed absolutely by the cancellation of the assessment, but is to be guided by the equities arising out of all the circumstances.</p>

On rule to show cause. ■ 'The plaintiffs own lots in the town of Harrison, on Seventh street, Middlesex street, Somerset street, Hunterdon street and Burlington street, as those streets are delineated on maps of a large tract of land, which were made in 1836 and thereafter, by the predecessors in title of the plaintiffs and the then owners of the land.

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

<p>There was evidence from which the District Court might find that the contract had been substantially performed, and this finding is not open to review.</p>

<p>Tlie city council of Atlantic City lias authority, under section 20 of .the act of 1902 (Pamph. L., p. 284) to license inns and taverns.</p>

<p>1. The town council, under section 47 of the act for the formation, establishment and government of towns (Pamph. L. 1895, p. 218), may prescribe, by a general ordinance, the manner in which corporations or individuals shall exercise any privilege granted to them in digging up any street, highway or alley; and it is not necessary that every grant of such privilege shall also be by ordinance.</p> <p>2. Under section 10 of the act the town council may appoint a street commissioner and may provide that the fees to be paid for “permits” in the opening of streets shall be fixed by him.</p> <p>3. The facts in the present case fail to show an abuse of discretion by the town council in awarding the contracts in question.</p>

<p>1. The existence of a subsisting contract to supply a town with water does not prevent the town council from making a contract for a further or other supply under the act of 1888. Pamph. L., p. 366.</p> <p>2. The fact that Jersey City owns a water main in the town of Kearny, through which it supplies the borough of East Newark and private consumers in Kearny with water, does not give Jersey City a standing to question a contract between Kearny and a water company for a supply of water.</p> <p>3. A voluntary proposition by the mayor of Jersey City, not invited by the municipal authorities of Kearny and not authorized by the municipal boards of the city, does not give Jersey City a standing to question such a contract.</p>

<p>On certiorari.</p>

<p>On ajipeal from the First District Court of Newark.</p>

<p>A delay of more than two years in applying for a writ of certiorari, with knowledge by the prosecutor of the resolution and contract here in question, during which time most of the work had been performed anil paid for, is such laches as requires the dismissal of the writ.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

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

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>No grant or license can be made by the riparian commissioners ■ to any other person than a riparian proprietor of lands under the tidal rivers of the state, until the exjnration of six calendar months after the riparian proprietor shall have been personally notified, in writing, by the applicant for such grant or license, and such riparian proprietor shall have neglected to apply for such grant or license and neglected to pay, or secure to be paid, the price said commissioners shall have fixed therefor.</p>

<p>1. A right in land lying between high and low water marks, conveyed by the state by grant to any person, becomes, by statute, the private property of the grantee named in the grant. The state is the owner of all land upon its navigable streams lying between high and low water marks; the title of a party receiving such a grant is as absolute as the words of the grant import.</p> <p>2. Such interest as a grantee or lessee acquires under such a grant or lease from the state is private property, and subject to condemnation under the state’s power of eminent domain.</p> <p>3. A defective description in a condemnation proceeding may be amended under the statute, and an order appointing commissioners to condemn lands will not be set aside on certiorari because of an alleged defective description until the moving party in the condemnation has had opportunity to apply to amend and has failed to do so.</p>

<p>1. Before tlie court is required to entertain the challenge of a juror to the favor, the grounds of the challenge must be stated, that the court may see that-what is alleged as a ground of challenge would, if proven, be sufficient to sustain such a challenge.</p> <p>2. No formal pleadings are required in a suit in a District Court. The state of demand need only state a cause of action in such form as will make it appear what the plaintiff’s cause of action is.</p> <p>3. On appeal this court will not consider an alleged error not in any waj' brought to the attention of the trial judge and not shown, in the state of the case, to have been excepted to or in any way raised before him.</p>

