Volume 75 — New Jersey Law Reports

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

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

<p>1. An act of the legislature which regulates the internal affairs of only those towns having a population of ten thousand, wherein the board of aldermen, or common council, consists of an even number of members, and wherein such members are elected by wards, is special, and, therefore, unconstitutional and void.</p> <p>2. An allegation that a statute is unconstitutional because it is a special law regulating the internal affairs of towns — the infirmity being apparent on the face of the statute — is not a mere inference of law, but a statement of a fact.</p> <p>3. In a proceeding brought to test the validity of the title of a municipal officer, the municipality is not a necessary party, unless the legality of its existence is involved in the controversy.</p>

<p>1. The remedy given by the third section of the Mechanics’ Lien law to persons who furnish materials used in the erection of a public building is not taken away by the act of March 3d, 1892, entitled “An act to secure the payment of laborers, mechanics, merchants, traders and persons employed upon, or furnishing materials toward, the performance of any work in public improvement in cities, towns, townships and other municipalities in this state.”</p> <p>2. Where a new remedy is authorized by statute, without an express repeal of a former one relating to the same subject-matter, and the new remedy is not inconsistent with the former one, the statute is to be regarded as creating a concurrent remedy, and not as abrogating the former one. *</p>

<p>On demurrer to a declaration for failure to properly aver the duty which the defendant was charged with having failed to perform— Held, that the allegation of duty in a declaration is immaterial, for, if the particular facts recited raise the duty, the allegation is unnecessary, and if they do not, it will be unavailing.</p>

<p>If a municipal board, on whom powers of condemnation have been conferred by the legislature, resolves to acquire land by purchase at a price greatly in excess of its market value, such resolution will be set aside as unreasonable and improvident, the power of eminent domain having been conferred to meet just such junctures.</p>

<p>1. Quo warranto is the appropriate remedy by which to test the title to office in a private corporation.</p> <p>2. A seal is not essential to the validity o£ a proxy to vote for officers at a corporate election.</p>

<p>The words “any new place,” as used in the act of March 8th, 1905, regulating the sale of liquors (Pamph. L. 1905, p. 42), means a place for which a license has not previously been granted upon a direct application. The mere transference of a license to a place leaves it still a “new place” for the purposes of this act.</p>

<p>A consulting physician, having, at the request of an attending physician, visited a patient of the latter, brought suit against the attending phj'sician for the price of such visit. The defendant offered to prove a custom of the medical profession to the effect that in such case the charge is always made against the patient. Held, to be error to overrule this offer.</p>

<p>1. A judgment was entered upon a bond by virtue of the warrant of attorney upon an affidavit which stated that the consideration of the bond was the sum of $2,473.49, being the amount of money due from the obligor to the deponent on the account of money which came to the obligor’s hands as 1he executrix of the will of one Weaver, and interest due on the same, and that the debt for which judgment is confessed is justly and honestly due and owing to deponent, and that the judgment is not confessed to answer any fraudulent purpose. &c. — Held, that judgment was properly entered on this affidavit.</p> <p>2. The obligee of a bond given for a valid consideration may enter judgment by virtue of the warrant of attorney for any debt or demand that would sustain an action under the bond against the maker thereof, provided such demand, at the time such judgment is confessed, is justly and honestly due and owing in the sense that it is an unpaid indebtedness, and not in the sense that a fixed day of payment has been reached and passed.</p> <p>3. The case of Gaslcill v. Strong, 24 Vroom 665, affirmed on the opinion contained in 59 Atl. Rep. 339, followed.</p>

<p>On certiorari.</p>

<p>1. Where a county building committee has been appointed by the chosen freeholders of any county pursuant to the act of 1901, as amended by the act of 1902 (Pamph. L. 1901, p. 79; Pamph. L. 1902, p. 42), and such committee has incurred obligations for lands or building construction, it is lawful for the chosen freeholders to raise the necessary funds to cover such expense by the issuance of bonds, as provided by statute, and in default, a mandamus will issue so directing.</p> <p>2. Under the act of 1901 the building committee, when appointed, have the authority to erect a county jail.</p> <p>3. The provisions of the act of 1903 (Pamph. L., p. 47) do not apply to a change of site for the location of county buildings at the county seat, but only to a change of the county town or seat itself.</p>

<p>Whether a person who has alighted from a standing train at a station, and who is crossing the railway tracks by a planked way provided by the company for that purpose, after the train from which he has alighted has. moved out, is still a passenger entitled to so cross without looking or listening, is a question of fact for the jury, where, under the proof, reasonable men may differ as to Whether he was proceeding from the station- platform to a place of safety within a reasonable time after he had alighted from the train.</p>

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

<p>Though the caption of the indictment found at a term of the Court of Oyer and Terminer, under which trial was had in the Court of Quarter Sessions, is in the Oyer; and nothing else in the record shows into what court the indictment was returned, and it does not appear how it was transferred to the Quarter Sessions and there appears in the minutes of the Quarter Sessions an order that “all the indictments this day found be retained and filed in said Court of Quarter Sessions for trial or other disposition,” it will not be considered that the indictment was returned into the Quarter Sessions and not to the Oyer, and that no order was made in the Oyer directing the handing down of it to the Quarter Sessions for trial; but the Quarter Sessions being a court of general jurisdiction, its proceedings will be assumed to be regular, and all things necessary to give it jurisdiction will be presumed, the contrary not appearing.</p>

<p>It requires a willful refusal to file the report of the election of directors within thirty days after any annual election to make the directors so failing to file the same ineligible to re-election at the next succeeding annual meeting.</p>

<p>The rule that an undenied statement, made in the presence of a person implicated or interested, is a tacit admission of the facts asserted does not apply when such statement is made by a witness in the course of a judicial hearing in which the party implicated or interested could not interfere. To interrupt such proceeding to deny a statement made under such circumstances would be to charge the witness with perjury, and alike inconsistent with decorum and the rules of law.</p>

<p>Coal shipped from the State of Pennsylvania and stored in this state to await orders for sale, and then to be transshipped to customers purchasing, after such storage, is not in interstate commerce, and is taxable at the place of storage here.</p>

<p>1. The members of the board of education of the city of Hoboken, as in office at the time of the approval of the General School act of 1903, became a body corporate under that act, and were given the power, conferred by that act, to condemn lands for public school purposes. Their successors, elected as they were, prior to the adoption by the people of either the provisions of section 3S or section 39 of that act, have the like powers.</p> <p>2. The conferring of such powers upon existing boards of education, in cities not adopting either section 38 or section 39 of said act, is not special legislation as to cities, and hence is not in conflict with our state constitution.</p>

<p>In tlie case of a tenancy from month, to month, the requirement of a notice to terminate the tenancy is mutual. Neither the landlord nor the tenant can terminate such a tenancy except upon proper notice.</p>

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

<p>On certiorari. .</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

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

<p>In proceedings for the disbarment of an attorney-at-law, it was established, upon evidence beyond reasonable doubt, that the attorney had obtained from a fellow-townsman $100 upon false representations, by assigning to him one month’s salary as county attorney, which the attorney had previously hypothecated to another creditor: that on another occasion he had obtained by false representations from, a fellow-attorney $525, by the assignment of a mortgage for $600 upon the house of a client of his, taken for a fee, and it appearing that the attorney, when he took the mortgage from his client, who was a poor German woman, had been already awarded by the Orphans’ Oouit $500 for the alleged services in her behalf in the trial of a caveat against her husband’s will, and that this amount was a full compensation for the attorney’s services, and that such mortgage would not be enforceable in a court of equity, and that the assignee was unable to collect anything upon the mortgage, and it further appearing that the attorney had made no return of any of the moneys so obtained, it was held that the attorney must be disbarred.</p>

<p>1. In a suit by a real estate broker for commissions on the rental of the defendant’s hotel property it appeared at the trial that the agreement for the commissions was made by plaintiff, not with the defendant, who was owner of the property, but with her son; that plaintiff secured a tenant and made a lease to her, which was signed, not by the defendant, but by her son as the lessor, without any reference to the character in which he signed, whether as agent or otherwise. In the effort to prove that the agreement for commissions was made by the son as agent for his mother, he was called as a witness by the plaintiff, and was permitted to testify, over objection, that in signing the lease he represented his mother. Upon review — Held, the evidence was properly admitted.</p> <p>2. It further appearing by the evidence that prior to the rental defendant and her son both at different times visited the office of plaintiff, and that the defendant gave instructions to the plaintiff to rent the property, upon which he acted, and that part payment of the commissions had been made by check received from defendant — further held, that motions to nonsuit and direct a verdict for defendant were properly denied.</p>

<p>In a suit to recover damages by a liusband and wile against tlie owner of an apartment house, in which they were tenants, for injuries sustained by the wife through the fall of a dumb-waiter elevator, which ran in a shaft between the apartments from the upper floor lo the collar, for the convenience of the tenants, eight in number, it appeared that the elevator was operated by hand on a system known as the wheel and axle, with a counterpoise; that as the wife took hold of the down-haul rope through the door from the kitchen, in order to lower the car, which was at the top of the shaft, it fell, because of the dropping of the nut or bur from the end of the ring-bolt in the head of the car, which'held it in position, striking her upon the head. The nut was afterwards found in the bottom of the car with but one bright thread in it, and upon the bolt, the other threads showing rust and disuse, and the nut was found to fit loosely upon the bolt. At the trial motions were made for a nonsuit and for the direction of a verdict, which were denied. It was held, on review — ■</p> <p>(1) That the dumb-waiter was one of the common facilities retained by the landlord, who thereby was charged with the exercise of reasonable care concerning- its condition, under the rule laid down in Biggins v. MoCtill, 43 Yroom 263.</p> <p>(2) That although the wife, in accounting for her head- being struck, testified that the force of the rope dragged her into the shaft, the facts did not show, at least conclusively, that she was guilty of contributory negligence, which was urged on the ground that it was a physical impossibility that she should be drawn into the shaft in that way, it also appearing that there was evidence tending to show that when the counterpoise fell, as it did upon the falling of the car, that would go down with a run, occasioning friction of the up-lmul rope on the small wheel, and the resulting rotation would have a tendency to lift the rope of which the wife had hold.</p> <p>(3) The excel)tion taken to the charge that the loss of the comfort and society of the wife might be considered as an element of damage in the husband’s favor was multifarious and nugatory, because it embraced several distinct matters, without pointing out to the court the precise question complained of, which was, as it now appears, that there was no averment in the declaration that would cover the items of damage alluded to.</p> <p>(4) That the judgment below must be affirmed.</p>

