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and of which no misuse was made, was not of, ed by defendant's agent to enter its terminal at sufficient importance to justify a reversal. W. to board one of defendant's cars, and that

[Ed. Note. For other cases, see Appeal and while standing on defendant's platform defendError, Dec. Dig. $ 1170.*]

ant knew, or had reasonable cause to know, that

the agents of another railroad were using or Exceptions from Windsor County Court; about to use the platform by moving its freight Wm. H. Taylor, Judge.

trucks against and over plaintiff's foot; and Action by David Carver against Albert that defendant negligently permitted them to do

Held, that the declaration stated a cause Sykes. Judgment for plaintiff, and defend- of action. ant brings exceptions. Affirmed.

(Ed. Note.-For other cases, see Carriers, Argued before ROWELL, C. J., and MUN- Cent. Dig. 88 1260, 1270, 1273-1280; Dec. Dig. SON, WATSON, HASELTON, and POW. 8 314.*] ERS, JJ.

Action by Howard W. Miller against the Stickney, Sargent & Skeels, for plaintifr. West Jersey & Seashore Railroad Company. Charles Batchelder and S. E. Evaris, for de On demiurrer to declaration. Overruled. fendant.

See, also, 70 Atl. 175.

Argued November term, 1908, before GUMPOWERS, J. The plaintiff sent his son, MERE, C. J., and SWAYZE and TRENCHHarry Carver, and his hired man, Phillip ARD, JJ. Waite, to the place of Deforest Sykes, a

John W. Wescott, for plaintiff. Gaskill & brother of the defendant, after some sheep Gaskill, for demurrant. he claimed to own, and which are the basis of this action of trover. Harry and Pbillip PER CURIAM. The declaration avers were witnesses in the plaintiff's behalf, and that the plaintiff was a passenger of the dewere allowed to testify that Deforest told fendant; that he was invited by the defendthem that the sheep were in the defendant's ant's agent to enter its terminal at Woodbury pasture. The only exceptions here relied up for the purpose of boarding one of the deon relate to the admission of this testimony. fendant's passenger cars; that, while plainThe defendant admitted that the sheep were tiff was standing on the platform of the dèthen in the pasture on the farm where he fendant for that purpose, the defendant lived; but he claimed, and his evidence tend- knew or bad reasonable cause to know that ed to show, that the farm was owned and the agents of the Pennsylvania Railroad managed by his father-in-law, Crandall, and Company, or the agents of the Amboy Divithat the sheep were still in the possession sion of the Pennsylvania Railroad Company, and control of Deforest, who brought them were using, or were about to use, or were there. The only evidence of a conversion by likely to use, the platform by moving one or the defendant was that tending to show a more of its freight trucks or vehicles against, demand upon him for the property and his upon, and over the plaintiff's foot; and that refusal to deliver the same. The defendant the defendant negligently and carelessly perinsisted that this was no evidence of a con- mitted an agent of the Pennsylvania Railroad version by him, as he was not in a position Company, or the Amboy Division, to run one to comply with the demand, since he did of their said trucks or vehicles upon, against, not have the custody or control of the prop- and over the plaintiff's foot, and thereby inerty. It was only on this last question that jured him. We see no reason to doubt that the evidence excepted to could in any view if the plaintiff can prove that the defendants have been considered harmful.

knew or had reasonable cause to know that The defendant argues that the jury would the agents of the other companies were likenaturally treat the statement of Deforest as ly to use the platform by moving one of to the whereabouts of the sheep as evidence their trucks over the plaintiff's foot, and that they were in the possession and control negligently permitted that to be done, the of the defendant, since he spoke of the pas- plaintiff will have established a cause of acture as the defendant's. We cannot agree tion. If, as the declaration avers, the plainwith this view. It seems clear to us that the tiff was a passenger, and the defendant knew evidence was quite too colorless to have been that while he was upon the platform some harmful. When it first came into the case, one else was going to injure him, it clearly it was not objected to. The plaintiff based was bound to exercise reasonable care to preno claim upon it and made no attempt to vent that injury. Exton v. Central R. R. Co., misuse it. As the trial went it was altogeth- 62 N. J. Law, 7, 42 Atl. 486, affirmed 63 er too unimportant to require a reversal. N. J. Law, 356, 46 Atl. 1099, 56 L. R. A. 508. Judgment affirmed.

The plaintiff is entitled to judgment.

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(77 N. J. L. 299) MILLER V. WEST JERSEY & S. R. CO.

