Volume 73 — New Jersey Law Reports

<p>On demurrer to first count of declaration.</p>

<p>Oil error to Monmouth Quarter Sessions.</p>

<p>Loss o,£ profits in ^business are recoverable as damages in actions of tort, when they are capable of being estimated with reasonable certainty. But where the proof furnishes no data from which the jury may find with reasonable certainty the amount of the profits recoverable as damages as the result of the accident, it is error for the court to submit this element of damages to the jury.</p>

<p>1. The act of October 19th, 1903, entitled “An act to validate taxes heretofore levied,” &c. (Pamph. L., Special Session, p. 96), is constitutional.</p> <p>2. Said act has the effect of validating all appropriations, taxes and assessments theretofore made, levied and imposed, and all other acts theretofore had, passed, done or taken for school purposes under or pursuant to the provisions of the General School laws of 1900 and 1902. which laws, respectively, were declared unconstitutional in Lewis v. Jersey City, 37 Vroom 582, and in Riccio v. Hoboken, 40 Id. 649.</p> <p>3. Upon a review of the General School law of October 19th, 1903 (Pamph. L., Special Session, p. 5), together with the validating act approved on the same day (Pamph. L., Special Session, p. 96)' — Held, that this legislation had not the effect of disarranging pending proceedings for the assessment and collection of taxes already ordered to be raised to meet the payment of school bonds maturing during the school year, even in cases where, by section 32 of the new General School law, the boundaries of school districts were changed, and notwithstanding the provisions of section 34 respecting the transfer to new school districts of the obligation to pay outstanding indebtednesses.of the former school districts.</p> <p>4. Section 33 of the 'new General School law (Pamph. L. 1903, Special Session, p. 15) indicates a legislative intent to postpone the operation of the act, with respect to. all fiscal adjustments between new school districts and the former school districts, until the end' of the then current school year.</p> <p>5. Quwre. Whether the establishment of new boards of education required for the new districts created by section 32 of the act (Pamph. L. 1903, Special Session, p. 14), and the assumption by new boards of education of outstanding indebtednesses as required by section 34, were not intended to be postponed until after the annua] school election that was to be held in 'March, 1904?</p>

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

<p>1. A deed of assignment made by a lunatic before lunacy found, the assignee having no knowledge or notice of the insanity ancl dealing with the lunatic in good faith, paying for the assignment a good and valuable consideration, is not void, but only voidable, and cannot be avoided without paying or tendering to the assignee the consideration money paid.</p> <p>2. Until avoidance, the deed of the lunatic made under such circumstances remains good in law, but a judgment at law founded thereon is not conclusive against any equitable right; that may still inhere in the lunatic or his guardian to avoid the deed.</p> <p>3. Courts of law have a summary jurisdiction of au equitable nature, exercised through stay of execution and the like, for the purpose of preventing" their judgments and process from being made the means of working injustice.</p>

<p>In toi't. On error to the Hudson Circuit Court.</p>

<p>1. On a rule to show cause, a new trial may be granted where an error has resulted in a verdict for excessive damages, although such error was not the subject of an exception at the trial.</p> <p>2. In an action for libel or slander, damages cannot be assessed for physical sickness alleged to have been caused by the libel or slander.</p>

<p>A count stating that N. H., in his lifetime, was indebted to the plaintiff in the sum of $500, and made a writing by which he ordered his executors to pay, one year after his death, to plaintiff the sum of $500, does not state a cause of action against the executors. There is no statement of a promise to pay nor statement of a delivery of the paper. The paper set out is testamentary.</p>

<p>1. After convictions upon two indictments for breaking with intent, the court has power to impose a sentence of imprisonment upon one of the convictions to begin at the expiration of- sentence imposed upon the other conviction.</p> <p>2. This power to impose consecutive sentences is not affected by the provisions of section 67 of the Criminal Procedure act. Pamph. L. 1898, p. 892.</p>

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

<p>1. A recital of pedigree contained in an ancient deed is of itself evidence of the matter recited if the deed was made by one related to a branch of the family which the pedigree concerns.</p> <p>2. Such a recital is evidential, although the deed was not made by one related to the family, if it is supported by a long possession consistent with the fact recited, or supported by the fact that -no persons have claimed title adversely to such recital and by the fact that the ancient deed has been on record for a long time and grants have been repeatedly made by its grantee and successors in title without question.</p> <p>3. The trial justice committed no error in overruling a question put to a witness inquiring whether a certain deed had been made to a third person, which deed if made would have put the title to the property injured by a fire out of the plaintiff.</p> <p>4. The date when a fire occurred having been laid under a videlicet, there was no error in permitting it to be proved to have happened upon another date.</p> <p>5. It having been proved that the plaintiff’s goods were fired by defendant’s engine, and admitted by defendant that it was unable to prove that it had .used all practicable means to prevent the-escape of sparks from its engine, the question whether the fire was first ignited on or outside of the defendant’s right of way became unimportant.</p>

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

<p>"Where a proceeding for the improvement of a public road was initiated by a petition under the eighth section of the Road Improvement act of March 22d, 1895 (Gen. Stai., p. 2902), before the passage of the Road Improvement act of April 1st, 1903 (Pamph. L., p. 145), the right to assess land bordering on the road for ten per cent, of the cost, which the act of 1895 conferred, was not revoked by the act of .1903.</p>

<p>1. The mere fact that the transcript sent up to the Court of Common Pleas on an appeal from the small cause court fails to show that a written notice of appeal, signed by or on behalf of the appellant, had been filed with the justice, and that the appeal bond had been so filed, does not afford legal ground for dismissing the appeal.</p> <p>2. In granting an appeal, the justice acts judicially, and if the legality of his adjudication on that point is challenged in the Common Pleas, he should be ruled to certify the facts, so as to correct any imperfections, or irregularities apparent in the transcript before such adjudication is reversed.</p>

<p>1. The fact that an amended certificate of incorporation was not acknowledged or proved before a proper officer is unimportant in proceedings taken by the corporation to condemn land.</p> <p>2. The present location of a footpath leading to the prosecutor’s ferry, and which can be changed without detriment to its usefulness, cannot be deemed necessary for the purposes of the prosecutor’s franchise.</p> <p>3. Condemnation- proceedings are not rendered irregular by the omission to state, in the petition and proofs presented to the justice, matters which the Eminent Domain act does not require to be set forth.</p> <p>4. Service of notice of such proceedings on the registered agent of a domestic corporation is sufficient, although not made at the registered office because the corporation had removed therefrom.</p> <p>5. Under the seventeenth section of the Eminent Domain act, the justice to whom a petition for condemnation is presented has power to permit amendments of the proceedings and to adjourn the hearing on the petition.</p> <p>O. In a proceeding to condemn the rights of an abutting owner in a public highway, the municipality in which the highway lies is not a necessary party.</p>

<p>1. A deliberative assembly may lawfully reconsider and annul a vote previously taken at the same meeting.</p> <p>2. The session of a deliberative assembly, which is held in pursuance of a special motion, adopted at a regular meeting, to adjourn the meeting to a fixed time, is a continuation of the regular meeting, and at such session the assembly can do anything that it could have done at the earlier session.</p>

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

<p>Stock owned by the corporation which issued it should not be considered in determining- the amount of the franchise tax or license fee under the Corporation Tax act.</p>

<p>If the party who has appealed from a judgment of a District Court fails to have the state of the case agreed upon or settled, and also fails to obtain a grant of further time therefor, within fifteen days after the judgment, his right to prosecute the appeal is at an end.</p>