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

<p>Application was made to this court by a subordinate branch of a fraternal organization for a writ of mandamus to compel the reinstatement to membership in the parent body of the subordinate branch, which had been suspended by the chief officer of the organization under its rules, with the approval of the executive council, after a hearing, and it appearing that no property rights or money demands were involved, and that the applicant had not first exhausted his right of appeal to the appellate body within the organization, it was held that the writ of mandamus must be denied.</p>

<p>Application was made by a railroad corporation of this state for a summary determination as to certain lands in the city of J., located within the right of way of its railroad, which had been assessed by the local authorities of the city during the period from 1894 to 1902, and also assessed during the same period by the state board of assessors, as property used for railroad purposes, to settle their character for the purposes of taxation, and ,by which assessors the same has lawfully been assessed pursuant to section 28 of the revised Railroad and Canal Taxation act. Pamph. L. 1888, p. 269. It appeared that work on the road began in 1889, and was continued from time to time upon some portions of the right of way for several years thereafter, but that no work was done in the vicinity of the lands assessed, which consisted of lots in certain city blocks, until the latter part of the year 1900, up to which time part of the lands remained unused and unimproved, and part was in use for farming purposes. In the latter year the work of construction began, and was practically continuous thereafter until October, 1904, when the road was completed so that it could be operated. It was held — ■</p> <p>(1) That ordinarily, where a company has not completed its road, and is engaged in the work of construction, the exemptive words of the statute must be extended to property within the right of way not actually used for other purposes during such work of construction.</p> <p>(2) But where such work of construction has been delayed beyond the requirement of reasonable necessity, in order thereby to serve the interest or convenience of the company, then lands situated as these were before the work of construction began in that pjart of the right of way would not be entitled to the benefit of such exemption.</p> <p>(3) That the taxes assessed by the city authorities from 1894 to 1900, inclusive, must be sustained, and the assessments made by the state board of assessors during the same period must be canceled and the taxes collected thereon by the state returned to the applying company; that the taxes levied by the city for the years 1901 and 1902 must be canceled.</p>

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

<p>1. The revised act of 1888 for the taxation of railroad and canal property (Pamph. L. 1888, p. 269; Gen. Stat., p. 3324), as amended by chapters 82, 122 and 280 of the laws of 1906 (Pamph. L., pp. 121, 220, 571), is constitutional.</p> <p>2. The acts referred to do not violate article 4, section 7, paragraph 12 of the constitution of this state, which requires that “property shall be assessed for taxes under general laws, and by uniform rules, according to its true value.”</p> <p>3. The acts in question do not deprive the taxpayer of property without due process of law, nor deny the. equal protection of the laws, within the meaning of the fourteenth amendment of the constitution of the United States.</p> <p>4. Chapter 82 of the laws of 1906 (Pumpli. L„ p. 121), which imposes upon the main stem or waterway and the tangible personal property and franchise of every railroad and canal company the “average rate of taxation,” to be ascertained by computation from the taxing rates prevailing in the several taxing districts of the state, is not unconstitutional.</p> <p>5. The so-called Perkins act (Pampli. L. 1906, p. 571), which requires that what is known as “second-class” railroad and canal property shall be assessed and taxed in each taxing district in the same manner and at the same rate as other property located in such district, and that the tax thereon shall be paid to the proper officers of the several taxing districts, is not unconstitutional.</p> <p>6. The fact that all property used for railroad and canal purposes may be set apart in a class by itself, as distinguished from the general mass of property in the state, for purposes of taxation, does not negative the propriety of subdividing this general class of property into minor classes for the purpose of taxation; nor is the subclassification special, and hence unconstitutional, provided it rests upon grounds of discrimination inherent either in the character of the property or its situation and circumstances, such as to render the distinction reasonably appropriate to the purposes of the classification.</p> <p>7. The legislative purpose being to divide property used for railroad and canal purposes into two parts, upon one of which taxes are to be levied for the support of local and municipal government, either together with or separate from taxes for the support of the general state government, leaving the residue to be subjected to taxation for general state purposes only — Held, that the setting apart of what is known as “second-class” railroad and canal property for local taxation, “second-class” property being defined in substance as including passenger and freight buildings, and all other real estate used for railroad and canal purposes, other than the roadbed or waterway, not exceeding one hundred feet in width, is reasonably germane to the purpose of the classification.</p> <p>S. In article 4, section 7, paragraph 12 of the constitution of this state, the phrase “uniform rules” does not refer to those regulations that pertain to the agencies and methods employed in the assessment and collection of taxes, but only to the basic rules for taxation, which settle how the public burden is to be distributed, including the designation of the property that is to contribute, and the rate or ratio by which the taxes are to be laid and apportioned.</p> <p>9. The constitutional requirement of uniform rules for taxation is satisfied by a uniformity that obtains without discrimination throughout a class of property set apart on reasonable grounds for separate treatment.</p> <p>30. Since the Tax laws under consideration do not deprive the taxpayer of property without due process of law, and since they conform to the constitutional requirement that “property shall be assessed for taxes under general laws, and by uniform rules, according to its true value,” it follows that they do not deny to the taxpayer “the equal protection of the laws.”</p>

<p>Section 5 of the act of March 29th, 1905, 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), does not give jurisdiction to the state board of equalization, established by this act, to review the action of the state board of assessors respecting the valuation of franchises and property used for railroad and canal purposes.</p>

<p>On certiorari to Hudson Common Pleas.</p>

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

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

<p>A parol agreement by a creditor to accept from bis debtor less than is due, by way of compromise, is void for want of consideration, and cannot be set up in bar as an accord and satisfaction.</p>

<p>On motion to strike out notice of set-off".</p>

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

<p>On certiorari.</p>

<p>1. A married woman who signs, but does not acknowledge in the statutory form, a written agreement to convey her lands, in which , her husband does not join, is liable in an action at law for damages for failure to convey.</p> <p>2. Where one agrees to convey land, and before the day for performing the contract arrives conveys the land to another than the vendee, the vendee may treat the conveyance as a repudiation of his contract, and sue at once. He need not wait until the day for performance, nor tender the purchase price.</p> <p>3. Evidence of the price at which the land is actually sold is relevant upon the question of market value at the time.</p>

<p>On certiorari.</p>

<p>1. Under the act of 1903 (Pamph. L., p. 341), in counties where a new grand jury is authorized, grand jurors summoned to attend at the opening of the court are to serve until the new grand jury appear.</p> <p>2. The order of the court directing the sheriff to summon a new grand jury pursuant to the act of 1903 (Pamph. L., p. 341) need not bo filed with the clerk.</p> <p>3. An indictment which designates a house by its street number need not set forth that number in words at length; It is an arbitrary symbol, and should be set forth in accordance with the fact.</p> <p>4. An indictment which charges police commissioners holding office under the act of 1885 (Q-en. Stat., p. 1551) with failure to inquire into the neglect and omission of police officers under their control to suppress houses of ill-fame and gaming-houses, and to discipline and punish such of the officers as were guilty of neglect of duty, is valid.</p> <p>5. Police commissioners may be jointly indicted for neglect of their public duty as such.</p> <p>6. An indictment of police commissioners holding office under the act of 1885 (Qen. Stat., p. 1551) for failure to inquire into the neglect and omission of police officers under their control to suppress houses of ill-fame and gaming-houses, and to discipline and punish such of the officers as were guilcy of neglect of duty, is not multifarious because it specifies many such houses.</p>

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

<p>1. Under the Tenure of Office act {Pamph. L. 1899, p. 26) a member of the police force of a city cannot be removed by the city council because of ineligibility existing at the time of his appointment.</p> <p>2. A plea to an information in the nature of quo wmranto setting up title to the office in defendant, and praying that it be allowed and adjudged to him, if it is bad in that aspect, cannot be sustained under section 12 of the Quo Warranto act {Pamph. L. 1903, p. 379) as a plea of want of title in the relator.</p>

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

<p>On rule upon the plaintiff to show cause why a new trial should not be ordered.</p>

On 'demurrer to declaration. The declaration in this caso contains two counts, one for libel and the other for slander. There is a demurrer to each of the counts.

On error to Bergen County Circuit Court. This action is on contract to recover the value of twenty-four loads of sand which the defendant removed from the land of the plaintiff. The case was tried before the court without a jury. The facts are to be gathered from the pleadings and the stipulations of counsel.