STATE v. WATSON et ux. (Supreme Court of New Jersey. Feb. 23, 1909.) (Supreme Court of New Jersey. Feb. 23, 1909.) CARRIERS ($ 314*) — INJURY TO PASSENGER HOMICIDE ($ 283*)—MANSLAUGHTER-CULPADECLARATION.

BLE NEGLIGENCE-INSTRUCTIONS. Plaintiff alleged that he was a passenger of Upon an indictment for manslaughter, it defendant railroad company; that he was invit- was sought to hold the defendants for the com

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mon-law crime, without regard to Act March, the defendants did provide medical attend22, 1901 (P. L. p. 276), upon proof of failure ance, they must consider whether they proto provide medical attendance for a child seven years of age. Held, it was erroneous to charge vided this aid with the same diligence that that, as it had been proven that the defendants a reasonable and prudent person would have did provide medical attendance, the jury must done, and subsequently charged that, if they consider whether they provided this aid with the found that the defendants called in medical same diligence that a reasonable and prudent person would have done, and to charge that in aid as soon as a reasonable and prudent perthis case negligence, if it exists at all, is the son would have believed it to be necessary, failure to observe for the protection of the inter- the verdict must be not guilty, and toward ests of another person that degree of care, pre- the end of his charge defined negligence as caution, and vigilance which the circumstances justly demanded, failure to do what a reason the omission to do something which a reaable and prudent person would have done. sonable man, guided by those considerations

[Ed. Note.- For_other cases, see Homicide, which ordinarily regulate the conduct of huCent. Dig. § 585; Dec. Dig. § 285.*]

man affairs, would do, and that in this case (Syllabus by the Court. )

negligence, if it exists at all, is the failure Error to Court of Quarter Sessions, Bur- to observe, for the protection of the interests lington County.

of another person, that degree of care, preEdwin M. Watson and Mary Watson were caution, and vigilance which the circumstanconvicted of manslaughter, and they bring ces justly demanded, whereby others suffer error. Reversed.

injury-failure to do what a reasonable and Argued November term, 1908, before GUM- prudent person would have done. We think MERE, C. J., and SWAYZE and TRENCH- that the effect of this charge was to allow ARD, JJ.

the jury to infer that the defendants had Joseph H. Lefferts and Donald Lefferts, been grossly and culpably negligent if they for plaintiffs in error. Samuel A. Atkinson,

failed to furnish medical aid with the for the State.

promptness of a reasonable and prudent per

This ignores the distinction between SWAYZE, J. The defendants were con- such negligence as forms the basis of civil victed of manslaughter. The specific charge liability and that gross and more culpable was a failure to provide medical attendance negligence which is required at common law for their minor child, aged seven years. We to constitute a crime. The charge was theredo not find it necessary to consider the in- fore faulty as a definition of the commonteresting, and, in this state, novel question law offense. which was argued as to how far the religious The conviction cannot be sustained under belief of the defendants, who were Christian the statute, since the jury have had no opScientists, would excuse them. The case was portunity to find whether the neglect was tried, apparently, without regard to Act willful. The judgment must therefore be re March 22, 1901 (P. L. p. 276), which provides versed. that any person having the care, custody, or control of any minor child, who shall will

(77 N. J. L 380) fully neglect to supply the same with suffi

STAHL V. ROMANIAN YOUNG MEN'S cient food, clothing, and regular school edu

ASS'N. cation, or who shall willfully abandon or

(Supreme Court of New Jersey, March 1, neglect the same, shall be guilty of a mis

1909.) demeanor. Under a somewhat similar stat- MANDAMUS (8 125*)—REINSTATEMENT OF MEUute it has been held in England that the BER OF ASSOCIATION. religious belief of the parents was not a suffi- The circumstances of this case held sufficient defense. Queen v. Senior (1899) 1 Q. cient to justify award of an alternative man

dainus. B. 283. This act does not seem to have been

[Ed. Note. For other cases, see Mandamus, called to the attention of the trial judge, and Cent. Dig. $ 259; Dec. Dis: $ 125.*] he, therefore, did not put to the jury the

(Syllabus by the Court.) question whether the parents had willfully neglected the child. However strong the

Mandamus by Leon Stahl against the Roevidence may have been upon this point, the manian Young Men's Association. Alternadefendants were entitled to the verdict of a

tive writ awarded. jury thereon. Instead of submitting this

Argued November term, 1908, before GARquestion, the case was tried as arising under RISON, PARKER, and VOORHEES, JJ. the common law. The judge properly charg- Phillip J. Schotland, for respondent. ed in one part of his charge that the defendants could not be conyicted unless the jury PARKER, J. The relator is a member of found that they were guilty of culpable neg- the respondent society, and by its action was ligence, and in another part of the charge deprived of a vote and voice in its affairs he put to them the question whether the child for the period of one year less a day, and of died as the result of their being grossly neg. the right to hold office in the society for the ligent; but in other portions of the charge period of two years. He asks for a man. he told them that, as it had been proven that | damus to reinstate him in his full privileges,

