Volume 81 — New Jersey Law Reports

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

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

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

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

<p>Assuming that some of the provisions of an ordinance regularly enacted by a common council are susceptible of an application that would be in excess of the authority granted by the city charter or an unreasonable interference with its provisions, the ordinance will not, on that account, and in advance of any such application, be set .aside in toio if in oilier respects it is unobjectionable.</p>

<p>In an action by a.n engine wiper whose head was struck against the side wall of the doorway of the shop out of which the engine was moved by the defendant while plaintiff was at work—Held, that the questions of the negligence of the defendant and the contributory negligence of or the assumption of risk by the plaintiff were properly left to the jury.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

On rule to show cause. This is an application for a mandamus- compelling Willard P. Voorhees, a justice of the Supreme Court, who had ordered a recount of the votes cast at an election, to revoke the certificate of election that had been issued to George 0. Low as state senator for Ocean county, and to issue in its place a certificate to the relator, Thomas A. Mathis, as the party found to have received a majority of the votes cast at the election for said office.

<p>On certiorari anc! a motion.</p>

This action was brought by Doctor Perkins against the Trenton Street Railway Company to recover for services rendered for the company to Charles Bjown, a motorman in the employ of the company, at the request of the conductor. The motorman and conductor, respectively, left Trenton with a ear of the company for Princeton.

<p>On motion to dismiss writs of error.</p>

<p>The offence described in the first clause of section one of the supplement to the Crimes act (Pamph. L. 1910, p. 24), is not charged in an indictment that fails to make any mention of any such place as that stated and described in the statute.</p>

<p>On certiorari to board of equalization of taxes.</p>

<p>Where A employed B to do an entire job of excavation and before the work was completed, and without fault of B, A engaged another person to complete the work, and such person, with men and horses, went to work—Held, not error for the trial court, sitting as a jury, to find for B for the value of the work done by him.</p>

On rule to show cause why a writ of mandamus should not issue directed to George Gonzales commanding him as mayor of the city of Hoboken to sign two warrants drawn by the city clerk upon the city treasurer in favor of the Evening' Journal Association.

<p>On certiorari.</p>

<p>On rule to show cause why a judgment should not be vacated and for further relief.</p>

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

<p>Oil certiorari.</p>

<p>On certiorari.</p>

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

<p>An application for license to keep an inn and tavern under the act of'April 17th, 1846 (Gen. Stat., p. 178S), must he determined by the court on the first day of its session or upon a day then publicly fixed by the court, or upon a day to which the matter has been regularly continued by the court; otherwise the grant of such license is a nullity, and will, upon proper application, he set aside.</p>

On defendant’s demurrer to certain counts of plaintiff’s declaration, and plaintiff’s demurrer tc certain pleas of tire defendant.

<p>1. An instruction in a criminal trial that “if tlie (drcumstanc.es incident to the situation admit of drawing an inference excluding any notion but that of guilt, it would be sufficient to maintain the contention of the state that the presumption of innocence has been overcome,” is erroneous.</p> <p>2. In a criminal trial the presumption of the defendant’s innocence continues until overcome by proof establishing liis guilt beyond a reasonable doubt.</p>

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

On motion to strike from the files a rule for judgment in certiorari made by a single justice at chambers after hearing before him, pursuant to section 5 of the Certiorari act, or if such motion be denied, then to review such rule for judgment and set aside the same on the merits.

<p>On rule to show cause wiry service of summons should not he set aside.</p>

<p>1. A judgment of the state board of equalization will not be disturbed on certiorari on questions of fact unless the evidence is persuasive that that board erred in its determination.</p> <p>2. When an appeal to the state board of equalization brings up tax valuations on separate parcels of land owned by the same parties, and such board sustains the appeal and fixes new valuations, it should by its judgment assign a separate value to each parcel separately valued by'the local assessors.</p>

<p>In proceedings for condemnation of lands under the statutes relating to eminent domain, especially the act of 1900 (Pamph. L., p. 70). where it appears that the party seeking condemnation has power to agree on a price to be paid for such lands and the owner was accessible and competent to sell, and no bona ficlc effort to purchase the lands is made, the appointment of commissioners will be set aside on certiorari.</p>

<p>On certiorari.</p>

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

<p>Unless a writ of attachment could lawfully issue against a deceased debtor immediately prior to his death, it may not issue against his non-resident devisee for a debt of the deceased.</p>

On rule to show caxi.se why a xvrit of mandamus should not issue to compel the assignment of the relator to dutjr as sergeant of police.

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

On motion to sever parties plaintiff, and to be allowed to file separate amended declarations for different causes of action.

<p>>A statute entitled “An act to regulate the terms of office of the cit5* treasurer and city surveyor or engineer in certain cities of this state,” does not express in its title a legislative intent to fix the method of selecting such officers, and a statute which, under such title, prescribes the method of selection, embraces an object not expressed in its title, and is therefore unconstitutional.</p>

<p>1. The provisions of the supplement (Pamph. L. 1907, p. 374, § 221, ¶ 4) to the School law become a part of the contract entered into by a person accepting, after January 1st, 1908, any position, designated in said act, by the mere fact of acceptance, and authorize the deduction and retention for tile teachers’ retirement fund, of the percentage prescribed by the School law, from the stated salary of the incumbent of such position, pursuant to section 239 of said supplement.</p> <p>2. The deductions authorized by section 219 of the act of 1907 (Pamph. L., p. 365) do not constitute the taking of property without due process of law, or the taking of private property for public use without just compensation.</p> <p>3. The retention for the teachers’ retirement fund of the percentages of salaries authorized by section 219 of the act of 1907 (Pamph. L., p. 365) is not intended to be, and is not in fact, an exercise of the taxing power of the state.</p> <p>4. Article XXV. of the act of 1907 (Pamph. L., p. 365) amendatory of -the' School law, creating and providing for the teachers’ retirement fund, is not a private, local or special law, violating article four, section seven, paragraph eleven of the constitution.</p> <p>5. Where all objects which can constitutionally be included in a class, are by legislation recognized by inclusion therein, such legislation will be general in the constitutional sense.</p> <p>6. The act of 1907 (Pamph. L., p. 365), in creating “The board of trustees of the teachers’ retirement fund,” with powers enumerated in section 220, is not a special act conferring corporate powers, in violation of article four, section seven, paragraph eleven of the constitution.</p> <p>7. The title of “An act to establish a thorough and efficient system of free schools, and to provide for the maintenance, support and management thereof,” approved October 19th, 1903, expresses a single object, and the creation thereby of the “board of trustees of teachers’ retirement fund” is germane to and -one of the products of the act.</p>

<p>1. Where proof of the negligence of a railway in failing to blow a highway crossing signal (Pamph. L. 1903, p. 663) consisted solely in the testimony of a witness who said that he did not hear it, coupled with a statement that on account of a strong wind one could scarcely hear any sound, and there being positive testimony of both engineer and fireman that the whistle was blown—Held, that there was no conflict of evidence requiring the submission of that fact to the jury.</p> <p>2. Held, under the facts of the case, that the plaintiff was guilty of contributory negligence.</p>

<p>The General Railroad law (Pamph. L. 1908, p. 663, § 35) prescribes the duty of giving signals by bell or whistle in the alternative and does not demand the doing of both.</p>

The judgment of the District Court, from which this appeal has been taken, was rendered for the defendant, in an action of replevin, by the court, sitting without a jury.