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

<p>On appeal from the District Court tiiis 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>On a rule to show cause, in an action for injuries to real property, where the damages found are alleged to be excessive, the verdict will not be set aside on a mere preponderance of proof, nor unless it is so evident that the jury have erred as to convince of mistake, prejudice or partiality.</p>

<p>1. The powers delegated to a municipal corporation by the legislature authorizing it to regulate wharves, and to charge and collect wharfage for their use, are public or legislative powers, and incapable of delegation or of surrender by the municipality. A municipality cannot, therefore, surrender the powers by leasing the exclusive use and control of its wharves for any period of time without express statutory authority so to do.</p> <p>2. Such express statutory authority is not conferred upon the city of Burlington by an act entitled “An act relating to wharves and docks in cities of the third class,” approved March 22d, 1901 (Pamph, L., p. 394), for the reason that that act is local and special, and unconstitutional under article 4, section 7, paragraph 11, of the constitution of this state.</p>

<p>1. The statutory test provided by the Attachment act of 1901 (Pamph. L., p. 158) for an attachment against a corporation is not whether it be a resident or non-resident, but whether it be a corporation created or recognized ns a corporation of this state by the laws of this state.</p> <p>2. An affidavit stating that the defendant in attachment “is not, to deponent’s knowledge or belief, resident in this state at this time” is legally insufficient to warrant the writ of attachment against a corporation under the Attachment act of 1901.</p>

<p>1. Masters owe to their servants the duty of taking reasonable care in providing them a reasonably safe place in which to work, and of maintaining it in a reasonably safe condition during the employment, having regard to the character of the services required and the dangers that a reasonably prudent man would apprehend under the circumstances of each particular case.</p> <p>2. Where an injury arises to a workman by reason of the united negligence of a master and a fellow-servant, the master is liable to respond for such injuries.</p> <p>3. An employe assumes the risk of such dangers attending the prosecution of his work as he would discover by the exercise of ordinary care for his personal safety, and for hurt happening to him from those dangers the employer is not responsible.</p> <p>4. A charge which, by the fair import of its language, confines the obvious "dangers, of which an employe assumes the risk, to the dangers arising from facts known to him does not properly embody the rule last above stated.</p>

<p>1. The defendant, while on a business trip in an automobile, made his headquarters at a hotel, the automobile being kept in a garage several blocks away. On the evening of the accident, on arriving at the hotel, the defendant, after telling his chauffeur that he was going out in the machine that night, directed him to go down stairs in the hotel and get oil. Instead of obeying this instruction literally, the chauffeur drove the automobile to the garage for the oil, and while on his way there the collision occurred. Held, that whether the chauffeur was acting within the general scope of his authority was properly submitted to 1he jury, although in this particular instance the use of the machine was in disobedience of the literal instruction of the master.</p> <p>2. Where fair-minded men might honestly differ as to the conclusions to he drawn from facts, whether controverted or uncontrovorted, the question at issue should go to the jury.</p> <p>3. In a conflict of testimony, when the facts found by the jury will sustain the verdict, the court will not set it aside, although in their opinion the jury might, upon the evidence, have found otherwise.</p>

<p>On certiorari.</p>

<p>1. A state of demand in a justice’s court, which, in a manner plain, intelligible and not liable to misapprehension, sets forth the nature of the claim will be sufficient.</p> <p>2. The Supreme Court, in reviewing a judgment of the Court of Common Pleas, rendered by it on an appeal from the court for the trial of small causes, can only determine errors of law. It . can neither retry the cause upon the merits nor decide upon the weight of evidence.</p>

<p>.1. In proceedings by a city to condemn die right to lay down water pipes in and upon lands of the citizen under the act approved April 21st, 1876 (Pamph. L., p. 866; Gen. Stat., p. 646), and the supplement thereto approved Maich 18th, 1883 (Pamph. L., p. 98; Gen. Stat., p. 652), it is essential to the validity of the proceedings that the act of April 21st, 1876, should have been adopted by the city.</p> <p>2. Statutes conferring the power of condemnation under the right of eminent domain are strictly construed. Every provision of the statute- must be strictly complied with, and such compliance must affirmatively appear on the face of the proceedings.</p>

<p>Hearsay evidence is incompetent to establish any specific fact which is,< in its nature, susceptible of being proved by witnesses who speak from their own knowledge.</p>

<p>Knowledge of illegality or want of consideration of a promissory note by the president of a bank, who discounts it without authority to do so having been conferred upon him by his board of directors, is not imputable to the bank when the president’s act has not been ratified by, or acquiesced in by, the board.</p>

<p>A master wbo has furnished the proper appliances required for the work about which his servant is engaged is not responsible to his servant for injuries received by the latter resulting from carelessness in the use of such appliances by a fellow-servant in the same common employment, or failure of the latter to use them, no matter what may be the grade or authority of the fellow-servant.</p>

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

<p>The fifty-ninth section of the act concerning railroads (Query: and . canals) (Pamph. L. 1903, p. 574) does not justify the arrest of a passenger on a train who refuses to pay his fare under a hona fide belief that the ticket which he proffers entitles him to travel on that train.</p>

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

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

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

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

<p>The liability of a railroad company for fire communicated from one of its engines is not absolute, but depends upon whether or not the company has conformed to the statutory requirement with relation to the equipment of such engine with a proper device to arrest the escape of sparks and the maintenance of that device in good order.</p>

<p>Mandamus is a proper remedy for enforcing performance by a traction company of duties in respect to tbe public highways occupied by it pursuant to the terms of the municipal ordinances under which such occupation is enjoyed.</p>

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

<p>It is the duty of a landlord, who lets rooms in his building to different tenants with the privilege of using certain passageways in common, to exercise reasonable care with respect to the safety of such passageways for such use.</p>

<p>1. A homicide resulting from a breach of the peace committed by the use of a deadly weapon in heat and passion, without premeditation, but also without justifiable provocation, is murder in the second degree under our statute. An instruction to the jury in such a case that the homicide was not manslaughter is correct.</p> <p>2. Improper statements by a prosecuting attorney in his summing up, with respect to which judicial action was not invoked at the trial, afford no grounds for the reversal of a criminal judgment, brought up under the one hundred and thirty-sixth section of the Criminal Procedure act, where the record returned fails to show either what statements were in fact made or that such statements as were made were productive of manifest wrong and injury to the plaintiff in error.</p> <p>3. The sense of impending death, which is the foundation for the introduction of a dying declaration, may be evidenced by the express statement of the declarant to that effect, if made by him part of his declaration. The admissibility and probative effect of such a statement derives no added force from the doctrines peculiar to dying declarations, but, on the other hand, such statement, if proved to have been made by the deceased, is not vitiated by being written down as part of the documentary evidence by which his dying declaration would also be proved.</p>

On motion to change venue. The plaintiff, who is the lessor, seeks to recover from the defendant, who is the lessee, damages for breaches of covenants in the lease.

<p>In an action by R. upon a promissory note given by B., B. sought to set off a judgment recovered against himself and R. when they were in partnership, for a partnership debt, which judgment had been assigned to B., who had paid the full amount thereof for the purpose of setting it off in R.’s action against him on his personal note. Held, that the amount of B.’s demand against R. upon such a judgment was not a liquidated claim, and hence was not the proper subject of a set-off.</p>

On certiorari. By deed dated July 24th, 1902, Cortlandt Parker and Cortlandt Parker, Jr., as owners in fee, dedicated to public use as a street to the city of Perth Amboy, a strip of land now known and used as Sheridan street.

<p>1. Agency is not provable by the declarations of one assuming to act in that capacity. Until the declarant is shown to be in fact the agent of a party to the suit, his declarations (including his statement that he is such agent) are not admissible to bind such party.</p> <p>2. The mere fact that one employs others to work for him does not make him chargeable with what they may say about him or his affairs while in his employ. If he employs them to talk for him a different question is presented.</p>

On motion to vacate rule. Original process was issued in this cause, tested the 28th day of July, 1906, and returnable on the 10th day of August, 1906. The writ was served upon the defendant on the 2d day of August, 1906. It had not been returned by the sheriff on the 10th day of September, 1907, at which time more than three terms had intervened. Uo declaration was served with the writ or filed during this interval.

On appeal. The state of the case sets out that this action (referring to the first of the foregoing causes) was brought to recover the sum of $170.77, being the value of one ease of cigars. The trial was before the court without a jury. It was admitted by the parties that plaintiff and defendant was each a body corporate, and that the defendant was a common carrier.

<p>On certiorari.</p>

<p>In an action upon an oral contract to do work and furnish material, where there is a direct conflict of evidence as to the price agreed to be paid, it is relevant to prove the actual value of the services rendered or of the materials furnished at the time of the making of the contract for the purpose of showing whose contention is probably correct.</p>

On error to the Circuit Court. This action was brought to recover damages for personal injuries sustained by the plaintiff while employed by the defendant at its iron foundry. One of the appliances there used by the defendant in the process of making steel was a large ladle into which molten metal was poured.

<p>The plaintiff sued for damages resulting- from a collision of the automobile, in which he was riding upon a city street, with an iron trolley pole as the result of a sudden turn of the vehicle to avoid the gates of a railroad crossing, which had been lowered. The accident occurred in the night-time. The case showed that the plaintiff’s headlights were burning, but that the usual lights upon the gates were out, and that as to the brightness of the street and other lights in the vicinity the evidence was conflicting. The case was tried before a judge, without a jury, who gave judgment for the plaintiff against the railroad companies, the defendants. On appeal it was 7idd—</p> <p>(1) That the absence of the lights usually attached to the gates was sufficient evidence of negligence to make it a jury question.</p> <p>(2) That the rate of speed at which plaintiff was traveling, twelve or fifteen miles an hour, did not constitute negligence per •sc, but that the question of contributory negligence in the case was also a jury question.</p> <p>(31 That in the absence of direct proof that the gateman was the servant of one of the defendant companies, it appearing that the company used the tracks at the crossing for the passage of its trains, and that the gateman lowered the gates upon their approach, there was evidence sufficient to support a finding that the relation of master and servant did exist between the gateman and the company.</p> <p>(4) The arresting of the cross-examination of certain witnesses by counsel of the defendants, which related to matters that were collateral only, was within the discretion of the trial judge, and no palpable abuse of that discretion appearing, his action was not reviewable.</p>

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

<p>On certiorari.</p>

<p>In an action on contract in a District Court, the plaintiff sued to recover an amount claimed to be due upon a book account. The defendant filed a set-off, setting up a demand for a share of the profits of a transaction in the purchase and sale of scrap iron under an alleged written agreement between the parties. At the trial, before the hearing of evidence was begun, the trial judge, on motion, dismissed the set-off as showing a demand for unliquidated damages. On review, it appearing that there was annexed to the special count the combination money counts in indebitatus assumpsit, which, among other things, set forth “that plaintiff was indebted to the defendant in the sum of three hundred dollars for goods sold and delivered by defendant to the plaintiff at his request, and in the like sum for money lent by defendant to plaintiff at his request, and in the like sum for money due from plaintiff to defendant on an account stated between them,” it was held that, without determining the validity of the special count as a set-off, the common counts, as stated, were sufficient to constitute a lawful set-off, and that the court’s action in dismissing the set-off without hearing defendant’s evidence was error, for which the judgment must be reversed.</p>

