Volume 76 — New Jersey Law Reports

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

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

<p>Where a new trial has been granted to a defendant in an action for damages, on the ground of newly discovered evidence which bears solely upon the question of liability, the plaintiff cannot try out the question of the quantum of damages before the second jury, and then reject their finding upon that question in case the amount assessed by them in his favor is less than that assessed by the first jury.</p>

<p>1. A plea may be pleaded to a part of a count in a declaration if that part be material and severable from the rest of the count.</p> <p>2. A plea in bar which sets up matters that are not in discharge of the action, but are merely in mitigation of damages, is vicious.</p> <p>3. A mortgage clause in a fire insurance policy provided that any loss or damage thereunder should be payable to specified mortgagees as their interest might appear, and that “this insurance as to the interest of the mortgagees only thereunder shall- not be invalidated by any act or neglect of the mortgagor or owner of the within-described property.” Held, that the mortgagees’ rights were not affected by the failure of the insured to comply with a demand of the insurer for appraisers.</p>

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

<p>1. A municipal court takes judicial notice of the ordinances of that particular municipality.</p> <p>2: Upon the review of a judgment of a municipal court the Appellate Court will, in support of such judgment, judicially notice municipal ordinances of which the court below was at liberty to take notice.</p>

<p>On certiorari.</p>

On certiorari. Philo Laos Mills, the testator, resided in England, and died there on the 23d day of August, 1905, leaving a last will and testament, which was duly admitted to probate in England on the 13th of November, 1905, and an exemplified copy thereof admitted to probate by the surrogate of Essex county, this state, and letters testamentary granted to William T. Evans, a resident of Montclair, this state, and Alfred Neilson, a resident of New York State, the two…

<p>On certiorari.</p>

<p>1. An act approved March 24th, 1904, entitled “An act regulating the age, employment, safety, health and work hours of persons, employes and operatives in factories, workshops, mills and all places where the manufacture of goods of any kind is carried on, and to establish a department for the enforcement thereof,” commonly known as the Child Labor law, is constitutional.</p> <p>2. An action brought by a state official by virtue of his office under the provision of this act for the penalty for the violation of its first section is not within the provisions of section 219 of the Practice act (Pamph. L. 1903, p. 594) touching suits instituted by an informer.</p>

On certiorari. This writ brings up the award oi commissioners appointed on the application of the Inter-City Link Eailroad Company in condemnation proceedings of certain lands of the ferry company which the tunnel company seeks to take for its terminal and depot purposes.

<p>A real estate agent, whose authority to sell is first put in writing in a contract for sale between the vendor and vendee which is not under seal, cannot recover commissions for the sale.</p>

<p>On certiorari.</p>

<p>A purchaser at a tax sale who records his certificate as a mortgage pursuant to section 56 of the Tax act (Pamph. L. 1903, p. 430), is entitled to the rents and profits of the land and need not account to the owner therefor upon the redemption of the property.</p>

<p>A resolution of a board of school estimate fixing and determining the amount of money necessary for the erection of a schoolhouse at the sum of $175,000, “on condition that a school building containing twenty units shall be erected,” is not such a determination as is required by section 76 of the School law of 1903.</p>

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

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>Before a Court of Common Pleas can revoke a license to keep an inn and tavern under section 10 of the act to regulate the sale of liquor, as amended in 1906 (Pamph. L., p. 199), the notice required by the statute must be given to the holder of the license and the owner of the licensed premises, and the fact that the holder of the license has been convicted in the Court of Quarter Sessions of the same county of an offence for which his license became forfeited and void, does not dispense with the necessity of this notice.</p>

<p>Taxes authorized by the Railroad Tax act of 1884 (Pamph. L., p. 142), were not imposed within the meaning of the Transit act of 1869 (Pamph. L., p. 226), until January 1st, 1885, when they became payable, and until that date railroads subject to the Transit act were liable for taxation thereunder.</p>

<p>On certiorari.</p>

<p>1. Mandamus will lie to compel a board of registry and election to make up and sign such a statement of the result of a primary election as is required by Pamph. L. 1903, p. 617, § 15.</p> <p>2. Where on mandamus to compel a board of registry and election to make up and sign the statement of the result of a primary election required by Pamph. L. 1903, p. 617, § 15, it is necessary to open the ballot-boxes to comply therewith, that course may be taken.</p> <p>3. Pamph. L. 1903, p. 603, being an act in supplement of the act to regulate elections (Pamph. L. 1898, p. 237), makes sections 58 and 59 of the act of 1898 applicable to primary elections. Section 58, page 267, declares void ballots which contain a mark other than is permitted by that act. Section 59 provides that a voter may erase from his ballot any name or write thereon the name of any person for whom he desires to vote. Reid, that a board of registry and election, at a primary election, was without right to reject, as marked ballots, over sixty ballots on which a candidate’s name was written in the same handwriting, and that it was not essential that the voter himself must have written the name of the candidate.</p> <p>4. Under Pamph. L. 1898, p. 268, § 59, providing that a voter may erase from his ballot any name or write thereon the name of any person for whom he desires to vote, and Pamph. L. 1903, p. 603, making section 59 applicable to primary elections, a member of one party may vote for a member of another party as the nominee of such voter’s party, and there is nothing in the general object of the public laws of 1903 denying such right.</p>

<p>1. Tbe legislature by the act to establish a uniform procedure for the enforcement of laws relating to fish, game and birds (Pamph. L. 1897, p. 109), has authorized the fish and game wardens to prosecute for penalties and to arrest persons against whom a warrant has been issued. Held, that a warden may make the arrest even in a case in which he himself is the prosecutor, and although he is entitled to receive one-third of the penalty.</p> <p>2. The amendment of 1906 of the Game law of 1903 (Pamph. L. 1906, p. 699), is to be read as an independent enactment and extends the close season for deer for three years from 1906.</p>

<p>The plaintiff was struck by a car used for transferring brick in defendant’s works; the track, on which the car ran, sloped in such a way that the lowest point was near the machine at which the plaintiff worked, but the grade was just sufficient to facilitate the transfer of cars. Held, that the defendant had the right to construct the tracks with such grade as was reasonably necessary to facilitate the transfer of cars about the factory, and that there was no evidence of negligence.</p>

On motion to set aside a writ of attachment levied upon the rights of George A. Ballantine, the defendant, in the estate of Peter Ballantine, deceased, and all his rights in the estate of Peter FI. Ballantine, deceased.

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

<p>On application for a new trial.</p>

' This certiorari brings up a resolution of the board of excise commissioners of the city of Asbury Park, passed on July 2d, 1907, whereby they granted a license to George J. Reiff to sell spirituous, vinous, malt and brewed liquors in quantities of less than one quart, to be drunk on the premises of the Continental Hotel, in the city of Asbury Park.

