Volume 90 — New Jersey Law Reports

<p>On certiorari.</p>

<p>A subscription to the stock of a proposed corporation, to he organized under a specified name and for certain designated purposes, imposes no obligation upon the subscriber to take stock in a company afterward organized by the same promoters under the same corporate name, but for radically different purposes.</p>

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

<p>On quo warranto. Demurrer to plea.</p>

<p>Where defendant, while driving an automobile on a public highway, ran into plaintiff’s decedent because he was unable to see decedent, owing to his temporary blindness caused by the deflection of light shining on his windshield, and there being no contention that acts of the decedent contributed to his injury, a verdict of the jury, on the trial for damages, resulting in the exoneration of the defendant, cannot be justified, and is set aside.</p>

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

<p>The receipt of money which lias been unlawfully or fraudulently obtained from another person, the receiver thereof knowing it to have been so obtained, is within the purview of section 166 of the Primes act, as amended by Painph. L. 1906, p. 431, relating to the receiving of stolen goods.</p>

<p>1. Where the proofs show that the defendant merely aided and abetted an abortion, without actually participating in the use of the instruments for effecting it, he may be convicted upon an indictment charging him with being a principal in the production of an abortion, all concerned in such a misdemeanor being liable as principals.</p> <p>2. Where a defendant was indicted for assault and battery, as well as for abortion, upon the same female, testimony as to an alleged rape committed upon the female was clearly competent in proving the former offence.</p> <p>i!. Where the court erroneously charged the jury as to the duty to convict the defendant, if the jury found by the weight of the evidence that he did the thing named in the statute under which he was indicted, and subsequently corrected the charge, so that the jury were, in substance, told that they could only convict in case the weight of the evidence was so preponderating as to satisfy them upon that point beyond a reasonable doubt, the initial error in the charge was thereby cured.</p>

<p>On appeal from the Union Cirenit Court.</p>

On appeal. This was an action in tort brought to recover damages for injury to the plaintiff’s automobile, resulting from the unskillful manner in which it was driven by the defendant, who was an infant.

<p>Upon a trial before the District Court without a jury, it was not error to deny the plaintiff’s request for a voluntary nonsuit made after the court had announced that judgment was given for the defendant.</p>

<p>On certiorari.</p>

<p>The provision .of the General Railroad law (3 Comp. Stat., p. 1910, § 40), requiring that the clerk of the Supreme Court be carried free of charge, is unconstitutional as to any railroad company that is under no contract obligation to perform that duty.</p>

On appeal. Plaintiff corporation, engaged in the real estate, insurance and mortgage loan brokerage business, entered into a written contract with defendant Hyman Temkin, engaging plaintiff to procure a mortgage ioan of $.18,000 upon property of defendants on Ravine street, Jersey City, in said contract mentioned, for procuring which and the expense of search, said defendant Temkin agreed to pay plaintiff the sum of $550 and give it the busineess of placing the insurance…

<p>1. The legislature did not intend by the provisions for the initiative in the Walsh act (Pamph. L. 1911, p. 462) to make it possible to change fundamentally the scheme of government with power concentrated in the commissioners therein provided for, and again scatter the powers among different boards.</p> <p>2. The act to establish an excise department (Pamph. L. 1901, p. 239; Comp. Stat., p. 2918) is superseded by the Walsh act (Pam/ph. L. 1911, p. 462) in cities which adopt the latter.</p>

<p>1. A conviction setting forth that the defendant operated an automobile on High or Main street in the town of Mount Holly, township of Northampton, &c., while under the influence of intoxicating liquor, sufficiently shows a violation of the act of 1913 without finding that High or Main street was a public street.</p> <p>2. A defendant who desires to object to the jurisdiction of a magistrate on the ground of bias, should do so before the trial or argument.</p>

<p>By virtue of, the act of 1916 (Pamph. 1p. 525), an ordinance for the issue of municipal bonds is conclusively presumed to have been duly and regularly passed and to comply with the provisions of the statutes; and its validity cannot be questioned except in a suit, action or proceeding commenced prior to the expiration of the twenty days after tile first publication of the statement required by the act. Held, in an action commenced after the expiration of the twenty days, that the conclusive presumption applies to a case where the municipality had lawful authority to make the improvement at the time proposed for the issue of the bonds although not at the time of the first publication of the ordinance and that the, validity of the ordinance could not be questioned.'</p>

<p>On certiorari.</p>

<p>1. Proceedings under the act of 1915 (Pamph. L., p. 261) for illegal practice of dentistry are essentially a civil suit, subject to the procedure of the court in which they are brought. The defendant is entitled to jury trial if demanded.</p> <p>2. In a complaint under the act of 1915 (Pamph. L., p. 261) for illegal practice of dentistry, it is enough to charge illegal practice in the language of the statute without setting forth specific-instances, to aver that the illegal practice was during a named month without specifying the days, and that it was at defendant's office in a named city .without further specifying the place.</p> <p>3. The legislature may authorize imprisonment for non-payment of penalties imposed for offences that involve injury to the public.</p>

<p>1. Under section 39 of tlie Tax act (Comp. Stat., p. 5124), an assessment for taxation cannot be set aside for irregularity or defect in form or illegality in assessing, laying or levying tlie tax, if, in fact, the person so assessed is liable, to taxation in respect of the purpose for which the tax is levied.</p> <p>2. An assessment of taxes cannot be set aside on certiorari on the ground that tlie aggregate amount of money levied or assessed in any taxing district for taxes is greater than called for by the law or resolution granting it. Comp. Stat., pp. 5121, 5122.</p>

<p>1. The legislature cannot' deprive a man of his right to be indicted by a grand jury in case a charge of a crime at common law is made against him by enacting that his conduct shall make him a disorderly person punishable in a summary manner under the Disorderly Persons act.</p> <p>2. The question whether the offence with which a man is charged is a crime at common law, cannot be made to depend on a mere matter of nomenclature. It depends on the real ca.se presented.</p> <p>S. One who, when “good and drunk,” drives a large automobile on a public street of a city, and through the front window of a saloon, breaking the glass and framework of the window, and driving the front of his car to the front of the bar, is guilty of a public nuisance at common law.</p>

<p>The Orphans’ Court has no jurisdiction to make an order for discovery of assets, upon the petition of an executor of a nonresident decedent, when letters testamentary have not been issued out of such court.</p>

<p>The act of 1885, requiring the payment of a percentage on premiums received by foreign fire insurance companies for the benefit of firemen’s relief associations, does not authorize the Court of Common Pleas to impose the penalty or forfeiture therein provided for, or to enter a judgment for damages by summary proceedings.</p>

<p>'Set-lion 27 of the Township act (Comp. Stat., p. 5582) enacts that at the annual election at which appropriations for township purposes are voted upon, a majority of all votes cast shall be required to determine the amount of money to be raised for such purposes. At an election held for that purpose, votes were cast for two different amounts for each specified object, and neither amount, taken by itself, had either a majority of the voters who voted at the election, or a majority of the votes cast on the ' question of appropriations. Held, that the method of determining which sum was adopted, is to add all the affirmative and negative votes on both propositions to find the total vote, and, as no sum received a majority, if only the affirmative votes for each proposition are considered, yet, as it is clear that all who voted for the larger sum voted for the smaller sum and something more, the two affirmative votes should be added together and counted for the smaller sum.</p>

