Volume 89 — New Jersey Law Reports

<p>On plaintiffs rule to sliow canse.</p>

<p>When, under the terms of the act commonly known as the Small Board of Freeholders act (Pamph. L. 1912, p. 619), a county adopts the provisions of that statute, all offices previously filled by former boards of freeholders become vacant on the first Monday of January next after the election of the “small board,” irrespective of the terms of such offices or under what statutes they have been created.</p>

<p>1. By the Crimes act of this state it is a criminal offence for any person maliciously, or without lawful justification, and with intent to cause and procure the miscarriage of a woman pregnant with child, to administer to her, or prescribe for her, or advise i or direct her to take or swallow any drug, medicine or noxious thing, &e., and it is immaterial in determining the guilt of one charged with a violation of this statutory provision whether the woman upon whom the offence is committed was or was not then “quick with child.”</p> <p>2. On the trial of an indictment for this statutory offence, it is sufficient for the state to prove that pregnancy existed and that the defendant had a suspicion of its existence and acted upon that suspicion in order to show an intent to produce a miscarriage.</p> <p>3. A statement to the jury by the trial court in a criminal case, as to what the prosecution claimed the proofs showed with relation to a material fact in the case, is not legally objectionable.</p>

<p>In an action for breach of warranty on a sale of fertilizers, the plaintiff was allowed to recover, under the instruction of the court, the difference between what the crop produced by the fertilizer actually was worth and what it would have been worth had the fertilizer been up to the warranty, and also the difference between the price paid for the fertilizer and what it was actually worth. Held, that such instruction was erroneous in that it permitted a double recovery; the difference in value of the crop produced and that which would have been produced had the fertilizer been as warranted being the full measure of the defendant’s liability.</p>

<p>1. Under section 215 of the Practice act -(Comp. Stat., p. 4119), only fundamental questions may be certified to the Supreme Court'; that is, questions the answers to which will enable the Circuit Court to render judgment for the one party or the other without any further proceedings in the cause on its part.</p> <p>2. The rule or order authorized by section 252 of the Practice act (Comp. Stat., p. 4128), when made, transfers such matters as come within its purview to the Supreme Court for its consideration and determination.</p>

This is an appeal under the provisions of the act of April 17th, 1884 (2 Comp. Stat., p. 1736), providing for the review by this court of summary convictions for contempt. The appellant, William P. Verdón, was by the Hudson County Court of Quarter Sessions adjudged guilty of a contempt of that court by reason of certain newspaper poublications and was sentenced to pay a fine of $250, and to serve a term of thirty days'in the county jail.

<p>The provisions of section 2 of the supplement to an act concerning public utilities, approved March 12th, 1913 (Fielder act, Pamph. L. 1913, p. 91), by which ten per centum of the expense of eliminating a grade crossing of a steam railroad used by a street railway may be ordered to be paid by the company operating-such street -railway, is within the legitimate sphere of legislation under the police power of the- state.</p>

<p>Section 15 of the act for the settlement and relief of the poor (Pamph. Tj. 1911, p. 890), requiring certain relatives of any indigent person to provide relief for such person, is constitutional.</p>

<p>On quo warranto.</p>

<p>On certiorari to Cape May Pleas.</p>

<p>On appeal from the Somerset Circuit.</p> <p>On August 30th, 1913, Perlee, by writing under his hand and seal in consideration of $500 cash and a promissory note for $500 payable September 1st, 1914, gave and granted to Jeffcott an option to purchase a farm.</p> <p>In ease the option was not exercised by Jeffcott, and all its terms complied with, the note was to be paid at maturity. If Jeffcott purchased the premises, the $1,000 paid, represented by the cash and the note, was to he credited on the purchase price. On August 20th, 1914, the barn, which added substantially to the value of the premises, was struck by lightning, and with other outbuildings was totally destroyed. There is a suggestion in the case that the option was extended for two days, from September 1st, 1914, but no proof that this extension was by mutual agreement, or that it was anything more than the voluntary act of Perlee. On September 2d, Jeffcott demanded the return of the cash and the note. On September 3d, Perlee, by written notice, offered to extend the option to September 10th and to reduce the purchase price by $2,000 on account of the loss by fire. The defendant had insured the house and premises for $5,000, about two months after the date of the option. This suit was brought on the note in January, 1915, and Jeffcott counterclaimed the cash he had paid. The trial judge gave judgment for the plaintiff for the amount of the note and also on the counter-claim.</p>

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

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

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

<p>1. An indictment charged a director of a trust company with overdrawing his account in violation of the Crimes act. Comp. Stat., p. 1796, § 171. The overdraft was charged to have taken place on August 9th, 1918. The defendant had left with the secretary of the trust company three notes of a third party for sale to country banks. The secretary had credited the defendant’s account on July 17th, 1918, witli the proceeds of one of the notes. I fold, that it was error to allow the secretary to testify that the note was not submitted to the board of directors before it was purchased, since the indictment did not charge a violation of section 15’of the Trust Companies act. Comp. Stat., p. 5661.</p> <p>2. When a witness denies any recollection of a relevant conversation, it is proper on cross-examination to ask him what he said at a later time, either by way of stimulating his memory or of discrediting him.</p>

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

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

<p>1. On appeal from the District Court, the Supreme Court will not reverse a judgment because of the action of the trial judge in dismissing the jury and granting a continuance after the commencement of the trial, unless such action is plainly erroneous and is a clear abuse of the trial court’s discretion.</p> <p>2. When a jury in the District Court, summoned on the demand of the defendant, has for good cause been discharged by the court and the trial continued for one week, the defendant is not entitled to a jury at the trial on the adjourned day unless he pays or tenders the cost of a new venire.</p>

On certiorari, &c. There are two writs of certiorani in this case. The first was allowed on June 16th, 1915, for the purpose of reviewing an order of the hoard of public utility commissioners, dated April 20th, 1915. The second writ was allowed on July 22d, 1915, for the purpose of reviewing an order of the said board, dated July 9th, 1915, denying the petition for a rehearing of the previous order.