<p>On certiorari.</p>

<p>On application for a writ of certiorari.</p>

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

<p>On certiorari.</p>

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

<p>Under section 4 of chapter 114 of Pamph. L. 1906, p. 203, no license can be granted to sell spirituous liquors by less measure than one quart in any new place within two hundred feet of the curtilage of a church edifice, measured between the nearest point of the same and the nearest point of the building wherein such liquors are intended to be sold, notwithstanding the fact that the entrance to the latter building is more than two hundred feet distance from the church curtilage.</p>

<p>A subsequent ratification of an act done by another, assuming to act in the capacity of an agent, though without any precedent authority, creates the relation of principal and agent, and after such ratification, with full knowledge of all the material facts and circumstances, the principal is bound by the act, to the same extent as if it had been done by his previous authority.</p>

<p>1. In a proceeding before a justice of the peace for a violation of section 33 of the Fish and Game act (Pamph. L. 1903, p. 534), it is not essential that a special note shall be endorsed on the complaint of the day, month and year of the institution of the action or that upon the summons shall be endorsed the name of the party who prosecutes and the title of the statute upon which the action is founded.</p> <p>2. In a proceeding before a justice of the peace for a violation of section 33 of the Fish and Game act (Pamph. L. 1903, p. 534), the evidence returned by the justice, as a part of his transcript, not embraced in the conviction, and not required to be, under the prescribed form, and not returned pursuant to any rule of this court, is not a part of the record, and will not be considered by the court.</p>

<p>On certiorari.</p>

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

<p>1. The act approved October 28th, 1907 (Pamph. L., p. 705), entitled “An act concerning the government of cities of the first class,” is not in violation of article 4, section 7, paragraph 11 of the constitution of the State of New Jersey prohibiting special laws regulating the internal affairs of towns and counties.</p> <p>2. The act applies to the office of police justice.</p>

<p>Where, in an action to recover damages for injuries alleged to have been caused by defendant’s negligence, it appears that the injuries were occasioned by one of two causes, for one of which the defendant is responsible, but not for the other, plaintiff must fail if the evidence does not show that the injury was the result of the former cause; if, under the testimony, it is just as probable that it was caused by the one as the other,' he cannot recover.</p>

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

<p>On application to set aside election of directors of a corporation.</p>

<p>On certiorari.</p>

<p>On application for a mandamus, involving fairly debatable questions of law or fact, the Supreme Court will ordinarily award an alternative writ, to the end that an issue may be made and the facts ascertained, and an opportunity given for review in error.</p>

<p>1. Where an act amending a statute, or part of a statute, enacts a complete substitute for the statute or part of the statute amended, the effect is to erase the amended matter entirely from the statute boohs and insert in its place the new matter, thus eliminating anything in the former law not contained in the later.</p> <p>2. Since the passage of Pamph. L. 1903, p. 711, amending section 178 of the Elections act of 1898 as amended {Pamph. L. 1903, p. 628), inspectors of election are not entitled to extra fee of $5 for services at primary elections.</p>

<p>1. The action of a county board of taxation in ordering a township assessor to increase by forty-six per cent, the valuation of all taxable property in his taxing district, will not be presumed illegal.</p> <p>2. Such increase having resulted in a lowering of the tax rate, but the collector having failed to change his duplicate and bills having been issued and paid based on the original valuation and higher rate, a taxpayer whose property was revalued specially by the county board after complaint of undervaluation is liable for taxes at the lower rate resulting from the general increase, and not at the rate mentioned in the tax bills sent out by the collector.</p>

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

<p>1. The plaintiff, as trustee in bankruptcy, having brought a suit against the defendant, assigned to one lvl. the chose in action upon which the suit was founded. Thereafter the suit was continued by the assignee in the name of the assignor as plaintiff, ■ .and on the trial a nonsuit was asked, upon the ground that the plaintiff of record had disposed of the subject-matter, whereupon it wás moved that the proceedings be amended by substituting M. as plaintiff, which was refused and a1 judgment of nonsuit ordered. Held, that while the amendment should have been allowed under the circumstances, the granting or refusing of .amendments to pleadings is a matter of discretion, and not assignable for error.</p> <p>2. The statute allowing the assignee of a chose in action to sue in his own name does not prevent him from suing in the name of the assignor, for at common law it was required that the assignee prosecute in the name of the assignor, and a statement in the pleadings that the action was brought for the use of the assignee is commendable, but not necessary.</p>

<p>A plaintiff is guilty of contributory negligence in attempting to cross a street railway in front of an approaching car running at a high rate of speed and only one hundred and fifty feet away when the plaintiff attempted to cross, she testifying that she knew the car would be very close when she crossed, but thought she would risk it.</p>

<p>The children of a deceased intestate divided his household furniture among themselves, and to manifest the division a schedule was prepared, and under the name of each child there was a list of the articles assigned to each. In nearly every case a value was given each article, but each list contained some article which was not appraised. When the list was completed the values of the articles taken by each child were footed, and it was stipulated that the amount in value of the articles taken should be charged against the share of each in the father’s estate, and the possession of the goods was taken by the child to whom it was assigned. The trial court admitted parol evidence tending to show that it was not intended by this written disposition to transfer to one of the children two portraits, although they were included in the list of goods assigned to, and taken by, him, upon the ground that the writing was only a receipt and therefore explainable. Held, that the writing was more than a receipt; that it was an agreement regarding the disposition of the household goods of a parent among his children made by them, and having been acquiesced in for over twenty years by all the interested parties, it was not subject to oral explanations.</p>

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

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

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

<p>On error to the Court of Special Sessions of Passaic county.</p>

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

<p>1. No contract will be implied from the mere leasing of a building that it will be made suitable for the tenant’s business.</p> <p>2. A lease provided that the tenant might make alterations subject to the landlord’s approval, and he undertook, against the landlord’s objection, to make alterations. The objection was reasonable and the alterations mot necessary for the purpose for which the building was leased. Held, that the objection did not amount to an eviction, there being no agreement in the lease that the building should be made suitable for the tenant’s business.</p> <p>3. If the landlord’s refusal to consent to the alterations be unreasonable, the tenant could not retain possession without paying any rent, because the refusal did not amount to an eviction.</p> <p>4. In an action of replevin to recover goods distrained for rent, the lawfulness of the distress may be tried if there be no rent due, but if there be rent due, and the distress is excessive in regard to the quantity of goods distrained, or is otherwise irregular, the remedy of the tenant is by an action on the case.</p>

<p>1. Where an entire contract for the laying of a concrete sidewalk has been substantially performed, even though not completed in a workmanlike manner, the contract price may be recovered, less a fair allowance to make good the defects, although the work has not been accepted.</p> <p>2. Acceptance of such work is immaterial, except in an action to recover upon a quantum meruit.</p>

<p>When goods are delivered to a common carrier for carriage, and after examination of the shipping directions it appears that they are so uncertain as to render it doubtful what destination was meant, it is the duty of the common carrier to hold the goods until the true destination can be ascertained by inquiry.</p>

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

<p>On appeal from the First District Court of Newark.</p> <p>Eor the plaintiff, Charles B. Storrs.</p> <p>Ear the defendant, Hoive c& Davis.</p>

<p>After a written contract providing for the delivery to the purchaser of a chattel “as soion as possible” by the vendor had been executed by the parties and delivered, the agent of the vendor verbally promised to deliver such Chattel within ten days from the date of the contract. Held, that such verbal promise was nudu'm pactum.</p>