<p>On. mandamus, return and plea thereto.</p>

<p>On appeal from the Burlington Common Pleas Court.</p>

<p>1. On a prosecution for keeping a disorderly bouse, evidence of acts and conduct upon the part of tbe defendant tending to show that be was occupying the bouse and using it as his own, and exercising the same control over it that men usually have over their own houses, is sufficient to authorize tbe jury to find that he kept tbe house.</p> <p>2. On a prosecution for keeping a disorderly bouse, evidence that the defendant exhibited at his house a chart showing horses’ names, where running, and the odds that he laid against them ; that his patrons there present delivered to him the money which they bet, together with slips recording their names, the horses’ names, and the odds; and that when his patrons won the defendant paid the winnings, is sufficient to justify the jury in finding that betting upon lior.se racing was carried on, even though there was no more definite proof that the races had been actually run.</p> <p>■8. On a prosecution for keeping a disorderly house, testimony given by detectives in the employ of the state .that bets on horse races were made by them, and by others in their presence, with the defendant at his house, was competent evidence, its weight and credibility being for the jury to determine.</p> <p>4. Although certain sentences in a charge, taken alone, need some amplification to render them accurate, yet if such amplification be given in the context, so that the jury cannot be misled, there is no error justifying reversal.</p> <p>5. On a prosecution for keeping a disorderly house, the state asked a witness. “I)o you know where this defendant’s place is?” Against the defendant's objection, the judge directed the witness to answer “yes or no.” The witness answered “Yes.” Then without any further objection the state asked “Where?” and the witness answered “800 Park avenue, Hoboken,” and gave testimony as to the presence, acts and conduct of the defendant there (no part of which defendant denied), from which the jury could and did find that the defendant kept the house. Held, that even if the question objected to was improper, it could not have prejudiced the defendant in maintaining his defence upon the merits, and so should not result in a reversal.</p> <p>(i. Ppon trial o-f an indictment, where the defendant fails to testify in his own behalf to deny inculpatory facts, which if false he must know to be so, it is proper for the trial judge to call attention to his failure to testify.</p>

<p>1. In a proceeding for the taking of lands under the Eminent Domnin act, the omission as parties of owners of land in whose * favor an easement of way exists across the land to be taken, will not entitle the general owner to have the order for appointment of commissioners set aside.</p> <p>2. Under the Street Railway act of 1893 (Comp. Stat., p. 5021). the necessity for the taking of lands exists when it appears that they are required for a route lawfully filed, and otherwise complying with the statute.</p> <p>3. The fact that, the taking is ip pursuance of a general project, involving with the creation of new highways in a municipality the removal of a railroad terminal and trolley terminal, so as to connect detached sections of a university campus, does not deprive the improvement of its public character.</p> <p>4. The change of' a trolley terminus to a new site, and its connection with the existing line at a convenient point, involves the building of a new line in a sense covered by sections 6 and 13 of the Street Railway act of 1893.</p>

Oil rule to show cause wliv service of summons should not be set aside and cross-motion to permit issue and servid' of new summons.

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

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

<p>Where a petition for a license to keep an inn and tavern was in the usual form, excepting a provision attached thereto reciting that the locus in quo is “a picnic or recreation ground of more than one acre,” and there was evidence before the Court of Common Pleas from which that court might properly conclude that the locus in quo was of such character, the license so granted, although in the usual form for the keeping of an inn and tavern, is, in fact, a license for “a picnic or recreation ground comprising at least one acre” under the exceptions mentioned in chapter 280 of the laws of 1913 (Pctmph. L., p. 574), which is intended to limit the granting of licenses for inns and taverns according to a basis of five hundred of population to one inn or tayez-n.</p>

<p>1. The'act of 1916 (Pamph. L., p. 282), requiring tlie owner of jitney busses to comply with certain legislative regulations, and to pay a specified tax into the treasury of the city in which they are operated, imposes a si a to-vide policy of regulation upon all subordinate governing bodies, in the use and regulation of such a method of transportation, but it contains nothing in its provisions to indicate that it vas the legislative purpose to repeal the powers of regulation theretofore conceded to municipalities by their respective charters.</p> <p>2. In the absence of an express intent to repeal, or of a legislative intent to deal de novo with the entire subject, evinced by the existence of incongruous enactments, demonstrating ex necessitate the legislative purpose to supersede existing legislation by the later law, a repeal by implication is not favored.</p>

<p>1. Where the justice and legality of the claim of the widow of a policeman, against a hoard of police commissioners, for a pension, liave been established subsequent to an adverse ruling on her claim, lmt which ruling was made without giving her an opportunity to be heard, and the result of which she was in ignorance except for having- learned of it some time thereafter in the newspapers, and it appearing that, after learning of such adverse action, she had made endeavors to have the matter reheard, the defendant cannot invoke the equitable doctrine of estoppel or laches, based upon its manifest improper deprivation of the right of the prosecutrix to an existing legal claim, which, but for the initial error in procedure, would have been terminated in her favor.</p> <p>2. Laches under any circumstances is a relative term and is invoked upon equitable considerations to prevent injustice by unsettling-rights which have accrued during an interval of apparent repose, due to a claimant’s inexcusable inaction.</p>

<p>1. By the provisions of section S of Pamph. L. 1911, p. 471, commonly known as the “Walsh act,” the adoption by any city of the provisions of that act results in the confirming- and validating of such local legislation as the city governing body had passed and which is then in operation in the municipality.</p> <p>2. A prosecutor of a writ of certiorari is too late to be beard to complain of alleged informalities and irregularities in the procedure of the adoption, of a building code ordinance twelve years after its adoption, and under which ordinance citizens of the municipality, affected thereby, have expended their means and conformed their building operations to comply with its provisions.</p>

<p>1. The fact that a superior officer, in whom the law lias vested the authority to try his subordinates upon charges preferred against them, has, on previous occasions, reprimanded or disciplined them for delinquencies in the performance of their duties, does not, per •s-e. in the absence of a statutory mandate forbidding it, disqualify such superior officer from trying them on charges duly preferred against them.</p> <p>2. A director of public safety, in a city governed under the provisions of the “Walsh act,” has the power, sitting alone, to try a member of the police department on charges preferred against him, where the board of commissioners have, by resolution, and in accordance with the provisions of Pamph. L. 1915, p. 494, amending section 4 of Pamph. L. 1913, p. 836, conferred upon such director the judicial powers exercised by him.</p> <p>3. The admission of illegal testimony, in cases tried by a special tribunal, such as a city commission, will not have the effect to invalidate the findings of that tribunal so long as it appears that there is competent testimony in the case to support such findings.</p>

<p>1. Where, in a suit brought under the Workmen’s Compensation act, an award is made, based on a finding- of total disability, and it appears that a year and a half after the award the petitioner’s earning' capacity had been fully restored, it was erroneous for the Court of Common Pleas to - refuse an order modifying- the original award, as provided by section 21 of the act. Pamph. L. 1911, p. 143.</p> <p>2. The basic principle of the Workmen’s Compensation act is indemnity. Therefore, when it appears, in a case where an award has been made, that the incapacity upon which the award was based had diminished or ceased, it becomes the duty of the court, upon proper application, to interfere and grant relief.</p>

On certiorari. At a general election held in Hudson county on November ?rh. 19.16, the prosecutor and Henry Ackerman, the defendant. were opposing candidates for the office of boulevard commissioner. The eoiurly board of elections, having canvassed ihe vote, declared on December 4th, 1916, that the prosecutor had a majority of twenty-two votes over the defendant Ackerman, and issued to the prosecutor a certificate of election as boulevard commissioner.

