Volume 80 — New Jersey Law Reports

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

<p>1. The duty of the foreman of a crew engaged in repairing a railroad track to give timely warning to the members of the crew of the approach of trains is a duty imposed 'upon him as the representative of the master, and the master is answerable for the consequences of his negligence in that regard.</p> <p>2. .A member of a track repair crew whose foreman is required to give him timely notice of the approach of trains cannot be said, as a matter of law, to be negligent in relying altogether upon receiving warning from the foreman, and not making personal observation for his own protection.</p>

<p>1. A husband who suspects his wife of adultery may properly watch her in order to obtain proof of her guilt; but he is not justified in making opportunities for her to violate her marriage vows.</p> <p>2. A husband who observes diminution in the affection of his wife, and suspects that she is being tempted to be unfaithful to him, and yet takes no steps to hold her love, or to aid her in her struggle to resist temptation, and who finally affords the opportunity for her to fall from virtue, cannot rightfully complain if the jury takes his conduct into consideration in determining- the amount of damages to be awarded to him in an action against his wife’s seducer.</p>

<p>1. The law regulating remedies for the enforcement of contracts is that of the state where the remedies are pursued, not that of the state where the contract is made and is to be performed.</p> <p>2. The statute of limitations affects the remedy merely, and hence, in an action on a promissory note executed and payable in a sister state, the limitation of the law of the forum controls.</p>

<p>1. The running by a railroad company of a freight train containing a car, the door of which is in such a damaged condition as to be a menace to the safety of persons traveling in passing passenger trains, is prima facie a negligent act.</p> <p>2. When a railroad company owes to its passengers a duty to inspect its cars before putting them in service, and causes such inspection to be made, the question whether the inspection was a proper one is generally a question for the jury.</p> <p>3. The opinions of experts, except as to those matters of which they have knowledge not acquired by ordinary persons, have no place in judicial procedure.</p>

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

<p>1. Section 1 of the act concerning evidence provides that no person offered as a witness in any action of a criminal nature shall be excluded by reason of his having been convicted of crime, but permits such conviction to be shown on the cross-examination of the witness, or by the production of the record thereof, for the purpose of affecting his credit. Held, that a witness who admits on cross-examination that he has been convicted of crime is not entitled to weaken the effect of that admission by testifying that his conviction was illegal.</p> <p>2. The fact that a prisoner who is upon trial for the murder of his wife looked upon her dead body at the time of her funeral, and touched and kissed it, is not admissible in evidence for the purpose of showing the existence of love for her during life.</p> <p>3. A person on trial for murder is presumed to be innocent until he is found by the jury to have been guilty of a criminal homicide; but the presumption does not persist after that finding, and until the degree of his guilt is determined.</p> <p>4. An instruction to the jury defining “reasonable doubt” as a doubt which would exist when the judgment of the jury, after a careful review of all the evidence, finds itself unconvinced of the guilt of the prisoner, is not erroneous.</p> <p>5. An instruction to the jury upon the trial of a prisoner for the murder of his wife that if he either set fire to her clothing or caused fire to be set thereto for the purpose of producing her death, so that he might collect insurance which he had taken out upon her life, he was guilty of murder, and not manslaughter, is legally unobjectionable.</p> <p>6. Error cannot be assigned upon the failure of a trial court to direct a verdict of acquittal in a criminal case, unless such instruction is asked and refused.</p> <p>7. When an alleged dying declaration has been admitted in evidence, the truthfulness of the witnesses who testified to its having been made, and the truthfulness of the declaration itself, if it was made, are both of them questions for the jury.</p>

<p>1. Section 1 of “An act to provide for the permanent improvement of public roads in this state” (Pamp'h. L. 1905, p. 94) calls for the exercise by boards of chosen freeholders of a discretion based wholly upon the needs and benefits of their counties, and hence affords no authority for a resolution to improve a highway, on which a trolley line is operated, based upon a bargain and contract with such company by which the board obligates itself to improve such highway if the trolley company will bear a certain proportion of the expense.</p> <p>2. Section 4 of the act of 1905, as amended in 1908 (Pamph. L., p. 561), authorizes the awarding of contracts for road improvements in any one year in excess of the amount raised for such purposes in that year, provided such excess be not greater than one-fifth of one per cent, of the ratables of the preceding year.</p>

<p>On plaintiff’s application for a rule to show cause.</p>

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

<p>On. certiorari.</p>

<p>On appeal.</p> <p>Matthew Daly, the appellant, bought from one Wickham a cash register, for the recovery of the possession of which the National Cash Eegisfer Company (here the appellee) brought replevin and showed title tinder a lease to Wickham for nine months for $135, which Wickham was to pay in nine monthly installments, and also to give as security his note for $135 and also to deposit in cash with the appellee $15. At the end of the nine months Wickham was to surrender the register ancl either get hack his $15 deposit or, at his option, purchase the register for the $15 so deposited.</p> <p>Judgment in the District Court having been given for the plaintiff in replevin, the question on this appeal by Daly is whether the agreement between the appellee and Wickham was in effect a conditional sale and hence void as against Daly because unrecorded.</p>

<p>Assuming' that the costs to which a defendant is entitled upon a discontinuance of an action by the plaintiff may in the discretion of the court include his witness fees at two trials, one of which resulted in a disagreement of the jury and the other in a verdict for defendant that was wiped out by a venire de novo awarded upon writ of error—Held, under the circumstances of the present case, the defendant was not entitled to have such expenses taxed against the plaintiff.</p>

<p>The fact that a solicitor who is covinously retaining $2,200 from his client, refuses to pay to her another sum of $400 that he admittedly owes to her, excepting upon condition that she release him from all claims she may have against him, is some evidence that the latter sum is retained with intent to convert it under circumstances of concealment and dissimulation that make such intent a fraudulent one.</p>

<p>1. It is error to enter a judgment against one defendant separately and a judgment against him and another jointly in the same action.</p> <p>2. A person who enters into a written contract which purports to be made with a corporation, is not thereby estspped in a §ase where there is no colorable organization of a de facto corporation, from showing that the corporate name was a name under which the individuals with whom he dealt were .trading.</p> <p>3. Where a witness testifies to the correctness of an account kept by himself, the book containing the account is admissible not as a shop book and as evidence in itself, but as the witness’ record of his past recollection.</p>

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

<p>1. In determining- whether the prosecutor of a certiorari in a case of a public improvement is barred by laches, a distinction is to be made between a case where the effort is to set aside the proceedings for the improvement itself and a ease where the effort is to set aside the assessment for benefits.</p> <p>2. In the ordinary case where a sidewalk is an appendage to the abutting property, essential to its beneficial use, it is proper to impose the entire expense of construction upon the abutting owner; but in a ease where the sidewalk is not an appendage to the property, but is built for the accommodation of the general public, a special assessment for its cost must be limited, as in other cases, to the special benefits conferred.</p> <p>3. A city by virtue of power given in its charter to construct sidewalks at the expense of the abutting owner, passed, an ordinance for the paving of a sidewalk along the Morris canal, which at that point was fenced off from the highway; the sidewalk on the opposite side of the street, where the houses were located, was not required to be paved; the sidewalk was of no benefit to the owners of the canal. Held, that they could not be subjected to a special assessment for benefits.</p>