<p>In a proceeding' to determine the character of lands of a railroad company doubly assessed, located within a city, for the purposes of taxation pursuant to section 28 of the revised act for the taxation of railroad and canal property (Pamph. L. 1888, p. 269; Gen. Stat., p. 3324), it appearing that the property in question was a ferry building and ferry slips leading from the terminal station of the company, located at tidewater on the shore of a navigable river, in connection with which the company was operating a ferry under the authority of sections 19 and 20 of the Railroad act (Rev., Pamph. L. 1903, pp. 645, 656; Gen. Stat., p. 2647), it was held, that, following the decision of the court In re the application of the United Railroad and Canal Company, decided at November Term, 1907, and for the reasons stated in the opinion in that case, the assessment of the property by the state board of assessors as property used for railroad purposes must be sustained and the assessment made by the local authorities must be seL aside.</p>

<p>1. Where a citizen and taxpayer, having an interest only as one of the general public, asks the court, in the exercise of its sound discretion, to allow a writ of mandamus to compel its clerk to permit him to inspect and have copies of certain e£ parte affidavits filed for the purpose of obtaining a rule to show cause why an attorney should not be disbarred, upon the ground that the applicant desired to be informed as to the fitness of the attorney for public office, so that he might intelligently advise the voters of the political party of which he was the county chairman with regard thereto, he ought to show that the issuing of the writ would conduce to that end, and that he himself is actuated by proper motives in making the application.</p> <p>2. In the present case, it appearing by the affidavits of the petitioner that the ete parte affidavits in question were filed twenty-one years before the application, and that the court to which they were presented deemed them insufficient to authorize a rule to show cause in the matter, and that the attorney in question was not at any time called upon to respond to the same, and that from the circumstances developed by the application no good was or is likely to be accomplished by allowing the writ, and that the petitioner was actuated rather by the zeal of the partisan than by a desire solely to promote the public weal, the application was denied.</p>

<p>In a proceeding to determine the character of lands, located within a city, that had been doubly taxed for the purposes of taxation, pursuant to section 28 of the revised act for the taxation of railroad and canal property (Pamph. L. 1888, p. 269; Gen. Stat., p. 3324), it appearing that the property in question was a ferry-house, being part of a railroad terminal located at tidewater on the shore of a navigable river, in connection with which the companies had established and were operating a ferry under the authority of sections 19 and 20 of -the act concerning railroads (Rev., Pamph. L. 1903, pp. 643, 646; Gen. Stat., p. 2647), it was held—</p> <p>(1) That so far as the lands and buildings in question are incident to and reasonably necessary or convenient for the purposes of the terminal, and not actually used for other purposes, they were property used for railroad purposes, and only taxable by the state board.</p> <p>(2) That this principle of exemption from local taxation must be extended to the ferry-house, or such parts thereof as are reasonably necessary to the carrying on of such ferry for the transportation of the passengers and freight of the companies arriving by their trains; that such use becomes a railroad purpose under the said act.</p> <p>(3) That the use of a portion of the second floor of the ferry-house, adjoining the waiting-room, for the purposes of dining-room and restaurant did not subject such portion to local taxation, it appearing that it was mainly devoted to the patronage of travelers upon the trains and the companies’ employes, not more than ten per cent, of the patronage coming from the general public.'</p> <p>(4) That so much of the lower floor of the ferry-house as was mainly devoted to the accommodation of local passengers, trucks and vehicles from the city and vicinity entering the ferry-boats at that point was subject to local taxation; that as to such part the city assessment should stand, but as to the rest of the building should be abated in favor of the assessment of the state board.</p>

<p>1. Where the true location of premises is doubtful, a practical location by consent of the parties will aid in the construction of the deed, and in some instances be conclusive as to the boundaries thus fixed, although the acquiescence be for a period less than twenty years.</p> <p>2. The evidence of practical location in this case between the parties or their predecessors in title was such that, taken in connection with the other evidence, it was held that the verdict for the plaintiffs must be set aside as being- contrary to the clear weight of the evidence, and a new trial granted.</p>

<p>1. The constitution of the Brotherhood of Painters providing that the initiation fee paid by an applicant for membership must accompany the application and be returned in case the applicant is rejected, with a proviso that if the fee is paid in installments while the applicant is “working at the trade and receiving the protection of the brotherhood” such payments shall be forfeited to the brotherhood if the applicant has made any false statements or is unable to qualify as a member, and there being evidence tending to show a custom of the brotherhood not to permit its members to work with men who were not members — Held, that evidence that an applicant, pending his application, worked at the trade together with members of the brotherhood did not show that plaintiff was “receiving the protection of the brotherhood” within the meaning of the constitution.</p> <p>2. Plaintiff’s right to seek and gain employment in his lawful occupation was a right secured to him by the constitution of this state. The fact that the brotherhood, having no right to interfere with him, did not interfere cannot be construed as “protection” extended by the brotherhood to him, nor was it in a legal sense a benefit to him.</p> <p>3. An applicant for membership in a trade union stated in his application that he was able to command the average wages in his locality. Held, not to amount to a representation'with respect to an existing state of facts, except that it was equivalent to an assertion that he believed himself able to command the average wages, and that in order to forfeit monejr paid by the applicant on the ground of the falsity of this statement it was necessary to show that he did not reasonably believe that he was able to command the average wages.</p>

<p>On certiorari.</p>

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

<p>1. Under the Criminal Procedure act (Pamph. L. 1898, p. 914, § 135), a bill of exceptions must contain so much of the evidence as may be necessary to present the questions of law upon which exceptions were taken.</p> <p>2. The function of a bill of exceptions is to point out to a court of review an alleged erroneous ruling by the trial judge, adhered to by him after his attention was called to the matter by an exception taken at the time.</p> <p>3. The bills of exceptions in the present case held insufficient to show what legal points were decided by the trial judge adverse to the contention of the plaintiff in error.</p> <p>4. Upon examining the unauthenticated report of trial printed with • the bills of exceptions herein, for the purpose of determining whether a motion to dismiss the writ of error ought to be entertained, to- enable plaintiff in error to apply to the trial court to resettle the bills of exceptions — Held, that the case shows no reasonable ground for exercising the discretion of the court to permit a dismissal of the writ of error for this purpose.</p>

<p>On certiorari.</p>

<p>1. Lands acquired by a park commission established under “An act to establish public parks in 'certain counties in this state and to regulate the same (Pamph. L. 1895, p. 169; Gen. Stat., p. 2618) are the property of the county in which the park is situate.</p> <p>2. The supplement of April 20th, 1906, to the General Tax law of 1903, which supplement provides that “all lands the property of any county, and all lands the property of any taxing district, which are situate within the limits of any other taxing district, shall be subject to taxation by the taxing district within which such lands are situated at the true value of such lands, without regard to any buildings or other improvements °on such lands” (Prnnph. L. 1906, p. 273), is not in contravention of article 4,' section 7, paragraph 12 of the constitution of this state, which directs that “property shall be assessed for taxes under general laws, and by uniform rules, according to its true value.”</p> <p>3. It is not impossible to arrive at the true value of land separate from the buildings and other improvements thereon.</p> <p>4. The ownership of lands by counties and other municipal corporations forms a reasonable basis for the separate treatment of those lands in matters of taxation.</p> <p>. 5. Query: Is the act of April 20th, 1906 (Pamph. L., p. 273), an act for taxing property within the meaning of the constitution, the act providing for no direct imposition upon any private owner of property, but in effect merely requiring one governmental agency to contribute public moneys towards the support of another governmental agency?</p>

<p>1. Query: Whether the summary review in matters of double taxation of the property of a railroad or canal company, as prescribed by section 28 of the Tax law of 1888 (Gen. Btai., p. 8332, pi. 239), may properly be invoked by "a railroad company for the purpose of determining the question whether certain property used for railroad purposes is “main stem” or “second-class” railroad property?</p> <p>2. Proofs upon the question whether certain property of a branch railroad is assessable by the state board of assessors as main stem, or assessable, under Pamph. L. 1906, p. 571, by the local assessors as second-class railroad property, having been submitted upon the reasonable assumption that the matter would be decided upon, the basis of the rule laid down by this court in the two cases of Jersey City v. Board of Assessors, 44 Vroom 164, 170, and the Court of Errors and Appeals having, (since the argument herein) reversed the judgment of the Supreme Court in the second of those cases, laying down a different rule for determining whether the land occupied by the roadbed of a branch railroad is to be assessed as main stem or as second-class property — Held, that the present application should be dismissed, without prejudice to the right of the railroad companies to take further proceedings for review of the disputed taxes.</p>

<p>In matter of double taxation.</p>

<p>1. Under the act for the taxation of railroad and canal property (Gen. Stat., p. 3325, pi. 214), as amended by chapter 122 of the laws of 1906 (Pamph. L., p. 220), the main stem of a railroad does not extend beyond the roadbed, although such roadbed be less in width than one hundred feet.</p> <p>2. Certain property of a branch railroad used for railroad purposes • — Held, under the evidence, not to be a part of its main stem, assuming that the roadbed of the branch railroad, under the decision of the Court of Errors and Appeals in Jersey City v. State Board of Assessors (not yet reported), is “main stem” for the purposes of taxation.</p>

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

<p>Where an owner of land along a tidewater creek has, prior to the act of March 20th, 1891, improved or reclaimed the easterly bank, it cannot be assumed, without evidence, that low-water mark on that side was not west of the centre line of the creek; the line of low water depends on the conformation of the bed of the creek and is a matter to be proved.</p>

<p>1. The statute relating to the state reformatory authorizes the imprisonment in that institution of male prisoners between the ages of sixteen and thirty years. Where a commitment fails to show the age of the prisoner, this court, on a writ of habeas corpus, will presume that the trial court found the necessary fact as to the prisoner’s age to warrant his commitment to the reformatory.</p> <p>2. Even where one under the age of sixteen years has been committed to the reformatory, the error can be redressed only by proper proceedings in error and not by writ of habeas corpus.</p> <p>3. The act for the management of the reformatory (Pamph. L. 1901, p. 231) is not unconstitutional because it provides for no sentence except for the maximum term, nor because it authorizes the commissioners to discharge prisoners committed thereto before the expiration of the maximum term.</p>

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

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>If there be a right to use the public streets for the purpose of mere sport (e. g., the sport of roller skating), that right is subject to regulation by municipal authority, and if the restrictions imposed are reasonable, for a public purpose, and not arbitrary, the courts will not interfere.</p>

<p>On certiorari.</p>

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

<p>A railroad company promulgated a rule for the safety of those working in its yard, which rule contained the following clause: “A blue flag by day and a blue light by night displayed at one or both ends of an engine, car or train, indicates that workmen are under it or about it.” Held, that this rule required that a flag should be placed at each end of a car when both ends were exposed to the danger of a collision.</p>

<p>Where, at the time intestate died from an injury alleged to have resulted from the wrongful act of defendant railroad company an action brought within two years was pending for such injuries, an action for death, though not brought within such period, was not barred by limitations under the Death act, which provides that an action for death may be maintained if brought within twelve months after the death of such deceased person.</p>

<p>On error to Camden County Quarter Sessions.</p>

On rule upon the landowner to show cause why the judgment entered for the amount of a verdict of a jury in condemnation proceedings should not he vacated. Questions certified by the circuit judge.