<p>1. It is competent, for a reinsuring company to agree to be directly liable, to a policy bolder, by the terms 'of the reinsurance agreement. In this case, the defendant company became directly liable to the plaintiff. A complaint, with the reinsurance agreement attached- and made a part thereof, which alleges that the defendant company assumes all liabilities, &e., is sufficient.</p> <p>2. A suit in the District Court between the same parties, to recover a balance due under a contract, is not res adjudicate,, in a suit to recover for damages exceeding $900, on. a bond against the surety of the contract.</p>

<p>1. The Town of West Hoboken under Pamph. L. 1911, p. 531, ch. 250, has no authority to build a town hall.</p> <p>2. The words in that statute, “other municipal purposes.” under the rule of construction known as ejwsdem generis, refers to building's of the same class or of the same general character as those enumerated in the statute.</p>

<p>A general demand for a jury made two days before the time fixed for trial, whenever that may lie, with proper notice to the clerk, is sufficient- The' demand does not have to be for the return day or any particular day, but if given for a specific date, which would normally be the day for trial, it is valid if the required notice be served as directed by the statute.</p>

<p>1. Where it appears from the evidence that the place where an accident happened was a portion of the ferry premises as actually used by a ferry company, and with respect to which, therefore, it was the duty of the company to exercise reasonable care to make the premises safe for the use of its passengers, it is not a defense in an action for damages resulting to a passenger from want of repair that the locus in quo was not within the premises demised to the ferry company.</p> <p>2. Where an accident happens in another state and the injured party sues for damages resulting from that accident in a' court of this state, and it is not shown that in the situation presented there could be no recovery as matter of law in the state where the injury happened, and there is sufficient evidence to go to the jury upon the question of damages having been sustained by the plaintiff, the less fori governs.</p>

<p>1. Where one party recovers judgment against another and the defeated litigant commences suit against his adversary for damages for an alleged conspiracy, and the procuring of false testimony to be given, in the very suit in. which the recovery was had, these matters, having been available as defences in the .suit and on rule to show cause why , a new trial should not be granted, cannot be made the basis of recovery—the doctrine of res adjudicada being applicable.</p> <p>2. A court of appeals need not, but may, decide questions on a record before it which were not raised in a court below; and it is the constant practice of appellate courts to notice and decide on questions of jurisdiction and public policy, without those questions having been raised below.</p> <p>3. A court of appeals may affirm, a judgment, on ground other than that upon which the decision was rested in the court below, if the decision be correct.</p>

<p>1. Whenever words clearly sound to the disreputation of the plaintiff they are defamatory on their face and actionable per se.</p> <p>2. A suit lies for words actionable per se without proof of special damage.</p> <p>3. Conflicting testimony is always for the jury.</p> <p>4. A question not presented and argued in the court below will be held to have been waived and abandoned, and will not be considered in an appellate tribunal.</p> <p>5. The present practice requires that a defendant’s answer must specifically state any defence which, if not stated, would raise issues not arising out of the complaint.</p>

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

<p>1. In an action brought to recover damages for a nuisance created and maintained1 by the defendant in the building of an embankment along a public highway, thereby interfering with plaintiff’s full use of the highway, the recovery by the plaintiff must be ' confined to the damage sustained up to the time of the commencement of the suit, for the reason that since the creation of the obstruction was an illegal act it is not to be assumed that the unlawful condition created was a permanent one, no matter what the character of the obstruction might be. In such a case a prior recovery does not preclude a recovery for damages sustained because of the continuance of the obstruction after the commencement of the prior action.</p> <p>2. The general rule that a person suffering from a nuisance created by another is under a duty to take proper measures for the lessening of the damages resulting therefrom, is not so far reaching in its effect as to relieve the wrong-doer from the responsibility for the existence of such conditions and to impose it upon the innocent sufferer by requiring him to assume that the creator of the nuisance will continue indefinitely to maintain it in violation of law, and, upon this assumption, oblige him to alter or add to the buildings upon his property for the purpose of adapting it to those conditions.</p> <p>3. When, in an action for damages, the fundamental question involved was whether or not a structure, maintained by- the defendant, was a nuisance, and the question was resolved in favor of the plaintiff, the matter is res judicata between the parties in all subsequent litigation arising out of the maintenance of the structure.</p> <p>4. There is nothing in section 30 of the Railroad act (Panvph. L. 1903, p. 661) which permits a railroad company and a municipality to agree that the former shall erect and maintain a nuisance in a public highway.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 592.</p>

The Supreme Court upon certiorari sustained the award of a municipal contract to William T. S. Crichfield in the following per curiam: f‘We think the specifications furnished a common standard for bidding.

This is an appeal from a judgment of Hie Supreme Court affirming an assessment of taxes for the year 1914, levied by the Passaic County Board of Taxation against the appellant under the provisions of chapter 90, laws of 1914, regulating the taxation of bank stock.

<p>On appeal, from the Supreme Court, whose opinion is reported in 87 N. J. L. 371.</p>

Tills is an action under the Federal Employers’ Liability act to recover damages for the death of a servant of the appellant resulting from the negligence of that company while engaged in interstate commerce, in which it employed the plaintiff’s intestate. The interstate commerce in which the appellant was engaged consisted in the carriage of steel girders from a point in the State of Delaware to a point in the State of New York.

<p>A decree of the Orphans’ Court, barring creditors who have failed to present their claims within the time limited by a previous order of the court, bars a creditor from any right of action against the executor or administrator, founded upon a claim that might have been presented within the time so limited.</p>

<p>On error to the Supreme Court, whose opinion is reported in 89 N. J. L. 29.</p>

Oil appeal’from an order made by the Chief Justice. Application was made by the defendant to the Chief Justice, as one of the justices of the Supreme Court, for the allowance of a writ of habeas corpus cum causa to remove a suit from the Essex Common Pleas to the Supreme Court. No reason was assigned for the removal. The Chief Justice denied the application and the defendant appeals.

<p>'1. Where damages may be sustained by the breach of a single stipulation, and are uncertain in amount, and not readily susceptible of proof under the rule® of evidence, then, if the parties have agreed upon a sum of money for such breach and that sum is not disproportionate to the presumable loss, it may be recovered as liquidated damages.</p> <p>2. Where in a suit for compensation tinder a building contract which provides for the completion of the building at a specified time, and that for.every day’s delay in completion the contractor shall pay the owner $15 as liquidated damages', and the contract also provides that there shall be no extension of time unless (1) the delay is caused by the neglect or default of the owner, and unless (2) a written claim for extension is presented to the architect within forty-eight hours after the occurrence of the cause, and it appears on trial that performance was delayed, then the burden of proving that the delay was caused by the owner and that such claim for an extension was made, is upon the contractor.</p> <p>3. The powers of an architect under whose direction a building- is being erected, and the force and effect of any certificate he may give, are determined strictly by the contract.</p> <p>4. Where in' a suit for compensation under a building contract it appears that by the contract the architect had power by his certificate to determine conclusively that the contract had been completed, but had no power to determine how much the contractor upon completion was entitled to be paid, the mere written request of the architect that the owner pay a certain named sum to the contractor on the completion of certain substantial items therein specified, is no bar to the owner’s counter-claim for damages for delay in completion.</p>

<p>1. Where a defendant in an action in the Supreme Court, tried at Circuit, elects to apply for and obtain a rule to show cause why a new trial shall not be granted, and no points are expressly reserved in the rule,, he is barred from taking or prosecuting an appeal except upon matters of law arising upon the face of the record.</p> <p>2. On defendant’s rule to show cause why a verdict in the Supreme Court should not be set aside as excessive and a new trial granted, that court has power, in the exercise of its discretion, to give the plaintiff the option of accepting a reduced verdict, or being put to a new trial. This power exists not only in actions based upon contracts, but also in actions for unliquidated damages for torts, and when, in such a case, the plaintiff has filed a remittitur of so much as the court deemed excessive, and judgment has been entered for. the reduced verdict, this court will not review the action taken by the Supreme Court on the appeal of the party in whose favor the reduction was made.</p> <p>3. Although the appellate court has the power to dismiss an appeal which is manifestly and palpably frivolous and without merit, it will not, as a rule, dismiss on such ground, in the absence of a motion for that purpose, but will affirm the judgment below.</p>

<p>1. In-order that an individual may maintain an action for a, public nuisance, lie must prove that he thereby suffers a particular, direct and substantial injury. Citing 19 E. R. C. 263.</p> <p>2. A riparian owner on a navigable stream suffers no peculiar injury as such because the stream has been made less pleasant for boating, fishing, and bathing. The injury to him is the same as that to any other member of the public, and for the reason that his right, qua riparian owner is that of access, and not a special right to use the stream in anj' different manner than others may use it.</p> <p>3. A judgment for appellant for nominal damages, although erroneous, will not be reversed if he was not entitled to any damages.</p>