<p>1. The act of April 12th, 1915 (Pamph. L., p. 470), providing that when a judgment has been recovered and where an execution thereon has been returned unsatisfied, the judgment creditor may apply to the court and secure an order for execution against the salary, &c., of the judgment debtor, applies as well to judgments recovered and executions returned prior to the passage of the act as those after.</p> <p>2. The act of April 12th, 1915 (Pamph. L., p. 470), permits of an execution against the salary of a municipal officer.</p>

<p>An appointment by the city clerk of Newark under Pamph. L. 1907, p. 34, “by and with the consent of the board of aldermen or common council,” does not need the approval of the mayor to render it valid.</p>

<p>On certiorari.</p>

<p>Under section 149 of the District Court act as amended (Pamph. L. 1913, p. 619), a notice in writing ,to the clerk that the party demands a venire for a jury to try the cause on a specified date, which was the return day of the summons, is not operative as a general demand of a jury trial on any date whereon such trial is held.</p>

On four writs of certiorari to review the reassessment of “second class” railroad property for the year 1911, and the assessment of the same property for the years 1912, 1913 and 1911, respectively.

<p>1. The writ of mandamus will ordinarily not be awarded when such award will create disorder or confusion, or injuriously affect the rights of third persons.</p> <p>2. The questions raised in this case, being such as should have been raised promptly by a writ of certiorari attacking a contract for a public improvement—Held, that mandamus to assess the expense of such improvement should be denied where it appeared that it would involve a determination as to the legality of the contract after the improvement was completed and the contract price paid.</p>

<p>1. It is settled law in this stale that an action for permissive waste will lie under the statute of waste. Oomp. StM., p. 5789.</p> <p>2. Although the statute of waste gives no right of relief against the personal representatives of the deceased committer of the waste, it is to bo inferred that the legislature had in mind that act in enacting the act of 1855 (Comp. Stat., p. 2260, § 5), relating to the survival of actions. Consequently, an action for waste either committed or suffered to be committed survives against the personal representatives of the deceased committer of the waste.</p>

<p>Oil certiorari.</p>

<p>Section 70a of the act entitled “An act for the punishment of crimes . (Revision, 1898),” (Comp. Stat., p. .1769), declares it to be a misdemeanor to purchase certain articles therein described from any minor under the age of sixteen years which may have been stolen. Held, that in the prosecution of. a defendant under this statute, it is not necessary to prove that the purchaser knew that the goods had been stolen. It is sufficient if it appears that the goods were purchased from a minor under the age of sixteen years, and that they were stolen.</p>

On writs oí certiorari in three cases, removing resolution of commissioners of Trenton removing prosecutors from their employment.

<p>1. Where a contract required the contractor to erect a garage of specified dimensions, in a suit for damages for failure to perform, it was competent for him to show that he was at all times willing to perform, but that the plaintiff made it impossible by requiring the contractor to build a garage essentially different from the requirements of the contract. Field, that the exclusion of such testimony by thé trial court was erroneous.</p> <p>2. Where the owner prevents the contractor from performing, or repudiates his obligations under the contract, communicating such repudiation to the contractor, the latter may treat the contract as abandoned, and thus excuse his non-performance.</p>

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

<p>1. Where the proviso of an act is separable from the remainder of the act and such proviso is unconstitutional, the proviso may be exscinded and the rest of the act allowed to stand.</p> <p>2. A classification of cities on a basis of population is not in contravention of article 4, section 7, paragraph 11 of the constitution of New Jersey.</p> <p>3. When a meeting of a municipal body is regularly held for the purpose of filling an appointment to an office, the term of the incumbent of which has expired, and no decision is reached at such meeting but an adjournment is had, the adjourned meeting is a continuation of the first, and the election held at such meeting is as of the date of the first meeting.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>Fines paid upon conviction for the violation of a city ordinance, subsequently set aside by the appellate court, cannot be recovered back when such fines were paid without protest, and two forms of appeal were available to the defendants, as alternatives to paying the fines or serving time in jail.</p>

On certiorari to review an order of the board of public utility commissiouerg, altering a certain grade crossing under Pamph. L. 1913, p. 91, known as the Fielder Grade Crossing act.

<p>In an action of replevin, when a demand for possession is necessary, a demand made upon the wife of the defendant is not sufficient to maintain the action against the husband.</p>

<p>On motion to frame pleading?.</p>

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

<p>In order to recover damages caused through an obstruction to navigation by a bridge across a navigable stream in this state, it is not necessary for a plaintiff to plead or prove that the secretary of war lias not proceeded under the River and Harbor act of congress, approved March 3d, 1899, to ascertain that the given bridge is an unreasonable obstruction to free navigation.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 16.</p>

<p>1. A trial judge, sitting as a traverse jury, is only obliged to decide questions concerning which he is requested to make a finding.</p> <p>2. It is a settled rule that a party need not be heard on a point not taken or a matter not raised and considered in the court below.</p>

<p>3. A request which would exclude from the consideration of the jury any question of negligence on the part of defendant in stopping its car in a certain place, and of such negligence being a producing cause of accident to plaintiff, was rightly refused, as the jury were justified in finding for plaintiff even though not satisfied that the car started while she attempted to board it, there being evidence to support the conclusion that-the accident resulted from the stopping of the ear in a place of danger and that it was not contributed to by any neglect on the part of the plaintiff to use care? for her own safety.</p> <p>2. The rule which does not permit a party to impeach one of her own witnesses does not preclude her from proving the truth of any particular fact by competent testimony in direct contradiction cf that to which any of the witnesses called by her may have testified; and a party testifying is in the same position in this regard as that of any witness not a party, and a jury may well conclude that a party had made a mistake as to a fact as well as any other witness, and if upon the whole matter the jury is of opinion that the plaintiff or defendant has proved the case, then the verdict should be for that party, although it rests upon testimony contrary to that given by the party and despite the fact that the party gave testimony which might preclude a recovery, as the mistake of a plaintiff or defendant cannot change facts proved by other witnesses.</p> <p>3. Assuming that a request that the plaintiff must satisfy the jury by a preponderance of the testimony that an accident happened as she described, referred to all the evidence adduced on her behalf, and was therefore good, nevertheless an addition in the request that if the accident happened in any other way than as testified to by the plaintiff herself, she cannot recover, is erroneous.</p> <p>4. Where an instruction asked for is partly good and partly bad, it is proper to refuse it altogether; and it is not error to refuse to charge a request containing several propositions, if any of them are unfounded. ‘</p>

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

<p>On appeal from a judgment of the Supreme Court, whose opinion is reported in 88 N. J. L. 502.</p>

<p>On mandamus. On appeal from a judgment of the Supreme Court, whose opinion is reported in 86 N. J. L. 108.</p>

