James Buchanan, for prosecutors. Charles E. Bird, for defendant.

HENDRICKSON, J. The prosecutors seek to set aside, as invalid, an ordinance of the city of Trenton approved March 18, 1902. The ordinance ordains that the erection, etc., of any stationary or swinging sign, or any stationary awning, shed, or other obstruction, across the whole or any portion of any sidewalk within that portion of the city of Trenton embraced within certain bounds defined in the ordinance, shall be deemed and is thereby declared to be a nuisance. It contains provisions empowering and directing the police department to prevent such erections or other obstructions across the whole or any portion of any sidewalk within said bounds, and to remove any such erection or obstruction there existing in front of any building where the owner or occupant neglects or refuses to remove the same after 10 days' notice in writing. A penalty of $20 is also added in case of such neglect or refusal after notice. The prosecutors are the owners of a brick store building and lot known as No. 120 North Broad street, in said city, where for several years they have conducted the business of dealers in fruits, vegetables, and produce. They have an awning in front of their premises, 25 feet 11 inches long, consisting of an iron frame and roof, covered with boards and tin, 14 feet in height next to the building and 12 feet in height at the curb, and extending over the whole sidewalk. This awning was constructed by the grantor of the prosecutors in 1886, and has been maintained there ever since.

It is contended that the ordinance is invalid, in that it is not general, fair, or impartial, but discriminates against individuals within a portion of the city, who are to suffer oppressive interference in the enjoyment of their property, while those who live in the remaining territory of the city are left entirely free from such interference. In support of this contention the prosecutors cite Dill. Mun. Corp. (4th Ed.) § 322, where the principle is laid down that: "As it would be unreasonable and unjust to make, under the same circumstances, an act done by one person, penal, and if done by another, not so, ordinances which have this effect cannot be sustained. Special and unwarranted discrimination or oppressive interference in particular cases is not to be allowed." This is, without doubt, a well-established doctrine; and, if the ordinance in question is within the principle here delineated, it must fail. But is it? The map presented to us shows that the district covered by the ordinance includes parts of four different wards of the city, and is located at its business center, and includes a large portion of the principal business streets. The principle above alluded to as affecting municipal legislation is not universal in its application to all conditions, and will not necessarily render an ordinance

discriminating because it affects a certain class, or is applicable only to a certain designated district or to a certain street. The general and special character of an ordinance must be determined by the facts of each case, and not by any fixed rule. Tied. Mun. Corp. 152. This exception is recognized in the notes to section 322 of Dillon, in which the case of Railroad Co. v. Richmond, 96 U. S. 521, 24 L. Ed. 734, is cited with approval. The ordinance in that case forbade the running of railroad carriages, engines, etc., over part of a certain street. Upon the question of discrimination, Waite, C. J., says, "All ordinances should be general in their operation, but all places within the same city do not necessarily require the same local regulation. It is the special duty

*

of the city authorities to make the necessary discrimination in this particular." This view is sustained in the following cases: Com. v. Goodrich, 13 Allen, 549; Barbiere v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923; also in City of St. Louis v. Weber, 44 Mo. 547, where an ordinance prohibited the keeping of a meat shop in the city of St. Louis within certain prescribed limits. Applying this view to the case in hand, we think a city council of a populous and growing city might reasonably conclude that a measure so restrictive as this was necessary for public convenience in the crowded thoroughfares of the city, but was not necessary in the less crowded streets, or in those where business places were less numerous. If we could discover from the facts before us that this ordinance was a mere act of caprice on the part of the council, and that in it there was an evident intent not to legislate in the interest of the general public, but to strike at the prosecutors, it would be our duty to condemn the ordinance. But since no such condition appears, we cannot interfere with the ordinance upon the ground just discussed. We are unable to see how our conclusion could be altered by looking at the ordinance of 1888 regulating the erection of signs and awnings. It excepted from its operation any veranda awnings then existing. To most that could be claimed under this ordinance was a license to maintain the awning then already erected. Such a license is revocable at any time.