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

<p>On demurrer to plea in matter of quo warranto.</p>

<p>1. When a landowner has notice of the proceedings for making a street improvement in front of his property, for which the law authorizes an assessment thereon to be levied, and refrains from applying for a writ of certiorari to review the proceedings until the improvement is completed and an assessment levied, he will be allowed to question on certiorari only the legality of the assessment.</p> <p>2. Under clause III. of section 48 of the City act of March 24th, 1S97 (Pamph. L., p. 46), the common council of the city may make the assessment there authorized.</p> <p>3. A certiorari to review such an assessment, allowed after sixty days from the confirmation of the assessment had elapsed, should be dismissed under section 65 of said act.</p>

<p>A District Court has no authority to grant a new trial upon an application made more than thirty days after judgment, unless the application is based on newly-discovered evidence.</p>

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

<p>Findings of fact by a District Court upon a trial without a jury are binding upon this court unless unsupported by testimony.</p>

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

<p>On certiorari to review conviction.</p>

<p>On appeal from the District Court of Newark.</p> <p>The case settled by the judge of the District Court is as follows:</p> <p>“The suit was brought to recover the amount due on a book account for goods sold and delivered by plaintiff! to defendants. The trial was had before the Court without a jury and resulted in a judgment for the plaintiff for $160.60.</p> <p>“I find the facts of the case as follows:</p> <p>“Plaintiff, a manufacturer of musical instruments at Elk-hart, Indiana, agreed with defendants, retailers, of the city of Newark in this state, to consign to them on sale certain goods, the same to be paid for when sold by defendants and the latter to have the right to return at their expense any goods which they might not sell and to have credit for the same. In pursuance of that agreement plaintiff shipped to defendants several consignments of goods, and payments were made and goods returned on account from time to time. After thus dealing for something over one year, the account was closed at request of the plaintiff, and defendants agreed to settle the account by tire payment of cash and return of goods then remaining in their hands. Defendants packed and shipped all the said goods remaining, but when the packages were delivered to the plaintiff it was discovered that certain instruments were missing. The price at which the missing instruments were bought by defendants was sixty-one sixty-hundredths dollars ($61.°%00); and it is only this item of plaintiff’s claim which the defendants dispute.</p> <p>“The amount charged to defendants before it was agreed that the account should be closed was one hundred and ninety-nine dollars ($199.°%00). The price charged for tire goods received by plaintiff in return was thirty-eight forty-hundredths dollars ($38.40/100), and defendants admitted that they owed plaintiff $99 for instruments sold by them.</p> <p>“I find that the goods about which the dispute arises were packed and shipped by defendants but were not received by the plaintiff. The correspondence between the parties, which was admitted in evidence, shows that defendants were to pay all charges of transportation; that the goods consigned by plaintiff to defendants from time to time were shipped by express; that when the account was closed plaintiff requested defendants to return the goods by express, and that defendants refused to return goods by express unless plaintiff should pay the charges, and that defendants shipped the goods by freight over the Pennsylvania railroad. There is no evidence before the court that plaintiff consented to this means of returning the goods, nor is there evidence that he objected to the same after defendants’ first refusal to return the goods by express.</p> <p>“All of which is respectfully submitted this 10th day of March, 1905.</p> <p>“Ti-iomas J. Lintott, Judge.”</p>

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

<p>Under the provisions of “An act to provide for the summary investigation of county and municipal expenditures” (Pamph. L. 1898, p. 155), the justice of the Supreme Court who has made an order appointing experts to prosecute such an investigation is not required to institute an inquiry into the truth of the facts sworn to in the jurisdictional affidavit in the manner prescribed by the act.</p>

<p>On certiorari to the First District Court of Jersey City.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>Those who maintain a place where usurious rates of interest are taken and where the statutes prohibiting usurious interest are habitually violated are indictable for keeping a disorderly house.</p>

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

<p>1. The husband is liable for suitable clothing purchased for the-use of his wife.</p> <p>2. When a husband and wife are living together, in purchasing articles of clothing for her own use, the wife is presumed to be acting as agent for her husband.</p> <p>3. To charge her, it must appear affirmatively that she made the purchases on her individual credit.</p>

<p>On certiorari.</p>

<p>A declaration which, joins in one count a cause of action by a married woman for the publication of a false and malicious statement concerning her separate real estate with a count for damages to both husband and wife by reason of a publication of a false and malicious statement as to the wife personally is bad on demurrer.</p>

<p>It appearing in evidence that the driver of a team of horses attached to a wagon loaded with two logs stopped his team in the dusk of the evening upon a public highway at a point distant not less than thirty-five feet from the nearest rail of a railroad crossing; that he saw the flagman at the crossing come out of his shanty with a lantern and set it down, and concluded from that fact that a train was approaching; that from a point where he stopped to a point twelve and one-half feet from the crossing his view of the railroad was unobstructed; that the head-light of the locomotive was lighted; that while passing over that distance he could see a train approaching for a quarter of a mile, but did not use his powers of observation during any of that time, but drove upon the track, and the horses were injured. Held, that the driver was guilty of contributory negligence and that the owner of the horses could not recover for the damage done to them, because of the contributory negligence of the driver.</p>

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

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

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

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

<p>The relator was appointed a police officer of New Brunswick in 1897, and in 1902, under an ordinance which authorized the appointment of a roundsman, who was to be a member of and taken from the regular police force, he was made roundsman. In 1905 the office of roundsman was abolished, and thereafter the relator was not permitted to perform duties either as roundsman or policeman. Held—</p> <p>(1) That under the facts of this case, the ordinance of 1905, abolishing the office of roundsman, was adopted in good faith for what the council deemed the interest of the city, and was valid.</p> <p>(2) That the relator did not cease to be a policeman by accepting the additional duties and pay of roundsman and could only be removed from his employment of policeman for cause after conviction on charges preferred pursuant to the statute.</p>

<p>Oil certiorari to Cape May Common. Pleas.</p>

<p>1. Whether lands under tidewater beyond the exterior line for solid filling, established by the riparian commissioners, are assessable as land by a description which includes them, depends upon the right which has been acquired therein.</p> <p>2. If a title has been acquired to lands under water beyond the exterior line for solid filling, those lands should be included with the land back of that line in a single description or separately assessed by a distinct description.</p> <p>3. If only a right has been acquired in the lands under water beyond the exterior line for solid filling, as appurtenant to the land back of that line, the value of the right is properly included in an assessment upon the land back of the line.</p> <p>4. What is the “main stem” of a railroad under the act of 1S88 (Q-en. Stat., p. 3324) is the question of fact depending upon the actual use of the line at the time of assessment.</p> <p>5. As between a line used mainly for passenger'traffic and a line used mainly for freight traffic, the former is the “main stem.”</p>

<p>1. Whether a certain line of track is the “main stem” of a railroad under the act of 1888 (G-an. Stat., p. 3324) depends upon the actual use made of it at the time of assessment by the company operating the road and not upon its history.</p> <p>2. As between two lines of track used for freight traffic, the longer line, in the absence of other distinguishing characteristics, is the “main stem.”</p>

<p>On motion for leave to enter judgment on special verdict.</p>

<p>A grant by a landowner to a water power company of a right to discharge the waste water from its canal through a tailrace, a part of which is located upon his premises, and to enter upon the premises for the purpose of deepening and widening the tail-race so that it will carry off such waters, affords no justification for the flooding by the water power company with its waste water of the buildings of the grantor which have been erected upon the premises.</p>

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

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

<p>A person who is injured by the negligence of the servant of another, acting in the line of his employment, may maintain an action against the master and servant jointly, or he may proceed separately against either.</p>

