Volume 91 — New Jersey Law Reports

<p>1. Where no exception or objection was taken to the charge of the court, the instruction complained of will not be considered on appeal.</p> <p>2. Where matter, claimed to have been, improperly admitted in evidence, was one of common knowledge, the answer could not have been legally injurious to the defendant, even if the question which called it forth was theoretically improper.</p> <p>3. The fact that, in an action under the Death act, three successive juries have determined, by their respective verdicts, the existence of negligence on the part of the defendant, and the absence of contributory negligence on the part of the decedent, should ordinarily be accepted as conclusive of these facts; but where the verdicts exhibit a wide divergence of view, by the several juries, upon the matter of compensation, the finding of the third jury on 1he subject of damages receives no support from those which preceded it; and the question of the alleged excessivenrss of the third award must be determined solely on its merifs.</p>

<p>On information in the nature of a quo warranto.</p>

<p>1. On the trial of an indictment for receiving stolen- property, knowing it to have 'been stolen, testimony was submitted by the state, ' which, if true, strongly supported the conclusion that the property delivered to the defendant had- been stolen and- came to lus hands ■with knowledge of that fact. Held, that a motion- to find the defendant not guilty, submitted a.t the conclusion of the state’s testimony, was properly denied.</p> <p>2. Questions aslted a witness, the purpose of which is to' lay before the jury facts which are immaterial and have no bearing upon the guilt or innocence of the accused, are properly overruled.</p> <p>3. On the trial of an indictment for receiving stolen goods, knowing’ them to have been stolen, testimony of a conversation of a witness and the defendant some six months prior to receiving the goods forming the subject-matter of the charge, which conversation embodied an- offer, by the witness, to deliver goods to the defendant, and coupled with proof that subsequently the witness did deliver, at much less than their market value, the goods to the defendant at different times, and was paid therefor, bore directly upon the guilty knowledge of the defendant, and was properly admitted.</p>

On habeas corpus. By the return to the writ it appears that on February 1st, 1915, the petitioner, having been adjudged guilty upon an indictment for perjury, was sentenced to the state home for girls; that on August 29th, 1917, said judgment having been affirmed by the Court of Errors and Appeals and the record remitted, the petitioner was remanded to the state home for girls to serve her original sentence; that on November 5th, 1917, the court on its own motion vacated the…

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

<p>3. Upon a petition by a public utility company to tbe board of public-utility commissioners for permission to increase rates, tbe petitioner is entitled to a formal determination- of tbe claim advanced by it that existing rates are unjust and unreasonable, and' this right is not met by an adjudication that tbe rates are not so low as to be confiscatory.</p> <p>2. By a consent given by a municipality to a sewerage company under the act of 1898 (Pamph. L., p. 4S4; Oomp. Stat., p. 3ÜS4) maximum and.minimum rates were fixed; subsequently the sewerage company petitioned1 tbe board of public utility commissioners for permission to increase rates. Held, that the board bad power to increase rates.</p> <p>8. An ordinance granting consent of a municipality to tlie incorporation of a sewerage company under the act of 1898 and fixing maximum and minimum rates is a grant upon condition rather than a contract; the legislature may clothe a public commission with power to fix higher rates upon petition by the sewerage company.</p> <p>4. Hates charged by a public service company may be unjust and unreasonable 'because too low as well as because too high.</p> <p>.4. The board of public utility commissioners upon' a petition by a sewerage company refused permission to raise rates, but found that the existing rates were not enough to enable the company to raise money to make necessary extensions, and suggested municipal action which would make it possible for the company to obtain new capital. Held, that the hoard should have ordered the necessary modification of rates and not have shifted the responsibility to the municipality.</p>

The plaintiff stored an automobile with defendant in his garage, at an agreed price for c-are and storage. The night man in charge of the garage took the automobile out for his own purposes while intoxicated and damaged it. There was-evidence from which a jury might infer that the defendant thereafter agreed to repair the car at his. own expense, and also that the night man had been intoxicated before, although a year had elapsed since he had taken a drink.

<p>Where one entitled to' compensation under the Workmen’s Compensation act (prior to the amendment of 1913), secured a determination and award for permanent disability and died before the lapse of the maximum number of weeks for which the statute authorized compensation, the right to compensation ceased with his death.</p>

<p>In case of a conditional sale of goods where the price is payable by installments and the contract of sale provides that the title shall remain in the vendor until full payment shall be made, the vendor does not waive his title as against the vendee by an attachment of the goods for the purchase price.</p>

<p>Where an employe, in doing work which was expected to be done at a place where it was meant to be done, meets with an accident by reason of disobedience of orders as. to the way in which the work should be done, the ease is governed by the provisions of section 2 of the Workmen’s Compensation act, and the decedent’s negligence is no bar to a recovery.</p>

<p>1. A writ of 'attachment will not be quashed where the state of demand claims a specific sum, which it is said: the defendant agreed ' to pay in full settlement of a claim for damages for negligence, when, at the trial, after a special appearance, there was some evidence from which the court might infer that the defendant, in order to avoid publicity in the police court, agreed to see that it was ‘‘fixed all right.”</p> <p>2. Where -a defendant enters a special appearance to a writ of attachment, but took part in the trial of the case to' the extent of crossr-examining a witness as to the merits, such participation was equivalent to a general appearance.</p>

<p>On certiorari.</p>

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

<p>A summons on a mechanics' lien claim is issued when sealed by the clerk, if it is afterwards delivered to the officer for service.</p>

<p>1. A communication, is qualifiedly privileged- where circumstances ..exist, or are reasonably believed- by the defendant to exist, which oast on him the duty of making a communication to a certain other person* to- whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do.</p> <p>2. A qualifiedly privileged communication is inconsistent with the existence of express .malice and requires both an occasion- of privilege and' the use of that occasion in good faith, and is actionable if actuated by express malice.</p> <p>3. Where there is evidence of express malice to rebut the occasion of qualified privilege, the judge must submit the case to the jury.</p> <p>4. By express malice in connection- with slander is meant some motive actuating- the defendant different from that which prima facie rendered the communication- privileged, and being a motive contrary to good morals. The existence of such a motive may be legitimately gathered from the character of the defamatory communication — as if the terms used’ 'be utterly beyond and disproportionate to the facts which the defendant had, reason to believe; or from the circumstances under which the communication was made; or from any extraneous facts which in reason tend to prove it.</p> <p>5. Where, in a suit for slander, it is open to the jury to legitimately find that the defendant’s motive in making the defamatory statement was to drive the plaintiff out of the neighborhood where both were engaged in business, because lie thought that the plaintiff, in order to get trade, would sell at cut rate prices articles in which they both dealt, a motion to direct a verdict in favor of the defendant, upon the ground that the communication, was one having >a qualified privilege, is properly denied.</p> <p>G. The refusal of a trial judge to allow a leading- question to be put by counsel to a witness called by him is a discretionary matter and will not lead to a reversal on- appeal in the absence of a palpable abuse of discretion resulting in prejudice to the complaining party.</p> <p>7. An objection that a question was overruled will not be considered where substantially the same question was afterwards put to the same witness and was answered.</p>

On petition and rule to show cause why the removal oí Frederick Petry, Jr., from the position of employe in the state comptroller’s office should not be aside pursuant to the powers conferred by chapter 120 of Pamph. L. 1915, p. 209.