<p>Where a contract for the publication of an advertisement is broken by the advertiser ordering' its discontinuance, the damages are prima facie the compensation for the full term for which the advertisement was to run, and the burden of proof is upon the defendant to show any mitigation of the damages by reason of what might have been earned by the publisher from other advertisers.</p>

<p>On certiorari to Eirst District Court of Jersey City.</p>

<p>In an action on a policy of life insurance which provided that the policy should become void if the insured had had before its date any pulmonary disease, the defendant relied upon evidence of the attending physician, who testified to the existence of the disease prior to the date of the policy, and that he had then told the deceased’s wife of the fact; the wife testified that he told her after the date of the policy; it appeared that the physician had made a different statement in the proofs of death, and that he now relied for the date upon a statement from the state laboratory as to the examination of sputum. Held, that it was a question for the jury whether the insured had had pulmonary disease at the date of the policy.</p>

<p>In an action for injuries caused by the bite of a dog, the only proof of scienter was the testimony of a witness that he had frequently visited the defendants at their home, that all were accustomed to play with the dog, that it was full of play and would jump around and snap at them, just in play. Seld, that there was a failure to prove any mischievous propensity of the dog to bite.</p>

<p>A statute which empowers the Court of Common Pleas, upon the initiative of ten citizens, who are not required to be taxpayers or residents of the municipalities concerned, to appoint commissioners to determine the bounds of a drainage district, the extent of the work to be done, and the cost to be incurred, independent of any control by the voters, and requires the municipalities to pay the cost as ascertained by the commissioners, is a delegation of the power of taxation unconstitutional under the rule of Van Cleve v. Passaic Valley Sewerage Commissioners, 42 Vroom 574.</p>

<p>A writ oí certiorari to review an order of a circuit judge setting aside a previous order by which he had appointed commissioners of adjustment of arrearages of taxes, will be dismissed when the order under review was made upon application of the municipal authorities and the case fails to show that there were arrearages subject to adjustment.</p>

<p>On certiorari.</p>

<p>A note signed by a husband was made payable to the order of his wife, who endorsed it for the husband’s accommodation, and he delivered the note to his creditors in New York City. The note was dated and made payable in New Jersey. Meld, that in the absence of any evidence showing that the husband was empowered by the wife, expressly or impliedly, to pass away the note elsewhere than in New Jersey, it would be presumed to be a New Jersey contract.</p>

<p>A wife endorsing, for accommodation, a note of her husband in New Jersey, and made payable there to his creditor, and transmitted by mail to the creditor in a sister state, who received it in due course of mail, is not liable thereon to the creditor.</p>

<p>Where an assignment has been made by a firm for the benefit of its creditors, and the assignee reassigned the property to the assignor in order that the latter might reassign to a third person, who promised, in consideration of the said assignment, to pay the firm’s debts—Held, that the promise to pay the firm debts was enforceable by a firm creditor. The fact that this creditor had misstated the amount of his claim to the assignor in making up the list of creditors annexed to the original assignment, did not bar such creditor from recovering a less sum due him by the firm in an action upon the promise of the defendant to pay the debts of the assigning firm.</p>

<p>1. The state of the case shows facts from which the trial court could infer that certain injuries to the houses of the complainant were caused by the act of the defendant in blasting rock in excavating a cut for a railroad.</p> <p>2. The facts also were such that the court could infer that the said work of blasting was not done with reasonable care taken to protect the said property of the plaintiff from said injuries.</p>

<p>In the examination of a party defendant in a proceeding for discovery supplemental to an execution in a District Court, the defendant swore that he might have had a little more or a little loss than two hundred dollars. On a later date he produced receipts showing that after the previous examination he had paid other creditors more than two hundred dollars. The court adjudged defendant to be guilty of contempt, and ordered him to be imprisoned until he paid the judgment against him and costs. Held, that the commitment of the defendant could not rest upon the general power of the District Court to punish contempts, because the contempt, if existing, consisted in the disobedience of an order requiring the defendant to make discovery, and the disobedience of any order is provided for in section 204, PampJi. L. 1898, which limits the punishment to a fine not exceeding fifty dollars and imprisonment until the fine is paid and the disobeyed order is complied with.</p>

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

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

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

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

<p>The plaintiff, a wholesale dealer, sold to the defendant, a hardware dealer, twelve dozen razors under a contract containing a stipulation that the plaintiff would insert an advertisement in an Atlantic City newspaper, which advertisement should contain the name of the defendant as the selling agent of the razors for that town in the hardware trade, and that all inquiries to the plaintiff should be referred to the defendant. In an action to recover the price of the razors, the defendant offered evidence to show that the plaintiff had, during the period covered by the contract with the defendant, sold razors to a druggist doing business in the same block as the defendant, and that the druggist had sold such razors at a less price than was permitted by the defendant in his contract with the plaintiff. Held, that the offer of this testimony was improperly overruled; that by the terms of the contract the defendant was to be considered the sole agent for the sale of said razors in the hardware trade in said city, and that the drug-gist, so far as he sold cutlery, was engaged in the hardware trade.</p>

<p>On demurrer to the first nine counts of a declaration.</p>

<p>In Pamph. L. 1897, p. 232, and in Pamph. L. 1897, p. 323, § 76, as amended by Pamph. L. 1899, p. 159, the phrases, “any adjoining municipal corporation” and “any adjoining municipality,” refer only to municipalities whose corporate territories are contiguous.</p>

<p>On certiorari.</p>

<p>Where the buyer of goods, on finding that they are not as warranted, has chosen to rescind the contract of sale, he cannot recover damages for breach of the contract in an action against him by the seller for the purchase, price.</p>

<p>1. On certiorari an order appointing commissioners lor the condemnation of land, under the act of April 1st, 1893 (Pamph. L., p. 769; Gen. Stat., p. 3388), or the act of March 17th, 1891 (Pamph. L., p. 172; Gen. Stat., p. 1383), if it appears that a bona fide reasonable effort to purchase has not been unsuccessfully made by the petitioning parts', although the owner was accessible and competent to sell, the order will be set aside.</p> <p>2. In view of the act of March 28th, 1891 (Pamph. L., p. 249; Gen. Stat., p. 465), conferring upon the board of street and water commissioners exclusive control over lands of Jersey City used for public streets or like public purposes, a mere unsuccessful effort to agree with the mayor of the city as to the purchase price of the right to lay and maintain water mains in such lands is not such an effort to agree with the owner as is made a condition precedent to the appointment of commissioners to condemn under the .act of April 1st, 1895 (Pamph. L., p. 769; Gen. Stat., p. 1388), or the act of March 17th, 1891 (Pamph. L., p. 172; Gen. Stat., p. 1383).</p>

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

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

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

<p>A city lot, owned by a railroad company, which is vacant and not used for railroad purposes, and not within the present or proposed lines of the company’s right of way, nor necessary at present for the enjoyment of its franchises, is liable to assessment for street improvement, though the land was acquired by the company with the intention *of using it some time in the future for additional tracks when required by the exigencies of its business.</p>

<p>On February 3d, 1908, the plaintiff, while riding in a wagon, was run into by the defendant’s trolley car, and as a.result his horso and wagon were damaged, and he was injured in his person. He brought suit to recover damages for injuries to his horse and wagon and recovered a judgment for $200.75 on August 10th, 1908, which judgment was paid. On August 19th, 1908, he brought suit to recover damages for the injuries to his person received in the same accident. Held, that the first judgment, and its satisfaction, bars the second action.</p>