<p>The second section of the act concerning obligations (Gen. Stat., p. 2336), so far as it authorizes the entry of judgment, and the issuing of execution against the one of two joint debtors — jointly sued — who has been served with original process, does not violate that clause of the fourteenth amendment to the federal constitution which prohibits a state from depriving; any person of life, liberty or property without due process of law.</p>

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

<p>1. An indictment under section 193 of the act to regulate elections (Pamph. L. 1898, p. 237) which, as applied to primary elections under section 33 of the primary election supplement (Pamph. L. 1903, p. 603), is not open to attack on the ground that section 193, making it a misdemeanor to take and carry into a polling-place intoxicating liquors, is invalid as not being within the title of the act.</p> <p>2. The act and supplement both held to be constitutional, following the decision of this court in Hopper v. Stack, 40 Vroom 562.</p> <p>3. Where a witness for the state had failed to identify the liquor drunk in the election booth as beer, he was then asked if he had not testified before the grand jury that it wds beer. The witness was permitted to answer over objection affirmatively that he did. Held, that this was not error-, the ruling being within the trial judge’s discretion.</p> <p>4. Nor was there error in permitting the witness to testify, over objection, that someone engaged in drinking the liquor called it “good beer,” it appearing, that the defendant was present at the time.</p>

<p>The defendant was convicted of embezzlement as a chosen freeholder in selling- second-hand bridge plank to one Mahler for the sum of ' $4.50 and applying the proceeds to his own use. The defence offered was that there was no sale and no monejr paid but a permission to take only. The state proved that Mahler bought the plank for an organized club and called as a witness the secretary, and treasurer of the club, who was permitted to testify, over objection, to a conversation with Mahler to the effect that Mahler had paid for the plank and had received a credit for the price upon his dues as a member of the club. The defendant was not present at the conversation nor connected by any proof with the transaction testified about. Sold, on review, that the evidence admitted was hearsay and irrelevant and its admission was error. The admission of the evidence of one Purdy that he had on another occasion bought plank from the defendant and out of the same lot, over objection, was also error. Because of these errors there was a reversal.</p>

<p>1. If the husband sues with his wife when she neither must nor may be joined the error is fatal; the result is the same although the meritorious consideration passed from the wife, unless it also appear that there was an express contract .to pay the wife.</p> <p>2¡ A verdict otherwise liable to reversal cannot be maintained upon a theory of the law contrary to that upon which the case was submitted to the jury.</p> <p>3. The verdict in this case must have been based upon the finding of an express contract with the wife. The case failing to show evidence sufficient to sustain such finding the rule to show cause is made absolute and a new trial is granted.'</p>

<p>1. To publish of a man that he has done that which is lawful and propel-, without ironical innuendo, does not under ordinary circumstances tend to injure his reputation.</p> <p>2. An indictment for libel which set forth that defendant maliciously published of and concerning a certain baker a writing containing-the false statement that he refused to recognize the bakers’ union (innuendo that he in his business refused to recognize and employ members of the bakers’ union, and that all such members, together with all other persons, should refuse to deal with him)- — • Held bad, the words attributed to defendant not being in themselves defamatory, and the indictment containing no averment of facts to show that they bore a defamatory sense.</p>

<p>The duty imposed upon the board of freeholders by section 30 of the Criminal Procedure act (Pamph. L. 1898, p. 877) to take care that witnesses detained in the county jail shall be “comfortably lodged and provided for, and no further restricted of their liberty than is necessary for such detention,” is a governmental duty of a purely public character, for neglect of which no private action lies in favor of a person specially damnified in the absence of a statute conferring- such right of action.</p>

<p>1. Where a mortgagee permits the mortgagor of chattels to retain and use them, authority is impliedly conferred upon the mortgagor to have necessary repairs done upon the chattels, and the lien of an artificer for repairs done under employment by the mortgagor will have priority over the lien of the mortgage, although the latter be duly recorded.</p> <p>2. Upon appeal, this court will not reverse a judgment of the District Court that is based upon its conclusion upon a mixed question of law and fact if the conclusion is legally inferable from the facts proven.</p>

<p>1. Where a municipal corporation, by action ultra vires or otherwise, embarks in a scheme which will result in an unlawful expenditure of public funds, any ordinary taxpayer may be admitted to prosecute a certiorari to review such action.</p> <p>2. Where respondent in certiorari does not challenge the status of the prosecutor until the argument of the cause, matters of fact upon which such status depends will be taken as admitted for the purposes of a motion then made for dismissal of the writ.</p> <p>3. In Pamph. L. 1897, p. 232, and in Pamph. L. 1897, p. 323, § 76, as amended in Pamph. L. 1899, p. 159, the phrases “any adjoining municipal corporation” and “any adjoining municipality” refer only to municipalities whose corporate territories are contiguous.</p>

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

<p>1. An ordinance providing- for the purchase by a city of the property of certain volunteer fire companies, where a considerable number of the members of council who- voted for the ordinance were also members of one or more of the volunteer fire companies and financially interested in the purchase, set aside as contrary to the policy of the Crimes act.' • Pamph. L. 1898, p. 803, § 32. Following- Stroud v. Qonsumers’ Water Oo., 27 Vroom 422.</p> <p>2. Where an ordinance to establish a paid fire department, and an ordinance for issuing city bonds to pay for property for the use of its fire department, were so closely related to an ordinance for purchasing the property of volunteer fire companies as to render it clear that the three ordinances were parts of a single plan, it appearing- that the personal interest of members of council in the property to be purchased furnished an unlawful inducement to the passage of all three ordinances — Held, that the first and second ordinances should be set aside as well as the third.</p>

<p>1. When the term, in which final judgment in a criminal cause was regularly perfected, has expired, the court has no power to grant a new trial, unless it be shown that the judgment was rendered without jurisdiction or was obtained by fraud.</p> <p>2. When, in a capital case, the sentence of death has been pronounced, a subsequent order appointing a day for execution is not “the judgment,” within the meaning of the rule above stated or of section 55 of the Criminal Procedure act of 1898.</p>

<p>On cerliorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. In the District Court, if the defendant presents a notice of recoupment demanding a judgment for more than $300, the court must overrule it as being outside of its jurisdiction and proceed to try the cause without regard to it.</p> <p>2. In the District Court the defendant is not entitled to demand security for costs from a non-resident plaintiff.</p>

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

<p>Under the construction of the third section of the act of March 17th, 1858 (Pamph. L., p. 415), respecting the alteration of street grades, which was put upon it by this court in Manufacturers’ Land and Improvement Co. v. Camden, 42 Vroom 400, the first section of the supplementary Road act of May 8th, 1005 (Pamph. L., p. 448), does not apply to cities.</p>

<p>A writ of mandamus should not issue at the instance of a municipal corporation to compel a street railway company to give transfers to its passengers within the municipality, when the obligation of the company to do so arises wholly from, its assent to certain municipal ordinances which, of themselves, have no legislative force.</p>

<p>On certiorari to review ordinance.</p>

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

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

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

<p>On certiorari.</p>

<p>1. By force of the nineteenth section of the charter of the city of Woodbury (Pamph. L. 1870, p. 602) an ordinance, when put on its final passage, should be the same in substance as that introduced at a previous meeting of city council.</p> <p>2. A proviso that city council may, by a two-thirds vote, put an ordinance upon its final passage at the same meeting at which it was introduced (or materially amended), is not complied with by the mere passage of such ordinance by a two-thirds vote.</p>

<p>A resolution of the board of excise commissioners transferring a liquor license to one of its members who was present and voted for the resolution is voidable upon certiorari.</p>

