Volume 95 — New Jersey Law Reports

<p>Where a person sold his business of purchasing and acquiring oriental rugs and carpets to a corporation in which he was the moving spirit in bringing about its formation, and the sale was an honest one and for a full consideration, the seller receiving stock of the corporation for the purchase price, such sale vested in the corporation the absolute ownership and control of the business and stripped the seller of all interest therein, except as a stockholder of the corporation.</p>

<p>On certiorari.</p>

<p>1. In a criminal case, an application to direct a verdict in favor of the defendant is addressed to the discretion of the court, and the judicial action thereon is not reviewable on error, except in cases which are brought before the reviewing tribunal under the provisions of the one hundred and ■ thirty-sixth section of the Criminal Procedure act.</p> <p>2. The case made by the state was ihat while D- (the complaining witness) and the defendant were engaged in a verbal altercation, the latter committed an unprovoked assault upon D-, first striking him and then dragging him into his (defendant’s) office, that defendant (who was a justice of the peace) then wrote out a complaint against D- charging him with disorderly conduct; and afterward issued a warrant and commitment upon the complaint, placing them in the hands of a constable, who took D-into custody, and then, with the defendant accompanying him, took D- to the county jail at Woodbury and turned him over to the jailor. Held, that the complaint, warrant and commitment were part of the res gestas and admissible in evidence.</p> <p>3. In the prosecution of a criminal offence the state does not assert a private right or maintain an individual interest in any such sense as to be affected or bound by hearsay statements of him who has been the victim or object of the criminal act. There is no such legal identity or privity between the person so situated and the state as to render admission made by him competent evidence in behalf of the party charged with the commission of the crime.</p> <p>4. In assignments of error the grounds of error must be specifically set forth.</p>

<p>1. Under the statute relating to judgments on bond and warrant of attorney, which requires the affidavit to state the true consideration of the bond, and that the debt for which judgment is confessed is justly due, the debt referred to is the one in existence at the time of the making of the affidavit, and the right to enter judgment is not limited to such debts as antedate the delivery of the bond.</p> <p>2. Under the statute relating to judgments on bond and warrant of attorney, the requirement that the affidavit ¿hall set forth that the debt or demand is “justly and honestly due and owing” does not limit the debt for which judgment can be entered to sxich as present an accrued right of action, but apply to any debt that is then due and owing to the obligee of the bond whether the day of payment has. been reached and passed or not.</p> <p>Note.- — This ease was an appeal from the Burlington Circuit Court, and the judgment of that court was affirmed by the Court of Errors and Appeals upon the opinion in the court below. 53 N. J. L. 665. By inadvertence, the opinion of Garrison, J., in the Circuit Court, was not printed in the report of the case, and the court has now directed that- it be printed here. — Exporter. '</p>

<p>On certiorari.</p>

<p>The authority conferred by section 2 of PampJi. L. 1918, p. 137, upon Common Pleas judges to appoint members of the district boards of election is only to be exercised when the county board has not acted, and after notice and an opportunity to be heard.</p>

<p>0u motion to strike out answer.</p>

<p>'On certiorari.</p>

<p>Chapter 160 of the laws of 1920 is constitutional legislation: 1. The title sufficiently indicates the object of the statute. 2. Legislation as to retirement and pensions for firemen and for policemen have a proper relation to each other. 3. The legislature may enact that legislation as to the retirement and pensions of policemen' and firemen shall take effect at once in municipalities already having a pension fund for firemen or a pension fund for policemen and shall not take effect until after a favorable vote at an election in other municipalities.</p>

<p>An ordinance of Jersey City provided that in certain rented properties every room should be heated to a minimum temperature of sixty-eight degrees between the hours of six a. m. and ten p. m. whenever the outer or street temperature would fall below fifty degrees. There was proof that upon certain occasions the prosecutor’s premises were heated to a lower temperature than sixty-eight degrees, but no proof that the outer temperature had fallen below fifty degrees at such times. Held, that the proof is required to be strict in penal cases of this character, and for this failure of proof the conviction must be set aside.</p>

<p>A clause in a written contract of sale of real estate, stating the amount of commission to be paid on the sale to a broker, is such a recognition in writing, signed by the owner, of the broker’s authority to sell to entitle the broker to collect commission, under the tenth section of the statute of frauds. Pamph. L. 1918, p. 1020.</p>

<p>On certiorari.</p>

<p>On certiorari to the Paterson District Court.</p>

<p>On certiorari to the Essex Common Pleas of an award of workman’s compensation.</p>

<p>Chapter 340 of the laws of 1920 (Pamph. L., p. 605) is unconstitutional so far as it requires three months’ notice to quit in cases of lettings from month to month.</p>

<p>1. The action of the Court of Common Pleas in dismissing an appeal from the judgment of a court for the trial of small causes cannot be put under review in this court by an appeal in the nature of a writ of error. The proper method to review such an action of the court is by certiorari.</p> <p>2. The statute permitting an appeal from a judgment in the court for the trial of small causes prohibits the justice from granting an appeal unless notice thereof be given within twenty days and the required bond filed. Under this statute the apjieal must be perfected and granted within the time limited by the statute, and an appeal is not perfect until the proper bond is filed, and an appeal to the Court of Common Pleas granted by the justice, where the bond was not filed within time for taking an appeal, was properly dismissed by the Court of Common Pleas.</p>

<p>1. In a criminal case tlie court instructed the. jury: “If, after a consideration of all the testimony, yon are satisfied that the men are not guilty beyond a reasonable doubt, you should acquit them, but if you have no such reasonable doubt, you ought to convict them.” Held, that this was error because it put on the defendants the burden of showing that they were not guilty beyond a reasonable doubt, while by law they are to be assumed innocent, and that assumption continues until overcome by the establishment of their guilt beyond a reasonable doubt.</p> <p>2. The court was requested by the defendants to charge that one of the witnesses on behalf of the state having admitted that he had been convicted of a crime the jury was entitled to take this into consideration when they were passing upon the credibility of his testimony. This the court refused except as it had charged, when in fact no reference was made to the matter in the charge. The defendants were entitled to have this request granted, and its refusal was an error prejudicial to, the defendants.</p>

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

<p>On appeal from the District Court of East Orange.</p>

<p>1. The theory of a chattel ownership in a child is not capable of legal recognition. The right of the parent to the custody of the child subsists so long, and only so long, as the parent performs the duty of care and maintenance imposed upon the parent by law.</p> <p>2. The state has a duty as parens patrim of children within its jurisdiction, not only in the interest of the child, but also in the interest of the state itself, representing the people, whose future morals and prosperity and quality of citizenship it develops, and when the parent neglects the duties which he or she owes to the child, the state may take away the custody of the child from the parent.</p> <p>8. Where an abandoned child had been legally committed by a magistrate, on the application of an overseer of the poor, to the care and custody of the state board of children’s guardians, the Orphans’ Court, upon application for the purpose, and upon notice to the state board, but without notice to the mother, was possessed of the necessary jurisdiction to make an order for the adoption of the child.</p>