<p>1. The facts found by the District Court will be presumed to rest on competent proof when, nothing appears to the contrary, and will be accepted by the Supreme Court on review.</p> <p>2. One who hired a horse, not for a particular journey, but for an indefinite period, which after ten days became sick, cannot recover from the owner expenses laid out in its cure without the knowledge or iwpiest of the owner, when it appeared that the owner was at all times accessible and might have been but was not consulted, and1 when it further appeared that sufficient time elapsed before any expense was incurred to have enabled the hirer, if he had seen fit, to notify the owner of the horse’s condition and to have enabled the owner, if he had been, promptly informed, to bring the horse home.</p> <p>:i. Where the- voice of the person whose telephonic communication is sought to be proved was recognized by the other party to the conversation, the latter may testify to such communication, the probative force of the evidence 'being for the jury to determine. But the burden of proof always rests upon, the party introducing the evidence to establish by some proof, either, direct or circumstantial, the identity of the person speaking.</p>

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

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

<p>The liability of certain townships for damages due to injury resulting from non-repair of public roads, as created by the supplement of 1859 to tlie Road act (Comp. Stat., p. 4447, pi. 66a 1 et seg.), is not limited to injuries incurred within the “formed” strip provided for by section. 8 of that supplement, but relates to all that tlieir overseers, by section 21 of the Road act of 1846, now section 88 (Comp. Stat., p. 4489), are required to maintain and keep in repair.</p>

<p>Under the act entitled “An act concerning the government of cities of the first class’' (l’amph. L. 1907, p. 70.“): Comp. £Hat., p. 904), the mayor of Newtek may appoint a city auditor Cor a term to run out contemporaneously with his own, and such appointment does not require the consent of the council to make it effective.</p>

<p>1. The statute of 1917 (Pamplw L., p. 41), which imposes, for state road purposes, a tax of one mill- on the dollar on all real and personal property upon which municipal taxes are assessed, levied and collected, is not unconstitutional because such classification does not include property which is subjected1 to- taxes assessed, levied and collected by the state for its own use, under a statutory classification based upon its peculiar characteristics.</p> <p>2. The main stem, and the value of the remaining' property including the franchise, of railroad companies divided by statute, for the purpose of taxation, into first and fourth class railroad property, is not subject to the tax imposed 'by the act of 1917, but such exclusion is not in violation of the constitution.</p> <p>3. Second-class railroad property is property upon which municipal taxes are assessed, levied and collected and therefore included in the classification of the statute of 1917 imposing a state tax for road purposes.</p> <p>4. The statute includes within its classification all property not otherwise segregated in classes, for the purpose of taxation, based upon the- characteristics of the property, and not upon the status of the owner, although he may have an irrepealable contract with the state exempting him. from the payment of local taxes, and therefore the property of The Society for Useful Manufactures in Paterson is within the classification established by the statute of 1917, although a tax for municipal purposes may not be collectible because of its contract with the state.</p> <p>5. The shares of the capital stock of banking associations and trust companies are also within the classification provided by the statute under consideration.</p>

On rule to show cause. At the primary election held in Atlantic county September 25th. 1917, the name of the relator, as well as that of Smith E. Johnson, was printed on the primary ballot of the Republican party as candidates of that party for tlie office of sheriff, and at the election Johnson received the highest number of votes.

<p>Tlie act creating' a workmen's compensation aid bureau (Pamph. Ij. 191(5, p. 97) does not provide a new remedy, or impair contracts; it only prescribes a new method of procedure for the enforcement of an existing contract, and its provisions relating to tlie filing of a state of facts for tlie injured workman, as a petition in Ms behalf, does not impair any contract or create a new remedy, and it is applicable to accidents happening prior to tlie approval of tlie statute which were within the provisions of the Workmen’s Compensation act.</p>

<p>The defendants were jointly indicted for robbery and each entered a plea of guilty. The same defendants were separately indicted for the murder of the person robbed, and when called to plead to that indictment filed a plea of former conviction based upon the alleged fact that the murder was committed in the perpetration , of the robbery, to which the state demurred. Held, that the plea was vicious because the crimes were distinct offences, requiring a different character of proof to warrant a conviction in each, neither being a necessary ingredient of the other. State v. Oooper, 13 N. J. L. 361, considered and distinguished.</p>

<p>1. The uniform course of modern authority establishes the rule that however general the words of an ancient grant may be, it is to be construed by evidence of the manner in, which the thing granted has always been, possessed and used, for so the parties thereto must be supposed to have intended.</p> <p>2. The assumption of ownership and control of a bridge by the board of chosen freeholders under the Condemnation act of 1872 (Pamph. L., p. 1163, § 2) vested in that body the title and right of possession for public use, as if the bridge had1 'been erected by the board pursuant to section 1 of Comp. Btat., p. 301. Hence, where the original owners of the bridge had been under obligation to keep and maintain a drawbridge for the benefit of a canal company, such canal company, or its lessees, cannot be said to be under an. obligation to contribute toward the rebuilding of the bridge after the ownership of the bridge had passed to a board of freeholders by condemnation.</p>

<p>Oil certiorari removing judgment of the Union Common Pleas.</p>

<p>1. It is not error for a trial judge to refuse to receive in evidence a record of statements made by a witness at a preliminary hearing where the person who took such statement was not produced to give evidence as to its correctness or authenticity, such a statement standing alone, being in the category of hearsay or secondary-evidence.</p> <p>2. Where officers of the law obtained evidence in tire normal manner concerning the illeg-al sale of intoxicants, their testimony is not inadmissible on the ground of being a species of entrapment.</p> <p>I?. The rule of reasonable doubt in criminal cases is not encompassed by any set formula. It is enough that its practical application to the facts of a given case be sufficiently stated to the jury.</p>

<p>A judgment of a county board of taxation, establishing a fair market value of property for purposes of taxation cannot be said, without some affirmative proof to support such contention, to be either unreasonable or without 'a substantial basis of fact to support it, where such judgment is based; upon an estimate of value, supported by evidence, varying from the minimum figure to the maximum figure of those estimates and where there was no affirmative proof upon the part of the owner of the property to decrease the assessment.</p>

<p>A proceeding, brought under the Workmen's Compensation act by a petitioner suing in a representative capacity, is not a mere inquest but a judicial trial of a civil action within the meaning of that term in section 4 of the Evidence act (Comp. Stat., p. 2218). Hence, in such a proceeding, testimony as to any transaction with ■ or statement by the decedent represented in the proceeding is inadmissible, unless the representative offers himself as a witness on his own behalf and testifies -to any transaction with or statement by the decedent.</p>

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

<p>The proceedings for a recount of votes, authorized by section 159 of of the election 1'aws, is applicable to a contest of an election for city commissioners held in a city in accordance with the provisions of the act of 1911 (Pamph. L., p. 402), commonly known as the “Walsh act.”</p>

<p>Section 32 of “An act concerning townships” (Comp. 8tat., p. 5585), empowers a township committee to fix the animal salary or compensation to he paid to each person elected to a township office (of which township collector is one) ; and section 64 of the Tax act of 1903 (Pamph. L., p. 435) provides that the governing body of a taxing district shall fix the annual salary of its assessor, collector. &e., at rates not in excess of that prescribed1 by law, and that such salary so fixed shall not he increased or diminished within the term of such offices. Plaintiff was elected collector of the township of IT. in November, 1912, and was re-elected to the same office for a term of three years in November, 1915, the term to commence January 1st, 1936. On December 311th, 1912, the then township committee fixed his salary at the sum of $750 annually, but on January 1st, 1916, the incoming township committee fixed plaintiff’s salary at $600 per annum. Held, that the proper construction to be given to the statute is that after the new governmental body of a township has once fixed the salary of an incoming collector, it may be neither increased nor diminished during the term, but that the term of office of the plaintiff having ended January 1st, 1916. the new township committee had the right to fix his salary for the new term, 'and the fact that the plaintiff had been re-elected to the office which he had previously held, did not prevent his salary being fixed by the new governmental body, his term having ended.</p>

<p>Under Pamph L. 1913, p. 394, a board of chosen freeholders is permitted to acquire, improve and maintain any road or roads lying within or extending through the corporate limits of any city in the county, the city retaining authority to light such road, and power (o construct, grade, curb, pave or repair the sidewalks and curbs along such road. An agreement was made by the county authorities of Passaic county with the city of Paterson to do the entire -work upon condition that the city would pay twenty-five per cent, of such work, including the resetting of the curb. Assessments by the city of Paterson against property owners, for the city’s share of the expense, under the above agreement are void, there being no power vested in the city to make such assessments under the above statute.</p>

<p>Pamph. L. 1915, p. 285, known as the State Traffic act, prohibits the passing of ordinances by cities, &c., on any matter covered by the act, but ordinances may be passed providing for regulations, which apply to special conditions, when approved by the commissioner of motor vehicles. Under an ordinance of Atlantic City, the prosecutor in this case was convicted for parking an automobile, in violation of such ordinance. The ordinance not having been approved bv the commissioner of motor vehicles, as required by the statute, the conviction is illegal and set aside.</p>

<p>On certiorari.</p>

<p>1. Merchants invite the public to enter tlieir stores to buy wares, but those who accompany them, without any intention of purchasing, are not invitees hut mere licensees.</p> <p>2. The duty of a landholder to one who enters his premises by' mere license is not to- keep the- premises in a noil-hazardous state, but only to abstain from acts willfully injurious to the licensee.</p>

