Volume 78 — New Jersey Law Reports

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

<p>3. Chapters 45, 46 and 62 of the laws of 1907 creating' respectively a board of fire and police commissioners, a board of finance, and a board of public works in cities having a population of not less than one hundred thousand and not more than two hundred thousand inhabitants are. each of them, general, not special, laws.</p> <p>2. A statute which prohibits the appointment to a municipal board of more than a certain proportion of members of the same political party does not prescribé political' qualifications for the holding of public office:</p>

<p>1. In an action upon a judgment recovered in a sister state the following facts appeared: (1) By a statute of that state the sheriff was required to make personal service of original process when that could be made by a reasonable effort, and a substituted service was permitted only when personal service could not be so made. (2) That the return to the writ showed a substituted service, but did not disclose that personal service could not have been-made with reasonable effort. (3) That the return of the sheriff was not, under the law of that state, conclusive, but that the truth thereof could be inquired into by the court. (4) That the judgment record contained the following recital: “This case coming on to be heard the court finds that there was due and legal personal service upon the defendant.”</p> <p>2. Assuming that the return to the writ did not show that the court had obtained jurisdiction of the person of the defendant, because it contained no recital of a reasonable effort on the part of the sheriff to make personal service — Held, that the jurisdiction of the court did not depend upon the exhibition in the sheriff’s return of a compliance -with the statute, but upon the fact of such compliance. Held, further, that the recited statement in the judgment showed an investigation by the court into the method of service, and an adjudication by it that the service was in fact a personal and not a substituted one, and so, in compliance with the statutory requirement.</p>

<p>1. The twentieth section of the Evidence act does not prohibit the state, on the trial of an indictment for forgery, from offering in evidence, for the purpose of comparison with the alleged forged instrument, a genuine writing, made by. the person whose signature is alleged to have been forged, after the question of the genuineness of the writing in controversy arose.</p> <p>2. In passing upon the correctness of the ruling of a trial court admitting evidence over objection, only those grounds of objection which were laid before the trial court will be considered by a court of review.</p> <p>3. On the trial of an indictment for forgery a paper writing of the defendant, made subsequent to the alleged forged instrument, is admissible for the purpose of comparison with it.</p>

<p>1. As a general rule, a landowner who, in the development of his property, and solely for the purpose of obtaining a more beneficial user therefrom, installs upon it an appliance which will be dangerous to people coming in contact therewith, is under no obligation to trespassers to so guard it that they shall not be injured thereby, and is not liable to them for injuries received therefrom; but where he installs the appliance for the purpose of inflicting injury upon the persons or property of those who unlawfully come upon his land, he is answ'erable when harm is inflicted upon them by such appliance.</p> <p>2. Quare. Does this rule apply to the case of a landowmer who permits an unguarded excavation to be upon his land, so near to a public highway as to endanger those who pass along the highway in the exercise of ordinary caution, and exempt him from liability to a person who, without negligence, unintentionally leaves the highway and falls into the excavation?</p>

On certiorari. The prosecutor, who was elected and commissioned to the office of brigadier-general of the first brigade, was relieved from his said command and placed on the retired list by an executive order made by John Eranklin Eort, governor, and signed by Erederick Gilkyson, acting adjutant-general, known as General Order No. 10, which general'order was pursuant to the provisions of chapter 3, laws of 1909, which reads as follows': “A supplement to an act entitled cAn…

<p>On certiorari.</p> <p>This writ brings np for review an ordinance of the city of Trenton authorizing the construction of a lateral sewer in Tyrell avenue, in that city.</p> <p>The proceedings of the common council and of the board of health were taken under the authority of an act entitled “An act to authorize cities to construct sewers and drains and to provide for the payment of the cost thereof,” approved March 8th, 1882 (Gen. Stat., p. 605), and the supplements thereto.</p> <p>The stipulated state of facts shows that at a meeting of the common council held on tho»16th day of August, 1904, a petition wras received requesting the construction of said sewer and a notice of intention published in conformity with section 2 of the act above referred to; that within ten days from the date of the notice of the intention the owners of more than one-half of the lineal frontage of lands along said sewer presented their objections in writing, and that all further proceedings ceased.</p> <p>The stipulation further shows that no further action was taken in respect to said improvement for more than two years, when another petition was presented to the common council again requesting a construction of said sewer. This petition was received on the 4th day of September, 1906, and notice of intention was again given in conformity with section 2 of the act of 1882.</p> <p>It is further shown that the owners of more than one-half of land along said street again presented their written objections within the time required by law.</p> <p>No further action was taken by the municipal authorities of the city of Trenton until the 3d day of August, 1908, at which time the board of health of the city of Trenton, assuming to act under the authority of chapter 108 of the laws of 1902, adopted a resolution declaring that, in the opinion of said board, such sewer should be constructed, “the same being necessary for the preservation of the public health.”</p> <p>This resolution of the board of health was adopted by the affirmative votes of six of the seven members of the board, one member being absent.</p> <p>It further appears that a copy of the resolution adopted by the board was presented to the common council at a meeting of that body on the 4th day of August, 1908.</p> <p>The act of April 3d, 1902, being chapter 108, reads as follows : “That in case the persons owning or representing more than a majority of the lineal frontage along the line of the street through which it is proposed to construct a sewer or drain object to the construction of the same in the manner prescribed in said act or supplements, the board having control of the streets of any (such) city may, notwithstanding such objections, proceed and construct said sewer under the act to which this is a supplement; provided, that the board of public health of any city in which it is proposed to- construct said sewer or drain shall certify, in writing, to said board having control of the streets of any (such) city, that a resolution has been unanimously adopted by said board of health, that it is the opinion of said board that the construction of said proposed sewer or- drain is necessary to preserve the public health.”</p> <p>This act is a supplement to the act of March 8th, 1882, the second section of which provides, among other things, that when- “persons owning or representing more than one-half of the lineal frontage of land along any street, through which it is proposed to construct any lateral sewer or drain, shall present their objections in writing, then such proceedings shall cease.”</p> <p>On the 20th day of October, 1908, the persons desiring the construction- of this sewer presented another petition to the common council requesting its construction, and on that date another notice of the intention of the common council to make the improvement was ordered to be published.</p> <p>■In response to the notice last above mentioned, the owners of more than one-half of the lineal frontage of land along said sewer again filed their written objections with the city clerk within the time prescribed by law.</p> <p>At a meeting of tlie board of health, held on the 14th day of November, 1908, another resolution was adopted declaring that, in the opinion of the board, such sewer should he constructed, the same being .necessary for the preservation of the public health. This resolution was adopted by the affirmative vote of six of the members of the board, one member again being absent. A copy of the resolution last above referred to wras presented to the common council at a meeting held on the 17th day of September, 1908, whereupon the common council assumed jurisdiction and passed the ordinance authorizing the construction of said sewer, on the loth day of December, 1908.</p> <p>Among the reasons filed by the prosecutor for setting aside this ordinance are the following: Because neither the resolution passed by the hoard of health on tlie third day of August, 1908, nor the resolution passed November 14th, 1908, was unanimously adopted by said hoard, and because the board of health of the city of Trenton, in adjudging the necessity of the proposed improvement was acting judicially and the prosecutor was entitled to notice and an opportunity to appear before the said board and he heard in respect thereto, which notice was not given, nor was such opportunity afforded.</p>