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

<p>1. The act (Pamph. L. 1918, p. 429) creating in the department of labor a bureau to be known as the Workmen’s Compensation Bureau, and repealing the act, which created a Workmen’s Compensation Aid Bureau, does not provide a new remedy or impair contracts. It only prescribes a new method of procedure. It is applicable to accidents happening prior to the statute taking effect, drew v. Trainor, 91 N. J. L. 87; affirmed, 92 Id. 512; followed.</p> <p>2. In this case there is evidence from which the trial court could find dependency within the meaning of the statute, also, that the injury to the deceased arose out of and in the course of his employment.</p>

<p>On rule to show cause. On application for summary review.</p>

<p>1. Objections must be timely and made to the question. It is too late to' enter an objection after tbe question has been answered.</p> <p>2. Where the corporate existence of a-plaintiff is denied in the answer, the proper method of proof is by the production of the original certificate of incorporation, or a certified copy thereof, if a domestic corporation, and if a foreign corporation, by a copy of the certificate of incorporation duly certified according to the act of congress.</p> <p>3. Where improper evidence has been admitted, the judgment rendered in the action will not be reversed if it appears that the substantial rights of a party have not been injuriously affected.</p> <p>4. Where the authority of one acting as an agent to make a contract and sign the memorandum thereof is denied, other contracts of a similar nature made at or about the same time and under similar conditions and circumstances are admissible in evidence to show the agent’s authority to bind his principal.</p> <p>5. Where the answer denies the making of the contract sued on it is unnecessary for the defendant to set up in the answer the statute of frauds in order to avail itself of this defence.</p>

<p>1. In a suit upon a mechanics’ lien claim, where the evidence is conflicting as to whether a promissory note given by the builder to the lien claimant is to be applied in part payment of the sum due upon the contract for which the lien claim is filed or in part payment upon a contract being concurrently performed by the lien claimant for another building for the same builder, the application of the payment is a question of fact to be determined by the jury from the evidence submitted.</p> <p>2. A receipt evidencing the payment of money upon a contract as between the parties thereto is always open to explanation.</p> <p>3. A lien claimant who has given to a builder a receipt for the payment of money on account of the work, where in fact no money was paid to the claimant by the builder, does not, by the giving of said receipt, either waive his right to a mechanics’ lien or waive his rights to file a lien for the amount falsely stated in the receipt to have been paid.</p> <p>4. The reservation of title and possession of all machinery, implements and apparatus furnished under a contract for a building until payment is made is not a waiver of the right to file a mechanics’ lien.</p>

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

<p>1. When once the statute of limitations has begun to run against a person under no legal disability, it pursues its course uninterrupted by any subsequent event.</p> <p>2. The statute of limitations contains various express exceptions from the operation of its provisions, and when the legislature itself has expressly provided wliat facts shall take a given ease out of a statute, courts of law are not permitted to engraft upon it other exceptions not contained therein.</p> <p>3. The statute limiting the time within which actions shall be brought is for the benefit and repose of individuals and not to secure general objects of policy or morals, and its protection may be waived by those who assent in legal form.</p> <p>4. The legislature has not seen fit to except from the operation of the statute of limitations cases where the party against whom the statute normally runs has been induced by the fraudulent conduct of his adversary to postpone the bringing of his suit until after the statutory period has elapsed, and courts of law are not justified in reading into the statute such an exception.</p>

<p>An employe of a common carrier who is injured while at work in repairing rolling stock of the carrier, and which is out of use for the purpose of having the repairs made, is not injured “while engaged in interstate commerce,” and, consequently, is not entitled to the remedy afforded by the Federal Employers’ Liability act.</p>

<p>The failure to pay the premiums on a life insurance policy within the time allowed by the lapsing clause will or will not create a forfeiture at the option of the insurer; in other words, the company may take advantage of the provisions and declare a forfeiture, or it may waive the forfeiture ■ and receive payments of the past-due premiums after the expiration of the time provided in the policy- If the latter course is adopted, the policy is revived. And this is so where the payments are received after the death of the insured in ignorance of the fact of death, when the insurer, after it learned what the real situation was, does not return such payments.</p>

<p>1. In a suit on a bond for deficiency, the only matters to be considered by the court, in which the suit is brought, are — first, the amount of the debt as adjudged by the Court of Chancery, and the amount by which it has been reduced by the application to it of the proceeds of the foreclosure sale, and second, payments ' on account of the debt (if any) which have been made subse- ; quent to the entry of the decree in the foreclosure suit.</p> <p>2. In a suit on a bond for deficiency, after sale of mortgaged premises, a credit will not be allowed on the amount of such deficiency, for insurance money received by the mortgagee before foreclosure, where the defendant in the suit on the bond was a party defendant to the bill to foreclose and did not see fit to controvert the averment in the bill in Chancery that the whole amount secured by the mortgage was due and owing.</p>

<p>In a suit on notes by a transferee, without consideration, the case, so far as the admissibility of statements made by the payee of the note is concerned, stands in the same situation as if the suit had been brought by the payee herself, and statements made by her after the giving of the notes, either oral or written, showing that they were not intended as acknowledgment of any indebtedness on the part of the makers to her, but merely as evidences of the receipt by the makers of gifts from the payee are provable against the plaintiff as admissions against interest, and as contradictory of the right to enforce payment.</p>

<p>On appeal from tbe Atlantic County Circuit Court.</p>

The defendant railroad company owned land in Dover on which were erected its signal repair machine shops. The land was not fenced where it abutted a public street except bj' a guard fence. Adults and children without let or hindrance entered on what is called the plajrground portion of the property, and crossed the property by a pathway which had been used by the public for over forty years. School children used it in going to school.

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

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

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

The trial resulted in a verdict for the plaintiff. The defendant appeals and files eighteen grounds of appeal. The first, fourth, fifth and fifteenth are argued together and refer to evidence admitted showing the reputation for wealth of the defendant. This, we think, is not error. The point is settled by the case of Flaadce v. Stratford, 12 X. J. L. 487; Jones Evid., ¶ 159-160.- “The second, erroneously, permitting hearsay testimony.