<p>In enacting the Workmen’s Compensation act and declaring that every contract of hiring made subsequent to its going into effect shall be presumed to have been made with reference to the act, &e., the legislature must have had in mind contracts which were valid in law, or at least contracts which were not prohibited by statute; hence, where an infant thirteen years of age was employed in a factory, in direct contravention of the provisions of chapter 64 of the laws of 1904 (Pamph. L., p. 152), and was injured while so employed, the scheme of compensation provided by the Workmen’s Compensation act in nowise applies, and the common law liability of the employer to compensate the employe for injuries alleged to have been caused by the negligence of the master is not affected thereby.</p>

<p>A father who has allowed his son, under the age of fourteen, to work in a factory in violation of the statute prohibiting the employment of children under the age of fourteen in factories, cannot recover from the employer damages resulting from injuries received by the son which arose out of the employment?</p>

<p>1. The taxes required to be raised by the General School law for the support of the free public schools of the state are state taxes levied for the use of the state.</p> <p>2. Property acquired by the Society for Establishing Useful Manufactures under an act entitled “An act to develop and improve the water power of the Passaic river” (Pamph. L. 1868, p. 545), is not exempt from local taxation under the provisions of the society’s charter. Pat. L., p. 104.</p>

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

<p>1. The supplement to the Workmen’s Compensation act {Pamph. L. 1911, p. 762), providing that every contract of hiring then in operation shall be presumed to continue subject to the provisions of section 2 of the original compensation act unless either party shall, prior to an accident, in writing, notify the other party to such contract that the provisions of section 2 are not to apply, simply permits the parties to the contract to alter its terms and provisions, and provides a rule of evidence as to what shall be proof of the altering of such contract by mutual consent. The legislature has not, by this statute, impaired the obligation of the master and that of the servant arising out of the original contract of hiring.</p> <p>2. Actual knowledge by, or formal notice to an authorized agent of, a corporation is sufficient notice under paragraph 15 of the Workmen’s Compensation act. Pamph. L. 1911, p. 134.</p>

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

<p>1. The submission of testimony on rebuttal of evidence which related to plaintiff’s main case is a matter for the discretion of the trial court.</p> <p>2. Where no objection is made to a question asked a witness, and the answer'is responsive, the motion to strike out part of the answer was properly denied.</p>

<p>On error to the Supreme Court, whose opinion is reported in 88 N. J. L. 418.</p>

On error to the Somerset Oyer and Terminer. The plaintiff in error, Alonzo Williams, was indicted for the murder of Benjamin Wooley. Both men were convicts detained in the state camp in Somerset county. On the afternoon of May 2d, 1915, during a game of baseball Wooley accused Williams of tripping him while running the bases and some angry words were exchanged between the two men who had previously been friends.

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

<p>The doctrine of ratification is not applicable except where an agent has assumed to act for a principal but without authority. It does not apply where one. who makes a contract acts for himself with the knowledge of the other party thereto.</p>

<p>1. The defence of fraud in the execution of a written instrument is available even though the defendant had ability and opportunity to read it, where the situation is such that the signer is under no duty to read.</p> <p>2. Where a release under seal is relied on as a defence, fraud in the consideration of the release is not available as a defence at law; there must be fraud in the execution to sustain the defence. Connor v. Dundee Chemical Works, 50 N. J. L. 257, approved.</p> <p>S. A fraudulent misrepresentation of the contents of a release whereby the releasor is induced to execute it, is fraud in the execution of the release even though the misrepresentation is as to the statement of the consideration contained in the release.</p>

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

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

<p>1. Webb, the secretary, superintendent and manager of a manufacturing corporation, caused the arrest of the plaintiffs, two former employes of the company, for the larceny of certain articles, the property of the company, found in their possession. The plaintiffs claimed that Webb had given them these articles, but of this claim the corporation had no actual notice. The plaintiffs were tried and acquitted of the charge, and they then brought an action against" the company for malicious prosecution. Webb had no express authority, nor had he any implied authority to give away the property of the company, and the gift, if made, was a personal matter between him and the plaintiffs, and so knowledge of the gift was a fact not imputable to the corporation. The other facts, knowledge of which by Webb was imputable to the company, in the absence of notice that plaintiffs claimed the articles by gift from Webb, were such as to create a probable cause for the company to believe that the plaintiffs were guilty of larceny.</p> <p>2. Where the facts are not in dispute, the question of probable cause, in actions for malicious prosecution, is one of law.</p> <p>Note.—This opinion was rendered at the November Term, 1909, and should have been published with the opinions of that term, but was overlooked by the reporter.—Rep.</p>

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

<p>1. The relation of carrier, and passenger, when established, does not terminate until the passenger has reached his destination and alighted from the train upon which he lias been riding, and has had a reasonable time and opportunity within which to leave the place where the passengers are discharged.</p> <p>2. It is the duty of a railroad company to use reasonable care to provide its passenger a safe place and way to alight at the jilace of destination, and the company is liable for an accident happening by reason of the neglect of such duty to a passenger who has alighted from a car at rest in a station, and before he has had a reasonable time and opportunity to leave the premises of the company, if the circumstances are such as to induce the passenger to believe that it was safe for him to alight at the place and in the way he did.</p> <p>3. Whether a person who has alighted from a standing train at a station, and who is crossing the railway tracks by a planked way provided by the company for that purpose, after the. train has moved out, is still a passenger entitled to so cross without looking and listening, is a question of fact for the jury, where, under the proof, reasonable men may differ as to whether he was proceeding from his place of alighting to a place of safety within a reasonable time after he had alighted from the train.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 85 N. J. L. 139.</p>

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

<p>1. The “grounds for reversal” required by section 136 of the Criminal Procedure act must point out the specific action complained of as erroneous or injurious.</p> <p>2. In a prosecution for statutory carnal abuse, evidence of specific acts of sexual intercourse by the female with other men is incompetent unless the state tenders the issue that a child was born of an act of intercourse charged against the defendant, in which case defendant is entitled to meet that issue by evidence of intercourse with other men at a time when such child might have been conceived.</p>

<p>Ou appeal from the Supreme Court, Cumberland County Circuit.</p>

<p>1. By the provisions of the amendment of the general act concerning taxes (Pamph. L. 1913, p. 570), all buildings used for charitable, benevolent or religious purposes, not conducted for profit, and the land whereon they are situated necessary for the fair enjoyment thereof, not exceeding five acres, are exempt from taxation although owned by a corporation of a sister state.</p> <p>2. According to the terms of the same amendment, a charitable, benevolent or religious work is not conducted for profit where it is partly supported by fees and charges received from beneficiaries, provided the building” is wholly controlled and the entire income therefrom is used for said charitable, benevolent and religious purposes.</p>