<p>Oa. certiorari to the Recorder’s Court of North Plainfield.</p>

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

<p>1. Upon a certiorari to review a special district tax regularly ordered by the legal voters of a school district existing de facto, this court will not inquire into the legal existence of the school district as a political corporation.</p> <p>2. The act of March 2d, 1904 {Pamph. L., p. 28), which declares that certain consolidated school districts then existing de facto should continue to exist as consolidated school districts, notwithstanding provisions to the contrary in the General School law of October 19th, 1903, is not unconstitutional, even though special and local, it being in effect an act merely for establishing school districts, and not an act for regulating and governing them, nor providing for the management and support of the free public schools therein.</p> <p>3. The legislature may by special act create school districts, leaving their government and the maintenance and support of the public schools therein to be regulated by general laws enacted in that behalf.</p> <p>4. The act of March 2d, 1904 {Pamph. L., p. 28), applies to districts whose consolidation was effectuated by vote of the legal voters of either one of the former districts thus combined.</p>

<p>1. Under the “Act relating to certain illegal borough governments, requiring the payment of their debts” (Pamph. L. 1899, p. 534), and the general “Act for the assessment and collection of taxes”* (Pamph. L. 1903, p. 394, §§ 19, 25), where the assessor of the borough has made an assessment of taxes for the purpose of satisfying a judgment against the borough, and has submitted his assessment list and a duplicate thereof to the borough council, it is the duty of the council to examine and revise the assessment list and duplicate, to make such corrections therein as may be found necessary, and to return the corrected duplicate to the assessor.</p> <p>2. Performance of this duty will be enforced by mandamus.</p>

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

Form of execution to collect costs awarded by the Court of Errors and Appeals. For the defendants, William Nelson moves to set aside fieri facias.

<p>1. The duty of a master respecting the provision of a safe place of work for his workmen extends to providing a reasonably safe mode of entrance and exit from the place at which the workman is employed.</p> <p>2. When a safe mode of entrance and exit is furnished, evidence of the use by some of the workmen of another mode of entering and leaving the place of employment will not impose a duty upon the employer to care for the safety of a workman who deviates from the path which such workman had been accustomed to use, and proceeds to another part of the grounds out of mere idle curiosity ; when out of the path provided or customarily used, the employer owes the workman no duty of a higher degree than that which is due to a licensee.</p>

<p>When a building- loan association, incorporated under the act entitled “An act to encourage the establishment of mutual loan, homestead and building associations,” approved April 9th, 1875, has issued shares of stock in different series, as permitted by the supplement to that act, approved March 20th, 1887, it may designate, by its constitution and by-laws, the manner in which such series shall mature and determine. If maturity is thereby to be declax-ed by the directors, the holder of shares in a series thus declared to have matured ceases to be a member and becomes a creditor of the association, entitled to maintain an action at law for the declared value of the matured shares.</p>

<p>On error to the Supreme Court. For opinion of that court, see 41 Vroom 590.</p>

<p>1. A contract between two municipalities for a supply of water for public and private use is within the provisions of the statute of frauds.</p> <p>2. A resolution of the town council of Harrison directed the president and clerk to execute a contract with Jersey City for a supply of water on certain terms. Jersey City, learning of the resolution, caused to be drawn and executed by its officials, and tendered to the town council of Harrison, a paper which was claimed to accord with the terms of the resolution. Meld, that no contract was thus created (a) because the paper thus executed and tendered to Harrison did not conform to the terms of the resolution; and (6) because the resolution, never having been communicated by Harrison to Jersey City, did not constitute a proposal which Jersey City might accept and thereby bind Harrison.</p>

<p>The New Jersey Suburban Water Company, with another company, acquired, by contract with the East Jersey Water Company, the right to water transmitted by the latter company through its mains and pipes from its source of supply, and delivered at a specified place on the line of the pipes. The New Jersey Suburban Water Company contracted to supply therefrom the town of Harrison, and, in performing its contract, made use of a line of pipes, laid by Jersey City in the township of Ivearny many years before, to transmit the water to the water system of Harrison. Held, that the property which the New Jersey Suburban Water Company acquired in the water was not divested by its delivery to, or transmission through, such pipes.</p>

<p>Each of the municipalities, which were defendants below, had, before these actions, been possessed of mains and pipes for a supply of water for public purposes and for distribution to private consumers for pay'; and each had been receiving and using water transmitted through a pipe claimed by Jersey Oity, and had made compensation to Jersey Oity for water so supplied, but without express contract. Defendants in error gave notice to each municipality that they had acquired the right to water thus supplied, and should claim compensation therefor in the future. Jersey City also claimed the right to the water and compensation therefor. Each municipality continued to receive and distribute the water and to collect pay from consumers. Each filed a bill of interpleader against the respective claimants', and afterward these actions at law were brought to recover compensation for the water so received and used. Held, that although there was, during the period covered by the actions, no express contract between plaintiffs and defendants, an obligation to make compensation to the owners of the water will be implied from its reception and the conduct of the municipality receiving it.</p>