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

<p>1. When a surety company executes its bond to a trust company as employer to indemnify it against loss arising from the acts of an employe, amounting to larceny or embezzlement, upon condition that if the employer suspects, or if there comes to the notice or knowledge of the employer any act, fact or information tending to indicate that the employe is or may be unreliable, deceitful, dishonest or unworthy of confidence, the employer shall immediately so notify the surety company, and if this is not done the surety shall not be liable for any act of the employe thereafter committed, the surety company will not be liable for any embezzlement by employe, if the employer, a trust company, has information that the employe, its treasurer, has loaned the employer’s money to a friend without making any entry thereof on the books of the company, and has endeavored to conceal it, either by false entries or by omitting to make any record thereof on the books of the company, unless notice be given to the surety company as required by the conditions of the bond, for in such case the employer has knowledge of a fact tending to indicate that the employe is unreliable, deceitful, dishonest and unworthy of confidence. These facts being undisputed no jury question remained and there should have been a direction for the surety company.</p> <p>2. Upon these undisputed facts it was error to leave to the jury to find what impressions they made on the mind of the employer, or whether it was impressed from them that the treasurer had only used bad judgment, for that could not be inferred from the facts, which clearly showed an unlawful use of the employer’s money, concealed by false or omitted entries, all of which tend to indicate deceit and dishonesty and contain no element of bad judgment, except as all wrong-doing may be said to be the exercise of bad judgment, sufficient to excuse the giving of the notice required by the contract.</p>

<p>When a person twenty-eight years of age kills an officer to escape from arrest and sets up as a defence that he had not sufficient mentality to form in his mind an intent to take life, or to deliberate and determine to execute that intent by a premeditated act. the burden is on him to show his lack of sufficient mental j power to conceive and execute the crime. There is a vast difference between a child at the age of eleven years and that of a man of twenty-eight, and while perhaps there is a presumption that an infant of tender years is incapable of committing a crime that presumption does not extend to one of advanced years, requiring the state to rebut it. When a man readies manhood the presumption is that he possesses the ordinary mental capacity normally pertaining to his age, and it is for him to overcome that „ presumption, and whether he has done so is for the jury to de- ¡I termine. Deficiency of intellect is a species of insanity, and ' when that is set uj) as a defence for crime the burden is on the accused to prove it, the presumption being that he is sane.</p>

<p>Plaintiff was a passenger on a ferry-boat, when the wash from the transport “Great Northern,” proceeding at more than normal speed, struck the deck where the plaintiff was standing, causing a commotion among the passengers, in wihich plaintiff was injured. There was contradictory testimony as to the distance between the ferry-boat and the transport, and also contradictory testimony as to how near a ferry might approach with safety under such circumstances. Held, that the question practically at issue was whether the captain of the ferry-boat, presumably educated and experienced in the speed of vessels, the depth and nature of the harbor, and the general dangers incident to river navigation, in variant circumstances, could have observed the transport sufficiently distant to realize the dangers of the situation, and thereby keep his passengers, to'whom as the agent of a common carrier, he owed a high degree of care, out of a conceded danger zone; and held, further, that the question of whether the captain exercised, in the first instance, the necessary foresight of the ordinary prudent man, who, observing the probability of impending danger from adopting a certain course of action, did all that such a man could have reasonably done to avoid the danger, was a jury question.</p>

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

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

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

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

<p>1. Ou an appeal the appellate tribunal is only concerned with errors pointed out and to which the attention of the trial judge in the court below was called by objection to the particular matter assigned as. error, so that he may be afforded an opportunity to correct the mistake.</p> <p>2. If an exception to the judicial charge embraces several legal propositions, and any of them be unexceptional, the objection fails. Counsel must put his finger on the erroneous proposition, and thus point the mind of the judge to. it; if he challenges any part of the charge in bulk; assigning no reason for such challenge, and a bill is allowed on the point, the risk of any legal ingredient being found .in such bulk is that of the party so excepting.</p> <p>3. An instruction to the jury, “The mere fact that the plaintiff put his arm out of the window (of a jitney bus in which he was riding) is not negligence in itself, but it is for you to determine whether, under all the circumstances of the case, the fact that the plaintiff had his arm out of the window amounted to negligence, in your opinion, and to such negligence as contributed to his injury,” was an accurate statement of the legal rule applicable to the case.</p> <p>4. ZeUff v. 'North Jersey Street Railway Co., 69 N. J. L. 541, approved.</p>

<p>1. The doctrine expressed by the maxim res ipsa loquitur clearly imports that there must in each case be something in the facts that speaks of the negligence of the defendant.</p> <p>2. If there is no proof of any fact, by which the conduct of the defendant can be ascertained, there is nothing for a jury to pass upon.</p> <p>3. The only presumptions of fact which the law recognizes are immediate inferences from the facts proved.</p> <p>4. The doctrine or maxim res ipsa loquitur is not applicable to the situation, as shown in the record of this case.</p>

<p>.1. The plaintiff’s intestate was discovered about midnight, by the motorman of an approaching electric car, on the tracks of the defendant company, near the. bridge over the Hackensack river on the Newark plank road in Jersey City, with one arm and leg cut off sharply. There was no eye witness to the accident. No one saw how it happened. Held, a nonsuit was not error.</p> <p>2. The only presumptions of fact which the law recognizes are immediate inferences from the facts proved.</p> <p>3. Negligence is a fact which must be proved. It will not be presumed.</p> <p>4. The plaintiff to succeed must show by evidence, not only such circumstances as would justify the inference of the defendant’s negligence, but would exclude the idea that the accident was due to a cause with which the defendant was unconnected.</p>

<p>1. When the Charter of a city requires a municipal proceeding to be instituted by ordinance, it cannot be effected by resolution merely.</p> <p>2. When a statutory tribunal, in this case a city council, acts without jurisdiction, a certiorari properly lies to attack and review such illegal action, although nothing has been done thereunder.</p> <p>3. The writ of certiorari was not prematurely issued to review a resolution passed by the city council of the city of Camden, which authorizes and directs the mayor to remove frame buildings erected on private property, on the ground that they had been illegally and improperly constructed.</p>

<p>1. The plaintiff was walking in a northerly direction, on the west side of a public road, on that part of the road principally used by pedestrians, on a side path. The automobile of the defendant was proceeding' in a northerly direction, on the easterly side of the same public road, being the side opposite to that on which the plaintiff was walking. The automobile suddenly turned and slid across the road to the left, turned over in back of the plaintiff and fell upon her, causing injuries to the plaintiff. Held, contributory negligence and negligence of the defendant were jury questions. It was not error to refuse to nonsuit the plaintiff or direct a verdict in favor of the defendant.</p> <p>2. A charge by the trial court that “each liad a right to use the public highway * * * that the highway is for the use of all and that all persons 'have a right in the highway * * *. They must use all parts of the highway with due regard to others in a reasonably prudent and careful manner,” is not error. The rule is, that each must exercise that degree of care and prudence which the conditions and circumstances demand and such as a prudent person would use.</p> <p>3. A charge by the trial court that the plaintiff was entitled to recover “such reasonable outlay in the future as may be necessary to heal herself and her injuries,” is not error.</p>

