of the poles. He said he didn't see anything. The Court of Errors, in Central R. R. v. Smalley, 61 N. J. Law, 277, 39 Atl. 695, has laid down the rule that the duty of a traveler in crossing a railroad to look and listen must be performed by doing those things which will make its performance reasonably effective. Therefore the plaintiff, with a view of over an eighth of a mile, must be held to have contributed to the accident by proceeding to cross without observing the approaching train, for a proper observation must have revealed it. Diele v. Erie R. R., 70 N. J. Law, 138, 56 Atl. 156; Beeg v. N. Y. S. & W. R. R., 70 N. J. Law, 56, 56 Atl. 169; Winter v. N. Y. & L. B. R. R., 66 N. J. Law, 677, 50 Atl. 339; Van Riper v. N. Y. S. & W. R. R., 71 N. J. Law, 345, 59 Atl. 26.

The raising of the gates did not excuse him from exercising this caution, for it has been held that the neglect to give warning by a railroad of the approach of a train to a highway crossing, when even so gross as to amount to a declaration that the way is safe for travelers, does not absolve a person about to cross the tracks from the duty of making an independent observation. Swanson v. Central R. R. Co. (Ct. Err. & App.) 63 N. J. Law, 605, 44 Atl. 852. The clear weight of evidence is that the view was unobstructed, and that the plaintiff contributed to the accident by his negligence.

The defendant's counsel requested the court to charge the jury that if they find that the plaintiff's negligence is shown by a preponderance of the evidence they need go no further and a verdict should be found for the defendant, provided that negligence contributed to the accident. This the court refused to do. It was a sound proposition of law, and should have been charged.

The rule will be made absolute, and a venire de novo awarded.

(77 N. J. L. 101) QUAGLIANA v. JERSEY CITY, H. & P. ST. RY. CO.

(Supreme Court of New Jersey. Nov. 9, 1908.) 1. CARRIERS (§ 318*)-INJURIES TO PASSEN

GER.

The first reason relied upon in this case for new trial is that the verdict was against the weight of the evidence, and was not sustained in point of fact.

[Ed. Note. For other cases, see Carriers, Dec. Dig. § 318.*]

2. NEW TRIAL ($ 96*)-ABSENCE OF WITNESS.

A new trial will not be granted on account of surprise in the absence of a witness, where reasonable diligence was not used by the applicant to procure his attendance, and where his absence was not due to the improper conduct of the prevailing party.

[Ed. Note. For other cases, see New Trial, Cent. Dig. § 192; Dec. Dig. § 96.*]

(Syllabus by the Court.)

Action by Giachino Quagliana against the Jersey City, Hoboken & Paterson Street Rail

way Company. Verdict for defendant. Rule to show cause discharged.

Argued June term, 1908, before GUMMERE, C. J., and TRENCHARD and MINTURN, JJ. ཛཱནཾ !

Vredenburgh, Wall & Carey, for plaintiff. Leonard J. Tynan and Howard MacSherry, for defendant.

TRENCHARD, J. This action was brought by the plaintiff to recover compensation for injuries to his foot, alleged to have been caused by reason of his being thrown from and run over by a trolley car of the defendant company as he was attempting to board the car. The trial at the Essex circuit resulted in a verdict for the defendant. The plaintiff was allowed this rule to show cause why the verdict should not be set aside.

The first contention of the plaintiff is that the verdict was contrary to the weight of the evidence. There is no merit in this contention. The story of the plaintiff, that the car had come to a standstill, and, as he was in the act of boarding it, the car suddenly started forward, is corroborated by only one witness. On the other hand, the contention of the defendant company is that the car in question was bound south toward Hoboken, and on approaching a junction it stopped 25 or 30 feet north of the same in compliance with the rule requiring cars to stop before crossing intersecting tracks; that this stop was only momentary; that the car started up again, and then a large crowd of Italians and others, of whom the plaintiff was one, who were standing on the south side of the junction, rushed towards the car, and that the plaintiff, who was among them, in attempting to board the moving car when it was partly across the intersecting tracks, in some way fell, and either his foot was injured by the car wheel, or caught in some part of the intersecting tracks, and was so injured that it became necessary to amputate it. This account of the accident, as given by the defendant company, is corroborated by several witnesses. The verdict was therefore not contrary to the weight of the evidence.