<p>1. Both obligor and surety on a bond are estopped to deny, for the purpose of avoiding liability thereon, any recited fact therein.</p> <p>2. An appeal bond, not given for an illegal purpose, complying substantially with the statute, voluntarily entered into, will be held binding, although the proceedings, anterior to its execution, may have been irregular.</p>

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

<p>Where the proof showed a window of a passenger train had been inspected at ten o’clock in the morning, and that at four-thirty o’clock in the afternoon it fell, injuring the plaintiff’s hand, and the sole ground of liability was the want of proper inspection, it was reversible error to refuse to charge that if the defendant inspected the window device the day of the accident in the only way practical, and it was then in order as far as could be dis- „ covered, the defendant was not liable, in the absence of anything to give notice of the defect to the defendant’s employes.</p>

<p>1. A mere resolution of a city council appointing a special committee of its members to investigate “the transfer of certain licenses and the truth of certain charges against certain members” of the council, without specifying them by name, and without notice to the prosecutor 'that any charge was pending against him as a member of the council, and without a copy of the charge, or an opportunity to be heard before the city council in his defence, cannot legally be made the basis for the expulsion of the prosecutor from his seat as a member of such council under the nineteenth section of the charter of the city of Passaic.</p> <p>2. A charge of “grafting” against a member of the city council is equivalent to a charge of disorderly conduct within the language of .the Passaic city charter.</p>

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

<p>In an action brought by the builder against the owner upon a contract which provides that the architect shall be the arbitrator between the parties upon the question whether the builder has performed his contract in accordance with its terms, the certificate of the architect that the builder has so performed is final and conclusive, in the absence of fraud or mistake; and if the owner seeks to overcome the probative force of such a certificate the burden is upon him to show either fraud or mistake on the part of the architect in giving it.</p>

<p>1. A purchaser who accepts a mechanical appliance which does not conform to contract specifications, and does not adequately perform the work for which it was intended, is entitled to have an abatement of the contract price to the extent that the value of the appliance is less than it would have been if it. had corresponded with the contract.</p> <p>2. On rule to show cause a verdict may be set aside when the rule of damages adopted by the court is erroneous, although no exception was taken, thereto at the trial.</p>

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

<p>1. A statutory provision which requires railroad companies to construct aud keep in repair good and sufficient bridges and passages over, under and across the railroad right of way where any public road shall cross the same, so that public travel on suoli road shall not be impeded thereby, does not authorize such companies to encroach upon the highways of the state in the bnilding of bridge abutments, unless such encroachment is necessary in the proper construction of the railroad.</p> <p>2. Section 29 of tile General Railroad law, which provides a civil remedy for the failure of railroad companies to properly construct and maintain bridges or other crossings over the highways of the state which are intersected by their respective railroads, does not operate to relieve such companies from liability to indictment for illegally obstructing such highways, in the construction of such bridges.</p>

<p>On certiorari.</p>

On. rule to show cause. This rule reviews a verdict rendered at the Somerset Circuit in which there was a finding by the jury in favor of the plaintiff for the sum of thirty-five thousand ($35,000) dollars as damages alleged to have been sustained by the widow and next of kin of Robert H. Style.

<p>Oue who has agreed in writing to pay another a commission for securing a buyer for his land does not escape paying the agreed commission by the mere fact that he had conveyed the land before the commission was earned.</p>

On certiorari. Brought to review a tax imposed upon the transfer of shares of stock in a New Jersey corporation standing in the name of a non-resident decedent, who died June 19th, 1909, i. e,., after the passage of the act of April 20th, 1909, chapter 209 (Pamph. L., p. 3014), which took effect immediately and before chapter 228 (Pamph. L., p. 328), which became operative on July 4th, 1909, took effect.

<p>On quo warranto.</p>

<p>1. Chapter 18 of the laws of 1909 (Pamph. L., p. 27) is constitutional.</p> <p>2. A city having a qualified fee in lands is an owner within the meaning of chapter 13 of the act of 1909 (Pamph. L., p. 27).</p> <p>3. A tract of land wholly surrounded by the waters of the ocean may properly be said to be contiguous to the beach or ocean front as those terms are defined in Fishblatt v. Atlantic City, 51 Vroom 269.</p> <p>4. The procedure for issue of bonds prescribed by the act of 1909 (Pamph. L., p. 27) governs in cases that come within that act, notwithstanding the provisions in the act of 1897 for the government of cities.</p> <p>5. A resolution for the issue of bonds which sets forth all the purposes for which bonds may be issued under the act of 1909 (Pamph. L., p. 27) is not void for uncertainty. The orderly procedure is first to provide for the money needed and then determine on the particular improvement to be made.</p> <p>6. Where a resolution for issue of bonds specified that they were to be issued for the improvement of the public park, and the land specifically described as the land to be improved is outside the park, the prosecutors are not injured when the depositions show that the bonds were to be issued to pay for the building of a pier on the specific tract mentioned.</p> <p>7. Where a public improvement is authorized to be paid for from the proceeds of bonds and there is no other source from which funds can be had, no contracts for the improvement can be legally made until the bonds have been negotiated and the amount available has been ascertained.</p>

<p>1. The court will not review by certiorari the action of a local board of education under the School law until redress has first been sought in the special tribunals provided by the act.</p> <p>2. The board of education of a township employed a teacher to teach in a certain named school “under the control of said board of education,” and he accepted the employment and agreed to perform his duty thereunder and to observe and enforce the rules prescribed for the government of the school by the board of education; subsequently the portion of the township in which the school was situated became by law a separate school district. Held, that the new school district was not bound by the contract.</p> <p>3. Where the legislature creates a new municipal corporation, embracing part of the territory of an existing municipal corporation, it may impose on the former the obligation of existing contracts of the latter; but in the absence of legislation to that effect, the old corporation remains liable for pre-existing obligations.</p> <p>4. Section 34 of the School law does not impose upon a new school district, erected out of a portion of the territory of an existing school district, the obligation of a contract with a teacher.</p> <p>5. .It is not consistent with the general principles of our law to hold that a contract for personal services is assignable so that the assignee may command the labor of one who has never agreed to serve him.</p> <p>6. The creation of a new municipal corporation out of a portion of the territory of one already existing-, does not impair the obligation of existing contracts; the old municipality remains liable notwithstanding its dismemberment.</p> <p>7. The legislature possessed the power to divide counties and towns at its pleasure, and to apportion the common property and the common burdens in such manner as to it may seem reasonable and equitable.</p>

