Volume 79 — New Jersey Law Reports

<p>Section 28 o£ the Practice act provides that any person for whose benefit a contract is made may maintain an action thereon, notwithstanding that the consideration of such contract did not move from him. Held, that a contract made between A and B, by the terms of which B agrees to pay a debt which A owes to C, is a contract made for the benefit of C within the meaning of this statutory provision.</p>

<p>Where the witnesses on each side appear to be equally credible, the mere fact that those called by the losing party outnumber those called by his adversary will not justify a court in setting aside a verdict on the ground that it is against the preponderance of the evidence.</p>

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

<p>The rejection of testimony too remote from the issue is not error.</p>

<p>I. Plaintiff and five other persons agreed with one Sims to convey to a third party a piece of land owned by the plaintiff. The plaintiff having so conveyed Ms land seeks to recover of his coobligors the sum of §2,000 in an action on contract based upon their express promise, not in writing, to pay Mm that sum if he conveyed his lands as aforesaid. Held, that the oral contract on which recovery is sought is unenforceable under the statute of frauds, being one “for the sale of lands * * * or concerning them.”</p> <p>2. Held, also, that there is no general implication that one person will pay the reasonable value of lands conveyed to another person.</p>

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

<p>On quo warranto.</p>

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

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

<p>1. Section 57 of the charter of the city of Passaic (Pamph. L. 1873, pp. 484, 507) authorizes the alteration of street lines only where the street is one already laid out.</p> <p>2. A street delineated on a map 'made pursuant to section 23 of the amendment of the charter of the village of Passaic (Pamph. L. 1871, pp. 619. 638), which authorizes the council to prescribe and adopt the location of streets and sewers, is not a street laid out within the meaning of section 57 of the charter of the city of Passaic.</p> <p>3. An ordinance of the city of Passaic which purports to vacate a part of a street and to open it on other lines but in fact merely alters the side lines cannot be sustained where it appears that the portion of the street 1o he altered has never in fact been laid out.</p>

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

<p>On rule to show cause under section 42 of the Corporation aci.</p>

<p>On certiorari.</p>

<p>District Courts have no jurisdiction of suits against heirs and devisees for the debts of the decedent.</p>

<p>3. A note executed and delivered in 3903 in California, secured by mortgage on land in that state, and non-negotiable by the local-law, was transferred by endorsement in New Jersey after the passage of the Negotiable Instruments act. Pamph. L. 1902. p. 583. Held, that the validity and effect of the contract of the endorsers was determined by that act.</p> <p>2. The contract of endorsers of a negotiable note is distinct from that of the makers; and the holder is not precluded from recovery of endorsers who had endorsed the note in New Jersey by reason of the fact that the note was given in California and secured by mortgage on land in that state, which was subsequently foreclosed, although the California code enacts that there shall be but one action for the recovery of any debt or the enforcement of any right secured by a mortgage upon real estate in California.</p> <p>3. An executor may in that capacity sue in our courts endorsers upon a promissory note which was endorsed and delivered to his testatrix in New Jersey, although a mortgage on California land securing the note, given by the makers, has been foreclosed and a deficiency judgment obtained in California by an administrator with the will annexed, and the estate lias been finally settled in that state.</p>

<p>On certiorari.</p>

This writ of certiorari brings up a judgment of the Court of Common Pleas of Mercer comity, rendered on ail appeal from a conviction of the plaintiff in certiorari, before a police justice of the city of Trenton upon a complaint that the plaintiff in certiorari had violated section 16, subdivision 1, of an act of the legislature of this state entitled “An act defining motor vehicles and providing for the registration of the same and the licensing of the drivers thereof;…

<p>A person employed by the public grounds commission of Asbury Park as night watchman to guard public buildings being erected, was not protected from discharge by the act of 1895. Pamph. L„ p. 317.</p>

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

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

<p>On habeas corpus.</p>

<p>On certiorari.</p>

<p>1. An agent employed by a pottery company to take orders from customers for its wares, in the absence of express authority or proof of similar previous dealings known to and approved by the company, cannot bind his principal by entering into a contract with a purchaser that his company will receive and allow deductions for imperfect goods previously shipped to the customer by other companies.</p> <p>2. The fact that the agent was sent to collect the bill for ware sold by him to such purchaser, and that he received a check in part payment of the bill, and with that check received a claim for such defective goods; and the fact that the principal used the check with knowledge of such claim, is not a ratification of the agent’s authority — the agent’s right to so contract being at once repudiated by his principal.</p> <p>3. The act (Pamph. L. 1905, p. 494) which requires that a demand for a jurj' in a District Court shall be made in writing one day before the return of the summons or the right of the party to a jury shall be deemed to be waived, is not unconstitutionally restrictive of the right to trial by jury.</p>

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

On certiorari. This writ brings up a judgment of the Ocean County Court of Common Pleas rendered on appeal from judgment for the plaintiff in an action before a justice of the peace.