<p>A mechanic or day laborer employed by the superintendent of buildings of the city of Newark to assist in the administration of the police power under section I'll of the revised ordinances of that city may, for assistance so rendered, maintain an action against the city without regard to whether or not the superintendent had followed the procedure laid down in other sections for the protection of property owners and for the determination of their rights as between them and the city.</p>

On certiorari. This writ, which is directed to the judge of the Circuit Court of Hudson county, brings up an order of said judge confirming report Fo. 113 of the commissioners of adjustment of Jersey City.

On certiorari. These writs of certiorari bring up for review the action of the state board of assessors in placing a valuation upon the terminal lands of the prosecutors in Jersey City and Hoboken under the supplement to the act for the taxation of railroad and canal property, approved March 4th, 1908. Pamph L., p. 15.

<p>1. A contract .by which one who had laid a cement sidewalk took in part payment the sand excavated in the course of the work, is not a contract in or concerning an interest in land within subdivision 4 of section 5 of the statute of frauds.</p> <p>2. Although a contract in term covers a period of five years, yet, if under its terms performance may be required of the promisor . within one year, an action is not barred by the statute of frauds if within such year the event upon which the duty of performance depended actually happened.</p> <p>3. A contractor who agreed that a sidewalk laid by him should stay in good condition for five years is liable to an action based upon a breach of such contract occurring within one year from the date; such agreement not being one “that is not to be performed within one year from the making thereof.” Subdivision 5 of section 5 of the Statute of Frauds.</p>

<p>While the general rule is that the payment of a less sum in satisfaction of a larger one is no satisfaction, still, where the debtor in addition to such payment does, at the request of his creditor, some substantial thing detrimental to his interests that he was not bound to do, upon the mutual understanding that it was an additional consideration for the creditor’s promise to accept the less for the larger sum, legal effect may be given to such compact of the parties if the debtor has duly performed his part thereof to his detriment. The abandonment by the debtor at the request of the creditor of appellate proceedings to reverse the judgment that constituted the debt is such an additional consideration.</p>

<p>1. The trial court may in its discretion allow the opening counsel to make a second address to the jury although no reply to his first address was made; when such second address has been made it is error to refuse to permit defendant’s counsel to reply to it.</p> <p>2. New York and Long Branch Railroad Co. v. Garrity, 34 Vroom 50, followed.</p>

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

<p>1. The charter of Millville required that all officers elected under the act should take an official oath before the common council of the city, and provided for a city marshal to be elected. Subsequently the charter was so amended that the city marshal was thereafter appointed by the mayor and common council. Held, that he was still required to take the oath as required by the original charter.</p> <p>2. Where a city officer is required to take his official oath before the common council, it is not enough for him to take it before the mayor alone.</p> <p>3. In a quo warranto brought by one claiming title in himself under section 4 of the Quo Warranto act, the court must determine the title of the relator as well as of the respondent when the former’s title is questioned by proper pleadings, and if neither relator nor respondent is entitled to the office, judgment must be entered to that effect.</p>

<p>On certiorari.</p>

<p>In a suit by the guardian of a lunatic to recover money paid by the lunatic upon a contract for the sale of land, the trial judge properly charged that knowledge of the insanity by the defendant must be proved, and that if the plaintiff was entitled to recover, interest should be allowed from the date of the payment, but commissions upon the sale paid by the defendant should not be charged against the plaintiff.</p>

<p>1. A municipal corporation cannot, without express legislative authority, release a private corporation from an obligation to pay license fees to the municipality.</p> <p>2. The failure for many years of a municipal corporation to collect license fees due from a private corporation does not warrant a presumption of a release when the municipal corporation is without express legislative authority to make a release.</p> <p>3. A traction company organized under the act of 1893 which has succeeded to the rights of a street railway company after the charter of the latter has expired, is nevertheless liable for the payment of license fees due the municipality from the street railway company.</p> <p>4. Where a street railway company continues after the expiration of its charter to exercise the same rights in the public streets that it had previously exercised, it remains liable to pay license fees under a previous contract with the municipality.</p>

<p>On certiorari.</p>

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

<p>Upon a sale of goods the vendor delivered to the vendee a memorandum of the sale, and retained a carbon copy. Held, that the'carbon copy was admissible as evidence as a duplicate original for the purpose of showing the nature and terms of the transaction.</p>

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

<p>The head keeper of the common jail of Hudson county holds his position under the sheriff, and not under the government of the county, and his position is not protected by the act of 1907 (Pamph. L., p. 37).</p> <p>This is a rule to show cause why a writ of mandamus should not be allowed commanding the sheriff of Hudson county and the board of chosen freeholders of that county to restore John M. Arbuckle to his position of head keeper of the Hudson county common jail.</p>

<p>On cerliorari to Cape May Common Pleas.</p>

<p>Where there is evidence to show that the statutory signal was not given by the defendant at a street which crossed its tracks at right angles, and the obstructions and surroundings were such as to be likely to confuse the vision of a person driving along such street toward the defendant’s tracks at the crossing point, the verdict of the jury will not be disturbed upon certiorari to a District Court. The driver’s negligence is a question for the jury.</p>

On certiorari bringing up a contract made on July 4th, 1908, by the township committee of the township of Wood-bridge, with W. E. Thompson, for the macadamizing of part of the road at Avenal in the said township', known as-Wood-bridge avenue. . - ■

