Volume 74 — New Jersey Law Reports

<p>1. The supplement of 1905 to the revision of the act for the taxation of railroad and canal property (Panvph. L. 1905, oh. 91) does not violate the provision of the constitution of the state which requires property to be assessed for taxes under general laws, by uniform rules and according to its true value; nor does it violate the fourteenth amendment of the federal constitution by denying to the parties affected by it the equal protection of the laws.</p> <p>2. The fact that all of the property in a taxing district is assessed for taxes below its true value, except that owned by railroad or canal companies, will not justify the board of equalization of taxes in reducing the assessment of railroad and canal property below its true value.</p> <p>3. The sixth section of the act creating the board of equalization of taxes (Pamph. L. 1905, p. 26) confers upon that body power to compel the reassessment of the whole property of a taxing district when it is shown that all of such property has been assessed for taxation at substantially less than its true value.</p>

<p>The city of Atlantic City, by ordinance, created a paid fire department, and the members of the department organized themselves into a corporation, under the name of the “Firemen’s Benevolent Association of Atlantic City,” pursuant to authority conferred by the act of March 25th, 1885. Gen. Stat., p. 1494. Subsequently a writ of certiorari was allowed to review the legality of the ordinance. Held, that the allowance of the writ, although it suspended the operation of the ordinance, did not have the effect of dissolving the incorporated association.</p>

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

<p>There is no legal error in an instruction to the jury that the point of junction of a ferry-boat and its dock is a place of danger, and that a passenger, in passing on or off the boat, is bound to use care when he reaches that point.</p>

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

<p>1. There is nothing in the Election law of this state that prevents a voter from writing on an official ballot the name of any person for whom he desires Jo vote for any office the name of which is printed on such ballot; or, if the name of any office to be filled at such election be not printed on such ballot, from writing also the name of such office on such, ballot in conjunction with the name of the person for whom he desires to vote to fill said office.</p> <p>2. At an election at which the office of borough mayor was to be filled, the writing of the words “For Mayor, Charles S. Roswell,” upon official ballots on which the name of such office had not been printed, did not constitute such ballots “marked ballots” within the meaning of section 58 of the Election law.</p> <p>3. Under section 58 of the Election law, the reprobated mark must be “other than is permitted by this act.” It is not enough that such mark distinguishes the ballot or renders it capable of identification.</p> <p>4. Section 59 of the Election law construed.</p> <p>5. The case of Ransom v. Black, 25 Vroom 446, explained.</p>

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

On rule to show cause. Plaintiff was employed by the defendant in filling its ice-house. The ice, which was in blocks weighing about two hundred and fifty pounds, was lifted by an elevator to a runway that ran to the ice-house at a distance of twenty feet from the ground! Along this runway the blocks of ice were pushed or pulled, as the case might be, by means of ice-hooks, by the defendant’s servants, of which the plaintiff was one.

<p>1. Plaintiff, an employe of a water company, was engaged, with others, in connecting a main at night, the plaintiff’s duty being to hold a lantern to> show a light to the others who were working in a trench, the nearest edge of which was eighteen inches from defendant’s tracks. The gang had been working on this job during the latter part of that day, during which the motormen had sounded the gong on approaching the point. At quitting time, about five p. M., the men quit, and then resumed work at , ten o’clock at night, of which the trolley employes had no notice. The plaintiff held his lantern eighteen inches from the ground, kneeling for this purpose on the narrow strip between the trench and the tracks, knowing that lie would be struck by a passing car if he did not get out of its way. There was nothing in his occupation that prevented the free use of his senses, and no obstruction to his vision up or down a straight track in each direction. These circumstances having appeared in the plaintiff’s case, the defendant’s motion that he be nonsuited for contributory negligence should be granted.</p> <p>2. The case of Daum v. North Jersey Street Railway Co., 40 Vroom 1, distinguished.</p>

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

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

<p>Where compensation is to be made in some other thing than money, and there is a refusal to comply with the agreement to compensate in the specific way provided, the plaintiff is entitled to recover as compensation what the specific thing which he was to receive is worth. This is to be ascertained in the usual way of arriving at the value of real or personal property.</p>

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

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

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

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

<p>One paying money by mistake to a person wliom he believes to be his lessor, but who had in fact assigned his right to collect the rent under the lease to another, may recover back the money so paid, if subsequently required to pay the same to the assignee of the lessor.</p>

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

<p>On certiorari.</p>

<p>The act entitled “An act to provide for the summary investigation of county and municipal expenditures.’’ approved February 18th, 1879. as amended by the supplement thereto, approved March 23d, 1898, is constitutional.</p>

<p>On certiorari.</p>

<p>Under the proviso to section 15 of the “Act for the relief of persons imprisoned on civil process,” approved March 27th, 1874, it is the right of an insolvent debtor, whose first application for discharge has been refused, to make a second application, and this right exists whether the first refusal was by the court or upon the verdict of a jury.</p>

<p>It is not sufficient, to sustain- an action for malicious prosecution, to prove that the affidavit upon which the arrest was made was false; it must also appear that the ■ affiant either knew it was false or did not have reasonable and probable cause to believe it to be true.</p>

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

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

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

<p>Under tbe “Act for tbe assessment and collection of taxes” (Pamph. L. 1903, p. 394), buildings actually and exclusively used for colleges not conducted for profit, and tbe land whereon the same are situated necessary to the fair use and enjoyment thereof,» not exceeding five acres in extent for each, are exempt from taxation. Held, that under this act, from the evidence in the case, the assessment against the prosecutor should be set aside.</p>

<p>1. Pamph. L. 1888, p. 461, § 1 {Gen. Stat., p. 423, § 87) provides that the solicitor of the boards of chosen freeholders in counties of the second class shall hold office for the .term of' two years. Pamph. L. 1905, p. 14, declares that in: all towns, townships, boroughs and other municipalities all officers required to be elected therein at any municipal or charter election shall be voted for bn the first Tuesday after the first Monday of November. Section 2 declares that the term of office of every such elective officer theretofore elected in any town, township, &c., and bolding office at the passage of the act, shall be extended until the 1st of January next succeeding the date at which bis term of office would otherwise expire. Section 3 declares that every officer theretofore appointed or chosen- by the township committee, mayor or other governing body of any town, township, borough or other municipality, and holding office at the time of the passage of the act, shall continue in office until the 1st of January succeeding the day on which his term of office would otherwise expire, and section 4 provides that the terms of office of all - officers thereafter elected in any town, township, &c., shall commence on the 1st day of January next succeeding his election, &c. Held, that even if this act were applicable to the office of solicitor of the board of chosen freeholders, it would not operate to cut short the term of office of a solicitor selected after the act was passed and before the 1st of the ensuing January.</p> <p>2. The words “officers chosen by the governing body of any town, township, borough or other municipality” do not, however, apply to solicitors of boards of chosen freeholders.</p>

<p>On motion to amerce.</p>

<p>1. In suits by real estate brokers to recover commissions on the sales of land committed to their agency, the question always is whether, under the peculiar conditions of the given case, the agent was the efficient cause of the sale.</p> <p>2. When such a suit is brought in one of our District Courts, the question thus raised is one of fact 'for the judge or jury, and as such is not reviewable on appeal except in cases where there is no legal evidence to support the finding.</p>

<p>1. The facts necessary to support an order of removal made under the Poor act (Gen. Stat., p. 2513, § 46), so far as they do not involve a case of pedigree, must be proved as other facts generally are proved, according to the ordinary course of the common law.</p> <p>2. Where a case of pedigree arises in the proof of facts in support of such an order, resort may be had to proofs of declarations of . persons then deceased who were at the time related by blood or marriage to the person whose pedigree is in question. The affidavit of a stranger, based only upon information and belief, is inadmissible for such a purpose.</p>