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

<p>1. Where a case has been iully tried including issues not perfectly pleaded and the complaining party has not been surprised, or suffered any injury, this court has the power to amend the pleadings to conform to the proof and should, in such case, in the interest of justice, exercise the power.</p> <p>2. In an action by a grandson to recover from the estate of his grandfather on an oral contract by which the grandfather agreed to leave a legacy to the grandson in consideration of services to be rendered, it is not error to permit proof of the relationship, for it bears on the probability of the making of such a contract, because a grandfather would, ordinarily, be more likely to contract to give a legacy to one of his blood than to a stranger. The inferences to be drawn from such circumstance is for the jury to settle.</p>

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

<p>Where a summons in a District Court was endorsed with plaintiff’s demand, and the state of demand was then filed, and notice of such filing served upon defendant—-Held, that the trial court, in the absence of defendant, and without his knowledge or consent, could not order judgment entered for a sum greater than that contained in the process and state of demand.</p>

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

<p>Where the plaintiff, on a dark and foggy morning, approached a railroad crossing with his horse and wagon, and stopped, looked and listened for an approaching train, and after due observation neither heard nor saw one approaching, and the defendant maintained gates and a gateman at the crossing, and the gates were up, and the defendant met the situation thus presented by proof that the approaching engine bell was rung and the approach of the engine was discernible from various points at the crossing—Held, that the issue thus presented was one of fact, and was properly submitted to the jury.</p>

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

<p>1. An appellate court will not review matter assigned for error unless the record shows it was assigned for error in the court from whose judgment the appeal was taken.</p> <p>2. Where the date of the offence in a criminal prosecution is not of the essence of the offence, it is always open to the state to offer proof that the offence charged was committed on any day within the period covered by the statute of limitations; but the date on which the offence was committed may relatively become, like any other fact in a case, a matter of vital importance. So, where a physician was charged with unlawfully using instruments upon a deceased woman to effect an abortion, on the 15th day of January, and the defence interposed was that the first and only occasion on which an instrument was used upon deceased by defendant was on January 27th, and then under sxich circumstances as legally justified the act, and it was not contended by the state that what the defendant did on January 27th was unlawful, it was error for the trial court to charge the jury that it was their duty to find the defendant guilty under the indictment, even though they found that January 15th was not the correct date, but some other date at or about that time, was when defendant first introduced the instrument into the person of' the deceased, the practical effect of the instruction being that the jury must convict defendant even though the instrument was used for a justifiable cause.</p>

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

<p>1. The rulings of the trial court, admitting and rejecting evidence at the trial of this case, were not error. They wore within the discretion of the trial judge.</p> <p>2. The trial judge has the undoubted right to make comments upon the testimony so long as he leaves it to the jury to determine the facts and draw their own conclusions.</p> <p>3. When land is taken by condemnation, trees and top soil thereon are a part of the land. They should not be valued separately and apart from the land by the jury, but may be taken into consideration in determining to what extent if any, the value of the land is thereby enhanced.</p> <p>4. Tinder the Condemnation act (Pamph. L. 1900, p. 81, § 6), the value of the land taken and the damages are to be ascertained, as of the date of the filing of the petition and order thereon.</p>

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

<p>On appeal from a judgment of nonsuit entered by the Circuit Court of Somerset County.</p>

<p>In an action for the board of horses where defendant relies upon a counter-claim based upon the loss of a brood mare, injured in the pasture field of plaintiff, no legal error is committed by the trial court in refusing a requested instruction, setting forth in effect that since the injury occurred while the mare was under the care and control of plaintiff, there arose from this situation a presumption of negligence upon plaintiff’s part, and that the burden is therefore imposed upon him to overcome that presumption by preponderance of evidence sufficient to satisfy the jury that the injury was not caused by negligence on his part.</p>

<p>1. For all acts done by a servant in obedience to the express orders or direction of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the service required, the instructions given and the circumstances under which the act is done, the master is responsible.</p> <p>2. Where a servant is acting within the scope of his employment, and by his negligence causes injury to a third party, the master will be responsible, although the servant’s act was contrary to his master’s orders.</p> <p>3. This court will not consider the question of excessive damages on appeal from a judgment at law; judgments of the inferior-law courts are reviewed by this court upon matters of law only.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 359.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 426.</p>

“Jersey Oitv has adopted the provisions of the so-called ‘Walsh act,’ chapter 221, laws of 1911. The present members of the board of commissioners of that city were elected on the 10th day of June, 1913, and were organized under said act on the 17th day of June aforesaid.

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 1.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 111.</p>

The errors specified are refusal to nonsuit and to direct verdict for 'defendant. “From the evidence the jury might infer that plaintiff left his seat in the car as it vras running into the station at Chat-ham for the purpose of alighting; that he opened the door and pushed it over the catch put there for the purpose of holding it; that at this time the car gave a sudden jerk or lurch of sufficient force to throw plaintiff forward, and unloose the door from the catch; that…

There was a verdict for the plaintiff and judgment thereon. “The first ground assigned for reversal is that the court refused to charge the following request: ‘The injury must be clear, direct and positive. It must be the legitimate and natural result of the nuisance charged and in no essential degree the result of other artificial causes.

The plaintiff had a verdict and judgment. The defendant appeals. “Plaintiff’s case was that, being a passenger on the defendant’s car, and desiring to leave the car at Eighth street, he advised the conductor of his wish; that upon arriving at Seventh street, he again told the conductor to let him off at Eighth, and the conductor gave the necessary signal to the motorman; that after the signal was given he (the plaintiff) went out on the platform; that the car slacked up;…

<p>On appeal from the Supreme Court, whose opinion is reported in 87 N. J. L. 115.</p>

On error to the Supreme Court, in which the following ;per curiam was filed: “Defendant was convicted of keeping disorderly house and brings error, assigning following reasons: “1. No evidence to sustain the charges. “This is not true, the evidence is ample. “2. No evidence that defendant had knowledge of or power to suppress the acts constituting the crime. The proof is that she was present taking the money for the illegal use of rooms. “3.

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 87.</p>

On error to the Supreme Court, in which the following per curiam was filed: “The defendant was indicted for and convicted of assault in shooting at children who invaded his yard; and the case is here on the entire record. “It is urged that the testimony adduced by the state does not support the verdict.

