plain sight, it was held that, if the master was negligent in failing to instruct the servant in the operation of the machine, the injury was not due to such neglect, for both servant and master had equal means of forming a correct judgment of the danger.

Error is also assigned upon that portion of the charge of the court declaring, "Where persons without experience in the use of machinery of a dangerous character are employed, it is the duty of the employer to give notice and warning against these dangers to which the employé is exposed." This is too broad. Inexperience must have come either actually or by inference to the knowledge of the master, and then the dangers to be warned against must be such as the employé is not reasonably expected to know, or as are not obvious to him.

and south, and contains one car track on which the car in question was moving northwardly. Twelfth street runs at right angles to Clinton street, and through this the cab, driven by "a certain youth" named Vietheer, was proceeding in an easterly direction. The case was tried without jury, and a stenographic transcript is certified on this appeal as a state of the case, pursuant to P. L. 1905, p. 259. In addition to this, the district court has certified, pursuant to rule of this court, certain findings of fact on the evidence taken at the trial. Only two of these findings are challenged. They are as follows:

(6) The plaintiff's cab driver, when he saw that the motorman of the car was not going to respect his right to cross first, tried to stop his cab and allow the car to pass.

(7) Owing to the absence of warning sig

(77 N. J. L. 217)

LAVIN v. PUBLIC SERVICE RY. CO. (Supreme Court of New Jersey. Nov. 9, 1908.) 1. APPEAL AND ERROR (§ 1010*) - REVIEW EVIDENCE.

Appeals from district courts being limited to questions of law, this court will not, on such appeal, review a finding of fact if there is any legal evidence on which such finding may be supported.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3979; Dec. Dig. § 1010.*] 2. APPEAL AND ERROR (§ 204*)-REVIEW-OBJECTIONS NOT MADE BELOW.

Nor will the admission of illegal evidence be reviewed when no valid objection was made at the trial.

[Ed. Note. For other cases. see Appeal and Error, Cent. Dig. §§ 1258, 1259; Dec. Dig. § 204.*]

3. APPEAL AND ERROR (§ 1078*)-OBJECTIONS WAIVED.

Grounds for reversal not discussed in either argument or brief will not be considered. [Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 4256-4261; Dec. Dig. § 1078.*]

(Syllabus by the Court.)

Appeal from District Court of Jersey City. Action by Bridget Lavin against the Public Service Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Edwards & Smith, for appellant. Samuel A. Besson, for appellee.

PARKER, J. The district court judgment brought up by this appeal was for damages sustained by plaintiff because of injury to her cab, horse, and harness growing out of a collision with a trolley car operated by defendant, and which collision took place at the intersection of Clinton street and Twelfth street, in Hoboken. Clinton street runs north

car was moving, although the plaintiff's cab driver exercised reasonable precautions to avoid the collision by trying to stop his cab when he saw the latter was not going to respect his right to cross the track first, the collision was unavoidable.

If there was any evidence capable of supporting these findings, they cannot be reviewed here, the statute already cited giving an appeal on questions of law only. N. Y. & N. J. Telephone Co. v. Connelly, 69 N. J. Law, 182, 54 Atl. 219; Phelps v. Seymour, 70 N. J. Law, 626, 57 Atl. 129; Skidmore v. Johnson, 70 N. J. Law, 674, 675, 57 Atl. 450; Burr v. Adams Express Co., 71 N. J. Law, 263, 58 Atl. 609; Hanson v. P. R. R., 72 N. J. Law, 407, 60 Atl. 1101; Dale v. See, 51 N. J. Law, 378, 381, 18 Atl. 306, 5 L. R. A. 583, 14 Am. St. Rep. 688. The driver testified as follows: "Q. Could you stop? A. No, sir; I tried to. I tried to do the best I could, and when I tried to swing to one side and I started to swing he came up against me and hit me right in the back." It is true that a good deal of the testimony of this witness tends to show that he attempted to get across in front of a car that was only a few feet away and approaching rapidly; but the court sitting as a jury was entitled to infer from his testimony that he tried to stop, but seeing he was certain to be struck if he did, then tried to turn up Clinton street parallel with the car. This disposes of the attack on finding No. 6.