<p>It is not competent to alter the terms of a written lease under seal, which purports to contain the whole agreement between the parties, and which contains no provision relating to repairs to be made upon the demised premises during the term, by oral testimony that, at the time of its execution, there was delivered with it an unsigned paper containing a list of repairs to be made upon the premises, and that, at the same time, the parties to the lease verbally agreed that this paper should be a part of the lease itself, and further verbally agreed that the repairs specified in it should be made by the landlord, and that this further verbal agreement should also be a part of the lease.</p>

<p>A public omnibus driver, duly licensed by the municipality in which he conducts his business, is bound to observe such reasonable regulations, relating to the subject-matter of the license, as the municipality sees fit to impose.</p>

<p>1. A charge in an indictment that the defendant had been entrusted with money necessarily implied that he had been entrusted with the care of the money.</p> <p>2. Under the circumstances of this case, it was not conclusively proven that the embezzlement charged against the defendant had taken place more than two years before the finding of the indictment.</p> <p>3. Under section 57 of the Criminal Procedure act of 1874 (Gen. Stat., p. 1119), now section 47 of the act of 1898 (Pamph. L., p. 866), when an indictment charges an embezzlement of money, it is not necessary to allege or to prove from whom or in what form the defendant received the money; it is enough to show that out of the gross sum received a portion has been embezzled by him; hence proof of a general deficiency in his cash accounts is legitimate evidence on such a charge.</p>

<p>1. The tenth section of the act respecting labels, trade marks, &c., passed March 15th, 189S (Pampli. L., p. 83), is unconstitutional, in that it purports to empower the party injured by a violation of the statute to fix, within the limits prescribed, the amount of the penalty which, in addition to full compensation for the injury suffered, shall bo exacted from the offender for the use and benefit of the injured party; such a proceeding would deprive the offender of his property without due process of law.</p> <p>2. “Due process of ’law,” with respect to the imposition of legal penalties, requires that the legislative body should prescribe the amount of the penalty or some definite standard for fixing the amount, or else that the amount should be determined in a judicial proceeding instituted against the offender.</p>

<p>Minor employes assume the risk of those dangers attendant upon their work which are obvious to them.</p>

<p>The proceedings of the Circuit Court in a common law action are reviewable, not by certiorari, but by writ of error, and only after final judgment.</p>

<p>On error to the Supreme Court. For opinion of that court, see 42 Yroom 503.</p>

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

<p>1. The twenty-first section of the Road act of March 23d, 1859 (Gen. Stat., p. 2840), and the supplement to the Bridge act passed March 15th, 1860 (Gen. Stat., p. 307), apply only in cases where parties have sustained damage through the neglect of duties owed to the general public. They do not apply to a case where, by reason of the smallness of a culvert under a bridge, the water of the stream beneath is backed up on private property.</p> <p>2. When, in opposition to a motion for nonsuit, the plaintiff expressly based his right of action on a particular ground, this court , on error will confine its consideration of the merits of the judgment to that ground. .</p>

<p>Oil error to the Essex Circuit Court.</p>

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

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

■ Oil error to the Supreme Court. The declaration in this case contains the common counts and one special count.

<p>1. When, under the proof, it is reasonably inferable that the accident happened by the catching of the edge of a belt under a defective key used to fasten a pulley wheel to a revolving shaft, used for the transmission of power in the operation of machinery, the question whether it did so happen is for the jury.</p> <p>2. Whether a defective “key” is one of the ordinary or obvious risks of the employment assumed by the employe is, when reasonable minds may differ, also a question for the jury.</p> <p>3. A master is chargeable with the duty of taking reasonable care to furnish a reasonably safe place for his servant to work, and, when reasonable minds may differ as to whether he has exercised such care, it is a question for the jury.</p>