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 55.</p>

<p>On certiorari of tax sale.</p>

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

<p>On rule for a mandamus.</p>

<p>Under the provisions of the act regulating elections, the board of county canvassers ordinarily is required to canvass the returns as laid before them by the various local boards, but where a doubt appears from the return as to its correctness, it is proper to have the local board certify what are the correct figures.</p>

<p>1. Upon a certiorari to review a judgment of a District Court summarily dispossessing a tenant, the only question to be considered is whether the District Court bad jurisdiction, and in considering this question the Supreme Court cannot review the findings of facts, but can only determine whether there was any evidence from which the jurisdictional facts might have been found.</p> <p>2. The statute relating to tax sales (Comp. Stat., p. 5135, pi. 56) gives the holder of the certificate of sale the right to immediate possession of the property and to the rents and profits from the date of the certificate, but this does not prevent the landlord from bringing proceedings to dispossess the tenant for non-payment of rent accrued previous to the making of the tax certificate.</p> <p>3. Judgment of dispossession in such case might result in turning the tenant out of possession, while the purchaser at the tax sale, who was not a party to the proceeding, would be entitled to ' possession rather than the landlord, but this difficulty can be met by controlling the writ of possession.</p>

On certiorari. The city of Orange contracted with Moriarty for the removal of ashes and garbage for four years from August 20th, 1914. The contract provided that if after hearing on due notice, Moriarty should be found guilty by the board of commissioners of a violation of the specifications and conditions, the city should be entitled for each violation to $50 as liquidated damages.

<p>One claiming title to land by adverse possession must, in an action of - ejectment, show that the possession continued for twenty years and that it was, in fact, adverse, that is, with the intention to claim the fee, indicated by some act on his part which would convert mere occupation of the land into adverse possession.</p>

<p>Under sections 40-42 of “An act concerning townships” (Comp. Stat., pp. 5591, 5592), providing for the method of assessing the cost of sidewalk improvement, an abutting owner can only be assessed with such part of the incidental expense of the work as bears the same ratio to the total incidental expense as the cost of labor and materials mentioned in the second subdivision bears to the whole cost of material and labor mentioned in section 40. Assessments for substantial grading, extra driveways for owners other than the one assessed, and for laying gutters, cannot be sustained under the section named.</p>

<p>Stocks in New Jersey corporations, pledged by a non-resident during his lifetime as collateral security for a note, are not subject to the transfer tax at his death under the act of 1914 (Pamph. L., p. 267), imposing a tax on such shares when transferred by will , or intestate laws, since the rights of the unpaid pledgee in the stocks did not permit of a transfer of the stocks by the will of the deceased pledgor.</p>

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

<p>In a suit to recover the proceeds of certain pension checks, endorsed by deceased during his lifetime to defendant, evidence to prove a verbal statement made by the deceased, not in the presence of the defendant and not contemporaneous with the giving of any check, where the object of such testimony was to show, by deceased’s declaration, that the checks had not been endorsed to the defendant as a gift, is inadmissible.</p>

<p>On. certiorari.</p>

<p>1. When n traction company, organized under the General Traction act of 1893 (Pamph. L., p. 302; Comp. Stat., p. 5021), obtains from a municipality an ordinance granting a location of street railway tracks, and accepts the same, a regulation of the rate of fares contained therein, if lawful and reasonable, constitutes a contract between the company and the municipality which during the life of the franchise remains inviolable, and it is incompetent for the board of public utility commissioners to impose upon the company an additional burden in violation of such contract respecting fares.</p> <p>2. An ordinance passed by a municipality 'pursuant to the General Traction act of 1893 (Pamph. L., p. 302; Comp. Stat., p. 5021), granting a location of street railway tracks, and providing therein respecting the, rate of fare that “no more than five cents shall be charged by the company,” gives the company, when accepted by it, a contract right to charge a five-cont rate, which rate cannot be reduced without the consent of the company.</p> <p>3. Where an ordinance passed by a municipality pursuant to the General Traction act of 1893 (Pamph. L., p. 302; Comp. Stat., p. 5021), granting a location of street railway tracks, contained a restriction that the fare in a stated territory shall be “no more than five cents,” and such ordinance is accepted by the company, such contract is binding- both upon the company and the municipality, even though the territory covered by such fare zone is partly outside the corporate limits of the municipality.</p>

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

<p>On error to tlie Hudson Quarter Sessions Court.</p>

<p>1. To constitute robbery there must he actual violence, or such a demonstration or threats as will create reasonable apprehension of bodily injury if the victim resists.</p> <p>2. A conviction in a criminal ease will not be reversed for error in an instruction which could not have prejudiced the defendant.</p> <p>3. One indicted for a crime may be convicted of any offence of a lower degree, provided such lower offence is necessarily included in the higher one charged in the indictment.</p> <p>4. Robbery is larceny with the element of force or fear entering into it.</p> <p>5. Larceny is a necessary ingredient of the crime of robbery, and a conviction of the former crime may be had under an indictment for the latter.</p>

<p>On error to the Mercer Quarter Sessions Court.</p>

<p>1. The supplement of 1916 (Pamph. L., p. 385) to the District Court act, makes no change of the requirement of the act of 1905 (Comp. Stat., p. 1957, pi. 136) that where there is a stenographer, the transcript shall be certified for appeal within fifteen days after judgment.</p> <p>2. The requirement of said supplement of 1916 that the state of the case where there was a stenographer shall be filed in the Supreme Court on or before the opening day of the next term following the date of filing the appeal, refers to the term next after the actual date of filing and not merely after the last day when appeal might have been filed.</p>

<p>1. A parol assignment of a cliose in action based on contract, whether such chose in action be evidenced by writing or not, is assignable at law and the assignee may sue thereon in his own name.</p> <p>2. Plaintiff owed a commission for sale of her real estate under a contract with three persons who acted as her brokers, and paid the whole to one of them who receipted for all. The two others having recovered a judgment against plaintiff, claiming that she was not discharged by such payment, she paid the judgment and took an assignment by parol of their claim against the third. Held, that she was entitled to recover back such part of the money originally paid to him as represented the claim of the other two on a division of the commission.</p>

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

<p>The refusal of a motion to direct a verdict of acquittal at the close of the case for the state, where the case fails to show the defendant’s guilt, is an error reviewable under sections 136 and 137 of onr Criminal Procedure act, and the right to the review is not waived by the defendant because he thereafter proceeds with his defence.</p>