<p>1. Boards of health are empowered by the act of 1897 (Pamph. L., p. 270), and by the Pure Food law of 1907 (Pamph. L., p. 485), taken in conjunction with the act of 1887 (Pamph. L., p. 80), to prohibit the sale of milk from diseased cows.</p> <p>2. Whether cows from which a municipality is supplied -with milk are diseased, is a question that may in the first instance be determined by the local board of health.</p> <p>3. In determining whether cows from which a municipality is supplied with milk are diseased, the method of diagnosis adopted by the local board of health should be one that is well recognized, thoroughly approved, and as reliable as any.</p> <p>4. A local board of health may prohibit the sale within the municipality of milk from cows that react to the “tuberculin test.”</p> <p>5. ' The action of a local board in adopting measures for the protection of public health will not be set aside by the court if the board has acted reasonably upon evidence that might satisfy a reasonable man.</p> <p>G. Regulations for the protection of the public health are within the police power of the state and are not an illegal interference with interstate commerce if they have a real substantial relation to a public object which government can accomplish, and are not arbitrary and unreasonable and beyond the necessities of the case.</p>

<p>1. The act under which Atlantic City is incorporated (Pamph. L. 1902, p. 284) gives the city council power to license or prohibit the sale of intoxicating liquors within the city, and by ordinance to regulate and prescribe the terms and conditions upon which licenses shall be granted; and enacts that the form of application and mode of procedure under the general laws of the state, when not inconsistent with the present act, shall be observed. S'eld, that the power of the city council to license is in abeyance until it has adopted an ordinance to regulate and prescribe the terms and conditions upon which licenses can be granted.</p> <p>2. An application for a license to sell spirituous liquors under the general laws of the state must be in the form prescribed for an application for license to keep an inn or tavern; and in the absence of special act to the contrary an application which fails to set forth what is required in an application to keep an inn or tavern, is insufficient.</p>

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

<p>1. Section 197 of the act to regulate elections (Pamph. L. 1898, p. 237) does not apply to officers charged with the conduct of a party primary.</p> <p>2. Section 190 of'the act to regulate elections (Pamph. L. 1898, p. 237) does not apply to party primaries.</p> <p>3. An indictment charged that the defendant who was a judge at a. primary election willfully violated his duty and neglected and willfully omitted to perform the same in such a way as to hinder the object of the statute in that he knowingly, willfully and corruptly failed, neglected and refused to deposit in the box more than fifty ballots handed him by legally qualified voters, and knowingly, willfully and corruptly mutilated aud destroyed upwards of fifty ballots cast in the box. Held, that the indictment charges two offences against section 217 of the act to regulate elections. Pamph. L. 1898, p. 237.</p> <p>4. A defect either of form or substance that is apparent on the face of the indictment, may be cured by amendment under section 44 of the Criminal Procedure act, provided the amendment is not of such a character as to make the indictment charge a crime when, as presented by the grand jury, it fails so to do, or to charge a crime not presented by the grand jury.</p> <p>5. An indictment charging in the same count two distinct offences of which the mode of trial is the same, and the punishment is the same in character even though it be different in degree, where the same defences are open to the accused, is not necessarily bad for duplicity; and upon a motion to quash, the state may be permitted to strike out one of the charges, if what is left suffices to charge a crime.</p>

<p>1. In an action at law a demurrer will not lie to a declaration merely because it shows that a period has expired since the right of action accrued which would bar an action under the statute of limitations.</p> <p>2. A declaration which states that a bond sued on was secured by a mortgage of even date with the bond, is not bad on a demurrer based upon the provisions of the act o£ 1881 (Pamph. L., p. 1S4), providing that the first proceeding- to collect the debt shall be to foreclose the mortgage.</p>

<p>Where defendant’s agent told an employe of the defendant to wash the bleeding finger of another employe, and also told him to look for bandages in a medicine chest containing medicines for first aid for persons injured in the factory, and the employe so directed negligently used the contents of a bottle of carbolic acid in dressing the wound, by reason of which the finger was gangrened and had to be amputated—BeM, that a jury could infer that the use of a medicine found within the medicine chest was within the authority given by the defendant’s agent to the employe to dress the wounded finger.</p>

<p>On demurrer to a rejoinder.</p>

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

<p>In ejectment. Defendants’ rules to show cause.</p>

<p>1. The purchase and erection by Atlantic City of lighting standards costing 828,242.40 for a lighting system equipment on the “public boardwalk,” which boardwalk the city was authorized by law to erect, maintain and improve upon a public street along the ocean front, is a public work.</p> <p>2. Atlantic City, having adopted the act of April od, 1902 (Pamph. I„, p. 284), the city council thereof, in all public work done costing- more than $500, is required by the supplement of March 14th, 1905 (Pamph. L., p. 50), to cause plans and specifications to he prepared for such work, to cause public notice to be given, inviting sealed proposals by advertisement in two newspapers printed in such city, of the work to be done and the materials to be used therefor, for at least ten days before awarding contract for same, and the contract, when awarded, shall be t'o the lowest bidder.</p>

<p>1. It is the duty of the master to provide for the use of the servant tools which are reasonably safe and fit for the purpose to which they are to be applied.</p> <p>2. Where a servant seeks to recover from his master for an injury caused by reason of a defect in a tool furnished by the master, good pleading requires that the declaration shall so specify the character of the defect as to reasonably apprise the master of the case to be made against him. Such lack of certainty, however, although affording sufficient ground for striking out the declaration on motion, cannot be taken advantage of on general demurrer.</p> <p>3. When the defect in a tool used by the servant is obvious, the servant who uses it assumes the obvious risk of danger to himself, but he cannot assume au obvious risk In such case for a fellow servant who does not know of the defect or danger.</p>

<p>1. Where the entire record of the proceedings had upon the trial of a criminal cause has not been returned by the plaintiff in error with the writ, and the causes relied on for reversal have not been specified nor served upon the attorney-general or prosecutor of the pleas, as required by sections 336 and 337 of the Criminal Procedure act of 1898 (Pamph. L., p. 915), the plaintiff in error will be confined to the errors assigned.</p> <p>2. The denial of a motion, made on the trial of an indi.ctment, to direct an acquittal at the close of the state’s case, and before the evidence is wholly closed, is not subject .to review on an ordinary writ of erro1'.</p>

<p>The distinction between felonies and misdemeanors being disregarded in our statutes relating to crimes, the rule that in misdemeanors all who aid. and abet in the commission of the criminal act, although not personally ¡mesen t, may be indicted, tried and punished as principals which obtains at common law obtains also in misdemeanors made so by statnte.</p>

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

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

<p>1. In an action of tort for deceit, the declaration must show that plaintiff was damaged, and that such damage was the natural result of the wrongful act of the defendant.</p> <p>2. A statement by defendant that he was authorized to make certain agreements as agent for another, though false, will not support an action of deceit where it is not alleged that such agreements were made and broken and plaintiff suffered damage by such breach, or that there was some other casual connection between the statements and the damage.</p>