<p>'Under the 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>1. An appellant who brings up with the state of the case a certified transcript of the judgment record in the court below, transmits such record to this court for review under the act (Pamph. L. 1902, p. 565) providing for appeals from city District Courts to the Supreme Court.</p> <p>2. If a contract which need not be under seal is executed by an agent having authority to execute simple contracts, but not sealed contracts, and has a seal affixed to it, it will be valid as a simple contract.</p> <p>3. The rule that an agent cannot delegate his powers, unless the sub-agency be directly authorized or ratified by his principal, with full knowledge of the facts, has no application to acts purely ministerial. In such cases, if he directs the act, or, being aware of the circumstances, afterwards adopts it as his own, that is sufficient.</p> <p>4. One in charge of a hotel, and having the management thereof, has authority to bind his principal by a contract for advertising for the hotel.</p>

<p>On certiorari.</p>

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

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>The plaintiff shipped goods by an express company. The company promptly and safely carried the goods to the consignee, who refused to receive them, whereupon the company immediately placed the goods in their “on hand department,” notified the consignee that they were there held at the owner’s risk, but failed to notify the consignor. About six months thereafter the consignor inquired of the express company and was informed that the goods were so held by the company. Without making any demand for the goods, or offering to receive them, the plaintiff brought this suit for damages on account of the failure to deliver the goods. At the trial the express company tendered the goods to the plaintiff, who refused to receive them. Held, that a verdict for the full value of the goods must be set aside.</p>

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

<p>When a landowner is given the privilege of paying his assessment of benefits in yearly installments pursuant to section 67 of the Borough act of 1897 {Paraph. L., p. 816), the assessment remains a lien upon the land until the expiration of two years after the last installment falls due.</p>

<p>On certiorari.</p>

<p>1. When one convicted on an indictment desires to obtain a review, either in whole or in part, under the provisions of sections 136 and 137 of the Criminal Procedure act of 1898, he must procure the return, with his writ of error, of “the entire record of the proceedings had upon the trial.”</p> <p>2. That “record” must be authenticated by the certificate of the trial judge, and for want of such an authentication the “causes” for reversal will not be considered.</p> <p>3. The formal return of the record upon a writ of error will not . authenticate the record of the proceedings had upon the trial.</p>

<p>A carpenter was working on a scaffold on the side of a building which was being constructed by its owners. Within the building was a traveling crane running upon iron rails near the roof. He was engaged in placing and nailing joists in the side of the building. From the scaffold he was unable to nail the top of a joist. He stepped upon a studding in the side of the building and assumed a position which required him to support himself by his left hand. In doing so he placed that hand on the rail and it was injured by a wheel of the traveling crane. Meld, that on an action to recover damages for that injury, he was properly nonsuited because of his assumption of an obvious risk, there being nothing in the circumstances to indicate that he had a right to rely on notice of the movement of the crane. Meld, also, that the nonsuit may be supported on the ground that the circumstances proved did not impose any duty on the part of the defendant to the plaintiff working on the side of the building, in respect to the movement of the crane on the inside of the building.</p>

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

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

<p>1. In a homicide case evidence that an altercation between the accused and the deceased had taken place about ten years before the killing is admissible, the remoteness of the occurrence going solely to the weight of the evidence.</p> <p>2. The trial judge is not only justified in a criminal case in pointing out to the jury what seem to him to be salient features of the case, but he may give the jury the benefit of his greater experience by telling them how the testimony strikes his mind, both as to its force and as to the inferences he would draw from it.</p> <p>3. A statement of the trial judge in his charge, while commenting on the evidence, that there was blood on the hands of the accused, and that there was no blood, as far as appeared, on the hands of anyone else, cannot be adjudged erroneous on the ground that there was no testimony to support it, where the evidence is not brought up with the bill of exceptions.</p>

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

<p>1. The rule with relation to the right of a tenant to remove trade fixtures at the expiration of his term has no application to a building erected by a tenant upon the land which he has leased. When so erected the building becomes a part of the freehold and the property of the landlord, in the absence of an agreement between the parties that it shall remain the property of the tenant.</p> <p>2. Where a lease contains a covenant not to assign, and a provision that it shall be void on breach of such covenant, and reserves to the tenant the right to' remove from the leased premises at the end of the term any building which he may have erected thereon during the term, the lessee, by assigning the lease without authority of his lessor, and thus rendering the lease void, forfeits all right to remove such building.</p>

<p>In.a contract containing mutual promises, whether to pay money or perform some other act, where the time for performance by one party is to arrive or may arrive before the time for performance by the other, the latter promise is an independent obligation, nonperformance of which raises a cause of action merely and does not constitute a bar to the right of the party making it to recover for the breach of the promise made to him.</p>

<p>On error to the Supreme Court, whose opinion is reported in 44 Vroom 529.</p>

<p>The sixth section of “An act concerning juries” (Revision), approved March 27th, 1874, prescribes as qualifications of grand jurors that they shall be citizens of this state and residents of the county from which they are taken and shall be above the age of twenty-one and under the age of sixty-five years, and that if any person who is not so qualified shall be summoned as a grand juror it shall be good cause of challenge to any such juror, who shall be discharged upon such challenge being verified according to law or on his own oath or affirmation, provided that no exception to any such juror on account of his citizenship, age or any other legal disability shall be allowed after he has been sworn or affirmed. Held, that the object of these statutory provisions is to secure an effective and representative body of citizens to take part in the due administration of the law for the benefit of all who are entitled to its protection, and not specially or even primarily for the benefit of those charged with its violation; and that the classification on which the statute rests is co-extensive with the scope of its protection, being nothing less than the entire community, law-abiding as well as law-breaking. Held, also, that in view of this scope of the statute its provision that no exception to a grand juror on account of his age shall be allowed after he has been sworn does not within the meaning of the first section of the fourteenth amendment to the federal constitution deny the equal protection of the laws to one indicted for a crime committed after such grand juror had been sworn.</p>

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

On error to the Supreme Court. The defendant in error recovered a verdict for personal injuries sustained by him near the station known as “Eiver Street,” in the city of Paterson, at about six o’clock in the evening of January 16th, 1906. He had been a passenger on the train of the defendant from Jersey City to Eiver street. The station building at Eiver street is on the right-hand or easterly side of the northbound track.

<p>1. The duty of a master to use reasonable cáre to discover defects in his plant and appliances may or may not in a given case involve the specific duty of inspection, which being a concrete exercise of reasonable care connotes the exercise of such a degree of foresight as would anticipate all the ordinary occurrences and their probable results that a reasonably prudent man under like circumstances would foresee.</p> <p>2. If the occurrence by which a servant is injured was beyond the reasonably probable consequences of the ordinary occurrences that reasonably prudent men would under the circumstances have foreseen, the master is not liable because of his omission to make an inspection which extraordinary prevision alone would have dictated.</p> <p>3. The omission of a master to inspect the hanging wire by which a current of one hundred and ten volts was fed to an electric light bulb was consistent with his exercise of reasonable care for the safety of his servants, although a servant was injured by reason of the wire being blown so constantly by the wind against an iron pipe four feet away that the insulation of the wire was worn off and the electric current transmitted to the pipe, and thence to a machine on which the plaintiff’s hand was resting, and thence to plaintiff’s body, causing a tingling sensation or shock that resulted in the plaintiff’s hands becoming engaged in the rolls that formed part of the machine.</p>

<p>On error to the Supreme Court, whose opinion is reported in 44 Vroom 427.</p>

<p>The plaintiff sued to recover damages for breaking and entering a certain building occupied by him and for taking and carrying away certain goods and chattels of plaintiff therein; it appeared at the trial that the building had been erected by plaintiff upon a lot of Mrs. T., nearly opposite her residence on the same street, where plaintiff had resided with Mrs. T. up to the time of her death, a period of thirteen years, and had been acting as her servant and general man of work, and had conducted a business in said building in the making of useful inventions and selling rights for the same; there was also evidence tending to show that the plaintiff had treated the goods, which consisted mainly of patterns for inventions, flower-pots, screens, screen doors, window sash and glass, as the property of Mrs. T., and that similar articles were in the house of Mrs. T. prior to her death; the defence was that the goods belonged to the estate of Mrs. T. and were removed to another building of the estate to make room for a tenant; there was also some evidence tending to show that Mrs. T. was interested in the business either as owner or partner with plaintiff; the trial resulted in a verdict for the defendant; the plaintiff brought error; the assignments of error were based on exceptions to the admission of evidence. The following questions put to plaintiff in cross-examination were admitted as follows: “Q. After Mrs. T.’s death you made a claim against the estate for $32,000, .money due you from Mrs. T., didn’t you V” “Q. Now, in addition to that, after her death, you claimed to have and own a note for $10,000 from one K. to the order of Mrs. T., did you not?” “Q. There are other judgments against you in this county, aren’t there, that are unpaid?” Held, in review, that there was no error in the ruling, and the judgment was affirmed.</p>