Finding No. 7 depends in part on findings Nos. 3, 4, and 5, which appellants concede are proper. They are to the effect that the car was going at high speed, and that no bell was rung or warning signal made; that the cab reached the crossing first; and that the motorman did not respect the right of the cab driver to cross the street first. pellants say the evidence demonstrates conclusively that the driver attempted to cross after it appeared that his right to cross first would not be respected, thus bringing this

Ap

case within the line of decisions typified in Earle v. Consol. Trac. Co., 64 N. J. Law, 573, 46 Atl. 613. We think it was inferable from his testimony that he recognized and attempted to exercise his right of crossing, assuming that the car was properly equipped with braking appliances and a careful motorman and did not observe until too late that the motorman "could not control the brakes." His testimony was quite contradictory, but would support this inference-on such an inference, finding No. 7 was proper. This leads to the conclusion that the nonsuit asked for was properly denied.

The other point urged by the appellant is that an item of $30 for repairing was allowed in fixing the damages, which was based on illegal evidence. Plaintiff was allowed to testify that she had received an estimate from a painter who named this amount as the cost of repainting, the work not having been done. This comes clearly within the ruling in Arata v. Sullivan, 63 N. J. Law, 46, 42 Atl. 839, and it would have been legal error to admit the evidence if seasonable objections had been interposed; but no objections of any kind were made at the time. At the conclusion of the trial defendant's attorney requested the court to disregard this $30 item, but only on the ground that the work had not been completed. That fact would not render it incompetent. Were this the law, plaintiff would have to repair damages and wait for the conclusion of repairs before being in a position to prove what damages had been sustained.

One or two other points were raised at the trial, and are assigned as causes for reversal, but there was no oral argument, and no mention of these points is made in appellant's brief. They have, therefore, not been considered. Hanson v. Penna. R. R., 72 N. J. Law, 407, 60 Atl. 1101.

The judgment will be affirmed.

(77 N. J. L. 89)

DURBROW v. HACKENSACK MEADOWS CO. et al.

(Supreme Court of New Jersey. Nov. 9, 1908.) 1. EVIDENCE (§ 164*)-BEST AND SECONDARYRESOLUTION OF CORPORATION.

If a resolution passed at a meeting of the board of directors of a corporation was correctly recorded, then the minutes afford the best evidence as to the contents of the resolution, and none other will be received when the minutes are at hand. If the correctness of the minutes is to be attacked, it is necessary first to offer them for that purpose.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 546, 547; Dec. Dig. § 164.*] 2. CORPORATIONS (§ 410*) OFFICERS AND AGENTS-SCOPE OF AUTHORITY.

A resolution of a board of directors of a land company authorizing an agent to execute on behalf of the company agreements for the sale of its property does not empower the agent to make a contract which is not for the sale of

property, and is entirely outside of the ordinary course of its business.

[Ed. Note. For other cases, see Corporations, Dec. Dig. § 410.*]

3. EVIDENCE (§ 185*)-BEST AND SECONDARYDEMAND FOR PRODUCTION OF ORIGINALNECESSITY.

Where, by the presumption of law, a contract is in the hands of the adverse party, secondary evidence as to its contents will not be received in the absence of any demand upon the adverse party to produce the original.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 642; Dec. Dig. § 185.*]

4. EVIDENCE (§ 182*)-BEST AND SECONDARYPROOF OF EXECUTION.

The nonproduction, under demand, of a contract, the existence of which was denied, will not justify proof of its contents by secondary evidence without first proving its existence and due execution.

[Ed. Note.-For other cases. see Evidence, Cent. Dig. § 604; Dec. Dig. § 182.*]

(Syllabus by the Court.)

Action by William Durbrow against the Hackensack Meadows Company and another. Plaintiff was nonsuited, and thereupon applied for a rule to show cause why the same should not be set aside and a new trial granted. Rule discharged.

Argued June term, 1908, before GUMMERE, C. J., and TRENCHARD and MIN. TURN, JJ.

Northrop & Griffiths and William D. Edwards, for plaintiff. Collins & Corbin, for defendant Hackensack Meadows Co. Marshall Van Winkle, for defendant Arthur L. Meyer.