<p>Defendant, a manufacturing company operating its plant at Dover, was charged by the declaration with unlawfully and fraudulently abstracting water from the public water supply of the town. On rule to show cause1—Held—</p> <p>(1) That, assuming the evidence failed to show any specific-quantity of water taken, the court would not have been justified in nonsuiting, as it was shown that some water was taken, and consequently a nominal verdict would have Deen justified.</p> <p>(2) That the jury would be justified in finding as a fact that defendant corporation had authorized the opening of the valve connecting its pipes with the plaintiffs’ mains if they believed that defendant’s employes, under instruction from defendant’s chief engineer and his assistant, had opened such valve so frequently and the acts bad extended over such a long period, as to justify the inference that such acts had come to the knowledge of defendant and it had failed to put a stop to them if unauthorized.</p> <p>(8) Under the charter adopted by the town of Dover (Pamph. L. 1884, p. 44) the town is entitled to maintain a suit of this character notwithstanding the creation of a board of water commissioners.</p> <p>(4) The mere fact that the valve was opened with the knowledge or by the direction of defendant’s chief engineer, or that water was taken each day to a large amount, will not suffice to charge the defendant as matter of law, under the pleadings in this case, with liability' for the water so taken.</p>

On motion to dismiss appeal from District Court, and cross-motion to rule said court to certify and send up a state of the case for appeal.

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>In certiorari to review municipal action, where others than the municipality are to be made parties as being interested in the legality of such action, their names should appear not in the body of the writ, but only on its endorsement.</p>

<p>Previous to the promulgation of the federal census of 1913 each ward in the city of Passaic was entitled to three members of the common council, and thereafter to but two, the officers retained being the “oldest and next oldest members thereof in point of service.” A junior officer filed his information in quo loarranto proceedings, charging that one of the two members next oldest in point of service to the relator had removed from the city, a condition which, if proven, would vacate his office, notwithstanding which he continued to serve and was recognized by the presiding officer as a councilman, to the exclusion of the relator. Held, that in ascertaining who were the two oldest members in point of service only de jure officers constitute the class from which the selections are to be made, and that a de facto officer is not a member entitled to consideration in determining who are the two “oldest” in point of service.</p>

<p>On certiorari to review judgment imposing penalty for violation of ordinance relating to obstructing streets at railroad crossings.</p>

<p>On certiorari.</p>

<p>1. An ordinance adopted by the hoard of aldermen of Jersey Oity forbidding all persons to drive on any public street any horse attached to a business vehicle of any kind without a license, is not supported by any power delegated by the legislature to the city.</p> <p>.2. Where such ordinance discriminates between citizens, providing for a license to those who have resided in the city for more than three months, and requiring those who have resided there less than three months to obtain a permit before they can drive a horse attached to any business vehicle of any kind on the streets of the city, such discrimination, based upon length of residence, is unreasonable.</p>

<p>1. After judgment in a court for the trial of small causes the justice may amend his docket to conform to the facts, when called upon to do so by rule allowed for that purpose when diminution of the record is alleged.</p> <p>2. While particularity in pleading is not required in a court for the trial of small causes, still the state of demand must show a cause of action, and a judgment by default in attachment proceedings cannot be sustained where the state of demand fails to show a transfer to the holder of a promissory note payable to the order of a payee who has not endorsed it, in the absence of any finding by the trial court of a transfer by the payee.</p>

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

<p>A dealer in potatoes, having a large quantity in bags lying on a public wharf, invited a possible buyer to look at them, which he did by examining the contents of five or six bags, and upon the vendee’s assurance that they were a fine lot, and ran all through like the sample, purchased two hundred and fifty bags. The potatoes examined appeared to be sound and merchantable, when, in fact, they were diseased and not merchantable, although the defect was not apparent on reasonable examination. The disease, though latent, was of a character to render the potatoes worthless within from twelve to forty-eight hours, and this condition was known to the vendor at the time the vendee examined the sample, but not disclosed by him to the vendee. Held, that the sale was by sample, and an implied warranty arose tha_t the potatoes were free from any defect rendering them unmerchantable under section 1G of the Sales act. Pamph. L. 1907, p. 311.</p>

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

<p>1. When goods are unlawfully detained by an administrator, who has come into possession of them from his intestate, in due course of administration, and claims title to them in the right of his intestate, a person seeking by replevin to recover them has 1ns choice of action against the detainer personally, or of suing him in his representative capacity.</p> <p>2. The rule has not been abrogated in this state which requires papers, having a subscribing witness, to be. proved by the testimony of such witness, or the witness’s absence accounted for.</p>

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

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

<p>1. The mere allegation in words of a duty will not help the pleader unless facts are set forth from which the court may determine the existence of the duty and its breach.</p> <p>2. A - simple allegation of negligence in direct injuries sufficient, aliter as to indirect injuries.</p>

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

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

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

<p>Where it appears that lands sought to be assessed by a borough government for benefits on account of municipal improvements lie wholly below high-water mark, and for which no riparian grant has been made by the state; that no notice pursuant to the Borough act (Pamph. L. 1897, p. 285) has been given to the prosecutor in certiorari, and that the prosecutor’s name does not appear in the assessment proceedings—Held, that no attempt had been made to levy any assessment against the prosecutor or his lands and that the writ of certiorari should be dismissed.</p>

<p>Chapter 285 of the laws of 1908 (Pamph. L., p. 588), entitled “An act to amend an act entitled ‘An act respecting licenses in cities, townships, incorporated towns, incorporated boroughs, &c.,’ ” approved April 28th, 1905, repeals the charter of Atlantic City in so far as the same provides for the licensing of cars.</p>

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

<p>Where a written contract provides that an agent engaged by the owner to sell a farm shall be entitled to his commission upon the sale of the farm by the agent, the owner or any other person, the agent is entitled to receive the stipulated compensation upon the sale of the farm by the owner.</p>

<p>On certiorari.</p>

On certiorari to determine the legality of an order of the public utility commissioners restoring a reduced rate of fare to school children.