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

<p>On motion to quash return to alternative writ of mandamus.</p>

<p>On motion to amend declaration.</p>

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

<p>1. It is sufficient if the state of demand in an action in the District Court states a legal cause of action, apprising- the defendant of the claim against him, and so stating it that it may afterwards appear what was decided.</p> <p>2. In an action in the District Court upon a covenant for the payment of money, the state of demand need not allege demand for payment and refusal where demand for payment is not required by the contract sued upon.</p> <p>3. Where a contract for the sale of land contains a provision for the benefit of the party of the first part that upon default of any installment of payments for thirty days the contract should be null and void, the party of the second part cannot take advantage of his own default to work a rescission.</p>

<p>On case certified from the Camden Circuit.</p>

<p>1. Unless the record shows that all the evidence on a given point is laid before tlie Supreme Court, it cannot, on certiorari, decide that a finding of the trial judge, sitting without a jury, on that point was unsupported.</p> <p>2. An assignment of a chose in action need not necessarily be in writing in order to be valid in law.</p> <p>3. Where an assignment of a chose in action admits of two interpretations with respect to tlie subject-matter in the contemplation of the parlies, parol evidence is admissible to show the subject-matter to which the parties referred.</p> <p>4. In reviewing in tlie Supreme Court a judgment of the District Court by certiorari, no intendment will be taken against the judgment, but rather in favor of it.</p>

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

<p>On application for a rule on the defendant to plead.</p>

<p>Judgments of the Common Pleas on appeal from small cause courts are reviewable only by certiorari and not by writ of error.</p>

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

<p>A master is not responsible for injury to or death of a servant due to the servant going into a dangerous place on the master’s premises in disobedience of the master’s express instructions.</p>

<p>Plaintiff alleged in his declaration that he was a passenger on a street car operated by defendant, which „car defendant permitted to become greatly overcrowded so that plaintiff, when desiring to alight, had to push his way through the crowd; that while on the platform preparing to alight, and before the car stopped, he was so violently jostled by the crowd that he was pushed off and injured. He alleged that the accident was due to defendant’s permitting the car to become crowded. Held, that the declaration failed to set out a cause of action.</p>

<p>3. A new trial will not bo awarded on application of a defendant not represented at the trial when it appears that notice of trial was duly served on defendant’s attorney and disregarded by him because lie thought it served too long beforehand, and consequently ' made no timely effort to ascertain whether the case was on the calendar.</p> <p>2. The fact that a cause is regularly listed on the calendar prepared by the county clerk is prima facie evidence that proper proof of serving notice of trial has been lodged with him.</p>

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

On certiorari to review conviction of prosecutor for violation of the sanitary code of the hoard of health of Asbury Park.

<p>On appeal from an order of the board of railroad commissioners of the State of New Jersey, requiring the petitioner to restore railroad facilities at Broadway, Warren county, New Jersey.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>Where the evidence is conflicting upon the question whether the plaintiff exercised care and due diligence in leaving the defendant’s car at a railway station, the train having started before she left the car, in consequence of which she was thrown and injured, a nonsuit urged upon the ground that she had not exercised such diligence was properly refused.</p>

<p>The act under which a municipality was incorporated authorized the common council of the municipality to fix the salary of its officers by ordinance, and declared that when so fixed such salaries should not be increased or diminished during the term of the officer. When the clerk and collector went into office there was an ordinance passed by a preceding council fixing the salaries of such officers. During their term the common council adopted an ordinance increasing the salaries of such officers. Held, that the ordinance could not apply to the collector or clerk during their term of office, and that a resolution providing for payment at the increased rates was unlawful.</p>

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

<p>1. Where an act of the legislature authorizes the construction of an intercepting sewer, or a system of sewerage, in any city through which a river, stream or creek runs, and into which the sewage of the city is emptied, so that all sewers emptying into such stream shall thereafter be connected with such intercepting sewer or sewers, the words “or a system of sewerage” refer to the word “intercepting” and should be road, in connection, with it and the purpose of the act. as meaning a system of intercepting sewers, for in considering the constitutionality of a statute the substance of the legislative provision is given preference to the form in which it is expressed, and the statute does not express two objects within the constitutional prohibition.</p> <p>2. Where the title of such statute declares as one of its purposes the granting of authority to build intercepting sewers “to receive all such sewage, to be disposed of in such manner as shall be deemed proper,” it sufficiently expresses the object of an act which authorizes the establishment of outlets or places of deposits for the sewage carried by such intercepting sewers.</p> <p>3. A statute applying to all cities through which a river, stream or creek runs, into which the sewage of the city is emptied, authorizing the building of intercepting sewers to remove such pollution from, and the cleansing of, such streams, is not an illusory or unconstitutional classification.</p>

<p>Where proceedings to dispossess a tenant are instituted in tlie name of the landlord, and as a consequence the tenant is evicted, and the landlord afterwards accepts the unpaid rent as a condition for permitting the tenant to remove his goods from the premises within a limited time, it is too late for the landlord to disavow the eviction upon the ground that it was not affirmatively shown that the person who made the preliminary affidavit, upon which the proceedings for dispossession were based, was not the duly authorized agent of the landlord.</p>

On error to the Passaic Circuit Court. This is an action for .libel brought by Edward E. Merrey, who was city counsel of the city of Paterson, against the Guardian Printing and Publishing Company and Clarence II.