<p>Where doubt exists as to whether a person is guilty of contributory negligence in doing a particular act, alleged to be negligent, it'is a question for the jury whether such act, when taken in connection with the other facts and circumstances in the case, is or is not an act of negligence which contributed to the injury.</p>

<p>1. Where one makes his own note for the accommodation of the payee and one or more subsequent endorsers, and is compelled to pay the note at its maturity, to a Kona fide holder for- value, he may recover from the parties for whose accommodation he made the note the amount so paid, with interest.</p> <p>2. Parol evidence is admissible to show the true relation of the maker of the note to the transaction.</p>

<p>1. Facts proved held to show the existence of a corporation de facto.</p> <p>2. Where rights of third persons have arisen by reason of the acts of a corporation de facto, such corporation cannot be dissolved by any agreement or acts of the incorporators so as to affect such rights.</p> <p>3. The statute of limitations commences to run, as to unpaid subscriptions to the stock of a corporation which has become insolvent, after a call and assessment has been made for the amounts necessary to pay creditors.</p>

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

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

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

<p>Where a landlord lets out portions of a building to several tenants, retaining- in his own possession or control the passageways and stairways for the common use of the tenants and those having occasion to visit them, he is under the responsibility of a general owner of land who holds out an invitation to enter upon and use his property, and is bound to see that reasonable care is exercised to have the passageways and stairways reasonably fit and safe for such use.</p>

<p>This case controlled by Siggins v. McGill, decided by this court at the present term.</p>

On error to the Union Circuit. The plaintiff, a passenger of the defendant company, was injured by jumping from a train at Elizabethport. The train was at a standstill; the plaintiff was in the act of alighting, and had gone down two steps, when some one in uniform who was walking up and down with a lantern in his hand (the plaintiff sa3rs it was the conductor) told her to hurry, and said that the train was in motion, and to jump down.

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

<p>A telephone company maintained a guy wire in such a position that it was likely to and did become crossed with an electric light wire and charged with a deadly current of electricity; the guy wire broke, and the decedent came in contact with it and was killed; he was at the time in an open field, which the public were accustomed to cross without objection by the landowner; whether he was there of right or as a trespasser did not appear. Held—</p> <p>(1) That the telephone company was under a duty to the decedent to exercise care, even if he was a trespasser as between himself and the landowner.</p> <p>(2) That the jury might infer negligence from the omission of a guard between the electric light wire and the guy wire.</p> <p>(3) That the telephone company was not excused because the danger arose after the construction of the telephone line, and was due to the running of the electric light wire below the guy wire; the care required changed with the changed circumstances.</p>

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

<p>A city ordinance requiring that sign or billboards shall be constructed not less than ten feet from the street line is a regulation not reasonably necessary for the public safety, and 'cannot be justified as an exercise of the police power.</p>

On error to the Supreme Court. Action by Grunauer and wife against the Westchester Fire Insurance Company. Judgment for defendant, and plaintiffs bring error.

On error to the Atlantic Circuit. This case was tried before Judge Endicott and a jury, and a verdict directed for the plaintiff.

On error to the Supreme Court. This was an action brought on a policy of life insurance providing for the payment to the plaintiff of $10,000 upon receipt of satisfactory proofs of the death of the insured, Theodore Y. Kinne. At the trial at the Passaic Circuit, before Mr. Justice Pitney and a jury, he denied the defendant’s motion to nonsuit, and on due submission of the case to the jury a verdict was rendered in favor of the plaintiff for $9,951.30.

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

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

<p>On error to Hudson Circuit.</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>1. A municipal ordinance, passed under authority conferred upon the municipality by the first section of an act concerning street railroad companies, approved March 11th, 1893, by the provisions of which the municipality consents to the substitution, by a street railroad company, of electric power in the place of horses in the operation of its cars, and the erection of poles in the public streets, and the stringing of wires upon them, for the purpose of furnishing such power to the cars, such consent being given upon the expressed -condition that the company will repave a designated portion of the streets through which its road is laid when called upon to do so by the municipal authorities, and the acceptance of that ordinance by the company, constitute a valid contract between the municipality and the corporation, and a refusal by the corporation to repave, when notified to do so by the municipality, is a breach of the contract for which an action will lie.</p> <p>2. The act of March 23d, 1900, which imposes an annual tax upon all the property and franchises of corporations using or occupying public streets and highways, and declares that the franchise taxes assessed thereunder shall be in lieu of all other franchise taxes then assessable against such corporations, does not relieve such corporations from the duty of performing contract obligations theretofore voluntarily assumed by them.</p>