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

<p>On certiorari removing loase executed by oyster commissioners of Atlantic county.</p>

<p>Where a member of a benefit society confessed in writing to the society the truth of the charge preferred against him, which resulted in his suspension and the imposition of a fine, which he paid, he will not be heard upon a claim for sick benefits to challenge the validity of the by-law under which he was suspended upon the ground that it made no provision for a hearing and that in fact he obtained no hearing.</p>

<p>Upon an appeal from the District Court this court will not consider legal Questions not presented by exception or otherwise contained in the state of the case.</p>

<p>Plaintiff’s declaration contained two counts; defendant demurred to one count and pleaded to the other; the Supreme Court over- , . ruled the demurrer; without disposing of the issue joined on the plea, defendant sued out a writ of error to review the decision overruling its demurrer. Held, that this decision is not reviewable until final judgment.</p>

<p>On error to the Supreme Court, whose opinion is reported in 50 Vroom 290.</p>

<p>In an action against a railroad company to recover damages sustained by plaintiff who, while driving a horse and wagon upon a public highway, was struck by a locomotive engine at a grade crossing, it was held—</p> <p>(1) Evidence that the defendant’s locomotive engine was not running on schedule time, was being driven backwards, and omitted to give .the statutory signal of its approach to the crossing, clearly made out a prima fade case of negligence on the part of defendant.</p> <p>(2) The law requires a traveler upon a highway, on approaching a railroad crossing, to exercise the care that an ordinarily prudent man would exercise in the presence of such dangers as he had reason to apprehend.</p> <p>(3) A traveler upon the highway under ordinary circumstances is not required, as matter of law, to bring his horse to a stop in close proximity to the railroad track; whether in the exercise of due care he ought to stop his horse or to reduce its speed is usually a question for the jury.</p> <p>(4) It has not been held in this state that it is the duty of a traveler to stop his horse upon approaching a railroad crossing, except in cases where there are transient noises, or temporary obstructions to the view.</p> <p>(5) The law does not require a traveler to insure his own safety against dangers arising from the negligent operation of railroad trains; it only requires that he shall exercise reasonable care for his safety, and when the view is in part obstructed, and the traveler is required to select a place for making an observation, the law only requires that he shall exercise reasonable care about the selection of the place.</p> <p>(6) A traveler driving his horse upon the highway, approached a single track railroad crossing, with his view obstructed in both directions, having reason to believe, from observations already made in one direction, that no train was coming from that side, and having reason to expect a scheduled train from the other direction. Held, that he was not indisputably guilty of contributory negligence if, at the earliest opportunity after passing the obstructions, he first made an attentive observation in the direction of the apprehended danger, even though he was thereby prevented from looking as carefully as otherwise he might for trains from the other direction.</p>

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

<p>1. A judgment under review will not be reversed upon a ground not taken in the court below.</p> <p>2. Declarations of deceased persons upon matters of pedigree are admissible in evidence only when the persons making them were related by blood or marriage to the person concerning whom the declarations were made.</p> <p>3. Where the question for determination is whether a marriage existed or not, the declaration of one of the parties to the alleged marriage, who is since deceased, cannot be received in evidence against the other party if not made in his or her presence.</p>

<p>On error to the Supreme Court, whose opinion is reported in 49 Vroom 247.</p>

On error to the Supreme Court, whose opinion is reported in 51 Vroom 258. By a supplement to the General Tax act of the state, approved May 11th, 1906 (Pamph.

<p>By force of the eighty-ninth section of the School law of 1903 (Pamph. L. 1904 P- 5), a contract for a heating apparatus to be installed in a school house can be entered into by a board of education only when the same has been presented and passed upon by the board at a regularly called meeting; it is not competent for the board to abdicate this duty by delegating to its president and clerk authority to enter into such a contract on its behalf.</p>

<p>TIip judgment of a court of general jurisdiction will not be reversed upon a point not taken in the trial court.</p>

<p>The Criminal Procedure act (Pamph. L. 1894, p. 246), as amended by laws of 1898, provides that, if it appear from the. record in a criminal cause that plaintiff in error on the trial below suffered manifest wrong or injury either in the admission or rejection of testimony, whether objection was made thereto or not, the appellate court shall order á ne.w trial. Held, that the phrase, “admission or rejection oí testimony,” imports judicial action, and a judgment will not be reversed for refusal of the trial court to strike out testimony elicited by a question to which no objection was made.</p> <p>Note.—Although the above case was argued and decided at the November term, 1906, no written opinion was filed until May 16th, 1907,- which did not come to the reporter’s hands in time to be printed with the opinions in cases decided at that term.—Rep.</p>

On error to the Supreme Court. This is an action to recover the reasonable value of water supplied by the city of Bordentown to the defendants. It was tried before Judge Lloyd without a jury.

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

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

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom ‘<¿9.</p>

<p>The plaintiff, a railroad company, had built a siding upon defendant’s property to receive and deliver freight to and from the defendant’s refinery. The parties had entered into a contract containing this clause: “The parties of the first part shall be liable for all loss or damage not caused by the negligence of the parties of the second part, which may occur to any car or cars on said siding or trestle while they are being placed thereon, or removed therefrom, and the parties of the second part shall be similarly liable for any cars placed thereon for purposes of their business, after such cars have been placed thereon, and until the parties’ of the first part are notified to remove the same after they have been loaded, or unloaded, as the case may be.” The plaintiff placed two cars, the property of another railroad, on the siding to be unloaded by the defendant. Before the plaintiff had been notified to remove these cars a fire occurred on the premises of the defendant which injured the two cars. The fire was not caused by the negligence of either party. The plaintiff was using the two cars as bailee of another railroad. Held, that the defendant was liable in an action by the plaintiff for the injury to the cars.</p>

<p>A railroad was built upon an embankment and crossed Stuyvesant avenue by a bridge. The station of the railroad is situated east of the railroad and near the avenue. To this station a stairway ran from the street. On the opposite side of the railroad a path started from the avenue, which had been worn by the feet of persons passing from the street diagonally up the railway embankment to the west side of the road. Along this side of the railroad, along the top of the embankment, the company had built a fence extending from the avenue to a point beyond the line of the railroad station on the opposite side. Persons using the path up the embankment had been accustomed to pass the end of this fence and turn in on the two railroad tracks and cross to the station. In front of the station the ground was level to permit passengers to reach the cars upon the two tracks. There was nothing to indicate a pathway across the tracks from the westerly side. The plaintiff’s intestate passed up the path around the end of the fence and started to cross the tracks to the station when he was struck by a train and killed. Held, that the railroad company was not liable as the injured person was on the tracks without invitation.</p>

<p>1. Where the view of a driver of an automobile approaching a railroad grade crossing was obstructed by permanent obstructions so that he could not see the train approaching on the westbound track until the front wheels of his automobile were on the eastbound track, and it appeared that, upon reaching the top of a hill two hundred feet distant from the crossing, he turned off power and proceeded by force of gravity, noiselessly, at a speed of four miles an hour, constantly looking and listening, but hearing no signals, and it further appeared that there were no transient noises nor temporary obstructions to the view, he was not guiltjr of contributory negligence as a matter of law in not stopping before his view became effective.</p> <p>2. Where a traveler upon a highway, without ahy fault on his part, is placed in a position of imminent peril at a railroad crossing, the law will not hold him guilty of such negligence as to defeat his' recovery if he does not select the very wisest Course, and an honest, mistake of judgment in such a sudden emergency will not of ' itself constitute contributory negligence, although another course might have been better and safer; and this rule is especially applicable where the person is placed in such perilous position by reason of the railroad company’s negligence in failing to give proper signals. All that is required of a person in such an emergency is that he act with ordinary care under the circumstances, it being for the jury to determine whether such an emergency existed and whether the traveler acted with due care.</p> <p>3. Where the evidence, when the plaintiff rests, leaves the contributory negligence of the plaintiff in doubt, the determination of the question must be submitted to the jury.</p>