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

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>The supplement to the Martin act, approved March 30th, 1896 (Pamph. L., p. 190), does not repeal by implication the prior supplement of 1891 (Pamph. L., p. 450) with reference to the sale at private sale by a municipal corporation and the assignment of a certificate of sale under said Martin act.</p>

<p>The excise hoard of Elizabeth received two complaints involving the same subject-matter against the licensee of an inn and tavern, and, without fixing a day for the hearing, disposed of the second complaint without notice to the licensee and revoked his license; the effect of which was that he became disqualified to accept a license for a year. Held,, that without notice and an opportunity to be hoard given to the licensee, the action of the excise board was illegal.</p>

<p>In lieu of bail in a bastardy proceeding- the police magistrate accepted $500 cash and released the defendant, who thereafter was convicted before the magistrate as the putative father of a bastard . child; and the conviction was subsequently affirmed on appeal. The defendant then absconded and the plaintiff, alleging- himself to be the person who paid the money into court, seeks its repayment to him by the magistrate. Held, that the deposit, in contemplation of law, was made by defendant, and that he or his creditors alone have the legal status to claim it upon a writ of certiorari to the magistrate.</p>

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

<p>1. A trustee appointed by the federal court in bankruptcy has a legal status to attack a judgment illegally entered against the bankrupt.</p> <p>2. The affidavit required by the Attachment act as the basis for the issuance of the writ is not amendable after judgment entered by substituting one Christian name for another stated in the writ.</p>

<p>Finding no testimony in this case from which it can be concluded as matter of law that the verdict is clearly against the weight of evidence, or that the verdict is clearly excessive, the rule to show cause is discharged.</p>

<p>1. A motion in arrest of judgment is proper where there' is some matter intrinsic appearing upon the face of the record, which would render a judgment erroneous and reversible.</p> <p>2. A judgment in personam can be obtained against a defendant in an action at law only after the service of le'gal process, or where, by his consent, he submits to the jurisdiction.</p> <p>3. A judgment entered against one who is not a party to the record but who is made a party in open court upon the trial, by amendment and substitution against his protest and without his consent, is not only in violation of the defendant’s common-law rights but is also in violation of the constitutional guarantee requiring “due process of law.”</p>

<p>Upon the facts recited in the agreed state of the case the direction of a verdict for the claimant in a claim of property under attachment proceedings — Held, to be warranted. Held, also, that by proceeding to trial without challenging the jurisdictional facts, the appellant cannot urge them as ground for reversal in this court.</p>

<p>A cause pending- in the District Court can be adjourned by the clerk of the court under the twenty-seventh section of the District Court act only in the absence of the court, except by consent of the parties to the record. Held, therefore, that a cause postponed by the clerk at another time and at the request of one only of the parties to the record, conferred no jurisdiction upon the court to try the cause on such adjourned day, excepting with the consent of the parties; and that a judgment rendered under such circumstances was eoram non judiee and void.</p>

<p>On certiorari.</p>

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

<p>On error to tlie Union Circuit Court.</p>

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

<p>1. A secretary of a corporation has no authority, by virtue of his office, to alter the terms of a contract made by the corporation with a third person.</p> <p>2. Where a firm of attorneys makes alternative propositions to an intending client to render legal services to it, stating therein the per diem value of such services, and the client, without accepting either proposition, instructs the firm to render such services, the latter are entitled to reasonable compensation for the services rendered by them pursuant to such instruction, to be measured by the standard fixed by them in their propositions.</p>

On error. This action was brought to recover tho balance due on two contracts for street improvements. The defence generally was that the work had not been performed according to the contracts and specifications and non-acceptance because of defaults and defects in this particular. At the conclusion of the testimony the trial court directed a verdict for the plaintiff for the full amount due under the contracts as certified by the engineer.

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

<p>On error to the Essex Sessions.</p> <p>The plaintiff in error was indicted for the unlawful use of instruments with intent to cause the miscarriage of a pregnant woman. He was indicted and tried together with a Mrs. Z., at whose house the unlawful act was said to have been performed. The undisputed facts were that Miss V., the woman upon whom the instruments were used, was met at the railroad station in Newark by Sarah M. Dodge, and that the two women, accompanied by a man, went to the office of Dr. Glatzmayer, the plaintiff in error. Prom the doctor’s office the women went to the house of Mrs. Z., where about an hour later Dr. Glatzmayer came and used instruments in the uterus of Miss Y.</p> <p>The theory of the state was that the testimony as to subsequent events and conditions established that the instruments were used to cause a miscarriage: the defence was that a miscarriage had already taken place when Miss Y. came to the office of the plaintiff in error, and that the instruments were used by him to remove from the womb clots and membranes that were keeping up a hemorrhage.</p> <p>Miss Dodge was called as a witness by the state and testified as to the visit at the doctor’s office before going to the house of Mrs. Z. Among other things, she was asked by the prosecutor:</p> <p>“Q. Did you and Miss Yliet go anywhere from the doctor’s office?</p> <p>“A. To. Mrs. Zahn’s.</p> <p>“Q. Did you get any information from anyone as to how to get from Dr. Glatzmayer’s office to Mrs. Zahn’s place ?</p> <p>“A. The doctor.</p> <p>• “Q. Just answer that, yes or no?</p> <p>“A. Yes, sir.</p> <p>“Q. From whom?</p> <p>“A. The doctor.</p> <p>“Q. Dr. Glatzmayer?</p> <p>“A. Yes, sir.”</p> <p>On cross-examination the witness was asked the following questions, all of which were overruled and exceptions allowed to the plaintiff in error :</p> <p>“Q. Was there any suggestion before you left the office that Miss Yliet should go-to the hospital?</p> <p>“Q. Did the doctor make any suggestions as to where Miss Vliet should go?</p> <p>“Q. What else was said?</p> <p>“Q. And was it at your suggestion that you went to Mrs Zahn’s ?”</p>