<p>1. Where by statute a final and conclusive character is given to an assessment for benefits when confirmed, and such assessment shows upon its face that notice has been given to parties interested to object and opportunity to be heard thereon, which opportunity has not been availed of, and when such report upon its face declares that such assessment has been made in conformity with the rules of law, the proof that the assessment was not so made must be clear and cogent to warrant the court in disturbing it.</p> <p>2. The mere coincidence that the benefits so assessed appear to be in proportion to the frontage of each property assessed along the line of the improvement, cannot be urged against the declarations of the report of the commissioner that the assessments were made according to the peculiar benefits each property has received.</p>

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

<p>Where an assault and battery was committed upon lands purchased by the United States with the consent of the state legislature, and jurisdiction of the State of New Jersey in and over such lands was ceded to and vested in the United States by an act of said legislature, and thereafter congress enacted a law for the punishment of such offence'—Seld, that such legislation was an exercise of the power conferred by article 1, section 8 of the federal constitution and is exclusive, and that the state courts have no jurisdiction to try or punish such offence.</p>

<p>To charge one as a partner by a declaration of a third party to that effect, such declaration to be admissible must be made in the presence and hearing of the person sought to be charged, or under such circumstances that make it reasonably certain that the declaration was heard by the person sought to be charged.</p>

<p>A declaration which alleges that the defendant created a common nuisance by expelling heated water from its place of business into a city conduit, whence it was led in the conduit to an open unprotected space adjoining a public thoroughfare, into which space, by reason of its unprotected condition, the plaintiff fell and was injured, does not allege legal liability upon the defendant’s part for the injury this caused, and a demurrer interposed to the declaration should be sustained.</p>

<p>1. It is competent for a common carrier, by agreement with the shipper, to limit its liability for damages recoverable for goods injured to the amount stipulated in the shipping receipt.</p> <p>2. Upon the argument of a rule to show cause reserving exceptions, the court will not consider the legal questions involved in the exceptions reserved.</p>

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

<p>The right of a plaintiff to submit to a voluntary nonsuit is terminated by the direction of a verdict in favor of the defendant.</p>

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

<p>1. Questions put by cross-examining counsel which call for answers tending to show that the witness has a pecuniary interest in the result of the suit are competent.'</p> <p>2. A defendant is entitled to put in evidence a deposition of the plaintiff taken in an earlier stage of the cause upon a collateral issue, when it contains a material and relevant admission favorable to the defendant’s case.</p> <p>3. The beneficial owner of a claim against the estate of a decedent cannot avoid the disqualification of the fourth section of the Evidence act, and render himself a- competent witness against the executor in a suit for the recovery thereof, by assigning his claim to a third party without consideration, and upon the understanding that the recovery shall be for his (the assignor’s) sole benefit.</p>

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

<p>1. The refusal of a landlord to allow 'reasonable alterations to be made to the demised premises by the tenant, although in violation of the landlord’s express agreement to permit the same, contained in the lease, does not amount to an eviction of the tenant, and does not constitute a defence to an action to recover arrears of rent.</p> <p>2. In an action of replevin brought by a tenant against his landlord to recover goods and chattels distrained by the latter for non-payment of rent, the landlord, if the tenant be nonsuited, is entitled, by force of the twenty-third section of our Replevin act, to the direction of a verdict in his favor for so much of the arrears of rent as equals the value raf the property distrained.</p>

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

<p>On application for certiorari, and for rule to show cause why mandamus should not issue.</p>

<p>On certiorari.</p>

<p>Upon the authority of Stout v. Humphrey, 40 Vroom 436—Held. that where a real estate broker has no written authority at the time a sale is effected by him, an express promise to pay a stated commission subsequently made in writing and signed by the vendor will not sustain an action for the sum named therein.</p>

<p>Where the bailor of goods recovers a judgment for their full value against the bailee, and also has possession of the goods, the satisfaction of such judgment vests in the bailee sufficient property in such goods to enable him to maintain replevin against the bailor for their possession.</p>

<p>The defendant, a public auctioneer, sold plaintiff’s property by a misdescription. The successful bidder refused to take the title and in an action at law recovered a judgment against the present plaintiff for the amount paid to the auctioneer on account and the expense lof searching the title. Plaintiff thereupon sued the auctioneer for the damages resulting from the bidder’s refusal to consummate the sale. At the trial the bidder was not called as a witness but the plaintiff testified that the bidder declined to take the title because of the difference between the defendant’s misdescription of the lot and its true dimensions, and also that the judgment recovered by the bidder rested upon the same ground. Meld, that neither of these statements was competent testimony to prove that the ground of the bidder’s refusal to consummate the sale was the misdescription of the lot by the defendant, the first because it was hearsay, the^ second because the judgment was not offered and the defendant was not a party to it. Meld also, that the loss lof rent and the damage to the property resulting from the moving out of the plaintiff’s tenant were not proper elements of damage against the defendant.</p>

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

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

<p>1. Tbe timely demand by a defendant in a justice’s court for a jury cannot lawfully be denied because of bis refusal to advance tbe venire fees.</p> <p>2. After sucb a denial tbe justice is without jurisdiction to hear the-case and to bis judgment certiorari will lie.</p>

<p>Section 128 of the Crimes act (Pamph. L. 1898, p. 829) denounces two distinct crimes, one the willfully or maliciously setting fire to or burning the insured property with intent to prejudice the underwriter; the other, aiding, counseling, procuring or consenting to the setting fire to or burning of such insured property. An indictment for willfully and maliciously aiding, counseling, procuring and consenting to the setting fire to and burning lof certain insured property is sufficient although it fails to allege the commission of the offence which the defendants aided, counseled and abetted; the counseling of such an act is a crime whether or not the act is ever done.</p>

<p>1. The act of 1902 to authorize incorporated towns to construct, operate and maintain a system of sewers (Pamph. L., p. 371) applies to any town which may be incorporated at the time proceedings under the act are begun.</p> <p>2. The title of chapter 124 of the laws of 1902 (Pamph. L., p. 371) sufficiently expresses the object of the act, including the authority to construct sewage disposal works beyond the limits of the town.</p> <p>3. Chapter 124 .of the laws of 1902 (Pamph. L., p. 371) is not invalid because lof the power given to erect sewage disposal works within the bounds of another municipality.</p> <p>4. It is not necessary for an incorporated town which is acting under the Sewer act of 1902 (Pamph. L., p. 371) to secure the consent of another municipality to the erection of sewage disposal works within the territorial limits of the latter, nor is such consent made necessary by the act of 1907. Pamph. L., p. 707.</p> <p>5. The action of a sewerage board of an incorporated town under chapter 124 of the act of 1902 (Pamph. L., p. 371) is only a preliminary to legislative action by the governing body of the town and by the voters at a special election; and the determination of the sewerage board fixing as a site for disposal works land in which a member of the board is interested, is not voidable in the absence of actual fraud.</p> <p>6. The prosecutors waited until after the plan of the sewerage board, including the.location of a disposal plant, had been submitted to and approved by the voters at a special election. Held, that they cannot be permitted to question- by certiorari a contract because it provides for the erection of a disposal plant at the place fixed, upon the ground that the town has not yet acquired title, when the law authorizes the acquisition of the title by condemnation.</p>

<p>Under section 126 of the Practice act (Pamph. L. 1903, p. 572), authorizing all such amendments as may be necessary for the purpose of determining in the existing action the real question in controversy between the parties, it is the question which the parties hoped and intended to try, not the question at issue upon the record, which determines the real question in controversy. Soholcen v. Gear, 3 Dutoher 273, followed.</p>

