Volume 96 — New Jersey Law Reports

<p>1. An identifying- statement made by a person upon whom a criminal act has been committed is not of itself evidential against the alleged criminal. To have probative force it must not only be made in his presence but his reply thereto, if he made one, or his silence, if he stood mute, must amount to an admission of its truth.</p> <p>2. A fact material to the issue is provable by any person having knowledge thereof.</p> <p>3. Testimony is relevant when the fact to which it is applied is so related to another (and material) fact that, according to the common course of events, the existence of the former fact proves or renders probable the existence of the latter. Hence, the condition of a street light at two o’clock in the morning, in the absence of any proof of the existence of abnormal conditions with relation to it, is some evidence of its condition a few hours earlier on the same night.</p> <p>4. In order to justify a reversal for error of law committed by the trial court, it must appear that the error was harmful to the party complaining thereof.</p>

<p>1. Tlpon the trial of an attorney-at-law for the fraudulent conversion of money entrusted to him by a client, the defendant objected to the admission in evidence of the books of banks in wMch the defendant carried deposits, the purpose of the introduction of the books being to show that the defendant had not deposited the moneys entrusted to him. 'Held, that the fact that the moneys were not deposited in either bank was some evidence that they were retained by the defendant, and, although, if this was the fact, it would not. standing alone, justify the conclusion of a wrongful appropriation of the money, it was an incident in relation to the defendant’s dealing with these moneys which was material, and properly to be considered with other facts proved in the case, in reaching a conclusion whether defendant was guilty of the crime charged against him.</p> <p>2. Upon the trial of a person for one crime, testimony that he has been guilty of other crimes is irrelevant and incompetent, unless the defendant’s guilt of the extraneous crime tends logically to prove against him some particular element of the crime for which he is being tried and there must appear between the extraneous crime and the crime of which the defendant is accused some other real connection beyond the allegation that they have both sprung from the same vicious disposition.</p>

<p>1. Section 18 of the Crimes act (Pnmph. L. 1898, p. 798) providing that a person convicted of perjury shall thereafter be incapable of giving testimony in any court of this state has been abrogated by the first section of the Evidence act (Oomp. Stat., p. 2217), which enacts that “no person offered as a witness in any action or proceeding- of a civil or criminal nature shall be excluded b,y reason of his having been convicted of crime.”</p> <p>2. The fact that a witness, called to testify as to what he said before the grand jury, had been intoxicated when he appeared before that body, does not affect his competency, but only goes to the credit to be given to his testimony, which credit is a matter to be determined by the jury.</p> <p>8. If a party, Whose act is under investigation by the grand jury, or a third person, seeks out one who has knowledge of the facts involved, and under a belief that he is likely to be brought before the grand inquest, solicits, instigates and persuades him to falsely testify before the grand jury with relation to the subject-matter of the investigation, and he yields to the solicitation, and does by reason thereof commit perjury, the party at whose instigation he swears falsely is guilty of subornation of perjury.</p>

<p>1. The extent to which a trial court shall go in referring to the evidence in the charge to the jury is a matter resting entirely in the discretion of that court, and an appeal will not lie to review the exercise of that discretion.</p> <p>2. The omission of a trial judge to instruct a jury with relation to a particular matter is not assignable as a ground for reversal unless such instruction be specially requested.</p> <p>3. Where the automobile of the plaintiff was damaged in a collision, and then sold by plaintiff without any repairs having been made thereon, the measure of damages is the difference between the value of the automobile before it was injured and the price which was received for it from the purchaser.</p>

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

<p>On rule to show cans'e.</p>

<p>On. certiorari.</p>

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

<p>On certiorari to the District Court of Elizabeth.</p>

<p>1. In a i>roeeeding under section 2 of the Workmen’s Compensation act (Pamph. L. 1911, p. 130) to recover compensation for the death of an employe, the burden of proving that death was caused by accident arising out of and in the course of his employment is upon the petitioner.</p> <p>2. The findings of fact by the trial judge in a proceeding under section 2 of the Workmen’s Compensation act (Pamph. L. 1911, p. 136) will not be disturbed if ihey are supported by evidence.</p> <p>3. In a proceeding under section 2 of the Workmen’s Compensation act {Pamph. h. 1911, p. 136) death may be found as having been caused by an accident, although there was a diseased bodily condition prior to the injury without which death would not have ensued, and where it may be inferred the undeveloped and dangerous physical conditions are set in motion producing such result.</p> <p>4. Where a workman receives a personal injury from an accident arising out of and in the course of his employment, and a disease ensues which, but for the accident, would not have ensued, and which disease causes his death, this justifies a finding that death was in fact the result of the injury and was by accident within the meaning of section 2 of the Workmen’s Compensation act {Pamph. L. 1911, p. 136), even though it is not the natural . result of the injury.</p>

<p>1. In order to give a justice of the peace jurisdiction in summary proceedings under the Landlord and Tenant act, the affidavit filed with the justice must set out the facts showing the relation of landlord and tenant, and any other facts which under the statute are essential to authorize the removal.</p> <p>2. While the grantee of the reversion of lands may terminate the tenancy in accordance with the lease, still, where that circumstance is relied upon, the affidavit initiating the summary proceeding to dispossess the tenant must show that the claimant was such grantee at the time he gave the notice designed to terminate the tenancy.</p> <p>3. In a summary proceeding under the Landlord and Tenant act, whore the tenant appears and demands proof of the jurisdictional facts, such proof must be submitted; and the. invalidity of a judgment entered over objection without such proof is not cured by the mere fact that the tenant offered himself as a witness, it appearing that he was not examined as to such jurisdictional facts.</p>

<p>On ce-rtiorañ.</p>

<p>The federal control and regulation of the coal industry under the Lever act of 1918, and executive regulation in pursuance thereof, conferred no immunity from state taxation as respects coal otherwise taxable under state law.</p>

<p>1. An award by a public body of a contract for the doing of work or the purchase of supplies made after advertisement and competitive bidding, must be according to the terms advertised to prospective bidders, so that all may be on the same footing.</p> <p>2. An advertisement for competitive bids to furnish a fire engine called for a truck with a pumping system and body to carry one thousand two hundred and fifty feet of hose, “each part proposed to be furnished to be separately specified by the bidder and separately priced.” Held, that the contract could not be awarded on a lump bid for the entire apparatus.</p>

<p>The sidewalk in front of defendant’s property was partly covered with a paved walk, there being a curb along the outer side of the sidewalk and a hedge along the other side; the defendant, after a snowstorm, removed the snow from the stone paving and placed it partly along the curb and partly along the hedge side of the stone walk. During the day the snow melted and the water ran over the stone paving which froze during the night. The plaint- . iff in passing over this walk was thrown by the ice thus formed and was injured.' Held, that the act of the defendant was not such an artificial accumulation of snow as to make the defendant liable. Aull v. Lee, 84 N. J. L. 155, distinguished.</p>