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

<p>1. A motion to strike out causes of demurrer is not recognized by our practice.</p> <p>2. A declaration which charges in effect that defendant was retained as attorney to protect and foreclose a mortgage and redeem from prior liens, and that by reason of his failure to foreclose the mortgage within a reasonable time, or to advise the client of its liabilities arising under a tax sale of the mortgaged premises, the property was sold and the lien of the mortgage lost, or jeopardized, and trouble and expense in its enforcement caused, sets up a good cause of action.</p> <p>3. In a declaration against an attorney for negligence it need not be averred that his fees were paid.</p>

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

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

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

<p>1. An objection not pointed out by any reason filed cannot prevail on certiorari.</p> <p>2. Chapter 297 of the laws of 1908, as amended by chapter 142 of the laws of 1909, vesting the powers and duties of the state sewerage commission in the state board of health, does not have the effect of intermixing in the Sewerage Commission acts of 1899 and 1900 things that have no proper relation to those acts.</p>

<p>1. The sixth section of the General Corporation act of 1846 (Nix. Dig., p. 168), providing that “the charter of every corporation which shall thereafter be granted by the legislature shall be subject to alteration, suspension and repeal, in the discretion of tho legislature,” operated as effectively in reserving the rights of alteration, suspension and repeal as if it had been inserted in each charter thereafter granted.</p> <p>2. Section 1 of the “Act relating to turnpike companies” (Pamph. L. 1882, p. 29), as amended by Pamph. L. 1892, p. 194, prescribing' a mode of procedure against a turnpike company for failure to maintain its road, superseded a similar but not identical method of procedure contained in the charter of prosecutor granted in 1866, and therefore subject to the above provision of the Corporation act.</p> <p>3. In view of the substantial similarity of procedure and identity of remedy provided both in the charter and the act of 1892, the latter act is not unconstitutional as depriving' prosecutor of property without due process of law, though the procedure be summary in its nature; such a procedure being agreed to by prosecutor in accepting its charter.</p> <p>4. The complaint and notice in this case sufficiently specify the character of the defects in the road; and also sufficiently specify the particular part of the road complained of, though the complaint stated that the entire road was defective.</p>

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

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

<p>The amendment of section 31 of the District Court act, which enacts “nor shall any justice of the peace resident within the limits of any city or judicial district, where a District Court is or may be established, exercise any civil jurisdiction whatever,” is germane to the object expressed in the title of the act entitled “An act concerning' District Courts,” and fulfills the constitutional requirement in that respect.</p>

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

<p>Where a mortgagee is insured against loss by fire by the usual standard mortgagee clause annexed to a policy in favor of the owner, the indemnity is personal, and when he assigns his mortgage, without transferring his interest in the contract of insurance, the assignment of the mortgage does not transfer an actionable interest sufficient to support a suit at law by the assignee to recover damages resulting from the burning of a building on the mortgaged premises. a</p>

<p>By the terms ol the act of 1906 (Pamph. L., p. 525), a married woman is empowered to maintain an action at law to recover damages for any tort committed against her person or property, as fully as if unmarried, free from any control of her husband, and in such action the release of the husband of all damages to himself and wife, which are the subject of the action of the wife, is not admissible as a bar to her suit. Under the statute mentioned a husband cannot control the wife in any degree in the enforcement of her claim for damages in a case of tort against her person or property, and therefore the husband cannot release her claim, for that would most effectively control its enforcement.</p>

<p>On motion to quash indictment for conspiracy found in the Atlantic County Court of Oyer and Terminer.</p>

<p>1. A boy, seven years of age, of ordinary intelligence, sufficiently so to be allowed by the trial court to be sworn and testify regarding occurrences resulting in his being struck and injured by an automobile on a public highway, is not altogether exempted from the exercise of care and prudence in approaching a known danger, and if it appears that he is sui juris, and that he has been the heedless instrument of his own injury, lie cannot recover.</p> <p>2. To instruct the jury that it was a question for them to settle whether, having seen plaintiff seventy-five feet away, it was not the duty of the defendant to decrease the speed of an automobile so as to have it under such reasonable control as not to run against plaintiff, “even if lie was acting in the most careless way possible,” is error.</p>

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

On certiorari. This writ was allowed to remove an ordinance of the borough of Manasquan introduced and passed to its first and second readings at a meeting of the council of that borough held June 32d, 1909, and passed on final reading July 13th, 1909, and on the same day approved by the mayor.

<p>1. While partnership accounts remain unsettled, and no balance has been struck, though the partnership has been dissolved, no action at law can be maintained by one partner against another, except an action of account.</p> <p>2. Facts not sufficiently pleaded are not admitted by a demurrer.</p>

<p>1. Where a demurrer is interposed to a declaration, the form and validity of the summons cannot thus be challenged.</p> <p>2. To recover a penalty under the Timber act (Gen. Stat., p. 3484) the action must be in contract.</p> <p>3. In an action under the Timber act (Gen, 8tat., p. 34S4) to recover a penalty for cutting trees, failure to aver in the declaration that the trees were cut without leave first had and obtained of the owner of the land is fatal.</p>

<p>The plaintiff was a passenger upon the defendant’s vestibuled train to be carried to its terminal station in Jersey City. The plaintiff did not obtain a seat in the car which he boarded because the company failed to furnish seats inside its passenger cars sufficient for the proper accommodation of its passengers. In passing from car to car in search of a seat, the plaintiff, at a point four or live blocks from the terminal station, was precipitated to the ground and injured, because the traps and door of the vestibule had been previously opened and been allowed to remain open when the accident occurred. That a notice had been posted, under authority of the statute, that “Passengers must keep off the platform until the train stops.” Held—</p> <p>(1) That if it was not negligent to have the traps open at the place of the accident, then the fact that they had been opened and remained open before that was immaterial.</p> <p>(2) That in the face of the rules of the company to the contrary, authorized by the statute (Pam.pTi. L. 1903, p. 666), it will not be presumed from the use of vestibuled cars that a passenger is impliedly invited to pass at will from car to car of a moving train.</p> <p>(3) Under the act (Pamph. L. 1903, p. 666), and the posted regulations authorized by it, the only use which the passengers could legally make of the vestibule while the train was in motion, was to pass from car to car for the purpose of obtaining a seat.</p> <p>(4) That the only duty involving on the defendant was to keep the platforms safe for the passengers rightfully there.</p> <p>(5) The open condition of the doors and traps does not raise the inference that a reasonably prudent man should have foreseen that a passenger under these conditions would have been likely to pass through the vestibule for the purpose stated, in the absence of proofs to show it.</p>

<p>1. Since the adoption of the one hundred and sixth section of the-Practice act (Pamph. I. 1903, p. 537), whereby the pleader may impute any meaning to the words published in an action of libel,, a demurrer to a declaration is unavailing to question the propriety of the imputed meaning, for the imputed meaning of the. words is admitted by the demurrer.</p> <p>2. When a declaration charges the defendant with the composition and publication of a libelous article, it is immaterial that the-article is couched in the form of hearsay.</p>