On error to (he Essex Sessions. The state’s ease, as a jury might find it from the testimony, was that a married couple visited Dr. Wilson, the plaintiff in error, to ascertain if the wife was pregnant; and, being ioid by him that she was, the wife wanted him to open up her womb so that she might not become a mother; that Dr. Wilson sent the woman to one Radford toldo the work for her; that the woman went to Radford at an address given by Dr. Wilson and that Radford on three…

<p>In an action for deceit it is not essential that the fraud should consist in the defendant’s knowledge of the falsity of a fact represented by him to be true; if there was falsity in the defendant’s affirmance of his knowledge of the truth of the fact it is enough.</p>

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

<p>On certiorari to Martin E. Keffer, recorder of Atlantic City.</p>

<p>An appeal will lie to tlie Supreme Court from proceedings in a District Court by the board of tenement house supervision, under the act of 1901. Pamph. L., p. 96.</p>

The first entitled cause came before the court upon an application for mandamus to compel the city clerk of Jersey (biy to sign a. warrant ordered signed by the police commissioners in 1907, and the second by certiorari to review the resolution of the new board of commissioners rescinding the original order.

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

<p>1. To create au estate by the entireties, the grantees must be husband and wife at the time of the. conveyance.</p> <p>2. Although the grantees in a deed are described therein as husband and wife, it may be shown by parol evidence that such is not the fact.</p> <p>3. Although a woman is named in a deed with the surname of a man not her husband, the deed operates as a conveyance to her; and her identity with the grantee may be shown.</p>

<p>1. It is not essential that a subpoena to testify before a grand jury should set forth a specific pending- case; it may properly be to testify general^.</p> <p>2. The pendency of a case before a grand jury, in which the books of a New Jersey corporation may furnish evidence, presents a proper cause for an order to bring books within the state under sectidn 44 of the Corporation act.</p>

<p>A life insurance policy in which no beneficiary is named, provided that the company might pay the amount due thereunder to any relative by blood or connection by marriage of the insured, or to any person appearing to the company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial. Held, that one who had paid the premiums on the policy and had paid the funeral expenses of the insured was not by reason of those facts entitled to maintain an action on the policy.</p>

This is a suit on a promissory note dated June 9th, 1908, made by Virgil to the order of the plaintiff for the purchase price of bricks sold him through Austin, who was entitled to a commission upon the sale.

<p>In an action under the Death act the declaration must aver in so many words that the action was commenced within twenty-four calendar months after the death of the decedent; it is not enough to lay a time under a videlicet which is necessarily within two years of the beginning- of the action.</p>

<p>Boroughs bordering on the ocean may acquire laud l>y condemnation for the purpose of building a public elevated boardwalk along the beach or ocean front.</p>

<p>The provisions of the Attachment act of 1901. making the attachment a lien on all defendant’s real estate, even though the officer fails to attach the same, and authorizing the court to order the clerk to amend the return by annexing a description of such real estate, and making the judgment a lien on defendant’s land acquired either before or after the entry thereof, do not infringe the provisions of the constitution that require due process of law.</p>

<p>Where the plaintiff fails to file a declaration within a year after the return of the summons, an application for additional time comes too late, although the defendant may not have obtained judgment of non pros.</p>

<p>Section 92 of the Borough act of 1897 (Pamph. L., p. 285) provides that no writ of certiorari shall be allowed to set aside any assessment for a street improvement after thirty days shall have elapsed from the date of the confirmation of such assessment by the council, it being held, that the Borough act is constitutional in respect of the provisions empowering council to pass an ordinance for the widening and straightening of a street, and empowering council to appoint commissioners for the assessment of damages and benefits, and empowering council to modify or confirm the report of the commissioners; further held, that a writ of certiorari applied for after the expiration of the statutory period of thirty days will be refused.</p>

<p>The driver of a wagon approaching a trolley crossing, and while fifteen or twenty feet from the trolley track, with his horses on a walk, saw an approaching car one hundred and fifty or two hundred feet away and saw that it was running at a very high degree of speed. The driver continued ou his way at the same gait, and when on the trolley track his wagon was struck by the car. Reid, that the driver was negligent.</p>

This is au. application on behalf of The Texas Company, a foreign corporation, for a writ of mandamus to be directed to the Secretary of State of New Jersey to compel that officer to issue to the relator a certificate that the relator is authorized to transact business in this state. The duty thus sought to be enforced is alleged to arise from the terms of section 97 of .our Corporation act. Pamph. L. 1896, p. 307, § 97.

