Volume 93 — New Jersey Law Reports

<p>1. "Where an unlawful taking and detention by the defendant is the result of malice, or wantonness, the plaintiff may, in an action of replevin, as in other tort actions, recover exemplary damages.</p> <p>2. The right to award exemplary damages primarily rests upon the single ground — wrongful motive; and when the personal intent to injure is shown, the penalty may be, inflicted. The power to inflict punishment is not dependent upon the form of the action by which the injured party seeks redress for the wrong done him by the malicious or wanton trespass committed against his property.</p>

<p>1. The provisions of the Workmen’s Compensation act with relation to the recovery of compensation applies only where the contract of hiring was a valid one, and not where such a contract is prohibited by the statute laws of the state.</p> <p>2. Where an infant is put to work by his employer in direct contravention of the provisions of the Factory act, the common law liability of the employer to compensate the employe for injuries caused by the negligence of the former is not affected by the provisions of the Workmen’s Compensation act.</p> <p>3. Where an infant is hired to do work, in contravention of the Factory act, by reason of false representations, by him, that he is not within the age limit specified in that statute, such false representation does not relieve the employer from the common law liability to compensate for injuries caused by the employer’s negligence.</p> <p>4. A child who is employed in violation of the Factory act is not chargeable with contributory negligence, or with having assumed the risks arising out of that employment.</p>

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

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

<p>1. The jurisdiction of the State of New Jersey, both civil and criminal, extends to the middle line of the tidal waters of the Delaware river, separating this state from the State of Delaware.</p> <p>2. An indictment charging the sale of intoxicating liquor “at Penns Grove, in the borough of Penns Grove, in the county of Salem,” is not supported by proof that the offence complained of was committed in or upon the waters of the Delaware river adjacent to the borough.</p>

<p>1. An appellate court will not consider a ground of reversal which challenges the' sufficiency of the testimony. It is only where the contention is that there is no evidence whatever to support the verdict that the court will examine the testimony, and then only for the purpose, of ascertaining whether such contention is well founded.</p> <p>2. A jury has a right to use their own experience in the consideration of the credit to be given to ■ the testimony of a witness; they may consider the demeanor of the witness, his manner of testifying, his appearance, mental capacity, power of observation, closeness of attention, the probability of his statements, and their inconsistencies and contradictions, and other matters which would constitute a proper test under the circumstances of the case.</p>

<p>On error to Hie Hunterdon Comity Court o£ Quarter Sessions.</p>

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

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

<p>By statute it is made unlawful to sell, or permit to be sold, without a license, certain specified liquors. The permission here made unlawful is such permission as amounts to actual assent and not such permission as involves mere failure to act.</p>

<p>On summary investigation of a corporate election.</p>

<p>On certiorari to Warren County Common Plea?.</p>

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

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

<p>On plaintiff's rule to show cause why verdict should not be sot aside.</p>

<p>On writs of error to the Atlantic Quarter Sessions. Court.</p>

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

<p>On defendant’s rule to show cause why plaintiff’s verdict should not he set aside.</p>

<p>On certiorari.</p>

<p>1. Under the supplement of 1903 to the Landlord and Tenant act {Pamph. L., p. 20; Comp. Stat., p. 3070), as amended in 1910 (Pamph. L., p. 233), 1913 (Pam¿h. L., p. 743) and 1915 (Pamph. L., p. 90), a justice of the peace has no jurisdiction in summary dispossession proceedings in cases where the premises are situated in a city where there is a District Court.</p> <p>2. Jurisdiction over the- subject-matter of a suit cannot be con- . ferred by consent, nor can the right to object to the want of it be lost by acquiescence or neglect.</p>

<p>Oil certiorari.</p>

<p>On certiorari.</p>

<p>Defendants appealed from a judgment against them in a District ■Court, and there b.eing no disputed question of fact, this court reversed the judgment below "and ordered a judgment final in this court in favor of the defendants. Held, that in such a case the appellate court ought not, in the exercise of discretion, withhold from the defendants, the prevailing party, the costs of the appeal under a statute providing that the prevailing party in any action at law shall be entitled to costs, unless the court should order otherwise.</p>

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

<p>The defendant, a married woman, living -separate and apart from her husband, purchased real estate and caused it to be conveyed by the vendor to her' mother, she executing a mortgage for a part of the purchase price, the defendant paying the balance. When the conveyance was delivered the mother executed a declaration of the trusts upon which shei held the title, which were (a) to collect the rents, pay interest, taxes and other charges, and the ■balance to the defendant; (6) to convey the land to any person to whom the defendant might, in writing, direct and pay the consideration price, less charges, to the defendant, and, if not so directed, to convey to such person as the defendant might direct by her last will and testament, or on failure to thus appoint to convey to defendant’s daughter. With the title so held the defendant entered into a written contract with the plaintiff to sell her the land and tendered-a deed duly executed by the trustee which the plaintiff refused to accept because it was not signed by the husband of the defendant, they having a child living. The only objection to the deed of the trustee was that the defondant's husband has a contingent right by curtesy which might be consummated on the death of the defendant, his wife. Held, that in order to consummate an estate by the curtesy in the husband at the death of the wife, a child having been born to them, the wife must have a beneficial interest under the trust deed at her death, and that all beneficial interest of the wife m the land ended when the trustee conveyed according to the terms of the trust, during the life of the wife, and that the deed of the trustee would remove the foundation upon which estate by the curtesy rests or can be. consummated as to any beneficial interest the wife may have had under the trust deed.</p>