TRENCHARD, J. The plaintiff in this suit seeks to recover from the defendants, the Hackensack Meadows Company and Arthur L. Meyer, compensation for bringing about an arrangement between the Hackensack Meadows Company and the Federal Contracting Company whereby the latter company filled in land of the Meadows Company with soil taken from the bottom of the New York Bay. The plaintiff's claim was that he was authorized to make this arrangement, if he could, and was promised compensation by Meyer, on behalf of the Meadows Company, in case he succeeded. At the trial at the Hudson circuit there was no evidence showing any authority on the part of Meyer to bind the company in making this arrangement, nor any other evidence upon which liability could be rested, and a nonsuit was directed by the court. Whereupon the plaintiff applied to the trial judge for, and was allowed, a rule to show cause why the judgment of nonsuit should not be set aside and a new trial granted.

The contention in this court is that there was a failure of proof only because the trial judge overruled testimony offered which would have shown authority originally conferred on Meyer to bind the company, or

else a ratification of his act. In order to show such authority in Meyer, the plaintiff first attempted to prove by the witness Elwell that at a meeting of the directors of the Meadows Company at which the witness was present, although not a director, a resolution was passed appointing Meyer general manager with power to bind the company. This testimony was properly overruled as not the best evidence. If the resolution was correctly recorded, then the minutes afforded the best evidence as to its contents, and none other was competent in view of the fact that the minutes were at hand. If the correctness of the minutes was to be attacked, it was necessary first to offer them for that purpose. Van Hook v. Somerville Mfg. Co., 5 N. J. Eq. 137; 26 Amer. & Eng. Enc. of L. (2d Ed.) 1005. For the same purpose the plaintiff also attempted to prove by the same witness the adoption by the directors of the company of a resolution authorizing Meyer to execute on behalf of the company agreements for the sale of its property. We incline to think that this testimony was in a like position, and therefore also was properly overruled for the reasons already indicated, but, however that may be, the resolution contained no authority to Meyer to make the contract in question, which was not for the sale of property, and was outside of the ordinary course of the business of the company. 10 Cyc. 924.

The plaintiff next offered to prove, by the witness Elwell, the terms and provisions of a contract alleged to have been made in writing between the Meadows Company and Meyer "relative to the compensation that he was to receive, and the duties he was to perform, as general manager of the company." This testimony was properly excluded for two reasons: First. The writing, if it existed, and had been duly executed, was presumed to have been in the hands of either one or the other of the defendants. The plaintiff by the rule of law was required to make his proof of the contract by the highest evidence which, under the circumstances of the case, the law presumed to be, or ought to be, in his power. He called on the Meadows Company to produce it. They denied having any such contract, and, in effect, denied its existence. He should then have called upon the defendant Meyer to produce it. This he did not do. Until that was done secondary evidence of the contents of the paper was inadmissible. Den v. McAllister, 7 N. J. Law, 46. Secondly. The offer was made without previous proof of the existence and due execution of the contract. The nonproduction, under demand, of a contract, the existence of which was denied, will not justify proof of its contents by secondary evidence without first proving its existence and due execution. 17 Cyc. 536. For the evident purpose, although not so stated, of proving

a ratification by the company of Meyer's aileged agreement with the plaintiff, the latter next attempted to prove by the witness Elwell what action was taken by the board of directors of the Meadows Company with respect to a "bill from Mr. Durbrow." As herein before remarked, Elwell's testimony was not the best evidence of what occurred at the directors' meeting; that should have been shown by the minutes. It does not appear that the question was asked for the purpose of disproving an entry in the minutes, nor to supply an omission therein. The evidence was therefore properly overruled.

The whole case discloses no evidence upon which a judgment for the plaintiff could have been rested, and hence the nonsuit was properly directed.

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

(77 N. J. L. 61) BRYANT, Commissioner of Labor, v. N. Z. GRAVES CO. (Supreme Court of New Jersey. Nov. 9, 1908.) OFFICERS (113*)-OBSTRUCTING IN PERFORMANCE OF DUTIES.

In the trial of an action to recover a penalty, under section 26, Act 1904 (P. L. p. 160), for obstructing and hindering the inspectors of the Department of Labor while in the performance of their duties, it appeared that two inspectors applied at the office of the defendant; that the door of the office was locked, but some one within told them to go to the gateman. They went to the gateman, told him who they were, handing him a card upon which was the official position of the one inspector and showed him the official badge. The gateman refused to admit them. Held, that from the testimony the jury might have inferred that the unexplained act of the gateman was the act of the defendant, and so raised a prima facie case to go to the jury, and that a nonsuit was error. [Ed. Note.-For other cases, see Officers, Dec. Dig. § 113.*]

(Syllabus by the Court.)

Appeal from District Court of Camden.