<p>An appeal bringing up a, judgment rendered upon a verdict in the District Court of Elizabeth in favor of the plaintiff below.</p>

On certiorari 'to the secretary of state as register of the Prerogative Court of this state, and the comptroller of the treasury of this state, requiring them to send up> the record of the action of the register in pressing and levying a collateral inheritance tax upon the estate of Wesley H. Tilford, deceased.

<p>On motion to strike out notices of special matter annexed to plea.</p>

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

<p>On appeal from the Second District Court of the city of X c wark.</p>

<p>1. An oral agreement to act as agent in buying land is not within section 5, subdivision 4 of the statute of frauds (Gen. Stat., p. 1603) and creates an agency which may be proved by parol.</p> <p>2. Where one performs services for another at his request, but without any agreement or understanding as to. wages or remuneration, the law implies a promise on the part of the party requesting the services to pay a just and reasonable compensation, unless there is a family relation existing between the parties, and this remuneration is recoverable on a quantum meruit.</p>

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

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On appeal from the District Court of the first judicial district of Bergen county.</p>

<p>On certiorari.</p>

<p>J. Working in close proximity to wires which are apparently safe, and without knowledge of their dangerous character, cannot be said to be negligence as a matter of law.</p> <p>2. An owner or occupier of lands who by invitation, express or implied, induces persons to come upon the premises, is under a duty to exercise ordinary care to render the premises reasonably safe for such purposes.</p> <p>3. An employe of one who holds a contract to perform work on premises for the owner and occupier thereof, who enters the premises to perform the work, is there by implied invitation.</p> <p>4. The plaintiff’s declaration averred in effect that the defendant company was the owner of premises upon the roof of which it maintained wires carrying a deadly current of electricity; that such wires were apparently safe, but in fact were improperly and defectively insulated; that the dangerous condition of the wires was known to the defendant and was unknown to the plaintiff’s intestate; that plaintiff’s intestate was in- the employ of a contractor who was engaged by the defendant to build a cupola upon the roof of such premises; that the decedent necessarily, in the course of such employment, entered upon such roof in close proximity to such wires and, in the course of his work, came in contact with one of the wires and was killed thereby — Held, good on general demurrer.</p>

<p>1. When the proceedings of a municipal corporation have contemplated and resulted in the expenditure of public money, objections, even when founded on lack of authority, must be made promptly.'</p> <p>2. If the prosecutor suffers a public work, on account of which his property may properly be assessed for benefits, to proceed for several weeks without applying for a writ of certiorari to review the validity of the ordinance requiring such work to be done, and only applies for the writ after the work is nearly completed at a large expenditure of public moneys, the writ will be refused, or, if allowed, will be dismissed when these facts are brought to the attention of the court.</p>

<p>1. When a demise is for a fixed term with privilege to the tenant of a renewal, one who has entered the demised premises with the tenant’s consent, and is thereby substituted in the tenant’s place, may exercise the renewal privilege, but must do so in the name of the original tenant and cannot claim a renewal in his own name.</p> <p>2. A sublessee is not entitled as such to take advantage of a renewal privilege given to the original lessee.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>In a District Court the parties to a cause and their attorneys may lawfully stipulate that the evidence taken in another cause be considered by the court as the evidence in their cause, and that such judgment be entered thereon as is entered in the other cause.</p>

On certiorari. The prosecutor Kellam was convicted in the First Criminal Court of Newark, and fined $25 for violation of the provisions of section 425 of the ordinances of the city of Newark, which section reads as follows: “No person or persons, without the written permission of the mayor, shalL skin or bury any domestic animal which shall die within the city of Newark from accident or disease, or shall carry or transport any such dead domestic animal, except in carts or…

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

<p>In replevin, if after execution of the writ by the sheriff, the defendant makes a claim of property and by rebonding resumes possession, be cannot thereafter tender the goods to plaintiff in lieu of tbeir value and damages.</p>

<p>1. The same notice and demand of possession passed on in Haurand v. Schorb, 48 Vroom 365, further considered in an action under the statute (Gen. Stat., p. 1921, § 27) for double rent, and held insufficient under the circumstances to support such action.</p> <p>2. The action of use and occupation is predicated on the relation of landlord and tenant, and based on contract, express or implied; and while from the fact of occupancy the relation of landlord and tenant will ordinarily be inferred, such inference is negatived by acts on the part of the landlord, amounting to a repudiation of that relation, such as a demand of possession under penalty of liability for double rent.</p>

<p>A notification in writing, set up in the office of the dining car department of a railroad company, that a certain dining car conductor has been discharged for breach of the rules, is privileged as to other employes of that department.</p>

<p>1. In a complaint before a, licensing board for violation of the law' relating to sale of intoxicating liquors, great precision is not necessary; it is sufficient if the charge can be clearly made out from the statements of the complaint.</p> <p>2. The “conviction” of violation of the liquor law' mentioned in section 3 of the supplement approved April 13th, 1906 (Pamph. 77.. p. 199) is not necessarilj' a conviction before a court of law, but may legally be a conviction by the judgment of the licensing body.</p> <p>3. In proceedings for forfeiture of a license to sell liquor, as authorized by said section, it is essential to the validity of the judgment that a copy of the complaint and order to show cause be served upon the owner of the premises as well as upon the licensee; and in default of such service on said owner a forfeiture cannot stand even as against the licensee.</p> <p>4. If proceedings be summary in character, the record must contain a statement of the substance of the evidence given, that a reviewing court may be enabled to judge of its sufficiency.</p>

