Volume 88 — New Jersey Law Reports

<p>3. A person who is employed by a railroad company in maintaining the effectiveness of a part of the railroad’s plant, which is used both in interstate and intrastate commerce, is entitled to maintain an action under the Federal Employers’ Liability act, when » injured while engaged in such employment.</p> <p>2. Plaintiff’s decedent was working in a manhole under a railroad track in a yard and was just coming out of it when he was run over and killed by a locomotive backing on the track. There was evidence that the engineer made no special observation of the manhole and that no warning was given decedent. There was also evidence that decedent came out of the manhole in response to a signal of a fellow-employe. Held, that there was sufficient evidence of negligence to warrant a denial of a motion to direct a verdict in favor of the plaintiff.</p> <p>8. The doctrine of assumption of risk has no application to such risks as arise solely and directly out of the negligent acts of a fellow-servant. Even if it did so apply, it would have no pertinence in the case of an accident under the Federal Employers’ Liability act which declares that every common carrier by railroad, engaged in interstate commerce, shall be liable in damages to the personal representative of any employe who shall lose his life while employed in such commerce, when his death results “from the negligence of any of the officers, agents or employes of such carriers.”</p> <p>4. Since the Federal Employers’ Liability act of 1908 supersedes all state laws upon the subject of the liability of carriers by railroad, engaged in interstate transportation, to their workmen, injured while employed .in such commerce—Held, that no state, by subsequent legislation, can impair or curtail the rights conferred upon the employe, or his personal representative, or the liabilities imposed upon the carrier by the federal act.</p> <p>5. Where a request to charge the jury is made, all that the trial judge is required to do in dealing with such request, when the legal principles embodied therein are sound, and are applicable to the matter under discussion, is to charge the substance thereof.</p>

<p>In an action upon a mechanics’ lien claim by a subcontractor, against the builder and owner, a builder may recoup damages which he may have sustained by reason of breach by the subcontractor of the contract upon which the subcontractor’s action against the owner and the builder is founded.</p>

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

<p>1. S., owning a farm, hired plaintiff to work thereon. During the period of plaintiff’s employment, the title to the farm was transferred to the wife of S., but there was no change in the possession thereof. At or about the time of the transfer, the wife verbally assured the plaintiff that she would see to it that he would get his pay for his services and told him to go rig*ht on working. Held, that plaintiff’s claim against the wife for wages due for work done after the transfer of the title of the farm to her was unenforceable under the statute of frauds.</p> <p>2. A verdict for the plaintiff for the full amount of his claim cannot be sustained, when he has abandoned a portion thereof at the trial.</p>

<p>The obligation of a railroad company with respect to the act of its ticket agent is that he shall deliver to passengers the tickets for which they ask and pay; if this be not done, whether the fault be that of the agent or the company, the latter is liable to the passenger for the damages that result from the mistake of its agent.</p>

On petition. On March 5th, 1895, the name of John Harris was stricken from the roll of attorneys and counselors of this court.- This action was taken upon charges formulated b3r a committee of the Camden County Bar Association. The testimony raleen this committee was presented to the court and ordered to be filed. At the same time the committee presented the record of the Camden Quarter Sessions showing the conviction of Harris of obtaining money under false pretences.

On petition and order. This is a proceeding under “An act providing for decreeing and making known that certain laws and joint resolutions have become inoperative and void.” Pamph. L. 1873, p. 27; Comp. Stat., p. 4978. The object of the proceeding is to have it judically determined that chapter 351 of the laws of 1915 was not duly passed by both houses of the legislature or duly approved as required by the constitution of this state.

On rule to sliow cause why a mandamus should not issue. Chapter 325 of the laws'of 1913, approved April 9th, 1913 (page 656), by its first section, provides that in every city of the second class in which there is now or shall hereafter be created a board of public works, the governing body of such city by whatever name designated shall consist of one member in and for each of the wards of such city, who shall be elected in the same manner and for the same terms as shall be…

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

<p>On certiorari.</p>

<p>1. The constitutional inhibition that the legislature shall not pass any private, local or special law regulating the internal affairs of towns and counties, is to be construed by the rule that if the' effect of the act is to remove existing differences, and to subject the internal affairs of counties to the operation of a general law, then it is not prohibited by the constitution, but is in strict accordance with the command of that instrument, which expressly enjoins the legislature to pass general laws for such cases.</p> <p>2. The provisions of chapter 355, laws of 1912, being an act to reorganize the boards of chosen freeholders of the several counties of this state, &c. (Pamph. L., p. 619), examined, and held to be constitutional under the application of the rule above set forth.</p> <p>3. The constitutionality of an act of the legislature is not to be determined by consideration of verbal or rhetorical niceties; the act must be judged on a broader basis, and according to its effect as a whole.</p>

<p>On error to tlie Monmouth Sessions.</p>

<p>Where a trial judge has directed the jury to find a verdict for the defendant, and the jury, in accordance therewith, finds the defendant not guilty, the state is not entitled to a bill of exceptions or to a review by writ of error of an error in law by the trial judge, in the absence of any statute authorizing such procedure.</p>

<p>1. In the trial of an indictment for maintaining a disorderly house, testimony of the acts and sayings of the frequenters of the place is permissible to show the character of the people and hence of the place where they gather. The language, however, must of itself be disorderly, or must be used in connection with acts which, together with the language, exhibit disorderly conduct.</p> <p>2. In such cases, proof of the general reputation of those who frequent the place is admissible, but since the defendant cannot be charged with guilt unless ho knows, or may be assumed to know, the bad character of those who frequent his place, the general reputation of the frequenters of the place cannot be shown by proof of specific acts of immorality committed away from the immediate vicinity of the place.</p>

<p>3. The board of chosen freeholders of Essex as successors of the Essex Public Road Board, is authorized to vacate gores and angles of old roads appropriated to Bloomfield avenue, outside of the seventy-five feet allowed by statute for the width of the avenue.</p> <p>2. Where the vacation of gores and angles formerly part of a highway, does not make access to the prosecutor’s property more inconvenient nor close any highway and there is no statutory provision for damages in case of vacation, the prosecutors are not entitled to notice of the proceedings to vacate.</p>

<p>1. Possession of personal property is prima fade evidence of ownership.</p> <p>2. In a suit for damages for tbe conversion of several articles of household furniture taken from the possession of the plaintiff by the defendant, testimony that, prior to the conversion, the plaintiff offered to purchase of the defendant “some of the goods in question,” without any other evidence tending tc show ownership or right of possession in the defendant, will not justify a finding that the defendant had title or right of possession to all of the articles.</p> <p>3. In an action for damages for conversion, where the plaintiff’s evidence tended to show title in herself, and the defendant, by placing his defence on title in himself, puts in issue the ownership of the property, it is competent for the plaintiff to prove that by her purchase from a third party in possession she was a bona fide purchaser for value and without notice of the defendant’s claim, and this she may do by the testimony of witnesses who were present and heard what was said when the parol contract of sale was made.</p>

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

<p>1. The unexplained presence of the defendant’s horse, harnessed to a wagon, in the act of running away, and unattended by the owner or other person, and on the sidewalk of the public highway-breaking through the plaintiff’s show window, raises, a prima facie presumption of negligence upon the part of the defendant.</p> <p>2. Evidence tending' to show that the defendant’s horse and wagon had been left by his servant untied and entirely unattended on the public highway; that theretofore both the defendant and his servant had knowledge of the propensity of the horse to run away when left untied and unattended, justifies a finding by a jury, or by the trial judge sitting without a jury, of liability of the defendant for damages caused by the horse when it ran away ‘ by reason of being left untied and unattended.</p>

<p>On motion to substitute personal representative of deceased defendant on the record.</p>

<p>1. A municipal ordinance being attacked on the ground that prosecutor did not have the required notice of its intended passage —Held, that the burden was on prosecutor to show that due notice was not given.</p> <p>2. Chapter 12 of the laws of 1915, a further supplement to the Borough act, is not unconstitutional—(a) as failing to express its object in the title; (6) or as a special law regulating the internal affairs of municipalities; (c) or as authorizing the taking of property for private use.</p>

<p>On certiorari.</p>

<p>1. Chapter 353 of the laws of 1915, intended to validate the election of certain municipal officers, is unconstitutional as being a special act regulating the internal affairs of cities.</p> <p>2. The adoption by Atlantic City of the Walsh, act (Pamph. L. 1911, p. 462), and the organization of the city commission, did not abolish the charter office of recorder previously existing.</p> <p>3. Tlie appointment of relator as recorder by the commission was for the charter term of three years, dating from such appointment.</p>

<p>The existeney of a contract between a municipality and a water company, providing a maximum rate for water to be supplied to consumers, does not debar the Public Utility Commissioners from fixing a higher rate.</p>

<p>On certiorari.</p>

<p>1. The general language of the Commission Government act of 1911 (Pamph. L., p. 462)'—held, not to confer upon municipalities adopting that act the power of regulating the traffic in intoxicating liquor.</p> <p>2. The pow-er conferred by the Commission Government act of 1911 of enforcement of ordinances by imposition of reasonable fine or imprisonment, does not extend to ordinances relating to the traffic in intoxicating liquor.</p>

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

On rule to show cause why said state board should not be required by mandamus to issue licenses to relators to practice osteopathy in the State of New Jersey.