<p>1. Whether the payment for goods delivered in performance of a contract to furnish a larger quantity amounts to an accord and satisfaction, in a suit for damages resulting from a breach of the contract, is to be determined from the facts in the case, and if the evidence is conflicting the question is to be determined by the jury. Therefore, when the facts necessary to establish an accord and satisfaction are in dispute, the refusal of a motion to direct that the accord is established is not error.</p> <p>2. To establish a contract of accord and satisfaction based on the acts of an agent of the party charged, it must appear that the agent had authority to make the contract, or that his principal ratified his act.</p>

<p>On certiorari.</p>

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

<p>The legal presumption that where the wife commits a crime in the presence of her husband she is under Ms coercion and that her acts are not voluntary on her part is rebuttable, and when there is evidence from which a jury may infer that the participation of the wife was voluntary, the refusal to direct an acquittal of the wife is not error.</p>

<p>1. Granting or refusing by the court of a severance for the trial of defendants jointly indicted is a matter of discretion not reviewable on error. Nor is it an abuse of discretion prejudicial to either defendant in maintaining their defence on the merits under section 186 of the Criminal Procedure act, when the only ground urged is that one of the defendants had been convicted of another crime.</p> <p>2. Where defendants are jointly indicted charged with burglary, the right to ten peremptory challenges is a joint right and each defendant is not entitled to ten such challenges.</p> <p>3. The defendants were indicted for breaking and entering with intent to steal, and if the evidence sustains that charge, the value of the goods taken is of no consequence.</p>

<p>1. The act of 1906, as amended in 1909 (Pamph. L., p. 210), does not authorize a wife to maintain a suit in her own name for damages based on the loss of earning capacity of her husband resulting from injuries he suffers through the negligent act of a third person, for the act expressly reserves to him a right of action for any damages he may have sustained.</p> <p>2. A wife cannot maintain an action in her own name for the loss of her husband’s services, including the right of consortium resulting from personal injury to him caused by the negligence of a stranger, and not the result of a malicious interference with her right of consortium.</p>

<p>On certiorari removing the proceedings of dispossession in the Second District Court of Jersey City.</p>

<p>On certiorari removing resolution of county board appointing James J. Murner to office of secretary of board.</p>

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

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

<p>1. AVliere one by negligence puts another under a reasonable apprehension of personal physical injury, and in a reasonable effort to escape, the latter sustains physical injury, a right of action arises to recover for the damage thus occasioned.</p> <p>2. Plaintiff, while driving an automobile along the highway, in attempting to avoid a collision with a runaway horse, attached to a milk wagon, was injured by the horse, which crashed into his car. It was proved at the trial that the horse, otherwise gentle, was possessed of several characteristics, among which were those of starting for home when cold or hungry, and of starting before he was told to start, the custom of the driver being to run along until he overtook the vehicle. It was also in evidence that the driver had left the horse untied, shortly after the dinner hour on a cold day, while he went into a house to make a collection. Held, that the negligence of the defendant in leaving the horse untied and unattended, in spite of the fact that he knew the peculiar idiosyncraeies of the horse, was the proximate cause of the injury.</p>

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

<p>Under the provisions of chapter 45 of the laws of 1907 {Pamph. L., p. 79) the terms of the board of fire and police commissioners of the city of Paterson is for one year, therefore the term of office of the clerk, appointed by the board, is limited to the period of the legal existence of the board. Burgan v. Civil Service Commission, 84 IV. J. L. 219, and Young v. Stafford, 86 Id. 422, followed.</p>

<p>1. In determining -whether a rate of fare proposed by a public utility is unjust and unreasonable, the board of public utility commissioners may properly take into consideration the safety, sufficiency and adequacy of the service rendered.</p> <p>2. Since the board of public utility commissioners has, by statute, authority to direct a street railway company to make its road safe and to furnish sufficient and adequate service, it follows as a logical sequence that when the board finds that its order has not been complied with, it must have the implied power to deny a hearing until its order has been obeyed.</p>

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

<p>1. When a workman was killed some distance from the place of his employment, while boarding a train on which the employer furnished free transportation from the place of employment to the workman’s home—Held, the accident causing the death was one which arose out of and in the course of his employment, Ms widow is entitled to an award of compensation under the “Workmen’s Compensation statute.”</p> <p>2. The Workmen’s Compensation statute is a remedial law of prime import and should be liberally construed.</p>

<p>Where a man promises to marry a woman, at the same time seduces her, the seduction being effective by means of the promise of marriage and entering into the promise as a component of the wrong, he then refuses to perform his promise and abandons her, the original promise is a fraud for which he can be arrested and held to bail. Perry v. Orr, 35 N. J. L. 295, applied and followed.</p>

<p>1. Copies of compensation agreements filed with the department of labor lxave no probative force in judicial proceedings to recover compensation under said agreements, in the absence of statutory warrant for their reception in evidence.</p> <p>2. Admission of payments to a plaintiff, pursuant to the provisions of the Workmen’s Compensation act, made in an answer filed by the defendant in a suit to recover compensation under an alleged agreement made between the parties, is presumptive evidence that the payments were made only under those provisions of the law which required the making of an agreement.</p>

<p>1. Where a plaintiff, a girl nineteen years of age, sustained a fractured arm just below the shoulder, torn ligaments at the knee, causing the knee to slip from its position, a probable permanent condition, two deep scalp wounds, one three inches over the right eye, and the other two inches between the eyes, leaving permanent scars and marring the comeliness of her face, and also sustained loss by inability to follow her occupation as a stenographer for at least four months—Held, that a verdict of $5,000 was not excessive.</p> <p>2. Where the plaintiff alighted from a bus on the westerly side of a street, and desiring to cross the street made, upon alighting, an observation to the north and south and saw a bus approaching two blocks away, started to cross the street at a crosswalk after making another observation and was struck by the bus first observed two blocks away, the question of contributory negligence of the plaintiff was for the jury, and a motion to nonsuit on this ground was properly denied.</p>

<p>On quo warranio, demurrer to plea.</p>

<p>1. Section 28c of the act relating to boroughs (Oomp. Btat., p. 242), which provides that the borough council shall have power to regulate, control and prescribe the method and maimer of building, constructing, altering or removing dwelling-houses and all other buildings or structures and the kind or quality of the materials used therein, does not authorize the passage of an ordinance which provides that no building of any kind less than two stories in height shall be erected on a certain street within eighty feet of the building or fence line.</p> <p>2. An ordinance which, in providing that no building less than two stories in height shall be erected on a certain street within eighty feet of the building line, was intended, primarily, to beautify the appearance of the street, cannot be supported on the ground that it was necessary for the public safety, and cannot be sustained as a valid exercise of the police power.</p>