<p>A vote of the majority of legal voters in a school district in accordance with subdivision 4 of section 86 of the School act of 1903 (Pamph. L. 1904, p. 32) authorizing the board of education to purchase school grounds, does not empower the board of education to condemn grounds for school purposes.</p>

<p>On certiorari.</p>

<p>A surety upon a bond deposited in escrow, which was to be delivered to the obligee only upon the occurrence of a certain condition, knew of its delivery to the obligee by the depositary without such condition having occurred, but made no objection to such delivery, either to the obligee or to the depositary. He then accepted from the depositary a deed for certain real property, which had also been deposited in escrow to indemnify the surety in case of liability upon the bond, and improved the property and paid taxes assessed upon it, remaining silent respecting the delivery of the bond for fourteen months, when suit was brought upon it. Meantime so much of the assets of the debtor had thus been turned over to the surety, the obligee being in a position to rely upon the bond and refraining from resorting to that property or any other belonging to the principal. Held, whether the ground be styled estoppel in pais or ratification of authority, in view of this conduct the surety had ratified the act of the depositary in delivering the bond to the obligee.</p>

On action by the Mitchell Fertilizer Company against J. Ogden Armonr. There was a judgment for plaintiff, and it is ruled to show cause why a new trial should not be granted. Judgment affirmed.

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

On certiorari. This writ brings up an assessment against the prosecutor for benefits resulting from the construction of a road partly through his land, in the borough of Haworth, Bergen countv, from Park street westerly to the Elatts road.

<p>1. Where it is necessary for a party, in order to maintain the issue, to prove several facts, the court should admit any legitimate evidence tending to establish either fact.</p> <p>2. “Where the plaintiff testified to transactions with one Runyon as with the agent of the defendant, it was error to exclude cross-examination tending to show that he knew he was dealing with Runyon as with a principal or with him as the agent of another than the defendant.</p>

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

<p>1. Under section 5 of the- Certiorari act (Pamph. L. 1903, p. 344), after the plaintiff’s reasons for reversal are filed, either party may bring the action on for argument before any justice of the Supreme Court at chambers, by giving five days’ notice within fifteen days after the reasons are filed.</p> <p>2. The act approved April 26th, 1894 (Pamph. L., p. 146), conferring power's upon cities located on or near the ocean to lay out public parks is constitutional.</p> <p>3. Under the act approved April 8d, 1902 (Pamph. L., p. 284), which was adopted by Atlantic City as its charter, that city lias power by ordinance to issue its corporate bonds in amounts not exceeding the limit prescribed in the act, for the purpose of providing moneys with which to lay out and open, and to purchase and condemn land for and within the limits of, a public park along the ocean front, established by ordinance pursuant to the authority conferred by the act approved April 26th, 1894. Pamph. L., p. 146.</p> <p>4. In an ordinance the authorization of bonds not to exceed a certain amount is equivalent, in legal effect, to fixing the amount of such bonds at such sum.'</p>

<p>1. It is the right of a landowner specially affected by a public improvement to be informed, either by actual or constructive notice, of the time and plape appointed for the meeting- of council to consider their proposed action.</p> <p>2. Where .an ordinance is void for want of jurisdiction in council to pass it, by reason of absence of notice to persons affected, the error is fundamental, and cannot be cured by subsequent legislation.</p> <p>3. A person affected by the passage of an illegal ordinance is not prejudiced in his rights by not attempting- to set it aside until after an assessment is made under it, where it appears that he was led to bel'ieve that the general scheme of improvement was to be made at public expense and that no assessment would be levied against him.</p>

<p>1. By section 4 of the act of June 2d, 1905 (Pamph. X., p. 494), a • judge of the District Court is empowered to try causes without a jury and give judgment, unless a jury be demanded at least one day before the return day Of the summons.</p> <p>2. It is only when the minds *of parties to a lease concur in • the common intent of relinquishing the relation of landlord and tenant, and execute that intent by acts tantamount to a stipulation to put an end thereto, that a surrender by act and operation of law arises.</p> <p>S. Facts found by the District Court will be xiresumed to rest on comxietent proof when nothing appears to the contrary.</p>

<p>Plaintiff’s intestate, sitting in a carriage, drove in daylight upon a railroad crossing and was killed by a passing train. At a distance of twenty-four feet from the nearest rail of the southbound track and thirty-eight feet from the nearest rail of the northbound track on which the train was moving, and from that point forward, he would have had, if he had looked, an unobstructed view for more than a mile of the track in the direction from which the train was coming. There was nothing present to interfere with the free use of vision or hearing, nor to distract his attention. Held, that plaintiff’s intestate was guilty of contributory negligence.</p>

<p>On appeal from the Eirst District Court of J ersey City.</p>

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

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

<p>1. A verdict the result of conflicting evidence will not be set aside unless clearly against the weight of the evidence. '</p> <p>2. A court will not set aside a verdict as excessive unless it is perfectly plain that it is so.</p>

<p>Under tlie provision oí tlie act (Pumph. L. 1906, p. G6-1) enabling cities other than cities of the first class to construct, purchase or otherwise acquire water works, the city council of a city cannot adopt the provisions of the act by submitting the question of its adoption to the voter's coupled with a proposition that city council shall cause to be issued bonds to an amount not to exceed S50 000, and so coupled that the voters could not vote for or against one proposition without voting for or against the other.</p>

<p>The statutory limitation upon the allowance of the writ of .certiorari {Pamph. L. 1907, p. 109) cannot be enforced for the protection ' of an assessment made upon a landowner which the legislature could not constitutionally authorize.</p>

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

<p>1. A compromise of a disputed claim made in good faith furnishes a good consideration to support a contract, even though it should appear that such claim was in fact wholly unfounded.</p> <p>2. The court will not inquire into the adequacy or inadequacy of the consideration of a compromise fairly and deliberately made.</p> <p>3. The admission of evidence which bears remotely on the issue involved in a cause is within the discretion of the trial judge, and its admission is no ground for reversal on error.</p>

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

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

<p>On certiorari.</p>

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

On rule to show cause. The four above-entitled suits grow out of a collision between an automobile owned and driven by deceased, Christoplier Horandt, and a railroad train of the defendant company at Keyport, Monmouth county, on Sunday, July 7th, 1907. Christopher Horandt was killed and the automobile demolished; his wife, Carrie S. Horandt, his daughter Euth and nephew Eeinhardt Bender, who were riding in the automobile, were all injured.