<p>1. A partial destruction of a leased building, though it may render the premises untenantable for the purposes of the lease until repairs are made,, does not amount to a “total destruction” of the premises within the meaning of section 35 of the Landlord and Tenant act. Gen. Stat., p. 1923.</p> <p>2. The statute being in derogation of the common law rule, its scope should not be extended beyond the plain meaning of the words.</p>

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

<p>1. This court may, of its own motion, strike out’improper pleadings.</p> <p>2. By our Ejectment act (Gen. Stat., p. 1282), the defendant is confined to the plea of not guilty.</p>

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

<p>On certiorari to the small cause court.</p>

<p>1. The general'act of March 23d, 1883, constituting police courts in certain cities (Pamph. L., p. 177; Gen. Stat., p. 2483), operates to modify the provisions of the charter of the city of Rahway respecting police justices. Pamph. L. 1865, p. 499, § 45.</p> <p>2. Under section 21 of the act of March 23d, 1883, constituting police courts in certain cities (Pamph. L., p. 177; Gen. Stat., p. 2483), in civil suits brought to recover a penalty, where the justice has jurisdiction, and the judgment is not recovered by confession, the only direct review is by appeal to the Court of Common Pleas.</p>

<p>There being evidence tending to show that plaintiff, while upon a public bridge that was being repaired by defendant’s employes, stepped upon a plank which (unknown to him) had been loosened by them in the course of such repairs, and that the plank turned under his weight and caused him to fall, sustaining personal injuries, to recover for which action was brought — Held, not erroneous to charge the jury that if the danger which occasioned plaintiff’s injury was a hidden danger, caused by the action of the defendant, it was incumbent upon defendant to guard against such hidden danger by giving warning to or protecting a passerby who was lawfully upon the bridge.</p>

<p>On certiorari.</p>

<p>1. Under the revised Tax law of 1903 (Pamph. L., p. 395, § 3, ¶ 2), which exempts “the property of the United States and of the State of New Jersey, and of the respective counties, school districts and taxing districts when used for public purposes,” property used by a city for the purpose of maintaining and operating a public water-supply system established under statutory authority is exempt from taxation.</p> <p>2. The exemption clause above quoted is not confined in its effect to property located within the bounds of the municipality that owns it.</p> <p>3. The right of a city to exemption from taxation upon property used for the purposes of its public water-supply system is not taken away by the fact that sales of surplus water are made to parties outside of the territorial limits of the city, even if such sales be not authorized by law.</p>

<p>Under th,e act providing for appeals from City District Courts to the Supreme Court (Pamph. L. 1902, p. 565), the appellant must bring up, with the state of the case, a certified transcript of the judgment record in the court below.</p>

<p>The by-laws of a corporation organized under the General Corporation act (Pamph. L. 1896, p. 277) provided for a board of three directors, to be chosen at each annual meeting of the stockholders, and to hold office for one year, and until the election of their successors; fixed the date of the annual meeting, and provided that special meetings of the stockholders might be held at any time, on the call of the president or treasurer, upon three days’ notice to each stockholder. A special meeting was called by the president, upon notice, “to transact such business as may be properly brought before said meeting.” No notice was given that this meeting would go into an election of directors, nor did such a purpose exist at the time the notice was given. The meeting (having been adjourned from time to time) proceeded to an election of directors to fill vacancies. — Held (assuming that the bylaws conferred the power to call a special meeting of stockholders for the election of directors at a time other than the date of the annual meeting), that the election as held was void because not held at the annual meeting of stockholders, nor at a special meeting called for the purpose on notice to the stockholders, nor by unanimous consent.</p>

<p>1. The duty of a railroad company with reference to its stations and platforms is less onerous and exacting than its duty with reference to its roadbed and rolling stock.</p> <p>2. A railroad company is not negligent merely because there is ice upon a station platform. Whether it is negligent depends on whether it allows an unreasonable time to elapse before cleaning the platform.</p>

<p>1. The plaintiff, a sculptor, concracted with defendants, operators of a marble quarry, for blocks of marble of certain size, sawed ill a certain wajr, of tone and character suited for carving of figures for a named .building to be built of marble, a sample of which was furnished the quarrymen. Held, that the tone and character of the marble was a matter of description and warranted, and that mai'ble not answering that description might properly be rejected by the plaintiff.</p> <p>2. The plaintiff did not lose his right to reject marble, not answering the description merely by doing sufficient work upon it to finable him to discover the defects, which were latent.</p> <p>3. Where a vendor fails to deliver goods in accordance with his contract, and they cannot be procured in the market, and the vendee is obliged to procure other goods, the measure of damages is the difference between the contract price and the price of the nearest substitute procurable.</p>

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

<p>1. A declaration, which avers that an insolvent corporation of another state was duly incorporated, is not demurrable because it fails to - aver specifically compliance’ with the statutory provisions of that state.</p> <p>2. In a declaration which avers that the court of the domicile of a foreign mutual insurance company authorized the receiver to sue for assessments and fixed the percentage of assessment, the actual amount being fixed by the receiver, it is not necessary to aver that the amount of the assessment was determined by the directors of the company. Meley v. Whitaker, 32 Vroom 602, followed.</p> <p>3. In a suit by the receiver of a foreign mutual insurance company to recover assessments needed to pay losses, the proceedings of the courts of the domicile of the corporation are binding upon members of the company so far as they concern the administration of its affairs.</p>

<p>1. In an indictment under the act of 1898 relating to libels (Pamph. L., p. 476),' it is essential to charge that the matter is libelous and untrue in fact.</p> <p>2. An indictment which charges that the defendant willfully delivered and transmitted to the publisher of a newspaper for publication a libelous statement, untrue in fact, in the following words: “To whom it may concern: Public notice is hereby-given that the undersigned intends to apply to the legislature of the State of New Jersey, now in session at the capítol, in the city of Trenton, N. J., for 'the passage of an act or bill, the general object of which will be the consolidation of the borough of Fair-view, in the county of Bergen, with the borough of Cliffside, in the county of Bergen, into one municipality, to be known as the borough of Fairviow, and to be governed under the general laws concerning boroughs now in force in New Jersey. Dated February 23d, 1906. George E. Dods, August E. Neumann,” fails to charge a crime in the absence of any averment of circumstances which would make the publication libelous and of any innuendoes of a defamatory meaning.</p>

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

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

On rule to show cause why a writ of mandamus should not go to respondents directing them to permit the relator to inspect and take copies of the registry lists used in the fall election of 1905, in the county of Hudson, and now on file in the custody of the Hudson county board of election.

These are two informations in the nature of writs of quo ivarranto instituted by two members of the excise board of Jersey City, appointed as such by the mayor of said city, under the provisions of Pamph. L. 1903, p. 369.

On certiorari. This writ brings up an order made by a justice of the Supreme Court under color of an act for a summary review of proceedings on the suspension, dismissal, retirement or reduction in rank of members of the police force -in this state. Pamph. L. 1906, p. 18. The order directs that a bond shall be filed by the petitioner to secure the pajunent of the costs, and fixes a day for the hearing of the matter before the said justice.

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

On certiorari. This writ brings up an ordinance of Atlantic City, approved April 13th, 1899, and a resolution of common council passed January 8th, 1906. The ordinance was passed to carry out a scheme provided for in the statute passed in 1894. Pamph. L., p. 146.

