class of cases in which a witness may state the inference drawn by him from facts within ordinary knowledge occurring in his presence. Familiar instances in which testimony of this kind may be given are: Whether two people were in love; whether a man was sick, or dazed, or despondent, or drunk; whether a dog was savage, or a horse gentle, and, in general, any matter touching physical or mental manifestations or appearances, as well as all questions of identity, resemblance, duration, distance, dimension, velocity, noises, smells, and many other matters where the inference drawn by an observer is commonly recognized and received as an equivalent for the congeries of facts that produce it. Testimony of this class, however, so far from being related to expert proof, rests upon diametrically opposite grounds. The expert witness is one whose possession of special knowledge renders his opinion admissible upon a state of facts within his specialty, without regard to the manner in which the facts are established, and without requiring that they should have come, in whole or in part, under the personal observation of the witness; whereas, the sole ground upon which a witness may give an opinion as to matters of ordinary knowledge is that they not only came within his personal observation, but that they come into proof so blended with the opinion to which they give rise that it is receivable in proof as a substitute for a specification of the host of circumstances that called it forth. A failure to observe this distinction results, at times, in the offer of an ordinary witness to give an opinion calling for special knowledge merely because he has had actual observation of the facts, and at other times, as in the present instance, in the offer to prove an opinion upon a matter of ordinary knowledge arising from assumed facts, by a witness who has not himself observed them, upon the ground that he is expert upon the special subject. In either of these classes of cases the proof must be rejected; the rule being that mere opportunity will not change an ordinary observer into an expert, and that special skill will not entitle a witness to give an expert opinion when the subject is one where the opinion of an ordinary observer is admissible, or where the jury is capable of forming its own conclusion from facts susceptible of proof in common form.

Finding no error in this record, nor in the course pursued at the trial, the judgment of the court below is affirmed.

STATE (DE WITT et al., Prosecutors) v. CITY OF ELIZABETH.

(Supreme Court of New Jersey. Nov. 8, 1893.) MUNICIPAL IMPROVEMENTS-CONSTITUTIONALITY OF PROVISIONS-ASSESSMENT OF BENEFITS.

1. The act of March 8, 1892, entitled "An act concerning the levying of assessments for sewers," (Laws 1892, p. 58,) is constitutional. v.27A.no.11-51

2. An assessment made since the passage of said act, under an ordinance of the city of Elizabeth, to build a sewer, which provides that so much of the costs and expenses incurred in the making thereof as can be lawfully assessed on property specially benefited shall be duly assessed according to the city charter and the general laws of the state, will be sustained, including benefits for both trunk and lateral sewers, unless some valid objection is made thereto.

3. The court in this case, under the authority of the act of March 23, 1881, (Laws 1881 p. 194,) sustains the assessment made by the commissioners against the prosecutors, as it appears to be fair, and the prosecutors ought in justice to pay the same, as it does not exceed the special benefit received by the lands of the prosecutors from the lateral sewer built under the ordinance and the trunk sewers theretofore constructed, through which the sewage from the lateral is discharged into the final outlet in Elizabeth river.

(Syllabus by the Court.)

Certiorari in the name of the state, at the suit of Alfred De Witt and others, against the city of Elizabeth. Writ dismissed.

Argued June term, 1893, before DEPUE, LIPPINCOTT, and ABBETT, JJ.

Randolph, Condict & Black, for prosecutors. James C. Connelly, for defendant.

ABBETT, J. The certiorari in this caso brings up for review the proceedings taken by the city of Elizabeth in relation to sewer. ing Salem avenue from North Broad street to the city line, and the assessments made on Salem avenue lands for benefits thereto by reason of the construction of this sewer, and also the trunk sewers into which it empties in order to have an outlet. All the prosecutors except Alfred De Witt have paid the assessment on their lands. At the present time he and a Mrs. Clark, who is not one of the prosecutors, are the only property owners who have not paid their assessments for this sewer improvement. De Witt and Helen I. Halsey, two of the original prosecutors, on October 9, 1890, protested against the construction of said sewer, but withdrew their protest November 7, 1890. The other prosecutor, Leonella F. Dunlap, October 17, 1890, petitioned the city council for the sewer. The ordinance for the improvement was passed November 18, 1890. The improvement was made in accordance therewith, and paid for by the city. The city of Elizabeth many years ago was laid out in sewer districts, so as to make a complete system of drainage for the lands embraced therein. The plan was to place the larger sewers, built of brick, nearest to the outlet, and then other sewers were to be constructed, connecting therewith, diminishing in size, and finally terminating in 12-inch pipe sewers, at the extreme outskirts of the district; the trunk sewers to be constructed large enough to receive all the sewage that would come from the laterals connected therewith. One of these districts is known as the "Mill Lane and Morris Avenue Sewer District." In that district, as part thereof, is the Salem avenue sewer.