<p>On appeal from Warren County Common Pleas.</p>

<p>An assessment by a municipality fox’ benefits arising from street paving upon property used entirely for railroad purposes can only be for such benefits as may accrue to the property in such use; hence, where no special benefit to the property so used is shown, the assessment will be set aside.</p>

<p>As a result of an explosion, arising out of and in the course of his employment, an injured workman lost one of his testicles.— Held, that such a loss is equivalent to a permanent bodily impairment involving the payment of compensation therefor under the Workmen's Compensation act; and held, also, under said act tile criterion of “disability” is not limited to loss of earning power, but may extend to a physical impairment of a bodily organ.</p>

<p>The fact that the submission of the question of local option at a special election is safeguarded by specific legislative preparatory requirements, as to notice, public meetings and ballots, furnishes a legal constructive inference, in the absence of like requirements at the general election, that such protective publicity regulations were not within the legislative contemplation.</p>

<p>On certiorari removing-judgment of justice of peace.</p>

<p>On certiorari.</p>

<p>On certiorari of order removing clerk of District Court from office.</p>

<p>Where, in a workman’s compensation case, an inference may properly be drawn from the evidence that the nature of the decedent’s injuries was of such seriousness as to greatly impoverish his system and predispose it to an infection of tuberculosis, of which there was not the slightest indication before the injury, and from which he died, a finding that decedent died as the result of such injuries will not be disturbed.</p>

Tlie state of the case agreed upon between counsel of. the respective litigants shows that some time prior to June, 1918, the Schultz Printing Company made and executed a chattel mortgage on the assets of its printing business. Prior to the above date one Van Poznak, a duly licensed auctioneer, was employed by the Schultz company to soil all its assets at public sale.

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

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

<p>1. An affidavit annexed to a chattel mortgage in these words: “Donald G, Taggart, the mortgagee in the foregoing mortgage named, being duly sworn, on his oath, says that the true consideration of said mortgage is as follows, viz.: Money loaned to the said Frederick S. Taggart on November 1st, 1916, evidenced by a certain promissory note made by him to me, dated November 1st, 1916, and due in one year, with interest at six per cent, per annum, interest -on which has been paid to May 1st, 1917, and deponent further says that there is due on said mortgage the sum of three thousand dollars besides lawful interest thereon from the first day of May, nineteen hundred and eighteen,” read together, with the recitals in the body of the mortgage, is a sufficient compliance1 with the terms of the statute. Comp. Stat., p. 463, ¶ 4; Pamph. L. 1902, p. 487, ¶ 4.</p> <p>2. The affidavit and the recitals in the body of the mortgage should be read together to ascertain whether there is a sufficient compliance with the terms of the statute'.</p> <p>3. The affidavit and the recitals in .the mortgage must show how the relation of creditor and debtor arose between the mortgagor and mortgagee, not merely what evidence has been given of the debt, but what is the price of the debt, the cause of the indebtedness, how the debt came into' existence, as a loan of money, and the like.</p> <p>4. In the absence of fraud, where there is an honest and substantial compliance with the statute, the mortgage will not be open to attack of other creditors, merely because the affidavit is inartificaily drawn.</p>

<p>1. Where liability is made to depend at all upon notice to a party, the adversary party must establish the notice before the other is called upon to contest it.</p> <p>2. A mere fall of a person on the premises of another without any evidence to show how the fall was occasioned, raises no presumption of negligence on the part of the owner, and the doctrine of res ipsa loquitur, which is only applicable when the thing shown speaks of the negligence of the defendant, not merely of the happening of the. accident, does not apply.</p> <p>3. Whether a jury is ordered by the court to inspect or examine premises as an aid in ascertaining the truth of any matter in dispute between the parties to an action under the Evidence act (Comp. Slat., p. 2229. § 30), or to view any place to enable the jury better to understand the evidence given in the cause under 1he Jury act (Comp. Stat.. p. 2976, _§§ 31, 35), the judgment rendered by the jury should, nevertheless, be reversed if legally unsuppoi-table in and by the record under review, as the questions presented to an appellate court should be decided upon what appears in the record brought up from the court below, notwithstanding a view was had by the jury which tried the cause.</p>