<p>1. Where the opening statement of counsel and the pleadings set forth facts which if proved would constitute a cause of action, it is projjer for the trial court to refuse to grant a motion for a compulsory nonsuit on the opening address of counsel.</p> <p>2. Upon a motion for a compulsory nonsuit based on the opening statement of counsel, the plaintiff is entitled to the benefit of all facts proposed to be proved and the court in disposing of the motion must assume that these facts have been proved.</p> <p>8. Evidence of attentions to a wife by a defendant in a suit for alienation of affections instituted by the husband, occurring after a separation between husband and wife, are admissible in evidence, as there is always a possibility of a husband and wife living separate coming together, which the law encourages, and an actionable wrong is committed by unlawful interference after separation, preventing reunion.</p> <p>4. Where a husband has welcomed a male acquaintance to his home, consented to his wife’s receiving attentions from him, and a separation between the husband and wife occurs wliich by the admission of the husband is not caused by the acquaintance, and the acquaintance after the separation frequently visits the wife, remaining late at night, and on occasions over night, and takes the wife motoring alone and late at night, it is for the jury to determine in a suit by the husband for the alienation of' Ms wife’s affection whether under the evidence there :has been a willful and intentional alienation of the wife’s affection.</p> <p>5. It is discretionary with the trial court whether or not in an examination of a witness to permit a leading question. If the court declines to permit a leading question to be asked error cannot be assigned on such refusal.</p>

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

<p>On writ of error to the Supreme Court, whose opinion is reported in 94 N. J. L. 17.</p>

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

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

<p>On appeal from tbc Hurt pon County Circuit Court.</p>

<p>1. Where there is a variation between the averments of the complaint and the proofs, and the meritorious questions have been tried out, the court should not grant a nonsuit, but, -in the interest of justice, should permit an amendment of the complaint, and this court has power so to do.</p> <p>2. Contributory negligence is a matter of defence under our present Practice act and not a ground for taking the case away from the jury upon the plaintiff’s proofs.</p> <p>3. The mere failure to obey a traffic regulation is not per se negligence — that is, failure to observe it is not necessarily a contributing cause to the accident. Whether in a given case it is or is not is a matter to be determined by a jury.</p>

<p>1. The owner of a building who is familiar therewith is competent to testify as to its general condition of repair, without being first qualified as an expert in such matters.</p> <p>2. The admission of a leading question cannot be reviewed on appeal.</p> <p>3. In an action for damages for waste committed upon leased premises, testimony as to the amount of rent received before and after the period of the lease in question is immaterial.</p> <p>4. A mere statement, made by an agent out of court, that he is the.' agent of another is, of course, not evidential, but. it is elementary that his agency may be proven by his own oath on the witness-stand.</p> <p>5. In an action for damages for waste committed upon leased premises, the eost of a new structure erected thereon by the tenant is immaterial.</p> <p>6. An objection to a question, made after it has been answered, and after the witness has left the stand and been succeeded by another, is too late and not entitled to consideration.</p> <p>7. A witness, qualified as an expert, in answering a hypothetical question as to t'he value, of a building, may use and include his experience in handling buildings and drawing plans and specifications and giving estimates, for it is the experience thus gained which enables him to become an expert, and to exclude its application to a given state, of facts would be to eliminate the value of expert testimony entirely.</p> <p>8. The question whether a witness has such special knowledge or experience as to justify him to give opinion evidence, is a question for the determination of the trial court, whose finding is not, reviewable on appeal if there is any legal evidence to support it.</p>

<p>On ajopeal from the Union County Circuit Court.</p>

“ lit is further mutually agreed between the parties hereto that unless the loan can be arranged and settlement made in accordance to conditions recited herein, that this agreement shall he considered null and void safe harmless to either party and that the vendor shall return to the vendee the deposit he has received on account of this agreement.’ “There was a further provision that time is, of the essence of the contract.

<p>On appeal from the Supreme Court, ¡whose opinion is reported in 94 N. J. L. 28.</p>

The appeal is predicated only upon the failure of the trial court to grant a nonsuit, and direct a yerdict. The deceased was a section hand upon the railroad, and at the time of the accident was engaged with a fellow employe in repairing the track switch appliances. On his return from lunch he was run over by a -light engine backing up on the main track near the place where plaintiff had been working in the forenoon. “There was no actual witness of the occurrence.

The two defences overruled by the trial court,- and asserted here as grounds for reversal, aré that the plaintiff is not the beneficiary designated by the rules of the order, and that if this be overruled, the deceased member was in such default in her obligations to the order as to have forfeited the benefit. “As to the first point, the by-laws provide'that in case of death the sum claimed ‘shall be paid to the nearest relative (of the member), provided they are (sic)…

It then applied to the state board of conservation which granted a permit upon conditions (a) that it pay the state what may be required by law, (5) diversion not to exceed five hundred thousand gallons per day, (c) to contribute to Jersey City the proportion of the cost of additional storage it may require, to be determined by the board. “This writ was allowed to review the order of the state board.

Michigan C. R. R. v. Vreeland-, 227 U. S. 59; In re -Kenney, 204 U. S. 497. “The plaintiff was employed by defendant company to remove lamps from the rear of trains in the depot, and to fill them for future use. While engaged in this work, on a standing train at the depot in Jersey City, the train was suddenly, and without any notice to' the employe, pushed back against the bumper and plaintiff’s intestate was killed.

Halbeison, Junior, an employe of H. Keppers Company. “Every element necessary to -support the judgment was admitted in the court below except dependency; in other words, the sole question submitted to the court below was whether or not there were dependents of the decedent’s, and that is the sole question argued here.

Richard Koehler is the guardian of two infants, both resident in Germany, and one of them. Ella O. E. Koehler, has now come of age. On the settlement by the guardian of his account, aj rule to show cause was allowed why an order should not he made requiring the guardian to deposit the securities making up each fund with the 'United States Alien Property Custodian. Two orders requiring such deposit were made by the Orphans’ Court.

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

<p>On appeal from the Supreme Court, whose opinion is reported in 94 N. J. L. 10.</p>

The question is one of fact and we. cannot reverse the action of the trial judge. Let the judgment be affirmed, with costs.”

On error to the Sup 1 erne Court, in whiph court the following per curiam wots filed : “The defendant in this case was convicted of committing an abortion on Helen Hunter, on the 14th day of June, 1918. After the jury had retired to consider their verdict, they came into court and the following- incident occurred: The Foreman — Wo, we cannot -agree.’ The Court — ‘I see no reason why you should not agree upon a verdict.