This sewer, as part of this sewage scheme, empties into the Union avenue extension sewer, which empties into the Union avenue sewer, which empties into Mill lane sewer, which has its outlet in the Elizabeth river. All these sewers are embraced in and form part of the Mill lane and Morris avenue sewer district. These main or trunk sewers were constructed many years ago, before any application was made for the Salem aveDue sewer. When these main or trunk sewers were constructed, the Salem avenue property was deemed to be prospectively benefited thereby, as they were necessary to give an outlet to the proposed Salem avenue sewer, when it should be constructed, and assessments were made on the basis of these prospective benefits. These assessments for prospective benefits had, however, to be abandoned, because the supreme court, in State v. City of Elizabeth, 40 N. J. Law, 274, held that "land which can be drained into a trunk sewer only after connecting laterals are built cannot be assessed for the cost of the trunk sewer until such laterals are constructed." The court in that case, however, said: "When the laterals are built, so that sewerage through the mains is furnished to this property, then it will be lawful for the corporation to reimburse itself for the cost, not only of the laterals, but also of this principal sewer, so far as the peculiar advantage then accruing to that property will warrant." The act of March 8, 1892, (Laws 1892, p. 38,) provided for the contingency suggested by the court in the above case. Its provisions authorized the commissioners appointed to assess the lots specially benefited by the latter sewer, not only so much of the cost of the lateral as specially benefited said lands, but also so much of the cost of the main sewers connected with the lateral, and giving it an outlet, as, in their judgment, was proper, provided the total amount assessed did not exceed the special benefit accruing to the lots from both the main and lateral sewers combined; and all lots or parcels of land so specially benefited were to be assessed in proportion to the benefits received by each.

From the foregoing considerations it appears that if the prosecutors' lands derived a special and peculiar benefit from this sewage system, including the main sewers and the lateral or Salem avenue sewer, combined, these sewers having all been built, the time has arrived when it is proper to assess prosecutors' lands therefor. Mere irregularities or defects in form or illegality in assessing are no longer available to set aside such an assessment. The act of March 23, 1881, entitled "A general act respecting taxes, assessments, and water rates," (Laws 1881, p. 194.) was passed for the purpose of limiting objections of property owners to cases where the tax or assessment was unjust, and was intended to compel them to pay so much of the assessment as was justly due, and the

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court is required to amend all irregularities, errors, or defects, and may determine and fix by decree a proper sum in all cases in which there may lawfully be an assessment. This act has been liberally construed, so as to enable the court to summarily settle disputes about assessments, where there is sufficient before the court to enable it to determine what is a proper tax or assessment, without doing injustice to any one. Press-Printing Co. v. Board of Assessors, 51 N. J. Law, 75, 16 Atl. Rep. 173; Jones v. Landis Tp., 50 N. J. Law, 374, 13 Atl. Rep. 251; Endicott v. Corson, 50 N. J. Law, 381, 13 Atl. Rep. 265; In re Commissioners of Elizabeth, 49 N. J. Law, 507, 10 Atl. Rep. 363; State Board of Assessors v. Morris & E. R. Co., 49 N. J. Law, 199, 7 Atl. Rep. 826; Pfeiffer v. Miles, 48 N. J. Law, 450, 4 Atl. Rep. 429; Childs v. Howland, 48 N. J. Law, 425, 4 Atl. Rep. 430; Saunders v. Morris, 48 N. J. Law, 100, 2 Atl. Rep. 666; Dodge v. Love, 47 N. J. Law, 436, 2 Atl. Rep. 810; Newcomb v. Franklin Tp., 46 N. J. Law, 437; Conover v. Honce, Id. 347; Hetfield v. City of Plainfield, Id. 119; City of Elizabeth v. Meeker, 45 N. J. Law, 157; Morgan v. Comptroller, 44 N. J. Law, 572; Clark ▼ Mulford, 43 N. J. Law, 550; State v. Montclair & G. L. R. Co., Id. 524. The court of errors and appeals, in the case of City of Elizabeth v. Meeker, 45 N. J. Law, 159, says in construing the act of March 23, 1881: "The language here employed appears to leave no doubt as to the purpose of the legislature. It was to assign to the court the province of seeing that its suitors who were liable, or whose property was subject to these assessments for public improvements, and who were seeking to vacate any of such assessments, should in every event be made to bear their fair and legal share of the burden. This provision was well timed, and most salutary; for, while it preserves to the owner of property the ability to relieve himself from so much of his tax as is unjust, it at the same time, and by a summary procedure, compels him to do justice to the public by paying such part of his assessment as is justly due. This law is, in the highest sense, remedial, and should be construed with liberality, so as to abate the mischief of taxpayers avoiding, by litigation, their honest dues to the government." The court also held that the statute referred "to the state of affairs existing at the time when the court is called upon to act. If at that period there may lawfully be an assessment, imposition, or levy, then, in all cases, the judicial duty to impose the proper tax arises.” The constitutionality of this act of March 8, 1892, (Laws 1892, p. 58,) is attacked by the prosecutors, but it is clearly one of that class of laws which has been expressly held to be constitutional. In Re Commissioners of Elizabeth, 49 N. J. Law, 496, 10 Atl. Rep. 363, the subject is fully considered. The act of 1892 is constitutional, because it merely