On demurrer to pleas. The declaration contains three counts.

<p>Tlie declaration set up that the defendant, who was the secretary c of the state council of a fraternal order, into which council plaintiff was entitled to admission, published the following oral statement concerning the plaintiff: “If they (meaning plaintiff) have the pass, they got it in some other way; they did not get it through me. There is a man by the name of S. who gets a copy of everything I send through the mails, but I don’t know how they (meaning plaintiff and said S.) get it,” meaning and insinuating that plaintiff had taken said password from the mails. Hold, that the statement in question was not slanderous per so, either in direct language or by innuendo.</p>

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

<p>Laud acquired by Stevens Institute in Hoboken subsequent to the erection of its academic buildings, separated therefrom by a street, and used mainly, if not entirely, for athletic purposes, is not land whereon the buildings are situated, necessary to the fair use and enjoyment thereof, so as to be entitled to exemption under section 3, placitum 4, of the Tax act of 1903. Pamph. L., p. 391.</p>

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

<p>On certiorari to Cumberland Oounty Quarter Sessions.</p>

<p>On certiorari to Justice Court.</p>

<p>The right to a renewal of a license to sell intoxicating liquors in cities of the second class upon the petition of an applicant, without the recommendation of freeholders, is confined to the person to whom the license was originally granted, and a transferee of such license for an unexpired term is not entitled to such renewal. In his case it is an application for a new license and he must furnish the certificate of the required number of freeholders.</p>

<p>1. An indictment for the violation of section 31 of the Crimes act (Pamph. L. 1898, p. 803) must set forth the particular acts which it is alleged constitutes a disregard of the statute, and an averment that the defendants, as members of the common council of a borough, voted to pay one G. B. the sum of $553.13 “for which no appropriation had been made,” is-not sufficient to charge the defendants with the statutory offence of voting for the “disbursement of public moneys in excess of the appropriation respectively to any such board.”</p> <p>2. In an indictment for incurring “obligations in excess of the appropriation and the limit of expenditure provided by law for the purposes respectively of any such board,” a crime is not sufficiently stated' by the averment that defendants voted to purchase land, nothing appearing to have been done to consummate a purchase.</p> <p>3. A charge that the defendants, as members of the common council of a borough, incurred an obligation “in excess of the appropriation” by giving a note in consideration of the conveyance of land, does not charge a violation of the statute. It should appear what appropriation or limit of expenditure has been exceeded.</p>

<p>The offices of under-sheriff and chosen freeholder are, under “An act concerning sheriffs” (Gen. Stat., p. 3110), incompatible, and the appointment and qualification to the office o-f under-sheriff of a person holding the office of chosen freeholder annuls his commission for the latter office.</p>

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

<p>Where defendant -wrongfully stopped a drain leading from the premises of the plaintiff past those of the defendant the measure of damage is not the cost of a new drain, but the damage sustained by the plaintiff in the enjoyment of his use of his property while the consequence of the wrongful act continue.</p>

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

<p>1. The fifty-third section of the Evidence act (Pamph. L. 1900, p. 3G2) and the aet amendatory thereof (Pamph. L. 1908, p. 277) apply as well to testimony taken by consent under the fifty-seventh section of the Evidence aet as to depositions taken under order of the, court.</p> <p>2. The power to order that the expense of depositions taken under the act concerning evidence be made a part of the taxed bill of costs of the prevailing party under amendment of April lltli, 1908 (Pamph. L., p. 277), is a discretionary power.</p> <p>3. Where an order discretionary in its character has been made by a single justice at chambers and it appears from the terms of such order that such justice did not treat the matter as discretionary, and therefore did not exercise his discretion, such order for that rea.-on will be reversed.</p>

<p>The revision cf the Practice act (Pamph. L. 1903, p. 537, § 50) regarding- the issuing- of a writ, of capias ad respondendum in tort actions by using in such amendment the very language used in the statute long on our books concerning- its issue in contract actions (Practice act 1908, § 57) will be construed in the same way that the provisions of the statute have been construed which relate to actions on contract.</p>

<p>1. An act concerning tlie appointment of commissioners of assessment of taxes in certain cities, passed April 3d, 1889 (Pamph. p. 152), being an act dealing with the structure, machinery or powers of municipal government, is constitutional under the authority of McCarthy v. Queen, 47 Vroom 144, affirmed by the Court of Errors and Appeals.</p> <p>2. The provision in said act that “no more than a bare majority of such board of assessors or officers shall at any time be members of one political party” does not render the act invalid.</p> <p>3. Tlie failure of a taxpayer to apply for a writ of certiorari to set aside an ordinance defining the duty and fixing the salary of commissioners of assessment of taxes for a period of over eleven years, during which such taxpayer was a resident of the municipality wherein the ordinance was in force, is gross laches and disentitles him to the writ.</p>

<p>1. A writ of certiorari directed to several officers or bodies having no joint or common duties, and who act independently of each other should not be allowed, but there should be separate writs running to each to bring up the particular matters with which each respectively is concerned.</p> <p>2. No binding custom can be said to exist which is grounded upon an unconstitutional foundation.</p> <p>3. Under an ordinance judicial in its character, and objectionable because passed without notice to those to be affected thereby, work was commenced and completed without objection on the part of the prosecutors although they knew of such work and of the publication of the ordinance and thereby, by its recitals, were informed that the proceeding was under a law authorizing an assessment for benefits against their property. The prosecutors waited until the public had entered into a contract pursuant to such ordinance and until the completion of the work under such contract. Held, that it must be deemed that the prosecutors had legal information that an assessment would be levied upon their property and it was then too late to object to the ordinance on the ground of lack of notice after the completion of the work.</p>

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

On certiorari. On demurrer to indictments. Held: and was held at Humber 6 Brunswick street, in the city of Jersey City, for the districts of the Fifth ward of the said city of Jersey City (said districts of said ward being then and there included in and forming a part of the Tenth congressional district of the said State of New Jersey) for the purpose of receiving the votes of the…

<p>The nineteenth section of the Practice act (Revision, 1903) does net extend to a case where a part of a chose in action is attempted to be assigned.</p>