<p>On error to the Supreme Court, whose opinion is reported in 93 N. J. L. 273.</p>

<p>On appeal from the Supreme Court, whose opinion is re-23orted in 93 N. J. L. 103.</p>

<p>1. To constitute a surrender of a lease by act and operation of law tliere must not only be an abandonment by the tenant but an acceptance thereof by the landlord as a surrender.</p> <p>2. A landlord has a right, after leased premises have been abandoned by the tenant, to enter upon them for the purpose of discovering the condition thereof and to make such repairs thereto as are necessary for the protection of the premises, and the exercise of those rights are not at all a recognition of the tenant’s right to abandon the premises.</p> <p>3. An effort by the owner of leased premises, which have been abandoned by the tenant before the expiration of the term, to relot them does not constitute an acceptance of an alleged surrender by the tenant.</p>

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

<p>1. As a general rule, where a party contracts expressly to do a thing not unlawful the contractor must perform his agreement, and if, by some unforeseen accident, the performance is prevented, he must pay damages for not doing it. And there is no distinction between accidents that could be foreseen wdren the contract was entered into and those that could not have been foreseen.</p> <p>2. In contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing, without the fault of the person against whom the contract is sought to be enforced, shall excuse the performance.</p>

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

<p>1. Since • chapter 274 of the laws of 1920 is in derogation of tlie property rights, a city, in order to avail itself of the powers given therein, must bring itself within .the terms thereof. .</p> <p>2. Chapter 274 of the laws of 1920, which empowers cities of the first' and second class to regulate and restrict the location of buildings designed for specified uses, does not authorize the 6om-mission of building restrictions in such city to zone or restrict a section of land “strictly for residential purposes.”</p>

<p>On certiorari.</p>

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

<p>On motion to set aside postea and rule for judgment.</p>

<p>On appeal from an order made by the public utility commissioners.</p>

<p>Í. Tn a summary investigation, under section 42 of the Corporation act (Gomp. (Hat., p. 1624), of the election of directors of a corporation, the court is free to deal with the matter, not necessarily in accordance with strict legal rules, but according to the substantial rights and equities.</p> <p>2. The provision of section 33 of the Corporation act (Comp. Stat., p. 1620), requiring the list of stockholders entitled to vote at the ensuing election to be made out at least ten days before the election, is directory only, and the mere fact that it was not made out for the prescribed time in advance of the election will not render the election void.</p> <p>3. The mere fact that the list of stockholders entitled to vote at the election of directors required by section 33 of the Corporation act (Comp. Stat., p. 1620) to be produced at the election, was not signed by the secretary until the opening of the meeting, and, simultaneously therewith, does not render the directors ineligible to re-election at that meeting.</p> <p>4. It requires a willful refusal to file the report of the election of directors of a domestic corporation within thirty days after any annual election, required by section 43 of the Corporation act (Comp. Stat., p. 1626), to make the directors so failing to file the same ineligible to re-election at the next succeeding annual meeting; and where no demand or request to the directors was made to file such report, and nothing more than mere neglect appears, willful refusal will not be implied.</p> <p>5. The directors of a corporation, on July 17th, 1919, adopted a resolution changing the location of its principal office as authorized by section 28c of the Corporation act (Comp. Stat., p. 1614) ; on June 19th, 1920, they mailed a certificate certifying such removal to the secretary of state, and simultaneously therewith sent out notices to stockholders of the annual meeting for the election of directors to be held June 30th, 1920, at the changed location. Held; that the fact that the certificate of removal of the principal office was not received, filed and recorded by the secretary of state until June 21st, 1920, does not invalidate the election held June 30th, 1920, it appearing that no party in interest was in anywise misled or prejudiced.</p> <p>6. The mere fact that the oath of the inspectors of election at the stockholders’ meeting was not in writing will not invalidate the election of directors of the corporation, where there is no allega- • tion or evidence of any fraud or irregularity in the reception or counting of votes or in other conduct of the election by such inspectors.</p>

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

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

<p>1. The allowance of a peremptory writ of mandamus rests in judicial discretion and it is awarded only in cases when the act to bo done is ministerial and the duty clear.</p> <p>2. The act entitled “An act concerning municipal accountants” (Pamph. L. 1918, p. 1007) does not in terms or by implication impose upon the commissioner of municipal accounts any duty to receive and file the declarations of candidates required by the act, nor to receive the statutory fee nor to issue registration licenses to applicants therefor.</p>

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

<p>On application for a. writ of carliorari to review report of the board of assessments of the village of South Orange assessing damages for the taking of lands for the opening of a street to be known as Fifth street. • ■</p>

<p>On .agreed state of facts.</p>

<p>Ou error to Ihe Essex County Court of Quarter Ses.-ions.</p>

<p>Section 110 of the Practice act contemplates in any event, upon answers to questions, that a general verdict which may afford a basis for a rule to show cause or an appeal shall be entered, and the general verdict thus entered, plus the answered questions and a statement of the case, “shall be prepared and filed and shall have the effect of a special verdict.”</p>

<p>1. When a proceeding is strictly in personam, brought to determine the personal rights and obligations of the parties, personal service within the state or voluntary appearance in the case is essential to the requisition of jurisdiction, so as to constitute compliance with the constitutional requirement of due process of law.</p> <p>2. A judgment against a corporation, when the summons was directed to “F. N. V. — President,” is a nullity.</p>

<p>On certiorari to review a resolution of Paterson board of public works.</p>

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

<p>1. The rule is fundamental that when one of two innocent parties must suffer by reason of a misplaced confidence, the loss must fall upon him who reposed the confidence, and thereby made the loss possible.</p> <p>2. If one place another by language or conduct in a responsible position, he thereby holds him out as having authority to do the act within the apparent scope of his authority, and where others relying upon this apparent authority deal accordingly with the agent, the principal is thereby estopped from denying the authority thus apparently conceded.</p>

<p>1. Where the plaintiff's decedent, an intending passenger, was struck and killed on a dark, misty morning by an unscheduled engine operated by the defendant’s servants, while crossing its railroad tracks, from the company’s station on the northerly side to its station on the southerly side, by a passageway provided and maintained for i passengers intending to board the company’s trains on either side of the tracks — Held, the motion for a non-suit was properly refused, because there was some testimony tending to show defendant’s negligence in the operating and running of the locomotive engine.</p> <p>2. The motion for a nonsuit upon the ground of plaintiff’s decedent’s negligence was also rightly refused, as it did not appear conclusively by the testimony on the plaintiff’s case that it was the decedent’s negligence which caused his injury.</p> <p>3. It was neither error nor ground for a new trial for plaintiff’s counsel to state to the jury the amount of damages sought to be recovered.</p> <p>4. An award of $25,000 damages is not excessive where it appears that the decedent, forty-one years of age, in good health, industrious and earning $42 a week, with prospects of an increase, left a widow thirty-four years of age and a son and daughter aged thirteen and eleven years respectively.</p>