<p>On certiorari to Ocean Pleas.</p>

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

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

<p>Where a sheriff fails to summon a grand jury impartially as required by his oath of office, the court may, upon, motion, quash an indictment found by such grand jury.</p>

<p>1. Sections 10, 11 and of the Vice and Immorality act (3 Gen. Stat., p. 3710), enact that it shall be lawful for certain officers to seize any booth, tent, boat rar vessel, and all articles of traffic of any person—other than those pursuing their regular business in the usual places—who shall have such booth, &e., for the purpose of selling or disposing of such articles of traffic within three miles lof any place of religious worship during the times of holding any meeting for religious worship at such places. Such booths, tents, &c., and the articles of’ traffic are declared to be forfeited,’ and the officers are empowered to advertise and sell the same, and after deducting the expenses of such seizure and sale, to pay the residue of the proceeds to the overseer of the poor. Held. that the provision ’for confiscating the proceeds of the sale imposed a penalty upon the owner of the property by way of a forfeiture for violating the statute. Held, that the owner could not be thus penalized, or his property thus forfeited, without his being-first afforded a judicial hearing.</p> <p>2. The power of.the legislature to authorize the summary destruction of property, which it has impressed with the character of a nuisance, is recognized; and the cases of Wellar v. Snover, 13 Vroom 341; Shriver v. Newton, 16 Id. 469, and Newark v. Hunt, 21 Id. 308, are discussed and distinguished.</p> <p>3. A statute may authorize the sale of property used in violation of a police regulation in some instances.</p>

<p>A verdict against defendant cannot stand where the negligence charged is its failure to keep open certain culverts running under its canal when no charge was made that the culverts were insufficient in capacity, and where it appears that the defendant kept clear the ends iof said culverts for the passage of water into and out of the same and no other method of cleaning the culverts is apparent.</p>

<p>1. A complaint made by cburch members against another church member in accordance with the discipline of their church, if made believing the matters charged to be true, is qualifiedly privileged, and ion a trial of the complainants for libeling the member so charged, the burden is upon the latter to prove that the complaint was induced by express malice.</p> <p>2. The proof of express malice in this ease was insufficient to support the verdict against the defendants.</p> <p>8. A verdict of $8,000, if otherwise supportable, was excessive.</p>

<p>On demurrer to a writ of mandamus.</p>

On motion to have the record in this ease remitted to the Circuit Court to be reformed there, or to have the judgment opened and a writ of certiorari granted with a rule for diminution upon the Middlesex Circuit to return a true judgment, as such a judgment should have been returned in accordance with the facts appearing upon the trial.

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

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

On motion to strike out the return to an alternative writ of mandam-us.

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

<p>1. The Supreme Court will not review the decisions of the District Court upon questions of fact. It can only look to see if there is any legal evidence upon which the judgment might rest.</p> <p>2. On appeal from the District Court the Supreme Court need not review objections specified in the state of the case but not referred to upon the argument or in the brief presented on behalf of the appellant.</p>

<p>On certiorari.</p>

<p>If a landowner accumulates contaminating matter upon his own land and negligently permits it to percolate through the soil and pollute a neighbor’s well, he is liable for the injury.</p>

<p>1. The plaintiff’s horse and wagon, driven by plaintiff’s agent, were traveling along a highway at midnight. The wagon was struck by an. engine drawing a train of cars on defendant’s single-track-railroad, which crosses the highway at an angle. The testimony upon the part of the plaintiff justified the jury in finding as a fact that the night was' dark and cloudy; that the driver “could not see the track until within twenty feet of itthat when the horse was ten or fifteen feet from-the track the driver stopped, looked in both directions, and listened; that, hearing nothing and seeing nothing, he drove on, and continued to look and listen, and had nearly cleared the track when the defendant company’s engine hit the rear wheel of his wagon; that the engine had no' headlight or light of any kind; that no bell was rung, no whistle was blown, and no other signal was given. Held, that the questions of the negligence of the defendant and of the contributory negligence of the plaintiff were for the jury.</p> <p>2. When personal property, in the actual use of the owner, is injured by a trespasser, so that the owner is deprived of the use of it, the special damage necessarily and proximately attendant upon such privation may be proven to augment the damages beyond the diminution in value of the thing injured.</p>

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

<p>Tbe law does not ordinarily imply, in tbe secretary of a business corporation, the power, ex officio, to bind tbe company by bis act, though, of course, tbe corporation may become subsequently bound by ratification. He cannot, in tbe absence of special authorization, accept a surrender .of a lease given by tbe corporation to its tenant and bind tbe corporation to pay the wages of tbe employes of tbe lessee. He may, of course, have larger powers by special appointment from tbe directors, and evidence of such powers may be found in tbe circumstances of the particular case.</p>

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

<p>Under the Road act (Gen. Stat., p. 2803 et seq.), upon proceedings taken for the opening of a new road through private property for public use, the award to the landowner for land taken is due at the date fixed in the return of the surveyors for the opening of the road, and the right of such landowner to the award, when fixed by tbe mating and recording of such return either in the absence of a caveat, or by direction of the court after overruling a caveat, cannot be defeated by any subsequent proceedings to vacate such new road, and may be enforced by mandamus.</p>

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

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

<p>On certiorari.-</p>

<p>On appeal from tlie District Court of Orange.</p>

<p>1. In an action of certiorari bringing up proceedings before a justice of the peace, a certified transcript of the justice’s docket furnished to a party before allowance of the writ will not be presumed complete and correct as against another transcript sent up as part of the return, every intendment being in favor of the return as made.</p> <p>2. Such certified transcript furnished to the party will be accepted, however, for purposes of comparison with the return, as a true copy of the docket as it existed at the date of the certificate.</p> <p>3. If the transcript as returned shows matters additional to those stated in the first transcript, these will be presumed, in the absence of proof to the contrary, to have been added to the docket by way of amendment before the return. If, on the other hand, a comparison shows contradictory statements, the justice will be ruled to certify which of the two transcripts correctly states the facts.</p> <p>4. A return containing an incorrect copy of writs and pleadings need not be amended in that regard if the originals are annexed thereto and consequently are before the court.</p> <p>5. In forcible entry and detainer proceedings the statute (Gen. Stat., p. 1599, § 17) makes it “the duty of the justice to enter on his docket the admission of evidence objected to and the rejection of evidence offered.” Held, that the docket entries should indicate the character of such evidence in such a way as to enable the court of review to determine whether there was error in the rulings of the justice thereon.</p>

<p>Affidavit annexed to a plea in abatement, made by a person apparently having knowledge of the facts, and alleging that the “contents of the foregoing plea are true in substance and in fact”—Held, sufficient compliance with section 117 of the Practice act requiring dilatory pleas to be verified by affidavit proving the truth thereof.</p>

<p>1. Under section 9 of the Practice act of 1903, no action will lie in favor of an attorney or solicitor against his client for the recovery of any fees, charges or disbursements without service upon such client in the manner directed by said section of a copy of the taxed bill of such fees, charges and disbursements.</p> <p>2. As to the method of taxing such bill of fees, charges and disbursements, qucere.</p>