<p>Plaintiff, the widow, obtained letters of administration in this state upon the estate of her deceased husband, and brought suit in the Camden Circuit Court under the New Jersey Death act against the director-general of railroads for damages arising from the death of her husband while a passenger on a train of the Pennsylvania Railroad Company, in the State of Pennsylvania, for the benefit of 'herself, as widow, and her children, who were next of kin of her deceased husband, -and had a verdict, upon which judgment was entered. It was alleged in the complaint, and the testimony disclosed, that the accident resulting in the dj?ath of decedent occurred in the State of Pennsylvania, and, therefore, the Death act of our state does not apply. But as the record discloses no objections made to parties dr pleadings, and that issue was joined and the case was tried upon its merits; and as on this appeal objection is made for the first time that the action does not lie in this state, it is held, that it does, and that the judgment should be sustained, with the exception of the quantum of damages; and that the case should be remitted to the court below with leave to the plaintiff to apply for, and direction to that court to grant, appropriate amendments to the proceedings, so .as to bring the cause within the provisions of the Death act of Pennsylvania, which are given effect here by comity, and to then grant a new trial on the question of damages only, the award being excessive, because in the verdict was included a recovery for not only the widow but also the next of kin of deceased, while the statute of Pennsylvania allows it only for the benefit of the widow.</p>

<p>The widow or children of a police officer or policeman who has died or Shall die as the direct result of any injury received, or sickness or illness contracted or incurred while in the performance, or attempted performance, of actual duty, are entitled to receive a pension, as provided for in Pamph. L. 1911, p. 104, § 4.</p>

<p>B. R. entered into a contract with the freeholders of 'Atlantic to •build a road. It was finished and accepted, subject to B. R.’s obligation to maintain and repair it for one year thereafter, to secure which the freeholders, under the terms of the agreement, retained five per cent, of the contract price, which amounted to $9,830.14. Afterwards the contract and the retained percentage were assigned by B. R. to T. B. R., and by him to M. W. N., the plaintiff. T. B. R., as principal, and the defendant, G. I. G., as surety, entered into a bond to the plaintiff, M. W. N., in the penal sum of $10,000, with condition that if the principal, J. B. Ii., should repair all defects in the roadway arising from defective workmanship or material, ordinary wear and tear excepted, and should indemnify and save harmless the obligee, M. W. N., from and against all loss which he might be put to by reason of the failui*e of the principal to cause said repairs to be made, then, &c. Plaintiff, M. W. N., received from the freeholders 88,330.14, who retained the balance of $1,500 out of the retained percentage to make good defects in the roadway, which had not been repaired. There was evidence that the repairs had not been made and that it would cost $1,500 to make them. Hold, that in these circumstances the plaintiff, M. W. N., had been “put to loss” in the sum of $1,500; and that, therefore, there had been a breach of the'bond, and that plaintiff was entitled to recover.</p>

<p>On gi’tot to tlie Supreme Court, whose opinion is reported in 92 N. J. L. 135.</p>

<p>A person who assumes to protect others against injury which may result to them from the exercise by him of a legal right in a legal manner is under no obligation to continue that protection indefinitely. He may abandon his purpose at his own will, and having done so, is under no obligation to afford further protection to third persons who have knowledge or notice of such abandonment.</p>

<p>1. On the trial of a suit on a bond for a deficiency, evidence is not admissible to show that the amount paid for the property at the foreclosure sale was less than the value of the property.</p> <p>2. In a suit for damages for false representation, the plaintiff is entitled to receive as damages the amount actually lost by reason of the false representation, which, in this case, was tlie amount paid for securities which were worthless.</p>

<p>An order for execution which provides that the garnishee shall pay-over to the officer to whom the writ is delivered the full amount of the money coming to his hands for the use of the debtor is not in accordance with the provisions of Paraph. L. 1916, p. 242, which provides for a payment to the sheriff, or other officer, of a certain percentage of earnings or income, and will be set aside.</p>

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

<p>1. A plaintiff is not entitled to the benefits of the Federal Employers’ Liability act of April 22d, 1908 (35 Stat. at L., p. 01, cln 149; Comp. Stat. 1913, § S657), unless, at the time of the injury complained of, he was “employed” by the defendant railroad company within the meaning of that act. The word “employed” is used in the statute in its natural sense and is intended to describe the conventional relation of employer and employe,</p> <p>2. Where an interstate railroad company contracts with an independent. stevedoring corporation whereby the latter, at a stipulated charge per- ton, undertakes to load and unload freight of the railroad, at its water front terminal, into and out of cars and vessels, and the stevedoring corporation selects and removes its own servants, defines their duties, fixes and pays their wages, directs and supervises the performance of their tasks, subject only to the exigencies of railroad transportation, and to such inspection and control by the railroad as is essential -to enable it to perform its functions as a common carrier, a workman of the stevedoring corporation thus selected, paid and directed, and engaged in the work thus contracted for, is not an employe of the railroad within the meaning of the Federal Employers’ Liability act of April 22d, 1908 (35 Stat. at L., p. 05, oh. 149; Comp. Stat. 1913, § 8657), and is not entitled to the benefits of that act in an action against the railroad' company.</p> <p>3. No evasion of the provision of the Federal Employers’ Liability act of April 22d, 1908 (35 Stat. at L., p. 66, oh. 149; Comp. Stat. 1913, § 8661), that “any contract, rule, regulation, ■ or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to- that extent be void,” results from the making of a contract by an interstate railroad carrier with an independent stevedoring corporation under which the work of handling the railroad company’s freight from cars to boats and from boats to- cars at its water front terminal is to be performed by such independent contractor, even though the latter expressly assumes all liability for injury to its employes while employed upon the premises of the railroad company.</p>