<p>1. A general demurrer to a declaration containing a count in replevin and counts in trover for misjoinder of causes of action is good.</p> <p>2. After a general demurrer to a declaration for misjoinder the plaintiff cannot obviate the objection by abandoning one of the counts.</p> <p>S. It is not permissible to declare in trover where the action is in replevin.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. A change of residence at another’s request is a valid consideration for a promise to pay money.</p> <p>2. A promise to pay a certain sum weekly, as long as the promisee resides in a certain place, does not require a memorandum under the statute of frauds.</p>

<p>1. Tlie act of February 24th, 1882 (Gen. Stat., p. 3358, pi. 365), makes it unnecessary to sell for the subsequent taxes land which has already been purchased by the municipality at a tax sale.'</p> <p>2. The record in the county clerk’s office of a certificate of sale for taxes to the municipality itself, is notice to subsequent purchasers not only of the lien of the taxes for which the sale was had, but also of subsequent taxes assessed prior to the actual redemption of the property.</p> <p>3. Where a certificate of sale for taxes to the municipality itself has been recorded in the county clerk’s office, the lien of subsequent taxes does not expire until the property is actually redeemed.</p> <p>4. Sales to the municipality itself for subsequent taxes are not a waiver of the lien of a prior sale to the municipality under the act of March 14th, 1879 (Gen. Stat., p. 3353), and the supplements thereto.</p> <p>5. Under the act of March 14th, 1879 (Gen. Stat., p. 3353), and the supplements thereto, the municipal authorities are not authorized to release property sold to the municipality for taxes from the lien except upon payment in full.</p>

<p>1. The power to improve public parks, conferred upon city councils by the act of 1903 {Pamph. L. 1903, p. 292), includes the power to erect in the park a building for public purposes.</p> <p>2. Where the proposed building, called a casino, is adapted for public purposes, the court will not assume that it is to be used for other purposes.</p> <p>3. Where a mayor of a city accepts the office of sheriff of the county, but continues in office as mayor de facto, a contract signed by him as mayor will not be set aside upon an indirect attack by oartiora/ri to which he is not a party.</p>

<p>On rule to show cause why a verdict in favor of the plaintiff should not be set aside.</p>

<p>When water confined in a reservoir escapes through the negligent construction or maintenance of such reservoir, adjoining landowners, whose lands are injured thereby, have a right of action to-recover the damages resulting from such injury.</p>

<p>The territory comprising the corporate limits of the borough of Bradley Beach at the time of the passage of the General School act of October 19th, 1903, constituted a separate school district, and that borough and the township of Neptune were not constituted a consolidated school district by the supplement to the General School law of 1903, passed March 28th, 1904.</p>

<p>On appeal from the First District Court of the city' of Newark.</p>

On application for a certiorari to review the action of the board of police commissioners of the city of Newark in dismissing the applicant from the office of chance policeman.

<p>On motion to strike out assignment of error.</p>

<p>A person committed to the New Jersey Reformatory under a sentence authorized by the act for the management of that institution, approved March 21st, 1901, cannot be-held therein beyond the maximum term of imprisonment which the statute fixes as the penalty, for the crime for which he was convicted. He cannot be held beyond such period under such a sentence until the costs are paid.</p>

<p>Where there is no requirement in the charter of a municipal corporation or any general law requiring that contracts for street paving shall be let to the lowest bidder only, the municipal body, in awarding contracts, has a large measure of discretion, and in the absence of fraud or the palpable abuse of such discretion the courts will not set aside its action.</p>

<p>On certiorari.</p>

<p>The landlord of an apartment-house which has a passageway through the cellar, through which tradesmen delivered supplies to the tenants, directed the plaintiff, his janitor, to keep the defendant off the premises. The plaintiff attempted to prevent the defendant, who was delivering ice to a tenant, from entering the passageway by shutting two iron doors, which, lying flat, closed the entrance, and. by himself standing upon the closed doors. The defendant, for- the purpose of entering, raised the doors, by which action the plaintiff was thrown against a window-frame. — Held, - that the defendant had a right to pass through the passage, and a right to employ sufficient force to remove an obstacle, including the plaintiff, which barred his entrance.</p>

<p>On motion to enter' judgment on a special verdict.</p>

<p>A jury returned a single sum as damages, when the declaration contained a claim by a husband in his own right added to a claim of the husband and wife for an injury to the wife. — Held, that because the sum found cannot be applied to either claim or apportioned between them, the court, on application of the plaintiff, on the return of the postea, will award a writ of venire de novo.</p>

<p>1. The act of 1906 (Pamph. L., p. 246), dividing counties into assembly districts, following State v. Wrightson, 27 Vroom 126, is declared unconstitutional.</p> <p>2. The last section of the statute imposes the duty upon the several county clerks to cause the said act to be printed for circulation in their respective counties, and to furnish copies to persons applying therefor. Held, that this section, being a part of the unconstitutional act, and as the failure to print will not affect the election to be held under the act; and the usual method of publishing statutes being efficient, and the cost of printing falling upon the clerk, it follows that the court, in the exercise of its discretion, will not award a writ of mandamus compelling the clerk to print the act.</p>

<p>1. The act of February 15th, 1905 [Pamph. L., p. 14), which pro-, vides that thereafter in all towns, townships, boroughs and other municipalities of this state, all officers required to be elected therein at any municipal or charter election shall be voted for and elected on the first Tuesday after the first Monday in November, and that the term of office of all such officers shall thereafter commence on the first day of January next succeeding their election, not only repeals the provision of the Borough act which requires the mayor of such municipality to be elected on the second Tuesday of April, and that which fixes the Monday after his election as the commencement of his term of office, but also repeals, by implication, the provision of that act which requires him to take his oath of office within ten days after his election.</p> <p>2. By virtue of the provision of the second section of the act of February 19th, 1906, relative to the official oaths of officers theretofore or thereafter elected or appointed, to office in any town, township, borough or other municipality of the state, a person who had been theretofore elected to office in any such municipality became entitled to occupy such office immediately upon the statute taking effect, provided he had taken the oath of office prior to the commencement of his term.</p> <p>3. As a general rule the rights of parties to an election are to be determined by the law as it exists at the time of the rendition of the judgment, and not at the time of the commencement of the action.</p>

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

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

<p>* A purchaser of land, upon which there has been erected, by a’ prior owner, a structure which is a public nuisance, who maintains and uses the structure, continues the nuisance, and is subject to indictment therefor, although he has not been notified by the public authorities to abate it.</p>

<p>1. The common law rule which excuses a wife from liability for a tort committed by her in the presence of her husband, for the reason that it is presumed to be the result of coercion on his part, prevails in its full force in this state.</p> <p>2. The fact that a dog has a propensity to attack strangers, and that such propensity is known to his master, afford no ground for imputing to the owner knowledge that the animal is likely to attack members of the family with whom he dwells and with whom he is familiar.</p>

<p>On ¡appeal from order of Gloucester Pleas.</p>

<p>Plaintiff, whose ejectment from defendant’s train was unlawful if his contract with the defendant entitled him to ride on such train, produced as proof of such contract the information given him by the agent of the defendant who sold him the ticket that the conductor refused to honor, also the testimony of other commuters as to their customary use of similar^ tickets, and an admission by the defendant that it sold such tickets. A bulletin issued by the company declaring how such tickets might be used was also put in evidence. The language of the ticket itself was inconclusive upon the point at issue. Held, that the submission of all these circumstances to the jury upon the question, “What was the contract between the railroad company and the plaintiff?” was proper.</p>

<p>The action of a municipal council clearly in the interest of the taxpayers will not be set aside upon a doubtful point of procedure at the suit of a prosecutor who has suffered no special injuries of which he can be heard to complain.</p>

<p>1. The Court of Common Pleas upon the trial of an appeal is not authorized to seal bills of exceptions, and in returning the judgment rendered upon such an appeal, in obedience to a writ of certiorari, a voluntary statement of facts not part of the record, though signed and sealed by the judge of the pleas, forms no part of such return.</p> <p>2. The proper practice stated.</p>

Barnes & Hart began a suit in the District Court of Atlantic City' against a debtor of, theirs to recover the sum of $372.46. The sum due on this claim, with costs, was paid by the debtor to the clerk of the District Court by the delivery to him of a check which in due course was honored.