On certiorari. Thomas Magner was appointed chief of police of the city of Bayonne on December 16th, 1902; qualified as such officer, and continued to discharge the duties of his office until February 9th, 1906. On February 6th, 1906, the mayor of Bay-, onne sent a communication to the common council, stating that he was advised that the appointment of Magner was illegal, and proceeding to appoint as chief of police one John Yore.

This writ brings up an order of the Circuit Court of Atlantic county appointing commissioners to estimate damages and benefits occasioned by the laying out and opening a street or driveway along the beach or ocean front in Ocean City under the provisions of “An act to authorize cities in this state located on or near the ocean, and embracing within their limits or jurisdiction any beach or ocean front, to lay out and open streets and drives, and to construct public walks…

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

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

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

<p>1. Section 41 of the act.approved April 8th, 1903 (Pamph. L., p. 420), makes it the duty of a borough collector of taxes, on or before the twenty-second day of December, in each year, out of the first money collected, to pay to the county collector the state and county taxes required to be assessed in his taxing district.</p> <p>2. A peremptory mandamus will issue for the payment of state and county taxes by a borough where it has collected sufficient moneys for borough, county and state purposes to pay such state and county taxes.</p> <p>3. The fact that the legality of certain assessments of taxes by the' borough is under review by certiorari proceedings in this court is no defence on an application for mandamus to compel the borough to pay over the state and county taxes.</p> <p>4. The fact that section (33 of the act of 1903 (Pamph. L., p. 435) provides that “an action may be maintained by the county collector against any taxing district to recover taxes due from the taxing district” does not exclude the remedy by mandamus against the taxing district to compel payment out of “the first money collected.”</p>

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

<p>On certiorari.</p>

<p>Where a writing purporting to be a copy of an original letter is offered in evidence as secondary evidence of the original letter, it must be shown that the writing is in fact a true copy.</p>

<p>On appeal, this court will not consider an alleged error not in any way brought to the attention of the trial judge and not shown, in the state of the case, to have been in any way raised before him.</p>

<p>1. Upon a motion to nonsuit on the ground of contributory negligence, where the alleged negligence must be deduced from facts and circumstances in evidence, the question is usually one for the jury, and the motion will be refused unless it is established by the evidence, beyond fair debate, that the plaintiff was negligent and that the negligence directly contributed to the injury complained of.</p> <p>2. The plaintiff, a boy about twelve years of age, wás playing in the roadway of a street, throwing a ball and running to catch it. The defendant’s automobile, driven by himself, was coming along the street at full speed, in the middle of the street, giving no warning by horn, bell, whistle or other sound, and when it approached the boy, “twitched” and hit him. The boy was knocked down and injured. The defendant moved for nonsuit on the ground of contributory negligence, which motion was denied. Held, that the question of contributory negligence was properly . submitted to the jury.</p>

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

<p>1. To deprive a party in a justice’s court of the remedy by certiorari, the justice’s court must have had jurisdiction over the subject-matter and over the party with reference thereto.</p> <p>2. The Bridgeton city charter (Pamph. L. 1875, p. 354) provides that, on filing with a justice a complaint that a designated person has violated a city ordinance, the justice shall issue process against such person, which shall state what ordinance has been violated. A complaint charged a violation of Ordinance No. 87, section 5, relating to impounding dogs, but without stating that the ordinance was an ordinance of the city. The warrant recited a violation of Ordinance No. 88, section 5, relating to the impounding of dogs. Sold, that the justice did not have jurisdiction of the person accused, though it be assumed that the complainant charged a violation of an ordinance of the city.</p> <p>3. A person was charged before a justice of the peace with a violation of a city ordinance. The return of the justice to a writ of certiorari showed that the accused was brought into court, that the justice made inquiry, and, on finding a violation of the ordinance, imposed a fine. Held. not to show a conviction of an offence.</p>

<p>1. The fact that a person takes passage upon a railroad train which is not scheduled to stop at a station to which he desires to be carried, and that he does so because he is informed by the agent from whom he purchases his ticket that the train will stop at such station, imposes no obligation upon the company to stop the train at that, station for the purpose of letting him off.</p> <p>2. When a passenger who is riding upon a train under such circumstances, is informed by the conductor that the train will not stop at the station for which he holds a ticket, it is his duty either to tender such fare as will entitle him to ride to some stopping point beyond his station, or else, when requested to do so by the conductor, change trains at a stopping point short of his destination.</p>

<p>By force of the statutes regulating the matter of the representation of boroughs in the boards of chosen freeholders of the several counties of this state, a borough having a population of less than three thousand is, for the purpose of such representation, to be considered as a part of the township out of which it has been created, and a resident of such a borough is eligible to nomination and election as a member of the board of freeholders for the township of which, for the purpose of representation in the boai'd, it forms a part.</p>

<p>1. The right of a private individual to abate a nuisance in a public highway exists only when such individual is specially, and in some particular -¡vay, inconvenienced by it; and even then he can only abate it so far as it is necessary to do so in order to exercise his right of passing along the highway.</p> <p>2. The power conferred by the legislature upon borough authorities to provide for the removal of encroachments, encumbrances and nuisances in the public streets {Pamph. L. 1897, p. 296) does not authorize the summary removal therefrom of growing trees. .</p> <p>3. The power of municipal authorities to summarily remove an encroachment in a public highway is capable of exercise only .to the extent that the right to do so is clear, or is readily ascertainable without the necessity of adjudication.</p>

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

<p>1. It is not necessary, in order to constitute the offence created by section 50 of the Crimes act (which provides that any single man over the age of eighteen years who, under promise of marriage, shall have sexual intercourse with any single female of good repute for chastity, under the age of twenty-one years, she thereby becoming pregnant, shall be guilty of a high misdemeanor), that the intercourse shall take place at the time when the promise is made or immediately following it.</p> <p>2. It is not competent for a person indicted under the above statutory provision to prove at the trial of the indictment that the prosecuting witness had other men than himself call to see her prior to the time of her seduction by him, and that they remained with her all night.</p> <p>3. Where the question for determination is whether, at a given time, a man was married or single, proof that he was single a few months prior to that time, is sufficient to support the conclusion that he remained in that state up to that time, in the absence of proof to the contrary.</p>

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

<p>Since the enactment of the statute of March 10th, 1893, which prohibits the finding of an indictment against a person for the offence of maintaining a common law nuisance-or keeping a disorderly house, where the offence sought to be punished consists wholly in the unlawful sale of intoxicating liquor, a person who is indicted for the common law offence of keeping- a disorderly house is entitled to an acquittal, where the only proof offered to support the charge against him relates to sales of intoxicating liquor contrary to law.</p>

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

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

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

<p>In determining the amount due from a debtor to his creditor, the rule applicable in the calculation of interest, where payments have been made from time to time by the debtor in excess of the interest which has accrued up to the date when they are respectively made, is that the excess shall be deducted from the principal. Where the interest always remains in excess of the payments, the proper way to determine the amount due is to calculate the interest and add it to the principal sum, and then deduct from this gross amount the total of the payments.</p>

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

<p>On certiorari.</p>

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

<p>When a trial judge has erroneously, charged that a husband, in an action based on his wife’s injury, might recover compensation for loss of liis .wife’s assistance in the household, and secondly, recompense for the hire of a woman to do certain household work which the wife had done before she was injured, an exception in the words of the charge is sufficient upon error, in the absence of a requirement by the'trial court that the ground of exception be more specifically stated.</p>

<p>The provisions of section 3 of -‘A general act relating to factories and workshops, and the safety, health and hours of operatives” (Gen. Hint., p. 2345, § 29) do not apply to shafting used in gathering natural ice.</p>