<p>Oil appeal from the Orange District Court.</p>

<p>1. Prom an assessment for taxation of personal property against an estate, the federal estate tax, the federal income tax, the state transfer inheritance tax cannot be deducted from the true value of the personal property, under Pamph. L. 1918, p. 853, ¶ 303, as debts.</p> <p>2. The federal government and the State of New Jersey are not “creditors residing in the state” within the meaning of the statute.</p> <p>3. Taxes are, in legal contemplation, neither debts nor contractual obligations, but are, in the strictest sense of the word, exactions.</p>

<p>1. The Bergen Turnpike Company, in the year 1918, had no property of any value in the township of North Bergen which was subject to be taxed. For the facts, which lead to this result, see the body of the opinion.</p> <p>2. An easement may be lost by non-user in twenty years, and even in less time if it is affected by positive acts of invasion; a franchise may be lost in the same way, non-user being one of the common grounds assigned as a cause of forfeiture. An easement may be abandoned by an act evidencing an intention to do so. Abandonment is made up of two elements — act and intention.</p>

<p>On certiorari.</p>

<p>The statute (Pmvph. L. 1919, p. 302), which, prescribes that no insurance company of another state, except a life insurance company, may transact business in this state, except through agents, “whose principal place of business is located in this state,” is valid legislation. It does not abridge any right guaranteed by the state or federal constitutions.</p>

<p>After a check is certified by a bank, at the request of the holder or payee, the defence that the check is void because the consideration is illegal is not open to the bank. The transaction is this: the bank says the check is good, we will pay it now, if you will receive it; the holder then says,, no, I will not take the money now, you may retain it for me until the cheek is presented for payment; the bank replies, very well, we will do so. Thus, sub- ■'' stituting a new contract between the holder of' the check and the bank. Times Square Automobile Oo. v. Rutherford National Bank, 77 N. J. L. 649, applied and followed.</p>

<p>The act of tlie legislature (Pampfo. L. 1920, p. 190) under which the borough of Ocean Grove was created is unconstitutional, because it offends against article 4, section 7, subdivision 11 of the constitution, which provides the legislature shall not pass local or special laws “regulating the internal affairs of towns and counties.” Section 2 of the act, after creating the borough of Ocean Grove, provides that it shall be governed by the general laws of the state relating to boroughs, excepting, however, in five particulars named, such as streets, building any state, county or municipal boulevard through the territory, maintaining the moral and religious life in the described territory which shall not in any way be impaired or destroyed.</p>

<p>On quo warranto.</p>

<p>1. For an assault and battery founded in malice punitive damages may be recovered in a civil action, although the plaintiff therein has caused criminal proceedings to be taken against the defendant for the assault and battery.</p> <p>2. Where evidence of reduced earning power due to injury has been admitted at the trial without objection, the appellate court will not consider the question whether the complaint as framed is not sufficiently broad to cover a claim of reduced earning power, as an amendment could have been allowed at the trial or can be allowed after the trial in the appellate court.</p>

<p>1. Section 144 of the Practice act, as amended (Pamph. L. 1914, p. 151), providing for the examination of an adverse party to litigation before trial without procuring an order for that purpose, is constitutional.</p> <p>2. It is within the power of the legislature to require the plaintiff to submit to examination before trial upon the mere service of a subpoena ad testificandum.</p> <p>3. To subject a recalcitrant witness to the charge of a contempt, it must be shown that he has violated some order or direction of the court.</p>

<p>In quo warranto. On demurrer to information.</p>

<p>1. Where three individuals signed a certificate of incorporation two days before the happening of an accident for which the company was sued for damages, which certificate was recorded in the county clerk’s office the day after the accident and filed in the secretary of state’s office four days after the accident, and they did certain acts in attempted execution of the powers conferred by the certificate of incorporation, a jury was justified in finding that the company was, at the time of the accident, a corporation de facto, and therefore liable.</p> <p>2. A charge by the trial judge to the jury that the signing of a certificate of incorporation was an element to be considered,, but did not constitute a de facto corporation, unless, after that step ¡had been taken, the corporators did any act that would show that they were using corporate powers which they had attempted to assume — Held, correct.</p>

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

<p>1. Plaintiff in error, convicted of crime in the Quarter Sessions, brought error to the Supreme Court under section 136 of the Criminal Procedure act (Oomp. Stat., p. 1863), where he filed several assignments of error and also several causes for reversal under section 137 of that act. Hid. The Supreme Court affirmed the judgment of conviction of the Quarter Sessions and plaintiff in error then removed the judgment of the Supreme Court into this court by writ of error, and here assigned for error that the Supreme Court gave judgment affirming the conviction of the plaintiff in error and of the judgment thereon, when it should have reversed the judgment of the Quarter Sessions and set aside the conviction. Held, the only proper assignment of error in this court, under which reliance might be had upon the assignments of error and causes for reversal assigned in the Supreme Court upon the record brought there from the Quarter Sessions.</p> <p>2. The charge of the trial court on the subject of reasonable doubt —Held, error, on the authority of State v. Linker, 94 N. J. L. 411, wherein a proper definition of reasonable doubt is laid down.</p>

<p>1. A lease contained a provision that the lessee would not, without the written consent of the lessor, underlet the premises, and the further provision that the lessee should have the privilege of renewing the lease for a further period of two years. Before the expiration of the original term the lessee exercised his renewal option. The lessor consented in writing to a subletting of the demised premises by the lessee to one C-“for the balance of your term,” and the lessee thereupon sublet them to C- for the unexpired term and by the same instrument extended to him the renewal privilege. Reid, that the written consent of the lessor granting to the lessee the privilege of subletting “for the balance of your term” was a consent to the subletting for the extended term, in ease the renewal option was exercised.</p> <p>2. Where the proofs show title out of the plaintiff, or the present right of possession in a third person, the defendant is entitled to judgment in an action of ejectment.</p>

<p>1. When words used in the enacting part of a statute are of doubtful import — that is, where they will admit of either of two constructions, it is the duty of the court to resort to the title thereof for the purpose of ascertaining, if possible, the legislative intent.</p> <p>2. The act of April 12th, 1910 {Pamph. L., p. 490), providing that the plaintiff in an action against a steam railroad' for damages for injuries or death occurring at any crossing, where safety devices have not been installed, shall have the question of his contributory negligence submitted to the jury, applies to actions for damages to property as well as actions for personal injuries.</p>

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

<p>3. Section 62, article 20 of the Home Rule act (Pamph. L. 1917, p. 319) applies only to improvements that have been “undertaken” and not those in “contemplation” before the taking effect of that act.</p> <p>2. Property owners wlrn have been assessed for benefits from a municipal improvement, and who appear pursuant to notice of hearing, are entitled to support their objections by evidence.</p> <p>3. A hearing demands that he, who is entitled to it, shall have the right to support his allegations by argument and proof.</p>