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

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

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

<p>1. In a prosecution for violation of section 119 of the Crimes act by procuring the “miscarriage of a woman pregnant with child.” it is not necessary to show that the woman was quick with child but it is sufficient if it appears that conception had taken place . and gestation was in progress.</p> <p>2. Where in a trial for abortion, in which the state claimed that the fost'tis had been expelled by the female, the state introduces direct evidence of the sexual intercourse with defendant on more than one occasion, of the subsequent cessation of menses, and of nervous functional disturbances, which, in the opinion of experts denoted probable pregnancy, there was sufficient proof to justify the jury in finding that pregnancy existed.</p>

<p>Rule 80 of the Supreme Court declares that a frivolous or sham plea may be stricken out, upon proper affidavit in support of a motion for that purpose, unless the defendant by affidavit or other ' proof shall show such facts as' may be deemed, by the judge hearing the motion, sufficient to entitle him to defend. Under this rule the finding of the judge must be taken as true until the contrary appears, and this is so when an appeal is taken from such an order a® permitted by section 15 of the Practice act of 1912.</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 the Warren County Circuit Court.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 55.</p>

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

<p>The plaintiff leased certain premises, in the city of Newark from defendant, and having occupied under the lease for a period, attempted to induce the landlord to accept-a surrender of the same, which the latter declined to do. The plaintiff then abandoned the premises, and the landlord after an interim of two months, during which the premises remained unoccupied, rented them for a period of years, at an increased rent. The plaintiff basing his complaint on the doctrine of assumpsit, instituted suit for the recovery of the excess rent l'roin the landlord; the complaint on motion was stricken, out, as not alleging a valid cause of action. Held, that since the plaintiff had abandoned the premises, he could claim no interest, either upon the theory of privity of estate or privity of contract, above the amount of rent for which he was obligated under his covenant. If eld, further, that since the doctrine of assumpsit is based upon an implied promise invoked by the law, upon equitable considerations, it can lend no support to a claim by one who while he repudiates his express covenant, seeks at the same time to invoke it as a basis for a claim to incidental profit.</p>

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

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

<p>1. The owner of a house, which was set on fire by sparks emitted from a locomotive engine of the defendant company, received a sum of money, from an insurance company, giving the latter a subrogation receipt. He then brought an action against the railroad company for the entire loss, which was settled by payment of the total loss, less a certain sum, fixed as the amount paid by the insurance company. The insurance company subsequently brought an action against the railroad company to recover the amount paid by it upon the insurance policy, and the railroad company asked for a nonsuit, because it appeared that another action had been begun and determined for the same loss. Held, that the former action and settlement thereof was not a bar to the action by the insurance company.</p> <p>2. The statute limiting the time within which an action for damages for fire occasioned by sparks from a locomotive engine shall be'brought, does not require the prosecution of the action to be brought to a finality within the statutory period fixed for the bringing of the suit.</p> <p>3. Where, at the trial of an action against a railroad company for damages occasioned by the emission of sparks from a locomotive, there was testimony adduced by the defendant company, that the spark arrester of the locomotive which caused the fire was inspected, and found in good order, and there was also testimony that the same engine had set another fire, and an expert further testified that where fires repeatedly occur through sparks escaping from an engine, it is evidence that the engine is not in proper order, the question of negligence of the defendant company was properly submitted to the jury.</p>

<p>On error to fclie Supreme Court, whose opinion is reported in 88 N. J. L. 48.</p>

<p>Under an act concerning' public utilities (Pamph. L. 1911, p. 874, oh. 195, § 88) the Supreme Court is given jurisdiction to review the orders of the board of public utility commissioners and to set aside or affirm the orders in-to to, hut the Supreme Court has no power under said act, either to revise or modify an order of said board.</p>

<p>A municipal corporation may be liable for work done and materials furnished it, by an unauthorized agent, when the contract for such supplies is one that is within the scope of its corporate powers. An agency in such a case may, by implication, be created in fact, by the conduct or acts of the parties, and the contracts of such an agent may, by like conduct and acts of the parties, be, by implication, ratified by the municipality.</p>

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

<p>1. A judgment or decree entered in the courts of the state of Iowa, under proceedings to foreclose a mortgage and for the redemption of the land, by paying the amount due on a judgment, such decree and proceedings are prima, facie evidence of the validity, of the mortgage, of the amount due thereon, of the lands upon which the same were a lien, of the extent of the lien, and of the right of redemption. This is so, when such judgment or decree is put in evidence, in a suit brought in the New Jersey courts, to recover damages for a breach of the covenants against encumbrances, contained in deeds conveying the lands covered by the mortgage foreclosed.</p> <p>2. Remedies are to be regulated and pursued according to the lesa fori, the law of the place where the action is instituted.</p> <p>3. There is no statute of limitations in New Jersey, in an action for breach of a covenant against encumbrances.</p> <p>4. Actual eviction is not necessary, before an action will lie for the breach of a covenant against encumbrances. It is sufficient that eviction may take place.</p>

<p>On appeal from the Supreme (Yuri.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 69.</p>

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

<p>The judges being equally divided on the question whether the judgment should be reversed, the judgment is affirmed solely because of such division, which renders any opinion by the court impossible.</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>

‘'As the ear approached a station the guard opened the door, and, as the car was passing around a curvo in the track, the plaintiff was thrown off his balance, and in order to save himself from falling, put his hand against the jamb of the door, and that closing, because of the swing of the train, his hand was caught and the injuries produced for which this suit was brought.

The relator claims to be entitled to it by virtue of an appointment made by the board of chosen freeholders of the county on the 13th of April, 1913, and that as an exempt fireman he was entitled to hold the office during good behavior.

In such a contract much must necessarily be left to the judgment of the city authorities, such as the streets to he paved. Fo doubt this opens the door to favoritism, but wo have no right to assume that the selection of the streets to he repaired at any particular time will he governed by any consideration except the public need. “The extent of the obligation under the maintenance bond will depend on the amount of work done, and we see no valid objection on this score.

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 4.</p>

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

66 and costs. The case was tried by the court, sitting without a jury. “The appellant urges three grounds of reversal of the judgment—first, the refusal of the trial court to grant a motion for a nonsuit; second, the refusal of the trial judge to find for the defendant; third, that the court improperly allowed punitive damages; “We think the motions for a nonsuit and to find for the defendant were properly refused.

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 490.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 32.</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 89 N. J. L. 385.</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 the Supreme Court.</p>

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

“This action was brought on a policy of insurance issued to the plaintiff by the defendant company against, among other things, loss by theft or robbery, the basis of the action being a loss by theft or robbery. The plaintiff 'had a verdict and the defendant appeals.

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 481.</p>

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

“The first point is, that the conviction rests alone upon the unconfirmed testimony of three boys who stole and sold brass auto lamps to defendant. It is not necessary to consider the legal effect of ibis because it is not raised by any exception. It goes to tlie legal effect of the testimony and there was no motion for direction or request to charge which raised this question.