<p>1. At common law on a sale of food articles to a dealer in provisions there was no implied warranty of wholesomeness. Assuming that a different rule exists in the case of a sale by such dealer to a consumer, the latter, in the absence of a statute, cannot hold the original vendor to a higher degree of duty than that cast upon him by the common law with respect to 1ns own vendee.</p> <p>2. To select out of an entire class of transactions, covered by a well-established rule of the common law, a single member for the imposition of a different rule, based upon considerations of public welfare, is essentially a legislative function.</p> <p>3. A declaration alleged that the defendant had packed diseased ham in a can and liad sold it to a retail dealer, of whom it was bought by the plaintiff, who, from eating a piece of such ham, became sick. Held, that these facts did not state a cause of action by the plaintiff against the original vendor.</p>

<p>1. It is the duty of a foot passenger crossing a street containing a car track to use his powers of observation while in a place of safety to discover approaching cars which may put him in danger.</p> <p>2. If obstacles intervene to prevent observation, reasonable prudence requires delay until such observation as is requisite has been made.</p>

<p>It is negligence in the conductor of a trolley car, which has come to a stop at a street corner for the purpose of taking on passengers, to-start it until he has exercised due'care to ascertain whether all the persons there waiting to take it have safely boarded the car.</p>

<p>In an action for personal injuries, a verdict for the plaintiff for substantial damages will not be set aside as inadeguate when it appears that all the substantial elements of damage were in dispute as to their extent, and it appears that the verdict may be the result of the application of good judgment to such conditions as might be fairly found from the evidence.</p>

<p>1. Upon the trial of an indictment for manslaughter, where the defendant claims that the killing was in self-defence, and it has been proved in the case that the deceased and the defendant were in actual collision at the time of the killing, previous threats by the deceased against the defendant, although not communicated to the defendant, are competent evidence.</p> <p>2. Under an indictment for manslaughter, a defendant -cannot be convicted of the offence set forth in the fortieth section of the Crimes act.</p>

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

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

<p>On certiorari.</p>

<p>A personal covenant in a lease that the lessee will pay the taxes assessed against the property of the lessor mentioned in the lease does not, as between the taxing district and the lessee, make the lessee the owner or taxpayer within the meaning of the General Tax act, approved April 8th, 1903, and hence entitle him, to notice of proceedings by the owner to apportion taxes upon the leased property and other property of the lessor and owner.</p>

<p>I,t is no defence, in an action to recover a penalty under the act approved March 24th, 1904, which makes it unlawful to employ a child under fourteen years of age in any place where the manufacture of goods of any kind is carried on, to prove that before employing a native-born child under such age an affidavit of a parent of such child was first filed with the employer setting forth that such child was above such age. To make the affidavit provided for by the statute available in justification of such employment, it must be accompanied by the certificate or certificates required by the statute, and to make out a defence, it must also be proven that correct copies of all “papers, certificates, passports and affidavits So filed relating to such employment were mailed, postage prepaid, to tlie department haying charge of the enforcement of the said act within twenty-four hours after the same were filed with the person so employing such child.</p>

<p>On certiorari.</p>

<p>When a corporation keeps no transfer book for the transfer of its capital stock, other than its certificate of stock book, and such certificate of stock book is in fact used as its transfer book in recording the evidence of the transfer of shares of its capital stock from one stockholder to another — Held, that if such' certificate book, thus üsed as a transfer book, be present at the place „ and time of electing directors, together with all other books and stockholders’ lists required by.the thirty-third section of “An act concerning corporations,” approved April 21st, 1896 (Pamph. L., p. 277), the directors then in office are not ineligible to re-election as directors at such election.</p>

<p>1. Suit may be maintained in a District Court upon each of several promissory notes which are past due, and which were given to the same person by the defendant at different times and in independent transactions. A satisfied judgment in a suit upon one of such notes will not be -a bar to a suit against the same defendant upon another of such notes held by the same plaintiff, although the note in the second suit was past due at the time of the institution of the suit in which the judgment was satisfied.</p> <p>2. The waiver provided for in the thirty-third section of the District Court act, where the claim in suit exceeds $300, relates only to the excess on the particular claim in suit.</p>

<p>On certiorari to review an order of the state board of assessors as to franchise tax.</p>

<p>1. In an action ior tort against a constable for removing and carrying away certain lumber sold by him at constable’s sale, under execution issued 'out of a justice’s court, as the property of the defendants in execution, it appearing that the plaintiff had delivered to the constable before the day of sale a written notice claiming the property to be hers and not the property of the defendants in execution, the constable adjourned the sale for ten days; that plaintiff had failed to apply to have her right tried pursuant to section 62 of the Small Cause Courts act (Pamph. L. 1903, p. 251), and that thereupon the constable made sale of the property pursuant to the adjournment. It was held, following Van Marter v. Lucas, 35 Vroom 182, that the plaintiff had no right of action against the constable, and the judgment below in favor of the defendants was affirmed.</p> <p>2. Held, also, that the fact that the goods levied on were in possession of the plaintiff, and that the constable had not taken manual possession thereof at the time of the levy, did not take the case out of the rule laid down in Van Marter v. Lucas.</p> <p>3. Held, also, that the fact that the notice in writing was delivered to the constable by the plaintiff on Sunday did not relieve the plaintiff from the effect of the rule therein laid down, it also appearing that the notice was prepared and signed on Saturday, and was not acted upon by the constable until the Monday following.</p>

<p>1. The defendant’s right to a trial by jury, reserved to him under section 12 of the Borough act (Pamph. L. 1897, p. 291), in certain cases of alleged violation of borough ordinances therein designated, cannot be made to depend, without legislative authority, upon the defendant’s prepayment of the jury fees.</p> <p>2. The word ‘‘may,” contained in the jury clause which reads, “there may be a trial by jury,” is mandatory in effect, and not permissive only.</p> <p>3. The conviction of defendant by the recorder, sitting without a jury,' after the same was regularly demanded, is set aside, with costs.</p>

<p>1. In proceedings under the Landlord and Tenant act (Pampli. L. 1903, p. 27, § 2), the required affidavit must set forth facts sufficient to establish the existence of the relation of landlord and tenant between the parties.</p> <p>2. Where the affidavit of the plaintiff show's that the tenant is in possession under an agreement with a former owner, who has since conveyed to the plaintiff the reversion thereof, with all his interest therein, it sufficiently show's the existence of the, relation of landlord and tenant to sustain the proceedings.</p> <p>3. But where the affidavit merely sets forth that the plaintiff is the owner of the premises, and that the defendant is in possession as tenant under an agreement with such former owner, without showing in any way how such ownership was transferred, if at all, it is not sufficient to show the existence of such relation.</p>

<p>On certiorari.</p>

<p>On case certified.</p>

<p>The plaintiffs, in an action for damages, caused by defendant’s cutting-vines on plaintiffs’ premises, gave evidence as to the value of the vines and their ornamental effect upon the. premises. Held, that it was error to reject evidence offered by the defendant upon the same points.</p>

<p>1. Upon review of a judgment rendered in a District Court, either by appeal under the statute (Pamplv. L. 1902, p. 565), or by certiorari, what should be contained in the state of the case depends upon the same principles that determine the contents of a bill of exceptions. Where the objection is to the rejection or admission of evidence, it should comprise so much of the case and of the prior evidence as will fairly present .the judge’s ruling.</p> <p>2. It is erroneous to permit a witness to use, as a memorandum from which to testify, a document with the preparation of which he ' had nothing to' do.</p> <p>3. Held, erroneous to admit in evidence a receipt or .bill of lading purporting to have been given by an express company, there being no legal evidence of its authenticity.</p> <p>4. A principal is bound by the admissions of an agent only when such admissions are within the scope of the agent’s employment or are otherwise authorized by the principal.</p>