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

<p>1. The duty imposed upon counties to erect highway bridges in this state is, and always has been, the subject of statutory regulation; no such duty having been imposed upon the counties by any rule of the common law.</p> <p>2. The highway 'bridge over the Morris canal, involved in this suit, was built between 1853 and 1856 and repaired in 1871, and there was evidence from which the jury could have inferred that it was built by the freeholders of Passaic, who were then, by statute, charged with the construction of bridges.</p> <p>3. The term “bridge” conveys the idea of a passageway by which travelers are enabled to pass safely over streams and other obstructions, and the law requires that those who erect the structure itself shall make it accessible at its ends by filling up so far as is necessary to make a convenient and safe passageway for the public.</p> <p>4. The freeholders of a county cannot escape responsibility for neglecting to erect or repair railings and guards along embankments, bridge approaches, &e., because not notified by the township committee that the road is unsafe for travelers by reason of such unprotected embankments or unguarded 'bridge approaches, under Comp, gtat., p. 4616, § 560, because the freeholders’ duty is unqualified and does not depend upon a proper performance of duty by the township authorities.</p>

<p>1. An amendment may be allowed under our statute (Comp. Btat., p. 4091, § 126) after trial of a cause.</p> <p>2. • Messrs. Page & Lj'ons had a contract with the borough of Pleasantville for furnishing certain maps, and assigned the money to grqw due on the contract to Peppier. Page & Lyons made a subcontract with Thompson for doing part of the work, but he became apprehensive about getting his money and withheld delivery of the maps to the borough. Peppier v’rote Thompson a letter in. which he said that as soon as he received from Pleasantville the amount due Page & Lyons he wmuld send Thompson a check for $450 in settlement of his claim, and requested him to deliver the maps to the borough so that both of them would get their money. Thompson delivered the maps' and Peppier received the money but failed to p.ay Thompson, who sued therefor and recovered judgment. Held, that Thompson’s delivery of the maps to the borough wras a valid consideration for Peppler’s promise to pay him for them.</p> <p>3. Peppier offered to prove that Thompson acted as agent for Page & Lyons in the transaction. This was properly overruled, because such testimony would not operate to defeat Thompson’s claim ■against Peppier for work performed on the maps under Page & Lyons’ contract with the borough, which w>as taken over by Peppier by assignment, and which maps were delivered by Thompson to the borough at the request of Peppier1, who promised to pay him therefor.</p>

<p>A risk which is entirety obvious to an employe and is fully appreciated by him is an assumed risk under the Federal Employers’ Liability ¡act, and' where an employe continues to do work without assistance under a change of circumstances which, to his own knowledge, renders it dangerous without assistance, his conduct - in so doing relieved the employer from liability.</p>

<p>■ 1. Although the constitution of the United States has conferred on congress the power to regulate the liability of an interstate carrier for injuries suffered by an employe in the course of his general work, whether the particular service being performed at the time of the injury, isolated!/ considered!, was in interstate or intrastate commerce, nevertheless congress has not exercised this power to the full, extent in the Federal Employers’ Liability act, but has only regulated the liability of tlie carrier to its employe while the latter is employed by such carrier in interstate commerce.</p> <p>2. The test of whether an action for compensation is properly brought under the Federal Employers’ Liability act is. whether or not the particular work upon which the employe was engaged at the very time of the accident was a part of the interstate commerce in which the carrier was engaged.</p>

<p>1. Where the effect produced by a wrongful act is one which was intended, and is one which, in the usual course of events, would probably follow from the cause, the person putting such cause in motion will be responsible, even though there be intervening agencies between such cause and its consequences.</p> <p>2. Conviction of crime may or m'ay not affect the credibility of a witness; and whether or not, in a given case, it does or does not, is not a question of law to be decided by the court, but a question of fact for the jury. So, a request to charge that “Conviction of crime affects the credibility of a witness” was properly refused.</p> <p>3. Where an instruction asked for is partly good and partly bad, it is proper to refuse it altogether, and a refusal to charge a request containing several propositions is not erroneous if any of them are unfounded.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J'. L. 364.</p>

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

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

Oil appeal from the Circuit Court. This action was commenced in the Circuit Court by the issuance of a writ of attachment against Edward R. Arlington as a non-resident debtor. Arlington entered an appearance to the action and accepted a copy of the complaint which set forth an indebtedness on a book account for goods sold and delivered.

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

<p>The Workmen’s Compensation act does not deprive an employe of his right of action for negligence against a fellow employe, a fellow employe coining within the meaning of the term “third person” as expressed in the act as amended. Pamph. L. 1913, p. 312.</p>

<p>The decedent was employed as a locomotive fireman. He came in from his run Saturday evening: lie was to go out again at three-forty-five A. M. on Monday. On Sunday he went to the railroad yard to get his tools from a “pony” engine and put them on a “pick up” engine on which he might go out Monday morning, and also to get overalls to take home to he washed. While going-through the railroad1 yards he was struck by a locomotive and-killed. Held, that he was not at the time engaged in interstate commerce and his administratrix could not maintain an action under the Federal Employers' Liability act.</p>

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

<p>1. To “solicit” is to ask earnestly; to make petition; to appeal to (for something) ; to endeavor to obtain., by asking or pleading: to plead for.</p> <p>2. If a contract is of doubtful meaning, and one interpretation would render it legal and another illegal, the courts will adopt that construction which will not impute to the parties an intention to violate the law.</p> <p>3. The policy of our law is against obtaining contracts for the erection of school buildings by mere solicitation or asking or by favor.</p> <p>4. A board of education has no authority to make a contract for the. erection of a school house until it has first publicly advertised for bids, and the contract can then be awarded only to the lowest responsible bidder.</p> <p>0. A contract whereby the plaintiff was to “solicit” for the defendant (a contractor) “general construction, work of public and private buildings,” and was to receive for such services one per cent, commission on any contract the defendant accepted, is limited by proper interpretation, so far as public buildings are concerned, to construction work on such public buildings as could possibly be obtained lawfully by solicitation, and hence has no application to a contract for the erection of a school building by the board of education of the city of Newark.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 60.</p>

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

<p>Plaintiff’s intestate, intending to board' a railroad train at a station on defendant’s railroad, took Ms stand with others on the side of the track opposite the station platform, and between the main track and three standing freight cars. As his train drew in, others between the tracks attempted to board it, and one, swinging out, knocked down others and finally the deceased, who was fatally injured. Held, that there should have been a nonsuit or a direction of verdict for defendant.</p>

<p>Where an agreement of aceord and satisfaction contemplates the performance of a promise made at the time of the accord, there is no satisfaction unless the promise he performed, but when tlie agreement shows an intent to accept the new promise as itself a satisfaction of the prior obligation, the satisfaction is complete on the making of the promise.</p>

<p>On error to the Supreme Court, whose opinion is reported in 90 N. J. L. 17.</p>

<p>1. An incidental instruction in I lie course of comment on the evidence in a criminal ease, that if the jury were persuaded of the truth of the, defendant’s story they should acquit him, is not to be construed as necessarily imposing- on defendant the burden of proof of innocence, or as inconsistent with correct instructions on burden of proof and reasonable doubt elsewhere in the charge.</p> <p>2. Ruder the law of this state an indictment for robbery at common law will support a conviction of larceny.</p>

<p>The complaint iu this case held sufficient to support a claim of damages for a continuing trespass, no objection having been made on the ground1 of duplicity.</p>

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

<p>1. There was testimony from which a jury might infer that the defendant, the superior officer and fellow servant of the plaintiff, directed the latter to enter' a loaded elevator for the purpose of being taken to a lower floor to assist in taking' off the load; that the elevator was controlled by an electric current and a brake; that the defendant, operating the elevator, started its descent by releasing the brake without applying any current, which some of the evidence showed could be used to, retard the downward movement, and that, the brake failing to hold, no current was applied to control the elevator and it fell to the bottom of the shaft whereby the plaintiff was injured. TIM, that the neglect to properly operate the eleva cor was a misfeasance and a breach of a duty which defendant owed to plaintiff, and that under O’Brien v. Traynor, 69 N. J. L. 299, the action of plaintiff against his fellow servant to recover for his injuries would lie, and a refusal to direct for defendant was not error.</p> <p>2. "Whether defendant acted as a reasonably prudent person would under all the circumstances was also a jury question.</p> <p>3. Where the injury which plaintiff suffered was a broken leg, which after treatment was supposed to be sufficiently cured to permit use for walking, and while being so used in a careful and usual maimer, no other intervening- cause appearing, it again broke iu the same place, a jury might infer that the original injury was the proximate cause of the second, and, therefore, evidence as to the time the plaintiff lost as a result of the second breaking and cost of medical attendance was competent.</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>In 1907 a surveyor made a survey and map- of plaintiffs’ land, upon which they did not build until 1910. It was discovered in 1915 that the house was on the land of another, which the plaintiffs were thus forced- to buy. Held, in a suit for damages -against the surveyor, in which he pleaded the statute of limitations, that the statute began to run from the occurrence of the breach of legal duty, which was the gravamen of the complaint; and not from the time of the discovery of the error and the accruing of the damage.</p>