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

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

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

<p>On defendant’s rule to show cause.</p>

<p>On writ of error to the Morris Quarter Sessions.</p>

<p>1. The right to recover punitive damages rests primarily upon the single ground of wrongful motive, and when such motive is not inherent in the offence which fixes the defendant’s legal liability, the burden rests upon the plaintiff of presenting proof from which such wrongful motive may be inferred.</p> <p>2. Punitive damages cannot bfe recovered against a master for the malicious tort of his servant unless the master has participated in the tortious act, expressly or impliedly, by conduct authorizing or approving it.</p> <p>3. Absence of proof that the master did not authorize the servant’s act before it was done, or did not afterward ratify it, does not supply the place of evidence that he did authorize it or did ratify it.</p>

<p>On defendant’s rule to show cause.</p>

<p>1. The act entitled “An act for the protection of pigeons and other fowl and constituting the violation of its provisions a misdemeanor,” approved April 12th, 1904, is not in conflict with article 4, section 7, paragraph 4, of the state constitution, which requires that every law shall embrace but one object, and that shall be expressed in its title.</p> <p>2. If a provision in the body of an act is not embraced in the title, and malees the body of the act unconstitutional to that extent, the unconstitutional provision will be excised and the rest of the act will be upheld if it appear that what remains is the primary object of the legislature and that it would have passed the act without the excised portion.</p> <p>3. It is not á curtailment of the right of property to prevent a person from using his animals or fowls as a target, to be shot at for amusement or as a test of skill in marksmanship.</p> <p>4. Under the police power, the legislature may prescribe how animals may be killed by their owner in order that they may be used for food. They may fix by statute the times, places and manner of such killing. By limiting the method or prescribing the manner of killing they do not infringe upon the rights of property of the owner.</p>

<p>On error to Burlington Quarter Sessions.</p>

<p>On error to tlie Morris County Quarter Sessions.</p>

<p>1. If a workman, who, in the discharge of his duty, has placed himself in a position of probable danger, where he has the right to expect a warning before the danger becomes actual, is injured because the warning- was not given, the question whether he assumed the risk or was guilty of contributory negligence cannot be decided against him by the court.</p> <p>2. The plaintiff’s intestate was employed by the defendant to work on its railway tracks, over which trains were frequently run. It was a part of the system under which the men worked upon the tracks that the foreman should, upon the approach of a train on a certain track, call out: “Look out on track No. 3,” or, “Look out on track No. 4,” as the fact was, and for the men on such track to get out of the way until the train passed. The plaintiff’s intestate was injured by an engine running over him because of the failure of the foreman to give this customary warning. Held, that the giving of warning was embraced in the duty owed by the defendant to the deceased, that the place where he worked should be kept safe; that the failure to perform this duty carefully was imputable to the defendant as employer, and that such failure was not one of the obvious dangers of which the deceased, as employe, assumed the risk.</p>

<p>On certiorari.</p>

<p>On error to Middlesex Quarter Sessions.</p>

On certiorari bringing up the determination of the state superintendent of public instruction as to the election of members of the board of education of South Bound Brook.

