text:
    DENNIS LEARY, ADMINISTRATOR, &c., PLAINTIFF-RESPONDENT, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT-APPELLANT. MUNJEG K. BOYAJIAN ET AL., PLAINTIFFS-RESPONDENTS, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Argued June 7, 1923
    Decided November 7, 1923.
    „ Negligence — Motor Vehicle Collision at Grade Crossing — Conflict of Testimony — Admission of Evidence Relating to Purpose, Earnings and Character of Injured Considered.
    On rules to show cause.
    Before Justices Kalisch and Katzenbach.
    For the rule, Bourgeois & Coulomb.

    For the respondents, Cole & Cole.

    Contra, Clarence L. Cole.

   Per Curiam.

The above cases arose out of the same accident and were tried together at the Atlantic Circuit. In both cases verdicts were rendered for the plaintiffs. Rules to show cause were allowed in both cases at the instance of the defendant. Under these rules the cases are before us.

On October 30th, 1921, a party of jTung people, six in number, were riding in a Ford automobile. The highway upon which the car was being operated crossed the tracks of the West Jersey and Seashore Railroad Company at a crossing known as the New Road crossing in Pleasantville, in Atlantic county. At this crossing the automobile of the plaintiff was struck by an electric train of the defendant which had left Atlantic City at eleven p. m. for Camden. The -accident happened about eleven-fifteen p. m. Lester Eaton was driving the ear. To his right sat Ethel Duncan. George Boyajian, Paul Leary, Betty Smallwood and Edith. Wagner occupied the rear of the automobile. There was an electric bell at the crossing. Beyond the crossing in the middle of New Eoad an electric street light was suspended. A good view of the tracks towards Atlantic City could be obtained from the side of the railroad upon which the automobile was as it was approaching the crossing. It was necessary for the automobile to ascend a grade to reach the track. Paul Leary was killed. On of the suits is by his administrator to recover damages for his death. George Boyajian, an infant, was injured. He has, through his father, sued to recover for his injuries. His father also sued for the losses which he had sustained through the accident. George Boyajian obtained a verdict of $1,000. His father obtained a verdict of $1,500. The administrator of Leary obtained a verdict of $7,500.

The defendant asks that these verdicts be .set aside because they are contrary to the weight of the evidence. The evidence was conflicting. There was evidence that the crossing bell was ringing. There was evidence that it was not ringing. There was evidence that the whistle and bell upon’ the train were blown and rung as the train approached the crossing, as required by the statute. There was evidence that the whistle was not blown and the bell was not rung, as required by the statute. If the jury had found in favor of the defendant we would not have disturbed the verdicts. We are, however, of the opinion that the evidence is not preponderating in favor of the defendant that we are warranted in setting aside the verdicts. If a verdict is set aside as being against the weight of the evidence, it must be so clearly against the weight of the evidence as to give rise to the inference that some other motive than a calm and deliberate consideration of the evidence has influenced the jury in arriving-at the verdict.

In the Leary case there was admitted evidence which we think improper, and which, without doubt, resulted in larger verdict than if the evidence had been excluded. Mrs. Leary, the mother of Paul Leary, the deceased, was permitted to testify what the deceased had told her he intended to do with his earnings after he' had become of age. Over objection Mrs. Leary testified: “lie asked us to start and build a home, and he gave me his oath that never would he leave his home while there was a dollar owing on that'home.”

The deceased was eighteen years and six months of .age when he met his death. He was attending the high school and during vacations carried on the-trade of a painter. His wages were $35 per week. After deductions for clothes and spending money the- balance was turned over to his mother. His parents had commenced the building of a home, and it was with reference to this that Mrs. Leary was permitted to testify as she did. It is, of course, permissible for a parent to testify what the qualities of a deceased child were, whether industrious, generous, strong, healthy, &c. These qualities would be known (perhaps not to the degree which a parent would know them) by members of the eommimity in which the deceased -lived. If the parent testified untruthfully the evidence given could be refuted by others who knew the deceased. This evidence Speaks of past transactions and incidents. Where a statement is permitted to be given as to what the deceased said as to his future conduct ox attitude it is in a sense hearsay, and is the mere expression of an opinion as to what the declarant proposed to do in the future. The deceased was under no. legal obligation and could make no contract by which his earnings would go towards the payment of the home. Many things could happen, as illness or marriage, which would make it impossible for the good intention which the deceased probably had to be carried out. We think that the verdict is high when only the pecuniary loss can be considered, and that the evidence referred to was a producing cause of its-size.' It will be reduced to $5,000, and if this reduction be consented to within ten days from the filing of this opinion by the plaintiff, the rule will be discharged, otherwise it will be made absolute. In the Boyajian case the rule is discharged.

We have examined the other questions raised and briefed by the defendant, but see in them nothing which prompts us to make other dispositions of the cases than that above made.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WELLS H. HURLBUTT, PLAINTIFF-APPELLEE, v. MAUSOLEUM COMPANY OF AMERICA INCORPORATED, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Decided November 7, 1923.
    Contracts — Employment—Evidence Relating to Alleged Written Contract Which Defendant Failed to Produce — Copy Made by Plaintiff Admitted.
    On appeal from the Second District Court of Jersey City.
    Before Justices Kalisch and Katzenbach.
    For the plaintiff-appellee, William F. Burke (Q-. Frank Shanley and John H. SheridoM\ of counsel).
    For the defendant-appellant, Nicholas S. Schloeder.

   Per Curiam.

This is an appeal from a judgment of the Second District Court of Jersey City. The plaintiff claimed to have been employed by the defendant company to sell on commission crypts in a mausoleum to be erected by the defendant.

The first ground of appeal argued relates to the admission of a copy of an agreement which the plaintiff contended was the contract of hiring made between the defendant and himself. The plaintiff testified that in the latter part of October. 1921, he called at the office of the defendant company and applied for employment as a salesman. He talked with Mr. Garner, the general manager and vice president, who outlined his duties and handed him a form of agreement containing the terms of employment. The plaintiff took the form home and made a copy of it. Later he saw Mr. Garner, who told him if the terms were satisfactory he would be employed upon signing the agreement, which the plaintiff then signed. The defendant was given notice to produce the agreement at the trial. The defendant did not produce the agreement or account for its non-production. It denied the existence of the agreement. The plaintiff offered the copy he had made which the defendant objected to on the ground that it was not the best evidence of the agreement. The court admitted in evidence the copy. The appellant contends that because the existence of the agreement was denied, and there was no corroboration of the plaintiff’s testimony with reference to the existence of the agreement, it was error to admit secondary evidence of the contents of the agreement. This argument seems to us unsound. There was evidence which justified the finding made, by the District Court that the plaintiff entered into the written agreement with the defendant. The plaintiff had testified with reference to the making of the agreement and the defendant did not call Mr. Garner to refute his testimony, 'this was evidence of the existence of the agreement. Where an original document is in possession or control of the adverse party and is not produced upon notice, secondary evidence is admissible. Durbrow v. Hackensack Meadows Co., 77 N. J. L. 89.

The second ground of appeal is the refusal of the court to allow a Mr. Hansberrj1, assistant general manager of the defendant company, to testify as to the terms of the plaintiff’s agreement. This was the proper ruling as terms of the plaintiff’s employment were embodied in the contract and could not be altered by the statement of Mr. Hansberrj'.

The third ground of appeal is the rejection by the trial court of the testimony of a. Mr. Scholeder, who was the secretary of the defendant company, and testified that at no time was any contract signed by the plaintiff in the possession of the company or in its files. ■ He further offered to give testimony that at no time did the plaintiff receive commissions under the terms of the contract in evidence. The state of the case states that this testimony was objeeed to because it tended to alter the terms of a written instrument. That part of the testimony of Mr. Sehloeder to the effect that at no time did the plaintiff receive commissions under the terms of the contract in evidence was properly rejected, as it altered the terms of a written agreement. Mr. Sehloeder should have been -permitted to testify that there was no contract signed by the plaintiff in the possession of the company or in its files, in view of the fact that the defendant disputed the existence of the contract. As Mr. Schloeder’s statement on this subject was received and the court after consideration found as a fact that the contract did exist, we think the error harmless to the defendant.

The next ground of appeal argued is that the trial court misconstrued the effect of a receipt given by the plaintiff. The plaintiff had executed a receipt containing these words: “Being the monies in full now due me as commissions as per foregoing statement, which is hereby accepted by me as correct,” as nothing more than .a receipt for the amount paid at that time. There was evidence that this receipt applied only to commissions upon which thirty-five per cent, of the purchase price had been received and not to all commissions to which the plaintiff might be entitled. Whether the receipt did or not was a question of fact. This fact was determined in favor of the plaintiff’s contention. There being evidence to support this contention the finding will not be disturbed.

The appellant also contends that this receipt in full constituted an accord and satisfaction. The finding by the trial court that the receipt only applied to one class of commissions precludes the receipt amounting to an accord and satisfaction. Moreover, the necessary elements to constitute an accord and satisfaction, namely, a substantial dispute between the parties, an offer by the debtor of a less amount, the acceptance by the creditor of the lesser amount with the intention that it shall operate as a satisfaction, are lacking-in the present case. Decker v. Smith Co., 88 N. J. L. 630.

The judgment is affirmed.


text:
    JOHN EGGERT, PLAINTIFF-RESPONDENT, v. HYMAN BINDER, DEFENDANT-APPELLANT.
    Decided November 8, 1923.
    Negligence — Motor Vehicle Accident — Injury to Pedestrian — . Objections to Admission of Evidence.
    On appeal from the Hudson Circuit Court.
    Before Justices Trenchard and Parker.
    For the appellant, Mark Townsend, Jr.

    For the respondent, Clarence Kelsey.

   Per Curiam.

This action was brought to recover damages for personal injuries which the plaintiff suffered by being struck by defendant’s automobile while crossing a street in Jersey City. There was a rule to show cause allowed by the judge of the Circuit Court, the result of which was a reduction of the verdict, which the plaintiff accepted and the case is now here on appeal on exceptions reserved.