<p>The plaintiff recovered a verdict which the Supreme Court, on rule to show cause, set aside, as against tlie weight of the evidence. Dpon the second trial, the trial court upon testimony more or less similar, directed a verdict for the defendant, basing his direction upon the theory that a verdict for the plaintiff must ex necessitate be again set aside. Held, that such action was erroneous, and that the question ai issue should have been submitted to the jury.</p>

<p>A bond was executed by the defendants to secure payment of a promissory note by a beneficial society, which note matured and was renewed and’ was finally paid by the plaintiffs. Upon the trial defendants sought to prove fraud and misrepresentations regarding the financial and legal standing of the beneficial society of which the parties to the suit were members, and the taking over of which by defendants formed the consideration for the note. The trial court after the testimony was in, struck out the defences, upon the ground that no fraud or misrepresentation was shown. Hold, that the action of the trial court was proper, since mere expressions of opinion by individual members of the society as to the society’s standing and future were not sufficient to constitute either fraud or misrepresentation where the defendants occupied a status in nowise different from the plaintiffs as members of the society, and were in a position to fully inform themselves as to the facts and to base their judgment thereon.</p>

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

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

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

<p>1. The legislature cannot constitutionally enact a law, either as an original act or for the purpose of altering or amending the charter of a railroad company, which, in effect, will take from the railroad company its property, without providing just compensation therefor; and such enactment is unconstitutional, irrespective of whether or not the charter of such railroad contains a reservation of power by the legislature to alter, amend or repeal the charter. Delaware, Lackawanna and Western Railroad Co. v. Public Utility Board, 85 N. J. L. 28, followed.</p> <p>2. The amendment of 1915 (Pamph. L., p. 772) to the charter of the Morris and Essex Railroad Company, reguiring the railroad company to carry certain state officers and employes free of charge, is unconstitutional in so far as it attempts to impose upon the company the duty to carry a member of the board of fish and game commissioners, while traveling on official business, without the payment of fare.</p>

<p>Tlie act of 1915 (Pamph. L., p. 772), amending tlie charter of the Morris and Essex railroad, having been declared unconstitutional in so far as it required the railroad company to carry a member of the fish and game commission free of charge, the action for a penalty, against the railroad company, founded upon its failure to comply with the mandate of such amendment, must fall with the amendment.</p>

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

<p>1. A breach of warranty contained in a life insurance policy is a bar to a recovery upon the policy by the beneficiary, following Fish v. Metropolitan Life Insurance Co., 73 N. J. L. 619 ; Brunjes v. Metropolitan Life Insurance Co., 83 Id. 296.</p> <p>2. In a suit, on an industrial policy of insurance, it is not error to admit in evidence at the trial, the application blank containing signed answers of the insured and the medical examiner’s report, although not made a part of the policy. If the answers are false, it will bar a recovery on the policy, by the beneficiary, on the ground of fraud, following Duff v. Prudential Insurance Co., 90 N. J. L. 646.</p>

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

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

<p>1. In. a suit upon certain promissory notes by a “holder in due course,” the defence was that certain new notes and cash were given and accepted in satisfaction of the notes sued upon, and there was testimony adduced at the trial, both in support of and against this contention. Held, that the question of fact thus raised was rightfully submitted to the jury for their determination.</p> <p>2. Where a defendant took a rule to show cause why a verdict against him should not he set aside, and reserved only his exception to the trial court’s refusal to direct a verdict in his favor, the point so reserved is the only one which can be considered on appeal should the rule be discharged.</p>

<p>1. Tbe defendant negligently left dangerous dynamite cartridges in his home within easy reach of his infant child of tender years who took them away from the house and in play with other little boys pounded them with stones so that one of them exploded and put out the plaintiff’s eye. Held, that it was for the jury to decide whether the negligence was the proximate cause of the injury, and that a nonsuit was error. Citing Davempori v. MoOlellan, 88 H. J. L. G53.</p> <p>2. Under such circumstances there may be a recovery in case, hut only in case the jury shall find, (1) that defendant’s a.ct was negligent; (2) that what the child did was what a prudent man knowing what defendant knew, would reasonably expect it might do as a result of such negligence, and (3) that the child was of such tender years or imperfect, understanding that it did not have the capacity to estimate or appreciate the dangerous nature of its act.</p>

<p>1. Plaintiff: contracted to- build the foundation walls and superstructure of a church addition, the excavating work having 'been done by defendants themselves. When, the building was about completed, part of the wall fell down. In the absence of the contractor defendants jacked up the superstructure to prevent its falling also. A dispute having arisen as to whose fault it was that the walls gave away, an arbitration agreement, in writing, was entered into, which agreement provided that “the matters in dispute shall be presented to a board of arbitration” and that defendant “shall employ men to do the required excavating and that the responsibility for the cost of the same shall be determined by the above-mentioned arbitration board.” Held, that the items of jacking up the superstructure, the removal of the debris of the fallen wall and the binding of the new wall into the old walls, was a matter in dispute and properly a subject to be dealt with by the board of arbitration.</p> <p>2. The contractor sued upon the original contract instead of upon the award for the balance claimed to be due him under the contract. Held, that the suit was properly brought, because the submission and award had nothing to do with the amount due under the contract, that amount not being disputed, but involved only the cost of the replacements; and not being relied upon for any part of the contractor’s claim, the. award was purely a matter of defence in so far as it was in the owner’s favor.</p> <p>3. Where a judgment is wrong in the amount of damages only and that element is clearly separable, the judgment will be reversed to the end that a venire de novo be awarded as to damages only, pursuant to rule 131, made applicable to appeals by rule 1.47.</p>

This note was dated September 8th, 1914, payable one year after date, ‘subject to the conditions contained in the agreement bearing even date/ The agreement referred to was one made on that day between the plaintiff and the defendant with reference to the sale of this stock, and the condition was, ‘that if the said party of the first part (the plaintiff) should retire from business or should sell out the said business, and shall also remove out of the county of Hudson…

Browne claims to be health officer of Paterson. Dr. Clay is in possession of the office. Previous litigation has been inconclusive as to the right to the office. The Supreme Court, on a certiorari by Dr. Clay, reviewed action of the civil service commission adverse to him and dismissed the writ upon the ground that Dr. Browne was entitled to the office.

The plaintiff brought this suit to recover the value of the hay, alleging that the loss occurred because of defendant’s negligence, and the trial court directed a verdict for defendant from which plaintiff appeals. If there was any evidence from which a jury might infer negligence, then the direction was erroneous.

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L.ó96.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 5;</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 474.</p>

“We think the charge upon which he was tried and convicted was one which warranted expulsion under the constitution and by-laws of the association. “We think, also, that the fact that the hearing of the charge was held on Sunday is not a sufficient reason for setting aside the resolution expelling prosecutor.

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

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

After the verdict a rule to show cause why the verdict should not be set aside was obtained, and after hearing the rule, was discharged. Thereafter the defendant took this appeal. “The only points reserved in the rule were the objections to the refusal of the trial court to nonsuit the plaintiff and to direct a verdict in favor of the defendant.

L. 1913, p. 570. “That board determined that the property was not exempt and sustained the assessment.

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 118.</p>

<p>On appeal from the Supreme Court, whose opinion is re- . ported in 90 N. J. L. 82.</p>

Whitman and others, was indicted for the crime of conspiracy, the charge in the indictment being a fraudulent agreement to cheat and defraud the Roseville Trust Company out of $28,-487.

Both parties, however, admit that the charge laid in it was a violation of section 184 of the Crimes, act.

Of the defendants named, the indictment as to two was dismissed and a third defendant pleaded non vu'lt. A general exception was taken to the judge’s charge.