<p>The certificate of a board of school estimate to the municipal board or council, required by section 75 of the School act (Comp. Sat., p. 4746) is a certificate of the total amount required for the purposes specified in section 74, and not of the specific items to which such amount is applicable; and said total when certified and appropriated is at the disposal of the board of education for such application within the provisions of the act as said board chooses to make of it, in whole or part.</p>

<p>On certiorari to finding of Court of Common Pleas in Workmen’s compensation case.</p>

<p>1. The statute relating to the crime of bigamy, after defining the offence and fixing the penalty declares, in the same section, that nothing- in that section should extend to any person in classes particularly described. Held, that in an indictment for bigamy, it was not necessary to aver that the defendant was not within either of the excepted classes.</p> <p>2. To require that an indictment negative an exception contained in a criminal statute, the exception must be contained in the. prohibitory clause as a part of the description of the crime, and the fact that the exception appears in the same section which defines the crime, does not change the rule if the clause follow the prohibitory clause and is distinct and substantive.</p>

<p>1. The various acts of the legislature relating to the Hoboken Cemetery, deprived the governing body of the city of control of the cemetery, and vested the same in a board of trustees elected by and responsible to the lot owners of the cemetery.</p> <p>2. The board of cemetery trastees so elected are not a part of the municipal government of the city of Hoboken, and are not a governing body in such city, so as to be comprehended within the provisions of the Walsh act, which ipso facto■ upon its adop- , tion in any municipality terminates the existence of the city council or other governing body or bodies and their agents and representatives in such city.</p> <p>3. The said trustees are not the agents and representatives of the city, but represent the lot owners of the cemetery; the city as donee of the dedication occupying the status of a trustee for the proper administration of the funds entrusted to it.</p> <p>4. The power exists in the legislature of repres°enting the public for the purpose of regulating and administering a public use, under a dedication to one of its municipalities.</p>

<p>On appeal from a summary conviction for contempt of court.</p>

<p>On certiorari removing tax assessments.</p>

<p>1. The act of 1913, amending the Workmen’s Compensation act of 1911, which requires that in case of .personal injury or death all claims for compensation on account thereof shall be forever barred unless within one year after the accident the parties shall have agreed upon the compensation payable under the act, or unless within one year after the accident one of the parties shall have filed a petition for adjudication of compensation as provided by the act, is not applicable to cases of accidents which have happened prior to the taking effect of the amendment of 1913.</p> <p>2. The act of 1913, above referred to, does not contain any words which would give it a retrospective operation, and consequently, does not limit "claims for compensation under the act of 1911 on the expiration of one year after the act of 1913 went into operation.</p> <p>3. The proceeding under the act of 1911, known as the Workmen’s Compensation act, is one unknown to common law and clearly in derogation of it and can hardly be said to fall within the .classification of any of the actions enumerated in the statute of limitations.</p> <p>4. Where an accident occurs under the Workmen’s Compensation act of 1911 and previous to the taking effect of the amendment of 1913, and the court finds that there was disability partial in character but permanent in quality, the weekly payments are to be made from the • time of the adjudication in the Court of Common Pleas and not from the time of the accident.</p>

<p>On certiorari.</p>

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

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

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

<p>On appeal from tlie First Judicial District Court of Hudson county.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 103.</p>

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

<p>By written contract defendant agreed to purchase from plaintiff a quantity of a certain kind of coal got from certain mines and known by the trade name of “Ralpkton Smokeless Coal.” Held, that there was no implied warranty as to the quality of the coal. Section 15, subdivision 4, of the “Sales act” (Comp. Stat., p. 4647), applies. Ivans v. Laury, 67 N. J. L. 153, approved and applied.</p>

<p>Plaintiff attempted to signal a train of defendant railroad company by pulling down a handle which raised a semaphore or signal board, supported on a post located in front of a station. A man assisted her by tying a wire, which was attached to a cross-bar of the post, around the handle to relieve the plaintiff from the necessity of holding it down. The wire was in two pieces looped together, and parted when plaintiff let go of the handle, which flew up, striking her in the face and causing her injury. There was no evidence to show that the defendant had installed the wire or that its defective condition had been brought home to it, or that that condition had existed for such length of time as to charge it with notice. Meld, that no case of negligence on the part of the defendant was established, and that, therefore, a verdict for defendant was rightly directed. Held, further, that the doctrine of res ipsa loquitur did not apply.</p>

<p>On. appeal from a judgment of the Supreme Court.</p>

<p>On appeal from the Essex Circuit Court.</p>

This was an action upon a judgment recovered in the Supreme Court of the State of New York against Joseph Marrone. At the trial in the Essex Circuit the plaintiff offered in evidence an exemplified copy of the judgment roll of the Supreme Court of New York and oral evidence as to the sum due thereon, and rested his, case.

This action was brought in the District Court and tried therein without a jury. The judgment rendered upon a mixed question of law and fact ivas affirmed by the Supreme Court in the following per curiam: “Judgment was rendered for the plaintiff in this case for the sum of $454.19 on an account for advertising, which covers a period between May 5th and October 1st, 1913. The record shows that a Mr. Soistman was the vice-president and general 'manager of the defendant company.

<p>1. In an action for damages against a physician for the negligent performance of a surgical operation, in that a gauze sponge was negligently left in the abdomen of the plaintiff, it was injurious error to charge the request of plaintiff’s counsel that “If you find that the gauze was left in the abdomen of plaintiff and the incision sewed up by defendant or allowed to heal over it, the burden of proof is on defendant to show that it was not left there by any carelessness or negligence of his.”</p> <p>2. In an action of negligence, the burden of proving the negligence of the defendant is upon the plaintiff, and as a proposition of law for the jury’s guidance at the close of the case, it never shifts to the defendant.</p> <p>3. Hughes v. Atlantic City Railroad Co., 85 N. J. L. 212, followed.</p> <p>4. This right of the defendant to have the plaintiff bear the burden of the affirmative is a substantial one, the denial of which is injurious error.</p>

This was an action for broker’s commissions. The complaint, after setting out the written agreement to pay commissions, states the cause of action as follows: “On September 12th, 1912, plaintiff duly sold said premises for defendant to one Charles A. Terrill for said price, and defendant agreed in writing to all the terms of said sale and accepted a payment on account of the purchase price, as appears by the copy of the agreement hereunto annexed.” To this averment the…

<p>The word “purchasers” in section 53 of the act respecting conveyances (Oomp. Stat., p. 1552) means purchasers of the same land and not purchasers from the same grantor. A purchaser of other land from the same grantor is not charged with notice of building restrictions contained in an earlier deed not in his chain of title.</p>

<p>The legislature by the Insurance act of 1907 (Pamph. L., p. 133; Comp. Stat., p. 2868) meant that the terms required to be inserted in policies of life insurance should be a part of every contract of life insurance within the scope of the act.</p>

The decedent was employed by one Steelman and was working at the time for Beilly. Beilly was constructing an amiesite road in Atlantic county. The decedent was employed in carting material for Beilly’s work from freight cars at Ocean Heights. The tracks at that point belong to the West Jersey and Seashore Company, and the Atlantic City and Shore Bailroad Company was operating trolley cars thereon.

<p>An indictment charged a conspiracy to pervert the due administration of the laws. The proof was of an agreement by defendants with a detective in the employ of the state’s law officers to detect defendants in corrupt conduct, by which the detective was to pay them money for their votes as members of a city council. Held, that, as the indictment charged but one conspiracy to which the detective was proved to be a necessary party, and as his object was to expose corruption and prevent injury to the public, there was a failure to prove a conspiracy to pervert the due administration of the laws.</p>

J. L. 137. The prosecutor is incorporated under the General Railroad act. It has tracks in Atlantic City lying in part on land owned by it in. fee-simple and in part on land dedicated by the original map of Atlantic City to a railroad, now by the consent of the railroad company used as public streets.

<p>1. Any lawful holder of a bill of lading', issued by the. initial carrier pursuant to the Carmack amendment (section 20 of the Interstate Commerce act, as amended June 29th, 1906, 34 U. S. Stat. at L., pp. 593, 595, ¶ 7), upon receiving property for interstate transportation, may maintain an action for any loss, damage or injury to such property caused by any connecting carrier to whom the goods are delivered.</p> <p>2. When the last successive carrier seeks to relieve itself from liability for damages, caused by delay In an interstate shipment of ' watermelons, because the bill of lading contained a condition that the carrier, except in case of negligence, should not be liable for damage to property resulting from delay in transportation if such delay is caused by a strike, and the evidence tended to show (1) that the strike was over before the shipment was received by the carrier, and (2) that the delay was caused by the use by the carrier of the watermelon tracks at the destination point during and following the strike, in the delivery of peaches usually delivered elsewhere, to the exclusion of watermelons, which were placed on storage tracks at an intermediate point, the question whether the delay was caused by the negligence of the carrier or by .the strike was for the jury.</p> <p>3. In a suit against a carrier for damages caused by delay in an interstate shipment of watermelons, it is not erroneous for the trial judge to refuse to charge the jury “that it was the duty of the defendant to move the most perishable fruit first, under the circumstances, and the holding back of less perishable fruit, viz., the watermelons, until the peaches had been delivered, was not negligence,” when there was no evidence that the peaches in question were more perishable than the watermelons in question at the time both were being handled by the carrier.</p> <p>4. When the bill of lading- of an interstate shipment contains a condition that the amount of any loss or damage for which the carrier is liable “shall be computed on the basis of the value of the property, being the bona fide invoice price, if any, to the consignee, including the freight charge, if prepaid, at the place and time of shipment,” it is proper for the judge to instruct the jury that, if the carrier was liable, the plaintiff was entitled to recover the freight paid by Mm as a part of his damages.</p>