<p>1. The Court of Errors and Appeals has the right, under the constitution, to hear cases on writ of error to the Supreme Court, and an appeal under the Practice act of 1912 can be, in substance, only a writ of error under another name.</p> <p>2. In a proceeding to assess damages for lands and real estate taken or damaged by a public improvement, the assessment of damages involves the property as a res, regardless of the number of owners or the nature of their estate, and is not to be treated as if it were an action of tort.</p>

<p>1. A parol executory contract for the sale of goods may be discharged by an express agreement, either in writing or by word of mouth, that it shall no longer bind either party, and this is so whether or not the original contract is one required by the statute of frauds to be in writing.</p> <p>2. The general rule is that if the principal asserts the authority of the agent to rescind a sale of goods, third parties will not be heard to deny it. Accordingly, where the agent agrees with the vendee to a rescission of the sale, and the agent’s principal asserts the authority of the agent to so rescind, the vendee will not be heard to deny the agent/s authority.</p>

<p>1. The right of an agent to recover' compensation for his services rests upon contract, express or implied, as affected by custom or usage. Accordingly, creditor banks are not liable for compensation for the services of the members of their committee appointed to conserve a bankrupt’s assets, in the absence of any express or implied contract to pay it, or of a custom or usage entitling the committee to compensation.</p> <p>2. Where service is. rendered by one person for another at the latter’s request and under circumstances which negative the idea that it is gratuitous, the law implies a promise to pay a reasonable compensation therefor; but where the service is rendered with the understanding that it is gratuitous, the law does not raise an implied promise to pay therefor, no matter how valuable the service may be.</p> <p>3. Several creditor banks, having an interest in a bankrupt’s assets, and acting for their common benefit, may accept the services of an employe of one of them as a member of their creditor’s committee, without incurring any liability to pay for such services, when they know, or are justified in believing from the outset, .that the services are rendered because of an employment by Ilia bank to represent its interest at the creditors’ meeting, and but for such knowledge would not have accepted such services.</p> <p>4. In a suit against several banks by a member of their committee appointed to represent their interests in a bankrupt’s assets, .if neither party contemplated that compensation was to be made to the. committee for services, the plaintiff can recover none.</p> <p>5. If, at the time when the plaintiff, an employe of one of several banks, was appointed a member of their committee to conserve a bankrupt’s assets, it was not contemplated by either party that the committeemen should receive compensation for their services, and nothing arose by which the relations between the parties were changed, and the creditor banks were not informed of any intent to charge for such services until after they were rendered, the jffaintiff is not entitled to recover on a quantum meruit.</p> <p>6. Where officers of banks are acting respectively as members of a creditors’ committee of several banks, including their own, knowledge acquired by them from a statement made to them, during the progress of the business, by one of their fellow-committeemen that he expected compensation for his services from the creditor banks jointly, was knowledge acquired in relation to a matter in which their personal interests were in conflict with that of their principals, and is not imputable to their principals.</p>

<p>1. In a criminal case it is proper for the trial judge in Ms charge to call attention to the defendant’s interest in the result, and to instruct the jury that they should consider such interest in determining his credibility as a witness.</p> <p>2. An instruction must be taken as an entirety — that is. each clause must be considered in connection with others of the series referring to the subject and connected therewith, and if when taken together they properly express the law as applicable to the particular case, no ground of complaint exists, even though a single clause, considered by itself, is inaccurate or incomplete.</p> <p>3. In a criminal trial the jury should consider all of the relevant testimony, including that relating to the defendant’s good character or reputation, and if, on such consideration, there exists reasonable doubt of liis guilt, even though that doubt be engendered merely by his previous good repute, he is entitled to an acquittal; but if, from the entire evidence, including that relating to his good character, the jury believe the defendant guilty beyond a reasonable doubt, he should be convicted and the evidence of good character should not alter the verdict.</p> <p>4. In a criminal trial it is always the right and often the duty of the judge to tell the jury how the testimony strikes his mind, both as to its force and as to the inferences he would draw from it. and such expressions in a charge will not lead to a reversal so long as the right and duty of the jury to decide for themselves all disputed questions of fact is pointed out in the charge.</p> <p>5. In a criminal trial a remark made by the prosecutor of the pleas, stating as a fact a matter not in evidence, will not lead to a reversal when it appears that upon objection the trial judge immediately and in an unexceptionable manner ordered it stricken from the record and directed the jury to disregard it.</p>

<p>1. The written instrument considered in this case — Held to be a contract made for the benefit of the plaintiffs within section 28 of the Practice act of 1903.</p> <p>2. A written agreement stipulating that in consideration of services rendered by plaintiffs in negotiating a lease and renewals thereof and attending to the collection of rents, they should be paid a percentage on the rents and also a percentage on the sale price in case the landlord should sell to the tenant secured by them: — Held, not to be within section 10 of the statute of frauds relating to right of brokers to recover commission for selling or exchanging real estate.</p> <p>3. Where a written agreement provided that “in consideration of services rendered by as agents of the lessor,” &e., certain compensation should be paid and it appeared without objection that the plaintiffs had acted throughout in a capacity as agents of such lessor in connection with the subject-matter of the agreement — Held, that they were entitled to recover thereon, notwithstanding the omission of their names in the writing.</p> <p>4. An erroneous ruling of the trial court in a common law action will not be reviewed, even since the enactment of the Practice act of 1912, in the absence of an exception prayed at the time as a notification to the trial court that such ruling will be made the subject of review.</p>

<p>1. A subscription to a charitable 'enterprise stands on the same footing as any ordinary contract in requiring a legal consideration and acceptance to support it.</p> <p>2. Where the jury might have found that the subscriber to a charitable hospital stipulated as a condition of her promise to contribute to its building fund, that her subscription was to be applied to the building of an operating room to be named by her, and that the hospital authorities were to obtain the waiver in her favor of a similar privilege held by another subscriber, and the subscription was payable on demand — Held, that there was evidence for the jury of a legal consideration, and that it was error to nonsuit because no consideration appeared.</p>

<p>1. Personal property of a bankrupt, in the possession of a trustee in bankruptcy, is liable to taxation in the taxing district where such property is “found” on the date fixed by law for assessment of taxes; and this includes money deposited in bank.</p> <p>2. The statutory provision that “personal property in the possession or under the control of a trustee * * * shall be assessed in his name as such,” is merely directory and has no force in exempting the property itself from the general language of the statute making such property taxable.</p> <p>3. It seems that a ministerial officer of court, having in his possession seized property by virtue of court process, is not liable for tax thereon; but this does not exempt the property itself.</p> <p>4. A vessel permanently moored in the tidewaters of New York bay or the Hudson river within the territorial lines of New Jersey, awaiting sale, and so found on the date of the annual assessment, is liable to taxation in New Jersey.</p>