The first ground is that a witness for the plaintiff was asked on cross-examination about a certain conversation between the witness and the defendant, and after reciting a part of it was turned over to the plaintiff, who asked him to state anything further that was said. The witness replied that the defendant told him that the insurance company was willing to settle with .the man he had injured for $1,500 and that he would not accept it and was suing for $3,000. The question was not objected to, but the answer was a surprise to both counsel. The defendant moved to strike out the answer, which the court refused to do, which is a ground of exception; but the record shows that the motion was renewed near the close of the case and the court struck it out on the motion of the defendant, and expressly charged the jury not to pay any attention to it. Hence, this matter presents no reason for reversal.

The next objection made is that the trial court refused to strike out the testimony of two physicians who had examined the plaintiff just before the trial for the purpose of testifying. The ground of the objection is that they relied on the history of plaintiff’s condition as given by him. But the motion was subsequently renewed by the defendant and the court said: “I will strike out as much of his testimony as is based on what Avas told him. What he testified that he saw himself may stand.” If the objection Avas good on any ground it was cured by what the court said, and in charging the jury told them: “In considering the evidence of the physicians who have, testified as experts in this case, and who have not treated him as physicians, you should only consider such evidence as to the condition of this plaintiff’s backbone as is based upon Avhat they discovered from the personal examination of the plaintiff or from the examination of the X-ray photographs which have been offered before you in evidence; not upon anything that had been told about the condition of the plaintiff’s backbone.”

The argument of the appellant that “personal investigation” included hearsay testimony has no merit. The next point is that the court refused the defendant’s offer to show the X-ray plates taken by a witness of other persons.

This was properly overruled because the plates had nothing to do with the case on trial.

The next point made is that the court refused to charge a request which amounted to a summing up of the case and contained so much immaterial matter that the court was not bound to charge it.

The next point was that the court refused to charge the fifth request. This request is open to the same objection and was not a request to charge a rule of law. The same objection applies to all the requests which were refused. We think that so far as they were appropriate they were charged in effect. The judgment will be affirmed, with costs.


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    JOSEPH BECKER, RELATOR, v. HUGH McGUIRE, INSPECTOR OF BUILDINGS, &c., ET AL., RESPONDENTS.
    Argued November 7, 1923
    Decided November 8, 1923.
    Mandamus — Building Permit Requested — Writ Ordered.
    On rule to show cause why writ of mandamus should not issue.
    Before Justices Trenchard and Parker.
    For the rule, Whiting & Moore.

   Per Curiam.

The inspector of buildings of Belleville, in Essex county, refused to relator a building permit, and he applies for a mundamus to require the issue of such permit.

The facts are before us on written, stipulation, and we can deduce thereupon no cause whatever for refusing the permit. All the conditions precedent appear to have been complied with, and on the face of the ordinance and the facts stipulated, it is the duty of the inspector to issue the permit, and indeed the language of the ordinance is mandatory in that regard.

A peremptory writ should issue pursuant to the rule.


text:
    HENRY G. OPDYCKE, PLAINTIFF, v. THE CALCO CHEMICAL COMPANY, DEFENDANT.
    Argued June term, 1923
    Decided November 8, 1923.
    Agency — Contract of — Scope of Employment.
    On rale to show cause from the Somerset Circuit.
    For the plaintiff, Edward P. Johnson.

    For the defendant, Clarence E. Case.

    Before Gummere, Chief Justice, and Justices Minturn and Black.
   Per Curiam.

The suit was for commission as agent for the sale of aniline oil. The verdict was for the plaintiff, but concededly for more than was claimed. The defendant does not deny ■that Mr. Opdycke was employed as a sales agent. Nor does it dispute the rate of commission, nor does it dispute the fact that Mr. Opdycke did give to the purchaser the price of seventy cents in pursuance of specific directions from the defendant. It says that Mr. Opdycke was only employed to secure what it terms “war orders,” and had no authority to procure the sale in question. That is the real issue in the case and the dominant question which the jury was called upon to decide. This question manifestly resulted in an issue of fact for the jury to determine and was properly left to them. We cannot say that the verdict was contrary to the weight of the testimony, or that the charge of the court was in any respect erroneous.

The rule will be discharged, except so far as the excessive amount of the verdict is concerned, viz., $1,191.36; to that extent it will be reduced.


text:
    EMIL W. SIEFKEN ET UX., v. CHARLES SOMMERS AND ALVINA BECKMAN.
    Decided November 8, 1923.
    Ejectment — Defendants Claim Contract of Sale and CounterClaim for Damages for Breach Thereof.
    On rule to show cause from the Hudson Circuit.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the rule, Lazarus, Brenner & Vickers.

      Contra, Wall, Haight, Carey & Hartpence.

   Per Curiam.

This is an action in ejectment to recover possession of premises No. 275 Avenue B, in Bayonne, New Jersey, and for mesne profits and damages. There was no dispute as to the possession of defendants, and no defense was put in. Defendants claimed the right to retain possession by virtue of an alleged contract of sale, which they contended plaintiffs had failed to perform, and counter-claimed for damages because of the alleged breach. The lease, which contained an option to purchase, was made by Emil W. Siefken only. The premises were owned by Emil W. Siefken and Emma S. Siefken, his wife, thus creating an estate by the entirety.

The trial court directed a verdict for possession, and this left only the question of damages for which the jury found a verdict of only six cents, which may have been suggested by a misapprehension of the language of the court in that particular.

There was substantial testimony as to the value of the premises given by the plaintiff, and others, and the lease itself presented some evidence upon the subject, while the defense offered no evidence upon the question. That situation left the plaintiff’s affirmative proof unquestioned, and the jury should have so regarded it.

The verdict being against the weight of the evidence the rule is madé absolute.


text:
    ALICE M. STILLWELL, ADMINISTRATRIX, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Argued June term, 1923
    Decided November 8, 1923.
    Negligence — Trolley Car Collision With Milk Wagon — Witness Confronted With Written Statement at Variance With His Testimony.
    On rule to show cause.
    For the plaintiff, Alexander Simpson.

    For the defendant, Leonard J. Tynan.

    Before Gummere, Chief Justice, and Justices Minturn and Blacic.
   Per Curiam.

The plaintiff’s decedent was killed in a -collision between a trolley car of the defendant company and a milk wagon belonging to the Keystone Dairy Company, in whose employ he was. The milk wagon was being driven by one Crist, who was an inspector of the dairy company, and was taking the decedent over a milk route, which the latter was expected to operate. The trial resulted in a verdict in favor of the plaintiff, the award being $15,000.

The first reason for making the rule absolute relates to the conduct of the trial court during the examination of one Frost, the motorman of the trolley ear. After having testified with relation to the accident, the witness was confronted with a written statement, signed hy him, which varied considerably in certain details from his testimony, and he was examined upon that point. On re-examination he was asked the following question by counsel: “Mr. Frost, the facts as you related them the day before yesterday with respect to how this accident happened, are-they the true facts? A. Yes, sir.” Counsel for plaintiff then said, “Wait a minute, I want to get an objection in on this.” The objection having been stated, the court said, “I sustain the objection.” Thereupon an exception was taken to the ruling. We are inclined to think that this objection comes within the decision of the Court of Errors and Appeals in No. 79 of the June term, Rubin v. Trowbridge Sign Co., where we held that an objection to testimony after it is in comes too late and that the action of the court is nugatory, unless there is a motion to strike it out. We think in any event that the exclusion was proper, for it merely asked the witness to reiterate his testimony already given on the witness-stand.

The next point is that the court erroneously charged the jury upon the question of the contributory negligence of the decedent, by saying that, if there was no relationship between the decedent and the driver- of the milk wagon which would impute the negligence of the latter to him, the question of contributory negligence did not enter into the case. We are inclined to think this instruction proper. Contributory negligence is a defense and, although it is true that a passenger on a vehicle is charged with the duty of using reasonable care for his own safety, there is nothing in the proofs that show that the decedent did not exercise due care in anything that he did or in anything that he omitted to do, which a reason- • ably prudent man would not have done or would have omitted to do under the circumstances.

In Clark v. Public Service Railway Co., 83 N. J. L. 319, Mr. Justice Garrison declared: “The plaintiff’s contributory negligence was theoretically a question for the jury; but, as she was seated on the rear seat of the automobile and there is no testimony as to any situation or circumstances bearing upon her negligence, the failure to leave the question to the ■jury should not disturb the verdict.”

The other grounds for making the rule absolute are directed to the instructions to the jury on the ground of negligence, which left out any reference to negligence on the part of the decedent himslf, which we have already dealt with under the preceding objection.

It is contended that the case was improperly left to the jury upon the question whether the decedent or Crist was driving the milk wagon. The case, however, was tried upon the theory that Crist was the driver, and although the complaint alleges the decedent was driving at the time of the accident, the uncontradicted testimony was to the contrary, and there was no claim of surprise or injury by the defendant as a result of the course pursued.

The last point is directed to the instruction to the jury upon the question of the care required to be used by the motorman. The instruction is as follows: “The law requires that ordinary care be used in connection with the control that is exercised in the operation of the car, so that the car’s progress may be slowed or entirely halted, if prudence requires that to be done, in behalf of the safety of those who are on its track or in its path.” This instruction we think was erroneous. It overlooks the doctrine laid down by the Court of Errors and Appeals in Geyer v. Public Service Railway Co., decided at the last March term, where he said: “The true rule is that it is the duty of the motorman, in approaching a street intersection, to have his. car so far under control that he will not endanger the safety of a vehicle, driven with reasonable care, which may happen to cross the tracks in front of the trolley car.”