<p>1. A municipal corporation cannot under color of the licensing power confer the right to violate the Sunday provisions of the Vice and Immorality act.</p> <p>2. A conviction and fine for transacting business without a municipal license cannot be sustained in cases where such license if granted would have conferred no right to transact such business > because of a statutory prohibition.</p>

<p>1. A broker whose authority to sell is limited as to price, is nevertheless entitled to his commission if his agency.is exclusive, and if while it is in force the owner sells at a reduced price to a customer introduced by him.</p> <p>2. In such case the commission will usually be the agreed percentage of the amount actually realized.</p> <p>3. Defendants employed plaintiff, a ship broker, to sell a steamboat for $9,500, promising him five per cent, commission in case of such sale. Plaintiff introduced a buyer who subsequently bought the steamboat at a lower price through another broker. Plaintiff claimed to be ignorant that another broker was to be employed. Held, in error, that a judgment for plaintiff for five per cent, of the amount realized by the sale was justified by the evidence; and that the questions whether plaintiff had a right to believe his agency exclusive, and whether he was the moving cause of tlie sale, were properly for the jury.</p>

<p>On certiorari to the Court of Common Pleas of the county of Gloucester.</p>

<p>An agreement contained in a life policy that it “shall be incontestable, except for non-payment of premiums, two years from its date” limits all defences, including- fraudulent representations as to physical condition, except non-payment of premium, to the period agreed upon-. It does not condone fraud, but fixes the time within which the defence must be established, and provides a reasonable time for such purpose.</p>

<p>1. An ordinance which imposes a license fee of $250, not for revenue but in the exercise of a police power “to license and regulate,” is an unreasonable exercise of such power.</p> <p>2. The charter of the village of South Orange gives it no express power to license or regulate the carrying on of the business or occupation of bill poster, and the powers “which by law belong to” the members of the township committee of the several townships of this state, and which it is claimed were conferred upon the village trustees of South Orange by its charter, are limited, if ' lawfully granted, to the powers then belonging to township committees.</p>

<p>The aggravation of an unsound physical condition, caused by the negligent act of a defendant, may be properly considered by a jury in ascertaining the amount of plaintiff’s damages.</p>

<p>A justice of the peace has no jurisdiction to try the right of a claimant to goods and chattels held by a constable by virtue of a levj under an execution, as provided in section 62 of the Small Cause act (Pamph. L. 1903, p. 251), if the plaintiff, upon notice by the claimant to the constable of his claim, shall indemnify the officer against the demand of the claimant.</p>

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

<p>On certiorari.</p>

On rule to show cause why verdict should not be set aside. The defendant, as party of the first part, and the plaintiff’s intestate, as part} of the second part, entered into a written agreement, the material parts of which are as follows : “Whereas, the party of the second part had issued to him by the government of the U. S. of America, letters patent No. 530695 on December 11th, 1894, for an improvement in shingle planers. “Now, therefore, the party of the second part in…

<p>On application for a summary determination regarding the taxation of certain lands.</p>

<p>On motion for writ of mandamus.</p>

<p>Oil rule io show cause.</p>

<p>1. Where there was testimony tending to show that a hole in a highway into which a horse had stepped and thereby sustained injury, was the result of the neglect to repair the side wall of a county bridge, and there was also testimony tending to show that the hole had not resulted from the disrepair of the wall of the bridge but had been made bj' muskrats — Held, that a jury question was px-esented and a nonsuit was coxTeetly refused.</p> <p>2. If the hole in the highway was the result of the lack of repair to the bridge wall, then the injury ensuing by reason of the horse stepping into the hole brings the case within the scope of “An act respecting bridges,” approved March 15th, 1860.</p>

<p>In an action to recover damages for injuries arising from the alleged failure of a railroad company to exercise care for the safety of those using a crossing, the declaration charged that the defendant constructed and maintained said crossing at grade over its railroad and the defendant there invited, induced and lured the public to use the crossing, and the public had been accustomed to use the crossing at the invitation and with the knowledge and consent of the defendant, on demurrer — Held, that the words “invited, induced and lured,” as here used, are mere conclusions of law; that unless an invitation in its legal sense can be inferred from the facts alleged in the declaration the passing over the crossing must be put upon the ground of mere license or permission ; that the pleading is barren of such facts and hence disclosed no duty imposed upon the defendant to exercise care, which is the gist of an action for negligence.</p>

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

<p>1. In an indictment for conspiracy to commit highway robbery, an anonymous letter had been received by a detective, before the arrest of the defendants, giving information that certain persons named therein at a certain time and place intended to waylay ana rob a woman described therein. Held, error to allow the recipient to testify to the gist of the letter excluding the names.</p> <p>2. In an indictment for conspiracy to commit highway robbery, an instruction, “If you believe from all the circumstances of the ease * * * that these men were there without previous conference, that they went there simply for the purpose of getting work and did not go for the purpose of waylaying this woman and stealing, and the fact that they were there with these weapons and she was on her way back from the factory with her money, was simply a coincidence, then you are justified in giving them the benefit of the reasonable doubt and finding them not guilty.” Held, error because depriving the defendants of the benefit of a reasonable doubt unless the jury had in fact concluded that they were guiltless.</p>