The ordinance is further attacked on the ground that it is unreasonable. In support of this averment, the point already discussed is renewed, and it is further urged that the ordinance is an unjust and oppressive interference with the business of the prosecutors and their property rights. This position might appeal to us more strongly if the ordinance in question was not clearly within the powers delegated to the city by the legislature. The charter of the city of Trenton (P. L. 1874, p. 331), after granting to the common council power to make ordinances and by-laws for the purposes, among others, of preventing and removing all encroach

ments, obstructions, and incumbrances upon the streets of the city, defines a further purpose for which such ordinances may be passed, as follows: "To prevent or regulate the erection or construction of any stoop, step, platform, bay window, cellar door, area, descent into a cellar or basement, sign or any post or erection, or any projection, in, over or upon any street or avenue, and to remove the same where already erected, at the expense of the owner or occupant of the premises." It will thus be seen that the ordinance in question is phrased almost in the very words of the charter, and that it is clearly within the power granted. Under such circumstances, the presumption is that the ordinance is reasonable; and unless it is clearly shown that the ordinance itself, or the mode of its operation, is unreasonable, the court will not interfere. Paxson v. Sweet, 1 Green, 196; Trenton Horse R. Co. v. Inhabitants of City of Trenton, 53 N. J. Law, 132, 20 Atl. 1076, 11 L. R. A. 410; Traction Co. v. City of Elizabeth, 58 N. J. Law, 619, 34 Atl. 146.

There are no special facts brought before us, bearing upon the question, except the nature of the business of the prosecutors, and the fact stipulated that 245 different persons own overhead awnings and swinging signs within the territory defined. We do not regard the latter fact as very convincing upon the charge of unreasonableness. While we realize that such an ordinance may disturb somewhat, and perhaps annoy, the proprietors of business houses affected thereby, still it must be perceived that these erections may obstruct the streets in the congested centers of a populous city, and inconvenience large bodies of people who are entitled to the free and uninterrupted use of the streets for travel or passage. Regard must be had, also, to the fact that such erections, when largely multiplied, may mar the appearance of city streets, and may, through decay or want of repair, become unsightly, and perhaps unsafe to the pedestrian, and that they may obstruct the view, and, to a degree, shut off light and air from persons residing upon the street, in close proximity. These are questions that may justly be considered by the city authorities in deciding upon the propriety of such an ordinance, and hence we conclude that the prosecutors have failed to clearly demonstrate the charge that the ordinance is unreasonable.

With regard to the suggestion that the ordinance is inconsistent with the abutter's property interests, we think the proposition is clearly untenable. The title of the abutting owner may run to the center of the street, as it generally does, but his rights must always be subservient to the public easement. He may make, as of right, all proper uses of the street, subject to the paramount right of the public user, and subject, also, to reasonable and proper municipal and police regulation. 2 Dill. Mun. Corp. 656a;

Weller v. McCormick, 52 N. J. Law, 470, 19 Atl. 1101, 78 L. R. A. 798. In the latter case, Mr. Justice Dixon, in discussing the rights of the abutting owner, says, "He may use the highway in front of his premises, when not restricted by public enactment, for loading and unloading goods, for vaults and chutes, for awnings, for shade trees, etc., but only on condition that he does not unreasonably interfere with the safety of the highway for public travel." No decision has been cited, and we know of none in this state, which asserts the doctrine that the exercise of such rights by the abutting owner is not subject to municipal control. Other authorities supporting this view are Pedrick v. Bailey, 12 Gray, 161; Drake v. City of Lowell, 13 Metc. (Mass.) 292; City Council v. Burum, 93 Ga. 68, 19 S. E. 820, 26 L. R. A. 340; Farrell v. City of New York (Sup.) 5 N. Y. Supp. 580; Id. 672; and other cases cited in note 7 of 15 Am. & Eng. Enc. Law (2d Ed.) 499. The case of State v. Higgs (N. C.) 35 S. E. 473, 48 L. R. A. 446, was cited in behalf of the prosecutors, where an ordinance forbidding the suspension of signs over sidewalks was held invalid, as not being within the chartered powers of the municipality. This decision was reached by a divided court, and is clearly distinguishable from the case we are considering.