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

<p>On error to the Supreme Court, whose opinion is reported in 89 N. J. L. 48.</p>

<p>On error to the Supreme Court, whose opinion is reported in 88 N. J. L. 416.</p>

<p>On error to the Supreme Court, whose opinion is reported in 88 N. J. L. 460.</p>

<p>Oil error to the Supreme Court, whose opinion is reported in 89 N. J. L. 127.</p>

■ “The prosecutrix owns lands adjoining the avenue. Her status to prosecute the writs is not questioned. “It is conceded that the ordinances are-intended to accomplish part of a general scheme of abolishing certain grade crossings of the Delaware, Lackawanna and Western Railroad Company, one of the defendants. “The township of Millburn entered into an agreement with the Delaware, Lackawanna and Western Railroad Company, providing, among other things, for the elimination of…

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

<p>On motion to non pros.</p>

<p>When a judge is trying a ease with a jury, his opinion as to the sufficiency of the plaintiff’s proofs, whether communicated, to counsel or not, does not deprive the plaintiff of his right to submit to a voluntary nonsuit at any time before the jury has retired to consider its verdict or the judge has commenced to address the jury for the purpose of directing a verdict.</p>

<p>The act of 1906 (Pamph,. L., p. 644) requiring- an annual franchise tax upon the annual gross receipts of any street railway corporation or upon such proportion of such gross receipts as the length of its line in this state upon any street, highway, road, lane or other public place bears to the length of its whole line, clearly requires that the tax should be calculated upon all gross receipts, irrespective of whether or not they are receipts for transportation, and was intended to provide a specific scheme for the taxation of the street railway corporations and to differential e . such corporations from corporations liable to the franchise tax under ihe act of 1903. Pamph. L., p. 232.</p>

<p>1. A claim for compensation under the Workmen’s- Compensation act is 'barred by the lapse of one year from the date of the accident unless a petition is filed or an agreement for compensation payable under the act, is reached within such time. Neither the payment by the employer of the physician’s bill for attendance during the first two weeks of disability nor -an. agreement that there shall be “no compensation” can properly be called an agreement such as may be reviewed by the Court of Common Pleas, under the authority of paragraph 21 of the act, on the ground that the incapacity of the injured employe lias subsequently increased- or diminished.</p> <p>2. A case under the Workmen’s Compensation act, solemnly adjudicated on a peiition and agreed statement of facts, should not be reopened for the purpose of allowing a party to make a new and disünot case.</p>

<p>1. In a suit by a broker for commissions, alleged to be due for the procuring of a sale of real estate under a written agreement, where it was a disputed question whether the agreement had been abandoned by consent, such a question was a proper one for the jury.</p> <p>2. In the absence of a special agreement, a real estate broker, acting by virtue of a written agreement, earns his commission when he secures a ready and willing purchaser, brings the parties together and gets them to make a binding agreement.</p>

<p>On cerliorari.</p>

<p>On certiorari of assessment for benefits.</p>

<p>On certiorari.</p>

<p>1. Under section 10 of the School law (Comp. Stat., p. 4727) the commissioner of education has jurisdiction in controversies involving the removal, by a local board, of a person from -a position existing under the School law.</p> <p>2. The hearing by the commissioner of education in any controversy or dispute of which he has jurisdiction by virtue of the provisions of section 10 of the School law, is a new hearing, and he is not limited to a mere review of evidence taken before the local board.</p> <p>3. The action of the state board of education in setting aside the removal of a person from a position existing under the School law, has the effect of a judgment, and a mwndmivus will issue thereon in a proper casé, commanding the payment of the salary diue such person. Such a case is presented when it appears that he has always been ready and willing to perform his duties and that there are funds in hand applicable to the payment of the amount due him.</p>

<p>3. A corporation aggregate may be held criminally for manslaughter.</p> <p>2. An indictment in the statutory form charging- a corporation aggregate with manslaughter will not be quashed for failure to specify whether voluntary or involuntary manslaughter is meant.</p>

<p>It is no valid objection to an indictment, that the foreman of the grand jury which found it was at the time a candidate for the office of freeholder, and, in his canvass, had suggested that the members of the existing board, of whom the defendant was one. were not to he trusted with the management of the, county government, when neither malice nor ill-will is averred.</p>

<p>1. Where a traction company seeks to withdraw the sale of six tickets for a quarter and charge a straight five-cent fare, such withdrawal is an increase in rate sufficient to give the public utility commission jurisdiction to pass upon the same under section 17, paragraph “h” of the Public Utility act. Pam.ph. L. 1911, p. 380.</p> <p>2. A resolution, adopted by the board of directors of a traction company, directing its officers to execute, with a municipality, immediately after the passage, by the municipality, of a'new ordinance which would be less harmful to the company’s interest, an agreement, already prepared (a copy of which was set forth in the resolution), providing for a fixed rate of fare to be charged on its ' lines, and in consequence of which resolution the ordinance in question was passed, constitutes a binding and valid agreement, notwithstanding that the agreement in question was not signed by the officers of the traction company as directed by the resolution.</p> <p>3. The benefit to the traction company of what wag omitted from the ordinance, in the way of drastic provisions inimical to its interests, was a sufficient consideration for the agreement.</p> <p>4. Whether the mere act of passing the ordinance in pursuance of the agreement would be a sufficient consideration, in a legal sense, quiere.</p>

<p>An assessment by commissioners of a borough, which included assessments for laying out and opening a new street and the improving of such street, as well as tlie cost of sidewalk construction, will be, set aside, since separate assessments of damages or benefits for each improvement should have been made under section 33 of ihe Borough act. Comp. 8tat., p. 244.</p>

<p>1. A carrier owes to its passenger the duty of protecting him from the violence and insults of other passengers, so far as this can be done by the exercise of a high degree of care, and it will be held responsible for its servant’s negligence in this particular when, by the exercise of proper care, the act of violence might have been foreseen and prevented.</p> <p>2. The failure of the servant of a carrier to prevent the commission of an assault upon a passenger by another passenger, to be a negligent failure or omission must be a failure or omisison to do something which could have 'been done by the servant; and, therefore, there is involved the essential ingredient that the servant had knowledge, or with proper care could have had knowledge, that the tort was imminent, and iliar he bad tbat knowledge, or bad tbe opportunity to acquire it, sufficiently long in advance of its infliction to have prevented it with tbe force at his command.</p> <p>3. In passing upon a motion for the direction of a verdict, tbe court cannot weigh the evidence, but is bound to concede to be true all evidence which supports the view of the party against whom the motion, is made, and to give to liim the benefit of all legitimate inferences Which are to be drawn in liis favor.</p> <p>4. The fact that a passenger was intoxicated to the knowledge of the carrier's conductor, the fact that lie had repeatedly insulted a woman passenger in the presence and hearing of the conductor, and immediately after the last insulting remark arose from his seat and struck her twice, all without any word of admonition or protest by the conductor or attempt upon, his part to prevent the assault, although he was throughout within arms’ reach of the drunken man, are circumstances from which the jury could properly infer that with proper care upon the part of the conductor the act of violence might have been foreseen and prevented.</p>

<p>On writ of error.</p>

On appeal of the First National Bank of Sea Bright from a rule of the District Court, first judicial district of Monmouth county, making absolute a rule to. show cause why said bank should not be required to pay to the sergeant-at-arms of said court the amount of a money balance to the credit of the defendant, in part satisfaction of an execution issued under plaintiffs judgment in this cause.

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

<p>While a municipal office may be abolished by the municipality for economical or beneficial reasons, and the incumbent deprived of his office, although protected by a tenure of office statute, .that end cannot-be accomplished by a removal from office contrary to the terms of such a statute, when such action leaves the office in existence and only brings about the creation of a vacancy to which another may be appointed.</p>

On certiorari to review conviction of violation of health code of Atlantic City.