This accident occurred at the intersection of two streets, known as Bridle way and Abbott boulevard. The trolley car was going along the boulevard, and the wagon came out of Bridle way. The charge of the court imposed upon the motorman the absolute responsibility of so controlling his car as not to endanger the persons on the milk wagon, although they may have recklessly driven across in front of the ear, and in that manner precipitated the collision. No exception was taken to this instruction, but, as was pointed out in the Clark case (83 N. J. L. 319), that fact is no bar to the setting aside of a verdict, on a rule to show cause, where the rule of law has been erroneously charged to the jury, to the manifest injury of the defendant.

The rule will be made absolute.


text:
    HENRY B. HARDENBURG ET AL., PARTNERS, &c., v. INTERNATIONAL SAFETY RAZOR CORPORATION.
    Decided November 9, 1923.
    Contract Sale of Goods — Modification by Parole Claimed — Evidence Not Held to Sustain Contention.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the rule, Wilbur A. Heisley.

      Contra, Walter J. Bilder.

   Per Curiam.

The defendant is a manufacturer of safety razors. It was about to put upon the market — or had begun to market — a razor known as .the “Mirak” and another known as the “By-ford.” These razors the defendant proposed to sell in cases, and in order to do this it entered into, a written contract with the plaintiffs, under date of September 11th, 1920, by the terms of which the latter agreed to manufacture and deliver to the defendant fifty thousand cases for the “Miraks” and fifteen thousand cases for the “Byfords.” The price to be paid by the defendant for these cases was twelve cents each, making a total of $7,800, and deliveries were to begin within three weeks from the date of the contract at the rate of one thousand “Mirak” cases and three hundred “Byford” cases per day. The cases were all delivered not later than the 23d of December, 1920. The total amount of the contract price for the “Miraks” has been paid, but nearly seven-eighths of the contract price for the “Byford” cases remains unpaid, the actual amount being $1,553.04. The present suit was brought to recover this unpaid amount. The trial resulted in a verdict for the plaintiffs for the full amount of their claim.

The defendant seeks to have the verdict against it set aside upon the ground that, after the contract was entered into, it discovered that there was no demand for “Byfords,” and that, having communicated this fact to the plaintiffs' manager, it was agreed that the original contract should be so modified that the defendant should not be obligated to pay for the “Byford” cases until they were actually sold by it. The only witness offered to prove this alleged modification was the vice president of the defendant corporation, who testified that it was made by him as the representative of the defendant, and by the manager of the plaintiffs as their representative. The manager of the plaintiffs absolutely denied having agreed to any such modification of the contract, and the jury solved that factor of the case in favor of the plaintiffs. We cannot say that their finding on this point was not fully justified by the evidence. The uncontradicted proof was that the manufacture by the plaintiffs of all of the “Byford” cases was completed by the 1st of November, 1920. The alleged modification of the original contract was not entered into, according to the testimony of defendant's vice president, until the 1st of December. The jury, in determining the credit to be given to each of these witnesses, was naturally influenced bjr the fact that the modification of the contract which the defendant claimed had been made would have left the plaintiffs with a manufactured article on their hands for which, quite probably, there would be no sale, in case the defendant, for any reason, saw fit to discontinue the manufacture of the “Byford” razor.

It is further argued as a reason for making this rule absolute that, after making the last shipment of the “Byford” eases later in December, the plaintiffs wrote a letter, under date of December 23d, 1920, to the defendant, in which they stated that settlement for the bills which accompanied the shipment “can be made at your discretion, but we presume same will be done within or by the month of March. Hoping this is satisfactorj1, we are,” &c. It is argued that this letter is a confirmation of the alleged prior oral'agreement which has just been referred to, and also that it relieves the defendant of any obligation to pay until it should see fit to do so. As we read it, the letter has no tendency to support the testimony of the defendant company’s vice president with relation to the making of the modified oral agreement, in view of the fact that it was preceded by the shipment of the whole amount of the “Byford” cases provided for in the original written contract. Nor can .we agree that the letter has'the broad construction claimed for it by defendant’s counsel. According to his argument, the defendant might, notwithstanding the fact that it had disposed of all of the “Byford” cases, refuse to pay until it should elect to do so. In other words, it might postpone payment of ten weeks or ten months or ten j^ears. As we read the letter, its only effect was to give the defendant a reasonable time after the delivery of the shipment within which to pay the contract price, that reasonable time being, in the opinion of the plaintiffs, the end of the following March. Assuming that the defendant was entitled to a longer period within which to pay than the letter suggests, we note that the present action was not brought until nearly a year after the end of March, 1921, and it is hardly necessary to say that the reasonable time provided by the letter had long since expired before the institution of the suit.

The view that we have taken of the matters which we have discussed render the other grounds upon which we asked to make the rule absolute so immaterial as not to justify dis-mission.

The rule to show cause'will be discharged.


text:
    MORRIS & CUMMINGS DREDGING COMPANY v. HIRAM W. PHILLIPS.
    Decided November 9, 1923.
    Contracts — Dredging—Breach Alleged — Findings of Referee Objected to by Both Sides.
    On rules to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiff, McDermott, Enright & Carpenter.
    For the defendant, Griggs & Harding.

   Per Curiam.

This action was brought to recover damages for the alleged breach by the.defendant of a written contract, by the terms of which the plaintiff was obligated to do certain dredging and other work in the construction of one of the sections of the Passaic Valley sewer for a price specified in the contract. The defendant denied the breach and counter-claimed for damages alleged to have been suffered by him by reason of negligent and improper work done by the plaintiff under the contract. The case was heard before a referee, and both parties are dissatisfied with the findings set out in the report filed by him; the plaintiff with his findings on the issue presented by the complaint and the defendant with his findings on the counter-claim. In this situation the plaintiff and the defendant each applied for and obtained a rule to show cause why such of the findings as the respective parties claimed to be contrary to the evidence submitted to the referee should not be set aside.

Our consideration of the proofs sent 'up with these rules and of the arguments submitted on behalf of the respective parties, leads us to the conclusion that both of these rules to show cause should be made absolute; and we are confirmed in this view by the fact that both sides are dissatisfied with the findings as a whole.

It will be so ordered.


text:
    MARY McKAY AND SAMUEL McKAY, HER HUSBAND, v. HENRY H. PARMELEE, RECEIVER.
    Decided November 8, 1923.
    Negligence — Motor Vehicle, Trolley Collision — Evidence That Trolley Disregarded Signals, &ct — Excessive Damages.
    On rule to show canse from the Passaic Circuit.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiff. Ward & McGinnis.

    For the defendant, William B. Gourley.

   Per Curiam.

The allegation of the complaint, substantially supported by the proof, was that on December 16th, 1919, the plaintiff Mary McKay was riding as a passenger on an automobile truck by the invitation of the driver. The automobile was being driven in a westerly direction over Bergen avenue, in the village of Fairlawn, in Bergen county, and while attempting to cross over the tracks of the defendant company it was struck. The negligence charged in the complaint was high and excessive speed, negligence in failing to check the speed of the car and failure to give the proper signals of its approach and failure to maintain effective brakes.

The plaintiffs were invited to ride in a butcher’s delivery automobile. Mr. McKay was sitting on the right of the driver and Mrs. McKay was sitting on his lap. They looked and listened for the approach of a trolley. The trolley came along at a full rate of speed from their left and was traveling north. No signal by bell or whistle or gong was sounded by the motorman, and the trolley hit the front part of the truck and swung it around to the right, and then proceeded over a distance of two hundred to two hundred and fifty feet before it came to a stop. Mrs. McKay was pinned underneath the cab and helped to her home. She sustained a fracture of five ribs, a dislocated shoulder and many lacerations. Before the accident she had been earning on an average of $23 a week, doing all sorts of heavy work; but at the time of the trial, three and a quarter years after the accident, she was still unable to do1 any kind of work. Mrs. McKay was given a verdict of $1,000 and Mr. McKay $1,500. We think the contradiction of these alleged facts produced an issue for the jury to determine, and we cannot say that their verdict was against the weight of the evidence. Whether these plaintiffs in their situation as invitees exercised due care presented a question of fact and not a court question. •

We think the charge of the trial court was a correct presentation of the law. We think, however, the verdict in the case of the husband 'cannot be supported by the evidence, and is excessive to the extent of $700. If the plaintiff will accept the reduced verdict, to wit, $800, this rule will be discharged; otherwise it shall be made absolute, and a venire de novo may issue, the trial to be limited to the question of damages suffered by the husband.


text:
    BURRIS T. TOMLIN, RELATOR, v. GLASSBORO BOARD OF EDUCATION, RESPONDENT.
    Decided November 8, 1923.
    Mandamus’ — School Teachers Dismissed — Commissioner of Education Order of Reinstatement Not Appealed, but Teacher Not Reinstated — Defendant Claims Right to Deduct Amount Earned in a New Employment.
    On rule to show cause why writ of mandamus should not issue.

      Before Justices Trenchard and Parker.
    For the relator, Francis J. Smith.

    For the respondent, John Boyd Avis.

   Per Curiam.

This is a rule to show cause why a writ of mandamus should not issue compelling the respondent to pay the relator his salary as a school teacher. The relator was employed by the respondent in the-year 1918 as a teacher in one of the public schools of the respondent and served until September 27th, 1922. The respondent attempted to dismiss him and paid him up to October 6th, 1922. The relator appealed to the state commissioner of education from this action, who determined that the relator be reinstated in his position as teacher, and his salary paid from the date of his dismissal, October 6th, 1922, until the.expiration of his contract or as long as the printing course was legally in existence in the Glassboro public schools. This order of the commissioner was never appealed from, but the hoard refused to reinstate him or to pay his salary, and thereupon this rule was allowed.