<p>On appeal from the Essex Comity Circuit Court.</p>

<p>1. Since the passage by congress of the Carmack amendment (section 20 of the Interstate Commerce act, as amended June 29th, 1906, 34 U. S. Stat. at L., pp. 593, 595, ¶ 7), all questions of a common carrier’s liability for loss or damage to interstate shipments are to be determined thereunder, and by the rules declared by the federal courts, this legislation having superseded all regulations and policies of a particular state upon the subject.</p> <p>2. A stipulation in a bill of lading, in a case of interstate shipment, that if claim for damages be not made in writing within ten days after delivery of the property the carrier shall not be liable, is valid in the absence of any contention that the time limit is unreasonable, and the acceptance by the shipper of a bill of lading containing such provision constitutes a binding contract on his part, and, if made with the initial carrier, enures to the benefit of the connecting carrier.</p> <p>3. Since the Interstate Commerce act prohibits the giving of preferences by means of consent judgments or the waivers of defences open to the carrier, where the bill of lading in case of interstate shipment contained a condition that “if claims for damage be not made within ten days after the delivery of the property the carrier shall not he liable,” the liability of the carrier cannot be predicated upon the mere fact that the carrier rejected the claim for other reasons when it was presented out of time.</p> <p>4. In a case of interstate shipment of watermelons, it is erroneous to refuse to charge “that the defendant was not hound to carry or transport the watermelons by any particular train, nor within any particular time, nor in time for any particular market, nor otherwise than with reasonable dispatch with reference to other business of the defendant as its general business permitted,” when it appears that such request embodied the exact language of the bill of lading constituting the special contract of the parties.</p>

<p>On appeal from tbie Supreme Court.</p>

<p>1. The loading of goods on a detached box car at a public siding distant from the railroad station and' freight office, and with no participation by the railroad employes beyond placing the car, the understanding and custom being that shipper was allowed forty-eight hours to load and that the agent at the nearest freight station should be notified when the loading was complete, did not constitute a delivery to the carrier when the loading was complete in less than forty-eight hours and no notice of such completion was given to the company.</p> <p>2. Under the Interstate Commerce act as amended, and the regulations of the interstate commerce commission respecting tariffs and uniform bills of lading, when the delivery to the carrier is complete, though no bill of lading was issued, the rights and liabilities of the parties are regulated by the uniform bill of lading so far as applicable.</p> <p>3. A clause in said uniform bill of lading referring to “private or other sidings”—Held to include a public siding.</p>

On error to the Supreme Court, whose per curiam is as follows: The plaintiff in error was convicted of the offence of selling intoxicating liquor to one Raymond Cannon, a minor under 'the age of eighteen years. The first ground of reversal is directed at the refusal of the motion to quash the indictment by the trial court. A motion to quash is not reviewable on a bill of exceptions, being a matter in the discretion of the court.

<p>On appeal from the Supreme Court, pursuant to the Practice act of 1912.</p>

On appeal, pursuant to, the Practice act of 1912, from a judgment of the Supreme Court, affirming a judgment for plaintiff in the Hudson Circuit Court.

<p>Where a riparian owner diverts water from a running stream, and so uses it that it becomes polluted to the extent that it is unfit for domestic and other reasonable riparian uses, and when returned, as it must be, to the stream, it appreciably impairs the quality of the water, to the injury of ail the people of the state for whom the residue of all flowing water, after reasonable riparian use, is held, a public nuisance is committed, and such unlawful use is not the reasonable use which a riparian owner is entitled to make of passing water, and for the deprivation of water intended to be so used ho is only entitled to nominal damages because the injury he suffers, if any, is that he is deprived of the means of committing a public nuisance.</p>

<p>On appeal from the Hudson County Circuit Court.</p>

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

<p>The defendant was arrested by virtue of a warrant issued upon a complaint charging him with keeping a disorderly house by procuring men and women of evil name and fame to frequent it for immoral purposes, the house being used by the defendant as a hotel or public house. The arrest was made in the, public office in which there was a counter or desk; on this counter there was, openly displayed, the hotel register containing the names of persons and the rooms to which they were assigned, and also a cash-book showing receipts of payments for such rooms. In the presence of the defendant and at the time of making the arrest, these books were taken by the officer, without a search warrant, and delivered to the prosecutor of the pleas, who used these books as evidence against the defendant in support of the crime charged. Before the trial an application was made to the court by the defendant for their return to him upon the ground that such seizure was prohibited by paragraph 6 of article 1 of the constitution of the state, relating to “rights and privileges,” which application was denied. Held, that the seizure did not violate the provisions of article 1, paragraph 6 of the constitution.</p>

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

<p>On appeal from the Bergen County Circuit Court.</p>

<p>On appeal from the Cape May Comity Circuit Court.</p>

<p>1. In the exercise of a discretion employed bona fide in the interest of municipal economy, it is competent for the governing body of the municipality to reconsider a resolution appointing extra patrolmen to the police force and rescind it.</p> <p>2. Where the resolution on its face expressly states that such action is taken for reasons of economy, the resolution in the absence of proof to the contrary, does not violate the provisions of the Tenure of Office act.</p> <p>8. The party attacking the resolution upon the ground that its passage was not in the interest of economy, must prove his contention, since in the absence of proof the legal presumption prevails that the resolution expresses the real purpose of the municipal action.</p>

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

<p>On appeal from the Essex Circuit Court.</p>

<p>1. A building contract was entered into between the plaintiff, as contractor, and the defendant as owner, containing a clause that should the contractor at any time during the progress of the work, refuse or neglect to supply a sufficiency of materials and workmen, the owner should have power to provide the same, after three days’ notice in writing, to finish such work, and the expense should be deducted from the contract price. The clause was made effectual before the building was completed by the giving of such notice, and the plaintiff brought an action to recover from the defendant the difference remaining between the amount which had been paid him on the contract, plus the expense of completing the building, and the contract price. Stop-notices were served upon the plaintiff by subcontractors under section 3 of the Mechanics’ -Lien law. Held, that a motion to admit the claimants under the stop-notices as parties to the action was properly denied, as they were not necessary parties. Their claims against the owner, if improperly refused, could not in anywise be affected by the controversy between the owner and contractor.</p> <p>2. In an action upon a building contract, the owner’s right to deduction or allowances is restricted to payments. Until actual payment, or something which is equivalent thereto, no allowance can be made for such stop-notices.</p> <p>3. Where at the trial of an action by a contractor against the owner, it did not appear that the defendant had paid anything on the stop-notices, he was not entitled to credit therefor.</p> <p>4. Where testimony is offered at the trial of an action, and upon objection by counsel the offer is overruled, and counsel for the opposite party makes no objection to the ruling of the court on the rejection of such testimony, there is nothing for the appellate court to consider.</p> <p>5. In the case sub judiee the owner’s right under the contract was to finish the work left undone and to deduct the expense from the contract price. Therefore, the court rightly charged the jury that if there was anything included in the finishing of the contract not contemplated by the plan? and specifications, that should not be included.</p> <p>6. Where an action was tried upon the theory that the plaintiff was entitled to recover the contract price less payments and less the costs of completion, it was of no consequence whether or not the plaintiff was rightfully or wrongfully excluded from finishing the work. The breach, if committed by the plaintiff, subjected him only to have the expense incurred by the owner in the completion of the contract deducted from the contract price.</p>

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

<p>By the first section of an act entitled “Supplement to an act entitled ‘An act concerning proceedings on bonds and mortgages given for tlie same indebtedness, and the foreclosure and sale of the mortgaged premises thereunder,’ approved March 12th, 1880,” which supplement was approved May 28th, 1907 (Comp, Stat., p. 3-123), it was provided that no judgment shall be entered by confession on any bond where a mortgage has or may hereafter be given for the same debt or in any action on said bond unless prior to the entry of such judgment, if the same shall be by confession, or prior to the beginning of such action, if the proceeding be by action, there shall be filed in the office of the county clerk or register of deeds in which the lands described in the mortgage given with such Ijond are situate, a written notice of the proposed judgment or action, &c. Plaintiff below sued the defendant to recover a deficiency on defendant’s bond after the foreclosure of the mortgage given to secure the same, and after judgment by default had been entered the Supreme Oourt set aside the same, and ordered the summons and complaint might stand and that the plaintiff might within twenty days file the statutory notice referred'to, mine pro tuno, and the plaintiff accordingly gave and filed the statutory notice, and defendant having failed to appear or answer within the twenty days allowed by the court, judgment by default was entered against him. Held, that the act cited expressly forbids the entry of a judgment in a ease like the present, unless a Us pendens was filed prior to the beginning of the action, and that a judgment entered without such notice first being filed is invalid.</p>