<p>1. Where a prosecutor has a direct interest in setting aside a municipal ordinance, if any of the reasons for so adjudicating are valid, and at the same time is a cause for which the court will vacate the ordinance in toto, the court may adjudge it to be void before any action to enforce it has been begun.</p> <p>2. That a municipal legislative body, empowered to prescribe a maximum penalty or fine for the violation of a by-law within the limits set by the enabling enactment, may leave to the magistrate the discretion to adjust the punishment, is now beyond dispute, unless there appear an inconsistent legislative purpose.</p> <p>3. The fact that an ordinance prescribes that both fine and imprisonment may be inflicted, when one or the other only is authorized by statute, will not render the ordinance wholly void in advance of any attempt to enforce it.</p> <p>4. An attack upon an-ordinance by a prosecutor before conviction thereunder, declared nugatory because none of the reasons assigned goes to the invalidity of the whole ordinance under all conditions.</p>

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

<p>On rule to show cause why a writ of certiorari should not be allowed.</p>

<p>1. The prosecutor having established his residence in this state, and voted and paid taxes on his personal property here in 1905, and 'having sworn off his taxes in New York City for the same year upon the ground that he was a resident of Long Branch, will be presumed, in the absence of competent evidence to the contrary, to have continued his residence there for the succeeding year, and an assessment imposed upon him for that year, which was confirmed by the county board and the state board upon appeal after consideration of the question of residence, is affirmed.</p> <p>2. Por the purposes of taxation the question of residence may be determined by the well-settled rule which establishes the fact 'by the conduct of the party as evidencing the animus manendi.</p> <p>3. A legal residence once established will be presumed to continue until the contrary be satisfactorily shown.</p>

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

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

<p>1. As against objection that it prevents competition between bidders, a city acting in good faith in specifications for a pavement can restrict the use of materials to those manufactured by a particular firm or owned by a patentee.</p> <p>2. A demand in specifications for paving for a sample of the constituent elements of the proposed pavement, and a sample of the wearing surface, is not satisfied by the production en lloc of the perfected structure.</p>

<p>On writ of certiorari removing judgment of the state board of equalization of taxes.</p>

<p>Ou writ of certiorari removing the assessments.</p>

<p>On error to the Supreme Court, whose opinion is reported in 49 Vroom 134.</p>

<p>1. Where mortgagors undertook to dedicate a portion of the. mortgaged lands for a highway without the assent of the mortgagee— field, that such dedication created no more than an equity in the public, to have the land opened for a highway provided this did not interfere with the security of the mortgagee.</p> <p>2. Jersey City having taken proceedings for the opening of Cornelison avenue across a portion of certain mortgaged lands, and the mortgagors having afterwards (but without the assent of the mortgagee) assumed to dedicate another portion of the mortgaged lands for a highway to be known as York street, the mortgagee subsequently filed his bill in chancery for the foreclosure of the mortgage, and joined the municipal corporation as a parly defendant, setting up in the bill the proceedings taken for the opening of Cornelison avenue, but not specially averring the dedication of York street beyond including in the foreclosure bill a recital of certain conveyances made by the mortgagors with reference to York street and with reference to maps of the mortgaged premises publicly filed, which showed such a street; these maps and conveyances being the facts out of which the dedication of York street arose. The city answered the bill, averring that the mortgagee had consented to the taking and dedication of Cornelison avenue, and denying that there was any other matter in the bill necessaiw for the city to answer. A decree was made in the cause, pursuant to which an execution was issued to the sheriff, who sold thereunder the mortgaged lands, except so much as lay within the limits of Cornelison avenue, and the mortgagee became the purchaser at such sale. Held, that the rights of Jersey City, as representative of the public interest in York street were cut off by the foreclosure.</p> <p>3. The primary purpose of a foreclosure bill is to show the grounds of the complainant’s right to foreclose, and to bring before the court all the parties whose interests are sought to be foreclosed. Tf the bill does this, and a decree for complainant follows in due course, its effect is not limited nor the title made by sale thereunder impaired, by the fact that the complainant has failed to state every right or interest of the defendants that is subject to the, mortgage.</p>

<p>1. The duties of a railway policeman, appointed on the application of a railroad company and commissioned by the governor pursuant to the “Act concerning- carriers” (Pamph. L. 1904, p. 322, § 4). are confined to criminal cases.</p> <p>2. If x-ailway policemen appointed and commissioned under the act [Pamph. L. 1904. p. 322, § 4) are employed in matters aside from their duties under the statute, the employer may be held answerable for what they do, the same as in other cases of agency.</p> <p>3. Tucker v. Erie Railroad Co., 40 Vroom 19, distinguished.</p>

<p>1. An agreement to forbear action at law for an existing indebtedness furnishes a sufficient and lawful consideration for an undertaking by a third party to pay the debt.</p> <p>2. A promise to forbear action at law for an existing indebtedness wliere no period is fixed, imports that the forbearance shall be for a reasonable time, and furnishes a sufficient consideration for the undertaking of a third party to pay the' debt.</p> <p>3. A partial failure of consideration operates not as a complete defence, but only as a ground for an abatement of the damages.</p> <p>4. A promise may be a sufficient consideration for a promise; and it is the promise, and not the performance thereof, that constitutes the consideration, except where, by the terms or necessary intendment of the agreement, performance on one side is made a condition precedent to performance on the other.</p>

<p>1. C., who bad in his possession goods belonging to J., shipped them by express to the owner. By the terms of the contract made by G. with the carrier the liability of the latter, in case of the loss of the goods during transit, was limited to less than one-twelfth of their value. The goods were so lost. Held, that J. was entitled to recover from G. the value of the goods.</p> <p>2. Where a claim is unliquidated, or in dispute, a payment and acceptance of a less sum than that claimed, in satisfaction, will, ordinarily, operate as an accord and satisfaction; but the receiving of a part of a debt which is due, under an agreement that the same shall be in full satisfaction, is generally considered to be no bar to an action for the residue.</p>

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

On error to the Supreme Court. This proceeding was instituted by the presentation of the following petition: “To the Honorable Francis J. Swayze, a justice of the Supreme Court of Judicature of the State of Hew Jersey, and presiding judge of the Court of Oyer and Terminer of the county of Hudson, in this state. “The petition of Pierre P. Garven respectfully shows unto your honor that he is the prosecutor of the pleas of the county of Hudson; that there is now pending in said…

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

On error io the Supreme Court. By this writ of error Herman M. Syplierd, trustee in bankruptcy of Channell Brothers, seeks to reverse a judgment of the Supreme Court entered upon a verdict directed in his favor for six cents damages against Charles E. Myers, whom plaintiff in error had sued for the breach of an option given to his bankrupts. Myers had leased the Piedmont Hotel to Channell Brothers for one year.

On error to the Supreme Court. The judgment recovered by the plaintiff in the Circuit Court was removed by writ of error to the Supreme Court, where it was reversed for the reason given in the following per curiam opinion: “This action was brought by Thomson to recover damages for the breach of a contract under seal, alleged to have been made by the defendant company to one Albert M. Jordan.