The record shows that on February 21st, 1923, the board of education by resolution discontinued the printing course, and for that reason dismissed the relator. What he now claims is that he is entitled under the order of the commissioner of education to be paid his salary from October 6th, 1922, until the expiration of his contract. It also shows that between the two periods the relator obtained employment elsewhere for which he was paid compensation, and the respondents admitting that they are required to obe3r the order of the commissioner of education, insist that they should be credited with whatever the relator earned during that period, which the record shows was more than his salary as school teacher, and therefore if the respondents are right in their contention that they are entitled to that credit there would not be anything due the relator. We do not think that the order of the commissioner of education can be set aside in the way the respondent proposes, or that it is entitled to a credit for anything the relator earned by working nights in a Philadelphia newspaper office, for it is not consistent with the un reversed order of the commissioner of education, which stands until reversed. Board of Education v. Decker, 87 N. J. L. 431 (433). Under the order of the commissioner, relator is entitled to be paid his salary until the expiration of his contract, or so long as such printing course is legally in existence in the Glassboro public schools. The record shows that the printing course was legally in existence in the respondent’s public schools until February 21st, 1923. By his contract he was to be paid in ten monthly installments at the rate of $150 per month. The counsel have stipulated that the relator was paid what was due to the 6th day of October, 1922, and, in addition thereto, one-fourth of what would be due on account of the next month’s installment, which paid the relator until the 14th day of October, 1922, leaving due for salary under the commissioner’s order, four months and seven days, amounting to $635, for which the relator is entitled to a peremptory writ of mandamus, if the calculation made by the court is disputed by either party an application may be made to the court to have it corrected. A peremptory writ of mandamus will issue commanding the respondent to pay to the relator $635 as the balance due on his salary, and also the costs of this proceeding.


author: Katzenbach, J.

text:
    RUSH D. SIMMONS, PLAINTIFF-RESPONDENT, v. PENNSYLVANIA RAILROAD COMPANY, DEFENDANT-PROSECUTOR.
    Submitted June term, 1923
    Decided November 7, 1923.
    Negligence — Injury to Passenger as the Result of Collision— Measure of Damages.
    On rule to show cause.
    Before Justice Katzenbach.
    For the plaintiff-respondent, James Mercer Davis.

    For the defendant-prosecutor, Bourgeois & Coulomb.

   The opinion of the court was delivered by

Katzenbach, J.

This case is before this court on a defendant’s rule to show cause. The plaintiff, on October 28th, 1921, was in the top berth of a Pullman sleeping car on a train of the Pennsylvania Railroad Company, at Manhattan transfer. A collision occurred between the train on which the plaintiff was riding and another train operated by the Pennsylvania Railroad Company, which caused Mr. Simmons to be thrown from his birth. He received in the fall an impacted fracture of the fourth and fifth dorsal vertebrae. He also sustained severe nervous shock. A trained nurse upon the train rendered first aid and the plaintiff was sent to Washington, D. C., his residence, accompanied by the nurse. On the day following the accident he was examined. X-ray photographs revealed the injury to the spine. He was then taken to the Emergency hospital in Washington. His body, from the shoulders down to and including the pelvis, was placed in a cast.' He was at the hospital for five weeks and then was taken to his home. In seven weeks after it was put on, the cast was removed. At the end of ten weeks the plaintiff was permitted to go to his office for a few minutes. The accident resulted in extreme nervousness, irritability, the stiffening of the back, and an inability to use the arm for writing. The injury caused an increased beating óf the heart. The plaintiff’s blood pressure was also abnormal.

At the trial of the case the defendant admitted liability and the sole question submitted to the jury was the amount of damages. The jury returned a verdict of $10,950. The expenditures of the plaintiff had been $950.

The defendant contends in the first place that the damages are excessive. Mr. Simmons, the plaintiff, was a man of fift3r-eight years of age. He was chief post-office inspector in the postmaster general’s office, a position of responsibility. He had previously enjoyed the best of health. The verdict, representing as it does the pain and suffering of the past and of the future and the damages due to the improbability of complete recovery, does not seem excessive.

The second ground of appeal is that the court erred in charging the jury that it could award damages for the future loss of the plaintiff’s earning powers. The objection to this portion of the charge is not that it did not state the law correctly, but that Mr. Simmons had so far recovered that there was no future loss of earning power. The evidence does not sustain this contention. The seriousness of the injuries sustained, and the fact that the plaintiff was at the time of the trial still suffering from the results of the injury, makes it probable that there will be in ‘the future a loss of earning power. The rule to show cause is • discharged.


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    ELIZABETH CAULFIELD, PROSECUTOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY, AND JAMES A. RADIGAN, COLLECTOR OF TAXES FOR THE CITY OF JERSEY CITY, DEFENDANTS.
    Submitted July 5, 1923
    Decided November 15, 1923.
    Sale of Land for Taxes — 'Martin Act — Accumulation of Taxes for Many Years — Status of 1920 Sale.
    On certiorari, &c.
    Before Justices Trenchard and Parker.
    For the prosecutor, Clarence Kelsey.

    For the defendants, Thomas J. Brogan.

   Per Curiam.

This writ brings up the proceedings relating to sales for taxes made by the defendant, one March 22d, 1918, and the other March 18th, 1920, of the lands of the prosecutor. The return shows taxes and assessments -levied in the years 1893 to 1921, inclusive; a certificate under the sale of March 22d, 1918, to Henry Byrne, free of all encumbrances, except taxes levied subsequent to December 20th, 1915, assessments subr sequent to December 31st, 1911, and all water rents unpaid, unless the land shall be redeemed, and a covenant to refund to Byrne the amount paid, $1,807.46, if title prove invalid, the lands sold were described as “lot No. B-C-D in block No. 1889 on the official assessment map of Jersey City.” Following this were certain certificates of sale to the “mayor and aldermen” on March 18th, 1920, of (1) block B, (2) block C, (3) block D.

It appeared that the situation was this: The taxes upon the property in question had been allowed to accumulate for many years. They were then made the subject-matter of a Martin act report, but as there were no taxes prior to 1891 there was no jurisdiction (Jersey City v. Speer, 78 N. J. L. 34; affirmed, 79 Id. 598.), and the report was set aside. It seems there were taxes for the years 1893 to 1917, inclusive, besides water rents for the years 1915 to 1917, inclusive, also assessments for street improvements. The city picked out taxes for years 1909 to 1915, inclusive, and some assessments for street improvements, and sold for those to Henry Byrne in 1918 as above set forth. Later, the other, taxes, &c., were gathered up and there was a sale for those in 1920 to what is called in the certificate “mayor and aider-men,” but of what is not stated.

While the writ brings up the 1918 sale, the attack upon it is abandoned, and both sides concede that that sale was valid. But the prosecutor says that that sale wiped out all prior taxes, &c., under the rule in Smith v. Specht, 58 N. J. Eq. 47, and Cahill v. Harrison, 87 Id. 528, the prosecutor’s purpose being, apparently, to redeem from the 1918 salé, and then hold the land free of all liens embraced in the 1920 sale.

Now we are not at all sure that a redemption would not have the effect of reviving all those liens, but that question is not before us exactly. The prosecutor does not control the 1918 sale, but simply abandons all attack on that and saj's-if it is good (and he says it is good) it wipes out the 1920 sale. The purchaser may perhaps say that sxrccessfully, but how can the owner of the “equity” as we may call it? It may well be that the Tax act was not intended to facilitate the shedding of taxes in that way, but as to that we do not feel called upon to say more at this time.

The prosecutor first attacks the sale of 1920 because taxes on two lots of twenty-five feet each were turned into a sale of three lots each for as much tax as each twenty-five-foot lot. If this is s0, and we think it is, it is wrong and the sale cannot stand in view thereof. We do not observe any adequate reply, or indeed any reply at all, to this point on the part of the city, and we think that successful reply cannot be made.

The prosecutor also contends that the sale was made for excessive interest. It seems to be admitted that it was. We think the city’s reply to this objection is ineffective. It is in effect that an owner must tender tax and lawful interest as a condition precedent to attacking a sale for unlawful interest. We think that is unsound.

The prosecutor also attacks the sale because made to "mayor and aldermen.” Since that seems to indicate nothing intelligible we think the sale is bad on that account.

We have examined the contention of the city that the writ was barred by lapse of time, but in. view of the fact that the sale was made for a lien invalid in law, find no merit in it. Bounds v. Chester Township, 89 N. J. L. 375.

The 1920 sale will be set aside.


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    ACQUACKANONK WATER COMPANY, EAST JERSEY WATER COMPANY, KEARNEY WATER COMPANY, MONTCLAIR WATER COMPANY AND PASSAIC WATER COMPANY, PROSECUTORS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANT. CITY OF BAYONNE, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANT. TOWN OF MONTCLAIR, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSINERS, DEFENDANT.
    Argued June 7, 1923
    Decided November 15, 1923.
    Public Utilities — Valuation for Rate Making-Properties of Interrelated Companies Valued Together — Method of Fixing Value Considered — Items of Value Included.
    On writs of certiorari.

    Before Justices Teen chard and Parker.

      Eor the Acquackanonk Water Company. East Jersey Water Company, Kearney Water Company, Montclair Water Company and Passaic Water Company, John B. Humphreys, William M. Wherry (of the New York bar) and L. Edward Herrmann.

    For Bayonne, Aaron A. Milniker, Eugene T. Sharkey and Treacy & Millon.

    For Montclair Walter E. Marsden and Theodore J. Badgley.

    For the Board of Public Utility Commissioners, Thomas Brown.

   Per Curiam.

These are three writs of certiorari allowed, one to the several water company prosecutors, one to the city of Bayonne and one to the town of Montclair, for the purpose of reviewing water rates fixed, by the order of the board of public utility commissioners of March 27th, 1923.

It appears that the water companies posted a new schedule of rates in Eebruary, 1922. The board enjoined their putting it into effect and ordered a hearing. At the hearing the board decided that the East Jersey Water Company was not a public utility and excluded it from the proofs. On certiorari it was decided that it was a public utility within the meaning of the statute, and the order refusing to consider the application was set aside. Acquackanonk Water Co. v. Board of Public Utility Commissioners, 118 Atl. Rep. 535; affirmed, 119 Id. 679, under another name. The companies then filed an amended schedule. It was apparently based on the proposition, and was heard, considered and decided upon the theory that the whole group of water companies was so intertwined by ownership and operation that it would be considered in substance as one concern supplying all the municipalities, and the valuation of the property determined in the aggregate and the rates determined upon the basis of cost of supplying the various municipalities served.