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

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

<p>Tt is settled law that a finding of fact by a court below will not be disturbed on appeal, if there be any evidence to support it.</p>

<p>1. The provisions in the constitution of Nov Jersey that the right of trial by jury shall remain inviolate and that the accused shall have the right to trial by au impartial jury, mean trial by a jury at common law, consisting of twelve men; but these constitutional provisions in nowise trammel legislative power with .reference to the qualifications of jurors.</p> <p>2. The statute of. New Jersey in force at tlie time of the indictment and trial of the defendant, while not providing in terms that men shall be summoned as jurors, contains a distinct recognition of the common law qualification that men only shall be empaneled, by the use of the personal pronouns of the masculine gender “he” and “his” in describing the persons who shall bo selected as jurors, and is not in violation of anj' provision of 'either the state or federal constitutions.,</p> <p>3. The nineteenth amendment to the constitution of the United States, adopted prior (o the commission of the homicide by the defendant in this ease, emancipates women so far only as the right of suffrage is concerned, and does not operate in terms or by implication to qualify them as jurors: it requires legislation to do that; and this state, since the trial of the defendant, has enacted a statute which includes within the description of persons liable to jury duty, women as well as men.</p> <p>4. To summon and return only men as jurors, when both men and womc-n may be selected, is not error unless the omission to select women is made through bias, prejudice or other improper motive.</p> <p>5. A defendant has no right to say what jurors shall try him; his right extends no further than to exclude jurors by whom he objects to being tried.</p> <p>0. Even if the omission of the jury commissioners to return women upon the panel, were unlawful, and if the act recognizing the common law qualification of men only as jurors, were unconstitutional in that regard, still, the question cannot be raised by the defendant, a man, as he was not thereby injured; as a white man cannot urge as an inifraetion of his rights that the rights of another race have been assailed, so a man cannot complain because women are denied the same rights as men; such rights may be demanded only by members of the proscribed race or sex.</p> <p>7. When the matters to bo proved upon a trial are distinct, though component parts of a demand or a defence, the order of their production is wholly immaterial and always within the discretion of the court</p> <p>S. Upon the trial of a criminal case it is not error to permit the introduction of the prisoner's confession before the corpus delicti is proved.</p> <p>9. In a prosecution for murder the corpus delicti may be proved by the confession of the prisoner which is corroborated by other evidence; the law does not require full proof of the body of the crime independent of such confession.</p> <p>10. Where a man is feloniously stricken down in one county and dies as a result thereof hi another county, his assailant may, under our statute, be indicted and tried in the county where stricken; and, on such trial, the order of proof, whether of confession of striking the blows in the county where the trial is had is first admitted and evidence of the corpus delicti in the county where the dead body was found, is afterwards admitted, or vice versa, .is discretionary with the trial court and entirely immaterial.</p> <p>11. The statute which empowers a jury, as part of their verdict of murder in the first degree “upon and after consideration of all the evidence,” to recommend imprisonment of the convict at hard labor for life (in which case that punishment shall be imposed), does not permit the trial of a collateral issue—such . as insanity in the family of a prisoner who does not plead insanity in himself as a defence in bar—to enable, the jury to decide (o render a merciful verdict for a prisoner on trial for murder; an issue must be single and certain, and an irrelevant one will not be permitted to be tried.</p> <p>12. A criminal defendant’s mental condition need not be such as to enable him to realize the fullest extent of his acts before he may be convicted; the law presumes a man to be sane,, and if the contrary exists thereby defeating this natural presumption, it must be shown by the party who alleges it, and, when insanity is set up as a defence, the test of responsibility is the capacity of the defendant at the time of the doing of the act complained of, to distinguish between right and wrong, with respect to that act.</p> <p>13. The Crimes act makes murder which shall be committed in perpetrating or attempting to perpetrate any robbery (and certain other offences) murder in the first degree; and, while insanity is a defence to any murder, nevertheless, a homicide committed in the perpetration of robbery, if murder at all, is by the statute made murder in the first degree, and, as the evidence justified the conviction' of the prisoner, who was engaged in robbery, of the crime of murder in the first degree, the jury could not have reduced the grade of the homicide to murder in the second degree.</p>

<p>On error to the Camelen County Court of Oyer and Tenniner.</p>

<p>1. A limitation upon the exercise of the powers conferred upon a municipality by general laws is embraced within the title of an act entitled “An act to incorporate the borough of Ocean Grove, in the county of Monmouth.”</p> <p>2. The legislature has the power to change, revoke or modify governmental functions conferred upon a corporation by its charters, and may create a new municipal agency of the state to take over and exercise them.</p> <p>3. A grant of partial exemption from taxation, contained in the charter of a corporation, does not confer a right which is vested in the corporation in the sense that it cannot be taken away by subsequent legislation.</p> <p>4. Although the constitutional mandate prohibiting the enactment of private, local or special laws regulating the internal affairs of municipalities does not bar the legislature from creating a municipality by a special law, it prohibits it from materially differentiating its new creation from the body of municipalities of the same class in the conferring upon it of governmental powers.</p> <p>5. An act is equally special whether it confers upon a single municipality substantial powers in addition to those possessed by other municipalities of the same class; or whether, as to a single municipality, it places substantial restrictions and limitations upon powers conferred while like powers are enjoyed by other municipalities of the class free from such restrictions'and limitations; or whether it confers only some, but not all, of the substantial powers- enjoyed by other municipalities of the same class.</p> <p>6. The act to incorporate the borough of Ocean Grove, in the county of Monmouth (Pamph. L. 1920, p. 190), is special legislation regulating the internal affairs of the municipality, and therefore unconstitutional.</p>

<p>On appeal from the Supreme Court, whose opinion is reported' in 95 N. J. 'L. 393.</p>

On appeal of the Hackensack Improvement Commission, and the bo-rough ot Ten-afly, from a judgment of the Supreme Co-urt, whose opinion is reported in 95 N. J. L. 295. On appeal of the eiiy of Hoboken fro-rn the same judgment.