The result is to affirm the ordinance, with costs.

SCHUTTE et al. v. UNITED ELECTRIC CO. OF NEW JERSEY.

(Supreme Court of New Jersey. Nov. 10, 1902.)

NEGLIGENCE OF SUBCONTRACTOR-LIABILITY OF CONTRACTOR.

A. contracted with B. to put in a meter to measure the electricity used by him in his house. B. subcontracted the work to C.. who exercised an independent employment. Held:

1. That B., by force of the contract with A., is liable to A. for damages resulting to him from the negligence of C. in doing the work.

negligently, other persons injured thereby could 2. That, if B. himself had done the work maintain an action of tort against B. for his negligence, although they could not base their action upon the contract, to which they were not a party.

3. As between B. and C., the latter exercised an independent employment, and that gave B. the same immunity against an action by others than A. for the negligence of C. that A. would have if sued for the negligence of B. or C. (Syllabus by the Court.)

Action by Anna Schutte and another against the United Electric Company of New Jersey. The complaint was amended by sub. stituting the Hoboken Land & Improvement Company as plaintiff. Verdict for plaintiff. Rule to show cause why new trial should not be granted. Rule entered.

Argued June term, 1902, before VAN SYCKEL and FORT, JJ.

Edward A. & Wm. T. Day, for plaintiff. Bedle, Edwards & Lawrence, for defendant.

VAN SYCKEL, J. This is an action to recover damages for injury by fire to six buildings owned by plaintiffs. The real plaintiff is an insurance company, which claims to be subrogated to the rights of the insured. It is claimed that the fire was caused by electrical work carelessly done by the O. K. Electric Company. On the trial of the cause, motion was made and denied for the direction of a nonsuit, and for the direction of a verdict, on the ground that the work done was the act of an independent contractor duly qualified for the work, for whose negligence the defendant could not be held responsible. Six buildings were injured by the fire, which appears to have originated at the top of an electric switch box through which the electric wires passed in entering building No. 51, in which a liquor saloon was kept by William Verdon. This switch box had been installed about April, 1899, by the Hudson Electric Light Company, a corporation with which the defendant was not connected, so far as appears. In the spring of 1900 the North Hudson Light, Heat & Power Company, a corporation subsequently merged into the defendant company, and which was then furnishing electricity to Verdon, required him to install a meter for the purpose of measuring the electricity used in the building. Thereupon Verdon signed an application, dated May 21, 1900, directed to the company, as follows: "I hereby make application for connections for electric current for 2 A. C. arcs and 7 incandescent lights, of 16 candle power, or the equivalent, for twelve months, at No. 51 Fourteenth street, Hoboken, N. J. I agree to pay for the same at the rate of 12 cents per kilo-watt hour, as the same shall be measured by the meter or meters furnished by you, during the above-mentioned period, and thereafter as long as used." On or about June 8, 1900, the North Hudson Light, Heat & Power Company installed in Verdon's saloon a meter, connecting the same with the wires and apparatus which had been put in a year or more before. The plaintiffs claimed that the fire occurred by reason of the defective manner in which this meter was installed. It is not denied that, when the meter was installed, some of the wires of the switch were disconnected in the course of doing the work.