<p>1. The mere declaration of a person that he is agent for a party to a suit is not evidential against such party.</p> <p>2. The admissions of an agent bind a principal only when within the scope of the agency or when they are authorized by the principal.</p>

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

<p>The resolution of the board of freeholders of Bergen county providing for the construction of a bridge over the Hackensack river, between certain streets in Hackensack and Ridgefield Park, is a valid exercise of the power conferred by chapters 16 and 64 of the laws of 1906.</p>

<p>The law requires diligence in the prosecution of a right involved in a public work; and therefore, one who for seven months ignores the giving out of a contract for public work, during which lime the contractor has incurred expense and obligated himself in pursuance of his contract with the city, is estopped from complaining-.</p>

<p>On certiorari.</p>

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

<p>On writ of certiorari directed to the state board of equalization of taxes et al.</p>

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

<p>The defendant corporation took over the assets and business of an incorporated company of the same name with the prefix “The” added. Among the obligations of the old company was an unpaid promissory note given to plaintiff in final payment of the consideration for the sale of an automatic blower which defendant had taken upon the sale or transfer of assets and subsequently sold. The officer^ and managers of defendant company were the same men who managed and directed the business of the old concern and caused the name of defendant corporation to bo signed to the note in controversy, before the defendant company was organized, and upon occasions arranged with plaintiff for an extension of time to pay the note in suit. Held—</p> <p>(1) It was for the jury under the circumstances to conclude whether the note in question was taken over by tbe defendant as an obligation with the old company’s assets.</p> <p>(2) Either by novation or by ratification of its managers’ acts, as well as by estoppel resulting from the taking over of the entire assets and business and the promises of its managers based thereon to pay the liability of the defendant can he predicated.</p>

<p>An allegation in an indictment setting forth an act not malum in se or malum prohibitum, but criminal only from the aspect given to the act by extrinsic facts, such facts should be alleged by way of inducement or innuendo, or the indictment will be defective.</p>

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

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

<p>1. F. employed a transfer company to carry a box and its contents to a specified destination. II., the agent of the transfer company, marked the box with the name and address of the consignee and then, without authority from F., delivered it to an express company, who contracted with him for the shipment and delivery of the box and its contents to the consignee and gave to him a bill of lading made out to him individually, containing certain restrictions upon the express company’s liability as a common carrier. The box and contents were destroyed by fire before reaching destination. Held, that for the purpose of determining the quantum of liability of the express company H., and not F., is to be considered as the shipper.</p> <p>2. On the question whether a shipper who receives from a carrier a bill of lading, knowing that it contains a provision limiting the liability of the carrier to a specified amount, in case the goods consigned are lost or destroyed in transit, is bound by such provision if he makes no objection to it. Atkinson v. New York Transfer Go., 47 Vroom 60S, followed, and the binding force of the provision affirmed.</p> <p>3. In the absence of proof to the contrary the law presumes that a shipper reads the bill of lading- delivered to him by a carrier, or otherwise becomes informed of its contents.</p>

<p>On error to the Supreme Court, whose opinion is reported in 17 Vroom 102.</p>

<p>1. The opinion of a witness has no place in a judicial investigation unless he possesses, with regard to the particular subject of inquiry, a knowledge not acquired by ordinary persons.</p> <p>2. Questions calling for the opinions of experts, upon mere abstract matters of science, not predicated upon, or related to, the facts established by the proofs in the cause, are incompetent.</p> <p>3. Tinder the system of criminal jurisprudence prevailing- in this state the defence of insanity only goes to the question of the guilt or innocence of the accused. It does not operate to reduce the degree of guilt.</p> <p>4. An instruction to the jury that an accused on trial for murder, who sets up insanity as a defence to the crime charged against him, must convince the jury by a preponderance of testimony that his mind was so deranged as to make him irresponsible for his act, does not require him to bear a burden greater than that which the law imposes upon him. The word “convince” in the connection in which it is used, is equivalent to “satisfy,” and does not indicate that the defendant must prove his insanity by evidence which would produce absolute conviction in the minds of the jury.</p> <p>5. An erroneous instruction to the jury upon a matter not involved in the issue being tried, and which could not have misled them or affected them in their determination of the questions before them for decision, affords no ground for a reversal.</p>

<p>1. The so-called “Civil Service law” {Pamph. L. 1908, p. 235) is not vitiated by the fact that with respect to those municipalities which properly adopt its provisions, the act confers a participation in the local government upon a commission not chosen by the several municipalities affected nor from among their citizens or inhabitants.</p> <p>2. The constitution of this state >does not guarantee to the people of the several political divisions of the state the right of local self-government, so as to disable the legislature from providing for the government of those divisions by commissions chosen otherwise than by the people themselves.</p> <p>3. The constitution of this state, as amended, prohibits' the passage of local or special laws, but not of general laws, “appointing local offices (sie) or commissions to regulate municipal affairs.”</p> <p>4. In the exercise of the judicial function of declaring an act of the legislature unconstitutional, the ultimate question is not whether the court regards the constitution as permitting the act, but whether the constitution permits the court to disregard the act; the test being not the court’s judgment as to the constitutionality of the act but its conclusion as to what judgment was permissible to the legislative branch’ of the government in which the constitution has reposed the duty of making such judgment as an incident of the lawmaking power; hence, if there be a permissible doubt as to tlie existence of the constitutional limitation invoked against the validity of an act, the courts will not declare the act to be contrary to the constitution.</p> <p>5. The legislature may impose its will as law upon municipalities, but, if some other will is to intervene, it must be that of the people who are to be governed by such municipal law and not an alien will, even though it be that of the governing body for the time being of such municipality.</p> <p>6. The distinction observed between legislative acts requiring acceptance to become municipal charters (i. e., referendum statutes) and those conferring legislative powers to be exercised (or not) by the local legislative bodies (i. e., statutes delegating powers of local government) ; and the further distinction observed between the acceptance of referendum statutes by the people at the polls and tlie exercise of delegated power by the local legislative body.</p> <p>7. A statute in the nature of a supplemental charter that is enacted to take effect upon its adoption by the governing body of a municipality is not a constitutionally enacted law.</p> <p>8. The so-called “Civil Service law” (Pamph. L. 1908, p. 235), in so far as its operation is made to depend upon its adoption by the governing body of a municipality, is unconstitutional.</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>

On error to the Supreme Court, whose opinion is reported in 41 Vroom, 228. The case was tried before the court without a jury, and the judge found the following facts: The action is for an injury to a calculating machine, delivered by the plaintiff to an agent of the defendant at Washington, D. C., to be transported to Clifton, New Jersey.