<p>1. At the trial of an action by the plaintiff-respondent to recover damages for the death of her husband, who was killed by one of the appellant’s trains at a grade crossing, the testimony on the part of the plaintiff tended to show that neither a bell was rung nor a whistle blown by the locomotive engine of defendant in approaching the crossing; that there were no gates at the crossing, and that the automatic bell which had been installed to give warning of trains approaching the crossing was out of order and did not ring; that the view of the approaching train was obstructed by' a line of trees, so that it was not visible to the occupants of an automobile within fifty feet of the crossing; that when the automobile in which the decedent and a companion was riding, was within forty feet of the crossing, the companion observed the coming of the train, called the attention "of the decedent to it and jumped from the car; that the decedent made a prompt but unsuccessful attempt to stop the automobile, which was traveling at the rate of twelve miles an hour; that the train was going at a speed of about fifty-five miles an hour, and that when decedent was apprised of the approach of the train he had about three seconds in which to prevent the collision; that decedent before reaching the point where the train first became visible, listened for it and had his car under control, and that his failure to stop the car in time to avoid the collision was due to the failure of the brake to work properly in response to his efforts to stop. Held, that from this evidence a jury might have properly found that the failure of the engineer to give either of the statutory signals was the proximate cause of bringing the decedent’s car in a position of peril, and this being so, the question of the defendant’s negligence, and whether decedent, under all the circumstances then present, exercised reasonable care to avoid the accident, were both questions for the jury, and a nonsuit was properly denied.</p> <p>2. Where the court'in the charge to the jury stated, “The duty imposed by law upon a railroad, generally speaking, is to use reasonable care,” and then proceeded to state accurately the duties which were imposed by law upon a railroad company, it does not justify the inference that the charge in effect placed an additional burden on the defendant not sanctioned by the decisions of our courts; a plain reading of the charge negativing that the negligence of the defendant was predicated upon the non-exercise by it of reasonable care, outside of the duties imposed upon it by statute.</p>

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

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

<p>A written lease which recites that the lessor “doth hereby let,” and , which contains a covenant against subletting by the lessee, that the lessee will not “let or demise, or in any manner dispose of the hereby demised premises, or any part thereof, for all or any part of the term hereby granted, to any person or persons whatever,’’ does not create an implied covenant for quiet enjoyment.</p>

<p>In error to the Supreme Court, whose opinion is reported in 86 N. J. L. 509.</p>

<p>1. The clause in the Mechanics’ Lien act providing that “if such claimant shall fail to prosecute his claim diligently within one year from the date of the issuing of such summons or such further time as the court may by order direct, such lien shall be discharged,” contemplates the reduction of the lien to judgment within that time if “diligent prosecution” will accomplish that result.</p> <p>2. The burden is on the mechanic’s lien claimant to excuse his failure to reduce his lien to judgment within the year. To permit the year to expire without either a judgment or an extension-of-time order from the court -is a most dangerous proceeding. Prima facie, such a lien should be discharged at any time after the expiration of the year upon application to the court.</p> <p>3. Where there was no judgment nor any extension-of-time order within the year, and no adequate proof of diligent prosecution within that time the lien should, upon application to the court, be discharged.</p> <p>4. A finding by the trial court, sitting without a jury, of “diligent prosecution,” expressly based upon an erroneously conceived subsequent waiver and unsupported by sufficient evidence of “diligent prosecution,” will be disregarded by this court', and a judgment will be directed to be entered discharging the lien.</p> <p>5. The “diligent prosecution” duty does not end with the year, but continues also at all times thereafter until the lien shall be reduced to judgment. A lien diligently prosecuted within the year, but not reduced to judgment nor supported by an extension-of-time court order, upon application to the court should be discharged for a failure to prosecute diligently after the expiration of the year.</p>

<p>On appeal from the Hudson Circuit Court.</p>

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

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

Kazinski, 86 N. J. L. 59. The grounds upon which the court sustained the constitutionality of that legislation are equally applicable to the act of 1895, as amended in 1898 (Comp. Stat., p. 408), and we have nothing to do but follow our own previous decision in that respect. “Upon examining the record of the Common Pleas it appears that the recorder was required to certify to that court the judgment and all the proceedings had in the case.

<p>On appeal from the Supreme Court, in which court the following per curiam was filed:</p> <p>“We are unable to sustain the plaintiff’s judgment.</p> <p>“The incubator, to1 recover part of the price of which this suit is brought, was sold to Mr. Poucher. The debt, originally, at least, was his.</p> <p>■ “Defendant, in. his own behalf, never had any business dealing with the plaintiff.</p> <p>“True, the day following Poucher’s purchase, a corporation was formed, in which defendant became interested financially, and of which he was elected president.</p> <p>“It may be assumed that the corporation assumed Mr. Poucher’s obligations, and it may be assumed that defendant borrowed money of the corporation and that at his request the payment of an installment to the plaintiff was withheld.</p> <p>“But we fail to- find in the evidence anything to charge the defendant personally with the payment of plaintiff’s debt. There is no evidence that he agreed to pay or assumed the plaintiff’s debt.</p> <p>“The judgment will be reversed and a new trial awarded.”</p>

We-see no reason why both parties should not be bound by that contract with reference to a position of the character involved in this case. It is not necessary that the resolution terminating his services should be passed upon the very day in the month that his contract expires. It may be passed in advance of that time.

The appellant obtained a rule to show cause from the court, reserving all exceptions taken at the trial, which rule was subsequently discharged. The law points reserved, and which are before us on this appeal, are objections ánd exceptions taken by the appellant to the rulings of the trial judge with respect to the admission and rejection of evidence; to the refusal to direct a verdict for the appellant, and objections relating to the judge’s charge.

<p>On appeal from the Supreme Court, whose opinion is reported in 86 N. J. L. 497.</p>

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

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

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

<p>On appeal from a judgment oí the Supreme Court, whose opinion is reported in 87 N. J. L. 69.</p>

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

<p>On appeal from the Supreme Court, whose opinion is. reported in 87 Y. J. L. 24.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 86 N. J. L. 469.</p>

The goods were attempted to be transferred to claimant by Botnick by a bill of sale dated the 7th day of July, 1914.

The defendant so testified. That the testimony might, or probably would, have led this court to a different conclusion, cannot avail the appellant. The rule is that if there is' testimony to> support the judgment, it must be affirmed. The appellant argues that the defendant’s testimony must hare related to another note.

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 26.</p>

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

, a Ford automobile belonging to Herbert I. Davis. The case comes up under the one hundred and thirty-sixth section of the Criminal Procedure act. “The first contention is that there was error in the refusal of the motion to quash. The only ground upon which the motion was based was that the indictment failed to state that the automobile was of any value.

<p>On error to the Supreme Court, whose opinion is reported in 87 N. J. L. 1.</p>

<p>On error to the Supreme Court, whose opinion is reported in 86 N. J. L. 453.</p>

On error to the Supreme Court, in which court the following per curiam was filed: “The defendant was indicted and convicted of the crime of subornation of perjury, alleged to have been committed in inducing one Maria Diano to swear falsely in a suit brought by her against the Public Service Railway Company to recover the pecuniary loss sustained by her next of kin through the death of her son Diego. “It is first contended that there was no sufficient legal proof to support…

<p>On error to the Supreme Court, whose opinion is reported in 87 N. J. L. 15.</p>

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

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

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

The judgment oE the Pleas was affirmed by «the Supreme Court, in which the following opinion was filed: ' ’ “Per-curiam.—-The trial court found that the deceased came to his death as the result of an accident arising out of arid in the course of his employment. The only question is-whether this finding is justified by the evidence, and we think that it was.

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

<p>1. Chapter 278 of Pamph. L. 1910, p. 490, entitled “An act concerning the liability of railroads for injury to persons and property caused by running cars across public streets and highways at which crossings no safety gates, bell or other device to give warning to the traveling public has been installed,” does not violate the constitutional provision which prohibits the enactment of any private, local or special laws “granting to any corporation, association or individual any exclusive privilege, immunity or franchise whatever,” but applies to companies incorporated under the General Railroad law, or under special charters having similar characteristics, without regard to the nature of the motive power used by them, as distinguished from street railway companies operating trolley cars over streets and highways.</p> <p>2. The power of the Supreme and Circuit Courts to consider and ascertain, on a rule to show.cause, Whether the finding of a jury - as to the non-negligence of a plaintiff is contrary to the great preponderance of the evidence, is in nowise abridged or impaired by the legislative enactment above referred to.</p> <p>3. The failure of a person, about to cross the track of a railroad, to observe the approach of a train which is in plain sight, there being nothing to distract his attention from it, is, ordinarily, a failure to use that reasonable care which the law requires of him.</p>

<p>Prior statements made by a witness contradictory of her testimony at the trial are only admissible for the purpose of discrediting or neutralizing the effect of the testimony given, and are not admissible for the purpose of proving the facts set out in such . statements.,</p>

<p>A person upon whom an assault is made, so violent in its character as to endanger his life, or threaten him with serious bodily injury, is not justified or excusable in standing his ground and killing his assailant if he can avoid the impending danger by retreating.</p>