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

<p>The federal act of February 28th, 1920, enacting that the period of federal control shall not be computed as a part of the periods of limitation in actions against carriers, is inapplicable to actions under the Federal Employers’ Liability act of 1908.</p>

<p>1. The declaration of a patient, as to his symptoms made to his physician or surgeon for the purpose of treatment are admissible in evidence, but when such declarations are made, not for the purpose of treatment, but for the pur-pose of leading the physician or surgeon to form an opinion to which he may testify as a witness for the declarant, such declarations are incompetent.</p> <p>2. Declarations made to a physician as to the cause of the injury which is the particular subject-matter of inquiry and which may be proved by other evidence, is inadmissible.</p>

<p>1. In the absence of a special agreement, a real estate broker, acting by virtue of a written agreement, earns his commission when lie secures a buyer on the seller’s terms either as originally propounded or as settled by agreement between the seller and buj er.</p> <p>2. Where a written agreement provides for a stated commission for the broker therein named “if he shall be instrumental in procuring a purchaser” for the property described therein, and further provides that “this- agreement shall hold good only if the property is sold to a purchaser introduced” to the owner by the broker, the word “sold” means the success of the broker in getting the buyer and. seller together upon terms of sale, and under such a contract the seller cannot deprive the broker of the stated commission by refusing to carry out the terms of sale thus settled unless the broker would waive his commission.</p> <p>3. Where by contract in writing the owner authorized a broker to procure a purchaser for real estate therein described, and agreed to pay him a commission therein stated if the property was sold to a purchaser introduced to the owner through the broker, the contract satisfies section 10 of the statute of frauds (Pamph. L. 1918. p. 1020) as against an objection that it does not set out all the terms of sale.</p>

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

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

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

<p>Where there are concurrent covenants to be performed by vendor and vendee, the universal legal rule is that before the latter is enabled to rescind and sue for a breach of the contract he must show tendered performance of such concurrent covenants on his part and that he had demanded performance by the vendor of concurrent covenants on his part, but an equally well recognized exception to this general rule is that in case a vendor is unable to'perform at the time agreed upon for the passing of the title, tender of performance by the vendee is not required in order to enable him to rescind and to sue his vendor for a broach of the contract.</p>

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

<p>On writ oí error to the Union. County Court of Oyer and Terminer.</p>

<p>1. Under section 1128 of the act entitled “An act concerning counties,” and known as the County Home Rule act (Pamph. L. 1918, eh. 185, as amended by Pamph. L. 1920. eh. 32), the application of the municipality to the board of chosen freeholders for an improvement to be made under this section ánd the agreement between the municipality and the county as to the portion of the cost of the improvement to- be borne by the municipality, are conditions which must be performed prior to action by the board of chosen freeholders aAvarding contracts for the improvements and the creation of an issue of bonds to pay for the same.</p> <p>2. A resolution of a board of chosen freeholders of a county awarding contracts for the improvements of streets and purporting to create an issue of bonds to finance the cost of the improvements to be made under section 1128 of the County Home Rule act {Pamph. Ij. 1018, p. 390, as amended by Pamph. L. 1920, p. 72), which'does not authorize an appropriation sufficient to meet the cost of carrying out the provisions of the contracts, is invalid under section 14 (j) of chapter 252 of Pamph. L. 1910, as amended by chapter 240 of Pamph. L. 1917, and will be set aside.</p> <p>3. A resolution purporting to create an issue of bonds to finance the cost of improvements to be made under section 1128 of the County Home Rule act, which does not conform to sections 2 and 12 of the act known as the Piersoh Bond act (Pamph. L. 1916, p. 525, as amended by Pamph. Ij. 1917. p. 803), is invalid and will be set aside.</p>

<p>On erren1 lo tlie Supreme Court.</p>

<p>1. In condemnation proceedings testimony on behalf of a landowner to show possible uses for which the land in question may be made available, if extensive improvements involving necessarily large expenditure be made, is inadmissible.</p> <p>2. In proceedings to condemn a right of way and easement for the construction of a sewer sixty-five feet beneath the surface of the land, a witness who had been associated with another engineer in acquiring and condemning land for a tunnel right from eight to twenty-five feet beneath the surface and under a railroad terminal four miles from the property under which the sewer is to be constructed, and also in acquiring' a tunnel right from eight hundred to nine, hundred feet under farmland and woodland for a pipe line twenty miles away is not an expert as to the amount which the land through which the sewer is proposed to be constructed will be depreciated by the construction of the sewer.</p> <p>8. AVliether similarity between properties in fact does or does not exist in order to permit a comparison of the values of rights of way and easements through said properties is a preliminary question to be decided by the court, and the decision of the court rejecting testimony as to values will not be disturbed on review if there be any evidence which justifies the court’s ruling.</p>

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

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

<p>On appeal from the Supreme Court, whose opinion is reported In 95 N. J. L. 365.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 94 N. J. L. 357.</p>

Justice Parker: “The writ removes for consideration an elaborate zoning ordinance of Cliffside Park, approved September 27th, 1920, and which was avowedly enacted, pursuant to the supplement to the ‘Home Rule act’ of 1917, which appears as chapter 210 of the laws of 1920. Pamph. L., p. loo.

The trial resulted in a verdict for the plaintiff for $19,1-1-2.49. From the judgment entered thereon the defendants appeal. “The first ground of appeal is that the court erred in permitting the jury to pass upon a question of fraud and estoppel involved in the case, for the reason that the court and not the jury should have determined it.

The plaintiff contracted witfi the defendant, Stafford, who was the owner of a building in the course of construction a.t Atlantic City and known as tlie AVrinont Apartments, for the doing of certain tile work in that building, and supplying the material and labor therefor. The contract was made on the 25th of July, 1017, and was duly filed.

Prosecutor was duly chosen as mayor under section 3 and under section 4 (see Pamph. L. 1915, pp. 494 et secj.), thereby became director of the department of public affairs, with which, by the act, went the department of public safety.

On the argument of the rule, the facts not being in dispute, parties agreed that if the court should decide to allow the writ, it should at the' same time determine the matter in dispute.

<p>On appeal from the Supreme Court, whose opinion is reported in 94 N. J. L. 367.</p>

It is admitted that the affidavit, which is the basis of this proceeding, set out .the required jurisdictional facts, but it is urged by the prosecutor that the trial court was without jurisdiction to enter judgment in favor of the landlord because he failed to prove on the trial certain jurisdictional facts set out in the preliminary affidavit, to wit, ownership, that the relation of landlord and tenant existed, or that there was any agreement which authorized the agents of…

<p>On appeal hom the Supreme Court, whose opinion is re ported in 93 K. J. L. 340.</p>

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

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

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

This was a suit to recover on the endorsement of a promis•sory note. Upon plaintiff's counsel opening the case to the court and jury, counsel for defendants, moved to nonsuit the plaintiff upon the ground that the facts offered to be proved did not constitute a cause for action against the defendants. The trial judge granted the motion. ' From the judgment thereupon entered the plaintiff has appealed to this court.