<p>On error to the Supreme Court, whose opinion is reported in 48 Vroom 260.</p>

<p>Plaintiff was driving alongside of a trolley track, a wagon load of brush about fourteen feet wide, ten feet long and six feet above the plaintiff’s head. His wagon was closely followed by another wagon similarly loaded. The brush was so placed as to prevent plaintiff, from the place he was seated, from seeing behind him or on either side of him. After stopping to listen for a signal he, without changing his position so that he could see behind him, turned his team to pass over a crossing across a trolley track, and his horses were struck by a car which was approaching closely behind his wagon. Held, that plaintiff was guilty of contributory negligence.</p>

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

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

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

<p>1. It is the duty of the master to warn and instruct his servant as to dangers of the employment of which he knows, or ought in the exercise of reasonable care to know, and of which the master knows or ought to know the servant has no knowledge, actual or constructive.</p> <p>2. Where there is evidence from which the jury may reasonably find that the injured servant had no knowledge, actual or constructive, of the latent danger that' necessitated certain precautions for his safety in the use of instrumentalities furnished by the master, it cannot be held as a conclusion of law that the servant assumed the risk of injury resulting to him from their absence.</p>

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

<p>1. In an action for damages for an injury claimed to have been sustained because of negligence of defendant in permitting a dangerous and defective condition of a crossing switch between street car tracks, which alleged condition should, by proper inspection, have been discovered, and, by proper diligence, have been remedied, evidence of the same condition existing within a reasonable time, both before and after the injury sued for, is admissible in corroboration of evidence that such condition existed, at the .time of such injury; and such evidence as to its previous existence is also available to 'show its persistence for such a length of time that defendant, with dire diligence, should have discovered and rectified it.</p> <p>2. Temperance Hall Association v. Giles, 4 Vroom 260, and Bobbink v. Erie Railroad Co,, 46 Id. 913, distinguished; Annapolis Gas, &c., Co. v. Fredericks, 109 Md. 595, disapproved.</p>

<p>When a plaintiff’s case is rested at the trial on two theories, the first of which is supported by legal evidence, and the second in material part by evidence illegally admitted, and the case is submitted to the jury on the second theory alone, a judgment for the plaintiff cannot be sustained on the ground that the evidence lawfully received would have justified a finding for the plaintiff on the first theory.</p>

<p>Under the Franchise Tax act of 1900 (Pamph. L., p. 502), providing, in substance, that moneys payable by the holders of franchises to any taxing district for its exclusive use pursuant to contract, shall continue to be paid notwithstanding the act, and if loss in amount than the sum payable under the act shall be considered as a payment on account thereof, and the difference made up by payment pursuant to the act — Held, that when a street railway company under annual contract liability of $250 to a township was taxed more than that amount in the township under the act of 1900 and paid the tax in full, such payment included payment of the contract liability without separation into parts or specific appropriation by the company of the proper share of the fund to such contract liability.</p>

<p>On error to the Supreme Court, whose opinion is reported in 47 Vroom 457.</p>

<p>On error to the Supreme Court, whose opinion is reported in 46 Vroom 449.</p>

<p>Ou error to the Bergen Circuit.</p>

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

On error to the Supreme Court. This suit was brought to recover damages for the loss of a case containing gloves, delivered by the plaintiffs at their factory in the city of Plainfield, in this state, to the defendant for shipment by express to their store in the city of Yew York.

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

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

<p>Upbn the trial, based upon a declaration which alleges only the common-law liability of defendant as a common carrier, by reason of the loss of plaintiff’s goods by fire; and where it appeared as part of plaintiff’s case that the liability was qualified by the introduction of a bill of lading, by the terms of which loss “by fire or by flood” excused the carrier from performance — Held, that it was incumbent upon the plaintiff to show as a basis for recovery, not only ■ a loss by fire, but also that the fire was attributable to some act of negligence upon defendant’s part.</p>

<p>1. Where the plaintiff, finding a machine at which he was employed imperfectly working, complained to one in authority, who the jury, under the testimony, might infer was the master’s representative, and such person in authority promised to have the machine repaired over night, and on the following morning, in reply to the plaintiff’s inquiry, said the machine was repaired and directed him to go to work, which, for over an hour, the plaintiff did, and worked at the machine, and, while so working, was injured by the machine tearing loose from the floor to which it seemed to be secured — Held, that these facts required the submission to the jury of the question whether the risk was obvious, and whether the plaintiff assumed it.</p> <p>2. The testimony in this case was sufficient to warrant its submission to the jury, both upon the question of the employe’s authority to represent the master, and upon the question of the obviousness of the risk and the assumption thereof by the plaintiff. Held, under the circumstances, a nonsuit was error.</p>

<p>Whether the plaintiff, who was driving along an intersecting street, and saw a trolley car a block distant advancing at a high rate of speed, was .guilty of negligence in attempting to cross the track before the arrival of the car at that point, was a jury question, and a nonsuit granted under the circumstances is set aside.</p>

<p>The plaintiff, having- driven to within three feet of defendant’s track and there stopped, loolsed and listened for an approaching- train, and it appearing- that at that point his range of vision extended about two hundred feet up the track, and, hearing and seeing no train, he attempted to cross, when an electric train coming at high speed suddenly emerged and caused the damage complained of. There was evidence from -which a jury might infer that the audible signals required by statute were not given. Held, that under these circumstances a jury question was presented, and a motion to nonsuit was properly refused.</p>

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

<p>In the trial of a suit, founded upon a fire insurance policy, to recover for a loss, where the value of the insured property destroyed by fire was in controversy, an expert witness as to values of property -was called by the plaintiff, and testified to his opinion of the value of the property in question at the time of the fire. Upon his cross-examination he was asked by defendant’s counsel certain questions (set forth at length below) respecting the price at which he had sold the property about two years before the fire, and also questions relating to his interest in the event of the suit, which the court overruled; and it was held error.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 47 Vroom 212.</p>

<p>On error to the Supreme Court, whose opinion is reported in 46 Yroom 407.</p>

<p>On error to the Supreme Court, whose opinion is reported in 48 Vroom 117.</p>

On error to the Supreme Court, in which court there was a per curiam opinion filed, as follows: “The only assignment of error argued before us is that which is direded at the refusal of the trial court to order a nonsuit at the close of the plaintiff’s case. The action was brought to recover for personal injuries.