The North Hudson Light, Heat & Power Company made a contract with the O. K. Electric Company, an independent electric contractor, to make the alteration of the wires in the switch box which was necessitated by the installation of the meter. It is insisted by the defendant that, if there was any negli gence in altering the wiring in the switch box, it was the negligence of an independent contractor, who had exclusive charge of the work, and which cannot be imputed to the defendant. The contract of Verdon was with the North Hudson Light, Heat & Power Company, under which said company was bound to use reasonable care in the work

necessary to complete the installation of the meter,-a care commensurate with the risk which attends the use of an agency so highly dangerous. As to Verdon the said company was an independent contractor, for whose negligence Verdon was not liable. There was no privity between Verdon and the O. K. Electric Company, and the North Hudson Light, Heat & Power Company could not escape liability to Verdon under its contract with him by employing another company to do the work, and thereby turn him over, without his consent, to a party which might be irresponsible for the damages he might sustain by breach of the contract he made with the North Hudson Company. The rule applicable to negligence of an independent contractor is not involved in this controversy, so far as Verdon is concerned. If the owners of the buildings had sued Verdon for their loss, he was in a position to invoke that rule, but it constitutes no defense in an action by Verdon against the party with which he contracted.

The right of action of the owners of the houses rests upon a different principle. It cannot be based upon the contract of Verdon. It is the recognized law of this state that one who is not a party to a contract cannot sue in respect of a breach of duty arising out of the contract. Appleby v. State, 45 N. J. Law, 165; Styles v. Railroad Co. (N. J. Sup.) 51 Atl. 710; Marvin Safe Co. v. Ward, 46 N. J. Law, 19. But Mr. Justice Depue, in his able review of the cases on that subject, was careful to limit the application of the rule as follows: "There is a class of cases in which a person performing services or doing work under a contract may be held in damages for injuries to third parties occasioned by negligence or misconduct in the execution of the contract; but these are cases where the duty or liability arises independent of the contract, and in such cases the plaintiff must count upon a wrongful act or negligence,-a tort as distinguished from a mere breach of contract. The same distinction is observed by Chief Justice Beasley in delivering the opinion of the supreme court in Van Winkle v. Steam-Boiler Co., 52 N. J. Law, 247, 19 Atl. 475, where he says: "And it would seem that there is a broader ground than the one above defined on which the present case can be based. It is this: That in all cases in which a person undertakes the performance of an act which, if not done with care and skill, will be highly dangerous to the persons, or lives of one or more persons, known or unknown, the law, ipso facto, imposes as a public duty the obligation to exercise such care and skill." This declaration must be . accepted as the law of this court, and we agree that it is correct in principle and in accordance with the cases. If the negligent work had been done by the North Hudson Company, the landowners, who are not parties to the contract of Verdon, could, under

the cases last cited, have maintained their action of tort against the North Hudson Company, and not upon the contract. But there is another factor in the case before us, which, under the case of Cuff v. Railroad Co., 35 N. J. Law, 17, 10 Am. Rep. 205, we feel constrained to hold, furnishes immunity to the North Hudson Company against such action for tort. In that case Mr. Justice Depue says: "The principle upon which the superior, who has contracted with another, exercising an independent employment, for the doing of the work, is exempt from liability for the negligence of the latter in the execution of it, applies as between the contractor and the subcontractor." In that case, although the work was of a highly dangerous character, it was held that, because the subcontractor was exercising an independent employment, an action would not lie either against the railroad company, or against the persons with whom it made the contract for the negligence of the subcontractor. between the North Hudson Company and the O. K. Electric Company, the latter was an independent contractor, for whose negligence the former company cannot be held except as before stated.

As

We are of opinion that, while there may be sufficient evidence of negligence to sustain a verdict in favor of Verdon, the action will not lie in favor of the owners of the other houses. Let a rule be entered accordingly.

INTISO v. STATE (METROPOLITAN SAVINGS & LOAN ASS'N, Prosecutor). (Supreme Court of New Jersey. Nov. 10, 1902.)

BUILDING ASSOCIATIONS — CONTRACT RELATIONS-IMPAIRMENT-WITHDRAWAL VALUE. 1. The contract relations arising from membership in a building and loan association organized under 1 Gen. St. p. 331, cannot constitutionally be altered by legislation in such way as to impair any obligation arising therefrom.