“The case comes up for review on strict bill of exceptions and assignments of error, and must be so considered by this court, notwithstanding the contention of counsel for the plaintiff in error that, because his client intended to claim the wider review provided by the one hundred and thirty-sixth section of the Criminal Procedure act, we should give him the benefit of his intention, without regard to the fact that he failed to take any of the steps required by the statute…

Faunce, Raymond E. Smith and others, was indicted for conspiring fraudulently and falsely to cheat and defraud the Roseville Trust Company out of $28,487, and putting that conspiracy into execution. Whitman was the treasurer of the Inter-City Land and Securities Company. Faunce was the president of that corporation. The alleged fraudulent abstraction of the money of the trust company was for the purpose of using it in the affairs of the Inter-City, &c., Company.

There are fifteen determinations in the court below which appellant claims are erroneous, but the sum and substance of them seems to be that the District Court should have decided the other way. The judge found for the plaintiff. “The facts roughly stated are that plaintiff entered the employ of the defendant as soliciting and selling driver; his business being to peddle and deliver their goods and collect and turn in the proceeds of sales.

Justice Parker: “The only question in this case is whether the act of 1915, page 470, operates as a repealer of previous legislation whereby incomes of less than $18 per week could be reached under execution. The return in supplementary proceedings in this case showed an income of $70 per month and prosecutor claims that the Circuit Court had no right to order the appropriation of any part of it to the judgment. “I think the point is well taken.

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

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

<p>Occasional acts of trespass committed upon, wild and uncultivated lands, although extending over a period of twenty years, will not give title by adverse possession, but if such acts occur with sufficient frequency they amount to that continuity of possession which is an essential ingredient of such a title. Whether, in a given case, the acts of trespass, relied upon to establish title, are of sufficient frequency to amount to a continuity of possession, is necessarily a question of fact to be determined by the jury under proper instructions from the court.</p>

<p>The ordinary rule that a tax voluntarily paid, with full knowledge of the facts, cannot be recovered by the taxpayer although it was illegally assessed, is not applicable when the payment has been made pending proceedings .instituted by the taxpayer for the purpose of having the'tax set aside, and such proceedings have been prosecuted to a successful issue. In such a case a promise to refund the money is assumed, and the taxpayer may maintain an action, for its recovery.</p>

<p>1. A motion to quash an indictment, being addressed to the discretion of the court, is not reviewable on writ of error.</p> <p>2. An indictment containing two counts, the first of which charged the defendant with stealing “one hundred and twenty-five pounds of brass,” &c., and the second of which charged him with unlawfully and feloniously receiving the same goods and chattels, by the same description, knowing them to have been stolen, is not bad for indefiniteness. Brass, like any other metallic substance, may exist in an amorphous mass, or in lumps or scraps having-no definite shape or form, and when brass in such condition is made the subject of theft, it is properly described by the words used in the indictment.</p>

<p>1. Under section 37 of the Crimes act, a conspiracy to commit murder is a completed offence although nothing in execution of the criminal agreement be done to effect the object thereof.</p> <p>2. The criminal responsibility of each of the parties to a conspiracy to commit murder is complete, although the time, place and manner of its execution is left to be subsequently determined by the person or persons who are selected for the actual perpetration of the homicide.</p> <p>3. It is entirely settled in this state that the refusal of an instruction directing the jury, at the close of the state’s case, to 'acquit the defendant, is a matter of discretion, and that such judicial action cannot be reviewed on a strict bill of exceptions.</p>

On certiorari. On August 15th, 1916, the husband of the. petitioner was a farm hand, whose particular employment on that day was to make a trip to Philadelphia with a truck wagon drawn by a team of mules. Tie left the farm between five and six o’clock in the afternoon, and at two o’clock the next morning was found dead sitting on the seat of the track with his body crushed between the seat and the overhanging roof of a shed under which the mules were standing.

<p>A memorandum of safe was signed “I. W. xVrchbold & Co. per F. Lo Truglio,” the words “F. Lo Truglio.” being in the handwriting of the defendant, Lo Truglio. The contract purported to. have been made between Archbold & Co., as vendors, and Lo Truglio, as vendee. Held, that as the defendant could not have signed as agent, he must have intended to sign, as vendee, the signature being sufficient to comply with section 4 of the Sale of Goods act. Comp. Stat., p. 4G4S.</p>

The city of Orange dug a trench across the northerly half of Main street to the northeasterly corner of plaintiff’s lot. This trench cut the curb in front of plaintiff’s lot, and connected with a hole two feet deep dug bjr defendant’s workmen. The city caused a twelve-inch pipe to be placed along the curb across the trench where it intersected the gutter.

<p>A married woman is incapable of becoming an accommodation endorser, and she is not estopped from setting up coverture as a defence by her representation, made at the time of such endorsement, that she was then a widow.</p>

<p>3. When the terms of a lease are agreed upon and the tenant makes a payment on account thereof, the contract is complete, even though both parties contemplated the execution of a formal lease.</p> <p>2. Where defendant leased property to plaintiff and subsequently leased the same property to a third party for a greater sum, in a suit by the first lessee for damages for breach of contract the lessee is entitled to recover the value of his term as damages.</p>

<p>On motion to dissolve attachment.</p>

<p>On appeal from tlic Yew Brunswick District Court.</p>

On error to tlie Morris Oyer and Terminer. After the decision on the demurrer to the plea of autrefois convict (ante p. 90) the record was remitted to the Morris Oyer and judgment there entered that the defendant answer further to the indictment. Thereupon he was allowed to file a new plea of autrefois convict, averring the same facts as in his former plea.

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

<p>1. 'When the plaintiff visited the barroom of the defendant’s hotel on- the latter’s implied invitation, it was the defendant's duty to use ordinary care to render his premises reasonably safe for the purpose.</p> <p>2. The fact that a hotelkeeper knew that his entrance steps and platform were covered with snow and slush which were fr.ezing, and did not within three and a half hours after the snow stopped falling have them cleared or otherwise eared for, but allowed a departing guest to use them in that condition to his injury, justifies a finding that the hotelkeeper was negligent.</p> <p>3. In an action against the keeper of a hotel for an injury sustained by the plaintiff on his way out of the hotel in consequence of snow and ice- upon the exit platform and steps, the fact that the plaintiff noticed, when he entered the hotel, that there was snow upon the steps and platform is not conclusive evidence that . he was not in the exercise of reasonable care in attempting to use them several hours afterwards.</p>

<p>1. It is the duty of an attorney, who is employed to investigate the title to reai estate, to make a painstaking examination of the records, and to report all facts relating to the title. He is therefore liable for any injury that may result to his client from negligence in the performance of his duties, that is, from a failure to exercise ordinary care and skill in discovering in the records and reporting all the deeds, mortgages, judgments, &c., that affect the title in respect to which he is employed.</p> <p>2. Where an attorney negligently omits to report the-fact of a judgement, which is a lien upon real estate the title of which he was employed to investigate, and his client buys upon the faith of such report and without knowledge of such judgment, the measure of damages' is the amount the client is caused (o pay out to remove the lieu of such judgment, and this is so even ' though the client subsequently sells the real estate for a sum in excess of its total cost to him including the discharge of the judgment.</p>

<p>1. A • stipulation in a written contract for a specified amount of salary per year, payable semi-monthly, is not inconsistent with a yearly hiring, and the contract will be deemed to 'be a hiring for a year when, from a consideration of all of its terms, suc;h appears to ha.ve been, the intention of the parties.</p> <p>2. By written contract dated April 18th, 1917, it was agreed that the plaintiff should superintend1 and build up the defendant’s business ; that he was to be paid “$1,500 per year, payable semimonthlythat in addition thereto lie wias to receive “$125 at Christmas, 1917, and $125 at Easter, 1918, providing he gets the business well organized and running as we (defendant) expect he will.” Held, to be a hiring for a year.</p>

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

<p>On certiorari.</p>

<p>Where the defendant’s signature (by his mark) to a contract of purchase o£ a gas1 generator is procured- by fraud and imposition -of the plaintiff’s agent, practiced upon him with intent to deceive him as to the purport of the paper which he signed, and without which he would not have signed, the defendant has a right to set up such fraud and imposition as a defence to an action brought against him by the plain-tiff for a breach of the covenant to pay . contained therein. And upon the question, of such fraud -and imposition it is relevant and competent for the defendant, to show (1) that he could not read nor write; (2) that the paper was not read nor its contents- made known to him; (3) that at the time of signing the paper he refused to purchase the generator and that the plaintiff’s agent induced him to sien bv telling him it was a shipping direction for a trial use of the generator.</p>

<p>1. When by the terms of a contract work is to be paid for after “a satisfactory test lias been made,” it must be satisfactory to the one who is to pay for it, if the contract is silent as to the person to whom the work shall be satisfactory.</p> <p>2. Where a promisor agrees to pay for work or goods provided he is satisfied with them, he must act honestly and in good f.iitli. To escape liability his dissatisfaction must. be actual and not feigned; real and not merely pretended. It is only the actual existence, not the mere expression, of dissatisfaction that can have this effect. He must, if a test is necessary to determine fitness, give that test, or permit it to be made. Where good faith is in issue, and the evidence is conflicting, a jury question is presented.</p>

<p>On appeal from tbc Morris Common PLeas.</p>

<p>Defendant, a married woman, executed a promissory note for the benefit of her brother and which he discounted at the plaintiff bank. It bore the words “value received. For my own use and benefit” on the face; but in fact she received no benefit of it and the bank officials, as the jury could find, knew this before - advancing money on it. Held, (1) that there was no basis for a claim that defendant was estopped from denying that her sepa7 .rate estate was benefited; (2) that the hope of bettering her brother’s financial affairs by the proceeds of the note, so that he . might perhaps repay other moneys that he owed her, was not the “benefit” to her contemplated by the statute.</p>

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

On certiorari to an order of a justice of the Supreme Court, in proceedings in said court supplementary to execution, requiring prosecutor, a judgment debtor, to pay $3 per week on account of judgment, costs, &c.