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

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

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

<p>1. Homicide by one engaged in perpetrating a robbery being made by statute murder in the first degree, the jury were properly charged that on such a state of facts, the verdict should be murder in the first degree, or defendant was entitled to an acquittal.</p> <p>2. An instruction that under the act of 1916 (Pamph. L., p. 576), the jury in rendering a verdict of murder in the first degree might recommend that the punishment be' imprisonment for life, substantially states the effect of that statute.</p> <p>3. The jury having asked and having received correct instructions on the propriety of recommending mercy in connection with a verdict of murder in the first degree, the court properly refused to repeat its prior instruction inspecting a recommendation of life imprisonment.</p> <p>4. The defence in a criminal case is not entitle! to ask questions of a juror called to the book, no' challenge being interposed, for the purpose of eliciting information on which to base a peremptory challenge. Clifford v. State, 61 N. J. L. 217, followed.</p> <p>5. Whether duress is, under any circumstances, an excuse for crime, guerre.</p> <p>6. Evidence of threats made to defendant by a partner in crime, before and after the crime, held, incompetent for submission to the jury in connection with consideration of a recommendation of life imprisonment.</p>

<p>On error to Middlesex Oyer and Terminer.</p>

<p>On appeal from the Monmoufh County Circuit Couth</p>

<p>The defendant was indicted and convicted of a conspiracy to cheat and defraud. One of the conspirators, by a false representation, obtained, from the victim of the conspirators, $25,000 upon an agreement to divide it equally between the conspirators, but ho falsely represented to them that ho obtained only $20,000, which was divided, defendant getting a share. Subsequently, defendant ascertaining that he -had been defrauded by his co-conspirator,, demanded and was paid a share of the residue of the money-extorted. The first division was more than two years prior to the finding of the indictment, but the last was within the statutory limitation. Held, that the last division was a continuance of the conspiracy, and .that the original conspiracy to cheat and defraud, a person .and divide, the proceeds was not completed until after the contemj)lated division' of the proceeds was finally concluded, -and if there was a division within two years, that being the statutory limitation, before the indictment was found, the statute was not a bar because the crime was not concluded by the limitation until two' years after -the last overt act in furtherance of the corrupt agreement. ' ■</p>

<p>The by-laws of defendant association required notice of thirty days to a member of an assessment and provided that for failure to pay the same within the thirty days a forfeiture would result. Held, upon a claim for the amount due upon a death certificate, where a forfeiture by reason of the non-payment of the assessment, within the thirty days, that in the absence of a prescribed method of service in the constitution or by-laws, the notice must be actually or personally served upon the member, as a condition precedent to the forfeiture of his personal and property rights.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 92 N. J. L. 141.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 92 N. J. L. 146.</p>

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

<p>A communication, made by a client to an attorney, concerning the drafting of a will for the client, is a privileged communication which continues after the death of the client, and the privilege is not waived by the fact that the attorney was one of the subscribing witnesses to the will.</p>

<p>Under the provisions of the statute of 1909 (Pamph. L., p. 137), a person who crosses a railroad at a public highway, where a bell, designed to protect travelers, has been installed, is entitled to assume that such warning appliance is in good order and will be duly and properly operated, unless a written notice “Out of Order” is posted in a conspicuous place at such crossing; and under such circumstances the failure of the person to “stop, look and listen” before starting to cross the tracks, will not bar his right to recover due to such failure of the railroad company.</p>

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

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

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

Justice Garrison: “The petitioner was injured while painting a baggage-room used by the prosecutor at its Cape May terminal for the reception and storage of both interstate and intrastate baggage. Whether or not the petitioner was engaged in interstate commerce depends upon whether the baggage-room was an instrumentality used 'by the carrier in the handling of its interstate business.

<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 91 N. J. L. 364.</p>

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

. On appeal from the Supreme Court, in which the following per curiam was filed: “This is a workman’s compensation case, and the main point raised relates to the finding by the trial court of total and permanent disability. “The original injury was a very bad fracture of the arm, which was compound, and became infected and discharged pus for a long period. Amputation was seriously considered, but the arm was saved.

The case was tried with a jury, who returned a verdict in favor of the plaintiff, from which the defendant has appealed. There is no claim set up, that the car did not belong to the plaintiff, but the controversy is, that she lost title by negligence or estoppel.

On error to the Supreme Court, in which the following per curiam was filed: “This case is before us for review upon strict bills of exception and under the one hundred and thirty-sixth section of the Criminal Procedure act. Moynihan, the plaintiff in error, was convicted of murder in the second degree in the Hudson Oyer and Terminer, on an indictment charging' him with having murdered Edward Fantry on October 7th, 1916.