provides for making an assessment for a purpose and at a time when the court in 40 N. J. Law, 274, held it was proper to assess the

same.

The act of 1881 renders it unnecessary for the court to consider in detail all the various objections to the proceedings made by the prosecutors. All that is necessary in this case is for the court to determine whether injustice has been done to the prosecutors by the assessments in question, and, if necessary, fix the amount that they should pay. In pursuance of the act of 1892, the commissioners made an assessment against the Salem avenue property. Their report, in con. nection with the assessment map, shows, in one column, the land assessed by assessment numbers; in another, the names of the owners; in another, the amount assessed for the lateral (Salem avenue) sewer; in another, the amount assessed for the trunk connections; and in another, the total assessment on each tract. The owners received notice of this provisional assessment, and of a time for hearing objections thereto by advertising and by notice sent through the mail. The prosecutors sent a written remonstrance, and Mr. De Witt telegraphed that he expected to be present at the hearing, and the commissioners waited for him, but he did not come. The objections made were considered by the commissioners, and thereafter, on August 30, 1892, they confirmed their certificate of assessment, which was ratified and confirmed by the city council September 1, 1892. The depositions show that the commissioners, in order to get at the amount of the assessment to put on each 25-foot lot of the proper depth, calculated as to what would be the present cost to build the entire sewer system in that particular district at the present time. They then ascertained the cost of the lateral in Salem avenue, and deducted this latter sum from the former, and determined that the difference was the cost to be charged to the trunk sewer connections. They then determined the assessment to be made on each tract in separate columns, the one benefit from the lateral, and the other for benefits from the trunk sewers, deducting from the amount determined to be assessed for trunk sewers the amount (if any) previously paid for the trunk sewer. The amounts of these credits or deductions are shown on page 35 of the case. They did not take into account the cost of the old sewers, and state that, if they had, the assessments would have been much higher. They proceeded upon the theory that they were to consider the entire special and peculiar benefits these Salem avenue lands would receive from the trunk and lateral sewers combined, as they were all necessary in order to give a sewage outlet to the Salem avenue lots. They determined, however, that, if the property owner paid any of the assessments previously assessed for any of the trunk sewers which had to be used to give an outlet

to the Salem avenue sewer, such payment should be used as a credit to reduce the amount they had determined as the then special benefit for the trunk sewers. This action seems to be fair and just to the prosecutors. The total payments made before and under this last assessment, together, will not exceed what their lots are specially benefited by both the trunk and lateral sewers, as authorized to be imposed by the act of 1892. Even if we were in doubt, the judgment of the commissioners should prevail, as there is no convincing evidence in this case that it is not right. Jelliff v. Newark, 48 N. J. Law, 102, 2 Atl. Rep. 627.

The objection that, with the exception of the Townley tract, the benefits were distributed along the line of the improvement in proportion to the frontage, does not necessarily make the assessment void. State v. City of Rahway, 39 N. J. Law, 646, and 40 N. J. Law, 615. As there is no evidence of injustice to the prosecutors in this case, either apparent on the papers, or shown by the testimony, arising from such distribution of benefits, we see no reason for setting the assessment aside on that ground, and in this we follow the rule laid down in State v. Village of Passaic, 37 N. J. Law, 66. The nonassessment of the Townley track is satisfactorily explained, but, even if it had not been, it is immaterial, so far as the prosecutors are concerned, because the city assumed its payment, and it did not therefore affect the assessment against the prosecutors' land.

The objection that the notice of intention was not properly published, if material in this case, is answered by the admission that it "was published for the requisite length of time, in the papers designated by law, previous to the passage of the ordinance." We find no injury to the prosecutors in the assessment made under the ordinance and the act of 1892. They had notice and ample opportunity to be heard, and the amount assessed against their property seems to be fair, and they have, with the exception of Mr. De Witt, already paid the assessments against their property. If it is deemed necessary, we will, under the act of 1881, fix the amounts to be assessed against the lands of the prosecutors at the sums named by the commissioners. The writ should be dismissed, but without costs as against the prose cutors.