<p>On error to the Supreme Court, whose opinion is reported in 95 N. J. L. 321.</p>

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

When the legislature, by statute, creates an office and affixes a term to it for which each and every incumbent shall hold it, or where a municipal board pursues the same course under legislative authority conferred upon it for the purpose, the resignation of an incumbent thereof, before the expiration of the term so fixed, leaves an uncompleted term, and the vacancy can only be filled for the period that the term has to run, as provided by section 5 of the act of 1901…

<p>On quo warrant®. On demurrer to information.</p>

<p>Deeodeut and a friend were struck by a car which they expected to board, while crossing a street at the intersection of another street. It appeared from the testimony that there was a white pole at the corner, indicating that cars stopped to take on and discharge passengers. It also appeared from the testimony of decedent's friend that the. car had been observed by them when it was a block away, and that, they had then started to cross the street to board it, but had made no further observation and did not again observe the ear until they w,ere struck. Held, that it was the duty of the motorman to have his ear under control upon approaching the intersection of the streets under the circumstances; and held, further, that the question of the negligence of the motorman and the contributory negligence of decedent under the circumstances were properlj' jury questions.</p>

<p>On appeal from the Hudson County Court of Common Pleas.</p>

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

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

<p>By section 49 of the Sale of Goods act (Comp- Stat., p. 465S) acceptance of goods by a buyer does not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract, but in order to hold the seller liable, the buyer must show that he gave notice of the breach to the seller within a reasonable time after he knew, or ought to have known, of the breach.</p>

<p>A court which has already entered a judgment of nonsuit in favor of one of the defendants to a suit is without jurisdiction to enter a judgment on the day of adjournment of the trial, against such defendant whose attendance at the adjourned day had been secured by subpoena.</p>

<p>In computing the amount of inheritance tax due the State of New Jersey on the estate of a non-resident decedent, the tax imposed on New Jersey property is to bear the same ratio to the entire tax which the estate would have been subject to under the act if the non-resident decedent had been a resident of this state, as such property located in this state bears to the entire estate, wherever situated, and for the purpose of computing such ratio the term “entire estate” means net estate after deducting all debts, and “property located in this state” means such property after deducting all debts secured thereby.</p>

<p>On certiorari.</p>

<p>As used in section Ü of the act of May 22d, 1894 (amended by chapter 271, Pamph. L. 1915, p. 481), providing that the state board of medical examiners may revoke the license of a physician for “the practice of criminal abortion,” the word “practice” means to perform, and proof that a physician performed, on a single occasion, an act of criminal abortion will justify the revocation of his license, even though, at the time the proceeding- was instituted, the "iirosecution, trial or punishment” for the offence involved was barred by the statute of limitations respecting criminal proceedings. Gomp. Stat., p. 1870, § 152.</p>

<p>1. An educational institution organized under “An act to incorporate associations not for pecuniary profit” {Pamph. L. 1S9S, p. 422; Comp. Btat., p. 125) which in good faith purchased property for the sum of $50,000' that is later valued by the taxing authorities for taxation purposes at $09,150, “owns the. property” within the meaning of section 203, subdivision 4 of the Tax act (Revision of 1918, Pamph. L., p. 849), even though the entire purchase price was secured by the assumption of a first mortgage for $25,000 and the creation of a second mortgage for $25,000.</p> <p>2. The question being whether a school is “conducted for profit” (so as to defeat exemption) within the meaning of section 203, subdivision 4 of the Tax act (Revision of 1918, Pamph. L., p. 849), the test is not whether there is or may be a profit, but whether the school is conducted for the purpose of making a profit; that is to say, whether the charges for tuition and board are fixed with the intention of yielding a profit over and above the actual cost. In the case of a day school, unless the tuition charges are so fixed as to evince a purpose to make a profit over and above the cost of tuition, the school is exempt.</p> <p>3. An educational corporation organized under “An act to incorporate associations not for pecuniary profit” is not “conducted for profit” within the meaning of section 203, subdivision 4 of the Tax act (Revision of 1918, Pamph. L., p. 849), merely because it secured the entire purchase price of the school property by a purchase-money mortgage to the former owner, even though the property was not a “money maker” in the hands of the former owner, the sale and purchase having been made in good .faith.</p> <p>4. An educational institution organized under “An act to incorporate associations not for pecuniary profit” is not “conducted for profit” within the meaning of section 203, subdivision 4 of the Tax act (Revision of 1918, Pamph. L., p. S49), merely because its principal and teachers are paid moderate salaries.</p> <p>5. A three-story school building, owned by an educational institution, is “actually used” for school purposes, and for “no other purpose” within the meaning of section 203, subdivision 4 of the Tax act (Revision of 1918. Pamph. L„ p. 849), it appearing that all of the rooms on the first floor, twenty-six of the twenty-nine rooms on the second floor, and nine of the nineteen rooms on the third floor, were in actual use by the school, and that all were required for use in the near future; and the mere fact that some of tlie rooms were used as dormitories by teachers and caretakers of the school, who paid rent which was applied to the salaries of the teachers, does not deprive the school of its exemption under the act.</p>

<p>By force of (he act of March 24th, 1899, as amended by the act of 1912 (Bitpp. Ooinp. tí tat., pp. 659, GOO', §§ 166, 1G7), a janitress in the police department of the city of Trenton, upon her appointment in 191G, immediately became a member of the “police force” of the city; and the Police and Firemen Pension act of 1920 (Pamph. L., p. 324) conferred upon her the right to have her name placed upon the roll of members of the police department entitled to the benefit of the pension fund created by that act, and to have the amount of her contributions (o such fund fixed and deducted from her salary and paid into the fund, and this is so, even though she had not contributed to the pension fund created and existing prior to the act of 1920.</p>

<p>The relator, wlio. in 1892, was duly elected janitress in the “permanent force of the. paid system of the fire department of the city of Trenton," and has served as such ever since, is a member of the fire department of the eity of Trenton within the purview of the Police and Firemen Pension act of 1920 (Pamph. L.. j>. 324), and. upon the taking effect thereof in that eity, she became entitled to the benefit of that act, even though she claimed no benefit of any pension act prior to the enactment of the act of 1920. and had not been assessed for, and made no contribution to, any pension fund existing prior to the taking effect of that act.</p>

<p>1. A ferry company, being a common carrier of passengers, is bound to use a high degree of care to protect a passenger from harm; and where a passenger was hit and injured by the “hook end” of a rope (used to draw trucks off the boat) which the evidence tended to show flew off of the electric power “winch” by reason of the careless operation and insufficient manning- of the appliance, the question of the negligence of the ferry company was for the jury.</p> <p>2. The plaintiff, after paying the fare, drove a government mail motor truck to the usual place in the defendant’s ferry-house to wait for the boat, and, having dismounted to ascertain if the truck had been injured by being “bumped” by a team behind, was himself injured, whilst about to remount the truck, by being hit by the flying “hook end” of a rope through the negligence of the defendant’s servants. Held, that the mere fact that the plaintiff had dismounted from the truck did not justify a nonsuit or the direction of a verdict against him, since that act cannot be said as a matter of law to be negligent, and presented simply a condition which had no causal connection with the negligent operation of the appliance which caused his injury.</p>