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

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

<p>1. To entitle a party to maintain an action for malicious prosecution, he must show that the prosecution of which he complains has ended and that its determination has been in his favor. The entry of a nolle prosequi or the rejection of a complaint by the grand jury puts an end to the particular prosecution within the meaning of this rule.</p> <p>2. Where, on the trial of an action for malicious prosecution, the question of the existence or non-existence of probable cause depends upon facts not controverted, that question is one of law to be determined by the court, and not one to be submitted to the jury.</p> <p>3. Plaintiff was arrested by a police officer, acting as the representative of one of the departments of the city government, and charged with a robbery from defendant company’s freight cars, and all the subsequent proceedings against him were taken by the public authorities in the ordinary routine steps by which a criminal charge is brought to the attention of the grand jury. Held, that the prosecution, alleged by the plaintiff to have been malicious, was not instituted by defendant company.</p>

<p>1. It is not error for a trial judge to inform a jury, in a murder case, of the power of supervision possessed by the pardoning tribunal, in case they should bring in a verdict of first degree murder with a recommendation of life imprisonment.</p> <p>2. In determining the question of the punishment to be imposed in the case of a verdict of first degree murder, the jury may consider the evidence which has been adduced at the trial; and it is not error for the trial court to instruct them that they may supplement their verdict by a recommendation of imprisonment at hard labor for life if they conclude that by reason of the circumstances of the ease, ,or because of any other reason, such action will be justified.</p> <p>3. It cannot be said, as a matter of law, that if a criminal homicide be the result of an irresistible impulse, existing in the mind of the defendant (assuming that the law recognizes such an impulse as an element to be considered in determining the degree of guilt of the defendant), he cannot be convicted of murder in the first degree.</p> <p>4. The doctrine that a criminal act may be excused or mitigated upon the notion of an irresistible impulse to commit it, where the offender has the mental capacity to appreciate his legal and moral duty in respect to it, has no place in the law.</p>

<p>1. Tiie purpose of section 5 of the Evidence act (Pamph. L. 1900, p. 3f‘>3) is to modify to some extent the harsh rule of the common law, which prohibited a husband or wife from being a witness in a litigation to which either was a party or in which either had an interest; and the proviso of the section merely imposes a limitation upon such purpose.</p> <p>2. Although it was a general rule of the common law that neither a husband nor a wife could testify for or against the other in a criminal proceeding, a most noticeable exception to the rule was that in cases of personal injuries committed by the husband against the wife, or by the wife against the husband, the injured party is a competent witness to prove the act of violence.</p> <p>3. Mental unsoundness, produced by intoxication, even when it is so pronounced as to exhibit an entire prostration of the faculties of the defendant, is no defence against a criminal charge.</p>

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

<p>1. The legislature, in creating a new tribunal like the Court for the Trial of Juvenile Offenders may prescribe what record it shall keep or whether it shall keep any record at all, and if it does, what use, if any, shall be permitted of the record.</p> <p>2. The fact that exclusion of parol proof, because proof must be by record, and exclusion of the record by legislative enactment, may result in preventing a party from recovering on a contract because of the impossibility of proof, is no argument against the legislative restriction. '</p>

<p>1. Where an accident is the result of a risk reasonably incident to the employment, it is an accident arising out of the employment.</p> <p>2. A risk is incidental to the employment when it belongs to or is connected with what an employe has to do in fulfilling his contract of service. It may be either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment, owing to the special nature of the employment.</p> <p>3. Where decedent while at work for his employer as a bartender selling intoxicating liquors in his employer’s saloon, was shot and killed by a patron because óf and during a dispute regarding the price of drinks which decedent sold to such patron,-the trial judge was justified in concluding that decedent’s death arose out of his employment.</p>

<p>1. Leaving out of consideration tbe Tax' act of 191S, page 847 (which has no application to the present case), under section 43 of the General Tax act of 1903 (Comp. Stat., p. 5126), taxes in arrears bear interest at seven per cent, per annum, from December 20th of the year of the levy down to the time of payment, unless the governing body of the taxing district has fixed a higher rate (not exceeding twelve per cent.), and where no higher rate was fixed, an owner of lands, bought about 1916, who, in 1917, paid the collector the principal of -the taxes assessed against it for the years 1903 to 1912, inclusive, together with interest thereon at seven per cent, from December 20tli of the year of levy down to the date of payment, is entitled to have such taxes canceled.</p> <p>2. Mandamus is the proper remedy to compel the cancellation of taxes on payment of the correct amount due.</p>

<p>On writ of error to the Cape May Quarter Sessions Court.</p>

<p>Bonds which are not expressly exempted by the Tax act (Pamph. L. 1918, p. 847), nor excluded from its operation, and which are physically located in New Jersey and are a part of the unsettled estate of a decedent, are taxable at their true value in the taxing district in New Jersey wherein the' decedent resided at the time of his death, even though one of the two executors and trustees of the decedent is a non-resident of New Jersey.</p>

<p>The illegal excess qf local tax rate that was adjudged in the case of Garrison v. Jersey City, 92 N. J. L. 624, held, to affect the state tax rates on main stem and second-class railroad property imposed during the yeár 1918 so as to require corresponding revision of those rates.</p>