<p>1. The general principle governing the relation oí the street railway to the traveling public is that their respective rights in the public streets must be exercised by each of them, with due regard to the rights of the other, in a reasonable and duly careful manner.</p> <p>2. When the evidence warrants the inference that the motorman drove the defendant's street car rapidly, without slacking speed, across a street crossing where it usually stopped, either without looking ahead, or, if lie looked when one hundred and fifty feet away, seeing the plaintiff about to cross the track, the question of the defendant’s negligence is for the jury.</p> <p>3. The rule requiring one exercising his lawful rights in a place where the exercise o£ lawful rights by others may put him in peril, to use such precaution and care for his safety as a reasonably prudent man would use under the circumstances, is the measure of duty for one who crosses a public highway on foot. He must use his powers of observation to discover approaching vehicles, and a reasonable judgment to avoid collision.</p> <p>4. The proofs justifying the finding that, when the plaintiff started to walk across the defendant’s street car track at a street crossing where the cars usually stopped, she looked and saw a car “coming fast” one hundred and fifty feet away, it was a question of fact for the jury whether the plaintiff, in the exercise of reasonable prudence and caution, should have apprehended that the car was approaching her at so high a rate of speed that it would reach her before she could pass the track, and to determine whether a reasonably prudent person, with the right to presume that the company would exercise due care on its part, would have proceeded to cross under the circumstances.</p>

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

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

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

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

<p>1. The right of a “subsequent mortgagee in good faith” to chattels which are the subject of an unrecorded contract of conditional sale coming withiu the provisions of the Conditional Sales acts of 1S89, p. 421, and of 1895, p. 302, to hold them free of the claims of the vendor in such contract, is a right that can be transmitted to a purchaser of such chattels under foreclosure of the mortgage, though such purchaser had notice of the conditional character of the sale.</p> <p>2. Certain boilers and appurtenances were contracted to be sold with a stipulation that title should not pass until they were fully paid for. The vendee affixed them to the lands of a third party, who had notice of the agreement of conditional sale. Held, that they did not become part of the real estate as to such third party or as to the holder of a mortgage already a lien on such real estate.</p> <p>3. Such mortgage was subsequently foreclosed, and in the foreclosure suit a receiver was appointed and authorized by the court to raise money to operate a water plant embraced in the mortgage by issuing receiver’s certificates to be a lien on the mortgaged property. Held, that a purchaser of such receiver’s certificates acquired no lien upon the property embraced in the contract of conditional sale.</p>

<p>1. Where two distinct causes of action are tried at the same time, a party prevailing as to one has no legal complaint because of alleged errors which relate alone to the issue found in his favor although the other issue be determined against him.</p> <p>2. While proof of facts showing lack of ill-will or malice, and an honest belief of the truth of the words used is permissible in mitigation of a claim for punitive damages in an action for slander, such evidence is not admissible when the damages sought are compensatory only, the right to punitive damages resting upon a wrongful intent to injure, and that of compensation on the actual injury suffered.</p>

<p>On error to the Supreme Court, whose opinion is reported in 50 Vroom 310.</p>

<p>Forfeitures in beneficiary certificates, dealing with property rights, are not favored, and constructions of written instruments of that character against such result will be preferred if the instrument will bear it, rather than the adoption of an interpretation giving the opposite effect.</p>

<p>1. When a written contract is complete it is to be interpreted and enforced according to the fair import of its terms without reference to other writings, not between the very parties and not referred to in the agreement under consideration.</p> <p>2. The evidence in the case held to justify the court in refusing to exclude from the consideration of the jury certain items for which recovery was sought.</p>

<p>On error fo the Supreme ("hurt.</p>

<p>1. The existence of a trade custom put in issue by the defendant as a ground for the non-fulfillment of its contract as a common carrier presents a fact question .for the. jury.</p> <p>2. Whether a common carrier fulfilled its contract of carriage within a reasonable time, and whether its non-fulfillment was excused by the conduct of the plaintiffs, and the situation created by them at defendant’s terminal, were fact questions for the jury.</p> <p>3. An exception to be noticed by this court must be founded upon some objection presenting a legal question which must be stated on the record.</p>

<p>1. Where the plaintiff, in attempting to alight from a railroad passenger coach, from which others had alighted before and after her, missed her footing and fell between the car step and platform of the station and was injured, the mere proof that other railroads constructed car steps and platforms of a different type, without any proof of the existence of a recognized standard type, will not charge the defendant with negligence.</p> <p>2. The mere happening of an accident, without some proof of facts from which the violation of a duty due to the plaintiff by the defendant may be legitimately inferred, as a rule, will not constitute negligence.</p>

<p>1. Where a testator conferred upon his executor a power to sell the real estate of which the testator died seized, the executor was thereby vested with power to contract for the sale of the real estate.</p> <p>2. In an action on contract a defendant whose plea denies the contract has the benefit of the statute of frauds without specially pleading it.</p>

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

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

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

<p>In an action brought to recover damages for the death of a man employed as a conductor of a trolley car, it appeared that a flash of light in the street was observed by one of the witnesses, and that upon going to the front of her house she observed that a car had just passed. Witness also observed a wire partly in the air and partly on the ground “alight.” A car passed the place where the wires were down and emitted a great light. The conductor got off and started to walk back. Witness called out, “For God’s sake don’t come any closer, for the wires is down.” The conductor replied, “I know where it is, I see it.” Witness went into her house to get a lantern, and when she came out she saw the conductor dead, lying in the middle of the street, “almost in a line with the trolley poles.” Held, that it was error, on these facts to direct a verdict for the defendant on the ground of the contributory negligence of deceased and that he was a volunteer.</p>

<p>Where there is a substantial dispute as to the facts or the inferences to be drawn therefrom, it is not the province of the court to determine with whom the preponderance of evidence lies; that is for the jury to determine.</p>

<p>On error to the Supreme Court, whose opinion is reported in 50 Vroom 127.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 50 Yroom 467.</p>