<p>The general rule, is settled that amendment of the pleadings is a matter within the discretion of the court and not appealable; but that discretion is a judicial discretion to be exercised in accordance with the principle, that a party charged is entitled to a reasonable opportunity to make his answer and present his defence, and when the court at the trial permits by amendment the substitution of a different cause of action and refuses to allow defendant reasonable time to prepare a defence appropriate to the new complaint, or to file a counter-claim in reduction of the damages claimed thereunder, legal error is committed which will be rectified on review.</p>

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

<p>1. In a criminal case, where the personal presence of the defendant at the scene of the alleged crime is an essential of his guilt, and the defence of alibi is interposed, defendant is entitled to an acquittal if the testimony creates such a degree of uncertainty as to his whereabouts that the jury are not satisfied beyond a reasonable doubt of his guilt.</p> <p>2. Definition of a reasonable doubt as “á doubt arising on the evidence for which you as reasonable men can give a good and sufficient reason,” held erroneous.</p> <p>3. Under tlie circumstances of this case, it was error to instruct the j ury that for them to say: “Weil. I believe this man is guilty, but this lady’s story creates in my mind some doubt, and, therefore, I will give him the benefit of it and let him go,” would not be a doubt that would justify an acquittal.</p> <p>4. An erroneous instruction is not cured by the existence of correct instructions elsewhere in the charge, unless the illegal one is withdrawn.</p>

<p>1. A notice inviting' bids for the furnishing of a truck, to be used in the fire department of a city, specified a two-wheel, front-drive, aerial truck- of no less than one hundred horset power. A bidder proposed, to furnish a machine of an entirely different character as a substitute for that described in the notice to bidders at a lower price than- the bidders according to the specifications published. Held, that the city was not required to consider such proposal.</p> <p>2. The lowest bidder within a statute requiring a municipality to award a contract to the lowest bidder, must be a bidder who conforms to the requirements in' the notice to bidders, and not . one who proposes a substitute not conforming to the published specifications.</p> <p>3. Where the common council of a city inviting bids for the furnishing of such a truck reserves the right to determine which of different trucks offered is best for the city, that reservation is limited to proposals for a truck of the required character, and the legality of the reservation cannot be questioned by a bidder whose proposal does not comply with the notice to bidders, for he has no right to compel his bid to be accepted and has no interest in the determination of the question between other bidders whose proposals conform to the specifications. Whatever rights the latter may have does not concern it. for it was not a proper bidder.</p>

<p>1. An ordinance which provides that no permit shall be granted for the erection of any structure to be used for the sale, at retail 0r wholesale, of goods, which is intended to be erected within five lnmdi'ed feet, in any direction, along any street where three-fourths of the property is used, or intended for use, for residence purposes, until there be filed with municipal authorities, written consent to the intended use by those representing the owners of three-fourths of the property used, or intended for use, for resident purposes, within the limit specified, is invalid, because the municipality cannot lawfully delegate the power of regulation to a special body of contiguous landowners within a limited district, for that power, if it exists in the municipal body, is legislative and not administrative and cannot be delegated.</p> <p>2. Such an ordinance cannot be justified upon the ground that it is necessary for public safety, and its only effect is to deprive the owner of his property, or the use thereof, without compensation, nor can it be justified upon the ground that it falls within the police power.</p> <p>3. Where the power to regulate the erection of buildings is conferred upon the governing body, a subsidiary body does not, without express legislative authority, have power by ordinance to provide for such regulation, and such subsidiary body cannot, by ordinance, delegate the power of regulation to, or confer upon, any limited body of citizens the determination of the uniformity of the regulation.</p>

<p>On certiorari.</p>

<p>The defendant was convicted of murder of the first degree with a recommendation that the punishment be imprisonment for life, and thereupon caused a writ of error to be issued removing the record to an appellate court for review. The defendant then applied to the Court of Oyer and Terminer, in which he was convicted, to be admitted to bail during the appeal. The trial court refused this application and he obtained a writ of certiorari to review this action. Held, that as the charge against the defendant was a capital offence, it continued to be such until the final disposition of the cause on appeal, and that section 143 of the Criminal Procedure act requiring the court in which the judgment had been rendered to admit defendant to bail pending the prosecution of writ of error, is not available to the defendant because the act provides that this section “shall not apply to capital cases.” Query. Is certiorari the proper remedy in such case?</p>

<p>1. When a defendant files a plea of autrefois acquit the. state should take issue on the facts averred unless the plea is insufficient in law.</p> <p>2. When the state demurs to such a plea and the Quarter Sessions sustains the demurrer the judgment should be respondeat ouster, and in the absence of any judgment there is nothing tO' review either by writ of error or certiorari.</p> <p>3. If the proper judgment be entered against the defendant it is not revie.wable by certiorari, as a substitute for a writ of error, before final judgment, for defendant has a right to plead over, and if convicted by a final judgment, may raise the sufficiency of his plea on review by writ of error.</p>

<p>The policy of jitney insurance is one of indemnity under the statute (Pamph. L. 1910, p. 283) for the benefit of the traveling public, and whatever legal rights or equities may subsist as between the insured and the insurer, by reason of any violation of the terms of the policy, cannot affect the lights of the public who claim under its provisions after such claim has been substantiated by a judgment at law.</p>

<p>On certiorari.</p>

<p>Oil appeal from the Hudson Count}’ Court of Common Pleas.</p>

<p>On summary review of the judgment of tiie recorder of Passaic police court.</p>

<p>1. In the trial of an action for damages in a collision of two automobiles, where there was testimony tending to- show negligence by tlie defendant in operating Ms car, and it did not conclusively appear that the plaintiff was guilty of contributory negligence, the solution of the question was for the jury.</p> <p>2. In the trial of an action for damage in an automobile collision, at a street intersection, defendant testified that he looked to the light and saw the way was clear, and then looked to the left and saw plaintiff’s ear, a length away, running at full speed, and ihat he immediately applied the brakes to Ms own car. The trial judge, in his charge, said that dlefendant was guilty of contributory negligence because he did not look to the left. Held, erroneous, as the question of contributory negligence was, under tlie facts, clearly one for the jury to determine.</p>

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

<p>On defendants’ motion to strike out plaintiff’s complaint.</p>

<p>On writ of error to the Essex County Court of Oyer and Terminer.</p>

<p>An indictment when returned by a grand jury and presented by that body in open court, becomes a part of the record, and if the indictment be. mislaid or lost, its absence may be supplied by a copy.</p>

<p>1. The right to the natural flow and fall of water on land is not an easement; it is a natural right inseparably connected with and inherent in the land, so, the flow of a natural stream over land will not sustain an action for the breach of the covenant against encumbrances.</p> <p>2. The fact that the flow of the stream is covered over and concealed by an artificial brick structure does not change its legal aspect.</p> <p>3. The natural flow and fall of water on land is not a breach of the covenant against encumbrances. Unless an exception is made in a conveyance, under the statute Pamph. L. 1899. p. 531; 2 Comp. Stat., p. 1570. H 101, “waters, water courses, rights,” &c„ are included.</p>