TIES.

on the ground that the action of the society, case to justify this court in calling upon the was without warrant of law.

association to show cause why he should not The moving papers do not disclose the be so reinstated. An alternative mandamus facts in the case with satisfactory fullness. will therefore be awarded. The constitution and by-laws of the defendant society were not put in evidence, with the exception of certain extracts which were read at the time the depositions were taken. REGER et al. v. MADISON TP., MIDDLEThe story told by relator in his deposition is

SEX COUNTY, et al. different from that indicated by the minutes (Supreme Court of New Jersey. Feb. 23, 1909.) of the society which were read in evidence. It is conceded, however, that the relator was

1. HIGHWAYS (8 99*)-OPENING ESTABLISH

ED ROAD-DUTY OF TOWNSHIP AUTHORIchairman of a ball committee of the society, and in that capacity solicited and obtained It is no excuse for a township's failure to advertisements for a program, and, among open an established public road that there is no others, the advertisement of another order, such case it is the duty of the township com

fund or appropriation for the purpose, as in known as the Berith Sholem, for which the mittee to call out the inhabitants to perform the respondent society was to receive $5. The work. money did not come in, and relator was ask

[Ed. Note.-For other cases, see Highways, ed about it in meeting, and according to his Cent. Dig. § 325; Dec. Dig. $ 99.*] story explained that he had not been able to 2. HIGHWAYS (899*)-OPENING ESTABLISH

ED ROAD-DUTY OF TOWNSHIP AUTHORITIES. collect it and therefore had not turned it in,

If the duty of freeholders to build bridges but that, as soon as he did collect it, he for the purpose of an established road arises bewould turn it in. He claims that the action fore the road is opened, their failure to do so of the society in depriving him of his fran. cannot excuse the township committee for fail

ure to perform their duty to open the road. chise of vote and eligibility to office was bas

[Ed. Note.-For other cases, see Highways, ed upon this occurrence. The minutes tell a Dec. Dig. $ 99.*] somewhat different story, viz., that relator was accused of having accepted the adver

Mandamus by Louis Reger and another tisement without any specific contract for the against the Township of Madison, in the Counpayment of $5 or any other sum, and that an ty of Middlesex, and others. Peremptory writ investigating committee ascertained this by

ordered. inquiries from the Order Berith Sholem. It

Argued November term, 1908, before GUMappears, however, that afterwards the said MERE, C. J., and SWAYZE and TRENCHorder, through its representatives, stated ARD, JJ. that there had been a specific agreement,

Alan H. Strong, for relators. and that they would pay the money in due course, This statement, however, was not PER CURIAM. In this case an alternative made until after relator had been tried by an writ of mandamus was issued February 28, executive committee of his association upon 1908, requiring the defendants to open, clear some charges which are not definitely stated out, make, and work an unopened portion of in the case, and the action had been taken of a public road which had been laid out many which he complains here. It appears, how- years ago. The return alleges as an excuse ever, that there is no provision in the con- for the failure of the defendants to open the stitution or by-laws for the punishment of any road that it would cost $1,000, exclusive of class of offense to which the transaction in bridges, for which purpose there is no approquestion can be assigned; and, while the priation or balances in the hands of the regeneral rule is that the courts will not inter- spondents; that two running streams crossing fere in the conduct of these beneficial asso- said road will require the construction of ciations where any purely disciplinary meas- two bridges of considerable size and expense; ures are concerned, it seems to us that on and that the respondents are ready and willneither theory of the case can the action of ing to open the road as required in the writ the association be regarded as disciplinary. as soon as the money needed for the purpose For misbehavior at a meeting the by-laws can be lawfully raised and the board of chosprovide punishment by cumulative fines and en freeholders construct the required bridges. expulsion from the room, but there was no As far as concerns the first alleged excuse, disorderly conduct shown by any of the evi- we are concluded by the decision of this court dence so far submitted; nor does there seem in the case of Kinmouth v. Township of Wall, to have been any legal warrant for the pun- 73 N. J. Law, 440, 63 Atl. 861. As pointed ishment inflicted upon the relator, either by out by Mr. Justice Pitney in that case, if the the organic law of the association or by any township committee has no funds in hand, it principles of natural justice.

is its duty to perform the work of opening We do not think that the facts are so clear the road by calling out the inhabitants of the as to justify the award of a peremptory township for the purpose. So far as conmandamus reinstating him in his rights, but cerns the second alleged excuse, the failure we do think that he has made out a sufficient of the freeholders to perform their duty to build the bridges, if, indeed, that duty arises, the injury to plaintiff's property was the re before the road is open, cannot excuse town- sult of a negligent act of the defendant for ship committees for a failure to perform their which she is legally bound to indemnify the duty to open the road.

plaintiff. Let a peremptory mandamus issue.