<p>A vendee in possession under a contract of sale is entitled to compensation where the land is condemned.</p>

<p>A township transferred in 1897 to the Essex park commission existing under the act of 1895 {Gen. Stai., p. 2618), the care, custody and control of an avenue which had been controlled by the Essex public road board, so far as the same was within the territory and under the control of the township, only to the extent and for the purposes expressed and limited by the act of 1895 and of the supplements and amendments thereto; subsequently, and after the passage of -the amendment of March 20th, 1899 {Pamph. L., p. 92), the township became incorporated as a city under the act of March 24th, 1899 {Pamph. L., p. 283). Held, that the city was without power to construct a sidewalk along the avenue and assess for special benefils.</p>

<p>1. The right of a principal to terminate the relation between him and his agent without liability to the latter, depends on the terms of the contract, and if the agent is discharged in violation of those terms, he has a right of action for the wrongful discharge.</p> <p>2. In every contract of service, including that of agency, it is implied that the employe shall obey the lawful orders of the employer, at least so far as they are reasonable and not merely arbitrary or capricious.</p> <p>3. The duty of an agent to account involves the right of the principal to assure himself that the accounts are proper and correct, and measures taken in good faith by the principal to secure a proper accounting and to assure himself of its propriety are not in violation of the contract between principal and agent, although they may not be within its express terms.</p> <p>4. An agent to solicit life insurance and collect premiums refused to permit an inspector of his company to do what was necessary for an ideal inspection. Held, that such refusal was sufficient cause for his discharge.</p> <p>5. An agent to solicit life insurance and collect premiums was forbidden to collect by mail by a rule adopted after he entered upon the employment, of which he had notice. Held, that a violation of this rule by him justified his discharge.</p> <p>6. An agent for a life insurance company was, under his agreement, entitled to “tw-enty per cent, on collections and nine times the first premium for writing itafter he had written many policies he w'as discharged for cause. Held, that he was not entitled to damages because the company prevented him from collecting premiums that became due after his discharge.</p>

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

<p>1. The written consents of abutting landowners required by the act of April 21st, 1896 (Pamph. L., p. 329), to confer jurisdiction upon the governing body of a municipality to grant permission for the construction of a street railway in the street, are, in effect, votes, and the public interests involved clothe such votes with a public character, and hence exclude the idea that they may be lawfully cast from any motive of exclusive personal profit or benefit.</p> <p>2. A consent of an abutting landowner required by the act of April 23 st, 1896 (Pamph. L., p. 329), to confer jurisdiction upon the governing body of a, municipality to grant permission for the construction of a street railway in the street contained a proviso “but without switch.” Held—</p> <p>(1) That the proviso “but without switch” in the consent is illicit and hence nugatory in two respects—first, because it is for the exclusive personal benefit of the consenting landowner, and, second, because it is the substitution of another will for that of the representative of the public interests.</p> <p>(2) That the proviso did not nullify the consent.</p> <p>(3) That the consent, notwithstanding the proviso, was effectual for the purpose of conferring jurisdiction upon the legislative body of the municipality to grant permission for the construction of the railway.</p> <p>(4) That, having thus acquired jurisdiction over tlie subject-matter, the legislative body could lawfully disregard the proviso “but without switch.”</p>

<p>1. A person who enters into the employ of another assumes to understand it, and assumes all the risks usually incident to the employment; and included in such risks are those arising in consequence of special features of danger known to him, or which he could have discovered by the exercise of reasonable care, or which should have been observed by one ordinarily skilled in the employment in which he engages.</p> <p>2. Where the proofs will not support any other verdict than that directed by the trial judge, the direction is proper.</p>

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

<p>Adyice by an attorney to a client as to the business integrity of a third person with whom such client has been dealing, is privileged. ■ But when such advice is given in a public or semi-public place in a loud voice and in hearing of divers persons, and is addressed not to the client but to the third person, is slanderous, and without need of either publicity or loud utterance, express malice is a jury question.</p>

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

<p>The plaintiff conveyed a tract of land to the defendant, and in his deed reserved certain easements upon condition that their user be approved by a third person not a party to the deed. At the same time, and as a part of the same transaction, the defendant conveyed to plaintiff an adjoining tract, and in its deed granted to the plaintiff the same easements in the land conveyed by plaintiff to defendant as those reserved, without being made subject to the condition attached to the reservation. Held—</p> <p>(1) That defendant’s grant was a waiver of the performance of the condition to which the reservation was subjected.</p> <p>(2) That, assuming the deeds were executed and delivered at the same time and as a part of the same transaction, the law will presume that they were delivered in the order of priority necessary to give effect to the intention of the parties.</p>

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

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

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

<p>The testimony tended to show that the defendant employed the plaintiff to furnish the labor and materials required to make certain additions to a building according to a plan furnished by defendant, nothing being said about the prices to be paid—Meld, that a motion to nonsuit rested upon the ground that it conclusively appeared that the plaintiff was not employed to furnish the materials and labor, but was such an agent of the defendant as is defined in the supplement to the Crimes act (Pamph. L. 1908, p. 587), was properly refused.</p>

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

<p>1. As against a trespasser, a malicious or intentional injury is actionable, while a merely negligent act will not form the basis of recovery, because the duly to observe reasonable care is not owing to the trespasser.</p> <p>2. That a defendant might reasonably have anticipated a possible injury to a trespasser plays no part in determining willfulness. There must be some evidence tending to show the maliciousness of the offender, that is, his intention to do an injury, else the jury are without authority to infer it.</p> <p>3. The rule that denies to a trespasser a duty on the part of others to observe care toward him is not changed by the fact that he is an infant.</p>

<p>Where the object of a self-serving declaration is to show a previous state of mind of the declarant, inconsistent with, and hence tending to rebut, an alleged previous course of conduct, which, if proved in the litigation, would be injurious to the party making the statement, such declaration in order to be competent evidence must be made at a time so near to the occurrence which gave rise to it, and under such circumstances, as to exclude the idea that it was premeditated or uttered after deliberation or reflection.</p>

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

<p>1. A policy of fire insurance made payable to a first mortgagee in the standard mortgagee clause cannot be altered by extrinsic testimony in a suit at law by the second mortgagee to recover thereon, for the purpose of establishing that the intention of the parties to the contract was to include the second mortgagee as a party to the contract.</p> <p>2. While evidence dehors the record is competent to explain a doubt or uncertainty in the case of a latent ambiguity, it cannot be introduced in a suit at law for the purpose of reconstructing the contract in suit as a basis for the liability alleged in the declaration.</p>

<p>1. Under the circumstances, as presented before tlie trial court by the case made by the plaintiff, and which are recited sufficiently in the following opinion—Held, the question of the contributory negligence of the plaintiff’s driver should have been submitted to the jury, and the judgment of nonsuit upon that ground was error.</p> <p>2. To justify such nonsuit the contributory negligence of the plaintiff must clearly appear, conclusively as a fact, or by necessary exclusive inference from the plaintiff’s evidence, and where the evidence, when the plaintiff rests, leaves the question of the plaintiff’s contributory negligence in doubt, the determination of that question must be submitted to the jury.</p>