The next contention of the plaintiff is that one Bagley, a material witness for the plaintiff, was influenced by the defendant to absent himself from the trial, and that his absence justifies this court in granting a new trial. Misconduct of the prevailing party or his attorney in inducing a witness to absent himself from the trial is ground for a new trial. Carey v. King, 5 Ga. 75; Barron v. Jackson, 40 N. H. 365; Crafts v. Union Mut. F. Ins. Co., 36 N. H. 44. But the misconduct must be clearly established. Marsh v. Monckton, 1 Tryw. & G. 34. The affidavits in this case, taken in pursuance of the rule, do not disclose misconduct upon the part of

the defendant or its attorney. It appears that both sides desired to use Bagley as a witness. He was subpoenaed by the defendant, but not by the plaintiff. When he ap peared at the office of the attorney of the defendant at about 10 o'clock in the morning of the day of trial he was intoxicated, and because of his condition was informed that he was not needed that day, but was requested to be in court the next following morning. The plaintiff voluntarily moved his case notwithstanding the absence of the witness. The action upon the part of the defendant's attorney in excusing the witness was, we think, in good faith and evinces no misconduct on his part. The controlling reason why the plaintiff did not have the benefit of Bagley's testimony was that he had neglected to subpœna him. A new trial will not be granted because of the absence of a witness due to the negligence of the applicant. Sherrard v. Olden, 6 N. J. Law, 344; 29 Cyc. 872.

Let the rule to show cause be discharged, with costs.

(77 N. J. L. 59)

STURM v. HUCK.

(Supreme Court of New Jersey. Nov. 9, 1908.) 1. LANDLORD AND TENANT (§ 124*)—Lease of BEDROOM.

A lease of a bedroom does not carry with it, as a necessary incident, a right to a supply of water.

[Ed. Note.-For other cases, see Landlord and Tenant, Dec. Dig. § 124.*]

2. LICENSES (8 44*)-REVOCATION.

Where a landlord demises a bedroom, and permits the tenant to obtain water from other rooms in the house, such permission is a mere revocable license, and vests no legal right.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. § 98; Dec. Dig. § 44.*]

(Syllabus by the Court.)

Appeal from District Court of Hoboken. Action by Wendelin Sturm against William Huck. Judgment for plaintiff, and defendant appeals. Reversed.

Argued June term, 1908, before GARRISON, SWAYZE, and PARKER, JJ.

John Griffin, for appellant. Frederick Dieffenbach, Jr., for appellee.

SWAYZE, J. The plaintiff was tenant of the defendant, under a lease which described the premises demised as "all the front bedroom on the top floor of the house known as No. 111 Zabriskie street, in said city of Jersey City, and the shop in the rear of said house." It was proved at the trial, over the defendant's objection, that at the beginning of the tenancy, and for several years thereafter, the plaintiff used to go into other rooms of 111 Zabriskie street, and take water from them into the room described in the lease; and that after October 23, 1907, the

defendant refused to allow the plaintiff to obtain water as before. The trial judge conceived that this constituted an unlawful interference with the plaintiff's rights in the bedroom, and gave judgment in his favor. The lease makes no mention of appurtenances, but we think the case need not be rested on that fact. We know of no rule of law that obliges a landlord, in the absence of express agreement, to supply water to tenants. The precise question has arisen in Massachusetts and Rhode Island, and been decided adversely to the tenant. Leighton v. Ricker, 173 Mass. 564, 54 N. E. 254; Sheldon v. Hamilton, 22 R. I. 236, 47 Atl. 316, 84 Am. St. Rep. 839.

A somewhat similar question was before our court of chancery in Oliphant v. Richman, 67 N. J. Eq. 280, 59 Atl. 241. In that case the lease was of a lot at the edge of a mill pond, with the privilege of building and maintaining an icehouse thereon, which was to be used for no other purpose than an icehouse. It was the custom of the lessee, for several years, to fill the house from the lessor's pond. It was held that the taking of the ice amounted to no more than a license; and the lessee was enjoined from the cutting and removing it. In the present case, the plaintiff argues that water is so essential to the use of a bedroom that the right to take it passes as a necessary incident, and cites Hill v. Schultz, 40 N. J. Eq. 164, as authority; but in that case it was held that the right to have a platform retained in a horizontal position on the street to enable customers to approach a show window was not a necessary incident to the use of the demised premises.

A supply of water to a bedroom is no more necessary than a supply for a dwelling house, or than heat, light, furniture, or bedding; all alike are commodities, with which the tenant must supply himself in the absence of an agreement to the contrary with his landlord.

The fact that the plaintiff was allowed for some years to obtain water from other rooms in the house, being at best a mere license and so indefinite in character that it would be impossible to determine its precise extent, invested the tenant with no legal right. Let the judgment be reversed, and the rec ord remitted for a new trial.