<p>1. The plea of liberum tenementum does not justify the commission of a trespass against a tenant which is alleged to have been committed “with force and arms and with strong hand.”</p> <p>2. Trespass to plaintiffs personalty and to his person may not be justified by proceedings in executing a judgment obtained by the defendant against a third party.</p>

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

<p>Where the record presented for the reversal of a judgment of the state board of equalization of taxes shows merely the naked judgment of the hoard, and not the facts upon which it was based, this court will not review the question unless it clearly appear by the record that to reach the judgment some legal principle must have been violated or ignored.</p>

<p>1. Where the streets of a city are committed to the care of the municipality, their general use and improvement in the interest of the convenience, comfort and taste of the public is a matter of municipal discretion which will not be interfered with in the absence of its clear abuse, so long as the use is not inconsistent with the public use or a clear invasion of a private right.</p> <p>2. Where the power conferred is not required to be exercised by ordinance, and the charter is silent upon the subject, the municipal council may exercise it by resolution.</p>

<p>On certiorari.</p>

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

<p>The ordinance of Jnne 21st, 1909, providing for the appointment of life guards to patrol the beach and protect life, is a legitimate exercise of the police power conferred upon Ocean City by its charter.</p>

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

<p>1. Plaintiff, desiring to become á passenger upon an eastbound electric car upon defendant’s Montgomery street line in Jersey City, ■waited upon the northerly side of the street until such a car came into view about five hundred feet away: she saw the car coming, but could not tell at what speed; at the same time a westbound car was slowing down to a stop opposite to where she stood; she started to cross the street, was obliged to wait for the westbound ear, then starting again, to pass her, and she then walked behind this car and passed upon the eastbound track, and as she was about to step from the further rail of that, track she was struck by the eastbound car; there was evidence tending to show that this car was running at excessive speed, estimated as high as thirty miles per hour, that the motorman was not keeping a careful lookout, had not his car under control, and failed to ring his warning bell; from the evidence the jury might reasonably infer that the noise of the eastbound car was drowned by the noise of the westbound car, then gathering speed, that the plaintiff before leaving the westbound track made an observation by looking np the eastbound track for a considerable distance, and far enough to have made it safe for her to cross except for the bigb speed of the eastbound car, and that she (having no notice of that excessive speed) went forward in reliance upon the observation thus made. Held, that the question of her contributory negligence was properly submitted to the jury.</p> <p>2. North Jersey Street Ry. Co. v. Block, 26 Vroom 605, and Consolidated Traction Co. v. Glynn, 30 Id. 432, followed.</p> <p>3. Eagen v. Jersey City, &c., Ry. Co., 45 Vroom 699; Hageman v. North Jersey St. Ry. Co., Id. 279; 46 Id. 939; and Shuler v. North Jersey St. Ry. Co., Id. 824, distinguished.</p>

On error to the Middlesex Circuit Court, where the casé was heard before Mr. Justice Swayze, who delivered the following opinion: This is a contest between two judgment creditors, both of whom claim priority of payment out of the proceeds of land sold under execution. The Rogers writ was first delivered to the sheriff. Both writs were returnable on the third Tuesday of September, 1906.

<p>On error to Passaic County Court of Oyer and Terminer.</p>

<p>On error to the Supreme Court, whose opinion is reported in 49 Vroom 296.</p>

<p>On error to the Supreme Court, whose opinion is reported in 49 Vroom 289.</p>

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

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

<p>1. In actions for negligence the defendant’s insurance against loss is not a proper matter for the consideration of the jury upon the question of his negligence.</p> <p>2. Where the existence of negligence depends upon the conclusion to be reached from a variety of circumstances considered in their relation to and their reaction upon each other, the jury and not the court is normally the tribunal to draw such conclusion.</p>

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

<p>1. Where the rightful owner gains possession of lands by a forcible entry, lie may, as punishment for his violence, be deprived of it by the statutory proceeding in favor of one in actual peaceable possession, although not rightfully entitled thereto.</p> <p>2. It is essential to the maintenance of the action for forcible entry that the complainant should have been in peaceable possession.</p> <p>3. Mere occupancy or, personal presence of the complainant upon the ground does not of itself constitute such possession as will sustain an action of forcible entry.</p> <p>4. A mere trespasser cannot by the very act of trespass immediately and without excuse, give himself what the law understands by possession against the person whom he ejects. Brown v. Dawson, 12 A. & E. 624, followed.</p>

<p>. 1. The judgment of the Supreme Court is affirmed, for the reasons stated in the syllabi and opinion in that court.</p> <p>2. Defendant’s counsel, at the close of the counsel’s argument, stated to the court that he wished to assign as error certain remarks of the prosecutor in his argument. No judicial action by the trial court was requested or made, and no exception was sealed to any ruling or refusal to rule respecting those remarks. Held, that although the entire record was brought up under section 136 of the Criminal Procedure act, yet no injury to the defendant appeared which defendant was entitled to specify without a bill of exceptions.</p>