<p>■On certiorari.</p>

<p>If a landlord who lias rented an, apartment in his apartment-house permits the main drain pipe of the building to become and remain clogged with offensive matter dangerous to the health of the tenant of such apartment, and fails after notice to remedy this condition, wherefore the tenant moves out, proof of such facts will be evidence of an eviction that may relieve the tenant from the payment of rent accruing after his removal.</p>

<p>1. The state board of assessors have no authority to assess a franchise tax upon a corporation, which neglects or refuses to make the return required by statute, in excess of the capital stock of such corporation actually issued and outstanding. They can only tax that which by law is taxable.</p> <p>2. In making the assessment of the annual license fee or franchise tax upon a corporation which has neglected or refused to- make . return within the time required by law, the state board of assessors is a special statutory tribunal, and its proceedings are subject to review under the certioran-i power of this court, and upon such review the court may determine disputed questions of fact.</p>

<p>1. Exemption from taxation is a favor, and, to be secured, must be applied for in tbe manner designated in the statute providing for the exemption.</p> <p>2. Failure by a corporation to apply for the vacation of an assessment, made by the state board of assessors on its capital stock issued and outstanding, for three or more years after it was laid and paid, is such laches as will bar a right to relief on certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1 The right to regulate the sale of intoxicating liquors by retail by the legislature or by municipalities or other authority, under legislative power given, is within the police power of the state, and_isji£aeti-eajfljL.limitless. It may extend to the prohibition of the sale altogether. A license is not a contract. It is a mere privilege.</p> <p>2. The privileges and immunities guaranteed to the citizen by the fourteenth amendment to the constitution of the United States, relates to those rights which may be called fundamental. Those which belong of right to all citizens of a free government, and which have, at all times, been enjoyed by the-citizens of the several states.</p> <p>3. There is no inherent right in a citizen to sell intoxicating liquors by retail; it is not a privilege of a citizen of _ the state or the United States.</p> <p>4. Legislation that classifies licenses for the sale of intoxicating liquors by retail, so that those who are required to expose their places of business to view, are distinguished from other licensees, by palpable differences in the condition under which the liquor is to be sold, is not unconstitutional.</p>

<p>Where, in an action of tort, the clear weight of the evidence is against the verdict of the jury, upon any theory under which liability is claimed in the declaration, as well as upon any theory which maj’ account for the accident under all the proof in the cause, a new trial should be granted.</p>

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

On rule to show cause why the arrest of the defendant should not be set aside and the defendant discharged from imprisonment thereunder.

<p>1. A municipal council may determine, in the exercise of the discretion vested in it, to pave a public highway with a special or patented material, and to ask for bids upon such material alone, when the price at which anyone may obtain the patented material is definitely fixed, and known to be obtainable by all at such price, before the bids are asked for.</p> <p>2. Under the supplement approved May 2d, 1906, to the general act relating to cities, approved April 3d, 1902, under which Atlantic City is incorporated, ten days’ notice only is required of the introduction of an ordinance for any contemplated public improvement. This act supersedes the notice required by the act of 1S95. Pamph. L., p. 539.</p> <p>3. It is within the right and power of a municipality to award a contract for public work as an entirety, rather than to parcel it out, where it is evident that the entire work can be done with greater expedition and better results under a single contract.</p>

<p>1. Recovery cannot be had for injuries due to fright alone.</p> <p>2. Where physical injuries are received, all the resultant effects to the system, due to the accident, are recoverable.</p> <p>3. In an action for injuries, proof that the plaintiff was hit on the neck by something, and the dust from falling debris went into her eyes, would take the case out of the rule as to non-recovery for fright alone.</p>

<p>Section 97 of the Small Cause Court act (Revision 1903), provides that no judgment of that court shall be reversed on certiorari “for any error made by a constable in the proper return of a summons as to its service, if it appear that the defendant was duly and legally served.” When, therefore, on certiorari, a corporation alleges, as the sole ground for reversal, that the person served was not such an officer as service may be made upon, under the Small Cause Court act, the defendant in certiorari will be allowed a rule to take testimony to establish that the service was duly and legally made.</p>

<p>On certiorari.</p>

<p>The stenographic report of a trial in a District Court may be certified by the judge of that court as the state of the case on appeal, under the act approved April 12th, 1905 (Pcimpli. L., p. 259), but this statute furnishes no authority for the attorneys to certify such a state of the case on appeal.</p>

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

<p>1. Where a wife is living- separate from her husband, as a' result of his wrongful desertion, and he refuses to furnish her adequate means for her support, the law implies an agency in her to purchase necessaries on his credit.</p> <p>2. Proof of the fact that he is the deserter rests upon the plaintiff.</p>

<p>The personal property of cemetery associations, consisting of horses, hearses, carriages, agricultural implements, tools and other articles used exclusively in and about their cemeteries and for burials in their cemeteries, are subject to taxation.</p>

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

<p>1. The State Aid Road law of 1895 and its supplements (Pamph. L. 1S95, p. 424; Gen. Stat., p. 2902, pi 413, &c.; Pamph. L. 1896, p. 420; Pamph. L. 1897, p. 20; Pamph. L. 1898, p. 100; Pamph. L. 1899, p. 78; Pamph L. 1902, p. 18) are repealed by the act of April 1st, 1903. Pamph. L.. p. 145.</p> <p>2. Proceedings for improvement of a road having been applied for and undertaken under section 8 of the act of 1895 (Pamph. L., p. 432; Gen. Stat., p. 2900, pi. 420; amended, Pamph. L. 1896, p. 240) and completed under the act of 1903 (Pamph. L„ p. 145)'— Held, that the latter act has the effect of relieving abutting landowners from the liability to assessments for benefits to which they would have been subject had the act of 1S95 remained unrepealed.</p> <p>3. The constitutional limitations which prevent the legislature from impairing the obligations of contracts do not debar it from annulling obligations that are due to the public.</p> <p>4. The third section of the general “Act relative to statutes” (Gen. Stat., p. 3194) — which declares that the repeal of any statutory provision by this act, or by any other act thereafter passed, is not to affect or impair any act done or right vested or accrued before such repeal shall take effect — is itself subject to repeal, and there-' fore cannot impose a construction upon a later act contrary to the clear language of the latter.</p>

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

<p>1. Under the General Road law of 1874 (Gen. Stat., p. 2S03, &c.), as amended by the supplement of 1891 (Pamph. L., p. 137; Gen. Stat., p. 2835), the duty of opening a public road that has been duly laid out (the assessments for damages having been paid) rests upon the township committee.</p> <p>2. By the revision of the township laws in 1S99 (Pamph. L., p. 373, §4; p. 428) the office of overseer of the highways was abolished, the duties of the office having been previously taken away by Pamph. L. 1891, p. 137; Gen. Stat., p. 2S35.</p> <p>3. Where a public road has been duly laid out and the assessment for damages paid, it is the duty of the township committee to open the road, notwithstanding the inhabitants of the township have failed to provide money for the purpose. The committee is to call out the inhabitants to do the work, under section 56 of the General Road law (Gen. Stat., p. 2S1S), having first apportioned the labor required among the inhabitants of the township according to the provisions of section 52 of the same act.</p>