<p>1. The grantee of a judgment debtor has a standing in the court wherein the judgment is entered to move to set it aside as irregular, and thereby relieve the property conveyed of what would otherwise be a cloud upon the title.</p> <p>2. Such conveyance having been made before the beginning of the suit in which the judgment was entered, the grantee is not in laches for failing to attack the judgment until after the filing of a bill by the judgment creditor to set aside the deed as fraudulent.</p>

<p>A township committee will not be considered as having abused its discretion in fixing the salary of custodian of school funds at an amount considerably less than would have been paid on a percentage basis under a statute recently repealed.</p>

<p>On certiorari.</p>

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

<p>On habeas corpus.</p>

<p>On. certiorari.</p>

<p>A building contract provided for two payments, one of $200 when a part of the work was completed, and the other of $600 when the contract was completely executed. Before any payments were made a materialman served a stop notice' under the Mechanics’ Lien law. After the notice was served the materialman agreed that the first payment of $200 might be made to the contractor, leaving due on the contract, when completed, $600. The contractor abandoned the work at a time when, as admitted, it would require $250 to complete it. It appeared that after the payment of $200 the owner had made other payments, so that when the contract was abandoned by the contractor the owner had in hand but $300 out of which to complete the work. Meld, that all"payments made after the stop notice, except the amount consented to by the materialman, were made by the owner at his own risk, and that as such advance payments, and the money in hand, amounted to more than the sum due the materialman under his notice, and the cost of completion, he was entitled to recover.</p>

<p>The defendants purchased all the capital stock of a manufacturing company, and secured a part of the cost price by a mortgage on the corporate property. Held, that such mortgage was void, as it amounted to the distribution of a portion of the capital of the corporation, and that the vendor of the stock could surrender the mortgage and sue for so much of the price of the stock as the mortgage represented.</p>

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

<p>A landlord leased to his tenant a property for the term of one year “with the privilege to renew this lease upon the same terms and conditions for a further period of four years.” The defendants became “surety for the punctual payment of the rent in the above-written agreement mentioned to be paid * * * as therein specified, and if any default shall at any time be made therein we do hereby promise and agree to pay * * * the said rent or any arrears thereof.” 11eld, that the guarantor’s liability ceased at the expiration of the year, except as to rent unpaid for that period, and that they were not bound as sureties should the tenant exercise his option of renewal for a further term of four years.</p>

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

<p>The supplement to the District Court act (Pamph. L. 1905, p. 259), allowing a judge of that court to certify the transcript of the proceedings and testimony made by a stenographer at the trial of any cause as a state of the case, to be used on the hearing of an appeal or certiorari, limits the time within which such certification may be done and transcript filed to a period of fifteen days after judgment, and such period may not be extended by the District Court.</p>

<p>Under a law providing that a police board shall not increase the pay of the members of the department beyond the pay authorized by law, and where such pay has been fixed 'by law, the detailing by such board of an officer to perform the duties of an office which carries with it a higher salary, is not a promotion, and such acting officer will not be entitled to a:n increase of salary.</p>

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

<p>1. An action cannot be maintained by a landowner for the appropriation by another landowner of percolating underground water, but for the interception of which by the defendant on his land would have reached the plaintiff’s spring, where such appropriation excludes the abstraction of water by the defendant out of any surface stream, nr one flowing in a defined channel either upon or under the surface of the ground, the rule being that the absolute right to such percolating underground waters is in the owner of the fee of the land where they are found.</p> <p>2. In such case the maxim sio wtere two ut aliemom non Iwdas does not apply.</p>

<p>1. A resolution of a police board reducing in rank a member of the force and thereby incidentally reducing his salary, passed without notice to and without charges against such member and a trial, is of no validity under the Tenure of Office act. Pamph. L. 1899, p. 26.</p> <p>2. The fact that a. member of a police force was ineligible to pro- . motion cannot be urged as warranting his reduction from the rank to which he had been promoted.</p>

<p>On certiorari.</p>

<p>The by-laws of a corporation provided that an officer “shall be subject to removal by resolution of the board of directors, provided two-thirds of the whole board shall vote in favor thereof.” The board consisted of seven members. Held, that an affirmative vote of four for such removal, one member refusing to vote, was ineffective.</p>

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

<p>On demurrer to declaration. ■</p>

<p>On demurrer to alternative writ of mandamus.</p>

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

<p>On rule to show cause upon a verdict for plaintiff at the Hudson Circuit.</p>

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

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

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

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

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

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

<p>1. In many cases the question whether actions should be consolidated rests in the discretion of the court.</p> <p>2. But an order consolidating local actions, the effect of which is to change the venue in one of the actions from that county where the lands in question are situate, or the cause of action arose, to another county, is not within the discretion of the court, affects the substantial rights of the party, and is reviewable on error.</p> <p>3. In this state a writ of error is not confined to the review of proceedings in the course of the common law, but extends to decisions rendered in the exercise of the equitable powers of a court of law or in the course of its statutory or summary jurisdiction, provided they result in a final disposition of the matter and have not rested in the discretion of the court.</p> <p>4. A final judgment rendered in the course of the common law may be reversed if it result from an erroneous decision of an interlocutory matter not in the course of the common lia.w, provided such decision did not lie in discretion.</p> <p>5. An order consolidating local actions, which has the effect of changing the -venue in one of the actions from that county in which the parties are entitled to have the trial proceed to another county, is the proper subject of an assignment of error.</p> <p>6. The function of a bill of exceptions is.¡not confined to questions raised upon the trial of an action.</p> <p>7. A justice of the Supreme Court who acted for that court in granting an order for the consolidation of local actions, the result of which was to work a change of venue, and who allowed a bill of exceptions upon the making of the consolidation order, has, within the meaning of our oonstitution, article 6, section 2, paragraph 6, given ¡a judicial opinion in the cause in favor of the alleged error complained of, and is disqualified from sitting as a member of the Court of Errors and Appeals-upon the review of the resulting judgment, where the consolidation order is assigned for error.</p> <p>8. An order consolidating local actions, based upon a determination, as matter of fact, that the two actions theretofore depending were based upon a single cause'of action that was properly triable in the county to which the cause was assigned for trial as a result of the consolidation, there being no ground for contending that the finding of fact was unsupported by evidence—Held, not erroneous.</p> <p>9. Where there is a single injury by backwater affecting at the same time lands that lie in two counties, or where, by the construction of a dam in one county, water is backed upon lands lying in another county, the action is triable in either county.</p>

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

<p>The rendition of service by one person to another at the latter’s request, and under circumstances which negative the idea that it is gratuitous, entitles the person who renders the service to compensation therefor from the person at whose request it is rendered, notwithstanding the absence of an express promise on the part of the latter to pay for it. A promise to pay what the service is reasonably worth is implied from the request to render it.</p>

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

On error to the Supreme Court. The declaration contains counts in trespass quare clausum fregit, for false imprisonment, and for libel.