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

<p>1. An exception, in order to be efficacious, must be specific, so as to convey to the mind of the court the precise question of law that is intended to he raised.</p> <p>2. Where an exception to an instruction given to a jury is based upoii a ground stated at the time, the review is confined to the specific ground of objection alleged.</p>

<p>In the “Act constituting courts for the trial of small causes” {Pamph. L. 1903, p. 251), the proviso in section 1, that “the said court shall not have jurisdiction over any cause or proceeding cognizable before a District Court, where any defendant resides within a municipality wherein a District Court is established,” does no more than confer a personal privilege upon the defendant under the given circumstances, which privilege is waived by appearing and making defence without objection.</p>

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

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

<p>Upon a controversy concerning the rates of wages for mechanics prevailing at and before the making of a certain building contract— Held, not erroneous to exclude evidence of the rates that prevailed long after the making of the contract.</p>

<p>1. Negligence in the performance of public duties by municipal agents, or instrumentalities, entrusted therewith, is not imputable to the municipality.</p> <p>2. A fire engine belonging to the city of Paterson was injured in a collision with a railroad train at a highway crossing. The collision occurred through the joint negligence of the persons operating the train and the driver of the engine. Held, that the negligence of the driver of the engine constituted no bar to the right of the municipality to recover compensation from the railroad company.</p>

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

<p>Where the issue is whether a will was executed, or whether a will was made to have a certain tenor or provision, the pre-existing testamentary design of the alleged testator is always relevant : and, to evidence the existence of that design, his antecedent statements are admissible, when not too remote to be material.</p>

On error to the Supreme Court. The writ of certiorari in this case brought into the Supreme Court for review the action of the board of street and water commissioners and the mayor of Jersey City in awarding a contract to Henry Byrne for the removal of garbage for the fiscal year beginning December .1st, 1908. The chief ground of attack upon this municipal action was its noncompliance with the provisions of the Garbage act of March 27th, 1902 (Pamph.

<p>The trial judge, in giving liis reasons for denying a request to charge that “there vas no evidence as to the amount of damages,”' pointed out certain factors in the testimony as shoving the inaccuracy of the proposition of fact that lie was requested to charge. Ihlti, that, assuming that the language of the court would be erroneous as an instruction to the jury as to the legal rule respecting damages, it cannot be laid hold of to reverse the judgment for error, upon that aspect of the case, unless the attention of the trial court was called io such possible application of sis remarks or to the danger of their being misapprehended in that respect.</p>

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

<p>1. It is not unconstitutional for the legislature to provide for a board of public works- composed of four persons not more than two of whom shall he members of the same political party.</p> <p>2. The act creating a board of public works in cities having a population of not less than one hundred thousand nor more than two hundred thousand inhabitants {Pamph. L. 1907. j>. 114), is not a private, loeal or special law affecting the internal affairs of towns or c otuuies, within the (onstitutional prohibition.</p>

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

<p>3. Tn an action for personal injuries caused by a collision between a buggy and a pedestrian who was crossing the street, if the evidence is such that the jury may properly infer that the horse and buggy were so near, and the conduct of the driver such, that the plaintiff had the right to suppose that the horse was held up to allow him to cross in safety, a nonsuit is improper.</p> <p>2. A pedestrian has the right to cross a street at a point not a crosswalk, exercising reasonable care for his own safety.</p>

<p>The facts of this case are not enough to justify an inference that the defendant authorized or ratified the agreement upon which the suit is founded.</p>

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

<p>Hess, the plaintiff, sold to the defendants, Riech and Roedel, all the shares of stock of a brickmaking company, receiving for such shares $1,500 in cash, two notes of the defendants, a $1,000 mortgage of one of the defendants, and, by direction of the new board of directors elected by the purchasing stockholders of the brick manufacturing company, a $2,500 mortgage made to Hess by the corporation, and a contract by the corporation to furnish Hess with $2,500 worth of brick. The brick company failéd to furnish the brick, and Hess brought an action against the company for the breach of its contract, and obtained a judgment. Thereafter he caused the judgment to be canceled, and the corporate mortgage to be canceled, and brought an action against the defendants for the alleged unpaid price of the shares sold to them. Held, that the plaintiff had received from the defendants all that he had bargained for in a transaction free from fraud; that he had not rescinded it, and that no right of action existed against the defendants.</p>

<p>1. A building contract provided that the entire building should be completed by the 15th day of _ September. 1908, providing, however, that the owner remove the present building from the proposed site before the 15th of May, 1908. The contract further provided that the contractor should pay to the owner the sum of $25 per day as liquidated damages for each and every day’s delay that the work shall remain unfinished after the date agreed upon for the completion of the same. The contract provided that in case of delay in completing the work caused by any act or default of the owner, or other contractor, the time for completion should be extended for a period equivalent to the time lost, such period to be fixed by the architect upon written demand of the contractor. There was no extension of time by the architect. The owner removed the old building entirely from the proposed site on May 17th. The building was not completed until November 14th. Held, that, the contractor was liable for liquidated damages from September 17th to the date of the building’s completion.</p> <p>2. A building contract provided that no alteration, addition, deviation or omission which affected the price or the time for the completion of the work, should be done without a written order of the architect, approved in writing by the owner. Held, that there was no power in the architect to waive the provision for a written order.</p> <p>3. A building contract provided that should the contractor be delayed in the completion of the work by the act or default of the owner, architect, or other contractor, then the time fixed for the completion of the work shall be extended to a period equivalent to the time lost by reason of such causes, which extended period shall be determined by the architect, no allowance to be made unless a claim is presented in writing to the architect within forty-eight hours of the occurrence of such delay. No written claims were made to the architect, and no allowances of time were made by the architect. Held, that parol evidence that the architect had promised the contractor that he would take care of it on final payment, was inadmissible in an action against the builder.</p>