<p>On case certified from the Essex Circuit Court.</p>

<p>1. A certificate by the trial judge in a criminal case that “the foregoing is the entire record in this case” is not adequate for a review on writ of error under section 136 of the Criminal Procedure act.</p> <p>2. Assignments of error based on a bill of exceptions exhibiting matters properly reviewable on strict writ of error, do not take the place of the causes of reversal required by section 137 of the Criminal Procedure act.</p> <p>3. In criminal oases the court of review will not consider exceptions which have not been authenticated by the signature and seal of the trial judge.</p>

<p>C. executed a trust deed in 1911 conveying personal property in this state to trustees upon trust to pay him the income during his life, and at and after his death to pay the corpus, in designated portions, to his children and grandchildren who were not to have possession or enjoyment before his death; in 1914 the legislature passed an act imposing a transfer tax on property passing to lineal descendants, and in 1917 the settlor died. Held, that the gifts to lineal descendants were subject to the statute of 1914 as a gift intended to take effect in possession or enjoyment at or after the death of the donor, and that the transfer contemplated by the statute and made subject to a transfer tax, did not take effect when the trust deed was executed and delivered ■ but only at the death of the donor.</p>

On certiorari to review an order of a justice of the Supreme Court directing a city clerk to call an election to determine whether certain city commissioners be recalled.

<p>On certiorari.</p>

<p>In estimating the tax to be paid for the transfer of property of a npn-resident intestate decedent, the comptroller included the value of the widow’s interest in lands located in the State of Minnesota where dower has been abolished and the widow takes by inheritance, under the statute, an undivided one-third of the land of her deceased husband. Held, that the widow did not take as doweress, but by inheritance under an intestate law; that it was subject to a transfer tax under the law of Minnesota, and properly included by the comptroller as property inherited under an intestate law in estimating the total estate passing by inheritance from a decedent intestate.</p>

<p>On certiorari.</p>

<p>A public officer, charged with the enforcement of the law, is not entitled, as against the owner of stolen property, to receive a special reward for services rendered in recovering such property, services so rendered being presumed to have been performed in pursuance of the officer’s public duty.</p>

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

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

<p>On appeal from the Third Judicial District Court of Bergen county.</p>

<p>1. Where an original entry is the result of a privilege accorded by law, and the licensee commits an act of trespass, he becomes a trespasser ad initio, but where the entry has been allowed by the owner or occupant in the first instance, an unlawful act of the licensee does not operate to make the original entry a trespass, but subjects the licensee to an action on the case for damages.</p> <p>2. Where a person enters upon lands in accordance with a privilege extended to him, his subsequent dereliction does not constitute a trespass ad initio, and does not operate to subject him to the penalty provided in “An act to prevent willful trespasses upon lands” (Pamph. L. 1857. p. 16; Comp. Stat., p. 5652).</p> <p>3. The act of 1857, entitled “An act to prevent willful trespasses upon lands” (Comp. Stat., p. 5652) is a penal statute, and must be strictly construed.</p>

<p>While the general rule is that a real estate broker, to earn his commission, must be the procuring cause of the sale, the parties may, by special agreement, so limit the operation of the rule, as to make its application depend upon the happening of some stated certain event, and where the written agreement provided for the payment of commission on the selling price “whenever the said property should be sold,” the broker, after having advertised the property for sale, is entitled to his commission, under the contract, even though the property was sold by the owner himself.</p>

<p>On motion to vacate execution.</p>

<p>1. Where inspection of corporate records is sought by a writ of mandamus, the proper practice is to address the writ to the one actually having the custody of the books and records, even though he is merely a ministerial officer, acting under the direction of others.</p> <p>2. A stockholder may employ an expert accountant, not connected with the corporation, to assist him in making an inspection of the books and records of such corporation.</p> <p>3. The executrix of a deceased stockholder in a corporation has such an interest in the corporation as to be entitled to an inspection of the corporate books and records, and it is not a necessary preliminary to the exercise of this right that it be requested by creditors of the estate, or authorized by a coui't.</p>

<p>1. A proceeding for contempt, which has for one of its objects punishment of the contemner, is in its nature a criminal one, and must be governed by the rales applicable to the trial of criminal causes, and the proof must establish the delinquency beyond a reasonable doubt.</p> <p>2. In a proceeding to punish defendant for contempt of court, the defendant denied, under oatli, the contumacious statement attributed to him and testified to by a witness, and in his denial he was fully corroborated by the testimony of a disinterested witness who was present at the interview between the defendant and the witness who had testified to the contumacious statement alleged to have been made. Held, that the burden cast upon the state to establish the defendant’s guilt beyond a reasonable doubt was not sustained.</p>

<p>1. A person is competent to testify to Ms own age, irrespective of the consideration that the fact of age is one of the essentials necessary to be established in order to constitute' the crime charged. The probative value of such testimony is for the jury to pass upon.</p> <p>2. Upon the trial of an indictment for carnal abuse in this state, evidence of sexual intercourse, committed in another state immediately prior to the commission of those acts in this state, is admissible, the several offences forming parts of a series of acts evincing a continuous state of mind in the defendant culminating in the criminal act for which he is indicted.</p> <p>.3. It is a matter of sound discretion with the tidal court to pass upon a request that the jury retire during the examination of a witness to an alleged confession, to ascertain whether such confession was voluntary, and where the record does not show that such discretion was improperly .exercised, the refusal of the trial court to excuse and retire the jury is- not erroneous.</p>

<p>The act of 1894 (Pamph. L., p. 383; Comp. Slat., p. 2442) providing- that whenever a volunteer fire department, which has a relief association, lias been in existence, and a paid fire department is organized to take the place of the old organization, and such paid fire department has organized or may organize a relief association, it may he lawful for the old relief association to instruct its board of representatives to turn over the funds and property to an exempt firemen’s association, expressly repeals all inconsistent legislation and in legal effect repeals the act of 1885 (Pamph. /,., p. 144; fíomp. Stat., p. 2430), to the extent of declaring that a paid firemen’s association may be org-anized, notwithstanding- the prohibition of section 4 of the latter act as to the number of firemen’s relief associations in any city.</p>

The assessment of the right of way of a railroad company used for railroad purposes, cannot be assessed upon the basis either of the general or special enhancement of its market value, but only for actual benefit to such land for the public uses for which it was acquired; such assessment may rest upon the increased facility of use for railroad purposes. On certiorari.