The defendant also complains of the admission of testimony tending to show the cost

of further repairs; the plaintiff not having (77 N. J. L. 387)

completed the repairs required to put the BATES v. WARRICK.

building in the same condition in which it (Supreme Court of New Jersey. Feb. 23, 1909.) was at the time of the injury, because it did DAMAGES (8 111*)INJURIES TO BUILDING, not appear that the plaintiff intended to make MEASURE OF DAMAGES.

such further repairs. There is nothing in this In an action for damages to a building, if objection, nor does appellant undertake to the injury is so slight that it can be restored support it by any authority. The plaintiff to its original condition at a less cost than the amount of the depreciation in the value of the would be entitled to the damage she suffered property would be if no repairs were made, if she never made any repairs, for it is a and where the repairs will not enhance the question of damage, not of restoration. The value of the property beyond that it possessed defendant also insists that the evidence of at the time of the injury, the cost of restoring the house to the condition in which it was be- cost of repair should not have been admitted, fore the injury is the measure of the damages. because the true measure of damage is the

[Ed. Note.-For other cases, see Damages, depreciation in value resulting from the tresCent. Dig. $ 274; Dec. Dig. § 111.*]

pass. We are of opinion that in a case like (Syllabus by the Court.)

this, where manifestly the injury to a buildAppeal from District Court of Atlantic City. ing can be repaired without greater expense

Action by Martha E. Bates against Emma than the amount of depreciation in value Warrick. Judgment for plaintiff, and defend- would be if no repairs were made, the cost ant appeals. Affirmed.

of restoring the house to the same condition See, also, 69 Atl. 185.

it was in before the injury would be the measArgued November term, 1909, before REED, ure of damages (Hale on Damages 359); but BERGEN, and MINTURN, JJ.

aside from this the probable cost of repairs

required to restore the building to its former Thompson & Cole, for appellant. Stone & condition was a proper element to be considSchwinghammer, for appellee.

ered in ascertaining the diminution in value

of the realty. The injury in the present case BERGEN, J. The defendant, in making was slight, and there is no pretense that the repairs to the sidewalk in front of her prop- repairs enhanced the property beyond its valerty, found it necessary to remove a large ue at the time of the injury, and it also aptree standing thereon near the house of the pears that the building was not ava ilable plaintiff, and employed a competent person to without the repairs. Under such conditions fell it. There was a wire running from the the cost of the repairs was some evidence of house of defendant to the tree, so attached to depreciation in value. each as to throw the falling tree against plain- The judgment should be affirmed. tiff's house, causing the injuries for which this action was commenced. Plaintiff recoy

(77 N. J. L. 334) ered a judgment, from which defendant ap

HANSEN V. MAYOR, ETC., OF JERSEY peals.

CITY. The workman was called as a witness by (Supreme Court of New Jersey. Feb. 23, 1909.) the plaintiff, and, after describing what he

MUNICIPAL CORPORATIONS (8 186*)–POLICE did, said that he "was as careful as a man OFFICER-COMPENSATION. could possibly be." The defendant insists Plaintiff, as a member of the police departthat the plaintiff is bound by this statement ment of Jersey City, was serving as detective because made by a witness called by her. The and assigned to duty as a patrolman; the salary

sergeant, from which position he was removed statement is nothing more than a conclusion of the latter position being less than that of drawn by the witness, and would have no the former. He served as patrolman, and was weight if not supported by the testimony. and it being determined, in proceedings insti

paid the compensation incident to that office, There was testimony from which a jury might tuted by the plaintiff for that purpose, that his infer that the work was not carefully done, transfer from one position to another in the and the defendant does not deny that she had same department of the public service at a low. knowledge of the fact that the wire was fas

er salary was unlawful, he brought suit to re

cover the salary incident to his former position tened to her house and the tree; and, as she for the period of time he served as patrolman. knew the tree was to be cut down, it was her Held, that the money paid him by the city for duty to have the wire removed. Otherwise services as patrolman was properly credited the tree could not fall away from the build- against the amount sought to be recovered.