<p>1. While a motion to quash an indictment is addressed to the discretion oí the court, as a general rule, and is not reviewable on error, it would seem that this rule is not applied when the motion is based on the failure of the indictment to charge a crime, and the alleged error appears on the face of the record.</p> <p>2. An indictment, found under the one hundred and nineteenth section of the Crimes act (which makes it a high misdemeanor for any person maliciously or without lawful justification, with intent to cause or procure the miscarriage of a woman pregnant with child, to administer to her, prescribe for her, or advise or 'direct her to take or swallow any poison, drug or medicine, or noxious thing), specified the particular drugs advised to be taken. Held, that the absence or presence of an averment that the drugs were of a noxious nature was immaterial.</p> <p>3. The rule which requires the rejection of proof of independent crimes committed by a defendant, entirely unconnected with that for which he is being tried, lias no application where the particular act sought to be proved is one of a series of acts done in aid of the purpose attempted to be accomplished by the commission of the specific offence charged against the defendant.</p> <p><1. The question whether a witness has the necessary special experience to qualify him to give opinion evidence is one of fact for the trial court to determine, and its decision will not be interfered with if tlic testimony fairly supports it, even under the broad power of review given by the one hundred and thirty-sixth section of the Criminal Procedure act.</p>

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

<p>1. Whether or not the entire record of the proceedings had at the trial of a criminal case shall be returned with the writ of error is a matter which, by the one hundred and thirty-sixth section of the Criminal Procedure act, is left entirely to the option of the plaintiff in error, and cannot be determined either by the court out of which the writ issues or the court to which it is directed.</p> <p>2. The denial of the motion to quash an indictment is not reviewable under the one hundred and thirty-sixth section of the Criminal Procedure act, that section having application only to proceedings had at the trial and the motion to quash being no part thereof.</p> <p>3. The question whether or not an indictment charges a criminal offence is one of law to be determined by the court, and cannot be settled by the verdict of a jury which only decides the guilt or innocence of the defendant of the charge laid against him and not the criminality vel non of that charge.</p> <p>4. The proper methods of attacking the validity of an indictment, on the ground of fundamental defects existing therein, are (1) by demurrer thereto; (2) by motion to quash; (3) by motion in arrest of judgment, and, (4) by writ of error, where the defect is apparent on the face of the record.</p>

<p>On return of alternative writ of mandamus.</p>

<p>Prosecutor was convicted in the Recorder’s Court of Atlantic City for live violations of an ordinance entitled “An ordinance for the suppression of vice and immorality,” was fined $200- on each conviction, and the convictions and the ordinance were brought up on certiorari for review. Held, (1) that as the convictions were for operating separate amusement devices, for which a separate fee was charged, on Sunday, contrary to the provisions of the ordinance, which specifically prohibits certain enumerated things, the separate convictions for each offence was proper; (2) that as the exception of musical concerts and moving picture shows was made by an amendment to the original ordinance, such exception, if bad, did not vitiate the original ordinance; (3) that the penalty provided by the ordinance was within the powers conferred upon the municipal authorities by Pamph. L. 1902, p. 284, | 14 et seq.</p>

<p>An application for a writ of certiorari to review the validity of an assessment for benefits claimed to be excessive and improperly apportioned denied where a summary method to review the same by an appeal to the Circuit Court has been provided by the legislature.</p>

<p>1. A writ of certiorari will not lie to review or correct erroneous opinions, however hurtful they may be to individuals concerning whom they are expressed. An order, judgment or determination affecting the rights of the prosecutor is necessary as a foundation for the use of the writ.</p> <p>2. The writ of oertiorari cannot be used to draw judicial opinions in advance or to affect adjudications of subordinate tribunals.</p> <p>3. A resolution of the civil service commission ratifying the action of its president in refusing to certify the payroll of five officers of the fire department of the city of Newark does not affect the prosecutors, who are the city and its board of fire commissioners, and one of the five officers, the latter of whom does not challenge, but rather seeks approval of the action of the commission.</p>

<p>Plaintiff purchased real estate of the defendant, and the latter contracted to hold himself “responsible for any structural defect that may be manifest within a reasonable time after the signing of this agreement,” and plaintiff sued in the District Court for damages for breach of the guaranty, enumerating in his state of demand the spreading of a beam, falling of the floor in the bathroom, &e. At the trial the plaintiff was nonsuited on his state of demand, on the ground that his action had been brought more than six years from the date of the contract. Held, that the contract contemplated that at a future period something might make itself manifest that was not so at the time of signing the agreement, and it was against this that the guaranty was made, and that therefore the question at what time the alleged defect became manifest was a matter of fact that required testimony, and it was error to nonsuit on the pleadings.</p>

<p>Plaintiff was riding a bicycle on a public highway, proceeding on the right-hand side of the road, and was followed by an automobile driven by defendant. When plaintiff reached an intersecting street he turned to the left to go into the cross street, without giving any signal, and in the consequent collision the hind wheel of the bicycle struck the hind wheel of the automobile. The automobile was running at a fair rate of speed and would have passed to the left of the bicycle had the latter held its course. In this state of the proofs, the trial court declined to charge the jury that “the defendant was observing the law when he passed to the left even if it would take him across the centre line of the road to the left side.” Held, that the request contained a correct statement of the law of the road, to be applied to the facts of the case, and that the denial of the request was injurious error.</p>

<p>1. Plaintiff in error was convicted upon an indictment for malfeasance in office as prosecutor of the pleas, the malfeasance charged being that as such officer, knowing of violations of the law against gambling, he took money not to prosecute the offenders. The conviction is attacked on the ground that the indictment charged the crime of “compounding” a misdemeanor, and that the corrupt agreement that is the essence of that common law crime was not proved. An examination of the indictment discloses that the word “compound,” which was used as synonymous with suppress, was not used in charging the offence, and, therefore, that the duty of proving that the crime of compounding had been committed by the defendant was not imposed upon the state.</p> <p>2. A motion made in arrest of judgment, based upon the allegation that the defendant “could not legally be indicted and tried until there had been impeachment proceedings” was rightly denied, for, assuming that the constitution forbids sentence of imprisonment before impeachment, there was nothing to prevent an indictment and trial, and the motion went no further.</p> <p>3. An error in imposing sentence is reviewablo under section 144 of the Criminal Procedure act (Gomp. St at., p. 1867), which provides that the reviewing court may render such judgment as should have been rendered, or remand the case for correction by the court below.</p>

<p>1. Where there is a conflict in the evidence as to where goods were to be delivered by vendor to vendee, the question must be submitted to the jury in order to determine whether title has passed to the vendee.</p> <p>2. The time required by a common carrier other than the defendant to transport goods between two points is evidence of the time that ought to be taken by the defendant.</p> <p>•1. A jury may infer without further proof that eight days is an unreasonable time for the transportation, of goods by rail a distance of less than one hundred miles.</p>

<p>On appeal from the Waxren Pleas.</p>

<p>On certiorari.</p>

<p>A jury found that cider sold by defendant was intoxicating, upon evidence justifying such an inference. The defendant did not raise the question whether such a sale came within the language of section 66 of the Crimes act. Held, that the conviction must be affirmed.</p>

<p>1. The neglect of counsel regularly retained to defend one charged with crime, to attend the trial, does not enlarge the rights of the defendant and enable him to demand an extension of time to secure new counsel.</p> <p>2. It is improper to allow a plea of not guilty to an indictment to be withdrawn after the jury has been sworn and a witness has been partially examined.</p> <p>3. The limitation of defendant’s cross-examination on the trial of an indictment is harmless where the matter sought to be proved thereby is an undisputed fact and a part of the state’s case.</p> <p>4. Books of a trust company conceded to be inaccurate may nevertheless be used to refresh the recollection of one familiar with them. The value of the testimony is for the jury.</p> <p>5. On the trial of an indictment for conspiracy, where the crucial points were whether the defendant had conspired with the treasurer of a trust company to defraud the company by having checks certified and cashed which overdrew defendant’s account, it is proper for the trial judge to comment on the defendant’s failure to testify.</p>

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

<p>It was not negligence for a board of chosen freeholders, while repairing a culvert across a public highway, to guard the new work by placing planks across the highway on each side of the culvert. On the contrary, the placing of such temporary barriers was a duty which the board owed to the traveling public. Freeholders v. Hough, 55 F. J. L. 628, followed.</p>

<p>On certiorari, &c.</p>

<p>1. The legislature had power to impose a tax upon the transfer, by will or intestate law, of property within the state when the decedent was a non-resident of the state at the time of his death, as was done by section 1 of the Transfer-Inheritance Tax act of 1909. Pamph. L., p. 325.</p> <p>2. Bonds, and mortgages securing them upon real estate located in the State of New Jersey, and which bonds and mortgages were actually physically present within the State of New Jersey at the time of the owner’s death, are property within the State of New Jersey within the meaning of paragraph 2 of section 1 of the Transfer-Inheritance Tax act of 1909 {Pamph. L., p. 325), and are taxable thereunder even though they have been taxed under a like statute in New York, where the owner resided at the time of his death.</p> <p>3. Where the legislature enacts a provision taken from a statute of another state, in which the language of the act has received a settled construction, it is presumed to have intended that such provision should be understood and applied in accordance with that construction.</p> <p>4. Bonds, and mortgages securing them upon real estate loealed in the State of New York, and which bonds and mortgages were actually physically present within the State of New Jersey at the time of the owner’s death, are property within the State of New Jersey within the meaning of paragraph 2 of section 1 of the Transfer-Inheritance Tax act of 1909 (Pamph. L., p. 325), and are taxable thereunder even though they have been taxed under a like statute in New York, where the owner resided at the time of his death.</p>

<p>In proceedings taken under Pamph. L. 1900, eh. 58, p. 91, as amended by Pamph. L. 1902, eh. 25, p. 47, a resolution awarding a contract for the building and improvement of a county road must be adopted by the affirmative vote of at least three-fourths of all the members of the board of chosen freeholders, and in default whereof will be set aside, even though a prior resolution declaring that the improvement was desirable and approving the plans and specifications has received such affirmative three-fourths vote.</p>