<p>A statement by the treasurer of a corporation regarding an automobile accident made some days after the occurrence casually and not in the course of the business entrusted to the declarant is not admissible evidence against the corporation.</p>

<p>1. A person eanhot be charged and convicted of the crime of keeping- a disorderly house, except on the presentment or-indictment of a grand jury, as the crime is one indictable at common law and in such cases every person is protected from prosecution except in the manner aforesaid by article 1, section 9 of the constitution of this state.</p> <p>2. A conviction under a borough ordinance of the keeping of a disorderly house is invalid as an invasion of the constitutional rights guaranteed to every person under article 1, section 9 of the state constitution. •</p>

<p>1. The Court of Errors and Appeals cannot reverse á judgment of the Supreme Court -which is not alleged to be erroneous.</p> <p>2. A. was convicted of crime in the Essex Quarter Sessions and sued out ¡a writ of error from the Supreme Court into which tribunal he caused to be returned the entire record of the proceedings had upon his trial, under section 130 of the Criminal Procedure act, and in the Supreme Court filed executions and also specification of causes for reversal under section 137. The Supreme Court affirmed, and A. then brought the judgment of the Supreme Court into the Court of Errors and Appeals for review, not filing any assignment of error alleging the Supreme Court’s judgment to be erroneous, but re-assigning in the Court of Errors and Appeals the alleged errors of the trial court which resided in the record brought up from the Supreme Court. Held, that as plaintiff in error in the Court of Errors and Appeals filed no exception 'attacking as erroneous the judgment of the Supreme Court which he sought to review, there was nothing before the Court of Errors and Appeals to pass upon, its power to review and adjudge not being invoked, and, therefore, the present writ of error must be dismissed.</p>

<p>1. If in his charge to the jury the judge uses a word or a phrase the very opposite of which he intends, and his true intent and meaning are to be gleaned from the other parts of the charge, and if upon the whole charge the jury cannot reasonably be thought to have been misled, there is no error.</p> <p>2. In an assignment of error the ground must be specifically set forth, as the adversary party is entitled to know what the exception is upon which the plaintiff in error relies.</p> <p>3. There is no such thing in law as “dividing culpability” or “distributing guilt;” nor is there anything erroneous in the charge of a judge that may merely tend to preclude an acquittal unless judicial error supervenes.</p>

<p>1. Where one permits another who is not known to be his agent to contract as apparent principal, and afterwards intervenes, the innocent third party is entitled to be placed in the same situation at the time of the disclosure of the actual principal as if the agent had been the principal himself, and such third party is entitled to the same defence against the actual principal as he was at that time against the agent—the apparent principal.</p> <p>2. J. permitted C., who was not known to be her agent, to deposit as apparent principal, with defendant association, J.’s money for ■stock; C., who represented herself to be J., received the passbook and certificates made out to J., and she (C.) afterwards presented the pass-book to the defendant association, without J.’s knowledge, and obtained from it a portion of the money deposited by her in J.’s name; after discovering the fraud J. sued defendant association to recover the moneys thus withdrawn by 0. Held, that J.’s conduct in implicitly trusting C. and never dealing with the association herself—never even disclosing her identity to it—made her the one of two innocents who must suffer, because her lack of care and culpable negligence enabled 0. to occasion the loss.</p>

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

<p>1. A statement which admits facts destructive of the plaintiff’s claim, made by a person other than the plaintiff himself, after the alleged cause of action has arisen,-is not evidential against him, unless the party making it was his agent or representative ■authorized to bind him by such admission.</p> <p>2. Clauses contained in policies of insurance which provide that the policy shall be void, or the insurer relieved of liability on the happening of some event, or the doing of, or omission to do, some act by the insured, are not conditions precedent. Violations of such clauses are matters of defence, which must be pleaded and proved by the insurer.</p> <p>3. In, an action on an ’automobile policy the proof showed that the car was injured beyond repair, and the court thereupon directed the jury that if they found for the plaintiff, they should assess its damages at the full amount of the purchase price of the car, although it had been in use after the sale for three weeks prior to the accident. Held, that this was error, as the plaintiff had foiled to show that the value of the car had not depreciated between the time of its purchase and the time of the accident.</p>

<p>1. At common law, the verdict of a jury in a criminal case declaring tlie defendant guilty is not final. While the jurors compose the appropriate tribunal .for the determination of questions of fact, yet when they'found a verdict for the state, in a criminal case upon evidence which, viewed in any rational aspect, must leave reasonable doubt of the guilt of the accused, the latter could appeal to the trial count for a new trial.</p> <p>2. The act of April 12th, 1921 (Pamph. L., p. 951), which provides that in criminal cases, courts of appeal may review the question whether a verdict of guilty is against the weight of evidence, does not violate the constitutional provision that the right of trial by jury shall remain inviolate in criminal cases. The purpose of the act is to increase the protection of the accused; it does not vest in the state the power to submit to the appellate court the question of the validity of a verdict, but only gives the defendant the right to have it reviewed, at Ms option.</p> <p>3. The act of April 12th, 1921 (Pwmph. L„ p. 951), which provides for the review of a question of fact by the Court of Errors and Appeals in criminal cases, does not violate the constitutional provision that the judicial power shall be vested in such court “as heretofore,” as the act does not curtail, but rather enlarges, such power; and such enlargement is not prohibited by the provision.</p> <p>4. An attempt to commit rape does not begin with the act of penetration, but with the primary attack upon the woman, for the purpose of carrying out the intent; and this intent may be formed at the very moment of the attack.</p>

<p>1. The lien of a warehouseman for storage, charges on goods delivered to it for storage is paramount but not adverse to the rights of holders of warehouse receipts.</p> <p>2. If an adverse claimant gets possession of chattels stored in a warehouse, the warehouseman would be entitled to obtain possession of them again, by a proper possessory action, to enable it to make good its obligation on its negotiable receipts; such action would be, in furtherance of the bailment, and section 25 of the act concerning warehouse receipts (Comp. Btat., p. 5781) forbidding proceedings against such goods, while in its possession, applies only to actions adverse to the bailment.</p> <p>3. In a replevin suit brought by one warehouseman to recover possession of .goods from another warehouseman that had obtained possession of the goods, evidence that the party storing the goods with the plaintiff had paid the bill for storage without objection, was admissible to show that the lien was at an end and that the amount claimed by the, plaintiff was not excessive. t</p> <p>4. A warehouseman brought suit for conversion of certain goods against another warehouseman, whose lien for storage had been paid and negotiable receipts returned to it, so that they had no further interest in the goods, and it was their duty to return the goods to their bailor, and they could not recognize another person as having a paramount title over their immediate bailor.</p>

<p>At common law substantial damages were not recoverable in an action of ejectment. In order for a plaintiff to recover mesne profits and damages in an action, of ejectment under the practice in this stale, it is necessary that the plaintiff declare for them in his complaint by adding after the description of the lands “and also the sum of--dollars for mesne profits and damages,” and a failure to comply with this rule of irleading is fatal to a claim for damages.</p>

While engaged at work on a large cylinder press on the evening of December 4th, 1918, at about half-past eight, the paper which was passing through the cylinders broke, and, in attempting to stop, the press, his arm was. caught- in the flywheel and crushed.