<p>Defendant in an action brought upon a bond signed by him, purporting to secure payment of weekly sums for his wife’s support, being called as a witness in his own behalf respecting the execution of the bond, and having- admitted the signature and testified that he could not read English (the bond being written in that language), was prevented by rulings of the trial judge from answering questions tending to show that the bond was not read to him, that he did not know its purport and was given to understand that it only required him to make an appearance in court. Held, error.</p>

<p>Leave granted, in the discretion of the court, for an appellant to perfect his appeal, taken from a District Court under Pamph. L. 1902, p. 565, by bringing up a transcript of the judgment in the court below.</p>

<p>A contract between the prosecutor and the city provided that he should, as required from time to time during a term specified, do certain work in repairing street openings, that the work should be done in an expeditious manner and without unnecessary delay, and that whenever the city council should become satisfied that the work or any part thereof was being unnecessarily delayed it should have power to terminate the contract by resolution passed at any meeting. Held, that the only vested right of the contractor with respect to the continuance of the contract was that it should remain in force until the city council should become satisfied that the work was unnecessarily delayed, and should thereupon, by resolution, terminate the contract; that city council could terminate it without notice to the contractor, and that their action in so doing was not reviewable by the courts in the absence of anything to show that they acted unreasonably or wantonly.</p>

<p>On certiorari.</p>

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

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

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. The action of replevin is not only an action to recover the specific property,' but also to recover damages for the detention, and the plaintiff is entitled to recover damages for detention, although the plaintiff, pursuant to the statute, has not required the immediate delivery of the property.</p> <p>2. The sheriff, by a levy under an execution, acquires only a special and qualified title to goods levied on, and the title of the defendant in execution is not wholly divested.</p> <p>3. After an action of replevin had been begun under section 143 of the District Court act, and the plaintiff had not required the immediate delivery of the property, the sheriff levied on the goods in the possession of the defendant by virtue of an execution against the plaintiff. Held, that it was error in the trial court to order a nonsuit.</p>

On certiorari. This writ brings up an order of the board of equalization of taxes of New Jersey. The board of tax assessors of Jersey City levied an assessment of taxes for the year 1905 upon the property of the New York and Jersey Eailroad Company.

This writ brings up a conviction for the violation of an ordinance of Atlantic City. The ordinance took effect on June 1st, 1905.

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

This writ of error brings up a judgment of the Union County Circuit Court entered upon a verdict rendered at the trial of an issue framed to try an appeal from an award of commissioners appointed in a proceeding to condemn the land of the Security Land and Improvement Company and Benjamin Meyer. The appeal is taken by the Central Railroad Company, which company instituted the proceedings for condemnation. The verdict fixed the value of the land taken at the sum of $11,000.

This writ brings up an ordinance passed by the common council of the city of Bayonne which, among other things, abolished the office of captain of police, held by Charles McBride, the prosecutor.

On demurrer to pleas. The declaration sets out that the Newark Fire Insurance Company on June 3d, 1903, agreed to insure, for the term of three years, Abraham Lewitt against all direct loss or damage by fire, to an amount not exceeding $4,500, on certain described property; that the said insurance was made subject to certain stipulations and conditions; that the defendant agreed to pay the loss under the said policy to David T. Reed and James A. Reed, as mortgagees, as their…

This is a rule to show cause why a writ of mandamus should not issue, directed to the hoard of trustees of the Newark paid fire department pension fund, commanding them to replace the names of the relators upon the roll of the members of the Newark paid fire department pension fund and compelling them to receive from the petitioners the assessments which are levied upon the members of the fund.

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

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

<p>1. On a motion to nonsuit, where fair-minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury.</p> <p>2. Where a party asks for an instruction which is partly good and partly bad, it is proper to refuse it altogether.</p>

<p>On certiorari.</p>

<p>1. Under a charter provision requiring contracts for municipal work to be awarded to the lowest bidder “who shall give satisfactory proof of his ability to furnish the requisite materials and perform the work properly,” a person seeking a contract with the city must not only underbid his competitors, and be, in fact, able to perform the contract, but must also satisfy the municipal authorities of his ability to perform.</p> <p>2. A writ of certiorari will issue at the suit of a taxpayer and abutting landowner to review the award by a city of a contract for street paving to a bidder whose bid failed to conform in ’ material particulars to' the specifications under which the bids were offered.</p>

<p>1. A member of a benevolent association, against whom proceedings are pending which have his expulsion for their object, is entitled to make such defence as he may have to the charges upon which the proceedings are based, and if he is expelled without being afforded an opportunity to submit his defence, he is deprived of a substantial right which the ordinary principles of justice' require that he should be permitted to enjoy.</p> <p>2. Mandamus is the appropriate remedy to effect the restoration of a member of a private corporation who has been irregularly removed from membership.</p>

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

<p>On certiorari.</p>

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

<p>1. AVhen a judge of the Supreme Court has made an order for summary investigation upon a petition and affidavit conferring jurisdiction on him to make such an order, pursuant to the provisions of the act entitled “An act to provide for the summary investigation of county and municipal expenditures,” approved February 18th, 1879, and a supplement to said act, approved March 23d, 1898, he may be required to institute an inquiry as to the facts on which his act has been founded, at least to the extent of discovering whether he has been imposed upon.</p> <p>2. AVhen the municipality, the affairs of which are ordered to be investigated, files a subsequent petition for the vacation of the previous order, and supports it by counter affidavits, yet does not apply for a rule to show cause or other proceedings to determine the contested facts, there was no error committed by Ihe judge in dismissing the latter petition and refusing to vacate the order made upon the first petition.</p> <p>3. The constitutionality of the above-recited acts was challenged in the Supreme Court upon a specific ground. Under the decision now made that ground is ineffective to support the claim. Reid, that the other objections to the act, on the ground of unconstitutionality, will not be considered.</p>

<p>■ 1. While- an exception to a single legal proposition, contained in a charge to the jury, need not point out the grounds on which it is taken, unless the trial judge requires, it must bring to the mind of the trial judge the matter excepted to, either by a recital of the language used or of its very substance.</p> <p>2. An exception to the “court’s charge to the jury on the question of damages” is insufficient to bring into review any question as to the propriety of the charge on that subject.</p>

<p>On error to the Supreme Court. Eor opinion of that court, sec 44 Vroom 109.</p>

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

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

<p>1. Plaintiff, a boy of seventeen, while crossing a switch track in the railroad yard of the defendant, was struck by a freight car that was making a flying drill from a switch fifty feet away. Plaintiff saw the engine before it reached the switch and watched it until the switch was passed, and then inferred, from the fact that the engine was on the track furthest from him, that he could safely cross tlie intervening tracks, and hence made no observation to ascertain the safety of so doing. If he had looked he would have seen the car that struck him. Held, that the plaintiff’s failure to make any observation as to the safety of the track he was about to cross was negligence, which was not cured by the inference he drew from seeing the engine on another track.</p> <p>2. A boy of seventeen, who apprehends the dangerous character of a railroad yard, and recognizes his duty to safeguard himself in crossing it, will be held to have contributed to an accident due in part to his negligent performance of the duty thus recognized by him.</p>