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

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

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

<p>Defendant employed plaintiff, by written contract, to construct a school building partly of reinforced concrete. The specifications, which formed part of the contract, provided with respect to the reinforcing bars, that “all shear members must be rigidly attached to the main tension member.” Dispute arising as to the precise character of bar called for by the specifications, and plaintiff refusing to furnish the bars demanded by defendant, the latter undertook to rescind the contract for non-performance by plaintiff, and plaintiff sued for damages on the ground that it had been prevented from completing the work by the wrongful act of defendant. Held, that on the trial of such suit it was error to exclude testimony that the phrase “rigidly attached” had a peculiar meaning in the concrete construction trade, and if so, what that meaning was.</p>

<p>On error to the Supreme Court, whose opinion is reported ante p. 101.</p>

<p>I11 an action against a railroad company for damages sustained by a traveler at a highway crossing, in which action the negligence of the company is predicated upon its failure to give the statutory signals of the approach of a train, the burden of proving that such signals were not given is on the plaintiff.</p>

<p>1. In an indictment for haying feloniously, willfully, maliciously and unlawfully incited, moved, procured, aided, abetted counseled, hired and commanded A B to commit the crime of bigamy, it is not necessary to prove the conviction of A B of having committed said crime, bigamy not being a felony under the law, and therefore one who aids in its commission being chargeable as principal.</p> <p>2. The minutes of court proceedings kept by the clerk are competent evidence of those proceedings until the formal record is made up.</p>

<p>1. In directing a verdict against a defendant upon the opening of his counsel, the trial court must give the statement of facts made by him the same force and effect as if duly testified to by witnesses, and the trial court should be satisfied, conceding all inferences which the jury might justifiably draw from the facts stated, that the evidence tendered is insufficient to warrant a verdict for the defendant, and nothing should be taken against the party making the statement without full consideration, and the inferences to be drawn should be as comprehensive as the statement will justify.</p> <p>2. In an action for damages growing out of delay in delivery of freight by a common carrier, the defendant offered to show that the point to which certain carloads of freight were consigned was subject to special conditions regarding delivery, the circumstances being that the rail terminal of defendant’s railroad was at Hobo-ken ; that it maintained a yard for the benefit of a limited number of marketmen in Brooklyn; that the trackage in the yard was apportioned among the several dealers, and that the custom, known to all parties and acted upon by them, was to lighter the cars from Hoboken to Brooklyn, and place them upon the trackage apportioned to each of the dealers respectively, where they were allowed to unload the cars directly into the wagons of their customers; that the plaintiffs, being aware of this, ordered more cars of freight than the track allotted to them would hold, and owing to the custom and practice of delivering to customers from the cars they could not, or did not, unload the cars as rapidly as they were floated from Hoboken 1o Brooklyn; that the trackage in the yard was kept constantly filled with cars lightered from Hoboken, and as fast as plaintiffs unloaded and released cars others were placed on the tracks for their use in the market; that owing to the delay of the plaintiffs in unloading, the cars could not bo transferred from Hoboken to Brooklyn as rapidly as they arrived, and because of this some of the merchandise was depreciated in value. Jleld, that from this opening an inference might properly he drawn, that the goods were shipped, and accepted for shipment, upon an implied agreement that the cars were to he transferred from Hoboken to the market place in Brooklyn only as rapidly as the plaintiffs unloaded them and afforded the defendant an opportunity to place the cars consigned to plaintiffs upon the trackage allotted to them, and that to override the proffered defence was error.</p>

<p>1. Where a railroad company acquires land for its right of way under condemnation proceedings, the result of which divides the land of an individual so as to leave portions of it on both sides of the land taken for the right of way, subject to the duty of providing a convenient wagon way over or under the land condemned in order that the owner may pass to and from the severed parcels, such taking does not destroy the common ownership of the whole, nor are the separated parcels, in a subsequent proceeding to condemn one of them, to be considered as having no relation to each other, or as held by different owners.</p> <p>2. Such right of passage preserves the common ownership, and an instruction to the jury, on the trial of an appeal from the award of commissioners appointed in condemnation proceedings for the taking of one of such parcels, that they must not consider the fact that the owner has title to the land on the other side of the right of way formerly taken, with the right of a way to pass from one to the other, but treat the two parcels as if they were owned by strangers, is erroneous.</p>

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

<p>The plaintiff and defendant made a contract, by the terms of which the defendant was to furnish and put down a siding leading into the coal yard of the plaintiff, from the main line of the defendant’s railway. Relying upon this agreement the plaintiff erected sheds, coal bins, and incurred other expenses incident to the ■ preparation of the property for a coal yard, and the defendant, on its part, built the siding and delivered coal over it into the plaintiff’s yard for a considerable period of time. By the terms of the contract the plaintiff was to pay the cost of putting in the siding and connecting it with the main line. After having paid a part of this cost, the defendant, upon the ground that the residue was not paid, removed the switch connecting the siding with the main line, and thereby destroyed the plaintiff’s business. Held, that in a suit by plaintiff to recover damages for the destruction of his business because of the removal of the switch and refusal to deliver coal to the plaintiff, the non-payment of the residue of the cost was no defence to such action.</p>

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

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

<p>1. An order striking out a plea as frivolous or sham was not reviewable at common law, and our statute (Practice act, 1903, §§ 110, 111) has not altered the law in that respect.</p> <p>2. An order striking out a frivolous or sliam plga being merely incidental and discretionary in character is not final in the sense o£ the common-law rule applicable to writs of error,</p> <p>o. The case of First National Bank of lied Bank y. Jones, 15 Vroom 00, approved.</p>

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

<p>1. Where the parties to an existing agreement found themselves unable to agree upon the amount due thereunder, it was competent for them to adjust their differences by another contract whereby the one obligated herself to pay to the other a fixed sum of money in settlement of their mutual accounts. Held, that the later contract, under the doctrine of novation, was substituted for the earlier contract, and the rights of the parties were controlled by its terms, the earlier contract being thereby extinguished.</p> <p>2. Whether such a contract of novation was made, was, where the facts were in dispute, a question for the jury.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 48 Vroom, 389.</p>

<p>On error to the Supreme Court, whose opinion is reported in 48 Vroom 264.</p>

<p>On error to the Supreme Court, whose opinion is reported in 48 Vroom 310.</p>

<p>On error to the Supreme Court, whose opinion is reported in 48 Yroom 288.</p>

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

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

<p>On error to the Supreme Court, whose opinion is reported in 48 Vroom 346.</p>

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

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