We do not see how the matter .could reasonably have been handled in any other way.

Treating the matter in this way the question turns upon the gross valuation of the entire system.

The board fixed the gross valuation at $11,500,000. The municipalities contend that such valuation is too high; the companies that it is too low.

The first point made by the water companies is that the board erroneously reduced the value of the property by excluding one-half of the value of the ICikeout reservoir. But the evidence shows that such reservoir property is a mere site, not useful or used at all in supplying water at present, and possibly never may be. The complaint which the companies make is that only one-half the value of this reservoir was taken in consideration. Under the circumstances as disclosed by the evidence the allowance of one-half its value was all the prosecutor is entitled to, and is, we think, unobjectionable from any point of view.

The next point is that the value of water rights was not considered in determining the value upon which the rates were predicated. But the board reported that they had considered the vair value of the property upon which the rates should be predicated, including all physical and intangible elements, working capital, cost of organization, going concern, &c. And under the headings “Water Power Eights” and “Water Diversion Eights” the board said: “These rights are undoubtedly of great value, and while it is true that the same parties interested in these water companies are also interested in the water power light*, water power developments were in operation for many years before the organization of the water companies, and the contracts for the diversion of the water appear to have been originally made in good faith, and have never been questioned. In view of all the facts the board concludes that the valuation of these water rights on the basis of their purchase price is proper for present value.” This we think sufficiently shows that they were included. It is argued that since the costs of water rights are not specifically enumerated, they are therefore excluded. But we do not think that follows: The board has certified in effect that it considered all physical and intangible elements and that the' total value was $11,500,000.

The next point made by the companies is that the board considered matters not of evidential character in determining the value of the property. This is directed against the statements of valuation made by three of the expert witnesses, and particirlarly against that of Dr. Bemis. It seems to us that they were evidential, the board by the express language of the statute, not being limited by strict rules of evidence. It was endeavoring to find out the value of these properties and had a right to take into account the statements of value submitted by the witnesses in connection with their testimony. It would be almost impossible to carry in mind all these different figures without some sort of tabulation.

It is next urged that the statements of Dr. Bemis were not of present value. But the character of the evidence was before 'the hoard. And, moreover, apparently, considering its findings, it did not accept the values of Dr. Bemis.

The next point made is that it was improper for the board to consider the price at which the owners had ojffiered to sell the property. We think this was proper evidence because it indicated the value placed upon the property by its owners, but which, however, the board did not adopt because it placed upon the property a value of about one million dollars above what the owners offered to sell it for.’

The next point made is that the board did not make specific findings. We think it did so sufficiently in view of the fact that there was a combination of these companies and it was apparently impossible to separate them.

The next point is that the board refused to consider federal income taxes paid as an operating deduction. But the Supreme Court of the United States in Galveston Electric Co. v. Galveston, 258 U. S. 388, disposed of this point contrary to the claim of the companies. In that case the master allowed the federal income tax as a cost of operation, and the District Court disallowed it, and the later action was sustained by the Supreme’Court, saying: “But the fact that it is the federal corporate income tax for which deduction is made must be taken into consideration in determining what rate of return shall be deemed fair. For under section 216 the stockholder does not include in the income on which the normal federal tax is payable dividends received from the corporation. This tax exemption is therefore, in effect, part of the return on the investment.”

The next point made is that the report does not take into consideration the increase in taxes which concern the companies. But what the board did was to take into account the taxes for 1922, the time of the hearing before the board. To go beyond that the board would have to speculate, and that we think it certainly was not obliged to do.

The next point is that the board was in error in not taking into account the deficiency in earnings caused by the action of the board in preventing the companies from obtaining adequate rates during the litigation through its order suspending the posted rates. But the companies were collecting all the rates they were entitled by law to collect, and the board would not have been justified in undertaking to make up any such deficiencies. Moreover, no claim.of this sort was/ made at the hearing so far as we can find.

We, therefore, find no reason in the points of the companies for setting aside the order.

Nor do we find any of the points made by the municipalities sufficient to disturb the order.

The city of Bayonne contends that the rates fixed for that city are excessive, and that the value put upon the property was excessive and refers to a lower appraisal made by the state in 1912. But there has been, we think, an increase in the value (as with most properties) since that date, and certainly there is nothing in the evidence which justifies a present value on the basis of the appraisal of 1912. Upon the whole evidence we cannot say that the valuation was too high.

The next point Bayonne makes is that it was error to make an allowance for going concern value. But the decisions are to the contrary. Public Service Co. v. Public Utility Board, 84 N. J. L. 463; affirmed, 87 Id. 581. There seems to be no substantial dispute concerning the .amount for going concern value, but the contention .seems to be that it ought to have been excluded. In any event we find no reason in this point for setting aside the order.

The 'next point Bayonne makes is that the allowance by the board of $900,000 per annum, yielding approximately-eight per cent., is excessive. From what we have‘said we have sufficiently indicated that we do not think it excessive.

Bayonne contends that the Washington and Beall contract with the city is invulnerable and the city cannot be compelled to pay more than that contract provides. But contracts between cities -and water companies cannot prevail against an order of the board. Hackensack Water Co. v. Board, 115 Atl. Rep. 531.

Upon the whole, we see nothing in the points made by Bayonne that justifies any interference with the order of the board.

The town of Montclair contends that it is required to pay returns upon property not used by it.

It first argues that at one time the water companies, through the mains of Montclair, served West Orange, Bloomfield and Glen Ridge, and that these towns are no longer supplied, and therefore the board had no right to take into consideration the value of the increased size of the Montclair mains. ' But it is not denied that these mains are now used to supply water to Montclair.

Another point Montclair makes is that the meter charges made by the board are excessive. In other words, it says that certain meters are valued at $9.75, and that because the board fixed the rate at $6 a year, which is thirty-three per cent, of the cost of the meter, the charge is excessive. But there is something besides the cost of the meter to be considered; it requires labor to put it in, keep- it in order, and to have it read monthly.

The next point is that the fire hydrant charges for the town are too high. But the rate is based on what is called the inch-foot basis, to which the town has no objection, but contends that the increase will be seventy-five per cent, and that it is exorbitant. We cannot say that it is. The matter of fire hydrants is entirely distinct from house service, and, of course, requires more water in case of fire, and servicé to take care of them. The matter is not without its difficulties; but we cannot say that the board was wrong in this.

The order will be affirmed.


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    BERTHA BEUGLESS, ADMINISTRATRIX AD PROSEQUENDUM OF OWEN M. BEUGLESS, PLAINTIFF, v. DAVID THOMAS, DEFENDANT.
    Decided November 16, 1923.
    Bail — Negligence Suit — Sufficiency of Affidavit — Attesting of Capias.
    On application to set aside an order to hold to bail.
    For the application, R. Wayne Kraft and Joseph J. Summerill.

      Contra, Howard, Eastwood.

   The opinion of the court was delivered by

Katzenbach, J.

This is an application to set aside an order of a Supreme .Court commissioner, that the defendant be held to bail in the sum of $2,000. The action is one to recover damages of the defendant for the death of Owen M. Beugless as a result of the alleged negligent operation of the defendant’s automobile. Among the grounds advanced to set aside the order are that the affidavit upon which the order is based does not contain proof of the facts therein alleged and that the capias was issued and tested prior to the filing in the clerk’s office of the affidavit and order to hold to bail.

It appears that the capias was issued and tested on October 23d, 1923, and the affidavit and order to hold to bail was not filed with the clerk of the court until October 25th, 1923. This question was recently considered in the case of Hand v. Nolan (decided August 27th, 1923), 1 N. J. Mis. R. 429. It was held in that case that the provision of the statute requiring the filing of the proof and order before the issue of the capias was mandatory.

The affidavit upon which the order was made is defective. It does not state that the affiant of her own knowledge is possessed of the facts therein stated. From the wording of the affidavit it would appear that the matters referred to therein was information imparted to the affiant by others. The affidavit must contain proof of the facts set forth. By proof is meant competent and legal evidence, “testimony which conforms to the fundamental rules.” Hufty v. Wilson, 78 N. J. L. 241. This excludes hearsay. The affidavit moreover states the opinions of the affiant, as, for example, stating that the defendant’s automobile was driven at an excessive speed without stating the miles per hour the car was traveling at the time of the accident. It is unnecessary to consider the other grounds advanced by defendant’s counsel.

For these reasons the order to hold to bail will be set aside. The defendant will be discharged from arrest and his bail will be discharged. The case will proceed as if commenced by summons.


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    JOSEPH KEEGLE, PLAINTIFF-RESPONDENT, v. COUNTY OF HUDSON, DEFENDANT-APPELLANT. CHARLES E. LILLIS, PLAINTIFF-RESPONDENT, v. COUNTY OF HUDSON, DEFENDANT-APPELLANT.
    Decided November 13, 1923.
    A municipal official who is discharged from service is not entitled to recover his salary for any period during which he did not actually perform service, unless the illegality of his discharge is admitted, or ascertained by a direct proceeding to set aside the dismissal. It cannot be inquired into collaterally in a suit to recover salary for services not performed.
    Before Justices Trenchard and Parker.
    For the appellant, Robert H. Doherty.

    For the respondent, Lewis G. Hanson.

   Per Curiam.

The legal principles to be applied in these cases are the same and the questions raised can be disposed of in one opinion.

In the action by Keegle the facts are that he was appointed by the defendant as fire custodian at the county farm of defendant at Snake Hill, subject to “An act regulating the employment, tenure and discharge of certain officers and employes of this state, and of the various municipalities and counties thereof, and providing for a civil service commission and defining its powers and duties” (Pamph. L. 1908, p. 235), and the amendments and supplements thereto. The defendant on December 2d, 1912, suspended plaintiff and refused to allow him to perform the duties of his service until December 12th, 1912, when he was again put to work for a short time and later discharged by defendant and remained out of service until December 11th, 1913, when he was reinstated. In 1918 plaintiff brought this action to recover his salary at the rate of $75 per month for the period he was prevented from working because-of his discharge or suspension, and recovered a judgment therefor from which the defendant has appealed.