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

<p>The platting of a tract of land upon a map by the owner thereof, showing a street thereon, and the retaining of such map in the possession of such owner, and the making of deeds by reference thereto, by bounding’ the land described in the conveyances as upon such street, coupled with the subsequent marking out, crowning and repairing of such street by such owner and grantor, is evidence of a dedication of such street to the public, and when accompanied by public user, or the acceptance by the municipality by repairing or working such street, the dedication is conclusive as against such dedicator and all claiming through or under him.</p>

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

<p>1. Under the cancellation clause in a standard policy oí fire insurance the company is not required to pay or tender the unearned premiums in order to bring about a cancellation of the policy.</p> <p>2. Notice to effect cancellation need not be in writing. It may be verbal or oral. No particular .form of notice is prescribed. It is only necessary that the company positively, distinctly and unequivocally indicate to the insured that it is its intention that the policy shall cease to be binding as such upon the expiration of five days from the time when its intention is made known to the insured.</p>

<p>1. Where the contract for the sale of a machine on trial contains a guaranty of the capacity of the machine, and provides that if after thirty days’ trial the machine does not prove satisfactory the defendant will load it on cars at its works immediately after the expiration of the thirty days’ trial, if upon trial the machine proves unsatisfactory because of its failure to do the amount of work guaranteed, the defendant must comply with this provision of the contract in order to escape liability to pay for the machine. I-Ie cannot retain the machine and by giving notice to the plaintiff of its failure to fulfill the guaranty rescind the contract and escape liability to pay the price agreed upon.</p> <p>2. The guaranty contained in the contract will not afford the defendant a ground to recoup against the agreed-upon price of the machine the expense to which he has been put in making the test provided for in the contract in the absence from the contract of any provision that the seller should pay the expenses of such test.</p>

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

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

<p>1. Where a dying declaration is offered in evidence, the preliminary question of fact, whether the declarant was under a sense of impending death, is for the determination of the trial court, and its finding, if supported by any legal evidence, is not rcviewable by ordinary writ of error.</p> <p>2. Where the trial court determines that a dying declaration was in fact made under a sense of impending death, the defendant is not entitled to have the jury instructed that they may review such determination and disregard the declaration if they come to a different conclusion from that reached by the trial court.</p>

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

<p>Defendants having, without right or license, deposited hot ashes upon vacant land adjoining their factory, and the plaintiff (a boy) having sustained personal injuries by coming into contact with the ashes while engaged in play upon them or near them — Held, that the defendants were not liable in the absence of evidence to show that injury to the plaintiff, or to a class of which the plaintiff was one, ought reasonably to have been anticipated by defendants.</p>

<p>1. Mere knowledge by a shipper that a carrier’s rates are based upon the value of the goods shipped will not lessen the liability-of the carrier to answer for the value of the goods in the absence of the shipper’s assent to such a restriction.</p> <p>2. Where the trial judge instructed the jury that the sole question for their determination was whether plaintiff knew that defendant’s rates depended upon the value of the goods; if yes, the verdict should only be for $50; if no, the verdict should be for $300, the value of the goods, and the jury rendered’a verdict for the smaller sum — Held, that the verdict could not be supported as against plaintiff on the theory that he had voluntarily accepted as a contract a bill of lading stating in effect that the value of the goods did not exceed $50, it being disputable, under the evidence, whether he did assent to such contract, and this question not having been submitted to the jury.</p>

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

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

<p>A bond was given with condition that a contractor should execute a certain public work for a certain price, to be paid eighty per cent, of the amount for the work done, as certified to by an engineer, at different periods as the work progressed, and the remainder of the price in thirty days after the completion of the work. The contractor’s agreement with the town provided that upon notice-for certain causes the contractor should discontinue the work and the town should finish it, the expenses to be paid out of the moneys due or to become due to the contractor. After the. contractor, upon notice, had discontinued the work, the town, having already paid him eighty per cent, of the amount of certified work done, paid him $776 in addition. The bond of the sureties contained the clause that it should not be rendered void by reason of any payment made to the contractor in advance or contrary to the terms of the contract, or by reason of any other thing that may be done by the parties in connection with the fulfillment of the contract. Reid, that this clause preserved the validity of the bond, conceding the payment was made in contravention of the terms of the contract. Held, that the effect of the clause in the bond was not to enlarge the liability of the sureties because of the deviation from the terms of the contract, but that the liability of the sureties stood as if the money had not been-paid, and they were entitled to have the whole twenty per cent, reserved by the terms of the contract applied in part liquidation of the cost of completing the work.</p>

<p>1. An owner or occupier of lands, who, by invitation, express or implied, induces persons to come upon the premises, is under a duty to exercise ordinary care to render the premises reasonably safe for such purposes.</p> <p>2. The liability of the owner or occupier of premises for their condition is only coextensive with his invitation.</p> <p>3. A person entering upon premises by invitation, express or implied, and using a road which for many years had been used with the acquiescence of the owner, is not precluded from recovering damages for an injury caused by a danger placed by the owner in the road, solely on the ground that the owner had provided another way that was safe and might have been used by the plaintiff. In such a case it is a question of fact whether the road taken by the plaintiff has, by its accustomed use, with the knowledge of the defendant, become a way which, by its use and appearance, indicated a way that persons so using the premises were invited to use.</p> <p>4. Where fair-minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury.</p>

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

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

On error to tire Supreme Court. This was an action ex contractu begun in the Supreme Court by the defendant in error, Peter G-. Polhemus, against the plaintiff in error, Bichard 3. Deutz, impleaded with the Prudential Bealty Corporation. The declaration was in the form prescribed by the Practice act of 1903 (Pamph. L., p. 542, § 30), and the notice annexed to the declaration contained a copy of the promissory note and the endorsements thereof, as follows: “$2,000.

<p>On error to the Supreme Court. Bor opinion of the Supreme Court, see 44 Vroom 94.</p>

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

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

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

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

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

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

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

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

<p>On. 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 Gloucester Circuit Court.</p>

<p>1. A motion to nonsuit on the opening of counsel ought not to be granted unless, upon the facts stated as to be proved and the reasonable inferences therefrom which a jury might draw, a verdict for the plaintiff could not be supported.</p> <p>2. If counsel in his opening states a fact tending to show negligence contributing to the injury in respect to' which the action is brought, a nonsuit on that ground ought not'to be granted unless contributory negligence is conclusively shown thereby. If there are opened other facts bearing on that subject, from which a jury might reasonably infer no negligence, a nonsuit is erroneous.</p>

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

<p>On error to the Supreme Court. For opinion of that court, see ante p. 82.</p>

<p>1. A servant who knows that a tool or appliance furnished to him by his master is defective does not, on that account, assume the risk of injury resulting from its use. It is not the obviousness of the physical condition or situation which charges the servant with the assumption of the risks that arise from it, but the obviousness of the danger which the physical condition or situation produces.</p> <p>2. The fact that a master furnishes to his servant, for use by the latter in his work, a tool or appliance which is defective, will not justify the conclusion that the master did not use reasonable care to furnish a safe tool or appliance, unless (1) .the defect was of such a character as to suggest to an ordinarily prudent person that there was danger of injury in the use of the tool or appliance, or (2) unless prior use of the tool or appliance, in its defective condition, had disclosed that it was dangerous, and the master knew or ought to have known that this was the case.</p>

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

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

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

<p>1. A jury may infer negligence from, facts and circumstances which reasonably impute it.</p> <p>2. If the proof shows that a child of six years of age was run down at a crosswalk by the driver of a team of horses going slow, and who had full opportunity to observe the child, and nothing else appears, whether or not there was negligence in the driver is not a court question, but is for the jury, and it is error to direct a nonsuit.</p>