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

<p>1. In a suit to enforce a lien claim for labor performed and materials furnished for the erection and construction of any building pursuant to the Mechanics’ Lien act (Pamph. L. 1898, p. 538), when it appears that the materials were furnished for the building and delivered to the defendants or their agents in good faith, it is no defence, in the absence of fraud on the part of the creditor, that there may have been a failure to use the materials thus furnished in whole or in part, or a diversion of the same from the purpose for which they were intended.</p> <p>2. When items of the claim for materials furnished within four months preceding the filing of the lien are relied on to validate the claim for materials furnished before that date, it must appear that the items within the limited period are so connected with the earlier items that together they constitute one debt, and that question involves a finding of fact which must be left to the jury whenever such an inference is permissible under the testimony.</p> <p>3. The court will not reverse a judgment under review because of an alleged error involving judicial action therein unless such action was invoked upon the ground relied on, which was distinctly and plainly made known to the court below.</p>

<p>1. The Mechanics’ Lien law (Pamph. L. 1898, p. 543, § 16) requires that the claimant shall specify in his claim “the name of the owner or owners of the land or of the estate therein on which the Men is claimed.” The claimant cannot, without amendment, bind any estate or interest other than that of the person named in the claim as owner, but there is nothing in the letter or spirit of the act that renders an error made in stating the name of the owner fatal to a subsequent attempt, either by way of amendment or by the filing of a separate claim, to reach estates or interests in the land owned by parties other than him who is named as owner in the claim first filed.</p> <p>2. The party sued as owner in a mechanics’ lien claim suit cannot discharge his interest in the land from the lien by showing that the claimant has formerly attempted to subject the interest of another party in the land to a lien for the same debt.</p> <p>3. Under the Mechanics’ Lien law (Pamph. L. 1898, p. 548, § 24) the plea allowed to the owner or mortgagee, “that said building or land are not liable to said debt,” simply imposes upon the claimant the burden of establishing that as against the interest of the party thus pleading the provisions of the act requisite to constitute the lien have been complied with.</p>

<p>1. Section 4 of the act of April 13th, 1906, commonly known as the “Bishops’ Law” (Pamph. L. 1906, p. 199), does not contravene the fourteenth amendment of the federal constitution.</p> <p>2. Section 4 of the act of April 13th, 1906, commonly known as the “Bishops’ Law” (Pamph. L. 1906, p. 199), is not in contravention of article 4, section 7, placitum 11, of the constitution of this state, which prohibits the legislature from passing private, local or special laws regulating the internal affairs of municipalities, or granting exclusive privileges, immunities or franchises. ■</p> <p>3. Section 4 of the act of April 13th, 1906, commonly known as the “Bishops’ Law” (Pamph. L. 1906, p. 199), subjects “inns and taverns” (as well as “hotels”), to the restrictions mentioned in the section, unless such inns and taverns have at least ten spare rooms and beds for the accommodation of boarders, transients and travelers.</p> <p>4. Notwithstanding the unconstitutionality of section 5 of the act of April 13th, 1906, commonly known as the “Bishops’ Law” (Pamph. L. 1906, p. 199), as heretofore declared by this court in Decker v. Daudt, 45 Vroom 793, the remainder of the act is not thereby overthrown.</p>

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

<p>1. In an action against a railroad company to recover damages caused by a collision between one of its trains and a team and wagon of plaintiff at a grade crossing, the evidence of witnesses who testified that they were near by, that they heard the train coming, heard the crash of a collision, and heard a whistle blast sounded immediately after the collision, but heard no signal before the collision — Held, sufficient to raise an inference that if the statutory signal by bell or whistle had been given as the train approached the crossing they would have heard it, and that since they did not hear such signal it was not given.</p> <p>2. Where plaintiff’s declaration was based solely upon the negligent operation of defendant’s railroad train, resulting in a collision with plaintiff’s wagon in the night-time at a grade crossing, and contained no averment tending to cast upon the company a duty to use gates or adopt any other precaution for the safety of travelers at the crossing besides the statutory signal, nor any averment charging the company with negligence in failing to use the gates that were at the crossing — Held, nevertheless, that testimony was properly admitted to show that there were gates and a gatehouse at the crossing, and that the gates were open and no gateman in attendance, it being unusual to have a gateman at the crossing during the night-time, the evidence being admissible not as showing negligence in the failure to operate the gates, but as showing the circumstances under which the collision occurred, and throwing light upon the question whether there was contributory negligence on the part of the driver of the wagon.</p>

<p>1. Under the act of March 27th, 1888, for the taxation of railroad and canal property (Gen. Slat., p. 3325, pi. 214), there is no distinction for purposes of taxation between the principal or main line of a railway and a lawfully-authorized branch line of railway, but the property of each must be assessed in part as “main stem” and in part as “other real estate used for railroad purposes,” according- to the circumstances of the property.</p> <p>2. Certain parcels of land owned by the United New Jersey Railroad and Canal Company, and upon which railroad tracks are maintained which originally formed a part of the main line of the New Jersey Railroad and Canal Company located under its charter (Pamph. L. 1832, p. 96), and which were left out of the main line by a straightening of tracks pursuant to the act of April 15th, 1868 (Pamph. L., p. 1037), but are continued in operation for railroad purposes pursuant to the act last cited. Held, not to form parts of the “main stem” of the principal line of the railroad, and not to be branch railroads having their own . “main stem.”</p> <p>3. The branch railroad of the United New Jersey Railroad and Canal Company known as the Harsimus branch, constructed under the acts of March 30th, 1868, and March 24th,' 1869 (Pamph. L. 1868, p. 551; Pamph. L. 1869, p. 560) — Reid, to be a branch railroad established and operated as such by legislative authority, and its property therefore assessable in part as “main stem” and in part as “other property used for railroad purposes,” according to the circumstances of the property, by force of the Railroad Tax act of March 27th, 1888. Gen. 8tat., p. 3325, pi. 214.</p>

On error to the Supreme Court. Action upon a policy of fire insurance of the standard form. The defences were that the policy was rendered void by the use of gasoline, and that no appraisement and award had been made as required by the policy. There was a verdict for the plaintiff for the full amount of the policy.

<p>1. A benefit certificate provided that the secretary of the medical board of the order should have power to reconsider any medical examination within six months after passing the same, and if there be sufficient cause which existed at the time of the examination to have rejected it, he may reject it, whereupon the assured shall cease to be a beneficiary member of the order. Held, that in a suit upon the certificate, the defendant, in order to sustain a defence that the medical examination was reconsidered and rejected, must prove that it was for a sufficient cause which existed at the time of the original examination.</p> <p>2. The fact that one parent of the assured died of phthisis before the medical examination is not of itself enough to prove that sufficient cause existed for the rejection of the assured.</p> <p>3. An inquiry made of an applicant for insurance as to the cause of his father’s death, calls not for a definite statement of fact, but for the Iona fide belief and opinion of the applicant.</p> <p>4. In the present case, the provision that the decision of the supreme court of the order shall be final and conclusive, is intended only to mark the distinction between the effect of the decision of the supreme court of the order and that of its other courts, and not to exclude the jurisdiction of the legal tribunals.</p>

<p>1. A city entered into a contract with A that he should construct-a receiving well twenty-five feet in diameter and thirty feet in the earth.</p> <p>2. It appears that through the site fixed under the contract for the construction of the well there had been formerly sunk by the city an old concealed test well which had been abandoned. A claims that after sinking the receiving well twenty-seven and one-half feet, further work became impossible by reason of subterranean water rushing up through the old test well and flooding the excavation. He thereupon announced to the city that he had abandoned his contract, and thereafter brought an action against the city to recover damages caused by the presence of the old well.</p> <p>3. On the trial the trial justice charged the jury that if it believed that the existence of the sunken well made the performance of the contract impossible, that the contractor had a right to rescind the contract and bring his action. Held, that there was error in not leaving- to the jury the question whether when the site of the receiving well was designated the city could have reasonably apprehended that the presence of the old test well would render the performance of the contract impossible, and so whether the city fraudulently imposed upon the contractor a useless work.</p>

<p>1. When- a broker is employed to sell real estate at a fixed price before a certain date, his agency expires at the date, and he is not entitled to commissions unless, before the arrival of this date, he has found a purchaser able and willing to buy on the terms fixed in the employment, or unless the employer, by fraudulent conduct, has defeated the efforts of the agent to effect a sale. The sale of the property, afte» the termination of the broker’s agency, by the owner to a purchaser with whom the agent had been in negotiation during the period of his employment, does not entitle him to commissions.</p> <p>2. A written contract was entered into by which a broker was given an exclusive right to sell real estate at a fixed price before a certain date. Held, that the trial court rightly excluded an offer to show that at the time of the execution of this contract the defendants told the plaintiff that if a sale satisfactory to the defendants was effected by the broker after the expiration of the written contract the defendants would pay the broker his commissions.</p>

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

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

<p>1. An objection to an indictment that it states that it was presented on the respective oaths and affirmations of the members of the grand inquest, without stating how those who affirmed were privileged to do so, is without foundation, inasmuch as the caption states that the indictment was presented on the oaths of the grand jury.</p> <p>2. It is not a good ground of objection to an indictment for keeping a disorderly house that it states that one of the elements of disorder therein was the permitted violation of the sixty-fifth section of the Criminal Procedure act (Pamph. L. 1898, p. 812), which section makes gaming a misdemeanor in itself.</p> <p>3. On the trial of two persons jointly indicted for keeping a disorderly house, a peremptory challenge of a juror by one defendant was allowed against tbe protest of the second defendant, and a similar challenge by the second defendant was allowed against the protest of the first defendant. No other peremptory challenges, so far as appears, were made, and therefore there was no curtailment of the right to ten joint peremptory challenges. Held, that while the challenges should have been made with the concurrence of both defendants, their allowance worked no harm to the defendants. The rest of the general panel was left from which a jury was selected. The right to challenge is a right to reject and not select jurors. So long as the right to reject was not impaired there was no legal injury.</p>

<p>Where a servant is injured while working outside of the scope of his employment, voluntarily and without orders, the master is not chargeable with negligence for failing to warn him of danger.</p>