The principal ground of the appeal is the refusal of the trial court to order a nonsuit. The plaintiff claimed that his dismissal was illegal mainly, if not entirely, because he was discharged without cause and without hearing, contrary to the provisions of the Civil Service act, supra, to which defendant answered that the position held by the plaintiff was abolished in the interest of economy and was legal. Therefore, the question, of legality was a disputed one, and the illegality of the discharge was not admitted as in Boss v. Freeholders of Hudson, 90 N. J. L. 522. Instead of appealing to the civil service commission to test the illegality of his removal, plaintiff brought this suit for that purpose. In other words, he seeks to try his right to the office by suit for salary. This he cannot do, and it was error not to grant defendant’s motion for a nonsuit.

In Van Sant v. Atlantic City, 68 N. J. L. 449, Mr. Justice Port, speaking for this court,- held that where a person is entitled to protection in office, unless there be charges and trial, a dismissal without them is v.oid, and said: “But the official charged with the duty of discharging is acting judicially when doing so. His action is subject to review and may be reversed. Until reversed it stands. Whether there was or not a proper proceeding for dismissal cannot be inquired into collaterally. It must be reversed by a direct proceeding to set aside the illegal removal before suit for salary can be maintained.” W.e think that public policy forbids the settlement of contested issues as to the legality of municipal action in the matter of offices or positions in a suit for salary where the right to salary is dependent on the legality of a discharge, especially in a case where the Civil Service act provides a prompt and effective method to settle- the question before bringing suit for salary. The rule seems to be well settled in this state that in the absence of any judicial ascertainment of the illegality of the discharge, or any agreement that it was illegal, no suit for salary for any period when the plaintiff did not actually perform the service will lie until the illegality is admitted, or ascertained by a proper proceeding.

In the action brought by Lillis the acts are practically the same, except that he seeks to recover for different periods, and also for the difference between the salary paid, when he was first engaged as assistant county superintendent, and a reduced amount paid and accepted; but the same legal principles apply as in the previous case.

The judgment in each of these cases will be reversed.


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    EMMA LANSBERRY ET AL. v. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY.
    Decided November 9, 1923.
    Negligence — Accident at Railroad Crossing — Plaintiff, Resident of Pennsylvania, Injured in that State — Law of that State Governed — Contributory Negligence There not to Stop as well as Look and Listen.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the rule, Frederic B. Scott.

      Contra, Mark Townsend, Jr.

   Per Curiam.

The plaintiffs are the wife and children of Luther Lansberry, deceased, who was killed on the 1st of March, 1922, at a highway crossing over the defendant’s railroad at the village of Espey, in the State of Pennsylvania. The decedent and his family were residents of Espey at the time of his death and the widow and children still reside at that place.

The decedent was a dairyman, and, having finished his morning deliveries, he left his truck parked about one hundred and twenty feet from the railroad station of the defendant company at Espey and went into the station, where he stayed half an hour or more, conversing with friends he found there. He then went back to his truck and started to drive to a vendue, which was to be held in the neighborhood at about ten o’clock in the morning. His way was across the tracks of the railroad] company, and as he was crossing the tracks he was struck and killed by one of the defendant’s trains. The trial resulted in a verdict in favor of the plaintiffs, and their compensation was fixed by the jury at $26,208. It is contended before us that the finding of the jury cannot be justified under the evidence and the law as laid down by the court in its charge.

Two primary questions were left by the court to the determination of the jury: First, whether the proofs satisfied them that the accident was the result of negligence on the part of the defendant’s employes in the operation of the train, and, second, whether the decedent himself was guilty of contributory negligence; and the defendant attacks the action of the jury in resolving each of these questions in favor of the plaintiffs.

We do not find it necessary to consider whether or not the finding of negligence on the part of the employes of the defendant company was justified by the proofs; for it is quite clear that, in finding the decedent was not guilty of negligence contributing to the accident, the jury entirely disregarded the law as laid down by the trial judge in his charge. The accident, as has already been indicated, occurred in the State of Pennsylvavnia, and the trial judge charged the jury that the law of that state was controlling, and that under it a person about to cross over the tracks of a railroad company was required, for his own protection, not only to look and listen for the purpose of observing whether or not a train was approaching, hut that he must also stop for the purpose of making such observation, and, consequently, unless the decedent in the present case not only looked and listened, but also stopped, the plaintiffs could not recover. That the jury in finding its verdict absolutely disregarded this instruction is demonstrated by an examination of the proofs sent up with the rule. Two witnesses were called by the defendant— a farmer and his wife — who lived close to the crossing and observed the decedent as he approached it, each of whom testified that they observed the decedent from the time that his truck was at a point admittedly some ninety feet from the crossing until the accident happened, and that the truck was not stopped at any time while traveling over this distance. No evidence was offered on the part of the plaintiff to controvert this testimony, nor was there anything in the proofs to suggest that either of these witnesses was not disinterested, nor was there anything which directly or indirectly tended to discredit either of them.

Reaching the conclusion that the finding of the jury upon the question last referred to was in plain disregard of the instruction of the court, it is unnecessary to consider the other reasons submitted on the part of the defendant.

The rule to show cause will be made absolute.


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    CHARLES M. CARPENTER v. OVERLAND TIRE COMPANY.
    Decided November 9, 1923.
    Agency — -Sale of Land — Commissions—Duty of Agent — Conduct Justifies Making Rule Absolute.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.

      For the rule, W. Howard Demarest.

      Contra, Frank Benjamin.

   Per Curiam.

This is the third time the present case has been before this court on a rule to show cause.

The suit was brought by Carpenter to recover commissions which he claims to be entitled to as the producing agency of a sale of land belonging to the Overland Tire Company to the General Electric Company. The contract for the sale was made between one Whiteside, acting as the undisclosed agent of the General Electric Company, and.the defendant company, without any knowledge on the part of the latter as to who the real purchaser was, that fact having been fraudulently kept from the knowledge of its president by the plaintiff. Because of this fraud on the part of the plaintiff a verdict in his favor has been twice set aside by this court; and, in dealing with the plaintiff’s conduct, in determining the action of the court on the second rule, we used the following language, after pointing out that the only claim which the plaintiff had against the defendant was that, in the transaction resulting in the sale, he was acting as the defendant’s agent. “One essential requisite of an agent is loyalty to his principal, and it is fundamental that an agent cannot recover from the principal in a case where he has been a party to the sacrifice of that principal’s interests without the latter’s knowledge and by fraud or intentional concealment. Not only did the plaintiff connive at a scheme to induce his own client to sel] to the very party he had named” (and for a lower price than was agreed upon by the plaintiff and the defendant company’s president), “under the idea that Whiteside was acting for himself individually or for other principals; but he permitted the defendant to conduct the negotiations through another broker and entirely concealed his own connection with the matter from the defendant.” The testimony sent up with the present rule discloses no change in the situation, so far as this element is concerned, and on that testimony, as we intimated in our opinion on the second rule, the trial court would have been justified in directing a verdict for the defendant.

The rule to show cause will be' made absolute.


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    SAMUEL FIORENTINO v. FARR & BAILEY MANUFACTURING COMPANY.
    Decided November 9, 1923.
    Negligence — Injury on Ferry-boat Through Motor Truck of Defendant Running down the Plaintiff — Second Trial — Judgment not Set Aside — Damages Reduced.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the rule, Lewis Starr.

      Contra, Albert S. Woodruff.

   Per Curiam.

This suit was brought to recover compensation for personal injuries received by the plaintiff while crossing the Delaware river from Philadelphia to Camden on a ferry-boat of the Delaware Eiver Ferry Company. In the gangway of the ferry-boat there was a truck belonging to one Adkins, who was joined with the Farr & Bailey Company as a defendant. Just in front thereof was another truck, belonging to the Farr & Bailey Company. As the ferry-boat was entering the slip the plaintiff stepped into the gangway in front of the Farr & Bailey truck for the purpose of getting off more speedily. While he was standing there the driver of the Adkins truck cranked his motor while it was in gear, and, as a result, the truck started forward and struck the rear of the Farr & Bailey truck. That truck had been anchored in its position with a chuck-block under its wheel; but this had been removed by the driver just before the collision occurred. As a result of that collision the Farr & Bailey truck started forward, running the plaintiff down and injuring him. The jury found a verdict in favor of the plaintiff as against the Farr & Bailey Company, awarding him as compensation the sum of $10,000.

The defendant seeks to have the present rule made absolute upon two grounds: First, that the finding of the jury that the accident to the plaintiff was the result of negligence on the part of the Farr & Bailey Companjr’s driver was against the weight of the evidence, and second, that the verdict is excessive.

The present rule brings up the proceedings at a second trial of this case, and on each trial the verdict of the jury established the existence of liability on the part of the defendant. In this situation we do not consider that we would be justified in disturbing this second verdict, so far as the question of the liability of the defendant is concerned. We think, however, that the amount of the award cannot be justified by the proofs in the case, and we are not hampered by the fact that two juries have concurred upon this phase of the case. On practically the same testimony the first jury fixed as fair compensation to the plaintiff the sum of $5,500, a little more than one-half of the amount of the present award. Our examination of the testimony satisfies us that the finding of the first jury upon the question of damages was a very proper award, under the circumstances, and that necessarily, therefore, the present verdict is grossly excessive.

If the plaintiff will consent to have the present verdict reduced to $5,500 he may enter judgment for that amount. Otherwise the rule to show cause will be made absolute.