<p>On certiorari.</p>

<p>A municipality cannot lawfully reject the bid of the lowest bidder, where the law requires the awarding of a contract to the lowest responsible bidder, upon the ground that he is not responsible, without giving him a hearing, and a finding that he is not responsible rested upon proper facts.</p>

<p>On certiorari.</p>

<p>1. An illegitimate child of the daughter of an injured workman is not a dependent of the daughter’s father as defined in the Workmen’s Compensation act of this state.</p> <p>2. The illegitimate child of a deceased workman’s daughter is not a grandchild of such workman within the meaning of the statute.</p>

<p>Where the incumbent of the office or position of health officer of a city brought a writ of certiorari to set aside a decision of the civil service commission, that another person he reinstated to the office or position, and I he court of first instance fully considered the relative rights of the two persons, deciding that the incumbent was not entitled to hold the office or position but that his opponent was, and dismissed the writ, and on appeal the appellate court affirmed the judgment of the lower court on the ground that certiorari was not the proper remedy, and that the most the incumbent was entitled to was a mandamus to the civil service commission to certify his compensation; in a subsequent proceeding to determine the right to the same office, in the same court, the doctrine of stare decisis will be applied, and the right to the office or position will be determined in accordance with the prior decision.</p>

<p>1. The fundamental rule, pervading all exemptions from the general tax burden of the state, is that they are not favored by the law unless the statute invoked to support them expresses the legislative intention in clear and unmistakable terms.</p> <p>2. It is not reasonable to assume that the power conceded by the legislature to cemetery associations, for the purpose of the protection, under proper management, of the bodies of the dead, is so comprehensive in scope as to enable them to purchase tracts of land, and to hold them unimproved and undeveloped for any purpose out of the taxable assets of township, county and state assessments.</p> <p>3. Where property, held by a cemetery association, presents no indicia of ad uni use or of. reasonably contemplated use, within the statutory purview, such property should not be exempted from taxation.</p> <p>4. Whether a company, formed under the General Corporation act for general business, may exercise the power and claim the privileges expressly conferred by exceptional legislation upon a distinctive species of corporation, created for the purpose of performing a g«osi-public function, and existing specially for the purpose therein prescribed', quwre?</p>

<p>1. A declaration, by the husband of the then owner of land, that if he opened streets through it the opening would conform to a certain map, lacks the essentials of a legal dedication—first, because it is not made by the owner of the locus, and secondly, because at most it is but a promise or agreement to dedicate in futwo.</p> <p>2. The declared object of the Fielder Grade Crossing act (Pamph. L. 1913, p. 91) is to protect the public from danger incident to grade crossings. Consequently, where it appears that the danger incident to a proposed grade crossing can be obviated by a slight change in the line of streets, which can be made to practically serve the public use and convenience, the adoption of such a plan would seem to present a satisfactory substitute, and the permission granted .by the Public Utility Commission for the construction of such grade crossing should 'be vacated.</p>

<p>On certiorari.</p>

<p>1. Whether,' in a proceeding under the Workmen’s Compensation act there was a prior agreement between the parties to make compensation, under the statute, without resorting to the Court of Common Pleas by petition, is a mixed question of law and fact; and where there was testimony to the effect that the employer . agreed to and- did pay the petitioner periodically one-half of his weekly wages for some time after the accident, and' also medical expenses incurred as a result of the petitioner's injuries, .the trial judge was justified in finding that there was such an agreement.</p> <p>2. An agreement, made within a, year after an accident, between any employer and employe, for compensation due under the Workmen’s Compensation act,"for a less sum than that which may be determined by the judge of the Court of Common Pleas to be due, is a sufficient agreement under the act to relieve the petitioner of the duty of bringing his action within one year or otherwise 'be barred of his action.</p>

<p>1. The amendment of 1913 (Pamph. L., p. 302), amending paragraph 12 of the^. Workmen’s Compensation act of 1911 (Pamph. L., p. 134), provides that if the widow óf a deceased employe remarry during the period covered by weekly payments, the right of the widow “under this section shall cease.” Held,' that' a widow, whose husband was killed prior to the passage of the amendment of 1913, leaving her as his sole dependent, acquired a vested right to compensation during three hundred weeks, which could not be legally abridged by subsequent legislation, and did not, by her subsequent remarriage, forfeit her right to recover compensation payments for the full period fixed by the statute.</p> <p>2. Though a widow remarried, she did not thereby cease to be the widow of the deceased husband.</p>

<p>On certiorari.</p>

<p>1. A crossing flagman, employed by a railroad company engaged in interstate and intrastate commerce, was struck and killed by- the engine of a train engaged in. interstate commerce. Held, that the Court of Common Pleas of New Jersey is ousted of jurisdiction to award compensation under the New Jersey Workmen's Compensation act. The Federal Employers’ Liability act is exclusive.</p> <p>2. Although the .findings of the Court of Common Pleas as to the facts in workmen’s compensation cases are conclusive on appeal, nevertheless the law arising upon undisputed facts is a question of law for the court reviewing the decision to dtecide.</p>

<p>On certiorari.</p>

<p>1. It is- for the jury to say what weight shall bo given, to the testimony of a witness, having an opportunity to hear, standing at or near the crossing where the accident occurred, and who testifies that he did not hear the blowing of a whistle or the ringing of a bell, in a grade crossing accident ease.</p> <p>2. It was not-error in this case to refuse to direct a verdict in favor of the defendant on, the ground that there was no proof of negligence on the part of the defendant, or because the decedent was guilty of contributory negligence. They were both jury questions. Holmes v. Pennsylvania Railroad Co., 74 N. J. L. 469; Weiss v. Central Railroad Co., 76 Id. 348; Howe v. Northern Railroad Co., 78 Id. 683, distinguished.</p>

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

<p>On certiorari.</p>

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

<p>1. The infant plaintiff, a boy sixteen years old, testified that he had been in the business of delivering newspapers on defendant’s estate to him and his tenants, for about a year, and that on the day he was bitten by defendant’s dog he was going across defendant’s lawn on the regular route he had always taken, having entered through a gate which was open. Held, that even if he were a trespasser on defendant’s premises he was entitled to recover damages for the injury resulting from the biting by the dog, under the facts in this case, if it were owned by the defendant (which was admitted), and if defendant knew that the dog had previously bitten other people, of which there was evidence, and unless the plaintiff was guilty of contributory negligence, aside from the mere fact of trespassing, and he was not, according to his own testimony.</p> <p>2. The mere fact of trespassing upon the grounds of another is not, in and of itself, contributory negligence which will defeat an action to recover damages for injuries inflicted by a vicious animal belonging to defendant and allowed to be at large upon' the premises.</p> <p>3. The question whether a person entering upon the grounds of another without invitation or license, and then and there injured by an attack by a vicious animal of the owner allowed to be at large upon the premise's, exercises the degree of care which reasonable and prudent persons would use under like circumstances, is a jury question.</p>

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

<p>1. Under the Practice act (Pamph. L. 1912, p. 377, § 32), and rules 72 and 73 annexed, and Supreme Court rules, 1913, Nos. 131, 132 and 219, a judge of the Circuit Court has power to grant a new trial because of inadequate damages awarded by the verdict of a jury, and, under rule No. 122, to impose terms that if- the defeated party pays a certain sum within a specified time, the rule to show cause why a new trial should not be granted shall be discharged, otherwise made absolute. Semble: that the trial court could impose such terms without the aid of statute or rule of court.</p> <p>2. The granting of a new trial rests in the sound discretion of the - ■ trial court, and, as it does not settle definitively the rights of the parties, it is not appealable.</p>

<p>On error to the Supreme Court, whose opinion is reported eo nomine, In re Verdon, 89 N. J. L. 16.</p>

<p>Oil error to the Supreme Court, whose opinion is reported in 88 N. J. L. 447.</p>

<p>1. The provision of the act of April 7th, 1914, commonly known as the Preferential Voting act {Pamph. L., p. 170) that “all ballots shall be void which do not contain first choice votes for as many candidates as there are offices to be filled,” is not separable from the other provisions of the statute so that it may be rejected and the residue of the statute be permitted to stand i hence, if such provision be unconstitutional the act as a whole fails and an election held under its terms is incapable of conferring a de jure title to a private relator under section 4 of the Quo Warranto act.</p> <p>2. In quo wm-ranto, when a defeated candidate for an elective office, in order to obtain a judicial determination that he received ‘ a plurality of the ballots cast at such election, se'eks a decision as to the unconstitutionality of the statute under which the election was held, which is fatal to his de jure title to the office, the court, in view of the futility of deciding the question, will decline to pass upon it.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 511.</p>

<p>Writs of error do ilot run directly to this court from the order of a justice of the Supreme Court reviewing the'summary convictions of criminal courts in municipalities.</p>