<p>Conditions that render a demise void for breach of covenants by the lessee will work an avoidance only at the election of the lessor.</p>

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

<p>Upon a review by certiorari of an assessment for benefits conferred by a street improvement in the town of Boonton, it appearing that the report of the board of assessments to the common council was defective in certain particulars, and it being doubtful whether amendments of the report made by the council to cure such defects were within the powers conferred upon the council by the town charter (Pamph. L. 1872, p. 812, § 12) — Held, that before determining the cause a rule should be granted under the Certiorari act (Pamph. L. 1903, p. 346, § 12) requiring the board of assessments to make certificate to the court concerning such essential matters as were omitted from their report to the council.</p>

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

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

<p>1. The act of April 8th, 1902 (Pamph. L., p. 628), authorizes the board of excise commissioners of a city to make ordinances to license, and regulate or prohibit saloons, and, when licensed, to revoke or transfer the license. An ordinance provided that the excise inspector should at all times have access to all licensed saloons, excepting between certain hours; that it should be unlawful for any licensed saloonkeeper to light his place of business or any sign connected therewith between certain hours on Sunday; that it should be unlawful for any saloonkeeper to open his place of business on Sunday for the sale of cigars or non-intoxicating' liquors, and that on days when the sale of liquor is prohibited it should be unlawful for any saloonkeeper to put up any curtain or screen in front of his bar. Held, that the ordinance was not ultra vires.</p> <p>2. An ordinance of the board' of excise commissioners of a city prohibiting a licensed liquor dealer from having á light burning in his place of business between seven o’clock in the morning and twelve o’clock midnight on Sunday is not unreasonable.</p> <p>3. An excise ordinance prohibiting the hanging of screens, &c., during such times as the sale of liquor is prohibited by law, being manifestly designed to prevent clandestine sales at times when selling is unlawful — Held, not unreasonable.</p> <p>4. The act of April 8th, 1902 (Pamph. L., p. 028, § 1), requires that every ordinance of a board of excise commissioners shall be published for two insertions in two newspapers, and the charter of a city provided that every ordinance passed by the common council should be published for two week's. Held, that publication of an ordinance of the excise commissioners of the city in compliance with the act of 1902 was sufficient.</p>

<p>Where the function of a certiorari is the same as that of a writ of error, it will not, in ordinary cases, be issued until the conclusion of the proceedings that are to be reviewed.</p>

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

<p>1. Pamph. L. 1905, p. 131, provides that whenever, in any city of the second class, fifty per cent, or more of the board of aldermen or other governing body shall petition the mayor or chief executive officer of such city that a change of ward lines is necessary for the proper representation of the residents of the city, it shall be the duty of the chief executive to appoint three resident commissioners to resubdivide the city. Held, that the act requires that the application to the mayor for the appointment of commissioners shall proceed from fifty per cent, or more of the board of aldermen, common council or other governing body of the city, acting in their official capacity, and not as individual citizens, and that the petition shall evidence the prevailing sentiment of the governing body as a body, or at least an equal division of sentiment, after the governing body has, in its official capacity, deliberated upon the question, and hence the act is not unconstitutional as delegating legislative power to private citizens.</p> <p>2. Pamph. L. 1905, p. 131, authorized the redistricting of cities of the second class on petition to the mayor by at least fifty per cent, of the board of aldermen, common council or other governing body. After the approval of the act, and on May 20th, 1905, the city of Paterson attempted to take advantage thereof, but its proceedings were 'irregular, whereupon Pamph. L. 1906, p. 89, was passed to “validate proceedings of commissioners previously appointed to divide cities into wards and to confirm their actions in relation to such division.” This act provides that the acts of all commissioners previously appointed who have proceeded according to law to divide the city into wards, &c., shall be valid, although the action of the mayor was initiated on petition of fifty per cent, or more of the members of the common council, &c., of any city. It was admitted that the city of Paterson was the only city in which such proceedings had been taken. Held, that the curative act is unconstitutional as a special and local law regulating the internal affairs of cities.</p> <p>S. A decision, based on stipulated facts, declaring that a statute is unconstitutional does not wipe the act from the statute books, but merely denies its efficacy to a party who has admitted the existence of a state of facts which, in the opinion of the court, renders the law unconstitutional.</p>

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

<p>1. The act of 1900 for the taxation of franchises of persons and corporations using- or occupying- public streets (Pamph. L., p. 502) is constitutional.</p> <p>2. The franchise tax imposed by the act of 1900 is in the nature of a license tax, and not a tax upon property.</p> <p>3. The franchises to use or occupy public streets which are subject to a franchise tax under the act of 1900 are not subject to a property tax under the General Tax act of 1903. Pamph. L., p. 394.</p>

<p>1. The command of a writ of certiorari is not to be limited by the recitals of the writ where it is so definite that no misunderstanding can arise.</p> <p>2. It is erroneous for the Common Pleas to dismiss an appeal from the court for the trial of small causes for the failure of the justice to send up the transcript within the time fixed by statute in a case where the appellant is not himself in laches.</p>

<p>.'Where land has been actually conveyed, the vendor may recover an unpaid portion of the purchase price, although there was no written agreement by the vendee to pay. The statute of frauds • is not applicable.</p>

<p>1. When no objection has been made to an indictment before the jury is sworn as provided by section 44 of the Criminal Procedure act {Pamph. 1!. 1898, p. 881), the statute is a bar against any attack upon the indictment in a court of review.</p> <p>2. Upon the trial of an indictment for bigamy there was offered in evidence by the state to prove the former marriage by the defendant the record of a divorce suit brought by the prosecuting witness against the defendant in the State of New York. The divorce suit being a civil one, the adjudication was not admissible in evidence . in a criminal case, where the proof is required beyond a reasonable doubt, and the admission of the judgment was error.</p>

<p>An ordinance of a municipality passed under tbe provisions of an act of the legislature (Pamph. L. 1904, p. 866), relative to the vacation of land dedicated or devoted to public use, which contains terms that can only be made effective by infringing- upon private rights, will be set aside.</p>

<p>Where an application for a benefit certificate in a fraternal association contained an agreement by the applicant that compliance on his part “with all the laws, regulations and requirements which are or may be hereafter enacted by said order is the express condition upon which I am to be entitled to participate in the beneficiary fund and have and enjoy all the other benefits and privileges of said order,” a law of the order subsequently adopted that “any member of the order who shall, after August 1st, 1898, enter the business of selling by retail intoxicating liquors as a beverage shall be expelled from the order,” and making provision for suspension from rights in the beneficiary fund and rendering the certificate null and void, is valid and binding upon one who has obtained a benefit certificate under such an application.</p>

<p>A suit upon a warranty by the defendant that a certain steam shovel owned by it would do the work required by the plaintiff cannot be sustained where the evidence of the contract of warranty is de- . rived from conversations .between the respective representatives of the plaintiff and defendant concerning the shovel then in the plaintiff’s gravel pits, the plaintiff complaining that the shovel upon trial would not do the work required of it, and the defendant assuring the plaintiff that it would when put in proper condition, it further appearing that the shovel had been delivered to the plaintiff’s gravel pits under an option to buy for which there was a consideration, and that the plaintiff, at the time it alleges the making of the contract of warranty, had not exercised its option, and no consideration is shown for the contract of warranty.</p>