<p>1. The carrier owes to a passenger the duty of exercising a high degree of care to protect him from injury by other passengers on its cars, if the danger is, or in the exercise of due care can be, known to the employes of the carrier and prevented by them, and if it fails in its duty in this respect it is liable for rhe resulting injury.</p> <p>2. Plaintiff, while a passenger on the same car of defendant’s train with a number of schoolboys returning from school and frolicking in the car, was struck in the eye and injured by a spitball or wad of paper thrown or snapped by one of them. There was evidence to show that this was a frequent practice on that train, and that it had come to the knowledge of the train crew, but that they had done little or nothing to stop it. Held, that it was for the jury to say whether the defendant had failed in its duty of care toward the plaintiff and that a nonsuit was improper.</p>

<p>The first section of the revision of the Evidence act of 1900 {Comp. 8tat., p. 2217) makes all persons competent as witnesses, though they have been convicted of crime, and without regard to the character of the crime, and permits prior conviction to be shown, nor to exclude the witness, blit to affect his credit with the jury.</p>

<p>1. Grounds of appeal alleging error “in refusing to charge as requested by defendant” and “in charging as specified by the exceptions taken to said charge” will not be considered.</p> <p>2. A licensee upon lands must use reasonable care not to injure other licensees upon the same premises.</p> <p>3. ' One licensed to dump garbage and ashes upon vacant property, and accustomed to burn refuse thereon, owes a duty to children also using the property with permission of the owner, to take care that they suffer no injury from fire kindled by him or his servants on the property.</p>

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

<p>1. A party contracting with another party to perform a work has the right to proceed free from the hindrance of the other party, and if the latter prevents the doing of the work to such an extent as to render the performance difficult, and largely diminish the profit, or increase the cost, the contractor may lawfully abandon the, performance.</p> <p>2. Where a contract imposes an obligation on one party to perform an act with no express obligation by the other, but it is the manifest intention of the parties to be inferred from the nature of the contract that the other perform a correlative duty, without which performance cannot be accomplished, such correlative, duty will bo implied and its willful or careless omission will justify the abandonment of the contract by the obligor.</p> <p>3. A vast number of reasons for reversal, most of them without legal merit, should not be filed, as they tend to confuse the real issue and do not aid the court but cast on it a useless burden.</p>

<p>1. A policy of. insurance for .a jitney bus which provided indemnity while the automobile might be operating in “Passaic, N. J.: Garfield, N. J.; Lodi, N. J., an.d vicinity,” covers an accident which happened at Newark, New Jersey.</p> <p>2. The jitney bus lost none of its characteristics as such, because it was not carrying passengers at the time it struck and injured a pedestrian; nor, while the policy of insurance was in force, could its legal effect as an indemnity to the traveling public be minimized by any act or default of the insured, so long as he was conducting the vehicle within the general scope of the purpose for which it was insured.</p>

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

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

<p>1. Operating a motor truck which obscures a vision along the public highway to such an extent as to prevent those driving or riding behind such vehicle from observing conditions which ought to be known to them, in order to reasonably insure their safety of life and limb, casts a duty upon the driver of such vehicle to use reasonable care that timely and ample warning be given of approaching danger to those whose view of the impending peril he obstructs.</p> <p>2. The mere fact that a vehicle is moving in close proximity to a moving vehicle ahead and keeping up with it does not constitute negligent conduct per se.</p> <p>3. A driver oil the highway, following another vehicle, has the right to assume that the driver of the vehicle in front will use reasonable care to observe the condition of the traffic ahead and will so operate and regulate the speed of his vehicle as not to endanger those who are driving in his rear and whose view up the road, and of the approach of vehicles, is shut off by such vehicle ahead.</p> <p>4. In order to successfully charge a plaintiff with having assumed the risk of danger he must either have knowledge of its existence, or could have obtained such knowledge by the exercise of reasonable care.</p>

<p>1. An authorization in writing- by an owner of real estate to a broker, to sell the same within thirty days, the owner does not thereby relinquish his right to sell the property himself, independent of the broker; in such a case, the owner is not liable to the broker for commissions.</p> <p>2. The authorization is not a contract, either express or implied. It is simply ’a naked revocable power, an offer to j)ay for services, when rendered, if performed before revocation.</p>

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

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

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

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

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

The cases arose from the same accident and were tried together. An automobile truck proceeding! in an easterly direction on Academy street, Newark, between High street and Comes alley, became out of control of the driver and ran over the sidewalk and against a porch upon which there were three little girls playing, lolling one of them and injuring the other two.

<p>On appeal from the Supreme Court, whose opinion is reported in 95 N. J. L. 43.</p>

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

8tat., p. 2182 et seq.), to appraise the value of lands situate within the township of Palisades and desired by the two boroughs of Dumont and Bergenfield for the purpose of a sewerage disposal plant. “The petition is professedly based upon, and solely upon, powers contained in the act of 1917, chapter 152 (Pam-pli.

The only defence is that the owner was not indebted to the extent of the notice, and if he was, then the directed verdict for plaintiff against both defendants is proper. The facts are that the builder contracted with the owner for the erection of the building; that the contract was filed; that the plaintiff made a contract September 18th, 1919, to furnish defendant certain material, amount not stated, at agreed prices, to be paid for on the first of each month.

13 in the Second Judicial Court of Hudson county. From that judgment the defendant appeals to this court. “The agreed state of the ease shows: 1.

The Passaic County Court of Common Pleas on a trial de novo affirmed an award for compensation made by the Workmen’s Compensation Bureau. The certiorari was issued to review a judgment based on that award. There are several reasons assigned for setting aside the award, 'but the view we take of the case renders it unnecessary to discuss but one, viz., we find no evidence of dependency in the record, within the rulings of our courts.

P. Morgan & Vo. that it was approved by that company and that the plaintiff? paid the money and took up the subscription for the defendant; that the price of the bonds depreciated and that the defendant, being called upon for a margin, ordered the bonds sold, which the plaintiffs did for his account at a loss of $620, to recover which this suit was brought; and the plaintiffs having the judgment the defendant has appealed.

The exceptions were reserved and an appeal from each judgment is now before us.