<p>1.. A request to charge that would have required the jury to acquit the defendant railway company of negligence, even though the quick effort of the motorman to stop the car were made carelessly and negligently, was properly refused.</p> <p>2. Where, in an action against a street railway company and the owner of a wagon for injuries to a passenger in a car of the railway companjr caused by a collision between the car and the wagon, there was proof from which the jury might infer negligence of the driver of the wagon, there was no error in refusing to nonsuit the plaintiff on the motion of the owner of the wagon.</p> <p>3. Where the plaintiff had made out a prima facie case of negligence, calling for explanatory evidence on the part of both defendants, it was not erroneous for the trial judge to refuse a request to charge that “the burden of proving negligence on the part of the defendant E. A. Williams Company is upon the plaintiff,” in view of the fact that he did charge that “the case having now closed and all the evidence on both sides having gone in, it is all, without any reference to which side it came from, so much material for your judgment to act upon, and that in order that you should be satisfied that the E. A. Williams Company was negligent, it must appear to you, from all the evidence in the case, that that conclusion is established.”</p> <p>4. An error of the court in sustaining an objection to a question on cross-examination, when the witness has already testified fully, during the course of the cross-examination, in respect to the matter excluded, and the party has the opportunity of pursuing his cross-examination as to the real question to which the excluded question was merely preliminary, is not reversible error.</p> <p>5. A hypothetical question to an expert which assumes the facts in accordance with the theory of the party asking it, and which the evidence tends to prove, is proper where, although the facts are disputed, there is ample testimony tending to support every phase of the question, and sufficient to justify the submission thereof to the jury. It is not necessary that the question should embody all of the facts exhibited by the evidence; it is sufficient, on the contrary, if it embodies such a state of facts, fairly within the range of the evidence, as counsel propounding it deems to have been proved.</p> <p>6. The true rule is that the driver of a wagon has the right of way, if, proceeding at a rate of speed which, under the circumstances of the time and locality, was reasonable, he reaches the point of crossing in time to safely go upon the tracks in advance of the approaching street car, the latter being sufficiently distant to be checked, and, if need be, stopped before it reaches him. A request to charge on the subject of the right of way, which ignored the limitations of that rule, was properly refused.</p> <p>7. The omission of a trial judge to instruct a jury on a particular point is not assignable as error unless such instruction be specially requested.</p> <p>8. A party has no just cause of complaint where, although his requests for instruction have been refused, the court embraced them in its charge, so far as they stated correct propositions of law.</p>

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

<p>1. A passenger standing upon the rear platform of a trolley car has no right to rely, in preserving his equilibrium, upon the protection of the closed door, and it is not the duty of the conductor to warn him before opening the door suddenly, when it appears from the evidence that the passenger was not leaning against the door and was not in such a position that the opening of the door required him to move or in any way interfered with him, and therefore a request to charge that “a carrier owes to its passengers a high' degree of care and the plaintiff in preserving his equilibrium had a right to rely upon the protection of the closed door, and it was the duty of the conductor to warn the plaintiff before opening the door suddenly,” was properly -refused, especially when it was reasonably to have been inferred from the evidence that there was room for the passenger inside the car.</p> <p>2. While it is not negligence per se for the passenger to ride upon the platform of an electric street railway car, nevertheless a passenger who voluntarily rides upon the platform, when there is room for him inside the car, takes upon himself the duty of looking out for, and of protecting himself against, the usual and obvious perils attendant upon his position, such as the danger • of being thrown from the platform by the ordinary jolting and swinging of the car. An instruction that “as a general proposition, the defendant company, and its servants as well, were bound to use what is called a high degree of care for the safety of the passengers who entrust themselves to its conveyance. That question is somewhat modified by the fact of Mr. Nirk standing on the platform, if he could get inside the car,” is not erroneous when it appears that the trial judge, in another part of his charge, correctly stated to the jury the character and extent of the modification of the rule referred to.</p> <p>3. When it does not appear that the door was maintained for the purpose of assisting passengers in preserving their equilibrium, but rather that one of its purposes was to allow ingress and egress of passengers, it was not negligence to open the door on the north side of the car to enable passengers to alight unless it was a dangerous place for passengers to get down, and therefore an instruction that “it might be a question whether the conductor would be negligent in opening the door on that side, unless it was in a place where it would be dangerous for passengers to get down; that would be the only reason that would make it negligent to do it at all,” was not erroneous, especially when the evidence was most persuasive, if, indeed, it did not compel the conclusion that the place where the north door was opened was a safe place to alight, and that it would have been, on account of the snow, unsafe to have let the passengers out on the other side.</p>

On error to the Supreme Court. The plaintiff declared in contract upon the common counts in assumpsit, for value of work done and materials provided by plaintiff at the defendant’s request, with notice specifying that .the work was done by him as an architect in the preparation of plans and specifications for the construction of a building, proposed to be erected by the defendant.

On error to the Supreme Court. Action by John Merkl, administrator, &c., of George Merkl, deceased, against Jersey City, Hoboken and Paterson Street Railway Company. Plea, general issue. Judgment on verdict for plaintiff, and defendant brings error.

On error to the Supreme Court. This case was tried at the Bergen Circuit, before Honorable B. C. Vail, Circuit judge, and a jury, and a verdict rendered for the plaintiff:.

Samuel M. Chess, Jr., plaintiff below, brought in the Supreme Court an action upon contract against Emil Yockroth, the defendant below.

On error to the Supreme Court. This was an action in contract brought in the Second District Court of Jersey City by Thomas A. Eyer (the present defendant in error) against Adolph M. Turkel (the present plaintiff in error) and Annie Turkel, his wife.

On error to the Union Circuit Court. This was an action ex contractu brought in the Circuit Court of Union county by Axel, the defendant in error, against ICraemer, the plaintiff in error. The counts of the plaintiff’s declaration were, in the terminology of the common law, in indebitatus assumpsit.

<p>1. The duty of the employer to exercise reasonable care? and skill in furnishing suitable and safe machinery and in keeping such machinery and appliances in repair is not ended by the selection of a competent person to do the work.</p> <p>2. The delegation of such duty to a co-employe will not, under the doctrine of co-service, defeat an action for negligence by an employe where the delinquent was discharging one of the personal duties of the employer.</p> <p>3. Where the employer is a corporation, the performance of such delegated duty by the sub-agent or employe is the act of the corporation, and it is responsible for its faithful and prudent performance to the same extent as if the service was performed by the highest officer of the corporation.</p>

<p>1. The -plaintiff, a milkman, about three o’clock in the morning, at an unfrequented grade crossing of the Lehigh Valley railroad, drove off the railroad crossing and the wheel of the wagon was caught in the tracks. It was very dark and thick. He proceeded to unload his wagon between the rails. While thus engaged he saw the headlight of an approaching train about six hundred feet away, and ran up the track waving a white lantern. The train passed him about one hundred and fifty feet from the crossing. The engine ran five or six feet on to the crossing and struck the rear wheel of the wagon. Both the fireman and the engineer testified that when the plaintiff first waved his lantern the engineer immediately shut off the steam and put on the brakes. The plaintiff testified that the train did not slow down until it passed him about one hundred and fifty feet from the place of the accident. On cross-examination he based this assertion upon the fact that he heard the air-brakes applied as the train passed him. The trial judge ruled that this testimony left it open to dispute whether the train was stopped with reasonable promptness after the plaintiff’s warning. Held, that the plaintiff’s testimony that the train did not slow down was a mere conjecture; that it proved nothing and made no case to go to the jury; that it did not controvert the testimony of the fireman and the engineer that the steam was shut oil and the brakes applied as soon as the signal was seen, about five hundred feet from the crossing; that, therefore, the trial judge erred in not directing a verdict for the defendant.</p> <p>2. Rule that “in an action for negligence the trial judge is not justified in leaving the case to the jury where the plaintiffs evidence is equally consistent with the absence, as with the existence, of negligence in the defendant,” applied and discussed. Reversing 45 Vroom 196. The question of the plaintiffs contributory negligence not considered.</p>

<p>1. The plaintiff, an employe of the radiator company, was injured while operating a die-cutting machine. He complained to the foreman that the machine was out of order, that the safety clutch had slipped, letting the knives drop on the die. He was instructed to go back to work and was told that the machine would be repaired. Within an hour after he resumed work the safety clutch.again slipped and the plunger came down, cutting off three fingers. The evidence of the plaintiff was that, after cutting each piece of metal, and after the knives had moved up, held by the safety clutch, it was necessary for him to remove, with his fingers, the waste material from the die upon which the cutter fell; that no other means was provided. There was a conflict of testimony. Held, that the question of negligence was for the jury.</p> <p>2. A declaration that the knives of a die-cutting machine were defective did not confine the plaintiff’s proof or limit his cause of action to a defect in the blades, but included a defect in the safety catch, by reason of which defect the mechanism failed to hold the knives in place and until released by the operator.</p>

<p>In replevin. On error to Atlantic Circuit.</p>

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

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

<p>On error to the Supreme Court, whose opinion is reported in 45 Vroom 1.</p>

<p>1. The record of conviction sets forth that the defendant was tried by a jury “impaneled and -returned agreeably to the statute in such case made and provided.” There being- no bill of exceptions tending to negative the correctness of this recital, nor anything to show a challenge of the array — Held, there can be no reversal on the ground that the jury was not properly impaneled.</p> <p>2. Under section 186 of the Criminal Procedure act (Pamph. L. 1898, p. 915), which permits a review of error committed “in the denial of any matter by the court which was a matter of discre-</p> <p>■ tion,” there can be no reversal for a matter that lies in discretion, unless the case shows some application to the trial court in the premises, for where there is no request there is no denial.</p> <p>3. Under section 82 of the Criminal Procedure act (Pamph. L. 1898, p. 897), which provides for a list of forty-eight jurors to be served upon the defendant in a capital case, and prescribes that it shall be drawn from the general panel of jurors that may have been drawn and summoned to attend as jurors at the term at which the defendant i$ to be tried, the formality of drawing the list of forty-eight names to be served upon the defendant is required' only when the general panel consists of more than that number, the drawing being intended for the purpose of selecting forty-eight names out of a greater number.</p> <p>4. In a review under section 136 of the Criminal Procedure act {Pamp'h. L. 1898, p. 915) there can be no reversal for the admission of a dying declaration, based upon the ground that it was not made under a sense of impending death, where there was evidence justifying the finding of the trial court that the declaration was made under a sense of impending death, for in that case the defendant cannot be said to have suffered any wrong in the premises.</p> <p>5. A dying declaration may be discredited by showing the bad reputation of the declarant for truth and veracity, but not by showing that the general character of the declarant was bad.</p> <p>6. The law of this state does not require, in the case of a conviction . for murder in the first degree, that the judgment shall set forth the time, place or manner of inflicting the death penalty. The statute (Pamph. L. 1906, p. 112; Pamph. L. 1907, p. 261) prescribes the place and manner in which the penalty shall be inflicted, and provides that the time shall be fixed in the warrant.</p> <p>7. The Electrocution act (Pamph. L. 1906, p. 112) is not unconstitutional as prescribing a “cruel and unusual” punishment.</p>