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

<p>By the act of 1900 (Pampti. L., p. 321), the board of health of Newark was empowered to resolve that it was necessary to establish a hospital, and directed to set forth in the resolution the estimated cost thereof, and certify the resolution to common council, and thereupon the common council was directed to appropriate a sum of money not exceeding $100,000, for furnishing building's for such hospital. Held, that the board of health could not bind the city to pay for plans and specifications for a building which would cost $200,000, which plans could be of no use in estimating the cost of a building which would cost $100,000, or less.</p>

<p>1. The general principle governing the relation of the street railway to the traveling public is that their respective rights in the public highway must be exercised by each of them, with due regard to the rights of the other, in a reasonable and duly careful manner.</p> <p>2. If the evidence submitted to the jury will sustain the inference that the motorman of the defendant company’s trolley car, as he approached the crossing, did not have his car under proper control, in view of the conditions within his observation, the question whether the collision could have been avoided by the exercise of' reasonable care on the part of the motorman in the operation of his car is one of fact for the jury.</p> <p>3. If from the testimony the jury may legitimately find that when the plaintiff started to drive around the corner into the street near or on the trolley tracks there laid, it was apparently safe for him to do so under the conditions within his observation, one of which was .a trolley car running slowly and sufficiently distant to be checked—or, if need be, stopped before it 'should reach him—the question of the plaintiff’s contributory negligence is for the jury.</p>

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

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

<p>1. A writ -of scire facias on a recognizance is considered as process and declaration.</p> <p>2. When a defendant pleads to a writ of scire facias he thereby waives any right to have a declaration.</p> <p>3. Non est factum is not a good plea to a scire facias on a recognizance under Pamph. L. 1900, p. 309.</p> <p>4. Where a recognizance is conditioned for appearance in the Court io-f Quarter Sessions, and a writ of scire facias issues out of the Circuit Court under Pamph. L. 1900, p. 309, it is not required that the writ should show a forfeiture of the recognizance and a certification thereof to the Circuit Court.</p> <p>5. A recognizance, being a debt of record, is to be proved by the record.</p>

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

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

<p>1. An agreement, executed December 26th, 1901, was entered into between the railroad companies and the city of Newark, providing for the elevation ,and depression of their railroads, over and under certain streets and avenues within the city in order to. avoid the danger’s to life • and property incident to street grade crossings. For its share of the cost of such changes the city agreed to pay, upon the completion of the work, to the companies, certain sums •of money. 3eld, that the agreement was intra vires of the municipality under the act of the legislature passed and approved March 20th, 1901. Pamph. L., p. 116.</p> <p>2. The title of the act sufficiently expresses its object.</p> <p>3. The payment by the city of a recognized moral obligation assumed by it for services rendered .at its 'request is within the legislative power to authorize, and does not constitute a donation or appropriation of the public funds within the prohibition of either section 19 or section 20 of article 1 of .our state constitution.</p>

Oil error to the Passaic Circuit Court. The case was tried before Hon. Wilbur A. Heisley, circuit judge, and a juxy, and a judgment of nonsuit ordered.

<p>1. What is a reasonable time, when the facts are undisputed and different inferences cannot reasonably be drawn from the same facts, is one of those questions of fact which, because they are for the court and not for the jury, are sometimes, though inaccurately, called questions of law.</p> <p>2. The rule as to when the question of reasonable time is for the court, and when ,a question of fact for the jury, discussed.</p>

<p>Error will not lie to an order of the Supreme Court directing a mandamus to issue, unless the constitutionality of a statute is involved in the decision by the court.</p>

<p>On error to the Supreme Court, whose opinion is reported in 46 Vroom 181.</p>

<p>On error to the Supreme Court, whose opinion is reported in 46 Vroom 193.</p>

On error to the Supreme Court, whose opinon is expressed in thé following memorandum: Pee Cueiam. This is a conviction for keeping a disorderly house. On the trial, the ground upon which the disorderly character of the house was put, was that it was a place wherein whoring was habitually permitted. The first assignment is based upon an exception to the refusal of the trial judge to quash the indictment.

<p>On error to the Supreme Court, whose opinion is reported' in 46 Vroom 201.</p>

On error to the Supreme Court, whose opinion is expressed in the following memorandum: Pee Curiam. The plaintiff brought suit to recover damages for personal injuries sustained by him on November 6th, 1902, and resulting from an assault committed on him by the defendant Burns, while the latter was in the employ of the defendant, the Erie Bailroad Company. The plaintiff was about seven years of age at the time of the alleged assault.

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

<p>On error to the Supreme Court, whose opinion is reported in 46 Vroom 31.</p>

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

<p>1. Where children are supported in a home maintained with the earnings of the father, and the mother performs the ordinary household duties, including such care of the children as a mother usually takes, and the mother loses her life through the wrongful act of a third party, the statute (Pamph. L. 1848, p. 151; Gen. Stat., p. 1188, pi. 10) permits an action to be maintained by the administrator of the mother to recover for the benefit of the children the damages occasioned by the deprivation of the expectation of pecuniary advantage which would have ■ resulted by a continuance of the mother’s life.</p> <p>2. The statute (Pamph. L. 1848, p. 151; Gen. Stat., p. 1188, pi. 10) does not require the plaintiff to show that the next of kin would probably have received from the deceased contributions of money or of things purchased with money.</p>

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

<p>1. Query. Does a contract for the sale of an existing business, which contains a provision restraining the vendor from entering into a competing business not only within the .territory within which it is then being carried on, but also within territory into which both parties may reasonably anticipate the vendee will be able to, and will, in fact, extend it, impose an unreasonable restraint upon trade?</p> <p>2. If such a contract be valid it would seem that the question whether the area which it embraces is greater than is required for the full protection of the vendee, is ordinarily one for the determination of the jury rather than the court, when an action at law is brought for its breach.</p> <p>3. The vendor of a business, the principal part of which was carried on in Jersey City, covenanted with his vendee that he would not engage in a competing business “within five hundred miles from the city of Jersey City at any time within a period of twenty years.” Held, that although taken literally, this language does not include the territory of Jersey City within the protected area, nevertheless, by the true construction of the covenant, that territory is a part of the area from which the vendor has excluded himself, and that it should be read as binding the vendor not to engage in business “either in the city of Jersey City, or within five hundred miles from that city.” Held further, that the covenant, so read, describes a divisible area, and that, if the restraint</p> <p>' contracted for, so far as it embraces territory outside of Jersey City, is unreasonable, and, to that extent, invalid, still, in respect to Jersey City, it was clearly necessary for the protection of the business as it existed at the time of the sale, and, to that extent, is capable of enforcement.</p>

<p>1. In an action to recover for the wrongful death of a deceased the plaintiff must do more than show the possible responsibility of the defendant therefor. In the absence of direct evidence the law requires that the existence of such circumstances must be shown as will justify the inference that the death resulted from the neglect of a duty which the defendant owed to the decedent, and exclude the idea that it was due to ia cause for which the defendant was not responsible.</p> <p>2. No liability rests upon the master for the death of a servant when caused solely by the negligence of a fellow-servant.</p> <p>3. When the death of a servant results from an accident which has been caused to some extent by his own negligence, the master is not responsible even though his negligence also has been a contributing cause to the accident.</p>

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

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

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

<p>One of two grantees of a common grantor may assert as against the other a title different from or paramount to that derived from the common grantor.</p>