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

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

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. An action may be maintained by one who suffers a special injury from a public nuisance. Where the public nuisance consists in an injury to a public right, such as an obstruction placed in a highway or in navigable waters, the private injury, to be actionable, must be peculiar to the plaintiff and distinct in kind and degree from that suffered by the public. Where the public nuisance consists of the use of private property so as to annoy a large number of persons in the enjoyment of their health and property, the injury to each is special and actionable.</p> <p>2. The fact that defendant’s factory for making cyanide of sodium, from which foul odors and loud noises emanated, which annoyed the plaintiif in the use and occupation of his dwelling, was located in t-he neighborhood of factories is not an answer to an action for maintaining a nuisance. While the character of the neighborhood may be considered in determining the kind and degree of annoyance which will be regarded as a nuisance, it will not relieve the person who caused the annoyance from liability if the existence of a nuisance is jn'oved.</p> <p>3. A nuisance which annoys the occupants of a dwelling, and so renders it less valuable as a habitation, is an injury to property.</p>

<p>1. The provisions of section 2 of an act defining motor vehicles and providing for the registration of the same (Pamph. L. 1905, p. 4S4), which provisions require every resident or non-resident owner to file a verified declaration that he is competent to drive a motor vehicle, and a statement of the name and address of the owner, of the maker, and number of th'e machine and its rated horse-power, and requiring the payment of a fee of one dollar, and requiring the registration of each machine by the secretary of state and the issuance by him of a certificate to the owner, are not in contravention of the state or federal constitutions.</p> <p>2. The provisions for the statements by the owner, and for registration and license, are within the exercise of the police power of the state for the purpose of securing the safety of the public in the use of the highways against the danger of a new use by a powerful, rapidly-moving machine which requires careful and skilled drivers. .</p> <p>3. The designated fee of one dollar is a valid license fee.</p>

<p>1. Plaintiff was employed by tbe defendant company to string some of its wires above and across certain electric light wires of another company. There was evidence, if believed, that the electric light wires did not usually carry any current except at night, and that this fact was known to plaintiff. Shortly before plaintiff’s injury the defendant company received notice from the electric light company that it would thereafter send through its wires, in the daytime, a current of dangerous intensity. Plaintiff testified that this fact was not communicated to him. Held, that there was a question for the jury whether the failure of the defendant company to give plaintiff notice was a breach of its duty to him.</p> <p>2. There being evidence that the plaintiff had observed that the electric light wires did not customarily carry any current in the daytime, and further evidence that on Saturday, plaintiff and others, to facilitate their raising the telephone wires, took down the electric light wires and at the close of the day replaced them, finding no dangerous current passing, and that on Monday they manipulated some of the telephone wires so as to justify an-inference that they came in contact with the electric wires without indieating any dangerous current therein, and that plaintiff, while working on the last of the telephone wires, received a serious injury from a current of electricity of intensity greater than that applied to telephone wires — Held, that there was a question, for the jury whether the risk was an obvious one to the plaintiff, and that a nonsuit was erroneous.</p>

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

<p>1. The powers conferred upon the Essex public road board by the statute of March 31st, 1869, which created that body, became vested in and exercisable by the board of chosen freeholders of Essex county, by force of the act of Februai-y 10th, 1881, and the subsequent act of April 24th, 1894.</p> <p>2. A decision upon a point of law, which has been made upon solemn argument and after mature deliberation, ought not to be disturbed by the court in which it was promulgated, except for very urgent reasons and upon a clear manifestation of error.</p>

<p>A foreign executor may sue, in ins representative capacity, witnout filing an exemplified copy of liis letters testamentary, whenever the cause of action arises out of a contract or transaction to which he himself is a party.</p>

<p>Service upon the defendant of a copy of a declaration which contains common counts only, or common counts on which a recovery is sought in addition to any matter or thing mentioned in any special count, will not justify a judgment by default for want of an affidavit of merits, unless there be annexed to the declaration a bill of particulars of the plaintiff’s demand, showing the amount for which judgment will be claimed.</p>

<p>On error to the Supreme Court. For opinion of that court, see 43 Yroom 375.</p>

<p>On error to -tbe Circuit Court.</p>

<p>On error to the Supreme Court. For opinion of that court, see 43 Vroom 160.</p>

<p>On the trial of an action for personal injuries the testimony, in the aspect most favorable to the plaintiff, presented this situation : The plaintiff, driving a. team of mules on the public road toward a railroad crossing, with which' he was familiar, made no observations to see if a train was approaching until he reached a point twenty-eight or thirty feet from the track, from which he had an unobscured view up the' tracks to a curve some one hundred feet away, and where if he had seen a train approaching he would have stopped, his team and have been in a place of safety, his mules not being liable to take fright by a passing train. Not seeing the train, which had not yet rounded the curve, the plaintiff drove on, and would have crossed the tracks in safety had not his mules when on the tracks come to a sudden stop, owing to a shout from a brakeman on the rear end . of a train that was rapidly approaching, running backward and giving no signals. On being started up again the mules crossed the tracks in- safety and the wagon so far cleared the rails that its hind wheel only was struck. SeU—</p> <p>(1) That the direction of a verdict for the defendant on the ground of contributory negligence was erroneous, the question whether the plaintiff’s wagon was struck because of his failure to exercise ordinary caution not being', under the circumstances, a court question.</p> <p>(2) That in view of the positive testimony of the plaintiff that the statutory signals were not given, corroborated by circumstantial testimony, that question should have been submitted to the jury, notwithstanding the positive testimony of the defendant’s witnesses to the contrary.</p> <p>Quwre. Whether the statute respecting the giving of audible signals applies to a train that is running backward.</p>

<p>On error to the Supreme Court. The opinion of that court is reported in 43 Vroom 365.</p>

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

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

<p>Where the plaintiff, who had worked for two months as repairman in a cement mill, was injured by getting into an uncovered conveyor in the mill, and knew of the existence of the conveyor and how it ran; that the only covering to it was movable and the cover was sometimes in place and sometimes not; that he could have seen it was uncovered if he had looked effectively — Reid, that no breach of duty on the part of the master was shown, and a nonsuit was properly granted.</p>

<p>On error to the Supreme Court, whose opinion is reported in 43 Yroom 103.</p>

<p>1. When a trolley company has laid down its railway in the streets of a city and has obtained by petition from the governing body an ordinance granting such, a right, and fixing the route of the road and the places where the poles are to be located, according to a map accompanying said petition, pursuant to the Street Railway act of 1896 (Pwmph. L., p. 29), it cannot afterwards lawfully place or erect its poles at places in the street different from those so designated.</p> <p>2. If it locate one of its said poles in the street at a place upon land not thus fixed and designated, and without the authority of the owner of the fee thereof, it becomes a trespasser, and the owner may have relief by an' action of ejectment to recover possession of the land thus occupied by the pole, such possession to be afterwards held subject to the public easement.</p>

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

<p>“An act concerning the salaries of officers in cities and townships of this state” (Pamph. L. 1884, p. 161; Qen. 8tat., p. 2123, pi. 8) authorizes an agreement requiring the officer to perform his duties for a compensation commensurate with and limited to the value of the services that may be rendered, and without any stipulated salary.</p>

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

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

■On error to the Supreme Court. For opinion of that court on motion to enter judgment on the special verdict, see 43 Yroom 8.

The declaration in an action for slander charged the defendant with maliciously speaking, on various occasions, in the presence of others, defamatory words concerning the plaintiff, involving her reputatiou for chastity and general moral character.

In tort. On error to the Supreme Court. The plaintiff was employed as a lineman by' the defendant and had been in its emplot^ for eight months prior to the receiving the injuries for which this suit was brought. His duty was the repairing of trolley wires and to put up new wires and to set poles.