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

<p>On writs of certiorari.--</p>

<p>On motion to strike out complaint.</p> <p>Argnecl before a single justice by consent.</p>

<p>A justice of the peace has no authority to hear and determine an action for the recovery of a penalty for the violation of the provision of chapter 248 of the statute of 1914. Jurisdiction in such cases is vested by the statute in a police magistrate or a District Court, and no express power -to enforce a penalty for the violation of tlie act is given a justice -of the peace.</p>

<p>On motion to strike out counter-claim interposed to the complaint.</p>

<p>1. Certiorari, and not quo warranto, is the appropriate remedy to remove an alleged illegal resolution which impedes one who is in possession of an office in the performance of the duties thereof.</p> <p>2. In matters of public importance, in which the general body politic is directly concerned, a clerical oversight, omission or dereliction of a board or body charged with the performance of a clerical administrative duty, will not vitiate the result so as to compromise the public right.</p> <p>3. The tenure of office of a district election officer appointed under the provision of the supplement of 1918 of the Election act (Pamph. L., p. 471). is for the term of two years.</p> <p>4. Implied repealers are not favored as a method of judicial construction, and the omission or commission in the legislative purpose must, be reasonably clear to warrant it.</p>

<p>1. The requirements of the statute of 1911 (Pamph. L„ p. 471), providing that a full and complete examination of the books and accounts of the city shall be made by competent accountants and the result published, are mandatory and imperative in character, and the absence of a specific appropriation for that purpose cannot operate to defeai its execution.</p> <p>2. The work of examining and auditing the bpoks of a city, in pursuance of the requirements of Pamph. L. 1911, p. 471, is not work or the furnishing of material or labor which must be awarded to the lowest responsible bidder, after public advertisement under the provisions of Pamph. L. 1912, ah. 342.</p>

<p>1. On a judgment in attachment in the District Court, where there is no appearance by the defendant, the execution is strictly limited to the property attached.</p> <p>2. A judgment in attachment in the District Court, where there is no appearance by the defendant, may not be docketed in the Court of Common Pleas or Supreme Court.</p>

<p>On certiorari.</p>

<p>1. Where an accident is caused by the representative of the employer, or his alter ego, it cannot properly be said that the risk of injury from such source was ,not fairly within the contemplation of the employer.</p> <p>2. Partial dependency of a father upon his son’s earnings is sufficient to constitute him an actual dependent, within the meaning of the Workmen’s Compensation act.</p>

<p>1. An agreement to malm a lease for one year and to give -an option for two years is a contract relating to and concerning an interest in lands, and in order to -be enforceable there must be some memorandum or note thereof in writing and signed by the party to be charged therewith, or some person thereunto by him or her lawfully authorized.</p> <p>2. The measure of damages sustained by the owner in an action on a breach of an agreement for a lease is the difference between the contract price of the premises as agreed upon and the amount plaintiff was able to realize upon the property after the breach of the agreement.</p>

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

<p>1. An omnibus company is among that class of persons who are entitled to receive a franchise for the use of public streets under the Limited Franchise act of 1906. Pamph. L., p. 50.</p> <p>2. Section 2 of the act of 1906 (Pamph. L., p. 50) does not require the board of commissioners of a municipality in which there is a newspaper published and circulated to designate the particular newspaper, or newspapers in which the statutory notice is to be published.</p> <p>3. Since the enactment of “An act concerning municipalities,” approved March 27th, 1917 (Pamph. L., p. 319), as amended in 1918 (Pamph. L., p. 478), the passage of an ordinance granting a franchise or right to occupy or use public streets may be lawfully effected by a majority vote.</p> <p>4. The Home Rule act (Pamph. L. 1917, p. 319), as amended (Pamph. L. 1918, p. 478), furnishes a full and complete scheme for the governing of municipalities, defining their powers, and the procedure and method of enforcing them.</p> <p>5. When it appears that the legislature inserted a non-repealing clause in a statute in relation to procedure for the passage of an ordinance, and in a later amending statute providing for procedure, left out the non-repealing clause, it ¡by necessary implication repealed such procedure clause of the former statute.</p> <p>6. The'fact that the Home Rule act (Pamph. L. 1917, p. 319) as amended (Pamph. L. 1918, p. 478) makes no provision whatever as to what vote shall be sufficient for the passage of an ordinance or the transaction of any other lawful business, is a cogent circumstance tending to establish that the common law rule, that a majority of the members of the municipal body constituting a quorum shall be sufficient for the purpose mentioned.</p>

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

<p>The proprietor of a bath establishment owes to his customers a duty to exercise reasonable care to maintain the premises in a safe condition. ,His duty to his patrons is satisfied when he uses reasonable care to maintain the premises in a safe condition, for their proper use by the patrons. He does not insure the safety of his patrons against accident. The maxim res ipsa loquitur has no application to the facts of this case. The condition that produced the accident must have been in fact brought to the previous notice of the proprietor or failing in proof of such actual notice, that the condition had existed for such a space of time as would have.afforded the proprietor sufficient opportunity to make proper inspection as to the safety of the place. Following Schnatterer v. Bamberger Co., 81 N. J. L. 558.</p>