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    WILLIAM BROWN, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS.
    Argued November 9, 1923
    Decided November 13, 1923.
    Certiorari — Injury by Utility Commissions — Whether Prosecutor is Illegally Operating a Jitney Bus — Legal Questions Involved Regarding Jurisdiction of Board and Its Procedure — Writ Allowed but Allocatur not to Stay Proceedings.
    On application for certiorari.

    Before Justices Trenchard and Parker.
    For the prosecutor, Frank H. Sommer and George L. Record.

    For the board, Thomas Brown.

    For the Public Service Railway Company, William H. Speer.

   Per Curiam.

The application is to bring up certain proceedings before the board amounting to an inquiry by that body into the question whether prosecutor is illegally operating a jitney bus. It may fairly be inferred that if the board should determine that to be the case, an appropriate order would lie made; and the effort now is, not only to forestall such order, but to check the inquiry until a number of legal questions suggested on this application are settled. . These questions relate both to jurisdiction of the board over the subject-matter and to legality of its procedure. Various constitutional points are suggested and some have been argued.

Ordinarity, where the statutory tribunal has jurisdiction certiorari will not issue until a final determination of the proceeding questioned; but where a serious question of jurisdiction is raised the writ will generally be allowed. Mowery v. Camden, 49 N. J. L. 106.

We have considered the jurisdictional questions raised and at this stage are unable to see substantial merit in any of them; and hence the reason for cheeking the proceeding below in limine does not seem to obtain here.

But by the same authority, even where the question is merely procedural, the writ may issue in the discretion of the court.

We conclude that a writ should issue at this time, but that the allocatur should not stay the progress of the proceedings before the board. This will give prosecutor the opportunity to argue both procedural and jurisdictional points, which he should be entitled to do, although, as we have said, we do not now perceive such substance in tire jurisdictional questions as to feel called upon to arrest the regular course of the inquiry before the board.

Allocatur will be framed accordingly.


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    STATE OF NEW JERSEY, DEFENDENT IN ERROR, v. HUBERT CROMWELL, PLAINTIFF IN ERROR.
    Submitted March 22, 1923
    Decided November 10, 1923.
    On writ of error to the Burlington County Quarter Sessions Court.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the plaintiff in error, Palmer & Powell.

    For the defendant in error, Jonathan H. Kelsey, prosecutor of the pleas.
   Per Curiam.

This case was argued with State v. Michalis, No. 9 of the same term. The only question presented here was disposed of adversely to the defendant in the opinion in State v. Michalis filed this day. See Advance Eeports.

The judgment will be affirmed, with costs.


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    THE STATE OF NEW JERSEY, RESPONDENT, v. SIDNEY S. NORCOTT, PROSECUTOR.
    Submitted July 5, 1923
    Decided November 21, 1923.
    Motor Vehicles — Driving In Intoxicated Condition — Charge Made Under the Motor Vehicle Act — Disorderly Person Charge— Form of Conviction — Correct Title of Case.
    On certiorari, &c.
    Before Justices Teen chard and Parker.
    For the prosecutor, Jacob L. Newman and Lionel P. Kristeller.

    For the respondent, James L. McKenna and John O. Bigelow.

   Per Curiam.

This case should not be entitled the State of New Jersey, ex rel. Sidney S. Norcott, v. Recorders’ Court of the City of East Orange. The writ is directed to the recorder as the custodian of the record only. The case should be entitled under rule 15, as it was before the recorder, “The State of New Jersey v. Sidney S. Norcott.”

Sidney S. Norcott, hereinafter, called the defendant, was convicted by the recorder of the city of East Orange of operating a motor vehicle while under the influence of intoxicating liquor.

The defendant first sought to review the conviction in the Essex Common Pleas, but that court remitted the record to the recorder’s court for reasons not appearing in the record, or challenged in this court.

Thereupon this writ of certiorari was allowed directed to the recorder’s court.

The first ground alleged for reversal, is that the defendant was charged under one law and convicted under another.

By the return to the writ it appears that the defendant was charged and tried under subdivision 3 of section 14 of chapter 208 of laws of 1921 (Pamph. L., p. 643), known as the “Motor Vehicle act.” The complaint, the legal sufficiency of which is not challenged, charged the operation of motor vehicle while under the influence of intoxicating liquor contrary to subdivision 3 of section 14 of the Motor Vehicle act.

But the defendant contends that he was convicted of being a disorderly person, not of the offense charged in the complaint.

In the return the formal conviction appears. It begins: “State of New Jersey, County of Essex, ss.: Be it remembered that on this twelfth day of September, a. d. 1922, at East Orange, in said county, Sidney Noreott, defendant, was by me, Walter C. Ellis, recorder of the city of East Orange, convicted of violating subdivision 3 of section 14 of air act entitled” — -quoting the title of the Motor Vehicle act— “in a summary proceeding at the suit of the State of New Jersej', by George Gilman, prosecutor.” After reciting the evidence in full the conviction concludes: “Wherefore I, the said Walter O. Ellis, do find that the said defendant did, at the time and place charged in the complaint filed in this cause, operate a motor vehicle upon a public street in the city of East Orange while under the influence of intoxicating liquor and do adjudge him to be a disorderly person (operate or permit, as the case may be, follow the language of statute) in violation of subdivision 3 of section 14 of said act, and therefore convict said Sidney Noreott of a violation thereof; and order that the said Sidney Noreott be and he hereby is committed to the common jail of the county of Essex for a period of thirty days.”

It will be seen, therefore, that the defendant was convicted of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor in violation of subdivision 3 of section 14 of the Motor Vehicle act.

The words in parenthesis are directions on a printed form used by'the recorder. The clause “do adjudge him to be a disorderly person” may be disregarded as surplusage, just as the parenthetical directions should be. It does not detract from or modify the conviction.

The defendant next contends that the recorder should have filed, but did not file, the record of conviction in the Common Pleas Court within ten days after the appeal was taken. But the state of the case does not disclose any facts to support this argument.

The last reason urged is that the conviction is not sealed and that the word recorder is not added to the signature of the recorder. But no authority is cited that either the seal or the addition to the signature is essential to the validity of the conviction. The body of the conviction states that the defendant was convicted “by me, Walter C. Ellis, recorder of the city of East Orange.”

The conviction will be affirmed, with costs.


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    No. 211.
    DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, PROSECUTOR, v. STATE BOARD OF TAXES, ETC., DEFENDANT. CENTRAL RAILROAD COMPANY OF NEW JERSEY, PROSECUTOR, v. STATE BOARD OF TAXES, ETC., DEFENDANT. LONG DOCK COMPANY, PROSECUTOR, v. STATE BOARD OF TAXES, ETC., DEFENDANT. LEHIGH VALLEY RAILROAD COMPANY OF NEW JERSEY, PROSECUTOR, v. STATE BOARD OF TAXES, ETC., DEFENDANT. ARLINGTON RAILROAD COMPANY, PROSECUTOR, v. STATE BOARD OF TAXES, ETC., DEFENDANT. PENNSYLVANIA RAILROAD COMPANY, UNITED NEW JERSEY RAILROAD AND CANAL COMPANY, PROSECUTORS, v. STATE BOARD OF TAXES, ETC., DEFENDANT. WEST SHORE RAILROAD COMPANY, NEW YORK CENTRAL, ETC., COMPANY, LESSEE, v. STATE BOARD OF TAXES, ETC., DEFENDANT.
    No. 216.
    No. 217.
    No. 218.
    No. 219.
    No. 235.
    No. 236.
    Argued June 6, 7, 1923
    Decided November 20, 1923.
    Taxation — Assessment of Railroad Property at Terminals in Hudson County — Valuations Increased in Some Instances.
    On certiorari to judgments of the state hoard of taxes and assessments in matter of taxation.

      Before Justices Trenchard and Parker.
    For the prosecutors, Albert G. Wall, Maximilian M. Stall-man and Robert J. Bain.

    For the defendant, Edward P. Stout.

   Per Curiam.

These writs, as prosecuted, amount to a concerted attack upon the valuations for 1922 of real estate in Hudson county belonging to the several prosecutors, consisting of main stem and second-class railroad property, situated for the most part on the tidewaters of Hudson river and New York bay. A glance at our law reports will show that these tax valuations •are a source of constant litigation, and that the settlement of that litigation by the courts, reviewing the tax board on matters of fact as well as. of law, is a matter of some difficulty. In the cases at bar a very large number of items are involved, and counsel do not undertake to deal with them in detail, either in the argument or in the briefs. The stress of the argument of prosecutors is that the valuation for 1922 shows a total increase over that for 1921 of about $23,000,000, or an average of forty-two per cent, of the -total values of 1921; and that such an increase is not justified by the evidence taken before the state board and now before us; and we are asked, apparently, to set them aside in toto and send the whole matter back for a new assessment. For the board it is argued that the valuations are severally and in total sustained by the evidence taken, and we are asked generally to affirm the judgments under review. We may as well say at this 'time that these valuations are not to be rigidly tested by any constant factor, and that while there is, of course, much similarity in all these water-front properties, as was said by this court in Long Dock Co. v. State Board of Assessors, 89 N. J. L. 108, this does not justify the court in disregarding the separate identity of the various properties.

Certain general matters seem to be satisfactorily settled by the evidence, and these may as well be stated as a preliminary to detailed examination.

1. That with the growth of New York and vicinity as a commercial centre, the water-front properties have been progressively taken up for mercantile purposes, so that available properties have, consequently, become scarce, and as a result are commanding substantially higher prices.

2. That certain localities should be valued higher than others according to situation and accessibility.

3. The witnesses on both sides seemed to agree that the “peak” of values lies in the neighborhood of the Pennsylvania and Lackawanna terminals in Jersey City and Hobo-ken, and that values shade off thence in both directions.

4. There seems to be a minor “peak” at Constable Hook in Bayonne, which affects railroad property in that immediate locality.

5. Sales in the Greenville district indicate considerable activity there, and substantial increase in taxable value is justified in view thereof.