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

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

<p>On error to the Supreme Court, whose opinion is reported in 49 Vroom 178.</p>

<p>On error to the Supreme Court, whose opinion is reported in 50 Vroom 203.</p>

<p>On error to the Supreme Court, whose opinion is reported in 50 Vroom 334.</p>

<p>On error to the Supreme Court, whose opinion is reported in 49 Vroom 1.</p>

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

<p>On error to the Supreme Court, whose opinion is reported ante p. 176.</p>

<p>On error to the Supreme Court, whose opinion is reported in 50 Vroom 241.</p>

<p>On error to the Supreme Court, whose opinion is reported in 49 Vroom 277.</p>

<p>On error to the Supreme Court, whose opinion is reported in 50 Vroom 193.</p>

<p>1. A person who obstructs a public highway, or renders its ordinary use dangerous, creates a public nuisance, and for injuries resulting directly therefrom to travelers upon the highway he is legally answerable.</p> <p>2. A person who places an obstruction in a public highway cannot relieve himself from responsibility for injuries resulting therefrom to a traveler upon the highway by showing that some other person is under a legal liability to remove it.</p>

<p>1. The jurisdiction conferred upon a board of excise commissioners, by the third section of the supplement of 1906 to the act regulating the sale of intoxicating liquors, to entertain applications to revoke licenses issued by it, upon the ground that holders thereof have violated the provisions of the act, is not dependent in a given case upon a conviction having first been had before another tribunal against the alleged violator.</p> <p>2. It is not necessary to the validity of an affidavit taken out of the state before a notary public that the jurat, or certificate, of the notary should contain a recital that he is such officer.</p>

On demurrer to plea. Case certified from the Union ' Circuit Court. The declaration in the present case contains averments which show that the death of the plaintiff’s intestate was caused by the wrongful act or negligence of the defendants; that his widow and child sustained pecuniary loss by his death, and that suit was begun within twenty-four calendar months after his death occurred.

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

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

<p>1. The act of April 13th, 1909, entitled “An act to extend and regulate the liability of employers for injury or death to employes in certain cases,” changes the common law rule which relieves the master from responsibility for injuries to a servant caused by the negligence of a fellow servant, and imposes liability upon the master for injuries so occasioned, in the class of cases embraced in the statute.</p> <p>2. The constitutional provision which declares that “every law shall embrace but one object, and that shall be expressed in the title,” does not require that the title of a statute, which deals with a certain class of cases, shall contain a recital of the various cases to which it applies. Neither does it require that the means by which the object of a statute is to be carried into effect shall be expressed in the title.</p> <p>3. The act of April 13th, 1909, is complete in itself; and the declaration contained in it that provisions of law relating to actions for causing death by negligence shall apply to actions brought under it by an executor or administrator of a deceased employe, is not a - violation of the constitutional mandate that the legislature shall not pass any act “which shall enact that any existing law, or any part thereof, shall be applicable except by inserting it in such act.”</p> <p>4. The act in question is a general, not a special, law, within tlie meaning of that clause of our constitution which requires the legislature to pass general laws providing for all cases which in its judgment may be provided for by general laws.</p>

<p>1. The excusing of a grand juror by the court, of its own motion, for sufficient cause, is a legitimate exercise of judicial power.</p> <p>2. An indictment drawn under a statute which makes criminal the act of a township officer in obtaining moneys from the township “not lawfully and justly due to said officer at the time of obtaining- the same,” averred that H. C., being an officer of the township of W., unlawfully and willfully obtained from that township “moneys of the township not being then and there lawfully and justly due to him the said H. C. from the said township of W.” Held, that the averment sets forth the crime denounced by the statute; that the words quoted convey the idea by necessary implication, that the moneys were not due to H. C. either in his official capacity or personally.</p> <p>3. An instruction to the jury that they have a right to consider the absence of corroboration of the testimony given by a defendant in a criminal trial, whenever such testimony might presumably have been corroborated, is not erroneous.</p>

<p>1. The only ground upon which a party to a litigation will be heard to attack the constitutionality of a statute is that it infringes upon some right given to him by the provision of the constitution which, it is claimed, has been violated.</p> <p>2. The permitting of an amendment to an indictment, charging the offence of keeping a disorderly house, the purpose of which is to change the period during which the nuisance was continued as declared by the grand jury in the indictment, is not a matter within the discretion of the court, and the granting of such permission is error.</p> <p>3. A defendant cannot legally be convicied of the offence of keeping a disorderly house upon proof that the house was one of ill fame, or that liquor was there sold without a license, unless these specific offences are mentioned in the recital of the various acts of misconduct set out in the indictment.</p>

<p>1. Mere remoteness of time is not a ground for excluding a conversation which is otherwise admissible in evidence.</p> <p>2. The refusal at the close of the state’s case to discharge a defendant in a criminal trial, although reviewable on error when the proceedings had upon the trial are brought up by the writ, will only justify a reversal of the conviction when there were no facts proper to be submitted to the jury which would support a conclusion of guilt.</p> <p>3. The defendant is not entitled, as a matter of right, to have the very language of a legal request submitted by him charged to the jury. All that he may insist upon is that the court shall correctly instruct the jury with relation to the subject-matter embraced in the request.</p> <p>4. A jury may convict a prisoner upon the testimony of an accomplice alone, if, in its judgment, such testimony is entirely credible and worthy of belief.</p>

<p>On certiorari.</p>

On certiorari. An ordinance of Ventnor City passed under Pamph. L. 1894, p. 146, is sought to be set aside on two grounds—first, because the interior line of the public park laid out by said ordinance is below low-water mark, and second, because the statute under which the ordinance was passed is unconstitutional.

<p>1. The power to name streets in Jersey City resides in its board of street and water commissioners.</p> <p>2. The naming of a street not theretofore so named is a legislative act, and the circumstance that such street has been called by a different name does not make such act a judicial one.</p>

On rule to show cause why a writ of mandamus, alternative or jieremptory, should not issue, directed to the state board of assessors and the clerk of the state board of assessors directing them and each of them to permit the relator at proper times and places and under proper supervision to examine and take copies of the records and returns of the various railroad and other companies mentioned in the affi davit filed with them and holding property in the county of Hudson.

<p>Where an employe’s duty to inspect an article he is using is incidental to his duty to use such article, an injury due to his failure to inspect cannot be charged by him to his employer if the latter has, to the knowledge of the employe, a supply of such articles on hand to be furnished to the employe upon his requisition.</p>

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

<p>On rule to show cause why leave should not be granted to file information in nature of quo warranto.</p>

<p>The record of the summary conviction under section 10 of the “Bishops’ law” (Pamph. L. 1906, p. 199), by which a license is forfeited, must contain enough of the substance of the evidence upon which the forfeiture rests to enable a court sitting in review to judge of its sufficiency.</p>

<p>On certiorari.</p> <p>Three writs bring up judgments of the hoard of equalization of taxes dismissing appeals made to it by the Public Service Bailway Company from the determination of the Bergen county board of taxation, by which one-half of certain turnpike bridges was assessed for taxation, the contention of the prosecutor being that the bridges so assessed were parts of turnpikes, and that the turnpikes were public highways and exempt from taxation.</p>

<p>Petition for leave to file quo warranto.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>Where a building contract provides for payment by installments, and a stop notice is served under the third section of the Mechanics’ Lien act, and installments sufficient to pay the amount have been earned and are due under the contract, the claimant under the stop notice is entitled to recover the amount of the owner, although the contractor may subsequently default, and the owner in completing the building under a provision to that effect in the contract may be put to such expense that the balance of the contract price, after deducting the cost of completion and payments already made, is less than the amount claimed by the stop notice.</p>