<p>At an election held in a municipality to determine whether it would adopt an act providing for a different form of government, a majority of the votes cast favored the adoptiop but the act only became operative if the votes cast in favor of the act equaled at least thirty per centum of the total number of legal ballots cast, in the municipality at the last general election for members of assembly. The votes cast in, favor of the adoption did not equal the thirty per centum required, so that the act did not become operative. The statute further provided that if a majority of the votes east were not in favor of the act then it should remain inoperative and no further proceedings should be taken until after the beginning of the last year of the term of the mayor elected following the rejection of the act, after which another election could be had. Held, that where a majority of the votes were cast in favor of the adoption of the act, it did not become operative because it failed to receive the,thirty per centum of the votes cast at the last general election, the limitation concerning another election did not apply because that condition is only applicable when a majority of the votes are not cast in favor of the adoption.</p>

<p>On certiorari removing resolution of commissioners.</p>

<p>1. The Inheritance Tax law (Pamph. L. 1909, p. 325), as amended (Pamph. L. 1914, p. 267), is a succession and not a property tax, and- does not violate any provision of the federal or state constitutions intended to secure equality of rights.</p> <p>2. The act of April 9th, 1914 (Pamph. L., p. 267), amending the Inheritance Tax law (Pamph. L. 1909, p. 325), if discriminatory at all, discriminates when considered with cognate legislation in favor of the non-resident, and, although it does not produce absolute equality; it is a workable rule, and a step in the evolution making for practical equality of taxation in so far as such equality can be evolved under our dual system of government, and is therefore valid.</p>

<p>On certiorari removing an order of the Middlesex Common Pleas.</p>

<p>On writ of certiorari removing ordinance and resolution.</p>

<p>1. Section 159 of the act concerning elections (Comp. Stat., p. 2125), providing a procedure to obtain a recount of the votes cast at an election, applies to a contest in an election for member of congress from this state.</p> <p>2. Held, also, that the petition for a recount set out sufficient facts . to warrant an order for a recount, under Kearns v. Edwards, 28 Atl. Rep. 723, and that the petition was properly verified, under Johnson v. Allen, 55 N. J. L. 400, 401.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>Under' section 76 of the act relating to schools (Comp. Stat., p. 4746), the custodian of school funds, who has on hand balances derived from the sale of school bonds authorized to be issued and which were issued for the purchase of land and the erection of school buildings, cannot be-lawfully directed by the board of education to transfer such balances to the building and repair account and thus subjected to be used for repair of school buildings, &c. Since the statute makes no provision permitting such use of the unexpended balances, the general principle of law that a fund raised for a specific purpose cannot be applied to any other purpose applies, and the order of the board of education to make any use of the fund other than for the specific purpose for which it was raised is ultra vires.</p>

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

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

<p>On certiorari to Essex Common Pleas Court.</p>

<p>On certiorari.</p>

<p>A resolution passed by a board of chosen freeholders provided that an award of a contract for the improvement of a county road be not binding, if chapter 285 of the laws of 1916 was adopted by the voters of the state; that, in the event said law was adopted by the voters of the state, the award and all the proceedings shall be null and void. The resolution was passed November 8th, 1916. The above act was adopted by the voters of the state at the election, November 7th, 1916. On November 24th, 1916, at a special meeting of the board, the above resolution was repealed, disposed of, set aside and for nothing holden. A contract was awarded under the original advertisement for bids. Held, the award of the contract was void and illegal.</p>

<p>1. In this case, which is an action of ejectment, in which both parties to the suit relied upon a paper title, the testimony and exhibits being examined—Held, the verdict of the jury in favor of the defendant was not against the weight of the evidence.</p> <p>2. A paper-writing, which recites that “in consideration of a better business feeling and to avoid future litigation between us do quitclaim,” &c., endorsed “Quit-claim and settlement of lines,” has none of the elements of a deed. It was not error to admit such a pa per-writing in evidence on the ground that it was not recorded in accordance with the Conveyances act. Comp. Stat., p. 1553, § 51</p> <p>3. It was not error to admit in evidence a copy of a referee’s report and rule for judgment in the Supreme Court, endorsed by the clerk, as a true copy, certified under the hand of the clerk and seal of the court, April 8th, 1806.</p> <p>4. In this case it was not error to admit in evidence a non-recorded deed. The fact that a deed was not recorded does not destroy its evidential value. A non-recorded deed is only void as against parties claiming under another conveyance from the same grantor, who took without notice of the unrecorded instrument. Comp. Stat., p. 1553, § 54.</p>

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

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

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

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

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

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

<p>1. Section 22 of the act concerning trust companies (Comp. Stat., p. 5664), amended Pamph. L. 1913, p. 282, authorizes the commissioner of banking and insurance, in certain circumstances, to take possession, as statutory agent, of a trust company’s property and business and liquidate the same, and empowers him to prosecute and defend suits and other legal proceedings in the name of the trust company.</p> <p>2. A person indebted to a trust company on a promissory note, and having a deposit to his credit therein when the commissioner of banking and insurance takes possession, is a creditor of the company, and as such entitled to set off his deposit against the amount due on the note, under the act concerning set-off. Comp. Stat., p. 4836, § 1.</p>

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

<p>On appeal from a judgment of the Supreme Court, whose opinion is reported in 87 V. J. L. 479.</p>

<p>On writ of error to the Hudson Oyer and Terminer.</p>

<p>1. A contract, made by a sister, because of a threat to subject her brother to imprisonment, is void for duress; and the question whether or not, in view of conflicting testimony, there was such a threat, is one for the jury.</p> <p>2. Duress, to he available as a defence in an action upon contract, must have been exercised upon him or her who sets it up as a defence by him who claims the benefit of the contract, or by someone acting in his belialf or with his knowledge.</p>

<p>1. The fundamental grounds upon which an action for malicious prosecution rests are that it was instituted against the plaintiff without reasonable or probable cause; and that the defendant was actuated by a malicious motive in making the charge. Unless the evidence in the ease establishes the existence of both of these grounds, the plaintiff’s suit must fail.</p> <p>2. Where, in a suit for damages for malicious prosecution, the question whether or not the defendant had probable cause for instituting the prosecution against the plaintiff depends, in part at least, upon facts the existence of which are in dispute, it is the function of the jury to settle those facts, and, upon doing so, to determine on the whole case whether or not probable cause lias been shown, such determination being based upon proper instructions from the trial court. But where the facts are not controverted, the question of probable cause is one of law, to be determined by the court, and its submission to the jury is improper.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 526.</p>