Action by Lewis T. Bryant, Commissioner of Labor of New Jersey, against the N. Z. Graves Company, to recover a penalty. Judgment for defendant, and plaintiff appeals. Reversed.

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

Nelson B. Gaskill, Asst. Atty. Gen., for appellant. John W. Wescott, for appellee.

REED, J. This action was brought to recover the sum of $50 for one penalty for violating section 26 of the act entitled "An act regulating the age and employment, safety, health and work hours of persons, employés, and operatives in factories, workshops, mills, and all places where the manufacture of goods of any kind is carried on, and to establish a department for the en

forcement thereof." Act March 24, 1904 (P. L. p. 160). Section 45 of this act provides for the appointment of a commissioner, assistant commissioner, and inspector of labor. These officers are empowered at all reasonable times to enter and inspect factories, mills, workshops and places where the manufacture of goods of any kind is carried on. Section 26 enacts that "no persons shall interfere with, delay, obstruct or hinder by force or otherwise, the commissioner or assistant commissioner or inspector in the performance of their duties." The defendant, the N. Z. Graves Company, operate in Camden a factory known as the "Camden White Lead Works," wherein white lead is manufactured. On October 27, 1907, Henry Kuehnle and Lewis Holler, both inspectors of the department of labor, went to the factory of the defendant for the purpose of making an inspection. They went first to the office. The door of the office was locked. These inspectors knocked repeatedly, and a voice from the inside of the office said to them, "Go to the gateman. See the gateman outside." They went to the gateman, told him who they were, handing him a card upon which was the name of Holler with his official position thereon, and he showed the gateman his official badge. The gateman refused to admit the inspectors. This was the testimony upon the trial, and at the close of the commissioner's case, the trial judge directed a verdict for the defendant. We think this direction was erroneous. It is not denied that the inspectors were excluded from the defendant's factory, and that this exclusion obstructed and hindered the inspectors from the performance of their duty. The substantial ground upon which the direction of the trial judge is defended is that it did not appear from the testimony that the gateman was the servant of the defendant when he refused admission to the inspectors; but, from the facts proved, we think the jury could have drawn the conclusion that the gateman was the servant of the defendant. The inspectors went first to the appropriate place the office of the company. They were directed by some one in the office to the gateman. They went to the gateman, so far as appears the only gateman. The fact that he was stationed at the gate was a fact from which the jury could have inferred that he was there as the servant of the company, stationed there to guard the gate and exercise his authority in admitting those who were entitled to enter, and excluding those who were disentitled to enter. Nor is the inference that the act of the servant was the act of the master destroyed by the fact that the action is for a penalty. In Atty. Gen. v. Sidden, 1 Cromp & Jer. Rep. 219, the master was held liable for the fraudulent act of his servant committed in violation of the revenue laws. The court held that the

In

action was a civil suit to recover penalties given by the statute. It was held that the acts committed by the servant raised an inference that he was acting for and with the assent of the master, but it was a privilege of the master to show the contrary. Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314, the defendant's servant prepared and delivered at the plaintiff's factory skimmed milk, in violation of the penal statute, and it was held that this raised a prima facie case against the master, which could be rebutted by him. Among the cases cited in the opinion in this case are Locke v. Stearns, 1 Metc. (Mass.) 562, 35 Am. Dec. 382; Commonwealth v. Nichols, 10 Metc. (Mass.) 259, 43 Am. Dec. 432; Bennett v. Judson, 21 N. Y. 238. In the present case, the defendant, instead of producing evidence to repel the prima facie inference against him, remained silent.

The direction of a verdict for the defendant in these circumstances was error, and the judgment should be reversed.

(77 N. J. L. 128) FIDELITY TRUST CO. v. BOARD OF EQUALIZATION OF TAXES OF NEW JERSEY et al.

(Supreme Court of New Jersey. Nov. 9, 1908.) 1. TAXATION (§ 386*) -ASSESSMENT-DEDUCTION OF LIABILITIES.

In the taxation of trust companies, under section 18, Act 1903 (P. L. 1903, p. 405), the full amount of capital and accumulated surplus must be ascertained by deducting from the gross assets, at their true value, the liabilities and debts of the company.