2. Provisions in the constitution of such an association limiting payment of the withdrawal value of shares to a fund arising from a percentage of dues collected, and exacting a withdrawal fee of $1 per share, are not inconsistent with its organic law.

3. In such a case the limitation of payment to the fund will be secured, not by denying judgment, but by controlling execution. (Syllabus by the Court.)

Certiorari to Orange district court.

Certiorari by the state, on the prosecution of the Metropolitan Savings & Loan Association, against Giacomo Intiso. Judgment reversed.

See 52 Atl. 1133.

Argued June term, 1902, before GARRISON and COLLINS, JJ.

Samuel F. Leber, for prosecutor. Wm. A. Lord, for defendant.

COLLINS, J. In a suit in the district court of the city of Orange, brought to re

cover the withdrawal value of 25 shares in an association organized under "An act to encourage the establishment of mutual loan, homestead and building associations" (Revision approved April 9, 1875; 1 Gen. St. p. 331), the plaintiff recovered the judgment now under review. The case as first presented to this court was defective, and 30 days' time was given the plaintiff in certiorari to perfect the return, in default whereof the judgment was to be affirmed. 66 N. J. Law, 157, 52 Atl. 1133. After affirmance because of such default, the return was perfected, but this court refused to consider the case. Afterward, on due procedure, the judgment of affirmance was, at the February term, 1902, set aside, and it was ordered that the argument of the writ should be brought on at the present term. The cause being moved, the point is made in limine by the defendant in certiorari that the default has not been removed. We think that the effect of the latest order of the court was to remove it, and that the case must now be considered on its merits.

The membership forming the foundation of the suit dates from June 1, 1898, at which time the constitution of the association provided that any member having made 12 monthly payments on shares not pledged for loan, and not liable for fees, dues, or other charges, might apply to withdraw such shares, and 60 days thereafter should be en. titled to receive the amount paid thereon, with interest at 4 per cent., averaged, less a withdrawal fee of $1 per share. The constitution further provided that no more than 50 per cent. of the dues received in any month should be applicable to the payment of withdrawals without the consent of the board of directors of the association, and that withdrawals should be payable in the order of application. It was proved in the case in hand that up to the time of the trial the directors of the association had paid out on precedent withdrawals more than the required percentage of dues. Nevertheless the court gave judgment in favor of the withdrawing member for the full withdrawal value of his shares, without any deduction. The ground of decision was the provision of the organic law of the association that its charter should be subject to alteration, amendment, or repeal, as applied to a supplement approved March 24, 1899 (P. L. p. 357), which provides that a withdrawing shareholder shall be paid "not less than the sum of his installment paid in, less all unpaid fines and his proportionate share of any loss sustained by the association, provided that at no time shall more than onehalf of the funds in the treasury be applicable to the demands of withdrawing shareholders without the consent of the board of directors." This statute, if retroactive, is, to the extent that it impairs the obligation of the contract implied in pre-existing membership in any association affected, plainly

unconstitutional. The power of alteration, amendment, or repeal, which the state reserved in its grant of permissive incorporation, has no effect upon contract relations arising from membership. Rahway v. Mun

day, 44 N. J. Law, 395; In re Newark Library Ass'n, 64 N. J. Law, 217, 265, 43 Atl. 435; Johnson v. Association, 66 N. J. Law, 683, 51 Atl. 150; Schwarzwaelder v. Insurance Co., 59 N. J. Eq. 589, 44 Atl. 769. In becoming a member of the Metropolitan Savings & Loan Association, Intiso agreed to the condition imposed on withdrawal of shares. It was not competent for the legislature to impair the obligation of that contract. It is argued that the condition is unreasonable, but that argument has no bearing on a contract embracing it. It is urged that it is inconsistent with the statute, and therefore void by the terms of that enactment. We see no inconsistency. The provision for payment is protective, and that for a withdrawal fee may be justified as intended to cover clerical expense.