<p>1. Where an indictment contains several valid counts, and the evidence- warrants conviction upon one of the counts, a motion for direction of a general verdict of acquittal cannot properly be granted.</p> <p>2. Assuming the act of March 26th, 1874 (Pamph. L., p. 93; Gen. Stat., p. 1795, pl. 50), is still unrepealed, its second section does not render the offence of repeated and habitual unlawful sales of liquor, amounting to the crime of keeping a disorderly house, dispunishable by indictment, with respect to certain cities, the act being in that respect unconstitutional. Following State v. Anderson, 11 Vroom 224; Meyer v. State, 12 Id. 6 ; 13 Id. 145.</p> <p>3. The so-called “Daly act” (Pamph. L. 1893, p. 193; Gen. Stat., p. 1101, pl. 273), whose provisions are now embodied in section 74 of the Criminal Procedure act (Pamph. L. 1898, p. 894), does not change the nature of the offence of habitually selling- intoxicating liquors contrary to law, nor render the place where such sales are carried on any the less a disorderly house and a public nuisance, but simply requires the indictment to set forth, with precision, the character of the acts that constitute the offence.</p> <p>4. The exception contained in section 66 of the Crimes act (Pamph. L. 1898, p. 812), with respect to liquors that are “compounded and intended to be used as medicine,” does not relate to the first branch of the section, which prohibits the sale of any vinous, spirituous or other ardent spirits, but only to the second branch, which prohibits the sale of “any composition of which any of the said liquors shall form the chief ingredient.” Following State v. Maries, 36 Vroom 84.</p> <p>5. Where the question is of defendant’s right to the exemption contained in section 12 of the Werts law (Pamph. L. 1889, p. 77 Gen. Stat., p. 1813), permitting druggists to sell liquors by small measure without license, provided the same be “in good faith compounded or sold for medicinal uses and purposes only, upon the prescription of a reputable physician,” the existence of a prescription is not conclusive of the good faith of the vendor.</p>

<p>On demurrers to pleas.</p>

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

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

<p>1. An indictment for attempting to defraud a certain corporation will not be quashed merely because the foreman of the grand jury which presented the indictment was a stockholder in the corporation and another member of the grand jury was a stockholder and director of the corporation, even though the prosecution of the defendant was authorized by a resolution of the board of directors, it not appearing that either of these grand jurors had taken any part or was actuated by any motive in the prosecution other than such as their public duty required.</p> <p>2. When it appears by the' record that a grand jury organized in the Oyer has presented indictments in the Quarter Sessions, it will be assumed, in the absence of proof to the contrary, that there was not any justice of the Supreme Court then present at the court house.</p> <p>3. The allegations in the indictment now under consideration sufficiently charge an offence within section 175 of the Crimes act. Pamph. L. 1898, p. 794.</p>

<p>On appeal from the First District Court of Jersey City.</p>

<p>A declaration in tort, filed by a next friend on behalf of an infant, which alleges in its commencement that the next friend complains, and in its conclusion that the tort was “to the damage of the next friend,” will be struck out as irregular.</p>

<p>On appeal from the District Court of New Brunswick.</p>

<p>Under the acts of April 3d, 1902 (Pamph. L., p. 549) ; April 7th, 1903 (Pamph. L., p. 208), and March 29th, 1904 (Pamph. L., p. 343), and the facts disclosed in this case, the power of purchasing land and erecting and furnishing buildings for a new hospital in Jersey City is vested in the board of trustees appointed in accordance with said act of April 3d, 1902, and not in the board of health appointed in accordance with said act of March 29th, 1904.</p>

<p>On certiorari.</p>

<p>Facts found by the District Court will be presumed to rest upon competent proof when nothing appears to the contrary.</p>

<p>On appeal from District Court.</p>

<p>If the tract of land on which are erected the buildings of a corporation used exclusively for charitable purposes be devoted to the same charitable purposes, it is exempt from taxation by force of section 3, subdivision 4, of “An act for the assessment and collection of taxes” (Pamph. L. 1903, p. 375), as construed by the Court of Errors and Appeals in Sisters of Charity v. Chatham, 23 Vroom 373.</p>

<p>.Judgment reversed for failure in plaintiff’s proofs.</p>

<p>On appeal from District Court.</p>

<p>A location of a route filed by a railroad company under section 8 (Pamph. L. 1903, p. 650) is not the proper subject of certiorari.</p>

<p>On certiorari.</p>

<p>1. A municipal ordinance directing that a street be paved and the cost assessed upon property benefited is a judicial act, and it is essential to its validity that notice be given and an opportunity for hearing • afforded to property owners liable to be affected thereby, although the city charter does not expressly require such notice.</p> <p>2. A notice of hearing before commissioners to assess benefits after the completion of the improvement does not suffice.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On appeal from Second District Court of Jersey City.</p>

<p>On rule to show cause why a judgment by default in ejectment should not be set aside.</p>

<p>1. When the Circuit Court has once confirmed a report of commissioners of adjustment under the act of 1898, it cannot subsequently modify or amend the order of confirmation.</p> <p>2. Upon certiorari, a general reason is sufficient when the error is apparent on the face of the proceedings.</p>