<p>1. An ordinance of the township of Weehawken. which provides that no licenses shall be granted for any automobile or motor vehicle, to be used for the transportation of passengers for hire, in the township, except to a citizen of the United States is legal. The conviction of an alien for driving such a vehicle, in violation of the ordinance, without a license, sustained.</p> <p>2. Citizenship may be the basis of classification for valid legislai tion, but there is, however, in this respect, a distinction to be drawn, 'between those employments, which pertain to a private business; — the right to labor for a living in the ordinary occupations, and those based upon a privilege or a governmental regulation, as part of the police power; in the latter citizenship may be made the basis of a classification, which will not be illegal.</p>

<p>Street railroad corporations are taxed under the act Pumpli. L. 1900, p. 644. The value of their property shall be ascertained by the local assessors and taxed at local rates. xYn annual franchise tax upon the annual gross receipts ,of such corporations is also provided for. On an appeal to the state board of taxes and assessment, by the prosecutor of the value of its property, located in several separate municipalities, it is illegal for the board to add an arbitrary sum called “going value” to the aggregate values of such property as found by the board.</p>

<p>1. In the absence of a statute imposing liability, an action will not lie in behalf of an individual who has sustained a private injury by reason of the neglect of a public corporation to perform a public duty,</p> <p>2. In the absence of a statute imposing liability, a public corporation charged with the performance of a public duty is not liable to an individual either for neglect to perform, or negligence in the performance of, such duty, whereby a public wrong has been done for which indictment will lie, although such individual has suffered special damage.</p> <p>3. When a public corporation is not liable for private injury to an individual, previous notice to the municipal authorities of the condition which caused the injury will not operate to impose liability.,</p> <p>4. As the plaintiff's injury did not result from any active wrongdoing of the defendant — a public corporation — he cannot recover.</p>

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

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

<p>1. When a notary on the due-day of a promissory note presents it at the 'bank where it is made payable and it is dishonored, and he protests it for non-payment and receives information from the assistant cashier that the endorser is dead, leaving a will appointing an executor, naming him and giving Ms address, a notice of protest mailed to the endorser by name, in care of the executor, naming him, at Ms address, is sufficient evidence of reasonable diligence, 'as required by section 98 of the Negotiable Instruments aot (Comp. Stat., p. 3746), to be presented to tlie jury.</p> <p>2. The rule adopted in some jurisdictions that when requests for 'the direction of a verdict are made by the parties plaintiff and defendant, all questions of fact are left with the court and are not to be submitted1 to the jury, has never been adopted in this state; the requests not amounting to a consent that the case be taken from the jury.</p> <p>3. A holder of :a¡ promissory note presented for payment and dishonored, is entitled to rely upon the diligence of the notary in inquiring for the address of a party obligated upon the instrument, and1 is not affected by want of diligence in the officers of the bank where the note was. payable, and of whom inquiry was made.</p> <p>4. The credibility of a. witness is for the jury; and where the issue depends upon the facts the existence of which is not admitted, even though testified to by a credible witness who is unchallenged, the question is for the jury.</p> <p>5. It is settled that a written notice of the dishonor of a note to the parts1' to be charged, addressed to him properly and put into the post office in due season, amounts to what is termed due diligence even if the notice should never 'be received by the addressee.</p>

<p>1. Defendant was indicted and tried for keeping a disorderly house under section 65 of the Crimes act (Comp, ¡¡tut., p. 1766), the pertinent part of which provides that any person who shall habitually, or otherwise, keep a place to which persons may resort for gambling in any form-, or aiding, abetting or assisting therein, shall be guilty of a misdemeanor, requires that a person charged, in order to be guilty, must have kept the place with intent that persons might resort there for gambling. This differs from the case of an indictment for keeping a disorderly house at common law, where intent is immaterial.</p> <p>2. On trial of a defendant on an indictment under section 65 of the Crimes act, a charge to the jury by the trial judge that if defendant knew that gambling was going on in the place of which he was lessee he is guilty; that it is not necessary that he he present when the offence is committed if he had actual knowledge thereof; that it is the keeping of the place to which persons may resort for gambling in any form which constitutes the offence with which defendant is charged, and he could keep the place if he employed others to manage or run it for him during his absence — is not an instruction that the defendant must have kept the place with intent that persons might resort there for gambling. Knowledge is not enough under this statute. It must be coupled with intent, to render the keeper of the house guilty.</p> <p>3. While one in possession of certain premises may know that gambling is going on there, nevertheless he may not have intended that persons might resort to the place for such purpose.</p> <p>i. Where counsel, in summing up to the jury, goes outside of the testimony and makes appeals based upon facts which have not been proved but rest upon bis unsupported assertions, the party injuriously affected must, in order to be relieved, move the trial judge to order the remarks stricken out and to charge the jury that they 'be disregarded; and objection only to the illegal remarks does not require the trial judge to strike them out of his own motion, and unless counsel requests their elimination no ground for review is laid.</p>

<p>On appeal from the Supreme Court, whose opinion ■ is reported in 90 N. J. L. 423.</p>

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

On error to the Supreme Court. The Supreme Court filed the following memorandum: “Pee Cueiam. “The prosecutor, John D. Foley, was charged with violating rule 15 of the police rules, and was tried on the charge by the board of commissioners of the city of Orange, found guilty and dismissed from the force. “The jurisdiction to try the prosecutor is under the act of 1915, p. 495, section 4, vested in the commissioner of the department of public safety.

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 414.</p>

<p>1. In a workman's compensation case the judge of the Pleas must, as the result of the hearing had before him, make a determination of every factor that, under the statute, enters into the award of compensation.</p> <p>2. The compensation for two or more permanent partial disabilities . is to be awarded upon the principles laid down in the case of . Orlando v. Ferguson, .90 N. J. L. 553.</p>

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

Action by the executors of Wise to recover damages for 1he failure of Hughes to perform properly a contract for the 'building of a dwelling-house. The dwelling was completed in June, 1912, and occupied some time before that by Wise’s family. The architect, pursuant to the contract, gave a. certificate for the final payment September 28th, 1912, and the executor made the payment October 9th, 1912.

The plaintiff was injured while crossing a public street in Newark by the defendant’s motor car. The jury might properly find that a street ear had stopped for passengers; that the plaintiff was crossing the street in front of the car and was struck by defendant’s motor car which had overtaken the street ear and was passing on the left.

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

Replevin for a lot of terra cotta which had been supplied bv the Central Terra Cotta Company to the Richman Construction Company and delivered on the grounds of the Wild-wood Board of Education to be used in the construction of a school house by the Richman Construction Company. The school house was building under a contract between the Rich-man company and the board of education.

<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>1. Where the evidence tended to show that a manufacturer of steam heaters, at the request of a florist, sent his salesman to the florist’s greenhouse for a consultation as to the number and sizes of heaters required for the florist’s purposes, and the salesman examined the premises, took measurements, and told the florist (who disclaimed any knowledge of the number and sizes required) that a Number 11 -and a Number 12 would supply the heat required, and agreed to furnish them, it was open to the jury to find that there was a warranty of the fitness of the heaters for the purposes contemplated.</p> <p>2. The question whether or not a statement or affirmation accompanying a sale is a warranty depends upon whether the com ditions were such that the vendee had a right to understand, and did understand, that what was said by the vendor was meant as a warranty. A decisive test is whether the vendor assumes to assert a fact, of which the buyer is ignorant, cr merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion, and to exercise his judgment. In the former case there is a warranty; in the latter, not.</p> <p>3. A principal may ratify his agent’s unauthorized warranty, and if, with full knowledge of all the facts and circumstances attending the transaction, he does so, he is bound thereby.</p> <p>4. When the evidence tended to show that a manufacturer of steam heaters, which failed to do the work that they were warranted by his agent to do, with full knowledge of all the facts and circumstances of the transaction, acknowledged that the trouble was due to the mistake of his agent, offered to pay- the expense of a temporary makeshift, proceeded to install adequate heaters, and all without any repudiation of the acts of his agent, it was open to the jury to find that thereby he ratified the warranty of his agent.</p> <p>5. For the failure to fulfill a contract to furnish steam heaters adequate to heat a greenhouse sufficiently to force plants for the winter and early spring markets, the measure of damage is the difference between the market value of such plants in the winter and early spring markets and their market value when they were in fact matured.</p>

<p>On appeal from the Supreme Court, whose opinion is reported ante ¶. 100.</p>

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

<p>Under section 58 of the Railroad act of 1903 (Comp. Stat. p. 4240) amended in 1912 (Pamplh. L., p. 205), all actions accruing from injuries to persons caused by the wrongful act, neglect or default of any railroad company owning or operating any railroad within . this state, shall be commenced and sued within two years next after the cause of action accrued and not after; and the infancy of the person injured will not exempt him from the operation of this statutory rule.</p>

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

<p>The subsequent default of a building' contractor who has earned a payment under his contract will not bar the rights of a claimant by stop-notice who has secured a lien on such earned payment thereby, although the contract contains provisions enabling the owner to take over the work and apply money unpaid to Ihe contractor to the expense of its completion. ¡Slone Post Company v. Corcoran. 80 A. L. 519, followed.</p>

<p>On error to the Supreme Court, whose opinion is reported in 90 N. J. L. 21.</p>