<p>In a suit upon a judgment recovered in a foreign state, a charge of the court that “the presumption is that this judgment was valid, and in order to overcome that presumption the burden of proof rests upon the defendant to satisfy you by a preponderance of the evidence that the judgment was rendered without jurisdiction first having been obtained over him by the foreign court. If he has failed to satisfy you of that fact by a preponderance o'f the evidence, the plaintiff is entitled to your verdict,” is a correct statement of the law.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 44 Vroom 315.</p>

<p>1. Section 63 of the Negotiable Instruments act (Pamph. L. 1902, p. 594) abrogates the rule declared in Chaddock v. Vanness, 6 Vroom 517, that the signature of a third party upon the back of a negotiable instrument prior to its delivery to the payee creates per se no implied or commercial contract whatever.</p> <p>2. Section 64 of the Negotiable Instruments act (Pamph. L. 1902, p. 694) deals only with -the liability of an irregular endorser to the payee and subsequent parties, and does not define the rights and liabilities of several such endorsers as between themselves.</p> <p>■3. Under section 68 of the Negotiable Instruments act (Pamph. L. 1902, p. 596) parol evidence is admissible as between several endorsers to show that they agreed to become liable otherwise than in the order in which they endorsed.</p> <p>4. The first of two accommodation endorsers of a promissory note • having endorsed upon the strength of a verbal agreement made by the second endorser, whereby the latter, in consideration that the maker of the note should place in his hands certain valuable personal property to secure payment of the note by the maker, promised the first endorser to indemnify him against loss thereon, and the maker having furnished the consideration before delivery of the note, and the first endorser having been obliged to pay the note to the holder — Held, in an action by the first endorser against the second endorser for reimbursemfent under the agreement of indemnity, that this was not a promise to answer for the •debt, default or miscarriage of another person within, the meaning of the statute of frauds (Gen. Stat., p. 1603, § 5, ¶ 2), but an original obligation, founded upon a consideration of substantial benefit to the promisor.</p> <p>6. Apgar’s Administrators v. Hiler, 4 Zab. 812, followed; Hartley v. Sandford, 37 Vroom 627, distinguished.</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. The exemption of a municipal corporation from actions by individuals suffering special damage from its neglect to perform or its negligence in performing public duties, whereby a public wrong is done for which an indictment will lie, does not extend to actions where the injury is the result of active wrong-doing chargeable to the corporation.</p> <p>2. A municipality has no right, by artificial drains,-to divert'surface water from the course it would otherwise take and cast it, in a body large enough to. do substantial injury, on land where, but for such artificial drains, it would not go.</p>

In tort. On error to the Supreme Court. . This ease was tried at the Essex Circuit before Chief Justice Gummere and a jury, and a verdict rendered for the plaintiff below.

On error to the Camden Circuit Court. The case was tried before Judge Endicott and a jury, and a verdict directed for the plaintiff for the sum of $790.94.

On error to the Supreme Court. The case was tried at the Essex Circuit, before Chief Justice Gummere and a jury, and verdict was found for the plaintiff.

<p>1. Motion for nonsuit and for direction of verdict for defendant is in effect a demurrer to so much of the whole testimony as is favorable to plaintiff, admitting its verity in point of fact for the purpose of denying its sufficiency in point of law.</p> <p>2. Plaintiff’s cross-examination, tending to show lack of ordinary caution, was contradictory to testimony on direct and to testimony of other of plaintiff’s witnesses. Held, that on motions to nonsuit and to direct a verdict for defendant, the trial judge could not ignore testimony of other 'witnesses for plaintiff in favor of plaintiff’s testimony on cross-examination, nor pass upon conflicting claims to credibility.</p> <p>3. In an action against a street railway company for injuries received by a foot passenger, struck by a car of the defendant while crossing a public street, it was established that when and where the accident occurred there was a sign, placed over the tracks by the defendant corporation, requiring cars to “Run Slow!” Held, that this requirement, adopted by the defendant corporation previous to the accident, for the guidance of its servants in matters relating to the safety of the public, and made public, created a duty as to such persons as would be likely 'to be injured by a failure to observe the precautions prescribed. Proof of a violation of such requirement by the motorman, directly resulting in injury to the plaintiff, is evidence, although not conclusive, from which the jury would be warranted in finding the motorman negligent, and the defendant therefore liable.</p>

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

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

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

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

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

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

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

<p>1. Plaintiff’s action was brought to recover damages for the death of her husband, who was a fireman in tlie employ of the Central Railroad Company, and firing on an engine of that company running on the tracks of the Philadelphia and Reading company, in the State of Pennsylvania, and was killed by the. derailment and overturning of the engine, caused by gravel, &e., deposited on the track by water flowing thereon in the time of a heavy rain. Defendants moved for a direction on the ground' that the' Philadelphia and Reading company had made such provision to divert the water and prevent its flowing on the track as reasonable prudence required, and that the fall of water on this occasion, was extraordinary and unprecedented. There being evidence that,the fall, though heavy, was not extraordinary, and that on a number of occasions before this occurrence the waters had flowed on the track and deposited gravel and sand thereon — Sold, that whether that company had performed its duty in that regard was,for the jury’ to determine, and it was not error to refuse a direction.</p> <p>2. There was a flagman employed by the Philadelphia and Reading, stationed at the place where the obstruction was, who did not give warning of it to the approaching train. That place was a crossing of the railroad by a highway at grade. It was claimed that, under the laws of Pennsylvania, such flagman was a fellow-employe of plaintiff’s husband. Thereupon defendants asked an instruction that if the jury believed the cause of the accident was the failure of the flagman to give such warning, the plaintiff could not recover. — Held, (1) that under the construction of their laws by the courts of Pennsylvania, the flagman was not, under the circumstances of the case, the fellow-employe of plaintiff’s husband, and (2) that there being proof that the instructions to the flagman were limited to the flagging of trains when he perceived danger, and that a train had safely passed the crossing just before, funning through water thereon, and there being no proof that he could perceive the existence and danger of the obstructions, which were covered by flowing water, the request was properly denied.</p> <p>3. A deposition taken under section 45 et seq. of the Revised Evidence act is admissible to be read in evidence, although the notice of taking the same did not assert that the person proposed to be examined was a material witness and a non-resident.</p>

<p>1. When one who has alighted from a trolley car, in which he had been a passenger, passes behind the car, and proceeds to cross -ttys track on which cars run in the other direction, making no observation for his own safety except to “look up” when the car' from which' he had alighted prevented his view of the other track, and without'waiting until that car had passed sufficiently far to permit. observation, enters on that track and is ’ struck by a car thereon before he had seen it, which is not shown to have been running at excessive speed, his negligence contributing- to the injury he received is so disclosed as to leave no question .to be submitted to the jury.</p> <p>2. Whether the duty which the trolley company owed to him as a passenger just discharged from one of its cars exceeded that which it owed to any foot passenger attempting to cross its tracjcs is not involved. The fact that he had been a passenger does not relieve him from the duty on his part to take reasonable care ior his own safety.</p>

On error to the Supreme Court. The following is the statement of the case made by the trial court in directing a verdict (a diagram shows the locus in quo) : “The consideration which I have been able to give this case since the hour of adjournment yesterday afternoon has led me to the conclusion that there is no controverted fact in the case, the settlement of which by you would determine to any extent the rights of the parties to this litigation.