<p>1. The acceptance by a street railway company, incorporated under the laws of this state, of an ordinance of a municipality establishing the route of its road and the location of its tracks, imposes upon the company the duty to construct, maintain and operate such railway in accordance with the terms of the ordinance, and in compliance with statutes which confer upon the company such rights, privileges and franchises. An implied condition attaches itself to the grant of the franchise that it is held for public benefit, and the duty of the company is to exercise it for such purpose, and, the grant being exclusive, the company must be held to a good faith in the performance of its duty, which must be fulfilled until lawfully surrendered, suspended or abandoned by the legally expressed consent of the state.</p> <p>2. Mandamus will lie to compel a street railway company to construct, maintain and operate its road for the benefit of the public, if a legal duty to do so is imposed by law and there is a clear violation of such duty, unless performance is for some reason impossible.</p> <p>3. A street railway company, incorporated under the laws of this state, which takes over by lease the rights, privileges and franchises of another such street railway company, by that act assumes the correlative duties and obligations of the franchise, and upon it rests the same burden and duty to construct, maintain and operate such street railway under the statutes and the ordinances of the municipality as were imposed upon the original company.</p> <p>4. A street railway company, incorporated under the laws of this state, that accepts in writing, within the time and in the manner required by the statute, an ordinance of a municipality establishing tlie route of its road and the location of its tracks, and enters upon the construction of its road, is under a duty to complete and operate such road, even though it has failed to file with the municipal clerk a contract, covenanting “to abide by and perform all the matters and things in the ordinance contained,” as required by the terms of such ordinance; and at the instance of the municipality a mandamus will issue to compel the performance of such duty.</p> <p>5. In the absence of any tender of a surrender of the franchise, the fact that the located route of a street railway in a highway is laid across the tracks of a steam railroad which cross such highway, and that the right to cross such tracks at grade has not been obtained, furnishes no excuse why the street railway should not be completed and operated upon its route through the highways of the municipality lying on either side of such steam railroad.</p> <p>6. When a street railway company, incorporated under the laws of this state, has failed to complete the construction of its road within the time limited by the ordinance of the municipality establishing its route and the location of its tracks, which it duly accepted, the company is not excused from performance by the fact that the municipality has failed to act upon a proposed ordinance submitted by the company indefinitely extending the time for completion, when the municipality has always insisted and still insists upon performance.</p> <p>7. The fact that a street railway company, incorporated under the laws of this state, stopped work on its road for four weeks consecutively after being notified by the municipality to proceed, furnishes no excuse why the road should not be completed, even though the ordinance of the municipality establishing its route and the location of its tracks provides thaj; if the company stops work before completion for four weeks consecutively after notice to proceed has been given, then the permission to lay .the tracks “shall be null and void,” when it appears that the municipality has always insisted and still insists upon the completion of the road.</p>

<p>1. The Pension act of March 30th, 1911 (Pamph. L., p. 104), is retrospective as well as prospective.</p> <p>2. The Long Branch commission was created by virtue of Pamph. L. 1867, p. 976. The relator was appointed a member of its police force under an ordinance adopted pursuant to powers conferred by Pamph. L. 1875, p. 477, and was thereafter reappointed from year to year. The commission territory was incorporated as the city of Long Branch by Pamph. L. 1904, p. 376, and the city adopted the General act of 1903 (Pamph. L., p. 292), as amended by Pamph. L. 1904, p. 346, and elected relator a member of the policy force of the new city. On November 26th, 1913, the city adopted by ordinance the Pension act (Pamph. L. 1911, p. 104), as amended in 1912. Pamplp. L., p. 669. The relator has honorably served on the police force of the municipality formerly called the Long Branch commission and now the city of Long Branch- continuously for a period of twenty years and has attained the age of sixty years. Held, that relator is within section 1 of the Pension law of 1911 {Pamph. L., p. 104) and by its terms is entitled to be retired upon half pay, although the present city does not include all the territory of the old Long Branch commission and does embrace some outside territory.</p>

<p>'On appeal from the Hudson Common Pleas.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

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

<p>Section 2 of the supplement of 1855 to the Abatement act (Pamph. L., p. 340), now section 5 of the “Act concerning executors, and the administration of intestates’ estates” (Comp. Stat., p. 2260, § 5), operated to create a survival of rights of action for tortious personal injury causing death, created by the act of 1848 (Comp. Stat., p. 1907), as against the personal representatives of the deceased tort-feasor, provided suit be brought within the statutory period of twelve calendar months (since enlarged to twenty-four calendar months) from the death of the injured party.</p>

<p>By the grant dated February 13th, 1907, of the riparian commission to Atlantic City, pursuant to chapter 202 of the laws of 3903 (Pamph. L., p. 387; Comp. Stat., p. 4397), the lands granted were reserved for park purposes under the express requirement of the statute and the terms of the grant, and such reservation was superior to and exclusive of any easement of highway claimed to exist by reason of such lands or part thereof lying within the produced lines of a public street. Hoboken v. Pennsylvania Railroad Co., 124 U. S. 656, followed.</p>

<p>The secretary to the governor of this state held to be one of the state officials that the legislature can constitutionally require to be carried free upon the railroads of this state, according to the test laid down in Delaware, Lackawanna and Western Railroad v. Public Utilities Commission, 85 N. J. L. 28.</p>

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

<p>1. The supplement to the act respecting executions (Pamph. L. 1915, p. 470), providing for the issuance of an execution against wages, debts, earnings, &c., of a judgment debtor, when a judgment has been secured against him and where an execution issued upon said judgment has been returned wholly or partly unsatisfied, is not limited to judgments recovered prior to its enactment.</p> <p>2. The plaintiff who has obtained an order to examine a judgment debtor under supplementary proceedings may abandon those pro-' ceedings by having the order revoked, and may then obtain a new order under the act of 1915. Pamph. L., p. 470.</p>

<p>On appeal from conviction of contempt.</p>

<p>Where a railroad company has established safety gates at a street crossing, and after a train has passed the gates are raised, and a traveler on the street undertakes to cross the railroad and is struck and injured by a train coming from the opposite direction, he is not guilty of contributory negligence because he did not stop, look and listen. Such a duty is abolished by statute. Pamph. P. 1909, p. 137.</p>

<p>1. When a trustee in bankruptcy rejects any part of the bankrupt’s assets because their acceptance would be a burden to the estate, such action is final and the title thereto remains in the bankrupt unless the federal court shall compel another course, and the trustee, having rejected any part of the bankrupt’s estate, is divested of any sufficient title upon which to rest an action in trover for the conversion of such assets by the bankrupt or his assigns.</p> <p>2. AVhere a trustee in bankruptcy, without asserting his claim thereto within a reasonable time, having knowledge of all the circumstances, allows third parties, in the prosecution of their legal rights, to acquire an interest in any part of the unclaimed assets of the bankrupt, he may be held to have waived his claim thereto.</p>

<p>On error from the Mercer County Court of Quarter Sessions.</p>

<p>On certiorari.</p>

<p>1. A railroad company is under the obligation to use reasonable care to construct and maintain in good repair crossings and grades over highways.</p> <p>2. On appeal from a judgment of the District Court rendered by the judge, sitting without a jury, where opposite conclusions might have been drawn from the testimony, that conclusion which is essential to support the judgment will be taken as found.</p> <p>3. A determination of a question of fact by the judge of the District Court, sitting without a jury, is final between the parties when there is legal evidence to support it.</p>

<p>Plaintiff paid defendant for a lot, under an oral agreement that the street abutting the lot was sewered, and the trial court found as a fact that there Kwas n0 sewer in the street and that the plaintiff vacated the premises within a reasonable time. Held, (1) that the statute of frauds did not apply; (2) nor the doctrine of caveat emptor; (3) that the plaintiff had a legal right to rescind and sue for the purchase-price.</p>

<p>1. When a license to sell liquor has lapsed, and the place has remained closed for three years, it lost its character of an old place, and became a “new place” within the meaning of section 11 of the act of 1889, as amended by Pamph. L. 1906, p. 208. Comp. Stat., p. 2908.</p> <p>2. It being conceded that the premises licensed are within the prohibited distance of two hundred feet from a public school, the transfer of the license was illegal.</p>