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

<p>1. It is not an abuse of discretion for the trial court to permit counsel for the state in a criminal case to cross-examine a witness called by him, relating to testimony given contrary to a previous statement made by the witness to such counsel, to- his surprise, and on which he had a right to rely when the witness was called, the effect of which was to make him a hostile witness.</p> <p>2. When, at the close of the state’s case, the defendant offers no testimony and declines to sum up the case to the jury it was not error requiring a reversal to permit, counsel for the state to make a fuller opening, reserving to defendant the right of reply.</p> <p>3. The inferences to be properly drawn from the refusal of defendant in a criminal case to testify in his own behalf are not overcome by his plea of not guilty to an indictment charging a crime. Such a plea does not prevent him from testifying, and it is from a refusal to avail himself of that right, when he can deny any material fact tending to show guilt, that the inference that he cannot deny the charges against him may be drawn.</p> <p>4. The instruction to a jury was that if after consideration of all the evidence they find that they are not convinced of the guilt of the accused, then it may be said a reasonable doubt exists, and that the defendant is entitled to it, and if under such circumstances they are convinced of his guilt, and there is no reasonable doubt, they should convict. This in its entirety is not properly subject to the criticism that it excludes the question of reasonable doubt until the jury have decided whether defendant is guilty or not.</p> <p>5. A request to charge that defendant could not be convicted on the uncorroborated testimony of an accomplice was properly refused.</p>

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

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

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

<p>Where plaintiff, for the purpose of his own convenience, availed himself of the use of a right of way of a railroad, against his better knowledge and the experience of the inherent danger of adopting such a course, as well as in the face of posted warnings that his act would be tantamount to the act of a trespasser, he placed himself in the legal category of a trespasser, to whom no duty was owing by the defendant railroad company excepting that of refraining from the perpetration of an act of willful or wanton injury.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 94 N. J. L. 301.</p>

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

<p>Where it appeared from evidence adduced at the trial that plaintiff’s decedent, who was driving- a milk wagon, on a misty morning, and coming out of an intersecting street, started to cross the trolley tracks of the defendant company, and the rear of the wagon was struck by a trolley car, which was approaching at a fast rate of speed; that the rails were slippery, and that no warning was given by the motorman by sounding his gong — Held, that there was sufficient evidence on the question of the negligence of the defendant company for the case to go to the jury; and held, further, that deceased had the right to assume that the motorman saw him emerging from the intersecting street, and that as he had equal rights in the use of the highway, that the motorman would respect his right and have his car under control, and that the question of contributory negligence was also for the jury.</p>

<p>1. A writing addressed to an agent containing the following: “I shall he glad if you could sell the property; I would be glad for you if you could sell the property and get the commission. Tell your man to make me an offer,” stating the rate of commission on the dollar to be paid in the event of a sale being consummated, and signed by the owner, is sufficient to satisfy the statute of frauds. Pamph. L. 1911, p. 703; Oomp. Btat., first supp., p. 747. It is an authority for selling the property described in the writing.</p> <p>2. Whether the plaintiff was the procuring or efficient cause of the sale, there being doubt upon that point, the doubt must be solved by the jury under proper instructions from the trial court.</p>

<p>1. The Public Service Railway Company, the defendant, as the successor in interest to the propei’ty and franchises of the Camden and Suburban Railway Company, is liable to the borough of Mcrchantville for the expenses of paving between the rails and tracts of the oompanj- and three feet on each side thereof, for that portion of Maple avenue in the borough west of Centre street. This results from an ordinance passed by the council of the borough on December 18th, 1900, and an agreement with the defendant company, dated November 15th, 1915. For an amplification of the facts and statutes, which lead to this result, see the body of the opinion.</p> <p>2. A turnpike company cannot stand by and see public work done on the roadbed without objection. This will raise a presumption of consent.</p> <p>3. A railway company having accepted an ordinance granting permission to lay its tracks on a public highway in its entirety must accept the burdens. It cannot accept the benefits and reject the burdens. This is so, even when the work done by the municipality, from which the obligation arose, was ultra vires.</p> <p>4. A railway company cannot stand by and see public work done for which it may be liable under a resolution, and then raise the question of the propriety of the procedure collaterally, viz., that the work should have been done under an ordinance and not by resolution.</p>

<p>The plaintiff, a stranger to the premises, attempted to cross the pier of the defendant upon which were located railroad tracks over which coal cars were being operated by gravity, without any custom of warning those upon the pier of the movements of the cars; upon reaching a track which contained cars the plaintiff observed an opening between two ears, and while attempting to pass sideways between the cars, a movement of the ears crushed his arm. Held, that defendant was guilty of no negligence and the plaintiff was guilty of contributory negligence.</p>

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

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

This was an action at law in the Supreme Court tried at the Atlantic Circuit before the court without a jury, and resulted in a nonsuit, upon which judgment was accordingly entered in the Supreme Court. In granting the nonsuit, Judge Donges, who presided, delivered the following opinion: “The plaintiff is the beneficiary of a policy of insurance entered into Jiine lCtli, 1914, between James W. Bew and the Travelers’ Insurance Company.

<p>On appeal from the Supreme Court, whose opinion is reported in 94 N. J. L. 381.</p>

“This was the second trial of the case, and again the verdict was for the plaintiff. There was evidence of these facts before the jury and verdict predicated thereon is sustainable. Mw-phy v. Mew- Jersey Street Railway,. 81 N. J. L. 706; Schnatterer v. Bamberger, Id. 558. “The facts were controverted and that status presented a jury question.

“At the time of the alleged sale, March 25th, 1915, the board of directors of the defendant company consisted of Samuel L. Leonard, president; Phillip- Jaqur and Albright Van Vorhis, the latter being secretary and treasurer. The father of Albright Van Vorhis was treasurer of the plaintiff company, and had two brothers in the employ of the same company, at Saugerties.

<p>On appeal from the Supreme Court, whose opinion is reported in 94 N. J. L. 332.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 95 N. J. L. 28.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 95 N. J. L. 30.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 94 N. J. L. 318.</p>

steal the carcasses; and the other charging him with stealing the heifers.

<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 94 N. J. L. 324.</p>

This was an action in the Middlesex County Circuit Court tried before the court without a jury, and resulted in a judgment fox the plaintiff. In granting the judgment Judge Lloyd, who presided, delivered the following opinion: “This action seeks to recover the sum of $10,000, with interest, -upon a written agreement dated February 15th, 1918, between one Eodney Miller and the defendant, Lewis Nixon.

“It is conceded that the proceedings in the Circuit are fatally defective, for failure to comply with the statutory requirement in describing the premises. The only mooted question is whether the prosecutrix has a standing to challenge the legality of those proceedings. An examination of the papers, and the testimony in the case, leads me to the conclusion that she has. The taxing authorities of Newark assessed this property for taxation as the property of one William Ball.