<p>1. Plaintiff’s intestate was killed by the fall of a platform composed of planks laid loose across the structural iron bracing inside of a stand-pipe that was in course of erection by the defendant’s servants. The fall of the platform was due to the tearing asunder of one of these iron braces in the attempt to force a lug attached to its distal end into contact with the inner wall of the standpipe, where it was to be permanently riveted. The occasion that led to this attempt and to the accident that ensued arose from the faulty workmanship .of those engaged in erecting the standpipe, which permitted it to become elliptical in form, and from the misuse of the appliances that had been furnished by the master to strengthen the stand-pipe and secure its cylindrical shape. Held, that a master who furnishes his servants with a proper scheme of construction, proper materials and proper appliances is not liable to them for the results of an accident due solely to improper workmanship and to a misuse of the appliances hé has furnished.</p> <p>2. Negligence in its essence is always concrete, hence its proof must always rest upon testimony that tends to the establishment of concrete acts, either óf omission or of commission; there is no such thing as negligence at large.</p>

<p>Stock in a New Jersey corporation belonging to a testator domiciled in England is not subject to the inheritance tax imposed by the act of May 15th, 1894. Gen. Stat., p. 8339.</p>

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

<p>1. The act of 1799 (Gen. Stat., p. 1469), empowered the board of chosen freeholders to fix the rates to be taken at the several ferries within their several counties. The board of chosen freeholders of Hudson county in 1905, by resolution, fixed the rates to be charged at certain ferries in I-Iudson county for the transportation of foot passengers from Hudson county to New York. These ferries were distinct corporations, but were leased to and operated by a railroad company. Held, that the validity of the resolution fixing rates of ferriage is settled in.this court by its decision in Chosen Freeholders of Hudson County v. State, 4 Zab. 718.</p> <p>2. The line of later cases decided by the federal Supreme Court ending with the case of St. Clair County v. Interstade Sand and Car Transfer Co., 192 U. S. 454, has not definitely decided that a state cannot fix rates for ferriage from itself to another state; and, therefore, it cannot be regarded as finally decided in the federal court that the decision in 4 Zab. 718 is in conflict with, and is therefore superseded by, the federal decisions.</p> <p>3. The rates fixed by the resolution under review apply only to the passage of foot passengers from Hudson county over technical ferries; and the resolution does not include a fixing of rates chargeable by a railroad company for a passage by a railroad passenger over its road and over ferries, which, under the act of 1903 {Pamph. L., p. 656), is operating a ferry as an appendage or extension of its road.</p> <p>4. The Interstate Commerce act of 1887 does not strip a state of any power to fix rates of ferriage which it theretofore possessed.</p> <p>5. The treaty between New York and New Jersey, by which New York has exclusive jurisdiction over the waters of the Hudson river, does not affect the question of power involved in this case.</p>

<p>The plaintiff, who was employed by the defendant at a stated salary, testified that he was induced to.decline a higher salary offered by another railroad, and to remain in the service of the defendant, by a promise made by its president that if he remained until the road was sold, he should have two per. cent, of its bonds and $25,000 worth of its stock. The defendant owned no stock or bonds at the time. This promise never received the assent of the executive committee nor of the board of directors, but instead, ’ a modified proposition wad made bo the plaintiff by some of the directors, which he refused to accept. The road was thereafter sold, and thereby the plaintiff’s services ended. His salary under his old contract was paid. In an action against the railroad company for breach of a contract to deliver the bonds and stock— Held, (1) that the president had no authority as such to make the alleged promise, and in the absence of any ratification of it by the directors it did not bind the defending company. Held, (2) that there could be no recovery on a quantum meruit because the old contract remained in force, not having been rescinded by a subsequent agreement.</p>

<p>1. A declaration averring that defendant did create a place of danger by expelling boiling hot water through the conduit pipe of a city into an open space where the inhabitants of such city have been accustomed to travel, and that the plaintiff, an infant, there traveling, fell into an open ditch, filled with defendant’s boiling water, fails to exhibit a cause of action.</p> <p>2. The inference, from the language of the pleading, is that the defendant has the right to discharge its waste water into the city conduit, and that the discharge of defendant’s hot water into the pipe was not a negligent act.</p>

<p>1. Where property was conveyed by a deed containing a covenant against encumbrances—a mortgage ‘ then existing upon the property—a right of action arose at once for breach of the covenant; and although before such an action was brought the mortgage may- have been paid by the mortgagor, or a presumption -of payment may have arisen from lapse of time, yet in an action for breach of covenant the covenantee is entitled to recover at least nominal damages.</p> <p>2. In an action for breach of a covenant against encumbrances, the defendant pleaded that he had not broken the covenant within twenty years. There is no statute of limitations barring such an action if not brought within twenty years after breach of covenant. Held, that defendant could not, under this plea, defeat the covenantee’s recovery by setting up as a defence that the lapse of time raised ia • presumption that- the cause of action had been satisfied.</p>

<p>1. Where a statute requires competitive bidding in awarding a contract for public work, each bidder should be compelled to conform to every substantial condition imposed upon other bidders in presenting his proposals, so that all bidders shall be put upon the same footing.</p> <p>2. The award of -a contract to a bidder who fails to give a description of the properties of the asphalt to be used and the proportion of the several ingredients in the wearing surface of a street pavement, as required by ..the conditions upon which bidders -are to present proposals—Held, illegal.</p>

<p>On error to the Supreme Court, whose opinion is reported in 46 Vroom 25.</p>

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

<p>1. In an action to recover damages for the destruction of property by fire, a witness who was the plaintiff’s manager may refresh his present and existing recollection by reference to a schedule made by him. shortly after the fire, -of articles which he then knew to have been destroyed.</p> <p>2. A witness qualified to testify as to the market value of glass bottles may, while under examination, consult trade price lists and discount sheets, which he knows to have been promulgated by the authority of the manufacturers and universally recognized by the trade, for the purpose of refreshing his memory as to the market value of bottles therein listed, where the variety of bottles is too great to be carried in memory.</p> <p>3. The admission of evidence of extraneous circumstances not material to the issue which bear remotely on the issues involved in the cause, is within the discretion of the trial judge, and its ■admission or rejection is no ground for reversal on error.</p> <p>4. When a question is asked, the answer to which may or may not be pertinent to the trial, the overruling of such question will not constitute reversible error unless the party objecting to the exclusion of the evidence shows its pertinency.</p> <p>5. A trial judge cannot direct a verdict when the testimony that the parties have been permitted to introduce leaves any fact material to the issue in substantial dispute.</p> <p>6. 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>1. A railroad company is liable for an injury resulting to a traveler from its failure to use reasonable care to keep the passageway over its tracks, maintained by it at a street intersection, in proper repair.</p> <p>2. A trial judge cannot direct >a verdict when the testimony that the parties have been permitted to introduce leaves any fact, material to the issue, in substantial dispute.</p>

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

<p>The plaintiff was a passenger on a trolley car from which it was necessary that he should transfer to 'another belonging to the same carrier, in order to reach his destination. He alighted from the first car at the usual point of transfer and immediately started to pass in the rear of the car, and in doing so fell into the rear fender, which was down, and was injured. It appeared that the usual custom iof the company was to have the rear fender fastened up. Held, that while in passing from one car to 'another, the plaintiff continued to be a passenger of the defendant company, no inference of negligence on the part .of the defendant could be drawn from the fact that the car was being run with the rear fender down.</p>