<p>On error to the Supreme Court, whose opinion is reported in 45 Vroom 274.</p>

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

<p>This case is controlled by Van Marter v. Lúeas, 35 Vroom 182; 30 Id. 311.</p>

<p>1. In determining whether a supplement to an existing statute violates constitutional provisions, the supplement is not to be examined as an independent enactment, but is to be considered in connection with, and as a part of, the statute upon which it is engrafted, and if the supplement does not operate to render the statute, as amended, unconstitutional, it is valid legislation.</p> <p>2. A scheme for the taxation of railroad and canal property which provides that the main stems or rights of way of railroads, and the waterways of canals, not exceeding one hundred feet in width, and the franchises and personal property used for railroad or canal purposes of the companies owning such railroads and canals, shall be taxed at the average rate of taxation which prevails in the various taxing districts of the state, and that the remaining portion of the property of such companies which is used for railroad or canal purposes shall be taxed at the local rate which prevails in the respective taxing districts in which it is located, does not violate either the state or the federal constitution.</p> <p>3. There is no constitutional prohibition against legislation which provides for the taxation of the main stem or right of way of a railroad at one rate and of the passenger stations located thereon at a different rate.</p> <p>4. Property used for railroad and canal purposes forms a legitimate class for purposes of taxation, and an act which provides a scheme for the assessment and taxation of all property so used is a general law, but a provision in such an act which separates a part of such property from the general mass thereof, and requires that such part be assessed and taxed by a different method and for a different purpose, destroys the generality of the law, and renders it obnoxious to that clause of the state constitution which declares that property shall be assessed for taxes under general laws.</p>

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

<p>On. error to Supreme Court, whose opinion is reported in 45 Vroom 439.</p>

<p>1. In condemnation proceedings, where the prospective depreciation of a tract of land arises entirely from the construction and operation of a railroad tunnel two hundred feet below the surface of the soil, a real estate agent familiar with the prices of property in the neighborhood, and who in another locality became acquainted with the effects upon property values of a railroad tunnel eighty or ninety feet below the surface, with shafts through which the smoke and gas escaped, is not an expert with respect to the question, AVhat will be the value of the given tract after the construction of the tunnel as compared with its present value?</p> <p>2. The experience of such witness that purchasers of real estate have a prejudice against deeds that except easements does not qualify him to give an expert opinion upon the foregoing question of land values.</p>

<p>Bad faith, not merely notice of suspicious circumstances, must be brought home to the holder for value of a negotiable note whose rights accrued before maturity in order to defeat his recovery upon the note on the ground of fraud in its inception.</p>

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

<p>In a suit upon a policy of life insurance the plaintiff sought to escape the effect of a breach of warranty that the assured had not been under the care of a physician within two years prior to the application by proof that he told the examining physician the facts at the time, and was assured that it was not considered illness because he had not been in bed, and didn’t count. Held, that the evidence was insufficient to show that the words of the warranty were used with any other than their-usual meaning.</p>

<p>The plaintiff alighted from a street car, passed around the rear platform, and was struck by the corner of the fender of a car approaching at excessive speed on the other track just as he reached the nearest rail of that track. He looked for the approaching car just as he was struck. Held, that he was guilty of contributory negligence in failing to wait for the car from which he alighted to move on so as to enable him to look with effect along the other track, and that the fact that the approaching car was running at an excessive speed did not relieve him of the charge of negligence.</p>

<p>A mortality table printed in a law-book is not admissible in evidence where it is not shown to have been in actual use for the purpose for which such tables are intended, or to have acquired a reputation for accuracy, unless the authenticity is established by competent evidence.</p>

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

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

<p>1. The application of the maxim res ipsa loquitur depends upon the circumstances of each case. ,</p> <p>2. Where a little girl, impatient to alight from a trolley car, arose and walked to the rear platform and stood near the edge of the platform, with her left hand loosely holding some part of the car, and the conductor rang the bell for the next street crossing, and the car slowed down and ran into a turn-out just before reaching the crossing, and by reason of the motion caused by the car entering the turn-out the child fell from the platform — Held, that no inference arose that the accident occurred by reason of some negligence in handling the car.</p>

<p>1. A witness who had lor twenty years filled a chair of civil engineering, and afterward had made a special study of jetties and bulkheads, was, in the discretion of a trial judge, properly permitted to express an opinion upon the question whether a bulkhead with a filling of sand behind it or a bulkhead without such filling was the more likely to resist ocean storms.</p> <p>2. It is within the discretion of a trial judge to either permit or prohibit the cross-examination of a witness, who is also a party to the suit, concerning a matter aside from the scope of the examination in chief.</p> <p>3. A contract to fill in sand behind a bulkhead for a real estate company contained a clause that the work of filling should, until final payment and acceptance by the company, remain at the sole risk and expense of the contractor. An ocean storm washed away the bulkhead and a part of the filling before the completion of the work. Meld, (1) that the risk imposed upon the contractor by the terms of the contract did not include any loss resulting from a breach of duty by the company, and it appearing that the bulkhead against which the filling was to be placed was to be built by the company. Held, (2) that if the loss of the filling occurred by the fault of the company in erecting such bulkhead, the risk was not covered by the clause in the contract.</p>

<p>On error to the Supreme Court, whose opinion is reported in 41 Vroom 341, sub nom. In re Fagan, Mayor, &c.</p>

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

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

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

<p>1. An allegation in a declaration that the defendant “negligently” allowed noxious fumes to escape from its factory to the damage of plaintiff’s crops, does not require of plaintiff specific proof of the precise negligence which caused or permitted such fumes to escape; for, from proof of the escape of noxious fumes and consequent damage therefrom, negligence will be inferred.</p> <p>2. The operation of a factory in such manner as to constitute a nuisance may be given in evidence under an allegation that it was “negligently” operated, provided the other allegations of fact make out a case of nuisance and are supported by the proof.</p>

<p>1. Plaintiff’s intestate, while employed by the defendant as a laborer in a rock excavation for a sewer, was killed by the accidental explosion of a blast which had previously failed to explode, and was being prepared for removal by another employe, skilled and careful, in such work, and entrusted with that duty. In an action by the administrator against the employer for damages by reason of such death — Held, that under the circumstances of the case it was a question for the jury (1) whether the employer was guilty of negligence in putting deceased to work in a dangerous place, or undertaking the extraction of the charge while deceased was working in the vicinity without withdrawing him to a place of safety; (2) whether deceased assumed the risk of the explosion in question ; (3) whether he was guilty of contributory negligence.</p> <p>2. Held further, that the negligence,' if any, causing the injury and death was not that of a fellow-servant.</p> <p>3. Held further, that substantial pecuniary injury to next of kin by reason of the death appearing in the evidence, there was no error in refusing to nonsuit or charge that nominal damage only could be recovered.</p>

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

<p>1. 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. In an action on a policy of life insurance, the defence being intentional poisoning, either by the insured or the beneficiary, it appeared that insured was a-laboring man much older than his wife; that he worked at night, and that shortly after his usual midnight supper, prepared by the wife, he was seized with cramps, diarrhoea and vomiting, which are symptoms of arsenical poisoning, and died after an illness of about three days, an autopsy disclosing sufficient arsenic to cause death. Less than a month before death lie had taken out a policy upon his life for $2,000, payable to his wife as beneficiary, and of which she knew. In view of these and other circumstances appearing in the evidence— Held, that the direction of a verdict against the company was error.</p>

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

<p>1. Negligence is not to be presumed from the mere fact of a moving boat colliding with another moored in a slip, when the plaintiffs’ case shows several acts of the defendant previous to the actual collision, all of which tended to the result, and might be found to be explanatory of it, without requiring an inference of negligence. Presumptions in favor of plaintiff exist only in the absence, not in the presence, of explanation by him.</p> <p>2. Where the plaintiffs’ case shows the conditions under which an accident happens, and the question is raised whether under the circumstances specified the conduct of the defendant was negligent, the rule res ipsa loquitur does not apply.</p>

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

<p>On error to Supreme Court, whose opinion is reported in 45 Vroom 216.</p>

<p>On error to the Supreme Court, whose opinion is reported in 45 Vroom 389.</p>

<p>Where the evidence only discloses that, in crossing a frog or device used to permit the tracks of one railroad t.o cross those of another, the foot of plaintiffs’ horse was caught in the appliance, thrown and injured, and the only ground of negligence attributable to defendants is the use of a crossing frog of a standard pattern which is in general use in the United States by like companies for a similar purpose, no legal liability of the defendants is shown, and the case was properly disposed of by the trial judge in directing judgment of nonsuit.</p>

On error to the Supreme Court. This ease was tried at the Atlantic Circuit, before Judge Endicott, and a jury, and a verdict rendered for the defendant.

On error to the Supreme Court. The prosecutor, the Lehigh and Wilkes-Barre Coal Company, a Pennsylvania corporation, is engaged in the business of mining coal in Pennsylvania and shipping it across the State of New Jersey to tidewater, and thence to various markets in New York, New England and elsewhere.

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

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

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

<p>On error to the Supreme Court, whose opinion is reported in 45 Vroom 279.</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 reported in 44 Vroom 493.</p>

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