<p>1. The word “plant” used in connection with the words “ways works, machinery or plant” in chapter 352 of the laws of 1910 of the State of New York, known as the labor laws, has been construed by the courts of that state to include everything other than supplies and stock in trade necessary and requisite to the carrying on of a business, and a wrench furnished by an employer to an employe to be used by him in his work for the employer is a part of the employer’s plant in performing such work.</p> <p>2. Where plaintiff was injured while standing on a narrow beam in the prosecution of work for his employer, while necessarily using a wrench which gave way because of its defective and worn condition, causing the plaintiff to lose his footing and fall, the plaintiff was not debarred from recovery on the ground of assumption of risk—(1) because the risk was not inherent from the nature of the business, and (2) because plaintiff notified a person superior to himself and under whom he worked of the defect in the wrench within a reasonable time after he discovered its defective condition.</p> <p>3. Tinder the New York Labor law before referred to, contributory negligence of a plaintiff must bn pleaded and proved by a defendant, and the defendant in this suit pleaded that plaintiff did negligently stand upon a beam or beams of a width of not more than one and one-quarter inches, and performed his work in a position which he knew to be dangerous. The evidence showed that the plaintiff w’as necessarily standing on the place provided for him by the defendant, and from aught that appeared it was a safe place for him to stand, and whether he used that degree of care that an ordinarily cautious man would have used under similar circumstances was a question for the jury.</p> <p>4. The fact that the contract of hiring was made in New York and the work performed and the plaintiff injured in that state, and that the defendant, though a foreign corporation, was licensed to do business in this state, of which plaintiff was also a resident, did not limit the plaintiff to seek compensation for his injuries under the Workmen’s Compensation act of this state.</p> <p>5. Plaintiff was thirty-seven years of age when injured and his earning capacity was $6 a day. The injury received was extremely painful and very serious; he had sustained a loss in wages, medical attendance, &c., of $3,000 at the time of the trial, and was not fully recovered, and he would require further medical treatment of a painful character for a year and possibly for several years. Held, that a verdict of $7,500 was not excessive.</p>

<p>1. A general law, as distinguished from a special or local law within the meaning of the constitution, is a law that embraces a class of subjects or places, and does not omit any subject or place naturally belonging to such a class. The test of the generality of a law adopted is that it shall embrace all and exclude none whose conditions and wants render such legislation equally appropriate to them as a class.</p> <p>2. The principle by which general laws . are distinguished from those which are either local or special applies to all legislation regulating the internal affairs of municipalities. Where the classification appears to rest upon substantial grounds, the line which separates the places included from those excluded is a matter of judgment, and the act of the legislature will prevail unless it plainly appears that such classification is in violation of the constitutional prohibition.</p> <p>3. Chapter 379 of the laws of 1911 (Pamph. L., p. 783), entitled “An act relating to certain officers and employes of second-class cities of this state now having or which may. hereafter have a population of seventy thousand inhabitants and not exceeding ninety thousand inhabitants, abolishing their term of office and prohibiting their removal except for cause,” puts all officers and employes, with the exception of those designated by section 3, of second-class cities between seventy thousand and ninety thousand inhabitants which have not adopted the Civil Service act of 1908, on a civil service basis, and the effect of this act is to leave cities having a population of seventy thousand inhabitants and no more than ninety thousand inhabitants that have adopted civil service under the Civil Service law, and puts cities of the same population that have not adopted the Civil Service law in a class by themselves, and is an obviously arbitrary classification, there being no reasonable basis for such a classification</p> <p>4. The prosecutor was appointed health warden of the city of Hoboken by the board of health of that city, and continued to hold said office until the adoption by the city of the provisions of the Walsh act, when the city commissioners passed an omnibus resolution terminating the terms of office of all such officials and employes, including that of the prosecutor, and he claims that by virtue of the provisions of the act of 1911 (Pamph. L., p. 783), he could only be removed for just cause after a public hearing , upon charges preferred in conformity with the requirements of that act. Held, that as the act of 1911 (Pamph. L., p. 783) is clearly unconstitutional, that the prosecutor was not protected in his office by virtue thereof, and that under the provisions of the Walsh act, his term of office was terminated upon the organization of the board of commissioners.</p>

<p>1. The act of 1912 (Pamph. L., p. 367), providing for a tax on the transfer of property of resident and non-resident decedents by devise, bequest, &c., in certain cases, exempting property passing to churches, hospitals and orphan asylums, public libraries, bible and tract societies, ■ religious, benevolent and charitable institutions and organizations, did not exempt a bequest of a charitable institution located outside of the State of New Jersey.</p> <p>2. A bequest to the “United Hebrew Charities,” a corporation of the State of New York, while obviously a bequest to a charitable institution, did not come within the exemption above recited.</p>

<p>On appeal front the Essex County Circuit Court.</p>

<p>Where possession of goods was rightfully acquired, a demand for the possession is necessary to maintain an action of replevin.</p>

<p>1. A mausoleum containing four hundred crypts, to be used as a place of sepulture for the dead, built by an independent corporation on land in the Laurel Grove Cemetery, at Totowa, is not exempt from taxation. It is not a building within the meaning of the Tax act exempting “buildings for cemetery use erected thereon.”</p> <p>2. Words, in a statute, descriptive of material things, should be construed in reference to the history of the times when the statute was passed, and applied to things then known to be in existence.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. The provisions of the act concerning public utilities (Pamph. L. 1911, p. 374, § 18), (o) that no public utility shall make any unjust or unreasonable, unjustly discriminatory or unduly preferential rate, or (d) give, directly or indirectly, any undue or unreasonable preference or advantage to any person, corporation or locality, is prospective and not retroactive.</p> <p>2. Statutes are to be given prospective and not retroactive effect unless their language makes them retroactive and admits of no other construction.</p> <p>3. The agreement made in 1898 between the city of Plainfield and the IJlainfield Gas and Electric Light Company, whereby the latter, in consideration of the passage of a certain ordinance by the former, designating certain streets and highways in that municipality through and upon which posts or poles of the lighting company might be placed and maintained, &e., contracted that it, its successors and assigns, would at all times light by electricity free of charge the common council chamber and certain buildings and offices occupied for city purposes—is enforceable against the Pub-lie Service Electric Company, which subsequently took over the rights and privileges and assumed the duties and obligations of the Plainfield Gas and Electric Light. Company, notwithstanding the provisions of Pampli. L. 1911, p. 374, § 18 (a) and (d).</p> <p>4. The language of Pampli. L. 1911, p. 374, § 17, (a) which provides that the board of public utility commissioners shall have power to require every public utility to comply with the laws of this state and any municipal ordinance relating thereto and to conform to the duties imposed, upon it thereby or by the provisions of its charter, does not confer upon the board a power to decree the specific performance of a contract, which is an equitable power exclusively inhering in the court of chancery and w'hich is part of the jurisdiction confirmed and guaranteed to that court by the constitution of 1844; but, even if the act in express terms had bestow'ed that power upon the board, it would have been an unlawful invasion of the court’s exclusive prerogative, and therefore unconstitutional.</p> <p>5. The legislature cannot impair the jurisdiction of a constitutional court by preventing its exercise or creating a co-ordinate authority.</p> <p>6. A question not presented and argued in an appellate court will not be considered by such tribunal.</p>

<p>On error to the Supreme Court, whose opinion is reported in 86 N. J. L. 410.</p>

<p>On appeal from a judgment of the Supreme Court.</p>

<p>On appeal from a judgment of the Supreme Court.</p>

<p>On appeal from a judgment of the Supreme Court.</p>

<p>1. The mere existence of a right to recover nominal damages on a covenant against encumbrances will not prevent a recovery of substantial damages on the covenant of warranty where there is a subsequent eviction.</p> <p>2. An appellate court will not review a question that has not been legally raised in the lower court.</p>

<p>1. In passing upon motions to nonsuit and for the direction of a verdict, the court cannot weigh the evidence, but must take as true all evidence which supports the view of the party against whom the motions are made, and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor.</p> <p>2. The proprietor of a theatre conducted for reward or profit, to which the general public are invited to attend performances, must use ordinary care to make the premises as reasonably safe as is consistent with the practical operation of the theatre, and if he fails in this duty he may be held liable for personal injuries occasioned thereby; and this rule applies to the proprietor of a moving picture show.</p> <p>3. 'When the evidence tended to show that the proprietor of a moving picture theatre assumed to provide lights for the stairway leading to the balcony, and that he failed to provide such light, and that such failure resulted in the fall and injury of the plaintiff, one of his patrons, the question of the proprietor’s negligence was for the jury and not for the court.</p> <p>4. It is not contributory negligence as a matter of law for a patron of a moving picture show to attempt to leave before the exhibition is finished.</p> <p>5. It is not contributory negligence as a matter of law for a patron of a moving picture show to descend a dark and unlighted stairway leading from the balcony, it appearing that such stairway was the only means of exit, that there was no usher there to whom she could have applied to make a light, that she had used the stairway before, when it was lighted, and thought she could safely descend, and that she took hold of the hand-rail along the side of' the stairway and proceeded slowly and carefully.</p> <p>6. The question being whether a patron was guilty of contributory negligence in descending an unlighted stairway of a moving picture theatre, it is competent for such patron to show that at the time there was no usher present to whom she could apply to make a light.</p>

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

<p>On appeal from the Hudson County Circuit Court.</p>

<p>1. Where the contract of a public corporation is set aside for irregularity, there may be recovery as on a quantum meruit against such corporation for reasonable cost and expense incurred in the prosecution of the contract before legal attack, irrespective of any benefit derived therefrom.</p> <p>2. Wentink v. Freeholders, 66 N. J. L. 65, followed and affirmed in part.</p>

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

<p>1. The facts of this case held to bring it within the rule of Monmouth Park Association v. Wallis Iron Works, 55 N. J. L. 132, that a court of law should read a written contract according to the obvious intention of the parties, in spite of clerical errors or omissions which can be corrected by perusing the whole instrument.</p> <p>2. The right of a municipality which has let a working contract to a contractor, and has been compelled by his default in performance to terminate his employment by virtue of a provision in the contract and complete the work itself, to hold the contractor’s surety for extra expense occasioned thereby, is not lost by the inaccurate use of the word “rescind” in the resolution terminating the employment, where it appears that the whole course of proceeding was aimed at securing, not the technical rescission of the contract, but its actual performance.</p> <p>3. Evidence that a person having business with a corporation called at its principal office, and, stating his business, was shown to the “contract department” and introduced to Mr. M. as the vice president, apparently in recognized charge of that department, will support the inference of his agency for the corporation as to matters properly within the scope of the business apparently entrusted to him, and justify the admission of his declarations in the course of that business.</p>