(77 N. J. L. 184)

WALLACE v. HAINES. (Supreme Court of New Jersey. Nov. 9, 1908.) MASTER AND SERVANT (§ 219*) - INJURY TO SERVANT-ASSUMPTION OF RISK.

A drum, part of a laundry mangle, was revolving rapidly towards a rigid rod which extended across the machine parallel with, and about one inch from, the drum. The plaintiff was employed as a laundress, in which service it was her duty to see that the machine was supplied with the materials to be laundried. The drum was carrying a fabric towards the

rod, between which and the drum it was passing, and the plaintiff placed her hand upon the drum in trying to remove a fold in the fabric. The rapid motion of the drum carried plaintiff's hand to and under the rod, causing the injury for which suit was brought. The machine was not defective, and the plaintiff, having worked with mangles of similar character, was familiar with the construction and operation of the machine causing the injury. Held, that the danger of having her hand drawn under the rod, if she put it on the revolving drum, was an obvious one, the risk of which plaintiff had assumed.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 616; Dec. Dig. § 219.*] (Syllabus by the Court.)

Error to Circuit Court, Atlantic County. Action by Anna C. Wallace against Newton Haines. Judgment for plaintiff, and defendant brings error. Reversed.

Argued June term, 1908, before REED, BERGEN, and VOORHEES, JJ.

C. L. Cole, for plaintiff in error. J. J. Crandall, for defendant in error.

BERGEN, J. At the close of the plaintiff's case it appeared that she, while in the employ of defendant as laundress, was injured by a mangle, which is a machine used in the work she was employed to do; that the parts of the machine causing the injury were a revolving heated drum, and a small rigid metal rod extending from one side of the mangle to the other parallel with, and about one inch from, the drum; and that the injury was caused because, in trying to straighten a fold in the fabric which was being carried on the drum, her hand was caught between the drum and rod, and so seriously burned as to require its amputation. There was no evidence that the machine was defective; for, although there was some evidence that the rod was not equally distant along its whole length from the drum, that evidence was on plaintiff's motion stricken out, and all that remained to go to the jury was the fact that with a drum rapidly revolving towards a metal rod, with but the space of an inch between the drum and rod, the plaintiff put her hand on the drum to remove a fold in the fabric which was being carried on it between the drum and rod, and that in so doing her hand was carried with the drum and caught between it and the rod. We are of opinion that such a result was the obvious consequence of her act, and that the case falls directly within the rule laid down by the Court of Errors and Appeals in Mika v. Passaic Print Works (recently decided) 70 Atl. 327, and the refusal to grant the motion for a nonsuit made by the defendant at the close of plaintiff's case was an error which requires the reversal of this judgment. The charge to the jury discloses that there was no disputed question of fact submitted. Certain legal principles were stated, which if applied to the undisputed facts entitled the defendant to a favorable direction.

The judgment is reversed, and a venire de novo ordered.

For damages suffered by him as the result of the injuries to his wife, the husband of the plaintiff, Campbell Wallace, brought his suit and recovered a judgment against this defendant, which was removed to this court by a writ of error, and, as his right to recover rested upon the same facts, the cases were argued together. We have determined that the proofs did not support the judgment in favor of the wife, and the conclusion in that case controls the result in the action brought by the husband.

The judgment in that case is also reversed, and a venire de novo ordered.

(77 N. J. L 110) ALCOTT v. PUBLIC SERVICE CORPORATION OF NEW JERSEY. (Supreme Court of New Jersey. Nov. 16, 1908.) STREET RAILROADS (§ 86*)-INJURY TO TRAVELER EVIDENCE.

The fact that plaintiff's wagon wheel caught in a switch device, whereby plaintiff was thrown and injured, will not ipso facto furnish the basis for a verdict against defendant, where the latter presented uncontradicted exculpatory proof that the switch was of standard pattern and in general use, and that it was properly laid and inspected.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 185; Dec. Dig. § 86.*] (Syllabus by the Court.)

Error to Circuit Court, Camden County.

Action by Charles M. Alcott against the Public Service Corporation of New Jersey. Judgment for plaintiff, and defendant brings error. Reversed.

Argued June term, 1908, before the CHIEF JUSTICE and TRENCHARD and MINTURN, JJ.

E. A. Armstrong, for plaintiff in error. John W. Wescott, for defendant in error.

MINTURN, J. The plaintiff was driving a loaded wagon on Broadway, between Walnut and Newton avenues, in Camden, in April, 1906. He had frequently driven over the same route, and was familiar with the locality. Upon this occasion, as he approached a cross-over, used by defendant company as part of its track system to switch cars to an adjoining track, he turned to the right with the view of leaving the track for the purpose of passing a team ahead of him. Instead of leaving the track, however, his wheels skidded or slid along the track until one of the wheels came in contact with what is called "the mate" in the switching device, at which point the wheel became locked and the wagon suddenly stopped, throwing the plaintiff from his seat, causing him the injuries which form the basis of this suit.