<p>On error to the Supreme Court, whose opinion is reported in 18 Froom 141.</p>

<p>On error to the Supreme Court, whose opinion is reported in 50 Vroom 302.</p>

<p>1. In an action against the indorsers of a promissory note made in the State of California and payable there, and indorsed for value before maturity to the plaintiff’s testatrix in the State of New Jersey—Held, that the liability of the defendants upon the note depends upon the legal effect of their act as determined by the law of this state, whore the transfer of the note was made.</p> <p>2. In an action against the indorsers of a promissory note made in the State of California and payable there, and indorsed for value before maturity to the plaintiff’s testatrix in the State of New Jersey—Held, that the question whether the note was negotiable according to the law of New Jersey was material because of its effect upon the contract of indorsement, and that unless the instrument was negotiable the action could not be maintained.</p> <p>3. The Negotiable Instruments act (Pamph. L. 1902, p. 588) was approved April 4th and took effect (under (Pen. 8tat., p. 3195, pi. 87) on July 4th in the same year. By section 195 thereof it is, however, expressly declared that “The provisions of this act do not apply to negotiable instruments made and delivered prior to the passage hereof.” Held, that this section manifests the intent of the legislature to leave entirely unaffected by the act all negotiable instruments that were made and delivered as between the original parties prior to the passage of the act, and the question of the negotiability of a promissory note made and delivered before the act was passed, but falling due after the act went into effect, must be decided as the law stood prior to the act of 1902.</p> <p>4. Under the “Act concerning promissory notes,” &c., approved March 27th, 1874 (Gen. Stat., p. 2604), a promissory note made payable two years after its date, with interest payable semiannually, and containing a clause that upon any default in payment of the interest the whole of the principal and interest should become immediately due and payable at the option of the holder, and an additional stipulation that should suit be commenced or attorney be employed to enforce payment of the note, an additional sum of six per cent, upon principal and accrued interest would be paid as attorney’s fees in such suit—Held, negotiable.</p> <p>5. Under the “Act concerning promissory notes,” &e., approved March 27th, 1874 (Gen. Stat., p. 2604), it was not necessary that a promissory note be presented by a notary public for payment, nor was protest, strictly so called, necessary to fix the endorser’s liability.</p> <p>6. Prior to the act of 1902 (Pamph. L., p. 583), the established rule in this state was that notice of dishonor of a promissory note, when sent by mail, might be placed in the post-office on the day after dishonor, allowing a sufficient time after the commencement of business hours on that day for the preparation of the notice.</p>

<p>1. Under the “Act for the assessment and collection of taxes” (Pamph. L. 1903, p. 394, § 3, If 4), which declares that the following proi>erty (among others) shall be exempt from taxation under this act, viz’.: “All buildings actually and exclusively used for * * * asylums or schools for feeble-minded or idiotic persons and children, and owned by corporations of this state authorized to carry on such charities, and the land whereon the same are situated necessary to the fair use and enjoyment thereof, not exceeding' five acres in extent for each, the furniture thereof and personal property used therein * * * ; also all buildings used exclusively for purposes considered charitable under the common law * * * with the land whereon the same are erected and which may be necessary for the fair enjoyment thereof, and the furniture and personal property used therein,”—the exemption from taxation depends upon the user of the property alone, and is not controlled by the question whether the association is devoting to charitable purposes more property, or property located otherwise, than is permitted by its charter.</p> <p>2. If a charitable association usurps franchises not conferred upon it by the legislature, relief may be had by a quo warranto at the instance of the attorney-general, but such usurpation does not affect the question of the liability of its property to taxation.</p>

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

<p>1. Under the “Act to provide for and regulate appeals from any District Court in any city of the state to the Supreme Court” (Pamplb. L. 1902, p. 565), the appeal is confined to questions of law; a reversal will not he permitted upon a ground that was not called to the attention of the trial judge, and something in the nature of an objection or exception must appear from the state of the case.</p> <p>2. The Supreme Court, upon an appeal taken from a District Court under Pamplb. L. 1902, p.,565, having considered the meritorious legal questions raised, notwithstanding the state of the case presented no question of law upon which the judgment of the District Court could properly be reviewed, and having upon the merits affirmed the decision of the District Court and entered judgment accordingly, denied an application for reargument, which was based in part upon the ground that as the record in the Supreme Court was defective in the respect indicated, a review of the meritorious question in this court would be impossible without an amendment of the record. Held, such denial, being plainly a matter of discretion, was not reviewable in this court.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 45.</p>

<p>A law which imposes a license fee upon the owners of all automobiles using the improved public highways of the state, the amount of such fees being determined by the horse power of the vehicle, although it incidentally affects interstate commerce, is not a regulation of such commerce within the meaning of the commerce clause of the federal constitution.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 143.</p>

<p>1. In an action for malicious prosecution, uncontroverted evidence that the charge upon which the plaintiff was prosecuted was false, so far as the plaintiff’s responsibility for the matters alleged against him was concerned, is sufficient to justify an inference against the defendant of malice and want of probable cause.</p> <p>2. When the question of the existence" or non-existence of probable cause for instituting a criminal prosecution depends partly upon undisputed facts, and partly upon facts which are in dispute, and which must be determined from the evidence in the cause, such question is not one of law to be resolved by the court, but one of fact to be settled by the jury under proper instructions. .</p>

On error to tlie Supreme Court, whose opinion is reported in 51 Vroom 185. In 1906 George W. Allee was, and lor many years liad been, the secretary of the Manchester Building and Loan Association, and during the same period was also employed in an important position by a brewing company of which Bernard Katz was the president. In April of that year Allee was found to be short in his accounts with the building association to the amount of some $14,000.

<p>1. The constitution of this state does not prohibit the legislature from passing general laws providing for the manner in which and the persons by whom jurors shall be selected, drawn, summoned or empaneled.</p> <p>2. The mention in the constitution of the office of sheriff does not constitute a limitation upon the legislature by which it is prohibited from enacting laws the effect of which is to subtract from the powers exercised by sheriffs at the time the constitution was adopted.</p> <p>3. When a later constitution adopts a provision of an earlier one that has received a certain practical construction such provision is deemed to be adopted as thus construed.</p> <p>4. The framers of the constitution of 1844 having adopted the provision of the constitution of 1776 with respect to sheriffs, with knowledge of the practical construction that intervening legislatures had placed upon such provision, the presumption is that in adopting such provision such construction was also adopted.</p> <p>5. Virtue v. Freeholders of Essex Co., 38 Vroom 139, disapproved.</p> <p>6. Courts do not invalidate, as contrary to the constitution, a legislative enactment that is supportable under a view of the constitution that it was permissible for the legislature to take.</p> <p>7. Constitutional limitations are to be established and defined by words that are found written in that instrument and not by reference to some spirit that is supposed to pervade it or to underlie it or to overshadow its expressed provisions.</p> <p>S. The supplement to “An act concerning juries (Pamph. L. 1906, p. 218) by which lists of jurors selected by sheriffs are subjected to reform by judges of the Common Pleas is a valid enactment which the legislature was not prohibited from passing either (a) by article 1, section 7 of the constitution, “the right of a trial by jury shall remain inviolate,” or (5) by article 7, section 2, paragraph 7, “sheriffs and coroners shall be elected by the people of their respective counties.”</p>

On- error to the Supremé Court. The plaintiff is the assignee of the following written contract: “December 29, 1905. I hereby agree to sell Mr. A. J. Ellis, a FTo. 5 Press, with dies not duplicate in front of machine, for the sum of six hundred and eighty dollars. Signed, George A. Ohl, Jr., for George A. Ohl & Company.” The contract was assigned to the plaintiff on January 4th, 1906. It is not questioned that Mr. Ohi was authorized to act for the defendant.