<p>1. Whether a contract has been performed is a jury question if there is evidence from which it might properly infer that the plaintiff had performed its agreement in substantial compliance with its terms.</p> <p>2. The qualification of an expert witness rests largely within the discretion of the trial court, and its finding will not be reviewed on writ of error if there be legal evidence before the trial court to justify its finding-.</p> <p>3. The defendant introduced in evidence a letter written by it to the plaintiff, complaining that a chimney erected by plaintiff for defendant was defective, and the plaintiff replied, by letter, that it was willing to repair any defects in the chimney which might be pointed out. To this no reply was made, nor opportunity afforded the plaintiff to make any repairs, but the defendant proceeded to demolish the chimney, although the contract between the parties required the plaintiff to repair, free of charge, during a period of five years, any defects. Held, that plaintiff’s letter in reply was not incompetent, immaterial or irrelevant on the question of the substantial performance of its contract by the . plaintiff.</p> <p>4. The plaintiff offered a letter, written by it, which was admitted in evidence over defendant’s objection; at the close of the case plaintiff moved for permission to withdraw the letter, which was granted. Held, that the defendant suffered no injury from this proceeding, for if the letter was properly admitted and the defendant desired that it remain in evidence, it had the right to offer it on its own behalf, which it neglected to do.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 45 Vroom, 413.</p>

<p>A railroad company contracted with a construction company for the building of a tunnel. In order to carry out the contract it was necessary that the construction company bring upen the property of the railroad company machinery necessary for that purpose. The contract between the parties provided, in substance, that the construction company might occupy a portion of the land for the purpose of carrying on the work, the area available for such use to be pointed out by the engineer of the railroad company. Held, that the occupation by the construction company was that of a licensee, and vested in it no estate in the land to which a mechanics’ lien would attach.</p>

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

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

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

<p>1. An agreement, after reciting that certain premises had been thereby let and rented by one of the parties thereto to the other party as a place of amusement as thereinafter set forth, provided that the second party, the plaintiff, should install therein personal property, and pay to the first party, the defendant, “for rent 50 per cent, of the net receipts derived therefrom,” and that the plaintiff thereby granted to the defendant the privilege of a lunch counter and soda fountain in the front part of the building upon payment to the plaintiff of twenty per cent, of the gross receipts derived from the sale of tickets at the entrance to the lunch counter from the rink. Held, that such agreement created the relation of landlord and tenant between the parties as to such premises.</p> <p>2. Where, under the above agreement which provided for weekly settlements between the parties, the plaintiff had been permitted to receive all the moneys and keep all the accounts, and had kept books of account in which he had entered all the receipts and all the disbursements of the business and had from such books made the weekly settlements, which were also entered therein—Held, in an action of tort, for willfully refusing to permit the plaintiff to occupy the premises under the agreement and for tearing down and breaking up the said personal property and throwing the same out of the building- before the term had expired, thereby destroying' the business, that it was error toi refuse to admit in evidence the said boohs of account to show the rental of the premises, and the extent of the business.</p> <p>3. The declaration having averred loss on account of the destruction of the business by the defendant’s wrongful act, it was proper to admit evidence -as to the extent and general profits of such business.</p>

<p>In an agreement of apprenticeship binding the apprentice to serve as such for twelve hundred actual working days, which throughout the indenture were referred to as a term—Held, that the above phrase should be construed to mean that the service shall continue through a term or period within which there are twelve hundred days, exclusive of Sundays and holidays, and not to mean twelve hundred days upon which the apprentice should actually perform work for the master.</p>

<p>1. To rebut the presumption of liability of a master for damage consequent upon the negligent act of a servant, done within the apparent scope of the latter’s employment, it must be shown either that the act was purely wanton, or that it was not performed in furtherance of any duty within the actual scope of the servant’s authority.</p> <p>2. Where the plaintiff, who was cultivating her voice as a singer, claimed damages because of her inability to use her voice as formerly, becoming at times husky, hoarse and unable to reach high notes, the court charged that if those conditions existed, and were attributable to defendant’s negligent act, the plaintiff was entitled to compensation. Held, no error.</p>

<p>When it cannot be said as matter of law that an intermediate object or agency in the chain of causation was the immediate or proximate cause of the injury complained of, it becomes a question for the jury under the circumstances to determine whether defendant’s act, if wrongful, was the proximate cause of the injury.</p>

<p>For the purpose of constructing • its right of way across the .defendant’s premises, which consisted of a going oil refining plant, it became necessary to remove parts of the plant. At the trial of the appeal before the Circuit Court the parties proceeded upon the theory that the defendant was entitled to a readjustment and reconstruction of the plant under the new conditions. Held, it was for the jury, under instructions from the court upon the testimony, to determine what items of reconstruction were necessary to give to defendant an equivalent for what, it had lost by the taking, and also the fair cost of such reconstruction.</p>

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

On error to the Middlesex Circuit Court. Condemnation proceedings taken by the New Jersey Short Line Eailróad Company to acquire rights of way over lands. On appeal by the landqwners to the Middlesex Circuit Court from the awards of the commissioners, judgments were entered in'the Circuit Court upon verdicts in their favor, and the railroad company brings error.

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

<p>1. In an action against the owner of an automobile for the death of plaintiff’s intestate while riding a bicycle, the court charged that, “if the accident would not have happened, excepting by reason of the joint negligence of the chauffeur and the bicyclist, the plaintiff cannot recover,” and “it is for you to say whether, under the circumstances, you think this young man was guilty of negligence. If he was, and that negligence contributed to the accident, there can be no recovery.” 3eld, that the court properly refused to charge that “for the negligence of the deceased to defeat the plaintiff’s, right to recover, his negligence must have contributed to produce the injury,” and “there must be a causal connection between the negligence of the plaintiff and the injury complained of, and it must be such that but for the plaintiff’s' negligence concurring with that of the defendant the injury would not have happened,” and “conceding the proof established the fact that the bicycle did run towards the automobile, still proximity and the speed at which the automobile was going, and all other circumstances surrounding his act. in running towards the automobile, are factors entering into the question of whether or not he was negligent,” as the instructions requested were embodied in the charge.</p> <p>2. In such an action, an instruction that, “if notwithstanding the negligence of the plaintiff, the injury would still have occurred, his right of recovery is not defeated,” was properly refused, in that it fails entirely to consider that the defendant might not have been negligent, and the accident might have been wholly unavoidable.</p> <p>3. The trial judge has an undoubted right to make such comments and expression upon the testimony as he thinks necessary for the direction of the jury, so long as he leaves the jury to determine the facts and draw their conclusion therefrom.</p> <p>4. The questions submitted by the trial court to the jury should be within the issues raised by the pleadings.</p>

. On error to the Supreme Court. This cause was tried at the Union Circuit before Judge Vail and a jury, and a verdict rendered for the defendant.

<p>On error to the Supreme Court, whose opinion is reported in 46 Yroom 365.</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 46 Vroom 177.</p>

<p>Our error to the Supreme Court, whose opinion is reported ante p. 87.</p>

<p>On error to the Supreme Court, whose opiilion is reported in 46 Yroom 451.</p>

<p>On error to the Supreme Court, whose opinion is reported in 46 Vroom 365.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 45 Yroom 252.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 46 Vroom 410.</p>

<p>• On error to the- Supreme Court, whose opinion is reported ante p.- 65.</p>

<p>On error to the Supreme Court, whose opinion is reported ante p. 144.</p>

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

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

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

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