SHIELDS, County Collector, v. MAYOR, ETC., OF CITY OF PATERSON et al. (Supreme Court of New Jersey. June 7, 1893.) MANDAMUS TO MUNICIPAL OFFICERS-COMPELLING PAYMENT OF TAXES COLLECTED ILLEGAL APPROPRIATION-REMEDY.

1. A peremptory mandamus will issue for the payment of state and county taxes by a city where it has collected sufficient moneys for city, county, and state purposes to pay such taxes.

4. On an application for mandamus to compel the city to pay state and county taxes of 1892, it would be no defense to set up that there were illegal appropriations made in 1891 by the board of chosen freeholders, which require the imposition of an additional amount of taxes in the tax resolution of 1892.

(Syllabus by the Court.)

Original action by Patrick H. Shields, collector of Passaic county, against the city of Paterson and others, for mandamus. Writ granted.

Argued February term, 1893, before DEPUE, LIPPINCOTT, and ABBETT, JJ.

Dewitt C. Bolton and William Nelson, for relator. Thomas C. Simonton, for respondents.

ABBETT, J. This is an application for a peremptory mandamus to compel the mayor and aldermen of Paterson to appropriate. raise, and order the payment of $158,334.84 to the county collector of the county of Passaic, for state school and county taxes, and to direct Daniel Miller, the comptroller of Paterson, to draw his warrant therefor, and the city treasurer to pay said sum to the county collector. The facts upon which this application is based are as follows: On May 11, 1892, the board of chosen freeholders of the county of Passaic adopted a resolution directing the assessors of the respective cities and townships in the county of Passaic to assess the sum of $349,469 upon the inhabitants of the cities and townships of the said county and their estates. On or about May 25, 1892, the county collector received from the state comptroller a notice that the amount of tax levied for the support of free public schools upon the real and personal property in Passaic county for the year 1892 was $123,080.69, with notice that the same was due and payable into the state treasury on or before January 1, 1893. This statement the county collector laid before the assessors of the townships and wards of said county at their annual meeting held next after he received the same. The county board of assessors, on August 4, 1892, adjusted, fixed, ascertained, and apportioned the proportion of the sums aforesaid to be levied and collected in each city and township in said county, and on August 4, 1892, delivered to the county collector an abstract of all the ratables in each city, ward, and township in said county as returned by the said assessors of the county of Passaic for the year 1892, together with a statement of the proportion of the said state school tax apportioned to the said county by said state comptroller, and

of the said county tax so ordered to be raised by the said board of chosen freeholders, and, as adjusted, fixed, ascertained, and apportioned by said board of assessors, to be levied and collected in each city and township in said county; which abstract and ap

portionment was signed and sworn to by

said assessors, or by a majority of them, ac cording to law. It appears by said abstract and apportionment that the proportion of the state school tax to be levied and collected in said city was $270,599.49. On June 2, 1892, the board of aldermen had passed the annual tax ordinance for 1892, which directed that $875,487 be raised by taxation to defray the expenses of the said city for the current fiscal year, and for the payment of state school and county taxes required to be paid by said city, etc. By section 3 of said ordinance it was declared that of the said moneys mentioned the following sums were necessary for and appropriated for the purposes therein set forth, to wit: City share of county tax, $207,575; city share state school tax, $95,000. The city of Paterson has paid said sum of $207,575 to the county collector, claiming that said amount was its just share of the county tax, but has failed to pay either the state school tax or the balance of $63,024.49 due on the county tax. This leaves a deficiency for collection by the county collector from the city of Paterson of $158,324.84. This sum has been demanded by the county collector and is still unpaid.

The objections necessary to consider, which are raised by the city authorities to the payment of these amounts are as follows: (1) That the board of chosen freeholders illegally appropriated money in the county tax resolution of 1892 to cover up and pay outstanding obligations unlawfully incurred in 1891. (2) Because said board of freeholders appropriated more money than was necessary for the actual expense of said county for the fiscal year of 1892, in order to apply the excess to certain outstanding unlawful obligations. (3) That, while it is admitted that the county collector is entitled to $95.300.35 for state school tax, the city claims that it is entitled to an offset of $90,523.96, being the amount apportioned to the city from the state school tax. (4) Because there is no money to the credit of the city of Paterson on the city comptroller's books, and the board has not ordered the warrant drawn on the treasurer for the payment of the amounts claimed. (5) That the city, in the annual tax ordinance passed June 2, 1892, only appropriated $207,575 in payment of the county tax, instead of $270,599.49, and that the city has paid the county collector said sum of $207,575.

The city charter (Laws 1871, p. 808) provides in section 27, among other things, that on or before the second Monday in June in each year the board of aldermen shall by ordinance declare the amount of money nec