6. We cannot accede to the suggestion on behalf of prosecutors that “railroad” value is not market value, nor a proper test thereof. The pronouncement of this court in the Long Dock Case, supra, is to the contrary. We there said, in substance, that it was .proper to consider fair value for average business, whether a greater value existed for railroad purposes; and the increment, if any, because of assemblage and consolidation of properties.

7. We do not think it follows from the fact, if it be a fact, that the value of a particular tract in a particular situation has increased by a certain percentage, that other tracts elsewhere have increased in value to a like extent.

Bearing these principles in mind we proceed to an examination of the particular items. And here it may be noted: (a) that of the items appealed, many show the same valuations in 1922 that were placed on them for 1921; (b) that in many cases of increase the board was apparently unanimous as to increase and its extent; (c) that in many other cases the board was unanimous for an increase but divided as to the extent thereof. Speaking for the purposes of this case, and after a careful consideration of the facts and arguments, we conclude that ordinarily valuations of 1922 identical with those of 1921 should be affirmed; valuations ordered by a unanimous board should not be set aside unless it is entirely clear that the evidence will not fairly support them, and valuations by a divided board should be determined according to circumstances.

Taking up the New York Central group, we find that some twenty-three items, all of which exhibit the same valuations ' as in the preceding year, and which can have no legitimate bearing either on the total increase either of millions or of per cent. We can see no reason at all for disturbing this group of valuations, and they will be affirmed, with costs.

In the Lehigh Valley group of fifty-two items, thirty-nine show no increase, and these will be affirmed. The other thirteen will now be considered. Identifying each by acreage, and stating the increase in thousand per acre, they tabulate thus:

2.433 inc. from 54 to 55.

16.414 inc. from 7 to 15.

13.638 inc. from 8 to 20.

1.106 inc. from 15 to 20.

0.303 inc. from4.8 to 15.

As to these, the increases were approved by apparently the whole board, and we think them proper. They will be affirmed. Items:

2.835 from 54 to 65.

3.497 from 14.4 to 20.

13.650 from 14.4 to 15.

38.38 from 55 to 65.

3.035 from 10 to 20.

88.365 from 14.5 to 20.

As to these, the board was not in accord but we concur in the majority finding. They will be affirmed. Items:

5.941 from 28 to 40; and

25.673 from 20.5 to 40.

We consider this value too high and adopt the minority value of 30 in each case. Item 1.230, not assessed in 1921, will be affirmed.

Erie group. This embraces only seven items, on three of which there was no dissent in the board, they are:

3.790 from 1.2 to 2. (Arlington Railroad.)

6.257 from 84 to 90.

0.924 no change.

As to these, we do not feel that the findings of the board should be disturbed.

The other fortr items are:

16.555 from 66 to 87 or 30 per cent, minority 72.988.

67.83 from 64 to 90 or 40 per cent, minority 70.576.

2.816 from 60 to 90 or 50 per cent, minority 66.

3.164 from 60 to 90 or 50 per cent, minority 66.

They ■ consist of two “terminal” tracts and two “bulkhead” tracts and are typical of the great increases challenged in the general argument. Conceding the great increase in valuations apparently indicated at the two ends, of the line, Weehawken and Constable Ilook, and the high sales price of the elevator tract in this immediate vicinity, we still are unable to agree that such great advances in one year’ are fairly supported by the evidence. So far as the price of the elevator tract is concerned, that sale was made in 1916, at a time when business was enormously and unhealthily stimulated by the war in Europe, and under circumstances tending to force an unusual price. We have already 'said that a given per cent, of increase at one place in the line does not necessarily call for a similar percentage elsewhere, and that is applicable now. We think that a figure of 75 for all four items is applicable; and that figure will be applied.

In the Lackawanna group a somewhat similar disposition will be made. On item 10.315 there was no dissent in advancing from 92 to 96. That will be affirmed. In item 7.621 the minority valuation was slightly higher than the majority of 65. The majority valuation is affirmed. In item 16.136 the increase to 68.8 seems reasonable, and that will be affirmed. The advances in the other items we consider excessive. Item 131.84, advanced from 64 to 95, will be fixed at 80. The same with respect to item 40.068. Item 1.525, advanced from 53 to 75 (upper ferry tract), calls for a substantial increase but not 41 per cent. A valuation of 65 is all that we think should be put upon it. Items 3.240 and 3.72Í8 (main stem in terminal tract) were advanced from 78 to 95 and 96, respectively. They will be figured at 85 each.

Pennsylvania group. This embraces two items of Green-ville terminal, three at the Jersey City terminus, and. two at the adjoining Harsimus district.

The Greenville district, according to the state’s expert, showed the point of lowest values; and yet the board increased tract 343.137 from 11.253 to 20, and tract 12.731 from 13.2 to 20. We consider this advance in part unwarranted. Tract 343.137 will be valued at 15 and the other at 16.

At the Jersey City terminal, tract 30.564 was advanced from 79.8 to 95. The minority valuation was 87.780 and we think is all the property will bear. The same of tract 3.623. Tract 2.932 was valued at 96 for 1921 and not advanced. That valuation will stand.

In the Harsimus district, tract 98.835 (“terminal tract”) was advanced from 63.7 to 88.1, and tract 6.682 from 57.57 to the same figure, 88.1. What We have said about the adjoining Erie tracts is applicable, and the value of 75 adopted there will be applied here.

The New Jersey Central railroad group vividly illustrates what has been said respecting the minor “peak” in the Bayonne district. A number of parcels at that- point show increases of one hundred per cent, and even more, apparently concurred in by the entire board. Such increases we consider are justified by the evidence, and they will be affirmed as respects the following items: 3.624, 8.898, 1.889, 5.841, 7.514, 0.851, 2.495, 7.504, 4.580, 4.028 and 19.342'. These embrace most of the main line through Bayonne, and the Constable Hook and Port Johnson branches all in a rapidly growing city and some connected directly with and running to deep water.

Tract 3.986 was raised from 12 to 20. That value will also be affirmed, although the board was not unanimous on the extent of the appreciation.

As to tracts 5.464 and 97.063, both increased from 55 to 65, the minority figures are 'not strikingly below those of the majority, which have respectable evidence to support them, and will be affirmed.

A similar result is reached as to tracts 3.120, 19.611 and 5.610.

The valuation of tract 6.302 we fix at 33'; that of 71.3 at 28. We are unable-to see any proper ground for the values placed on these by the board.

There remain four large parcels:

84.724 raised from 14.5 to 30.

99.1 raised from 14.5 to 25.

28.718 and

24.613 raised from 20 to 40.

As to these four, the minority was hopelessly in disagreement, and the increases are so great so to be more than impressive. Lacking the unanimity accorded to similar increases just noted, and being in an entirely different locality, they requre most substantial support in the evidence, reasoning and facts, as well as mere expert opinions. In our view, they fail to have such support and cannot have the sanction of this court. Tract 84.724 is hereby valued at 20; tract 99.1 at 17.5; tracts 28.718 and 24.613 at 28 each.

This seems to complete the detailed survey of the items v challenged. "Rules in conformity with these views may be entered in the several cases.


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    AMERICAN METAL BED COMPANY, PLAINTIFF-APPELLANT, v. LEHIGH VALLEY RAILROAD COMPANY, DEFENDANT-APPELLEE.
    Decided November 19, 1923.
    Common Carriers — Shipment of Goods — Liability of Carrier When Packing is Done by Shipper.
    On appeal from the Second District Conrt of Newark.
    Before Justices Kalisch and Katzenbach.
    For the appellant, Milton M. Unger.

    For the defendant, McCarter & English.

   Per Curiam.

The plaintiff appeals from a judgment rendered in favor of the defendant, in the Second District Court of Newark, in an action brought by the former against the latter upon the allegation that the company in the transportation of certain merchandise delivered to it by the plaintiff, at Newark, to be safely carried by it over its lines to Pittsburgh, Pennsylvania, so negligently and carelessly handled and cared for the same that the merchandise became injured, broken and destroyed, whereby the plaintiff ivas damaged in the sum of $500.

The plaintiff’s two witnesses, Sachs and .Polushuk, experienced in the line of shipping, employed by the plaintiff, testified that they carefully loaded the goods in the freight car and braced the shipment securely. The shipment was known as “shipper’s load and count.” The plaintiff was .given a bill of lading which had this statement clearly written across the face of it. This means, and was so understood, that the shippers loaded the freight and thereby relieved the company from liability for any damage to the merchandise as a result of improper loading. Such a shipment was authorjzed under the provision of the Federal Bill of Lading act, which, among other things, provides that the carrier may by inserting in the bill of lading the words “shipper’s weight, load and count,” or other words of like purport, indicate that the goods were loaded by the shipper, and if such statements be true, the carrier shall not be liable for damages caused by the improper loading.

There was proof that after the packing by the plaintiff’s servants the door was closed and a seal placed upon the door by an agent of the railroad company.

In this shipment of merchandise there were one hundred and forty iron beds which had been damaged, badly rubbed and knocked and the enamel scraped off, &c., when the car was opened at Pittsburgh and the merchandise inspected.

On behalf of the defendant it was testified that the seal upon the door of the car upon its arrival at Pittsburgh was unbroken; that the beds had been knocked about and damaged because they had been improperly packed; that there were no braces in the car to keep them steady and they were not properly protected by excelsior and paper.

Thus a conflict in the evidence presented, itself upon a factual question which was for the court to decide. The court determined the question in favor of the defendant and his finding in that regard being supported by some testimony cannot be property.disturbed.

We are, therefore, not concerned with the burden of proof which is elaborately argued with appellant’s brief, since there was testimony to support the court’s finding.

For the appellant it is further argued that the court erred in refusing to permit the plaintiff to prove return freight charges.

This contention is untenable in view of the fact that the court found the defendant free of any negligence in the transportation of the goods, and, therefore, sustained the defendant’s claim that the damage to the beds was the result of careless packing of them by the plaintiff’s servants.

Judgment is affirmed, with costs.