On error to the Circuit Court of the county of Essex. The board of education of the city of Newark, Essex county, having or claiming power to take land for public use, determined to acquire a certain parcel of land on the easterly side of South Ninth street, in the said city of Newark, Essex county, belonging to Margaret A. Walsh, and being unable to acquire such land by agreement with the said owner took proceedings for the condemnation thereof, in accordance with the…

In tort. On error to tlie Supreme Court. This was an action of tort brought in the Supreme Court by the plaintiff in error, plaintiff below, against the defendants in error, defendants below.

<p>1. The jjlaintifi; complained to the superintendent at ten o’clock in the forenoon that the machine upon which he was working was out of order. The defect was obvious. The superintendent said: “You go right ahead with the work; we are overloaded with work, and noon hour I will fix this for you.” The repair was not made at the noon hour. Nevertheless, the plaintiff resumed work upon the obviously defective machine, and at three o’clock was injured by reason of the defect complained of. Held, that the promise to repair was definite and specific as to time of performance ; that there was no question for the jury; that the plaintiff was properly nonsuited.</p> <p>2. The servant assumes not only the ordinary risks incidental to employment, but as well all risks arising and becoming known to him during his service. The master, by promising to amend a defect complained' of, as an inducement to the servant to continue, forthwith takes from the servant the risk and thereafter, and during the period for repair assumes it. Where the promise is general and indefinite the master’s undertaking runs for a reasonable time (approving Dowd v. Erie Railroad Go., 41 Vroom 451). Where it is to repair at a fixed time, it runs until the termination of the time fijfed.</p> <p>3. When the agreement to repair is general, i. e., inferential, as to the time of its 'perforniance, if the master’s promise is not performed within a reasonable time for its fulfillment, and the servant continues to incur the danger in the employment, after the lapse of such reasonable time the servant assumes the risk of injuries occurring thereafter. In such case there may be a question for the jury of reasonable time.</p> <p>4. When the agreement to repair is not indefinite, but specific, as to the time of its performance, if the promise is not performed within the time specified for its fulfillment, and the servant continues in the employment after a manifest breach of the master’s promise to repair, the assumption of risk by the master ceases, and the servant reassumes the risk of subsequent injuries therefrom. Where the time of performance is clearly fixed by the agreement of the parties, there is no question for the jury of a reasonable time for performance.</p> <p>5. It does not follow that, whenever it is proved that a promise to repair was made and acted upon, the.case is prima faoie for-the jury.</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/ For opinion of that court, see ante ¶. 3. .</p>

<p>1. When the driver of a vehicle approaches, with the intent to cross, a trolley track on which a car is running in his direction, and if, from the distance of the car and assuming that it is furnished with brakes and a man to apply them, he may reasonably determine that he has acquired a right to cross first, it is a question for the jury whether the facts justifying that determination are established by the evidence, and whether the driver, in proceeding to cross, exercised a reasonable judgment.</p> <p>2. If the driver, just before going upon the track, checks his horse, and the motorman, at the same time, uses the brakes and brings the car to a standstill, and then the driver urges his horse on, and the motorman simultaneously releases the brakes, it is a question for the jury whether both driver and motorman were misled, each by the act of the other, to judge that each was yielding the right to cross first, or whether the driver, having-acquired a right to cross which he might judge must have been recognized by the motorman, might not have also reasonably judged that the stopping of the ear showed such recognition, and whether the driver’s crossing under those circumstances was negligent, and whether the motor-man’s release of the brakes was negligent.</p>

<p>On error to the Supreme Court. For opinion of that court, see 43 Vroom 426.</p>

<p>1. An ordinance which requires the paving of a public highway, and provides for the assessment of the cost thereof upon the land and real estate benefited thereby, to the extent of the benefit received, is judicial in its nature.</p> <p>2. An ordinance, judicial in its nature, which is passed without notice to those property owners who are affected by its provisions, is invalid.</p>

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

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

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

<p>1. Plaintiff was a member of a trade union (a voluntary association) whose rules provided for fining and otherwise punishing any member violating the laws of the association or the rules of trade. The rules provided for a trial of the accused member before a tribunal established within the association, at the same time providing that he should be entitled to “due notice and a fair trial,” and should not be put on trial unless charges were submitted in writing by a member of the association. Plaintiff having been put on trial without the submission of written charges and without due notice, was sentenced to pay a fine and to give up his place of employment for one year. Meld, that this course of procedure, unless consented to by plaintiff, furnished no justification for the subsequent action of the association and its officers in procuring his discharge from employment.</p> <p>2. Whether plaintiff did consent to be put on trial without charges or notice, was, under the evidence in this case, a question for the jury.</p> <p>3. The constitution of this state (article 1, paragraph 1) establishes the unalienable right of all men' to acquire property and pursue and obtain safety and happiness; included in this is the right of making contracts for personal services as a means of acquiring property. It is therefore the right of every man to engage in such lawful business or occupation as he may choose, free from hindrance or obstruction by his fellow-men, saving such as may result from the exercise of equal or superior rights on their part.</p> <p>4. Whoever intentionally and without legal justification or excuse, procures an employer to discharge his employe, to the damage of the latter, is liable to an action for damages at the suit of the employe; and this, although there was no binding contract of employment.</p> <p>5. Malice, in the law, is the intentional doing of a wrongful act, without justification or excuse. A “wrongful act,” within the meaning of this definition, is any act which in the ordinary . course will, infringe upon the .rights of another to his damage, except it be done in the exercise of an equal or superior right..</p> <p>6. Where a party has entered into an agreement that is void because contrary to public policy, he may, on repudiating such agreement, recover upon a ground of action that exists independent thereof. His suit is not barred by the operation of the maxim in pari delicio.</p>

<p>A train despatcher of a railroad company, whose duty is to issue telegraphic orders for the movement of trains upon a single-track road in the name of the superintendent and to see that they ai-e tz-ansmitted, is not a fellow-servant of a fireman upon one of the locomotives of the company.</p>

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

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

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

<p>1. The plaintiff sued to recover damages for an injury received by him from a concealed derrick while he was painting a post on defendant’s steamship. The trial judge directed a verdict for the defendant, because the uncontradicted testimony was that the defendant had not directed any work to be done upon the post and so was under no duty to provide for his safety while there at work. Held, that there was no error in the judicial direction.</p> <p>2. The plaintiff was working under the direction of a foreman of his employers. This foreman received instructions as to what parts of the ship were to be painted from the first officer of the steamship. On the trial the foreman had testified, for the defendant, as to what work he was instructed by the first officer to do, which did not include this post, and testified that he himself had not told the plaintiff to paint this post, and on cross-examination - what he had told the plaintiff to paint, which did not include the post. He was then asked on cross-examination whether he did not tell the plaintiff and another man to paint this post. This question was overruled. Held, that in view of what he had already testified there was no injurious error in this ruling.</p>

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

On error to the Supreme Court. Action of contract by Michael Kaplan against said company to- recover loss upon policy of fire insurance. Plea of general issue, with notice setting up an award by appraisers under the terms of the policy. Judgment for amount fixed by the award and plaintiff brings error. Affirmed.

On error to the Supreme Court. This was an action upon contract brought by the plaintiff in error, also plaintiff below, against the defendant in error, also defendant below.

On error to the Monmouth County Circuit. This ease was previously before this court (Stein v. Good-enough., 40 17room 635), and argument was then stayed and the ease retained in order that the actual entry of judgment final might be procured and the record thereof thus brought up by certiorari, which has been done.

<p>The refusal by the Supreme Court of a mandamus and its discharging a rule to show cause why a mandamus should not issue, is not reviewable on error, excepting in cases decided in the Supreme Court upon the constitutionality of a statute.</p>

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

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