<p>Plaintiff, who held a position in the county jail under the provisions of the Civil Service law, having- been dismissed by the sheriff in violation of such provisions, brought his suit for damages against the 'hoard of chosen freeholders and was denied recovery . upon the doctrine of Stuhr v. Curran, 44 N. J. L. 181. If eld, that as the relation between plaintiff and defendant was contractual in character-, it was error to apply to it a doctrine that applied only to those who were .part of a governmental department, to wit, officers, and not to those employed by such department. Held also, that the relation of the parties bound the defendant to the observance of the pertinent provisions of the Civil Service law, and that such implied contract was broken by the defendant when the sheriff as its agent dismissed the plaintiff in violation of such' provisions.</p>

<p>Tn an action under the Federal Employers’ Liability act, it was open to the jury to infer from the evidence that the plaintiff’s intestate was engaged in removing snow from the tracks, both interstate and intrastate, of a railway; that the work had been only temporarily suspended; that the. men were told by the boss to go in a covered car as it was raining and freezing at the time; that to do so, they walked along the tracks because they couldn’t go otherwise, and decedent was struck and killed by a fast passenger train considerably behind time; that there was a failure to warn him that the passenger train was behind time and might be expected. Held, that it was for the jury to say whether the decedent was engaged in interstate commerce, whether there was negligence on the part of the railway company, and whether the decedent had assumed the risk.</p>

<p>On appeal, from the Supreme Court, whose opinion is reported in 88 N. J. L. 485.</p>

<p>Owners of franchises whose business, is the sale of their commodities or services, gas, electric current, electric communication, steam or 'water, with whom the means of transportation—wires or pipes—are only the necessary means' of delivering their commodities, are not transportation companies under section 4 of the Voorhees Franchise Tax act of 1900 as amended (Comp. Stat., p. 5299, pi. 530), and, consequently, are taxable under section 5 of that act (Comp. Stat., p. 5299, pi. 531) on the whole of their gross receipts, irrespective of whether such receipts are from the sale of commodities or for its mere transportation.</p>

<p>1. In a suit brought to recover damages for property destroyed by fire through the failure of the defendant railroad to i5se reasonable care to keep its right of way in New York State clear of combustible materials, a written statement made by the defendant’s general manager (who was charged with the duty of maintenance and care of such' iight of way), to the public service commission of New York (when it was conducting a legally authorized investigation of the fire) to the effect that, at the time of the fire, the defendant company had not cleared its right of way of combustible materials, was admissible in evidence against the defendant company.</p> <p>2. The general rule is that when a corporation authorizes an attorney to speak for it, the corporation may be confronted by testimony as to what was said by such attorney within the scope of his authority.</p> <p>3. Where a railroad company had authorized its attorney to act and speak for it at a legally authorized hearing by the public service commission at which a fire along the company’s right of way, and the company’s connection therewith, was under investigation, evidence as to such attorney’s statements then and there made with respect to combustible matter on such right of way at the time of the fire, are admissible in evidence against the company in a suit involving that issue, subject to 'the latter’s right to disprove, rebut, or explain such statements.</p> <p>4. The presumption of payment or release arising from lapse of time is not necessarily a conclusive and absolute presumption. The lapse of time gives rise to- a conclusive and absolute presumption only when not satisfactorily accounted for or explained. But when so accounted for or explained the delay still remains as one of the facts in the case upon which the ultimate question of payment or - release is to be determined in connection with the other evidence.</p> <p>5. When a party asks for ah instruction which is partly good and partly bad, it is proper to refuse it altogether.</p>

<p>1. A town has the authority to provide for the collection and disposal of ashes and garbage in either of two ways, but not otherwise—first, it may provide for the doing of the work by the town itself. If it adopts this course, it must do so by ordinance, with all of the formalities necessary to enact a valid ordinance j second, it may make a contract with some one to do the work. But where more than $500 is to be expended, it has no authority to make a valid contract until it has first publicly advertised forbids, and the contract can then be' awarded only to the lowest responsible bidder.</p> <p>2. Where a town has contracted for the removal of ashes and garbage involving an expenditure of more than $500, without complying with the provisions of chapter 342 of the laws of 1912 (Pamph. L., p. 593) requiring advertisement for bids and award to the lowest responsible bidder, there can be no recovery on a quantum meruit for services rendered' under such ultra vires con- , tract after the service upon the contractor of the writ of certiorari sued out to review the validity of the contract.</p> <p>3. The law will not permit a recovery on a quantum meruit in a suit against a municipality where an express contract would be ultra vires because in violation of chapter 342 of the laws of 1912. Pamph. L., p. 593.</p>

<p>1. Under section 2 of the Workmen’s Compensation act (Pamph. L. 1911, p. 134, as amended by Pamph. L. 1913, p. 302), in the case of a partial but permanent loss of the usefulness of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof, compensation shall bear such relation to the compensation therein provided for -total and permanent disability as the partial but permanent disabilities collectively bear to total and permanent disability.</p> <p>2. In a case under section 2 of the Workmen’s Compensation act (Pamph. L. 1911, p. 134, as amended by Pamph. L. 1913, p. 302), when the trial judge finds that there was a fifty per cent, loss of the usefulness of each hand, and a ten per cent, loss of the usefulness of one eye, he should then find what percentage of total and permanent disability the combination of fifty per cent, loss of the usefulness of two hands and ten per cent, of one eye make, and should then award as compensation that percentage of four hundred weeks. It is not strictly a mathematical problem. It is not to be solved by adding up the fractional parts, hut upon the basis of the percentage of total and permanent disability reasonably found to be produced by the several injuries considered collectively and with due regard to tlieir cumulative effect.</p>

<p>The interest of a nonresident deceased pledgor of stock of a New Jersey corporation in such stock is subject to the transfer tax imposed by the act of 1909 (Pamph. L., p. 325; Comp. Stat., p. 5301), as amended in 1914. Pamph. L., p. 267.</p>

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

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

<p>On appeal from the Supreme Court, which affirmed on certiorari á succession tax on life interests in personalty and also a tax bn interests in remainder, subject to a testamentary power of.appointment.</p>

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

<p>Plaintiff relying on representations of defendant’s agent that its product called “crude fish” was a good fertilizer for hi's intended crops of sweet corn, gave an order for “crude fish” and used .. what he received in response to such order in the belief that it was “crude fish.” The crop failed, and he sued for damages. Held, (a) that there was evidence of implied warranty that the fertilizer supplied was “crude fish;” (6) that on this point evidence of the statements to plaintiff by the general manager of defendant was -competent; (e) that .plaintiff’s oral testimony as to the receipts and expenses of growing, reaping and marketing his crop was competent, whether or not he kept books of account and without their production on his own case. See 89 N. J. L. 12.</p>

<p>The endorsement by an insurer on a fire insurance policy, of consent to change of ownership in the property insured, without more, is not to be construed as an agreement by the company to become liable to the new owner for a loss occurring after the ownership actually changed but before the consent was given.</p>

<p>Oil appeal from the Essex County Circuit Court.</p>

<p>An insurance company, by its policy, contracted to pay the assured a weekly indemnity so long as he should be totally disabled and wholly and continuously prevented from performing any and every kind of business relating to his occupation. The business of the assured was that of a traveling salesman, which required a constant use of his feet, and during the term of the policy he was afflicted with a foot ailment which entirely prevented him from traveling and soliciting business, although during part of the term for which he claimed indemnity he was able to go to the office of his employer and conduct some business by writing letters Lid the use of the telephone. The trial court instructed the jury that the reasonable construction to be put upon the language used .was, not that he must be so disabled as to prevent him from doing anything whatsoever pertaining to his occupation, but that .if he be so -disabled as to prevent him from doing any and every kind of business pertaining to his occupation, he was entitled to recover. Held, that such an instruction was not error.</p>

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

On ajopeal from the Essex County Circuit Court. George Minchin died leaving a last will and testament in which, by the first paragraph, he devised to his wife for life his real estate, and at her death to his three children, Harry, Emma and Adeline, each a distinct parcel specifically described, and to his son Abraham $3,000, subject to the following conditions: “Should death take my Dauter Addeline or She do not have anny Issue Children living at her death her Part will be…