<p>On error to the Supreme Court, whose opinion is reported in 50 Vroom 177.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 62G.</p>

<p>1. Under section 140 of the Practice act (Pamph. L. 1903, p. 575), which provides that the written answers to written interrogatories submitted before trial upon any matter material to the issue shall be evidence in the action if offered by the party proposing the interrogatories, but not otherwise, the action of the trial judge in permitting the answers to several interrogatories to be offered and read in evidence without admitting the answers to the remaining interrogatories, cannot be said to be erroneous when there was no showing nor offer to show, either in the trial court or in the reviewing court, that the remaining answers were material to the issue or that they tended to explain, qualify or limit the answers admitted.</p> <p>2. As regards injuries by third persons which affect solely the possession and use of premises by a tenant paying a yearly rental therefor, the landlord cannot maintain any action. The right of action for such deprivation is solely in the tenant.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 50 Vroom 156.</p>

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

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

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

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 148.</p>

<p>1. Where the writing- which assigns a bond and mortgage does not, in terms, transfer a chose in action, nor the policy of insurance on which it is claimed to rest, and neither party intending that it should, a contract different from that made by the written agreement cannot be read into it to give it a more extensive meaning than that expressed.</p> <p>2. When a mortgagee, holding as collateral a policy against a fire loss with a mortgagee clause attached, sells and disposes of his bond and mortgage for full value, he cannot recover for a fire loss which happened before the transfer, as he has no interest to be made good, and his subsequent transfer of his rights under his policy to a third party passes nothing, for he has nothing to transfer.</p>

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

<p>1. Where persons contract with each other regarding what shall be their course of conduct with each other concerning a certain subject-matter, and declare that there shall be no change in their agreement which shall visit additional liability in favor of or against the othex-, without authority for so doing, in writing, the mere performance of extra service without such written authority will not give rise to an implied waiver of provisions of the contract in that respect.</p> <p>2. When parties have by contract provided that certain rights shall accrue to or be withheld from them or either of them, as between themselves, upon the making of a certificate by an architect as a condition precedent, such certificate is conclusive as to the facts so certified, which lie within the scope of the agreement, unless there be proof of fraud in the giving or withholding of such certificate.</p>

<p>1. The action o£ trespass, being a possessory action, the party in possession is the apparent owner, and by possession has a good title against all the world, for every purpose, until a superior one is shown, the plea of liberum tenementum casting the burden of proving title upon the defendant, which is not shifted by a traverse alleging property in the plaintiff.</p> <p>2. A description in a conveyance, referring to a map annexed, must be read in connection with such map, and the court must interpret the scope of the conveyance by reference to both.</p>

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

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

<p>3. An action for seduction may be maintained by one standing in loco parentis to an illegitimate child; whether the plaintiff occupied that status was a fact question for the jury.</p> <p>2. The damages recoverable are such in character as may be recovered by a nalnral parent.</p>

<p>1. The plaintiff was walking over the public highway toward his home, very near to the trolley rails of the defendant’s track laid upon the highway, when its car, going in the same direction, came from behind him, but which he neither saw nor heard' (no signal by bell or otherwise being given), and ran over him, and it was held, under the circumstances detailed in the following opinion, that the questions of the plaintiff’s contributory negligence and of the defendant’s negligence were for the jury.</p> <p>2. Even assuming the plaintiff unreasonably obstructed the trolley track, such illegal act did not constitute such contributory negligence on his part as will relieve the company from responsibility for an accident which might have been avoided by the exercise of proper care by it, nor absolve it from its duty so to act as, if possible, to avoid running him down and dqing him harm.</p> <p>3. If there be any obstructipn from dust or darkness or other cause to the motonnan’s sight of his track ahead of him, his duty requires him to use still greater care to reduce his speed and to stop his car, if necessary, until his observation of the track ahead of him becomes clear.</p>

<p>1. A carrier of passengers for hire is legally responsible for injuries happening to a passenger from such an accumulation of ice upon its car steps as to cause a passenger, using ordinary care, to slip and fall, if sufficient previous opportunity has been had to remove the source of danger. The duty of the carrier in such regard is not performed simply by appointing servants whose duty it is to keep the car steps in a safe condition, nor is it any excuse that the servants neglected their duty, and where a substantial conflict as to the actual performance of such duties by the servants appears from the evidence, such conflict must be determined by the jury.</p> <p>2. A.material distinction pointed out between the facts influencing the decision of the Supreme Court in the case of Baker v. North Jersey Street Railway Co., reported in 48 Yroom, 336, and those controlling the decision of the case at bar.</p> <p>3. In an action for injuries to a passenger, testimony of plaintiff that she slipped on material on the platform of the car which “looked like old ice,” is not an opinion in its ordinary sense, which is an inference as to what will follow from a given state of facts, but is the observation of an existing condition.</p>

<p>1. In an action by a servant for personal injuries alleged to have been sustained by the giving way of one of the rungs of a ladder on which he was standing—Held, on the evidence, that the question of the way in which the accident happened was for the jury.'</p> <p>2. In an action by a servant for personal injuries—Held, on the evidence, that whether defendant’s general manager was authorized to promise repairs, and on complainant’s complaint of the defective condition of a ladder promised to repair it, and directed plaintiff to use it meanwhile, and whether it had been repaired at the time of the plaintiff’s injury were questions for the jury.</p> <p>3. It must be a very plain case to justify the court in taking from the jury the question whether a danger from a known defect is so great and imminent that a prudent man after a promise to repair, would be guilty of contributory negligence in not hazarding his employment rather than take the risk.</p> <p>4. In an action by a servant for personal injuries caused by his fall from a ladder which he had complained of as defective, and which defendant’s general manager had promised to repair, with directions to use it meanwhile—Held, on the evidence, that the question of whether the danger from the defect was so imminent that plaintiff’s continued use of it was contributory negligence was for the jury.</p> <p>5. A master may be liable for injuries to a servant caused by defective tools or appliances, or the unsafety of a place of work, if he has promised to repair the defect or make the place safe, and the servant continues the work in reliance upon the promise, though the risk be obvious; and this rule applies whether the master’s promise to repair relates to simple or intricate appliances.</p>

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

<p>Section sixty-three of the Town act of 1895 {Gen. Stat., p. 3539), providing that an owner of real property, who shall have presented written objections to an award for such property taken at the time designated in the notice of the time fixed by the town council for hearing objections to the confirmation of the report, may, if he is dissatisfied with the council’s- determination, commence an action on contract against the town, was complied with where an owner first submitted his objections at an adjourned meeting for hearing objections, and the owner was not required to present them, at the original meeting.</p>

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

On error to the Supreme Court, which had under review a judgment of the District Court of Hoboken, rendered in behalf of the plaintiff in an action of tort.

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 11.</p>