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

<p>On certiorari.</p>

<p>A contractor had legally dug a trench in a street. As a warning to night travelers, he caused two lanterns, filled with kerosene oil, with trimmed wicks, to be fastened to two boards, securely bound and placed one at one end the other at the other end of the trench. These lanterns were left burning at six o’clock in the evening. At seven-thirty o’clock and afterward they were not burning. In an action by one whose horse and carriage had been injured by tailing into the trench in the night, a court sitting without a jury found that the contractor was not responsible. Held, that the question whether the contractor was negligent in failing to take further precautions to maintain lights during the night was, in tlie circumstances, a question of fact, and the finding of the court below will not be disturbed.</p>

<p>1. Where improvements are limited to changing, increasing and repairing the interior arrangements and accommodations of an old building to suit the convenience or the fancy of the owner, they are repairs or alterations within the meaning of the Mechanics’ Lien law. Pamph. L. 1898, p. 538.</p> <p>2. Under section 10 of the Mechanics’ Lien law (Pamph. L. 1898, p. 541), a building is not subject to lien for a debt owing for materials used in repairing or altering the building, unless the owner contracted the debt, or in writing consented to'its being contracted by some other person.</p> <p>3. A written contract between the owner and builder, whereby the builder contracted to furnish materials for the repair or alteration of a building, is not a consent of the owner in writing required to render a debt owing by the builder to a materialman for materials a lien upon the building under section 10 of the Mechanics’ Lien law. Pampfo. L. 1898, p. 541.</p>

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

<p>The act of April 16th, 1908 (Pamph. L., p. 623), providing that, whenever, pursuant to the constitution, laws or customs of the Presbyterian Church in the United States, any presbytery in this state connected with the Presbyterian Church in the United States has dissolved or shall dissolve any particular local church subject to the ecclesiastical jurisdiction of such presbytery, the property of such local church, and of the congregation connected therewith, shall, upon such dissolution, vest in the trustees of such presbytery (provided such trustees be incorporated), in as ample a manner as the same was theretofore vested in the board or persons holding the same in trust for such local church and congregation, is not unconstitutional as taking property without due process of law, nor as divesting vested rights, nor as being retrospective.</p>

<p>1. The act of April 8th, 1909 (Pamph. L., p. 98), creating a board of excise commissioners in cities having a population of not less than fifty thousand nor more than one hundred thousand inhabitants, is not a “private, local or special law” regulating the internal affairs of towns or counties, within the constitutional prohibition.</p> <p>2. The death of one of the five members of a board of excise commissioners elected in pursuance of the act of April 8th, 1909 (Pamph. L., p. 98), before such member was inducted into office, does not render the four remaining members incapable in law of exercising the functions of a board of excise commissioners.</p>

<p>1. Writs of attachment issued out of the small cause court, pursuant to section 37 of the Attachment act (Pamph. L. 1901, p. 173), being first executed according to law, are liens upon the attached property prior to the lien of an attachment subsequently issued out of the Circuit Court.</p> <p>2. Where writs of attachment, issued out of the small cause court pursuant to section 37 of the Attachment act (Pamph. L. 1901, p. 173), have been first executed according to law, the constable making the levies thereunder is entitled to the- possession and control of the attached property, for the purpose of enforcing such liens, and the wrongful dispossession of such constable by the sheriff under a writ of attachment subsequently issued out of the Circuit Court does not release the liens of such writs.</p> <p>3. Holders of liens acquired by attachments out of the small cause - court pursuant to section 37 of the Attachment act (Pamph. L. 1901, p. 173), issued and executed according to law prior to the issuance of an attachment out of the Circuit Court, who have prosecuted their suits to judgment and execution with the diligence and in the way required by law, are not required to apply to the auditor, appointed in the Circuit Court proceeding, to have the amounts due them audited by such auditor before the making of his report.</p> <p>4. Where a constable in possession and control of property under liens of attachment out of the small cause court is wrongfully dispossessed by the sheriff under a writ of attachment subsequently issued out of the Circuit Court, and the attached property is sold by an auditor appointed in the latter proceeding, the Circuit Court on proper application will order the proceeds of sale applied according to the priority of the attachment liens.</p>

<p>1. Plaintiff, through her son, bought and paid for a monthly commutation ticket containing a stipulation that if it should be offered by any other than the person to whom it was issued, it would be forfeited and taken up by the conductor. By an error of the ticket agent the ticket was made out in the name of “Mr. J. L. C.” instead of “Mrs. J. L. C.” The ticket _ being presented for passage by plaintiff and declared forfeited by the defendant’s conductor—Held, that as between her and the conductor, the name entered on the ticket was conclusive evidence of the person to whom it was issued, and that she could not maintain an action for conversion of the ticket.</p> <p>2. The case of Harris v. Delaware, Lackawanna and Western Railroad Co., 48 Vroom 278, distinguished.</p>

<p>An instrument calling itself a “lease” made by tbe riparian commission of this state for lands under water, pursuant to tbe statutes of 1869 and 1871 {Gen. 8tat., pp. 2788, 2790), which “bargains, sells, leases and conveys” to the grantee “her heirs and assigns forever” with habendum, in fee and reservation of annual rental with right of re-entry and of distress in case of non-payment expressly reserved, and covenanting for a further conveyance free and discharged of the rent oh payment of a stipulated gross sum, is a grant in fee subject to a rent charge, and the land therein described is taxable in the hands of the grantee.</p>

<p>1. The “Act relative to the appointment of public officers in cities” (Pamph. L. 1906, p. 2S2), being confined by its title to public officers, is ineffectual as to the other classes of public servants mentioned in its test.</p> <p>2. The “office janitor” of the city hall of Newark is a municipal employe, and not the holder of a public office.</p>

<p>On certiorari.</p>

<p>On rule to show cause granted to Erie Elevator Company et al. why alternative writ of mandamus should not be quashed.</p>

<p>On certiorari.</p>

<p>1. The supplement to the Playground act of 1907, approved April 7th, 1909 (Pamp%. L., p. 76), fairly obviates the constitutional objections to portions of section 3 of the original act as amended in 1908 as held by this court in Strock v. East Orange, 48 Vroom 382.</p> <p>2. The use of public playgrounds for outdoor exhibitions and contests for a limited timo under direction of the playground commissioners is not inconsistent with the purposes for which such playgrounds were authorized by the legislature and acquired by the municipality.</p> <p>3. But if it were inconsistent, a statute authorizing it is not invalid on that account, for property acquired in fee by a municipality by condemnation and fully paid for, may by legislative authority be devoted to other public uses than those for which it was originally acquired, and the use in question is a public use.</p> <p>4. The collection of an admission fee at such exhibitions by the municipal commission controlling the playground does not amount to double taxation.</p>

<p>1. Where by law the governing body of a municipality is empowered to take certain action relating to a proposed public improvement unless on or before a prescribed date a remonstrance by owners of a specified amount of real estate affected by the improvement is filed, owners who have signed such remonstrance may by proper action withdraw their signatures a at any time up to date so prescribed, and the jurisdiction of the council will not be ousted if the withdrawals are sufficient to reduce the proportion of remonstrants below the amount necessary to make the remonstrance effective.</p> <p>2. The plan for a water works and water-supply plant as advertised in this case under section 90 of the Borough act held not sufficiently definite to comply with the intent of the statute.</p>