<p>1. The rule is established that counsel cannot take the'Chance of testimony making in' his favor, and if it happens to be adverse, then interpose an objection.</p> <p>2. It is not legally objectionable for a trial judge to express to the jury his opinion as to the grade of the prisoner’s crime under the evidence, in case the jury shall find the prisoner guilty.</p> <p>3. It is not open to the jury, in a case of criminal homicide, to find the prisoner guilty of manslaughter or assault and battery when the record is barren of any proof tending to support such a finding. It is not error for the trial judge to so state in the charge to the jury.</p>

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

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

<p>Appeals were substituted for writs of error by the Practice act (1912), Pamph. L., p. 377, § 25; and by rule 77 annexed to that act, and rule 137 of the Supreme Court (1913), an appeal may be taken by notice served on the adverse party and filed witnin the time limited for bringing writs of error (now superseded by appeals in civil suits). Such an appeal is perfected, so as to remove the cause from the court below to the court above, by serving a notice on the adverse party and filing the same within the time so limited, which is one year in the class of cases in which that at bar is one. The provision is in the conjunctive, namely, the service and filing of the notice. The provision is not that the notice shall be filed immediately after the service or within any prescribed time thereafter, except that limited for the taking of an appeal, so that, after serving a notice of appeal at an early date after judgment, the appellant may delay perfecting the appeal, so far as the notice perfects it, until the last day on which an appeal will lie.</p>

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

<p>1. On a statutory appeal to the Supreme Court, the question of the adequacy or inadequacy of damages is not open to that court to’ determine.</p> <p>2. Rule 132 of the Supreme Court is not applicable where the evidence on the question of damages, not the amount, is held to he inadequate.</p>

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

<p>1. In a proceeding in the Court of Common Pleas under the New Jersey Workmen’s Compensation act (Pamph. L. 1911, ch. 95) the burden is upon the petitioner to prove a case within the state statute — that is, to show affirmatively that the decedent was engaged at the time of the accident in a service which was not regulated by the Federal Employers’ Liability act of 1908.</p> <p>2. In a proceeding under the New Jersey Workmen’s Compensation act (Pamph. L. 1911, ph. 95), where the only matter in controversy was whether or not the decedent at the time of the accident was engaged in interstate commerce, the petitioner was not prejudiced in his rights by the mistaken assumption and announcement of counsel for the railroad company (the employer) that the burden of proof vías upon the company, nor by the fact that the company went forward with its proof, it appearing that such mistaken notion as to the burden of proof was shared by counsel for the petitioner, and that both before and after such proof was put in, opportunity was given the petitioner to produce testimony of his own.</p> <p>3. A baggage agent whose duty was to meet both interstate and intrastate trains of the railroad company by whom he was employed, and to put on and take off baggage, and wl'io was killed by an interstate train whilst in the performance of that duty, must be held to have been engaged in interstate commerce at the . time he was killed, and compensation cannot be awarded to his administrator under the New Jersey Workmen's Compensation' .act (Pamph. L. 1911, ch. 95), the Federal Employers’ Liability act of 1908 being exclusive in such case.</p>

<p>1. Ia cases Avhere section 2 of the Workmen’s Compensation act applies to injury sustained by a minor employe, there can be no recovery by a parent for loss of wages of such employe, either at common laAV or under the provisions of the act.</p> <p>2. For purposes of the applicability of section 2 it is immaterial whether the contract of employment was made by the minor directly, or by the parent directly, or by the minor as agent of the parent.</p>

<p>In an action of ejectment for possession of lands claimed to have been conveyed by a judgment debtor to the defendant in fraud of his creditor, and where the judgment was recovered after the conveyance, and the right, title and interest of the alleged fraudulent grantor in the land w(as sold to the plaintiff in ejectment under an execution issued on the judgment against the grantor, the deed of the sheriff is not sufficient to support the action, for the holder of the title, derived from the legal owner, will not be put out of possession without proof of fraud in the grant to him or those under whom he claims title.</p>

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

<p>1. Property acquired by the Passaic valley sewerage commissioners for the jrarpose of building an intercepting sewer in accordance with the provisions of Pamph. Jj. 1902, p. 195, and Pampli. L. 1907, p. 22, is held for the benefit of the municipalities who had joined in the contract for such sewer, and is the property of the municipalities; and, hence, exempt from taxation under the Tax act of 1903.</p> <p>2. Land used by the Passaic valley sewerage commissioners for the construction of an intercepting sewler for the purpose of relieving the Passaic river from pollution, does not fairly come within the designation of “lands used for the purpose and for the protection of the public water supply,” as used in Pampli. L. 1910, p. 199.</p> <p>3. In order to include property of a body politic for the purpose of taxation the intent of the legislature to do so must be clearly expressed.</p>