<p>1. Where a dying declaration is offered in evidence, the preliminary question of fact whether the declarant was under a sense of impending death is for the determination of the trial court; but when the declaration has been admitted, the questions of fact as to what the declarant said and what his mental and physical condition were at the time are for the jury.</p> <p>2. A witness may be contradicted or impeached by testimony previously given by him before the grand jury. The case of Imlay v. Rogers, 7 N. J. L. 347, overruled.</p> <p>3. Where a witness has volunteered testimony inimical to the party that called him, contrary statements by the witness made elsewhere may be shown, not for the purpose of impeaching the witness, but for the purpose of neutralizing the effect of his testimony.</p>

<p>1. The plaintiff was injured while in the employ of a copartnership and was induced to forbear bringing suit by an offer, as he says, of a life job. At his demand this offer was put in writing. Nothing was said as to the wages to be paid or any other term of the employment. Held, that the writing was not sufficiently definite to make an enforceable contract.</p> <p>2. A copartnership by which plaintiff was employed was succeeded by a corporation which took over all the assets and assumed certain of the liabilities, not including any liability to tbe plaintiff. The plaintiff continued at work, Ms pay was increased, and be was paid by the corporation. In 1913 his employment by the corporation was terminated; whether by his voluntary act or by his discharge was disputed; the plaintiff never tendered himself ready to work for the partnership after he began to work for the corporation. Held, that there was no proof of breach of contract by the copartnership.</p>

<p>1. In a suit for damages for refusal to register a transfer of stock, the rule of damages depends on the nature of the action. If the plaintiff claims special damages only and seeks to retain the stock, he is not allowed to recover the value and also to retain the title. If, however, he claims for a conversion of the stock, he may recover its value.</p> <p>2. In an action to recover damages for refusal to register a transfer of stock, there was no proof of the value of the stock, and there was evidence that it had been, originally issued without being in fact fully paid, that the corporation had not been prosperous and was conducted at a loss. Held, that it was error to direct a verdict for the par value of the stock with interest.</p>

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

<p>1. To warrant a recovery under section 2 of the Workmen’s Compensation act (Pamph. L. 1911, p. 134, as amended by Pamph. L. 1913, p. 302) from an employer for the death of an employe, it must appear, among other things, that the employe’s death was caused by (») an accident, (6) arising out of, and (c) in the course of, his employment, and all these essential facts must be found by the trial judge, and must be contained in his written determination.</p> <p>2. Upon the review of a judgment against the employer for the death of an employe under section 2 of the Workmen’s Compensation act (Pamph. L. 1911, p. 134, as amended by Pamph. h. 1913, p. 302), when it appears that there has been no finding by the trial judge that the death was by accident, nor that it arose out of, and in the course of, his employment, the Supreme Court should send the case back for a new trial and proper determination of facts, either upon the evidence already taken, or upon such as the parties see fit to put in.</p>

<p>1. One who, while riding in the private automobile of another, is injured by the negligence of a third party, may recover against the latter, notwithstanding that the negligence of the driver of the automobile contributes to the injury, where the person injured is without fault and had no authority over the driver.</p> <p>2. If one injured by the negligence of a third party had no authority over the driver with whom he was riding, and was not negligent himself, and the relation of master and servant, or principal and agent, or mutual responsibility in a common enterprise did not exist, then the negligence of the driver cannot be imputed to him.</p> <p>3. In an action to recover for the death of a person, while riding with another, through the negligence of a third party, it is not error justifying reversal for the trial judge to charge incidentally that “if decedent had no authority over the driver, and was not negligent himself, and the relation of master and servant, »,or principal and agent, or mutual responsibility in a common enterprise did not exist, then the negligence of the driver is not imputable to the decedent,” even though there was no evidence of such relation, it appearing that the judge charged in effect that there was no such relation, and limited a finding of contributory negligence, if any, to want of reasonable care upon the part of the decedent himself.</p> <p>4. If counsel conceives that a pertinent legal principle has been omitted by the judge in his charge, he should request the desired instruction.</p>

<p>1. Where, after a note has been delivered and the contract thereby created has been fully consummated, a third party writes on the note over Ms signature the following irregular endorsement: “This note to he paid out of my estate after my death,” that endorsement constitutes a promise to pay the debt of another, and requires a new consideration to support it.</p> <p>2. The defendant’s written promise to pay the debt of another has no legal validity, if there be no evidence of consideration outside of the promise itself.</p>

<p>1. The Civil Service act (Comp. Stat., p. 3795) did not take effect in the county of Passaic until after the expiration of forty-five days from November 5th, 1912, the day on which the election was held at which it was adopted by the voters of the municipality.</p> <p>2. The cardinal principle for the construction of statutes is that they are to bo so construed that, if possible, full effect shall be given to all parts of the statute.</p> <p>3. A statute ought upon the whole to be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.</p>

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

This was a mechanics’ lien suit by the principal contractor which after a trial in the Circuit Court resulted in a general judgment against the “builder” and special judgment against the “owner.” On appeal to the Supreme Court the general judgment was sustained, and this phase of the case is not appealed.

<p>On error to the Supreme Court, whose opinion is reported in 88 N. J. L. 101,</p>

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

<p>A statute prohibited the entry of a judgment on any bond where a mortgage has or may be given for the same debt, unless, prior to the entry, there shall be filed with the clerk or register of the county in which the mortgaged premises are located, a written notice of the proposed judgment setting forth the court in which it is proposed to enter the judgment, with the place of record of the mortgage and a description of the mortgaged premises. Held, that the statute is not unconstitutional when applied to bonds existing before its approval, for it does not impair the obligations of contracts or deprive the holder of any remedy which existed when the contract was made, in violation of the constitution of this state, for it relates to a method of procedure, and does not curtail or restrict a remedy in derogation of the terms of the contract.</p>

<p>On appeal from the Supreme Court, Burlington Circuit.</p>

<p>Where a railroad company lands a passenger not at its regular station platform, but in a place where the surface of the ground Is uneven, and the spaces between the rails of the tracks the passenger must cross to reach the station and street are at least five inches in depth, and in so crossing, without aid from the company’s servants, or warning of the unusual conditions, the passenger is thrown and injured because of the condition, a motion for nonsuit, upon the ground that plaintiff had not shown that the construction of the platform and tracks was different from that in general use under like conditions, was properly refused. It is not a question of construction, but whether by acts'of omission or commission the defendant neglected to perform its duty to provide a reasonably safe way for its passengers.</p>