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

<p>Defendant employed plaintiff to negotiate with'the owner of land for its purchase by defendant at a price fixed by him; this plaintiff accomplished, and in an action to recover for services rendered under such contract of employment it was urged that section 10 of the act for the prevention of frauds and perjuries applied, and . the contract of employment not being in writing plaintiff could not recover. Hold, that the employment of an agent to purchase land is not within the section invoked, and it did not apply to the case under review.</p>

<p>1. The boulevard commissioners of the county of Hudson adopted a rule regulating the use of the Hudson county boulevard which excluded all vehicles used for business purposes except where it was required to go upon the road to deliver or receive a load. Held, that the rule was not inconsistent with the power of regulation conferred upon the board by statute.</p> <p>2. The rule is not unreasonable because it allows the use of the boulevard by business vehicles of a designated weight when driven for pleasure only.</p>

<p>In defending against an action for rent reserved in a lease, upon tlie ground that a building on the demised premises was injured or destroyed by fire without the fault of the defendant, under section 35 of the act relating to landlord and tenant (Gen. Stat., p. 1914), the burden is on tlie defendant to produce sufficient proof to raise a presumption that the fire happened through no fault of his, and where the trial court found as a fact that there was no such evidence, the defence is not made out.</p>

<p>Under the statutes subjecting the several boards of chosen freeholders in this state to actions at law, a transitory action does not become local because the defendant is a county, and it is not controlling on an application to change the venue that the defendant is one of the counties of this state.</p>

<p>Where an indictment charges that the defendant by publishing in a court of justice a. writing purporting to be an affidavit duly sworn to, thereby obstructed justice and the due administration of the law because the affidavit was a false one, and that the defendant, although certifying that the oath had been administered by him. had not in fact administered the oath, the crime charged is not that the affidavit was false, or that the defendant had falsely certified that the oath was administered, and therefore two inconsistent crimes are not charged. These are merely statements of facts to inform the defendant in what manner he had committed the crime of obstructing justice.</p>

On certiorari. On December 1st, 1851, tlie owners, four in number, of tracts of adjoining meadow land in tlie township of Woolwich, in the county of Gloucester, which is now the township of Logan, made application to the Court of Common Pleas of said county, under the act entitled “An act to enable the owners of tide swamps and marshes to improve the same, and the owners of meadows already hanked and held by different persons to keep the same in good repair,” passed November…

<p>3. By the provisions of the act entitled “An act to provide for the permanent improvement of public roads in this state” (Pamph. L. 1895, p. 424, § 17), there were two remedies given to the township for the enforcement of assessments for benefits, both of which could not be exercised, for they led to the same result. The choice between the two modes of procedure was placed in the discretion of the township committee. Until the proceedings of the township committee exhibited the course which “they may deem proper,” no choice was made.</p> <p>2. The determination of the collector cannot be substituted for the discretion of the governing body in reference to the choice of remedies, and, therefore, the collector had no right to proceed to sell assessed property until authority had been conferred upon him for that purpose.</p> <p>3. The act of 1895 (Pamph. L., p. 424, § 17), makes the term for which land may be sold for assessments such as purchasers would get at the time of its enactment for lands sold for unpaid taxes. Under such limitation, subsequently passed enactments will not be engrafted upon the law.</p> <p>4. Where the recitals of a certificate of sale made pursuant to section 52 of the General Tax act- of 1903 fail to show that there were no bidders for a shorter term than a fee, thereby a sale in fee is excluded.</p>

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

<p>A resolution was passed by the city council of Atlantic City to pay the expenses of that body, together with the mayor, city engineer, and city solicitor, in visiting Pensacola and New Orleans to inspect drainage systems in operation in those cities, as a preliminary to the installation of one in Atlantic City, “the expenses * * * to be paid out of the funds now in the treasury belonging to the drainage canal and lateral drainage system.” There was no appropriation for the purpose, the only balance in the treasury belonging to the drainage system was from the proceeds of bonds issued under ordinance “for the purpose of providing moneys for the payment of contracts now made or hereafter to be made for the construction and installation * * * of a drainage canal,” &c. Held, that the resolution was beyond the purpose specified in the ordinance and was invalid.</p>

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

<p>1. A bond given on an appeal from a District Court, unlike' that given on an appeal from the small causé court, does not come from the District Court to the reviewing- tribunal, and is therefore not before this court for the purpose of dealing with a defect in it.</p> <p>2. One of the essentials in every novation is a previous valid obligation.</p> <p>3. Under the facts proved in this case—Held, that a judgment of non-suit in the District Court must be sustained.</p>

<p>1. Under section 4.4 of the Criminal Procedure act (Pamph. L. 1898, p. 881) it is the duty of the Supremo Court to order an amendment, if possible, of an indictment brought into that court by certiorari, unless there is a constitutional objection to it.</p> <p>2. An indictment defective because it alleges several distinct offences in a single count, does not present any constitutional difficulty to an amendment, for a defendant should not be heard to say that an amendment by striking out a part of the crimes charged and leaving but one, is in violation of his rights.</p> <p>8. The one hundred and eighty-fourth section of the Crimes act (Pamph. L. 1898, p. 844) makes it a misdemeanor for any agent entrusted with the care or sale of any personal property to convert the same fraudulently, but is silent as to its value, consequently value is not there made of the essence of the offence.</p>

<p>1. The rule that a tenant will not be permitted to deny his landlord’s title, estops the tenant from showing that the lease is imperfectly executed; it extends to a tenant holding over, is applicable to every species of tenancy including that at sufferance, and may be invoked in an action of debt, assumpsit, covenant or ejectment.</p> <p>2. At common law a tenant, from year to year, was charged with the reciprocal duty of giving his landlord a six months’ notice of his intention to vacate, in order to rid himself of the obligations of a tenant.</p> <p>3. The reciprocal nature of this duty has not been altered by statute and still prevails in this state as at common law.</p>

<p>1. Where the defendant without lawful authority tore down a fence and gateway upon the plaintiff’s premises and obstructed the passage of its private driveway so as to subject the plaintiff in the transaction of its business to an enforced expenditure of manual-toil and labor and physical inconvenience not suffered by the rest of the public—Seld, that the plaintiff in an action for damages for the nuisance, thereby suffered a pecuniary loss since its enforced expenditure of toil and labor was peculiar to it from that imposed upon the public at large and was transmutable by the verdict of a jury into money damages.</p> <p>2. Where there is a conflict of testimony upon an important issue in the cause, the question of fact thus controverted is for the jury, and it is error for the court to direct a verdict.</p>

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

<p>1. A married woman, engaged by her husband in his store in the sale of obscene'cards, is presumed in law to be selling the same under his coercion, and the common law which exempted her from legal responsibility for such act still subsists in this state.</p> <p>2. Where the evidence of such fact is clear and unequivocal a verdict of acquittal should be directed.</p>

<p>The declaration alleged the existence of a public by-way leading transversely to defendant’s tracks, upon which it operated a third-rail electric system; that plaintiff, a minor, while passing diagonally from the public by-way, pursued a footway alongside of the defendant’s tracks and upon defendant’s right of way, and was injured by coming in contact with the third rail. Held, upon demurrer, that the declaration presented no cause of action.</p>

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

<p>A refusal of the trial court to instruct the jury in a proper case that where the witnesses have all the same opportunities for observation and are of equal credibility, the number of witnesses on each side is a fact to be considered by the jury, is reversible error.</p>