<p>When commissioners of adjustment, under the act of 1898 (Pamph. L., p. 442), have made an assessment for a public improvement, although no assessment had theretofore been imposed or attempted to be imposed, and the proceedings are removed by certiorari, it is the duty of this court to ascertain and determine for what sum the property was legally liable, if at the time of adjudication an assessment can lawfully be levied.</p>

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

<p>1. The imposition upon lands adjoining a public street in which is laid a pipe for the distribution of water for the use of a city and of its inhabitants, of a fixed definite sum per front foot, to be paid by the owner, for the expense of such pipe, cannot be supported under the power of general taxation, nor under the power to tax property benefited by a local public improvement because of, and not in excess of, benefits.</p> <p>2. Such a pipe laid under the roadbed of a public street is in no sense an appendage to or a part of the adjoining lots as a sidewalk may be, nor could a requirement that property owners should lay the same at their own expense be supported under the police power.</p>

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

<p>On error from Bergen County 0}rer and Terminer.</p>

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

<p>The governing body of a city can legally enter into a contract for the disposal of garbage only on complying with the proviso of tlfe Garbage act, approved March 27th, 1902. Pamph. L., p. 200.</p>

<p>1. The refusal of a trial court to allow a leading question to be put by counsel to a witness called by him. is a discretionary matter that does not constitute a ground for error.</p> <p>2. Whether this discretion shall be exercised by striking out a question which was answered before objection was made to it is also a matter of sound discretion which, excepting in cases of flagrant abuse, is not a ground for error.</p>

<p>On error to the Supreme Court. For opinion of Supreme Court, see 42 Vroom 47.</p>

<p>In an action for slander it was for the jury to determine whether the words used, “Why don’t you take that damned crepe off your hat? You didn’t think anything of your brother; you are a robber; you robbed widows and would steal the gold from a dead man’s teeth,” were intended to charge a 'crime involving moral turpitude.</p>

<p>Oil error to Supreme Court.</p>

<p>1. In an action upon a policy of life insurance the defendant pleaded that the assured had warranted that he had not within fifteen years been under the care of any physician, and that the statement warranted was false; the proof was of a warranty that the last attendance by a physician was fifteen years before. Held, that the plea is amendable.</p> <p>2. In an application for life insurance, to an inquiry for the name of the physician who last attended the applicant, the date oi the attendance and the name of the complaint, the applicant answered, “Fifteen years ago; pneumonia,” but omitted to state the name of the physician. Held, that the inquiry as to date of attendance related to the last attendance.</p> <p>3. Where a statement in an application for life insurance warranted to be true, is false as far as it goes, but fails to answer the whole inquiry, there is a breach of warranty which avoids the policy. The insurer waives an answer to that part of the inquiry only which is left unanswered.</p>

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

<p>1. When upon the trial of a person indicted for killing John Sonta, it was disclosed that the name of the person killed was Joseph Sonta, the trial court had power under section 34 of the Criminal Procedure act to direct an amendment of the indictment.</p> <p>2. The statute permitting amendments of an indictment when the name of any person injured by the commission of an offence is misstated therein, if the court shall consider that the defendant cannot be prejudiced thereby, is not violative of the constitutional provision that no person shall be held to answer for any criminal offence except on the presentment or indictment of a grand jury.</p> <p>.3. In a homicide case testimony of antecedent threats or acts of violence by.the deceased against the defendant are not admissible, when it appears that at the time of the homicide there was no threat or act by the deceased, which, even in the light of any previous threats or acts, could justify the homicidal act..-!</p> <p>4. The law fixes no precise age within which children are absolutely excluded from giving evidence.</p>

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

On error to the Supreme Court. Action by Charles L. Hill against Charles Pomelear for criminal conversation and alienation of affection of plaintiff’s wife. Judgment for plaintiff and defendant brings error.

Oil error to the Hudson Circuit Court. This action was brought against the New-York Mail Company and the Pennsylvania Eailroad Company for injuries received by the plaintiff from a runaway horse of the New York Mail Company while the plaintiff was standing in the ferry-house of the Pennsylvania Eailroad Company at Jersey City.