<p>On appeal from a judgment entered on a verdict directed for plaintiff in the Essex County Circuit of the Supreme Court.</p>

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

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

<p>The defendants agreed in writing, to produce from their respective farms, tomatoes, of a given quality, by a certain time, and de- ■ liver same to the vendee, and before the period of delivery mentioned in the contract the vendee was declared insolvent, and receivers were appointed .therefor. In a suit by the receivers to collect a claim against the defendants for fertilizer, which claims were certain in amounts and admittedly correct, the defendants set up by way of set-off their unliquidated demands against the insolvent company, for failure to receive the tomatoes. Held, (1) that being unliquidated the demands were not 'capable of set-off under the Corporation act, which accords the right of set-off only, to claims arising out of mutual dealings; (2) the defendants had not perfected their right to sue because of failure to deliver or a tender of delivery; (3) the recognition of unliquidated claims not entitled to any legal preference against the receivers, would accord to such claims a preference in the distribution of the assets of the insolvent company, contrary to the provisions and spirit of the Insolvent act.</p>

<p>The plaintiff in consideration of the execution of an agreement of indemnity to it by defendants, executed a surety bond to the town of Harrison, New York, for the due performance of the contracts of the defendant company, with the town. The indemnity agreement provided for the payment of annual premiums during the continuance of the work¡ and the payment of incidental expenses in case of suit. The only affirmative defence pleaded, was that the contracts were completed before the maturing of the annual premium sued for. The proof showed otherwise, and no contradiction of the substantial allegations of the plaintiff’s loss being apparent, the trial court directed a verdict for the plaintiff. Held, upon review of the testimony, that the action of the trial court was not erroneous.</p>

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

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

<p>In a suit against a father and son for damages sustained by reason of the negligent operation, by the son, of an automobile, the admission of alleged hearsay testimony that the ownership of the automobile was in the son, and not in the father, was harmless, where the jury found the son “not guilty” of negligence, since, if the father was the owner of the car and the son was on his father’s business, as his agent or servant, at the time of the infliction of the injury, the father would not have incurred any legal responsibility therefor unless it also appeared that the injury was due to the son’s negligence and to which the decedent did not in anywise proximately contribute.</p>

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

<p>1. The word “each” in an ordinance of Jersey City, providing for compensation to be paid the city, for the use of land privileges by a railroad company, in connection with its three routes, depending upon the amount of fare for each single passenger service, means any route and not all three routes.</p> <p>2. Where an ordinance by its terms does not constitute a contract with a railroad company, for the use of land privileges, but does provide an option, the railroad company cannot retain the use of the privileges and refuse to pay the stipulated compensation.</p> <p>3. A continued exercise of the privileges by a railroad company, under an ordinance accepted by it, evinces an election to pay the stipulated compensation and thereby creates a legal obligation to pay. The language of the ordinance construed will be found in the opinion.</p>

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

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

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

Justice Parker: “This appeal brings up a judgment recovered by the plaintiff, an infant of tender years, based upon the verdict of a jury for damages sustained by an accident.

Justice Bergen: “The prosecutor caused a petition, praying compensation for injuries as authorized by the Workmen’s Compensation act, with an order of the court fixing the day for hearing, to ho served on the defendant. The only answer interposed was that the petition was not filed with the clerk of the Court of Common Pleas within one year after the accident.

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

Justice Trenchard, under chapter 120 of the laws of 1915, providing for an order by a justice of the Supreme Court to enforce rights under the Civil Service ad. “The sole question argued by the prosecutor was as to the power of the legislature to delegate to a justice of the Supreme Court this right to review. “In the present case the defendant appealed to flic civil service commission and met with an, adverse decision, and thereupon’ applied to Mr. Justice Trenchard and…

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 468.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 57.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 57.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 435.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 435.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 435.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 88 N. J. L. 485.</p>

They are, however, argued under four points in prosecutor’s brief. “The first point argued is that the order, if construed to require prosecutor to make changes in its building necessary to have the same conform to the side track of the Erie railroad, when reconstructed, is invalid, because the prosecutor is not a public utility and the board has no power to order it to make such changes. “The second point argued is that the order, if construed to require the prosecutor at…

<p>On appeal from the Supreme Court, in which the following per curiam was filed:</p> <p>“The reasons for appeal present for our determination either matters of fact, which are not brought before us for consideration on a merely appellate proceeding, or matters of law which have long been settled in this state, and settled adversely to the contention of appellant’s counsel.</p> <p>“The judgment under review will be affirmed.”</p>

Edison, Inc. The trial court found from the proofs that substance flowing from this defendant’s plant through its 'artificially constructed channel into the stream created a condition that was injurious to health and-property.

per curiam was filed: “In this case we dismissed the appeal on the ground that the printed case did not set forth the rules to show cause why a new trial should not be granted in the District Court, and especially whether such rules reserved the points of law taken at the trial; the statute requiring that there be such a reservation to support an appeal. Comp. Stat., p. 2017, § 213.

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

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

On, appeal from the Supreme Court, in which court the following memorandum was filed by Mr. Justice Swayze: “Per curiam: The prosecutors are taxpayers of Jersey City and seek to set aside a contract with Thomas Harrington Sons Company for the removal of garbage.

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

The statute (Comp. Stat., p. 5084, id) authorizes the taxation of real estate without regard to any buildings or other improvements on such lands. This was meant to exclude from the valuation the value added by the improvements. “The statute authorizes the levying of a tax upon the land only of another municipality. 4 Comp.

They are identical with the 'reasons presented in the case of D. Fullerton & Company, prosecutor, except in the case of Fuller’s Express'Company, prosecutor, presents an additional reason, viz., the order directing changes, relocation, &c., is invalid because it imposes a burden upon the interstate trafile of the prosecutor, interferes with and impairs its ability to- perform its duty, as a common carrier of such interstate traffic.

Originally, the suit was brought against Kate A. Mial, individually, and Leonidas L. Mial, as executor of Henry H. Hankins, deceased. The complaint was filed in September, 1913. Subsequently, and in March, 1914, application was made on behalf of the defendants to compel the amendment of the complaint by striking therefrom the name of Leonidts A. Mial, and substituting that of Kate A. Mial, as executrix.

“Our examination leads to the following conclusions: “1. The authority to pass the ordinance in question is conferred upon the board of aldermen by the provisions of the city charter. If the authority thus conferred is in one or more respects curtailed or superseded by the act of 1913, still the ordinance as a whole cannot be set aside in this proceeding in which no conviction has been had. “2.

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

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 1.08.</p> <p>(In re reassessments on second-class property for 1911.)</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 108.</p> <p>(In re reassessments on second-class property for 1913.)</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L, 108.</p> <p>(In re reassessments on second-class properly for 1914.)</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 4,46.</p>

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

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

They are, however, argued under four points in prosecutor’s brief.

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 24.</p>

<p>On appeal from the. Supreme Court, whose opinion is reported in 89 N. J. L. 416.</p>

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

There was a judginent for the plaintiff below. The defence was mainly based upon the claim that the plaintiff had. been notified by the husband not to give any credit to the wife, and also that the articles furnished were not necessaries.

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

When the goods arrived in New York they were forwarded by the shipping company to Dover over the defendant’s line, and some of the goods were damaged when they arrived. “The defendant issued a way bill in which it was stated that the property was in apparent good order except as noted. (Contents -and condition of packages unknown.) The list contained specific items, some of which were boxes.

Ill to use his hospital history to refresh his recollection. Although it was dictated by him to another and not transcribed in his presence, he identified- it as a transcription of the notes he dictated at the time.

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

<p>On error to the Supreme Court, whose opinion is reported in 89 N. J. L. 423.</p>

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

They are in the main identical with the reasons presented by the prosecutor, the Passaic Water Company, except an additional reason, .viz., the order is invalid, because it imposes a burden upon the interstate traffic of the prosecutor, interferes with and impairs, its ability to perform its duty as a common carrier of such traffic. “They are. however, argued under five points in prosecutor’s brief.

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

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