The writ of error is directed mainly to the exceptions to the refusal of the court to

BERGEN, J. The prosecutor, as one of the taxing districts of the county of Hudson, applies for a writ of certiorari to review the proceedings of the Hudson county board of taxation fixing the quota of taxes to be raised by the prosecutor. The principal reason urged for the allowance of the writ is that the relator increased the valuations of real estate, as contained in the duplicate of ratables of the town of Union, to the extent of 5 per cent., but made no change in the assessments against personal property. The record sought to be reviewed discloses that the county board of taxation, by resolution, declared that the value of the real estate as assessed in the duplicate to certain owners therein named was "relatively less than the value of the other property in the county," and the assessor was directed to amend his duplicate by increasing the taxable valuation to the extent indicated by the county board. It further appears that, having adjusted the relative values of all of the real estate, it then determined that its true value was 5 per cent. less than it should be, and, by resolution, required the assessor to add that percentage to the total amount of the real estate as valued and assess it proportionately to each parcel contained in the duplicate. The duty of the county board of taxation is declared to be to secure the taxation of all property at its true value, and it is given the supervision and control of all the assessors and other officers charged with the duty of the assessment of taxes; to view and inspect, as far as possible, the various assessed properties in the different taxing districts in their respective counties, and to make revision and correction after such view and inspection; to increase or decrease the assessed value of any property not truly valued; and to add to the duplicates any property which has been omitted, "and in general to do and perform all acts and things necessary for the valuation of all property in said county equally and at its true value," and it is also charged with the duty of reviewing taxes on appeal. P. L. 1906, p. 210. It thus appears that under the statute referred to the county board of taxation has the power to correct and revise the value of all taxable property, and to require the respective assessors to amend their duplicates or lists of taxable property so that they conform to the values fixed by the board, and it is our opinion that, unless the county board of taxation violate some legal principle in making the assessments, its action is not reviewable by certiorari on the application of a taxing district or of an individual, because in performing that duty they are merely aiding the assessors in arriving at the true value of the respective properties in the taxing district, and a mistake in valuation is only an error of judgment which each taxpayer may have corrected by the board of equalization

of taxes, as provided in the act establishing such board (P. L. 1905, p. 123), section 3 of which act provides that if upon complaint of any taxing district it shall appear that any other taxing district is, by inequality of valuation or otherwise, avoiding or escaping its fair share of the common burden, the board shall cause investigation to be made, and shall render such aid and assistance as it may be able to give for the purpose of arriving at a fair and equitable adjustment of values, and, among other things, it has the power, if it shall appear that the assessment of any property is greater than the true val ue thereof, to reduce said assessment to that amount.

In the case under consideration we find nothing illegal in the principle adopted, and, if the result produces an excessive valuation in any instance, the property owner has his appeal, first, to the county board, and, second, to the state board. The statute last referred to requires the state board, upon appeal of any taxing district or an individual, to evidence its determination by a judgment duly signed by at least three of its members and filed with its clerk. And in a proper case a writ may be applied for to review that judgment.

We find nothing in the present case which justifies the allowance of the writ, and the application for it is therefore denied.

(77 N. J. L. 207)

In re LANG. (Supreme Court of New Jersey. Nov. 9, 1908.) CRIMINAL LAW (§ 981*)—INSANITY AFTER CON

VICTION.

Section 13 of "An act concerning the commitment of insane persons into institutions for the cure and treatment of the insane of this state, their confinement therein and their support while so confined," provides that "if any person in confinement under commitment, indictment or sentence or under any other process, shall appear to be insane," a judicial inquiry shall be had, and, if insanity be found, such person shall be committed to an asylum until restored to reason, etc. P. L. 1906, p. 722. Held that, in the case of one convicted of murder in the first degree and sentenced to death, the statute does not alter the common-law rule inat to prevent the execution of such sentence the insanity must be of such character as to render the prisoner incapable of understanding the nature of the proceedings against him, and his impending fate and execution.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2497; Dec. Dig. § 981.*] (Syllabus by the Court.)

Certiorari to Court of Common Pleas, Middlesex County.

In the matter of the alleged insanity of Frederick Lang. Verdict finding him sane, and he brings certiorari. Order affirmed.

Argued June term, 1908, before GARRISON, SWAYZE, and PARKER, JJ.

Allan H. Strong, for prosecutor. George Berdine, opposed.