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

<p>1. The correction of a verdict upon which a judgment rests is the function of the trial court. An appellate court on writ of error deals only with the legality of the judgment or its evidential support when the question is properly presented. A writ of error does not lie to. set aside a verdict because it is alleged to be contrary to law and the weight of the evidence.</p> <p>2. Where the plaintiff has a verdict and takes a rule to show cause why it should not be set aside as to damages only and, the rule being made absolute, is awarded damages at the second trial, on which he enters judgment, the defendant is not on appeal from this judgment, deprived of the benefit of exceptions taken at the first trial, for he could not appeal until a final judgment was entered, and assessment of damages by the second jury merely completes the record upon which the judgment is founded.</p>

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

<p>Where a plaintiff offers in evidence, in support of his case, a written release, signed by him alone, of all claims for damages suffered by him while in defendant’s service, in consideration of a stipulated payment to be made in instalments, and then as a witness testifies that he never executed the release; that his signature was obtained by the fraud of the releasee, which induced the execution, and his testimony stands uneontradicted, he has destroyed the evidential value, so far as he is concerned, of the paper he offered, and cannot use it for his own benefit to support a consideration for an oral promise differing from that contained in the writing, especially where he has, in another action to recover damages for the same injuries and to avoid the effect of the release, set up fraud in execution.</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, whose opinion is reported in 90 N. J. L. 386.</p>

<p>On appeal from the Supreme Court. On a judgment of ouster upon information in the nature of quo warranto.</p>

<p>3. It will not avail an appellant to take a general exception to the charge of the trial judge. In order to have the exception considered by the appellate tribunal it must appear that the attention of the trial judge was specifically called to the matter challenged as erroneous.</p> <p>2. The exemption of a municipal corporation from action by individuals suffering special damage from its neglect to perform or its negligence in performing public duties, whereby public wrong, for which an indictment will lie, is done, does not extend to actions where the injury is the result of active wrong-doing, chargeable to the municipal corporation.</p> <p>3. The fact that a municipality had performed a lawful and necessary work, in a manner not injurious to the public, does - not relieve it from the liability to persons injured for active wrongdoing.</p> <p>4. A municipality has no right, by artificial drains, to divert surface water from the course it would otherwise take, and cast it, in a body large enough to do substantial injury, on land where, but for such artificial drain, it would not go.</p>

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

<p>It was not error for the trial court to answer no to the following question on which the judgment is based: “Does a half brother of the intestate, not of the blood of the ancestor, from whom the estate came, take the estate, to the exclusion of an aunt of the intestate; being the sister of the ancestor from whom the estate descended”? following: Delaplaine v. Jones, S. N. J. L., 840; Miller v. Speer, 38 N. J. Eq., 574.</p>

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

<p>When real estate agents undertake to procure title to a designated lot oí real estate for a purchaser, who cannot read or write, but negligently procure title to some other lot, without the knowledge of the purchaser, the real estate agents are liable to the purchaser for ensuing damages, the result of their negligence. For the facts of the case, which are somewhat unusual, see the opinion.</p>

<p>1. A solicitor of a building and loan association of New Jersey, being entrusted with a cheek, drawn to the order of the borrower-, to exchange for a first lien bond and mortgage on real estate, is a special agent, under the by-laws of the association in this case. His agency can not be enlarged, by receiving more money from the borrower, to be disbursed in discharging obligations and liens of. the borrower on the real estate, so as to make the building and loan association liable for the misappropriation of such money, received from the borrower.</p> <p>2. On an issue of agency, when the facts are not in dispute, and the inferences from them are not in doubt, the question is one of law for the court.</p> <p>3. A special agent, as distinguished from a general agent, is one employed for a particular purpose only.</p>

<p>1. Statutory liens upon the landlord’s estate in leased real property for water rents or charges for water supplied thereon to the tenant., must depend for their validity either upon the taxing power or upon contract.</p> <p>2. If it is the taxing power which is relied upon, the imposition, in order to he constitutional, must be laid under uniform rules according to the true value of the property taxed, or in accordance with special benefit to it. as a property.</p> <p>8. Such a lien for charges for water supplied to a tenant by measure at a fixed price per thousand cubic feet cannot be sustained under the taxing power. It must depend upon contract expressly or impliedly authorized by the landlord.</p> <p>4. The fact that a statute providing' for a lien against the “premises” for unpaid-for water supplied thereto by a municipality, is on the statute books, reads into every lease when made an authority to the tenant to subject such premises to such lien for the unpaid-for water which the circumstances indicate the parties contemplated should be supplied (within the limitations of the statute) to the tenant upon the premises in pursuance of the lease.</p> <p>5. Where the statute makes it the “duty” of the municipality to shut off the supply of water for non-payment at maturity of any bill for charges for water, there can (in the absence of other authority) be no lien against the landlord’s estate in the property for water supplied to the tenant, on his contract alone, in violation of this duty after such default and after a reasonable time thereafter for ascertaining the same and for shutting off the supply.</p> <p>6. Wliere the leased property was vacant land withont any connection with the municipal water supply, and the tenant without the landlord’s authority, knowledge or consent, caused the municipal water supply to be introduced and water to be supplied by measure to a garbage disposal plant which he established —Held, that the landlord’s estate in the land was not liable to a lien for unpaid water charges.</p>

<p>1. The implied invitation of the storekeeper is broad enough to include one who enters a general store with a vague purpose of buying if she sees anything that strikes her fancy.</p> <p>2. The question of invitation to a customer to enter the space in a store back of the counters, obviously reserved as a' place for the sales-employees to work, is for the court, because in the absence of other circumstances there is no evidence of invitation.</p> <p>3. Where, however, there was through the counter an. opening or passageway leading to a small book-rack against the wall filled with books with the titles displayed for selection and so dimly lighted that it was necessary to enter the passageway to read the titles and make selection — Held, that such circumstances constituted some evidence of implied invitation, and that a jury question consequently arose, although the testimony showing the circumstances was undisputed.</p>

S. of C., pp. 35, 36. “The prosecutor continued in office from that date up to and until June 15th, 1916, at which time he was dismissed without any charges having been presented against him, or any hearing afforded him, and one James Peterson succeeded him.

“The plaintiff was injured by a protruding spike under a log which he was handling, and which was not within his view. The negligence against the company is charged as follows: That the defendant negligently and carelessly and without fault on the plaintiff’s part, permitted certain spikes or bolts to protrude from said poles, which condition was unknown to the plaintiff.

At'that time Frederick Butler, Adam C. Dernier, John Yalluzzi, Daniel Small, Andrew H. Haring, Irving Waltermire, Paul 1ST. T. Purps, Thomas Gash and Clarence Wouters (nine in all; the positions of Thomas Gash and Clarence Wouters were subsequently abolished) were holding the position of court attendants. “On the tenth day of December following, the sheriff attempted to remove them by appointing seven others in their places.

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 47.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 349.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 427.</p>

“'By the terms of this contract it appears that the defendant by deed bearing date the same date as the contract, conveyed to the plaintiff a tract of land in consideration o£ the payment of $13,800, that for such consideration, in addition to the premises conveyed, the defendant agreed To erect for the said party of the second part on or before the first day of April next on the rear of the above described premises, a one-story brick or stircco garage, to be twelve feet…

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 427.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. h. 450.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 406.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 35.</p>

“The District Court sitting without a jury gave judgment for the plaintiff, from which the defendant appealed. The questions argued by the appellant were raised in the court below by motions or requests to find. “The first contention is that the driver of appellee’s team was negligent in not having such a light as is required by the statute.

“The couid deducted certain items from the sum claimed, amounting to §21.20, and gave judgment for plaintiff for the balance. “It is urged in support of this appeal that it was error to refuse to admit in evidence a copy of a three days’ notice to proceed with the contract which the defendant testified she mailed to the plaintiff.

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 93. • .</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 90 W. J. L. 432.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 362.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 106.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in ante p. 129.</p>

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

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

The suit arose out of a lease made by the plaintiff below to the defendant, of a tract of marshy lands near Atlantic City, almost surrounded by water, and which the defendant company wished to use for the installation of a large gasoline tank and its foundation, for the purpose of supplying motor boats. “During the term of the lease, the defendant, becoming dissatisfied, abandoned the premises, and the suit was by the landlord for rent, the defence set up being fraud of the…

<p>On appeal from tlie Supreme Court, whose opinion is reported 'in 90 N. J. L. 469.</p>

<p>On error to the Supreme Court, whose opinion is reported in 90 N. J. L. 78.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 378.</p>