<p>1. In an action to recover for the wrongful death of plaintiff’s intestate, contributory negligence of the decedent is a matter of , defence, and the plaintiff is not required to prove its absence, as a part of his case.</p> <p>2. No presumption of negligence upon the part of the decedent arises from the mere occurrence of an accident at a railroad crossing. To justify a nonsuit, the contributory negligence of the decedent must clearly appear conclusively as a fact, or by necessary exclusive inference, from the plaintiff’s proof.</p> <p>3. AVhere the evidence, when the plaintiff rests, leaves the contributory negligence of the plaintiff’s intestate in doubt, the determination of the question must be submitted to the jury.</p>

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

<p>1. A company operating an electric street railway car is bound to exercise a high degree of care to carry its passengers safely in and upon whatever part of the car they ride with the express or implied consent of the company.</p> <p>2. It is not negligence per se for a passenger to ride upon the step of the platform of an electric street railway oar.</p> <p>3. Where the evidence tends to show that the plaintiff’s intestate, with the defendant’s consent, rode as a passenger upon the step of the platform of the defendant’s electric street railway car because there was no room on the platform or in the car, and that while he was so riding, with his back to the road, holding on to the stanchion with his right hand, the servants of the defendant, without any warning to decedent, drove the car at a speed of twenty miles an hour around a “sharp curve,” whereby the decedent was thrown to the ground ten feet distant from the track and killed, both the questions of the negligence of the defendant and the contributory negligence of the decedent are for the jury.</p>

<p>Plaintiff sustained personal injuries while a passenger on an open trolley car operated by defendant. Upon the evidence submitted, the jury might have found that he was standing inside the car, leaning against the guard rail, and that while the car was running at very high speed the trolley left the overhead wire, and the pole striking one or more cross wires bounced backward and downward and was bent thereby sufficiently to strike, and did strike, plaintiff, inflicting the injury complained of. Held, a question for the jury whether the defendant should not, in the exercise of proper care, have anticipated some such accident as the result of the combination of high speed and a displaced trolley, and have taken measures to prevent it.</p>

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

<p>1. Where part of a street between the two next adjacent cross streets is vacated, all of the land between the cross streets bounding on the partly vacated street suffers a special injury, whether it abuts on the vacated portion or not, for which damages may be appraised and awarded, under a statute requiring a city to pay damages caused by the vacation of any street.</p> <p>2. The building of a railroad embankment across such vacated portion of a street is not an element to be considered in assessing the damage resulting from the vacation, in part, of such street.</p>

<p>Plaintiff, as the servant of defendant, was engaged in cutting the rough edges from boards with a circular saw which would stop when he pressed the boards against it with too much force, until the pressure was removed by pulling the boards from the saw. Tlrs plaintiff did several times, and knew from experience that the saw would start its revolutions immediately the pressure was relieved. In withdrawing a board he placed his hand in such a position that it was brought in contact with the saw, and when it started liis hand was cut. Held, that the danger of injury under such circumstances was not latent but obvious, and one which the plaintiff assumed as a part of his contract of employment, which he had accepted without complaint of inexperience or want of knowledge of the method of performing the task assigned to him, and that he was properly nonsuited in an action to recover from his master damages for his injury.</p>

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

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

<p>Where the contract between the parties provided in effect that .the plaintiff was to be taken into defendant’s employ as a salesman upon trial for the period of three months, and thereafter to be retained in the employment if his service was satisfactory during that period, and it appeared that his service being unsatisfactory he was discharged for that reason at the end of two weeks —Held, that plaintiff under the terms of the contract was engaged for the period of three months, and that he was entitled to recover the agreed wages for that period, regardless of his efficiency as a salesman during the time.</p>

<p>1. Chapter 248 of the laws of 3906 held, to confer upon a married woman the right to maintain an action in her own name, and without joining her husband therein to recover damages for a tort committed against her.</p> <p>2. The alienation of the affections of the husband of a married woman is a tort committed against her to recover damages for which, under' the provisions of the act of 1906, chapter 248, she may maintain an action in her own name and without joining her husband therein.</p>

<p>On error to Hudson Comity Oyer and Terminer.</p>

<p>Oil error to the Union County Cireuii Court.</p>

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

<p>On error to Supreme Court, whose opinion is reported in 49 Vroom 101.</p>

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

<p>On error to Supreme Court, whose opinion is reported in 49 Vroom 34.</p>

<p>On error to Supreme Court, whose opinion is reported in 49 Vroom 77.</p>

<p>On error to Supreme Court, whose opinion is reported in 48 Vroom 375.</p>

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

On. error to the Supreme Court, whose decision was based upon the grounds set forth in the following memorandum: This was an action for personal injuries. The case made by the plaintiff was as follows: He was driving on Bloomfield avenue, a public road in the county of Essex leading from Newark to Bloomfield, on an evening in October, 1906, on the right-hand side of the road.

<p>On error to the Supreme Court, whose opinion is reported in 49 Vroom 44.</p>