<p>1. An intervening cause is an act of an independent agency which destroys the causal connection between the negligent act of the defendant and the wrongful injury, the independent act being the immediate cause, in which case damages are not recoverable because the original wrongful act is not the proximate cause.</p> <p>2. The defendant negligently omitted to extinguish a fire he had started in a public street, leaving it burning and unguarded; a child, five years of age, playing in the street, put on the fire additional leaves, and in doing this his clothing caught fire and he was thereby injured. Held, that the act of the child was not an intervening cause which destroyed the causal connection between the defendant’s act and the injury, and that defendant’s negligent act was the proximate cause.</p>

<p>The plaintiff entered into an oral contract with the defendant, through its agent, to insure the plaintiff against accidents happening to his employes, and to the public, arising out of liis business as a contractor. The employes’ policy was issued and received by the plaintiff, but the public policy was delayed in issuance and transmission. Before its delivery to the plaintiff, and while it was in the course of transmission, an accident happened to two of the public which subjected plaintiff to judgments therefor. Helé, upon the authority of Hallock v. Commercial Insurance Co., 26 N. J. L. 268, affirmed in this court in 27 Id. 645, that the acceptance of the proposal to insure for the premium offered was the completion of the negotiations, and that a completed contract was then and there perfected, upon which the defendant became liable.</p>

<p>The defendant directed1 his son to take defendant’s automobile and visit a locality where defendant was engaged in erecting a building, for the purpose of seeing that the lamps indicating the existence of street obstructions were lighted. The son, instead of performing his errand and returning, delayed for some hours in the neighborhood with friends, and thereafter undertook to carry two of his friends in the automobile to one of the railroad depots in the city, which was located in a direction nearly opposite to the route which he might have taken upon a direct return to the father’s home. While making this trip to the railroad depot, the automobile collided with the plaintiff, who brought suit against defendant for the damages resulting therefrom. The trial developed the fact that as one of the invitees was about to enter the car, the son of defendant made some statement as to their destination. This testimony the court overruled and excluded as hearsay. Held, that the conversation so excluded was material as part of the res gestw, which presents an exception to the general application of the hearsay rule.</p>

<p>On appeal from the Hudson Circuit Court.</p>

<p>1. Receivers oí a building and loan association were appointed May 25th, 1907, the association having voted to liquidate one month before; the receivers brought suit on defendant’s loan note, and he claimed the right to offset the full withdrawal value of his shares, he having given notice of withdrawal on January 29th, 1907. Held, that the offset was properly overruled, notwithstanding section 39 of Pamph. L. 1903, permitted a shareholder giving notice of withdrawal to recover the withdrawal value if not paid within six months from the notice.</p> <p>2. The right given to a stockholder in a building and loan association to recover the withdrawal value of his shares, if not paid in six months from date of notice, cannot be recovered in an action, or allowed by way of set-off, until the six months have elapsed.</p> <p>3. The right of withdrawal of a stockholder in a building and loan association, given by Pamph. L. 1903, § 39, must be determined as of the time when the stockholders resolved to dissolve, since the statute contemplates that the withdrawal shall be from a going concern, and not from a defunct one.</p>

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

<p>1. Under the provisions of the Civil Service law (Comp. Stat., p. 3975) the officials of the county jail which adopt its provisions are protected from removal without charges preferred against them, and a hearing had thereon.</p> <p>Note.—This opinion was rendered at the March term, 1915, and should have been published with the opinions for that term, but was overlooked by the reporter.—Rei>.</p> <p>2. Relator was appointed jailer of the Mercer county jail by the board of chosen freeholders, under the provisions of section 2 of the act of 1887 (Pamph. L., p. 42) authorizing the appointment of a “kefeper or warden” of the county jail, and continued to perform the duties of warden until 1910, when he was elected custodian of the court house, combining the duties of that office with that of- jailer. In December, 1911, relator was notified by the sheriff of the appointment of respondent as warden, and thereupon surrendered that office, retaining the position of custodian , at the same salary until the position was abolished, and brought no action to contest his removal as jailer until the year 1913. Held, that the relator’s continuance in the office of custodian, after the two offices were made distinct, was a relinquishment on his part of the office of jailer.</p>

<p>A chattel mortgage was executed, good as between the parties thereto, but void as to existing creditors; the mortgage was foreclosed and the goods purchased at the sale by the mortgagee. Subsequently a creditor of the mortgagor, whose debt was existent at the time of the execution of the chattel mortgage, reduced its debt to judgment, levied upon the same goods covered by the mortgage, and at an execution sale purchased them. Meld, that the chattel mortgage sale did not vest a valid title to the goods as against the purchaser under the execution, and that the latter could maintain an action of replevin therefor.</p>

<p>Under the Workmen’s Compensation act of 1911—Pampli. L., p. 139, IT 12 (1)—compensation at the rate of twenty-five per centum of the average weekly wages may be awarded to a. father, who is an actual dependent upon a deceased son, the son, a minor, leaving' him surviving a father and mother, five minor brothers and four sisters.</p>

<p>1. The wife of a plaintiff, in an action against the administratrix of an estate, is a competent witness to testify to transactions with or statements by 1 lie intestate.</p> <p>2. The husband alone is the proper plaintiff to recover for services rendered, such as nursing and household services, to the intestate, in an action, when the engagements for such services were made with the wife of the plaintiff and the services performed by her. The Married Women’s act, (3 Comp. Stmt., p. 3225, § 4), is not applicable to such a case.</p>

<p>In an action of deceit brought by plaintiff because of certain material false representations made by defendant in selling to plaintiff shares of stock in a corporation, which representations were intended to be, and were, the inducing causes of the purchase, the trial court directed a nonsuit upon the grounds that the plaintiff had not shown the value of the stock, and hence had proved no damage. It appeared from the testimony that defendant had procured grants of rights of way and terminals for an oil pipe line, and contracts for oil when produced, all of which were conditioned upon the construction of the pipe line within a certain period; that the corporation was then formed, all of its capital stock issued to defendant in consideration of the transfer of the rights-of-way grants and oil contracts; that the corporation never had any other assets; that the construction of the pipe line was never commenced, and that the charter rights of the corporation had probably lapsed. Held, that the plaintiff was entitled to have the jury pass upon this testimony as establishing the worthlessness of the stock, and that the direction of a nonsuit was erroneous.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 356.</p>

The case was tried in the Atlantic City District Court by the judge without a jury. To'support the plaintiff’s case, a written lease was produced and admitted in evidence between Louis Lott, landlord, the defendant in this action, and the Acme Tea Company. This lease is dated February 11th, 1910.

Justice Garrison: “We think that this writ should be dismissed, for the reason that no judgment we could render would possess any remedial efficacy to the prosecutor. The prosecutor and the defendant have for a long time worked under a contract, the terms of which are violated by the municipal action declared in the resolution that is brought up by this writ.

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

filed: “This case was tried in the Second District Court of Jersey City before Judge Blair on October 9th, 1914, and a judgment was given for the plaintiff and against the defendants for the sum of $250. The suit was based upon a promissory note made by the defendants to the plaintiff and payable one month after date for $250. There was a notice of recoupment for damages for $3,000.

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

The judgment in that action was, that the title to the goods and chattels was in the plaintiff and possession was awarded to it. It was further adjudged that plaintiff recover six cents as the value of the property, and the further sum of $137.39 as damages for the unlawful detention.

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Hudson Circuit Court.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

,On appeal from the Supreme Court, in which the following per curium was filed: “The appeal is from a judgment entered in the Essex Circuit Court for $9,600.50 in favor of the plaintiff, and presents for consideration portions of the court’s charge, as well as refusals to charge, and the admission of certain testimony considered by defendant as objectionable.

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

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 388.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

In the state of the case it is stipulated that if upon the facts agreed to, the court shall be of opinion that the defendant, as executrix of Benajah I).

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 449.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

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

<p>On appeal from the Supremo Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 370.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 455.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 370.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 382.</p>

filed: “The borough built a sewer and paid for it by the issue of bonds. It, by resolution, fixed the rates to he charged for use of the sewer. The defendant connected her house with the sewer, and having refused to pay rent, suit was brought to recover for three years, and the borough had judgment. “The defendant appeals, and argues, first, that the legislature has not given to the borough the power to fix rates or to collect them. There is nothing in this point.

<p>On appeal from a judgment of the Supreme Court.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

<p>On appeal from the Supreme Court, whose opinion is reported ante p. 456.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 399.</p>

On error to the Supreme Court, in which court the following per curiam was filed: “The defendant was convicted of the crime of robbery from the person, the victim being one George Winters. This case comes up under the one hundred and thirty-sixth section of the Criminal Procedure act. But two grounds of reversal are relied upon by counsel for the plaintiff in error. “He first contends that illegal evidence was admitted.

<p>On error to the Supreme. Court, whose opinion is reported in 86 N. J. L. 483.</p>

<p>On appeal from the Middlesex Circuit Court.</p>