<p>1. That a city is being furnished with a needful supply of water by a private corporation is not alone sufficient to estop it from taking the water plant for public use under its power of eminent domain, even if it be doubtful that the income to be derived will be sufficient to cover the cost of operation, and taxation may be necessary to supply any deficiency, nor is judicial interference justified upon the ground that such action is, under the circumstances, an unreasonable exercise of the power of condemnation.</p> <p>2. A contract between a water-supply company and a city to supply water to it is property, and may be condemned as an incident to the taking of the property for a public use, and the right of eminent domain may be exercised, if the power has been delegated by the contracting city, for such a proceeding does not impair the contract but appropriates it as property,</p>

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

<p>On two appeals from the Morris County Circuit Court..</p>

<p>1. Process to appear before a legislative committee, regular on its face, issued by the chairman of such committee under a general authority conferred upon him by the committee, either expressly or by parliamentary usage, and either with or without specific authority in the particular case, is a summons to appear before such committee, the willful disregard of which is made a misdemeanor by Pamph. L. 1895, p. 162. Comp. Stat., p. 2241, §§ 67, 68.</p> <p>2. The failure of the defendants to appear at the place named in the subpoena was the culminating factor in the completion of their offence, and the defendants were then subject to indictment in that county, though they resided elsewhere. Quaere: Whether such process is subject to collateral attack?</p>

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

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

<p>Oil appeal from the Burlington Circuit Court.</p>

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

<p>1. The habitual violation of the statute making it a misdemeanor to sell or give intoxicating liquors to minors under the age of eighteen years, constitutes the place where such sales take place a disorderly house.</p> <p>2. The fact of age is not within the category of things as to which the fact can be proven by opinion testimony, since such evidence is nor. the best proof of which the fact of age is susceptible.</p> <p>3. In a criminal trial counsel will not be permitted to sit by in silence and let incompetent evidence be, introduced, cross-examine on and experiment with it, and at the close of the state’s case, finding it to his disadvantage to have such estimony in the case, move that it be stricken out, and a refusal by the trial court, under such circumstances, to strike out such incompetent testimony is not reversible error.</p> <p>4. Where a general exception is taken to the court’s charge, and error assigned on a portion thereof, which includes two distinct propositions of law, one sound and the other unsound, the assignment is ineffectual and will not be considered on a strict bill of exceptions.</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>1. Where, as a part of its operating system, a common carrier by railroad in interstate commerce has provided, and notified its employes of, a rule that in the “movement of trains” when “cars are pushed by an engine,” a man shall take “a conspicuous position on the front end of the leading car to signal the engineman in ease of need,” and an employe, so notified of the rule, who, in the performance of his duties, has, in reliance upon the rule, placed himself two hundred feet in front of a long train of empty freight ears not being “drilled” and standing on a track not used for “drilling” purposes, without, engine or crew, is run down because a train crew attached an engine to the far end of the train and without warning pushed it over him, without a man being placed on the front end of the leading car in accordance with the rule, the question of the negligence of the train crew, the common carrier’s employes, was properly left to to the jury. Citing D’Agnostino v. Pennsylvania Railroad Co., 72 N. J. L. 358, and Germanus v. Lehigh Valley Railroad Co., 74 Id. 662.</p> <p>2. The “assumption of risk” of a section-gang foreman engaged in interstate commerce in the employ of a common carrier by railroad, whose duty it is to look out for the safety of himself as well as of the men under him, does not include the negligence of his fellow-employes under the Federal Plmployers’ Inability act in failing to take a precaution or give a warning provided with his knowledge, to secure his safety by the system adopted by Ms employer for the operation of the railroad upon which he worked. Distinguishing Precodnick v. Lehigh Valley Railroad Co., 74 N. J. L. 566.</p>

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

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

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 557.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 560.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 506.</p>

The ground of the nonsuit was that the plaintiff, when sued in a justice’s court upon a cause of action that arose out of the same transaction, did not file any set-off or recoupment based upon the claim for which the action in the Pleas was brought. The judgment of nonsuit was erroneous under the cases of Sipley v. Wass, 47 N. J. L. 187, and Clancy v. Neumayer, 51 Id. 299.

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 184.</p>

“The delivery and non-payment was admitted. “It appeared that on September 16th, 1914, the plaintiff sold the defendant other lumber which was delivered with the first lot. “The first lot was sold on thirty days’ credit and a promissory note was to have been given therefor, but was not given.

The prosecutor seeks to reverse the judgment because the trial judge failed to make a finding that the death of the petitioner’s decedent .was the result of injuries received by him while in a state of intoxication, and that such intoxication was the natural and proximate cause of such injuries.

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 443.</p>

Ruane, Administrator, v. Erie Railroad Co., 83 N. J. L. 423; affirmed by the Court of Errors and Appeals. “A second trial between the parties resulted in a. verdict for the respondent for $4,000.

The facts are that Nicholas Sessler, on the 28tli day of Majr, 1914, was in the regular employ of William Peter, a carpenter, doing the duties usually pertaining to that trade. He was struck on the forehead with a piece of timber and ivas thrown down and rendered ■ unconscious.

<p>On appeal from the Supreme Court, whose opinion is reported in 86 N. J. L. 520.</p>

<p>On error to the Supreme Court, whose opinion is reported in 88 N. J. L. 45. ,</p>

<p>On writ of error to the Supreme Court, whose opinion is reported in 88 N. J. L. 551.</p>

<p>On error to the Supreme Court, whose opinion is reported in 88 N. J. L. 458.</p>

It is on appeal hy Fred Veader, the defendant, from the judgment of the District Court o£ Morris county. The subject of the action is the ownership of a horse. This is the second trial of the action. The judgment rendered in the first trial was set aside hy this court.

Freeman and J. Miller Nichol, the total length of the road to be about two thousand two hundred and nineteen feet. “The petition was presented to the committee under chapter 166, Pamph. L. 1914, p. 310. On the same day the committee introduced an ordinance for the opening of the road and passed a resolution to meet on September 2d, at two i\ w., to receive and consider objections to the improvement, and directed that the clerk give public notice of the fact.

Proceeding under the Workmen’s Compensation act. The decedent was a night watchman in a mill. At nine p. m. he “was making a tour through the mill, recording his passage by ringing in or registering on his watchman’s clock, and while going from one station to another stopped to close a door opening from the mill to a loading platform adjacent to a railroad switch. This was a sliding exterior door hung on wheels or pulleys.