It results, therefore, that the amount of withdrawal fees must be deducted from the recovery in this case. It is contended that there must be a nonsuit, but we think the true practice in a case like this, where a judgment is collectible only from a particular fund, is to control the execution. Such was the decision of the supreme court of Pennsylvania in a case where payment to withdrawing members was compellable only when limited to half the funds in the treasury. sociation v. Silverman, 85 Pa. 394. The rule adopted was a sensible one, and we will follow it. The case is analogous to a judgment of assets quando acciderint against an executor or administrator pleading plene administravit, and to a judgment against a public corporation, which can only be extended on property not devoted to public

use.

As

Let the judgment be reversed, and judgment be entered in this court in accordance with this opinion. The plaintiff in certiorari is entitled to costs in this court.

STATE (KNOELL, Prosecutor) v. JORDAN. (Supreme Court of New Jersey. Nov. 10, 1902.)

CERTIORARI-STIPULATION OF COUNSEL

-EFFECT.

1. A stipulation of counsel setting forth the proceedings at the trial of an action will not be considered on certiorari to review the judgment rendered therein.

Certiorari to Camden district court.

Certiorari by the state, on the prosecution of John Knoell, against Patrick I. Jordan, to review a judgment. Affirmed.

Argued June term, 1902, before DIXON, HENDRICKSON, and PITNEY, JJ.

Henry I. Budd, Jr., for prosecutor. Frederick A. Rex, for defendant.

PER CURIAM. This certiorari brings up a judgment rendered in the district court of the city of Camden. The reasons assigned for reversal relate exclusively to the proceedings at the trial, and the only evidence of those proceedings laid before us is a stipulation signed by the attorneys of the parties. It is our settled practice not to regard such a stipulation in cases of this character. Monitor Lodge v. Golby, 58 N. J. Law, 119, 32 Atl. 689; Houman v. Schulster, 60 N. J. Law, 132, 36 Atl. 776; Staten Chemical Co. v. Miller, 29 Atl. 316. As we find no support for the reasons assigned, the judgment must be affirmed, with costs.

MCGRATH v. DELAWARE, L. & W. R. CO. (Supreme Court of New Jersey. Nov. 10, 1902.)

SERVANT--INJURIES-ASSUMPTION OF RISKCONTRIBUTORY NEGLIGENCE.

1. A servant, whose duty was to prevent coal cars running on a downgrade and in charge of a brakeman from overrunning a coal chute by placing on the track a wedge-shaped piece of wood, and who was injured while attempting to stop a car which was beyond the control of the brakeman, cannot complain against his master that the inability of the brakeman to control the car was owing to a defective brake, since the stopping of a car about to overrun the chute for any reason was his duty, and the risks incident thereto were assumed by him.

2. The immediate cause of the injury was the breaking of the wedge, or "sprag," owing to its rottenness. The servant had selected the sprag from several furnished by his master, and the testimony showed that its condition could have been ascertained by a casual examination. Held, that the servant was guilty of contributory negligence in failing to observe the condition of the sprag.

Error to court of common pleas, Hudson county.

Action by Daniel McGrath against the Delaware, Lackawanna & Western Railroad Company. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Argued June term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and GARRETSON, JJ.

Bedle, Edwards & Lawrence, for plaintiff in error. Warren Dixon, for defendant in

error.

GUMMERE, C. J. This writ of error brings up for review a judgment recovered by the plaintiff below, McGrath, against the railroad company, for personal injuries received by him while in their employ. His duty, at the time of the accident, and for a considerable time previous thereto, had been to assist in unloading coal cars at the company's docks on the Hudson river. The cars were run along the docks on a downgrade, one at a time, with a brakeman in control, and brought to a stop directly over a chute, so that they could be unloaded into it. When,

2. See Master and Servant, vol. 34, Cent. Dig. §§

717, 718.