[Ed. Note.-For other cases, see Municipal ings, and its presence was likely to produce Corporations, Cent. Dig. $8 514, 515; Dec. Dig. the result complained of. The proofs in the $ 186.*] case are sufficient to support the finding that (Syllabus by the Court.)

Appeal from District Court of Jersey City., public office to the extent that under all

Action by Joseph Hansen against the May- circumstances a de jure officer may recovor and Aldermen of Jersey City. Judgmenter whether he performs the duties of the offor defendant, and plaintiff appeals. Affice or not is not always recognized. In firmed.

Dolan v. Mayor, 68 N. Y. 274, 23 Am. Rep. Argued November term, 1908, before 168, suit was brought by a de jure officer REED, BERGEN, and MINTURN, JJ. against the city to recover the salary incideut

Merritt Lane, for appellant. John Milton, to the office from which he had been excludfor appellee.

ed by one who entered under color of title,

and to whom a part of the consideration had BERGEN, J. The plaintiff was a mem- been paid by the authorized disbursing officer ber of the police force of Jersey City, hold of the city. Under these circumstances, it ing the position of detective sergeant at a

was held that the de jure officer could only salary of $112 per month. From this posi- recover from the city so much of the comtion he was removed by the municipal au- pensation incident to the office as bad not thorities and assigned to the position of act- been paid the de facto officer; that the city ing patrolman, the compensation for which had a right to rely, in the payment of salawas $66 per month. He served in this ca- ries, 'upon the apparent title, and to treat pacity for four months, when, by virtue of one clothed with it as a de jure, although it an order of the Supreme Court, he was re- afterwards appears he is only a de facto, stored to his former position, and thereupon officer. The decision was largely rested upon brought suit to recover the full compensa- the ground of public policy, which requires tion incident to the office of sergeant, with that public offices should always be filled so out allowing credit for the money paid him that at all times persons may be found ready for services as patrolman. The trial court and competent to exercise official powers allowed his claim for salary as sergeant and and duties, because, if the public authori$42.50 paid for patrolman's uniform, no uni- ties could not pay the salary of the office to form being required for the office of detec- the de facto officer except at the peril of pay. tive sergeant, but deducted from such allowing it a second time, the public service would ance the sum paid the plaintiff while he serv- be embarrassed and its efficiency impaired. ed as patrolman. If it had appeared in this Thus, according to the case just referred case that there was a de facto officer filling to, the right to recover from a municipality the plaintiff's position as detective sergeant compensation incident to an office does not who had been paid the compensation incident in every case follow the legal title to the ofto that office during the period of such serv- | fice. In this state it has been held that an ices, or which he might recover from the city action by a de jure to recover from a de under the rule established by the Court of Er- facto officer compensation incident to an ofrors and Appeals in Erwin v. Jersey City, 60 ice which has been paid to the de facto N. J. Law, 141, 37 Atl. 732, 64 Am. St. Rep. officer cannot be maintained where the in584, it would be a debatable question wheth- truder came into office without dishonesty or er the plaintiff would be entitled to recover fraud. Stubr v. Curran, 44 N. J. Law, 181, anything from the city unless the intruder 43 Am. Rep. 353; Erwin v. Jersey City, sucame into office by fraud or without color of pra. In the latter case it was determined by title, but this question is not raised by the our Court of Errors and Appeals that a de record in this case and is not passed upon, facto officer may recover from the city the the city not having appealed from the judg-compensation incident to the office, if he enment below, and the only question raised ters under a prima facie right without fraud, and to be considered is whether, assuming and thereafter performs the duties required that the plaintiff was entitled to the compen- of the person filling such office. The declarasation of the office from which he was ex- tion in the case now under review contains cluded during the time he was prevented the common counts only, and there is no spe from performing the duties of such office, it cial count for salary due as an incident to was proper to deduct therefrom the amount office, and it is doubtful whether under this paid him by the city for his services in an- declaration the plaintiff could recover other other branch of the same department of the than for labor performed, for which it is adcity's administration.

mitted he has been paid. The claim of the plaintiff, the appellant But, assuming that the declaration correcthere, is that the right of an officer to the ly states the cause of action which the plainsalary of his office does not rest upon a con- tiff now insists upon, it would show that the tract between himself and the city, but is plaintiff was a member of the police force an incident of that office which he is en- of Jersey City; that as such member he had titled to recover, without deduction, notwith- been appointed to the office of detective serstanding, during the period he seeks to geant at a salary of $112 a month; that he recover for, he served as a member of the had been unlawfully deprived of that office police department in another capacity and for a period of four months and assigned to was paid for such services by the city. The another office on the police force the salary doctrine that the right to compensation is an of which was $66 a month, and has also been

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