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

<p>1. The Court of Errors and Appeals has no power to review or determine the wfcight of evidence, or consider whether the amount of the verdict is excessive.</p> <p>2. Where the remarks of counsel for plaintiff in addressing the jury are improper, the correct practice is to ask the trial court to admonish counsel against making such remarks, or request the trial court to charge the jury to disregard them. A refusal of the court to interpose, wfliere otherwise the right of the party would be prejudiced and an exception to the trial judge’s refusal lays the basis for a valid assignment of error, requiring a ■reversal of the judgment, where there is legal error. Blachman v. West Jersey, &c., Railroad Co., 68 N. J. L. 1, and See v. Public Service Railway Co., 82 Id. 144, approved and followed on this point.</p> <p>3.. A refusal by the trial court to withdraw a juror or grant a non-suit for improper remarks by counsel is discretionary on the part of the trial judge and cannot be reviewed on appeal.</p>

<p>On appeal from the Supreme Court, Union county circuit.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 93 N. J. L. 85.</p>

“The plaintiff’s intestate was a switchman employed by the defendant company in its yards on the outskirts of Phillipshnrg. On the occasion in question, about midnight, according to the proofs, he went, on the order of the yardmaster, to throw a switch to allow an interstate train to go through the yard on what is known as the ‘main’ or dead’ track.

<p>On appeal from the Supreme Court, whose opinion is reported in 92 N. J. L. 292.</p>

By consent of the parties the cases were tried together by the court without a jury, resulting in a judgment in favor of the plaintiff, Christine Carroll, widow, in one case, and against the plaintiff, Eva Buckley, the mother,, in the other case. In the latter case there is an appeal. There are three grounds of appeal alleged.

Frelinghuysen, reported sub mom. Michelsohn v. Wall. This writ is to review his decision. “The first point which we take rqr is, that Lamb, the contestant, was in laches, and that Mr. Justice Kalisch should have denied him relief on that ground.

<p>On appeal from the Supreme Court, whose opinion is reported in 92 N. J. L. 361.</p>

<p>Tlie general rule that service of process procured by fraud is invalid, extends to the issue and execution of writs of attachment.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 93 N. J. L. 292.</p>

The plaintiff had judgment belo'w. We consider only such grounds as present legal errors. “1. The appellants’ complaint tha't the plaintiff failed to produce the architect’s certificate for the final payment is without merit. The trial judge charged that they must find for the defendants unless the production of the certificate was waived. There was evidence of a waiver. “2.

<p>On appeal fiom the Supreme Court, whose opinion is reported in 92 N. J. L. 277.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 92 N. J. L. 292.</p>

The plaintiff succeeded in obtaining judgment for his claim upon the theory that the lessee, with the consent of the plaintiff, lessor, had assigned his interest in the lease to the defendant.

<p>On appeal from the Supreme Court, whose opinion is reported ante p. 107. ■</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 92 N. J. L. 292.</p>

<p>On appeal from the Supreme Court, whose opinion is reported iii 92 N. J. L. 292.</p>

Eor the prosecutor it is claimed that there is nothing in the evidence to support a finding by the trial court that the accident arose out of and in the course of the employment. “The facts are substantially as follows: Botkin was in the wholesale milk business; Mankowitz was his son-in-law and described by the witnesses as his right-hand man; the evidence justifies the conclusion that he was Botkin’s general utility man. “Botkin ha$ a creamery at Whitehouse, New Jersey,…

<p>' On appeal from the Supreme Court, whose opinion is re-, ported in 92 N. J. L. 292.</p>

<p>On appeal from the Supreme Court, Union county circuit.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 92 N. J. L. 363.</p>

He brings up the entire record of the trial and assigns error upon his bill of exceptions. “Upon examination of the points thus raised and argued we find no reason to disturb the judgment. “The first point to be considered is, that the third count of the indictment, upon which alone 'the defendant was convicted, does not charge an indictable offence. “But this is not so.

<p>On error to the Supreme Court, whose opinion is reported in 92 N. J. L. 125.</p>

<p>On error to the Supreme Court, whose opinion is reported in 92 N. J. L. 269.</p>

Justice Parker: “The action is for negligence. As I recollect the complaint, which at this writing is not before me, plaintiff’s intestate is claimed to have sustained fatal injuries by reason of the defective condition of a pathway in the Palisades Interstate Park, under the control of the defendant corporation, and plaintiff alleges that such condition was due to defendant’s negligence.

. On appeal from the Supreme Court, in. which the following per curiam was filed: “This is an appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury. “Plaintiff, Stevens, and the defendants entered into a contract December 1st, 1915, whereby the plaintiff agreed to furnish io the defendants general plans and information necessary to enable an immediate construction of a practical working plant and process for the manufacture of carbolic acid; and…

“Several interesting questions are argued, but, as we view the case, it 'is unnecessary to discuss them, as the matter is controlled by section 14 of the Certiorari act of 1903, limiting a review of this character to three years from the date of the sale. Bozarth v. Egg Harbor, 85 N. J. L. 412.

The findings of fact, adequately supported by evidence, show, that deceased, an employe of prosecutor, was killed by an accident arising out of' and in the course of his employment, viz., by being run over by one of defendant’s trains. The train contained cars engaged in interstate commerce, and it sufficiently appears that deceased himself was at the time so engaging.

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