[Ed. Note. For other cases, see Taxation, Dec. Dig. § 386.*]

2. TAXATION (§ 386*)-TRUST COMPANIES-AS

tion, which upon appeal to it confirmed a tax assessment for the year 1907, made and levied against the prosecutor, the Fidelity Trust Company. From the agreed facts in the case it appears that the trust company is a corporation existing under the laws of New Jersey, with its office in the city of Newark; that on the 20th day of May, 1907, its capital and accumulated surplus amounted to $9,269,342.71; that it held real estate amounting to $56,778.25; that its capital and accumulated surplus on that date were pro tanto invested in nontaxable or exempt securities to the amount of $9,000,439.59. Deducting the last two items, a taxable balance is shown of $212,124.87. On the above balance of $212,124.87, being the capital and accumulated surplus after deduction of the value of its real estate and its nontaxable securities, the assessment for the year 1907 was made against said company by the taxing authorities of Newark. The tax so assessed was thereupon duly paid by the prosecutor. It appears also that among the assets of the company are 1,505 shares of the capital stock of the Union National Bank of Newark, of the par value of $150,500, and that these shares, after the assessment had been made against the prosecutor upon its capital stock and surplus, were in addition thereto assessed for taxation at the sum of $228,960. From the assessment of these bank shares the appeal in question was made to the board of equalization of taxes, which by its judgment confirmed said tax.

The revised tax act of 1903 (P. L. 1903, p. 405, § 18) provides "that every fire insurance company and every trust company shall be assessed upon the full amount of its capital stock paid in and accumulated surplus. The real estate belonging to every such corporation, however, shall be taxed in the taxing district where such real estate is situated and the amount of assessment upon such real estate shall be deducted from the amount of any assessment made upon the capital stock and accumulated surplus as herein provided for." That the stock and securities exempt by law should be deducted in computing the taxable value of the capital and accumulated surplus is settled by the case of Trenton v. Standard Fire Ins. Co. (N. J. Sup.) 68 Atl. 1111, and Lippincott v. Lippincott (N. J. Err. & App.) 69 Atl. 502. There is no merit in the contention that the bank stock escapes taxation by reason of making the assessment upon the capital and accumulated surplus, or that such fact conclusively appears because the value of such bank shares exceeds that of the net taxable capital and surplus. In order to ascertain the capital and surplus it is necessary to find the true value of the gross assets. From this must be deducted debts and liabilities. The remainder will be the value of the capital and surplus, if any. This remainder for the purposes of taxation is to be still further reduced by the assessment of the

company, and it is evident that, if these bank shares were included in the gross assets, as we must presume they were, they have not escaped taxation. Their value has been computed in and contributed to the portion of the gross assets which have been set off against the liabilities. This method of assessment is only a mode of ascertaining the value of the property of the trust company above its liabilities. Of course, it presupposes that the values used to this end are true values within the constitutional meaning. The result obtained is similar to assessments against individuals, where the assessors value all the property and deduct debts.

Having thus ascertained these results, there is one remaining factor to be considered. Is this net result made up in whole or in part of nontaxable property? If so, then such nontaxable securities must be deducted; for to tax the fund, composed of exempt property, is to tax such exempt property. Newark City Bank v. Newark, 30 N. J. Law, 13. This also must be so in order to make uniform the method of taxation of the assets of corporations and the property of individuals. Therefore it appears that in the present assessment the bank stock has been taxed. It is included in the general statement; but, as the liabilities are offset against it, it has lost its identity just as all other assets lose their identity in this method, but their value is not dissipated by being thus dealt with. Having thus shown that the stock has not escaped taxation, the contention that the eighteenth section of the tax act of 1903 is in violation of paragraph 11, § 7, art. 4, of the Constitution, because exempting trust companies from taxation upon national bank stock as such held by them, must fall.

The final point made by the defendant is that the capital stock must be valued at its true value, and that, as its selling price in 1907 was about $600 per share the assessment should be upon $12,000,000, from which the deduction for nontaxable securities, $9,000,000, should be made, leaving $3,000,000 for taxation. This, however, is not the method prescribed by the act. It is true, as before said, that all the securities should, in ascertaining the total assets, be valued at their true values. This presumably has been done by the officers charged with the duty of making the assessment. Thus the true value of all the property of the company has been ascertained. The market value of shares is not the criterion prescribed by law, and may not in fact indicate the aggregate values of all the securities. All possible taxable value will be gathered up in the two items of capital and surplus.

The assessment on the bank stock as such, in addition to and separated from the assessment on capital stock and surplus, should be set aside, and the judgment of the state