On error to the Circuit Court. On December 30th, 1901, an agreement in writing was executed between C. Austin Dali and Mrs. A. Louise Peck-ham by which Dali agreed to sell to Mrs. Peckham a lot of land in the town of Montclair, and “to erect thereon a dwelling-house according to plans to be agreed upon by Mrs. Peckham, the cost of which, including architect’s fees, should not be less than the sum of $5,500 nor more than $6,000, said house to be completed on the 1st day of…

<p>1. Under the act of 1S84 {Pamph. L., p. 142),.as amended by the act of 1888 (Pmnph. L., p. 269), four distinct elements enter into the assessment of railroad property for taxation, namely, (1) main stem, which is defined to be “the roadbed, not exceeding one hundred feet in width, with its rails and sleepers, depot buildings used for passengers connected therewith (2) other real property; (3) tangible personal property; (4) franchise. Each of these four subjects of taxation is inherent in the property owned by each railroad company organized under the laws of this state.</p> <p>2. Each railroad corporation owning and operating a railroad is taxable under the statute, and each of the four classes of prop-</p> <p>. erty required to be ascertained by the board of assessors must be ascertained as to each railroad, and in default of proof or other facts changing the implication which arises from the organization of a railroad company, the presumption is that the roadbed, as laid under the route as filed, is to be taxed as main siom within the statutory width, and this applies whether the railroad conducts a passenger or freight business, or both.</p> <p>3. Merged corporations, operated under the corporation into which they are merged, normally retain, for the purposes of taxation under the statute, the same features, with regard to main stem and other property for taxation, as each of the merged lines possessed at the time of the merger.</p> <p>4. A main stem must always exist in every incorporated railroad company that is operated for the transportation of freight and passengers, or either, however long or short the railroad may be.</p> <p>5. In -order to tax the property of an incorporated railroad company within the one hundred feet of its roadbed as property other than main stem it is essential to show, affirmatively, facts which establish that it is not being used for the transportation of freight and passengers, or either.</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, whose opinion is found in 43 Vroom 112. .</p>

<p>1. Chapter 91 of the laws of 1906, being a supplement to the act for the taxation of railroad and canal property, and known as the Duffield act (Pamph. L. 1905, .p. 189), is not in conflict with article 4, section 7, paragraph 12 of the constitution of this state, which provides that “property shall be assessed for taxes under general laws and by uniform rules according to its true value.”</p> <p>2. Tlie so-called Duffield act {Pamph. L. 1905, p. 189) does not conflict with article 14 of the amendments to the federal constitution, which provides that no state shall “deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction, the equal protection of the laws.”</p>

<p>1. Section 0 of chapter 67 of the laws of 1901, entitled “An act to abolish the state board of taxation, and to create in lieu thereof a board for equalization, revision, review and enforcement of tax assessments” (Pamph. L. 1905, p. 126), authorizes the state board of equalization, “after due investigation,” to increase the assessment made upon any property that has been assessed at less ihan its true value, and for this purpose, if necessary, to direct a reassessment of such property, to be made by an assessor or other taxing officer, or by some other person appointed by the board. Held, that the new assessment, whether made by the board, or by a taxing officer or some other person, is intended merely for the purpose of carrying into effect a determination previously reached by the board, after due investigation, that the property in question has been assessed at too low a valuation, and that the owner of the property is entitled to notice of the investigation.</p> <p>2. Section 6 of chapter 67 of the laws of 1905 (Pamph. L., p. 126) authorizes the state board of equalization to establish rules, according to which the reassessment of property thereby authorized is to be made. Hold, that a rule prescribing notice to the property owner after the making of the reassessment, and giving to him an opportunity to make objection to the new assessment, does not take the place of the notice to which the property owner is entitled before the state board determines the question, whether the property in question has been assessed at too low a valuation.</p>

<p>On error to the Supreme Court, whoso opinion is reported in 44 Vroom 481.</p>

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

<p>On error to the Supreme Court. For opinion of that court, see 44 Vroom 175.</p>

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

<p>On error to the Supreme Court. For opinion of that court, see ante p. 162.</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 declaration contained a count for criminal conversation, and also a count for alienating the affections of the plaintiff’s wife. These are distinct causes, but were joined under Supremo Court rule No. 17. As to the count for criminal conversation, the husband and wife, under the Evidence act of 1900 (Pampli. L., p. 363, § 5), were not competent witnesses, except to prove the fact of marriage, but as to the second count, they were competent for all purposes.</p> <p>2. The husband, without objection, testified generally for himself, but the wife’s testimony,1 apart from the fact of marriage, was excluded. At the close of the testimony the second count was abandoned and the case left to the jury entirely upon the first count. Reid, that the husband’s testimony was admissible under the second count when offered ; that the wife’s testimony was also admissible when excluded. Redd, that upon the abandonment of the case under the second count, the court should have charged, in accordance with the request of defendant’s counsel, that the jury should not consider the testimony of the plaintiff as to his wife’s criminal conversation with the defendant, nor as to the wife’s alleged confession to her husband of misbehavior with the defendant.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 44 Vroom 279.</p>

<p>On error to the Supreme Court. The opinion of the Supreme Court is reported in 44 Vroom 366.</p>

<p>1. A master’s duty to his servant requires of the former the exercise of reasonable care and skill in furnishing suitable machinery and appliances for carrying- on the business in which he employs the servant.</p> <p>2. That duty will be discharged by providing machinery and appliances which are in common and ordinary use, and which are reasonably safe and fit for the purposes for which they are to be applied.</p> <p>3. While a servant assumes the risk of injury from, obvious defects or dangers, he does not assume the risk of injury from defects ancl dangers which are not obvious, and of which he had no knowledge, and could not observe and know of by the exerc-ise of ordinary care.</p> <p>4. Where there is a fair dispute in the evidence, or two classes of conclusions can reasonably be reached from it, whether* the injury to the servant was the result of the failure of the master to exercise the care required to provide proper machinery and appliances for the use of the servant, or whether the injury was the result of obvious danger or risk to the servant, or the want of ordinary care on his part to observe dangers within his knowledge, or of which he ought to have known in the exercise of such care, then a case is made which should be submitted to the jury for their determination.</p>

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

<p>1. A subscriber of stock of a corporation is liable to pay therefor on the execution of the certificate of incorporation, though he does not participate in the organization, and though the corporation becomes merely a de facto corporation.</p> <p>2. An order of the Court of Chancery ascertaining --'the amount necessary to pajr the debts of an insolvent corporation, and reciting that there were no funds to pay the same; that assessments should be made against the persons who had subscribed for the stock and held the same in specified amounts, and that payment of such assessments might be enforced by suit, sufficiently proved the making of an assessment against a subscriber, though the order recited that it was made without prejudice to the rights of any person named therein to any defence which he might have to any action on stock- subscriptions, and the receiver of the corporation might sue a subscriber for the assessment.</p>

<p>In an action based upon a decree of the Court of Chancery made after hearing on petition, answer and replication, and whereby it appears that said court took an account of all the assets of an insolvent corporation, and of all its liabilities, ascertained the amount of unpaid subscriptions and who were the parties to be assessed, and directed the amount to be assessed against them— Held—</p> <p>(1) That the decree is conclusive as to the subscription to the capital stock of the insolvent corporation and that the same remains unpaid to the amount set out in the decree.</p> <p>(2) That the reservation of defences made in such decree applies only to such defences as may have arisen since the date of the decree.</p>

This was ail action upon contract brought in the Passaic Circuit Court by the defendant in error (plaintiff below) against the plaintiff in error (defendant below).

This was an action upon contract brought in the Circuit Court in and for the county of Passaic by the defendant in error against the plaintiff in error.

<p>Where application is made for a rule to show cause why a new trial should not be granted by a party holding bills of exceptions, the mere granting of the rule operates as a waiver of the bill of exceptions except on points reserved in the rule. Haden v. Bamford Bros., 44 Vroom 308, affirmed.</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>